Kim and Secretary, Department of Social Services (Social services second review)

Kim and Secretary, Department of Social Services (Social services second review) [2020] AATA 2311 (16 July 2020)
Division:GENERAL DIVISION
File Number(s): 2019/0514
Re:Peter Kim
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Andrew George
Date:16 July 2020
Date of written reasons: 16 July 2020
Place:Darwin

The decision of the Social Services & Child Support Division of the Tribunal dated 31 August 2018 is affirmed.
..........[sgnd]..............................................................
Andrew George
Catchwords
SOCIAL SECURITY – disability support pension – post-traumatic stress disorder – thyroid cancer – chronic back pain - decision affirmed
Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘the Impairment Tables’
Cases
Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 [34]
Re Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
REASONS FOR DECISION
Andrew George
Background

On 20 September 2017, the Applicant lodged a Disability Support Pension (‘DSP’) claim.[1] In the current proceedings, the Applicant seeks a review of a decision of the Social Services & Child Support Division of the Tribunal dated 31 August 2018 (‘AAT1’).[2] That decision affirmed a decision to reject the claim of 20 September 2017. The current proceedings were initially brought out of time. Nevertheless, the Tribunal granted an extension of time on 28 February 2019.
[1] Exhibit R1: T9, T15 p.279.
[2] Exhibit R1: T2 p.4 (with full reasons for decision in Review Number 2018/A122364).
The Applicant was first granted a DSP on 17 March 2009. This DSP was suspended due to the Applicant being absent overseas for periods greater than permitted. Eventually, the applicant’s DSP was cancelled on 30 December 2012 as he was regarded as ‘not residing in Australia’. The applicant has subsequently re-applied for DSP on several occasions, including 20 September 2017, and these applications have not been successful.
This matter was heard on 4 December 2019. Mr Visser represented the Respondent. The Applicant was unrepresented but assisted by a support worker, Ms Pollock. The Applicant was legally advised by the Darwin Community Legal Centre,[3] however the extent of this advice did extend to representation at hearing.
[3] Exhibit A4; Exhibit R1: T14 pp.246-248.
Issues
The Respondent has posited, and the Tribunal agrees, that the issues to be decided in this application are:
(a)Whether, as at the date of the Applicant’s claim for DSP (or within 13 weeks of that date until 20 December 2017),[4] the Applicant had any physical, intellectual or psychiatric impairments within the meaning of s.94(1)(a) of the Social Security Act 1991 (Cth),
(b)If so, whether the Applicant’s impairments(s) attracted an impairment rating of at least 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘the Impairment Tables’), and
(c)If so, whether the Applicant had a continuing inability to work.
[4] ss.41-42, Schedule 3 Clause 2, Schedule 2 Clause 4(1) Social Security (Administration) Act 1999 (Cth); Re Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404, [1]; Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 [34].
The physical, intellectual or psychiatric impairments claimed by the Applicant may broadly be described as a Post-Traumatic Stress Disorder, thyroid cancer, and chronic back pain. The Tribunal notes that osteoarthritis of the right knee was claimed in AAT1 and beforehand, although this claim was not pressed in the current proceedings.
Evidence
The Respondent relied upon the T Documents, which became Exhibit R1, and a Statement of Issues, Facts and Contentions lodged on 9 September 2019. No oral evidence was led.
The Applicant relied upon the following Exhibits:
(d)A1: bundle of medical documents, lodged on 31 January 2019;
(e)A2: Speech Pathology Report (Assessment dated 19 September 2018);
(f)A3: Medical Evidence Report, dated 13 October 2019;
(g)A4: Darwin Community Legal Service Terms of Engagement and Authority, dated 20 September 2019;
(h)A5: bundle of documents commencing with a Palmerston Physiotherapy Clinic Document dated 2 July 2018 and including an ATAPS referral from Catholic Care NT and various Palmerston Medical Clinic documents;
(i)A6: My Aged Care Support Plan generated on 14 October 2019.
Ms Pollock gave brief oral evidence, although the Tribunal notes that the purpose of that evidence was to demonstrate the formal procedure of giving evidence to Mr Kim. This procedure was unfamiliar to the Applicant. As such, Ms Pollock’s demonstration of giving evidence was not of substance to the Applicant’s case.
Following from Ms Pollock’s demonstration, the Applicant was sworn and gave oral evidence.
The Applicant gave evidence about his mental health. The Applicant’s oral evidence seemed to indicate that he had a mental health condition, but this evidence was imprecise and at times seemed to cause him distress.
The Applicant also gave evidence regarding thyroid cancer, which he said that he received treatment at the “Newtown Cancer Hospital”. The Applicant gave evidence to the effect that his thyroid cancer caused him pain daily and had caused a change in his voice. Again, however, the Applicant’s evidence was imprecise.
Finally, the Applicant gave evidence about his back pain that had been caused by a car accident 45 years ago in the South Korean Army. The Applicant’s evidence was that his fifth lumbar vertebra (‘L5’) caused him pain and the occasional fall. The Applicant also used a walking stick.
Post-Traumatic Stress Disorder
The Tribunal assessed the Applicant to be a truthful, if imprecise, witness who at times occasionally seemed to suffer distress when giving evidence. Whether or not such distress was indicative of a mental health condition is unknown to the Tribunal and a point upon which the Tribunal respectfully declines to speculate.
It seems that a Post-Traumatic Stress Disorder was confirmed by a psychiatrist, as outlined general practitioner Dr Andrew Davies in a medical report on 19 January 2014.[5] Materially, the confirmation of this diagnosis of Post-Traumatic Stress Disorder is not before the Tribunal despite a full diagnosis having been previously accepted by the Respondent.[6] Indeed, there is a paucity of evidence before the Tribunal regarding the Applicant’s mental health.
[5] Exhibit R1: T10 p.160.
[6] Exhibit R1: T3 p.7.
The Tribunal is not prepared to make a finding of fact regarding a specific diagnosis of Post-Traumatic Stress Disorder, or any other mental health condition, in the absence of relevant objective medical or psychological evidence. No such relevant objective evidence is before the Tribunal, particularly regarding the condition of the Applicant as at the time of his claim on 20 September 2017 (or within 13 weeks of that date). Accordingly, the Tribunal is not satisfied that the Applicant has suffered a diagnosed intellectual or psychiatric impairment for the purposes of s.94(1)(a) of the Act.
Thyroid cancer
The Tribunal has difficulty with the Applicant’s oral evidence regarding his thyroid cancer. Of assistance, there are medical records before the Tribunal from Royal Prince Alfred Hospital in Sydney, which would seem to be the “Newtown Cancer Hospital” referred to by the Applicant.[7]
[7] Exhibit A2: p.1; Exhibit R1: T14 p.240-243.
On 8 August 2016, after thyroid surgery on 21 July 2016, Clinical Associate Professor Michael Elliot wrote:[8]
“Peter has recovered well from the surgery performed recently. At the time of his operation he had extensive lymphadenopathy with involvement of the left recurrent laryngeal nerve with carcinoma. The nerve had to be sacrificed.
The pathology has demonstrated extensive metastatic medullary thyroid carcinoma with an incidental finding of a small papillary thyroid carcinoma. The pathology was discussed at our head and neck meeting and we have decided that Peter should be considered for adjuvant radiotherapy. Peter is currently taking thyroxine the 100 µg daily, Rocaltrol and Caltrate.
On examination Peter has a hoarse voice. Nasal endoscopy demonstrates a left vocal cord palsy. The neck is healing fine.”
[8] Exhibit R1: T14 p.212.
Consistent with Professor Elliott’s post-surgery report, the medical report of general practitioner Dr Harsha Gunawardhana dated 20 September 2017, states: “The medullary carcinoma of the thyroid will not impact his daily function. However, he needs Thyroxine replacement and monitoring of calcitonin levels”.[9] The Applicant also had symptoms of “Stiffness in neck following radiotherapy”.[10] The dates of this radiotherapy are unclear to the Tribunal.
[9] Exhibit R1: T14 p.219.
[10] Exhibit R1: T14 p.221.
Dr Gunawardhana would seem to be continuing his care of the Applicant.[11] However, there is no further medical evidence of the associated pain to which the Applicant referred to in his oral evidence. There is insufficient evidence before the Tribunal for it to conclude that the pain referred to by the Applicant in his oral evidence is the same “stiffness” referred to by Dr Gunawardhana.
[11] Exhibit A1: Palmerston Medical Clinic GP Management Plan, dated 24 September 2018.
The Applicant’s oral evidence was noticeable for the hoarseness of his voice. This hoarseness was referred to by Professor Elliott, although no issue of pain is raised by Professor Elliott.
The Tribunal notes that the Speech Pathology Department at Royal Darwin Hospital assessed on 19 September 2018, “Peter’s dysphagia is longstanding and associated with his history of total thyroidectomy and external beam radiation for medullary thyroid cancer”.[12] However, again no issue of pain is raised.
[12] Exhibit A2: p.3.
On the evidence before it, the Tribunal is satisfied that the Applicant’s “metastatic medullary thyroid carcinoma” was fully diagnosed by Professor Elliot, who was an appropriately qualified medical practitioner, in the period of May to June 2016 (being before the date of claim on 20 September 2017).[13] Accordingly, paragraph 6(4)(a) of the Impairment Tables is met for the Applicant’s condition of thyroid cancer.
[13] Exhibit R1: T14 pp.208-211.
The Tribunal is satisfied that on 21 July 2016, Professor Elliott treated the Applicant with a “Total thyroidectomy, bilateral central compartment neck dissection and left 2-5 neck dissection”.[14] Professor Elliott treated the Applicant until 24 October 2016, when the Applicant moved to Thailand.[15] However, the Applicant returned to Australia and from 27 June 2017 Dr Gunawardhana has treated him.[16] Indeed, the Tribunal is satisfied that Dr Gunawardhana’s treatment has continued since that date until the present.[17]
[14] Exhibit R1: T14 p.212.
[15] Exhibit R1: T14 p.216.
[16] Exhibit R1: T14 p.219.
[17] Exhibit A3.
The Tribunal has before it oncology reports from the Alan Walker Cancer Centre. These reports are printed variously on Department of Health Royal Darwin Hospital letterhead and NT Oncology letterhead. On 31 July 2017 the Alan Walker Cancer Centre wrote that “He [the Applicant] has been referred to our clinic for ongoing survaillence (sic) and his disease remains stable”. On 24 August 2017, the Alan Walker Cancer Centre further wrote to Dr Gunawardhana:
“On review today he is well. He reports no new issues. He has no lymphadenopathy on examination and no new neck mass”.
These documents indicate that the Applicant’s thyroid cancer was fully treated as of the July and August 2017, which is somewhat inconsistent with the Applicant’s own oral evidence particularly regarding his pain. Given this inconsistency though the Tribunal prefers the objective medical before it. Accordingly, the Tribunal finds that the Applicant’s thyroid cancer was fully treated as at 24 August 2017 and that paragraph 6(4)(b) of the Impairment Tables is met for the Applicant’s condition of thyroid cancer.
The evidence before the Tribunal is that the Applicant undertook the reasonable treatment for his thyroid cancer as recommended by Professor Elliott and Dr Gunawardhana. This included surgery and radiotherapy, such that on 6 September 2017 the Applicant was “well”. Accordingly, the Tribunal is satisfied that the Applicant’s condition was fully stabilised by 6 September 2017 and paragraph 6(4)(c) of the Impairment Tables is met for the Applicant’s condition of thyroid cancer.
Accordingly, the Tribunal is satisfied that the Applicant has suffered a diagnosed physical impairment of thyroid cancer for the purposes of s.94(1)(a) of the Act.
The Tribunal turns to the issue of assigning an impairment rating for the Applicant’s thyroid cancer, under paragraph 11 of the Impairment Tables. The difficulty for the Applicant is that the same evidence upon which he was found to be “well”, and therefore “fully treated”, acts against the selection of an applicable table and assessment of impairments under paragraph 10. There is no medical evidence that the Applicant’s thyroid cancer has had a functional impact on him as at the date of claim on 20 September 2017 (or within 13 weeks of that date), indeed the medical evidence is to the contrary.[18] Accordingly, and for the purposes of paragraph 6(8) of the Impairment Tables, the Tribunal is satisfied that the Applicant’s diagnosed condition of thyroid cancer is not an impairment to which an impairment rating may be assigned.
[18] In making this finding the Tribunal has considered that Exhibit A2 is authored by a Speech Pathologist, rather than an “appropriately qualified medical practitioner”: para 6(5) of the Impairment Tables.
Chronic back pain
The Applicant gave oral evidence that his back, and particularly L5, caused him pain. This is consistent with the report of Dr Gunawardhana, which identifies lower back pain.[19] This is also consistent with the report of radiologist Dr Kit Lam,[20] and the general practitioner’s report of general practitioner Dr Xin Guang Shi,[21] that date back to 2009 and diagnose chronic back pain.
[19] Exhibit R1: T14 p.224.
[20] Exhibit R1: T14 p.185.
[21] Exhibit R1: T14 p.186.
In his report of 20 September 2017, Dr Gunawardhana describes the Applicant’s condition in the following terms:[22]
“Lower back pain causing poor sleep, need to frequently change postures, inability to bend down to reach things on the ground., painful with lifting walking and sleeping… Affects walking – shopping. Affects cleaning his premises. Affects his sleep. Lowers his mood making his daily life difficult.”
[22] Exhibit R1: T14 p.219.
Given the appropriate medical qualifications of Dr Lam, Dr Shi, and Dr Gunawardhana, the Tribunal is satisfied that chronic back pain has been fully diagnosed. Accordingly, paragraph 6(4)(a) of the Impairment Tables is met for the Applicant’s condition of chronic back pain.
The question arises whether the Applicant’s chronic back pain was fully treated as at the date of claim (or the following 13 weeks). Consistent with the Job Capacity Assessment,[23] and Authorised Review Officer,[24] the Tribunal is satisfied that the applicant’s chronic back pain has been fully treated. The Tribunal notes various ongoing attention to the applicant’s back by his general practitioner, neurologist, radiologist and physiotherapist after the date of claim.[25] Upon close reading of those documents, the Tribunal is satisfied that such professional attention is consistent with the Applicant having ongoing lower back pain since at least 2009. It does not necessarily indicate that the Applicant’s condition is not fully treated and stabilised. The Tribunal notes its disagreement with the conclusions contained in AAT1 in this regard. Accordingly, the Tribunal is satisfied that the Applicant’s chronic back pain was fully treated and that paragraph 6(4)(b) of the Impairment Tables is met for the Applicant’s condition of chronic back pain.
[23] Exhibit R1: T11 pp.169-170.
[24] Exhibit R1: T3 pp.6-7.
[25] Exhibit A1; A5.
On 16 March 2009, radiologist Dr Lam diagnosed the Applicant’s chronic back pain with the following findings: [26]
“There is mild lumbar scoliosis. There is mild loss of disc space at L2/3, L4/5 and L5/S1. There is grade 1 spondyliosthesis at L4/5.
Advanced degenerative changes noted at L4/5 and L5/S1 facet joints. The patient also appeared to have short pedicles at L5.
Moderate sized osteophytes are noted at the vertebral body margins.
The pedicles and transverse processes are normal.”
[26] Exhibit R1: T14 p.185.
On 11 September 2017, radiologist Dr Yousaf reported to Dr Gunawardhana the following findings regarding the Applicant’s chronic back pain:[27]
“There is anterolisthesis of L4 on 5 on the basis of bilateral advanced facet degeneration. There are no pars fractures. Alignment elsewhere is satisfactory. Vertebral body heights are reasonably preserved. There is no destructive bone lesion. End plate osteophytosis and remodelling seen at L4 anteriorly, as well as end plate changes to the posterior aspect of L5/S1. Multiple anterior osteophytes are present…”
[27] Exhibit A1: Letter from Dr Gunawardhana to Dr Redmond of 2 october 2018, including Dr Yousaf’s report.
The Tribunal places weight on these two unrelated radiologists’ reports, written over eight years apart, yet not substantially different. From these reports, the Tribunal is satisfied that the Applicant’s chronic back pain had fully stabilised as at the date of Dr Yousaf’s report on 11 September 2017. Accordingly, paragraph 6(4)(c) of the Impairment Tables is met for the Applicant’s condition of chronic back pain.
The Tribunal turns to consideration of the Impairment Table, Table 4 – Spinal Function. In his report of 20 September 2017, in response to how the Applicant’s chronic back pain impacted on the Applicant’s ability to function daily, Dr Gunawardhana wrote that it affected the Applicant’s:
(a)walking and stopping,
(b)the cleaning of his premises,
(c)his sleep,
(d)lowers his mood and makes his day and life difficult.[28]
[28] Exhibit R1: T14 p.224.
This evidence is consistent with the other evidence before the Tribunal and it is accepted. From the criteria contained in Table 4 – Spinal Function, the Tribunal is satisfied that there is a mild functional impact on activities involving spinal function. As such, the Tribunal is satisfied that the Applicant attracts an impairment rating of five points.
Conclusion
Section 94(1)(b) of the Act provides that a person is qualified for a DSP if their impairment is of 20 points or more under the Impairment Tables. This threshold has not been met. It follows that the applicant is not entitled to a DSP and the decision under review must be affirmed.

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

..........[sgnd].............................
Administrative Assistant Legal
Dated: 16 July 2020
Date of hearing:   4 December 2019
Applicant:  Ms Pollock
Respondent’s representative:            Mr C Visser

[2020] AATA 2311

16 July 2020

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