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

[2017] AATA 1154

Tam and Secretary, Department of Social Services (Social services second review) [2017] AATA 1154 (26 July 2017)

Division:GENERAL DIVISION

File Number(s):      2016/4699

Re:Poh Fuu Tam  

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:Member K. Parker

Date:26 July 2017

Place:Melbourne

The decision under review is affirmed.

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

Member K. Parker

SOCIAL SECURITY – disability support pension – whether the applicant has physical, intellectual or psychiatric impairments – whether the applicant’s condition is fully diagnosed, treated and stabilised – reasonable treatment – whether medical or other compelling reason not to undertake reasonable treatment – whether the impairments attract 20 points or more – decision affirmed

Legislation

Social Security (Administration) Act 1999 (Cth) Sch 2 – s 13, s 42

Social Security Act 1991 (Cth) – s 94

Cases

Department of Families, Housing, Community Services and Indigenous Affairsv Jansen [2008] FCAFC 48

Gallacher v Secretary, Department of Social Services [2015] FCA 1123

Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404

Secretary, Department of Employment & Workplace Relations v Harris [2007] FCAFC 130

Shi v Migration Agents Registration Authority (2008) 235 CLR 286.

Secondary Materials

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

REASONS FOR DECISION

Member K. Parker

26 July 2017

INTRODUCTION

1. Poh Fuu Tam is a 61 year old man who previously worked as a traditional Chinese herbalist from 1986 to 2012.  He suffers from two heart conditions, a spinal condition, a mental health condition, hypertension, and gastroesophageal reflux disease (GORD[1], commonly known as acid reflux).  Mr Tam no longer works and made a claim for the DSP under the Social Security Act 1991 (Cth) (Act) on 13 January 2016.

   [1] Also referred to as GERD.

2. Mr Tam seeks review of a decision made by the Social Security and Child Support Division of the Administrative Appeals Tribunal (AAT1) on 8 August 2016. The AAT1 affirmed a decision made by an Authorised Review Officer of the Department of Social Services dated 12 May 2016 to reject Mr Tam’s claim for DSP. Mr Tam’s claim was rejected on the basis that he did not satisfy the eligibility criteria set out in s 94 of the Act. The main issue related to whether the heart, spinal, and mental health conditions were fully treated and fully stabilised, and whether the hypertension or GORD caused any impact on function.

3. For the reasons set out below, the Tribunal affirms the decision under review. In other words, the Tribunal is satisfied that at the relevant time, Mr Tam did not meet the eligibility requirements under the Act and consequently, the decision to reject his claim for DSP was the preferable decision.

4. Mr Tam is entitled to make a further claim for DSP should he elect to do so.

   LEGISLATIVE FRAMEWORK

5. Section 94 of the Act sets out the qualification requirements for the DSP as follows (as relevant to this application):

   (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 Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and…

   Note 2:     For Impairment Tables see subsection 23(1) and sections 26 and 27.

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

   (aa) in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support--the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and

   (a)  in all cases--the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

   (b)  in all cases--either:

   (i)  the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

   (ii)if the impairment does not prevent the person from undertaking a training activity--such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

   Note:    For work see subsection (5).

   (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 a training activity; or

   (b)  the availability to the person of work in the person's locally accessible labour market.

   (3A)…

   (3B)  A person's impairment is a severe impairment if the person's impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

   (3C)  A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.

   (3D)  The Secretary must comply with any guidelines in force under subsection (3E) in deciding whether the Secretary is satisfied as mentioned in paragraph (2)(aa).

   (3E)  The Minister may, by legislative instrument, make guidelines for the purposes of subsection (3D).

   (4)     A person is treated as doing work independently of a program of support if  the Secretary is satisfied that to do the work the person:

   (a)  is unlikely to need a program of support; or

   (b)  is likely to need a program of support provided occasionally; or

   (c)  is likely to need a program of support that is not ongoing.

   (5)  In this section:

   "program of support " means a program that:

   (a)  is designed to assist persons to prepare for, find or maintain work; and

   (b)  either:

   (i)    is funded (wholly or partly) by the Commonwealth; or

   (ii)  is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.

6. The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (2011 Determination).

7. Paragraph 6 of the 2011 Determination is relevant in relation to the assessment of impairment ratings:

   Impairment ratings

   (3) An impairment rating can only be assigned to an impairment if:

   (a)   the person’s condition causing that impairment is permanent; and

   Note: For permanent see subsection 6(4).

   (b)   the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.

   Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.

   Permanency of conditions

   (4) For the purposes of paragraph 6(3)(a) a condition is permanent if:

   (a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and

   (b) the condition has been fully treated; and

   Note: For fully diagnosed and fully treated see subsection 6(5).

   (c) the condition has been fully stabilised; and

   Note: For fully stabilised see subsection 6(6).

   (d)   the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

   Fully diagnosed and fully treated

   6(5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:

   (a) whether there is corroborating evidence of the condition; and

   (b) what treatment or rehabilitation has occurred in relation to the condition; and

   (c) whether treatment is continuing or is planned in the next 2 years.

   Fully stabilised

   (6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:

   (a)   either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

   (b)   the person has not undertaken reasonable treatment for the condition and:

   (i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

   (ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.

   Note: For reasonable treatment see subsection 6(7)..

   Reasonable treatment

   (7) For the purposes of subsection 6(6), reasonable treatment is treatment that:

   (a) is available at a location reasonably accessible to the person; and

   (b) is at a reasonable cost; and

   (c) can reliably be expected to result in a substantial improvement in functional capacity; and

   (d) is regularly undertaken or performed; and

   (e) has a high success rate; and

   (f) carries a low risk to the person.

8. In accordance with s 42 and cl 4 of Schedule 2 of the Social Security (Administration) Act 1999 (Administration Act), a person must qualify for the DSP on the date of their claim or within the 13 weeks to follow. Section 13 of the Administration Act also provides for the date of claim to be the date on which the person first contacted Centrelink about making a claim, provided the claim form is lodged within 14 days of that contact.

   ISSUES

9. With respect to Mr Tam’s claimed conditions (heart conditions, spinal condition, mental health condition, hypertension and GORD), the issues to be determined by the Tribunal in this application are:

   (a)whether Mr Tam had any physical, intellectual or psychiatric impairments;

   (b)if so, whether those impairments, together or separately, attracted at least 20 points under the Impairment Tables; and

   (c)if so, whether Mr Tam had a severe impairment (i.e. an impairment which attracted an impairment rating under any one table of 20 or more points) and if not, whether he had a continuing inability to work.

   THE FACTS

10. At the hearing, Mr Tam, who was self-represented, said he suffered a myocardial infarction in 2012.  He said he was hospitalised at that time and surgery was performed to “insert a tube”.  Mr Tam said that ever since then he had been “very weak” and that he “always feels sleepy”.

11. The Liverpool Hospital issued a ‘Discharge Referral’ in relation to Mr Tam’s hospitalisation from 29 September 2012 to 3 October 2012 (Discharge Report).[2]  It was prepared by a cardiology intern, Malay Rana.  Relevantly, the Discharge Report included a principal diagnosis of NSTEMI.  NSTEMI is a non-ST segment elevation myocardial infarction, which is a type of heart attack.  The ST-segment is a portion of electrocardiogram (ECG).  Its elevation indicates full thickness injury of heart muscle.  An absence of ST-segment elevation in NSTEMI is understood to involve partial thickness damage of heart muscle.  Therefore, NSTEMI is a less severe type of heart attack compared to STEMI (ST-segment elevation myocardial infarction).

    [2] Refer T-Documents lodged by the Respondent under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) at T8.

12. The Discharge Report also confirmed that a percutaneous transluminal coronary angioplasty (PTCA) took place.  This is a minimally invasive procedure to open up blocked coronary arteries, allowing blood to circulate unobstructed to the heart muscle.There was a reference to the insertion of one bare metal stent.

13. In the Discharge Report, it was recommended that Mr Tam continue his new medications which included “Clopidogrel 75mg daily for 12 months (as per Cardiologist); Aspirin 100mg daily [on a lifelong basis]; Metoprolol 12.5mg BD; Ramipril 2.5mg nocte; Atorvastatin 80mg nocte; and Isosorbide Mononitrate [Imdur] 60mg daily”.  It was also recommended that Mr Tam follow up with “Dr Richards” (Cardiologist) in four to six weeks and his General Practitioner (GP) within three days.

14. Mr Tam said initially he took medication (Imdur) for his heart condition[3] but it caused him to have a runny nose and serious headaches.  He said he would take two tablets of Panadol for the headaches, but he said he “felt like [his] head was going to blast like [he] was taking drugs”, so he stopped taking Imdur.  He said he explained the side effects to his treating GP but his GP told Mr Tam “there was no better medication than this”.

    [3] This is confirmed by a medical report issued by Dr Soukao Ly dated 23 September 2014 where he states that he prescribed Imdur to Mr Tam as the current treatment – refer T-Documents PT5/37.

15. Mr Tam said he also suffered from hypertension or high blood pressure. He said he started taking medication (Micardis)[4] for this condition two years ago and that he continues to take this.

    [4]  Micardis is the brand name for Telmisartan.  This is a medication used to keep blood vessels from narrowing, lower blood pressure and improve blood flow.

16. Mr Tam gave evidence that he is not seeing a cardiologist any longer and only sees his GP due to his present “financial condition”.  He said the GP has advised that his heart condition was “not as serious” and that it was “manageable”.  Mr Tam said his blood pressure was 180 but if at any time it increased to 200 or more, his GP said he would write a referral for Mr Tam to see a cardiologist.  Mr Tam said that if anything happened to him, he would go to the hospital for treatment.

17. Mr Tam gave evidence that he was a ‘doctor’.  He said he was a licensed traditional Chinese herbalist and was registered with the Australian Chinese Medicine Practitioners Registration Board but that he is now unfit for this work because he “starts to feel pain in [his] chest” and “feels very tired”.  Mr Tam said he treated himself with herbal medications.  Mr Tam said he visited the temples in Malaysia and when he did this the gods would tell him which herbs he should use to treat his conditions. He said he mixed the herbs up into a concoction and took them.  He explained that the herbs promoted the circulation of the blood around the body and that this would work to treat his symptoms and conditions.  He said he always felt a lot better after his visits to the temple.  Mr Tam said he has treated his “spinal pain” and “doesn’t need to take pain killers anymore”.

18. Records created by Centrelink show that in 2015 and early 2016, Mr Tam made four trips to Malaysia during the following periods:

    (a)29 January 2015 to 8 February 2015;

    (b)15 April 2015 to 27 April 2015;

    (c)19 August 2015 to 29 August 2015; and

    (d)1 April 2016 to 9 April 2016.[5]

    [5] Refer T-Documents PT22/167.

19. On 23 September 2014, Dr Ly referred Mr Tam to Dr Phong Nguyen (cardiologist) and Dr Matle Fung (cardiologist) for “opinion and management”.[6]  The referral letter stated that Mr Tam had no recent follow up and that he had stopped all of his medications.  The referral letter stated that Mr Tam was “well”, but was “complaining of [being] easily tired”.  It also stated that Mr Tam was advised “to have follow up and a sleep study later”.

    [6] Refer T-Documents T6/45.

20. On 24 October 2014, a multiple detector computed tomography (MDCT) scan was performed on Mr Tam’s lumbosacral spine by Dr Minh Tran following a referral from Dr Thai Luong.  The scan revealed central spinal canal stenosis (the narrowing of the passageway in the spine that holds the spinal cord and nerve roots) of moderate severity at L3/4 and L4/5, with involvement of the L4 and L5 nerve roots.

21. On 3 December 2015, Ms Janette Morrison, psychologist, and Dr Kylie Henderson, clinical psychologist, issued a joint report (Back2Work Medical Plan) diagnosing Mr Tam with a “Mood Disorder due to Medical Condition” of extreme severity.[7]  In this report, there was a reference to Mr Tam’s marriage breakdown in about mid-2013.  Mr Tam reported to Ms Morrison and Dr Henderson that he continued to experience physical symptoms of chest pain, nausea, vomiting and low energy levels on a daily basis.  Mr Tam reported that he found it difficult to eat and he had lost over 10kg in the previous 12 months.  It was noted in the report that Mr Tam had not engaged in any counselling services. It was “highly recommended” that Mr Tam should “engage in counselling to manage the depressive symptoms”.  It was stated that with intervention, Mr Tam’s condition was likely to stabilise and improve, with symptoms likely to persist for 12 to 14 months.  Without intervention, the report stated that the condition was likely to deteriorate.  Ms Morrison and Dr Henderson stated that Mr Tam’s capacity for employment remained limited for “12 months or more”.

    [7] Refer T-Documents T12.

22. On 13 January 2016, Mr Tam contacted Centrelink about making a DSP claim.[8]  Following this call, he lodged a written claim in the prescribed form on 20 January 2016.[9]  Mr Tam’s claim for DSP form included a medical report completed by Dr Soukao Ly dated 18 February 2016 confirming a number of diagnoses as set out in paragraphs [23] to [25] below.

    [8] Mr Tam had applied for DSP previously on two other earlier occasions on 9 September 2014 and 9 February 2016.  Those claims were both rejected – refer T-Document T22.

    [9] Refer T-Documents T14.

23. The diagnosis for the first condition (with most impact) was confirmed by Dr Ly as NSTEMI.  The current treatment was described as three different medications including Aspirin, Metoprolol, and Lipitor.[10]  Dr Ly stated that Mr Tam was referred to another specialist previously; however, Mr Tam was reported as being “non-compliant”.  The future/planned treatment was described as “specialist & continued medication”.  Mr Tam was described by Dr Ly as “rarely compliant” with recommended treatment.  His current symptoms were reported as “lethargy, fatigue, poor exercise tolerance, obstructive sleep apnoea”.  The impact of Mr Tam’s condition on his ability to function is described by Dr Ly as “illness prevents patient from job seeking and working” and that this was expected to persist for more than 24 months.  Dr Ly stated the effect of this condition (in terms of whether it would improve, resolve or deteriorate) on Mr Tam’s ability to function within the next two years was assessed as “uncertain”.

    [10] The references to the third medication was illegible.

24. The diagnosis for the second condition was confirmed by Dr Ly as “lower back and leg pain”.  The current treatment was listed as “analgesic – Panadeine Forte” and the planned/future treatment was described as “self-directed exercise” and “analgesia”.  Again, Dr Ly stated that Mr Tam was “rarely compliant” with recommended treatment.  Mr Tam’s current symptoms were described in the report as “lower back pain” and “left leg pain and sciatica”.  The condition was stated by Dr Ly to impact on Mr Tam’s ability to function in the following way: “Pain limits ability to work” and this was likely to persist for more than 24 months. Dr Ly also stated that within the following two years the effect of the condition on Mr Tam’s ability to function was expected to “fluctuate”.

25. In this report, Dr Ly also stated that Mr Tam had other medical conditions (hypertension and GORD) which were generally well managed and that caused minimal or limited impact on ability to function.[11]

    [11] Refer T-Documents PT15/111.

1. On 9 March 2016, Mr Tam participated in a face to face assessment by a registered occupational therapist and a Job Capacity Assessment Report was issued on 10 March 2016.[12]  The occupational therapist recorded that in relation to Dr Tam’s:

   (a)heart condition, Mr Tam reported that he continued to experience physical symptoms of recurrent chest pain with varied severity on exertion, fatigue/low energy, and difficulty with strenuous exercises.  Mr Tam also reported that he was able to change his bed sheets, complete all of his domestic duties, do his grocery shopping, drive, and was independent with all self-care activities;

   (b)spinal condition, Mr Tam reported that he had difficulty with heavy lifting, back pain which impacted on postural tolerance (sitting/walking/standing/bending), and endurance;

   (c)hypertension, Mr Tam reported episodic fluctuation/fluctuation of blood pressure, recurrent headaches, dizziness, and a recent high blood [pressure] reading;

   (d)GORD, Mr Tam reported intermittent reflux; and

   (e)mental health condition (depression), Mr Tam confirmed that he suffered symptoms including feelings of worthlessness, low motivation, lowered mood, decreased desire to engage in pleasurable activities, no desire to engage with others, and difficulty concentrating on daily tasks, but no suicidal ideation.

   [12] Refer T-Documents T16.

2. On 6 May 2016, Dr Anthony Lo, General Practitioner, sent a letter to Centrelink to confirm a further diagnosis of “ischaemic heart disease” (as from 10 March 2016).[13]  This letter stated that his current medications included Imdur SR (60mg), Metoprolol Sandoz (50mg) and Micardis Tablet (80mg).

   CONSIDERATION

   [13] Refer T-Documents T18.

   Qualification period

3. Based on the evidence referred to in paragraph [22], Mr Tam’s claim is taken to have been made on 13 January 2016 by operation of s 13 of the Administration Act.[14]  Accordingly, the relevant qualification period in this case is from 13 January 2016 to 12 April 2016 (Qualification Period).

   [14] This conclusion is subject to Mr Tam being qualified for DSP on the day upon which he made contact with Centrelink – see ss 3(1)(b) of the Administration Act.

4. The Tribunal is guided by the observations of the Federal Court of Australia (Gyles J) in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]:[15]

   …the Applicant’s entitlement to the pension must be considered as at the date of his claim, namely, 3 May 2004 and a period of 13 weeks thereafter.  Any subsequent changes in his health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time.

   [15] Approved by Besanko J in Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [26] to [28]. The Harris case was appealed to the Full Court of the Federal Court in Secretary, Department of Employment & Workplace Relations v Harris [2007] FCAFC 130 but the observations of Gyles J at first instance on this issue were not disturbed by the Full Court’s appeal decision. The approach to be taken was dictated by the terms of the legislation - Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286.

   Physical, intellectual or psychiatric impairment

5. It was uncontested that Mr Tam had a number of physical and psychiatric impairments as referred to below.  The main issue was whether they were permanent or whether they caused a level of functional impairment to attract a point rating under the Impairment Tables.

   Heart conditions – NSTEMI and ischaemic heart disease

   Fully diagnosed

6. It was uncontested that the heart conditions of ischaemic heart disease and NSTEMI as claimed by Mr Tam were fully diagnosed. 

7. However, the Secretary, Department of Social Services (Secretary) contended that at no point during the Qualification Period were those conditions fully stabilised or fully treated (and consequently, they were not permanent), because:

   (a)Mr Tam had not attended any specialists or had any further examination since the stent operation in 2012; and

   (b)Mr Tam was “rarely compliant” with his medication regime and had only become more compliant since he lodged the DSP claim on 13 January 2016.

8. As outlined in paragraphs [14] and [16], Mr Tam sought to explain to the Tribunal why he had previously been non-compliant with taking the medications as recommended by his treating doctor due to the adverse side effects he complained of when taking them.  He also gave detailed evidence as outlined in paragraph [17] that he had treated himself with Chinese herbal medicines to assist with the general circulation of his blood around his body and that this had helped with his symptoms.  Another reason Mr Tam gave for not seeing a cardiologist following the surgery in 2012 was that he could not afford to do so.

   Fully Treated

9. To determine whether Mr Tam’s heart conditions can be regarded as “fully treated”, paragraph 6(5) of the 2011 Determination requires the Tribunal to consider what treatment or rehabilitation had occurred in relation to those conditions and whether treatment was continuing or was planned to continue in the two year period to follow the date of claim (13 January 2016).

10. In relation to the first of those considerations, on the evidence, the treatment undertaken by Mr Tam for his heart conditions up until the end of the Qualifying Period included:

    (a)surgical insertion of one stent following his heart attack in 2012;

    (b)during an initial period following this surgery, Mr Tam took the medication Imdur (and then subsequently stopped it due to reported side effects);

    (c)shortly after the DSP claim was made on 13 January 2016, Mr Tam reportedly took further medications prescribed to him including, of relevance to his heart conditions, Imdur and Metoprolol.  Mr Tam had been taking Micardis for the last two years;[16] and

    (d)self-administered Chinese herbal medications.

    [16] Refer to evidence given by Mr Tam at the AAT1 hearing – T-Documents PT2/6 at paragraph [15].

11. At the time Mr Tam was discharged from hospital in 2012, it was recommended by the cardiologist intern (see paragraph [13]) that he take Clopidogrel for 12 months, Aspirin on a lifetime basis, Metoprolol, Ramipril, Atorvastatin and Imdur.  The Tribunal notes that Mr Tam was described by Dr Lo on 6 May 2016 as being allergic to Aspirin and for this reason the Tribunal has not factored into consideration the fact that Mr Tam did not at any stage take this particular medication.[17]  Although Mr Tam took Imdur initially and again shortly after he made his claim, the Tribunal notes that there was a substantial hiatus of four years between 2012 and 2016 when he did not take Imdur medication.  Further, there was no evidence before the Tribunal that Mr Tam had at any time taken Clopidogrel, Ramipril or Atovastatin as recommended to him. Mr Tam started taking Metoprolol shortly after he made his DSP claim but the evidence suggests he did not take any of this medication prior to this time.  It was also recommended that Mr Tam attend a follow up consultation with a cardiologist (Dr Richards), which did not occur.

    [17] Refer T-Documents T18/122.

12. In relation to the second of these considerations, whether treatment was continuing or was planned to continue in the two-year period to follow the date of claim (13 January 2016), the Tribunal notes that Mr Ly in the Medical Report accompanying the DSP claim form stated that the future/planned treatment was “Specialist & continue medication”.  As mentioned above, three medications were listed in this report - Metoprolol, Lipitor and name of the third medication prescribed to Mr Tam was illegible.  It is noted in the report that Mr Tam had been non-compliant with respect to the recommendation that he should see a specialist about his heart condition, NSTEMI.  For this reason, no opportunity arose following Mr Tam’s surgery for a cardiologist to recommended further treatment in the two-year period following the date of Mr Tam’s claim.  It is evident, however, from Dr Lo’s report referred to in paragraph [27], that Mr Tam’s heart condition as at 10 March 2016 (during the Qualifying Period) was ischaemic heart disease and that Mr Tam had been prescribed Imdur, Metoprolol and Micardis.  There was no indication in that report as to how long Mr Tam should continue to take those medications or whether any further treatment (further surgical or otherwise) beyond the taking of that medication was recommended. 

13. Based on these considerations, the Tribunal finds that Mr Tam’s heart conditions were not fully treated during the Qualifying Period.  Treatments were recommended to Mr Tam, at the time of discharge from surgery in 2012, subsequently by Dr Ly, and then Dr Lo, or other doctors at his medical clinic. However, the evidence supports the conclusion that Mr Tam was predominately non-compliant with those recommendations both in relation to taking certain prescribed medications and receiving further treatment by a specialist (cardiologist). The Tribunal otherwise accepts the contention of the Secretary that it was not an answer for Mr Tam to say he had started taking the medications prescribed by Dr Lo shortly after Mr Tam made the DSP claim.  The Tribunal considers that this was too late, although this fact would be relevant to any subsequent claim Mr Tam may elect to make.  The Tribunal is satisfied that those medications would have had insufficient time before the end of the Qualifying Period to have had a significant beneficial effect on Mr Tam’s heart conditions.

    Fully stabilised

14. To determine whether Mr Tam’s heart conditions were fully stabilised, under paragraph 6(6) of the 2011 Determination, the Tribunal was required to find:

    (a)whether, before the end of the Qualifying Period on 12 April 2016, Mr Tam had undertaken reasonable treatment of the heart conditions and any further reasonable treatment was unlikely to result in significant functional improvement to a level enabling the person to undertake work in the two year period to follow the date of the claim; or

    (b)if Mr Tam had not undertaken reasonable treatment for the conditions, whether significant functional improvement to a level enabling him to undertake work in the next two years was not expected to occur, even if he undertook treatment or there was a medical or other compelling reason for Mr Tam not to undertake reasonable treatment.

15. Initially, this required an assessment of what constituted “reasonable treatment” in Mr Tam’s case with respect to his heart conditions.  For this purpose, the Tribunal must be satisfied that the six requirements set out in paragraph 6(7) of the 2011 Determination are met.

16. Dealing firstly with the various medications prescribed by the cardiologist intern at the time of his discharge from hospital in 2012 (except for Aspirin), and subsequently as updated by Dr Ly and Dr Lo, the Tribunal is satisfied that all six of the requirements in paragraph 6(7) are met with respect to the recommended medication.  This finding is based in part on information in the following table about those medications as sourced from the following Australian government websites - and  and in consideration that prescription medications are regulated by the Therapeutic Goods Administration (TGA) which evaluates their quality, safety and efficacy prior to being registered.[18] 

    [18] Relevant to the factors set out at ss 6(7)(c)(d)(e) and (f) of the 2011 Determination.

Prescribed Medication	What is this medication used for?	How does this medication work?	PBS approved
Imdur (Isosorbide Mononitrate)	This medicine is used to prevent angina caused by too little blood and oxygen getting to the heart.	Imdur works by relaxing the blood vessels; letting more blood and oxygen reach the heart.	Yes.
Metroprolol	This medicine is used to treat: • high blood pressure (hypertension); • heart attack (myocardial infarction); • prevent severe chest pain (angina pectoris); and • migraine.	Metroprolol works by affecting the body's response to some nerve impulses, especially in the heart. As a result, it decreases the heart's need for blood and oxygen and therefore reduces the amount of work the heart has to do. It also widens the blood vessels in the body, causing blood pressure to fall.	Yes.
Clopidogrel	Clopidogrel is used to prevent strokes, heart attacks or death.	Clopidogrel is used to prevent blood clots forming in hardened blood vessels (and to prevent blood clotting process known as atherothrombosis) which can lead to events such as stroke, heart attack or death.	Yes.
Ramipril	Ramipril AN is used to treat: • high blood pressure (hypertension) • some heart conditions such as heart failure after a heart attack • kidney problems in some patients Ramipril AN is also used to reduce the risk of cardiovascular problems and complications in patients aged 55 years or more with heart or blood vessel disease, or diabetes.	Ramipril works by widening the blood vessels, which reduces the pressure in the vessels, making it easier for the heart to pump blood around the body. This helps increase the supply of oxygen to the heart, so that when a person places extra demands on their heart, such as during exercise, their heart may cope better and they may not get short of breath as easily. By increasing the supply of oxygen to the heart, the heart does not have to work as hard and it is under less stress, which may reduce the risk of further damage occurring to it following a heart attack.	Yes.
Atorvastatin (brand name Lipitor)	Atorvastatin AN is used to lower high cholesterol levels. Atorvastatin AN is also used to help reduce the risk of having a heart attack or stroke in people who have high blood pressure and coronary heart disease (CHD) or who are at risk of CHD.	Atorvastatin AJ belongs to a group of medicines called HMG-CoA reductase inhibitors. It works by reducing the amount of cholesterol made by the liver. Atorvastatin AN reduces the 'bad' cholesterol and raises the 'good' cholesterol. Atorvastatin AN also helps to protect you from a heart attack or stroke.	Yes.

1. Information available on about those medications also indicates that their price was reasonable (and partially subsidised by the PBS scheme) and certainly not at a level that could be considered cost prohibitive, even for a person with limited financial means such as Mr Tam.[19]   All of those medications were available locally to Mr Tam from a pharmacy and in that regard, it was noted that from 2012 until the end of the Qualifying Period, Mr Tam resided in urban areas, meaning accessibility to those medications was not an issue.[20]

   [19] Relevant to the factor set out at ss 6(7)(b) of the 2011 Determination.

   [20] Relevant to the factor set out at ss 6(7)(a) of the 2011 Determination.

2. Mr Tam’s evidence was that he chose certain types of Chinese herbs to ingest as advised by the “temple gods”.  It was somewhat unclear as to whether Mr Tam contended to the Tribunal that it should accept that this alternative method of treatment was of itself reasonable treatment.  If Mr Tam intended to make this contention, the Tribunal finds that it was not reasonable treatment, as there was no scientific support presented to establish that it was efficacious in leading to a significant improvement of Mr Tam’s heart conditions.  The Tribunal considers that this method of selection was unscientific and arbitrary.

3. In relation to the recommendation that Mr Tam receive ongoing treatment by a specialist (cardiologist) following his surgery, the Tribunal finds that for a person who was diagnosed with NSTEMI and on 10 March 2016 with ischaemic heart disease, that this constituted reasonable treatment as the requirements of paragraphs 6(7)(a) to (f) of the 2011 Determination are met.  Mr Tam contended that he could not afford to see the cardiologist.  However, the Tribunal notes that many cardiologists, including those based in Sydney and Melbourne relevant to where Mr Tam was residing between 2012 and the end of the Qualifying Period, offered bulk billing services which meant that Mr Tam could access that medical treatment free of charge.  It is also noted, as contended for by the Secretary, that funds were available to pay for frequent international travel to Malaysia for Mr Tam over the period, even if those funds were provided by Mr Tam’s family members.  Some of those funds (regardless from where they were derived) could have been applied to pay for specialist care for Mr Tam’s heart conditions if, for whatever reason, he was not able to avail himself of a bulk-billing service.

4. For the reasons set out in paragraphs [40] to [44] above, the Tribunal finds that the requirements of paragraphs 6(6)(a) of the 2011 Determination are not met, as Mr Tam had not undertaken reasonable treatment for his heart conditions before the end of the Qualifying Period.  Further, under paragraphs 6(6)(b)(i) of the 2011 Determination, the Tribunal concludes that there was insufficient evidence for Mr Tam to establish that even if he undertook treatment it would not have resulted in a significant functional improvement to a level enabling him to undertake work in the next two years.  To the contrary, the Tribunal is satisfied that if Mr Tam had taken the prescribed medications and received ongoing treatment by a cardiologist, his symptoms arising from the heart conditions would have been alleviated and Mr Tam would have experienced a significant functional improvement.  Specifically, the information in the table in paragraph [41] satisfied the Tribunal that those prescribed medications, if taken by Mr Tam, would have acted to widen and relax his blood vessels, prevented blood clotting processes, reduced his body’s and heart’s response to nerve impulses and reduced the amount of cholesterol in his liver.

5. A question arose under paragraph 6(6)(b)(ii) of the 2011 Determination as to whether there was a medical or other compelling reason for Mr Tam not to undertake reasonable treatment.  For the second part of this question, the Tribunal notes the approach of the Full Court of the Federal Court of Australia in Secretary, Department of Families, Housing, Community Services and Indigenous Affairsv Jansen [2008] FCAFC 48 as set out in [39]:

   As Mr Hanks put it, the appropriate question for the decision maker to ask is, “Am I satisfied that there is a reason that compels, in this case, Mr Jansen… not to undertake treatment?”  Put this way it is not a choice between mutually exclusive objective and subjective tests but a simple formulation which involves some element of each.  We agree that is the correct approach to the construction of clause 6.  It follows that the primary judge erred in focussing on the purely subjective aspect of the test in clause 6.

6. It was apparent that Mr Tam considered self-administered Chinese herbal concoctions to be optimal for him to use to treat his heart conditions, and it was evident that he did not embrace the use of orthodox medicines or that he should receive ongoing treatment by registered medical practitioners, in particular, a cardiologist. The Tribunal finds that these beliefs were genuinely and strongly held by Mr Tam. The Tribunal also accepts Mr Tam’s evidence that he may have experienced headaches initially when taking Imdur. However, the Tribunal notes Mr Tam’s evidence that his GP confirmed that it was the best medicine for him to take.  Mr Tam did not actively pursue ways of managing the headaches but instead, was quick to give up on the prescribed medications in favour of his own herbal concoctions. The Tribunal was not satisfied that the initial reported headaches, without further medical evidence, constituted a medical reason for Mr Tam not taking the set of prescribed medications, nor was the Tribunal satisfied that Mr Tam’s philosophical preference for ‘Eastern’ versus ‘Western’ medications was a compelling reason not to do so.

1. Further, for the reasons set out in paragraph [42] and [44], the Tribunal does not accept that there were financial obstacles to Mr Tam receiving the recommended treatment.

2. Accordingly, the Tribunal is not satisfied that there was a medical or other compelling reason to justify why Mr Tam did not undertake reasonable treatment for his heart conditions at the relevant time.

3. For the reasons set out in [39] to [49], the Tribunal finds that Mr Tam’s heart conditions were not fully stabilised by the end of the Qualifying Period.

   Hypertension

4. It was uncontested that Mr Tam’s condition of hypertension was fully diagnosed, fully treated and fully stabilised. The issue was about whether this condition had caused Mr Tam any functional impairment.

5. The Tribunal finds that this condition did not cause any functional impairment based on the medical evidence of Dr Ly in his report dated 18 February 2016 that Mr Tam’s hypertension was “generally well managed and caused minimal or limited functional impact”.[21]  There was no medical evidence tendered by Mr Tam that was inconsistent with Dr Ly’s opinion.

   Spinal condition

   [21] Refer T-Documents PT15/111.

   Fully diagnosed

6. It was uncontested that Mr Tam’s spinal condition was fully diagnosed based on the radiological findings referred to in paragraph [20] which confirmed that Mr Tam had “central spinal canal stenosis of moderate severity at L3/4 and L4/5 with involvement of the L4 and L5 nerve roots”.

   Fully treated

7. By the end of the Qualifying Period, Mr Tam had received the following treatment for his spinal condition:[22]

   (a)consulting his treating GP; and

   (b)self-administering various Chinese herbal medications as outlined in paragraph [17].

   [22] Refer paragraph 6(5) of the 2011 Determination.

8. On the evidence, the treatment for Mr Tam’s spinal condition continuing or planned to continue in the two year period from 13 January 2016 to 12 January 2018 was Panadeine Forte (an analgesic), Mobic (an anti-inflammatory medication) and “self-directed exercise”, as recommended by Dr Ly in his medical report dated 18 February 2016. Notably, this treatment did not include the referral of Mr Tam to any specialist.

9. In the Job Capacity Assessment report dated 10 March 2016, it was recorded that Mr Tam did not continue with the prescribed medication and instead opted for conservative Chinese medicine for his spinal disorder.[23]  This was consistent with the observation by Dr Ly in his report dated 18 February 2016 that Mr Tam was “rarely compliant” with taking medication in relation to the spinal condition.  In this regard, the Tribunal notes the evidence given by Mr Tam at the hearing as outlined in paragraph [17] that he had treated his spinal pain with herbal medications and did not need to take pain killers anymore. 

   [23] Refer T-Documents PT16/114.

10. The Tribunal is satisfied on the evidence that Mr Tam’s spinal condition had not been fully treated by the end of the Qualifying Period, principally, due to Mr Tam’s election not to take the anti-inflammatory medication (Mobic).  The Tribunal considers that Mobic may have served to improve Mr Tam’s spinal condition and corresponding functional impairment by eliminating or reducing the level of inflammation in the spinal column.

11. Mr Tam also elected not to take the prescribed analgesic.  The Tribunal does not expect this would have improved Mr Tam’s condition because analgesics treat the symptoms by numbing the pain, rather than treating the condition itself.  The Tribunal notes that one of the active ingredients in Panadeine Forte, Codeine Phosphate Hemihydrate, is an opiate and is commonly known to have ill effects on some people. For this reason, the Tribunal has not factored into consideration the fact that Mr Tam did not at any stage take this particular medication.

12. The Secretary also contended that the spinal condition was not fully treated because Mr Tam should have received further treatment from specialists (for instance, an orthopaedic surgeon or physiotherapist).  The Tribunal does not accept this contention as it is evident from the medical report dated 18 February 2016 that his treating GP, Dr Ly, at the relevant time, had not recommended any such specialist treatment or ancillary therapy.[24]

    [24] Refer answer by Dr Ly to section D on the form in the T-Documents PT15/109.

    Fully stabilised

13. The Tribunal must undertake an assessment of the kind outlined above in paragraph [37]. Dealing first with the question of whether the recommended treatment as outlined in paragraphs [55] was reasonable treatment, the Tribunal is satisfied the six requirements in paragraphs 6(7)(a) to (f) of the 2011 Determination are met for the same reasons as already set out in paragraphs [41] to [43] except that the Tribunal considered the following information relevant to the prescribed medications for the spinal condition.

Prescribed Medication	What is this medication used for?	How does this medication work?	PBS approved
Panadeine Forte (paracetamol and codeine phosphate).	Panadeine Forte is used to ease moderate to severe pain, which can be caused by a number of conditions or situations. It provides short-term pain relief rather than a cure.	Paracetamol blocks pain messages being sent to the brain. It also works in the brain to reduce fever. Codeine belongs to a group of medicines called opioid analgesics. It is a strong pain relieving medicine that works in the brain and spinal cord.	Yes.
Mobic (meloxicam)	Mobic is used to treat joint pain and swelling caused by osteoarthritis and rheumatoid arthritis, although it will not cure these conditions.	Mobic belongs to a group of medicines called non-steroidal anti-inflammatory drugs, or NSAIDs. NSAIDs are used to ease pain and inflammation.	Yes.

1. Based on the evidence set out in paragraph [56], the Tribunal finds that the requirements of paragraph 6(6)(a) of the 2011 Determination are not met as Mr Tam had not undertaken reasonable treatment in the form of the prescribed medication of Mobic before the end of the Qualifying Period. 

2. The Tribunal finds that there was insufficient evidence for Mr Tam to establish that even if he took the prescribed medication of Mobic it would not have resulted in a significant functional improvement to a level enabling him to undertake work in the next two years.  To the contrary, the Tribunal is satisfied that if he had taken them, his symptoms would have been reduced and he was likely to have experienced a significant functional improvement.

3. The Tribunal finds that Mr Tam did not otherwise have a medical or compelling reason for why he did not take the prescribed medication of Mobic for his spinal condition.  For the reasons set out in paragraph [42] and [44], the Tribunal does not accept that there were financial obstacles that prevented Mr Tam undertaking the recommended treatment.  Otherwise, for the reasons set out in paragraph [47] above, Mr Tam’s preference to treat that condition by taking self-administered Chinese herbal medication did not amount to a compelling reason not to the take the prescribed medications.  The same applies with respect to Mobic for his spinal condition which is a pharmaceutical product registered and regulated by the TGA and for which the quality, safety and efficacy had been demonstrated to the TGA on a scientific basis.

4. For the reasons set out in paragraphs [60] to [63], the Tribunal finds that Mr Tam’s spinal condition was not fully stabilised by the end of the Qualifying Period.

   Mental health condition

   Fully diagnosed

5. It was uncontested that Mr Tam’s mental health condition was fully diagnosed by a clinical psychologist and psychologist as a “Mood Disorder”.[25]  The Tribunal also notes the reference in Dr Lo’s report dated 6 May 2016 to a diagnosis of “Depression – Major” being made in November 2015.[26]

   [25] Refer to psychologists’ joint report as outlined in paragraph [21].

   [26] Refer T-Documents T18/122.

   Fully treated

6. In the Job Capacity Assessment report dated 10 March 2016, it was recorded that Mr Tam had not engaged in any counselling services and had received “nil” past treatment.[27]   The Tribunal finds that by the end of the Qualifying Period, Mr Tam had not received any treatment for his mental health condition. 

   [27] Refer T-Documents PT16/116.

7. The Tribunal notes that Ms Morrison and Dr Henderson in their joint report dated 3 December 2015 highly recommended “counselling services to manage the depressive symptoms”, without which Mr Tam’s “were likely to deteriorate”. 

8. The Secretary further contended that Mr Tam should also have taken anti-depressant medication to treat his mental health condition.  The Tribunal does not accept this contention because there was no evidence before it that a medical practitioner had recommended that Mr Tam take any such medication.  Curiously, Dr Ly’s medical report dated 18 February 2016 does not refer to Mr Tam’s mental health condition at all.  Dr Lo’s report dated 6 May 2016 confirmed that Mr Tam was diagnosed with “Depression – Major” seemingly on 30 November 2015. However, the list of prescribed medications did not include any anti-depressants.  There was no mention in the joint report of Ms Morrison and Dr Henderson of Mr Tam having been prescribed previously with anti-depressant medication.

9. The Tribunal is satisfied on the evidence before it, that Mr Tam’s mental health condition had not been fully treated by the end of the Qualifying Period for the reason that Mr Tam had not engaged in the recommended counselling.  The Tribunal finds that such counselling, if provided, was expected to have improved and stabilised Mr Tam’s mental health condition. This is based on the opinions of Ms Morrison and Dr Henderson in their joint report that Mr Tam’s symptoms were likely to persist for 12 to 14 months, and that his condition was likely to stabilise and improve if he received the counselling.

   Fully stabilised

10. The Tribunal must undertake an assessment of the kind outlined above in paragraph [39]. Dealing first with the question of whether the recommended counselling was reasonable treatment, the Tribunal is satisfied that the six requirements in paragraphs 6(7)(a) to (f) of the 2011 Determination are met with respect to the recommended counselling.

11. Given that Mr Tam has lived in urban areas since November 2015 (the earliest date upon which a diagnosis for a mental health condition was made), the Tribunal finds that the recommended counselling was available at a location reasonably accessible to Mr Tam.[28]  The Tribunal is satisfied that Mr Tam was able to obtain the recommended counselling at little or no cost under the Better Access to Psychiatrists, Psychologists and General Practitioners through the Medicare Benefits Schedule (Better Access) initiative offered by the Federal Government.  Some psychologists offered counselling services on a bulk-billing basis, which meant that Mr Tam had access to 10 individual counselling sessions per year free of charge.[29]  Based on the evidence of Ms Morrison and Dr Henderson, the Tribunal is satisfied that the recommended counselling was reliably expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; had a high success rate; and carried a low risk to Mr Tam.[30]

    [28] Refer ss 6(7)(a) of the 2011 Determination.

    [29] Refer ss 6(7)(b) of the 2011 Determination.

    [30] Refer ss 6(7)(c), (d), (e) and (f) of the 2011 Determination.

12. Based on the evidence set out in paragraph [66], the Tribunal finds that the requirements of paragraph 6(6)(a) of the 2011 Determination are not met as Mr Tam had not undertaken reasonable treatment in the form of the recommended counselling before the end of the Qualifying Period. 

13. The Tribunal finds that there was insufficient evidence for Mr Tam to establish that even if he undertook the recommended counselling it would not have resulted in a significant functional improvement to a level enabling him to undertake work in the next two years.  To the contrary, the Tribunal is satisfied that if he had undertaken the counselling, his symptoms were expected to have been reduced and he was likely to have experienced a significant functional improvement.

14. The Tribunal finds that Mr Tam did not otherwise have a medical or compelling reason for why he did not undertake the recommended counselling.  For the reasons set out in paragraphs [42], [44] and [71], the Tribunal does not accept that there were financial obstacles that prevented Mr Tam undertaking the recommended treatment.

15. For the reasons set out in paragraphs [70] to [74], the Tribunal finds that Mr Tam’s mental health condition was not fully stabilised by the end of the Qualifying Period.

    GORD

16. It was uncontested that Mr Tam’s GORD condition was fully diagnosed, as confirmed by Dr Ly in his medical report dated 18 February 2016[31] and by Dr Lo on his Centrelink medical certificates issued on 8 January 2016, 3 February 2016, 15 February 2016, 9 March 2016 and 11 April 2016.[32]

    [31] Refer T-Documents PT15/134 to 139.

    [32] Refer T-Documents.

17. A Job Capacity Assessment of Mr Tam was undertaken on 9 March 2016, during which, as recorded by the assessor, Mr Tam said that he took medication for his GORD condition.  At the AAT1 hearing, Mr Tam gave evidence that he did not take any medication for this condition.[33] It was also noted by Dr Lo in Centrelink medical certificates dated 30 November 2015, 8 January 2016, 3 and 15 February 2016, 9 March 2016 and 11 April 2016 that Mr Tam only consumed one meal per day.[34]  

    [33] Refer T-Documents PT2/7.

    [34] Refer PT20/133 to 138.

18. The Tribunal finds that during the Qualifying Period Mr Tam took medication for this condition, based on what he told the Job Capacity Assessor in March 2016.  The Tribunal acknowledges that Mr Tam subsequently told the AAT1 that he had not taken any medication for this condition but this is not necessarily inconsistent with what he told the Job Capacity Assessor, as it may have been the case that he was taking medication during the Qualification Period and subsequently stopped, noting that the AAT1 hearing took place in August 2016, some four months after the end of the Qualification Period.

19. There was no further medical evidence recommending that Mr Tam undertake other treatment for this condition.  The Tribunal is satisfied that this condition was fully treated and fully stabilised.

20. However, the Tribunal finds that this condition did not cause any functional impairment based on the medical evidence of Dr Ly in his report dated 18 February 2016 that Mr Tam’s GORD was “generally well managed and caused minimal or limited functional impact”.[35]  There was no other medical evidence tendered by Mr Tam that was inconsistent with Dr Ly’s opinion.

    [35] Refer T-Documents PT15/111.

    CONCLUSION

21. The Tribunal concludes that Mr Tam had both physical and psychiatric impairments during the Qualifying Period.  The Tribunal concludes that during the Qualification Period, Mr Tam’s heart conditions (NSTEMI and ischaemic heart disease), spinal condition (central spinal canal stenosis) and his mental health conditions (mood disorder and depression) were fully diagnosed but were not fully treated and fully stabilised, and therefore, not permanent within the meaning of paragraph 6(4) of the 2011 Determination.  For this reason, no impairment rating could be assigned to those conditions.

22. The Tribunal also concludes that during the Qualifying Period, Mr Tam’s GORD and hypertension were fully diagnosed, fully treated and fully stabilised.  However, the Tribunal concludes that those conditions did not cause any functional impairment and for this reason, neither of those conditions attracted an impairment rating under the Impairment Tables.

23. Based on the conclusions of the Tribunal as stated above in paragraphs [81] and [82], the Tribunal was not required to determine whether Mr Tam had a continuing inability to work on account of any of those conditions.

24. Accordingly, the Tribunal affirms the decision of the AAT1 to reject Mr Tam’s DSP claim made on 13 January 2016.

85.     I certify that the preceding 84 (eighty-four) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker

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

Associate

Dated: 26 July 2017

Date of hearing:	28 April 2017
Applicant:	In person
Advocate for the Respondent:	Mr Joshua Lessing
Solicitors for the Respondent:	Sparke Helmore