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

[2018] AATA 12

Nguyen and Secretary, Department of Social Services (Social services second review) [2018] AATA 12 (12 January 2018)

Division:GENERAL DIVISION

File Number(s):      2016/4840

Re:Liem Nguyen

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr Bennie Ng, Member

Date:12 January 2018

Place:Melbourne

The Tribunal affirms the decision under review.

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

Dr Bennie Ng, Member

SOCIAL SECURITY – disability support pension – impairment tables – insufficient

points under tables – decision affirmed.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1991 (Cth)

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

REASONS FOR DECISION

Dr Bennie Ng, Member

BACKGROUND

1. Mr Liem Nguyen (the applicant) lodged a claim for disability support pension (DSP) on 13 March 2015. The Department of Human Services (Centrelink) rejected his application by letter dated 21 May 2015.

2. Mr Nguyen requested a review of this decision on 5 April 2016. The original decision was affirmed by an authorized review officer (ARO) on 12 May 2016.

3. On 23 May 2016 Mr Nguyen applied to the Administrative Appeals Tribunal Social Services and Child Support Division (AAT1) for a first tier independent review of the decision made by the ARO. On 15 August 2016 the AAT1 affirmed the decision to reject his claim for DSP. The Tribunal found that none of the presented conditions were fully diagnosed, treated and stabilised. As a result, Mr Nguyen’s medical conditions attracted no points, and therefore he did not qualify for DSP pursuant to s 94(1)(b) of the Social Security Act 1991 (Cth). The Tribunal therefore did not need to address whether Mr Nguyen had a continuing inability to work, the third DSP criteria, under s 94(1)(c)(i).

4. Mr Nguyen lodged a second tier review of the decision with the General Division of the Administrative Appeals Tribunal (AAT2) on 9 September 2016.  In this application, he submitted that he is suffering from ongoing pain which affected his ability to self-care and perform the activities of daily living. 

5. The AAT2 independent hearing was conducted on 28 February 2017. Mr Nguyen was self-represented. The Tribunal was assisted by an interpreter in the Vietnamese language. However, the hearing was conducted in English.

   ISSUES

6. The principal issue for determination is whether Mr Nguyen’s application for DSP lodged 13 March 2015 can be granted.

7. Schedule 2, subclause 4(1) of the Social Security (Administration) Act 1991 requires the Tribunal to assess Mr Nguyen’s eligibility for DSP from the time of application, which was 13 March 2015, and for the 13 weeks after that date,  to 12 June 2015 inclusive (the qualification period).

8. The qualification criteria for the DSP are set out in s 94(1) of the Act. The three main criteria are:

   (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)    …

9. In Mr Nguyen’s claim, he advised that he suffered from:

   ·spinal condition;

   ·major depressive disorder;

   ·diabetes;

   ·left should discomfort.

10. In a medical report dated 12 March 2015, submitted in support of the DSP application, Dr Louis Luu advised that he has been Mr Nguyen’s general practitioner at Footscray West Medical Clinic since 17 October 2013.

11. In his initial medical report dated 12 March 2015, Dr Luu stated that Mr Nguyen has suffered from two conditions: chronic back pain due to L5/S1 lumbar disc degeneration since 2011 and major clinical depression since 2011. Dr Luu provided further reports dated 13 and 16 June 2015.

12. The respondent provided the Tribunal with documents under s 37 of the Administrative Appeals Tribunal Act 1975. The Tribunal noted that the evidence presented was divided into two periods.  First, letters were presented on and before 13 November 2012 from Mr Stanley Schofield and Dr David Macintosh, both orthopaedic surgeons; Dr Robert Hjorth, neurologist; Dr David Brownbill, neurosurgeon; and Dr David Weissman, psychiatrist.   Secondly, correspondence was received on and after the date of the applicant’s DSP application. These were from Dr Louis Luu, general practitioner; Dr Alex Stockman, rheumatologist; Sandra Nguyen, psychologist; and Dr Robert Bradford, General Practitioner. The majority of the second group of reports were received after June 2015.  Further information was sought after the hearing, with a particular focus on materials temporal to the gap, especially immediately prior to the application.

    THE LEGISLATION

    Impairment Tables

13. The “Impairment Tables” mentioned in s 94(1)(b) of the Act refer to the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the determination).  The determination lists 15 separate impairment tables. Each table refers to different bodily functions. The tables are function-based rather than diagnosis-based, which means it is not enough for an applicant for the DSP to simply be diagnosed with a condition which falls under one of the tables, the applicant must be functionally impaired to an extent sufficient to reach 20 points under one or more tables by applying the relevant descriptors. In this way, the Tables are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.

    Impairment – s 94(1)(a)

14. Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work, that results from the person’s condition (section 3 of the Impairment Tables).  The presence of a diagnosed condition does not necessarily mean that there will be a functional impact to which an impairment rating may be assigned.

15. The Secretary did not dispute that Mr Nguyen suffers from a physical, intellectual or psychological impairment. 

16. Considering the concession by the Secretary and the available medical evidence, the Tribunal is satisfied that Mr Nguyen had these impairments during the qualification period. Section 94(1)(a) is satisfied for the purpose of Mr Nguyen’s application.

    Impairment rating – s 94(1)(b)

17. In order to meet the second qualification criterion for DSP in s 94(1)(b) of the Act, Mr Nguyen’s impairments during the relevant period must attract a rating of 20 or more points under the Impairment Tables set out in the Impairment Determination.

18. Under paragraph 6(4) of the Impairment Tables, impairments associated with conditions can only be assigned a rating if a condition is permanent, which means the condition has been fully diagnosed, treated and stabilised and likely to persist for more than 2 years.

19. In determining whether the condition has been fully diagnosed, treated and stabilised and likely to persist for more than 2 years, s 6(5) of the Impairment Tables directs the decision maker to consider what treatment or rehabilitation has occurred in relation to the condition, and whether treatment is continuing or planned in the next 2 years.

20. The Impairment Tables are function-based. They describe functional activities, abilities, symptoms and limitations. From this it follows that the ‘descriptors’ in each table are measures of the functional impact of an impairment – they are examples that assist determination of the rating that may be assigned to an impairment and, in the language of  paragraph 11(1)(c), they are ‘the descriptors for that level of impairment’.

21. Under paragraph 10(5) and (6), a ‘common or combined impairment’ resulting from two or more ‘permanent’ conditions cannot be assigned more than one rating under the Impairment Tables.

22. For the purposes of s 94(1)(b), three key questions are posed 

    (a)Does each impairment under s 94(1)(a) result from a ‘permanent’ medical condition and is the impairment likely to persist for more than 2 years from the date of claim or the qualification period?

    (b)If so, does the impairment cause functional loss and, if so, which Impairment Table applies?

    (c)What is the functional impact of the impairment and what rating should be applied?

23. The Tribunal will consider each of Mr Nguyen’s claimed impairments in turn.

    IMPAIRMENTS

    Spinal condition

24. Mr Nguyen has suffered lower back pain since working as a mail sorter at Australia Post, first injuring himself at work in January 1993. According to a letter by Dr Roy Wilkinson, specialist in occupational medicine, dated 12 March 2009, Mr Nguyen “was lifting a lot of heavy bags and his back twisted, and he got low back pain.  The pain is located in the left low back, and goes down the back of the left leg to back of foot. He has had this pain constantly since then.  He has numbness associated with the pain.  He has had physiotherapy and acupuncture”.  He was then reviewed by Dr Chris Baker, another specialist in occupational medicine, on 12 May 2009 and Mr Brendon O’Brien on 26 May 2009.  At that time, it was noted that MRI scans from 2006 had shown little change. They displayed a persistent L5/S1 left paracentral broad based disc protrusion with decreased signal and annular tear.  It was also noted that there were no specific nerve compression.

25. In his report dated 28 July 2010, Dr Baker made comments that Mr Nguyen was “exhibiting more significant abnormal illness behaviour and with a strong negative attitude…”  He considered that from a purely physical perspective he had the capacity to undertake the tasks which were assigned to him.  However, Mr Nguyen was angry and frustrated and negative; which affected his perception of pain and motivation to attend work, which became barriers to his return to work.  He suggested Mr Nguyen try cognitive behavioural therapy with an aim to alter his attitude.

26. From the correspondence received by the Tribunal, Mr Nguyen fluctuated in his medication compliance. When Dr Wilkinson saw Mr Nguyen on 27 February 2009, he was prescribed Oxycontin 5mg orally twice a day, but upon review on 12 March 2009, Mr Nguyen did not try the medicine. Mr Nguyen also declined transforaminal steroid injection for his back pain.  It was noted in the letter from Dr Baker dated 4 August 2010, that Dr Wilkinson tried to rehabilitate and return Mr Nguyen to work and to increase his duties but found him to be one of his most difficult patients.

27. An upright multi-positional MRI performed on 4 September 2012 reinforced a broad based L5/S1 disc bulge again noted with annular tear, which was more marked on the left postero-laterally.  There was minor contact to the S1 nerves, particularly the left S1 nerve.  The report also commented that the disc bulge demonstrated mild exaggeration on standing.

28. Separate reports were submitted by two consultant orthopaedic surgeons immediately after this MRI scan.  Mr Stanley Schofield opined that “surgery was the only answer to decompress and stabilise the lumbosacral disc”, as the posterior wall of the disc had never healed due to gradual disc height reduction allowing desiccation and further aggravation during the course of his employment.  On the other hand, Dr David Macintosh remarked that apart from the abnormal pain behaviour, Mr Nguyen’s disc lesion was not causing any nerve root compression and was consistent with low back pain. He considered Mr Nguyen suitable to return to work full-time within the restrictions set out in the rehabilitation programme.

29. Dr David Weissman, consultant psychiatrist, assessed Mr Nguyen on 24 May 2012 and concluded that the Applicant suffered from a chronic Major Depressive disorder of moderate severe intensity or severity, relevant to his employment.  He opined that Mr Nguyen was “pain-focused and pain pre-occupied, with elevated health concerns, and it may be that this was disproportionate to the actual degree of organic pathology”.  Dr Weissman raised the probability that Mr Nguyen has also sustained and developed Chronic Pain Disorder, associated with psychological factors and a general medical condition.  Dr Weissman indicated that Mr Nguyen’s psychiatric symptoms, conditions and impairment were not stabilised at the time of the report and required increased treatment and rehabilitation and re-examination. He recommended that Mr Nguyen required, as a matter of priority at that time, to commence psychiatric treatment with the introduction of anti-depressant medication, clinical psychological counselling and participation in a formal multi-disciplinary pain management program.

30. However, no further psychiatric and psychological assessments or updates were received prior to the DSP application lodged 13 March 2015.

31. The JCA report dated 21 May 2015, completed by a registered occupational therapist with assistance from a registered psychologist, noted that the Applicant:

    ·had three cortisone injections (the last in 2009) with short term improvement and also participated in physiotherapy and hydrotherapy with WorkCover till 2012

    ·Mr Nguyen reported that he:

    ohad standing tolerance with stick for 15-20 minutes, mobilise with pain and numbness down both legs;

    ocould walk for 10 minutes;

    ohad difficulty with steps/stairs;

    ohad sitting tolerance of 10 minutes, despite being observed to sit for 20 minutes during the assessment;

    owas unable to bend to pick up a light object from table height, however was observed to bend to pick up his crutch and a piece of paper from the floor whilst in seated position;

    oreceived assistance for shopping and domestic tasks;

    owas able to complete his personal care independently in a seated position.

32. Mr Nguyen was referred by Dr Luu to Dr Alex Stockman, consultant rheumatologist, for an opinion outside of, but closest to and after the qualification period.  In his letter dated 3 September 2015, he noted that the patient was not taking any medication on a regular basis because of a peptic ulcer.  The letter noted that the patient had tried anti-inflammatories and nerve injections in the past.  In observation, Mr Nguyen walked with the aid of a crutch.  On examination, he was found to be tender over the lower lumbar spine with marked limitation of movement of the lumbar spine in all directions.  Straight leg raising test was reduced bilaterally to 60 degrees. There were no obvious neurological abnormalities in the lower limbs and all the reflexes were absent except ankle jerks.  Dr Stockman concluded that Mr Nguyen is unlikely to make any further progress and seems to have learnt to cope with the pain without much analgesia.  He did not consider him a prospect for rehabilitation.

33. The Tribunal noted the latest correspondence from Dr Robert Bradford, general practitioner, dated 26 August 2016 indicating Mr Nguyen is managed by a naturopath and took analgesia – Tramal, Panadeine Forte and Endep.

34. During the tribunal hearing, Mr Nguyen spoke English clearly.  He was observed to walk into and out of the hearing room with the need of crutches.  He was able to sit himself and rise from the chair, without any discomfort.  He sat through the entire hearing, in excess of two hours, without any change in sitting positions or complaints.

35. Overall, the Tribunal noted Mr Nguyen received multiple medical referrals and assessments in the context of his WorkCover claim during and prior to 2012.  However, the diagnoses were variable, with different treatment options proposed.  However, most agreed that the extent of Mr Nguyen’s symptoms and signs on physical examination cannot be explained by the pathology demonstrated on the MRI scans.  Yet, there is inadequate evidence in regard to reasonable treatment undertaken for the psychological and psychiatric components attributing to the chronic lower back pain.   Of significance, Dr Weissman found Mr Nguyen’s psychiatric symptoms, conditions and impairment were not stabilised in the last available medical assessment prior to the DSP application.

36. The Tribunal is not satisfied that the condition was fully diagnosed, treated and stabilised given the lack of continuity of care between these two periods, combined with challenges associated with Mr Nguyen’s compliance with medications.  The Tribunal therefore deems it unnecessary to provide an impairment rating. 

    Major depressive disorder

37. Dr Luu reported that Mr Nguyen developed depression in the context of dealing with chronic lower back injury in his medical report dated 12 March 2015. He contends that the condition led to poor concentration, motivation and reduced cognitive function.

38. As indicated above, Dr David Weissman, consultant psychiatrist, assessed Mr Nguyen on 24 May 2012.  He recounted previous psychiatric reports which included:

    ·Dr Albert Kaplan dated 5 July 2006 where a diagnosis of an Adjustment Disorder with Depressed Mood (reactive depression), with reference to the possibility of a psychotic illness, though certainly not definitive.

    ·Dr Victor Botvinik dated 7 March 2006, where he noted his psychiatric impairment evaluation of the worker and his opinion was that he was not suffering from any identifiable mental disorder of any type.

39. In his mental state examination, Dr Weissman found Mr Nguyen:

    ·attended the interview alone, with pleasant appearance but depressed mood;

    ·walked slowly with a limp and antalgic gait;

    ·quality of affect was moderately severe depression, subdued, despondent, restricted in range, flat, mildly tense and agitated;

    ·a moderately severe, mixed depressive syndrome with prominent frustration, irritability, agitation, hopelessness, anhedonia and some passive suicidal ideation (but no active suicidal plan or intent), with grievance directed towards Australia Post;

    ·had no abnormalities of perception such as illusions or hallucinations;

    ·higher cognitive function was not formally assessed but noted subjective complaints regarding concentration and short term memory disturbance and forgetfulness; and

    ·insight and judgement were characterised by lowered self-esteem and confidence.

40. The Applicant also described the following during the interview:

    ·easily upset and angry with his company, low self-esteem and confidence;

    ·depressed and cried a lot with interests, energy and motivation diminished;

    ·sleep disturbance with initial and middle insomnia;

    ·poor appetite and weight loss; and

    ·not seeing psychiatrist or psychologist, not taking anti-depressant medication.

41. Dr Weissman concluded that Mr Nguyen suffered from a chronic Major Depressive disorder of moderate severe intensity or severity, relevant to his employment.  He raised the probability that Mr Nguyen has also sustained and developed Chronic Pain Disorder, associated with psychological factors and a general medical condition.

42. Dr Weissman indicated that Mr Nguyen’s psychiatric symptoms, conditions and impairment were not stabilised at the time of the report and required increased treatment and rehabilitation and re-examination. He recommended Mr Nguyen be required as a matter of priority to commence psychiatric treatment with the introduction of anti-depressant medication, clinical psychological counselling and participation in a formal multi-disciplinary pain management program.

43. In a report dated 13 November 2012 by Dr Hjorth, neurologist, he noted that Mr Nguyen was not taking any medication.

44. No further psychiatric and psychological assessments or updates were received until 21 May 2015.  The Job Capacity Assessment report was completed by a registered occupational therapist with assistance from a registered psychologist. That report noted that Mr Nguyen:

    ·saw Ms Nguyen, counselling psychologist (not a clinical psychologist according to the Australian Health Practitioner Regulation Authority), monthly for the past two years but ceased counselling at about April 2015;

    ·reportedly took anti-depressant medication from 2009-2014 but ceased medication as he was no longer employed and did not see the benefit.

1. In the medical reports submitted by Dr Luu, the medication lists dated 12 March 2015 and 16 June 2015 did not contain any anti-depressant medications.  However, the Tribunal noted the correspondence from Dr Robert Bradford dated 26 August 2016, indicating Mr Nguyen was taking Endep, confirmed by the Applicant during the hearing for the purposes of depression and insomnia.

2. Based on the medical evidence, the Tribunal is not satisfied that Mr Nguyen’s major depressive disorder has been fully diagnosed, treated and stabilised during the qualification period. The Tribunal therefore deems it unnecessary to provide an impairment rating. 

   Diabetes

3. In his letter dated 13 June 2015, Dr Luu indicated Mr Nguyen suffers from diabetes, which caused minimal or limited impact on inability to function.

4. The diagnosis was first noted in a report by Dr Macintosh, orthopaedic surgeon, dated 24 October 2012.  It stated that Mr Nguyen had developed diabetes, which was controlled with diet and medication.

5. Although not explicitly stated, the patient appeared to be managed in the General Practice setting. It should be noted that there appears to be no official record on how well the patient is managing the condition with no evidence of blood sugar level or other relevant pathology recordings. The patient was not prescribed any medications at the time of the DSP application.

6. The Tribunal is satisfied that the condition was fully diagnosed, treated, and stabilised but caused no or limited impact to function and as a result the Tribunal assigned zero impairment points under Table 1.

   Left shoulder discomfort

7. This condition was not mentioned in the medical report in March 2015.  A left shoulder ultrasound referred by Dr Luu and performed on 22 December 2015 with clinical notes indicating left shoulder painful arc syndrome, with query bursitis, found subscapularis tendinosis, subdeltoid bursitis with impingement and early AC joint degeneration.

8. There were no other reports received from specialists looking into this condition.

9. As the left shoulder discomfort was not diagnosed during the qualification period, and with no evidence of treatment, the Tribunal is not satisfied that the condition was fully diagnosed, treated, and stabilised. As a result no impairment rating is required.  

   CONCLUSION

10. In summary, Mr Nguyen attracted a total impairment rating of zero points for his impaired spinal function, depressive disorder, diabetes and left shoulder discomfort.

11. As Mr Nguyen does not have an impairment rating of 20 points or more under the Impairment Tables, he does not satisfy paragraph 94(1)(b) of the Act.

12. As a result, there is no requirement to consider s94(1)(c) – whether or not he has a ‘continuing inability to work’.

13. The Tribunal affirms the decision under review.

I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Dr Bennie Ng, Member.

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

Associate

Dated: 12 January 2018

Date(s) of hearing:	28 February 2017
Date final submissions received:	21 December 2017
Applicant:	In person
Solicitors for the Respondent:	Sparke Helmore