Smyrniadou and Secretary, Department of Social Services (Social services second review) [2022] AATA 2433 (25 July 2022)

1. The Tribunal has had regard to the following relevant legislation in making its decision:

(a) Social Security Act 1991 (the Act); > > (b) Social Security (Administration) Act 1999 (the Administration Act); > > (c) Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) (the Rules): a determination made by the Minister under s 26(1) of the Act which came into effect on 6 December 2011; > > (d) Social Security (Active Participation for Disability Support Pension) Determination 2014; and > > (e) Administrative Appeals Tribunal Act 1975.

1. A decision in relation to the granting of DSP must be made having regard to the Applicant's condition in the period commencing on the day the application is lodged and the 13 weeks thereafter. This is called the qualification period.[5]
2. In this case, the qualification period commenced on 30 May 2018 and ended on

28 August 2018. 3. In assessing whether a condition has stabilised and is likely to persist for the future, the Tribunal must look at the situation during the qualification period, having regard to the evidence. Evidence of the Applicant's condition subsequent to the qualification period is not relevant, save as to the weight the Tribunal might give to competing prognostications made about the Applicant's condition during the qualification period.[6]

1. To qualify for a DSP, an applicant must satisfy the requirements set out in s 94(1) of the Act, as assessed during the qualification period.
2. In essence, s 94(1) of the Act requires that:

(a) the Applicant have a physical, intellectual or psychiatric impairment; and

(b) the Applicant's impairment or impairments is/are fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years; and

(c) the Applicant has a severe impairment (an impairment rating of at least 20 points on a single Impairment Table); or the Applicant's impairments together rate at least 20 points on the Impairment Tables; and

(d) the Applicant has a continuing inability to work; or the Secretary is satisfied that the Applicant is participating in the supported wage system.

1. Section 94(2) of the Act provides that a person has a continuing inability to work because of an impairment if the person has a severe impairment or has actively participated in a program of support and the impairment is of itself sufficient to prevent the person from doing any work or undertaking a training activity independently of the program of support within the next two years.
2. Section 7 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 provides that a person has actively participated in a program of support if they have participated in a program for at least 18 months in the three years immediately prior to the date of claim.

1. In conducting the Second Tier Review, the Tribunal has had regard to:

(a) the documents produced by the Respondent pursuant to s 37 and s 38AA of the Administrative Appeals Tribunal Act 1975 (AAT Act) (T Documents and Supplementary T Documents);

(b) the oral evidence of:

(i) the Applicant; and

(ii) Dr Chris Minogue;

(c) the following documents filed by the Applicant:

(i) Statement of the Applicant, dated 4 April 2022 (Exhibit A1);

(ii) Patient Health Summary from OGAM Medical, dated 8 February 2022 (Exhibit A2);

(iii) Letter from Dr Ryan to Dr Davis, dated 2 June 2010 (Exhibit A3); and

(iv) Radiology report, dated 17 June 2020 (Exhibit A4).

1. The Applicant's claim as considered in the First Tier Review related to the following conditions:

(a) Chronic back pain re: degenerative lumbar spondylosis;

(b) Severe osteoarthritis of the right thumb;

(c) Fibromyalgia;

(d) Severe irritable bowel syndrome (IBS); and

(e) Migraines.

1. The Applicant confirmed at the outset of the hearing and in correspondence from her former legal representative that she intended to limit the scope of the Second Tier Review to her back condition and that she pressed her claim for the DSP only on that basis.
2. It was accepted by the parties that there were two aspects to the Applicant's claim of chronic back pain, namely degenerative lumbar spondylosis and radicular pain.[7]
3. The Respondent accepted that the Applicant's lumbar spondylosis condition as it relates to lumbosacral spine function, without a radicular contribution, was fully diagnosed during the qualification period but asserted that the condition was not fully treated and fully stabilised. The Respondent contended further that radicular pain deriving from the Applicant's back condition was not fully diagnosed during the qualification period.
4. The medical evidence indicates that the Applicant's degenerative condition has been long understood. Rheumatologist Dr Peter Ryan, diagnosed that she was suffering right lumbo−sacral pain syndrome on 21 May 2007,[8] and an MRI of the lumbar spine performed on 8 June 2010 disclosed lumbar scoliosis and multilevel degenerative lumbar spondylosis.[9]
5. This diagnosis was confirmed as current during the qualification period. The Applicant's treating doctor, Dr Archaya, confirmed a diagnosis of severe lumbosacral spondylitis in a medical certificate dated 15 May 2018[10] and in April 2021, Dr Minogue,[11] a member of Services Australia's Health Professional Advisory Unit (HPAU), conducted a comprehensive survey and analysis of the medical evidence provided by the Applicant. He concluded that a history of chronic back pain is well-documented and that the lumbar spondylosis can be accepted as fully diagnosed during the qualification period.[12]
6. On the basis of this evidence, the Tribunal finds that the Applicant's lumbar spondylosis condition was fully diagnosed during the qualification period.
7. As to the issue of radicular pain, there is no indication of it being associated with the Applicant's condition in the medical evidence prior to the qualification period. Professor of Neuroscience, E Storey, in a letter dated 28 July 2011, referred to the Applicant having lower back problems for 17 years with no radiation or neurological signs to suggest a neural impingement.[13]
8. The only medical evidence for the existence of radicular pain is the reference to it in a letter of Dr Acharya dated 9 July 2018, referring the Applicant to the Alfred Hospital for an opinion and pain management in which he described her condition as lower back pain with radiculopathy.[14]
9. Dr Minogue reported that Dr Acharya stated in a conversation with him on 25 March 2021 that he considered that the Applicant's lower back pain included radicular pain in both legs.[15] However, Dr Minogue expressed the view in his HPAU report of 8 April 2021 that an updated MRI scan would assist to assess Dr Acharya's clinical impression. In his oral evidence, Dr Minogue noted that the Applicant had an arthritic knee which could complicate the situation and may explain why she was feeling pain in her legs. On this basis, Dr Minogue opined that the radicular component of the Applicant's symptomatology could not be regarded as fully diagnosed during the qualification period.
10. Dr Minogue's reservation was borne out by subsequent evidence. On 4 February 2022, the Applicant provided the Respondent with a report by Dr Andrew Rotstein on an MRI of her cervical, thoracic and lower spine dated 2 February 2022. A copy of the MRI report was provided to the HPAU by the Respondent for an opinion on the scan. A written opinion was provided by Dr Sandra Armstrong on 11 April 2022.[16] Dr Armstrong opined that the findings of the MRI scan were not in keeping with a diagnosis of radiculopathy, as there was no evidence of lumbar nerve root compression.[17]
11. Dr Armstrong also noted in her report that:

...there was limited mention of radicular symptoms in the medical evidence contemporary to the qualification period. A 9/7/18 pain management clinic referral letter by Dr Acharya indicates that Ms Smyrniadou has chronic lower back pain with radiculopathy. Dr Chris spoke to Dr Acharya on 25/3/21 and Dr Acharya stated that Ms Smyrniadou had radicular pain in both legs. The 7/11/18 (after the end of the qualification period) letter by Dr G Arfaei indicates that Ms Smyrniadou reported lower back pain and leg weakness, but appears not to have mentioned pain down her legs. Dr Arfaei's examination findings showed some weakness in Ms Smyrniadou's left quadriceps (front of thigh) muscle, which would be consistent with her left knee pathology, not radiculopathy. Dr Arfaei made a diagnosis of non-specific back pain. I consider that if Ms Smyrniadou had reported pain down the legs or there were examination findings consistent with radiculopathy it is very likely that Dr Arfaei would have indicated this in their letter.

1. On the basis of the medical evidence as a whole, the Tribunal is not satisfied that a radicular component of the Applicant's symptomatology could be regarded as fully diagnosed during the qualification period.
2. The basis of the Respondent's assertion that the Applicant's lumbar spondylosis condition had not been fully treated and fully stabilised during the qualification period was that the Applicant had not availed herself of reasonable and available treatment including steps to address the effects of prescription medication in the context of a broader pain management plan.
3. In his oral evidence, Dr Minogue stated that, after reviewing the medical evidence, he had formed the view that the Applicant's spondylosis condition was not fully treated and fully stabilised during the qualification period because the Applicant had been using medication to manage the chronic pain especially with diazepam and opioids and had not followed through with the referral to a pain management specialist. He noted the Applicant's prescription medication history as recorded in PBS data during the period from May 2016 to April 2021[18] and concluded that during this time (which included the qualification period) she was relying heavily on opioid analgesics and diazepam to relieve her pain. He opined that she may have been pain sensitised due to the chronic medication so that the analgesics were actually making the pain worse. He said that the usual advice of pain management specialists was to wean the patient off pain medication under the supervision of a pain management physician. He said he discussed this with Dr Acharya, the Applicant's treating doctor, who agreed that the Applicant had a probable dependence on pain medication.
4. The Respondent pointed to a history of referral of the Applicant for better management of her pain including:

(a) On 11 February 2011, Dr Wodak, a neurologist, who described the Applicant as having far more impressive symptoms than signs, opined that she requires better management of her pain and referred her to a Pain Clinic.[19]

(b) On 28 July 2011, Professor of Neuroscience, E Storey, noted that he had referred the Applicant to the Pain Clinic.[20]

(c) On 9 October 2015, Pete Schulz, musculoskeletal physiotherapist at the Alfred Physiotherapy Orthopaedic Screening Clinic recorded in an outpatient's progress note the Applicant's chronic non−specific neck/back pain with maladaptive functional movements/gait pattern and recommended referral to Caulfield Pain Management Clinic.[21]

(d) On 17 September 2018, Dr Archaya proposed a care plan which included proposed exercise and physiotherapy for the Applicant's back.[22]

1. On 9 July 2018, which was within the qualification period, the Applicant was referred to the Alfred Hospital Pain Management Clinic for an opinion and management of her lower back pain by Dr Acharya.[23]
2. The Applicant finally attended appointments at the Caulfield Hospital Pain Management Clinic (Clinic) on 16 October 2018[24] and 17 October 2018,[25] nearly two months after the qualification period. In her report of 7 November 2018,[26] Dr Glareh Arfaei of the Clinic, referred the Applicant for full team assessment and raised concerns with her about her opioid use and the importance of opioid reduction on the basis that she was using a high dose of equivalent daily morphine dose. While the Applicant had initially indicated her willingness to undertake the full program, Dr Arfaei noted that she was underwhelmed about the effect of other strategies to help with her pain as she believes that medication is very useful in controlling her pain.
3. In her oral evidence to the Tribunal, the Applicant stated that her back condition was first evident in the mid-1990s. She said that it was sporadic at first. It would go out and then fix itself within a few days. She said that as time when on it became more frequent and during a visit to the ENT surgeon for ear surgery her back went out, causing excruciating pain. She went to her treating doctor who prescribed pain medication and referred her to a rheumatologist, Dr Ryan, who misdiagnosed her as suffering from fibromyalgia. After that incident, she said the pain was constant and her ENT surgeon referred her for an MRI which revealed she had a problem with her central spine. She said she consulted a neurologist and rheumatologist and was told the condition was degenerative and was not suitable for surgery and could not be fixed. She said she developed her own ways of dealing with the condition with the assistance of pain medication prescribed by her treating doctor.
4. She acknowledged that she had been referred to the Clinic by Dr Acharya and she attended her first consultation in October 2018. She said she asked for the referral because she had been told by Centrelink that she needed to be assessed for the purpose of her DSP claim. She said that she attended the Clinic on three occasions, twice for an interview in the office and once for a seminar session. She said she did not continue with the program at the Clinic for two reasons. Firstly, because the Clinic did not provide the use of physiotherapy and other services and she needed to source those from other community facilities. Secondly, because she found the seminars unhelpful and physically uncomfortable to sit through.
5. She denied that the Clinic had advised her to reduce her medication and especially her opioid use, although she acknowledged that the reduction/adjustment of medication was part of the pain management program at the Clinic. She insisted that her treating doctor had never discussed reducing her pain medication. She also stated that she had attended at the Alfred Hospital on a number of occasions when her back had gone into spasm, but it was never suggested to her that she reduce her medication and the Alfred had actually prescribed her Endone.
6. The Tribunal is satisfied on the basis of the Applicant's evidence that she has opted to manage her chronic back pain using prescribed medication and her own adaptive strategies and she has not been receptive to engaging in a pain management program of the kind offered by the Clinic. It has been well-recognised by this Tribunal that a program of pain management conducted by pain management specialists is reasonable treatment for a chronic pain condition such as that suffered by the Applicant and a condition cannot be regarded as permanent - that is, fully treated and fully stabilised - unless such treatment is undertaken.[27]
7. Accordingly, the Tribunal finds that the Applicant's condition of degenerative lumbar spondylosis, while fully diagnosed, was not fully treated or fully stabilised during the qualification period and therefore cannot be assessed under the Impairment Tables.

1. For the reasons discussed, the Tribunal is satisfied that the Applicant has a physical, intellectual or psychiatric impairment as required by s 94(1)(a) of the Act, but she does not meet the qualification criterion for a DSP under s 94(1)(b) of the Act that she have an impairment which is of 20 points or more under the Impairment Tables. Accordingly, the Applicant was not qualified for a DSP at the date of her claim.
2. It is unnecessary for the Tribunal to consider the other matters raised in the Respondent's submissions.

1. The Tribunal affirms the decision under review.

I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Member R West

.........[SGD]...............................................................

[5] See ss 37 and 42 and cls 3 and 4 of Schedule 2 of the Administration Act.

[6] See Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 992 at [34]; Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133 at [33] and Covenden and Secretary, Department of Social Services [2018] AATA 353 at [7].

[7] Radicular pain is pain produced by the pinching of a nerve root in the spinal column: ST10 at p.323 (HPAU report of 11 April 2022 at p.2).

[11] Dr Minogue is a Fellow of the Faculty of Occupational and Environmental Medicine of the Royal Australasian College of Physicians (FAFOEM−RACP) with AHPRA medical specialist registration and he has over 30 years of experience relevant to permanent impairment assessments and work capacity: ST3 at p.237.

[27] See _Newman and Secretary, Department of Family and Community Service_s [2002] AATA 917 at [31]- [32], Smalldon and Secretary, Department of Social Services [2015] AATA 2 at [16] and Lucas and Secretary, Department of Social Services [2018] AATA 2563 at [51]- [52].