Dinh and Secretary, Department of Social Services (Social services second review)
[2017] AATA 2778
•20 December 2017
Dinh and Secretary, Department of Social Services (Social services second review) [2017] AATA 2778 (20 December 2017)
Division:GENERAL DIVISION
File Number: 2017/1996
Re:Van-Thinh Dinh
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Senior Member Britten-Jones
Date:20 December 2017
Place:Adelaide
The decision under review is affirmed.
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Senior Member Britten-Jones
CATCHWORDS
SOCIAL SECURITY - pensions, benefits and allowances - disability support pension - whether conditions fully diagnosed, treated and stabilised in the relevant period - whether applicant has 20 points or more under the Impairment Tables - whether applicant should be rated under Table 1 or Table 4 - decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth), s 94
Social Security (Administration) Act 1999 (Cth)
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension
REASONS FOR DECISION
Senior Member Britten-Jones
20 December 2017
On 28 July 2016 the applicant lodged a claim for disability support pension (DSP) which was rejected both at first instance and upon review by a Centrelink authorised review officer. The decision to reject the application for a DSP was affirmed by the Social Services and Child Support Division of the Administrative Appeals Tribunal on 31 March 2017.
The issue before me is whether the applicant was qualified to receive a DSP in relation to the claim lodged on 28 July 2016 or within the 13 weeks thereafter (the assessment period).[1] The Tribunal is required to address the issue of qualification strictly by reference to the assessment period and the facts as they were during the assessment period.[2]
[1] Social Security (Administration) Act 1999, Schedule 2, clause 4.
[2] Secretary, Department of Social Services and Smith [2015] AATA 578.
LEGISLATION
Qualification for a DSP is governed by s 94 of the Social Security Act 1991 (the Act). It provides relevantly as follows:
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
…
Continuing inability to work
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support--the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases--the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases--either:
(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking a training activity--such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Note: For work see subsection (5).
(3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a)the availability to the person of a training activity; or
(b)the availability to the person of work in the person's locally accessible labour market.
…
Severe Impairment
(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.
The respondent accepts that the applicant satisfies s 94(1)(a) of the Act namely that the applicant had a physical impairment during the assessment period.
Paragraph 94(1)(b) of the Act – impairment rating of 20 points or more
The Impairment Tables set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) contains provisions for the assessment of a person’s impairment for the purposes of s 94(1)(b) of the Act.
It is the applicant’s contention that there is a severe functional impact on activities requiring physical exertion or stamina and that accordingly the applicant should be allocated 20 points under Table 1 which relates to functions requiring physical exertion and stamina.
The respondent submits that Table 1 is not applicable and that the appropriate table for the applicant is Table 4 relating to spinal function. The respondent accepts that there is a moderate functional impact on activities involving spinal function of the applicant and that he is accordingly entitled to be allocated 10 points under Table 4.
BACKGROUND FACTS
The applicant came to Australia from Vietnam in 1981 and got a job in 1982. His most recent job commenced in about 1997 at Bridgestone working on the processing line until he sustained an injury and finished in 2012. He was on WorkCover for a period and was eventually made redundant. He lives with his two children who are aged in their 30”s. The applicant was represented at the hearing by his daughter, Qui Dinh. Ms Dinh made submissions on the applicant’s behalf referring to the medical evidence and the other documents contained within the s 37 documents.
During the hearing Ms Dinh raised a concern that the job capacity assessment officer was not a fully qualified medical practitioner and that he had not been assessed for the relevant purpose of determining his medical conditions and the impairments arising there from. Ms Dinh referred to the Job Capacity Assessment report dated 8 September 2016 and the employment services assessment report dated 22 June 2016 in that regard.
The Tribunal is not bound by any findings made by the job capacity assessment officer and is required to consider afresh all of the medical and other evidence to determine whether the applicant is entitled to a DSP.
MEDICAL EVIDENCE GIVING RISE TO IMPAIRMENTS
In the application lodged on 28 July 2016 the applicant listed his disabilities, illnesses or injuries as “cervical spondylosis- neck pain (severe)” and “hypothyroidism – fatigue (throat conditions that causes fatigue and pain)”. He listed the treatment that he is receiving as medication and physiotherapy.
Cervical Spondylosis
The respondent accepts that the applicant’s condition of cervical spondylosis is fully diagnosed, treated and stabilised for the purposes of the Act. There is a significant amount of medical evidence in support of this condition. An x-ray of the cervical spine was taken on 30 April 2013 and a conclusion reached that “there is congenital fusion of the C4 and C5 vertebral bodies with moderate narrowing of C6/7 and C7/T1.”
The applicant was treated by Dr Thoo and Dr Ng from the One Care Medical Centre in Pennington. Dr Thoo prepared a report dated 16 June 2015 finding that the applicant had chronic neck and shoulder injuries and is only able to work 2-3 hours per day for 3 days a week. In a later report dated 28 July 2015 Dr Thoo noted the condition of cervical spondylosis and refers to right arm radicular pain. In his reports dated 10 November 2015 and 15 June 2016 Dr Thoo refers to the applicant’s severe neck and shoulder pain which has not improved with physiotherapy and medication. He concludes that the applicant has evidence of advanced degenerative disease in his cervical spine and shoulders and that the condition will not improve with time and is likely to deteriorate.
The report that is closest in time to the relevant assessment period of July to October 2016 is the report from Dr Ng dated 14 July 2016 which lists as a condition the cervical spondylosis and cervical spine degeneration. Dr Ng lists the current systems as posterior neck pain and daily headaches. The impact on the applicant’s ability to function is described by Dr Ng as “impacts physical work including bending, sitting, standing, lifting moderate to severe.”
As to whether the applicant’s ability to function is expected to improve within the next two years Dr Ng says “degenerative changes not likely to improve”.
It is these statements as to the impact on the applicant’s ability to function that Ms Dinh relied upon in support of her assertion that the applicant was entitled to 20 points under Table 1. She considered that Dr Ng’s reference to ‘physical work’ meant that Table 1 relating to physical exertion and stamina was the relevant table.
Table 1 is used to assess functional impairment when performing activities requiring physical exertion or stamina. To be eligible for 20 points under Table 1 a person must experience symptoms, such as shortness of breath, fatigue, cardiac pain or chronic pain, when performing light physical activity and be unable to do at least one of the activities listed under point (1)(a).[3]
[3] Guidelines to the Tables for the Assessment of Work-related Impairment for DSP (the Guidelines) at 3.6.3.10
Conditions causing impairment that are commonly assessed using Table 1 include heart disease, lung disorders, asthma, autoimmune conditions, chronic fatigue syndrome and fibromyalgia.[4] Impairments that should not be assessed using Table 1 include the restriction of physical activity due to musculoskeletal conditions such as severe arthritis or spinal problems.[5]
[4] The Guidelines at 3.6.3.10.
[5] The Guidelines at 3.6.3.10.
I reject the applicant’s contention that the cervical spondylosis should be rated under Table 1. The appropriate table is Table 4 relating to spinal function. The impact of this condition on the applicant when bending, sitting, standing or lifting is described by Dr Ng as “moderate to severe”. I am prepared to accept this assessment for the purpose of providing a rating under Table 4. Where an impairment is considered as falling between two impairment ratings, namely moderate and severe, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[6] On that basis I find that the applicant is entitled to 10 points under Table 4 because there is a moderate functional impact on his activities involving spinal function arising from the cervical spondylosis.
[6] Paragraph 11(1)(c) of the Rules for applying the Impairment Tables at Part 2 of the Determination.
Hypothyroidism
The second condition listed by Dr Ng in the report of 14 July 2016, is hypothyroidism, with the condition being suffered since 2001. Dr Ng’s report listed the current treatment as thyroxine since November 2015. The impact on ability to function is described by Dr Ng as “causes some tiredness at times. Otherwise nil effect.”
The applicant was referred to an endocrinologist on 2 May 2017 for management of his hypothyroidism. The report from Dr Laddipeerla from the Department of Endocrinology at the Queen Adelaide Hospital recorded that the applicant was a known patient of hypothyroidism for more than 20 years and that he was currently taking 75mcg of thyroxine and was “doing well” with “nil acute issues”.
I consider that on the balance of probabilities this condition of hypothyroidism was fully diagnosed, treated and stabilised during the assessment period between July and October 2016. Table 1 is applicable for hypothyroidism. Based on the medical reports from Dr Ng and the endocrinologist Dr Laddipeerla, I find that there is no functional impact on activities involving physical exertion or stamina arising from the hypothyroidism and accordingly that zero points would be allocated under Table 1.
Other Conditions
I note that Dr Ng lists no other conditions beside the cervical spondylosis and hypothyroidism in his report dated 14 July 2016. An earlier report from Dr Thoo dated 28 July 2015 listed the condition of osteoarthritis of the left knee. There is no evidence to suggest that this diagnosis has been confirmed by a specialist and given that this condition was not referred to in the more contemporaneous medical report from Dr Ng I consider that this condition was not fully diagnosed, treated and stabilised during the assessment period and therefore cannot be assigned an impairment rating.
I reach the same conclusion with respect to the condition of right shoulder bursitis which is referred to in the medical certificates of Dr Thoo dated 8 November 2012, 26 February 2013, 30 April 2013, 28 October 2014, 2 December 2014, 10 July 2017 and 12 September 2017. There is some reference to some impairments from this condition in the job capacity assessment report dated 9 November 2015 but without any corroborating evidence I conclude that this condition was not fully diagnosed, treated and stabilised during the assessment period and that an impairment rating cannot be given.
A medical certificate of Dr Thoo dated 27 August 2015 stated that the applicant suffered from right tennis elbow but without any further evidence of a medical nature or to corroborate the impairment of this condition I conclude that it was not fully diagnosed, treated or stabilised during the assessment period and it cannot be given an impairment rating.
CONCLUSION
The applicant has failed to achieve the necessary 20 points in order to satisfy s 94(1)(b) and given that the subsections in s 94(1) are cumulative, the applicant has failed to establish an entitlement to a disability support pension.
DECISION
The decision under review is affirmed.
I certify that the preceding 27 (twenty -seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Britten-Jones
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Administrative Assistant
Dated: 20 December 2017
Date(s) of hearing: 27 November 2017 Advocate for the Applicant: Ms Q Dinh Advocate for the Respondent: Ms J Edwards Solicitors for the Respondent: Department of Human Services
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