Ly and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 90 (14 February 2011)

Last Updated: 14 February 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 90

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/1374

GENERAL ADMINISTRATIVE DIVISION		)
	Re		Vinh Long Ly

Applicant

And

Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs

Respondent

DECISION

Tribunal

Senior Member Jill Toohey

Date 14 February 2011

Place Sydney

Decision

The decision under review is affirmed.

...................[sgd]...........................
Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – back and neck pain – depression – alcohol dependence – hypertension – hepatitis B – hearing loss – whether conditions rated 20 points – back and neck conditions not fully treated and stabilised – minimal impact of other conditions on ability to function – no continuing inability to work – decision under review affirmed.

Social Security Act 1991 s 94

Social Security (Administration) Act 1999 ss 41, 42, sch 2

REASONS FOR DECISION

14 February 2011	Senior Member Jill Toohey
Background

1. Mr Ly seeks review of a decision by Centrelink to refuse his claim for a disability support pension (DSP).
2. To qualify for DSP, a person must have a physical, intellectual or psychiatric impairment which is of 20 points or more, according to the Impairment Tables in the Social Security Act 1991 (the Act), as well as a continuing inability to work: s 94 (1). Those criteria must be satisfied at, or within 13 weeks of, the application: Social Security (Administration) Act 1999, ss 41, 42, sch 2 cl 4 (1).
3. Mr Ly applied for DSP on 22 May 2009. On 10 June 2009, Centrelink found that his impairments rated 15 points only, and did not accept that he had a continuing inability to work.
4. Mr Ly requested a review of the original decision and on 17 December 2009 a Centrelink Authorised Review Officer again found he did not qualify for DSP. On 16 March 2010, the Social Security Appeals Tribunal (SSAT) reviewed Centrelink’s decision and decided that Mr Ly’s impairments rated 10 points only. On that basis, the SSAT affirmed Centrelink’s decision, considering it unnecessary to determine whether Mr Ly had a continuing inability to work.
5. On 9 April 2010, Mr Ly sought review of the SSAT’s decision. On 25 November 2010, before his application came to hearing, he lodged a new claim for DSP with Centrelink. That application has also been refused. Any review of that decision is not part of these proceedings. However, information about Mr Ly’s medical condition and his capacity to work at, and since, the time of his latest application throw light on his condition at the time of the application under review.

The issue

6. I have to decide whether, during the period 22 May 2009 to 21 August 2009, Mr Ly had:
   • (i) an impairment rating of 20 or more points; and
   • (ii) a continuing inability to work.
     
7. Centrelink does not dispute, and I accept, that Mr Ly had an impairment as defined in s 94(1)(a) of the Act during the relevant period.

The Impairment Tables

8. The Impairment Tables are criteria for assessing the severity of functional limitations for work related tasks and do not take into account the broader impact of a functional impairment in a societal sense: Introduction to the Impairment Tables.
9. To be rated on the Impairment Tables, a condition must be “a fully documented, diagnosed condition which has been investigated, treated and stabilised”. It must be permanent, meaning that it will more likely than not persist for more than two years. To be fully stabilised means it is unlikely to significantly improve, with or without reasonable treatment, within the next two years: Introduction to Impairment Tables.

Has Mr Ly an impairment rating of 20 or more points

10. Mr Ly claims DSP for lower back and neck pain, and depression. Medical reports refer also to hypertension, alcohol dependence, hearing loss and hepatitis B.

Lower back pain and neck pain

11. I accept that Mr Ly suffers from chronic back pain, as well as neck pain, and did so at the relevant time. According to Dr Malcolm La, his treating doctor in April 2009, he had chronic lower back and neck pain causing pain and stiffness, and numbness in his legs and arms, as well as middle back pain; he was unable to stand or sit for long and was unable to be gainfully employed. His treatment comprised analgesic and “specialist treatment” (which is not specified). Dr La noted that an operation could be expected if the condition became worse.
12. In April 2008 and September 2009, Mr Ly saw Dr Clive Sun, a consultant in rehabilitation and pain medicine in connection with a workers compensation claim. Dr Sun reported to Mr Ly’s solicitors in September 2009, confirming impairments to his back and neck, and persistent symptoms including weakness, poor lifting, dropping objects and difficulty with a range of daily activities.
13. Dr Sun reported that Mr Ly had an MRI in February 2009 but no specific treatment, and he was not on medication. He considered Mr Ly should be referred to a spinal surgeon and to a rehabilitation specialist for management, and said appropriate treatment would be “regular, non-opioid analgesic; purchase TENS [machine for pain relief] and wheat pack for use at home; physiotherapy or massage for aggravations; psychological pain management for ten sessions; access to heated pool and gym programme for six months; and spinal anaesthetic injections for symptom control”.
14. According to a Job Capacity Assessment on 2 June 2009, Mr Ly told the assessor that he did not attend “specialist review”, although he had done so previously in connection with a workers compensation claim. It is not clear from the assessor’s report whether Mr Ly had actually been referred for specialist treatment and, if so, what that treatment would entail.
15. Mr Ly gave evidence that he had not attended a pain management program. Nor had he seen a physiotherapist because he had tried it previously and physiotherapy had not helped, and so he did not take Dr Sun’s advice. He also said, and I accept, that he could not afford a number of the recommended forms of treatment.
16. The Job Capacity Assessor assessed Mr Ly’s neck and back conditions using Table 20 (Miscellaneous). She assigned NIL and 15 points respectively to his back and neck. The SSAT used Tables 5.1 (Spinal function – cervical spine) and 5.2 (Spinal function – thoraco-lumber-sacral spine) and assigned TEN and NIL points respectively.
17. The Secretary submits, and I agree, that Tables 5.1 and 5.2, and not Table 20, are the appropriate tables for Mr Ly’s neck and back. However, neither condition has been fully treated and stabilised and so cannot be regarded as permanent and cannot be assigned a rating.
18. I accept that Mr Ly cannot afford all the recommended treatments. Accessibility of treatment - including cost - is relevant to considering whether any further reasonable treatment is likely to lead to functional improvement within the next two years. If there is a compelling reason for a person not undertaking further treatment, it is reasonable to consider the condition stabilised: Introduction to the Impairment Tables para 6.
19. However, I am not satisfied that cost is a compelling factor here. Mr Ly has not yet seen a spinal specialist as recommended by Dr Sun. Nor has he seen a pain specialist. His primary reason for not attending physiotherapy is that he does not believe it will help. His back and neck conditions cannot be considered fully treated and stabilised and so cannot be assigned a rating.

Depression

20. Dr La reported in on 24 April 2009 that Mr Ly had depression which had a severe impact on his ability to function. Treatment was “specialist treatment”.
21. Dr Leo Tsang, psychiatrist, reported on 30 September 2010 that Mr Ly had adjustment disorder with depression which had been diagnosed on 8 April 2009. He reported that Mr Ly had consulted him in 2009 at which time he had prescribed mirtazepine (an anti-depressant). Dr Tsang’s handwritten notes are not easy to decipher but they appear to say that mirtazepine had helped at the time; current treatment was mirtazepine (“just prescribed”) and planned treatment was “monitoring response”. He reported that the effect of the condition on Mr Ly’s ability to function was “irritable mood”.
22. Mr Ly gave evidence that he had suffered from depression since he lost his job in 2008 and because of his continuing back and neck pain; he has to accept the pain because he cannot afford the medication prescribed and, when he took it, it made him feel worse. He saw Dr Tsang about three times in 2009 for his depression.
23. The evidence is that Mr Ly’s depression was not fully treated and stabilised at the relevant time. Even if it were, although Dr La reported it had a severe impact on Mr Ly’s ability to function, Mr Ly’s evidence suggests otherwise. Given his evidence that he continues to function and, in particular, was able to function quite adequately on his own during the relevant period and continues to have an active social life, his depression would attract a NIL rating: Table 6 (Psychiatric Impairment).

Alcohol dependence

24. Dr Tsang also reported in September 2010 that Mr Ly was drinking 10 to 15 beers, three to four times a week and could not cut down. He diagnosed Mr Ly as having adjustment disorder with depression, and alcohol abuse since April 2009, and recommended he reduce his drinking.
25. Mr Ly gave evidence that he drinks with others but not alone. His drinking does not appear to affect how he goes about his life and does not appear to have affected his ability to function appreciably at the relevant time. He does not want to cut down; he has not had counselling and does not wish to seek treatment. Allowing that he has alcohol dependence, it is not fully treated. In any event, the evidence is that it has no, or only minor, effects on his daily functioning which means it would attract a NIL rating: Table 7 (Alcohol and Drug Dependence)

Hypertension

26. On 9 April 2008, Dr Sun reported that Mr Ly suffered from hypertension. Dr Brian Nguy, general practitioner, reported on 6 October 2008 that Mr Ly had had hypertension since September 2006 and was being treated with medication. Dr La confirmed in a report on 1 October 2010 that Mr Ly had hypertension, which was apparently being treated with Noten and Olmetec.
27. Mr Ly gave evidence that he sometimes feels dizzy and unsteady, and sometimes has to sit to dress himself. However, assuming this is caused by his hypertension, there is no evidence that it had any appreciable effect on his ability to function at the relevant time or now. Allowing that it was fully diagnosed, treated and stabilised, it attracts a NIL rating (minor symptoms which are easily tolerated and have no appreciable effect on ability to work: Table 20 (Miscellaneous)

Hearing loss

28. Mr Ly told the SSAT that he had reduced hearing in his left ear. An audiogram on 27 May 2010 confirmed a 5.5% loss of binaural hearing. The cause is not clear and nor is it clear whether Mr Ly had the loss at the relevant time. It is not referred to in reports from his general practitioner, Dr Bui, and there is no evidence that it affects his capacity to function. Even allowing that it was fully diagnosed, treated and stabilised at the relevant time, a 5.5% loss of hearing attracts a NIL rating: Table 12 (Hearing Function).

Hepatitis B

29. Dr La reported on 1 October 2010 that Mr Ly has Hepatitis B which was being monitored but had minimal impact on his ability to function. It is not clear when it was diagnosed, but Mr Ly does not claim, and there is no evidence, that it affects how he functions. Again allowing that it was fully diagnosed, treated and stabilised at the relevant time, it attracts a NIL rating: Table 20 (Miscellaneous).

Conclusions

30. Mr Ly gave his evidence frankly and I accept it. I have no reason to doubt the reports from his medical practitioners. However, his claim for DSP is not supported by the medical evidence or Job Capacity Assessments. Those impairments that can be assigned a rating attract NIL points. Even if I agreed with the most generous Job Capacity Assessment, which I do not for the reasons outlined above, his impairments would not attract the necessary 20 points. It follows that his claim for DSP must fail.

Has Mr Ly a continuing inability to work

31. Because I find that Mr Ly’s impairments do not rate 20 points or more, it is not strictly necessary to decide whether or not he has a continuing inability to work. However, I will deal with this issue briefly.
32. For the purposes of qualifying for DSP, work means work that is for at least 15 hours per week on wages that are at or above the relevant minimum wage, and that exists in Australia, even if not within the person's locally accessible labour market: s 94 (4) of the Act.
33. The impairment must itself be sufficient to prevent the person from doing any work independently of a program of support within the next two years. It must be sufficient to prevent the person from undertaking a training activity within the next two years or such activity must be unlikely, because of the impairment, to enable the person to do any work independently of a program of support within the next two years. The availability of training activities or of work in the person’s locally accessible labour market are not factors to be taken in to account: s 94(2) and (3)
34. Over the course of Mr Ly’s applications, assessments of his present and future capacity to work by Centrelink job capacity assessors and by doctors have varied but none have indicated a continuing inability to work at any time.
35. Job Capacity Assessments on 17 October 2008, 22 May 2009 and 25 November 2010 all assess Mr Ly as capable of working for at least 15 hours per week within two years with intervention. Dr Sun reported on 16 September 2009 that Mr Sun was “keen for office and computer training to improve his redeployment options”, and Mr Ly believed he could work 20 hours per week. Dr Sun though that, provided suitable duties and workstation were available, Mr Ly was fit to work at that time for 20 to 30 hours a week.
36. The decision of the SSAT records that My Ly told that tribunal in March 2010 that he would like to work but did not know if he could do so, given his impairments; however he had some computer skills and said he was attracted to that sort of work; he would like to have his own business selling at a second hand market.
37. Before this tribunal, Mr Ly said he did not know if could work for 15 hours or more a week but he was willing to try, and he would undertake training if it was available. He said he could no longer do heavy work but light office work could be suitable. He would like to run his own business at a market, and agreed he could do so for 15 hours a week but he would need the money to do so.
38. Taking this evidence into account, I am not satisfied that Mr Ly has a continuing inability work.

Conclusion

39. At the relevant time, Mr Ly’s impairments did not rate 20 or more points and he did not have a continuing inability to work. He did not qualify for DSP. I affirm the decision under review.
    

I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Jill Toohey

Signed: ........................[sgd]........................................................

Diana Weston, Associate

Date of Hearing 3 February 2011

Date of Decision 14 February 2011

Applicant Self-represented

Solicitor for the Respondent George Lozynsky, Centrelink Advocacy Branch