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

Liai and Secretary, Department of Social Services (Social services second review) [2017] AATA 1243 (10 August 2017)
Division:GENERAL DIVISION
File Number: 2016/6971
Re:Madut Liai
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member K. Parker
Date:10 August 2017
Place:Melbourne

The Tribunal affirms the decision under review.
.............................[sgd]...........................................
Member K. Parker
SOCIAL SECURITY – disability support pension – whether the applicant has physical, intellectual or psychiatric impairments – whether the applicant’s condition is fully diagnosed, fully treated and fully stabilised – whether the impairments attract 20 points or more – Table 2 Upper Limb Function – Table 5 Mental health – Table 10 Digestive and Reproductive Function – decision affirmed
LEGISLATION
Social Security (Administration) Act 1999 (Cth); s 42; cl 2 of Sch 2
Social Security Act 1991 (Cth) s 94
CASES
Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252
Secretary, Department of Employment & Workplace Relations v Harris (2007) 97 ALD 534
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment and Disability Support Pension) Determination 2011
REASONS FOR DECISION
Member K. Parker
10 August 2017

Madut Mayar Liai is a 45 year old man who lives in a suburb of Melbourne with his wife and four children; the youngest aged 10 and the eldest aged 20. Mr Liai was previously employed as a machine operator in a saw mill and has also worked as a bookkeeper and first aid worker while he was living in South Sudan. Mr Liai arrived in Australia in 2002 following which he became an Australian citizen.
In 2012, Mr Liai sustained a shoulder injury at work. Mr Liai no longer works and made a claim for the disability support pension (DSP) under the Social Security Act 1991 (Cth) (the Act) on 17 November 2015 for claimed shoulder conditions, a mental health condition and a gastroenterological condition.
Mr Liai seeks review of a decision made by the Social Services and Child Support Division of this Administrative Appeals Tribunal (AAT1) on 21 November 2016. The AAT1 affirmed a decision made by an Authorised Review Officer of the Department of Social Services dated 6 July 2016 to reject Mr Liai’s claim for DSP. Mr Liai’s claim was rejected on the basis that his conditions did not attract an aggregate impairment rating of 20 points under the Impairment Tables.[1]
[1] Refer paragraph [7].
For the reasons set out below, the Tribunal affirms the decision under review. The Tribunal is satisfied that at the relevant time, the decision to reject his claim for DSP was the correct decision as he did not qualify for the DSP under the Act.
Mr Liai is entitled to make a further claim for DSP should he elect to do so.
LEGISLATIVE FRAMEWORK
Section 94 of the Act sets out the qualification requirements for the DSP as follows (as relevant to this application):
(1)A person is qualified for disability support pension 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)one of the following applies:
(i)the person has a continuing inability to work;
(ii)the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and…
…
Note 2: For Impairment Tables see subsection 23(1) and sections 26 and 27.
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support--the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases--the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases--either:
(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking a training activity--such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Note: For work see subsection (5).
(3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a)the availability to the person of a training activity; or
(b)the availability to the person of work in the person's locally accessible labour market.
(3A)…
(3B)A person's impairment is a severe impairment if the person's impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
(3C)A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
(3D)The Secretary must comply with any guidelines in force under subsection (3E) in deciding whether the Secretary is satisfied as mentioned in paragraph (2)(aa).
(3E)The Minister may, by legislative instrument, make guidelines for the purposes of subsection (3D).
(4)A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:
(a)is unlikely to need a program of support; or
(b)is likely to need a program of support provided occasionally; or
(c)is likely to need a program of support that is not ongoing.
(5)In this section:
program of support means a program that:
(a)is designed to assist persons to prepare for, find or maintain work; and
(b)either:
(i)is funded (wholly or partly) by the Commonwealth; or
(ii)is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Determination).
The following subclauses of clause 6 of the Impairment Determination are relevant in relation to the assessment of impairment ratings:
Impairment ratings
(3)An impairment rating can only be assigned to an impairment if:
(a)the person’s condition causing that impairment is permanent; and
Note:    For permanent see subsection 6(4).
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.
Permanency of conditions
(4)For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
Note:    For fully diagnosed and fully treated see subsection 6(5).
(c)the condition has been fully stabilised; and
Note:    For fully stabilised see subsection 6(6).
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) 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.
Note:    For reasonable treatment see subsection 6(7)..
Reasonable treatment
(7)For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a)is available at a location reasonably accessible to the person; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
In accordance with section 42 and clause 4 of Schedule 2 of the Social Security (Administration) Act 1999 (Administration Act), a person must qualify for the DSP on the date of his claim or within 13 weeks being the period between 17 November 2015 to 15 February 2016 (qualification period).
The Tribunal is guided by the observations of the Federal Court of Australia (Gyles J) in Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 at 253[2]:
…the applicant’s entitlement to the pension must be considered as at the date of his claim, namely, 3 May 2004 and a period of 13 weeks thereafter. Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time.
[2] Approved by Besanko J in Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1 at 7. The Harris case was appealed to the Full Court of the Federal Court in Secretary, Department of Employment & Workplace Relations v Harris (2007) 97 ALD 534 but the observations of Gyles J at first instance on this issue were not disturbed by the Full Court’s appeal decision. The approach to be taken was dictated by the terms of the legislation - Shi v Migration Agents Registration Authority (2008) 235 CLR 286.
ISSUES
With respect to Mr Liai’s claimed conditions, the issues to be determined by the Tribunal in this application are:
(a)whether Mr Liai had any physical, intellectual or psychiatric impairments and whether they were permanent;
(b)if so, whether those impairments, together or separately, attracted at least 20 points under the Impairment Tables; and
(c)if so, whether Mr Liai had a severe impairment (i.e an impairment which attracted an impairment rating under any one table of 20 or more points) and if not, whether he had a continuing inability to work.
THE FACTS
In Mr Liai’s DSP claim form submitted to Centrelink on 17 November 2016, he described his “disabilities, illnesses or injuries” as “shoulders”. He stated that he was receiving “treatment” and listed this as “psychologist” and “pain management” and stated that he was not expecting to have an operation in the future. He stated that the treatment affected him in the following way: “unable to lift or drive for too long”. Mr Liai stated that his disabilities made it difficult for him to use public transport. He stated that they did not make it difficult for him to care for himself.
In the claim form, Mr Liai described his most recent employment as a “machine operator” at Dormit Ltd, a saw mill and manufacturer of wood pallets, from 10 January 2009 until 2 April 2014. He stated that in the last three years, he had not participated in any program to help him find work, stay in a job, return to work, manage his injury or help him with vocational rehabilitation, gain new skills, work experience or training and indicated that he was “unsure” when he could do any such activities. The Tribunal notes that English is a second language for Mr Liai and that he required the assistance of an interpreter for most part of the hearing before this Tribunal.
Mr Liai’s treating doctor, Dr Jamal Yusuf, who had treated Mr Liai since 18 September 2009, issued a Medical Certificate dated 25 January 2016, confirming the following diagnoses:[3]
[3] Refer T-Documents T16.
Diagnosis # 1: Right shoulder tendinosis and tendinopathy
Condition:                 Permanent
Date of onset:           3 May 2012
Symptoms:                R shoulder pain rigidity, unable to lift, several injection and operation failed
Prognosis:                Likely to deteriorate within 2 years
Diagnosis # 2:           L shoulder injury
Condition:                 Permanent
Date of onset:           3 May 2012
Symptoms:               L shoulder pain and stiffness
Prognosis:                Likely to deteriorate within 2 years
Diagnosis #3:            Depression
Condition:                 Permanent
Date of onset:           3 May 2012
Symptoms:               Depressed mood, anxious, insomnia
Prognosis:                Likely to show considerable improvement within 2 years
In the medical certificate, there was no stated treatment regime including past, current and planned treatment. There was also no stated factors identified which may have impacted on Mr Liai’s participation in activities to prepare him for return to work/study.
However, Dr Yusuf also provided a letter to Centrelink dated 17 February 2016.[4] It stated that Mr Liai’s current prescribed medications at that time included Motilium (Active ingredient: Domperione) 10mg, Nexium (Active ingredient: Esomeprasole as magnesium trihydrate) 40mg and Tramadol Sandoz 50mg. The report also recorded a number of investigations including an ultrasound, CT scans and three MRI studies to Mr Liai’s shoulders and that he was diagnosed with “subacromial bursitis, bicipital tenosynovitis and subscapular tendinosis”. Dr Yusuf’s letter stated that Mr Liai had received three steroid injections to his shoulder on 17 October 2012, 14 October 2013 and 15 March 2014 and had two hydrodilations and manipulations under general anaesthetics. The letter referred to an orthopaedic surgeon having performed surgery on Mr Liai’s shoulder on 28 August 2014 and an arthroscopic subacromial decompression.
[4] Refer T-Documents T18.
In a letter dated 17 February 2016, Dr Yusuf stated as follows:
Unfortunately the shoulder pain got worse since surgery and [Mr Liai] has less movement and restriction on his shoulder. He definitely developed chronic pain syndrome. He is attending pain management clinic with Dr Daniel Lee pain specialist.
During this situation, [Mr Liai] developed anxiety and depression, attended psychotherapy as required. He also developed dyspepsia from the amount of medication he has been getting during the early phase of his medical condition, ended having gastroscopy and diagnosis of dyspepsia. In summary Mr Madut Liai is suffering from bilateral shoulder pain and restriction, depression, anxiety and dyspepsia. He is not in a capacity to work in future.
Mr Liai’s treating psychologist, Ms Angela Kay, prepared a medical report dated 15 February 2016.[5] The Tribunal notes that Ms Kay is a psychologist but not a clinical psychologist. This report records that Ms Kay had treated Mr Liai since July 2015. Ms Kay stated as follows:
Psychological Opinion
Mr Liai’s symptoms were consistent with a diagnosis of Adjustment Disorder with mixed anxiety and depression (DSM-5 309.28). While there may be some future improvement in his psychological condition which would currently create some obstacles for employment, I do not anticipate that further improvement in Mr Liai’s psychological condition will sustainably alter the limitations imposed by his physical injury.
His work capacity remains dependent on his physical condition and it is my understanding that there is a consistent medical opinion that he has no physical capacity for work. As such psychological therapy aims to assist Mr Liai to adjust to his dramatically altered life circumstances and future outlook.
[5] Refer T-Documents T17.
A clinical and organisational psychologist, Dr Andrew Remenyi, examined Mr Liai on 24 July 2015 for the purpose of evaluating his workers’ compensation claim, noting that the examination took place some four months before Mr Liai made his DSP claim.[6]
[6] Refer T-Documents T12
At that earlier point in time, Mr Liai reported to Dr Remenyi that he was experiencing anxiety and sadness and that he cried a lot. He said he was very worried about how to pay for his children’s private schooling. He said he was experiencing constant pain in his right shoulder at the upper end of the pain scale, occasional right neck pain and occasional headaches. Mr Liai reported to Dr Remenyi that he was taking Nexium and Motilium for reflux, and Tramadol and Panadol Osteo for pain. Mr Liai had told him that he was taking antidepressant medication but this had ceased “because of adverse effects”. His limitations on activities were recorded by Dr Remenyi at that time as follows:
Mr Liai said he can undertake personal activities such as showering and dressing. He said he cannot do household chores he used to do before his injury. He said he can’t do shopping because he cannot lift more than one to two kilograms. He said he can drive only short distances. He came today by taxi. He uses buses and train to travel, but said the movement of buses and trains causes him considerable discomfort.
Dr Remenyi diagnosed Mr Liai with:
·Adjustment Disorder with Anxiety and Depressed Mood; and
·Somatic Symptom Disorder with Persistent Predominant Pain (Moderate).
Dr Remenyi stated in the report that Mr Liai’s current depression level was high and he recommended that Mr Liai undertake intense treatment comprising weekly one hour sessions for two months, and then fortnightly sessions for three months, and then monthly sessions for six months.
In the previous year on 26 March 2014, Mr Liai was examined by Dr John Douglas, psychiatrist, who diagnosed him with Adjustment Disorder with Mixed Anxiety and Depressed Mood.[7] Dr Douglas opined that from a psychiatric perspective, that while his symptoms were significant, they were not sufficient so as to prevent him from returning to work at that time. Dr Douglas recommended in his report that Mr Liai undertake eight sessions of cognitive behavioural psychotherapy. Dr Douglas also reported as follows:
He said he was irritable. He said his children did not speak to him because he screams at them.
He said through the day he is usually sleepy but then he cannot sleep at night. When he does sleep he is woken with arm pain. He said he no longer sleeps with his wife. He said he was not happy to be with her. He said they stopped sleeping together at the end of 2012. He said he had no sexual life and did not want it.
[7] Refer T-Documents T8.

In relation to Mr Liai’s gastroenterological condition, he gave evidence at the hearing that as at the time of the Qualification Period when he went to the toilet, he would see blood. He said that his body does not digest his food properly. He said he went to see the doctor and after they used a camera to examine him (in February 2015), he took some medication. He said when he took the medication; he got dehydrated and could not go to the toilet for three days. He said that since 2015 until now, he “drinks Nexium and other medication”. He said that the medication was not helping him but later conceded that it did help him to digest the food properly.
Centrelink arranged for Mr Liai to undergo a Job Capacity Assessment (JCA) on 29 March 2016 for which a report was prepared by a rehabilitation counsellor.[8] The JCA Report arising from this assessment stated that:
[8] Refer T-Documents T19.
·Regarding the gastroenterological condition, Mr Liai advised the assessor that he was asymptomatic while he remained compliant with medication and that this condition was well managed with current treatment;
·Regarding the psychological/psychiatric condition, Mr Liai advised the assessor that he was “not currently prescribed anti-depressant medication”;
·Regarding the shoulder and upper arm disorder, Mr Liai advised the assessor as follows:
Mr Liai advised he is independent with most activities of daily living using adaptive techniques. He advised he is able to drive (using left hand to steer) for about 30 minute (Cranbourne to Oakleigh), wash his hair using his left hand, lift 1 kg with his left hand and about 250 grams with his right, write (right hand) for about 10-15 minutes, use a keyboard for about 10 minutes and turn pages of a book with either hand. Mr Liai demonstrated an ability to flick through medical documents at time of assessment. He advised he was able to do up buttons (was wearing a button up short(sic) at time of assessment) but did experience pain when performing this activity. Mr Liai advised he experiences shaking and pain in his right hand when holding a full cup of liquid. He reported experiencing shooting pain from his right hand up his arm into his shoulder and neck when performing long periods of right handed typing or writing. He demonstrated a very limited range of movement in both shoulders, acknowledging his right should was worse than the left.
·Regarding the shoulder and upper arm disorder, the assessor recorded that there was a moderate functional impact on activities using Mr Liai’s hands or arms because he had difficulty with most of the activities listed in paragraph [39] below (although the assessor did not specify with which of those activities he had difficulty).
Mr Liai was assessed as having a baseline work capacity of 15-22 hours per week and that his capacity for work within two years, with intervention, was also 15-22 hours, doing light less skilled work such as console operator, retail, customer service or telemarketing duties. The interventions identified for him by the assessor in the report included a pain management program, specialist assessment and psychiatric services/treatment.
At the hearing, Mr Liai gave evidence about the activities he could or could not do as a result of his conditions as at the time of the qualification period, as follows:
(a)He could shower independently and wash his hair using only his left hand (he added that in his culture, no one can give him a shower). Later in evidence, he said he needed someone to wash his back;
(b)He could go to the toilet by himself;
(c)He could dress himself although he needed help “to put his hand in the arm”;
(d)He could drive his car but only for short distances (i.e. 30 km from Cranbourne to Oakleigh, 1 day per week). He added that he drives an automatic car and only holds the wheel with one hand. On questioning, he also said that he sometimes takes his children to school but the school was not far from his home;
(e)He said it was difficult for him to use the train;
(f)He could hold a can of coke in his left hand. He said he did not recall telling the assessor he could lift an object weighing 250g in his right hand. He said that he does not even hold a mug of coffee with the right arm because he feels numbness in his fingers;
(g)He did not lift shopping bags and that his children would do the shopping;
(h)He could sign a document with his right hand but the pain was there;
(i)He attended English classes at Merinda from February to July 2015 and could write with his right hand for five minutes but then would have to rest. He said he uses a keyboard for 10 to 15 minutes at the English school now but that “back then”, he did not use a computer;
(j)In 2015, he said he did not have a computer at home although his children had a lap top. He had a mobile phone which provided access to the internet provided he was in a Wi-Fi zone. He confirmed that he is able to use a mobile phone. He said he would send a text message about once a month when he was required to report earnings to Centrelink. He said there is a Centrelink app on the phone and he reads letter that he receives through the app;
(k)In 2015/early 2016, he said that he did read things – he said that sometimes at the school he would read the newspaper or he would also read the Centrelink letters. He said he told the JCA assessor that he could turn the pages of a book. He said he would “hold page down with the right hand and open with the left hand”;
(l)He could do up buttons although it was “a bit hard”;
(m)He said he did not have shoelaces on any of his shoes and for this reason, was not required to do up shoelaces. He said he could put his foot in his shoes;
(n)He said he could not unscrew the top on a soft drink bottle as it was “a bit difficult”;
(o)He could pick up a light cardboard box if it was high up on the table;
(p)He said he never cooked;
(q)He said he cleaned his teeth at home once a day;
(r)He said he did not socialise with the Sudanese community groups as “all the community gatherings are held in the West” and he “doesn’t travel” He said he might attend a meeting once a month if there is a meeting and he did so as his doctor had encouraged him to participate;
(s)He said he did not socialise with extended family as he has no siblings here [in Australia]. He said he usually “Skype’s” his mother once every six months. He said he had a cousin in the Western suburbs (St Albans) who he would visit sometimes but he said that he hardly talks to his cousin;
(t)He said he used to go to St Mary’s Church but he stopped because his “head wasn’t there”;
(u)He said he did not socialise with the students he had met at the English school outside of doing the course and that he did not have any of their phone numbers;
(v)He said he did not socialise with any of the parents of the children also attending at the same school as his own children. He said that although he attends parent/teacher interviews at the school now, relevantly, he did not attend them back in 2015/early 2016. On questioning, it seemed that the reason for this was due to the change in proficiency in Mr Liai’s English language skills at those different times. He said he gets a lot more out of going now and that his son had encouraged him to attend. He said he did not attend any school events;
(w)He said he did not travel and that he stayed at home. He said he did not celebrate Christmas or birthdays with his family due to a lack of money;
(x)He said he did not watch TV back in 2015/early 2016 because the painkillers made him sleepy. He said before his injuries he used to play Domino’s but stopped after his injuries. He said he did not play video games;
(y)He said he was able to remember his medical appointments in 2015/2016 because everyone (for example, his lawyer) would remind him, and his children would set an alarm on his phone;
(z)In terms of decision making, he said that his wife completed the application forms for his children’s schools in 2012. He said that his children write down what groceries they want and they go to the supermarket with their mother. He says he has nothing to say about the shopping part. The bills are paid by direct debit through Centrepay. He said that, since 2011, he has not shopped for clothes for himself. He said he did not buy gifts for anyone in about November 2015. He said his did not have the money to do so.
At the hearing, Mr Liai contended that he qualified for the DSP on account of his impairments and that his claim should be accepted. He said he was unable to say whether he had participated in a program of support for the requisite duration, because he did not know what a program of support was.
In response, the Secretary of the Department of Social Services (Secretary) contended as follows:
·It was clear that Mr Liai had a long-standing shoulder injury and that it had been a bearing on his mental health;
·The Secretary accepted that an impairment rating of 10 points should be assigned under Impairment Table 2 for Mr Liai’s shoulder conditions;
·It was open to the Tribunal to accept an impairment rating of 5 points under Impairment Table 5 for Mr Liai’s mental health condition;
·The Tribunal should assign an impairment rating of 0 points under Impairment Table 10 for Mr Liai’s gastroenterological condition as it was being well managed with medication;
·Mr Liai was unable to show that 20 points (or more) should be assigned to him under any one of the Impairment Tables arising from his conditions. Consequently, to qualify for the DSP, Mr Liai was required to demonstrate that, at the time of the qualification period, he had a continuing inability to work. It was contended by the Secretary that Mr Liai was unable to establish that he had a continuing inability to work as he had not participated in a program of support for at least 18 months within the three year period before he made the DSP claim.
CONSIDERATION
It was uncontested that Mr Liai had a number of physical and psychiatric impairments as referred to below. The main issue was whether a level of functional impairment justified the assignment of 20 points or more under any one or more of the Impairment Tables.
Shoulder conditions
The Secretary accepted that Mr Liai’s shoulder conditions were fully diagnosed, fully treated and fully stabilised and that these conditions were permanent. Further, in his medical report dated 3 July 2015, Dr Daniel Lee, Consultant Rehabilitation and Pain Medicine, opined that he did not think there was any role for further procedures and interventions.[9]
[9] Refer T-Documents T11/36.
Accordingly, the main issue before the Tribunal was the question of what rating should be assigned to Mr Liai for his upper limb functional impairment under Table 2 as at the time of the qualification period.
Does a 20-point rating apply to Mr Liai’s claimed impairments?
For Mr Liai to establish that a 20-point rating applied, he needed to demonstrate the following:
There is a severe functional impact on activities using his hands or arm.
(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 relation to subparagraph (a), Mr Liai’s hand or arm, on either side, was not non-functional or amputated. The evidence revealed that as at the qualification period, Mr Liai certainly had limitations in the movement and use of his right arm and hand. However, while there was an unspecified diagnosis made with respect to Mr Liai’s left shoulder, the evidence did not reveal that there were any limitations of significance in the movement and use of his left arm and hand. In fact, Mr Liai consistently relied on the use of his left arm and hand to compensate for things that he could not do with his right arm and hand (for example, driving his car or showering and washing his hair). This particular factor in subparagraph a. required a finding that there was a limitation in “the movement or coordination in both arms or both hands” (Emphasis added). The Tribunals finds that on the evidence before it, Mr Liai did not have a limitation in the movement or coordination in both arms or both hands and for this reason, concludes that subparagraph a. did not apply.
In relation to subparagraph the Tribunal needed to assess whether Mr Liai had severe difficulty handling, moving or carrying most objects at the time of the qualification period. On the evidence, Mr Liai was able to engage in the some handling, moving and carrying of a number of objects. Specifically, Mr Liai was able to steer the wheel of a car (by using his left arm and hand) and by implication, open the door, use the hand brake and automatic transmission on his car; he was able to use his mobile phone; he was able to lift an empty cardboard box if it was picked up from an elevated height; he could “handle” a newspaper so as to be able to read it; and he could hold can of coke (in his left hand). The Tribunal acknowledges there was some difficulty experienced by Mr Liai when he handled, moved or carried objects with his right arm and hand. Specifically, Mr Liai felt pain when lifting a coffee mug with his right arm and refrained from using his right arm to move the steering wheel of the car when driving. The Tribunal considers that its assessment should not be made on the basis of the difficulty Mr Liai experienced with handling, moving or carrying objects with one arm or hand only, but instead it should be based on his ability to do so with both or either of his arms or hands. For this reason, the Tribunal acknowledges that Mr Liai had difficulty handling, moving or carrying most objects with his right hand, however, it is not satisfied on the evidence, that this could be said with respect to the use of both of his arms, given that he still had significant capacity to do those things using his left arm independently or when coupled with the remaining capacity in his right arm. For this reason, the Tribunal finds that subparagraph (b) did not apply.
In relation to subparagraph (c), the Tribunal was satisfied on the evidence that Mr Liai would have experienced “difficulty using a computer keyboard” at the time of the qualification period. His evidence was that he felt pain after a relatively short time when using a computer keyboard. This was understandable given that the usual operation of computer keyboard ideally required the coordinated use of both upper limbs as well as the effective use of the dominant arm and hand of the person to operate the mouse, which in Mr Liai’s case was his right arm and hand. The Tribunal finds that subparagraph (c) applied.
In relation to subparagraph (d), the Tribunal was satisfied on the evidence that although Mr Liai experienced difficulty when using a pen or pencil being right-hand dominant and due to the pain he said he felt after some time had passed, Mr Liai was still able to do so. In other words, the Tribunal was not satisfied, on the evidence, that Mr Liai had “severe difficulty using a pen or pencil” (Emphasis added) and consequently, the Tribunal finds that subparagraph (d) did not apply.
Similarly, while the Tribunal finds that Mr Liai experienced some difficulty in turning the pages of a book because, on the evidence, he was limited to using his right arm to hold the book while he used his left arm to turn the pages over, he was still capable of sufficient coordination of both limbs to achieve the task. This is supported by the evidence that he also read a newspaper and by implication, was capable of holding it and turning the pages. The Tribunal finds that subparagraph (e) did not apply.
In conclusion, only one of the four prescribed activities listed in paragraph [33] applied to Mr Liai. The Tribunal concludes that an impairment rating of 20 points could not be assigned to Mr Liai with respect to his upper limb functional impairment.
Does a 10-point rating apply to Mr Liai’s claimed impairments?
The next step for the Tribunal is to decide whether an impairment rating of 10 points could be assigned to Mr Liai for his upper limb impairment. The Tribunal notes that the Secretary contends this is the appropriate rating. The requirements for a 10-point rating for upper limb impairment under Table 2 of the Impairment Tables is set out below:
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.
On the evidence, the Tribunal is satisfied that at the time of the qualification period, Mr Liai had difficulty with the activities described in subparagraph (b) and subparagraph (d) (although Mr Liai could do up buttons, the Tribunal was satisfied Mr Liai would have had difficulty tying up shoelaces requiring mobility and coordination of both of his arms). The Tribunal was also satisfied that he would have had difficulty with the activities described in subparagraphs (c) and (e) for the reason, that the evidence was that he could not do them for long without experiencing pain. The Tribunal was not satisfied that Mr Liai had difficulty with the activity described in subparagraph (f) because Mr Liai could have managed the activity of unscrewing a lid on a soft-drink bottle in a similar way as he was able to manage the task of coordinating his two arms to turn the page of a book. There was no medical evidence before the Tribunal that he had lost so much strength in his left arm that would have prevented him from twisting the soft drink bottle lid with it, if he simultaneously secured the bottle underneath his right arm.
The Tribunal concludes that Mr Liai experienced difficulty with most of (i.e. four of the five) prescribed activities listed in paragraph [39] and for this reason; there was a moderate functional impact on the use of his upper limbs as at the qualification period. Consequently, the Tribunal concludes that an impairment rating of 10 points under Table 2 was applicable.
Mental health condition
It was uncontested that Mr Liai’s mental health condition was permanent as at the qualification period and that a rating could be assigned to Mr Liai under Table 5 of the Impairment Tables. The Secretary contended that it was open to the Tribunal to assign five points under Table 5.
The requirements of assigning five points to Mr Liai under Table 5 are set out below (examples omitted because they will be referred to in the following paragraphs):
There is a mild functional impact on activities involving mental health function.
(1)The person has mild difficulties with most of the following:
(a)Self-care and independent living;
(b)Social/recreational activities and travel;
(c)Interpersonal relationships;
(d)Concentration and task completion;
(e)Behaviour, planning and decision-making.

The criteria used to assess whether an assignment of 10 points under this Table are identical to those set out in the above paragraph, except that there is one additional criteria being “work/training capacity”. The main difference between the two ratings is that for an assignment of 10 points, the person must have experienced moderate difficulties with most of the six prescribed activities (instead of mild difficulties with most of the five prescribed activities in the case of a five-point rating).
Self-care and independent living – mild difficulty
In relation to subparagraph (a) for a person to have a mild difficulty with “self-care and independent living”, the example provided in Table 5 was that “the person lives independently but may sometimes neglect self-care, grooming or meals” and by contrast, for the person to have a moderate difficulty, the example given was that “the person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition”.
In consideration of:
·The statement by Mr Liai in his DSP claim to the effect that his conditions did not make it difficult for him to care for himself;
·Mr Liai’s evidence given at the hearing as set out in subparagraphs 27(a), (b), (c), (p) and (q) above; and
·The evidence set out in paragraph [20] arising from an earlier examination with Dr Remenyi;
the Tribunal is satisfied that at the time of the qualification period, Mr Liai did not have a moderate, but instead, only had a mild difficulty with self-care and independent living.
Social/recreational activities and travel – mild difficulty
In consideration of subparagraph (b), for a person to have a mild difficulty with “social/recreational activities and travel”, the examples provided in Table 5 were that “the person is not actively involved when attending social or recreational activities” and “the person sometimes is reluctant to travel to unfamiliar environments” and by contrast, for the person to have a moderate difficulty, the examples given were that “the person goes out alone infrequently and is not actively involved in social events” and “the person will often refuse to travel alone to unfamiliar environments”.
At the time of the qualification period, Mr Liai said he no longer attended Church, however, the Tribunal does not consider this was on account of Mr Liai’s mental health condition. The Tribunal notes the reference in Dr Douglas’s medical report dated 28 March 2014, that Mr Liai had told him that the Church had previously offered an “African service” when he used to go, but it had been withdrawn.[10] Mr Liai gave evidence at the hearing that he did not travel or go on holidays but stated that the reason for this was that he or his family did not have the available funds to do so. Mr Liai gave evidence at the hearing before the AAT1 that he had some friends in the Sudanese community; however, at the hearing before this Tribunal, his evidence was that he had limited interaction with them because the community meetings took place in the outer Western suburbs. This suggested the main barrier to increased interactions with friends from the Sudanese community was largely geographic. Further, the Tribunal considers it was likely that Mr Liai had always led a relatively quiet existence at home with his family before, during and after the onset of the mental health condition. There was a noticeable absence of evidence that he was involved to any great extent in such activities prior to the onset of his mental health condition.
[10] Refer T-Documents T8/24.
In consideration of the above and the self-reported evidence given at the hearing as set out in subparagraphs 27(r), (s), (t), (u), (v) and (w), the Tribunal is satisfied that at the time of the qualification period, Mr Liai did not have a moderate, but instead, only had a mild difficulty with social/recreational activities and travel, bearing in mind that the Tribunal considers that his involvement in such activities was not ever substantial.
Interpersonal relationships – moderate difficulty
In relation to subparagraph (c), for a person to have a mild difficulty with “interpersonal relationships”, the example provided in Table 5 was that “the person has interpersonal relationships that are strained with occasional tension or arguments” and by contrast, for the person to have a moderate difficulty, the example given was that “the person has difficulty making and keeping friends or sustaining relationships”.
Based on the information reported by Dr Douglas in April 2014, as set out in paragraph [23] above, the state of the interpersonal relationships between Mr Liai and his immediate family members was reportedly poor at that time. The Tribunal notes that he was asked about his family situation by Dr Remenyi in July 2015, however, there was no note of ongoing interpersonal difficulties between Mr Liai and his wife and children, although it was noted that he said to Dr Remenyi that he did not have any Australian friends and felt very alone. There were some signs that his relationships within the family were not as bad at the time of the qualification period as they may have been in April 2014, based on the evidence Mr Liai gave at the hearing that he attended parent teacher interviews because his son had encouraged him to do so.
Nevertheless, the Tribunal was satisfied that at the time of the qualification period, Mr Liai had a moderate difficulty with interpersonal relationships mainly because it was apparent that he had difficulty making and keeping friends or sustaining relationships. The evidence was that he had some previous work colleagues he reportedly got along with well; however, Mr Liai fell out of touch with them when he stopped working at the saw mill. He made some acquaintances at the English school but those relationships did not seem to progress to the level of friendships. While he sustained his familial relationships, it was apparent that from time to time, ongoing difficulties in those relationships arose for Mr Liai. He has reported to his health practitioners on a few occasions feeling lonely and not having anyone to talk to. It was also notable that no person accompanied Mr Liai to his hearing, at which he was self-represented, to offer him support during the process.
Concentration and task completion – mild difficulty
In relation to subparagraph (d), for a person to have a mild difficulty with “concentration and task completion”, the examples provided in Table 5 were that “the person has difficulty focussing on complex tasks for more than 1 hour” and “the person has some difficulties completing education and training” and by contrast, for the person to have a moderate difficulty, the examples given were that “the person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book)” and “the person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions)”.
There were references in the medical evidence to Mr Liai experiencing concentration problems when driving, leading to a number of traffic offences, and his children electing not to travel in a car he was driving, although that appeared to have improved by the time of Mr Liai’s DSP claim, as evidence was given that he drove his children to school sometimes. It was evident from the hearing itself which commenced at 10am and concluded at 3pm with a one-hour break for lunch that Mr Liai was able to concentrate on the task at hand, answer the many detailed questions asked of him and represent himself during that process, although he did show signs of fatigue and some resistance towards the end of that process. Mr Liai gave evidence that he listened to a Sudanese radio program on Saturdays when he remembered it was on. He also gave evidence about attending at parent/teacher interviews which would have required his concentration for a reasonable period of time. Mr Liai’s involvement in English lessons also demonstrated that if there was any impact on his concentration as a result of his condition, then it was only mild. In conclusion, at its highest, the Tribunal considers that Mr Liai only had mild difficulty with concentration and task completion.
Behaviour, planning and decision-making – moderate difficulty
In consideration of subparagraph (e) for a person to have a mild difficulty with “behaviour, planning and decision-making”, the example provided in Table 5 was that “the person has unusual behaviours that may disturb other people or attract negative attention and may sometimes be more effusive, demanding or obsessive than is appropriate to the situation” and by contrast, for the person to have a moderate difficulty, the examples given were that “the person has difficulty coping with situations involving stress, pressure or performance demands” and “the person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement)” and “the person’s activity levels are noticeably increased or reduced”.
The evidence given by Mr Liai at the hearing as set out in paragraph [27] satisfied the Tribunal that at the time of the qualification period, his activity levels were noticeably reduced compared to his peers; from time to time, although infrequently, he experienced mood swings and irritability particularly directed at his immediate family; he became depressed and withdrawn and he did not cope well with having demands placed upon him or being under stress. At the hearing, Mr Liai verbalised complaints about Centrelink’s assessment processes and having to attend so many medical and other appointments. He said he participated in the English classes because “he had to” but that he did not enjoy it. The impression gained by the Tribunal, from the evidence given about the dynamics within the family, indicated that Mr Liai’s wife and children seem to take the lead in attending to the day-to-day planning, decision-making and general running of the household of which Mr Liai is a member. For these reasons, the Tribunal is satisfied that Mr Liai had a moderate difficulty with his behaviour, planning and decision-making.
Work/training capacity – no difficulty
In consideration of subparagraph (f), for a person to have a mild difficulty with “work/training capacity”, the example provided in Table 5 was that “the person has occasional interpersonal conflicts at work, education or training that require intervention by a supervisor, manager or teacher or changes in placement or groupings” and by contrast, for the person to have a moderate difficulty, the example given was the same as stated above, except that this was often the case (i.e. not occasional).
The only evidence before the Tribunal, of any conflict arising in the workplace involving Mr Liai, was the issue of some alleged bullying at the saw mill which took place at the time when Mr Liai was participating in a return to work program, however, the Tribunal notes it is quite possible this arose, not by Mr Liai’s doing, but due to an unfortunate lack of acceptance by his work colleagues of Mr Liai being placed on light duties as part of a return to work program. There is no other history of Mr Liai experiencing conflict in the workplace. In more recent English language training courses, there was no evidence of conflict arising to which Mr Liai was a party but instead, the evidence was that he had developed quite amicable relationships with some of the other students. For this reasons, the Tribunal finds that Mr Liai only had no difficulty with his work/training capacity.
In conclusion, the Tribunal considers that at the time of the qualification period, there was a mild impact on activities involving mental health function because Mr Liai had mild difficulties with most of the five prescribed activities listed in paragraph [44]. Mr Liai’s mental health condition did not have a moderate impact on activities involving mental health function because he only had moderate difficulty with two of the six prescribed activities referred to above. For this reason, an impairment rating of 5 points (and not 10 points) under Table 5 was applicable with respect to Mr Liai’s mental health condition.
Gastroenterological condition
It was uncontested that Mr Liai’s gastroenterological condition was permanent and for this reason, a rating could be assigned under Table 10 of the Impairment Tables. However, as mentioned above, the Secretary contended that a rating of 0 points applied, as there was no functional impact on Mr Liai.
The Tribunal accepts this contention for the reason that there was no evidence before the Tribunal that supported a conclusion that at the time of the qualification period, Mr Liai’s gastroenterological condition had any functional impact on Mr Liai’s daily activities due to any symptoms or any personal care needs associated with a digestive system condition.[11] It was uncontested that this condition had been well managed by the prescribed medication.
[11] Mr Liai’s evidence in relation to this condition is set out in paragraph [24] above.
Accordingly, the Tribunal concludes that a rating of 0 points under Table 10 applied.
CONCLUSION
For the reasons outlined in this decision, the Tribunal concludes that during the qualification period:
·Mr Liai had both physical and psychiatric impairments arising from his upper limb, mental health and gastroenterological conditions;
·Those conditions were fully diagnosed, fully treated and fully stabilised, and therefore, permanent within the meaning of subclause 6(4) of the 2011 Determination;
·The following ratings under the Impairment Tables applied to each of Mr Liai’s impairments:
oUpper limb conditions:  10 points under Table 2;
oMental health condition:   5 points under Table 5;
oGastroenterological condition:           0 points under Table 10.
Mr Liai’s impairments did not, together or separately, attract a rating of 20 points or more and consequently, at the time of the qualification period, he did not qualify for the DSP as he did not meet one of the eligibility requirements under section 94(1)(b) of the Act. Based on this conclusion, the Tribunal was not required to determine whether Mr Liai had a continuing inability to work.
Accordingly, the Tribunal affirms the decision of the AAT1 to reject Mr Liai’s DSP claim made on 17 November 2016.

I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker

...............................[sgd].........................................
Associate
Dated: 10 August 2017

Date of hearing: 12 May 2017

Applicant: In person

Advocate for the Respondent: Mr Tim de Uray

Solicitors for the Respondent: Department of Human Services

[2017] AATA 1243

10 August 2017

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Administrative Law

Statutory Interpretation

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Appeal

Jurisdiction

Procedural Fairness

Statutory Construction

Date of hearing:	12 May 2017
Applicant:	In person
Advocate for the Respondent:	Mr Tim de Uray
Solicitors for the Respondent:	Department of Human Services