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

[2023] AATA 2560

Chen and Secretary, Department of Social Services (Social services second review) [2023] AATA 2560 (15 August 2023)

Division:GENERAL DIVISION

File Number:          2022/9427

Re:Da Yi Chen

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member A. Nikolic AM CSC

Date:15 August 2023

Place:Melbourne

The Tribunal affirms the reviewable decision.

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

Senior Member A. Nikolic AM CSC

CATCHWORDS

SOCIAL SECURITY – refusal of disability support pension – whether applicant's medical conditions were fully diagnosed, treated, and stabilised – whether impairments rated 20 points or more under the Impairment Tables – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth) Sch 2 Cl 4

CASES
Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1
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

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

REASONS FOR DECISION

Senior Member A Nikolic AM CSC

xx August 2023

INTRODUCTION

1. On 24 February 2022, the Applicant lodged a claim for Disability Support Pension (“2022 DSP claim”), in which he referred to several physical and psychological conditions. The claim was rejected by Centrelink and, on 14 June 2022, this decision was affirmed by an Authorised Review Officer. On 6 September 2022, the Applicant’s appeal to the Social Services and Child Support Division of this Tribunal (“AAT1”) was unsuccessful. On 30 September 2022, he lodged a further appeal with the General Division of this Tribunal.

2. The hearing was conducted on 2 August 2023 by telephone. The Applicant was self-represented and gave evidence under affirmation. The Respondent was represented by Ms Peta Heffernan, a solicitor from Services Australia. For the following reasons, the Tribunal affirms the decision under review.         

   BACKGROUND

3. The Applicant is 64 years old. He has made two prior unsuccessful DSP applications in February 2015 and March 2018. His 2022 DSP claim relates to injuries he sustained in a car accident in 2013 and purported side effects from receiving a second dose of the COVID-19 vaccine in late 2021.[1]

   [1] Exhibit R1, 387.

   Legislative Framework

4. Qualifying requirements for DSP are set out at s 94(1) of the Social Security Act 1991 (Cth) (“the Act”).  It must be established that:

   (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;

5. In relation to s 94(1)(c)(i) of the Act, a person has a ‘continuing inability to work’ if:

   (i) they have an inability to work due to their accepted impairments for 15 hours or more a week; and

   (ii) they have actively participated in a Program of Support (“POS”).

6. Under s 94(3B) of the Act, participation in a POS is not required if the person has a severe impairment of 20 points or more under a single impairment table. Where a person’s impairment is not a severe impairment, they must have actively participated in a POS within the meaning of s 94(3C) of the Act. The term ‘actively participated’ means satisfying the requirements in a legislative instrument made by the Minister, titled Social Security (Active Participation for Disability Support Pension) Determination 2014. Under ss 5 and 7 of that instrument, active participation means partaking in a POS, which is wholly or partly funded by the Commonwealth, for a period of at least 18 months during the 36 months prior to the date of claim.

7. The Impairment Tables referred to in s 94 of the Act are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination). They assign ratings reflecting the level of functional impact a condition has on an applicant. Only medical conditions that are permanent, have been fully diagnosed, treated, and stabilised, and are likely to persist for at least two years, can be allocated points under the Impairment Tables.

   EVIDENCE

8. The Tribunal took into evidence:

   (a)Documents lodged by the Respondent numbering 479 pages;[2]

   (b)Applicant’s 11-page bundle of documents consisting of: a one-page letter dated 22 July 2023; hospital records relating to a hospital presentation to Monash Medical Centre on 1 July 2023; a photocopy of a pain relief prescription dated 14 July 2023; clinical notes and imaging results from general practitioner Dr Josephine Ong dated 31 October 2022; a medical certificate from Dr Ong dated 30 May 2023; and a one-page medical letter dated 16 March 2023 from general practitioner Dr Thomas Ngai.

   [2] Exhibit R1.

   Key Issues

9. The Tribunal must decide:

   (a)The relevant period for the Applicant’s claim;

   (b)Whether the Applicant had a physical, intellectual, or psychiatric impairment(s) as defined under the Act during the relevant period;

   (c)If yes, were these capable of being assigned 20 points or more under the Impairment Tables during the relevant period;

   (d)If the Applicant’s impairments are of 20 points or more under the Impairment Tables, are 20 points assigned under a single Impairment Table (severe impairment); and

   (e)If the Applicant did not have a severe impairment during the relevant period, but his impairments nevertheless attract a rating of 20 points or more, does he have a continuing inability to work or has he participated in a POS.

   WHAT IS THE RELEVANT PERIOD FOR THE APPLICANT’S CLAIM?

10. The Applicant’s DSP application was lodged on 24 February 2022. In accordance with clause 4(1) of Schedule 2 of the Social Security (Administration) Act 1999 (Cth), he had to satisfy the DSP criteria within a 13-week period from the date of claim lodgement, which ended on 26 May 2022 (“the relevant period”).

11. During the hearing the Applicant referred to conditions beyond those referred to in his DSP application. In assessing whether he satisfies the requirements at s 94 of the Act, however, evidence regarding functional impact after the relevant period can only be considered if it casts light on functional impact during the relevant period.[3]

    DID THE APPLICANT HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT DURING THE RELEVANT PERIOD?

    [3] Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1, [27]-[28], citing Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252,253 [1]

12. It is not contested the Applicant suffered from several conditions during the relevant period, in satisfaction of s 94(1)(a) of the Act.

    WERE THE APPLICANT’S IMPAIRMENTS CAPABLE OF BEING ASSIGNED 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES DURING THE RELEVANT PERIOD?

13. When submitting his DSP application, the Applicant stated the following in response to the invitation to list disabilities or medical conditions that significantly affected his ability to work:

    * Physical - lose independent capacity. Personal [sic] is unable to control free stand and walk. There is severe pain in whole leg. Needs walk frame or wheelchair to support/help to have safety and secure movement

    * Psychiatric - Disappoint [sic] personal life style

    * Mental - Angry my vaccination [sic].

    * Significant effect and destroy my whole life

14. During oral evidence, the Applicant said two events caused his physical and psychiatric conditions: a traffic accident in 2013 for which he received lump sum compensation and other payments; and the second of two COVID-19 vaccinations in September 2021, which caused symptoms to his left lower limb. He referred to pain control as his ‘biggest problem’. The Applicant’s oral evidence is summarised as follows:

    (a)The Applicant said his injuries are permanent, render him unable to work, and the medical evidence he has provided amply support his claim. He referred to a recent prescription for ‘very strong painkillers’ after a hospital presentation for sciatica in July 2023,[4] as reinforcing the seriousness of his conditions.

    [4] Exhibit A1.

    (b)The Applicant agreed he had not consulted specialists for several of his conditions. He attributed this variously to restrictions arising during COVID-19 lockdowns, the unwillingness of the Traffic Accident Commission (“TAC”) and Federal Government to fund these consultations, and an inability / unwillingness to fund these himself because he had ‘done nothing wrong’. The Applicant said the onus should be on the Respondent to show he has recovered from his conditions and fund any specialist enquiries relating to his case. He said ‘the Government’ should address the adverse medical consequences of COVID-19 side effects because he was encouraged by Government policy to receive this vaccination.

    (c)The Applicant said he received an initial Pfizer vaccination on 29 August 2021 but makes no claim about side effects on that occasion. Three days after his second Pfizer vaccination on 28 September 2021, however, he claimed that his left ankle and foot became swollen and painful. He also referred to ‘heart enlargement’ as attributable to this second vaccination. The Applicant said his adherence to COVID-19 vaccination recommendations resulted in untreatable conditions that required him to take ‘painkillers for life’. The Applicant said he wrote to the Minister for Government Services last year about this matter, and his correspondence was referred to Medicare, but was yet to be answered. He is unwilling to personally fund any further investigation with a cardiologist or other specialists because his ‘case is special’ and his ‘medical evidence is enough’.

    (d)During cross-examination, Ms Heffernan took the Applicant through several of the conditions he claimed. This is summarised as follows:

    (i)Back condition.  The Applicant said his back problems originated from a traffic accident in 2013. He attended rehabilitation for a few months in late 2019 and participated in some hydrotherapy. When asked about available reports regarding his back, the Applicant responded: ‘You can contact the TAC’. When asked about a 2017 consultation with neurosurgeon and spinal surgeon Dr Aliashkevich, during which he was referred to a pain clinic, the Applicant claimed he attended a pain clinic but could not recall when or who he saw. He said that because of COVID-19 lockdowns he was unable to attend since. When raised with the Applicant that COVID-19 implications did not become apparent in Australia until approximately March 2020, he claimed that the TAC failed to respond to his general practitioner’s requests to fund specialist consultations.

    (ii)The Applicant said he received lump sum compensation from the TAC after the traffic accident and his medications and travel expenses have since been covered ‘for a lifetime’. He is dissatisfied that his Centrelink income support payments are reduced because of compensation received and that specialist visits and treatment for vaccine-related side-effects are not covered.

    (iii)Shoulder condition. The Applicant was asked about his consultation in October 2018 with orthopaedic surgeon, Mr Clitherow, and the recommendation that he see a pain specialist. The Applicant claimed he had ‘seen quite a few’ but could not recall who or when. He claimed that he was unable to continue with shoulder rehabilitation after attending ‘once or twice because of COVID’. When challenged that COVID-19 did not become a prominent issue in Australia until early 2020, he reverted to the explanation that his general practitioner attempted to obtain TAC funding approval for continuing rehabilitation but received ‘no response’.

    (iv)Left knee. The Applicant agreed he undertook some physiotherapy and saw orthopaedic surgeon Mr Joseph Robin in late 2014 about his left knee. An arthroscopy was recommended, which the TAC agreed to fund, but the Applicant decided not to proceed because there ‘is no guarantee’ it would remedy his symptoms. The Applicant claimed the surgeon told him that out of 100 people who have an arthroscopy ‘99% of persons say yes – perfect’ but there was still a chance the outcome could be worse, and he was unwilling to take that risk. He said the TAC refused his request for a second opinion from another orthopaedic surgeon. The Applicant said he had not seen anyone apart from his general practitioner during the intervening years about his left knee. When asked if his left knee still caused him issues and whether he planned to see anyone else about it, the Applicant responded: ‘The TAC hasn’t approved it’.

    (v)Right wrist. The Applicant was asked about a right wrist condition. He received some injections about five years ago but claimed to have been told by an unnamed doctor: ‘no treatment is possible, nothing can be improved, I can’t do anything for you’. He could not recall which doctor told him this.

    (vi)Adjustment disorder. When asked by Ms Heffernan if he ever saw a psychologist or psychiatrist regarding his adjustment disorder, the Applicant responded: ‘Yes – in my GP’s clinic’. When asked the name of the psychologist or psychiatrist and when this consultation occurred, the Applicant responded: ‘I can’t remember’.  He claimed that he had taken an antidepressant in the past but no longer did and could not recall what it was. When asked about the last time he took an antidepressant, the Applicant responded: ‘I can’t remember’.

    (vii)Left ankle, foot, and respiratory disorder. When asked why he saw a different general practitioner for this condition, the Applicant said he wanted to keep the TAC-related conditions separate from his left ankle / foot condition, because the Federal Government’s COVID vaccination program rather than the TAC was responsible for the latter.  When referred to his general practitioner’s assessment that the ‘lower limb deficiencies’ and respiratory disorder were ‘temporary’, he disagreed. He had not sought treatment for these conditions, including from a cardiologist or respiratory and sleep physician Dr Penny Wong, ‘because of no funding’ from the Federal Government. He said: ‘Medicare will only cover part of it’ and he was unable / unwilling to cover any gap.

    (viii)POS. The Applicant agreed with Ms Heffernan that he had not previously commenced a POS.  He has not undertaken any work since his car accident and is reliant on TAC compensation payments for medical expenses, and fortnightly income support payments from Centrelink.  

15. Attention now turns to consideration of the Applicant’s claimed conditions.

    Back condition

16. A period of rehabilitation and hydrotherapy in 2015 did improve the Applicant’s back symptoms somewhat.[5] Subsequent specialist recommendations were to have a CT guided nerve root injection, further assessment of a possible neurological cause for his mobility issues, and referral to a multidisciplinary pain clinic.[6] There is no corroborating evidence the Applicant has acted on these recommendations, although he did claim at AAT1 that ‘an injection into his back for pain many years ago’ did help, but ‘could not be done repetitively’.[7] In 2015, medico-legal letters were commissioned by lawyers retained by the Applicant for his traffic accident matter, which referred to back and neck pain.[8] These indicate he had not seen a back specialist ‘because he was told to deal with one thing at a time’ and ‘more pressing conditions would be treated first’.[9] On 1 June 2015 an occupational physician stated that investigations disclosed ‘longstanding degeneration in his…back’ and assessed the Applicant as displaying ‘overwhelming abnormal illness presentation’.[10] In 2017, neurosurgeon Dr Aliashkevich recommended further investigations and a pain specialist assessment,[11] but there is again no evidence this occurred. In 2018, orthopaedic surgeon Mr Clitherow referred the Applicant for pain management review,[12] which the Applicant’s general practitioner provided a referral for, but there is no evidence the Applicant undertook this consultation. A further referral was provided by the general practitioner on 13 July 2022,[13] but again there is no evidence the Applicant undertook this consultation. An MRI of the Applicant’s lumbar spine was conducted in late October 2022, but no expert evidence accompanies this as to subsequent treatment. There is no expert evidence of any continuing treatment specific to the back condition.

    [5] Ibid 41.

    [6] Ibid 186-192; 199.

    [7] Ibid 11 [29].

    [8] Ibid 114-115; 118; 155.

    [9] Ibid 121; 146.

    [10] Ibid 158-159.

    [11] Ibid 248-249.

    [12] Ibid 304.

    [13] Ibid 417.

17. The Tribunal finds that the Applicant’s back condition was not fully treated and stabilised during the relevant period. He has not undertaken reasonable treatment consistent with specialist recommendations, which may have reduced pain and led to functional improvement. No points can be awarded for this condition under the Impairment Tables.

    Shoulder condition

18. Imaging has established the Applicant’s shoulder condition, namely bilateral rotator cuff tears.  Orthopaedic surgeon Mr Eden Raleigh treated this in June 2015 with physiotherapy and cortisone injections before considering surgery but noted: ‘Mr Chen never came for follow up after that period, and I have not seen him since’.[14]

    [14] Ibid 160.

19. The Tribunal accepts the Applicant’s shoulder condition is diagnosed, but it was not fully treated or stabilised during the relevant period. This includes because there is no evidence recommended specialist treatment was undertaken. The persistent pain the Applicant refers to in most parts of his body, including in both shoulders, has not been addressed in the context of a holistic pain management strategy, which in turn seems to have precluded possible surgical repair of his shoulders. No points can therefore be awarded for this condition under the Impairment Tables.

    Left knee condition

20. Imaging has established the Applicant’s left knee diagnosis of medial meniscus tear.[15] This condition, however, was not fully treated and stabilised during the relevant period. That is because the arthroscopic surgery recommended by Mr Robin,[16]  which the TAC agreed to fund, was not undertaken. The reason relied upon by the Applicant for this is unpersuasive and the Tribunal is satisfied this was reasonable treatment that could have improved the pain and impairment he claims to experience. The Tribunal accepts the Secretary’s contention that a ’person’s own views as to the efficacy (or otherwise) of treatment is not a compelling reason to refuse treatment that has been recommended by treating practitioners’.[17] It is unreasonable for the Applicant to assert that only surgery which guarantees a 100% positive result constitutes acceptable treatment. The Tribunal prefers Mr Robin’s assessment dated 18 October 2014, that the Applicant’s left knee condition ‘would definitely benefit from arthroscopic surgery’.[18]  

    [15] Ibid 126; 147.

    [16] Ibid 107.

    [17] Respondent’s Statement of Facts, Issues, and Contentions, 11 [79].

    [18] Exhibit R1, 107.

    Right wrist condition

21. Apart from references to pain medication, there is a paucity of evidence regarding treatment for this condition (chronic de Quervain’s tenosynovitis). Open-source information states relates to swelling around the thumb tendon. After being diagnosed by ultrasound in 2013 and receiving injections in or about 2015 that the Applicant said did not help,[19] there is no evidence this condition required any treatment during the relevant period. In the absence of expert evidence about what reasonable treatment, if any, may alleviate discomfort the Applicant may feel in his right wrist, or that no treatment is beneficial, the Tribunal is not satisfied this condition was fully treated and stabilised during the relevant period. No points can therefore be awarded under the Impairment Tables.

    [19] Ibid 108; 326; 331.

    Mental health condition

1. The Applicant’s evidence regarding a past diagnosis of Adjustment Disorder in 2015, well before the relevant period,[20] was opaque at best. He no longer takes an antidepressant he claims was previously prescribed but cannot recall what it was or when he last took it. Consultant psychiatrist Dr Nicholas Ingram has stated it was appropriate the Applicant ‘have trials of several antidepressants’ and noted the condition was unstable. In the absence of expert evidence about whether the Applicant undertook those trials and their efficacy, or any more recent diagnosis or treatment, the Tribunal is not satisfied this condition is fully diagnosed, treated, or stabilised. No points can therefore be awarded.

   [20] Ibid 183-184.

   Purported COVID-9 vaccination side effects

2. There is no expert corroboration that a second Pfizer vaccination on 28 September 2021 caused the Applicant’s left lower limb, enlarged heart, or shortness of breath conditions. This came across as uncorroborated conjecture at best. There are general references in the evidence to pain and swelling in the Applicant’s lower left leg, which he believes was caused by the vaccination,[21] but the cause is uncorroborated. The Applicant was referred to a cardiologist, rheumatologist, respiratory specialist, and pain specialist[22] but has not followed through on these referrals for the reasons earlier discussed. These enquiries continue to post-date the relevant period.

   [21] Ibid 347-348; 386.

   [22] Ibid 404; 420-421.

3. It remains unclear to the Tribunal, despite the Applicant’s claims, why an initial Pfizer vaccination on 29 August 2021 did not cause any side effects, whereas a second dose of the same vaccine a month later purportedly caused significant, enduring, and untreatable conditions requiring medication for life. In any event, his general practitioner issued a medical certificate describing ‘left ankle pain’ or ‘lower limb deficiencies’ and ‘respiratory disorder – other’ as ‘temporary’ and expected these symptoms to last for three months.[23] These conditions were not fully diagnosed, treated, or stabilised during the relevant period. No points can therefore be awarded under the Impairment Tables.

   [23] Ibid 346; 399; 450.

4. Without corroboration, the Tribunal does not accept the Applicant’s claim that specialist referrals are unachievable for him, either under Australia’s public health system, or unaffordable in terms of any gap payment required. On his own evidence he received a considerable lump sum compensation payment after his 2013 TAC claim and there is no evidence that he is impecunious.

   IF THE APPLICANT’S IMPAIRMENT(S) IS/ARE OF 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES, ARE 20 POINTS ASSIGNED UNDER A SINGLE IMPAIRMENT TABLE (SEVERE IMPAIRMENT)?

5. None of the Applicant’s claimed conditions are capable of being assigned 20 points or more under a single impairment table. It therefore follows he does not have a severe impairment within the meaning of section 94(3B) of the Act.

   IF THE APPLICANT DID NOT HAVE A SEVERE IMPAIRMENT DURING THE RELEVANT PERIOD, BUT HIS IMPAIRMENT(S) NEVERTHELESS ATTRACT A RATING OF 20 POINTS OR MORE, DOES HE HAVE A CONTINUING INABILITY TO WORK OR HAS HE PARTICIPATED IN A POS?

6. The Applicant’s impairments have not been assigned any points under the impairment tables, meaning that he does not qualify for DSP under section 94(1)(b) of the Act. It is therefore unnecessary to consider whether he has a continuing inability to work or has actively participated in a POS in the three years prior to lodging his DSP claim as required by section 94(1)(c) of the Act. The Tribunal does so for completeness.

7. The Applicant has not previously commenced or completed a POS, nor is he covered by any of the permissible exceptions, such as suffering a severe impairment. As such, the Applicant did not have a continuing inability to work.

   Conclusion

8. The Applicant did not satisfy ss 94(1)(b) and 94(1)(c) of the Act during the relevant period.

   DECISION

9. The decision under review is affirmed.

31.     I certify that the preceding thirty (30) paragraphs are a true copy of the written reasons for the decision of Senior Member A. Nikolic AM CSC

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

Associate

Dated: 15 August 2023

Date of hearing:	2 August 2023
Advocate for the Applicant:	Applicant via telephone
Advocate for the Respondent:	Ms Peta Heffernan
Solicitor for the Respondent	Australian Government Solicitor