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

[2019] AATA 5250

Tellesson and Secretary, Department of Social Services (Social services second review) [2019] AATA 5250 (9 December 2019)

Division:GENERAL DIVISION

File Number:          2018/4089

Re:Fiona Tellesson

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:R. CAMERON, SENIOR MEMBER AND DR. S. LEWINSKY, MEMBER

Date:9 December 2019

Place:Melbourne

The Tribunal affirms the decision under review.

[sgd]........................................................................

R. CAMERON, SENIOR MEMBER AND DR. S. LEWINSKY, MEMBER

Catchwords

SOCIAL SECURITY – disability support pension – chronic myeloid leukaemia – diabetes mellitus - obstructive sleep apnoea – obesity – whether qualified to receive disability support pension – whether conditions fully diagnosed, treated and stabilised – decision affirmed

Legislation

Social Security Act 1991

Cases

Gallacher v Secretary, Department of Social Services [2015] FCA 1123

Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252

Secondary Materials

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

R. CAMERON, SENIOR MEMBER AND DR. S. LEWINSKY, MEMBER

9 December 2019

INTRODUCTION

1. The Applicant seeks a review of a decision of the Social Services & Child Support Division of this Tribunal made on 13 June 2018 (“AAT1”). This decision affirmed a previous decision made by the Respondent to refuse her application for a disability support pension (“DSP”) lodged on 14 March 2017.

   ISSUE FOR CONSIDERATION BY THE TRIBUNAL

2. The issue to be decided by the Tribunal is whether the Applicant was qualified to receive the DSP at the time she filed her application on 14 March 2017 or within 13 weeks thereafter, being 13 June 2017 (“the qualification period”).

   REGULATORY REQUIREMENTS FOR DSP QUALIFICATION

3. In determining whether the Applicant was qualified to receive the DSP it is necessary for the Tribunal to determine whether she had:

   (a)A physical, intellectual or psychiatric impairment as defined in the Social Security Act 1991 (“the Act”);

   (b)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 Tables”); and

   (c)A continuing inability to work.[1]

   [1] Section 94 (1) of the Act. The contents of that section are referred to in its entirety but do not need to be reproduced for the purposes of these reasons.

4. These requirements are conjunctive and each one of them must be satisfied in order for the Applicant to qualify for the DSP.

5. The Tables contain descriptors which identify functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment. Section 6 of the Tables titled “Applying the Tables” provides the       decision-maker with the framework for their application and need not be reproduced. However, it requires that an impairment rating can only be assigned if the condition is permanent, and the impairment that results from that condition is more likely than not,      in the light of available evidence, to persist for more than two years (Section 6(3) of the Tables). A condition is permanent if it has been fully diagnosed, treated, stabilised and is more likely than not to persist for more than two years (Section 6 (4)).

6. As the notes to subsection (4) of the Tables state, subsections (5) and (6) define when a condition is fully diagnosed, treated and stabilised for the purposes of the definition of “permanent” as follows:

   Fully diagnosed and fully treated

   (5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6 (4) (a) and (b), the following is to be considered:

   (a) whether there is corroborating evidence of the condition; and

   (b) what treatment or rehabilitation has occurred in relation to the condition; and

   (c) whether treatment is continuing or is planned in the next 2 years.

   Fully stabilised

   (6)     For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is

   fully stabilised if:

   (a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

   (b) the person has not undertaken reasonable treatment for the condition and:

   (i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

   (ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.

   Note: For reasonable treatment see subsection 6(7).

   Reasonable treatment

   (7) For the purposes of subsection 6 (6), reasonable treatment is treatment that:

   (a) is available at a location reasonably accessible to the person; and

   (b) is at a reasonable cost; and

   (c) can reliably be expected to result in a substantial improvement in functional capacity; and

   (d) is regularly undertaken or performed; and

   (e) has a high success rate; and

   (f) carries a low risk to the person.

7. The Applicant’s entitlement to the DSP must be considered as at the date of her claim and during the qualification period, and any change in the her health after that 13 week period is irrelevant save insofar as it may cast light on the position at the relevant time.[2]

   [2] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404; (2007) 158 FCR 252 at [1] (Gyles J) (upheld on appeal in Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534) and Gallacher v Secretary, Department Of Social Services [2015] FCA 1123 at [25]-[29] (Besanko J).

   OTHER RELEVANT MATTERS

8. There were several reports in evidence before the Tribunal that were created by various treating doctors of the Applicant which came into existence outside the qualification period. Several reports addressed matters germane to the conditions after the qualification period. In particular, the Applicant tendered a report from her general practitioner Dr Shadab Falahtafti dated 21 January 2019 which had annexed several reports from treating specialists and diagnostic tests that had been undertaken after the qualification period. She also tendered two reports from a consultant haematologist         Dr Huy Tran of 28 March and 2 July 2019 concerning the chronic myeloid leukaemia (“CML”) condition and the side effects of its treatment with Dasatinib. The Applicant in several parts of her written submission to the Tribunal sought to assert that because such reports were outside the qualification period they could not be taken into consideration and were in effect out of context.[3]

   [3] See for instance paragraph 37 of her written submission.

9. The Tribunal cannot accept this contention for several reasons. Firstly, she herself tendered those reports annexed to a report from her general practitioner for the very purpose of attempting to demonstrate the conditions she suffered from, and that they had been fully diagnosed, treated and stabilised during the qualification period.           Secondly, when one reads the reports concerned, they are relevant and probative in determining whether the conditions concerned were fully diagnosed, treated and stabilised during the qualification period. Thirdly, she sought to expressly rely on some of the reports as evidence of her conditions and their diagnosis, treatment and stabilisation, during the qualification period.

10. In her claim for the DSP the Applicant identified two conditions, namely type 1 diabetes (insulin-dependent) and CML.[4]

    [4] The contents of the Applicant's "Claim for Disability Support Pension" are referred to and is document T 19 of the T documents.

11. An authorised review officer on 12 April 2018 affirmed a decision to reject the Applicant’s claim for the DSP.[5] In the findings of fact forming part of that decision three medical conditions were identified namely CML, type 1 diabetes and morbid obesity.

    [5] The decision of the authorised review officer is document T 35 of the T documents.

12. The decision of AAT1 described the Applicant’s conditions in terms of                  “Exertional Breathlessness”, “Psychological Disturbance” and “Other Condition”.

13. In the Applicant’s Statement of Facts, Issues and Contentions she identifies CML and   type 1 diabetes as her relevant medical conditions. She also, in the consideration of the CML, seeks to ascribe a rating under the Tables for fatigue and breathlessness attributable to treatment for that condition using a drug known as Dasatinib.

14. The Statement of Facts, Issues and Contentions lodged by the Respondent identifies the conditions of CML, ongoing side effects from TKI (tyrosine kinase inhibitor) therapy (from the drug Dasatinib), diabetes, obesity and obstructive sleep apnoea (“OSA”).

    THE APPLICANT’S CONDITIONS

    Chronic myeloid leukaemia (“CML”)

15. Unlike the contentions of the Respondent the Tribunal will address the condition of CML and the side-effects of the drug Dasatinib together in these reasons.

16. The Applicant at all times has contended that this condition was fully diagnosed, treated and stabilised. She also contends that the condition has caused a severe functional impact on her and should be assigned a rating of 20 points under Table 1. Amongst other reports, she relies upon Dr Tran of 2 July 2019, which was tendered in evidence.[6]

    [6] This report of Dr Tran was attachment "FT-16 to the Applicant's submission which was received in evidence. Paragraphs 12, 31 and 51 of her submission are referred to and have been considered by the Tribunal.

17. The Respondent accepts that the condition of CML suffered by the Applicant was fully diagnosed, treated and stabilised throughout the qualification period.[7]

    [7] This concession is made at paragraph 36 of the Respondent's Statement of Facts, Issues and Contentions.

18. The Respondent also accepts that the Applicant experienced a functional impact as a result of her Dasatinib therapy for the CML.[8] It contends that the appropriate impairment rating for this condition is five points under Table 1 of the Tables.[9]

    [8] This concession is made at paragraph 37 of the Respondent's Statement of Facts, Issues and Contentions.

    [9] This contention is made at paragraph 51 of the Respondent’s Statement of Facts, Issues and Contentions.

19. For the reasons below (wherein the Tribunal concluded the condition of CML and the associated side-effects of Dasatinib was not fully diagnosed, treated and stabilised during the qualification period) the Tribunal cannot accept the Respondent’s position that an impairment rating of five points under Table 1 can be assigned to this condition. It should also be noted that the Applicant at all times conducted her case fully arguing by reliance on both medical and lay evidence, that the condition had been fully diagnosed, treated and stabilised and should be assigned a rating of 20 under the Tables.

20. In the Centrelink Medical Certificate signed by Dr Falahtafti on 21 March 2017[10] the “primary condition” of CML was identified and described as “temporary”. Under the “prognosis” section of the medical certificate an estimate of how long the symptoms would affect the patient’s capacity to work or study was requested; Dr Falahtafti recorded it as “less than 3 months”. The symptoms were described as severe tiredness, shortness of breath and lethargy. In terms of past treatment it was stated that the Applicant was under oncologist care and had undergone chemotherapy. The certificate recorded that current and planned treatment included continuing medication under oncologist care.

    [10] Document T 20 of the T documents.

21. The Job Capacity Assessment Report (“JCAR”) of 29 May 2017 recorded that the condition is expected to require lifelong assessment and intervention. This conclusion is consistent with other material before the Tribunal.

22. Dr Tran, a consultant haematologist, in a report of 14 July 2016 (before the qualification period) observed that the Dasatinib therapy was causing side effects including peripheral oedema, non-specific bone pain, intermittent nausea and breathlessness with exercise. The Tribunal with respect to, and in contrast to, AAT1 considers that this opinion, although attractive in view of the timing, could not be reached until all appropriate medical tests had been conducted which enabled all other potential causes of the symptoms, including a cardiac or respiratory cause of fatigue and shortness of breath, to be fully excluded.

23. Indeed, the Applicant’s later treating haematologist, Professor Timothy Hughes, requested her general practitioner to refer her for further assessment of symptoms to rule out any underlying cause, mainly cardiorespiratory diseases. This observation was made in a report prepared by the Applicant’s general practitioner dated 21 January 2019.[11]                It should also be recorded that such observation was made by her general practitioner in response to a specific question which asked whether there were any further investigations, specialist referrals or treatments yet to be undertaken for any condition as at 14 March 2017. The general practitioner was also requested to advise whether such treatments were expected to result in any change to the severity or frequency of the Applicant’s symptoms within two years of that date and if so to what extent.[12] These steps are consistent with the observations of the Tribunal in the previous paragraph that Dr Tran could not have reached the opinion he did concerning the side-effects of Dasatinib on the Applicant until all appropriate medical tests had been conducted, which enabled all other potential causes of her symptoms to be excluded.

    [11] Exhibit “A-2”.

    [12] The report from the Applicant's general practitioner is exhibit "A-2". The specific question is numbered 6 and found on page 2 of that report.

24. The Applicant was referred to Professor Hughes in 2018. The referral to him observed that she was experiencing, as he put it, problems associated with Dasatinib.               These problems included a marked shortness of breath on moderate exertion amongst other things.[13] He reduced the Applicant’s dose of Dasatinib from 100mg to 70mg. In his report of 6 August 2018 he recorded that there was little improvement in the Applicant’s symptoms and that indeed shortness of breath was then more prominent. Professor Hughes expressed concern in that letter about the Applicant’s more prominent shortness of breath. He also records in that letter that a recent cardiac echo showed no evidence of pulmonary arterial hypertension, but did show evidence of left ventricular hypertrophy consistent with the Applicant’s ongoing hypertension. He recommended that it would be worthwhile to have the Applicant formally reviewed by a respiratory physician given concerns about pulmonary toxicity related to the administration of Dasatinib. The Tribunal considers this included assessment for possible cardiac and respiratory diseases as a source of the symptoms. He also observed clinically that there was no evidence of pleural effusion or other significant findings.

    [13] A report from Professor Hughes of 24 April 2018 formed part of the exhibit "A-2".

25. It appears that after these observations from Professor Hughes the Applicant was referred to a physician (in thoracic and sleep medicine) Dr Gary Braun. A report from Dr Braun dated 4 September 2018 was in evidence. It appears abundantly clear to the Tribunal on the material, that this was the first occasion the Applicant’s treatment regime sought to substantially address or perhaps come to terms with, her symptoms of lethargy and shortness of breath. The contents of the report from Dr Braun are not referred to in their entirety. However, it is worth noting he observed there was some left ventricular hypertrophy present (and that diastolic dysfunction may contribute to symptoms) but no systolic dysfunction or evidence of pulmonary hypertension. He also stated there were no features to suggest pulmonary embolism, she was not particularly anxious and not deconditioned. He observed that she performed a 30 minute circuit in the gym six days a week. This was strenuously denied by the Applicant in the course of the hearing.[14] Critically, Dr Braun arranged for the Applicant to proceed to lung function testing including a histamine challenge test. He also referred her for a stress echocardiogram in order to exclude ischemic heart disease or exercise induced pulmonary hypertension. If none of those tests yielded a diagnosis he recommended that she proceed to a cardiopulmonary exercise test.

    [14] Paragraph 51 of her submission is referred to. She said that Dr Tran’s observations in his report of 2 December 2016 (document T 15 of the T documents) that she had some symptoms of mild shortness of breath were incorrect. She also contended that he had apologised to her for the “error” in the report. She said she was extremely breathless on visits to his rooms. Her evidence also was to a similar effect she described it as “exhausting.” This contention on the part of the Applicant is also inconsistent with the contents of the report of Dr Braun where he observed that the Applicant performs a 30 minutes circuit in the gym six days a week. It should be noted that Dr Braun is a respiratory physician. There was no similar complaint made by the Applicant about his report in the way that there was concerning Dr Tran.

26. A cardio-pulmonary test exercise echocardiogram was performed on 26 September 2018 by Dr Manuja Premaratne.[15] The reason for the test was stated in the report to be “dyspneand tightness in chest. On Dasatinib for CML. Prior CTPA. Exclude Ischemia and assess for pulmonary hypertension.” The conclusion of these tests were to record that, although a below normal level of exertion was achieved, overall she was normal. It also records that a CT coronary angiogram had been arranged with the Applicant’s consent for further assessment for coronary artery disease. No pulmonary hypertension was detected. The Tribunal observes that these tests that were being undertaken, quite properly, to investigate all possible causes of the Applicant’s symptoms to determine if there were any other reasons for them beyond the side-effects of Dasatinib.

    [15] A copy of a report from Dr Premaratne forms part of exhibit "A-2".

27. Subsequently, on 11 September 2018 she was administered a lung function and histamine challenge tests. These cardiorespiratory assessments produced normal results leading to a conclusion that her symptoms were purely due to the side-effects of Dasatinib. It was only at the conclusion of these tests that a cardiac cause of fatigue and shortness of breath was able to be fully excluded as a cause of her symptoms. Later that month, the Applicant had a CT angiogram (as directed by Dr Premaratne).

28. Given these facts, the Tribunal has to consider whether the Applicant’s condition of CML and the associated side-effects of Dasatinib had been fully diagnosed, treated and stabilised within the qualification period. Under the relevant provisions of the Tables the Tribunal is required to consider what treatment or rehabilitation had occurred in relation to the condition and whether treatment was continuing planned in the next two years.           In terms of whether her condition was fully diagnosed and treated within the meaning of subsection 6(5) of the Tables, given that a cardiac cause of fatigue and shortness of breath was only finally excluded as a cause of her symptoms after the series of tests were conducted in September 2018 following the recommendations of Dr Braun it must be concluded that such condition was not fully diagnosed and treated during the qualification period.

1. By reason of the foregoing, the Tribunal is not required to, and does not assign an impairment rating under the Tables for this condition.

   Diabetes mellitus

2. This condition was apparently diagnosed in approximately October 2014.[16]

   [16] The medical letter of referral to Dr Jonathan Cohen from the Applicant's treating general practitioner Dr Falahtafti, document T 4 of the T documents and the Job Capacity Assessment Report, document T 22 of the T documents are referred to.

3. Dr Falahtafti completed a Medical Certificate on 21 March 2017 which was lodged with the Respondent in support of the Applicant’s claim for the DSP. The diabetes condition was described in that medical certificate as “brittle diabetes type 1”. It was described as a “temporary” condition. Dr Falahtafti recorded in the Medical Certificate under the heading “prognosis” that the symptoms would affect the patient’s capacity to work or study for less than three months. Underneath that entry in the medical certificate Dr Falahtafti has also noted that brittle diabetes is due to leukaemia and chemotherapy. The past, current and planned treatments were also identified. The indication from that medical certificate is that the condition was currently unstable due to the effects of the chemotherapy treatment for the chronic myeloid leukaemia suffered by her.

4. Given these observations made by the Applicant’s treating general practitioner                 Dr Falahtafti in that Medical Certificate of 21 March 2017 the Tribunal cannot, relying upon that material, conclude that this condition was fully diagnosed, treated and stabilised as required by the relevant sections of the Tables.

5. Dr Falahtafti referred the applicant to a consultant endocrinologist Dr Santhl Chalasani who prepared a report about the Applicant’s condition on 29 May 2017 which was in evidence before the Tribunal.[17] Dr Chalasani’s correspondence speaks for itself. However, several things emerge from it. Firstly, her medication was changed. Secondly, emphasis was placed on dietary and lifestyle interventions, in view of what was described as the Applicant’s morbid obesity. It was also opined that she would in the future need lipid-lowering therapy. Additionally, it was suggested that the Applicant should consider having a bone marrow density scan performed. Finally, Dr Chalasani suggested that the applicant continue to have ongoing endocrinology follow-up. This conclusion is not indicative of the condition being fully treated and stabilised.

   [17] Document T 23 of the T documents.

6. A JCAR of 29 May 2017[18] concluded that the condition was fully diagnosed,                   but concluded it was not fully treated and stabilised. The JCAR was prepared by a registered occupational therapist.

   [18] Document T 22 of the T documents.

7. The Applicant consulted another endocrinologist Dr Elanor Thong who prepared a report outside of the qualification period on 16 August 2017. Dr Thong’s report recorded that the Applicant suffered from multiple endocrine diseases including LADA (latent auto-immune diabetes of adulthood)/type 1 diabetes as well as Conn’s syndrome with a left adrenalectomy. Dr Thong also recorded the other conditions from which she suffered including chronic myeloid leukaemia. Dr Thong noted issues with the applicant’s           self-monitoring of her blood sugar levels. Dr Thong recommended that the Applicant increase her dose of medication to achieve an improved blood sugar level of under 10mmol/L. It was also arranged for the Applicant to have a follow-up appointment with     Dr Thong two months later. Once again, this conclusion is not indicative of the diabetes condition being fully treated and stabilised.

8. Dr Naranie Shanmuganathan, a chronic myeloid leukaemia fellow, prepared a report dated 5 November 2018. That report notes that the Applicant had been further reviewed by an endocrinologist who had commenced her on Byetta for diabetes on 1 October 2018. It was observed that a side effect of this medication on the Applicant was worsening nausea. Whilst 1 October 2018 is well outside the qualification period the change in medication yet again is indicative that the Applicant’s diabetes condition has not been fully treated and stabilised, and could not have been so during the qualification period.

9. Dr Falahtafti prepared a further report on 21 January 2019 specifically for use in the Applicant’s claim for the DSP.[19] The content of the report speaks for itself, but pays little, or no attention to the issue of the Applicant’s diabetes condition, although the author was asked to describe the diagnosis and date of onset of each of the Applicant’s conditions. Certainly, there was no reference in that report to any functional impairment on the part of the Applicant caused by her diabetes during the qualification period. That being so, even if the diabetes condition was found to be fully diagnosed, treated and stabilised within the meaning of the Tables, there is no sufficient evidence to enable the Tribunal to assign an impairment rating to such a condition.

   [19] The further report of Dr Falahtafti dated 21 January 2019 forms part of exhibit "A-2".

10. Additionally, a further complicating factor in the treatment of the Applicant’s diabetes condition appears to be the by-product or side effects of other treatment that the Applicant has undergone as a result of the treatment for her CML.

11. For these reasons the Tribunal is unable to conclude that the condition of diabetes suffered by the Applicant was during the qualification period fully diagnosed, treated and stabilised as required by the relevant sections of the Tables.

    Other conditions

12. OSA was raised in the report of Dr Braun and briefly alluded to in terms of poor sleep by Dr Tran in his report of 28 March 2019.

13. Whilst it was raised by the Applicant in her submissions to the Tribunal it was acknowledged by her to have been identified outside the qualification period.     Additionally, the Tribunal notes that there is simply no or insufficient evidence to enable this condition to be considered fully diagnosed, treated and stabilised during the qualification period.

14. During the course of the hearing other conditions considered were depression and cognitive function.[20] The Applicant to her credit conceded that they were not conditions that were to be considered as part of her claim for the DSP. Accordingly, the Tribunal will not take them into account for the purposes of assessing their eligibility for the DSP.

    [20] The Tribunal considers that this description also includes the condition identified in the reasons of AAT1 of “Psychological Disturbance”.

15. Another condition that was referred to by the Applicant was her weight (or as it was referred to in some of the material obesity). It was not really pursued by the Applicant or the Respondent during the course of the hearing to any great extent. The Applicant conceded that since qualification period her weight had decreased by 22 kg but that during such period it was around approximately 117 to 118 kg.

16. The Respondent contended that there is simply insignificant evidence for the Tribunal to be able to make a finding that her weight issues had been fully treated and stabilised during the qualification period. The Tribunal accepts this submission on the part of the Respondent as the medical reports including those of her long-term treating general practitioner simply do not address the matter.

    CONTINUING INABILITY TO WORK

17. As noted earlier in these reasons the requirements of section 94 of the Act are cumulative. If as in the case here the Tribunal finds that the conditions relied upon by the Applicant have not been fully diagnosed, treated and stabilised and therefore, an impairment rating of 20 points or more has not been assigned, the Tribunal does not need to consider whether or not the Applicant has a continuing inability to work for the purposes of sections 94(1)(c)(i) and 94(2) of the Act.

    DECISION

18. By reason of the foregoing matters the reviewable decision is affirmed.

I certify that the preceding 46 (forty -six) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member and Dr S. Lewinsky, Member

[sgd]........................................................................

Associate

Dated: 9 December 2019

Date of hearing:	26 August 2019
Applicant:	In person
Advocate for the Respondent:	Tim Noonan
Solicitors for the Respondent:	Department of Human Services