Jian Chang and Secretary, Department of Social Services
[2015] AATA 30
•22 January 2015
[2015] AATA 30
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/5138
Re
Jian Chang
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr P W Taylor, SC, Senior Member Date 22 January 2015 Place Sydney The decision under review is affirmed.
................[sgd]....................................................
Mr P W Taylor, SC, Senior Member
CATCHWORDS
SOCIAL SECURITY – pensions – disability support pension – whether the applicant’s impairment is of 20 points or more under the Impairment Tables – decision affirmed
LEGISLATION
Social Security Act 1991 ss 26, 94
Social Security (Administration) Act 1999 Sch 2, cl 4
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mr P W Taylor, SC, Senior Member
22 January 2015
Fifty three year old Mr Chang has not worked since his 1997 arrival in Australia. His general practitioner, Dr Zhu, considers he is unable to work – principally because of chronic joint pain affecting his neck, elbow and wrist, and Achilles tendonitis. On occasions Mr Chang has unsuccessfully relied on his general practitioner’s reports to apply for disability support pension. Centrelink rejected his most recent, 29 January 2013, application and confirmed that decision in an internal review in July 2013. On 26 August 2013 the Social Security Appeals Tribunal (“SSAT”) also rejected his application.
Mr Chang’s disability support pension qualification depends on satisfaction that within 13 weeks after his 29 January 2013 application (see Social Security (Administration) Act 1999 Schedule 2 clause 4(1))):
(a)he had “permanent” conditions – in the sense that they were fully diagnosed, treated and stabilised, and likely to persist for more than two years: see Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 subss 6(3)-(7) (“the 2011 Impairment Determination”);
(b)his “permanent” medical conditions resulted in a functional impairment affecting his capacity to work that is likely to persist for more than two years: see the 2011 Impairment Determination s 3, subss 6(3) and (8);
(c)his functional work impairments had an impairment rating of at least 20 points under the relevant Impairment Tables: see ss 26 and 94(1)(b) of the Social Security Act 1991 (“SSA 1991”) and the 2011 Impairment Determination Part 3;
(d)either his qualifying impairment rating includes at least 20 points under a single Impairment Table or he has actively participated in a program of support: see SSA 1991 ss 94(1)(c); 94(2)(aa), 94(3B), 94(3C) and 94(5) and the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (“the 2011 Participation Determination”);
(e)those functional impairments themselves prevented him, within the next two years, from either doing any (ordinarily remunerated) work for at least 15 hours per week, or undertaking a relevant training program: see SSA 1991 ss 94(1)(c); 94(2)(a), 94(2)(b) and 94(5).
Mr Chang’s inability to show that he has impairments meriting a 20 point rating under the Impairment Tables is the reason why Centrelink refused his January 2013 application – despite accepting that he was suffering “from the effects of serious medical conditions”. The SSAT refused the application for the same reason. Mr Chang complains that his various “serious medical conditions” require daily medication, disable him from even gentle exercise and prevent him from sleeping at night. He says he is very distressed by his pain and disability.
MR CHANG’S MEDICAL CONDITIONS
Mr Chang’s application for disability support pension, and the reports Dr Zhu provided in support of his application, collectively identified a range of conditions and symptoms as the cause of his impaired abilities. Those matters, the rating assigned to them by the SSAT, and the Secretary’s submission in the present proceedings, are listed in the following Table.
Condition Rating SSAT Secretary’s Submission diabetes 0 0 hypertension 0 0 neck pain 5 not “permanent” knee and heel pain 5 not “permanent” elbow and wrist pain 0 not “permanent” Total 10 0
The 2011 Impairment Determination with its prescriptive rules and Tables, governs the assessment of any rating for Mr Chang’s various medical conditions. Significant aspects of the 2011 Impairment Determination include the following:
(a)the Tables provide descriptions of various levels of functional impact (indicated by italicised type). Those levels are accompanied by particular examples of activities, abilities, symptoms or limitations (typically numerically itemised and indicated by ordinary font text). The functional impact of an impairment is to be assessed “by reference to” the listed examples: see the 2011 Impairment Determination subss 5(2)-5(3);
(b)an impairment point rating can only be assigned where conditions are (i) fully diagnosed, treated and stabilised, (ii) cause a functional impairment, and (iii) the impairment is likely to persist for more than two years: see the 2011 Impairment Determination subs 6(1)-6(4);
(c)a person’s impairment rating must be assessed on the basis of what the person can, or could, do normally or habitually, not on the basis of that they choose to do, or on what they can only do rarely: see the 2011 Impairment Determination subss 6(1) and 11(3);
(d)only the specified rating values can be assigned: see the 2011 Impairment Determination subs 11(1)(b);
(e)in choosing between impairment ratings the relevant descriptors should be compared to determine which rating is to be applied: see the 2011 Impairment Determination subs 11(2);
(f)if an impairment straddles two impairment ratings, the higher rating can only be assigned if all of its descriptors are satisfied: see the 2011 Impairment Determination subs 11(1)(c).
DIABETES AND HYPERTENSION
Mr Chang’s hypertension and diabetes have no real significance in assessing whether he qualifies for disability support pension. Neither gives rise to any significant impairment and neither warrants any rating under the Impairment Tables.
At the outset of the present hearing I asked for the relevant Impairment Tables to be translated to Mr Chang, with the specific purpose of inviting him to address my initial impression that his reported hypertension did not merit any rating. After the translation process had been completed, I asked Mr Chang whether he accepted that his hypertension was not a cause of any significant impairment and did not need to be considered as potentially meriting any impairment rating. Mr Chang agreed with that suggestion. His agreement reflects the underlying reality.
Mr Chang does have a history of elevated blood pressure. But he monitors the condition effectively and it is satisfactorily controlled by antihypertensive medication. It is, for present purposes, asymptomatic. Such an asymptomatic condition does not give rise to a functional impairment and, consequently, provides no basis for a rating under the 2011 Impairment Determination.
Mr Chang was diagnosed with diabetes in 2002. He takes a tablet form of glycaemic control agent. He has never required hospital admission for his diabetes and last saw a diabetic specialist clinician about five years ago. Mr Chang told me that his diabetic medication made him feel generally unwell, and that he has fainted several times in recent years. But that general claim, and the available history, in fact evidences that he has few specific symptoms as a result of his diabetic condition. There is no evidence that Mr Chang has developed any of the various complications commonly associated with diabetes – such as peripheral neuropathy or vascular disease.
Since at least February 2011 Dr Zhu has regularly included diabetes as a condition that impacts on Mr Chang’s ability to work. But in his 24 November 2011 report, Dr Zhu categorised both his diabetes and his hypertension as well managed and causing minimal or limited functional impairment. In more recent reports (in April and July 2013) Dr Zhu simply combined Mr Chang’s diabetes with his hypertension and his heel, wrist, elbow and knee complaints as a single condition. It was the combination of conditions that impacted on Mr Chang’s ability to function by restricting his endurance and his ability to stand or walk for long periods.
I regard the earlier reports by Dr Zhu as offering no real support to Mr Chang’s claim. I regard Dr Zhu’s more recent (2013) reports as lacking discrimination. There is no reliable evidence of any functional impairment attributable to Mr Chang’s diabetic condition. I conclude, therefore, that there is no basis for any impairment point rating.
CERVICAL SPINE – NECK PAIN
An 11 February 2011 X-ray report records that Mr Chang has some degenerative changes in his cervical spine, involving end plate anterior osteophytes and mild foraminal encroachment at C6/7. There was no evidence of other significant encroachment, no disc space narrowing and normal spinal alignment.
Notwithstanding the basically unremarkable February 2011 X-ray report, in a medical report dated 24 November 2011 (presumably in support of some earlier unsuccessful application) Dr Zhu described Mr Chang’s degenerative cervical spine condition as the condition that had the most impact on his functional abilities. Dr Zhu recorded complaints of chronic neck pain with associated difficulty in bending his neck. The only treatment was analgesia and physiotherapy.
The indication that Mr Chang’s neck condition only resulted in some restriction of flexion is repeated in a Job Capacity Assessment Report of 25 May 2012. It refers to a discussion with Dr Zhu and records his opinion that Mr Chang had lost between 30 and 40 degrees of flexion, but that he had normal lateral spinal movement.
A bone scan report of 28 June 2012 reported only mild active facet joint arthritis at the right side of C3/4 and on both sides of C4/5. The report made no reference to degenerative changes elsewhere in Mr Chang’s cervical spine.
Mr Chang told the SSAT that he could not sit very long because of neck pain. The SSAT observed however that he was able to stand up without assistance. Mr Chang remained seated throughout much of the current hearing, and did not request any break in the proceedings. However he said he had taken analgesics, was still feeling unwell and just generally tried to avoid sitting for long periods. In that context, in the course of cross-examination he disclosed that he had returned in China in late winter 2014. That trip involved a nine hour flight. Mr Chang explained that he was able to manage the trip by taking tablets before he left, and every four hours during the flight.
Notwithstanding Mr Chang’s reported difficulties with sitting and with flexion of his cervical spine, he is able to bend and pick things up from the floor. He can turn his head from side to side to see traffic when he is driving. He can hang out the washing and also assist his wife with the shopping in the supermarket, including retrieving items from the higher supermarket shelves.
The Secretary contended that Mr Chang’s neck condition was not properly characterised as “permanent” and therefore was not eligible for any rating under the Impairment Tables. This contention was based on Mr Chang’s disclosure of physiotherapy treatment after the 13 week period relevant to his application, the absence of any specialist referral, and the absence of any specific treatment in relation to pain management. The SSAT, on the other hand, accepted that Mr Chang’s neck condition had been appropriately diagnosed, was long standing, and involved degenerative change but no significant foraminal encroachment and or disc space narrowing. The SSAT’s implicit view was that these investigations tended to corroborate Dr Zhu’s view that Mr Chang had restricted cervical flexion, but did not require further treatment and that his condition was not likely to resolve to any significant extent. I regard the SSAT’s approach as correct and consistent with my own view.
The SSAT assigned an impairment rating of five points to Mr Chang under Table 4 – Spinal Function. The relevant parts of Table 4 are set out below.
Points
Descriptors
0
There is no functional impact on activities involving spinal function.
(1) The person can:
(a) bend down to pick a light object off the floor (e.g. a piece of paper); and
(b) turn their trunk from side to side; and
(c) turn their head to look to the sides or upwards.
5
There is a mild functional impact on activities involving spinal function.
(1) The person has some difficulty in:
(a) activities over head height (e.g. activities requiring the person to look upwards); or
(b) bending to knee level and straightening up again without difficulty; or
(c) turning their trunk or moving their head (e.g. to look to the sides or upwards).
10
There is a moderate functional impact on activities involving spinal function.
(1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a) the person is unable to sustain overhead activities (e.g. accessing items over head height); or
(b) the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c) the person is unable to bend forward to pick up a light object placed at knee height; or
(d) the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
20
There is a severe functional impact on activities involving spinal function.
(1) The person is unable to:
(a) perform any overhead activities; or
(b) turn their head, or bend their neck, without moving their trunk; or
(c) bend forward to pick up a light object from a desk or table; or
(d) remain seated for at least 10 minutes.
It is appropriate to observe that the examples in each of the “0 point”, “5 point” and “10 point” impairment levels require a degree of interpretation, and do not provide a totally clear basis for distinguishing between the various impairment levels. This is particularly true of the introductory part of the “10 point” level examples – the capacity to sit in a car for at least 30 minutes. The structure of the Table (and in particular the “20 point” example (d)) suggests that it was really intended to refer to an inability to sit in a car for at least 30 minutes. However it is actually expressed as a capacity. That description rather confounds a distinction between the “5 point” and “10 point” levels – because such a capacity would actually seem to be common to both impairment levels. The general thrust of the examples seems to be that a “5 point” rating is appropriate where the person has “some difficulty” in the specific activity examples. A “10 point” rating is appropriate where the person either cannot carry out, or cannot sustain, at least one of the similar examples in that impairment level. However that “general thrust” is complicated by the likely overlap between the two impairment levels. The generally intended distinction between the “5 point” and “10 point” examples is not particularly helpful in relation to the difficulty of “overhead” activities. The “5 point” level example talks, for example, about “some difficulty in” such an activity. The “10 point” level describes being “unable to sustain” the activity. There is I think a considerable element of overlap in these examples, because “some difficulty” in carrying out the activity is highly likely to result in an inability to sustain the activity. This is particularly true in Mr Chang’s case where he said that he tended to avoid getting things from elevated cupboards or supermarket shelves, because he was apprehensive about the likelihood of the activity causing discomfort and worsening his condition.
Consistent with the principles described in paragraphs 5(c) and 5(f) above, I think that the proper approach to the application of Table 4 to Mr Chang’s functional impairments is to regard them as falling within the “5 point” level. This is so for two main reasons. The first is that his complaints tend to go more to his difficulty in carrying out particular activities, rather than to an actual inability to do them. The second is that, given the potential overlap between the two impairment levels, I regard the principles in paragraph 5 above as requiring Mr Chang to satisfy all of the “10 point” level examples before he could properly be allocated that impairment rating. My earlier findings (in paragraph 17) mean that he cannot.
ACHILLES TENDON – HEEL PAIN
An ultrasound report of 7 November 2011 recorded that Mr Chang had enthesopathy at the point of insertion of his Achilles tendon, and associated bursitis and small insertional tears. The report opined that the ultrasound appearances were suggestive of Haglund’s syndrome.
Dr Zhu’s medical report of 24 November 2011 included reference to enthesopathy affecting Mr Chang’s left Achilles tendon, but indicated that it was a condition that was well managed and caused minimal or limited functional impact. Dr Zhu made no mention at that time of enthesopathy affecting Mr Chang’s right foot. In a discussion with the Job Capacity Assessor in about November 2011Dr Zhu indicated that the left foot condition was improving.
Subsequently a bone scan report of 28 June 2012 reported intense hyperaemia at the postero-superior aspect of Mr Chang’s right calcaneum. The report concluded that Mr Chang had severe right Achilles tendonitis and mild left Achilles tendonitis.
In a 21 January 2013 medical report support submitted with Mr Chang’s application, Dr Zhu included severe right Achilles tendonitis as one of the two conditions that had the most impact on Mr Chang’s functional abilities. But in a medical certificate dated 29 January 2013 he made no specific reference to Achilles tendonitis. Instead he included Mr Chang’s heel pain (and Haglund’s deformity) with his hypertension and diabetes – conditions that Dr Zhu described as having little impact on his functional abilities. In a later medical report, dated 18 April 2013, Dr Zhu again included severe right Achilles tendonitis as one of the two conditions that had the most impact on Mr Chang’s functional abilities. But he also included Mr Chang’s diabetes, hypertension, right heel spur and right knee pain as contributing conditions. He also reported that Mr Chang was not suffering from any medical conditions that were well managed and caused minimal or limited impact. These variations in Dr Zhu’s opinions bespeak a lack of discrimination in his reports, and dictates considerable reserve about accepting his opinion about the significance of Mr Chang’s tendon and heel pain.
The SSAT treated Mr Chang’s complaint about right Achilles tendon pain as associated with his other complaint about right knee pain. This does not reflect the differentiation Dr Zhu made in his 21 January 2013 medical report. But it is consistent with Dr Zhu’s 29 January 2013 medical certificate.
Mr Chang told the SSAT that his knee and heel pain causes him to have to walk very slowly and sometimes use a walking stick. He uses Mobic and Celebrex (both nonsteroidal anti-inflammatory drugs) for the condition. He said it hurts to walk to the nearby shops or to the bus stop. However he can drive to the local train station and to the shopping mall where he helps his wife with the shopping, both in selecting items and in going through the checkout.
That part of Mr Chang’s evidence to the SSAT was likely in response to questions from the Tribunal relating to the various examples in the “5 point” impairment level in Table 3 – Lower Limb Function. Those questions appear to have been followed by other questions directed towards the examples in the “10 point” impairment level in Table 3. In response to those questions Mr Chang is reported to have told the SSAT that it hurts him to go up the stairs of the railway station and that he cannot stand for more than five minutes. In answers to further questions that were likely to have been directed to the examples in the “20 point” impairment level in Table 3, Mr Chang said that he could not squat and would not be able to get up from a kneeling position without assistance.
In various Job Capacity Assessment Reports, dated variously 12 December 2011, 25 May 2012 and 6 February 2013 Mr Chang reported being able to walk more than 500 m, albeit at a slow pace. In the course of his evidence in the present proceedings Mr Chang gave evidence that he could walk to the nearby bus stop and that he did the grocery shopping with his wife. He said he would normally use a stick when he walked. In order to attend the Tribunal hearing he had driven his car to the train station, and walked from the car to the train, and again from the train to the Tribunal’s premises. Throughout the hearing Mr Chang sat with a single walking stick laid on the table in front of him.
The SSAT regarded Mr Chang’s heel and knee pain as “permanent” and gave rise to a mild impairment with a rating of 5 points under Table 3 – Lower Limb Function. The relevant part of Table 3 – Lower Limb Function is set out below.
Points
Descriptors
0
There is no functional impact on activities requiring use of the lower limbs.
(1) The person can:
(a) walk without difficulty on a variety of different terrains and at varying speeds; and
(b) walk without difficulty around the home and community; and
(c) kneel or squat and rise back to a standing position without difficulty; and
(d) stand unaided for at least 10 minutes; and
(e) use stairs without difficulty.
5
There is a mild functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a) the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or
(b) the person has some difficulty walking around a shopping mall or supermarket without a rest; or
(c) the person has some difficulty climbing stairs; and
(2) At least one of the following applies:
(a) the person is unable to stand for more than 10 minutes;
(b) the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.
10
There is a moderate functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a) the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or
(b) the person is unable to use stairs or steps without assistance; or
(c) the person is unable to stand for more than 5 minutes; and
(2) The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.
(3) This impairment rating level includes a person who can:
(a) move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or
(b) move around independently using walking aids (e.g. quad stick, crutches or walking frame).
Note: The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.
There are difficulties in distinguishing between the various examples in the “5 point” and “10 point” impairment levels in the Table. Part of the difficulty lies in the imprecision of the example referring to a person’s inability to walk “far” outside their home. Presumably it is intended to contrast with the “5 point” example referring to difficulty in walking to local facilities, and conveys an inability to overcome the difficulties involved in such a pedestrian journey. Such a contrast, between difficulty and inability, is also suggested by the two examples referring to the use of stairs. But another difficulty in the distinction is the different treatment that applies to standing ability. In the “5 point” examples an inability to stand for more than 10 minutes is but one aspect of a cumulative impairment that must also be accompanied by difficulty in walking. However the “10 point” example treats an inability to stand for more than 5 minutes as an independent qualification, apparently irrespective of any lack of difficulty or incapacity that a person may have in walking.
But for Mr Chang’s claim that he cannot stand for more than five minutes there is no possible basis (given the evidence to which I have referred in paragraphs 27 to 29) on which his knee and heel conditions could be assessed as meriting an impairment score greater than 5 points. Two questions then arise. The first is whether that claimed inability should be accepted. The second is whether its acceptance would result in a greater impairment score – having regard to the difficulty of the distinction between the “5 point” and “10 point” impairment levels in Table 3, and the assignment rules referred to in paragraph 5 above.
In answer to the first question I would not be inclined to accept Mr Chang’s uncorroborated evidence that he could not stand for more than five minutes. The claim is difficult to reconcile satisfactorily with his evidence about using a stick to walk, accompanying his wife to the supermarket, and his evidence about his use of a car and train to travel to the Tribunal hearing. But in any event, the Introduction to Table 3 requires that there must be corroborating evidence of a person’s impairment. In the present case there is some degree of corroboration, but it does not go to the specificity of Mr Chang’s complaint that he cannot stand for more than five minutes. That corroboration is found in Dr Zhu’s statement (in his 21 January 2013 report). Dr Zhu said only that Mr Chang is “unable to stand for long hours”. This statement falls a long way short of corroborating Mr Chang’s complaint. For both of these reasons, therefore, I do not accept Mr Chang’s complaint.
In answer to the second question I raised in paragraph 32, I would in any event conclude that Mr Chang’s evidence, by disclosing walking difficulties only of the kind referred to in the “5 point” examples in Table 3, tends to suggest that his impairment complaints straddle the examples in that level and in the “10 point level”. On that basis, consistent with the rules referred to in paragraphs 5(c) to 5(f) above, and Mr Chang’s evidence about his ability to walk, I consider that the “5 point” impairment level applies to his knee and heel pain complaints.
WRIST AND ELBOW PAIN
Mr Chang’s wrist and elbow pain have been the subject of various reports and assessments going back as far as 2005. In a 2008 Job Capacity Assessment Report Mr Chang is recorded as providing a history that he injured his arm in China in 1983 (when he was aged 22) and that he had not been able to undertake heavy duties since that time. However the report added that Mr Chang was able to manage ordinary daily tasks, despite having more pain in cold weather.
In his 21 February 2011 medical certificate Dr Zhu included a report of right elbow pain and noted a history of many years of chronic wrist pain, as a result of a past injury. Dr Zhu thought that Mr Chang’s wrist condition had an uncertain prognosis. A 25 February 2011 Job Capacity Assessment Report recorded a history of past specialist investigations, and current acupuncture and analgesic treatment. The report opined that Mr Chang’s wrist and elbow pain caused moderate impairment by reducing his dexterity in using everyday objects such as cups, pens or keypads. A later Job Capacity Assessment Report of 12 December 2011, relating to an application by Mr Chang for disability support pension, recorded a similar opinion, but noted observations that during the course of the assessment interview Mr Chang had used his right arm to write, remove the contents of an envelope and to handle various documents. The report also included reference to a discussion with Dr Zhu on 16 December 2011, and attributed to him a similar opinion that Mr Chang’s wrist and elbow pain caused moderate interference with his ability to use his hand normally. The description “moderate” interference was reflected in a suggested impairment rating of 10 points (albeit under the pre-January 2012 version of the Impairment Tables). The substance of this assessment, but without any suggested impairment rating, was repeated in later Job Capacity Assessment Reports of 25 May 2012 and 6 February 2013.
According to what he told the SSAT, Mr Chang is able to attend to the usual activities of daily living – a description that includes showering, washing his hair, dressing, doing up buttons, writing and handling coins. He is able to unscrew the tops of bottles and can carry light shopping bags, although it is a task he prefers to allocate to his left hand. The SSAT thought that Mr Chang’s pain was appropriately treated with ordinary analgesic medication, and that he had a nil rating under the relevant Impairment Table.
During the course of his evidence in the present proceedings Mr Chang pointed to a small thickening in the area of his right wrist. He claimed that it indicated ligament damage that had prevented him from working in China. He claimed it prevented him from doing even such a simple thing as holding a milk bottle. But he then qualified that assertion by saying that if he did use his right hand to pick up or hold a milk bottle that would put strain on his hand, and he was concerned that it might get worse. Later in the course of cross-examination Mr Chang conceded that he could pick up a milk bottle in his right hand. He also agreed that he was able to use his walking stick in either hand. He complained, however, that he could not hold a bottle of milk in his right hand “for two or three minutes” and that he had to change his walking stick from one hand to the other. He said that, because of the difficulties he has with his right wrist he just tended to avoid using it and that he tried to do things one-handed.
The Secretary contended that Mr Chang’s wrist and elbow pain should not be regarded as “permanent” and was not eligible for any rating under the 2011 Impairment Determination. In support of that contention the Secretary points out that in several reports (in February and September 2011) Dr Zhu had categorised Mr Chang’s complaints of wrist and elbow pain as a temporary condition, albeit with an uncertain prognosis. It was not until his January 2012 medical certificate that Dr Zhu characterised the condition as permanent. Even then, despite Mr Chang’s account that he broke his wrist many years ago, there is little information to substantiate that claim or to attempt to explain the reason for Mr Chang’s symptoms. In that context it is significant to note that there is no evidence of any specialist consultation, examination or treatment apart from a bone scan in June 2012. That scan was the result of a referral by Dr Zhu to evaluate Mr Chang’s various complaints of joint pain. The bone scan report of 28 June 2012 described only mild degenerative arthritis in Mr Chang’s radio-carpal joints and in “a few small joints of the hands bilaterally”. The only proffered diagnosis for Mr Chang’s complaints is the description “right distal ulnar region ligament strain” that is contained in Dr Zhu’s various reports.
The SSAT treated Mr Chang’s wrist and elbow pain conditions as “permanent” and eligible for an impairment rating. It did so on the basis that his symptoms “appear to be related to previous trauma and are appropriately treated with analgesic agents”. This reasoning appears to have three elements: (i) satisfaction that there was no evidence of any underlying remediable cause of Mr Chang’s pain, (ii) an opinion that the pain did not cause significant functional impairment, and (iii) an understanding that the pain was appropriately treated with analgesics. Because of those matters the SSAT thought that no further investigation or treatment was required and the condition could properly be regarded as permanent.
Although Mr Chang has a long history of at least wrist pain, I doubt that his condition can properly be regarded as “permanent” – in the sense of either being fully diagnosed or fully stabilised. There is little information to substantiate Dr Zhu’s diagnosis of right distal ulnar region ligament strain, and there is no explanation for Dr Zhu’s apparent change of opinion in characterising the condition as temporary rather than permanent. There is also the June 2012 bone scan referral. The referral itself perhaps indicates some concern on Dr Zhu’s part as to whether his “ligament strain” diagnosis provided an adequate explanation for Mr Chang’s symptoms. The bone scan report identified mild degenerative change in Mr Chang’s wrist joints. And finally there is the appearance that Mr Chang’s claimed right arm impairments are more related to apprehensions about what he cannot do than they are to actual physical impairment. This appearance is relevant because it tends to remove the basis for confidence that, with appropriate treatment (analgesia, physiotherapy, re-assurance and encouragement) Mr Chang’s wrist and elbow pain is unlikely to undergo relevant “significant functional improvement”.
In the circumstances I have outlined in the previous paragraph I am not satisfied that the conditions causing Mr Chang’s wrist and elbow pain are relevantly “permanent” so as to qualify for a rating under the Impairment Tables.
Even if I am incorrect in my conclusion about the permanence of Mr Chang’s wrist and elbow conditions, I am not satisfied that they merit an impairment rating of more than 5 points. The relevant table in the 2011 Impairment Determination, is Table 2 – Upper Limb Function. Its relevant terms are as set out below.
Points
Descriptors
0
There is no functional impact on activities using hands or arms.
(1) The person can pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty.
5
There is a mild functional impact on activities using hands or arms.
(1) The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:
(a) picking up heavier objects (e.g. a 2 litre carton of liquid or carrying
a full shopping bag);
(b) handling very small objects (e.g. coins);
(c) doing up buttons;
(d) reaching up or out to pick up objects.
10
There is a moderate functional impact on activities using hands or arms.
(1) The person has difficulty with most of the following:
(a) picking up a 1 litre carton full of liquid;
(b) picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);
(c) holding and using a pen or pencil;
(d) doing up buttons or tying shoelaces;
(e) using a standard computer keyboard;
(f) unscrewing a lid on a soft-drink bottle.
20
There is a severe functional impact on activities using hands or arms.
(1) Most of the following apply to the person:
(a) the person has limited movement or coordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional;
(b) the person has severe difficulty handling, moving or carrying most objects even when using or wearing any prosthesis or assistive device that they have and usually use;
(c) the person has difficulty using a computer keyboard despite appropriate adaptations;
(d) the person has severe difficulty using a pen or pencil;
(e) the person has severe difficulty turning the pages of a book without assistance.
In his evidence in the present proceedings, in response to specific questions about the various examples in the impairment levels in Table 2, Mr Chang said that he could pick up and handle a heavy object (of the kind indicated in the first example in the “5 point” rating level), he could handle a pen or pencil, he could do up buttons and shoelaces but that he had difficulty in reaching to pick up objects. In relation to the examples in the “10 point” rating level in Table 2 Mr Chang said that he could pick up a container of milk, use a pen or pencil, do up buttons or shoelaces, and could use a phone keyboard. But he could not unscrew lids.
Mr Chang’s evidence in the review proceedings is broadly consistent with the information he is recorded as having given to the SSAT. A passage in the SSAT’s reasons (at paragraph 22) clearly indicates that Mr Chang gave evidence in response to questions from the SSAT about the various examples in the “5 point” rating level examples in Table 2. The SSAT recorded his evidence that he had no difficulty with daily activities (showering, doing up buttons, writing and handling coins) and that he was “able to unscrew the top of a bottle of soft drink and … carry light shopping bags, preferably with his left hand”.
The combined effect of the evidence that Mr Chang gave to the SSAT and in the present hearing is that his wrist and elbow pain gives rise, at most, to mild functional impairment – consistent with the various examples in the “5 point” impairment level. When further regard is had to the interpretative principles referred to in paragraphs 5(c) and 5(f) above, the proper conclusion is that Mr Chang’s wrist and elbow conditions, if accepted as “permanent” merit, at best, only a 5 point rating.
DECISION
My assessment is that Mr Chang has a total impairment rating of only 10 points (for his neck and lower limb conditions). Even my alternative assessment, which assumes (contrary to my finding) that his wrist and elbow condition is “permanent”, results in a total impairment rating of only 15 points. Neither of those impairment ratings satisfies the threshold 20 point rating required by SSA 1991 s 94(1)(b). Consequently, Mr Chang is not qualified to receive a disability support pension.
Accordingly, the decision under review is affirmed.
I certify that the preceding 48 (forty -eight) paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor, SC, Senior Member ....................[sgd].................................................
Associate
Dated 22 January 2015
Dates of hearing 10 November 2014 and 8 December 2014 Applicant In person Advocate for the Respondent Ms B Salaji, Department of Human Services
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Impairment Rating
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Disability Support Pension
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Threshold Requirements
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