HANG THU HUYNH and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 307

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 307

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V 200600291

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		HANG THU HUYNH

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Regina Perton

Date4 May 2009

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) Regina Perton

Member

SOCIAL SECURITY – disability support pension – whether 20 impairment points – whether ability to work or retrain – whether condition stabilised and treated – decision affirmed

Social Security Act 1991 s 94(1), s 94(2), Schedule 1B

Huynh v Centrelink [2007] FMCA 593

Re Baum and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 1066

REASONS FOR DECISION

4 May 2009 Regina Perton       

1.      Ms Hang Thu Huynh is in her early forties.  She suffers from a number of physical and psychiatric problems.  She has been out of the workforce for many years and has been reliant on parenting payments for income.  On 7 June 2005 Ms Huynh applied to Centrelink for disability support pension (DSP).  Centrelink delivers services for the Department of Families, Housing, Community Services and Indigenous Affairs.  On 20 July 2005 a Centrelink officer refused the application.  Ms Huynh’s medical condition was initially assessed as warranting an impairment rating of 25 points under the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Impairment Tables) in Schedule 1B of the Social Security Act 1991 (the Act).  However, the assessing doctor determined that Ms Huynh had a capacity to work in light duties for more than 30 hours per week.  On 13 December 2005 a Centrelink authorised review officer (ARO) reviewed the decision.  The ARO determined that Ms Huynh should be allocated 15 points for her condition, rather than the 25 points originally allocated.  The ARO also noted that Ms Huynh had been diagnosed with obsessive compulsive disorder (OCD) since the application for DSP had been lodged but that he could not allocate any impairment points to that condition as it had not yet been fully treated. 

2.      On 15 March 2006 the Social Security Appeals Tribunal (SSAT) affirmed the decision to refuse DSP.  Ms Huynh lodged an application for review of the SSAT decision with this Tribunal on 13 April 2006.  On 22 February 2007 the Tribunal, differently constituted, affirmed the decision that Ms Huynh was not eligible for DSP.

3.      Ms Huynh lodged an appeal against the Tribunal’s decision in the Federal Court on 27 March 2007, which was subsequently transferred to the Federal Magistrates’ Court.  On 9 May 2008 Federal Magistrate Riethmuller allowed Ms Huynh’s appeal on the basis that the Tribunal had made an error of law and remitted the matter to the Tribunal to be determined by a differently-constituted Tribunal (Huynh v Centrelink [2007] FMCA 593).

4.      The issue before the Tribunal is whether Ms Huynh satisfied the requirements for DSP as at 7 June 2005 (the date of her claim) or within 13 weeks of that date.

RELEVANT LEGISLATION

5.      The requirements for qualification for DSP (prior to 1 July 2006) are set out in s 94 of the Act as follows:

94(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;

…

94(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

(a)the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years; and

(b)either:

(i)the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or

(ii)if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training—such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.

…

94(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 educational or vocational training or on-the-job training; or

(b)if subsection (4) does not apply to the person—the availability to the person of work in the person's locally accessible labour market.

94(4)    For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do work, have regard to the likely availability to the person of work in the person's locally accessible labour market.

94(5)    In this section:…

work means work:

(a)that is for at least 30 hours per week at award wages or above; and

(b)that exists in Australia, even if not within the person's locally accessible labour market.

6. The Impairment Tables, as they were at the time of Ms Huynh’s claim, are set out in Schedule 1B of the Act. The Introduction to Schedule 1B stated that:

…

4.  A rating is only to be assigned after a comprehensive history and examination.  For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.  The first step is thus to establish a working diagnosis based on the best available evidence.  Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating.  In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.

5.  The condition must be considered to be permanent.  Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future.  This will be taken as lasting for more than two years.  A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.

…

MS HUYNH’S MEDICAL CONDITIONS AND IMPAIRMENT ASSESSMENT

7.      In the application for DSP lodged on 7 June 2005, Ms Huynh indicated that she suffered from pain and other symptoms in her wrist, hands, fingers, feet and back.  In a Treating doctor’s report (TDR) accompanying the application, Ms Huynh’s general practitioner, Dr Dac Thong Bui, indicated that his patient suffered from bilateral carpal tunnel syndrome’ de Quervain’s tendonitis in her left wrist and back pain.  He indicated that the impact of these conditions on Ms Huynh’s ability to function over the next two years was uncertain.  Dr Bui provided the results of relevant tests undertaken since Ms Huynh became his patient in 2001.  The TDR form does not ask the treating doctor to assess the number of points under the Impairment Tables to which he believes his patient is entitled. 

8.      On 1 July 2005 Dr P Loewy of Health Services Australia (HSA) examined Ms Huynh.  He awarded Ms Huynh 25 points under the Impairment Tables.  He also concluded that:

On the evidence available, light work that allows her to sit or stand at will, and does not require forceful use of hands may be within her capacity.  This would need to be trialled, probably with the assistance of a vocational rehabilitation provider who should liaise with the treating doctor.

9.      Ms Huynh’s claim for DSP was rejected on 20 July 2005.  She subsequently provided Centrelink with a further report from Dr Bui and a report following an x-ray taken on 25 July 2005.  The additional documentation was provided to Dr Loewy.  On 5 September 2005 Dr Loewy indicated that he maintained the same view as in his report of 1 July 2005.

10.     On 19 October 2005 Centrelink received advice that Ms Sandra Nguyen, a psychologist, was treating Ms Huynh for obsessive compulsive disorder (OCD).  Ms Nguyen indicated that Ms Huynh appeared to have been suffering from the condition for about 11 years.  Ms Nguyen indicated that she had encouraged Ms Huynh to see her doctor and let him know about the condition which she had been too embarrassed to reveal. 

11.     Ms Huynh provided additional medical reports to the SSAT.  Dr Louis Luu provided a TDR dated 4 February 2006.  He indicated that Ms Huynh had been a patient at his practice since 4 February 2006.  Dr Luu stated that Ms Huynh was suffering from severe OCD and bilateral carpal tunnel syndrome.  He stated that surgery might be an option for the latter condition in the future.

12.     Ms Nguyen completed a report on 2 February 2006 in which she stated that Ms Huynh had not sought treatment for OCD from her doctor due to her feelings of shame and embarrassment, despite suffering from the condition for many years.  Ms Nguyen indicated that she had first diagnosed OCD on 22 September 2005.  On 11 March 2006 Ms Nguyen completed a further report in which she indicated that she had been counselling Ms Huynh on a weekly basis since 22 September 2005.  Ms Nguyen described the impact of the condition on Ms Nguyen, including its impact on her family and interaction with other people.  She described the condition as severe and very entrenched.

13.     Ms Huynh provided further medical reports to the Tribunal before its first review of her matter and more recently.  Dr Hieu Pham, consultant psychiatrist, prepared a report dated 26 May 2006.  Dr Pham diagnosed Ms Huynh as suffering from OCD.  He indicated that Ms Huynh should have a multi-disciplinary approach to her condition including medication and social treatment.  In a further report dated 7 June 2006, Dr Pham stated that he did not feel that this lady has been given an adequate trial of treatment and that her condition had not been stabilized at all.  In a further report dated 17 August 2006, Dr Pham stated that Ms Huynh’s condition may well have warranted at least 30 points under the Impairment Tables had her condition been fully treated but that in her one consultation with him, he could not consider her condition to be fully treated and stabilized. 

14.     Dr Stella S Y Kwong, consultant psychiatrist, prepared a report dated 17 October 2006.  She provided a comprehensive history and commented that Ms Huynh would be unfit for any gainful employment in the following two years.  She reported that Ms Huynh had coped with her illness in the past by leading an isolated life but that when under stress, she would experience generalized anxiety, depression and OCD.   Dr Kwong also provided a letter dated 18 January 2007 indicating that at Ms Huynh’s Tribunal hearing scheduled for the following day, she would be anxious and should be given breaks during the hearing to prevent her from breaking down into a panic attack.

15.     After remittal of the case from the Federal Magistrates Court, Ms Huynh provided further medical reports to the Tribunal.  Dr Bui provided a TDR in September 2008.  In that report, and a subsequent report dated 23 February 2009, (cannot find this report) Dr Bui indicated that his patient suffered from OCD, de Quervain’s disease and breast cancer.  Dr Bui indicated that breast cancer was diagnosed on 27 May 2008.  He provided information on the serious impact on Ms Huynh of the three conditions and the test results for the cancer. 

16.     Ms Nguyen provided a further report dated 10 September 2008, in which she indicated again that she had been treating Ms Huynh for OCD since 22 September 2005.  Ms Nguyen described the additional impact on Ms Huynh of the breast cancer diagnosis. 

17.     Other letters and reports provided to the Tribunal included a number of letters, written in late 2007, in support of Ms Huynh’s quest for DSP.  Ms Penny Moody, Senior Clinical Social Worker, at the Royal Children’s Hospital, wrote in support of Ms Huynh’s application for DSP on 28 September 2007.  She stated that she had been working with Ms Huynh for several months in an effort to link her into some community services.  Ms Nguyen provided a letter in support of Ms Huynh on 1 November 2007 describing the difficulties her patient experienced both with OCD and other personal matters.  Dr Pham also wrote a letter dated 5 November 2007 in which he indicated Ms Huynh had severe OCD and panic attacks.

18.     On 18 November 2008 Ms Veronica Valenzuela, psychologist, prepared a Job Capacity Assessment Report in which she concluded that at that time, Ms Huynh had a work capacity of between 0 and 7 hours per week due to the impact of her OCD symptoms. 

19.     Ms Huynh gave oral evidence describing the impact of her medical conditions upon her.  She said that at the time of the claim she was suffering from pain in her wrists and back pain.  She said that she had a considerable amount of therapy in relation to her back and an operation on her left wrist before the claim.  She said that her major problem had been the symptoms of her OCD.  She said that she had not told anyone about her OCD symptoms at that time because of her embarrassment and social isolation.

20.     In relation to OCD, Ms Huynh said that after reading a newspaper article about the condition, she realised that her behaviour over the last decade could be due to OCD.  However, she took some months after reading the article to seek out assistance.  She tendered an undated referral from Dr Julia Anson to the psychology clinic at the University of Melbourne.  Ms Huynh stated that she believed that the referral predated her diagnosis by Ms Nguyen.

21.     Dr Bui and Ms Nguyen also gave oral evidence in support of Ms Huynh at the hearing on 25 February 2009.  They stressed the difficulties experienced by Ms Huynh and confirmed the dates of diagnoses given in their reports. 

DID MS HUYNH QUALIFY FOR DSP DURING THE RELEVANT PERIOD?

22.     The Tribunal accepts that Ms Huynh suffered from a number of medical conditions at the time she applied for DSP and in the subsequent 13 weeks.  Some of these conditions appear to have been fully treated, diagnosed and stabilized, namely the wrist and back conditions.  Dr Loewy assessed Ms Huynh’s score under the Impairment Tables at 25 points but also determined that her disabilities did not prevent her from undertaking light work in the subsequent two years.  The ARO decided that Ms Huynh was entitled to only 15 points under the Impairment Tables, as did the SSAT. 

23.     The Tribunal agrees with the analysis concerning points assessment set out in Re Baum and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 1066. In that case Deputy President Forgie pointed out that the Impairment Tables, as they were at the time of Ms Huynh’s claim, were written based on an assumption that a medical officer will carry out an examination. At paragraph 79, she stated:

In view of my analysis of the Impairment Tables, it seems to me that Parliament has given the role of assessing impairment under the Impairment Tables to the medical officer.  Section 94(1)(b) does not state the criteria that must be met as being the Secretary’s satisfaction that a person has an impairment of 20 points or more under the Impairment Tables.  If it had, there would have been no question that the Tribunal, exercising the powers and discretions of the Secretary, would have had the power to review the decision.  As it is, s 94(1)(b) states the criteria in the form of a statement that the person’s impairment is 20 points or more under the Impairment Tables.  It then gives the task of assessment to a person other than the Secretary.  In my view, it gives it to a medical officer….

24.     In this matter, the only doctor who provided an assessment of Ms Huynh’s conditions under the Impairment Tables during the relevant period was Dr Loewy.  His initial assessment was on 1 July 2005 and his second on 5 September 2005.  It would be futile to seek another medical assessment as it is now almost four years since the claim was lodged.  The Tribunal therefore accepts that Ms Huynh was awarded 25 points under the Impairment Tables in relation to her claim for DSP. 

25. Section 94(2)(b) requires the Tribunal to consider if a person who has received the necessary points score can, nonetheless, undertake work or training in the following two years. While Dr Loewy awarded Ms Huynh a score that met the requirements of s 94(1) of the Act, he also assessed Ms Huynh as being able to undertake light work. He took into account only her wrist and back conditions as the legislation only allows consideration of those impairments that were considered permanent at the time of the claim. The Tribunal accepts his contemporaneous assessment given a lack of evidence to the contrary. Later job capacity assessments of Ms Huynh were based on her medical conditions at a date beyond the 13 week period under consideration.

26.     The evidence now available indicates that Ms Huynh may well have been affected by symptoms of her then undiagnosed OCD at the time of her claim.  However, the Tribunal is unable to take that condition into account in determining her capacity for work during the relevant period, namely 7 June 2005 to 6 September 2005.  The evidence of Ms Nguyen and Dr Bui clearly indicates that Ms Huynh was not diagnosed with OCD until 22 September 2005.  Furthermore, at that time, she had not received any treatment.  Even if the referral note from Dr Anson was prepared before 22 September 2005, it was neither a diagnosis of OCD nor an indication that the condition had been fully treated and stabilised.  The Tribunal is unable to consider Ms Huynh’s breast cancer  as it was not diagnosed until almost three years after the period under consideration. 

27. Therefore, the Tribunal finds that during the relevant period Ms Huynh did not satisfy s 94(2) of the Act and therefore did not qualify for DSP based on her claim lodged on 7 June 2005.

28.     Ms Huynh has been advised on several occasions since refusal of the claim under review that she is entitled to lodge a fresh claim for DSP based on her current illnesses.  As indicated above, the Tribunal is only able to consider the period between 7 June 2005 and 6 September 2005 in relation to this application for review. 

DECISION

29.     The Tribunal affirms the decision under review.

I certify that the twenty-nine (29) preceding paragraphs are a true copy of the reasons for the decision herein of

Regina Perton, Member

(sgd)       Dianne Eva

Clerk

Date of Hearing:  24 & 25 February 2009

Date of Decision:  4 May 2009
Advocate for applicant:                Self‑represented

Solicitor for respondent:              Ms Peta Heffernan

Australian Government Solicitor