Xiang (Wesley) Sheng LI and Secretary, Department of Social Services

[2014] AATA 666

[2014] AATA 666 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/4350
Re	Xiang (Wesley) Sheng LI
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr Ion Alexander, Member
Date	12 September 2014
Place	Sydney

The decision under review is affirmed.

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

Dr Ion Alexander, Member

CATCHWORDS

SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairment is rated 20 points or more under the Impairment Tables – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth)

SECONDARY MATERIALS

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

REASONS FOR DECISION

Dr Ion Alexander, Member

12 September 2014

BACKGROUND

1. On 22 January 2013 Mr Li lodged a claim for Disability Support Pension (DSP) on the basis that his various medical conditions were having an impact on his ability to function.

2. Mr Li’s claim was rejected by Centrelink, both initially and on internal review on the basis that he did not satisfy the requirements of s 94 of the Social Security Act 1991 (the Act), in particular s 94(1)(b) in that he did not have an impairment rating of at least 20 points under the Impairment Tables.

3. The Social Security Appeals Tribunal (SSAT) found that Mr Li had a combined impairment rating of 20 points in respect of three medical conditions, depression, visual loss and Dupuytren’s contracture of the right hand and therefore he satisfied section 94(1)(b) of the Act.

4. The SSAT, however, found that Mr Li did not satisfy section 94(2)(aa) of the Act in that he had not actively participated in a program of support and therefore did not qualify for DSP.

5. At the hearing Mr Li was self-represented and was assisted by a Mandarin language interpreter.

   ISSUES

6. In order to qualify for DSP Mr Li had to satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim (“the claim period”), in accordance with the requirements of the Social Security (Administration) Act 1999, that is, between 22 January 2013 and 23 April 2013.

7. It is agreed that, during the claim period, Mr Li satisfied s 94(1)(a) of the Act, in so far as he had impairments arising from the following medical conditions:

   ·Dupuytren’s contracture of the right hand

   ·Hypertension

   ·Mental health condition (Depression)

   ·Visual loss

   ·Cerebral vascular disease

8. It is agreed that Mr Li’s Dupuytren’s contracture of the right hand is a permanent condition within the meaning of the Act and that a rating of 5 points under Impairment Table 2 can be assigned.

9. At the hearing the respondent conceded that Mr Li’s hypertension is a permanent condition within the meaning of the Act but contends that as there is no evidence of any significant functional impact and that the appropriate impairment rating for this condition is nil points.

10. After having reviewed the evidence before the Tribunal I agree with the respondent’s contention.

11. In respect of the remaining conditions the respondent contends that, during the claim period, none of these medical conditions was permanent within the meaning of the Act and that no impairment ratings could be assigned so that the total rating under the Impairment Tables was 5 points and that Mr Li was not qualified for DSP.

12. Therefore, the relevant issue to be decided by the Tribunal is whether, during the claim period, Mr Li had a rating of 20 points or more under the Impairment Tables.

    IMPAIRMENT RATING

13. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination2011 (the Determination) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is permanent.

14. The Determination also provides that a condition is permanent if it has been fully diagnosed, fully treated, fully stabilised and is more likely than not to persist for more than two years.

15. The Introduction to each of the Impairment Tables states that the diagnosis of a condition must be made by an appropriately qualified medical practitioner and that in the assessment of a person’s impairment there must be corroborating evidence of the person’s impairment. Self-report of symptoms alone is insufficient.

    Mr Li’s Mental Health Condition

16. In a letter dated 29 November 2011 Dr Zhang, consultant psychiatrist, diagnoses Mr Li as suffering from Major Depression.

17. Dr Zhang recommends a Mental Health Care Plan which includes further psychiatric assessment, particularly frontal lobe functional assessment, further investigation for organic causes for some of Mr Li’s symptoms and oral medication (Venlafaxine and Mirtazapine).

18. Dr Zhang expresses the opinion that pseudo-dementia (memory loss secondary to depression) is likely and suggests once Mr Li’s mental state has improved he may benefit from cognitive behaviour therapy (CBT) with a psychologist.

19. In an undated Centrelink Medical Report Dr Zhang confirms the diagnosis of Major Depression and notes that he examined Mr Li on 20 January 2012 but provides no other useful information.

20. In a Centrelink Medical Report dated 31 January 2012 Dr Lau, general practitioner, notes the diagnosis of “Major Depression/pseudodementia” and the treatment plan as outlined by Dr Zhang.

21. In a Centrelink Medical Report dated 21 January 2013 Dr Lau confirms the diagnosis of major depression/pseudodementia and notes that treatment with oral medication was commenced on the 29 November 2011 but queries the duration of treatment.

22. In response to the question of future/planned treatment Dr Lau states “reconnect with psychiatrist and ensure antidepressant therapy”.

23. In respect to the question as to Mr Li’s compliance with recommended treatment Dr Lau ticks “rarely compliant” and states that “patient did not accept the diagnosis of major depression and did not comply with antidepressant treatment”.

24. Dr Lau notes that Mr Li’s current symptoms include memory problems, lethargy, depressed mood and inability to concentrate.

25. In a Centrelink Medical Report dated 5 April 2013 Dr Zhang confirms the diagnosis of Major Depression and notes that Mr Li has been taking oral antidepressant medication and that he has seen him on only three occasions: 24 November 2012, 20 January 2012 and 5 April 2013.

26. Dr Zhang states that Mr Li needs “medication titration, organic investigation and psychotherapy” and on the issue of compliance with recommended treatment he notes that Mr Li “has been seeing his GP”.

27. In a letter dated 30 May 2014 Ms Meng Jin, clinical psychologist, notes that Mr Li attended his first consultation on 23 May 2014 and that continuing therapy is recommended, with a progress report after the sixth consultation.

28. In the course of his oral evidence Mr Li was asked several questions by the Tribunal in respect of his compliance with recommended treatment.

29. Mr Li stated that he has significant problems with memory, particularly short term memory, but claimed that after seeing Dr Zhang he did take the prescribed oral medication and continued to take the medication with prescriptions being provided by Dr Lau.

30. Mr Li conceded that sometimes he did forget to take his oral medication and explained he did not find the medication to be very helpful.

31. Mr Li also explained that he stopped seeing Dr Zhang because he could not afford the consultation fees and was unable to access psychological treatment until this year because he was unable to find a clinical psychologist who bulk-billed Medicare.

    Consideration

32. The respondent contends that Mr Li’s condition of major depression was not fully diagnosed, fully treated and fully stabilised during the claim period.

33. In determining whether a condition is fully diagnosed and fully treated paragraph 6(5) of the Determination states that:

    “ 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 the treatment is continuing or is planned in the next 2 years

34. I also note that functional impairment caused by a mental health condition is assessed under Impairment Table 5 and that the Introduction to the Table stipulates that the diagnosis of a condition must be “made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist)”.

35. There is clearly inconsistency with Mr Li’s evidence and the report of Dr Lau of 21 January 2013, however, for present purposes I accept that treatment has occurred and was planned to continue for at least 2 years.

36. Therefore I accept that during the claim period Mr Li’s mental health condition was fully diagnosed and fully treated.

37. Whether Mr Li’s mental health condition was fully stabilised during the claim period is somewhat problematic.

38. In determining whether a condition is fully stabilised para 6(6)((a) the Determination states that 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.….

39. In my view, the treatment plan outlined by Dr Zhang was reasonable treatment that should have resulted in an improvement in Mr Li’s function.

40. The evidence demonstrates that significant elements of the plan including further psychiatric assessment, organic investigation and treatment by a psychologist were not undertaken prior to or during the assessment period.

41. I am sympathetic to Mr Li’s explanation that he was unable to pay for further specialist psychiatric and psychological treatment as I am certain that access to a Mandarin speaking specialist would be difficult.

42. However, the more the compelling question is whether Mr Li’s compliance with the prescribed oral medication was sufficient to meet the threshold of having “undertaken reasonable treatment” as required by Para 6(6)(a) of the determination.

43. The comments made by Dr Lau in his report of 31 March 2013 are quite pointed and persuade me to believe that Mr Li did not undertake reasonable treatment before or during the claim period.

44. I also note that Mr Li did not provide any compelling reason for not being compliant with the taking of the oral medication.

45. Therefore, I am satisfied that, during the claim period, Mr Li’s mental health condition was not fully stabilised and that an impairment rating under Impairment Table 5 cannot be assigned.

    Mr Li’s Visual Loss

46. In his evidence Mr Li indicated that he has had difficulties with his vision and needed glasses for many years. Recently, however, there has been an acute loss of vision in the left eye which has been getting worse.

47. In his report of 31 January 2012 Dr Lau lists cataracts as a condition with minimal or limited impact.

48. In his report of 21 January 2013 Dr Lau makes a diagnosis of “L eye severely vision impaired/vitreous syneresis, R eye cataract” and notes an appointment at Sydney Eye Hospital on 11 March 2013.

49. The findings of an examination performed on the 11 March 2013 at Sydney Eye Hospital by Dr Milverton, ophthalmologist, is reported as showing visual acuity in the left eye of 6/ 36 with a comment that that there is “no reason  found for this”.

50. Optical Coherence Tomography (OCT) was described as normal with minimal lens opacities. I note that OCT provides high resolution images of the anterior segment of the eye and retina.

51. Dr Milverton recommends a visual evoked response (VER) examination. I note VER is used to evaluate the visual nervous system from the eye to the brain.

52. A letter dated 11 June 2013 confirms an appointment was made for Mr Li for electro physiological testing on 15 August 2013.

53. At the hearing Mr Li conceded that he did not attend that appointment.

54. In my view there is insufficient medical evidence for the Tribunal to conclude that Mr Li’s visual loss has been fully diagnosed, fully treated and stabilised which means that a rating under the Impairment Tables cannot be assigned.

    Mr Li’s Cerebral vascular disease

55. In a report dated 19 October 2012 Dr Ip, Neurologist, notes that an MRI examination of the brain revealed abnormalities consistent mild microvascular disease.

56. After a comprehensive physical examination Dr Ip states that “the overall impression remains a scenario of mood disturbance rather than neurodegenerative process”.

57. In my view there is insufficient medical evidence for the Tribunal to conclude that “mild microvascular disease” is fully treated, fully diagnosed and fully stabilised which means that a rating under the Impairment Tables cannot be assigned.

    DECISION

58. For the reasons set out above, I am satisfied that during the claim period Mr Li’s impairment rating under the Impairment Tables was less than 20 points.

59. This means that Mr Li did not satisfy s 94(1)(b) of the Act and therefore was not qualified for DSP.

60. The decision under review is affirmed.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member

........................................................................

Associate

Dated 12 September 2014

Date of hearing	4 September 2014
Applicant	In person
Solicitors for the Respondent	Mr David McLaren, Department of Human Services