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

[2018] AATA 1824

Du and Secretary, Department of Social Services (Social services second review) [2018] AATA 1824 (18 June 2018)

Division:GENERAL DIVISION

File Number(s):      2017/5334

Re:Jian Xin Du

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Bill Stefaniak AM RFD, Senior Member

Date:18 June 2018

Place:Sydney

The decision of the Administrative Appeals Tribunal (Social Security & Child Support Division), dated 22 August 2017, is affirmed.

.............................[SGD]...........................................

Bill Stefaniak AM RFD, Senior Member

Catchwords

SOCIAL SECURITY – disability support pension – whether disability is fully diagnosed, treated and stabilised – whether applicant’s impairments attract 20 points or more under the Impairment Tables during the relevant period – continuing inability to work because of impairments – decision under review affirmed

Legislation

Social Security Act 1991 (Cth), s 94
Social Security (Administration) Act 1999 (Cth), Schedule 2

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

REASONS FOR DECISION

Bill Stefaniak AM RFD, Senior Member

18 June 2018

INTRODUCTION

1. On 18 October 2016, the applicant lodged a claim for disability support pension (DSP).

2. The claim was rejected by Centrelink, both initially on 14 February 2017 and on review on 5 June 2017, on the basis that the applicant did not satisfy the requirements of section 94 of the Social Security Act 1991 (Cth)(the Act).

3. In the decision of the Administrative Appeals Tribunal (Social Services & Child Support Division) (the AAT1 decision) dated 22 August 2017, Presiding Member Dr Tim Bohane

   
   

   (a qualified Professor of Medicine familiar with the ailments suffered by the Applicant) affirmed the decision under review.

4. The AAT1 assigned the applicant 10 points under Table 2 - full cervical radiculopathy - and 10 points under Table 4 - spinal function. The Member did not award any impairment points for chronic pain (Table 1) as it had not been fully diagnosed, treated and stabilized as at the date of application. Similarly, no points were awarded under Table 5 for the applicant’s mental health conditions.

5. The AAT1 noted that the applicant had not undertaken a program of support and as the applicant had not received 20 points for any one condition this was fatal to his claim.

   
   

   The AAT1 was not persuaded that the applicant was unfit for all future work and felt he would be able within two years to undertake 15+ hours per week of work.

6. On 6 September 2017, the applicant applied to the General Division of the AAT for a review of the AAT1 decision. The matter was heard on 15 March 2018 in Sydney and the applicant appeared in person supported by his son Mr Ling Yun (Michael) Du and an interpreter.

   RELEVANT LEGISLATION AND ISSUES

7. Section 94(1) of the Act provides that a person qualifies for DSP 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) (i) the person has a continuing inability to work as defined in section 94(2) of the Act];

8. In accordance with the requirements of Schedule 2 of the Social Security (Administration) Act 1999 (Cth), to qualify for the DSP, the applicant must satisfy the requirements of section 94 of the Act as at the date of his claim or within 13 weeks of lodging the claim, namely between 18 October 2016 and 17 January 2017 (the qualification period).

9. The applicant provided as evidence before the Tribunal medical certificates from a number of general practitioners including Dr Brown (dated 2 December 2104), Dr Moe from South Australia  (dated 19 October 2016), and Dr Ting (dated 29 June 2017). Dr Ting also supplied a general practitioner management plan dated 3 March 2017.

   
   

   Further medical certificates were supplied by Liverpool general practitioner Dr Huang dated 10 November 2016 and 28 May 2017.

10. These documents stated that the applicant, as at the date of his application, suffered from cervical radiculopathy, lower back pain and psychological issues. The applicant also supplied a medical certificate from Dr Ting dated 27 September 2017 which stated that in addition to suffering from chronic pain neck lower back and upper limb problems, the applicant also suffered from chronic anxiety and depression and adjustment disorder with anxious and depressed mood. He further added that he suffered from “anger feelings”.

11. It was not disputed that the applicant had medical conditions that caused physical and psychiatric impairments and he therefore satisfied section 94(1)(a) of the Act at the time of his claim for DSP.

12. Accordingly, the issues this Tribunal must determine in this matter are whether, during the claim period, the applicant had:

    (a) an impairment rating of 20 points or more under the Impairment Tables; and

    (b) a continuing inability to work as defined in section 94(2) of the Act.

    DOES THE APPLICANT HAVE MEDICAL CONDITIONS THAT CAN BE RATED

    
    

    20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES?

13. The Social Security (Tables for the Assessment of Work Related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables Determination) requires that an impairment rating can only be assigned if the condition causing that impairment is “permanent“.

14. As set out in paragraph 6(4) of the Impairment Tables Determination, a condition is permanent if it:

    ·has been fully diagnosed by an appropriately qualified medical practitioner; and

    ·has been fully treated; and

    ·has been fully stable; and

    ·is more likely than not to persist for more than two years.

15. The impairment tables describe functional activities, abilities, symptoms and limitations, and are designed to assigned ratings to determine the level of functional impact of impairment.

16. Relying on the evidence before me, I consider that the applicant’s medical conditions for the purposes of his claim for the disability support pension are the following:

    ·upper limb function (cervical radiculopathy);

    ·spinal function (cervical disc degenerative disease);

    ·chronic anxiety and depression;

    ·chronic widespread pain; and

    ·left knee and hernia.

17. I will consider each of these medical conditions and their relevant rating if applicable under the impairment tables after making some general comments by way of background.

    BACKGROUND

18. The applicant came to Australia when he was 33 years old in 1991. He told the Tribunal, as did his son, that he initially worked in South Australia for five years for Sims Metal stacking very heavy batteries in the hot sun. It was hard work and he started developing back problems. He then worked in a factory in South Australia for 10 years making furniture.

19. He would make 12 to 13 sofas a day which required him to make the frame and pack and assemble the sofas. He worked 12 hours a day, 6 days a week. He said this was very painful work.

20. He found he would often only be able to sleep 3 to 4 hours per night because of the pain in his back, upper limbs and elsewhere in his body. He subsequently had to stop work because his arms were going numb and he could not grasp anything. He had surgery in an attempt to fix this problem but it not help and he did not recover. He left the factory in 2010.

21. He had been on workers compensation until late 2014. As part of the Workers Compensation requirements, WorkCover attempted to get him back into work initially as a bus driver. However, his arms were too painful and he could not handle the wheel properly. The applicant worked in this position for three days. He then worked in a security job at a car park where he could not stand for the two to three hours required as his back and neck hurt too much.

22. His son indicated that his father was a very hard worker who had instilled in him a strong work ethic.

23. Both the applicant and his son confirmed to the Tribunal that the applicant would love to work but that he simply could not. This concerned the applicant greatly as he felt useless.

24. The Tribunal has no reason to doubt the sincerity of the evidence given by the applicant and his son. Indeed, the son was a very articulate and impressive man who had a good job, a bright future, and who seemed very willing to do all he could to help his father.

25. Both father and son also gave evidence that the applicant would drink tea and would eat very little, mainly two slices of bread, and that he had limited abilities in doing housework, standing or sitting for long periods, or walking any great distance.

26. The applicant’s son further stated that the applicant’s condition was slowly deteriorating over time and that he was particularly concerned about his father’s mental health.

27. The Tribunal during the hearing made certain observations and noticed that the applicant was able to move his arms around and indeed at one stage he got very upset and became very angry. He got up very quickly, raised his voice and gesticulated in a very agitated manner. The Tribunal notes his frustration and can understand his anger.

28. He was able to get up and down himself without assistance and was able to pick up a cup of water from the bar table and drink from it.

29. The Tribunal will refer to further evidence given by the applicant and his son and the various medical documents when dealing with each individual assessable condition.

30. It should be noted that each of the impairments have to be assessed as at the date of the claim period, namely between October 2016 and January 2017.

    UPPER LIMB FUNCTION

31. The Job Capacity Assessor (JCA), the Authorised Review Officer (ARO), and the AAT1 all awarded 10 points under Table 2 for this condition.

32. The JCA, in a report dated 31 January 2017, stated that the applicant could satisfy four of the six descriptors for an impairment rating of 10 points (see Tribunal Documents pages 141-142).

33. It should also be noted that the applicant has been reviewed by a neurosurgeon who did not believe surgery was essential given that the applicant was not especially keen on surgery on his neck and that he used Voltaren and pain killers (Panadol) to deal with the pain.

34. Under Table 2, the tables refer to the functional impact on activities using one’s hands or arms. It should be noted that a person can have full use of one arm and hand and not any use of the other and still have significant abilities to do the activities listed.

35. The applicant gave evidence that he used to be right-handed but had great difficulty using that hand now and had to use his left hand as he found that easier. He said he had pain in both arms and hands.

36. The applicant’s evidence before the Tribunal indicated that he had difficulty picking up a one litre carton of liquid. He could pick up a light but bulky object by using two hands (mainly utilising his left hand to do so) and that he could use a pen or pencil but could not do much more now than sign his name. Furthermore, if he took his time and used his left hand he could do up buttons and tie shoelaces.

37. He stated he did not use a computer and that he could not unscrew a lid on a soft drink bottle but he could pour from the bottle.

38. It is clear to the Tribunal that from the applicant’s evidence, the observations the Tribunal itself made, the applicant’s son’s evidence, and the medical evidence supplied, the applicant certainly qualifies for 10 points as this condition has a moderate functional impact on activities using his hands and upper limbs.

    Can the applicant qualify for 20 points under the Table?

39. To do so he must satisfy 3 out of the 5 descriptors. From the evidence given by the applicant and his son, the evidence in the medical documents before the Tribunal, and the Tribunal’s own observations, it appears that he does have limited movement and coordination in both arms and both hands and that he is getting to a stage where one could say that he is having severe difficulty using a pen or pencil. Furthermore, he does not use a keyboard (because he does not know how to) and he can use his left hand to turn the pages of the book without assistance. He also does not have severe difficulty handling, moving, or carrying most objects.

40. It is fair to say that he has difficulties rather than severe difficulties performing most of the descriptors necessary to get 20 points under Table 2 and so 10 points is the correct allocation.

    SPINAL FUNCTION

41. The AAT1 noted that the applicant was able to drive for half an hour, sit for 15 minutes and stand for 20 minutes. It also found he could lift himself out of a chair unassisted and bend to knee level and that he had a limited range of neck movements because such movements aggravated the pain and he was unable to sustain overhead activities.

42. This Tribunal also noted that he was certainly able to sit for half an hour or so and also stand up without assistance.

43. The applicant told the Tribunal that he was able to stand for about 20 minutes and indeed did so when he last went to the airport earlier this year to go to Adelaide. He told the Tribunal that: “I can sit for half an hour and stand up”.

44. It should also be noted he went to China on his own in 2017.

45. He stated when he goes to Adelaide he tends to look after himself and would wash his clothes with assistance at a laundromat.

46. He further said that if he could not look after himself, he would go to Sydney and stay with his son for a while.

47. He added that he would go to the local supermarket and would buy a bunch of vegetables which he would carry home in his left hand as he could not quite handle carrying a basket.

48. From the evidence before the Tribunal, both in reports and given orally by the applicant and his son, the Tribunal is satisfied that the applicant is able to sit in or drive a car for at least 30 minutes, (he can drive for half an hour to see his doctor), he cannot sustain overhead activities, and he finds it hard to move his head to look in all directions (i.e. to look over his shoulder).

49. He can bend forward to pick up light objects such as a cup from a table but may struggle if it was at knee height. He does not need assistance to get up out of a chair. Accordingly, he satisfies at least one of the descriptors necessary to qualify for 10 points under

    
    

    Table 4.

    Can he qualify for 20 points under Table 4?

50. To do so he must be unable to do any one of the descriptors therein; namely he has to be unable to perform any overhead activity, or turn his head and/or bend his neck without moving his trunk, or bend forward to pick up a light object from a desk or table, or remain seated for at least 10 minutes.

51. The Tribunal observed him remaining seated well over 10 minutes and bending forward to pick up a cup of water from the table. He was also able to turn his head and bend his neck without moving his trunk. There is no evidence that he was unable to perform any overhead activities at the relevant time.

52. Accordingly, the AAT1  was correct in awarding 10 points.

    MENTAL HEALTH CONDITION

53. The Tribunal looked very carefully at this condition as it was obvious that the applicant has some significant issues with depression, anxiety and indeed anger management. These all seem to stem from his 2010 injury and his frustration that he can no longer do what he would like to do physically.

54. The Tribunal looked particularly carefully at Dr Christine Brown’s report dated 4 December 2014 (see page 100 to 101 of the Tribunal Documents). Dr Brown stated that she is a consultant occupational physician who examined the applicant. She also had access to some additional material. One part of the additional material she had access to was a medical report from a psychiatrist, Dr Gill, dated 22 October 2013.

55. In discussing the applicant’s current symptoms, restrictions and disabilities, Dr Brown stated: “there is an adjustment disorder with depressed mood and paranoia, which, in the opinion of treating psychiatrist Dr Shane Gill, is substantially the result of Mr Du’s widespread chronic musculoskeletal pain and disability” (see page 101 of the Tribunal Documents).

56. When asked her views in regard to future treatment which may still be required, including operative treatment, periodic treatment – i.e. physiotherapy et cetera – or otherwise,

    
    

    Dr Brown stated that: “Mr Du has been involved with a number of treatments over the last several years, with only minor beneficial effects. In my opinion he requires review by a treating psychiatrist, following the departure of Dr Shane Gill.”

57. The respondent and the AAT1 were not prepared to accept Dr Gill’s diagnosis because it was not available to the Tribunal. This Tribunal notes this. However, on the basis that

    
    

    Dr Brown has clearly seen that diagnosis, this Tribunal would accept it as a diagnosis.

58. The problem is that, in Dr Brown’s opinion, the applicant required review by a treating psychiatrist following Dr Gill’s departure. This indicates to this Tribunal that while there had been a diagnosis, this was not something at the relevant time that was fully treated and stabilised.

59. Accordingly, no points can be awarded for it.

60. That said, this Tribunal notes that, now, as at 2018, the applicant may well have severe difficulties with a number of the six descriptors necessary to achieve 20 points under table 5. To achieve the 20 points, the applicant would need to satisfy four of the descriptors and would have to demonstrate that he had severe difficulties with them. The Tribunal notes that even at present he may have difficulty satisfying the descriptor  for self-care and independent living in that he appeared to be able to live independently for periods of at least a week or so without any assistance from a family member, friend, or support worker (i.e. when he goes to Adelaide).

61. The Tribunal notes that he did appear to have difficulties which may well be severe in relation to his social and recreational activities such as travelling alone to familiar areas such as local shops but may not satisfy this descriptor in relation to travel as he still obviously travels alone between Sydney and Adelaide.

62. The Tribunal feels that he certainly has severe difficulties with interpersonal relationships and has difficulty interacting with other people. He snapped at some questions asked by the respondent during the Tribunal hearing and his son gave evidence that he had recently got into an argument with a young man in a car park for no apparent reason.

63. The Tribunal notes that there was no real evidence one way or the other in relation to concentration and task completion nor was there in relation to work in a training capacity. However, it seems quite likely that he would be unable to attend any training or work on a regular basis due to his ongoing mental illness and there did appear to be evidence indicating a not insignificant difficulty with his behaviour. It would be harder to say he had severe difficulties with his thoughts and concentration, being significantly and frequently disturbed.

64. This Tribunal would recommend that his son pay for him to see a psychiatrist and take along the Impairment Tables, especially Table 5, so that the applicant can be properly assessed.

65. However, for the reasons given above, this condition was not fully treated and stabilised at the relevant time.

    CHRONIC PAIN

66. The Tribunal notes the comment by the AAT1 that as at the relevant period the applicant had not been assessed by a pain specialist and was treating his pain by taking Panadeine Forte.

67. It is also correct to point out that pain in certain parts of the body is also relevant as part of an assessment under other tables, for example in the applicant’s case Tables 2 and 4.

68. Nevertheless, if a pain specialist were to assess the applicant, the relevant table to have regard to would appear to be Table 1. It would appear to this Tribunal that the pain the applicant suffers when performing any activities may well qualify him (if it could be separated from other tables to fall within Table 1) for 10 points and possibly 20 if it could be said that he was unable to perform light day-to-day household activities, for example, folding and putting away laundry or light gardening (see descriptor (a)(iv)).

1. Whilst on the evidence he would not qualify under the other three descriptors listed, he may qualify under descriptor (a)(iv) and (b) as he certainly has difficulty and is likely to have difficulty sustaining any work related tasks of a clerical, sedentary, or stationary nature for a continuous shift of at least three hours.

2. Again, it would be sensible if he were to see a pain specialist and this is something that his son may wish to take up for him.

   LEFT KNEE AND HERNIA

3. The first medical report in relation to the applicant’s left knee pain and minor degenerative changes is from Dr Solanki, dated 1 March 2017. This is outside the qualification period and, therefore, cannot be considered.

4. In July 2012, the applicant had an operation to repair his hernia. However, there is no further documentation provided in relation to this matter and, accordingly, there is no evidence that his hernia has any impact or functional impact on his activities.

5. It should be noted that the applicant has stated that he has commenced seeing a specialist doctor in relation to these two matters. They did not appear to be referred to during the claim period and, therefore, they cannot be assessed.

   DOES THE APPLICANT HAVE A CONTINUING INABILITY TO WORK BECAUSE OF HIS IMPAIRMENTS?

6. The applicant satisfies section 94(1)(b) of the Act as he attracts an overall rating of 20 points under the tables.

7. However, as he has not obtained 20 points under a single table he has to satisfy the criteria in section 94(1)(c) of the Act. Namely, he has to have actively participated in a program of support, which he has not done. He also has to satisfy the requirement that his impairment is of itself sufficient to prevent him from doing any work independently of a program of support, or undertaking a training activity within the next two years.

8. As the applicant has not participated in a program of support (which he has to do for 18 months out of a three-year period), unless he can obtain 20 points for any one category under the impairment tables, he cannot qualify as at the claim period for a DSP. .

9. In relation to an assessment of his impairments being of themselves sufficient to prevent him from doing any work independently of a program of support within the next two years, this Tribunal does not have to decide this as he has not done a program of support.

10. However, this Tribunal would say on the evidence before it that it finds it very unlikely, for a number of reasons,that this applicant will ever be able to work again in any job in Australia for 15 hours a week or more.

11. The Tribunal says this, noting that it is something the Tribunal does not need to formally find for the reasons given above.

12. However, the Tribunal is satisfied from the evidence before it that:

    ·The applicant would like to work;

    ·The applicant has been trialled in several jobs, namely as a bus driver and a security guard in a car park, but was unsuccessful because of his ailments;

    ·The applicant has significant difficulties in terms of his sleeping patterns, the pain he suffers, the limited amount of tasks he can do around the house, and the limited activity he can undertake as a result of his physical disabilities; and

    ·The Tribunal has witnessed the applicant get highly agitated as a result of some quite reasonable, but to his mind offensive, questioning properly and politely put to him during cross examination.

13. The Tribunal hastens to add that the outburst by the applicant in the hearing and the frustration he expressed is quite understandable and the Tribunal is not being critical of him but notes that this is simply a symptom of his mental health problems, namely his depression and anxiety.

14. Such mental health problems, however, would make it very difficult for anyone to hire the applicant who has sufficient issues due to his physical disabilities let alone further potential mental health outbursts which could cause occupational health and safety issues for other workers in any workplace as well as to members of the public who may come into contact with him.

15. It is the Tribunal’s view that these factors make it very difficult and highly unlikely that the applicant would be able to do any meaningful work in the future especially if his mental health problems cannot be overcome.

    CONCLUSION

16. For the reasons given above, as at the claim period, this Tribunal finds that the applicant qualified for 10 points under Tables 2 and 4 respectively. However, as he had not completed the program of support or even enrolled in one, he failed to qualify for a DSP. Accordingly, this Tribunal affirms the decision of the AAT1.

17. However, the Tribunal notes that some of the applicant’s conditions appear to have deteriorated and that it would appear prudent that he see a psychiatrist and perhaps a pain specialist to obtain a formal diagnosis and updated appraisal of his conditions measured against the relevant impairment tables, namely Tables 5 and 1 respectively.

18. It would also be prudent for his general practitioner to further assess him with reference to Tables 2 and 4 and assess him in relation to any ongoing issues with his knee and hernia.

19. It may well be that the respective health professionals may find that he satisfies the requirements to obtain 20 or more points under any one of the abovementioned tables.

20. The applicant and his son need to understand that if a person’s circumstances change, they are entitled to submit a new application for the DSP at any time. It is a matter of simply satisfying the required criteria.

    DECISION

21. The decision of the Administrative Appeals Tribunal (Social Security & Child Support Division), dated 22 August 2017, is affirmed.

I certify that the preceding 89 (eighty-nine) paragraphs are a true copy of the reasons for the decision herein of Bill Stefaniak AM RFD, Senior Member

...............................[SGD].........................................

Associate

Dated: 18 June 2018

Date(s) of hearing:	15 March 2018
Advocate for the Applicant:	Mr L Yun Du
Solicitors for the Respondent:	Mr G Lozynsky