Thi-Banh Ha and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2012] AATA 879
•15 November 2012
[2012] AATA 879
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2012/2963
Re
Thi-Banh Ha
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Miss E A Shanahan, Member
Date of decision 15 November 2012 Place Melbourne For the reasons given orally at the hearing of this matter, the Tribunal affirms the reviewable decision.
[sgd]........................................................................
Miss E A Shanahan, Member
SOCIAL SECURITY – application for disability support pension – conditions not fully treated or stabilised – no impairment rating – decision affirmed.
Legislation
Social Security Act 1991 section 94
REASONS FOR DECISION
Miss E A Shanahan, Member
13 December 2012
Ms Ha lodged an application for a disability support pension (DSP) with Centrelink on 21 December 2011. Ms Ha’s claim was rejected by a Centrelink authorised review officer (ARO) on 26 April 2012. The reasons for rejection were that her claimed medical conditions, with the exception of Hepatitis B infection, were not fully treated and stabilised; the Hepatitis B infection was not contributing to any incapacity she might have for work; and the Hepatitis B infection did not attract any points under the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Impairment Tables) in Schedule 1B to the Social Security Act 1991 (the Act) (Schedule IB applies as Ms Ha lodged her claim before 1 January 2012 when the legislation changed).
Ms Ha applied to the Social Security Appeals Tribunal (SSAT) for a review of the ARO’s decision. On 13 June 2012 the SSAT affirmed the ARO’s decision on the same grounds. Ms Ha lodged an application for review of the SSAT decision by this Tribunal on 13 July 2012.
At the hearing before this Tribunal, Ms Ha was self-represented with the assistance of an interpreter in the Vietnamese language. Ms Ailsa Bramley, an advocate from the Centrelink Program Litigation and Review Branch, represented the Secretary. The Tribunal was provided with the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) (the T‑documents). Ms Ha provided copies of reports from the Western Hospital regarding the insertion of a pacemaker on 7 November 2011 and two follow up visits on 23 February 2012 and 23 August 2012. Ms Ha gave evidence before the Tribunal.
BACKGROUND TO THE APPLICATION
Ms Ha is a 46-year old lady of Vietnamese origin who arrived in Australia in 1990. She did not work in Vietnam nor has she worked for remuneration in Australia.
Ms Ha’s claim for DSP, lodged on 21 December 2011, was accompanied by a medical report from her cardiologist, Dr Nguyen. The condition, forming the basis of her application, was sinus node dysfunction causing dizziness and syncope, diagnosed as sick sinus syndrome. In her claim form, Ms Ha also listed Hepatitis B infection and pain in her right shoulder.
On 16 January 2012, Ms Ha’s general practitioner, Dr Pham provided Centrelink with information regarding Ms Ha’s right shoulder. She had suffered from chronic right shoulder pain for 10 years and had been treated conservatively without any improvement. An ultra-sound of the shoulder on 10 January 2012 had revealed a partial tear of the supraspinatus tendon. Dr Pham was arranging a trial of steroid and local anaesthetic injections into the shoulder; and if this was not effective she was to be referred to a specialist.
In 2008 Ms Ha had undergone an MRI of the right shoulder which revealed extensive rotator cuff tendinopathy with a possible tear. On 29 February 2012 Ms Ha underwent an intra‑articular injection into the right shoulder as planned.
Since 2010 Ms Ha has attended the Royal Melbourne Hospital’s Victorian Infectious Diseases Services for treatment of her Hepatitis B infection. She has been prescribed Lamivudine and has been using this medication for many years. Ms Ha tolerates the drug well and according to the report dated 9 January 2012 from the Victorian Infectious Diseases Services, her viral load remains undetectable and her liver function tests are normal.
On 21 January 2012 Dr Le, general practitioner, provided medical certificates to Centrelink which contained a further diagnosis of an anxiety disorder The symptoms he noted were insomnia, palpitations, poor concentration and suicidal ideation. Dr Le treated her with Mirtazapine and Diazepam. Dr Le, and subsequently Dr Pham, considered the anxiety disorder and accompanying depression to be temporary. Thus, the conditions under consideration are the sick sinus syndrome treated by insertion of a cardiac pace-maker; Hepatitis B infection (which is well controlled); anxiety disorder with depressed mood and a right rotator cuff syndrome.
Ms Ha underwent job capacity assessments on 7 October 2010, 21 April 2011 and 30 December 2011. These assessments were all to the same effect, namely that only Ms Ha’s Hepatitis B infection was fully diagnosed, treated and stabilised and that the condition attracted a zero impairment rating. Her work capacity was estimated to be 15‑28 hours per week allowing for a temporary capacity of 0-7 hours at the time of the examination and for a limited period only.
EVIDENCE BEFORE THE TRIBUNAL
MS HA
Prior to Ms Ha commencing her evidence, the Tribunal asked if she understood the reasons for and effect of the SSAT decision. She said she did not. Ms Bramley, with the assistance of the Vietnamese interpreter, explained these issues to Ms Ha’s satisfaction.
Ms Ha advised the Tribunal that since the insertion of the pace-maker, her symptoms of dizziness and lethargy were much improved and she could now do considerably more around the house. She also informed the Tribunal that she had received one injection of Marcaine and local anaesthetic in her right shoulder and this had helped her symptomatology. She was still waiting for a further injection and had no idea when this was to occur. She had also been referred to a specialist at Western Hospital for further assessment of her right shoulder but was still awaiting advice from the hospital as to the date of her appointment.
The Tribunal asked Ms Ha why the pace-maker battery had been inserted into her right pectoral region given her history of a right rotator cuff syndrome. Ms Ha said that she had not been asked which side was preferred as no Vietnamese interpreter had been available at the time of the operation.
Ms Ha confirmed that she had seen a psychologist earlier this year and attended approximately four or five appointments. Unfortunately, these counselling sessions had not been of assistance as the psychologist spent most of the time discussing potential forms of medication. Ms Ha is averse to taking drugs and she has stopped those prescribed by Dr Le and no longer sees the psychologist. She has joined a Buddhist discussion group and discusses her psychological problems with them. This she finds very beneficial. As a result, she felt her anxiety and depression had improved; although when she discusses her problems in this open forum she often cries and feels full of self‑pity.
The Tribunal encouraged Ms Ha to follow up on both appointments, first for the further injection of steroids in her right shoulder; and secondly, the appointment with the orthopaedic surgeon at the Western Hospital.
RELEVANT LEGISLATION
The Act provides in s 94 that in order to qualify for the DSP:
94 Qualification for disability support pension
(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 Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and ...
TRIBUNAL’S DELIBERATIONS
From the evidence before the Tribunal, it is clear that following the insertion of the cardiac pace-maker, Ms Ha’s symptoms relevant to her sick sinus syndrome have resolved. Her anxiety disorder with depressed mood has, on her own assessment, also improved, although it is still present to a lesser degree. The treatment of her rotator cuff syndrome has been limited to only one intra-articular injection. She requires further treatment and also the opinion of an orthopaedic surgeon, as she may well benefit from further injections and even conservative measures, such as physiotherapy. It is perhaps unfortunate that she has been advised in the past not to use her right arm to any great degree as by doing so she might increase the tear in her supraspinatus muscle.
With respect to the anxiety disorder and the right shoulder pathology, the conditions are diagnosed but not fully treated or stabilised. Therefore, they do not attract an impairment rating. The Tribunal agrees that the impairment rating for the Hepatitis B infection is zero, as it does not impact at all on Ms Ha’s capacity for work. Given the response to the insertion of a pace-maker, the sinus node condition now has a zero impact on her ability to work. Ms Ha has very basic English language abilities and has never worked for remuneration. She would obviously require education in the English language and training for any potential employment.
Ms Ha satisfies the requirements of s 94(1)(a) as she has both physical and mental conditions which have been diagnosed. She does not however satisfy the requirements of s 94(1)(b). The Tribunal therefore affirms the decision under review.
I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member. [sgd]............................................
Administrative Assistant
Dated 13 December 2012
Date of hearing 15 November 2012 Date of written reasons 13 December 2012 Applicant In person Advocate for the Respondent Ms Ailsa Bramley,
Program Litigation and Review Branch, Department of Human Services
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