Lien Tu LU and Secretary, Department of Social Services
[2014] AATA 608
[2014] AATA 608
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/4343
Re
Lien Tu LU
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr Ion Alexander, Member Date 28 August 2014 Place Sydney The decision under review is affirmed.
..................[sgd]......................................................
Dr Ion Alexander, Member
CATCHWORDS
SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairment is rated 20 points or more under the Impairment Tables – 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
REASONS FOR DECISION
Dr Ion Alexander, Member
28 August 2014
BACKGROUND
On 15 October 2012 Ms Lu lodged a claim for Disability Support Pension (DSP) on the basis that her various medical conditions were having an impact on her ability to function. The conditions as described in the claim included “depression, diabetes [and] pain in back and left leg”.
Ms Lu’s claim was rejected by Centrelink, both initially and on internal review, and subsequently by the Social Security Appeals Tribunal (SSAT) on the basis that she did not satisfy the requirements of s 94 of the Social Security Act 1991 (the Act), in particular s 94(1)(b) in that her impairment did not attract a rating of at least 20 points under the Impairment Tables.
In this proceeding Ms Lu seeks review of the decision of the SSAT.
At the hearing Ms Lu was self-represented and assisted by a Vietnamese language interpreter.
ISSUES
In order to be qualify for DSP Ms Lu had to satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim (“the claim period”), in accordance with the requirements of the Social Security (Administration) Act 1999, that is, 15 October 2012 to 14 January 2013.
It is agreed that Ms Lu satisfied s 94(1)(a) of the Act.
It is also agreed that Ms Lu suffers four medical conditions that are relevant to the present application, a degenerative spine condition, a mental health condition (depression), diabetes and a condition involving the right wrist.
The respondent contends that during the claim period Ms Lu’s spine condition was not fully treated and therefore an impairment rating cannot be assigned.
In respect of Ms Lu’s mental health condition the respondent accepts that the condition is permanent within the meaning of the Act and contends that the condition warrants an impairment rating of not more than 10 points under Impairment Table 5.
In respect of diabetes the respondent accepts that the condition is permanent within the meaning of the Act and contends that the condition has minimal impact on Ms Lu’s functional capacity and warrants an impairment rating of nil points.
In respect of the right wrist condition the respondent contends that the condition was not fully diagnosed, fully treated and fully stabilised during the claim period and an impairment rating cannot be assigned. Alternatively, the respondent contends that even if the condition was considered to be permanent it warrants an impairment rating of nil.
The respondent also contends that if the Tribunal finds that Ms Lu’s rating under the Impairment Tables was 20 points or more she did not have a continuing inability to work as required by s 94(1)(c).
Therefore the issues to be decided are whether during the claim period Ms Lu’s impairment had a rating of 20 points or more under the Impairment Tables and, if so, whether she had a continuing inability to work.
IMPAIRMENT RATING
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination2011 (the Determination) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is permanent.
The Determination also provides that a condition is permanent if it has been fully diagnosed, fully treated, fully stabilised and is more likely than not to persist for more than two years.
The Introduction to each of the Impairment Tables states that the diagnosis of a condition must be made by an appropriately qualified medical practitioner.
Also, in the assessment of a person’s impairment there must be corroborating evidence. Self-report of symptoms alone is insufficient.
Ms Lu’s Spinal Condition
There is no dispute that Ms Lu has suffered from lower back pain for many years and that she suffers from degenerative lumbar spine disease, particularly at L5/S1.
In August 2010 and February 2011 Ms Lu was treated with an L5 perineural injection with apparent symptomatic relief.
In a MRI report dated 12 December 2011 it was noted that there was “left intraforaminal disc protrusion is demonstrated at L5/S1, causing severe left sided foraminal encroachment and likely impingement of the exiting left L5 nerve root”.
In a letter dated 16 May 2012 Dr J van Gelder, neurosurgeon, stated that Ms Lu was reviewed in April 2012 in preparation for anterior lumbar interbody fusion at L5/S1 and was provided with admission papers to Liverpool Hospital.
Dr Gelder added that Ms Lu had degenerative scoliosis causing sciatica and was waiting for treatment with an anterior lumbar fusion.
In a letter dated 17 April 2013 Dr van Gelder stated that Ms Lu was admitted to Liverpool Hospital on 14 April 2013 for an anterior lumbar fusion.
The Liverpool Health Service Discharge Referral noted that Ms Lu’s operation was performed on 15 April 2014 and she discharged on 19 April 2013.
The documentary evidence clearly demonstrates that Ms Lu’s spine condition was not fully treated during the claim period and therefore an impairment rating cannot be assigned.
Ms Lu’s Mental Health Condition
There is no dispute that Ms Lu has suffered from a mental health condition for several years and has had regular psychiatric treatment.
The issue before the Tribunal is the degree of functional impairment caused by her condition.
In a letter dated 23 June 2011 Dr Benjamin, consultant psychiatrist, notes that Ms Lu has been under his care since 28 July 2010 and suffers with “Chronic Major Depressive Disorder and Chronic Pain Disorder”.
Using Table 6 in Schedule 1B of the Act (since repealed) Dr Benjamin assesses Ms Lu’s symptoms as moderate with an impairment rating of 10 points.
In a letter dated 16 July 2012 Dr Law, consultant psychiatrist, concludes that Ms Lu suffers from “moderately-severe symptoms of depressive disorder”.
In a Job Capacity Assessment report submitted on the 23 October 2012 the assessor assigned an impairment rating of 10 points for Ms Lu’s mental health condition.
In a letter dated 30 July 2013 Dr Law stated that he would assign an impairment rating of 20 points under Table 5 in the Determination.
In a letter dated 18 October 2013 Dr Law stated that “I do not think it is easy or reasonable to argue for twenty points for her depression, but I honestly believe the right assignment could be actually somewhere between ten and twenty points”.
In a letter dated 14 March 2014 Dr Law states that Ms Lu’s impairment rating is at least 10 points under the Determination.
I note that paragraph 11(1)(c) of the Determination states that where a person falls between two impairment ratings the lower rating is to be assigned.
Although there is some doubt as to the correct impairment rating in respect of Ms Lu’s mental health condition I am not persuaded that there is sufficient evidence before the Tribunal to support an impairment rating of greater than 10 points.
Ms Lu’s Diabetes
In oral evidence Ms Lu stated that she had suffered from diabetes for many years and that treatment includes oral medication and daily injections which she administers to herself. Ms Lu did not indicate any significant functional impact as a result of the diabetes other than some difficulty with diet.
In a letter dated 19 March 2012 Dr Tonks, endocrinologist, states that Ms Lu has Type 2 Diabetes which is managed on Byetta subcutaneous injections twice a day and oral medication, Diabex XR at night and Diamicron in the morning, and comments that “glycaemic control is reasonable”.
In a Centrelink medical report dated 18 June 2012 Dr Hua, general practitioner, lists diabetes as a medical condition that is generally well managed and causes minimal or limited impact.
I conclude that the correct impairment rating for Ms Lu’s diabetes condition is nil points.
Right wrist condition
In the Centrelink medical report of 18 June 2012 Dr Hua lists “tendinitis [of] R wrist” as a condition with significant functional impact with a date of diagnosis as 23 December 2011.
Dr Hua notes current symptoms as “pain and weakness [in the] R wrist” and describes functional impact as “unable to lift /use wrist repetitively”.
Treatment is described as “analgesics, splints as required”.
A report dated 23 December 2011 describes the findings of an ultrasound examination of the right wrist as “consistent with tendinosis of the extensor carpi ulnaris tendon” which is “amenable to ultrasound guided injection for symptomatic improvement if clinically concerned”.
An X-ray report dated 9 August 2012 states “unremarkable x-rays of the right wrist”.
There is no other relevant information in respect of this condition and I am not persuaded that the existing evidence is sufficient to support a conclusion that this condition was fully diagnosed, fully treated and fully stabilised during the claim period.
Therefore no impairment rating can be allocated for the right wrist condition.
DECISION
For the reasons set out above, I am satisfied that during the claim period Ms Lu’s impairment rating under the Impairment Tables was not greater than 10 points.
This means that Ms Lu did not satisfy s 94(1)(b) of the Act and was not qualified for DSP.
The decision under review is affirmed.
I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member ............[sgd]............................................................
Associate
Dated 28 August 2014
Date of hearing 25 August 2014 Applicant In person Advocate for the Respondent Mr S Davidson, Department of Human Services
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Impairment Rating
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Statutory Interpretation
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Disability Support Pension
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