Amai and Secretary, Department of Social Services (Social services second review)
[2021] AATA 937
•22 April 2021
Amai and Secretary, Department of Social Services (Social services second review) [2021] AATA 937 (22 April 2021)
Division:General Division
File Number: 2019/4066
Re:Julie Amai
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal: Senior Member P J Clauson AM
Date: 22 April 2021
Place: Brisbane
The reviewable decision is affirmed.
................[SGD]........................................................
Senior Member P J Clauson AM
Catchwords
SOCIAL SECURITY – disability support pension – multiple conditions – hearing loss – tinnitus – where assessment conducted without hearing aid – difficulties maintaining balance – shoulder condition – shoulder pain – where no applicable assessment under impairment table – decision under review affirmed
Legislation
Social Security Act 1991 (Cth)
Cases
Dixon and Secretary, Department of Social Services [2018] AATA 1087
Secondary Materials
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member P J Clauson AM
INTRODUCTION
On 7 February 2018, Julie Amai (the ‘Applicant’) applied for the Disability Support Pension (‘DSP’).[1]
[1] Exhibit 1, T-Documents, T9, 108.
On 20 April 2018, a decision was made by a delegate of the Secretary to reject the Applicant’s claim for DSP on the basis that she did not have an Impairment Rating of
20 points or more under the Impairment Tables.[2] The Applicant subsequently sought a review of that decision.[2] Exhibit 1, T-Documents, T11, 113.
On 24 April 2019, the decision under review was affirmed by an authorised review officer (ARO).[3] The ARO found that the Applicant’s Major Depressive Disorder with secondary panic attacks, tinnitus and hearing impairment and left shoulder condition were not fully treated and stabilised, and that the Applicant did not have any Impairment Rating of
20 points or more.[3] Exhibit 1, T-Documents, T15, 124-130.
The Applicant subsequently applied for review of the ARO’s decision to the Social Services and Child Support Division of the Administrative Appeals Tribunal (‘AAT1’). On 4 July 2019, the AAT1 affirmed the decision of the ARO.[4] The AAT1 found that:
(a)The Applicant’s mental health condition was not fully treated and stabilised;
(b)The Applicant’s shoulder condition was fully diagnosed, fully treated and fully stabilised but caused an impairment attracting zero points under Table 2 of the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (the ‘Determination’); and
(c)
The Applicant’s hearing loss and tinnitus were fully diagnosed, fully treated and fully stabilised but did not cause an impairment attracting 20 points under Table 11 of
the Determination.
[4] Exhibit 1, T-Documents, T2, 5-9.
On 8 July 2019, the Applicant applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) for a second review.[5]
[5] Exhibit 1, T-Documents, T1, 1-4.
On Friday 20 November 2020, a hearing was held. The Applicant was represented by Mr Matt Black of counsel, instructed by Legal Aid Queensland. The Respondent was represented by Ms Gillian Gehrke. The Applicant gave evidence before the Tribunal, as did Mr Allen Chen-Yao Lui, an audiologist called on behalf of the Applicant.
ISSUES
The question before this Tribunal is whether the Applicant qualified for DSP on
7 February 2018, or alternatively, at any time within a 13-week period from that date (the ‘Qualifying Period’). In order to determine that the Applicant did qualify for DSP within the Qualifying Period, the Tribunal must find:(a)That the Applicant had one or more physical, intellectual or psychiatric impairment(s);[6]
(b)That the Applicant’s condition(s) were:
(i)Fully diagnosed;
(ii)Fully treated; and
(iii)Fully stabilised;
(c)That the conditions caused impairment(s) which attracted an Impairment Rating of at least 20 points under the tables in the Determination;[7] and
(d)That the Applicant had a ‘continuing inability to work’.[8]
[6] Social Security Act 1991 (Cth), s 94(1)(a).
[7] Social Security Act 1991 (Cth), s 94(1)(b)
[8] Social Security Act 1991 (Cth), s 94(1)(c).
Additionally, if the Applicant’s Impairment Rating did not rise to a level of 20 points within a single table, the Tribunal must also determine whether the Applicant had met program of support requirements.[9]
[9] Social Security Act 1991 (Cth), s 94(2)(aa).
CONSIDERATION
As a preliminary matter, Mr Black did not press the Applicant’s mental health condition on the Applicant’s behalf. The Tribunal therefore does not consider it necessary to address that condition.
Ms Gehrke, for the Respondent, conceded that the Applicant’s hearing loss and tinnitus conditions were fully diagnosed, treated and stabilised within the Qualifying Period. The Respondent also conceded that the Applicant’s shoulder condition was similarly fully diagnosed, treated and stabilised.[10]
[10] Transcript of proceedings, P-6, ln 32.
It was common ground between the parties that the Applicant did not participate in a program of support.[11] That is not a criticism of the Applicant, but it does have the effect that, for the Applicant’s claim to be successful, she must have an Impairment Rating of
20 points or more under a single table within the Determination.[11] Transcript of proceedings, P-4, ln 24; P-6, ln 44.
As a result of those preliminary matters, the issues remaining for the Tribunal’s consideration are:
(a)Did the Applicant’s shoulder condition result in an Impairment Rating of 20 points or more under the Impairment Tables?
(b)Alternatively, was the Applicant’s hearing loss and tinnitus such that it resulted in an Impairment Rating of 20 points or more under the Impairment Tables? and
(c)If so, was the Applicant suffering from a continuing inability to work?
The Applicant’s shoulder condition
In his report of 15 May 2018, Dr Praveen Athota, the Applicant’s general practitioner, noted that the Applicant had a history of:[12]
“Left shoulder pain following injury. Ultrasound showed supraspinatus tendinosis and calcification with subacromial bursitis. Had steroid injection in the shoulder and the pain is well under control.”
[12] Exhibit 1, T-Documents, T12, 115.
A further medical certificate dated 18 May 2018 stated inter alia in relation to the shoulder condition:[13]
“- – - and left shoulder pain is fully treated, diagnosed and stabilised.”
[13] Exhibit 1, T-Documents, T13, 117.
Assessment of impairment: Table 2 – Upper Limb Function
The Tribunal considers that the appropriate Table to consider in relation to the Applicant’s shoulder condition for Impairment Rating purposes is ‘Table 2 – Upper Limb Function’ of the Determination.
Table 2 states:
Table 2 – Upper Limb Function
Introduction to Table 2
· Table 2 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of hands or arms.
· The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
· Self-report of symptoms alone is insufficient.
· There must be corroborating evidence of the person’s impairment.
· Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
- a report from the person’s treating doctor;
- a report from a medical specialist confirming diagnosis of conditions associated with upper limb impairment (e.g. arthritis or other condition affecting upper limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting upper limb coordination, inflammation or injury of the muscles or tendons of the upper limbs, amputation or absence of whole or part of upper limb);
- a report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;
- results of diagnostic tests (e.g. X-Rays or other imagery);
- results of physical tests or assessments.
· For the purposes of this Table upper limbs extend from the shoulder to the fingers.
Points
Descriptors
0
There is no functional impact on activities using hands or arms.
(1) The person can pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty.
5
There is a mild functional impact on activities using hands or arms.
(1) The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:
(a) picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);
(b) handling very small objects (e.g. coins);
(c) doing up buttons;
(d) reaching up or out to pick up objects.
10
There is a moderate functional impact on activities using hands or arms.
(1) The person has difficulty with most of the following:
(a) picking up a 1 litre carton full of liquid;
(b) picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);
(c) holding and using a pen or pencil;
(d) doing up buttons or tying shoelaces;
(e) using a standard computer keyboard;
(f) unscrewing a lid on a soft-drink bottle.
20
There is a severe functional impact on activities using hands or arms.
(1) Most of the following apply to the person:
(a) the person has limited movement or coordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional;
(b) the person has severe difficulty handling, moving or carrying most objects even when using or wearing any prosthesis or assistive device that they have and usually use;
(c) the person has difficulty using a computer keyboard despite appropriate adaptations;
(d) the person has severe difficulty using a pen or pencil;
(e) the person has severe difficulty turning the pages of a book without assistance.
30
There is an extreme functional impact on activities using hands or arms.
(1) The person is unable to perform any activities requiring the use of both hands or both arms.
The tables under the Determination (including Table 2) require corroborating evidence. Self-report of symptoms alone is insufficient. It is typical that the Tribunal would consider objective sources of information in verifying the extent of the Applicant’s impairment. In that regard, the evidence before the Tribunal regarding this condition is quite limited in scope. It consists of two medical certificates in near identical terms from Dr Athota dated three days apart,[14] and the comments of the Applicant herself in her statement dated 20 June 2020, relating to her life history and conditions.[15]
[14] Exhibit 1, T-Documents, T12, 115; T13, 117.
[15] Exhibit 5, Statement of Ms Julie Amai dated 25 June 2020.
The medical evidence from the reports of Dr Athota has already been noted earlier here as confirming that the condition at that time was fully diagnosed, fully treated and fully stabilised. However, no observation by Dr Athota was made or noted regarding any functional impact from this condition upon the Applicant.
The Applicant’s own evidence to this Tribunal was unable to assist a finding that the Applicant’s shoulder injury caused more than zero points of impairment.
This Tribunal considers that to be awarded a five-point impairment under the tables would have required the Applicant to have suffered from difficulty with most of the following:
(a)Picking up heavier objects (e.g. a 2-litre carton of liquid or carrying a full shopping bag);
(b)Handling very small objects (e.g. coins)
(c)Doing up buttons;
(d)Reaching up or out to pick up objects.
This Tribunal is possessed of no compelling independent or corroborating evidence as outlined above to suggest that during the Qualifying Period, the Applicant’s shoulder condition could be assigned an Impairment Rating greater than zero points. The Applicant’s self-reporting to the Employment Services Assessor regarding “left shoulder pain” and “issues with manual dexterity” does not settle anywhere within the Descriptors for Table 2.[16]
[16] Exhibit 1, T-Documents, T14, 119-121.
The Tribunal therefore decides that in consideration of the evidence available to it, that the Applicant’s shoulder condition does not attract any points under Table 2 of the Determination relative to the Qualifying Period.
The Applicant’s hearing condition
It has already been observed that the Respondent accepts that the Applicant’s hearing loss and tinnitus conditions were fully diagnosed, treated and stabilised during the Qualifying Period. The Respondent relied upon the completed questionnaire by Allen Chen-Yao Liu, for Basic Rights Queensland, dated 14 June 2019 to reach this conclusion.[17]
[17] Exhibit 1, T-Documents, T18, 141.
Given this concession, the Tribunal is only required to decide what level of impairment these conditions impose upon the Applicant pursuant to the application of Table 11 – Hearing and Other Functions of the Ear and what, if any, points rating is attracted by these conditions.
Evidence of the effect upon the Applicant of her hearing conditions
The Applicant contends in her Statement of Facts, Issues and Contentions (SFICs) that she suffers from a 100% loss of hearing in the right ear, a 70% loss of hearing in the left ear and tinnitus of a continuing nature.
The Applicant relied upon the report of Allen Chen-Yao Liu to support these contentions.[18] The Applicant’s counsel also called the audiologist and led evidence from his report. In his evidence-in-chief, Mr Liu confirmed the hearing loss in both ears by reference to an audiogram test conducted on 8 April 2019 and with results recorded in a data report printed on 14 June 2019.[19] His evidence was that the Applicant was, according to the data report, suffering from “a profound hearing loss” in the right ear which indicated that there was no hearing at all in that organ and in the left ear there was approximately a 60% to 70% hearing loss.[20]
[18] Ibid.
[19] Exhibit 1, T-Documents, T18, 147.
[20] Transcript of proceedings, P-23, ln 10-25.
Mr Liu was questioned in relation to the Applicant’s tinnitus condition based upon the Tinnitus Reaction Questionnaire (TRQ) dated 5 June, 2019.[21]
[21] Exhibit 2, T-Documents, T18, 146.
Mr Liu explained that there was no objective test to measure tinnitus and that professionals who worked in the audiology and aural medicine fields had to rely upon the self-reporting of the sufferer to try and establish the volume, pitch and general severity of the condition. Mr Liu also told the Tribunal that the TRQ was weighted more towards assessing “the psychological or emotional side of things”.[22] In answer to a question from the presiding Senior Member as to whether tinnitus could be related to stress and anxiety, Mr Liu responded that:[23]
“… It’s a very common thing to have that report, so usually people report more severe tinnitus usually at night when it’s quiet and when they’re tired, or definitely anxiety is one of the things that comes with tinnitus as well, and often it’s in what we call a positive feedback loop. Anxiety can cause tinnitus and it compounds into anxiety; they can go usually hand in hand.”
[22] Transcript of proceedings, P-23, ln 40-47.
[23] Transcript of proceedings, P-24 ln 28-33.
The Applicant’s evidence-in-chief to the Tribunal was that her tinnitus in her left ear caused her difficulties and that she suffered difficulty in keeping focused, maintaining concentration and had balance problems. She described her balance problems in the following terms: [24]
“When you said “balance problems”, could you just tell the Tribunal what you meant by that question? – - – Well, I have quite a bit of difficulty walking down steps, walking up steps, in the shower, those types of things, anything where obviously you need your balance for. I need to use handrails, et cetera, those types of things. I don’t feel very confident in myself to be able to walk a flight of stairs without holding onto something – yes, that’s about how I can explain it.”
[24] Transcript of proceedings, P-9 ln 25.
The Applicant’s evidence indicates that she has some difficulties with balance. Nonetheless, the Applicant’s evidence did not go so far as to suggest that she has continual difficulty with balance. Her evidence highlighted examples of situations in which a person might feel less balanced than usual because of a slippery floor, or because their weight shifts whilst climbing or descending stairs. She did not say, for example, that she had difficulties standing unaided, or that she regularly had to sit down to avoid dizziness.
The conclusion that the Applicant suffers from at least occasional, but less than continual balance difficulties is further supported by the Applicant’s evidence before the AAT1, in which she indicated that she did not require mobility aids for balance and was able to drive. Mr Black, for the Applicant, took the Applicant to other areas of the AAT1’s decision that the Applicant disagreed with, but the contention that she could not drive and did not require mobility aids was left unchallenged.
When asked about her driving a motor vehicle, she stated that she did not drive since moving to Bundaberg in 2019.[25] However, she is recorded as telling the AAT1 hearing on
4 July 2019 that she was still driving. When questioned on this point, she responded that it was “very rarely”.[26] It is clear however, that, at least during the Qualifying Period, she was driving her motor vehicle. She also confirmed that at the time of the lodgement of her claim, she did not require any mobility aids for balance.[27][25] Transcript of proceedings, P-18 ln 11.
[26] Ibid, ln 16.
[27] Ibid, ln 22.
The Applicant was asked by her counsel about the reference in her statement dated
25 June 2020,[28] to her problems at work. She confirmed that the section referred to a period following her brain surgery procedure in 2003 and the onset of the tinnitus from that point in time. She says she was told by her audiologist that “- – - I would just have to live with it”.[29] She agreed that the tinnitus was becoming a problem at work because she could not hear people properly, take directions from superiors and would miss some parts of a conversation with patients when taking details over the phone.[30] She told the Tribunal that she last worked in 2015.[31][28] Exhibit 5, Statement of Ms Julie Amai dated 25 June 2020.
[29] Ibid, [115].
[30] Transcript of proceedings, P-18, ln 19-23.
[31] Ibid, ln 25.
The Applicant’s counsel, in examination-in-chief, took the Applicant through part of the AAT1 Decision which related to her tinnitus and the effects it had upon her functioning. She agreed that the hearing aid in her left ear quietens the tinnitus somewhat, that she does have communication difficulties at times, that she could hear traffic and loud noises with a hearing aid in, but that she couldn’t tell from which direction they were coming.[32] She confirmed that, as she did at the AAT1 hearing, she was using a four speaker arrangement to participate in the hearing before this Tribunal.
[32] Transcript of proceedings, P-11, ln 10-37.
The Applicant’s counsel asked her about the comment by the AAT1 in that Decision where it says therein:
“Ms Amai testified that she reads a lot and the tinnitus does not affect her ability to concentrate and read books on psychology or self- help, in which she as a keen interest.”
The Applicant commented upon that in the following terms:[33]
“I don’t know that I testified and said that. I do remember saying that I was asked what I do with my day and I said that I, you know, read psychology books because that’s an interest to me. And self-help books, I mean, I was in a terrible marriage and in a very bad way and my Psychologists at the time were telling me to read these books to make me feel better. But, you know, my concentration levels are such I can’t read a book for 8 hours a day. You know, I can read to soothe things, to make myself feel better, but I don't – I don't, you know, read them constantly non-stop. If you understand that.”
[33] Ibid, ln 43ff.
The Tribunal finds that her comments to it in this hearing are really a confirmation that she does read material of interest to her, but not for eight hours at a time. The Tribunal considers this to be in line with what concentration most individuals would be able to apply in a pastime such as reading. The Applicant’s evidence on this point to this Tribunal was thus generally in accord with her evidence as recorded in the Decision of the AAT1.
The Applicant was cross-examined by Ms Gehrke on several aspects of her conditions. The Applicant confirmed that she had completely lost hearing in her right ear at about the age of 2½ years as a result of viral meningitis,[34] and had been left with partial hearing in the left ear following a surgical procedure on the brain.[35] She also confirmed that the tinnitus had set in following that surgery.
[34] Transcript of proceedings, P-12, ln 32.
[35] Transcript of proceedings, P-13, ln 16.
The Applicant agreed that she had undergone surgery for issues with her shoulders sometime after she had recuperated from the brain surgery. She also told the Tribunal that her orthopaedic surgeons at the Southport Hospital had told her that continuing to engage in repetitive type work she would be bound to cause more damage to the shoulder. The Applicant was therefore unable to continue her part-time employment as a night filler at Coles and subsequently went on and completed a medical receptionist course.
During 2005, the Applicant worked for two separate medical practices at Sunnybank and Annerley respectively, until the position at the Annerley centre was made permanent.[36] This was the position that she held until December 2015.[37]
[36] Exhibit 5, Statement of Ms Julie Amai dated 25 June 2020, [107].
[37] Ibid, [130].
The Applicant reiterated her claim in her statement that over time her tinnitus was becoming louder and her shoulder pain was continuing. She confirmed that she was having problems with a superior at work.[38]
[38] Ibid, [117].
The Applicant also confirmed that she was having a difficult time at work with bullying and although she was seeking other positions and experiencing difficulties in doing so, continued with her employment as she felt she was fortunate to be in her employment:[39]
“Now, at paragraph 110 you state that over time you noticed your tinnitus was getting louder and you had continuing pain in your shoulder. You were also having problems at work with your supervisor at that time, is that correct? – - – Yes, that’s correct.
Yes, okay. And at paragraph 121 you stated that you believed you were lucky to have the job and so you just sucked it up. Am I correct in stating that it was difficult but you were able to continue to do the job? – - – Sorry, I missed that. What – sorry.
Okay. So at paragraph 121 of your statement you say,
“I believed I was lucky to have the job I did and just sucked it up.”
Are you referring to the fact that there was bullying in the workplace and you were having some health difficulties but you just sucked it up and continued to do the job? – - – Well, in a sense yes. What – what I was – at that point this particular supervisor was absolutely horrendous. The clinic itself had – was having a major takeover of another company that were coming in to take over the every-day runnings of the practice. And I, of course, with this supervisor, I’d been putting up with this rubbish from her for almost three years. Just – it was – it was absolutely awful. And I had applied for other positions. On applying for those positions, having to state my – you know, hearing and what was going on with me, you know, being suitably qualified but being told, ‘Look, sorry, with your hearing problems we can’t take that risk to employ you.’ so that’s where I was saying I was lucky to have the job I had.”
[39] Transcript of proceedings, P-14, ln 10-35.
The Applicant’s marriage ended in March 2015 and she was still experiencing bullying at work, circumstances which she confirmed to the Tribunal in evidence.[40] This also was confirmed in her statement.[41]
[40] Transcript of proceedings, P-14, ln 22-43.
[41] Exhibit 5, Statement of Ms Julie Amai dated 25 June 2020, [115]-[121].
She also told the Tribunal that in addition to the bullying at work, she had to cope with the issue of her tinnitus and had seen an audiologist a number of times during this period. However, she managed her role at work which involved a number of activities including answering telephones, booking appointments, and dealing with patients upon their arrival. She also undertook other administrative duties which were not front desk activities.[42] The Applicant confirmed these duties were included in her role.[43]
[42] Ibid, [127]-[128].
[43] Transcript of proceedings, P-14, ln 45ff.
The Applicant’s evidence is that she stopped working in December 2015 following a serious bullying incident by her supervisor in front of her colleagues. Following this event, she immediately left her place of work and consulted her medical practitioner who advised her that she was suffering a breakdown.
When cross-examined by Ms Gehrke, the Applicant said that she stopped work primarily because of the bullying and that she was suffering from what she agreed was the compounding effect of bullying, a violent marriage, financial problems, and trying to find suitable employment for a person with her medical condition.[44]
[44] Transcript of proceedings, P-15, ln 8.
The Applicant, when describing the nature of the tinnitus when she is not wearing her hearing aid, told the Tribunal that it was always affecting her and she had it whether she wore her hearing aid or not. She stated that she felt like she was shouting over the tinnitus noises when she spoke. She stated that the various noises of the tinnitus were such that “they consume me all the time” and that “these noises run in conjunction with each other.”[45] The Applicant told the Tribunal that it was “there all the time” and that “It’s loud, it’s annoying, it’s continuous. It’s just there all the time.”[46] She also indicated that when under stress or when anxious, the tinnitus levels seem to be higher.
[45] Transcript of proceedings, P-16, ln 29-30.
[46] Transcript of proceedings, P-16, ln 43-44.
The Applicant indicated that she did not choose to use the phone often and preferred to text or email people who know that she preferred to communicate with them in that manner.[47] Thus, she had no need to use a caption telephone. During the course of the hearing, the Applicant was observed not to have many difficulties with her use of the amplified telephone and did not require any great number of questions or segments of conversation to be repeated for her. She also confirmed that she did not need to use sign language.[48]
[47] Transcript of proceedings, P-17, ln 44-47.
[48] Transcript of proceedings, P-18, ln 5.
Assessment of the Impairment: Table 11 – Hearing and other Functions of the Ear
The appropriate Impairment Table within the Determination to rate the functional impairment of the Applicant’s hearing conditions is Table 11 – Hearing and other Functions of the Ear.
Table 11 states:
Table 11 – Hearing and other Functions of the Ear
Introduction to Table 11
· Table 11 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving hearing (communication) function or other functions of the ear (e.g. balance).
· The diagnosis of the condition must be made by an appropriately qualified medical practitioner with supporting evidence from an audiologist or Ear, Nose and Throat (ENT) specialist.
· Self-report of symptoms alone is insufficient.
· There must be corroborating evidence of the person’s impairment.
· Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
- a report from the person’s treating doctor;
- a report from a medical specialist (e.g. an ENT specialist or neurologist) confirming diagnosis of conditions associated with hearing impairment or other impaired function of the ear (e.g. congenital deafness, presbyacusis, acoustic neuroma, side-effects of medication, Meniere's disease or neurological conditions including Multiple Sclerosis);
- results of audiological assessment undertaken by a fully qualified audiologist or ENT specialist.
· Table 11 should be applied with the person using any prescribed hearing aid, cochlear implant or other assistive listening device that they usually use.
· If the person uses recognised sign language or other non-verbal communication method as a result of hearing loss only, the person’s hearing and communication function should be assessed using Table 11.
Points
Descriptors
0
There is no functional impact on activities involving hearing (communication) function or other functions of the ear.
(1) The person:
(a) can hear a conversation at average volume in a room with an average level of background noise (e.g. other people talking quietly in the background); and
(b) does not have to turn the television volume up louder than others in the household to hear clearly; and
(c) the person does not need to use a hearing aid, cochlear implant or other assistive listening device.
5
There is mild functional impact on activities involving hearing (communication) function or other functions of the ear.
(1) The person:
(a) has some difficulty hearing a conversation at an average volume in a room with background noise (e.g. other people talking quietly in the background); and
(b) may use a hearing aid, cochlear implant or other device; and
(c) has difficulty hearing conversations when using a standard telephone, particularly in a room with background noise; or
(2) The person has occasional difficulty with balance (e.g. occasional dizziness) or ringing in the ears which occasionally interferes with communication ability or routine activities due to a medically diagnosed disorder of the inner ear (e.g. Meniere’s disease, or tinnitus).
10
There is a moderate functional impact on activities involving hearing (communication) function or other functions of the ear even when using a hearing aid, cochlear implant or other assistive listening device; or sign language interpreting is required.
(1) The person:
(a) has difficulty hearing a conversation at average volume in a room with no background noise; and
(b) the person has to use a telephone with a T switch and has occasional difficulty with some words ; and
(c) is partially reliant on lip-reading or a recognised sign language (e.g. Auslan), that is, the person needs to lip‑read or watch a sign language interpreter in some situations where background noise is present or needs to have parts of conversations clarified or repeated using lip-reading or recognised sign language; or
(2) The person has more frequent difficulty with balance (e.g. has to sit down or hold on to a solid object) or ringing in the ears which interferes with communication ability or routine activities, due to a medically diagnosed disorder of the inner ear (e.g. Meniere’s disease or tinnitus).
20
There is a severe functional impact on activities involving hearing (communication) function or other functions of the ear even when using a hearing aid, cochlear implant or other assistive listening device or technology or sign language interpreting.
(1) The person:
(a) has severe difficulty hearing any conversation even at raised volume in a room with no background noise (that is, is unable to hear someone speaking to them in a loud voice, or is not able to hear someone shouting a warning (e.g. ‘Look out!’)); and
(b) is unable to hear sounds needed for personal or workplace safety (e.g. a smoke alarm, fire evacuation siren, or car or truck horn); and
(c) is reliant on captions to follow a television program or movie; and
(d) needs to use a captioned telephone; and
(e) is completely reliant in all situations on a recognised sign language (e.g. Auslan), lip reading, other non verbal communication method (e.g. note taking) to converse with others; or
(2) The person has continual difficulty with balance (e.g. the person has continual dizziness or has to sit down or hold on to a solid object) or continual ringing in the ears that interferes with hearing, due to a medically diagnosed disorder of the inner ear (e.g. Meniere’s disease or tinnitus).
30
There is an extreme functional impact on activities involving hearing (communication) function or other functions of the ear even when using a hearing aid, cochlear implant or other assistive listening device.
(1) The person:
(a) is unable to hear anything at all; and
(b) has limited or no ability to understand a recognised sign language (e.g. Auslan).
Mr Liu, the audiologist called for the Applicant, assessed the Applicant and produced a report dated 8 April 2019. [49] In undertaking the tests on which that report relied, he assessed the Applicant without using her hearing aid.[50] His conclusion that the Applicant suffers a 60% to 70% loss of hearing must be viewed in the context that the Applicant was not wearing her hearing aid at the time of testing. It is to be noted that for the purposes of corroborating an Impairment Rating of 10 points or more under Table 11 of the Determination, tests of this type are to be conducted with the subject wearing their hearing aid(s).
[49] Exhibit 1, T-Documents, T18, 147.
[50] Transcript of proceedings, P-25, ln 10-11.
Mr Liu told the Tribunal that wearing a hearing aid may help some people to mask their tinnitus but it had varied from person to person and upon how severe or mild that tinnitus may be. If a person suffered from severe tinnitus, it was therefore difficult to assess. Mr Liu stated that sometimes the sound presented during testing to a tinnitus sufferer could be similar to the sound of the tinnitus and that was why in such a case there could often be an effect on the test results.[51]
[51] Transcript of proceedings, P-25, ln 27-41.
In the course of his cross-examination by Ms Gehrke, Mr Liu was taken to his impairment assessment of the Applicant under Table 11 in his report of 14 June 2019.[52] In that assessment, he had assessed the Applicant’s impairment to her hearing at 20 points and provided reasons as to why he believed this was an appropriate rating.
[52] Exhibit 1, T-Documents, T18, 145.
Mr Liu, in his description of paragraph 1(b) of the 20-point criteria as it applied to the Applicant, wrote:[53]
“(b)Talking on the phone for Julie is very difficult to understand the person on the other end. She sometimes has to use Bluetooth speakers for more amplification in an attempt to hear clearer.”
[53] Ibid.
However, he agreed with Ms Gehrke that the Descriptor 1(b), as worded in the Table 11 and set out as follows:
“Descriptor 1(b) – The person … is unable to hear sounds needed for personal workplace safety (e.g. a smoke alarm, fire, evacuation siren, or car or truck horn)…”
was not reflective of his description of the Applicant’s impairments relative to that descriptor. The Applicant was capable of talking and being able to hear others on the telephone and thus she did not meet an essential descriptor which relates to the person’s being able to hear sounds needed for personal or workplace safety.[54] He agreed that Ms Amai did not meet Descriptor 1(b).
[54] Transcript of proceedings, P-27, ln 36.
Likewise, in relation to the Descriptor 1(e), the terms of which are stated as follows:
“1(e)The person is completely reliant on all situations on a recognised sign language (e.g. Auslan), lip reading, other non-verbal communication method (e.g. notetaking) to converse with others;… ”
Mr Liu agreed that his answer to this description was that “[The Applicant] reported that she is not good at lip reading and does not know any sign languages.”[55]
[55] Transcript of proceedings, P-28, ln 4.
Mr Liu conceded that his view now was that as the Applicant could speak on a telephone albeit with some difficulty, that she could not be said to be completely reliant on non-verbal communication methods and thus was unable to meet the Descriptor 1(e).[56]
[56] Ibid, ln 10-11.
In relation to Descriptor 2 of Table 11 which states:
“(2)The person has continual difficulty with balance (e.g. the person has continual dizziness or has to sit down or hold onto a solid object) or continual ringing in the ears that interferes with hearing, due to a medically diagnosed disorder of the inner ear (e.g. Meniere’s Disease or tinnitus).”
Mr Liu agreed that the Applicant reported severe tinnitus which interfered with her hearing and caused a lot of distress. He agreed that he relied upon the TRD score of 97 when forming his view on this point. He told the Tribunal when asked by Ms Gehrke, that he did know that the Applicant had a mental health condition and that he thought it was depression.[57]
[57] Ibid, ln 22-32.
Ms Gehrke asked Mr Lui whether he accepted the Applicant’s responses in the TRD to those questions relating to the effects of tinnitus upon her. Mr Lui had stated those answers in the following terms:
“The tinnitus has made me unhappy, it’s made me feel depressed, has driven me crazy, has led me to think about suicide, made me feel panicky –“.
Mr Liu replied that it could have been due to her mental health condition or the tinnitus. He stated that he was unable to answer that as he was only looking at the tinnitus and that it was difficult to separate them. He did, however, concede that although hard to separate one from the other and that it was often treated collectively, it could have been possible for the Applicant when answering the TRD to have framed her responses as they were, due to her mental health condition and not solely by the effect of the tinnitus.[58]
[58] Ibid, P-28, ln 34ff.
Mr Liu was also asked his opinion regarding some aspects of the audiometry report prepared by the audiologist, Mr Selvanathan on 6 February 2018.[59] He confirmed that he agreed with the statement in the report that:
“PTA results show severe sensory neural hearing loss in the left ear and profound hearing loss in the right ear.”
[59] Exhibit 1, T-Documents, T8, 75-76.
Mr Liu also agreed broadly with the section of the report that indicated that:
“Given the sensorineural hearing and good speech discrimination in left ear, potential benefits of aiding were discussed by cross-devices as an option, and I considered that aiding with Bicros devices will be of great benefit for her current ear lateral loss.”[60]
[60] Ibid, 75.
He did, however, indicate that he may disagree with the report where it stated:
“Speech audiometry reveals excellent speech discrimination at appropriate level of amplification only in left ear.”
His view was that because there was only one point on the test which reached 100% at
100 decibels, the maximum, but did agree that with the appropriate level of amplification, the hearing in the Applicant’s left ear would improve.[61][61] Transcript of proceedings, P-30, ln 4-6.
The Applicant was fitted with a Bicros hearing aid to her left ear on 22 February 2018 as recommended by Mr Selvanathan. Mr Liu agreed that this was the recommended remediation step as suggested by Mr Selvanathan. He also agreed with the review of the hearing aid’s effectiveness for the Applicant conducted on 13 March 2018 by Mr Selvanathan which stated under the heading “Benefits or Problems” that:
“The client was satisfied with the hearing aids (sic) while watching TV, communication at home, distant speech at (sic) quite (sic) environment and small group conversations.”
and that the Applicant’s loss of hearing was improved with the use of the hearing aid.[62]
[62] Exhibit 2, Supplementary T-Documents, ST2, 10.
Mr Liu further agreed that, under the heading in the same document, “Speech Test” that the words:
“AB word list was used to find out the aided and unaided speech score. The unaided speech scores were 50% and the aided scores were 100%.”
indicated that when wearing the hearing aid, the Applicant had a 100% or perfect word recognition. Mr Liu also confirmed that the audiometry report of 8 April 2019 reflected the Applicant’s hearing without the assistance of her hearing aid and that no objective evidence existed in the material which would indicate the level of hearing loss when the Applicant was wearing her hearing aid. He agreed that a review of the Applicant’s hearing conducted on 9 April 2019 with the hearing aid being worn did indicate that the Applicant’s hearing loss had improved when using the hearing aid.[63]
[63] Ibid, 14.
Mr Liu was asked by Ms Gehrke about his rating of the Applicant’s hearing impairment under Table 11 at 20 points and whether he still agreed with that rating given his report of 14 June 2019.[64] He indicated that in light of the evidence elicited from him at the hearing, and, how the application in Table 11 of the Descriptors required to be met for a 20 point rating had to be applied to the Applicant’s impairments, he now agreed that a 20 point rating was unable to be applied.
[64] Ibid, 10.
He agreed that he had assessed the Applicant’s condition with her hearing aid being worn, however, now conceded that given his evidence to the Tribunal in relation to Descriptor 1, the Applicant was unable to meet the 20 point descriptor required. In particular, she was unable to, on his evidence, meet the Descriptors at 1(b) or 1(e) to attain a 20-point Impairment Rating. Given this, it would then be necessary for a 20-point Impairment Rating to be attained for the Applicant’s impairment to fall within the parameters of Descriptor 2 in the alternative.
Mr Liu agreed that this was so. He then further agreed that the fitting of a hearing aid to the Applicant on 22 February 2018 had resulted in an improvement to the Applicant’s speech test score of 50% as reported by Mr Selvanathan on 8 April 2019,[65] and a speech test score of 100% when wearing her hearing aid as reported on 13 March 2018[66] by Mr Selvanathan. He agreed further as a consequence, that it could not be said that her tinnitus had such a severe functional impact upon the Applicant’s hearing so as to warrant a 20 point Impairment Rating for that condition under Descriptor 2 of Table 11.[67]
[65] Ibid.
[66] Ibid, 10.
[67] Transcript of proceedings, P-33, ln 4-14.
There is some valuable guidance on this point provided by Member Hayman in the matter of Dixon and Secretary, Department of Social Services [2018] AATA 1087. In that matter, a discussion relating to the manner in which the Descriptors within Table 11 were designed to be applied for a 20 point rating to an Applicant’s hearing impairment indicated that the Table should in each case be viewed and applied “as a consistent and organised structure”[68] and that:
“In the individual case of Table 11, it is first apparent that the chapeau of each box must be met – In the 20-point case, the functional impact on hearing (in this instance) must be severe. This means, for example, that the degree of hearing interference from tinnitus under paragraph 2 must approximate the hearing loss set out in paragraph (1) of that box.”
[68] Dixon and Secretary, Department of Social Services [2018] AATA 1087, [49].
Based on that view, which the Tribunal accepts, it is clear that the Applicant’s tinnitus is not of such severity so as to interfere with the ability of the Applicant to hear, with the aid of hearing devices, to the extent required by the descriptors in Table 11.
The Tribunal also noted that the Applicant was able to participate in the hearing without any excessive need for questions to be repeated or voices to be raised for her and had no difficulty with speech in any of her responses. It is noted by the Tribunal that she utilised her hearing aid and an amplified telephone during the proceedings, however, given the Applicant’s condition, this would not be exceptional in the circumstances. Further, the Applicant does not require the use of a caption telephone and does not use or know how to or use lip reading or signing. It is the finding of the Tribunal that given the evidence regarding the Applicant’s hearing condition, it is unable to assess the Applicant’s hearing condition as amassing a 20-point rating under Table 11 of the Ministerial Determination.
That is not to say, however, that the Applicant does not obtain an impairment rating. Having regard to Table 11, the Tribunal is satisfied that the Applicant attracts five points of impairment under the Table, insofar as she suffers from at least occasional balance issues which interfere with routine activities such as showering or using stairs.
It may well be the case that, during the Qualifying Period, the Applicant suffered from a moderate (rather than mild) impact under Table 11 which would otherwise attract a 10-point rating. Her evidence that she has difficulties in respect of routine activities would lend support to such a conclusion. However, as the Tribunal has observed, Table 11 requires corroborating evidence beyond that which an applicant provides. The assessment by Mr Liu was conducted without the Applicant’s use of a hearing aid in her left ear, and accordingly, the Tribunal cannot reasonably be satisfied of the existence of a moderate impairment within the meaning of Table 11.
Does the Applicant suffer an Impairment Rating of 20 points?
It follows from the foregoing paragraphs that the Applicant suffered, during the Qualifying Period, from five impairment points. The Applicant does not meet the 20 points required under s 94(1)(b) of the Act.
Continuing inability to work
Because the Applicant’s conditions do not satisfy the requirement under s 94(1)(b) of the Act, it is not necessary for the Tribunal to consider whether the Applicant had a continuing inability to work in the Qualifying Period under s 94(1)(c) of the Act.
Because the Applicant has failed to meet the requirements enunciated in the preceding paragraph within the Qualifying Period, the Respondent’s decision to reject the Applicant’s claim for DSP is the correct and preferable decision.
DECISION
The decision under review is affirmed.
I certify that the preceding 78 (seventy-eight) paragraphs are a true copy of the reasons for the decision herein of
.........[SGD]...............................................................
Associate
Dated: 22 April 2021
Date(s) of hearing: 20 November 2020 Date final submissions received: 20 November 2020 Counsel for the Applicant: Mr Matt Black Solicitors for the Applicant: Legal Aid Solicitors for the Respondent: Ms Gillian Gehrke
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