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

[2015] AATA 855

Le and Secretary, Department of Social Services (Social services second review) [2015] AATA 855 (10 November 2015)

Division	GENERAL DIVISION
File Number	2015/2182
Re	Tin Thanh Le
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A C Cotter
Date	10 November 2015
Place	Brisbane

The Tribunal affirms the decision under review.

...........................[Sgd].............................................

Senior Member A C Cotter

CATCHWORDS

SOCIAL SECURITY – disability support pension – DSP – whether 20 points or more under impairment tables during the relevant period – whether conditions are fully diagnosed, treated and stabilised – value of medical evidence – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth), s 94

Social Security ( Administration) Act 1999 (Cth)

SECONDARY MATERIALS

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

REASONS FOR DECISION

Senior Member A C Cotter

10 November 2015

INTRODUCTION

1. Mr Tin Thanh Le lodged a claim for Disability Support Pension (”DSP”) on 3 September 2014. His application form listed his disabilities as “left arm broken; shoulder pain”.[1]

   [1] Exhibit 1, T Documents, T 18, page 175, Claim for DSP.

2. A supporting medical report by his general practitioner, Dr Hoang Thanh Le, described the conditions having a significant impact on Mr Le’s functional capacity as “Post Traumatic Distress Syndrome since traumatic incident in 2005” and “old fracture of both ulnar and radius (L) forearm – from traumatic incident”.[2] As regards other conditions which were considered to be generally well managed and causing minimal or limited impact on functional ability, the doctor noted:

   (a)Low IQ , low intellectual ability, poor memory.

   (b)(L) shoulder /chronic pain and tendonitis from the incident  2005.[3]

   [2] Exhibit 1, T Documents, T 20, pages 195 and 198, report of Dr Hoang Thanh Le dated 2 September 2014.

   [3] Exhibit 1, T Documents, T 20, page 201, report of Dr Hoang Thanh Le dated 2 September 2014.

3. Mr Le was seen by a Job Capacity Assessment (“JCA”) assessor in late September 2014. In her report of 31 October 2014, the assessor indicated that his post-traumatic distress syndrome, while fully diagnosed, was not fully treated and stabilised, such that no impairment rating could be assigned to it.  She recommended that a rating of five points be assigned to the shoulder and upper arm disorder. No points were assigned to the intellectual disability.[4]

   [4] Exhibit 1, T Documents, T 22, pages 208-210, JCA report dated 31 October 2014.

4. Mr Le’s claim was rejected on the ground that he did not have impairment points of 20 points or more. That decision was confirmed on review by both an Authorised Review Officer[5] and the then Social Security Appeals Tribunal (“SSAT”).[6] Dissatisfied with the result, Mr Le has sought a review of the SSAT’s decision by this Tribunal.

   [5] Exhibit 1, T Documents, T27, pages 228-233, Authorised Review Officer decision.

   [6] Exhibit 1, T Documents, T2, pages 3-11, Decision of Social Security Appeals Tribunal (SSAT).

   THE LEGISLATIVE FRAMEWORK

5. Section 94 of the Social Security Act 1991 (Cth) (“Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are that the applicant has a physical, intellectual or psychiatric impairment; that the applicant’s impairment is of 20 points or more under the Impairment Tables; and that the applicant has a continuing inability to work

6. The Social Security (Administration) Act 1999 (Cth) makes it clear that qualification for DSP and assessment of the relevant impairment ratings are to be determined as at the date of claim (in this case, 3 September 2014). There is, however, an exception where the person is not qualified on that date but “becomes qualified” within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[7] Therefore, the relevant period for considering whether Mr Le qualified for DSP is between 3 September 2014 and 3 December 2014.

   [7] See ss 41 and 42, and Schedule 2, cll 3 and s 4(1) of the Social Security (Administration) Act 1999 (Cth).

7. The Impairment Tables are contained in the Social Security (Tables for the Assessment ofWork-related Impairment for Disability Support Pension) Determination 2011 (“Determination”), a legislative instrument made under the Act.[8]  The Tables are function, rather than diagnostic, based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.

   [8] See s 26(1) of the Act.

8. Under the rules for applying the Impairment Tables, an impairment rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than two years.[9] In order for a condition to be considered “permanent”, it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not, in light of available evidence, to persist for more than two years.[10]

   [9] See s 6(3) of the Determination.

   [10] See s 6(4) of the Determination.

9. In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, the following factors are to be considered: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years.[11]

   [11] See s 6(5) of the Determination.

10. 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.[12]

    [12] See s 6(6) of the Determination.

11. “Reasonable treatment” is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[13]

    [13] See s 6(7) of the Determination.

    ISSUES FOR THE TRIBUNAL

12. There is no dispute that Mr Le suffers impairments from a number of different conditions: his shoulder/arm condition, his mental health condition and his intellectual functioning. Therefore, the first of the requirements under s 94 is satisfied.[14]

    [14] See Exhibit 2, Secretary’s Statement of Facts and Contentions, dated 26 August 2015, paragraph [19].

13. Accordingly, the following issues remain to be determined by me:

    (a)Whether, at the relevant time, Mr Le’s impairments attracted a total rating of 20 points or more under the Impairment Tables; and

    (b)If so, whether, at the relevant time, he had a continuing inability to work.

14. I deal with those questions below.

    CONSIDERATION

    Did Mr Le have a total rating of 20 points or more?

15. I address this question by reference to each of Mr Le’s identified conditions.

    Shoulder/upper arm disorder

16. It is not disputed by the Secretary that this condition was fully diagnosed, treated and stabilised at the relevant time, such that it could be assigned an impairment rating.[15] I agree with that view. It is clear that Mr Le suffered a fracture of his left ulnar and radius during the course of an altercation in 2005.  Treatment included surgery with internal fixation by a plate.[16]

    [15] See Exhibit 2, Secretary’s Statement of Facts and Contentions, dated 26 August 2015, paragraph [43].

    [16] Exhibit 1, T Documents, T 12, page 134, report of Dr Hoang Thanh Le dated 27 August 2013.

17. The relevant Impairment Table to consider is Table 2 (Upper Limb Function), concerning impairment when performing activities requiring the use of hands or arms.

18. In his report of 2 September 2014, Dr Le described Mr Le’s current symptoms as “painful on using (L) arm”.[17] He repeated that observation in his later report of 18 November 2014, adding that Mr Le was unable to work due to pain and weakness in his left arm.[18]  Both reports indicated that the impact of the condition on Mr Le’s ability to function was expected to persist for more than 24 months.[19]

    [17] Exhibit 1, T Documents, T 20, page 199, report of Dr Hoang Thanh Le dated 2 September 2014.

    [18] Exhibit 1, T Documents, T 24, pages 222 and 223, report of Dr Hoang Thanh Le dated 18 November 2014.

    [19] Exhibit 1, T Documents, T 20, page 200 and T24, page 223.

19. Mr Le told the JCA assessor that he had weakness in his left arm. He could, however, lift up to 5 kilograms but not continuously or repetitively. He had difficulty reaching for objects at times, but could manage to tie shoelaces, do up buttons and handle small, light objects.[20]  The assessor recommended that he be assigned five impairment points under Table 2.[21]

    [20] Exhibit 1, T Documents, T 22, page 208, JCA report, dated 31 October 2014.

    [21] Exhibit 1, T Documents, T 22, page 210, JCA report, dated 31 October 2014

20. When he gave evidence to the then SSAT, Mr Le confirmed that he is right-hand dominant and has no problem with that arm; he said he had no difficulty writing or picking up things with it.[22] That tribunal concluded that Mr Le met the descriptors for moderate functional impairment and assigned 10 impairment points.[23]

    [22] Exhibit 1, T Documents, T 2, page 9, SSAT Decision and Reasons for Decision dated 13 April 2015, paragraph [28].

    [23] Exhibit 1, T Documents, T 2, page 10, SSAT Decision and Reasons for Decision dated 13 April 2015, paragraph [33].

21. At the hearing before me, Mr Le said that he has lost the ability to grip with his left hand. He can hardly lift his left arm. Put simply, he says that he cannot do anything that involves the use of his left hand or arm. As a result, he cannot drive a car, but rides a bicycle. He cannot lift anything heavy, although he could not specify what weight he could lift (he “just knows” when it is too difficult). Even with handling small objects, he told me that he shakes, and cannot aim precisely using his left hand.

22. The Secretary contends, contrary to the views expressed by both the JCA assessor and the SSAT, that Mr Le’s impairment does not meet the descriptors for mild functional impairment and that zero points should be assigned.[24] For a condition to be considered to have a mild functional impact, the person must have a functional impact in most of the four relevant descriptors. Having regard to the totality of what he told the assessor, the SSAT and me, I am inclined to the view that he satisfies the requirements for mild functional impact, in that he experiences some difficulty in picking up heavier objects, reaching up or out to pick up objects, and handling small objects. Given that his right hand is unaffected, I do not believe that his impairment would be considered moderate. I therefore consider that Mr Le’s condition attracts an impairment rating of five points under Table 2 (Upper Limb Function).

    [24] Exhibit 2, Secretary’s Statement of Facts and Contentions, dated 26 August 2015, paragraphs [53] and [54].

    Mental health condition

23. It is conceded by the Secretary that this condition was fully diagnosed at the relevant time.[25] I consider that concession to be appropriate, given the report of the clinical psychologist, Dr Toan Nguyen, to whom Mr Le was referred in 2008.  Dr Toan Nguyen reported that Mr Le displayed “very severe” levels of depressive, anxious and stress symptomatology. He said that was consistent with Pain Disorder Associated With Both Psychological Factors and a General Medical Condition. There also appeared to be secondary Major Depressive Disorder symptomatology.[26] The report of Dr Toan Nguyen satisfies the requirement in the introduction to Table 5 (Mental Health Function), that diagnosis be made, or corroborated, by a clinical psychologist or psychiatrist.

    [25] Exhibit 2, Secretary’s Statement of Facts and Contentions, dated 26 August 2015, paragraph [31].

    [26] Exhibit 1, T Documents, T 5, pages 90 and 91, report of Dr Toan Nguyen dated 4 September 2008.

24. The question therefore remains whether this condition is fully treated and stabilised.

25. A number of medical reports allude to this condition. In 2012, Dr Hoa Ke Nguyen noted that future treatment involved seeing a psychologist.[27] Dr Le, in his report of 2 September 2014, listed current treatment as Lexapro 10mg daily, that treatment having been said to have commenced in 2005. Mr Le was then described as being stable, but still having “anxiety-depression vegetative symptoms.”[28] Dr Le’s later report, in November of that year, stated that Mr Le had been on a daily course of Lexapro since 2008 and that future treatment was continuing with the same management.  He described Mr Le as “very compliant” with the recommended treatment.[29] Current symptoms at that stage were described as “difficulty to sleep due to anxiety and depression, lack of motivation, lack of energy and poor social interaction, poor insight, panic disorder”.[30]

    [27] Exhibit 1, T Documents, T 11, page 123, report of Dr Hoa Ke Nguyen dated 3 September 2012.

    [28] Exhibit 1, T Documents, T 20, pages 195 and 196, report of Dr Hoang Thanh Le dated 2 September 2014.

    [29] Exhibit 1, T Documents, T 24, page 219, report of Dr Hoang Thanh Le dated 18 November 2014.

    [30] Exhibit 1, T Documents, T 24, pages 218 and 219, report of Dr Hoang Thanh Le dated 18 November 2014.

26. The JCA assessor obtained a different version when she met Mr Le. He told her that he had taken Lexapro several years earlier for three months and then ceased taking it. He said he last saw Dr Toan Nguyen in 2008, but also mentioned having seen a psychiatrist, Dr Stephen James (whose name does not otherwise appear anywhere and from whom no reports have been seen), some three years earlier. The assessor also noted that Mr Le had reported to her that he was not currently receiving any treatment for his condition.[31]

    [31] Exhibit 1, T Documents, T 22, page 208, JCA report dated 31 October 2014.

27. That version was consistent with what Mr Le told me. He said that he took a course of three boxes of Lexapro when it was first prescribed for him, but says that he subsequently stopped taking it because he was concerned it was too strong. He says that he told this to his doctor at the time. However, that seems implausible because there is no record of that discussion, and in fact, Dr Le has proceeded for some years on the understanding that Mr Le is “very compliant” in taking Lexapro.

28. It therefore appears that while Mr Le’s treating doctors were proceeding on the assumption that he was continuing to take the medication which they and their predecessors had been prescribing for some time, Mr Le had apparently decided some time earlier to cease that treatment.

29. Nor is there any evidence of Mr Le having obtained specialist psychiatric or psychological treatment until relatively recent times. He had not apparently seen the psychologist, Dr Toan Nguyen, for some eight years. He saw the psychiatrist, Dr James, about the same time, but there is no evidence of the treatment recommended or of Mr Le having consulted him since.

30. Mr Le was therefore not compliant with recommended treatment and had made no attempt to seek further treatment specific to Post -Traumatic Stress Disorder. In those circumstances, I do not believe that his condition could be said to have been fully treated, or fully stabilised, at the relevant time.

31. Admittedly, since the middle of this year, there has been a flurry of activity, with Mr Le seeing Dr A.L.V. Tran in June, which led to the preparation of a mental health plan.[32] That was followed in June and July by Mr Le undergoing six sessions of cognitive-behavioural therapy and supportive counselling with Dr Toan Nguyen, from which he made some progress.[33] All those steps occurred well after the relevant period. In that respect, they serve to highlight that at the relevant time, some six or so months earlier, there was no reasonable treatment regime in place.

    [32] See Exhibits 4 and 5.

    [33] Exhibit 3, Letter from Dr Toan Nguyen to Dr A.L.V. Tran dated 31 August 2015.

32. As this condition was not fully treated and stabilised at the relevant time, I therefore do not consider that any impairment points could be assigned in respect of the impairment.

    Intellectual functioning

33. Dr Le’s medical report of 2 September 2014 listed “low IQ , low intellectual ability, poor memory” as a condition which was generally well managed and that caused minimal or limited impact on Mr Le’s functional ability.[34] Curiously, no mention of impairment to intellectual functioning was made by the clinical psychologist, Dr Toan Nguyen, in his 2008 report.[35]

    [34] Exhibit 1, T Documents, T 20, page 201.

    [35] Exhibit 1, T Documents, T 5, pages 88 – 91, Report completed by Dr Toan Nguyen on 4 September 2008.

34. At the request of the Department, Mr Le undertook a psychological assessment conducted by Ms Rachelle Denaro on 17 October 2014. She found his nonverbal intelligence to be in the Average range. In light of that score, Ms Denaro did not carry out an assessment of Mr Le’s adaptive functioning.[36]

    [36] Exhibit 1, T Documents, T21, page 205.

35. The relevant Impairment Table is Table 9 (Intellectual Function), which is used “where the person has a permanent condition resulting in low intellectual function (IQ score of 70 to 85) resulting in functional impairment”. The Table anticipates that an assessment of adaptive behaviour will be undertaken.[37]

    [37] See Introduction to Table 9

36. Given the lack of other medical evidence and the fact that Mr Le’s intelligence was assessed as Average, I am not satisfied that he suffers from an impairment to intellectual function. Further, there is no assessment of his adaptive behaviour necessary for consideration under Table 9.  I am also conscious of Dr Le’s comment, that the condition he identified caused minimal or limited impact on Mr Le’s ability to function.

37. For those reasons, I do not believe any points can be assigned under Table 9. Even if they could be assigned, I would have attributed zero points in light of Dr Le’s assessment and in the absence of any other evidence.

    Summary

38. To summarise, I do not consider that, at the relevant time, Mr Le’s impairments attracted more than 5 impairment points. As a result, I do not believe he qualified for DSP at the relevant time, as he did not have 20 points or more in respect of his impairments, as required by s 94(1) (b) of the Act.

    Did Mr Le have a continuing inability to work at the relevant time?

39. In light of my conclusion that Mr Le did not have 20 points or more under the Impairment Tables, it is not necessary to answer this question, as the requirements under s 94(1) are cumulative.

    CONCLUSION

40. I do not believe that Mr Le qualified for DSP at the relevant time because he did not have impairments totalling 20 points or more under the Tables.

41. Mr Le will no doubt be disappointed by this decision. However, it should not discourage him from considering lodging a fresh claim in the future, now that he is seeking, and receiving, appropriate treatment for his mental health condition.

1. For the reasons detailed above, the decision under review is affirmed.

I certify that the preceding 42 (forty -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter

........................[Sgd]................................................

Associate

Dated    10 November 2015

Date of hearing	29 September 2015
Applicant	In person
Solicitors for the Respondent	Secretary, Department of Human Services