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

[2017] AATA 1275

Walker and Secretary, Department of Social Services (Social services second review) [2017] AATA 1275 (15 August 2017)

Division:GENERAL DIVISION

File Number:           2016/3650

Re:Robyn Walker

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Miss E A Shanahan, Member

Date:15 August 2017

Place:Melbourne

The Tribunal affirms the decision under review.

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

Miss E A Shanahan, Member

SOCIAL SECURITY – application for disability support pension – condition not fully diagnosed – no impairment rating attracted – difficulty in obtaining medical reports – decision affirmed.

Legislation

Social Security Act 1991
Social Security (Administration) Act 1999

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

Social Security (Active Participation for Disability Support Pension) Determination 2014

Cases

Re Bobero and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

REASONS FOR DECISION

Miss E A Shanahan, Member

15 August 2017

1. Ms Walker completed an application for the disability support pension (DSP) on 20 May 2015.  The application was received by Centrelink on 1 June 2015.  The application included a supporting medical report from Dr Adrianne Anderson, a general consultant physician.  Centrelink is the service provider for the Department of Social Services. Ms Walker had described her symptomatology as severe fatigue and episodes of near fainting, which she believed was associated with a low blood pressure.  This resulted in her being unable to walk for more than 20 metres, unable to drive a motor vehicle or do most of her normal tasks.

2. Ms Walker has three children and is no longer participating in the workforce.  The supporting medical reports made a diagnosis of probable postural orthostatic tachycardia syndrome (POTS) and anxiety.  Dr Anderson indicated that Ms Walker was awaiting further investigation to confirm or negate the diagnosis of POTS.  On 7 October 2015 a Centrelink officer rejected the claim.  This determination was affirmed by a Centrelink authorised review officer (ARO) on 11 December 2015. 

3. Ms Walker then made an application to the Social Services and Child Support Division of the Administrative Appeals Tribunal, (AAT Tier 1) and on 5 July 2016 the AAT Tier 1 affirmed the decision.  Ms Walker lodged a further application to the General Division of the Administrative Appeals Tribunal on 12 July 2016 for a review of the Tier 1 decision.

4. The application was heard on 16 June 2017. Ms Walker had been notified that she was to appear in person. However, there appears to have been a miscommunication and the hearing of her evidence was conducted by telephone. Ms Walker was self-represented and Mr Nam Nguyen of Sparke Helmore appeared on behalf of the Secretary. The Tribunal had been provided with the documentation pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T-documents).  Only Ms Walker gave evidence before the Tribunal and she was quite distressed throughout the hearing.

   BACKGROUND TO THE APPLICATION

5. Ms Walker has given a history of chronic fatigue, feeling of faintness and occasional near collapse, these symptoms having first been noted in about 2013.  She had apparently presented to Box Hill Hospital but the results of any investigations performed there were not provided to the Tribunal.  Dr Anderson, who first saw her in September 2013, had made a diagnosis of POTS and instituted treatment with fludrocortisone and increased oral fluids with some benefit.  However, this condition had caused Ms Walker a great deal of anxiety, which in turn affected her memory and her decision-making processes and her concentration.  Dr Anderson concluded that she had not responded well to treatment.  It was expected that the condition would continue to impact on her function for more than 24 months and that she was unlikely to improve.

6. Dr Anderson considered Ms Walker as not being capable of employment.  In order to confirm the diagnosis of POTS, Dr Anderson recommended that Ms Walker undergo what is called a tilt table test.  However, according to Ms Walker, Dr Anderson had informed her that this test was not necessary as she was certain that the diagnosis was POTS.  There was clearly a falling out between Ms Walker and Dr Anderson, with Ms Walker writing to the Austin Hospital, where Dr Anderson is a consultant physician, requesting full reports.  When these were not forthcoming, Ms Walker lodged a complaint with the Australian Health Professionals Regulatory Authority (AHPRA).  AHPRA had investigated her complaints but had done so on the assumption that Dr Anderson was a general practitioner and that the standard of her treatment was appropriate for a general practitioner. 

7. As a result of this complaint, it would appear that Ms Walker has had great difficulty in obtaining continuing medical treatment at both a general practitioner and a consultant level.  At the time of the hearing, she was looking for a new general practitioner.  Dr Anderson had referred Ms Walker to Dr O’Callaghan with respect to her POTS and she was apparently seen on one occasion.  Her then general practitioner, Dr Richard Bennett, endeavoured to obtain a report from Dr O’Callaghan but according to Dr Bennett’s report of 23 November 2015 he never received a response to his request. The Tribunal assumes that Dr O’Callaghan, he being a referred to as blood pressure and circulatory disorder physician, was asked to perform a tilt test.

8. Ms Walker has since consulted Dr Angus Hamer, a cardiologist at Epworth Hospital.  She underwent a tilt table test sometime in 2016, and was told that she had developed severe hypotension within 90 seconds of the commencement of the table tilting procedure.  No reports have been received from Dr Hamer. 

9. In mid-2016 Ms Walker was referred to Dr Scott Baker, an endocrinologist, but no letter of referral has been provided to the Tribunal.  The Tribunal considers this referral was probably made in relation to the fact that Ms Walker, who is now 41 years old, had not menstruated for some four years, a condition she had interpreted as being early menopause.  Dr Baker has investigated Ms Walker and an MRI of her brain performed at the Austin Hospital has revealed a benign tumour of the anterior lobe of the pituitary gland measuring 0.6mm in diameter.  Various blood tests have shown that she has very high prolactin levels.  

10. All of this information was provided by Ms Walker with no supporting confirmation from her treating specialist.  She has been commenced on the drug VisiNex, which is bromocriptine, and is expected to take that for the next three years.  She has found the cost of various medications prohibitive, as is the cost of seeing Dr Baker at $180.00 per visit.

11. Ms Walker had seen a psychologist regarding her anxiety but this seems to have lapsed.  She clearly remains very anxious.  She has shifted house so that she now lives very close to the school that her two youngest sons attend and thus she no longer needs to drive a vehicle as her presyncopal attacks make such an ordinary task dangerous.

12. Centrelink arranged for a job capacity assessment (JCA.). This was performed on 30 September 2015. The assessor concluded that there was no verified, permanent or fully diagnosed condition and therefore an impairment rating could not be recorded.  It was noted that while Ms Walker had seen a psychologist in 2014 the psychologist was not a clinical psychologist as required by the guidelines in order to satisfy the requirements of the Social Security Act 1991 (the Act).

13. Centrelink had referred Ms Walker to the Health Professional Advisory Unit for an opinion. This was provided on the 23 September 2015.  The health professional assessor made repeated attempts to contact Dr Anderson and Dr O’Callaghan without success.  Both doctors were said to be unavailable.  The assessor having reviewed all of the then available reports recommended further review when further medical evidence was made available.

14. The vast majority of the information about the more recent medical investigations and treatment was provided by Ms Walker. Regrettably, this was unsubstantiated as no medical reports had been received.  However her knowledge of the various investigations was such that the Tribunal does not doubt that the information is accurate. 

    RELEVANT LEGISLATION

15. Section 94 of the Act provides the criteria for eligibility for DSP and states:

    Subdivision A—Qualification

    94  Qualification for disability support pension

    (1)A person is qualified for disability support pension if:

    (a)the person has a physical, intellectual or psychiatric impairment; and

    (b)the person’s impairment is of 20 points or more under the Impairment Tables; and

    (c)one of the following applies:

    (i)     the person has a continuing inability to work;

    (ii)     the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and    ...

16. The s 94(3B) defines a severe impairment as follows:

    (3B)A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

    Example 1:A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.

    Example 2:A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment.

    Example 3:A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.

    and 94(3C) addresses the requirement of participation in a program of support stating:

    Active participation in a program of support

    (3C)A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.

    SUBMISSIONS

17. Neither party made formal submissions given the level of Ms Walker’s distress.

18. In the Respondent’s Statement of Facts and Contentions it was argued that Ms Walker’s POTS had not been fully diagnosed, treated and stabilised at the time of her application or in the  qualification period thereafter, that being from 1 June 2015 to 31 August 2015  (see Bobera).  Nor had the provisional diagnosis of anxiety been assessed in accordance with the requirements of the guidelines.  In addition, she had not received any treatment for the anxiety since at least 2014.  The  Respondent accepted Ms Walker’s condition of presyncope (that is a feeling she was about to  faint and feeling foggy with blurred vision), her continuing fatigue,  her need for assistance in activities of daily living, and her inability to drive because of her presyncopal symptoms. However, the Respondent submitted that the condition had not been fully diagnosed, treated and stabilised.

    TRIBUNAL DELIBERATIONS AND DECISION

19. The Tribunal finds that Ms Walker satisfies s 94(1)(a) of the Act, in that she has a medical condition characterised by fatigue, presyncope with dizziness and near loss of consciousness, resulting in  a diagnosis of probable POTS.  On the evidence Ms Walker has provided, she has more recently been diagnosed with a pituitary adenoma producing excessive amounts of prolactin resulting in amenorrhea.

20. While she has provided, in her oral evidence, the more recent testing and the use of medication to supress pituitary function, none of her evidence is supported by reports from treating or investigating doctors or any of the three specialists she has seen, Doctors O’Callaghan, Baker and Hamer.  Despite her efforts to obtain medical reports she has been unsuccessful as were the efforts of the Health Professional Advisory Unit.  Ms Walker has not made any enquiries or attempts to obtain such records under a Freedom of Information application as she has minimal computer skills, she is almost confined to her home and has had no legal advice. 

21. As a result, her conditions are not fully diagnosed, treated and stabilised and she does not satisfy s 94(1)(b) of the Act. Therefore, she does not qualify for the DSP either at the time of her application or within the qualifying period, 1 June 2015 to 31 August 2015.  Ms Walker’s anxiety state has not been assessed by a clinical psychologist or psychiatrist in accordance the guidelines and thus an impairment rating cannot be attracted for this condition.

22. At the AAT Tier 1 level, the Tribunal assessed Ms Walker as having a 10 point impairment rating under Table 15 of the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) for functions of consciousness and as having a 10 point impairment rating under Table 1 of the Impairment Tables for functions requiring physical exertion and stamina.  The latter was based on the history given by Ms Walker, as opposed to any medical report. 

23. The Tribunal notes that the Social Security Determination of 2011 (the Determination) relating to the Impairment Tables  provides at paragraph 8:

    1.That symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.

    This corroborating evidence that should be taken into account is the evidence provided by Health Professionals and any additional medical or work capacity information that may be available.  In Table 5, mental health function, the introduction states:

    Self-report of symptoms alone is insufficient.

24. While the decision at the AAT Tier 1 level refers to a report from Dr O’Callaghan, this Tribunal has not received any such report. According to Ms Walker Dr O’Callaghan had refused to provide a report.  In view of the lack of medical reports provided to this Tribunal and the requirements of the Determination and the Impairment Tables, this Tribunal finds that the conditions are not fully diagnosed, treated and stabilised.  Therefore, the conditions do not attract an impairment rating.

25. Ms Walker has been advised to lodge another application for the DSP and has also been advised that the Tribunal has the power to summons medical records if she is not able to obtain them.

26. The Tribunal affirms the decision under review. 

I certify that the preceding 26 (twenty‑six) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

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

Associate

Dated: 15 August 2017

Date of hearing:	16 June 2017
Applicant:	In person
Advocate for the Respondent:	Mr Nam Nguyen - Sparke Helmore Lawyers