Huynh and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1078

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1078

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V 200600291

GENERAL ADMINISTRATIVE  DIVISION		)
Re		HANG THU HUYNH

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Dr K. Breen

Date22 February 2007

PlaceMelbourne

Decision The decision under review is affirmed.

(sgd) Kerry Breen

Member

SOCIAL SECURITY ‑ Disability Support Pension ‑ bilateral carpal tunnel syndrome – tenosynovitis – back condition – obsessive compulsive disorder – continuing inability to work

Social Security Act 1991 s 94, Schedule 1B

REASONS FOR DECISION

22 February 2007 Dr K. Breen            

1.        Mrs Hang Thu Huynh lodged a claim for Disability Support Pension (DSP) with Centrelink on 7 June 2005.  Centrelink is the service delivery agency for the Secretary to the Department of Employment and Workplace Relations (the respondent).  The claim was rejected by an officer of Centrelink on 20 July 2005 because Mrs Huynh was assessed as being capable of more than 30 hours per week of light work.  A Centrelink authorised review officer affirmed this decision on 13 December 2005 (albeit on different grounds).  Mrs Huynh sought review of this decision by the Social Security Appeals Tribunal (SSAT).  The SSAT affirmed the decision on 15 March 2006.  Mrs Huynh then applied to this Tribunal for a review of the decision of the SSAT.

2.        On 19 October 2005, that is between the date of Mrs Huynh’s claim and the decision of the Centrelink authorised review officer, Centrelink received a report from Ms Sandra Nguyen, psychologist, stating that she had diagnosed Mrs Huynh to be suffering from obsessive compulsive disorder (OCD), a condition that had been present for eleven years.  The authorised review officer took this additional diagnosis into consideration but as the condition was held not to have been treated and stabilised, no impairment rating could be awarded.

3. The requirements for qualification for DSP are set out in s 94 of the Social Security Act 1991 (the Act).  The relevant parts are 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;

(ii)the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and

(d)       the person has turned 16; and

(e)       the person either:

(i)is an Australian resident at the time when the person first satisfies paragraph (c); or

(ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

(A)is not an Australian resident; and

(B)is a dependent child of an Australian resident;

and the person becomes an Australian resident while a dependent child of an Australian resident; and

(f)        the person is not qualified for disability support pension under section 94A.

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 independently of a program of support within the next 2 years; and

(b)       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.

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 a training activity; or

(b)the availability to the person of work in the person's locally accessible labour market.

94(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 that:

(i)is designed to assist the person to prepare for, find or maintain work; and

(ii)is funded (wholly or partly) by the Commonwealth or is of a type that the Secretary considers is similar to a program of support that is funded (wholly or partly) by the Commonwealth; or

(b)       is likely to need such a program of support provided occasionally; or

(c)       is likely to need such a program of support that is not ongoing.

94(5)  In this section:

“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.

HEARING

4.      At the hearing, the respondent was represented by Ms Kayren Paul, a Centrelink advocate.  Mrs Huynh represented herself.  She was assisted by an interpreter in the Vietnamese language, Ms Huong Le.

EXHIBITS

5.      The Tribunal received the T documents into evidence.  Mrs Huynh tendered a letter from Dr Stella Kwong and a letter from a general practitioner Dr Julia Anson which was marked Exhibit A1.

BACKGROUND

6.        Mrs Huynh is a mother of two children aged 12 and 9 years respectively.  She has not worked since she migrated to Australia in 1989.  She has been in receipt of Family Payment, Family Tax Benefit and Parenting Payment Single since 20 March 1998.

7.        On 7 June 2005 Mrs Huynh lodged a claim for DSP supported by a Treating Doctor’s Report prepared by Dr Dac Thong Bui.  The claim form was undated but signed by Mrs Huynh on 22 May 2005.

8.        Dr Bui’s report gave the diagnoses of bilateral carpal tunnel syndrome of twelve months duration and left wrist pain/De Quervain’s tendonitis.  Dr Bui stated that the latter condition had its onset in November 2001 and had led to surgery in September 2004.  Dr Bui also listed back pain as a condition under the heading of medical conditions which are generally well managed and cause minimal or limited impact on ability to function.

9.        Mrs Huynh was assessed by Dr P. Loewy of Health Services Australia on behalf of the respondent, on 1 July 2005.  Dr Loewy’s report identified bilateral carpal tunnel syndrome and tenosynovitis as permanent conditions which attracted 15 points in total under Table 3 of the Tables for the Assessment of Work-Related Impairment for Disability Support Pension in Schedule 1B of the Act (the Impairment Tables). Dr Loewy also diagnosed Mrs Huynh’s lower back pain as a permanent condition attracting 10 points under Table 5.3.

10.      Dr Loewy also found that despite her disabilities, Mrs Huynh had a current capacity to undertake more than 30 hours of light work which allowed her to sit or stand at will and which did not require forceful use of her hands per week.

11.      Mrs Huynh’s claim for DSP was rejected on 20 July 2005.

12.      Subsequent to this date Mrs Huynh submitted an x-ray report relating to her back condition dated 25 July 2005.  This report was considered by Dr Loewy who prepared a supplementary report dated 5 September 2005.  In this report Dr Loewy concluded that his previous medical assessment of 1 July 2005 remains unchanged.

13.      On 19 October 2005, Centrelink received a letter from Ms Sandra Nguyen, psychologist, which stated that in her opinion, Mrs Huynh was suffering from OCD which had commenced 11 years earlier.  Ms Nguyen was providing counselling and had encouraged Mrs Huynh to seek treatment from her doctor for this condition.

14.      Mrs Huynh requested a review of the Centrelink decision by an authorised review officer.  That officer was aware of the additional material provided by Ms Nguyen and took this into consideration.

15.      On 13 December 2005 the authorised review officer affirmed the original decision.  In his decision the officer agreed with Dr Loewy’s diagnosis and impairment ratings in regard to Mrs Huynh’s hand conditions, but disagreed with the impairment rating Dr Loewy had awarded her back condition.  The officer assigned this condition nil points under Table 5.2 noting that although forward flexion in her back was restricted by one quarter, her other back movements were within the normal range.

16.      In addition, the authorised review officer decided that Mrs Huynh’s OCD could not be given an impairment rating as the condition was yet to be treated and stabilised.

17.      Mrs Huynh lodged an appeal with SSAT, which was heard and decided on 15 March 2006.  The SSAT affirmed the Centrelink decision.  Mrs Huynh provided three additional medical reports from Dr Louis Luu and Ms Sandra Nguyen to the SSAT at the hearing.

18.      Since that date, Mrs Huynh has lodged with Centrelink additional medical reports from two psychiatrists, Dr Stella Kwong and Dr Hieu Pham, which address her mental health.

ISSUES BEFORE THE TRIBUNAL

19. The issues to be determined in this matter are whether at 7 June 2005 and for the subsequent 13 weeks, Mrs Huynh met the medical qualification criteria as set down in s 94(1) and s 94(2) (as provided for in clause 4 of Schedule 2 of the Act) namely that:

(a)Mrs Huynh had a physical, intellectual or psychiatric impairment as defined in the Act; 

(b)Mrs Huynh had a diagnosed condition that has been investigated, treated and stabilised, and was likely to continue for at least two years; If yes, did Mrs Huynh’s impairment rate at least 20 points under the Impairment Tables?

(c)Mrs Huynh had a continuing inability to work because of the impairment, in that:

(i)the impairment was of itself sufficient to prevent her from doing any work within the next two years; and

(ii)the impairment was of itself sufficient to prevent her undertaking educational, vocational or on-the-job training during the next two years, or, if it did not so prevent her, the retraining was unlikely, because of the impairment, to enable her to do any work within the next two years.

CONSIDERATION OF THE EVIDENCE

20.     It is clear from the medical evidence that Mrs Huynh suffers from bilateral carpal tunnel syndrome.  She experiences numbness and tingling in both hands and tends to drop things.  The best objective evidence supporting this diagnosis is found in Dr David Freilich’s nerve conduction study report dated 2 May 2005.  Dr Bui’s treating doctor’s report provides additional evidence and the persistent symptoms described to the Tribunal by Mrs Huynh indicate that the condition in both wrists is longstanding.

21.     Dr Bui’s report indicates that surgery for her bilateral carpal tunnel syndrome has been discussed with Mrs Huynh but that she is reluctant to undergo surgery.  In her evidence to the Tribunal, it appeared that some or all of her reluctance may relate to the fact that she has already had one operation on her left wrist (which was for De Quervain’s tenosynovitis and not for carpal tunnel syndrome), yet she continues to have pain and weakness in that wrist.  Mrs Huynh informed the Tribunal that she has not been reviewed by a specialist since her hand surgery.  Such a review might lead to a different understanding of the potential benefits of further surgery.  Notwithstanding the foregoing comment, I am satisfied that Mrs Huynh does suffer from bilateral carpal tunnel syndrome; that this condition has been treated and stabilised; and that the condition is permanent.

22.     In addition there is clear evidence that Mrs Huynh also suffers from tenosynovitis.  In July 2002 an ultrasound examination of the left wrist revealed features consistent with tenosynovitis.  In May 2004 Mrs Huynh was examined by a specialist, Dr R. M. Pianta, who diagnosed an advanced case of De Quervain’s tenosynovitis requiring surgical decompression.  Dr Loewy’s report similarly identifies that her problem of left wrist pain was due to De Quervain’s tendonitis.

23.     Neither Dr Bui nor Dr Loewy has attempted to separate the effects of the left carpal tunnel syndrome from the effects of the left wrist tenosynovitis.  The Centrelink authorised review officer therefore linked the two together and assessed them jointly under Table 3 of the Impairment Tables.  I am satisfied that this is an appropriate approach.

24.     With regard to the impact of these conditions of the hands and left wrist on Mrs Huynh’s capacity to function, Dr Bui reported that Mrs Huynh was experiencing difficulty handling objects and diminished ability to lift objects.  Dr Loewy reported that Mrs Huynh described to him that she was experiencing difficulty holding objects firmly.  Dr Loewy also reported that on his examination, she displayed moderately reduced grip strength in both hands.  Mrs Huynh is right hand dominant.  To Dr Loewy, the SSAT and to this Tribunal, Mrs Huynh reported being able to perform household chores such as cooking and cleaning.

25.     In applying Table 3 Upper Limb Function of the Impairment Tables to Mrs Huynh’s case, the authorised review officer awarded ten points for her right dominant hand and five points for her left hand, as did Dr Loewy and as did Ms S. Tansey in a Job Capacity Assessment dated 25 October 2006.  I am satisfied that this Table has been applied appropriately.

26.     Mrs Huynh also suffers from a back condition.  In his 2005 report, Dr Bui listed back pain under the heading of any other medical conditions which are generally well managed and cause minimal or limited impact on ability to function.  Dr Bui reported that Mrs Huynh had received acupuncture treatment, that the condition was not expected to improve and that it caused Mrs Huynh to experience decreased concentration and made her irritable.

27.     Dr Loewy reported that Mrs Huynh described intermittent low back pain following the birth of her second child eight years previously and that she stated that her sitting and standing tolerance is limited to around 30 minutes.  He reported that on examination he found one quarter limitation of forward flexion of the back with all other back movements in the normal range.

28.     In her evidence to the Tribunal, Mrs Huynh stated that she experiences back pain after standing or sitting for more than 30 minutes and after driving for more than 5 to 10 minutes.  She has received treatment in the form of acupuncture, medication and a cream but as these did not help, she currently takes glucosamine.

29.     I find that Mrs Huynh suffers from intermittent low back pain which causes some minor limitation of flexion of her back and that this condition is stabilised and permanent.

30.     The relevant Impairment Table is Table 5.2 Thoraco-Lumbar-Sacral Spine. Using this Table, Dr Loewy awarded Mrs Huynh 10 impairment points.  Using the same Table, the authorised review officer took a different view.  Noting that forward flexion was restricted to one quarter of normal range and that other back movements were within the normal range, he determined that you have a near normal range of movement and accordingly awarded nil impairment points.

31.     In opening her case to the Tribunal, Mrs Huynh expressed concern that the 10 points awarded by Dr Loewy could be taken away by Centrelink.  In view of that concern, I have examined the medical evidence and Table 5.2 carefully.  Table 5.2 in full reads as follows:

Table 5.2  Thoraco–lumbar-sacral spine

As spinal mobility is a composite movement, this Table measures overall mobility of the trunk including hip movement and is not intended to measure mobility of individual spinal segments.

Rating

Criteria

NIL

Normal or nearly normal range of movement.

FIVE

Loss of one-quarter of normal range of movement.

TEN

Loss of one-quarter of normal range of movement as well as back pain or referred pain:

 with many physical activities and

 with standing for about 30 minutes and

 with sitting or driving for about 60 minutes.

or

Loss of half of normal range of movement.

TWENTY

Loss of half of normal range of movement as well as back pain or referred pain:

with most physical activities and

with standing for about 15 minutes and

with sitting or driving for about 30 minutes.

or

Loss of three-quarters of normal range of movement.

FORTY

Ankylosis in an unfavourable position, or unstable joint.

32.     It is noted that a normal or nearly normal range of movement attracts nil impairment points while loss of one quarter of normal range of movement attracts five points.  While the table and the accompanying text provides no specific guidance when only spinal forward flexion is limited, I am satisfied that it was open to the authorized review officer to conclude that Mrs Huynh’s examination findings represented a nearly normal range of movements.

33.     It is difficult without hearing from Dr Loewy to understand how he awarded Mrs Huynh’s back condition 10 impairment points.  However, even if Mrs Huynh’s condition did attract 20 impairment points in total (a finding which I do not make), this is only the second of three broad criteria set down in the legislation which need to be met before Mrs Huynh can be medically eligible for a disability support pension.  The third is whether Mrs Huynh has a continuing inability to work because of the impairment.  That is that the impairment was of itself sufficient to prevent her from doing any work within the next two years; and the impairment was of itself sufficient to prevent her undertaking educational, vocational or on-the-job training during the next two years; or, if it did not so prevent her, the retraining was unlikely, because of the impairment, to enable her to do any work within the next two years.

34.     Where the requirement for a total of 20 impairment points is not met, there is normally no reason to proceed to examine the available evidence in regard to work capacity, but I have done so in this instance to assist the applicant to more fully understand the legislation that Centrelink, the SSAT and this Tribunal are obliged to follow.  However, before turning to this matter, it is necessary to consider the evidence in regard to the other diagnosed medical condition from which Mrs Huynh suffers, namely OCD.

35.     The Tribunal received several reports from relevant specialists describing the grounds upon which this diagnosis was made, and on the impact the condition was having upon Mrs Huynh.  The reports of Ms Nguyen, Dr Stella Kwong and Dr Hieu Pham were remarkably consistent in describing the features in Mrs Huynh’s illness which led to this diagnosis.  Thus I have no difficulty in accepting that Mrs Huynh does suffer from OCD with attendant elements of anxiety and depression.  I also accept that this condition has been present for several years.

36.     For a diagnosed condition to be awarded an impairment rating, it is necessary that the condition be diagnosed, fully treated and stabilised and thus deemed to be permanent.  Although Mrs Huynh has since late in 2005 sought help in treatment for her condition, she has unfortunately not as yet been able to access the type of multidisciplinary approach advised by Dr Pham.  Because of cost barriers and other reasons, neither has she been able to continue to attend Ms Nguyen or Dr Kwong.

37.     It is clear from Dr Kwong’s oral evidence to this Tribunal and Dr Pham’s report dated 26 May 2006 that when Mrs Huynh’s lodged a claim for DSP and during the subsequent 13 weeks, it would not have been possible to reach any conclusion other than that the OCD condition had not been fully treated and stabilised.  It follows that under the relevant legislation, no impairment rating can be made for this condition.

38.     While not relevant to the findings and determination that this Tribunal must make under the Act, it is appropriate that I interpolate here my comments that it is very clear from the reports of Dr Pham, Dr Kwong, Ms Nguyen and Dr Luu, and the letter from Dr Julia Anson which was provided to this Tribunal, that Mrs Huynh’s OCD is severe and it would not be in her best interests to be working or attempting to find work at present.  Mrs Huynh, who impressed me with her frankness and honesty, however is very keen to eventually enter the work force as she gave evidence to this Tribunal of two recent attempts to seek retraining as a library assistant and as a child care assistant.  Each attempt failed as she realised that her health problems made it very difficult for her to concentrate.

39.     I return now to the theoretical issue as to whether, had the Tribunal determined that Mrs Huynh’s impairment points totalled twenty or more, she had a continuing inability to work.  Dr Bui’s treating doctor’s report does not assist me in this matter.  However, Mrs Huynh is recorded by Dr Loewy as performing household chores, shopping and cooking.  In her evidence to this Tribunal, Mrs Huynh described doing her own housework with some assistance from her older daughter. On a usual day she will drive her daughters to school (5 minutes away) and then return home to do tasks such as cleaning, cooking and shopping.  Not all these tasks are simple or comfortable for her.  She needs to carry shopping bags on her elbow and she has trouble lifting cooking bowls.

40.     The preceding evidence indicates to me that Mrs Huynh (at the time of her claim and absent any knowledge of the complicating factor of the existence of severe OCD) would have been capable of undertaking light duties such as clerical work or as a sales assistant.  However, I emphasise that this aspect of the reasoning of the Tribunal is theoretical since my decision is based on the finding that (as at 7 June 2005 and during the next 13 weeks) the diagnosed conditions which were fully treated, stabilised and deemed permanent were not causing such impairment as to be awarded 20 impairment points.

DECISION

41.     The Tribunal affirms the decision under review.

I certify that the forty‑one [41] preceding paragraphs are a true copy of the reasons for the decision herein of

Dr K. Breen, Member

(sgd)    Olympia Sarrinikolaou

Clerk

Date of Hearing  19 January 2007
Date of Decision  22 February 2007
Advocate for the Applicant          Self‑represented
Advocate for the Respondent       Ms K. Paul, Centrelink Legal Services Branch