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

[2016] AATA 252

Lual and Secretary, Department of Social Services (Social services second review) [2016] AATA 252 (20 April 2016)

Division	GENERAL DIVISION
File Number(s)	2015/5742
Re	Kuol Lual
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr I Alexander, Member
Date	20 April 2016
Place	Sydney

The Tribunal affirms the decision under review.

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

Dr I Alexander, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – cancellation of payment – time of cancellation – multiple conditions – whether medical conditions were fully diagnosed, treated and stabilised – impairment rating of less than 20 points – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) ss 80, 94

Social Security (Administration) Act 1999

SECONDARY MATERIALS

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

REASONS FOR DECISION

Dr I Alexander, Member

20 April 2016

1. On 3 November 2008 Mr Lual, who is now 30 years old, was granted Disability Support Pension (DSP) after he was found to have a rating of 20 points under the Impairment Tables (10 points for poliomyelitis and 10 points for depression) and a continuing inability to work.

2. On 27 February 2015 Centrelink commenced a review of Mr Lual’s entitlement to DSP by issuing medical review forms to be completed by Mr Lual and his treating doctor.

3. In a Job Capacity Assessment (JCA) report submitted on 22 May 2015 the assessor recommended a total rating of 5 points under the Impairment Tables, with 5 points for poliomyelitis (right leg) under Table 3 and nil points for schizophrenia under Table 5. The assessor also concluded that Mr Lual had a capacity for work of 15- 22 per week within 2 years with intervention.

4. On 9 June 2015 Centrelink decided to cancel Mr Lual’s DSP on the basis that, on that date, he did not satisfy s 94 of the Social Security Act 1991 (Cth) (“the Act”). In particular, did not satisfy satisfy s 94(1)(b) of the Act so that he no longer qualified for DSP. On 19 June 2015, on internal review, the decision was affirmed.

5. In a reviewable decision dated 14 October 2015 the Administrative Appeals Tribunal - Social Services and Child Support Division (SSCSD) found that Mr Lual had a total rating of 10 points under the Impairment Tables with 5 points under Table 3 and 5 points under Table 4 so that he did not satisfy s 94(1)(b) of the Act and did not qualify for DSP.

6. In these proceedings Mr Lual seeks review of the decision of the SSCSD.

7. At the hearing Mr Lual was self-represented and assisted by an interpreter in the Dinka language.

   ISSUES

8. The power to cancel Mr Lual’s DSP is provided by s 80 of the Social Security (Administration) Act 1999 (the Administration Act) which provides that if the Secretary is satisfied that a social security payment is being paid to a person who is not qualified for the payment “the Secretary is to determine that the payment is to be cancelled or suspended.”

9. The decision to cancel Mr Lual’s DSP is an “adverse determination” within the meaning of s 118(13) of the Administration Act which provides that such a decision “takes effect on the day on which it is made.”

10. Accordingly, if Mr Lual is to succeed in his application for review he must satisfy the requirements of s 94 of the Act as at 9 June 2015 which was date on which Centrelink cancelled his DSP (time of cancellation).

11. Section 94(1) of the Act provides that a person is qualified for DSP if:

    (a)the person has a physical, intellectual or psychiatric impairment; and

    (b)the person’s impairment is of 20 points or more under the Impairment Tables; and

    (c)the person has a continuing inability to work as defined by the Act.

12. The Respondent concedes and the Tribunal accepts that at the time of cancellation Mr Lual suffered medical conditions that cause impairment and he therefore satisfied s 94(1)(a) of the Act.

13. For present purposes the relevant medical conditions are a lower limb condition involving the right leg, a mental health condition (schizophrenia), a spinal condition (chronic back pain) and an upper limb condition involving the right hand.

14. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Determination”) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).

15. For the purposes of paragraph 6(3)(a), a condition is permanent if it is:

    ·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)); and

    ·fully treated (paragraph 6(4)(b)); and

    ·fully stabilised (paragraph 6(4)(c)); and

    ·the condition is more likely than not to persist for more than two years (paragraph 6(4)(d)).

16. The Introduction to each relevant Table requires that “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”.

17. Also, the Introduction to Table 5 of the Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, states that the diagnosis of the condition “must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made a psychiatrist)”.

18. The Respondent contends that at the time of cancellation Mr Lual’s total impairment was 5 points under Impairment Table 3 so that he did not did not satisfy s 94(1)(b) of the Act and did not qualify for DSP on that date.

19. Therefore, the determinative issue in this review is whether, at the time of cancellation, Mr Lual’s impairment was 20 points or more under the Impairment Tables and, if so, whether he had a “continuing inability to work”.

    MENTAL HEALTH CONDITION

20. There is no dispute that Mr Lual suffers from a chronic mental health condition which has been present for many years.

21. In a Centrelink Medical Report dated 10 March 2015 Dr Kamal GP list “schizophrenia” as a medical condition with significant impact and notes current symptoms as “nil as on Risperidone, likely to relapse if medication are ceased” [sic] and impact on ability to function as “stable now”.

22. In a Centrelink Medical Report dated 16 June 2015 Dr La, GP, lists “schizophrenia” as a medical condition with significant impact and describes impact on ability to function as “difficulty concentrating, impaired cognitive function”.

23. In a Centrelink Medical Report dated 6 July 2015 Dr Yu, psychiatry registrar, lists “schizophrenia” and “adjustment disorder” as medical conditions with significant impact and describes impact on ability to function as “needs to be able to concentrate well to be able to function. He needs to focus well to do daily living tasks” and “needs ongoing support and needs motivation for activities of daily living”.

24. In a brief letter dated 28 September 2015 Dr Yu states that Mr Lual “has a diagnosis of Paranoid Schizophrenia and Depression” and has had previous hospital admissions “in the context of relapse of Schizophrenia”.

25. Dr Yu notes that Mr Lual is compliant on his current medication of Risperidone 2mg at night, denies psychotic symptoms when on treatment, and that when she reviewed him on 6 July 2015 he was stable. Dr Yu stated that she was “not in a position to answer questions regarding his impairment rating”.

26. In a Centrelink Medical Report dated 8 July 2015 Dr Ngo, GP, lists “schizophrenia” as a medical condition with most impact and describes impact on ability to function as “cognitive function, behaviour & interpersonal relationship issues”.

27. In an undated medical report that had been provided to the SSCSD by Legal Aid, in September 2015,  Dr Kamal, GP, states inter alia the following:

    “He is now stable on Risperidone. However this has affected him and he states that he is unable to concentrate and he tried to enrol in a few courses, but his attention and concentration span are reduced. He is also suffering from a depressed mood and he tends to shy away from people and isolate himself”

28. In a Job Capacity Assessment (JCA) Report submitted on the 22 May 2015 the assessor notes inter alia the following:

    “The client lives alone independently in Department of Housing accommodation and attends to all self care needs without support…client is able to travel to and from unfamiliar environments independently…the client has no difficulties on concentrating on most tasks ...”

    Consideration

29. In my view, corroborative evidence with respect to the functional impact of Mr Lual’s schizophrenia on activities involving mental health function, at the time of cancellation, can best be described as incomplete and significantly limited.

30. The limited medical evidence before the Tribunal evidence does suggest that Mr Lual suffers some functional impairment on activities involving mental health function. However, the reports by the various medical practitioners do not provide sufficient corroborative evidence to support a conclusion that, at the time of cancellation, there was more than a mild functional impact on activities involving mental health function which would attract a rating of 5 points under Impairment Table 5.

    LOWER LIMB CONDITION

31. As a child Mr Lual suffered from poliomyelitis which has resulted in right lower limb abnormality and permanent functional impairment.

32. There is no dispute that Mr Lual’s lower limb condition is permanent for the purposes of the Impairment Determination. However, the Respondent contends that, at the time of cancellation, the Mr Lual suffered only a mild functional impact on activities requiring use of the lower limbs as a result of this condition.

33. In a brief letter dated 26 February 2013, Dr Kuo, orthopaedic surgeon, notes that “it is eight years since his ankle arthrodesis and 12 months post his midfoot arthrodesis and progressing well. X-rays shows it has united in good position. He has minimal pain. He has taken occasional Celebrex but he is much happier now.”

34. In her report of 10 March 2015 Dr Kamal notes that Mr Lual requires special orthotic footwear, has a shorter right leg, walks slowly with a limp but provides no other details with respect to impact on ability to function.

35. Dr La in his report of 16 June 2015 notes that that Mr Lual has right leg weakness, difficulty in walking and pain when standing or walking for more than 30 minutes.

36. Dr Ngo in his report of 8 July 2015 does not provide any additional useful information.

37. In her undated report Dr Kamal states inter alia the following:

    “He is left with a residual antalgic gait and has no range of movement in his Rt ankle and foot due to the surgical fusion….he is unable to walk for a long distance as he starts to experience pain and fatigue in his foot. I rate his lower limb disability as having a mild functional impact on his walking and gait, as he needs orthoses – shoes to correct the length discrepancy of his legs and even with these, his gait is still affected and he has difficulty climbing stairs and walking around at variable speeds…..” [emphasis added]

38. Dr Kamal provided a second report dated 19 February 2016 which appears to be exact copy of her earlier report except for one phrase where she states “I rate his lower limb disability as having a severe functional impact on his walking and gait……” [emphasis added].

39. Dr Kamal does not provide any explanation for the apparent change in her assessment of functional impact over a six month period and in my mind this raises some concern as to the reliability of the report. 

40. In the JCA report of 22 May 2015 the assessor notes inter alia the following:

    “The client has some difficulty walking around a shopping mall or supermarket without rest. Client reported that he can access public transport and can walk for 30 minutes. Client reported that he can manage light household tasks such as general cleaning, dish washing; self-care is retained and can walk to local shops but needs some rest breaks ….client has some difficulty climbing stairs. Client walks with a mild limp on his right leg…wears orthotic in right leg and was not using any walking aid Client can squat and kneel on left leg…”

    Consideration

41. Notwithstanding the limitations of the available evidence and some concerns about reliability I am satisfied that, at the time of cancellation, Mr Lual suffered a mild functional impact on activities requiring use of lower limbs so that a rating of 5 points under Impairment Table 3 can be applied.

42. Furthermore, after due consideration of the descriptors in Impairment Table 3 I am satisfied that the available evidence does not support a conclusion that, at the time of cancellation, Mr Lual suffered a moderate impairment on activities requiring the use of the lower limbs.

    SPINAL CONDITION

43. Mr Lual claims that he suffers from chronic back pain. He told the Tribunal that his only treatment has been two courses of physiotherapy and intermittent Celebrex.

44. In a report dated 18 October 2012 Dr Gray, orthopaedic spine surgeon, notes inter alia the following:

    “This gentleman has been experiencing pain in his thoracolumar region for over two years no. He feels this has been progressively getting worse over the recent past. He does not report any neurological symptoms in his upper or lower limbs. He feels that the pain is worse while sitting or walking for prolonged periods of time……He takes Celebrex that give him some relief from the pain…..On examination he had a mild thoracic scoliosis….He also had a leg discrepancy and a neurological examination consistent with polio of his right leg….The CT scan of his thoracolumbar spine does not show any significant surgical pathology or any underlying condition that may be contributing to his back pain…” 

45. The reports of CT scans of the lumbo-sacral spine performed in October 2011 and November 2014 describe similar findings with no significant change.

46. In her report of 10 March 2015 Dr Kamal lists “Scoliosis → spine → causing chronic lower back pain” as a medical condition that is generally well managed and that causes minimal or limited impact on ability to function but provides no other details.

47. Dr La lists “ Chronic back pain” as a medical condition that is generally well managed and that causes minimal or limited impact on ability to function and describes impact on ability to function as “unable to sit for more than 30 minutes”.

48. Dr Ngo lists “scoliosis” as a medical condition that is generally well managed and that causes minimal or limited impact on ability to function but provides no other details.

49. In the JCA report the assessor considered Mr Lual’s spinal condition to be fully diagnosed but not fully treated and fully stabilised.

    Consideration

50. On the evidence available to the Tribunal I am satisfied that, at the time of cancellation, Mr Lual’s spine condition was permanent for the purposes of the Impairment Determination.

51. The corroborative evidence with respect to any functional impairment caused by this condition at the time of cancellation is significantly limited and somewhat inconsistent.

52. I am satisfied that, at the time of cancellation, there was insufficient evidence to allow for any reasonable assessment of the impact of Mr Lual’s spine condition on activities involving spinal function so that a rating under Impairment Table 4 could not be applied.

53. At best the available evidence tends to suggest that, at the time of cancellation, there may have been a mild functional impact, but there is no evidence to support a conclusion that there was a moderate functional impact on activities involving spinal function.

    UPPER LIMB FUNCTION

54. Mr Lual claims that he suffers impairment with the use of his right hand which he attributes to the poliomyelitis he suffered as a child.

55. In her report of 10 March 2013 Dr Kamal does not refer to any condition or impairment involving the right hand.

56. In her undated report Dr Kamal notes that “Mr Koul contracted poliomyelitis when he was a child. I has affected the Rt side of his body, including his hand and foot……As for his Rt hand, I rate it at having a mild functional impact on his ability to pick up heavy objects such as shopping bags and cartons of liquid using his Rt Hand. He is Rt handed.” 

57. The SSCSD accepted that Mr Lual had a right hand condition at the time of cancellation, on the basis that it was an impairment arising from his childhood polio, and that the condition was permanent for the purposes of the Impairment Determination.

58. With respect to functional impact the SSCSD noted inter alia the following:

    “Mr Lual said he can use a pen and computer keyboard, but more slowly than others. He can handle coins. He has some difficulty with buttons. He has difficulty lifting things up that are heavy, such as a backpack….has problems with picking up items that are heavier than a two-litre container of milk. There is no clinical evidence of Mr Lual having fine motor impairments”.

59. The SSCD decided that on the available evidence Mr Lual’s right-handed impairment did not meet the requirements for “allocation of a 5-point impairment rating.”

60. At the hearing Mr Lual told the Tribunal that he has difficulty with movement of the right hand and that he cannot lift heavy things but can pick up a milk carton, pick up a pen, can button up a shirt, but sometimes needs help, and can do up a zipper. He said he does not have a computer but can manage a mobile phone.

61. At the hearing Mr Lual was observed, while seated, to be able to take out his ringing mobile phone from his right trouser pocket, with his right hand, without any apparent difficulty and turn off the phone.

    Consideration

62. The issue of Mr Lual’s right hand condition is, in my view somewhat problematic.

63. Although the condition may have been present prior to the time of cancellation there is no mention of this condition or any associated impairment in any of the available medical documents until the undated report provided by Dr Kamal.

64. In her report Dr Kamal does not provide any clinical description of the right hand condition or any findings on physical examination. Her assessment of mild impairment appears to be based on Mr Lual’s self-report of difficulty with his ability to pick up heavy objects.

65. I am not persuaded that at the time of cancellation Mr Lual’s right hand condition was fully diagnosed so that a rating under Impairment Table 2 could not have been applied.

66. Furthermore, even if were to accept that, at the time of cancellation, Mr Lual right hand condition was permanent for the purposes of the Impairment Determination the available evidence suggests that, at that time, there was no functional impact on activities using hands or arms.

    DECISION

67. For reasons set out above I am satisfied that, at the time of cancellation, Mr Lual did not have an impairment of 20 points or more under the Impairment Tables so that he did not satisfy s 94(1)(b) of the Act and did not qualify for DSP. This means that the decision to cancel the DSP was correct.

68. The Tribunal affirms the decision under review.

I certify that the preceding 68 (sixty -eight) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

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

Associate

Dated 20 April 2016

Date(s) of hearing	5 April 2016
Applicant	In person
Solicitors for the Respondent	Department of Human Services