Nguyen and Secretary, Department of Family and Community Services

[2004] AATA 964

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 964

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2004/390

GENERAL ADMINISTRATIVE  DIVISION

Re:HAI VAN NGUYEN

Applicant

And:SECRETARY,

DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       Regina Perton, Member

Date:             15 September 2004

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) Regina Perton

Member

SOCIAL SECURITY ‑ disability support pension ‑ whether 20 impairment points -‑ continuing inability to work

Social Security Act 1991 s 94(1), s 94(2), s 94(3), s 95(5), Schedule 1B

Social Security (Administration) Act 1999 cl 4(1) of Schedule 2

REASONS FOR DECISION

15 September 2004  Regina Perton, Member

1.      This is an application by Mr Hai Van Nguyen (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 25 February 2004.  The SSAT affirmed a decision of an authorised review officer (ARO) of the Secretary to the Department of Family and Community Services (the respondent) dated 7 October 2003, to refuse an application for disability support pension (DSP) because the applicant did not have an impairment rating of at least 20 points under the Tables for the Assessment of Work-Related Impairment for Disability Support (the Impairment Tables) in Schedule 1B of the Social Security Act 1991 (the Act).  The original decision to refuse the application was made by a delegate of the respondent on 25 July 2003.

2.      At the hearing on 26 August 2004, the applicant represented himself.  Ms Kayren Paul, a Centrelink advocate, represented the respondent.  The applicant elected to give evidence over the telephone after being contacted at home, following his failure to appear at the Tribunal.  He indicated that he had forgotten that the hearing was to take place on that day but would still like to proceed with his application.  A Vietnamese interpreter facilitated communication although the applicant also gave some of his evidence in English.

3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T31) and a number of medical reports filed by the applicant (Exhibits A1-A7). 

4.      The reports filed by the applicant  are as follows:

A1Mr Kevin F. King, Orthopaedic Surgeon, dated 26 May 2004

A2Mr Brian Barrett, Orthopaedic Surgeon, dated 15 June 2004

A3Mr Garry D Grossbard, Orthopaedic Surgeon, dated 2 April 2004

A4Associate Professor N Paoletti, Psychiatrist, dated 21 April 2004

A5Dr Clayton R Thomas, Consultant in Rehabilitation and Pain Medicine, dated 28 April 2004

A6Mr Brian Barrett, Orthopaedic Surgeon, dated 26 May 2004

A7Dr Chris Baker, Specialist in Occupational Medicine, dated 8 June 2004.

BACKGROUND

4.        The applicant was born on 6 March 1967 and is aged 37 years.   He worked as a forklift driver/labourer from 1993 until 4 April 2002.  The applicant suffered two injuries in the workplace prior to April 2002 but took little time off, continuing to work and undergoing treatment for those injuries.  On his way to a physiotherapy appointment on 4 April 2002, the applicant was involved in a motor vehicle collision in which he suffered further injuries and aggravated his pre‑existing injuries.  He was briefly hospitalised and subsequently received treatment for the injuries, both old and new.  He has not returned to work since the motor vehicle collision.  The applicant has been seeking compensation payments from the Transport Accident Commission (TAC) and Workcover and has received some compensation from the TAC to date.  There is still some outstanding litigation. 

5.      On 19 May 2003, the applicant lodged a claim for DSP which was refused on 25 July 2003 on the basis that the applicant’s impairment was less than the required 20 points under the Impairment Tables.  On 7 October 2003, an ARO affirmed the decision.   

6.      On 25 February 2004, the SSAT, which had before it further medical evidence provided by the applicant, affirmed the decision to refuse the claim for DSP.  Whilst the ARO found that the applicant’s condition warranted 10 points under the Impairment Tables, the SSAT found his impairment rating to be 15 points, which was still below the required 20 points.  The applicant filed an application for review of the SSAT decision with this Tribunal on 30 March 2004.

7.      The issue before the Tribunal is whether the applicant has an impairment rating of at least 20 points under the Impairment Tables and, if so, whether the applicant has a continuing inability to work and/or undertake training.

EVIDENCE

8.      The applicant told the Tribunal that his life has been very difficult since his two workplace accidents and the subsequent motor vehicle collision.  He said that the motor vehicle collision was not his fault.  He injured his kneecap in the collision and aggravated his neck and back injuries.  He has not been able to work since the collision.

9.      The applicant stated that he lodged claims with the TAC and Workcover.  The TAC agreed to pay him $12,000. However, he was required to re‑pay $7,000 to Centrelink for newstart allowance he had received prior to the settlement. His car was written off and he received only $4,000 from the motor vehicle insurance company.  The applicant stated that Workcover and the TAC have been in dispute about liability for his injuries which has added to his stress and led to him having to bear further expenses for solicitors, medical appointments and the like.  The dispute with Workcover is yet to be resolved. 

10.     The applicant stated that his body is ruined.  He cannot support his wife and child, which upsets him greatly.  He requires a lot of medication and attends medical appointments frequently.  He has now started to see a psychiatrist. He also suffers from insomnia and a loss of appetite.  The applicant said that his life will never be the same again.

11.     The applicant stated that he would like to resolve his problems with Workcover and get back to work.  He would like to go back to his old job if he can.   He has not considered what other types of work he could do nor has he done any re‑training.  He finds it very distressing to stay at home and not work but he cannot sit or stand for long periods of time.  His Workcover case is now being dealt with by the Medical Review Panels.  He said that he is unable to go back to work until he obtains a doctor’s certificate saying he is fit to do so. 

12.     Ms Paul cross-examined the applicant on his ability to do other jobs. The applicant said that he did not know if he could do other jobs, until he tried them.  He indicated that his main problem is pain from his injuries.

13.     The applicant said that his psychiatrist told him he is suffering from depression and that he would probably improve if he returned to work. The applicant said that he had not had any formal English classes since arriving in Australia, learning only through his interactions with other people.  He said he was willing to learn new skills but would find it difficult to sit still and concentrate at present. 

14.     The application for the DSP was accompanied by a treating doctor’s report from Dr Gwen Tchen, of Western Spinal Group dated 16 May 2003 (T8).  She indicated that the applicant, who had been her patient since late 2001, was suffering from a Lumbar disc injury which impacted on the length of time he could stand, sit or concentrate.  She indicated that this condition would impact on him for more than 24 months and that the applicant would be expected to somewhat improve over the next two years.  

15.     The applicant was assessed by Dr P. Tutton of Health Services Australia at the respondent’s request. In his report dated 19 June 2003 (T10), Dr Tutton stated that the applicant suffered from low back pain but could work more than 30 hours per week provided that he could overcome the pain and the language barrier.  His final assessment was that:

Mr Nguyen is a 36 year old fork lift driver who suffered a series of injuries to his back and now seeks a DSP.  The status of his back is marginal in term of DSP guidelines.  He can sit for 30 minutes, stand for 60 and walk for 15.  On examination he has limited flexion of his lumbar spine (~50% of normal) but good lateral flexion (>75% of normal).  MRI of the lumbar spine on 21/11/2001 and 19/02/2003 showed minimal changes.  His shoulders, which have been troublesome in the past, are no longer a significant issue.  He is to be regarded as medically fit for full time open work, but in need of intensive vocational rehabilitation.  He will no longer be able to do heavy lifting work and so need assessment and training for other jobs, most of which are more likely to require spoken English than did his previous work.

16.     After the respondent refused the application for DSP, the applicant provided a number of reports to Centrelink on 18 September 2003.  These included a report dated 9 October 2001 by Mr Gul M. Keng, Orthopaedic surgeon (T15), who indicated that the applicant had pain in his shoulders, tenderness in the lumbosacral area and that flexion was restricted to half the normal range.  A number of radiological reports prepared during the period from 21 November 2001 to 19 February 2003 were also provided (T16). Following the ARO’s decision on 7 October 2003, the applicant lodged further medical reports with the SSAT (T22-28). These included a report dated 3 November 2003, from Dr L. Luu, who indicated that he had first seen the applicant on 11 July 2002.  His opinion was that:

Mr. Nguyen has a number of co existing physical injuries causing chronic pain and significant loss of function.  He is also experiencing a number of psychological sequelae from his car accident, chronic pain and loss of function and reduced income.

In his current condition I do not believe Mr. Nguyen has any capacity for work.

In regard to future treatment I believe Mr. Nguyen will benefit from a multidisciplinary treatment approach encompassing intensive physiotherapy, psychological counselling and chronic pain management....

In regard to his prognosis, I believe Mr. Nguyen [sic] physical condition can be further improved with the above recommended treatment.  The degree of improvement and future capacity for work will only be known after rehabilitation.

17.     Mr King, orthopaedic surgeon, in a report dated 26 May 2004 (Exhibit A1), provided the following opinion:

… On clinical grounds I would assess the overall impairment of thoraco-lumbar spinal function as being about 30% and I think he has stabilised at this level.

In this motor vehicle accident he would also appear to have aggravated the pre-existing neck condition with further trauma to the cervical discs and associated ligamentous structures giving rise to a long term impairment of cervical spine function of mild to moderate severity – equivalent on clinical grounds to a 20% impairment of cervical spine function.

He seems to have made a good recovery from the shoulder injuries..

…

In the motor vehicle accident…has left him with traumatic chondromalacia affecting the patello-femoral joint equivalent on clinical grounds to a 20% impairment of the left lower limb function.  I think he has stabilised at this level.

18.     Mr Grossbard, in his report dated 2 April 2004 (Exhibit A3), is of the opinion that the effects of the motor vehicle collision were subsiding. 

19.     Associate Professor Paoletti, psychiatrist, in a report dated 21 April 2004 (Exhibit A4) states:

…

It is difficult to say whether Mr Nguyen could be considered stabilised, as he has received no psychiatric or psychological assistance.  However, the benefit he would derive from such treatment is not likely to be dramatic either in magnitude or timing…

…

Longer term occupational prognosis is dependent primarily on the physical issues, and the associated adjustment and pain disorders…..

The anxiety disorder affects his quality of life, but would affect work capacity only to the extent to which driving may be necessary for such activity…

20.     Dr Thomas, consultant in rehabilitation and pain, in his report dated 28 April 2004 (Exhibit A5), described the applicant’s present condition as follows:

…

He has a problem to his right shoulder.  He has full range of movement of his right shoulder, although does have pain at any range.  The muscles of his right rotator cuff appear to be intact.  There was no evidence of wasting or the like…It does appear primarily to be however a soft tissue injury, possibly subacromial inflammation...

He has fully recovered from his cervical spine injury.

He has soft tissue injuries to his chest and thoracic spine.

To his left knee he has tenderness over the medial joint line and some tenderness to stressing of the patellofemoral joint...

…

21.     Dr Baker, specialist in occupational medicine, prepared a report on 8 June 2004 (Exhibit A7), in which he stated:

…Mr Nguyen perceives himself as totally incapacitated and has not worked since the road traffic accident.  From a physical perspective, I would consider that he has the capacity to undertake his pre-accident duties which were restricted, and unrestricted hours.  I would have anticipated him to have returned to full-time work or at least be undertaking all of his pre-accident tasks and attendance by the beginning of January 2003…

CONSIDERATION OF THE ISSUES

22.     Section 94 of the Act sets out how a person qualifies for a DSP:

94(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 Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system;

94(2)  A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

(a)the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years; and

(b)       either:

(i)the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or

(ii)if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training—such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.

94(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 educational or vocational training or on-the-job training; or

(b)if subsection (4) does not apply to the person—the availability to the person of work in the person's locally accessible labour market.

…

94(5)” work" means work:

(a)       that is for at least 30 hours per week at award wages or above; and

(b)that exists in Australia, even if not within the person's locally accessible labour market.

23. The Impairment Tables are set out in Schedule 1B of the Act. The introduction to Schedule 1B states that:

…4.  A rating is only to be assigned after a comprehensive history and examination.  For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.  The first step is thus to establish a working diagnosis based on the best available evidence.  Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating.  In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.

5.  The condition must be considered to be permanent.  Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future.  This will be taken as lasting for more than two years.  A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years…

24. When deciding whether a person qualifies for the DSP, the decision maker also needs to take into account the provisions of clause 4(1) of Schedule 2 to the Social Security Administration Act 1999. Clause 4(1) allows a person who does not qualify for DSP at the date of application to do so within a further 13 weeks. In this case, the Tribunal must consider whether the applicant qualified for the DSP either on 19 May 2003 or at a date before 19 August 2003 (the relevant period).

25. The respondent submitted that during the relevant period, the applicant did not have an impairment of 20 points or more under the Impairment Tables and therefore, he did not satisfy s 94(1) (b) of the Act. The respondent also submitted that the applicant did not have a continuing inability to work and therefore did not satisfy s 94(1) (c) of the Act.

26.     Based on the documentary evidence and the oral evidence of the applicant, the Tribunal accepts that the applicant suffers from back and other pain now, as he did at the time he applied for the DSP.  It also accepts that his injuries and the attendant pain prevent him from undertaking the type of work he did prior to sustaining those injuries.  The Tribunal also accepts that the applicant will be unable to undertake full‑time work in a position that involves repeated heavy lifting, bending, prolonged sitting or standing and as a result will require further training and other assistance to be able to change the nature of his employment.

27.     The Tribunal notes, however, that there is a divergence of opinion as to the causes, severity and prognosis of the applicant’s injuries.  There is also a divergence on whether the symptoms being experienced by the applicant are due primarily to physical or psychological factors.  However, most of the reports concur that further examinations are necessary.

28.     In relation to assessing the applicant’s level of impairment under the Impairment Tables during the relevant period, the Tribunal notes that the assessments by Dr Tchen and Dr Tutton were prepared for the purposes of the application for the DSP during the relevant period.  Dr Tchen indicated that the applicant was suffering from a lumber disc injury that limited the time for which he could stand, sit or concentrate but she expected his condition to improve.  Dr Tutton indicated that the applicant’s back condition was marginal in terms of DSP guidelines and that the shoulder condition from which he had suffered, had improved.  Whilst a number of the more recent reports indicated that the applicant was unable to return to his original employment at the time the reports were prepared, they did not consider whether the applicant could perform different duties.  The Tribunal notes that several of the practitioners suggested re‑training. There had been no treatment or professional assessment of his anxiety and stress during the relevant period. 

29.      In light of the assessments of Dr Tchen and Dr Tutton and the evidence of the applicant, the Tribunal accepts that the applicant’s spinal condition has been diagnosed, treated and stabilised and therefore permanent for the purpose of assigning an impairment rating.  The Tribunal finds that during the relevant period the applicant would have rated five to ten points under the Impairment Tables, in relation to his spinal function.  However, the Tribunal is not satisfied that the other conditions from which the applicant suffers could be considered permanent at that time.  Therefore, the Tribunal finds that the applicant was not able to meet the required 20 points under the Impairment Tables during the relevant period.   

30. Consequently, during the relevant period, the applicant did not have an impairment rating of 20 points or more under the Impairment Tables. As a result, the applicant does not satisfy s 94(1)(b) of the Act and cannot satisfy s 94(1). The decision to refuse the claim for DSP was correct.

DECISION

31.      The Tribunal affirms the decision under review.

I certify that the thirty-one (31) preceding paragraphs are a true copy of the reasons for the decision herein of

Regina Perton, Member

(sgd)       Catherine Lake

Clerk

Date of Hearing:  26 August 2004

Date of Decision:  15 September 2004
Advocate for applicant:                Self‑represented
Advocate for respondent:            Ms Kayren Paul, Centrelink