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

[2015] AATA 513

Ngo and Secretary, Department of Social Services (Social services second review) [2015] AATA 513 (15 July 2015)

Division	GENERAL DIVISION
File Number	2014/2842
Re	Quy Mai Ngo
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Miss E A Shanahan, Member
Date	15 July 2015
Place	Melbourne

The Tribunal affirms the decision under review.

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

Miss E A Shanahan, Member

SOCIAL SECURITY – disability support pension – claimed medical conditions head and neck pain – aetiology unknown – bilateral carpal tunnel syndrome – depression – conditions not fully diagnosed, treated and stabilised – impairment rating less than 20 points – decision affirmed

Legislation

Social Security Act 1991

Social Security (Administration) Act 1999

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

Social Security (Requirement and Guidelines – Active Participation for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Miss E A Shanahan, Member

15 July 2015

INTRODUCTION

1. Ms Ngo lodged her claim for the disability support pension (DSP) with Centrelink on 7 March 2012 for the conditions cited as chronic dizziness and chronic headache. Centrelink is the service delivery agency for the Department of Social Services (the Department).   

2. Ms Ngo underwent job capacity assessments (JCA) on 2 April and 24 September 2012. On 24 September 2012, a rehabilitation counsellor assigned a total impairment rating of 25 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) to Ms Ngo’s conditions of cervicogenic headache and bilateral carpel tunnel syndrome.  However, a Centrelink officer rejected her claim on 21 January 2013 as she had not participated in a program of support.  At Ms Ngo’s request an internal review was conducted by an authorised review officer (ARO). On 3 December 2013 the ARO affirmed the Centrelink officer’s decision. 

3. Ms Ngo’s application for review by the Social Security Appeals Tribunal (SSAT) was heard on 24 April 2014 and it was determined that her symptomatology of headache, nausea and neck pain were not fully diagnosed, treated and stabilised and did not attract an impairment rating in accordance with the Social Security Act 1991 (the Act).  The SSAT assigned a total impairment rating of five points for Ms Ngo’s bilateral carpal tunnel syndrome. Ms Ngo sought review of the SSAT’s decision by this tribunal.

4. Ms Ngo and her husband, Mr Hoa, were assisted at the hearing by Mr P Carson, solicitor. The Department was represented by Ms V Chan, instructed by Mr T Noonan, solicitors from the Centrelink Litigation Branch.  Mr R Chan, an interpreter in the Cantonese language, assisted the Tribunal, as neither Ms Ngo nor her husband is fluent in the English language.  Mr Hoa’s evidence and assistance was essential as his wife was unable to recall dates with any accuracy. 

5. Both parties tendered documents, a list of which is appended to this decision.

   BACKGROUND TO THE APPLICATION

6. Ms Ngo migrated to Australia from Vietnam in 1992.  She worked as a processor for Vulcan for approximately one year, ceasing employment in 1995 after the birth of her second child.  In Vietnam, she had worked in her family shop.  Since 1995 Ms Ngo has cared for her two children, now aged 20 and 22.

7. Ms Ngo first developed right-sided neck and occipital pain in 2004. The pain was quite localised to the right side of the occiput, her neck and her right shoulder.  She used a liniment and Panadol to alleviate the pain.  The pain gradually increased in severity and became more persistent.  Various treatments were ineffective, including acupuncture.  In 2011, a general practitioner increased her medication from Panadol to Neurofen and Panadol Osteo, with little improvement.  At about this time, Ms Ngo also developed dizziness, vomiting and episodic fainting.  She now takes five milligrams of Stemetil three times a day in an effort to control the dizziness and vomiting.  She has been admitted to Maroondah Hospital and Angliss Hospital in 2011 and to St Vincent’s Hospital in 2014 for these symptoms.  Ms Ngo has been referred to various specialists for investigation.  She is unable to recall the names of the specialists. 

8. In April 2009 Ms Ngo’s provisional diagnosis of bilateral carpal tunnel syndrome was confirmed on nerve conduction studies.  Her symptoms were those of paraesthesia (pins and needles) in both hands, numbness and some diminishment in muscle power in the hands and forearms.  Injections into the carpal tunnel provided temporary relief and surgical decompression was apparently performed in approximately 2011.  Ms Ngo had physiotherapy for one year, before and after the carpal tunnel release; and in 2012 was able to perform much more with her hands than she can at present.  For example, in 2012 she could hold a pen in her dominant right hand and write.  She now uses her left hand as she cannot hold a pen in her right hand.  She states that when she awakens her right arm is numb.

9. Ms Ngo’s husband, Mr Hoa has attended most specialist appointments with his wife and appears to have a better understanding of English.  He believes that his wife’s neck pain radiates to her arm and hand, this being his interpretation of the explanation given by Dr Olga Skibina, a neurologist at Box Hill Hospital, who treated Ms Ngo from 2012 until she was discharged from her care on 10 March 2015.  Apparently, Dr Skibina discharged Mrs Ngo in the belief that she was to be followed up by the Royal Melbourne Hospital.

10. In 2011 Ms Ngo underwent CT scanning and an MRI of her brain, because of her right occipital headache and dizziness.  These investigations were normal.  According to Dr Jimmy Nguyen, Ms Ngo’s treating general practitioner, Dr Skibina had diagnosed cervicogenic headache for which she prescribed Amitriptyline. 

11. On 4 May 2012 Ms Ngo underwent CT scanning of her cervical spine which revealed marked right-sided C5-6 foraminal stenosis, compromising the exiting right C6 nerve root.  There were lesser changes at C3/C4 and C2/C3.  An MRI of the cervical spine was recommended and was performed on 9 August 2012 at the request of Dr Skibina.  This showed early disc degeneration and minor foraminal narrowing, particular at C5/C6. 

12. At Dr Nguyen’s request another MRI of the cervical spine was performed on 26 June 2014 revealing right foraminal C5/C6 narrowing impinging on the C6 nerve root.  As a result of this finding Ms Ngo was referred to Dr Michael Wong, a neurosurgeon.  Dr Wong considered the 26 June 2014 MRI to be of poor quality and had the investigation repeated.  The MRI of 11 August 2014 revealed severe right C6 foraminal stenosis resulting from a C5/C6 disc protrusion and moderately severe right foraminal stenosis at C4/C5 also due to disc protrusion.  There was nerve root compression. 

13. Dr Wong strongly advised surgical treatment.  According to Ms Ngo she was told this was urgent as she was at risk of imminent paralysis. The procedure was described as carrying a high risk.  On 9 September 2014 Dr Wong performed a C5/C6 discectomy and spinal fusion, the exact details of which have not been provided.  In the immediate post-operative period, Ms Ngo felt improved but by the end of the month, realised there was no change in her symptomatology.  She became suicidal and was referred to Ms Sandra Nguyen, a psychologist, for counselling.  Ms Nguyen made a diagnosis of generalised anxiety disorder and a major depressive disorder (Exhibits A4, A5 and A6) and counselling was commenced.  Despite this diagnosis Ms Ngo denies she has a psychiatric disorder. 

14. Mrs Ngo has been reviewed at the Neurosurgical Outpatient Clinic at the Royal Melbourne Hospital.  On 24 November 2014 Mrs Ngo was seen by the neurosurgical registrar, Dr Leon Lai (Exhibit A2) who noted that as she failed to exhibit any improvement, a further MRI of her cervical spine was required.  The MRI was performed in February 2015 and revealed persistent right foraminal stenosis and nerve root compromise at C5/C6. 

15. Dr Benjamin Ho, a neurosurgery registrar, conducted a further review on 18 May 2015. He confirmed the diagnosis of right and left brachialgia due to persistent nerve root compression.  Ms Ngo was advised to continue her Pregabalin, Nortriptyline, Panadol and Neurofen as the pain does limit her to many functions of normal life (Exhibit A3).  Ms Ngo is to be reviewed in mid-2016 after a repeat CT scan of her cervical spine.

16. Mrs Ngo reported additional medical conditions of gastritis due to helicobacter pylori and pulmonary scaring indicative of past tuberculous infection. These conditions do not impact on Mrs Ngo’s capacity for work, as verified by Dr Nguyen.  Any contribution to impairment by the treated but apparently persistent symptoms of bilateral carpal tunnel syndrome has not been assessed by an appropriate specialist.  Mrs Ngo has not been seen or treated by a pain specialist or psychiatrist.

17. Ms Chan informed the Tribunal that Mrs Ngo had recently reapplied for the DSP and her claim had again been rejected.  It is not known if Centrelink had been provided with the results of the 2015 MRI and CT scan, with their confirmation of persistent right C6 nerve root compression despite the recent surgery. 

    EVIDENCE BEFORE THE TRIBUNAL

18. Mrs Ngo’s evidence has been included under BACKGROUND TO THE APPLICATION.  Throughout her evidence she was tearful and distressed with depressed affect. She relied on Mr Hoa for the provision of details of her treatment and chronology of events.  She was noted to hyperventilate and air swallow but did not display pain amplification as observed by the SSAT.

19. Documentary evidence in the form of reports of treating doctors and hospitals is included under BACKGROUND TO THE APPLICATION.  There are no opinions regarding the aetiology of Mrs Ngo’s nausea and vomiting, syncope (fainting) attacks or dizziness other than the findings of a normal brain CT scanand MRI . 

    RELEVANT LEGISLATION

20. Subclause 4(1)(c) of Schedule 2 of the Social Security (Administration) Act 1999 provides that a person will become qualified for payment within 13 weeks after the date of claim. The Tribunal has jurisdiction to review the decision within 13 weeks of the date of Mrs Ngo’s application.  The review period is therefore from 7 March 2012 until 6 June 2012. 

21. The qualifications for DSP are set out in s 94 of the Social Security Act 1991 (the Act).

    94Qualification for disability support pension

    (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;

    ...

22. Section 94(2) of the Act contains provisions relevant to a continuing inability to work and would only be attracted if the applicant satisfied s 94(1)(b).

23. Section 94(3C) relates to the requirement that an applicant for DSP has actively participated in a program of support for a period of 18 months in the 36 months preceding an application for DSP (Part 2 of the Social Security (Requirement and Guidelines – Active Participation for Disability Support Pension) Determination 2011).

    SUBMISSIONS

24. Mr Carson did not make formal submissions but conveyed Mrs Ngo and Mr Hoa’s firm belief that Mrs Ngo is very ill, unable to work and should qualify for DSP.  Mr Carson took the opportunity, given the presence of a Cantonese interpreter, to fully explain the relevance of the review period from 7 March 2012 to 7 June 2012 to Mrs Ngo and Mr Hoa.

25. Ms Chan relied on the Respondent’s Statement of Facts and Contentions which provided a comprehensive consideration of the legislation and its application and on the medical data before the Respondent relating to the review period between 7 March and 6 June 2012. Ms Chan submitted that Mrs Ngo did not satisfy s 94(1)(b) of the Act as only her bilateral carpal tunnel syndrome was fully diagnosed, treated and stabilised during the qualification period and this condition attracted a maximum of five impairment points under the Impairment Tables. All other conditions, which in fact amounted purely to symptoms, had not been diagnosed.

    TRIBUNAL’S DELIBERATIONS

26. Mrs Ngo has given a clear history of pain, localised initially to the neck, occiput and right shoulder; which over a period of seven to eight years increased in severity and persistence.  From her description, this pain has always been in a nerve root distribution.  For reasons that are not clear, investigation in the form of CT scanning and MRI of her neck did not take place until mid-2012.  While questions were raised regarding right sixth nerve root compression, an MRI in August 2012 reportedly showed that the exit foraminal narrowing at C5/C6 was minor.  It was not until mid-2014 that further investigation showed severe right sixth foraminal stenosis due to a disc protrusion with compression of the sixth cervical nerve root.  Thus during the qualification period between 7 March and 6 June 2012, the cause of Mrs Ngo’s neck and shoulder pain had not been determined as there was no definite diagnosis nor had any appropriate treatment been undertaken.   

27. Mrs Ngo also suffers from bilateral carpal tunnel syndrome which was fully diagnosed in 2009.  Her symptomatology was assessed by her general practitioner, Dr Nguyen as being mild to moderate and not impacting greatly on her functional capacity.  There is confusion in the records as to the exact treatment of her bilateral carpal tunnel syndrome. Mrs Ngo and her husband assured the Tribunal that she has in fact had bilateral carpal tunnel release surgery with some improvement.  The Tribunal agrees with the SSAT’s assessment of her impairment relating to the bilateral carpal tunnel syndrome as attracting an impairment rating of five points.

28. Mrs Ngo’s other conditions of gastritis and probable past tuberculosis are both well controlled and do not contribute to any incapacity for work.  Her nausea, vomiting and dizziness remain undiagnosed as to cause.  While Mrs Ngo denies that she suffers from anxiety and depression, this diagnosis has been made by a clinical psychologist but has not been fully treated let alone stabilised and does not attract an impairment rating.

29. It is clear from the medical evidence that at the time of her application for DSP and in the 13 week period thereafter, all medical conditions, other than Mrs Ngo’s bilateral carpal tunnel syndrome, had not been fully diagnosed, treated and stabilised. Therefore, s 94(1)(b) of the Act was not satisfied. It is noted that Mrs Ngo has now completed a program of support.

30. Given the progress of Mrs Ngo’s cervical radiculopathy and its unsuccessful treatment in the past 12 months, it would be advisable for Mrs Ngo to reapply for the DSP.  Ms Chan agreed to assist in this regard.

31. The Tribunal affirms the decision under review.

I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

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

Associate

Dated 15 July 2015

Date(s) of hearing	12 June 2015
Advocate for the Applicant	Pat Carson
Advocate for the Respondent	Vincci Chan, Department of Human Services

APPENDIX

For the Respondent:

·Section 37 Documents (the T-documents) – Exhibit R1

For the Applicant:

·Report of Dr Jimmy Nguyen dated 11 June 2015 – Exhibit A1

·Letter to Dr J Nguyen dated 24 November 2014 written by Dr Leon Ly – Exhibit A2

·Letter dated 18 May 2015 from Dr Ho to Dr Nguyen – Exhibit A3

·Letter/Report from Sandra Nguyen dated 10 October 2014 – Exhibit A4

·Letter from Dr J Nguyen to Sandra Nguyen dated 2 June 2015 – Exhibit A5

·Letter from Sandra Nguyen dated 2 June 2015 – Exhibit A6

·Letter dated 20 March 2015 from Dr Olga Skibina to Dr J Nguyen