Huang and Secretary, Department of Social Services (Social services second review)
[2021] AATA 83
•29 January 2021
Huang and Secretary, Department of Social Services (Social services second review) [2021] AATA 83 (29 January 2021)
Division:GENERAL DIVISION
File Number:2019/1384
Re:Liang-Yin Huang
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member K. Parker
Date:29 January 2021
Place:Melbourne
The Tribunal affirms the Decision Under Review.
[sgd]........................................................................
Member K. Parker
Catchwords
SOCIAL SECURITY – claim for disability support pension – applicant has several physical and mental health conditions – whether conditions fully diagnosed, treated and stabilised as at qualification period and likely to persist for more than two years – applicant’s conditions were not permanent and did not attract impairment ratings under the Impairment Tables – decision affirmed
Legislation
Administrative Appeals Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)Cases
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252Secretary, Department of Employment & Workplace Relations v Harris [2007] FCAFC 130 Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
Legislative Instruments
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Active Participation for Disability Support Pension) Determination 2014
REASONS FOR DECISION
Member K. Parker
29 January 2021
INTRODUCTION
The Applicant, Mr Liang-Yin Huang, suffers from several physical and mental health conditions which result in functional impairment affecting his ability to work. As a result, Mr Huang has applied to receive the disability support pension (DSP) under the Social Security Act 1991 (Cth) (the Act) (DSP claim). Mr Huang arrived in Australia in 1996 from Taiwan[1] and while he is reasonably fluent in English, it is his second language.
[1] Refer T-Documents T9/44.
By making this application, Mr Huang seeks review of a decision made by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) on 5 February 2019 (Decision Under Review). The AAT1 decision affirmed a decision by an Authorised Review Officer (ARO) of Centrelink made on 6 September 2018 which in turn, affirmed an earlier decision by Centrelink to reject Mr Huang’s DSP claim.
The Respondent, the Secretary, Department of Social Services (Secretary), lodged a set of documents pursuant to its obligations under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (T-Documents).
Mr Huang lodged written submissions and medical evidence.
A hearing took place by telephone at which time the Tribunal heard oral submissions from both parties. Mr Huang was self-represented and at times during the hearing, was occasionally assisted by an interpreter. Mr Pietro Nacion, of Sparke Helmore, appeared for the Secretary.
For the reasons outlined in these Reasons for Decision, the Tribunal is satisfied that as at the qualification period, Mr Huang did not qualify for the DSP under the Act because his physical and mental health conditions could not be considered as “permanent” as they were not fully treated and fully stabilised as detailed below, and did not attract any impairment ratings under the Impairment Tables as at the Qualification Period. Accordingly, the Tribunal affirms the Decision Under Review.
LEGISLATIVE FRAMEWORK
Section 94 of the Act sets out the qualification requirements for the DSP as follows (as relevant to this application):
(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…
…
Note 2: For Impairment Tables see subsection 23(1) and sections 26 and 27.
…
(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.
(3A)…
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.
Active participation in a program of support
(3C)A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
(3D)The Secretary must comply with any guidelines in force under subsection (3E) in deciding whether the Secretary is satisfied as mentioned in paragraph (2)(aa).
(3E)The Minister may, by legislative instrument, make guidelines for the purposes of subsection (3D).
Doing work independently of a program of support
(4)A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:
(a)is unlikely to need a program of support; or
(b)is likely to need a program of support provided occasionally; or
(c)is likely to need a program of support that is not ongoing.
Other definitions
(5)In this section:
program of support means a program that:
(a)is designed to assist persons to prepare for, find or maintain work; and
(b)either:
(i)is funded (wholly or partly) by the Commonwealth; or(ii) is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
…
training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments;
(a) education;
(b) pre-vocational training;
(c) vocational training;
(d) vocational rehabilitation;
(e) work-related training (including on-the-job training).
work means work:
(a) that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b) that exists in Australia, even if not within the person’s locally accessible labour market.
“Impairment Tables” are defined in s 23 of the Act to mean the tables determined by an instrument under s 26(1). The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Determination) prescribes a set of tables for assessing the degree of impairment caused by a permanent condition or conditions more likely than not to persist for more than two years (Impairment Tables). The Impairment Tables assign ratings to determine the level of the functional impact.
“Impairment” is defined in s 3 of the Determination to mean:
a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.
The following subsections of s 6 of the Determination are relevant to the assessment of impairment ratings:
Impairment ratings
(3)An impairment rating can only be assigned to an impairment if:
(a)the person’s condition causing that impairment is permanent; and
Note: For permanent see subsection 6(4).
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.
Permanency of conditions
(4)For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
Note: For fully diagnosed and fully treated see subsection 6(5).
(c)the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(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.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Note: For reasonable treatment see subsection 6(7)
Reasonable treatment
(7) For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a) is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c) can reliably be expected to result in a substantial improvement in functional capacity; and
(d) is regularly undertaken or performed; and
(e) has a high success rate; and
(f) carries a low risk to the person.
QUALIFICATION PERIOD
Under the Act, a claim for DSP is to be assessed by reference to a specific time period. This is known as the qualification period and it runs for a period of 13 weeks from when the person makes their DSP claim.
On 19 September 2017, Mr Huang contacted Centrelink to give notice of his intention to lodge a claim for the DSP. He lodged the DSP claim form with Centrelink on 28 September 2017.[2] Under s 13 of the Social Security (Administration) Act1999 (Cth) (Administration Act), Mr Huang’s DSP claim is taken to have been made on 19 September 2017, because he lodged his claim form within 14 days after telephoning Centrelink.
[2] Refer T-Documents T11.
Accordingly, the relevant qualification period by which the Tribunal must undertake its assessment in this case, extends from 19 September 2017 for a period of 13 weeks, ending on 19 December 2017 (Qualification Period).
ISSUES
The issues to be determined, as at the time of the Qualification Period, are:
(a)whether Mr Huang had any physical, intellectual, or psychiatric impairments to meet the eligibility requirement under s 94(1)(a) of the Act;
(b)whether the conditions causing those impairments were permanent (requiring an assessment of whether they were fully diagnosed, treated and stabilised, and were more likely than not to persist for more than two years);
(c)whether Mr Huang met the “continuing inability to work” eligibility requirement under s 94(1)(c) of the Act; and
(d)provided the eligibility requirements under s 94(1)(a) and (c) were met, whether Mr Huang’s impairments arising from his permanent conditions, together or separately, attracted a rating of 20 points or more under the Impairment Tables to meet the further eligibility requirement under s 94(1)(b) of the Act.
EVIDENCE BEFORE THE TRIBUNAL
Mr Huang’s DSP Claim Form
At the time Mr Huang made his DSP claim, he was 42 years old. Mr Huang listed his marital status as “separated” and he indicated that he did not live in the same home as his former partner. He indicated on the form that before making the DSP claim he was not working, self-employed or studying. He also indicated he was in receipt of the Newstart Allowance.
Mr Huang’s claimed conditions included back problems (disc bulges), chronic heart disease, unstable angina, chronic shoulder pain, neck issues and arthritis. He indicated that he did not believe that he required “nursing home level of care, frequent support or supervision from a carer, or palliative care” or that his life expectancy may be significantly reduced within the next few years because of his condition. He indicated that his current treatment for his conditions included physiotherapy and osteopathy at RMIT Health Services Clinic. He indicated he was not expecting to have an operation in the future.
On the DSP claim form, Mr Huang indicated that he held “degrees” and listed his work experience as follows:
(a)28 September 2015 to 28 September 2017 – work for the dole;
(b)5 December 2016 to “now” – volunteer.
Mr Huang stated on the form that he had participated in a program to help him find work through a provider, AMES, from 28 September 2014 to 28 September 2017.
First Employment Services Assessment (ESA) Report – June 2015
A face-to-face employment services assessment was undertaken of Mr Huang by a qualified social worker on 18 June 2015. The condition of “tinnitus” was assessed and found to be fully diagnosed. The assessor states that the symptoms were that Mr Huang was unable to tolerate loud noises and that a medical report had suggested “music therapy” and that no other treatment had been recommended.
The condition of “hypertension” was also assessed. The assessor found it to be fully diagnosed. The assessor stated that Mr Huang had indicated that he took medication for it. The assessor noted a medical report which indicated that this condition was well-controlled, and that Mr Huang was “prone to anxiety”. It also reports that no symptoms were reported by Mr Huang and he had informed the assessor this condition was well controlled.
The assessor considered that Mr Huang had a “baseline and future work capacity of 30+ hours per week” in respect of “light less skilled work” and that his “medical conditions in the current medical certificate have been assessed as having no impact on work capacity”.[3] The assessor suggested “counselling” and “self-improvement/personal development” as interventions for Mr Huang. The report states that Mr Huang had worked as a truck driver and that most of his past employment had been obtained through friends. The assessor recommended that Mr Huang be referred to employment services.
[3] Refer T-Documents T5/28.
Second ESA Report – June 2016
A second ESA assessment was conducted by telephone in June 2016.[4] The assessor was a registered psychologist. Mr Huang was assessed in respect of his conditions of “tinnitus”, “hypertension” and “spinal disorder”. The notes of the assessor for the first two conditions were near identical to the notes of the previous ESA assessor, except there is an additional note in respect of the condition of hypertension to “frequent loss of consciousness and stress/family issue”.
[4] Refer T-Documents T7.
The assessor’s remarks for the condition of spinal disorder were as follows:[5]
As per medical certificate by Dr Rania Alamudi dated 2/06/2016, client has been diagnosed with low back pain with radiological evidence of degenerative changes, osteoparthritis(sic) in neck and left nerve impingement in neck.
Date of onset of condition is 8/01/2015.
Treatment; GP monitoring, medication, client has had a CT scan of his spine conducted recently.
Functional impacts include; headache and migraine on left side of his head and neck stiffness.
[5] Refer T-Documents T7/33 & 34.
Mr Huang was assessed at this ESA as having a “temporary work capacity” of 0-7 hours per week ending on 15 September 2016, due to a “temporarily reduced functional capacity due to an exacerbation of his permanent medical conditions as he has experienced episodic fluctuations and has a reduced ability to sustain activities”.[6] Mr Huang was assessed as having a capacity for work within two years with “disability specific” intervention of 15-22 hours per week in a “light less skilled” position such as administrative duties and service industry. The assessor states that Mr Huang has a baseline work capacity of 15-22 hours in light less skilled work such as administrative duties.
[6] Refer T-Documents T7/35.
The assessor states that Mr Huang had been participating in “job seeking in stream B services” and that he “could benefit from a deferred referral to a higher level of assistance in stream C services in order to address his vocational and non-vocational barriers to employment”.
Medical verification of medical conditions by Dr Chiang – August 2017
Dr Stanley Chiang, general practitioner, completed a Centrelink medical verification of medical conditions form in respect of Mr Huang on 20 August 2017. The handwriting is difficult to read but it appears to certify that Mr Huang’s conditions included “low back (illegible)”; “H/T & hypercholesterolaemia” and “Tinnitus” and they are likely to last for more than two years. The description of Mr Huang’s symptoms for each condition is illegible and no details are provided about Mr Huang’s past, current and planned treatment.
Third ESA Report – September 2017
A third face-to-face ESA was carried out on 8 September 2017 by a registered psychologist. The conditions assessed were spinal disorder, tinnitus and hypertension.
The assessor’s remarks for Mr Huang’s spinal condition were as follows:
Medical certificate completed by Dr. Stanley C Chiang, GP (20/08/2017) confirms condition of lower back pain - degenerative changes with nerve root impingement. Onset listed as 2015.
Treatment: MC notes conservative. Mr Huang reports that he has previously undertaken acupuncture and chiropractic treatment and currently attends an osteopath on a fortnightly basis.
Symptoms: MC states fatigue easily, back pain and poor tolerance. Mr Huang reports that he experiences pain and stiffness and is to avoid too much heavy lifting.
The assessor’s remarks for Mr Huang’s tinnitus were as follows:
Medical certificate completed by Dr. Stanley C Chiang, GP (20/08/2017) confirms condition of left Tinnitus/Vertigo.
Onset not listed.
Treatment: MC indicates suggestion of music therapy for tinnitus. Mr Huang advised he is not currently receiving treatment for this condition.
Symptoms: MC notes unable to tolerate loud environment. Mr Huang reports experiencing occasional dizziness upon standing up to quick and when he gets ringing in his ears.
The assessor’s remarks for Mr Huang’s hypertension were as follows:
Medical certificate completed by Dr. Stanley C Chiang, GP (20/08/2017_ confirms condition of hypercholesterolaemia/hypertension with onset not listed.
Treatment: MC notes conservative. Mr Huang reports he is currently taking medications.
Symptoms: MC notes dizziness.
The assessor identified the barriers to be addressed included “physical limitations restricting the type of work” and “motivation”. The assessor considered that with appropriate specialist review and treatment, Mr Huang’s permanent medical conditions were likely to result in minimal functional impacts. The assessor considered that Mr Huang had a baseline and future work capacity (in light less skilled work) of 30+ hours per week and that he was currently demonstrating this in his voluntary work.
In that regard, the assessor notes as follows under the heading “Employment history/ Goals”:
Mr Huang has completed year 12 and attained a Masters degree. He is currently completing 4 days per week (32 hours) of voluntary work at St Vinnies within a charity store where he stated he helps with deliveries (including loading and unloading items) and works on the floor. He also reported working one day per week (7 hours) where he voluntarily drives a community bus. Prior to this he has predominantly worked as a truck driver for most of his employment history. He is motivated to continue his voluntary work and did not report any employment goals
Medical eligibility assessment – October 2017
On 5 October 2017, a psychologist conducted an assessment of DSP medical eligibility in respect of Mr Huang.[7] The conditions assessed by the assessor were listed as “lower back pain - degenerative changes”, “tinnitus” and “hypertension/hypercholesterolemia” The assessor considered a radiology report dated 13 May 2016 and a medical certificate that had been issued by Dr Chiang dated 15 September 2017. The assessor did not consider that contact with Mr Huang’s treating health professionals was required in order to make his or her assessment. The assessor opted not to speak to Mr Huang and did not consider it necessary to consult with the Health Professional Advisory Unit, but instead opted for a contributing assessor, an exercise physiologist, in respect of the lower back condition and the condition of hypertension.
[7] Refer T-Documents T13.
The assessors considered that Mr Huang’s spinal condition was not fully treated and stabilised as he had not accessed interventions such as specialist review, physiotherapy, acupuncture, chiropractor interventions, exercise physiology program or pain management which “may contribute to significant improvement in symptoms”. The assessors did not consider the condition of “tinnitus” to be fully treated and stabilised because Mr Huang had not sought intervention such as specialist review or specific vertigo physiotherapy program. The assessors considered there was no indication that the condition of hypertension/hypercholesterolaemia was having a significant functional impact.
Further medical opinion provided by Dr Chiang – November 2017
On 24 November 2017, Dr Stanley Chiang issued a letter reporting as follows:[8]
This is to certify that Mr Huang has been a patient at my clinic for quite a while. He has been suffering from hypertension as well as hypercholesterolaemia and gout etc. As a result he has been finding it difficult to be engaged in any meaningful duties. He is currently still seeking medical advice for the above-mentioned problems.
I hope the above information is helpful. Please feel free to contact me should you require anything else.
[8] Refer T-Documents T16.
Fourth ESA – July 2018
A fourth ESA was carried out in July 2018.[9] It lists a new condition of “depression”. The Tribunal notes this assessment post-dates the qualification period.
[9] Refer T-Documents T18.
Medical evidence post-dating the Qualification Period
Medical evidence lodged with the Tribunal included letters and reports that post-dated the end of the Qualification Period. The Tribunal took that evidence into account only to the extent that it contained medical opinions referrable to Mr Huang’s conditions or symptomatology as it was during or before the Qualification Period. However, most of this medical evidence did not include such references. As such, the Tribunal is required to disregard much of this evidence to ensure that an assessment is made of Mr Huang’s functional impairment as at the time of the Qualification Period.
This was explained to Mr Huang at the hearing and he was at liberty to make a further application for the DSP should he wish to be reassessed against the more recent medical evidence post-dating the end of the Qualification Period.
Significant medical report by clinical psychologist – February 2019
The Tribunal notes a medical report prepared by clinical psychologist, Mr Anthony Greenway, dated 26 February 2019.[10] Mr Greenway opines that Mr Huang has “schizotypal personality disorder” with “comorbid Persistent Depressive Disorder (Dysthymia)” at a severe level. Mr Greenway states that the condition is “severely disabling and permanent” and considers that a rating of 30 impairment points would apply to Mr Huang under Table 6 of the Impairment Tables. Mr Greenaway states in terms of treatment that “psychotherapy would be ineffective, except to minimize Mr Huang’s deterioration with time”. Mr Greenway states that there is no way of treating this disorder in Mr Huang’s case. Mr Greenway states that Mr Huang is unable to work in the future and that his mental health will deteriorate as he becomes increasingly isolated from the community.
[10] Refer T-Documents T22.
This medical evidence is significant. However, Mr Greenway did not clinically examine Mr Huang until over a year after the end of the Qualification Period. Despite the significance of this medical opinion, the Tribunal is unable to take it into consideration for the reasons set out above.
Mr Huang’s evidence at the hearing
At the hearing, Mr Huang answered questions from the Tribunal and from the Secretary’s representative about the volunteer work he had performed, which involved sorting out items at a Vinnie’s opportunity store; driving a bus for a Church to collect people to attend a meal and to return them home again; acting as a guide to show patients where they need to go at the Northern Hospital; and finally, doing some tidying up (mainly putting bins out for collection) at the Country Fire Authority (CFA). Mr Huang described the type of duties he carried out in those volunteer positions. Mr Huang also answered some questions about the treatment he had received for his mental health and physical medical conditions. Mr Huang explained the reasons for making overseas trips to Taiwan in 2016 and 2017 had related to the death of his mother and grandmother in successive years. The Tribunal will refer to the evidence that Mr Huang gave at the hearing in further detail below.
CONSIDERATION
Considering the evidence in this application, the Tribunal is guided by the observations of Gyles J in the Federal Court of Australia decision of Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 (Harris) at paragraph [1]:[11]
…the applicant’s entitlement to the pension must be considered as at the date of her claim, namely, 3 May 2004 and a period of 13 weeks thereafter. Any subsequent changes in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time.
[11] Approved by Besanko J in Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [26] to [28]. The Harris case was appealed to the Full Court of the Federal Court in Secretary, Department of Employment & Workplace Relations v Harris [2007] FCAFC 130 but the observations of Gyles J at first instance on this issue were not disturbed by the Full Court’s appeal decision. The approach to be taken was dictated by the terms of the legislation: Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286.
Is the first requirement under s 94(1)(a) of the Act met?
Section 94(1)(a) of the Act requires the Tribunal to determine whether, as at the time of the Qualification Period, Mr Huang had a physical, intellectual or psychiatric impairment(s). Impairment as defined by s 3 of the Determination.
Both parties agreed that this requirement was met by Mr Huang as at the Qualification Period. The Tribunal is satisfied on the medical evidence that the requirement under s 94(1)(a) of the Act was met because Mr Huang’s medical conditions resulted in a loss of functional capacity, which affected his ability to work.
Is the second requirement under s 94(1)(b) of the Act met?
The second requirement that Mr Huang must meet is that his impairment(s) must attract a rating of 20 points or more, as assessed under one or more of the Impairment Tables. Section 6(3) of the Determination provides that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is “permanent” and the impairment resulting from that condition is more likely than not, in light of available evidence, to persist for more than two years. Under s 6(4) of the Determination, a condition is considered to be “permanent” if it was fully diagnosed, fully treated and fully stabilised and more likely than not to persist for more than two years as at the time of the Qualification Period.
Physical medical conditions
Spinal conditions
At the hearing, Mr Huang informed the Tribunal that he was involved in a transport accident about ten years ago and sustained a back injury. He said he had experienced pain in the shoulder and the neck and that he sustained an injury to his rib cage on the left-hand side.
On 12 May 2016, a CT scan was performed on Mr Huang’s cervical spine. The report of this CT scan showed that Mr Huang had “relatively mild degenerative disc disease” particularly at C3/4, C4/5 and C5/6 and that there was left-sided C5 nerve root impingement. The CT report stated that at C3/4, there was “mild posterior disc bulging and mild central canal narrowing” and appeared to be “at least contact of the exiting C4 nerve roots”.
Mr Huang had a further CT scan performed on his cervical spine. A report was issued on 27 October 2017 in which the following findings were recorded (emphasis added):[12]
Findings: Direct comparison made with the previous study of May 2016. Cervical alignment is smooth and remains within normal limits. There have been no significant interval changes.
Similar mild degenerative changes at the anterior atlanto axial joint and similar mild C2/3 disc space narrowing.
At C3/4 bilateral foraminal stenosis is once again seen and there is bilateral C4 nerve root impingement. The right C3/4 facet joint appears perhaps slightly more degenerative on this study. There is a similar degree of mild central canal stenosis due to the disc bulging.
At C4/5 similar mild central canal stenosis is present and there is bi-foraminal narrowing with similar contact/mild impingement of the exiting left C5 nerve root and contact of the right C5 nerve root.
At C5/6 mild disc space narrowing is present. No new neural impinging lesion is seen.
C6/7 and C7/T1 levels are unremarkable and are unchanged.
[12] Refer T-Document T14.
The Secretary accepts that Mr Huang had a spinal condition as at the Qualification Period but contended that this spinal condition was not fully treated or fully stabilised. The Secretary contends that the treatment Mr Huang had received for this spinal condition was conservative only, and that he had not seen physiotherapist or a medical specialist about his spinal condition. At the hearing, Mr Huang confirmed that he had not seen an orthopaedic specialist in relation to his back condition. He said he had received treatment and referred specifically, to receiving acupuncture in Preston to treat the pain. He said this treatment had made him feel better, but the pain would come back. Mr Huang also said he had some x-rays and scans done on his back. One of Mr Huang’s claimed conditions was “arthritis”. The only reference the Tribunal was able to identify was a reference to “osteoarthritis” showing in a scan performed on Mr Huang’s neck.
When asked whether Mr Huang’s treating general practitioner had referred him to a specialist, Mr Huang told the Tribunal that his general practitioner had referred him to see an osteopath and to a therapist for rehabilitation. He said it was not a cure and was not helping him much, but it did make him feel better on the day he received the treatment. He said the place where he received the therapy was “a bit far”.
Based on this evidence, the Tribunal agrees with the Secretary that there is insufficient evidence before the Tribunal for it to be satisfied that Mr Huang’s spinal condition, whilst fully diagnosed as indicated in the CT scan results in May 2016 and October 2017 (i.e. falling during and before the Qualification Period), was not fully treated at this time. Given the continuation of the pain and resulting impairment, as alleged by Mr Huang, it is reasonable to expect that Mr Huang should seek an opinion and/or treatment recommendation from an appropriate medical specialist, such as an orthopaedic surgeon or pain management specialist. It seems that Mr Huang, by his own evidence, has managed the symptoms by taking diazepam medication to assist to control the pain. Unfortunately, this has had other side effects as described by Mr Huang at the hearing, such as impairing him from driving a vehicle.
For Mr Huang’s spinal condition to be considered fully treated, the Tribunal considers that Mr Huang would need to present evidence of having consulted with a medical specialist, such as an orthopaedic specialist or pain management specialist, or alternatively, evidence from his treating general practitioner to confirm whether there was a specific reason why she had not referred Mr Huang to such a specialist, if indeed this was the case. Given that this evidence was not before the Tribunal, the Tribunal finds that Mr Huang’s spinal condition was not fully treated as at the Qualification Period and not a “permanent” condition as defined in the Act. Therefore, this condition did not attract an impairment rating under the Impairment Tables as at the Qualification Period.
Hypertension/hypercholesterolaemia
Based on the medical certificate referred to in paragraph [26] above, Dr Chiang confirmed a diagnosis on 20 August 2017 that Mr Huang suffered from the conditions of hypertension and hypercholesterolaemia. The Secretary accepts that those conditions were fully diagnosed and based on this medical certificate, the Tribunal finds that as at the Qualification Period, Mr Huang suffered from those two conditions.
The Secretary contends that there is a lack of evidence to support a finding that these conditions were fully treated and stabilised for the following reasons:
(a)a medical certificate had been issued in March and June 2017 recording that Mr Huang’s hypertension was not controlled;
(b)on 24 November 2017 Dr Chiang stated that Mr Huang was still seeking medical advice about his hypertension; and
(c)the PBS list of medication showed that Mr Huang had only filled two scripts for blood pressure medication in 2017, and he had taken very little medication to treat this condition. Specifically, in December 2016 and January 2017, Mr Huang took Lipitor but did not fill any further scripts until September 2017.
At the hearing when this was put to Mr Huang, he said that he was taking the medication “now” and that it was treated and under control. He said he still needed to see the doctor who would give him a script for the medication.
The Tribunal is satisfied that as at the Qualification Period, based on the evidence referred to in the above two paragraphs, Mr Huang’s conditions of hypertension and hypercholesterolaemia were not fully treated and fully stabilised and not “permanent” conditions as defined in the Act. Therefore, any impairment resulting from those conditions did not attract an impairment rating under the Impairment Tables as at the Qualification Period.
Tinnitus
Based on the medical certificate referred to in paragraph [26] above, Dr Chiang confirmed a diagnosis on 20 August 2017 that Mr Huang suffered from the condition of tinnitus. The Secretary accepts that this condition was fully diagnosed and based on this medical certificate, the Tribunal finds that as at the Qualification Period, Mr Huang suffered from this condition.
There was no evidence before the Tribunal that Mr Huang had sought specialist medical opinion or treatment for this condition. From Mr Huang’s evidence at the hearing, it appeared that he was using diazepam to assist to relieve the symptoms from this condition. There was also no evidence that Mr Huang had accessed the music therapy which was reportedly recommended to him as a form of treatment. There is insufficient evidence before the Tribunal for it to be satisfied that this condition is fully treated and fully stabilised. Therefore, this condition is not “permanent” as defined in the Act and any impairment resulting from this condition did not attract an impairment rating under the Impairment Tables as at the Qualification Period.
Gout
Based on the medical opinion of Dr Chiang referred to in paragraph [35] above, the doctor confirmed a diagnosis on 24 November 2017 that Mr Huang suffered from the condition of gout. The Secretary accepts that this condition was fully diagnosed. Based on Dr Chiang’s medical opinion, the Tribunal finds that as at the Qualification Period Mr Huang suffered from the condition of gout.
In the letter prepared by Dr Chiang on 24 November 2017, the doctor stated that further medical investigation was being sought by Mr Huang. Mr Huang was asked about this at the hearing. He informed the Tribunal that he had seen a specialist “Dr Timothy” for his condition of gout at the Northern Hospital “I think, two years ago”. He said he had a flare up of gout in about 2004 requiring him to go to the emergency department at the Royal Melbourne Hospital. Mr Huang explained that his general practitioner had referred him to the specialist (Dr Timothy) for further investigation.
There was no evidence before the Tribunal of any further treatment or medical advice that Mr Huang had received for his gout on or before the Qualification Period, or that he had experienced any further flare ups apart from mentioning some symptomatology he experienced, when travelling overseas which he suspected was due to his gout.
Without further evidence of medical treatment or medical advice received by Mr Huang for this condition on or before the Qualification Period, the Tribunal finds that this condition was not fully treated or fully stabilised and not a “permanent” condition as defined by the Act. Therefore, any impairment arising from this condition does not attract an impairment rating under the Impairment Tables as at the Qualification Period.
Mental health conditions
It is apparent to the Tribunal that Mr Huang has significant functional impairment arising from mental health conditions. This was medically confirmed, but only after the end of the Qualification Period. During or before the Qualification Period, Mr Huang had not been diagnosed by a psychiatrist or clinical psychologist as suffering from any mental health conditions.
At the hearing, the Tribunal asked Mr Huang when he first saw a mental health practitioner and he confirmed that it was on 31 May 2018 when he attended upon Ms K. This was five months after the end of the Qualification Period. Ms K was a registered psychologist, and not a clinical psychologist. Mr Huang’s general practitioner subsequently referred Mr Huang to a clinical psychologist. Again, this consultation with Dr Greenway did not take place until February 2019, being over one year after the end of the Qualification Period, as mentioned in paragraphs [39] and [40].
At the hearing, Mr Huang told the Tribunal he had serious anxiety issues and that the medication had made him feel better, but it was no cure. In terms of treatment, at the hearing Mr Huang told the Tribunal that he first started taking medication in January 2018. This post-dated the end of the Qualification Period. There was no evidence of Mr Huang engaging in psychotherapy or other counselling for his mental health conditions during or before the Qualification Period.
For these reasons, the Tribunal finds that Mr Huang’s mental health conditions were not fully treated and stabilised as at the time of Qualification Period and therefore, were not permanent conditions. Accordingly, any functional impairment arising from these conditions did not attract an impairment rating under the Impairment Tables as at the Qualification Period.
CONCLUSION
The Tribunal acknowledges that Mr Huang suffers from a significant number of conditions severely affecting his mental and physical functionality.
The Tribunal has found that Mr Huang met the eligibility requirement under s 94(1)(a) of the Act as at the Qualification Period. However, the Tribunal is not satisfied that Mr Huang met the requirements of s 94(1)(b) of the Act because his medical conditions were not “permanent” as at the Qualification Period for the reasons described above. As such, they did not attract any impairment ratings under the Impairment Tables as at the Qualification Period. Consequently, it is not necessary for the Tribunal to consider whether Mr Huang had a continuing inability to work and satisfied the further eligibility requirement under s 94(1)(c).
Accordingly, the Tribunal affirms the Decision Under Review.
I certify that the preceding 69 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker.
[sgd]..............................................................
Associate
Dated: 29 January 2021
Date of hearing:
Date last submission/evidence received:
11 August 2020
17 November 2020
Representative for the Applicant:
Self-represented
Advocate for the Respondent: Mr Pietro Nacion
Solicitors for the Respondent: Sparke Helmore Lawyers
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Appeal
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Judicial Review
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Procedural Fairness
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Statutory Construction
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