Li and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1021

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1021

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/491

GENERAL ADMINISTRATIVE  DIVISION		)
Re		XUE XIN LI

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal  Senior Member M D Allen

Date of Decision                 9 January 2007

Date of Written Reasons   22 January 2007

Place  Sydney

DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is AFFIRMED.

.  (Sgd) M.D. ALLEN
  ...........................................
  Senior Member

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – numerous medical conditions suffered by the Applicant – Tribunal finds that the Applicant does not meet the base criteria for DSP – decision under review affirmed.

Social Security Administration Act 1999 – section 42; Schedule 2

Social Security Act 1991 – section 94

REASONS FOR DECISION

22 January 2007 Senior Member M D Allen

1.      At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally.  After service upon the Applicant and Respondent of a copy of the decision that was in fact made, the Applicant pursuant to sub-section 43(2A) of the Administrative Appeals Act 1975, requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3.      The said transcript is annexed thereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal’s decision.

I certify that this and the preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen

Signed:     [Amanda Aitken]            .....................................................................................

Associate

Date of Hearing  9 January 2007
Date of Decision  9 January 2007
Date of Written Reasons                   22 January 2007

Representative for the Applicant      Self-Represented

Advocate for the Respondent           Centrelink Legal Services

DRAFT DECISION  [11.54am]
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2006/491
By MR M.D. ALLEN, Senior Member
LI and SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
SYDNEY, 9 JANUARY 2007

MR ALLEN:   By application made the 1^st day of May 2006, the applicant sought review of a decision of a Social Security Appeals Tribunal made the 7^th day of April 2006 affirming the rejection of the applicant’s claim for a disability support pension. That claim was made on 21 June 2005 and pursuant to section 42 and Schedule 2 of the Social Security Administration Act 1999, the applicant’s entitlement to Disability Support Pension must be assessed as at 21 June 2005 or a period of 13 weeks thereafter.

The criteria for the grant of a Disability Support Pension are set out in section 94 of the Social Security Act 1991, and so far as is relevant, subsection 1 of section 94 states that to qualify for Disability Support Pension, a person’s impairment must be of 20 points or more under the Impairment Tables. Those tables are set out in Schedule 1B to the Social Security Act 1991. In particular, the Introduction to the said Tables provides that the rating is a measurement of loss of functional capacity, and is only to be assigned after a condition has been diagnosed, investigated, treated and stabilised.

Following the applicant’s current application for a Disability Support Pension, a report was furnished by his general practitioner, Dr Cheng. That report is at document T50 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. The conditions listed in that report are – an injury to the lower back, hips and knees; cervical spondylosis; a tennis elbow, but no other condition.

During the course of these proceedings it has become apparent that there are other conditions which affect the applicant, namely, loss of vision and query glaucoma; a hearing difficulty; nosebleeds; and urinary incontinence.  In addition, there is a serology report which states that the applicant has Hepatitis B.  This condition was not noted in his general practitioner’s report, and currently cannot be regarded as having been treated or stabilised, and therefore, is incapable of having a rating assigned.

The applicant has a long series of Workers Compensation claims and it has been submitted, and I agree, that his understanding of these proceedings has been confounded by various ratings which have been given using the Incapacity Tables used for the purposes of the New South Wales Workers Compensation jurisdiction.  Certainly, on 27 September 2002 the applicant was assessed for Disability Support Pension purposes by a Dr Ma of Health Services Australia.  In his report at T26, Dr Ma stated:

He has no sign of discomfort with sitting at this interview.  He has normal transfer.  He has been showing some of the movements that he had to do in his previous job to demonstrate how he sustained the injuries.  He shows me that he needs to bend, squat, kneel, and has repetitive movements of his right arm.  He does not appear to have any restriction in those movements.  He has lost only about a quarter of the flexion movements of his back.  Otherwise the rest of his back movements are normal.  The movements of his neck are within normal limits.  He can handle the x-rays with his right hand efficiently.  He has normal walking gait and can squat and kneel.

The applicant was then on 27 October 2003 assessed by Orthopaedic Surgeon, Dr Pillemer, for the purposes of the New South Wales Compensation Commission.  Dr Pillemer’s report is at T32.  In that report Dr Pillemer stated:

On examination of his knees there was no effusion on either side and he has a full range of movement bilaterally, unaccompanied by any crepitus.  The knees themselves were stable and there was no evidence of any obvious internal derangement.  He has a satisfactory range of cervical movement and a full range of movement of all the joints of his upper limbs.

Dr Pillemer concluded his report by stating:

In my opinion Mr Li has a moderate incapacity as a result of the ongoing discomfort in his low back and what I feel is referred pain into his right lower limb.  I feel he has mild residual impairment due to the ongoing symptoms as a result of his right lateral epicondylitis and probable right carpal tunnel syndrome.

Later reports have been obtained from Dr Woo, Orthopaedic Surgeon, regarding the applicant’s cervical spondylosis.  In a report dated 2 March 2004, Dr Woo stated:

On examination there is tenderness in the cervical spine with a tenderness spot near the base of the skull.  The neck has satisfactory movements.

As to the applicant’s ophthalmic defect, on 12 October 2004 Dr Richard Ho stated:

This man attended Humphrey computerised visual field analysis.  The result showed patchy superior field defects, slightly more on the left eye than the right but there was no nasal step.  The results are not diagnostic of glaucoma but would be considered borderline.

A later report from Dr Son Huynh, Ophthalmology Registrar at Westmead Hospital, stated:

In summary, Mr Li had changes at the back of the eye which were not consistent with glaucoma.  I have discussed this with the Glaucoma Fellow, who suggested repeating the visual field test in a few months’ time, and that will be reviewed.

That report was typed on 2 November 2006, so that all that could be said regarding the applicant’s ophthalmic conditions are that as at the relevant date, they had not been fully diagnosed, much less treated, and thus incapable of being given a rating.

The applicant was assessed for Disability Support Pension purposes on 15 July 2005 by Ms Deborah Shand, a Rehabilitation Consultant. There is no evidence whatsoever put before me which takes issue with Ms Shand’s assessment. She assessed the rating of impairment for the applicant’s hips and knees as 10 points under Table 4 of Schedule 1B, and the cervical spine as having a rating of 5 points under Table 5.1 of the said Impairment Tables. A rating of nil was given for the thoraco-lumbar spine under Table 5.2, and under Table 3 a rating of nil for the upper limbs.

The other conditions, therefore, are – the applicant’s eyes, and I have stated why no assessment can be given in relation to that incapacity.  An audiologist’s report in relation to the applicant’s hearing has been assessed under Table 12 and the rating is nil.  There is also a report in evidence from an Audiology Registrar at Concord Hospital and also an ENT Surgeon.  Suffice it to say that those reports do not reveal any ENT impairment capable of being given an impairment rating.

There is no evidence to show that the applicant’s nosebleeds justify an impairment rating and there is nothing in the report of the ENT Specialist which justifies a rating.  So far as the applicant’s urinary incontinence is concerned, the report of Dr Dally, Urology Registrar at Royal Prince Alfred Hospital, dated 5 May 2006, reveals that further investigations are to take place with regard to the applicant’s prostate.  Certainly the report states that the problem commenced in September 2005, which may be outside the 13-week period, but in any event, the condition has not been fully investigated, much less treated.

The assessment by Ms Shand amounted to 15 points.  There is no evidence or material before me which calls that assessment into question.  The decision under review is therefore affirmed, as the applicant cannot meet the base criteria of an impairment with a rating of 20 points.

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