Yang and Department of Family and Community Services
[2001] AATA 564
•21 June 2001
DECISION AND REASONS FOR DECISION [2001] AATA 564
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N00/992
GENERAL ADMINISTRATIVE DIVISION )
Re XENG YANG
Applicant
And SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES
Respondent
DECISION
Tribunal DR J CAMPBELL, Member
Date21 June 2001
PlaceSydney
Decision The decision under review is affirmed.
[sgd] DR J CAMPBELL
Member
CATCHWORDS
Social Security - Disability Support Pension - cancellation - Assessment of Impairment Rating - continuing inability to work
Social Security Act 1991, Sections 94, 100, Schedule 1B
REASONS FOR DECISION
DR J CAMPBELL
In this application, Mr Xeng Yang ('the Applicant') seeks a review of the decision of the Social Security Appeals Tribunal ('SSAT') dated 6 March 2000 which affirmed the decision made by Centrelink delegate of the Secretary of Department of Family and Community Services ('the Respondent') dated 5 October 1999 to cancel payment of disability support pension ('DSP') to the Applicant. This latter decision was reviewed by an authorised review officer and affirmed in a decision dated 2 December 1999.
A hearing was held before the Tribunal on 20 April at which the self represented Applicant presented oral evidence to the Tribunal. The Respondent was represented by Ms Schuster, an advocate from the Advocacy and Administrative Law Team at Centrelink.
The following material was placed into evidence before the Tribunal:
Exhibit No. Description Date
T1-T30 pp-115 Documents prepared pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975
A1 Letter from Mr Yang to the Tribunal 15 September 2000
A2 Medical Report Dr Sing 13 September 2000
A3 Radiological Report Dr Lam 17 October 1998
R41 Medical Report Dr Manohar 13 December 2000
A5 Medical Report Dr Baz 6 November 2000
A6 Centacare Report 9 October 2000
R1 Report by Ms Hudson 7 November 2000
R2 Respondent's Statement of Facts and Contentions 13 February 2001
ISSUES:
The relevant issues in this matter are:
1)Whether the Applicant has a physical, intellectual or psychiatric impairment and whether that impairment is 20 points or more under the impairment tables in schedule 1B of the Social Security Act 1991 (hereafter: the Act); and
2)if so, whether or not he has a continuing inability to work because of the impairment because:
· the impairment of itself prevents him from doing nay work for at least 30 hours per week at aware wages within the next 2 years; and either
· the impairment of itself is sufficient to prevent him from undertaking educational or vocational training or on the job training during the next 2 years; or
· such training is unlikely (because of the impairment) to enable him to do any work for at least 30 years per week at award wages within the next 2 years.
LEGISLATION:
The relevant legislation in this matter is the Social Security Act 1991 ('the Act') and in particular subsections 94(1), (2), (3), (4) & (5), 100 (3) and the Tables for the Assessment of Work Related Impairment for Disability Support Pension ('Schedule 1B Impairment Tables').
BACKGROUND:On 6 July 1993, Dr Tindal, a consultant surgeon at Wollongong Hospital, in a report to the Applicant's solicitors noted that he had seen and treated the Applicant on 26 March 1993, following the Applicant's involvement in a high speed motor vehicle accident. Dr Tindal described the Applicant's injuries as a laceration to the right side of his scalp, a ruptured jejunum, a rupture of the underlying mesentery and sero-muscular tear of his caecum, all of which were subject to surgical repair and a satisfactory convalescence. Dr Tindal stated that he did not believe the Applicant had been rendered unconscious as a result of the accident (T11).
On 18 August 1993 an MRI examination of the lumbar spine was reported by Dr Ho in the following terms:
"Posterior disc protrusion is not seen. There is a small focus of low signal intensity noted in the L3/4 disc anteriorly. This would indicate focal disc degeneration."
A similar examination of the cervical spine was noted by Dr Ho as demonstrating the following:
"The cervical discs are of normal height and show no loss of signal intensity. Posterior disc protrusion is not seen. The cervical cord is of normal size and signal."
In two reports dated 25 January 1994 and 14 February 1994, Dr Manohar, a consultant in rehabilitation medicine, noted the presence of disc bulging at L4/5 in the MRI scan of 18 August 1993, that the Applicant was rendered unconscious at the time of the accident and that he had also suffered fractured ribs. Dr Manohar concluded that the Applicant had suffered musculo-ligamentous strain in both the cervical and lumbar regions (T13,T14).
In a report to the Applicant's solicitors dated 6 June 1994, Mr Woods, a clinical psychologist, concluded that the Applicant continued to suffer from a very considerable degree of psychological/emotional trauma manifesting in levels of anxiety and depression of a reactive nature (T17).
The Applicant lodged a claim for DSP with the Respondent on 22 August 1994 (T18). In a report dated 6 September 1994, Dr Singh, the Applicant's treating general practitioner, listed the Applicant's conditions as low back pain, neck pain and ruptured small intestine, all resulting from his accident on 26 March 1993 (T19). On 20 September 1994, Dr Wolrige, an Australian Government Medical Officer, considered the Applicant to have a 10 per cent impairment under Table 5.2, concerning the thoraco-lumbar spine, when he found a loss of one quarter normal range of movement. Dr Wolrige found a nil percentage impairment under Table 5.1, concerning the neck pain, and a nil percentage impairment under Table 23, concerning the abdominal scar. Overall Dr Wolrige considered the Applicant to have a combined impairment rating of 10 per cent and found that the Applicant was fit for light to moderate work. (T20) As a consequence, the Applicant was not granted DSP on 21 September 1994 (T21), but on appeal to the SSAT was granted DSP in that he had combined impairment rating of 24 per cent including 10 per cent for a psychiatric condition. The Applicant was also considered to have a continued inability to work (T23).
On 8 September 1999, the Applicant's treating doctor submitted a medical report as part of the review of the Applicant's entitlement to DSP (T24). A medical assessment report was undertaken on 5 October 1999 (T26) and a decision to cancel payment of DSP with effect 25 October 1999 was made on 5 October 1999 (T28). This decision was affirmed by the authorised review officer on 2 December 1999 (T30) and by the SSAT on 6 March 2000 (T2), with the last payment of DSP being made to the Applicant on 27 April 2000 (T8).
The Applicant told the Tribunal the he was born in Laos on 15 June 1962 and left school after year six in primary school. At age 15, he travelled with his parents to a refugee camp in Thailand, where he learnt some English and did some training in the dispensing of medicines. In 1981, the Applicant married, and worked in a hospital pharmacy in Thailand. He continued to work in such capacity until 1989, when he, his wife and three children migrated to Australia.
On arriving in Australia the Applicant continued to learn English in order to pursue further pharmaceutical studies. His qualifications as a pharmacy assistant were not acceptable in Australia, and he continued his studies, which he completed in 1993.
Following this, the Applicant went for a camping trip with his brother and they were involved in a motor vehicle accident, due to the driver looking for his wallet. The Applicant stated that he was unconscious for two hours and was admitted to Wollongong with bowel perforations, head lacerations and fractured ribs, where he remained for two weeks following surgery. The Applicant stated that he had not worked since that accident, and that he and his wife now have five children aged from 18 months to 19 years.
In describing his daily general activities, the Applicant stated that he wakes at about 5-6am, takes some medication and goes back to sleep. He dresses at about 7am, drives the children to school (five to ten minutes), has breakfast about 10am, watches television, and lies down when he has pain. In the afternoon and evening he may watch television. He does not have lunch but enjoys dinner. He does not drink or smoke, and wakes up during the night because of pain. The Applicant stated that he does not do any washing, washing up, cooking, sweeping, vacuuming, lawn mowing or gardening, but does drive his wife for shopping.
The Applicant stated he takes panadeine forte as required, which equates to two tablets morning and night and one tablet at midday. He also takes celebrex and pepsidine. Medication does on occasions cause him abdominal pain.
The Applicant described his various conditions in the following terms:
neck pain - has some difficulty with moving neck; and
low back pain – present all the time; restricted movement of back; can walk for 15 minutes; drive a car for 10-15 minutes on some days; stand for 30 minutes, is unable to run; can climb and descend stairs slowly and is only able to carry small quantities.
In response to questions from the Respondent, the Applicant stated that he did receive some physiotherapy after the accident, which helped him a little, but he was unable to keep paying for it and is waiting to go back for physiotherapy at Campbelltown. He has a difficult relationship with his wife and family. The Applicant stated that he is able to squat, and travel by train for periods of one hour, provided he is able to get up and walk about. The Applicant also stated that he owns his own home, funded by money received as a result of his car accident and other borrowings from family. He is currently on jobsearch allowance.
MEDICAL EVIDENCE:In a treating doctor's report dated 8 September 1999, Dr Singh described the Applicant's medical conditions and clinical features in the following manner:
Low Back Pain - back pain since 1990. Unable to do any lifting or repetitive bending. Gout with raised uric acid. Gouty arthritis long- term and fluctuating; and
Abdominal Pain - History of accident with rupture of intestine. Keloid scar on abdomen, long-term and stable.
(T24, p81/82)
Dr Singh considers that the Applicant is unable to return to any form of work either part or full-time in the next two years. Further Dr Singh believes the Applicant's work ability is affected in the following manner:
· absence from work for four or more days per month;
· unable to work full days because of endurance problems;
· mobility would be constrained in some situations;
· may be distressed or have difficulty alternating between tasks; and
· unable to lift, carry and move objects.
(T24, p83/84)
On 9 September 1999 the Applicant listed his disabilities as part of the review process as back pain, indicating that he had back pain when he sits for longer than one and a half hours and when standing, lifting or walking – the level of pain sometimes causing him difficulty in concentrating and remembering things, as well as making it difficult for him to sleep (T25).
Dr Chan, a consultant radiologist, in his report dated 3 September 1999 made the following observations:
"Lumbosacral Spine:
Mild Degenerative changes were noted in the lumbosacral spine with marginal osteophytic lipping at the levels of L3-4 and L4-5. No other significant abnormality was detected in the lumbosacral spine. The alignment appeared normal. No narrowing of intervertebral disc spaces was detected.
CT Scan of Lumbosacral Spine:
Axial scans were performed from L3 down to S1 with angled slices through the discs.
At the levels of L3-4 and L4-5, degenerative changes with anterior marginal osteophytic lipping were noted. No disc protrusion or other abnormality was detected. No narrowing of central canal, lateral recesses or neuro-foramina was detected.
At the level of L5-S1, no disc protrusion or other abnormality was detected. No narrowing of central canal, lateral recesses or neuro-foramina was detected.
…." (T27, p103)
In a medical assessment report dated 5 October 1999, Dr Roberts, an employed general practitioner for Health Services Australia, detailed the Applicant's clinical conditions and their associated clinical features in the following manner:
Back Pain - Since car accident in 1993. No fractures. Recent CT scan – minor degenerative changes noted. No clinical or radiological evidence of lumbar nerve root irritation. Normal gait and posture. Good mobility on informal examination, but reluctant to bend, squat or straight leg raise on request. Rating NIL points under Table 5.2;
Abdominal Pain - past history of ruptured bowel in 1993 which required surgery. Reports intermittent abdominal discomfort. Abdomen soft and non-tender. No regular medication. NIL rating under Table 11.2; and
Memory Loss - Reported by customer during examination, but not by treating doctor. Speaks very good English. Able to give detailed personal, medical and work history. Answered questions appropriately. NIL rating under Table 8.
Dr Roberts considered that the Applicant was currently fit for full-time work in a clerical capacity, but will require assistance to enable him to return to work, as in view of his history he is not well motivated. Dr Roberts considered that the Applicant's work ability is not much affected by his nominated disabilities (T26,p98-101).
In his letter to the Tribunal dated 15 September 2000, the Applicant described the accident in 1993, in which he now states he was unconscious for 12 hours, and that he takes pepsidine for his stomach ulcers (Exhibit A1).
In his medical report dated 13 December 2000, Dr Singh described the earlier passage of events from 1993 through to the earlier awarding of DSP in 1995. These have been described earlier in this decision, when dealing with background to this matter (Exhibit A2).
In a medical report dated 6 November 2000, Dr Baz, a consultant occupational physician, detailed a history of the Applicant having sustained loss of consciousness for a period of 12 hours in the motor vehicle accident in 1993. Dr Baz noted that the Applicant elected to give his history through an interpreter, although he had demonstrated reasonably good English in brief conversations prior to the arrival of the interpreter.
At examination Dr Baz noted that the Applicant had a hesitant awkward gait, and, further, formulated the following comments and opinion:
"Mr Yang gives a history of back pain dating from a motor vehicle accident in 1993. I consider this most likely to be due to internal disc disruption in the lumbar region. There is no radiculopathy.
The gastrointestinal symptoms have resolved.
His presentation is consistent with a mild level of depression, presumably reactive to his current social situation and persisting back pain.
In my opinion the lumbosacral spine and psychiatric conditions can be assessed under the Tables
…" (Exhibit A5)
Dr Baz concluded that the Applicant had a combined impairment rating of 30 points, consisting of 20 points under Table 5.2 and 10 points under Table 6. However, in considering the Applicant's work fitness assessment, Dr Baz arrived at the following conclusion:
"In my opinion the evidence available regarding these impairments is not such that I would consider him unfit for work of 30 or more hours duration weekly as a consequence of them.
I consider Mr Yang would benefit from retraining, but is unlikely to participate in this, and is unlikely to work in the future because of the combination of his impairments, lack of employment and limited English skills.
In my opinion based on the information available I consider he has been similarly fit for work since 5 October 1999, the date to which you refer.
…" (Exhibit A5)
The Tribunal also noted the report of the rehabilitation consultant dated 7 November 2000, in which the Applicant is described as being worried that his health would deteriorate if he worked (Exhibit R1). Further the Tribunal noted the report of the Community Support Program Coordinator in which he stated that "it is probably too early to assess his progress and the outcome of his AAT appeal will determine what course of action is taken from here on." (Exhibit A6)
SUBMISSIONS:
The Applicant contends that his disabilities when properly assessed have an impairment rating of 20 points or greater, and that by virtue of these impairments, he has a continuing inability to work.
The Respondent contends that the Applicant's impairments have been correctly nominated and assessed at the appropriate time, with the combined impairment rating being 10 points. Further the Applicant's impairments on their own do not, in the Respondent's view constitute a barrier to the Applicant returning to work, or undertaking such work after completion of vocational or rehabilitation training programs. In brief the Respondent contends that the Applicant does not have a continuing inability to work.
CONSIDERATION AND FINDINGS:
In this matter the Tribunal has been careful to detail the clinical history and clinical findings over time, since the Applicant's motor vehicle accident in 1993. As a consequence the Tribunal notes particular inconsistencies as to the length of time the Applicant is said to have been unconscious - from zero by the attending surgeon, to two hours and latterly to 12 hours as stated by the Applicant. Further the Tribunal also notes the opinion of Dr Manohar in January 1994, where he describes the presence of a disc bulge at level L4/5 when reporting on the MRI Scan of August 1993, when indeed the scan demonstrates as reported by Dr Ho, a focal disc degeneration anteriorly in L3/4 disc.
Further the Tribunal comments on the inconsistency as evidenced by the Applicant's command and use of English as portrayed by Dr Roberts and Dr Baz, and similarly on the apparent inconsistency between the Applicant's formal and informal ability to move and walk as contained within both Dr Roberts and Dr Baz's reports. The Tribunal does not at this time draw any definitive conclusions from such inconsistencies, for the reason that the reported examinations are one year apart in time.
The Tribunal in considering both the evidence leading up to the time at which the review of the Applicant's DSP was commenced and the medical evidence detailed as part of that review process, which includes the statement of the Applicant, the report of the treating doctor, Dr Singh and the medical assessment undertaken by Dr Roberts, concludes that the Applicant had the following medical conditions with associated clinical features at the time, or within a period of three months, at which the decision was taken to cancel the Applicant's DSP, namely 5 October 1999:
(a)Low back pain - Clinical history of the pain commencing in 1990 or earlier (Dr Singh). Pain increased at time of accident, with range of movements in the months following the accident showing significant improvement, following physiotherapy.
·History detailed by Applicant demonstrates an increasing disability over time with limitations on walking, standing, sitting, driving and heavy lifting.
·Radiological examination demonstrates minor disc degeneration at L3/4.
·Clinical examination reveals a significant variance between informal and formal responses to a request, as evidenced by the range of movement demonstrated (Dr Roberts) Dr Baz in relation to straight leg raising while lying and sitting.
(b)Abdominal pain - Since 1993 accident – associated with keloid scar – episodic and no abdominal tenderness in evidence.
(c)Memory Loss - Complained of to Dr Roberts. Some difficulty in concentrating and remembering since the 1993 accident, and associated with the low back pain.
In assessing each of these conditions under the appropriate impairment table, the Tribunal, while mindful that Dr Baz's assessment was some 12 months or more after the assessment by Dr Roberts on 5 October 1999, places a greater emphasis on the contemporaneous assessment and data provided by Drs Singh and Roberts, and the Applicant's description of his difficulties. Accordingly the Tribunal finds that:
(a) In relation to the low back pain, the appropriate impairment rating is 10 points under Table 5.2 of the schedule 1B Impairment Tables, in that the Applicant had a loss of one quarter of normal range of movement of the lumbar-sacral spine as well as back pain with standing, driving and many physical activities. In arriving at such a finding the Tribunal has paid particular attention to the report and findings of Dr Roberts in so far as it relates to the low back and the radiological and CT scan reports of the lumbosacral spine as detailed by Dr Ho on 5 September 1999;
(b) In relation to the abdominal pain, the Tribunal concludes that this has a zero rating under Table 11 as the symptoms described are mild and episodic. The Tribunal relies upon the reports of Drs Singh, Roberts and Baz to support such a finding;
(c) In relation to the memory loss, the Tribunal concludes that this has a zero rating under Table 8 as it is evident from the meagre information available, that the Applicant only experiences minor difficulties in this regard;
(d) In relation to the presence of any psychiatric impairment at the operative period, the Tribunal does and must conclude that there is no evidence in either Dr Singh's report or Dr Robert's report of any psychiatric disability. Further the Tribunal notes that any psychiatric disability which was detailed in the clinical psychologist's report to the Applicant's solicitor as part of his compensation action following the accident in 1993 was described as reactive and in requirement of therapy. Accordingly on the evidence before it the Tribunal is unable to conclude as to whether there was in effect a psychiatric impairment during the operative period, let alone undertake a consideration as to whether a definitive diagnosis had been established or whether appropriate therapy had been given or was needed to be instituted. As such the Tribunal is unable to consider this issue any further.In summary the Tribunal concludes that the Applicant does have the following physical impairments of low back pain, abdominal pain and memory loss and that the combined impairment rating is assessed at 10 points under the appropriate Schedule 1B Impairment Table.
As a consequence of the Tribunal's finding of a combined impairment rating of 10 points, the Tribunal further finds that the Applicant did not qualify for disability support pension at the time of the review in October 1999, as the Applicant fails to satisfy subsection 94 (1)(b) of the Act.
In considering as to whether the Applicant has a continuing inability to work, pursuant to subsection 94 (2) of the Act, the Tribunal, in being mindful of the nature and combined impairment rating assessment of ten points and the opinions of Drs Roberts and Baz, concludes that the Applicant's impairments do not of themselves:
(a) prevent the Applicant from working in particular categories of work now or within two years; or
(b) prevent the Applicant from undertaking vocational, educational or on-the-job training programmes now or within the next two years; and
(c) such training is not unlikely (because of impairments) to enable him to do any work for at least 30 hours per week at award wages within the next two years.
In reaching such a finding, the Tribunal, while accepting that the Applicant has a reasonable command of written and spoken English, acknowledges that there remains motivational issues as well as particular barriers of entry, in that the Applicant has essentially not been in the work force in this country. The Tribunal recognises these as factors which do not of themselves fall within the ambit of consideration as to whether or not the Applicant qualifies for disability support pension.
In summary the Tribunal finds that the Applicant did not qualify for disability support pension on 11 October 1999, in that he failed to satisfy subsections 94 (1)(b) and 94 (2) of the Act.
determiniationThe Tribunal determines that the decision under review be affirmed.
I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of DR J CAMPBELL, Member
Signed: .....................................................................................
Associate
Date/s of Hearing 20 April 2001
Date of Decision 21 June 2001
Counsel for the Applicant Self-represented
Solicitor for the Respondent Ms H Schuster
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