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

[2018] AATA 2442

Tang and Secretary, Department of Social Services (Social services second review) [2018] AATA 2442 (18 July 2018)

Division:GENERAL DIVISION

File Number(s):      2017/7141

Re:Zi Guang Tang

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Professor R McCallum AO, Member

Date:18 July 2018

Place:Sydney

The Tribunal affirms the decision under review.

...........................[SGD].............................................

Professor R McCallum AO, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – 13 week qualifying period – impairment tables – fully diagnosed – fully treated – fully stabilised – neck and lower back pain – upper limb condition – lower limb condition – hearing loss – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

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

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Fanning and Secretary, Department of Social Services [2014] AATA 447
RE Gallacher v Secretary, Department of Social Services [2015] FCA 1123

Ulukut and Secretary, Department of Social Services [2014] AATA 399

REASONS FOR DECISION

Professor R McCallum AO, Member

18 July 2018

INTRODUCTION

1. The Applicant, Mr Zi Guang Tang, is aged 60. Mr Tang lodged a claim for Disability Support Pension (DSP) on 27 June 2017. The Department of Human Services, which is better known as Centrelink, rejected his claim on 4 July 2017.

2. Mr Tang sought review from an Authorised Review Officer (ARO), however, on 19 July 2017 the ARO affirmed Centrelink’s decision.

3. Mr Tang sought review from the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT) which is known as an AAT First Review (AAT1). However, on 16 November 2017 the AAT1 affirmed the above decision.

4. Mr Tang now appeals to the General Division of the AAT which is known as an AAT Second Review (AAT2).

   THE RELEVANT LEGISLATION

5. The relevant provisions governing eligibility for DSP are to be found in the Social Security Act 1991 (Cth) (the SS Act) and in the Social Security (Administration) Act 1999 (Cth) (the Administration Act).

6. The criteria for DSP are set forth in section 94 of the SS Act. In Mr Tang’s circumstances section 94(1) relevantly provides:

   94   Qualification for disability support pension

   1A 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;

   …

7. Put simply, I must be satisfied, first, that Mr Tang has one or more physical, intellectual or psychiatric impairments. Second, that these impairments are rated at least 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (Impairment Tables). Third, I must be satisfied that Mr Tang has a continuing inability to work. Finally, Mr Tang’s impairments must be sufficient to prevent him from doing any work independently of a program of support for 15 hours a week within the next 2 years.

8. Two other matters require explanation. They are the 13 week qualifying period and the application of the Impairment Tables.

   THE 13 WEEK QUALIFYING PERIOD

9. Section 94 of the SS Act must be read in conjunction with Schedule 2 clause 4(1) of the Administration Act. It is not necessary to set out this clause, suffice to write the following. Clause 4(1) is worded in a complex manner; however, it sets out by implication a 13 week qualifying period for DSP. The effect of this provision is that I am required to determine Mr Tang’s eligibility for DSP in the 13 week period commencing on the day on which Mr Tang’s claim for DSP was registered by Centrelink, and concluding 13 weeks after that day. Therefore, I must determine whether Mr Tang qualified for DSP between 27 June 2017 and 26 September 2017.

10. The date of the AAT2 hearing was 2 July 2018 which is more than nine months after the end of the claim period.

11. In Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, Member Breen said at [34]:

    In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.

12. In Fanning and Secretary, Department of Social Services [2014] AATA 447, Deputy President Handley said:

    [31] In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or with the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only in so far as they are referrable to the applicant’s condition during the relevant period.

    [32] This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404. Gyles J stated at [1] that as an applicant’s entitlement to DSP must be considered at the date of claim and within the 13 week period, “Any subsequent change in her 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”.

    [33] The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether “any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years” (emphasis added). While hindsight may suggest that treatment did not result in improvement within two years, that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision.

13. See also RE Gallacher v Secretary, Department of Social Services [2015] FCA 1123, [25]-[29].

    THE IMPAIRMENT TABLES

14. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (Impairment Tables) is subordinate legislation which was made under the SS Act.

15. Section 94(1)(b) of the SS Act obliges me to decide whether the impairments of Mr Tang are worth 20 points under the Impairment Tables. This requires a few words of explanation.

16. In Ulukut and Secretary, Department of Social Services [2014] AATA 399 Senior Member Isenberg helpfully explains the operation of the Impairment Tables in the following words which I gratefully reproduce here. Senior Member Isenberg states:

    [5] …The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition: s 3 of the Determination. A claimant’s impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Determination.

    [6] The Tables may only be applied after the person’s medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.

17. Importantly, impairments can only be assigned ratings under the Impairment Tables when the medical condition is permanent within the meaning of the term in the Impairment Tables and the impairment resulting from the condition is likely to persist for more than two years. The Impairment Tables provide at subsection 6(4) that the condition is considered to be permanent if it has been fully diagnosed, treated, stabilised and is likely to persist for more than two years.

18. Subsection 6(5) of the Impairment Tables provides that when considering whether a condition is fully diagnosed and treated one must consider:

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

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

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

19. Subsection 6(6) provides, in part, that a condition is fully stabilised where a 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 two years.

20. It is also important to appreciate that under subsection 10(5), if two or more conditions cause a common or combined impairment, then “a single rating should be assigned in relation to that common or combined impairment under a single Table”. However, subsection 10(6) goes on to provide that in assessing two or more conditions which cause a common or combined impairment, “it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once”.

21. Subsection 11(1)(c) of the Impairment Tables provides that “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”.

    THE HEARING

22. Mr Tang attended the hearing and represented himself. The Secretary was represented by Counsel.

23. Mr Tang gave sworn evidence and was assisted by an interpreter in the Mandarin language. No other witnesses gave evidence.

    CONSIDERATION

24. Paragraph 5.1 of the Respondent’s Statement of Facts, Issues and Contentions is as follows:

    The Secretary accepts that the Applicant had impairments during the qualification period for the purpose of s 94(1)(a) of the Act arising from a number of conditions, which are discussed below.

25. Having regard to the medical evidence before the Tribunal and the oral evidence of Mr Tang, I find that Mr Tang has the following impairments:

    ·Neck and lower back pain;

    ·Upper Limbs condition;

    ·Lower limbs condition; and

    ·Hearing loss.

26. The first issue which I am required to decide is whether any of Mr Tang’s impairments were fully diagnosed, treated and stabilised during the claim period. If I find that one or more of Mr Tang’s impairments were fully diagnosed, treated and stabilised during the claim period, I am required to assess them under the relevant impairment tables.

27. The second issue which I am required to decide is whether Mr Tang has a continuing inability to work. It will only be necessary to address this second issue if Mr Tang obtains an assessment of 20 points under the impairment tables.

28. I shall now examine Mr Tang’s impairments.

    Neck and Lower Back Pain

29. In a report dated 30 October 2017, Dr Garo Artinian who is Mr Tang’s general practitioner gives details of Mr Tang’s neck and back pain as follows:

    Mr Tang has sustained two separate injuries to his lower back and neck.

    The first injury to his lower back in 2001 occurred whilst he was working as a truck driver with the Hilton Hotel loading and unloading dirty linen. The second was sustained in 2002 when he was working as a truck driver for a furniture company and experienced back pain after lifting furniture of 20 kg.

    His neck injury was sustained in 2012 while he was working as a school crossing attendant when he tripped and fell hitting his head on the ground.

    The patient had investigations of the lower back with MRI and CT scans which indicated L3/4, L4/5 degenerative changes with bulging discs. He was referred to several specialists and was treated conservatively. Over the course of time his condition improved despite periods of exacerbation. However he was treated by physiotherapy, exercises, swimming and simple analgesics.

    In 2012 after seeing a pain management specialist he was referred to have a CT guided cortisone injection to his L3/4.

    For his neck injury, Mr Tang underwent a CT scan which showed some degenerative changes for which he was referred to physiotherapy treatment. He continues to experience some neck pain which is controlled by simple analgesics.

30. Having regard to the extensive medical evidence before me, I find that Mr Tang’s neck and lower back pain were fully diagnosed during the claim period.

31. The more difficult issue is whether the neck and lower back pain were fully treated and stabilised during the claim period.

32. Mr Tang filled in a DSP claim form dated 20 June 2017.  He stated that he believed he would be having spinal surgery. He stated that the expected date of this surgery was 2 August 2017.

33. A letter from the Royal North Shore Hospital dated 14 December 2017 is before the Tribunal. The letter states that on 13 December 2017, Mr Tang was put on the elective surgery waiting list.

34. As I comprehended his evidence before the Tribunal, Mr Tang said that about a month ago, he met with doctors at the Royal North Shore Hospital where it was decided that given his age it was too risky to perform a spinal operation. Mr Tang could not produce any written evidence of this decision.

35. In his evidence, Mr Tang said that in April 2018 he travelled to China and had acupuncture on his neck and back.   He said that the acupuncture was in the nature of maintenance to control the pain.

36. Given that throughout and beyond the claim period Mr Tang was arranging to have surgery on his spine, I find that Mr Tang’s neck and lower back pain were not fully treated and stabilised during the claim period. Therefore, I am unable to assess this impairment under the impairment tables.

    Upper Limb Condition

37. There is not a great deal of medical evidence concerning Mr Tang’s upper limb condition.

38. In a report dated 18 February 2016, Dr Rebecca Martin, who is a pain management specialist  wrote as follows:

    Over the last 6 months however he has developed prominent right hand and arm numbness in a C5 and C6 radicular pattern associated with neuropathic pain and neck pain. He maintains normal power and reflexes.

    An MRI organised within the Royal North Shore Hospital system (available on eMR for viewing) shows severe right sided C5/6 foraminal stenosis which corresponds with his symptoms.

39. Dr Dale Kong, who is a specialist in occupational medicine examined Mr Tang on 4 September 2017. In his report dated 18 September 2017, Dr Kong wrote about Mr Tang’s upper limb condition as follows:

    In addition he has more recently developed pain and restricted movements in both shoulders. He has difficultly with any form of neck rotation, flexion or extension. He also has difficulties with any bending of his back. He finds it difficult to move his right arm above 45 degrees and his left arm above about 60 degrees. Both shoulder conditions have apparently been assessed by ultrasound examination and he was apparently informed that he would require an injection into both of his shoulders.

40. It is unclear from Dr Kong’s report whether this upper limb condition is connected to the neck and lower back condition.

41. In his evidence before the Tribunal, Mr Tang said that his upper limb condition was connected to his neck and lower back pain condition.

42. There is no more medical evidence before the Tribunal concerning any further diagnosis or treatment of Mr Tang’s upper limb condition.

43. Therefore, I find that during the claim period Mr Tang’s upper limb condition was not fully diagnosed, treated and stabilised. I am therefore unable to assess this impairment under the impairment tables.

    Lower Limb Condition

44. There is very little medical evidence about Mr Tang’s lower limb condition.

45. Dr Nathan Taylor commented on Mr Tang’s lower limb condition in a report dated 28 November 2017 which is two months beyond the claim period. Dr Taylor wrote in part as follows:

    Please be aware that I have been looking after Mr Tang in terms of his chronic pain for the past two years. He was being seen by Rebecca Martin for four years prior to this. He suffers with chronic neck, back and hip pain. He has modest relief with various treatments including radiofrequency denervation but is obviously still disabled by his chronic symptoms.

    …

    He is currently being investigated for left sided hip pain and is awaiting scans to his hip and knee. Even if this condition is treated and resolved, he still struggles with back and neck pain for which unfortunately there is no curative treatment.

46. Mr Tang did have an MRI on 29 November 2017, however, this was more than two months after the end of the claim period. There is no evidence before the Tribunal concerning whether Mr Tang’s hip and knee condition is connected to his neck and lower back condition.

47. Having regard to the medical evidence, I find that Mr Tang’s hip and knee conditions were being investigated after the end of the claim period. I further find that Mr Tang’s lower limb condition was not fully diagnosed, treated or stabilised during the claim period. Therefore I am unable to assess this impairment under the impairment tables.

    Hearing Loss

48. On 5 October 2017, Mr Tang was seen by Armah–Anum who is an Audiologist. In a report dated 23 December 2017, Armah–Anum wrote as follows:

    Mr Tang presented at National Hearing Care Hornsby, for an initial audiological assessment on the 5th of October, 2017. He reports a hearing deterioration causing increased need for repetition. Mr Tang has a history of middle ear problems and perforation. Mr Tang has consulted an Ear, Nose and Throat specialist previously however I do not have any prior results or information.

    On the 11th November there was a further deterioration in Mr Tang’s hearing results as a result of a perforation and discharge from an infection.

    Assessment

    Otoscopy revealed discharged and perforation in both ears.

    Pure Tone Audiometry showed a moderate to profound sensorineural hearing loss in his right ear and a moderate to profound mixed hearing loss in his left ear.

    Speech audiometry revealed excellent speech discrimination with amplification. These results were consistent with the audiogram.

    Outcome

    Mr Tang has consulted Dr Boustred (Ear, Nose and Throat) specialist who confirmed his hearing loss in of [sic] permanent nature however the tympanic membrane may repair itself and therefore likely majority of the conductive component will improve. If the tympanic membrane doesn’t heal Mr Tang may requires [sic] surgery. Regardless of whether the middle ear problems resolve a significant portion of his hearing impairment is permanent. As a result on 13^th December Mr Tang was fitted with fully subsided binaural hearing devices. At the follow-up appointment on the 22^nd December 2017 Mr Tang [sic] communication abilities have significantly improved while using these hearing aids. He is able to hear well in quiet situations and group situation however still has some difficulty in the aided condition in the presence of background noise.

1. It is clear that Mr Tang’s hearing loss was only diagnosed after the claim period.

2. I find that Mr Tang’s hearing loss was not fully diagnosed, treated and stabilised during the claim period. Therefore, I am unable to assess this impairment under the impairment tables.

   CONCLUSION

3. As Mr Tang’s impairments cannot be assessed under the Impairment Tables, he does not comply with section 94(1)(b) of the SS Act.  Mr Tang does not qualify to receive DSP.

4. It is not necessary for me to determine whether Mr Tang has a continuing inability to work within the meaning of section 94(1)(c)(i) and attendant provisions of the SS Act.

   DECISION

5. The decision under review is affirmed.

I certify that the preceding 53 (fifty -three) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member

.................................[SGD].......................................

Associate

Dated: 18 July 2018

Date(s) of hearing:	2 July 2018
Applicant:	In person
Solicitors for the Respondent:	Ms K Dunlop - Department of Human Services