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

[2016] AATA 556

Nguyen and Secretary, Department of Social Services (Social services second review) [2016] AATA 556 (1 August 2016)

Division	GENERAL DIVISION
File Number(s)	2015/6574
Re	Phuong Nguyen
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A Poljak
Date	1 August 2016
Place	Sydney

The Tribunal affirms the decision under review.

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

Senior Member A Poljak

CATCHWORDS

SOCIAL SECURITY – disability support pension – impairment rating of multiple conditions causing common impairment for accepted conditions; lupus and shoulder condition – multiple impairments including skin condition, depression, neck disorder – whether there is evidence multiple impairments have been fully treated, diagnosed and stabilised  – applicant does not have an impairment rating of at least 20 points – decision affirmed

LEGISLATION

Social Security Act 1991, ss 94 (1)(a), 94(2)

Social Security (Active Participation for Disability Support Pension) Determination 2014

Social Security (Administration) Act 1999, s 42

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

REASONS FOR DECISION

Senior Member A Poljak

1 August 2016

INTRODUCTION

1. Ms Nguyen seeks review of a decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (“AAT1”) made on 12 November 2015. The AAT1 affirmed a decision made by Centrelink on 19 January 2015, affirmed by an Authorised Review Officer on 12 August 2015, rejecting Ms Nguyen’s claim for the disability support pension (“DSP”) which was made on 16 December 2014.

2. Ms Nguyen’s claim for DSP was rejected on the basis that she did not satisfy the eligibility criteria set out on section 94 of the Social Security Act 1991 (Cth) (“the Act”).

3. Section 94 of the Act provides that, to qualify for payment, a person must have:

   (i)a physical, intellectual or psychiatric impairment, or impairments, which rate 20 or more points according to the Social Security (Tables for the Assessment of work-related Impairment and Disability Support Pension) Determination 2011 (“the Impairment Tables”); and

   (ii)a continuing inability to work as defined in the Act.

4. Ms Nguyen had to satisfy these criteria on 16 December 2014, when she applied for the DSP, or within the following 13 weeks, that is, by 17 March 2015 pursuant to s 42 and Schedule  2 of the Social Security (Administration) Act 1999 (Cth) (“the claim period”).

5. The Secretary accepts that Ms Nguyen suffered from a number of conditions including lupus erythematosus (“lupus” or “skin lupus”), depression and a neck disorder during the claim period. Ms Nguyen therefore satisfied s 94(1)(a) of the Act.

6. Ms Nguyen was self-represented at hearing before this Tribunal and had the assistance of a Vietnamese interpreter.

7. In addition to the T-documents, lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), Ms Nguyen tendered at hearing the following additional documents:

   (a)Bundle of documents including medical reports and photographs of skin conditions, filed 24 February 2016;

   (b)Email from Ms Nguyen to this Tribunal, with attachments, dated 22 April 2016, filed 27 April 2016; and

   (c)A letter from Dr A Pignataro of Oasis Counselling and Psychotherapy Centre dated 22 June 2016.

   IMPAIRMENT TABLES

8. The Impairment Tables include rules for assigning ratings to determine the level of functional impact of impairment (and not to assess conditions). Impairment is defined in section 3 to mean “a loss of functional capacity affecting a person’s ability to work that results from a person’s condition”. 

9. Subsections 6(3) and 6(4) provide that impairment can only be given a rating on the Impairment Tables if the condition causing it is a fully documented, diagnosed condition which has been investigated, treated and stabilised. The condition must be considered permanent, meaning that, in light of available evidence, it will more likely than not persist for more than two years. 

10. For the purposes of the Impairment Tables, subsection 6(6) defines fully stabilised to mean that it is unlikely that there will be any significant functional improvement in a condition, with or without reasonable treatment, within the next two years.

11. In assessing whether a condition is fully diagnosed, treated and stabilised, subsection 6(5) instructs that a decision- maker must consider what treatment or rehabilitation has occurred, whether treatment is still continuing or is planned in the near future, and whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years.

12. Section 11 of the Impairment Tables instructs that an impairment rating can only be assigned in accordance with the ratings in each table and a rating cannot be assigned between consecutive impairment ratings. Significantly, section 11(1)(c) provides:

    (c) if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied (emphasis added)

13. For multiple conditions causing a common problem, subsection 10(5) and 10(6) of the Impairment Tables provides:

    (5) Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.

    (6) …it is appropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.

    LUPUS AND SHOULDER IMPAIRMENT

14. The Secretary accepts, and I am satisfied, that the condition of lupus was fully diagnosed, treated and stabilised during the claim period. This finding is supported by the reports of Dr Ngo dated 3 December 2012 and 5 January 2015.

15. The Secretary contends that impairment in Ms Nguyen’s right shoulder is an impairment arising from lupus and should be assessed under the Impairment Tables as one common or combined impairment under a single Table pursuant to subsection 10(5) of the Impairment Tables.

16. The job capacity assessment, undertaken on 10 June 2015 (“job capacity assessment”), shows that Ms Nguyen reported pain in all her joints, reduced capacity to lift and difficulty standing. She reported that she could manage most daily activities requiring the use of her hands and arms but had some difficulty with lifting heavier objects and reaching and lifting above shoulder height.

17. The medical report of Dr Ngo, dated 5 January 2015, records Ms Nguyen’s diagnosis of the condition with the most impact as “lupus/frozen right shoulder”. He states in his report that lupus is characterised by joint pain and impacts on Ms Nguyen’s ability to lift, especially the right arm and results in a reduced tolerance for standing.

18. Before this Tribunal, Ms Nguyen reported pain in all her joints, numbness in her fingers, skin rashes on her body, face and hands and problems with her vision due to medication. She advised that her children help her with house cleaning and grocery shopping.

19. In regards to lifting capacity and dexterity, Ms Nguyen reported that she was able to hold a pen and write (with some difficulty on occasion) and was able to use a computer. She could hold a glass in one hand on most occasions without dropping it. Ms Nguyen advised that she was unable to lift shopping bags or large pots of water but could lift a 1L bottle of water or milk.

20. Table 2 of the Impairment Tables assesses the functional impact of impairment on activities requiring the use of hands or arms. Such functional impact assessed in Table 2 addresses common impairment resulting from both lupus and impairment to Ms Nguyen’s shoulders. To assess the conditions separately would result in the same impairments being assessed twice.

21. It is important to reiterate that the Impairment Tables are designed to assess the level of functional impact of impairment and not to assess conditions. If two or more conditions cause a common or combined impairment then they are to be given a single rating under a single Table. So even if the impairment to Ms Nguyen’s right shoulder was the result of a separate condition, and not lupus, it should still be considered as one combined impairment.

22. I am satisfied that the impairment caused by lupus cannot be differentiated from the impairment to Ms Nguyen’s right shoulder in regards to the functional impact of impairment on activities requiring the use of hands or arms. Accordingly, Ms Nguyen’s lupus and shoulder impairment should be rated as a common or combined impairment under Table 2 pursuant to subsection 10(5) of the Impairment Tables.

23. On the evidence before me, I am satisfied that this combined or common impairment warrants a rating of 5 points for mild functional impact under Table 2.

24. In regards to other functional impairments of the lower limbs (Table 3) and functions requiring physical exertion and stamina (Table 1), there is no evidence before me to indicate that there is any rateable functional impairment in these categories. It is noted that Ms Nguyen reported some difficulty with sleeping however she advised at hearing that this was due to her occasionally feeling worried and was not due to a physical condition.

25. Ms Nguyen reported during the job capacity assessment that she had difficulty with squatting and standing for long periods but there is no corroborating medical evidence supporting any impact on the lower limbs. Self-reporting alone is insufficient. In any event, her degree of impairment does not satisfy a severity rating of 5 impairment points.

26. I am satisfied that an impairment rating of zero is appropriate under both Table 1 and Table 3 of the Impairment Tables.

    SKIN CONDITION

27. In regards to her skin condition, the Job Capacity Assessment shows that Ms Nguyen reported ongoing symptoms of skin itchiness over her whole body on a daily basis. At hearing, Ms Nguyen reported that the rashes on her face would sometimes bleed and were uncomfortable. She was able to bathe, although hot water did irritate her skin.

28. While it is plain, from Ms Nguyen’s self-reporting and the photographs she has provided, that her skin condition is often itchy and uncomfortable, there is no evidence before me to support a finding that her skin condition impacts on her performance of normal daily activities. As instructed by the Introduction to Table 14 of the Impairment Tables, self-reporting alone is not sufficient. There must be corroborating evidence from a treating doctor or a medical specialist, such as a dermatologist, confirming the diagnosis and dermatological condition. This evidence has not been provided here.

29. It follows that the impairment does not warrant a rating for functional impairment related to a disorder of the skin under table 14 of the Impairment Tables.

    DEPRESSION

30. The Secretary contends that Ms Nguyen’s mental health condition cannot be considered as fully diagnosed, treated and stabilised during the claim period because a diagnosis of depression had not been confirmed by a clinical psychologist or psychiatrist pursuant to the Introduction to table 5 of the Impairment Tables.

31. The Introduction to table 5 of the Impairment Tables provides (inter alia):

    The diagnosis of a 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 by a psychiatrist). (emphasis added)

32. At hearing, Ms Nguyen did provide a letter from a clinical psychologist, Dr A Pignataro, dated 22 June 2016, the letter does not however offer a diagnosis of depression and is outside of the claim period. Most significantly, at hearing Ms Nguyen advised that she had depression a long time ago but was not suffering symptoms during the claim period.

33. Taking these matters into account, I am not satisfied that Ms Nguyen’s depression was fully diagnosed, treated and stabilised during the claim period.  It follows that it cannot be given an impairment rating for the claim period.

    NECK DISORDER

34. The Secretary contends, and I am satisfied, that Ms Nguyen’s neck pain cannot be considered as a fully diagnosed, treated and stabilised condition during the claim period. This is because of the report of Dr Ngo, dated 5 January 2015, where he lists the conditions causing minimal or limited impact as “cervical neck pain? muscular”. This indicates that there is a question as to whether Ms Nguyen suffers from neck pain or a muscular disorder.

35. The Introduction to Table 4 of the Impairment Tables provides that the diagnosis of a condition involving spinal function, that is, bending or turning the back, trunk or neck, must be made by an appropriately qualified medical practitioner.

36. There is no corroborating evidence before me from a medical specialist confirming a diagnosis of conditions commonly associated with spinal function nor is there a report from a physiotherapist or rehabilitation practitioner confirming loss of range of movement in the spine. Self-reporting alone of neck pain is insufficient.

37. It follows, that the impairment does not warrant a rating for functional impairment involving spinal function under Table 4 of the Impairment Tables.

    OTHER CONDITIONS

38. Ms Nguyen claims to suffer from impairment resulting from additional conditions including lower back pain and allergies. In a report of Dr Pham, dated 18 February 2016, numerous conditions are listed under Active Past History such as osteoarthritis, left shoulder impingement and vitamin D deficiency.

39. The Secretary contends, in written submissions, that there is no medical evidence to support a finding that any of these conditions were fully diagnosed, treated and stabilised conditions during the claim period. I agree. Therefore an impairment rating cannot be assigned.

    INABILITY TO WORK

40. To have a continuing inability to work, s 94(2) of the Act provides that a person must have actively participated in a program of support. Ordinarily, a person must have participated in a program of support for at least 18 months in the 36 months immediately before claiming DSP pursuant to the Social Security (Active Participation for Disability Support Pension) Determination 2014. A person, who has a severe impairment, meaning one which rates 20 points or more under a single Impairment Table, is not required to have completed a program of support in order to have a continuing inability to work. 

41. As Ms Nguyen’s impairments did not rate 20 or more points on the Impairment Tables, her claim for DSP cannot succeed.  It is therefore not necessary to consider whether she also had a continuing inability to work during the claim period.  However, I note that the information before me indicates that she had not completed a program of support before applying for the DSP.

    CONCLUSION

42. For all of the reasons given above, I affirm the decision under review.  Ms Nguyen may apply for DSP again at any time. 

I certify that the preceding 42 (forty -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Dated 1 August 2016

Date(s) of hearing	24 June 2016
Applicant	In person
Solicitors for the Respondent	Ms J Eslick, Department of Human Services