Lee and Secretary, Department of Social Services (Social services second review)
[2016] AATA 124
•2 March 2016
Lee and Secretary, Department of Social Services (Social services second review) [2016] AATA 124 (2 March 2016)
Division
GENERAL DIVISION
File Number(s)
2015/3225
Re
Wesley Lee
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr I Alexander, Member
Date 2 March 2016 Place Sydney The Tribunal affirms the decision under review.
...........................[sgd].............................................
Dr I Alexander, Member
CATCHWORDS
SOCIAL SECURITY – pensions - disability support pension – multiple conditions - whether condition is fully diagnosed, treated and stabilised – whether applicant’s impairments rated 20 points or more under the Impairment Tables – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr I Alexander, Member
2 March 2016
The applicant, Mr Lee is 61 years old and on 23 September 2014 he lodged a claim for Disability Support Pension (DSP) on the basis that he suffered several medical conditions which were having an impact on his ability to function.
Mr Lee’s claim was rejected by Centrelink, both initially and on internal review, on the basis that he did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (“the Act”) because his impairment was not 20 points or more under the Impairment Tables.
In a decision dated 15 June 2015 the former Social Security Appeals Tribunal (SSAT) found that Mr Lee had a total impairment rating of 5 points under Impairment Table 2 because of a right hand condition. As a result, the total impairment was not 20 points or more and Mr Lee did not satisfy s 94(1)(b) of the Act.
In these proceedings Mr Lee seeks review of the SSAT decision.
At the hearing Mr Lee was self–represented and assisted by an interpreter of the Mandarin language.
ISSUES
In order to qualify for DSP, Mr Lee must satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with the requirements of the Social Security (Administration) Act 1999, that is, between 23 September 2014 and 23 December 2014 (“the claim period”).
Section 94(1) of the Act provides that a person is qualified for DSP 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)the person has a continuing inability to work as defined by the Act.
The Respondent concedes and the Tribunal accepts that Mr Lee suffers medical conditions that cause impairment and he therefore satisfied s 94(1)(a) of the Act at the time of his claim for DSP.
The medical conditions include a mental health condition (depression), an upper limb condition (Dupuytren’s contracture of the right hand), visual impairment, sleep apnoea, neck pain, hypertension and cerebral vascular disease.
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Determination”) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).
For the purposes of paragraph 6(3)(a) a condition is permanent if it is:
·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)); and
·fully treated (paragraph 6(4)(b)); and
·fully stabilised (paragraph 6(4)(c)); and
·the condition is more likely than not to persist for more than two years (paragraph 6(4)(d)).
The Introduction to each relevant Table requires that “[s]elf-report of symptoms alone is insufficient” and “[t]here must be corroborating evidence of the person’s impairment.”
Also, the Introduction to Table 5 of the Impairment Determination, which is to be used where a person has a “permanent condition resulting in functional impairment due to a mental health condition”, states that the diagnosis of the condition “must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist)”.
The definitive issues for the Tribunal to consider are whether, during the claim period, Mr Lee had an impairment rating of 20 points or more under the Impairment Tables because of his medical conditions and, if so, whether he had a continuing inability to work.
MENTAL HEALTH CONDITION
In a letter dated 29 December 2011 Dr Zhang, psychiatrist, notes that Mr Lee, referred to as ‘Mr Li’, presented with a number of physical and psychological symptoms that developed in the “context of job loss” and states that “it is likely that Mr Li is suffering Major Depression with head ache being a form of somatisation.”
Dr Zhang recommends a Mental Health Care Plan that includes the following:
· further psychiatric assessment particularly frontal lobe functional assessment
· further investigations to exclude organic causes for his symptoms
· medication with venlafaxine (Effexor) 150mg mane and mirtazapine (Avanza) 7.5mg nocte
Dr Zhang offers to follow Mr Lee to “titrate the medication, carry out further neuropsychiatric testing and provide psychotherapy” and goes on to say that once Mr Lee’s mental state has improved “he may benefit from CBT via a psychologist.”
In a letter dated 19 October 2011 Dr Ip, neurologist, notes that an MRI of the brain “showed some prominent extra-axial space over the frontal parietal convexity and in the brain stem….[a] few scattered foci of high signal changes…” and that “microvascular disease is indeed mild.” Dr Ip concludes that “[t]he overall impression remains a scenario of mood disturbance rather than neurodegenerative process.”
In a Centrelink Medical Report dated 21 January 2013 Dr Lau, GP, states that “[p]atient did not accept the diagnosis of major depression & did not comply with antidepressant treatment.”
In a Centrelink Medical Report dated 5 April 2013 Dr Zhang notes that “[t]he client has been taking venlafaxine 150 mg mane and mirtazapine 7.5 mg nocte. I saw him on 24.12.11, 20.01.12 and 05.04.13.” Dr Zhang further states that Mr Lee “needs medication titration, organic investigation and psychotherapy.”
On 10 September 2013 Mr Lee travelled to China and returned to Australia in early November 2013.
The translated copy of an outpatient medical record from Xijing Hospital notes that Mr Lee complains of a variety of symptoms and suffers from “[d]epression” and “has already taken medication”. An electroencephalogram is reported as “abnormal (forehead, ATL,...pathological waves showed obvious left predominance.)”
In a brief letter to Dr Lau dated 30 May 2014 Ms Jin, psychologist, notes that Mr Lee attended his initial consultation for psychological treatment on the 23 May 2014 and has booked a subsequent session on the 17 June 2014. Ms Jin recommends that “Mr Lee continues his therapy with a psychologist.” Ms Jin also indicated that a progress report would be sent to Dr Lau after Mr Lee’s sixth visit.
I note that there is no further correspondence from Ms Jin before the Tribunal.
In a letter dated 19 June 2014 Dr Lau lists Mr Lee’s various medical conditions and his numerous physical and psychological symptoms and goes on to state inter alia the following:
“The treatment has been unsatisfactory patient’s non compliance ….we agreed he needs someone to manage his medications including his antidepressants and also antihypertensive ….unfortunately, there was ongoing problem with treatments until his compliance with treatment is established. The difficulty in following up with a qualified psychiatrist who can bulk bill and see him regularly has also been a problem.”
In a Centrelink Medical Report dated 24 September 2014 Dr Lau details the proposed treatment as follows:
“Should have regular psychiatrist’s review: problem connecting due to financial restraint & difficulty making appointments and non compliance… Patient seems to promise to make appointments but nil result. Problems with medications complaints due to illness and other reasons.”
On the 6 December 2014 Mr Lee again travelled to China and returned to Australia at the end of January 2015.
A translated copy of the outpatient medical record, Changzheng Hospital, dated 9 December 2014 states that Mr Lee has had depression for three years with a diagnosis of “major depression”. Mr Lee was provided with a prescription for mirtazapine 15 mg at night.
In a letter dated 17 February 2015 Dr Zhang notes that he last saw Mr Lee in 2012 when “[h]e attracted the diagnosis of major depression with the background of multiple physical conditions….on todays presentation he claimed that his depression has not improved….has been taking Avanza 15 mg at night.”
Dr Zhang recommends that Mr Lee should continue to see his GP on a regular basis, increase his mirtazapine (Avanza) to 30mg daily and if “this fails to improve his mood Effexor or Pristiq should be added.”
Dr Zhang states an opinion that “it is difficult to justify a medical certificate now for the purpose of DSP in the context of major depression.”
Consideration
The medical evidence with respect to Mr Lee’s mental health condition is somewhat incomplete and there appears to be some confusion as to whether some of his ‘psychological’ symptoms are organically based.
I am satisfied, however, that during the claim period that Mr Lee suffered symptoms consistent with the condition of “major depression” which was diagnosed by Dr Zhang in December 2011.
What is not clear, however, is whether during the claim period Mr Lee’s condition was fully treated and fully stabilised.
In his letter of 2011 Dr Zhang provides a Mental Health Care Plan. The evidence before the Tribunal suggests that for a number of reasons, in particular Mr Lee’s non-compliance, this plan has not been followed.
In his letter of 17 February 2015 Dr Zhang clearly suggests that Mr Lee’s condition has not been fully treated and stabilised.
On consideration of the evidence before the Tribunal I am not persuaded that, during the claim period, Mr Lee’s mental health condition was fully treated and fully stabilised so that a rating under the Impairment Tables cannot be applied.
UPPER LIMB CONDITION
In a Centrelink Medical Report dated 19 May 2011 Dr Law, GP, lists “(R) Dupuytren’s contracture” as a medical condition with most impact and describes clinical features as “unable to use (R) hand and grip properly.”
In the report dated 24 September 2014 Dr Lau lists Dupuytren’s of the right hand as a condition which is generally well managed that causes minimal or limited impact but provides no other details.
In a Job Capacity Assessment (JCA) Report submitted on the 21 November 2014 the assessor notes that Mr Lee reported that he “can manage most daily activities requiring the use of the hands and arms, however, is restricted to picking up heavier objects and handling small objects with his right dominant hand ….is able to use his left hand /arm.”
I am satisfied that, during the claim period, Mr Lee’s upper limb condition was permanent for the purposes of the Impairment Determination.
On consideration of the limited evidence and the descriptors in Impairment Table 2, I am satisfied that, during the claim period, Mr Lee’s Dupuytren’s contracture of the right hand had a mild impact on activities using hands and arms so that a rating of 5 points can be applied.
VISUAL IMPAIRMENT
A Sydney Eye Hospital Emergency Department discharge summary dated 3 July 2012 notes a diagnosis of “vitreous syneresis”. Visual acuity with glasses is noted as R 6/15 and L 6/24.
In a brief note dated 11 March 2013 Dr Milverton, ophthalmologist, notes inter alia the following “VAL= 6/36….no reason found for this ↓ V/A….He says it has been poor for 2 years…..OCT normal - ?sudden loss…minimal lens opacities….. for VER.”
I note that Optical Coherence Tomography (OCT) is an established medical imaging technique for the eye and Visual Evoked Response (VER) is a test to diagnose problems with the optic nerve.
In the report of 24 September 2014 Dr Lau lists “vitreous syneresis” and “moderate cataracts” as conditions causing significant functional impact.
A note from Changzheng hospital dated 12 December 2014 states inter alia the following: “wearing glasses…(R) 6/24 (L) 6/36…concretion in the palpeberal conjunctiva; cornea is normal; anterior chamber…light focus of pupils is normal; eye crystals with high density…”
Treatment is prescribed with antibacterial eye drops (Levofloxacin) and eye drops for the treatment of cataracts (Bendazac Lysine).
Dr Lau provides numerous medical certificates from 7 September 2011 to 30 January 2015 stating that Mr Lee has cataracts and is still awaiting eye surgery at Sydney Hospital.
In a certificate dated 20 June 2014 Dr Lau says that Mr Lee is “await more specialist assessment in syd eye hosp - 18/8/2013 appt.”
In a certificate dated 22 September 2014 Dr Lau states that Mr Lee “await more specialist assessment in syd eye hosp- appt 2/2015.”
Consideration
I am satisfied that, during claim period, Mr Lee suffered significantly reduced visual acuity in both eyes.
However, I am not satisfied that the evidence before the Tribunal, which can best be described as incomplete and confused, provides a satisfactory explanation for Mr Lee’s condition or a coherent treatment plan.
Dr Lau states Mr Lee suffers bilateral cataracts and is awaiting surgery.
In March 2013 Dr Milverton was unable to explain Mr Lee’s decreased visual acuity and notes “minimal lens opacities”, does not mention ‘cataracts’ which require surgery, and suggests further investigation.
There is no evidence that the VER was performed or that there has been any follow-up.
Mr Lee told the SSAT that he was on a waiting list for an appointment at the hospital.
In December 2014 when Mr Lee was in China he was started on eye drops for the treatment of cataracts.
On consideration of the limited evidence before the Tribunal I am not persuaded that, during the claim period, the condition causing Mr Lee’s visual impairment was fully diagnosed, fully treated and fully stabilised so that a rating under the Impairment Tables cannot be applied.
SLEEP APNOEA
In the report of 24 September 2014 Dr Lau lists “moderate OSA” as a medical condition that causes significant functional impact but provides no other details.
In a letter dated 10 April 2014 Dr Hsu, cardiologist, notes that “in the last six months Mr Lee has been experiencing progressive dyspnoea” and states that his presentation is atypical for ischaemic heart disease but will organise a stress test.
Dr Hsu goes on to say that “Mr Lee does have symptoms suggestive of significant sleep apnoea and I have organised…a sleep study.”
In the JCA report of 21 November 2014 the assessor contacted Dr Lau who stated that “Mr Lee has attended a sleep study and respiratory physician review in May 2014. Recommended interventions included positional therapy (alternating sleeping position). CPAP uses was not recommended at this stage.”
Mr Lee told the SSAT that he feels tired during the day and always needs to take a nap due to drowsiness.
For present purposes I accept that, during the claim period, the condition of sleep apnoea was permanent for the purposes of the Impairment Determination.
However, in my view, there is insufficient corroborative evidence before the Tribunal to make a reasonable assessment of the functional impact of this condition during the claim period so that a rating under the Impairment Tables cannot be applied.
NECK PAIN
Mr Lee claims he suffers neck pain.
In the report of 24 September 2014 Dr Lau lists “degenerative cervical spine” as a condition which causes significant functional impact but provides no other relevant details.
In my view, there is insufficient evidence to satisfy the Tribunal that, during the claim period, this condition was permanent for the purposes of the Impairment Determination so that a rating under the Impairment Tables cannot be applied.
HYPERTENSION
On 23 May 2008 Mr Lee was admitted to Long March Hospital in China for treatment of hypertension.
In his letter of 10 April 2014 Dr Hsu notes that “Mr Lee’s blood pressure is too good and too low which may contribute to his level of fatigue. I have therefore asked him to reduce his current antihypertensive medication and I will be reviewing his blood pressure records at next visit.”
In a letter dated 19 June 2014 Dr Lau notes that “hypertension known before 7/9/2011” but provides no other relevant details. The condition is not mentioned in the report of 24 September 2014 but treatment with antihypertensive medication, Irbesartan, is noted.
I am satisfied that, during the claim period, the condition of hypertension was permanent for the purposes of the Impairment Determination and as there is no corroborative evidence of functional impact the appropriate rating under the Impairment Tables is nil points.
CEREBRAL VASCULAR DISEASE
In his letter of 19 October 2011 Dr Ip refers to the MRI of the brain and notes “microvascular disease is indeed mild.”.
In the report of 24 September 2014, Dr Lau lists “mild brain microvascular disease” as a condition with significant functional impact but provides no other relevant details.
The report of an MRI of the brain performed on 8 December 2014 at Changzheng Hospital notes that “[a]s there are punctate abnormal signals in the bilateral corona radiate, the patient is considered to have ischaemic focus…”
In my view, there is insufficient evidence with respect to cerebral microvascular disease to allow the Tribunal to consider this condition to be fully diagnosed, fully treated and fully stabilised during the claim period so that a rating under the Impairment Tables cannot be applied.
DECISION
For reasons set out above, I am satisfied that during the claim period, Mr Lee’s impairment rating was not 20 points or more, so that he did not satisfy s 94(1)(b) of the Act and did not qualify for DSP.
The decision under review is affirmed.
I certify that the preceding 79 (seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member ..........................[sgd].........................................
Associate
Dated 2 March 2016
Date(s) of hearing 2 February 2016
Applicant In person Solicitors for the Respondent Department of Human Services
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Social Security - pensions
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Disability Support Pension
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Impairment Rating
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Unconscionable Conduct
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