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

[2016] AATA 414

Chen and Secretary, Department of Social Services (Social services second review) [2016] AATA 414 (22 June 2016)

Division	GENERAL DIVISION
File Number	2015/4275
Re	Mr Da CHEN
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr C Ermert, Member
Date	22 June 2016
Place	Melbourne

The Tribunal affirms the reviewable decision.

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

Mr C Ermert, Member

SOCIAL SERVICES - Disability Support Pension (DSP) - qualifying period - whether impairments fully diagnosed, fully treated and fully stabilised - whether impairments are permanent - nil impairment rating - not qualified for DSP - decision affirmed

LEGISLATION

Social Security Act 1991 (Cth)

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

REASONS FOR DECISION

Mr C Ermert, Member

INTRODUCTION

1. On 1 June 2013 Mr Da Chen, the Applicant, was involved in a motor vehicle accident.  On 20 February 2015 he lodged with Centrelink a claim for Disability Support Pension (DSP).  Centrelink is the service provider for the Secretary, Department of Human Services, the Respondent.  In his claim Mr Chen listed as his injuries: Head, Neck, Both shoulder (sic), Back, Both knees, Wrist.

2. On 4 May 2015 a staff member of Centrelink determined that Mr Chen was not qualified for the payment of DSP.  Mr Chen requested a review of this decision.  On 22 May 2015 an Authorised Review Officer (ARO) of Centrelink affirmed the decision.  Mr Chen sought a further review and on 29 July 2015 a Tribunal of the Social Services and Child Support Division affirmed the decision of the ARO.

3. This matter is an application for the second review of the Tribunal’s decision.

   HEARING

4. At the hearing Mr Chen represented himself and gave evidence under affirmation, with the assistance of an interpreter in the Mandarin language.  Ms Vincci Chan, a solicitor with the Department of Human Services, represented the Respondent. 

5. I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents).  I took in the following Supplementary T-Documents:

   ·     ST1 – Report by Associate Professor Nick Paoletti dated 19 February 2015;

   ·     ST2 – Report by Dr David Elder dated 1 June 2015; and

   ·     ST3 – Letter from Dr Josephine Ong dated 10- July 2015.

6. For Mr Chen I took into evidence the following documents:

   ·Exhibit A1 – Letter from Transport Accident Commission (TAC) dated 12 February 2016;

   ·Exhibit A2 – Medical report by Mr Thomas Kossmann, orthopaedic surgeon, dated 12 August 2015, pages 1 and 5 of 8 only; and

   ·Exhibit A3 – Tax Invoice of South Yarra Sports Medicine dated 23 November 2015.

7. For the Respondent I took in for consideration the Respondent’s Statement of Facts and Contentions dated 25 January 2016.

8. After hearing the evidence and submissions I adjourned the hearing to give Mr Chen an opportunity to provide the additional medical reports to which he referred.  On 23 May 2016 Mr Chen submitted a report titled 3D Gait Analysis Report dated 23 November 2015.  A copy of the report was forwarded to the Respondent for consideration.

   LEGISLATION

9. The relevant legislation is contained in the:

   ·Social Security Act 1991 (Cth) (the Act);

   ·Social Security (Administration) Act 1999 (Cth)(the Administration Act);

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

   ·Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (the Determination).

10. Section 94 of the Act relevantly prescribes qualification for DSP:

    (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.

11. A person’s impairment is assessed by reference to the Impairment Tables.

    QUALIFICATION PERIOD

12. Sections 41 and 42 and Schedule 2 of the Administration Act stipulate that the date for the determination of the claim is the date of the claim. The only exception is where a person is not qualified on the date of claim but becomes qualified within 13 weeks of lodging the claim, in which case their start day is the day they become qualified.

13. In this case the qualification period runs from 20 February 2015, the day on which the claim was lodged, to 22 May 2015. 

    ISSUES

14. The issues are whether, during the qualification period, Mr Chen:

    ·had any physical, intellectual or psychiatric impairments; and, if so,

    ·the impairments attracted a rating of 20 points or more under the Impairment Tables; and, if so

    ·he had a continuing inability to work.

    EVIDENCE

15. In his oral evidence Mr Chen referred to the reasons for decision of the Tribunal’s first review which recorded at paragraph 29 that he “refuses to consider treatment access via Medicare”.  He disagrees with the statement.   He said that he had been told by his doctor and specialists that he can not access treatment through both the TAC and the Medicare systems. 

16. Mr Chen stated that he needs treatment for his depression which he has had for many years.  He said that he had been told by his general practitioner (GP) and by Mr Kossmann that his depression would not improve significantly until he has an operation to reduce the pain from his shoulders.

17. Referring to paragraph 55 of the decision Mr Chen said he did not tell the Tribunal that “his specialist said the surgery cannot remove his pain but it will improve his function”.  Mr Chen said his evidence had been that the surgery “may improve” his function. 

18. Mr Chen said that the TAC accepts he has an injury which stops his working capability.  He said that as he has an injury he must have impairments. Mr Chen said that he had supporting reports from the TAC which he had not brought with him to the hearing. 

19. When asked about treatment for his back and shoulder condition Mr Chen said he had been treated by an occupational therapist many times.  He said “An operation would reduce the pain, but would not fix it … why would I not want an operation? I want to fix the problem, but there is no guarantee”.  He said he might need more than one operation.  He would also not sign an agreement for an operation because the result can not be guaranteed. 

20. Mr Chen said that with the occupational therapist he had tried treatment in the heated swimming pool.  He said it reduced the pain but lasted only about three hours.  He had been to a physiotherapist about 10 times. 

21. When asked if he had been to see anyone about his mental health condition Mr Chen said he could not remember.  He said that he had talked to someone who had asked him questions.  Mr Chen said his GP prescribes his anti-depressant medication.  He said his medication had been changed twice last year and had been made stronger. 

22. In regard to his left knee Mr Chen said his GP had told him he needed to see a specialist.  He had seen a specialist last year but had not brought the report with him.

23. In regard to his right wrist condition Mr Chen said he received treatment from the occupational therapist at the same time as receiving treatment for his shoulder and back.

24. When asked whether he had attended the job provider Bridge Employment as part of a Program of Support, Mr Chen said that he refused as he “can’t do it because of my injury”.

    TRIBUNAL CONSIDERATIONS

    Does Mr Chen have an Impairment? (section 94(1)(a))

25. The Respondent concedes, correctly in my opinion, that during the qualifying period

    
    

    Mr Chen had impairments from the following conditions, which satisfied the requirements of section 94(1)(a) of the Act:

    ·Multifocal body pain due to degenerative spine and bilateral shoulder tenosynovitis and supraspinatus tear (back and shoulder condition);

    ·Post-Traumatic Stress Disorder (PTSD);

    ·Left knee tear; and

    ·Right wrist injury.

26. The concession is supported by the evidence, and I find accordingly.

    Do the Impairments attract an Impairment Rating of 20 points or more?
    (section 94(1(b))

27. I must now determine whether Mr Chen’s impairments attract a rating of 20 points or more under the Impairment Tables according to section 94(1)(b) of the Act.

28. Section 6(3) of the Impairment Tables provides that a rating can only be assigned to an impairment if the person’s condition is permanent and if the impairment is more likely than not to persist for more than two years.  Section 6(4) provides that a condition is permanent if the condition has been fully diagnosed by an appropriately qualified medical practitioner, and has been fully treated and fully stabilised.

29. Section 6(5) of the Impairment Tables provides that for a condition to be fully diagnosed and treated by an appropriately qualified medical practitioner the following considerations apply:

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

    (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.

30. I will consider each of the conditions in turn.

    Multifocal Body Pain due to Degenerative Spine and Bilateral Shoulder Tenosynovitis and Supraspinatus Tear (Shoulder and Back Condition)

31. I note the report of Dr John Tang dated 13 September 2013 in which he diagnosed multifocal body pain, investigation showed degeneration change of spine, bilateral shoulder tenosynovitis, supraspinatus tear.  I note also the medical certificate prepared by Dr Ong on 5 December 2013 which records diagnoses for 1. full thickness tear of supraspinatus of left shoulder and subacrominal/subdeltoid bursitis, 2. lumbar disc bulge at L2/3 L4/5, L5/S1 3. full thickness tear of supraspinatus of right shoulder and subacrominal bursitis.

32. The Respondent does not contest that the condition was fully diagnosed.  I accept the evidence and find that the condition was fully diagnosed.

33. In considering whether the condition was fully treated and stabilised I note the following reports:

    ·Report of Dr Tang dated 13 September 2013 which records:

    Been referred to physiotherapist, orthopaedic surgeon, due to his claim has not approved by TAC yet.  He has not been seen;

    ·Job Capacity Assessment (JCA) Report dated 5 February 2014 which records:

    The client has been referred to physiotherapist and orthopaedic surgeon but has not been seen as has not been approved by TAC;

    ·Report of Mr Paul Steedman, FRCS, FRACS, dated 10 February 2015 (T-Documents which records:

    He may well require surgery to at least his left knee and perhaps his right knee later and perhaps to both shoulders;

    ·Report of Dr Ong dated 17 March 2015 which records:

    Condition 1 - Bilateral supraspinatus tear and subacrominal bursitis of both shoulders … Specialist consultation Mr Eden Raleigh, orthopaedic surgeon 9/14 Future/planned treatment – Continue physiotherapy; and

    ·Report of Mr Kossmann dated 12 August 2015 which records:

    Mr Chen has been investigated and referred to orthopaedic specialists for treatment and he has not proceeded with surgical advice.  He is currently having physiotherapy, however he is making no improvements.  Mr Chen now has significant problems with both of his upper limbs and his mobility.

    I recommend that he be assessed with a 3D gait analysis.  I am concerned that there may be an underlying neurological cause to his symptoms and I believe that a neurologist should investigate him.  Mr Chen should have MRI scans of both shoulders … His bilateral frozen shoulder probably requires hydrodilation.

34. I note also the evidence Mr Chen gave to the Tribunal on its first review:

    Upper limb conditions

    …35.  Mr Chen told the tribunal that Mr Raleigh gave him three options, continued physiotherapy, cortisone injections and surgery, but he could not give any guarantees that surgery will be successful.  Mr Chen told that tribunal he has yet to consider the second and third options, instead preferring to continue with physiotherapy for his shoulder condition at this stage.

    …

    Lower back pain

    42.  Mr Chen gave evidence his back pain was treated with physiotherapy in 2014 for a couple of months and he stopped this treatment in June 2014.  He said his back pain is now worse and he has had referred pain down his leg since early 2015.  … He said he has not undertaken any further physiotherapy since June 2014 as the TAC has not approved further treatment. 

    …

    Cervical spine disorder

    48.  Mr Chen told the tribunal he has not attended a specialist for his neck.

35. In his evidence to this hearing Mr Chen confirmed that he had not proceeded with surgical treatment for his back and shoulder condition. 

36. The medical evidence recommends further treatment for Mr Chen’s condition which includes surgical procedures, a 3D gait analysis and investigation by a neurologist.  Exhibit A3 shows that Mr Chen had a 3D Walk Initial Consult on 23 November 2015, which is outside the qualifying period.  The report submitted by Mr Chen on 23 May 2016 shows that Mr Chen had a 3D Gait Analysis on 23 November 2015, which is also outside the qualifying period. 

37. The evidence is that during the qualifying period Mr Chen had not undertaken the recommended treatments.  I accept that during the qualifying period Mr Chen had not undertaken reasonable treatment that can be expected to result in a substantial improvement in his functional capacity.

38. I find that, during the qualifying period, his spinal and shoulder condition was not fully treated and stabilised and therefore not permanent in accordance with the provisions of section 6 of the Impairment Tables.  As a result I am precluded from assigning an impairment rating to this condition.

    PTSD

39. The Introduction to Table 5 - Mental Health Function requires that the diagnosis of the 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.  The first diagnosis that complies with these requirements is that of the Associate Professor Paoletti, a psychiatrist.  In his report dated 19 February 2015 (ST1) Professor Paoletti records that Mr Chen suffers from:

    1Unspecified Depressive Disorder (DSM-V 311)(ICD-10CM F32.8).

    2Unspecified Anxiety Disorder (DSM-V 300.00)(ICD-10CM F41.9), with traffic phobia and features of post-traumatic stress disorder.

40. I am satisfied that Mr Chen’s mental health condition has been fully diagnosed in accordance with the provisions of the Act.

41. Considering the treatment of the condition I note the following reports:

    ·Report of Dr Tang dated 13 September 2013 which records:

    Waiting to see Psychiatrist / Psychologist … has been referred to several different Psychologists.  Has not been seen due to TAC has not approved it yet;

    ·Job Capacity Assessment (JCA) report dated 14 November 2013 which recorded:

    The client is currently on medication.  He has been referred to psychologists and psychiatrists but has not attended due to not being approved by TAC.  As such he will be seeing a psychologist and/or psychiatrist in the near future;

    ·JCA report dated 3 February 2014 which records:

    The client has been referred to a psychologist but has not been seen as has not been approved by TAC;

    ·JCA report dated 28 April 2015 which records:

    Psychiatric report states that there has been no treatment to date.  The psychiatrist states that the client refused to travel to see a psychologist, and that the family doctor made two unsuccessful attempts to engage a home visiting psychologist.  The psychiatrist recommends treatment by a Chinese speaking psychiatrist, and referral to a psychologist for psychotherapy. The client reported that his family doctor is organising referral to a psychiatrist;

    ·Report of Professor Paoletti dated 19 February 2015 (ST1) which recorded:

    When asked questions on his emotional state, Mr Chen reported the following:

    …

    Mr Chen has not seen a psychiatrist or psychologist because he finds it hard to travel.  His GP has asked on or two psychologists to see him at home, but they could not do that.  Mr Chen also feels that talking will “not fix [his] real problems”.

    …

    In relation to treatment:

    ·The reported attempt by the GP to refer him to a psychiatrist or a psychologist is appropriate

    ·The difficulty is that Mr Chen has declined, ostensibly because of difficulty with travel, but I also suspect, from what he said at interview, that he does not see a connection between taking and solving his problems, and that may require some work to modify

    ·Given the severity of his symptoms, referral to a psychiatrist who speaks his language would be most appropriate

    ·A combination of cognitive behaviour therapy and antidepressant medication would be best practice, but his individual needs would have to be assessed by a psychiatrist in a treatment situation; and

    ·Report of Dr Elder dated 1 June 2015 which records:

    He stated “not yet” when I asked whether his GP had sent him for psychological assessment.

42. I note also the first review by this Tribunal which records at paragraph 26:  He told the tribunal he has not undertaken treatment for anxiety and depression and has not been referred for specialist treatment.  The TAC has not approved funding for a psychiatrist and his general practitioner has not made a referral at this stage … he does not wish to compromise his claim by having treatment outside of TAC approval and funding.

43. In his oral evidence Mr Chen said that he could not remember seeing a specialist about his mental health condition.  He said that his GP prescribes his medications.

44. The medical evidence shows that Mr Chen has received a number of recommendations for specialist treatment by psychiatrists or psychologists however he has chosen not to undergo such treatment to date.  I find that, during the qualifying period, the condition was not fully treated and stabilised and therefore not permanent in accordance with the provisions of section 6 of the Impairment Tables.  As a result I am precluded from assigning an impairment rating to this condition.

    Left Knee Tear

45. In considering whether the condition is fully diagnosed I note the report of Monash Radiology dated 20 November 2013 which records the results of a Magnetic Resonance Image (MRI) of Mr Chen’s left knee.  The conclusion from the scan is that Mr Chen has a Tear of the posterior horn of the medial-meniscus. 

46. I accept this as sufficient evidence to find that, at the qualifying period, the condition was fully diagnosed.

47. In considering whether the condition has been fully treated and stabilised I note the content of the following documents:

    ·Report of Mr Steedman dated 10 February 2015 (T-Document T17) which records:

    He said he was told that he would probably require surgery to his left knee and perhaps his right knee.  He is still under TAC.  He has seen Mr Eden Raleigh and Mr Joseph Robin an orthopaedic surgeon.  TAC have agreed to a left knee arthroscopy… Opinion: … 6. The prognosis is not good.  He may well require surgery to at least his left knee and perhaps his right knee …

    ·Report of Dr David Elder dated 1 June 2015 which records:

    He has also seen an orthopaedic surgeon for his left knee but no treatment has yet been instituted

    ·Report of Dr Ong dated 10 July 2015 which records:

    His treatment consists of physiotherapy and is awaiting approval from TAC for arthroscopy of left knee

48. I note also the Reasons for Decision of the Tribunal’s first review which records:

    55. Mr Chen told the tribunal he is contemplating whether to proceed with the proposed knee surgery.  He told the tribunal he is fearful of surgery because he has not been given a 100% guarantee that surgery will improve the condition … Mr Chen is having ongoing discussions with his wife about the proposed knee operation.  He told the tribunal that the surgery is still an option but he may seek another specialist opinion before deciding whether to proceed or not.

1. I am satisfied from the evidence that, during the qualifying period, Mr Chen’s condition was not fully treated and stabilised and therefore not permanent in accordance with the provisions of section 6 of the Impairment Tables.  As a result I am precluded from assigning an impairment rating to this condition.

   Right Wrist Injury

2. In the reports of Dr Ong dated 5 December 2013 and 31 December 2013 and 5 November 2014 I note the diagnosis of chronic de Quervain tendosynovitis of right wrist.  In her report dated 17 March 2015 Dr Ong lists the condition as one that is generally well managed and that causes minimal or limited impact on ability to function.

3. From the evidence I am satisfied that the condition is fully diagnosed.

4. In considering whether the condition is fully treated and stabilised I note the following:

   ·JCA report dated 30 April 2015 which records:

   The client reported that there has been no treatment to date to address this condition.

5. The reasons for the decision of the first review by this Tribunal record:

   37.  Mr Chen gave evidence that he has not had treatment for his right wrist condition. … He has not been referred to a specialist because this has not been approved by the TAC and he has not discussed attending a public hospital to see a specialist for the reasons previously outlined as he does not wish to compromise his claim by having treatment outside of the TAC approval and funding.

6. In his oral evidence Mr Chen stated that he receives treatment from the occupational therapist at the same time as the treatment for his shoulder and back.  I note that he has not been seen by a specialist about this condition.

7. As Mr Chen has not been seen by a specialist for this condition I am satisfied that, during the qualifying period, this condition was not fully treated and stabilised and I find accordingly.  I find that the wrist condition is therefore not permanent in accordance with the provisions of section 6 of the Impairment Tables.  As a result I am precluded from assigning an impairment rating to this condition.

   CONCLUSION

8. I have found that during the qualifying period none of Mr Chen’s conditions were permanent in accordance with the provisions of section 6 of the Impairment Tables.  As a result I am precluded from assigning impairment ratings to the claimed conditions.  The total impairment rating during the qualifying period is nil points.

9. The total impairment rating is less than the 20 points required to satisfy section 94(1)(b) of the Act.  As a result, Mr Chen cannot satisfy all the provisions of section 94(1) of the Act and there is no need for me to consider the other sub-sections of section 94(1) of the Act.

10. The result is that during the qualifying period Mr Chen was not qualified for DSP and I find accordingly.

    DECISION

11. I affirm the reviewable decision.

I certify that the preceding 59 (fifty -nine) paragraphs are a true copy of the reasons for the decision herein of Mr C Ermert, Member

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

Associate

Dated 22 June 2016

Date(s) of hearing	14 April 2016
Date final submissions received	13 May 2016
Applicant	In person
Advocate for the Respondent	Ms Vincci Chan