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

[2016] AATA 762

Tisdell and Secretary, Department of Social Services (Social services second review) [2016] AATA 762 (30 September 2016)

Division	GENERAL DIVISION
File Number(s)	2015/3650
Re	Mark Tisdell
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A Poljak
Date	30 September 2016
Place	Sydney

The tribunal affirms the decision under review.

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

Senior Member A Poljak

CATCHWORDS

SOCIAL SECURITY – disability support pension – depression – post traumatic stress disorder – whether conditions were fully treated and stabilised – whether reasonable treatment was undertaken – meaning of reasonable treatment – ability to maintain therapeutic relationships – conditions not fully treated – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth), s 94

Social Security (Administration) Act 1999 (Cth), s 42 and Sch 2

SECONDARY MATERIALS

Social Security (Tables for the Assessment of work-related Impairment and Disability Support Pension) Determination 2011, ss 3 and 6

REASONS FOR DECISION

Senior Member A Poljak

30 September 2016

INTRODUCTION

1. Mr Tisdell seeks review of a decision made by the Social Security and Child Support Division of this Administrative Appeals Tribunal (“SSCSD”) on 24 June 2015. The SSCSD affirmed a decision made by the Department of Social Services (“the Department”) refusing Mr Tisdell’s claim for the disability support pension (“DSP”) which was made on 2 September 2014.

2. Mr Tisdell’s claim for DSP was rejected on the basis that he did not satisfy the eligibility criteria set out on section 94 of the Social Security Act 1991 (Cth) (“the Act”). Section 94 of the Act provides that to qualify for payment, a person must have a physical, intellectual or psychiatric impairment, or impairments, which rate 20 or more points according to the Social Security (Tables for the Assessment of Work-related Impairment and Disability Support Pension) Determination 2011 (“the Impairment Tables”); and a continuing inability to work as defined in the Act.

3. For Mr Tisdell to qualify for DSP, he had to satisfy these criteria on 2 September 2014, when he applied for the DSP, or within the following 13 weeks, that is, by 2 December 2014 pursuant to s 42 and Schedule 2 of the Social Security (Administration) Act 1999 (Cth) (“the relevant period”).

4. The Secretary contends that the medical evidence does not support a finding that Mr Tisdell was qualified for DSP during the relevant period.

5. Mr Tisdell claims to suffer from a number of mental health conditions. The Secretary accepts that Mr Tisdell suffered from post-traumatic stress disorder (PTSD) and depression during the relevant period. He therefore satisfies section 94(1)(a) of the Act.

6. The issue for determination in these proceedings is whether PTSD, borderline personality disorder and depression were fully diagnosed, treated and stabilised during the relevant period, and if so, what rating may be assigned for functional impairment in accordance with the Impairment Tables.

   IMPAIRMENT TABLES

7. The Impairment Tables include rules for assigning ratings to determine the level of functional impact of impairment. Impairment is defined in section 3 to mean “a loss of functional capacity affecting a person’s ability to work that result from a person’s condition”. 

8. Subsections 6(3) and 6(4) provide that impairment can only be given a rating on the Impairment Tables if the condition is considered permanent. A condition is permanent if it has being fully diagnosed by an appropriately qualified medical practitioner; it has been fully treated; fully stabilised; and it will more likely than not, persist for more than two years. 

9. In assessing whether a condition is fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, subsection 6(5) instructs that a decision- maker must consider whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years.

10. For the purposes of the Impairment Tables, subsection 6(6) defines fully stabilised to mean :

    (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.

11. Reasonable treatment is defined in subsection 6(7) as treatment that:

    (a)is available at a location reasonably assessable 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.

12. Section 11 of the Impairment Tables instructs that an impairment rating can only be assigned in accordance with the ratings in each table and a rating cannot be assigned between consecutive impairment ratings. Significantly, section 11(1)(c) provides:

    (c)if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied (emphasis added)

13. For multiple conditions causing a common functional impairment, subsection 10(5) and 10(6) of the Impairment Tables provides :

    (5) Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.

    (6) …it is appropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.

14. Table 5 of the Impairment Tables is to be used when a person has a permanent mental health condition resulting in functional impairment. Self-reporting of symptoms alone is insufficient and there must be corroborating evidence of the person’s impairment.

15. The Introduction to Table 5 of the Impairment Tables provides (inter alia):

    The diagnosis of a condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist). (emphasis added)

16. Functional impairment under Table 5 can be rated on a scale from no functional impact to extreme functional impact. The factors to take into account are the person’s level of difficulty with (most of) self-care and independent living; social/recreational activities and travel; interpersonal relationships; concentration and task completion; behaviour, planning and decision-making; and work/training capacity. It is important to reiterate that the Impairment Tables are designed to assess the level of functional impact of impairment and not to assess conditions and the severity of symptoms.

17. Since Mr Tisdell’s conditions are all mental health conditions, Table 5 is the appropriate table to apply when assessing functional impairment.

    PTSD AND DEPRESSION

18. I am satisfied, that Mr Tisdell’s long-standing psychiatric conditions of PTSD and depression were fully diagnosed during the relevant period. This is supported by Dr Sukumaran and corroborated by the medical evidence of Dr Collins, a clinical and forensic psychologist and Ms Schmutter, a registered psychologist.

19. Dr Collins opines in her report dated 15 October 2015, that “diagnostically, Mr Tisdell meets the criteria for borderline personality disorder, PTSD, and recurrent major depression”. She states at paragraph 32 of her report that “the depressive condition probably dates back to adolescence and Mr Tisdell has intermittently suffered from depression since that time, but significantly since the loss of his daughter six years ago. The PTSD condition dates back to March 2012.”

20. The key issue before me in these proceedings is whether the conditions were fully treated and stabilised. When addressing this issue there are a number of questions which I need to consider. These are contained in subsection 6 (6) of the Impairment Tables. The first question is whether Mr Tisdell has undertaken reasonable treatment. As stated earlier reasonable treatment is defined in subsection 6 (7).

21. Counsel for Mr Tisdell contends that he has been on medication in the past with little effect, has had psychotherapy and cognitive behavioural strategies (“CBT”) and it is irrelevant that there may have been some treatment available that the applicant has not tried.

22. In the report dated 14 May 2012, Ms Sullivan, psychologist, suggested anger management and CBT to reduce Mr Tisdell’s PTSD symptoms and anger reactions. When questioned about this at hearing, Mr Tisdell stated that he couldn’t recall ever having the treatment suggested.

23. In April 2012, Mr Tisdell was prescribed Sertraline (Zoloft). Mr Tisdell said at hearing that he took the medication for approximately 4 to 5 months but it made no difference. He said that he decided himself that it wasn’t working and ceased the medication even though Dr Sukumaran wanted him to continue on the medication and had suggested that the dosage be increased. Mr Tisdell stated that Dr Sukumaran had explained to him that the treatment could take up to 3 to 6 months before it had any effect and that he needed to give the medication time to work.

24. Dr Sukumaran’s report dated 2 September 2014, records that Mr Tisdell was undergoing psychotherapy and CBT. The report also notes that Mr Tisdell was referred to a psychiatrist, Dr Naaz. At hearing Mr Tisdell advised that he saw Dr Naaz maybe once but for approximately 20 minutes because he was annoyed with her attitude. He said he cannot recall seeing anyone else. Dr Sukumaran, in his report, recorded psychotherapy as current treatment for Mr Tisdell’s clinical depression. At hearing Mr Tisdell stated that he had “not taken up” the psychotherapy.

25. Mr Tisdell saw Dr Sukumaran for a “short period of time” during 2013/2014. At hearing he stated that it was probably for less than six months. He advised that he ceased seeing Dr Sukumaran due to a “cultural barrier” and that Dr Sukumaran did not fully understand him. Mr Tisdell did not wish to elaborate on this at hearing other than to say that he was uncomfortable opening up to Dr Sukumaran and didn’t talk to him about his true feelings.

26. In a fax sent 1 November 2015, Dr Sukumaran writes that Mr Tisdell “underwent psychology treatment for PTSD and clinical depression. In the past he was on antidepressant medication. For his depression and residue PTSD CBT strategies we used and the response were good. The level of motivation to the treatment were good.”  Based on this evidence it is plain that Mr Tisdell appears to have responded well to treatment but ceased to see Dr Sukumaran, not because the treatment was ineffective, but because of his own personal views about his relationship with the treatment provider. Mr Tisdell was plainly responding well to the CBT strategies employed by Dr Sukumaran and this is a strong indication that completion of the treatment may have likely resulted in functional improvement.

27. Dr Sukumaran was unable to provide any further details about the nature, extent, frequency or duration of treatment. He unfortunately passed away in early 2016.

28. Dr Collins in her report dated 15 October 2015, noted that treatment had occurred in relation to Mr Tisdell’s PTSD and depressive conditions. She considers that the combination of counselling and medication undertaken was, in her view, representative of reasonable attempted treatment. In her addendum report dated 20 November 2015, she opines that Mr Tisdell has undertaken some treatment which applied to his (newly diagnosed) condition of borderline personality disorder as well as the conditions of PTSD and depression. She states at paragraph [2] of her addendum report, that:

    trauma focused CBT as it is often referred to, involves a range of strategies which include exposure therapy (confronting the trigger of the anxiety), arousal reduction (reducing strong experiences of emotions), cognitive restructuring (challenging distorted thoughts and belief systems), and cognitive processing (focusing on some basic themes with trauma such as trust, safety, intimacy and self-image).

29. Dr Collins confirmed her evidence at hearing stating that trauma focused CBT was the most appropriate treatment, and that 8 to 12 sessions should be sufficient to tackle the traumatic experience suffered by Mr Tisdell. In regards to cost, it was her understanding that Medicare covered up to 10 sessions per calendar year. She stated in regards to PTSD the use of medication wouldn’t work on the elements and she wouldn’t recommend medication alone as treatment for PTSD. However, since Mr Tisdell suffered from both depression and PTSD, Dr Collins confirmed at hearing that medication plus CBT was a good combination for treating both disorders. She said that they were disentangled disorders and could not easily be separated. They coexist. She opined that the combination of PTSD and depression with Mr Tisdell’s personality significantly worsened any prognosis for improvement.

30. Based on this evidence, I am satisfied that trauma based CBT combined with prescription medication is reasonable treatment for Mr Tisdell’s diagnosed PTSD and depression. It is not unique treatment, and one can assume that it is reasonably accessible to Mr Tisdell through an appropriately qualified psychologist. His general practitioner has prescribed medication in the past for his depression and there is no evidence before me as to why he cannot continue to do so as part of a treatment plan in combination with CBT.

31. Dr Collins is of the view that when one considers the combination of CBT and psychopharmacology attempted in this case, Mr Tisdell has undertaken reasonable treatment. However, she did concede at hearing that Mr Tisdell’s use of prescribed medications should have been reviewed. Given the lack of evidence from Dr Sukumaran in regards to the extent, frequency and duration of treatment he provided to Mr Tisdell, I do not accept Dr Collins’ evidence that Mr Tisdell completed an appropriate course of CBT.

32. In the Job Capacity Assessment Report (“JCA”) for the assessment undertaken on 15 December 2015, Ms Schmutter, registered psychologist, recorded that Mr Tisdell’s PTSD and clinical depression was fully diagnosed during the relevant period. In regards to treatment she records that:

    the client reported trialling medication through his general practitioner several years ago; that is, Zoloft and Xanax on and off for approximately one year, with limited benefit. Client reported that he ceased medications years ago and did not recommence during the period of consideration.

33. It is also noted that the client denied undergoing any psychiatric review/intervention to date.

34. Mr Tisdell advised Ms Schmutter that he was prescribed Cymbalta in 2015 by his general practitioner Dr Rombola. He advised that he had been taking medication for the last five months, with limited benefit. Mr Tisdell said that Dr Rombola had recommended changing his medication or increasing dosage but he had declined. This trial of medication falls outside of the relevant period.

35. Mr Tisdell confirmed at hearing that he had been a regular cannabis user from 13 years of age. He said that at present he was a daily cannabis user and had no intention of quitting. He said that he sees cannabis as medicating because it helped with his anger.

36. At hearing, Dr Collins said in relation to Mr Tisdell’s cannabis use, that it most likely had a sedating effect and helped with his anger but she stated that she would obviously not recommend it, as she was unsure of the effect it would have with prescription medication.

37. Ms Schmutter’s opinion was that the use of cannabis can affect the balance of prescription drugs and may reduce their effectiveness. She agreed with Dr Collins in that cannabis has a sedating effect and reduces irritability in some people, reduces intrusive thoughts and decreases hyperarousal generally.

38. As already stated I am satisfied that trauma based CBT in combination with prescription medication is reasonable treatment for Mr Tisdell’s PTSD and depression. I have accepted Dr Collins’ evidence that the mental health disorders suffered by Mr Tisdell coexist. It follows that for me to be satisfied that Mr Tisdell’s conditions are fully treated and stabilised, he must have undertaken CBT in combination with medication as prescribed. Undertaking one treatment but not another, is in my view, insufficient. Mr Tisdell has failed to complete or follow-up on any treatment commenced and instead has been self-medicating with cannabis. His evidence is that he ceased medication prescribed to him on his own volition.

39. I note that Dr Collins opined at hearing that any therapeutic relationship Mr Tisdell had would be difficult to maintain. This may have been the case with Dr Sukumaran but I am unable to have clarity around the circumstances which resulted in the demise of their therapeutic relationship, from Dr Sukumaran’s professional perspective. It is plain that Mr Tisdell has a good relationship with Dr Collins, although she states that the relationship would likely deteriorate. This is however hypothetical. It follows; that I am not satisfied that Mr Tisdell is unable to maintain any therapeutic relationships in the future.

40. Subsection 6 (6) of the Impairment Tables provide that a condition is fully stabilised if the person has undertaken reasonable treatment. The Macquarie Dictionary defines undertaken as, inter alia, committing oneself to, taking on, and promising to do a particular thing. I am of the view that to undertake something, there is a level of commitment to see it through. In this matter, Mr Tisdell may have commenced forms of treatment, but he has not followed them through and been reviewed in order to assess any benefits or affect received as a result of the treatment. He has refused to follow doctors recommendations and suggested strategies on a number of occasions, most significantly he has failed to trial different doses of prescription medication, has refused or failed to undergo any psychiatric review/intervention and has persisted with his cannabis use over recommended treatment. There is no evidence before me that Mr Tisdell has resumed or undertaken trauma based CBT to completion. As already stated, Dr Collins confirmed at hearing that 8 to 12 sessions of trauma based CBT were required.

41. For the reasons already given, I am not satisfied that Mr Tisdell’s PTSD and depression were fully treated and stabilised during the relevant period.

    BORDERLINE PERSONALITY DISORDER

42. Dr Collins states in her reports dated 15 October 2015 and 20 November 2015 that Mr Tisdell was suffering from borderline personality disorder. This is the first time the condition has been diagnosed and is outside of the relevant period. The diagnosis however, is retrospective to 2 September 2014. I am therefore satisfied that the condition of borderline personality disorder was fully diagnosed during the relevant period.

43. Borderline personality disorder is a distinct condition from PTSD however there is overlap between the two disorders.

44. In the report dated 15 October 2015, Dr Collins opines that Mr Tisdell’s personality disorder is permanent and has been present since childhood/adolescence. She also notes that the borderline personality disorder has not been specifically treated. She notes in her addendum report dated 20 November 2015, that Dr Sukumaran recorded “psychotherapy” had been undertaken however, she noted that it was unclear whether the treatment was relevant to borderline personality disorder.

1. Dr Collins advised in her report and at hearing that the most evidence-based treatment for the condition was dialectical behavioural therapy (“DBT”). The treatment involved emotional regulation strategies, mindfulness, distress tolerance, interpersonal effectiveness, acceptance, and problem solving amongst other things.

2. There is much evidence before me that DBT is not an easily accessible form of treatment. Dr Collins and Ms Schmutter both stated at hearing that DBT was not easy to obtain as a public patient and the waiting list was between 9 to 10 months long. Dr Collins also said that the treatment involved two three hour group sessions a week. She was not sure Mr Tisdell would be able to cope with the treatment. I have no reason not to accept this evidence and am therefore satisfied that DBT is not reasonable treatment having regard to its accessibility and cost.

3. Dr Collins however notes in her addendum report dated 20 November 2015, that DBT goes a little beyond the CBT treatment received for PTSD. She states there is evidence of treatment efficacy with CBT for borderline personality disorder. Based on this evidence I am satisfied that CBT is reasonable treatment for borderline personality disorder. As already stated above, Mr Tisdell had commenced trauma based CBT with Dr Sukumaran, however I am not satisfied that he completed 8 to 12 sessions of the treatment as recommended by Dr Collins. Accordingly I am not satisfied that he has undertaken reasonable treatment.

4. For these reasons, I am not satisfied that borderline personality disorder was fully treated and stabilised during the relevant period.

   CONCLUSION

5. Since Mr Tisdell’s conditions are not considered permanent under the Act, it is therefore not necessary for me to determine an impairment rating under the Impairment Tables nor is it necessary to consider whether he had a continuing inability to work during the relevant period. It follows that his claim for DSP cannot succeed.

6. I affirm the decision under review.  Mr Tisdell may apply for DSP again at any time. 

I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak.

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

Dated  30 September 2016

Date(s) of hearing	25 July, 5 August and 14 September 2016
Counsel for the Applicant	Ms K Sant
Solicitors for the Applicant	Mr A Langley, Legal Aid New South Wales
Solicitors for the Respondent	Dr S Thompson, Department of Human Services