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

[2020] AATA 4859

Chey and Secretary, Department of Social Services (Social services second review) [2020] AATA 4859 (2 December 2020)

Division:GENERAL DIVISION

File Number:          2019/8214

Re:Samnag Chey   

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member West

Date:2 December 2020

Place:Melbourne

The Tribunal affirms the decision under review.

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

Member R West

Catchwords

SOCIAL SECURITY – disability support pension – chronic pain syndrome – depression - anxiety – whether conditions fully treated and stabilised in the qualification period – whether impairments attract rating of 20 points or more under Impairment Tables – decision affirmed.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Cases

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, Re [2012] AATA 922
Covenden and Secretary, Department of Social Services, Re [2018] AATA 353
Fanning and Secretary, Department of Social Services (2014) 144 ALD 133; [2014] AATA 447

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

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

REASONS FOR DECISION

Member R West

2 December 2020

BACKGROUND

1. This matter concerns a review of the decision of the Administrative Appeals Tribunal

   
   

   (Social Services & Child Support Division) dated 12 November 2019 affirming the decision of Centrelink to refuse the Applicant’s claim for the Disability Support Pension (DSP).

2. The relevant history of the matter is as follows:

   ·The Applicant made his original application for DSP on 11 October 2018.

   ·Centrelink assessed and refused the application on 7 February 2019 (Initial Decision).

   ·An authorised review officer (ARO) affirmed this decision on 26 April 2019 (ARO Decision).

   ·A review of the ARO Decision was conducted by the Administrative Appeals Tribunal (Social Services & Child Support Division) (First Tier Review) and a decision affirming the ARO Decision was handed down on 12 November 2019.

   ·The Applicant applied for a Second Tier Review on 11 December 2019.

3. A hearing in relation to the Second Tier Review was held by teleconference on 28 September 2020.  The Applicant was self-represented and had the assistance of a Khmer interpreter. The Respondent was represented by Ms Donaghy of the Australian Government Solicitor.

4. The hearing was conducted in the context of restrictions placed on the community in response to the COVID–19 pandemic. These restrictions necessitated that the hearing not be conducted in person. The Applicant and the Respondent each consented to the hearing on 28 September 2020 on the basis that it was conducted by telephone. The Tribunal determined, pursuant to s.33A of the Administrative Appeals Tribunal Act 1975 (AAT Act), to conduct the hearing by teleconference.

   LEGISLATION

5. The Tribunal had regard to the following relevant legislation in making its decision:

   ·Social Security Act 1991 (the Act);

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

   ·Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) (the Rules): a determination made by the Minister under s 26(1) of the Act which came into effect on 6 December 2011;

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

   ·Administrative Appeals Tribunal Act 1975.

   QUALIFICATION PERIOD

6. A decision in relation to the granting of the DSP must be made having regard to the Applicant’s condition in the period commencing on the day the application is lodged and the 13 weeks thereafter.  This is called the qualification period.[1]

   [1] See ss 37 and 42 and cls 3 and 4 of Schedule 2 of the Administration Act.

7. In this case, the qualification period commenced on 11 October 2018 and ended on

   
   

   10 January 2019.

8. In assessing whether a condition has stabilised and is likely to persist for the future, the Tribunal must look at the situation during the qualification period, having regard to the evidence.  Evidence of the Applicant’s condition subsequent to the qualification period is not relevant, save as to the weight the Tribunal might give to competing prognostications made about the Applicant’s condition during the qualification period.[2]

   [2] See Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 992 at [34]; Fanning and Secretary, Department of Social Services (2014) 144 ALD 133 at [33] and Re Covenden and Secretary, Department of Social Services [2018] AATA 353 at [7].

   DSP QUALIFICATION

9. To qualify for a DSP, an applicant must satisfy the requirements set out in s 94(1) of the Act, which is assessed during the qualification period.

10. In essence, s 94(1) of the Act requires that:

    ·the Applicant have a physical, intellectual or psychiatric impairment;

    ·the Applicant’s impairment or impairments is/are fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years;

    ·the Applicant has a severe impairment (an impairment rating of at least 20 points on a single Impairment Table); or the Applicant’s impairments together rate at least 20 points on the Impairment Tables; and

    ·the Applicant has a continuing inability to work; or the Secretary is satisfied that the Applicant is participating in the supported wage system.

11. Section 94(2) of the Act provides that a person has a continuing inability to work because of an impairment if the person has a severe impairment, or has actively participated in a program of support and the impairment is of itself sufficient to prevent the person from doing any work, or undertaking a training activity independently of the program of support within the next two years.

12. Section 7 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 provides that a person has actively participated in a program of support if they have participated in a program for at least 18 months in the three years immediately prior to the date of claim.

    THE EVIDENCE AND SUBMISSIONS

13. In conducting the Second Tier Review, the Tribunal has had regard to the documents produced by the Respondent pursuant to s 37 and s.38AA of the Administrative Appeals Tribunal Act 1975 (AAT Act) (T Documents and Supplementary T Documents) and the oral evidence of the Applicant.

    Background

14. The Applicant was born in Cambodia in 1968.  He lived under the control of the Khmer Rouge until he was reunited with his family in 1979.  He then lived in a rural village until he became a Buddhist monk at the age of sixteen. He remained as a monk in Cambodia until he came to Australia in 2001.  In Australia, he initially worked as a monk in a monastery in Sydney until 2010, when he travelled to Cambodia and got married.  He and his wife then returned to Australia.  Their relationship ended in 2013, although they continued to reside separately in the same house for some time afterwards. 

15. After returning to Australia in 2010, the Applicant worked on a farm, and later at a metal recycling business where he was injured while at work in May 2013.  He sustained a fracture of his left forearm and underwent surgery on 29 May 2013 which included debridement and internal fixation of his radial fracture with synthes small fragment plate and screws.[3]  He underwent a second operation in December 2013 which involved bone grafts and revision open reduction internal fixation of his radial shaft non union.[4] The operation involved the graft of bone taken from his right hip.

    [3] T4 at p.22

    [4] T4 at p.22

16. His orthopaedic surgeon, Mr Rabi Solaiman reported in June 2014 that after the second operation, the fracture eventually achieved union and that the Applicant had regained almost full range of motion in his left forearm, but he continued to complain of occasional pain as well as significant psychological symptoms of post-traumatic stress, anxiety and depression.[5]

    [5] T4 at p.23

17. The Applicant was assessed at the request of the Workers’ Compensation Insurer by a psychiatrist, Dr Paul Kornan, in November 2014. Dr Kornan opined that the Applicant was suffering from a pain disorder associated with psychological factors. He noted that, from a psychiatric point of view, there was no limitation on the Applicant’s daily activities of living and that he had some capacity for partial alternative employment and could rapidly return to full time employment.  He noted that the Applicant was receiving monthly psychiatric treatment from Dr Lanka Cooray and was taking prescribed medication, Efexor (75mg/day), an antidepressant, and Temazepan, an anti-anxiety medication, at night, and opined that his psychiatric impairment had stabilised.[6]

    [6] T6 at p.33

18. Dr Safa Hamza, a consultant in rehabilitation and pain medicine reported in October 2018 and in October 2019[7] that he had treated the Applicant since 2015 and the Applicant had engaged in a pain management program.  He expressed the opinion that the Applicant was at that time not fit to do the work for which he was trained to do in the past. He also opined that this situation might not change unless the Applicant’s mood and pain become manageable and he was trained to do another job.

    [7] T45 at p.155

19. The Applicant’s treating doctor, Dr S. Nuon, reported in April and September 2019[8] that the Applicant had been diagnosed with chronic pain of the left forearm and right hip with mild, residual weakness of his left hand and chronic depression and anxiety.  Dr Nuon confirmed that the Applicant had been treated with Palexia, Lyrica, Alepam and Efexor. The Applicant had also seen a rehabilitation and pain specialist as well as a psychiatrist and clinical psychologist.[9]

    [8] T34 at p.130

    [9] T41 at p.149

20. Dr Cooray, the Applicant’s treating psychiatrist reported in September 2018[10] and in September 2019[11] that the Applicant was suffering from depression and anxiety since his work-related injury, which caused constant pain in his left forearm and right hip and that he could not engage in any gainful employment due to his current mental state. 

    [10] T24 at p.75

    [11] T42 at p.150

21. Mr Robert Postlethwaite, psychologist, has treated the Applicant since 2013. In September 2019, he reported that the Applicant presents with an adjustment disorder with mixed anxiety and depressed mood which had developed because of his injury, the impact of pain and consequent physical limitations.  He described the Applicant’s condition as depressed mood, sleep disturbance, anxiety, loss of interest/motivation and impairment of concentration, memory and information processing capacity.  He opined that the Applicant was currently incapable of working and he had no expectation that the Applicant will become capable of working in the foreseeable future.[12]

    [12] T40 at p.148

22. The first issue for determination for each condition is to assign a rating under the appropriate Impairment Tables for the Applicant’s claimed impairment. An impairment rating can only be assigned if the Tribunal is satisfied that during the qualification period, the Applicant’s condition causing the impairment is permanent, that is, fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years.[13]

    [13] The Act, s 94(1).

    CONSIDERATION OF ISSUES

23. The Applicant’s claim on review relates to the following conditions:

    (a)chronic pain syndrome; and

    (b)anxiety and depression.

    Chronic Pain Syndrome

24. The Respondent accepts that the Applicant’s chronic pain condition was fully diagnosed, fully treated and fully stabilised during the qualification period and likely to persist for two years and contends that the condition should be attributed an impairment rating of 10 points under Table 2 of the Impairment Tables.

25. The Tribunal is satisfied on the medical evidence that the Applicant’s chronic pain syndrome was fully diagnosed, fully treated and fully stabilised during the qualification period and that it was likely to persist for the next two years.

26. The Tribunal notes that there is no specific Table under the Impairment Tables for the assessment of a chronic pain condition. The assessment of the impairment resulting from the Applicant’s condition is to be assessed having regard to the appropriate tables relevant to the function affected.[14]  In this case, the most appropriate table is Table 2 which concerns the Upper Limb Function.

    [14] Paragraph 6(9)(b) of the Rules for Applying the Impairment Tables

27. The Applicant gave evidence that during the qualification period, he lived alone in a shared house with a friend and another friend and his wife.  He was the owner of the house and charged his friends payment of rent.  He said that he pays the bills himself, but his friend assisted by processing the payments online or at the post office. He said that the friend’s wife did the cooking, although he made breakfast for himself and did not require assistance regarding his self-care.  He said he can walk around the house, but he needs to rest because it makes him dizzy.

28. The Applicant said that he could do his own shopping and walked less than one kilometre to the shopping centre, albeit slowly and with rest about every 10 minutes.  He said that he could not walk upstairs because his eyes were blurred, he gets dizzy and he has no confidence because of his anxiety and depression.  He said that he avoids carrying heavy things and uses a backpack when he needs to do so. He said he has not driven a car since the accident in 2013.  He said he either gets a taxi or his friend drives him if he has to go to the doctors.  He further said that he can use a tram, but he feels unsafe around other people and it is difficult for him to get on and off the tram.  He said that he was able to work out for himself the correct tram and connections when travelling.

29. The Applicant said that he travelled to Cambodia for seven weeks in 2017 to meet a woman he had been communicating with by telephone and via social media.  While in Cambodia, the Applicant and the woman were married.  The Applicant tried to sponsor her to come to Australia, but her visa was refused by the Immigration Department and she remained in Cambodia when the Applicant returned to Australia.

30. When asked if he could pick up coins, the Applicant said that he had never picked up coins and so could not say whether he was able to do so.  Similarly, he said he wears T-shirts and has no need to do up buttons, wears slip-on shoes and does not need to tie shoelaces.  He said that he never uses a computer keyboard and has never had to unscrew a bottle top.  He said that he could write using a pen and paper but only a few words because of the pain and his depression.  He said that he had tried to read books a few times, but it made him dizzy. He said he can sit down only for a few minutes.  He confirmed that he was able to turn the pages of a document without assistance.

31. He said that he has not attended the Buddhist Temple for about two years and is unable to attend social activities. He said he has long standing friends who he keeps contact with through Facebook.  He said he can watch television for a few minutes, but it makes him dizzy.

32. Having considered the Applicant’s evidence and the medical reports, the Tribunal is satisfied that the Applicant’s impairment has a mild functional impact on activities using hands and arms and warrants a rating of 5 points under Table 2.  The Applicant indicated that he was able to manage most daily activities requiring the use of hands and arms although he had some difficulty picking up heavier objects.  The Applicant indicated that he did not use buttons or pick up coins, but he did not say that this was because he was unable to do so.  The Tables make it clear that an impairment is to be assessed on the basis of what a person can do and not what they chose to do or what others do for them.[15]

    [15] Paragraph 6(1) of the Rules for Applying the Impairment Tables

33. In the AAT1 decision, the Tribunal also considered Tables 1 and 3 in assessing the Applicant’s chronic pain condition.

34. Table 1 relates to Functions Requiring Physical Exertion and Stamina. The Applicant gave evidence that he needed to rest when walking.  He said he felt dizzy performing some tasks.  He said that he suffered shortness of breath and chest pain because of his anxiety and depression. 

35. The Applicant conceded that he had not been investigated by his doctors for a heart condition and that his treating doctor had said his heart was okay.  He also conceded that he had not been prescribed any medication specifically for the condition.  The medical reports do not corroborate the Applicant’s claims regarding any impairment attributable to functions requiring physical exertion and stamina. The introduction to Table 1 makes it clear that self-reporting alone is insufficient and there must be corroborating evidence of the person’s impairment from an appropriate medical source. Accordingly, the Tribunal does not assign any points to the Applicant’s chronic pain condition under Table 1.

36. As to Table 3 which deals with the Lower Limb Function, the Respondent concedes that there is evidence that the Applicant experiences pain in his hip during the qualification period,[16] but it contends that there is a lack of corroborating evidence of any functional impairment arising from the hip pain. The Applicant confirmed in his oral evidence that he had not seen a medical practitioner to investigate the pain in his right hip since 2015. In his own evidence, he did not attribute any of the impairments he claimed to suffer specifically to his hip pain.  For example, his explanation for not being able to climb stairs was that his eyes were blurred and that he felt dizzy and weak as a result of his anxiety.  In the absence of such evidence, the Tribunal does not assign any points to the Applicant’s chronic pain condition under Table 3.

    [16] See T23 & T41

    Anxiety and Depression

37. The Respondent accepts that this condition was fully diagnosed, fully treated and fully stabilised during the qualification period and likely to persist for two years. The Respondent contends that the condition should be attributed an impairment rating of 5 points under Table 5 of the Impairment Tables.

38. Having reviewed the medical evidence, the Tribunal is satisfied that the Applicant’s anxiety and depression was fully diagnosed by an appropriately qualified medical practitioner and was fully treated and fully stabilised during the qualification period and likely to persist for two years. The appropriate table to assess the condition is Table 5 – Mental Health Function.

39. In considering the criteria specified in each of the sub-tables in Table 5 the Tribunal finds:

    Self-care and independent living

40. The Applicant’s evidence was that he was able to attend to his own self-care needs without assistance, although he did accept the assistance of his friends to drive him to the doctors on occasions, to cook his meals and to pay his bills.  His evidence was not that he was incapable of doing these tasks, but it made it easier for him to have the assistance.  This is consistent with a nil functional impairment

    Social/recreational activities and travel

41. The Applicant’s evidence was that he has not engaged in social or recreational activities since his accident in 2013, although he gave evidence that he maintains contact with friends via Facebook, travelled by himself to Cambodia to meet with the woman who he subsequently married and stayed in the country for seven weeks in 2017.  He also indicated that he uses public transport independently and is able to find the correct tram and connections himself.  Based on this evidence, the Tribunal assesses this criterion as indicating a mild functional impact.

    Interpersonal relationships

1. The Applicant gave evidence that he lives in a communal setting, sharing a three-bedroom house with a friend, another friend and his wife.  He explained that he has a cooperative arrangement with these people whereby they provide support to him in various ways.  He also said that he has long standing friends with whom he maintains contact principally via social media, although he has now ceased to have personal contact.  He also gave evidence that he was able to travel to Cambodia and establish a relationship with the woman he subsequently married.  There is no evidence that the Applicant has strained relationships with tension or arguments or that he has trouble sustaining relationships. Having regard to this evidence the Tribunal is satisfied that this criterion indicates a nil functional impact.

   Concentration and task completion

2. The Applicant gave evidence that he can only concentrate on the television for a short time and that he gets dizzy if he reads. The report from his psychologist noted that his condition involves impairment of concentration, memory and information processing capacity.[17] There was no indication that the Applicant’s condition had improved since the qualification period and he was able to participate in the hearing by telephone for a total elapsed period of five hours, albeit with several breaks, including a lunch adjournment.  Based on this evidence, the Tribunal is satisfied that this criterion indicates a mild functional impact.

   Behaviour planning and decision-making

   [17] T40 at p.148

3. The Applicant gave evidence that he is the owner of the house in which he lives and attends to the collection of rent from his tenants, payment of his mortgage and the payment of various bills with his main source of income being Centrelink payments.  He is also able to attend medical appointments and has his own system for remembering when they are scheduled.  He also arranged his own travel to Cambodia in 2017.  In presenting his own case to the Tribunal, the Applicant was well organised and seemed aware of the issues to be addressed.  While his treating doctors have noted that his condition has resulted in the impairment of concentration, memory and information processing capacity, there is no evidence that the Applicant has displayed unusual behaviours that could disturb others or that he has occasional outbursts or thoughts that are significantly and frequently disturbed.  Based on this evidence, the Tribunal is satisfied that this criterion indicates a mild functional impact.

   Work/training capacity

4. The clear view of the Applicant’s treating doctors is that he is not capable of coping with normal demands of a job which is consistent with his education and training and would be unable to attend work, education or training on a regular basis over a lengthy period due to his mental health condition.  There is no evidence that he has occasional interpersonal conflicts that would warrant an intervention by a superior. Based on the medical evidence, the Tribunal accepts that this criterion indicates a severe functional impact as described in the Table.

5. An overall rating under Table 5 requires that the person satisfy a majority of the criteria at the relevant level. The Applicant rated severe under one of the criteria, mild under three and two were rated nil. On this basis, the Tribunal is satisfied that the Applicant’s impairment from his anxiety and depression has a mild functional impact and warrants a rating of 5 points under Table 5. 

6. The total impairment rating for the Applicant’s conditions under the Impairment Tables is therefore 10 points.

   CONCLUSION

7. For the reasons discussed, the Tribunal is satisfied that the Applicant has a physical, intellectual or psychiatric impairment as required by s 94(1)(a) of the Act, but he does not meet the qualification criterion for a DSP under s 94(1)(b) of the Act that he have an impairment or impairments which rate 20 points or more under the Impairment Tables. Accordingly, the Applicant was not qualified for a DSP at the date of his claim.

8. It is unnecessary for the Tribunal to consider the other matters raised in the Respondent’s submissions.

   DECISION

9. The Tribunal affirms the decision under review.

I certify that the preceding 50 (fifty) paragraphs are a true copy of the written reasons for the decision of Member Richard West

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

Associate

Dated: 2 December 2020

Date of Hearing:	28 September 2020
Applicants:	Self Represented
Advocate for the Respondent	Naoimh Donaghy
Solicitors for the Respondent	Australian Government Solicitor