Nguyen and Secretary, Department of Family and Community Services
[2003] AATA 1071
•27 October 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1071
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/773
GENERAL ADMINISTRATIVE DIVISION ) Re Hai NGUYEN Applicant
And
Secretary Department of Family and Community Services
Respondent
DECISION
Tribunal Ms N Isenberg, Member Date 27 October 2003
PlaceSydney
Decision The Administrative Appeals Tribunal affirms the decision under review.
[Sgd] Ms N Isenberg, Member
CATCHWORDS
SOCIAL SECURITY - disability support pension – physical impairment – entitlement to disability support pension – whether the Applicant had an impairment rating of 20 points or more under the impairment tables – whether the Applicant had a “continuing inability to work”
LEGISLATION
Social Security Act 1991 – sections 94(1), (2), (3), (4), (5), (6), Schedule 1B
Social Security (Administrative) Act 1999 – sections 4(1), (2)
CASE LAW
Hudson and Department of Family and Community Services [2000] AATA 502
REASONS FOR DECISION
27 October 2003
Ms N Isenberg, Member
DECISION UNDER REVIEW
1. The decision under review before the Administrative Appeals Tribunals (“the Tribunal") was the decision of the Social Security Appeals Tribunal (“the SSAT") dated 29 April 2003 (T2) which affirmed the decisions of an Authorised Review Officer (“ARO”) dated 24 February 2003 (T13) and the Secretary, Department of Family and Community Services ("the Department") dated 9 October 2002 (T10) to reject the claim of Mr Hai Nguyen (“the Applicant”) for a disability support pension (“DSP”).
BACKGROUND
2. The Applicant was born on 22 May 1957 and came to Australia in September 1983.
3. On 10 September 2002 the Applicant lodged a claim for DSP indicating that he had leg pain, back pain, stomach problems and depression. (T6/12-52). On the same date the Applicant’s local doctor, Dr Van Vinh Nguyen (”the local doctor”) who has been treating the Applicant since 29 December 1992, (T7/53-59), lodged a report, indicating that the Applicant had chronic lower back pain, depression and gastritis. The local doctor indicated that all of the Applicant’s impairments were long-term except for his gastritis, which was temporary. He also stated that the Applicant would not be able to return to any kind of work within the next two years.
4. On 3 October 2002 a Medical Assessment Report was completed by Dr N Rose from Health Services Australia (“HSA"), indicating a total impairment rating of 10 points under the Impairment Tables at Schedule B of the Social Security Act 1991 (“the Act”). (T9/61- 77). This consisted of 10 points for his lower back pain under Impairment Table 20. Table 20 was preferred to Table 5.2 because, whilst the Applicant’s back had a full range of movement, he experienced back pain. His depression was rated nil under Table 6 as it gave him minimal impairment. The gastritis was rated nil under Table 11.1. Dr Rose's opinion was that the Applicant was fit to perform full time work which does not involve heavy lifting or repetitive bending, such as a sales assistant, ticket collector or factory worker. (T9/77)
5. On 9 October 2002 the Applicant's claim for DSP was rejected on the basis that his total impairment was assessed at less than 20 points. (T10/78- 79)
6. On 24 February 2003, following the Applicant's request for a review, an ARO decided that the decision to reject the claim for DSP was correct. (T13/84-95) The ARO assigned a total of 10 points only, under Table 20, for lower back pain and agreed that the Applicant was fit for full-time light work.
7. The Applicant appealed to the SSAT. On 29 April 2003, that tribunal also affirmed the decision to reject his claim for DSP. (T2/2-8) However, the SSAT found that the Applicant should be assigned 15 points under Table 20, for lower back pain. A nil impairment rating was assigned for the Applicant's depression under Table 6 as it produces mild symptoms only. That tribunal considered the Applicant's gastritis under Table 11.1, allocating nil points. The Tribunal did not consider the question of continuing inability to work.
ISSUE BEFORE THE TRIBUNAL
8. This application concerns a claim for DSP made on 10 September 2002. Entitlement to DSP is governed by section 94 of the Act, which provides as follows:
“94 Qualification for disability support pension
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;
…
(d) the person has turned 16; and
(e) the person either:
(i)is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or …
9. The requirements to be satisfied to establish that a person has a continuing inability to work because of an impairment are set out in section 94(2) and (3).
10. Insofar as section 94(1) is concerned, there was no dispute that the Applicant does have a physical impairment, he is greater than 16 years of age and he is an Australian resident.
11. The issues in dispute in the current application, however, are:
a) whether the Applicant has an impairment rating of 20 points or more under the Impairment Tables and, if so,
b) whether he has a "continuing inability to work".
TIME FOR CONSIDERATION OF ENTITLEMENT TO DSP
12. Schedule 2, clause 4 of the Social Security (Administration) Act1999 obliges the Tribunal to consider if the Applicant was entitled to DSP on 10 September 2002 or at any other time up to 3 December 2002.
APPEARANCES
13. A hearing was held before the Tribunal on 14 October 2003 at which the Applicant appeared without representation but with the assistance of Ms Angelina Lam, accredited interpreter in the Vietnamese language. The Respondent was represented by Ms J Green, an advocate from the Centrelink Service Recovery Team.
EVIDENCE: Documents
14. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), which the Tribunal took into evidence.
15. In addition, the following documents were tendered:
Exhibit Document Date A1 Letter from Dr Van Vinh Nguyen canvassing the Applicant’s medical problems 9 July 2003 A2 Medical Certificate of Dr Van Vinh Nguyen 28 October 2002 A3 Medical Certificate 9 September 2002 A4 Letter from Dr F.A Doull to Dr Van Vinh Nguyen 2 November 2002 EVIDENCE: the Applicant
16. The Applicant gave evidence and was cross-examined on behalf of the Respondent. Questions were also put to the Applicant by the Tribunal.
17. The Applicant said that his lower back is his main problem. He said he is unable to sit or stand for long periods. At night the pain interferes with his sleep and he is particularly sore in the morning. He estimated that the maximum time he can sit in one spot without having to move around is 15 minutes. After sitting for long periods he has to rest for 10 minutes before he is able to move around.
18. He said he is unable to bend or to squat. He said he cannot lift anything heavy - 2-3 kgs is the maximum weight he can lift.
19. As far as treatment for his back is concerned he said that he underwent acupuncture in 1994-6 and physiotherapy in about 1995-6 but otherwise has had no treatment. He said he takes no medication for his back, although he had previously taken Panadeine forte but ceased when found that it upset his stomach. He said in cross-examination that in about 1994 doctors had recommended surgery but as the prospects of recovery were not good he did not proceed with the operation. Since then he had not explored surgery as an option as he would not be able to afford it. He has not been advised to attend a pain clinic, he said, because the local doctor had told him the condition is permanent. He had attempted to wear a brace while at the post office but it was ‘very hard around [his] back’.
20. As to his capacity to travel, the Applicant told the Tribunal that he had come to the hearing by train. He walked to the station from his home – a distance of 400-500 metres. He negotiated the stairs at Bankstown and at St James station but had to walk slowly because his legs get sore.
21. The Applicant said that to put on his trousers he must lean against a wall, as he cannot lift his leg high enough to into the trouser leg because of the pain. He said it is mainly his left leg which is really sore – in particular, the left foot. Sometimes, without apparent cause, his legs are stiff and he has to massage them. He takes ‘Nurofen’ for the pain in his legs – sometimes 3 or 4 a day - and applies ‘Deep Heat’.
22. The Applicant said he lives with his brother who attends to all the domestic chores, such as vacuuming. The Applicant said he does only minimal cooking (such as boiling rice), because his brother does the cooking, as he is the better cook.
23. He said he spends his day walking around the park and streets, as walking eases his back pain. If he is at home he can only sit, stand or lie down, which makes him depressed. He feels ‘helpless’ when he sees his friends, and especially his brother, who are healthy and active. Sometimes he feels suicidal. He has not seen a psychiatrist, because ‘[I’m] not crazy.’
24. He said that his stomach problems, which feel like indigestion, had started when he was taking Panadeine Forte, in about 1992 or 1993. Since then he said he is unable to eat anything fatty.
25. He said that he last worked in 1996 as a mail sorter, but he resigned. Since then his brother has supported him. For the last 2-3 years he has been on the ‘work-for-the-dole’ program. He was obliged to dig soil and push a barrow around, but said that after 2 days of doing it he would have to lie down because he could not keep it up. The program ceased a few months ago.
26. In relation to hepatitis C he said that he believed he has had the condition for 4-5 or possibly 10 years. Only a few months ago the local doctor found it to be ‘still active’.. The condition produces a rash which is itchy, for which he has been given medication. He is due to see a specialist in relation to his hepatitis shortly, he not having been previously referred for the condition. As to why he did not mention it in his claim form he said that he did not think it was relevant, as his back was his main concern.
27. His visit to the doctor in relation to the rash a few months ago was the last time he had been to the local doctor, notwithstanding that the local doctor bulk-bills.
28. In relation to recent investigation of his conditions he said he had x-rays taken of his head, back and legs but they had been lost.
29. He also said he has loose teeth and his dentist wants to take them all out.
SUBMISSION: Applicant
30. The Applicant said he is unable to perform normal duties like other people because of his sore back. As a result of that condition he is also unable to sit, stand or walk for a long time. The Applicant stated that if Centrelink make him go to work, then it would be their responsibility if anything happened to his back.
31. The Applicant also referred to his stomach problems and to his hepatitis. He said that he was concerned that if he disclosed conditions to a potential employer he would not be employed. He was also worried about passing on hepatitis C.
32. He said he was being ‘traumatised by all the legal proceedings’.. The Applicant said that he is the one who knows his pain, ‘not this doctor and not the Centrelink doctors’.
33. The Applicant opined that even if he is fit to do 8 hours work a week it is ‘illogical’ that he be required to work full time. He also said he could not understand how ‘previously’ he had been assessed at ‘15% (sic)’ and now Centrelink was asking the Tribunal to assess him at ‘10% (sic) again’.
SUBMISSION: Respondent
34. There is no dispute that the Applicant satisfies the requirements of subsection 94(1)(a) in that he has lower back pain, gastritis and depression.
35. However, the Respondent contended that the Applicant does not satisfy subsection 94(1)(b) of the Act because the medical evidence indicates that he does not have a combined impairment rating of 20 points or more under the Impairment Tables.
36. The Introduction to the Impairment Tables states (inter alia):
“2. These Tables are designed to assess impairment in relation to work and consist of system based tables that assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance.
…
3. These Tables give particular emphasis to the loss of functional capacity that a person experiences in relation to work.
…
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.
…
8. In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it. For example, Table 5 should be used for spinal pathology. …”
37. The Respondent contended that the maximum rating which could be assigned to the lumbar spine condition is 10 points under Table 20. The radiology reports provided to date indicate that there is no evidence of disc protrusion, fracture or joint displacement with only minor degenerative changes evident and referred the Tribunal to the scans from Dr J Christie (T3/9) and Dr P Larbalestier (T4/10). This rating is further supported by the report of Dr N Rose from HSA. (T9/6l- 77) In this report, Dr Rose indicated that the Applicant's "spinal mobility was excellent with full range of movement.." However in order to take into account the pain that the Applicant's back was causing him, Dr Rose chose to apply Table 20 and to assign 10 points, as there were ‘moderate symptoms’ associated with the Applicant’s pain. Dr Rose further suggested that the Applicant might try alternative analgesia or anti-inflammatory medication to assist with his pain since he could not tolerate Panadeine forte. Such treatment may help to lessen the Applicant's symptoms from this impairment.
38. The Respondent contended that the appropriate rating for the Applicant's depression is nil points under Table 6. In his Treating Doctor's Report of 9 September 2002, the local doctor indicated that the Applicant’s depression was stable and did not require drug therapy, being treated with counselling. (T7/54). Dr Rose assigned the Applicant's depression nil points under Table 6 indicating that this condition presented minimal impairment. (T9/67)
39. The Respondent contended that the appropriate rating for the gastritis is nil points under Table 11.1. The local doctor’s report of 9 September 2002 indicated that this condition was of a temporary nature. (T7/56) Nevertheless, Dr Rose chose to give a rating of nil points under Table 11.1 as the condition was related to the taking of Panadeine Forte for the Applicant's back pain and produced mild symptoms. (T9/68)
40. On 9 July 2003 following a request for further medical information, the Applicant presented Centrelink with a further report from the local doctor (Exhibit A1). This report indicates that the Applicant, in addition to his lower back pain and depression, now also suffers from chronic neck pain and Hepatitis C, affecting his liver. The report does not discuss the Applicant's gastritis. The local doctor attempted to give the Applicant's impairments a rating; however, these ratings do not appear to correspond to those of the Impairment Tables under Schedule 1B of the Act. The local doctor further commented that there is not much chance of improvement in any of these conditions in the future and that the Applicant is well qualified for the DSP.
41. It was the Respondent's contention that the further conditions of chronic neck pain and Hepatitis C, as set out in the local doctor’s report of 9 July 2003 cannot be given a rating as they were not fully diagnosed, treated and stabilised at the time of the claim for DSP.
42. The Respondent therefore contended that as the Applicant has a total impairment rating of 10 points under the Impairment Tables he does not satisfy the requirement for 20 points under subsection 94(1)(b).. As such, the Applicant did not qualify for DSP at the date of claim, nor in the following 13-week period.
43. For completeness, with regard to whether or not the Applicant has a continuing inability to work, the advocate for the Respondent referred the Tribunal to subsections 94(1)(c), 94(2) and 94(5) of the Act. Dr Rose indicates in his report that the Applicant is fit to perform full-time work, but needs to avoid heavy lifting, repetitive bending and should be allowed to adjust his posture as needed. (T9/77). The local doctor’s Medical Certificate dated 2 November 2002 (Exhibit R2) also indicates that the Applicant was fit for light duties only, with no lifting of more than 5 kilograms, no repetitive bending or prolonged sitting or standing.
FINDINGS
44. In coming to the correct and preferable decision, the Tribunal took into account all the evidence, submissions, case law and relevant legislation.
45. The first task for the Tribunal was to be satisfied that the Applicant’s condition was one, which could properly be described as “permanent” so as to attract a rating.
46. Notes 5 and 6 of the Introduction of Schedule 1B amplify Note 4 to which the advocate for the Respondent referred:
“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.
6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
·what treatment or rehabilitation has occurred;
·whether treatment is still continuing or is planned in the near future;
·whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.
In this context, reasonable treatment is taken to be:
· treatment that is feasible and accessible ie, available locally at a reasonable cost;
· where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.
In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the medical officer should:
· evaluate and document the probable outcome of treatment and the main risks and or side effects of the treatment; and
·indicate why this treatment is reasonable; and
·note the reasons why the person has chosen not to have treatment.”
47. It was therefore to be determined if the Applicant’s conditions had been diagnosed, treated and stabilised, so as to ascertain which of the Applicant’s complaints could be taken into account in determining, as at the date of application or in the 13 weeks thereafter, his entitlement to DSP.
48. The advocate for the Respondent did not dispute that the Applicant’s conditions in relation to his back, gastritis and depression were permanent.
49. There was ample evidence before the Tribunal, that the Applicant suffers from long-standing problems associated with his back.
50. The Applicant’s own account at the hearing was that his back is his major problem and the Tribunal accepts this evidence that this condition causes him the most debility.
51. The Tribunal turned to consider the appropriate rating for the Applicant’s back in accordance with Table 5.2. That Table however, looks to spinal mobility. Dr Rose (T9/6l- 77) found the Applicant's spinal mobility to be ‘excellent with full range of movement’. The local doctor in his reports of 19 September 2002 (T8), 26 April 2003 (T15) and 9 July 2003 (Exhibit A1) made no comment in relation to limitation of range of movement and noted only the Applicant’s pain. The Applicant himself in his evidence only complained of pain.
52. The radiology and imaging reports provided by Dr Christie (T3/9), Dr Larbalestier (T4/10) and Dr Doull (Exhibit A4) indicate scoliosis and spina bifida occulta and some lipping (spondylolisis) but made no comment as to the effect on mobility.
The Tribunal then turned to consider Table 20 which provides, so far as is relevant:
“TABLE 20. MISCELLANEOUS - …CHRONIC FATIGUE OR PAIN
Table 20 can be used for miscellaneous conditions for example, … disorders with chronic fatigue (including Chronic Fatigue Syndrome) or pain and hypertension. Where there is a separate loss of function, in addition to the loss which can be rated using the system-specific Tables, Table 20 can be used. Double-counting of a particular loss of function, by the use of more than one Table, must be avoided.
Rating Criteria
NIL Controlled hypertension
Malignancy in remission with a good fair prognosis
Minor symptoms which are easily tolerated and have no appreciable effect on ability to work.
TENMild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity. Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work-related tasks. There is minimal effect/impact on work attendance.
Hypertension that is difficult to control despite intensive therapy but without end-organ damage
Potentially life-threatening condition which is currently not interfering with daily activities eg. malignancy in remission with a poor prognosis
Heart/Liver/Kidney transplants – well controlled (well functioning) with only mild systemic symptoms.
FIFTEENModerate to severe symptoms which are more distressing but prevent few everyday activities. Self-care is unaffected and independence is retained. Symptoms may have mild to moderate impact on ability to perform or persist with work-related tasks and/or attend work. Full-time work would still be possible.
Potentially life-threatening condition which is currently interfering with daily activities but self-care is unaffected.
More severe symptoms with a decreased ability/efficiency to carry out many everyday activities. Most daily activities can be completed with some difficulty. Symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. Symptoms cause significant interference with ability to perform or persist with work-related tasks. Symptoms may cause prolonged absences from work.
THIRTYVery severe symptoms which lead to substantial difficulty with most daily tasks. Assistance with elements of self-care may be required. Symptoms cause severe interference with ability to work or attend work (ie. minimal residual work capacity).
Heart/Liver/Kidney transplants – poorly controlled (poorly functioning) with fairly severe symptoms which lead to substantial difficulty with most daily tasks
Malignant hypertension – severe, uncontrolled
Inoperable, symptomatic and life-threatening aneurysm or malignancy. Very poor prognosis with only a very limited lifespan.
FORTYMajor restrictions in many everyday activities. Capacity for self-care is restricted, leading to dependence on others. No residual work capacity.”
53. The Tribunal found that 15 impairment points is the appropriate rating for the Applicant’s back condition. In coming to this view it was noted that although he is unable to sit or stand for long periods he is able to walk at least 500 metres. He cannot lift anything heavy, nor can he bend or squat.
54. The Applicant gave evidence that he has difficulty lifting his legs to put on his trousers His left leg is particularly sore – especially the left foot. His evidence was that such medication as he takes is for his leg pain.
55. In It should be noted that the local doctor made no reference to the Applicant’s legs in the Treating Doctor’s Report of 9 September 2002 nor in a medical report completed on 19 September 2002. However in his medical certificate of 2 November 2002 (Exhibit R2) the local doctor associated the Applicant’s leg pain with the back condition but noted that it was the right leg, rather than the left as the Applicant had indicated, which was affected.
56. In Dr Rose ‘s report dated 3 October 2002 (T9) there also was no assessment of the Applicant’s legs.
57. On the basis of the material before it the Tribunal could not be satisfied that the Applicant’s leg condition could properly be described as ‘permanent’. This case is different to that of Hudson and Department of Family and Community Services [2000] AATA 502 where the Tribunal was prepared to assess a condition even though a definite diagnosis could not be provided. Further, in this case there was no evidence of prescribed treatment of the Applicant’s condition, other than his self-medication and heat treatment. There was even doubt as to which leg was affected. The Tribunal therefore was not prepared to attribute a rating to the Applicant’s leg condition.
58. In relation to the Applicant’s depression his evidence was of feelings of helplessness when he compares his lifestyle with that of his healthy and active friends. Although he said that sometimes he feels suicidal he has not been referred to a psychiatrist by the local doctor who, in his Treating Doctor's Report of 9 September 2002, indicated that the Applicant’s depression was stable and the only treatment required was counselling (T7/54).
59. In view of this evidence the Tribunal agreed with Dr Rose that the Applicant's depression attracted a rating nil points under Table 6 as at the relevant dates it presented minimal impairment. (T9/67):
“TABLE 6. PSYCHIATRIC IMPAIRMENT
…
Rating
NILMild but regular symptoms which tend to cause subjective distress. On most occasions able to distract themselves from the distress. Minimal interference with function in everyday situations. Exacerbation of symptoms may cause occasional days off work. (eg. There may be some loss of interest in activities previously enjoyed. There may be occasional friction with family, colleagues, or friends) Medical therapy or some supportive treatment from treating doctor may be required.
…”
60. The Applicant’s evidence in relation to his stomach problems (gastritis), was that since taking Panadeine Forte for his back, in about 1992 or 1993 he has been unable to eat anything fatty without producing feelings of indigestion.
61. The local doctor’s report of 9 September 2002 indicated that this condition was of a temporary nature. (T7/56) and in his report of 2 November 2002 (Exhibit R2) did not mention the condition at all. Dr Rose however, in observing that the condition was related to the taking of Panadeine Forte for the Applicant's back pain (T9/68) attributed a rating of nil points under Table 11.1 as it produced mild symptoms. The Tribunal agrees with this view.
62. The Applicant also gave evidence about his hepatitis C and said that that condition has produced an itchy rash. While the Applicant believed he had had hepatitis for some years there was no mention of the condition by the local doctor in the claim form. The Applicant thought that was because it was not relevant to his main concern – his back. The Applicant said that only a few months ago the local doctor found the condition to be ‘still active’.. He has not yet seen a specialist in relation to the condition. The Tribunal was not satisfied that at the relevant dates the condition had been fully diagnosed, treated and stabilised.
63. The Tribunal therefore finds that the Applicant does not achieve 20 impairment points as required by subsection 94(1)(b). Having come to this view it was unnecessary to consider if the Applicant has a ‘continuing inability’ to work.
64. The Tribunal therefore finds that the Applicant, at the relevant dates, did not meet the criteria for the DSP.
DECISION
65. The Administrative Appeals Tribunal affirms the decision under review.
I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member
Signed: A. Krilis
AssociateDate of Hearing 14 October 2002
Date of Decision 27 October 2002
Representative for the Applicant Self-represented
Solicitor for the Respondent Ms Jane Green
0
1
0