Tran and Secretary, Department of Social Services (Social services second review)
[2019] AATA 57
•25 January 2019
Tran and Secretary, Department of Social Services (Social services second review) [2019] AATA 57 (25 January 2019)
Division:GENERAL DIVISION
File Number(s): 2018/3622
Re:Doan Tran
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:25 January 2019
Place:Sydney
The decision under review is affirmed.
.............................[sgd]...........................................
Chris Puplick AM, Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether applicant qualified for disability support pension – right hip arthrodesis – right shoulder deformity – hip and knee osteoarthritis – diabetes – anxiety – insomnia, hypercholestrolaemia and hypertension –
whether applicant’s condition attracted 20 points or more under the Impairment Tables during the relevant period – decision affirmed
LEGISLATION
Social Security Act 1991
SECONDARY MATERIALS
Social Security (Tables for Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (effective 6 December 2011)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
25 January 2019
This is the matter of Doan Tran (the Applicant) and Secretary, Department of Social Services concerning an application for a Disability Support Pension (DSP)
Mr Tran’s application for DSP was originally lodged on 24 May 2017. It was rejected by the Department on 29 June 2017 and that rejection (following an appeal by Mr Tran) was affirmed by an Authorised Review Officer on 20 March 2018. Mr Tran then appealed to the Social Services and Child Support Division of this Tribunal (AAT1) which, on 6 June 2018 affirmed the Secretary’s decision.
Mr Tran appealed that decision on 26 June 2018 and the matter was heard by this Tribunal on 18 January 2019.
The applicant was self-represented but assisted by an interpreter in the Vietnamese language.
The Applicant told the Tribunal at its hearing that he was aged 65. However in all records generated by department, in information given to medical practitioners and in his application to the Tribunal for review[1], he states his birth year as 1957. For the purposes of this application nothing turns on that.
[1] See for example Section 37 – T Documents at [155]; [154]; [1] respectively.
He arrived in Australia in 1978 after fleeing from Vietnam in traumatic circumstances and, until 2000 worked primarily in manual labouring jobs. The Applicant ceased work due to musculoskeletal symptoms and weakness[2] and until recently lived in Springvale, Victoria. Mr Tran now resides in Cabramatta, NSW.
[2] Section 37 – T Documents at [154] report of Dr Bui dated 10 May 2018.
Mr Tran lodged his application for DSP on 24 May 2017 and that triggered an assessment process to determine whether the Applicant was eligible for the pension, based on the status of his conditions as of the date of the claim or within 13 weeks thereafter. That is, any time between 24 May 2017 and 23 August 2017.
This is what the Tribunal refers to as “the qualification period”.
It is not possible for the Tribunal to take into account anything which occurred after the qualification period in terms of the claimed deterioration of the applicant’s health, changes in their status or onset of additional medical or psychological conditions.
These may be material factors in any future claim but they are not germane to the present assessment.
It is relevant to note that Mr Tran was in receipt of the DSP from some time in or around 2000 until he left for an overseas visit in 2016. This matter was not drawn to the attention of the Tribunal in the formal submission of the Secretary, which is regrettable.
Evidence to this effect can be found in the report of the Job Capacity Assessor of July 2007,[3] that show that a condition of “tuberculosis” (actually tuberculosis osteomyelitis humerus) affecting the Applicant’s lower limb functioning had been awarded 20 points on the impairment tables then in use. These tables were set out in what was then Schedule 1B to the Social Security Act 1991 (the Act). These tables were, in turn, replaced and superseded by the Social Security (Tables for Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (effective 6 December 2011) under which assessments must now be made.
[3] Section 37- T Documents at [100].
When Mr Tran left for overseas in 2016 he was absent from Australia for a period of time which resulted in the automatic cancellation of his DSP. On his return, Mr Tran lodged a new application for DSP but on this occasion the Secretary applied the new set of impairment tables to their decision making process andrejected the application. Whereas in other matters before the Tribunal decisions are to be based on the facts at the time of the Tribunal hearing, that is not the case in relation to DSP matters. The Tribunal can consider only the status of conditions within the qualifying period and it has no legislative authority to do otherwise.
In order to qualify for the DSP an applicant must fulfil certain criteria which are set out in the Social Security Act in section 94.
In essence these requirements or criteria are:
1.the person has a physical, intellectual or psychiatric impairment which is permanent;
2.the person’s impairment attracts 20 points or more on the Impairment Tables (which are a set of criteria established to assess the level of impairment set out in a Determination made under s. 26 of the Act). Points may be accumulated for a variety or number of conditions or in certain circumstances awarded directly for one condition of particular severity;
3.the person has a continuing inability to work or the Secretary is satisfied that the person is participating in a programme known as the supported wage system;
4.the person has turned 16; and
5.the person is an eligible citizen or resident.
Failure to meet any one of these requirements is fatal to the application and the Tribunal has neither the power nor the authority to disregard any such failure.
In assessing those Points, the condition (however defined) giving rise to the impairment must be:
·fully diagnosed and documented;
·fully treated; and
·fully stabilised.
Again, each of these conditions must be met before any points on the Impairment Table can be awarded.
In relation to being fully diagnosed and treated there must be evidence whether or not treatment is continuing or planned in the next two years. In relation to fully stabilised, a person must have undertaken reasonable treatment but that further treatment is not likely to result in significant functional improvement in the next two years.
An inability to work is also defined in the legislation. In effect it means that the impairment prevents the person from
·Doing any work independently of a programme of support within the next 2 years
·Undertaking a training activity within the next 2 years
·OR “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 programme of support within the next 2 years.”
It is against this legislative background that the Tribunal must consider each application coming before it, taking into account the particular circumstances and facts of each case, but making sure that the rules are applied equally to each case.
The Tribunal now turns to the particular circumstances and facts in relation to Mr Tran.
He claims that he is suffering from a variety of disabilities which include:
(1) Right hip arthrodesis
(2) Right shoulder deformity due to TB osteomyelitis humerus
(3) Hip and knee osteoarthritis
(4) Type II diabetes mellitus
(5) Depression and anxiety
(6) Insomnia, hypocholesterolaemia and hypertension.
There are a number of these conditions which, because of the provisions of the legislation the Tribunal is not able to take into account in terms of assessing whether or not they give rise to an impairment in Mr Tran’s functioning.
For example in relation to item (5) [depression and anxiety], the Impairment Table which is relevant is Table 5 headed Mental Health Function. In order for matters to be assessed under this Table a diagnosis must be provided 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.)”
There is no such evidence or diagnosis before the Tribunal, only a letter from Dr Pham (dated 8 August 2017)[4] who, as a General Practitioner, does not satisfy the qualification mentioned and so the Tribunal cannot consider this matter for any impairment rating and must rule it to be non-rateable.
[4] Section 37- T Documents at [143]-[144].
In relation to item (6) [insomnia, hypocholesterolaemia and hypertension] the Tribunal notes medical reports from Dr Pham (dated 8 August 2017) and Dr Rozario (a consultant rheumatologist)(dated 17 August 2018) but unfortunately their reports do not give sufficient details of either the onset of these conditions (that is, were they present during the qualifying period?), nor their management or prognosis. The Tribunal concludes, from the material before it that the condition of insomnia was fully diagnosed but neither fully stabilised or treated and that the other conditions are not “fully diagnosed, stabilised and treated” as required and therefore cannot be rated under any of the relevant Impairment Tables.
In relation to item (4) [Type II diabetes]. This has been diagnosed by Dr Pham and there is no reason not to accept this diagnosis although the Employment Services Assessment Report (dated 14 May 2018)[5] reports “nil symptoms”. In evidence, Mr Tran said that one of his reasons for visiting Vietnam in 2016/7 was to seek “herbal” treatment for his diabetes and that the treatment he received there “cured” him and he no longer needs/takes any medication of this condition. There is no evidence before the Tribunal that this condition causes Mr Tran any impairment. Prior to this he had been on treatment prescribed by Dr Pham which allowed for the management of his condition. There is thus some evidence that this condition was fully diagnosed but neither fully stabilised or treated. Further, in the absence of any evidence about this condition causing impairment during the qualifying period, again, it cannot be rated under the Impairment Tables.
[5] Section 37- T Documents at [157].
In relation to item (2) [Right shoulder deformity due to TB osteomyelitis humerus] the initial medical report on this from Dr Bui is dated 10 May 2018 which is itself outside the qualifying period although it says that Mr Tran has suffered with this since childhood].[6] This childhood onset of the condition is affirmed in the report of the Employment Services Assessment.[7] Dr Rozario’s report of 13 September 2018 confirms moderate osteoarthritis in the AC joint.
[6] Section 37- T Documents at [154].
[7] Section 37- T Documents at [157].
The Secretary, at paragraph 5.17 of her Submission contends that this condition is not fully diagnosed, stabilised and treated. The Tribunal disagrees. The fact that it was this very condition which led to an impairment rating of 20 points and the award of the DSP back in 2000 (confirmed in 2007) can only be taken as meaning that the Department accepted this condition as a qualifying one at that stage and it is not possible to now state that it is not.
Given this acceptance, the relevant Table to which the Tribunal must have reference is Table 2 Upper Limb Functions. The Secretary’s representative took Mr Tran through a series of examples of what he was or was not able to do as a result of the pain or impairment suffered in relation to his right shoulder. The Table requires to assignment of 0 points if “the person can pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty.” This appears to be the case with Mr Tran. Five impairment points can be awarded where difficulties are encountered with tasks such as picking up objects weighing 2 kilograms, handling small coins, doing up buttons or reaching up to retrieve objects. None of these was apparent in Mr Tran’s case so while the Tribunal finds that this condition is fully diagnosed, stabilised and treated, it cannot award any impairment points using Table 2. There is undoubtedly pain, but no impairment.
This leaves consideration of item (1)[ Right hip arthrodesis] and item (3) [Hip and knee osteoarthritis]. The Instructions which accompany the Impairment Tables provide that where multiple conditions cause a common impairment they must be considered together for the purposes of assigning an impairment rating.[8]
[8] Social Security (Tables for Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 at sections 10(5) and 10(6).
There is some dispute as to whether or not the condition of hip and knee arthritis, while diagnosed was fully stabilised and treated during the qualifying period. The Secretary’s Submission at 5.22 contends that there was no specialist review of this condition prior to August 2018, but the Tribunal documents at page 142 contain a report from Dr Minh Tran (a Radiologist) dated 3 August 2017 which would suggest otherwise.
However it is not necessary for the Tribunal to determine this matter given the requirement that this condition (whatever its status) be rated within the broader parameters of item (1) impairment.
The relevant Table for assessing impairments in this instance is Table 3 Lower Limb Function. The evidence related to these impairments is to be found in the reports of Dr Pham (8 August 2017) and Dr Rozario (17 August 2018) together with the Employment Services Assessment Report of 14 May 2018.[9]
[9] Section 37- T Documents at [156].
What they demonstrate is that Mr Tran could walk 50 m before needing to stop; was unable to sit for more than 30 minutes; could stand comfortably for only 15 minutes and that he needed to move or change position frequently because he suffered pain otherwise. Mr Tran walks with a calliper, and due to the discrepancy in the length of his legs he limps heavily and is unable to bear weight on his right leg. He suffers pain in both legs if required to walk any distance or stand for any length of time.
Nevertheless he is otherwise functional to the extent that he can look after himself without external assistance, he can drive (but does not do so now although he did during the qualifying period) and generally provided the walking distance is not too great finds no serious difficulty walking from his car to any appointment or to a facility like a shopping centre. Mr Tran can use public transport, cook for himself, do his washing, manage things such as relatively long train journeys which involve sitting and from January 2016 to March 2017 was able to manage an overseas trip. These abilities must be projected back with the assumption that they were, at the very least, the things which Mr Tran could do or manage during the qualifying period back in 2017.
The question then become where this level of disability rates on Table 3.
The Table assigns 5 points where:
There is a mild functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a) the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or
(b) the person has some difficulty walking around a shopping mall or supermarket without a rest; or
(c) the person has some difficulty climbing stairs; and
(2) At least one of the following applies:
(a) the person is unable to stand for more than 10 minutes;
(b) the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.
It assigns 10 points where:
There is a moderate functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a) the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or
(b) the person is unable to use stairs or steps without assistance; or
(c) the person is unable to stand for more than 5 minutes; and
(2) The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.
(3) This impairment rating level includes a person who can:
(a) move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or
(b) move around independently using walking aids (e.g. quad stick, crutches or walking frame).
Note: The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.
Having considered all the material presented and having taken direct evidence from Mr Tran, the Tribunal finds that Mr Tran suffers from a moderate functional impairment and thus rates at ten points on the Impairment Table.
Given that Mr Tran’s other conditions do not attract any rating on any of the other Tables this means that Mr Tran’s overall impairment rating is ten points.
Since the minimum impairment rating must reach at least 20 points before an applicant is eligible for the DSP this leads to the inevitable conclusion that Mr Tran fails to meet this threshold.
The Tribunal well understands Mr Tran’s sense of injustice and frustration at the fact that from 2000 to 2016 he was rated at 20 points on the (then) impairment tables and that he was granted DSP and that since that date his condition(s) has deteriorated but he now finds himself rated at only half his previous level. The cause of this lies not in the medical but in the political world – a change of government policy – one by which this Tribunal is bound.
The Tribunal draws Mr Tran’s attention to the fact that he is able to submit a new application for DSP which would be assessed on the basis of his current condition and which would take into account any diagnosis or treatment of his impairing conditions which have become apparent since August 2017.
DECISION
The decision under review is affirmed.
I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
.............................[sgd]...........................................
Associate
Dated: 25 January 2019
Date(s) of hearing: 18 January 2019 Applicant: In person Solicitors for the Respondent: Mr S Agnello, Department of Human Services
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