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

[2018] AATA 4636

Turner and Secretary, Department of Social Services (Social services second review) [2018] AATA 4636 (17 December 2018)

Division:GENERAL DIVISION

File Number(s):      2017/4193

Re:Warren Turner

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:17 December 2018

Place:Sydney

The Tribunal affirms the reviewable decision made by the Social Services and Child Support Division of this Tribunal on 22 May 2017.

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

Mrs J C Kelly, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – relevant impairment tables - whether applicant has physical, intellectual or psychiatric impairment – applicant suffers from post surgical left adrenocortical oncocytic tumour, anxiety, depression, mood swings, right shoulder, left thumb and left hand fractures, right knee damage, spinal fractures, degenerative spondylosis and mild scoliosis, recurrent migraine – whether applicant has impairment rating of 20 points or more – decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth) ss 94(1), (2)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) Table 1, 2, 3, 5, 7

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

17 December 2018

The reviewable decision

1. Mr Turner seeks the review of a decision rejecting his application for Disability Support Pension (DSP). The reviewable decision was made by the Social Services and Child Support Division of this Tribunal on 22 May 2017. It affirmed a decision made by an authorised review officer on 1 December 2016 which found that the decision made on 20 October 2016 to reject Mr Turner’s application for DSP (the primary decision) was correct.

2. Mr Turner applied for DSP on 14 July 2016. The only medical evidence he provided in support of his application was the report of Laraine Skiller, Registered Psychologist, dated 14 July 2016. A Job Capacity Assessment (JCA) was undertaken on 18 August 2016 by assessing Mr Turner’s file. Mr Turner had previously applied for DSP on 9 June 2015. Dr Aitken of the Orange Aboriginal Medical Service completed the Medical Report for that application. He had been treating Mr Turner since 28 July 2014 and Mr Turner had been a patient of the practice since 2006. A face to face JCA had been undertaken on 3 August 2015.

   Issues to be decided

3. The Tribunal has to decide whether Mr Turner qualified for DSP on the day he lodged his claim for DSP, 14 July 2016, or within 13 weeks of that date, that is, the period ending 13 October 2016 (the qualifying period). That is now more than two years ago. Evidence that has come into existence since the qualifying period is relevant to the extent that it casts light on whether Mr Turner qualified for DSP within the qualifying period.

4. Section 94 of the Social Security Act 1991 (Cth) specifies the criteria that have to be met within the qualifying period to qualify for DSP. They are that Mr Turner had:

   ·A physical, intellectual or psychiatric impairment; and

   ·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 (Cth) (the Impairment Tables); and

   ·A continuing inability to work (as defined in subsection 94(2) of the Act).

   Does Mr Turner have a physical, intellectual or psychiatric impairment?

5. The Secretary accepts that Mr Turner has an impairment and therefore satisfies this criterion.

   Does Mr Turner have an impairment rating at least 20 points under the Impairment Tables?

6. Mr Turner was born in June 1976. The earliest evidence before the Tribunal is a Centrelink Medical Assessment Report dated 6 January 1999.

   Post-surgical left adrenocortical oncocytic tumour (the tumour) and anxiety, depression and mood swings

7. At the Tribunal hearing, Mr Turner said that his main concern was that the wrong Impairment Table had been used to assess the tumour. Table 1 - Functions requiring Physical Exertion and Stamina had been used. He argued that Table 7 – Brain Function, was the appropriate table. He provided several printouts of information from the internet about the adrenal gland, adrenocortical hormone, neuroendocrinology, the endocrine organs and system, with parts highlighted to support his position that the tumour had caused his violent behaviour and “many breakdowns” over 20 years. He also attributed his anxiety and depression to the tumour.

8. Mr Turner argued that Dr Sywak, the endocrine surgeon who excised the tumour on 2 November 2015, had expressed the opinion that the tumour had been present for 10 years. The evidence supporting that view is a reference in the Discharge Referral from Royal North Shore Hospital dated 6 November 2015 to a 10 year history of the tumour. The note is under the heading “Background”:

   Mr Turner was diagnosed with a left sided adrenal incidentaloma after hospitalisation for alleged assault in January 2015. The adrenal mass was thought to be pheochromocytoma due to  reported lengthy (sic) history (>10 years) of palpitations, lightheadedness, diaphoresis, headaches, aggression and left intermittent flank pain.

9. Four reports from Associate Professor Clifton-Bligh, Staff Specialist in Endocrinology at Royal North Shore Hospital were in evidence. They were dated 10 December 2015, 24 March 2016, 10 August 2017 and 30 January 2018. The reports state that was 8 cm in size was removed on 2 November 2015 and was of uncertain malignant potential. They show that Associate Professor Clifton-Bligh he had reviewed Mr Turner regularly to ensure that there had been no malignant relapse.

10. In the 2015 report, Associate Professor Clifton-Bligh wrote:

    … Pathology of the tumour indicated that it was not as we suspected a phaeochromocytoma but instead an adrenocortical oncocytic tumour of uncertain malignant potential.

    It is possible that the presence of this tumour affected his behaviour over the past 12 months or more. Adrenal tumours may produce a variety of hormones … any of which can cause heightened aggression and mood instability. In addition the present of such a large tumour itself particularly with areas of necrosis (“dying” areas of tumour) can cause local pain which in itself may have affected his behaviour.

11. That evidence does not support a finding that the tumour affected Mr Turner’s behaviour for more than ten years before it was removed.

12. Associate Professor Clifton-Bligh set out recommendations for regular CT scans and blood tests and clinical review to ensure that any malignant relapse was detected early and treated appropriately.

13. His 2017 and 2018 reports were written in support of Mr Turner’s application for DSP. In his 2018 report, Associate Professor Clifton-Bligh set out a summary history of the tumour and wrote:

    (Mr Turner’s) noradrenaline levels were elevated preoperatively and returned to normal postoperatively. It is possible that a tumour of this size affected his anxiety, depression and uncontrollable mood swings. … I confirm that in relation to the effects of his adrenal tumour on his anxiety and depression, his adrenal condition is currently regarded as fully treated, diagnosed and stabilised.

    I last saw him on 10^th August 2017. At that time he was still clearly struggling with anxiety, depression and uncontrollable mood swings. Specifically, he is unable to remember routines, regular tasks and instructions: he is easily distracted from any task: he is unable to prioritise and make complex decisions and frequently displays poor judgement resulting in negative outcomes for both himself and others; and he is often (more than weekly) unable to control his behaviour even in routine day to day situations and may become verbally abusive. I therefore regard that he has a moderate functional impact resulting from a cognitive condition.

    With his current symptoms, he would be completely unable to work in any employment.

14. The specific difficulties Associate Professor Clifton-Bligh listed addressed the criteria in Table 7 - Brain Function relating to moderate functional impact resulting from a neurological or cognitive condition.

15. In his 2017 report, Associate Professor Clifton-Bligh stated that in his opinion

    (Mr Turner) needs ongoing psychological support. With his current symptoms, he would be completely unable to work in any employment. His capacity to work could be reassessed by his General Practitioner and Psychologist but again in my opinion it will take at least two years for any kind of mood stability even with appropriate treatment.

    He is now nearly two years after his initial surgery and there has been no appreciable change in his mental wellbeing.

16. Dr Chris Minogue MBBS BA DPH FAFOEM (RACP) Grad Dip Sp Med, Medical Adviser from the Health Professional Advisory Unit (HPAU) of the then Department of Human Services prepared two reports Report dated 2 February 2018 and 5 February 2018.

17. Dr Minogue contacted Dr Clifton-Bligh at the request of the Secretary’s legal representative to clarify whether the tumour, albeit excised, resulted in functional impairment that related to neurological or cognitive function and, if so, what rating should be assigned under Table 7.

18. On 5 February 2018, Associate Professor Clifton-Bligh told Dr Minogue the following:

    ·He had been asked to comment on Table 7 descriptors by a legal representative acting for Mr Turner.

    ·He emphasised that he is not a neurologist, psychiatrist or psychologist and had asked Mr Turner to see a psychologist several times. Mr Turner has difficulty accessing psychological care.

    ·He considers that the severity of the ongoing anxiety/depression would preclude any kind of work.

    ·This condition relates partly to the underlying endocrine condition.

    ·Outside his usual specialist role and because of what he considers to have been disjointed patient management, he is happy to arrange ongoing care for Mr Turner from a clinical psychologist and endeavour to ensure that it occurs.

    ·He does not consider that Mr Turner’s psychological disturbance fulfils the criteria for an organic brain syndrome.

    ·He agrees that it is possible that Mr Turner suffers from an underlying mental health disorder, to which the endocrine condition definitely contributed via hormonal disturbance before the tumour was excised.

    ·He considers that the need for ongoing endocrinologist review in itself contributes to Mr Turner’s anxiety and depression, as even though the chance of malignant recurrence is low, it would be a lethal development if it did.

19. The Tribunal agrees with Dr Minogue’s opinion that Dr Clifton-Bligh’s advice supports the view that Mr Turner’s anxiety, depression and mood swings, are more appropriately assessed under Table 5 – Mental Health Function, than under Table 7, and that a clinical psychologist’s assessment is required before a rating can be applied under Table 5, during the qualification period or at some later period. Further, the Tribunal agrees that if any question remains as to a differential diagnosis of an organic brain syndrome, a neurologist’s assessment would be required. There is no evidence of such an assessment before the Tribunal.

20. The Tribunal’s finding that Table 5 is appropriate is reinforced by Mr Turner’s evidence. He said that he is a psychological minefield and that stops him going to see psychologists and psychiatrists. He described the hardships he faced in his life until he left home aged 15. He said that he saw psychologists when he was “a kid”, he knows that he is alright in his own head, and that psychologists “love all that stuff”.

21. The earliest evidence of Mr Turner’s suffering mental health issues is the February 1999 Centrelink Medical Assessment which lists as Condition 1, “severe depression agoraphobia” and records that Mr Turner had seen a psychiatrist and had counselling “in past”. At that time, Mr Turner was 22 years old, and taking Zoloft under the care of a general practitioner.

22. In a Treating Doctor’s report dated 9 May 2007, when Mr Turner was 31 years old, “chronic alcoholism” since at least 2005 was listed as Condition 1. Condition 2 was “depression – chronic and likely associated Alcohol dependence”. A summary of his mental health history was set out from 1999. The doctor recorded “very dysfunctional/grief laden childhood” and provided details. The doctor recorded that Mr Turner was declining antidepressants/counselling/detox and rehabilitation, and had a poor compliance history of taking Zoloft 100 mg/day from 1999 – 2004 and then intermittent usage of Cipramil. The doctor commented:

    Tends to present with acute medical condition and not follow up with counselling.

23. In the Employment Services Assessment Report dated 15 November 2011, the assessor reported Alcohol Dependence with onset “10 years ago” and that Mr Turner had been seeing a drug and alcohol counsellor for approximately one year. The assessor also recorded Depression with onset at 19 years of age. In November 2011, Mr Turner was 35 years old. The Tribunal notes that the discharge letter from his admission for the removal of tumour in November 2015 reports that he had ceased excessive drinking “8 years ago”, which is not consistent with the 2011 report. In any event, it was not a condition that Mr Turner claimed was relevant in this case.

24. In the June 2015 Medical Report, Dr Aiken listed “Anxiety disorder. Associated depression” as condition 7 in his list. He wrote that it “May be secondary to phaechromocytoma. Moderate disability ongoing.” The Job Capacity assessor spoke to Dr Aitken on 5 August 2015 who said that Mr Turner was being supported to manage his mental health through the team at the Aboriginal Medical Centre, and that while he would like to refer Mr Turner to a psychiatrist or psychologist for further assessment, his priority was managing Mr Turner’s physical injuries and medical problems, which at that time included the tumour.

25. Laraine Skiller, Registered Psychologist, provided a report dated 14 July 2016. Mr Turner had been referred to her by his general practitioner for management of an anxiety disorder. She reported:

    He had surgery for removal of an adrenal tumor in November 2015. The impact of this tumor has been reported for over 20 years and symptoms are still present. He completed a DASS-21 on 14 July 2016 and scored in the extremely severe range for anxiety and moderate range for depression. He reports frequent incidents of anxiety and panic where he is unable to calm and needs to either leave a situation or is notable to leave his home. In essence, he often is unable to manage situations as he fears an anxiety response or uncontrollable aggression. Mr Turner is willing to work on some strategies to try to build his capacity but has been advised by his specialist that this may take a long time to achieve, given the impact of his illness and history.

26. Ms Skiller was clearly reporting what Mr Turner had told her about the symptoms of the tumour being reported for 20 years, which is not supported by the medical evidence as set out earlier in this decision. There is no suggestion in the evidence that Mr Turner had any further consultations with Ms Skiller.

27. It is not apparent that Dr Clifton-Bligh was aware of Mr Turner’s lengthy mental health history. Unfortunately, despite Dr Clifton-Bligh’s intentions on 5 February 2018 to ensure that Mr Turner came under the care of a clinical psychologist, there was no evidence that that had occurred four months’ later in June 2018 when the hearing was held.

28. The Tribunal accepts that Mr Turner believes that his anxiety, depression and mood swings are physiological and not psychological, and that he resists seeing psychologists/psychiatrists. However, the evidence does not support his belief.

29. Table 5.1 requires that the diagnosis of a mental health condition must be made by an appropriately qualified medical practitioner, which includes a psychiatrist or a clinical psychologist. Even if the Tribunal accepted that the past evidence establishes that Mr Turner’s mental health condition of anxiety, depression and mood swings has been diagnosed, the evidence is very clear that it has not been fully treated and stabilised and therefore cannot be assigned a rating under the Impairment Tables. The consistent evidence is that Mr Turner does not persevere with psychological treatment.

30. In relation to the excision of the tumour, as distinct from the claimed impacts of anxiety, depression and mood swings, the Tribunal finds that condition has been fully diagnosed, treated and stabilised and a rating of 0 is appropriate under Table 1 – Functions requiring Physical Exertion and Stamina. A letter signed by surgical registrar, Dr Kam, and Endocrine Surgeon Dr Sywak dated 24 March 2016 reported that Mr Turner had recovered well from surgery, had suffered from only one anxiety attack since surgery “though this appears to have decreased in frequency since the operation’, and was being left for follow-up with Dr Clifton-Bligh. Dr Clifton-Bligh’s reports support that finding. The Tribunal has taken into account Mr Turner’s comments that Dr Kam was a registrar who could not handle Mr Turner but that does not affect its finding.

    Right Shoulder, Right thumb, and left hand fractures

31. Mr Turner’s right shoulder, right thumb and wrist and left hand fractures have to be considered together because they result in an impairment of upper limb function to which Table 2 of the Impairment Tables applies.

32. Mr Turner told the Tribunal that his right shoulder has become more arthritic, that it hurt while he was sitting, that he had no strength in it, that he takes Tramadol, and the weather affects it. The Tribunal has to determine Mr Turner’s impairment during the qualification period in July to October 2016.

33. The first medical evidence of a right shoulder condition is a Centrelink Medical Certificate dated 29 March 2011 which records “Chronic Acromioclavicular instability R shoulder, date of onset 8 January 2011”. The symptoms are “pain R shoulder”. There were similar medical certificates dated 23 August 2011 and 24 October 2011. The Employment Services Assessment Report dated 15 November 2011 reported that past treatment included “surgery (right acromioclavicular joint ligament repair)”. The 14 January 2015 Employment Services Assessment Report records that the shoulder surgery occurred on 4 July 2011.

34. In the June 2015 Medical report, Dr Aitken listed the right clavicular fracture repairs as the condition having most impact on Mr Turner. He reported 3 surgeries, and listed current symptoms as ongoing right shoulder pain, weakness plus limitation of range, which he detailed, and right acromio-clavicular joint pain, instability and clicking frequently. In relation to impact on ability to function, Dr Aitken reported reduced ability to extend shoulder, reduced lifting capacity to 20 kilogram with arm extended, five kilograms to shoulder level and unable to lift above shoulder level. Dr Aitken’s opinion was that the impact would persist for more than 24 months and would remain unchanged in the next two years.

35. The Tribunal accepts that the right shoulder condition has been fully diagnosed, treated and stabilised.

36. Mr Turner told the Tribunal that he crushed his right thumb when he was 16 years old, it has been wired three times, his palm feels bruised, and sometimes he cannot open doors or turn on taps. He said that his left thumb was pretty much the same as the right and had also been rebuilt, as had his index finger.

37. The Employment Services Assessment Report dated 15 November 2011 reported “fractures and crush injuries”, onset 9 November 2011, with past treatment being right hand surgery on 14 November 2011.

38. In the June 2015 report, Dr Aitken reported surgical repair to right thumb fracture January 2015. An undated Centrelink Medical Certificate from Dr Aitken records a Right scaphoid fracture with surgical fixation on 3 January 2015, three weeks after the fracture occurred in early December 2014. The scaphoid is a bone in the wrist.

1. The discharge referral for the 31 January 2015 admission shows that Mr Turner suffered a left hand fracture which required wiring of the left thumb and repairs in relation to his index finger. In June 2015, Dr Aiken stated recovery continuing – residual weakness, joint stiffness and reduced sensation in left index finger.

2. The Job Capacity Assessor spoke with Dr Aiken on 5 August 2015. Dr Aiken indicated that Mr Turner would have permanent restriction and joint damage.

3. The Tribunal finds that the injuries to the right and left hands have been fully diagnosed, treated and stabilised.

4. Table 2 – Upper Limb Function is relevant for determining the rating to be attributed to Mr Turner’s right shoulder and hand impairments. Mr Turner gave evidence before AAT1 seven months after the end of the qualifying period. Unfortunately, because Mr Turner was focussed on establishing that his anxiety, depression and mood swings were caused by the tumour and not psychological issues, no corroborating evidence of his physical injuries was provided after Mr Aitken’s report of June 2015 and his comments to the Job Capacity Assessor in August 2015.

5. The Tribunal prefers the 2016 JCA’s assessment to Dr Minogue’s assessment. The Tribunal notes that a contributing assessor, an occupational therapist, was consulted in the 2016 JCA. Therefore, the Tribunal accepts that Mr Turner satisfies five of the six criteria in Table 2 for moderate functional impact on activities using hands or arms. Accordingly, a rating of 10 points under Table 2 is appropriate.

   Right knee damage

6. Mr Turner told the Tribunal at the hearing that he can only walk two blocks before his right knee hurts. He rides a skate board on level ground or downhill for 20 metres, and cannot use his right leg to propel himself.

7. The Employment Services Assessment Report dated 15 November 2011 recorded “Lower Limb Deficiencies”, with onset “several years ago” and past treatment was “right knee surgery”.

8. In the June 2015 Medical Report, Dr Aitken reported an injury in 1996 with medial collateral ligament tear and surgical reconstruction. Dr Aitken reported the following symptoms: medial right knee pain, walking limited by pain to two kilometres, reduced strength in knee, painful on uneven ground with sense of instability, prolonged sitting aggravates pain on arising.

9. The Tribunal finds that the right knee condition has been fully diagnosed, treated and stabilised. The appropriate table is Table 3 – Lower Limb Function. The Tribunal accepts that Mr Turner has some difficulty climbing stairs, as he told the 2015 Job Capacity Assessor. However, the evidence does not satisfy either of the alternative criteria in part 2 of the criteria for mild impairment which is rated 5 points. That is, the person is unable to stand for more than 10 minutes or can mobilise effectively but needs to use a lower limb prosthesis or a walking stick. Consequently, this impairment must be assessed as 0 points under Table 3.

   Spinal fractures, degenerative spondylosis and mild scoliosis

10. Mr Turner told the Tribunal the following. His spine is constantly painful. He has pinched nerves in his neck, and gets pain in the back of his eyes, in his whole head and into the neck. Sometimes he cannot sleep. He has problems standing up or standing.

11. The Employment Services Assessment Report dated 15 November 2011 recorded “Spinal Disorder”, onset unknown, with reported symptoms “intermittent pain in cervical and lumbar spine”.

12. In the June 2015 Medical Report, Dr Aitken reported an injury at the age of five, ongoing lumbar pain, mild scoliosis, chronic pain reduces walking capacity and reduces prolonging sitting/driving capacity. He referred to a CT of the lumbar spine dated January 2015 which showed degenerative spondylosis in thoracolumbar spine and a recent right L2 transverse process fracture arising from an assault in January 2015. He told the 2015 Job Capacity Assessor that Mr Turner had consulted with an orthopaedic specialist in the past and in Dr Aitken’s opinion, given the nature of the condition, further orthopaedic consultation was not recommended.

13. Mr Turner told the 2015 Job Capacity Assessor that he suffered intermittent back pain which was aggravated by physical activity, prolonged sitting, standing and walking.

14. The Tribunal finds that this condition has been fully diagnosed, treated and stabilised.

15. The Tribunal accepts that a rating of five points is appropriate. That is consistent with the 2016 JCA and Dr Minogue’s opinion. The Tribunal does not consider it appropriate to rely on Mr Turner’s uncorroborated evidence to AAT1 about seven months after the qualifying period.

    Recurrent Migraine

16. Mr Turner linked his migraine to his spinal condition. He said that he had suffered migraine since he was 12 years old, had seen a chiropractor and had acupuncture, takes no medications, but that Tramadol helps.[1]

    [1] Tramadol is an opiate (narcotic) analgesic; >

    In the Medical Report of 4 June 2015, Dr Aitken wrote that Mr Turner has had the condition of migraine from the age of 11 years and the current treatment was analgesia as needed. Dr Aitken ticked the box indicating that the diagnosis was not supported by further specialist opinion. The doctor reported that Mr Turner suffered migraine disabling for one to two days, occurring twice monthly, for years. He attributed the condition to past spinal injury as a child, secondary scoliosis during teen years. He stated that Mr Turner was disabled from any activity when he has severe migraine.

17. In his report dated 2 February 2018, Dr Minogue considered Dr Aitken’s report. Dr Minogue expressed the opinion that:

    In the absence of evidence of specialist assessment/advice to date, any impairment rating is unlikely to be valid as significant improvement can reasonably be anticipated with the benefit of such advice.

18. He then proceeded to consider the description Dr Aitken had given and stated that depending on the descriptor in Table 7 that was considered, the condition might be assessed as 5 or 10 points under Table 7 but that following specialist advice, either rating could be reducible to nil points.

19. The 2016 JCA found that this condition was permanent but not fully diagnosed, treated and stabilised because there had been no specialist review.

20. The Tribunal finds that the condition has been diagnosed, but it has not been fully treated and stabilised. A rating under the impairment tables cannot be given.

    Conclusion

21. Mr Turner’s impairment rating is 15 points. Therefore, he has been unsuccessful in these proceedings. The Tribunal affirms the reviewable decision made by the Social Services and Child Support Division of this Tribunal on 22 May 2017.

61.      

62.     I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member.

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

Associate

Dated: 17 December 2018

Date(s) of hearing:	22 June 2018
Applicant:	Self-Represented
Solicitors for the Respondent:	J Eslick, Department of Human Services