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

[2017] AATA 2983

Lin and Secretary, Department of Social Services (Social services second review) [2017] AATA 2983 (1 December 2017)

Division:GENERAL DIVISION

File Number(s):       2016/6899

Re:Hsiu-Tzu Lin

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:          William Stefaniak AM RFD, Senior Member

Date:          1 December 2017

Date of written reasons:    21 December 2017

Place:Sydney

The decision under review is affirmed

................................[sgd]. .......................................
William Stefaniak AM RFD, Senior Member

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – upper limb condition – spinal condition – allergies – whether the applicant has a physical impairment – applicant has a physical impairment – whether the applicant’s impairments total 20 points or more under the Impairment Tables – the applicant’s impairment does not total 20 points or more under the Impairment Tables – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

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

REASONS FOR DECISION

21 December 2017

1. The reviewable decision is the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) made on 23 November last year.  It was an oral decision affirming a decision of an authorised review officer made on 12 July 2016 to reject the applicant’s claim for a Disability Support Pension made on 8 December 2015.  This Tribunal has to look at whether the AAT1’s decision is the correct or preferable decision and I must apply the qualification criteria for a Disability Support Pension.

2. The qualification criteria are found in section 94(1) of the Social Security Act 1991 (Cth). I have to consider, whether at the date of the claim, namely 8 December 2015, or within 13 weeks after that claim (i.e. up until 8 March 2016) the applicant had a physical, intellectual or psychiatric impairment for the purposes of 94(1)(a) of the Act.

3. I must then consider whether the applicant had an impairment rating of at least 20 points on the impairment tables under section 94(1)(b), which are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).

4. I must then consider whether the applicant had a continuing inability to work as defined in section 94(2) of the Act for the purpose of 94(1)(c) of the Act.  Even if a person had 20 points or more, unless there was 20 points for any one category, he/she must also have undertaken a program of support of 18 months duration in the last three years.

5. The applicant has satisfied the program of support requirements. The applicant has completed 744 days in terms of a program of support.  The applicant was assessed by the respondent as having a continuing ability to work, with assistance, of up to 15 to 22 hours a week within a two year period.

   The Hearing

6. The department conceded that the applicant suffered two impairments, namely, problems with her upper limbs, wrists, hands, (which is Table 2 of the Impairment Tables), and also allergies.  There was also evidence in relation to spinal conditions.  The department conceded that the injuries that gave her the most problems were related to her wrists and her hands - her  bilateral wrist conditions and that these conditions were fully diagnosed, fully treated and stabilised and  worthy of 10 points.

7. The department submitted that her chronic allergy condition was diagnosed but not fully treated and stabilised and it did not seem to have any functional impact as such, as, indeed, was the situation with her lower back condition.

8. There was further evidence before the Tribunal, which all parties accepted, that since the claim period (December through to March of 2016) the condition in relation to her wrists and her allergies had gotten worse.

9. Fundamentally, what I need to consider is the evidence before me, including the evidence of the various health professionals, and decide whether the correct or preferable decision was made and, if not, what is the correct or preferable decision is.

10. The applicant gave evidence, as did her husband.  There is a plethora of medical evidence here including: written evidence from Dr Chen; various employment assessments back in 2015; an MRI scan on 27 July 2015; tests on 29 September 2015 revealing the applicant had a number of allergies; X-ray and MRI on her right wrist in October 2015;a report from Dr Li on 20 November 2015 saying she had multiple cysts, which would be treated symptomatically; diagnosis and certification that she had bilateral osteoarthritis and tendonitis from Dr Chen on 1 December 2015; a Job Capacity Assessment on 2 March 2016 indicating that she had a moderate functional impact because of her wrists and her baseline work capacity was eight to 14 hours a week, but, increasing to 15 to 22 hours within two years. The Tribunal also received a series of further reports, starting from 16 June 2016 by Dr Teychenne; and further reports from Dr Li and Dr Chen. The reports show that the applicant has tried a number of things, including physiotherapy.

    The applicant’s oral evidence

11. The applicant gave evidence that she was employed and, indeed, was able to continue working in some capacity up until about 2015.  She started developing problems around 2010. However, in 2015 it became difficult for her to continue working due to pain in her wrists.

12. The applicant also gave evidence that she had difficulties in terms of allergies, especially in relation to sweat and dust. She would scratch her whole body, become anxious and would sometimes take a bath six or seven times a day and even do so at night. This had been a problem for about the last eight years.

13. The applicant also gave evidence that she had a tumour in her back. The tumour was found to be benign and was not operated on.

14. She indicated that she cannot stand or sit for too long.  Sometimes she might be able to stand for 30 minutes, and other times 10.  Sometimes she might sit for an hour. On a bad day, it might only be 10 minutes.  She has no difficulty walking around the shops. Her husband and children, for the last two years, have done the cooking, the housework, washing the clothes out and putting them out to dry and making the beds.  She might get some fruit and vegetables out of the fridge and help supervise the cooking but that was about all.

15. The applicant gave evidence that she has difficulty holding cups and saucers as they slip out of her hands and she will drop things. She indicated this has been occurring for more than two years and maybe for anything up to five years.

16. Fundamentally, her children (two boys of 14 and 18) and husband effectively look after her.

    The Documentary evidence

17. There were a number of medical reports tendered. Three of the reports referred to, by both the applicant and the respondent, are very relevant to this case. The first is a report from the Queens Road Medical Centre by Karen Chen, 28 April 2017.  That report, states the following in relation to the upper limbs:

    She finds that her wrists are unstable with certain movements, e.g. reaching to grab objects from far on shelf [sic] in a supermarket or twisted movements e.g. opening or closing a car door or holding a drinking cup, recently. And there has been a history of worsening symptoms when her work involving manual work with her wrists such as making dumplings and desserts.  She finds it clumsy when using chopsticks. 

18. Dr Chen assessed that the impairment moderately impacted the applicant’s ability to function according to Table 2.

19. In relation to the spine, Dr Chen said:

    the condition has been treated mostly in the form of massage/physiotherapy and it is. So far, there has not been recommended any further treatment by her specialists.

20. The assessment of Dr Chen, according to her examinations on 19 April 2017 year, in relation to Table 4 on spinal condition are as follows:

    [T]here is “no” functional impact on activities involving spinal function.

21. Dr Chen also indicated in summary:

    M]y opinion is she has capacity to work for 15 hour per week independently of a program of support with restrictions, namely, avoid manual work with her wrists and hands and she requires [sic] to wear her wrist splint all the time at work.

22. The second report is that of Dr Kai Li, dated 5 October 2017 which states:

    Ms Lin has bilateral hand/wrist arthritis and her condition is best described as “loss of strength, mobility and dexterity”. 

23. Dr Kai Li assessed that the impairment should be rated 10 points for the dominant hand and five points for the non-dominant hand.  In terms of her spinal condition, Dr Kai Li  says:

    Her back still retains good range of movement and there is no disability according to the impairment guide.  Because she has problem [sic] with both hands, she will not be able to work.

24. The third report is the report of the Job Capacity Assessor. In relation to the upper limb condition the Job Capacity Assessor, in March 2016 found she had difficulty picking up a one litre carton of liquid but that she could manage half a litre.

25. This issue was also canvased by Dr Chen on 1 December 2015 who stated:

    She should avoid manual work and heavylifting especially more than 2 kilograms per hand.

26. The Job Capacity assessor considered in the March 2016 report whether she could hold a pen noting she could loosely when she signed the consent form. The assessor also noted the applicant had difficulty using chopsticks, difficulty with zippers, buttons and shoelaces, could not unscrew a bottle lid and, whilst able to type on an iPad, has some difficulty typing on a keyboard.

27. The Job Capacity Assessor further noted that she could wash vegetables, read books, load a washing machine and in October/November, two years ago, did work five hours a week putting cream icing on cakes.

28. The job capacity assessor gave her 10 points, indicating a moderate functional impact.

    Assessment of the upper limb condition

29. In assessing the applicant’s upper limb impairment under Table 2 I agree that 10 points is appropriate. She cannot twist her wrists around and uses her hand in a rigid way. I am satisfied that she has difficulty picking up a litre carton, holding and using a pen, doing up buttons and shoelaces, using a standard computer keyboard and unscrewing a lid.

30. I do not consider the applicant’s upper limb condition warrants an assessment of 20 points.  In order for the applicant to be awarded 20 points she would have to satisfy most of the following criteria as at the claim period, that is, from 15 December 2015 to March 2016.

31. The first criterion is limited movement or coordination in both arms or hands, or has amputation.  Whilst I certainly agree she has limited movement, it does seem that she has limited coordination so that criterion is neutral.

32. The second criteria in this category is severe difficulty handling, moving or carrying most objects, even when using or wearing any prosthesis or assisted device that the person has.  The applicant does not use an assistive device.

33. The third criterion is that the person has difficulty using a computer keyboard despite appropriate adaptions.  The applicant is not at the stage yet where she needs such a device nor does she, at this stage, have appropriate adaptions to enable her to use a computer keyboard.

34. The fourth criterion is that the person has severe difficulty using a pen or pencil. The applicant appears to have difficulty doing this.

35. The fifth criterion is that person has severe difficulty turning the pages of a book without assistance. The applicant’s ability to turn the pages of a book varies. Sometimes she can undertake this task and sometimes she cannot. In order to satisfy this criterion the applicant must have severe difficulties turning the pages of a book without the assistance of another person and, she does not meet this requirement.

36. On this basis, she certainly satisfies one and a half out of the 5 descriptors but she needs to satisfy at least 3 to qualify. I find the condition does not warrant a twenty point rating.

    Assessment of the spinal condition

37. It is unlikely that the spinal condition is fully diagnosed, treated and stabilised.  However, even if it was the medical evidence, specifically the report of Dr Chen, indicates that there is no functional impact of the spinal condition. When considering the criteria for five points under Table Four the applicant does not have difficulty turning her head to look sideways or upwards, she can bend down to pick up an object and turn her trunk from side to side.  Therefore, it would seem the doctor is correct in indicating that she does not have a functional difficulty.

38. Additionally, when considering the criteria in Table 4 – the applicant is able to sit in or drive a car for at least 30 minutes but does not seem to have difficulty getting out of a chair, bending forward, looking in various directions and she can wash her hair.  She cannot move her hands around but she can actually wash her hair and she demonstrated to the tribunal how she could put her arms up above her shoulder height and head height.  The problem she has is not so much her spine, and the medical evidence indicates there is no functional difficulty with it , the problem is in relation to her hands and the complete inability to do anything much with her hands.

    Assessment of the skin condition

39. The applicant has an allergy condition which makes her itchy. She indicated she takes a lot of showers and baths as a result of this condition. Table 14 does not mention anything about taking showers or baths.  There is nothing to indicate that the dermatitis or allergies, cuts and abrasions on the applicant’s limbs are actually causing her problems. The allergies do not actually affect her functional ability.

    Conclusion

40. Unfortunately for the applicant, having looked at these medical reports and listened carefully to what the applicant said, I cannot really see how, as at the claim period, ( December 2015 through to March 2016) the applicant  can possibly qualify for more than the 10 points Accordingly, I would affirm the decision of the AAT1.  The AAT1 decision is correct and the applicant’s own medical evidence backs that up.

41. I would say this to the applicant; it is very hard getting this type of pension as the criteria is very strict. However a claimant can always keep applying.  I must say I am uncertain today as to exactly how the applicant would go.  If she applied again, although it is clear to me that the applicant has very significant problems with her  hands and Dr Kai Li says:

    Because of that, she [the applicant] would not be able to work.

42. The applicant and her husband have both said she is a lot worse now than two years ago.  So, that, to me, would indicate the applicant should go to her local Centrelink office, have a talk to them, go back to visit her GP, who would be able to certify all of this, and see the GP would take her through the tables again especially regarding her hands and see whether she would now qualify for 20 points and not 10.

43. The applicant should also talk to her GP about spine and any other condition she has and apply the Impairment Tables to those as well.  It may that the applicant’s condition has worsened to such an extent, in the last two years, that she may find she now qualifies under the Impairment Tables and Centrelink would then give her a Disability Support Pension.  It is worth trying.

44. I understand the applicant’s frustration. I accept the applicant would much rather be working but it is important going back to her GP to see if she can qualify now.

45. In relation to the applicant’s husband it may well be, because he is now a fulltime carer he should ask Centrelink about whether he is entitled to a carer’s allowance and/or carers payment.

    DECISION 

46. As far as this application goes, for the reasons given above, I affirm the decision of the AAT1.

I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of

..............................[sgd]..........................................

Associate

Dated: 21 December 2017

Date(s) of hearing:	1 December 2017
Applicant:	In person
Solicitors for the Respondent:	Ms G Heggen, Department of Human Services