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

[2016] AATA 511

Le and Secretary, Department of Social Services (Social services second review) [2016] AATA 511 (21 July 2016)

Division	GENERAL DIVISION
File Number	2015/6590
Re	Wei Kang Le
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey
Date	21 July 2016
Place	Sydney

The Tribunal affirms the decision under review.

.........................[sgd]...............................................

Senior Member J F Toohey

CATCHWORDS

SOCIAL SECURITY – disability support pension – cancellation – whether applicant qualified at date of cancellation – whether impairments rated 20 points or more – decision under review affirmed

LEGISLATION

Social Security Act 1991

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

REASONS FOR DECISION

Senior Member J F Toohey

21 July 2016

Background

1. Mr Wei Kang Le has been receiving disability support pension (DSP) since October 2003, following an injury at work in 1999.  In May 2015, he contacted Centrelink to discuss his intention to travel to China for three months.  His contact led to Centrelink reviewing his qualification for DSP.  

2. On 27 July 2015, Centrelink decided that Mr Le did not qualify for DSP and cancelled his payment.  On 20 August 2015, a Centrelink authorised review officer affirmed that decision.

3. On 1 December 2015, the Social Services and Child Support Division of the Administrative Appeals Tribunal (SSCSD) affirmed the decision to cancel Mr Le’s DSP.  Mr Le seeks review of that decision.

   Mr Le’s medical conditions

4. At the date of cancellation of his DSP, Mr Le was suffering from a disc herniation in his lumbar spine and a disc protrusion in his cervical spine, bicipital tendonitis in his left shoulder, depression, and he was recovering from treatment for thyroid cancer.  Although it was not considered by Centrelink or the SSCSD, Mr Le also suffers from pain and numbness in his left leg. 

   Qualification for DSP

5. The legislation concerning DSP is found in the Social Security Act 1991 (the Act).  Section 94 provides that, to qualify for DSP, a person must have:

   (i)a physical, intellectual or psychiatric impairment, or impairments, which  rates at 20 or more points according to the Impairment Tables in the Act; and,

   (ii)a continuing inability to work as defined in the Act.

6. The provisions concerning qualification for DSP have been amended a number of times since 2003 when Mr Le qualified for the payment.  Prior to amendments to the Act on 1 July 2006, a person could have a continuing inability to work if he or she was unable to work for 30 or more hours per week.  The hours have been reduced so that, now, a person must be unable to work for 15 hours or more per week.    

7. It is not in dispute, and I am satisfied, that at the date of cancellation, Mr Le had a continuing inability to work within the meaning of the Act as it applied to him.  The only issue for the Tribunal, therefore, is whether at the date of cancellation, his impairments rated 20 points or more on the Impairment Tables.

   The Impairment Tables

8. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) includes tables which are used to assess the effect of impairments on a person’s work performance.  Depending on its severity, an impairment may be given a rating between nil and 30 points, according to whether its effect is nil, mild, moderate, severe or extreme. 

9. An impairment can only be given a rating if the condition causing it is permanent and the resulting impairment is more likely than not, in light of available evidence, to persist for more than two years: cl 6(3).  A condition is permanent if it is fully diagnosed, treated and stabilised: cl 6(4)(a)-(c). 

10. In determining whether a condition has been fully treated, the Tribunal must consider whether there is corroborating evidence of the condition, what treatment or rehabilitation there has been and whether treatment is continuing or is planned in the next two years: cl 6(5).

11. Fully stabilised means that a person has had reasonable treatment and any further reasonable treatment is unlikely to result in functional improvement to a level enabling the person to undertake work in the next two years, or significant functional improvement is not expected even with reasonable treatment, or there is a medical or other compelling reason for the person not to undertake reasonable treatment: cl 6(6).

    Information before the Tribunal

12. The Secretary has provided the Tribunal and Mr Le with a bundle of documents which include Centrelink records, medical reports and a report of a Job Capacity Assessment (JCA) undertaken on 20 July 2015.  It also includes a further JCA which was undertaken on 13 November 2015 after Mr Le made a new claim for DSP.

13. At the hearing, Mr Le provided further medical reports and documents in support of his application for review.  He was assisted by his friend, Mr Yiming Weng.

    Mr Le’s spinal conditions

14. The Secretary contends that Mr Le’s spinal conditions were not fully treated and stabilised in May 2015. 

15. A medical report from Mr Le’s then general practitioner, Dr J S Haddad, shows that Mr Le had had physiotherapy and acupuncture in the past.  On 16 May 2015, Mr Le’s current general practitioner, Dr Joe Wang, reported that he had physiotherapy for “at least 2 years” from 2002, and acupuncture for “at least 1 year” from 1999. 

16. The Secretary refers to a report dated 17 September 2015 from Dr Wang which refers to Mr Le’s cervical spondylosis as a “temporary exacerbation of a permanent condition” and states that planned treatment was “will try physiotherapy again”.

17. The Secretary also relies on a report dated 2 October 2015 from Dr Alexander Woo, orthopaedic surgeon, in which he states that Mr Le “needs symptomatic treatment with medication for pain and physiotherapy” for his chronic neck, back and shoulder pain.

18. Mr Le told the first job capacity assessor that he had not had any treatment for his back condition since 2002.  The Secretary submits that, in the absence of any treatment since 2002, and in light of Dr Wang’s recommendation for further physiotherapy and Dr Woo’s recommendation for medication and physiotherapy, Mr Le’s spinal conditions cannot be considered fully treated and stabilised at the date of cancellation.  For the following reasons I do not agree.

19. In a report dated 8 January 2002, prepared for the purposes of his workers compensation claim, Dr Woo stated it was “likely that [Mr Le] will have permanent neck and back pain”.  He assessed Mr Le as having a 25 per cent impairment of the neck and 25 per cent permanent impairment of the back. 

20. Dr Haddad’s report of 25 September 2006 showed that Mr Le had suffered “discogenic low back pain” since his injury in 1999 for which past and future treatment was physiotherapy and acupuncture.  Dr Haddad reported that his condition was expected to last more than 24 months and was expected to deteriorate. 

21. Taking into account the long standing nature of Mr Le’s spinal conditions, the reports by Dr Wang and Dr Woo which state that both conditions are chronic and permanent; that the only treatment recommended has been physiotherapy and acupuncture; that the only current recommendation is for symptomatic treatment; and that there is nothing to suggest there will be any improvement in his spinal conditions; I am satisfied that both were fully treated and stabilised at the date of cancellation of Mr Le’s DSP. 

22. The Secretary submits that, even if the Tribunal accepts that Mr Le’s spinal conditions were fully treated and stabilised at that date of cancellation, they did not rate more than 10 points under Table 4 (Spinal Function).  For the following reasons, I agree.

23. Table 4 provides that there is moderate functional impact on activities involving spinal function (10 points) where a person is able to sit in or drive a car for at least thirty 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).

24. The record of the JCA in May 2015 shows that Mr Le told the assessor that he could sit for 30 minutes, stand for 15 minutes, walk for 30 minutes, rise from a seated position without assistance, reach overhead, use stairs, does not use a walking aid, and can kneel and squat but he avoids these actions because of pain.  A report from Dr Woo dated 21 August 2015 shows that Mr Le could move his neck but with restrictions, he could bend, and he could reach below his knees.  The record of the second JCA in November 2015 shows that Mr Le confirmed that he could still undertake these activities.

25. The record of the decision of the SSCSD shows that Mr Le told the Tribunal member that he was able to sit for at least 30 minutes but at times he had difficulty with activities which require him to elevate his arms above head height; he experienced pain when moving his trunk but could do so; he had some difficulty bending forward to pick up a light object at knee height.  On this basis, the Tribunal was satisfied that a rating of 10 points was appropriate.

26. Dr Woo reported on 21 August 2015 that Mr Le had developed chronic pain in his back and neck, and neck movement were restricted in all directions.

27. I accept that, at that date of cancellation of his DSP, Mr Le had difficulty moving his head to look in all directions. On this basis, I am satisfied that his spinal condition had a moderate impact on his ability to function and rated 10 points.

28. I am not satisfied that the Mr Le’s spinal condition was severe at the date of cancellation.  Table 4 provides that there is severe functional impact (20 points) on abilities involving spinal function where a 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.

29. Mr Le gave evidence before the Tribunal that he is unable to reach up with his left arm because of his shoulder pain, but he is able to extend his right arm to perform overhead activities.  It was apparent at the hearing that he was able to turn his head and bend his neck independently of his trunk. He was able to bend forward to pick up papers from the desk and he remained seated for over ten minutes. 

    Mr Le’s shoulder condition

30. Scans of Mr Le’s shoulder on 20 July 1999 showed that he had a “history of trauma and limitation of abduction”; he had “left bicipital tendinitis but no evidence of any rotator cuff tear or tendon impingement”.

31. Dr Woo’s report of 21 August 2015 shows that Mr Le had chronic left shoulder pain and stiffness.  He recommended “[c]onservative treatment”.  In a report on 2 October 2015, Dr Woo stated that Mr Le “has chronic neck pain, back pain, left shoulder pain and stiffness resulting in permanent impairment and disability”. He said Mr Le needed “symptomatic treatment with medication for pain and physiotherapy”.

32. The Secretary contends that, in the absence of any medical treatment or medical intervention since 2002, Mr Le’s shoulder condition was not fully treated and stabilised at the date of cancellation.  I do not agree. There is no suggestion in any of the reports that Mr Le should undergo any treatment other than medication and physiotherapy.  Dr Woo, who is an orthopaedic specialist, recommends “symptomatic treatment” only. I am satisfied that this condition was fully treated and stabilised at the date of cancellation.

33. The Secretary contends that, in any event, Mr Le’s shoulder condition should be rated nil  points under Table 2 (Upper limb function).  I agree.

34. Table 2 provides that there is mild functional impact on activities using hands or arms where:

    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.

35. Mr Le told the Tribunal that he can manage most daily activities but has difficulty picking up heavier objects; he can manage the other activities listed without difficulty. This is consistent with the reports of the JCAs in July 2015 and November 2015, and with what he told the SSCSD.

36. On this basis, Mr Le’s shoulder condition rates nil points according to Table 2.

    Depression

37. Reports in May 2002 from Dr Haddad and July 2002 from Dr S Kotulski from Health Services Australia, show that Mr Le was suffering from depression.  Dr Kotulski reported that Mr Le was seeing a psychologist, but not a psychiatrist, and was taking no antidepressant medication.  In September 2006, Dr Haddad reported that Mr Le had “depression due to chronic illness” which was treated with sleeping tablets.

38. There are no further reports relating to Mr Le’s psychological condition until July 2015.  Dr Wang did not refer to any psychological condition in his report of 16 May 2015.

39. A report dated 18 July 2015 from Wei Lu, registered psychologist, shows that Mr Le had been referred to him “primarily for depression and anxiety”.  Mr Lu stated that Mr Le had been diagnosed with thyroid cancer in 2004 for which he had received treatment; he was experiencing “persistent depressed mood, anxiety, sleep disturbance, low self-esteem, fatigue, social withdrawn (sic), agitation, and anger”; he was “highly frustrated” regarding his injury and with “the resolution of the accident”, and he felt he had been treated unfairly by the insurer.  Mr Lu diagnosed Mr Le as suffering from Persistent Depressive Disorder.

40. Around October 2015, Dr Wang referred Mr Le to clinical psychologist, Shun Shing Ma.   Mr Ma considered he met the “full diagnostic criteria of Major Depressive Disorder, and Adjustment Disorder with Anxiety”. He said Mr Le had felt “worthless” and “depressed” because of the pain and loss of functioning following his accident, and the diagnosis of thyroid cancer in early 2014 “further impacted onto his mood”; he “continued to suffer from low mood, and anxiety of relapse, as he had a very strong family history of cancer”.

41. Mr Ma noted that, after Mr Le’s workers compensation claim was finalised (around 2009), his insurer no longer paid for his mental health treatment and he had no choice but to stop counselling; he resumed counselling in 2015 when he learned that bulk billing was now available.  Mr Ma reported that Mr Le’s psychological symptoms were likely to require ongoing psychological and medical consultation and monitoring; his depressive and anxiety symptoms were likely to persist over the next two years, “though some degree of relief might be possible from mental health treatment”.

42. Dr Wang reported on 19 November 2015 that Mr Le was suffering from adjustment disorder with anxiety “due to fear of cancer relapse”.

43. The Secretary says, and I accept, that Mr Le’s depression, while long-standing, could not be considered fully treated and stabilised at the date of cancellation.  For understandable reasons, he had not had any treatment for many years but Mr Ma’s report shows there is some real prospect of improvement with treatment.

44. In these circumstances Mr Le’s psychological condition cannot be considered permanent at the date of cancellation, and cannot be given an impairment rating.

    Thyroid cancer (in remission)

45. Mr Le was diagnosed with thyroid cancer in early 2014. He underwent a total thyroidectomy and now has annual reviews. He takes prescribed medications.

46. On 16 May 2015, Dr Wang reported that Mr Le’s treatment was ongoing; he had undergone thyroidectomy and radiotherapy, and needed further follow-up with Dr Chipps, endocrinologist.  He listed this condition as one that is “generally well managed and that cause minimum limited impact on the ability to function”

47. The Secretary contends that, as Mr Le has undergone a thyroidectomy, he no longer has a permanent cancer condition.  Whether that view would be supported by doctors is not clear but the evidence appears to be that Mr Le’s thyroid cancer has been fully treated and stabilised.

48. Table 1 (Functions requiring Physical Exertion and Stamina) is used to assess conditions which result in physical impairment when performing activities requiring physical exertion or stamina, including cancer.  It provides that there is no functional impact on those activities if:

    1)    The person:

    (a)is able to undertake exercise appropriate to their age for at least thirty minutes at a time; and

    (b)has no difficulty completing physically active tasks around their home and community.

49. The Secretary says, and I accept, that Mr Le is able to undertake those activities.  The information before the Tribunal does not support the conclusion that, as a result of his thyroid cancer, Mr Le’s capacity to function is affected to the extent needed to attract a rating of five or more impairment points on Table 1.

    Left leg condition

50. There are references throughout the medical reports to Mr Le suffering from left leg pain since his workplace injury.  For reasons which are not clear, this condition appears not to have been considered in the course of the decision to cancel Mr Le’s DSP or in the review by the SSCSD.

51. On 8 January 2002, Dr Woo reported that Mr Le had “decreased sensation and weakness of the left leg” when he examined him in July 1999 and he had continued to complain of pain “in both legs more severe on the left”.  He said it was likely Mr Le would have “permanent neck and back pain and referred pain in his left arm and both legs”.  He considered Mr Le had 25 per cent permanent loss of efficient use of the left leg and 15 per cent permanent loss of efficient use of the right leg.

52. On 8 May 2002, Dr Haddad reported that Mr Le had “back pain radiating with the left lower limb” since May 1999, and he had difficulty “lifting, walking and [indecipherable]”. On 13 September 2003, he reported that Mr Le had discogenic and ligamentous low back pain and nerve root compression; he had symptoms of low back pain and sciatica in his left lower limb which had not resolved.

53. A “Work Capacity/Participation Assessment Report” dated 3 October 2003, apparently prepared on behalf of Centrelink by Dr Indrani Mukhajee, refers to Mr Le’s low back pain and nerve root compression.  It describes his left leg weakness as referred pain and states “no medical evidence provided to note a separate upper or lower limb condition: customers referred problems are due to the spinal injury”.

54. In his report on 25 September 2006, Dr Haddad referred to Mr Le’s low back pain and “left lower limb pain” noting the pain was “constant with frequent exacerbations”.  JCA report on 18 October 2006 noted that the Mr Le’s left leg was numb. The JCA report on 25 May 2015 noted that Dr Wang’s report referred to “lower back pain with radiation down his left lower leg”.

55. I do not accept the Secretary’s contention that there is no evidence as to the cause of Mr Le’s left leg symptoms.  There are ample references in the reports to low back and nerve root compression, to pain radiating into Mr Le’s left leg and, specifically, to his back, as the cause of the radiating pain referred to in Dr Mukherjee’s report.

56. For the same reasons as relate to his spinal condition, I am satisfied that Mr Le’s left leg was fully treated and stabilised at the date of cancellation.

1. Clause 10(3) of the Determination provides that, where a single condition causes multiple impairments, each impairment should be assessed under the relevant table. By way of example, it states that “a stroke may affect different functions, thus resulting in multiple impairments which could be assessed under a number of different Tables including: upper and lower limb function…; brain function…; communication function…; and visual function…”.

2. Table 3 is used to assess lower limb function. It provides there is a mild functional impact (and, therefore, a rating of five points) if:

   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.

3. Mr Le told the Tribunal that he is able to walk, for example around a shopping centre, but he goes slowly, “step-by-step”.  He can climb stairs but rests after one flight.  He can catch a train but does not stand up. He said he feels embarrassed to use a walking stick because he is still young.  He said he is able to stand for about 10 minutes.

4. I accept that Mr Le has some difficulty walking to local facilities, and around a supermarket without a rest, and I accept he has some difficulty climbing stairs.  How much of his difficulty is attributable to his back and how much to his lower limb is not clear but I will accept that at least some of his difficulty is attributable to his left leg.  I will also accept that he can stand for up to, but not more than, 10 minutes.

5. On this basis, I find that Mr Le’s impairment of his left leg had a mild functional impact and rated five points on Table 3.  The information before me does not support the conclusion that it had a moderate or severe functional impact.

   Conclusion

6. I recognise that the decision to cancel Mr Le’s DSP has serious financial implications for him but the Tribunal must apply the law.  While I am satisfied that his impairments rated 15 points, rather than 10 points as the SSCSD found, I am not satisfied that they rated 20 or more impairment points.  I must there affirm the decision that he did not qualify for DSP at the date of cancellation.

I certify that the preceding 62 (sixty -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey

............................[sgd]............................................

Associate

Dated 21 July 2016

Date of hearing	7 July 2016
Applicant	In person
Solicitors for the Respondent	Ms G Heggen