Bloch and Secretary, Department of Social Services
[2014] AATA 212
•11 April 2014
[2014] AATA 212
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/4266
Re
Lisa Bloch
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member Date 11 April 2014 Place Sydney The decision under review is set aside and in substitution the Tribunal decides that the Applicant satisfied s 94(1)(a), (b) and (c) of the Social Security Act 1991 and accordingly qualified for Disability Support Pension as at 13 June 2012.
.................[sgd]....................................................
Ms N Isenberg, Senior Member
CATCHWORDS
SOCIAL SECURITY – pensions – disability support pension – physical impairment – permanent conditions – whether the Applicant had an impairment rating of 20 points or more under the impairment tables – whether the Applicant had a “continuing inability to work” – decision under review set aside
LEGISLATION
Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005
Social Security Act 1991 ss 26, 94
Social Security (Administration) Act 1999 ss 80, 118
CASES
Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Re Choroszynski and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 830
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 ss 6, 8, 9
REASONS FOR DECISION
Ms N Isenberg, Senior Member
11 April 2014
DECISION UNDER REVIEW
Centrelink decided on 13 June 2012 that that Applicant, Lisa Bloch, was no longer eligible to receive the disability support pension (“DSP”). That decision was affirmed on internal review and by the Social Security Appeals Tribunal (“SSAT”). The Applicant now seeks review of the decision.
BACKGROUND
The Applicant was born in 1965. Until her DSP was cancelled on 13 June 2012, she had been in continuous receipt of the DSP since November 1993.
Following a review of the Applicant’s circumstances initiated on 13 January 2012, Centrelink decided on 13 June 2012 that the Applicant was no longer eligible to receive the DSP. The decision was made on the basis that the Applicant’s total impairment rating was less than 20 impairment points.
LEGISLATION AND POLICY
The power to cancel the Applicant’s DSP is contained within s 80 of the Social Security (Administration) Act 1999 (“Administration Act”) which provides that the Secretary may determine that a social security payment be cancelled if it is paid to a person who is not qualified for that payment. Such a decision is an “adverse determination” within the meaning of s 118(13) of the Administration Act, which provides that such an adverse decision takes effect “on the day on which it is made”.
The relevant law is contained in:
·the Social Security Act 1991 (“the Act”) and the Administration Act;
·the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011; and
·the Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005.
DSP Criteria
The entitlement to the DSP is conferred by s 94 of the Act, which relevantly provides:
94 Qualification for disability support pension
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person’s impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
…
The Respondent conceded that, should the Tribunal find that the Applicant meets other qualification criteria for DSP, the Applicant has a continuing inability to work and satisfies s 94(1)(c)(i) of the Act.
Impairment Tables
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Impairment Tables Determination”) is made under s 26(1) of the Act. The Impairment Tables Determination commenced on 1 January 2012.
Section 6 of the Impairment Tables Determination sets out rules for assessing the level of functional capacity and assigning impairment ratings, including an assessment of the functional impact of pain.
Subsection 6(1) clarifies that a person’s impairment must be assessed taking into account the person’s abilities and not what they choose to do or not to do or what they are accustomed to having another person do for them in spite of their potential capability to do those things.
Subsection 6(3) is a rule stating that an impairment rating can only be assigned to an impairment, if the person’s condition causing that impairment is permanent (in line with subsection 6(4) of the Impairment Tables Determination) and the impairment that results from that condition is, in light of the available evidence, more likely than not to persist for longer than two years.
Therefore, if the Applicant’s condition causing impairment is not “permanent”, the impairment resulting from this condition cannot be assigned an impairment rating. This rule also means that even if the Applicant’s condition causing the relevant impairment is “permanent” but the impairment resulting from that condition is not likely to last for more than two years, the impairment cannot receive a rating under the Impairment Tables.
Subsection 6(4) defines the meaning of “permanent” for the purposes of subsection 6(3). A condition is permanent if it has been fully diagnosed by an appropriately qualified medical practitioner, has been fully treated and fully stabilised and the condition, is more likely than not, in light of available evidence, to persist for more than two years.
Under s 6(5), in determining whether a condition is fully diagnosed and fully treated, it is to be considered: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years.
Subsection 6(6) defines “fully stabilised” for the purposes of the Impairment Tables Determination. A condition is fully stabilised when a person has undertaken reasonable treatment for the condition, and it is considered that any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years.
Section 8 of the Impairment Tables Determination sets out information that is not to be taken into account. In particular, symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.
Section 9 of the Impairment Tables Determination is a rule which clarifies how to assess a person where they usually use certain aids, equipment or “assistive technology” to assist with their impairment. The rule states that a person’s functional abilities are to be assessed when using or wearing any aids, equipment or “assistive technology” that the person has (in their possession) and usually uses.
ISSUES BEFORE THE TRIBUNAL
The relevant time to determine the question of entitlement is 13 June 2012, when the decision was made by the Respondent to cancel the Applicant’s DSP.
The questions to be determined by the Tribunal are:
·under s 94(1)(b) – should the Applicant’s impairments be assigned points under the relevant Impairment Tables and, if so, how many points?
·under s 94(1)(c)(i) – if the Applicant is assigned 20 points or more in respect of any or all of her impairments, does she have a continuing inability to work?
CONSIDERATION
In support of her application for review the Applicant provided a number of medical reports, including:
·Dr Sean Flanagan, Otolaryngologist, dated 20 March 2013.
·Dr James G Bodel, Orthopaedic Surgeon, dated 21 February 2013 and 20 March 2013.
·Dr Aman U Khan, General Practitioner, dated 5 February 2013.
·Dr David Charles, General Practitioner, dated 9 January 2013.
In addition to the T-Documents, the Respondent tendered the latest Job Capacity Assessment (JCA) report in relation to the Applicant completed by Mr Fisicaro, Senior Psychologist/Team Manager at Centrelink, dated 26 April 2013.
The Respondent conceded that, at the time her DSP was cancelled, the Applicant had the following impairments within the meaning of s 94(1)(a) of the Act:
·Depression
·Spinal disorder
·Shoulder and upper arm disorder
·Lower limb deficiencies
·Hearing loss
·Hypothyroidism
Each is considered in turn. The Applicant gave detailed evidence about the conditions.
Depression
The relevant Impairment Table is Table 5 – Mental Health Function. The Introduction to Table 5 requires that the diagnosis of a mental health condition must be made by an appropriately qualified medical practitioner (including a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist). The Respondent’s position was that at the time of cancellation of her DSP, the only diagnosis of a mental health condition was provided by the Applicant’s treating general practitioner, Dr Khan, and that as further evidence from a psychologist, Megan Doring, was not submitted until 30 August 2012, that is, after the cancellation of DSP, it could not be taken into account. Ms Doring stated that the Applicant was suffering from “major depression and anxiety” and that she had commenced fortnightly counselling sessions on 30 July 2012, which were expected to continue for 12-16 sessions. Ms Doring described the impact of this condition on the Applicant’s ability to function as including “reduced attention, concentration, problem solving, ability to handle stress, conflict resolution skills, avoidance of social situations”, but that the condition would “significantly improve” within the next two years and that the condition was expected to persist for 3-24 months.
A further submission was that, in any event, Ms Doring was not a clinical psychologist.
The Respondent contended that the Tribunal should therefore find that no impairment rating can be assigned under Table 5 for the Applicant’s depression, in the absence of any medical evidence relating to the time of cancellation of DSP.
However, the Applicant’s psychiatric history is not as straightforward as the above submission would suggest.
As early as March 1994 the Applicant was diagnosed by Dr Vrjosseck, consultant psychiatrist, as having a personality disorder with maladaptive and immature mechanisms of coping. He did not find her to be suffering from a depressive illness. He did, however, observe that she has a long history of personality problems with evidence of psychopathic behaviour. The Applicant had reported that, even prior to that time, she had received psychiatric help. The diagnosis of personality problems and relationship difficulties was accepted by the Australian Government Health Service, relying on Dr Vrjosseck’s report.
In April 1998 the Applicant’s then GP, Dr Wassenaar, wrote in a medical review of the Applicant in relation to her depression, that the Applicant had been seeing a psychologist monthly for her depression since the previous September/October. He reported that she stayed in bed a lot and had poor or too much sleep. He noted irritability.
In March 2000 Dr Wassenaar wrote of the Applicant’s “personality disorder/depression”. Her depression was said to affect her ability to concentrate. In February 2004 Dr Wassenaar again wrote of her “depression/personality disorder”, which he considered at that time to have improved.
In November 2004 her then GP, Dr Charles, wrote that her depression impacted on her ability to function because of her lowered mood when it occurred made concentration difficult. At that time she was receiving no treatment. There was evidence from the Ulladulla Community Health Centre that between July 2005 and March 2006 that the Applicant attended counselling. In May 2006 Dr Charles provided a presumptive diagnosis of depression and again wrote of lowered mood, and of poor sleep and social withdrawal.
In April 2012 Dr Khan provided a confirmed diagnosis of major depression and said the date of clinical onset was more than 20 years ago. Dr Khan stated that the Applicant suffered from “major depression” and was currently treated with medication. Future treatment plans included counselling with a psychologist and medication. Dr Khan stated that the impact of this condition on the Applicant’s ability to function was “difficulty concentrating, anxiety, lack of motivation” and that these were expected to persist for more than 24 months.
The Applicant participated in a JCA on 28 May 2012. It was conducted by a registered occupational therapist, and a registered psychologist was the contributing assessor. The report was dated 13 June 2012, co-incidentally the same date as Centrelink cancelled the Applicant’s DSP. The assessors reviewed the above medical evidence and considered the Applicant’s depression to have been adequately verified by medical evidence and that it was fully diagnosed, treated and stabilised, and therefore permanent.
Further, in the most recent JCA report, upon which the Respondent relied, the assessor, a registered psychologist and the contributing assessor, an accredited exercise physiologist, considered the Applicant’s depression to be permanent. The assessors noted that even though the Applicant had not recently consulted a psychiatrist or clinical psychologist, she had been previously assessed by a psychiatrist. It was acknowledged that the Applicant had a long history of psychiatric difficulties and had been treated on an ad hoc basis over the years. Notwithstanding that this report was after the date of cancellation, it referred to the Applicant’s history over a number of years and did not solely relate to her condition at the date of the report.
The Respondent referred to the Tribunal’s decision in Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 in which the Tribunal stated at [34]:
In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.
However, this is not a matter where there has been some confusion because of the progression of the condition since the relevant date. Instead, there is longstanding evidence of a psychiatric condition. In particular, I note the JCA reports of 13 June 2012 and 26 April 2013 where the assessors found the condition to be permanent having regard to the long history. It seems to me that it is disingenuous of the Respondent to now claim that the Applicant’s condition is not a permanent one because it has not been diagnosed by either a psychiatrist or, in circumstances where the diagnosis has not been made by a psychiatrist, by a doctor with evidence from a clinical psychologist in accordance with Table 5.
The Respondent also submitted that the diagnosis of the Applicant’s condition was unclear, it having been described, variously, as “personality disorder with maladaptive and immature mechanisms of coping”, “depression”, “personality disorder/depression”, “major depression” and “major depression and anxiety”. I accept that there have been a number of different diagnoses over time. It remains clear though that the Applicant has suffered a psychiatric condition however described for years. In Re Choroszynski and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 830 the Tribunal found that the fact that the diagnostic label was evolving did not preclude a finding that the condition was fully diagnosed, as the nature of his impairment had been fully documented and diagnosed: at [31].
As to whether her condition can be said to be fully treated and stabilised, the Authorised Review Officer (ARO) made notes of a discussion with the Applicant on 29 June 2012, in which the Applicant was reported to have said that her depressive condition had recently worsened, and that she had increased her anti-depressant medication. She said she did not see a psychologist or a psychiatrist. In the JCA report of 13 June 2012 the assessors noted the Applicant’s extended history of depression and that her past history had included anti-depressant medication, consulting and review with counsellors, psychologists and psychiatrists. Her treatment at that time was anti-depressants which she had re-commenced a month beforehand. Her condition fluctuated with episodes of low moods, mood swings, poor motivation, social withdrawal and isolation, poor concentration, anxiety and difficulties managing stress. They found her condition to have been fully treated and stabilised. Similarly, the assessors in the recent JCA report considered that gaps in the Applicant’s treatment were attributed to her personality disorder, improvement in functioning, or a combination of the two. The Applicant also gave evidence of her inability to afford psychiatric care. I accept the assessment of her treatment and find that her condition is permanent in that it is fully diagnosed, treated and stabilised.
The Respondent’s submission as to an appropriate rating in the event I found the condition to be permanent, was that it attracted a rating of 0 points under the Table. This was at odds with both the 2012 and 2013 JCA reports where her psychiatric condition attracted a rating of 5 impairment points.
The Applicant’s evidence was that she has difficulty getting out of bed, and often only does so in order to attend to her horses, although she can no longer ride. She is enrolled in a Diploma of Counselling course and about three years ago graduated with a degree in Social Work. She is clearly an intelligent woman. She wants to work but is continually rejected because of her back condition and this makes her depression worse.
I consider that, based on the above medical and other evidence, an impairment rating of 5 points can be assigned to the Applicant’s psychiatric condition, in accordance with the descriptor set out in Table 5 – Mental Health Function.
Spinal disorder
When assessed by the Commonwealth Medical Officer in 1993 the Applicant had already had traction, physiotherapy and chiropractic treatment and medication for the pain. Her back was very stiff and she had difficulty bending over. She could not sit or stand or walk for more than 10-15 minutes. She could not lift anything heavy and had intermittent pain down her leg.
In 1998 Dr Wassenaar took a history that the Applicant had fallen off a horse in 1987 and 1990. It gradually improved until the Applicant fell off a horse again in September 1997. The Applicant was in pain “99%” of the time and she sometimes needed help to get out of bed. Four days a week were “bad”. In 2001, however, she was reported as having participated in an endurance ride of 40 km, but she said she was overall much fitter then. She said that she has not ridden consistently since 2007. She last rode – for five minutes – at the Royal Easter Show in 2013. She had to use a milk crate to mount. She had not ridden in the 12 months beforehand.
Dr Charles reported on the condition in 2004 and 2006. By 2008 the doctor regarded her back condition as “chronic”.
The Applicant participated in a JCA assessment in December 2008. At that time the assessors considered her lower back condition to have a severe functional impairment, in that the Applicant was considered to have decreased ability to carry out many everyday activities and that most daily activities could be completed with some difficulty. Her symptoms may have led to avoidance of some daily tasks, and simple tasks would usually aggregate symptoms of fatigue. Her symptoms caused significant interference with her ability to perform or persist with work-related tasks and may cause prolonged absences from work. While these observations may have been made somewhat artificially to mirror the words required to attract the rating the assessors assigned (under the old Table), it remains that, at that time, the impact of her condition was considered to be “severe”.
At the time of cancellation of her DSP, the most up-to-date medical evidence in relation to the Applicant’s spinal disorder was contained in the DSP Review Medical Report by Dr Khan. Dr Khan stated that the Applicant was suffering from “cervical disc bulge” and “lumbar soft tissue strain” resulting from a fall from a horse in 1987. Her current treatment, which Dr Khan noted would continue, included heat packs, home exercises, and Panadol Osteo.
A CT scan of the lumbo-sacral spine dated 8 March 2012 indicated minimal lower level annular bulging at L5/S1 but no significant lesion was seen.
According to the JCA Report dated 13 June 2012, the Applicant reported “constant back pain which impacts her ability to bend repetitively or stand for prolonged periods of time”, but that she maintains the “ability to drive from 2-3 hours and the capacity for self care and other daily activities”.
Dr Bodel, in the medical report dated 21 February 2013 stated that the Applicant reported “pain in the neck. Head down posture or use of the arms overhead aggravate the pain” and “pain in the lower part of the back aggravated by bending, twisting or lifting”. On examination she had slight restriction of neck flexion, extension and rotation in all directions, and good range of lateral bending and rotation of the thoracic spine but tenderness on palpation at the lumbosacral junction. He referred to information from Penrith Chiropractic dated 24 November 2012 that the Applicant had received chiropractic treatment since about February 2008 because of lower back pain.
Dr Bodel diagnosed the Applicant as suffering from “soft tissue injury to the neck and back” and assigned an impairment rating of 5 points under Table 4 – Spinal Function, which provides:
5
There is a mild functional impact on activities involving spinal function.
(1) The person has some difficulty in:
(a) activities over head height (e.g. activities requiring the person to look upwards); or
(b) bending to knee level and straightening up again without difficulty; or
(c) turning their trunk or moving their head (e.g. to look to the sides or upwards).
10
There is a moderate functional impact on activities involving spinal function.
(1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a) the person is unable to sustain overhead activities (e.g. accessing items over head height); or
(b) the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c) the person is unable to bend forward to pick up a light object placed at knee height; or
(d) the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
The Applicant gave evidence of having hurt her back first in 1987. She had undergone “radical treatment” in the late 1980s but it had not worked. She had been to the Pain Clinic in 1992. She has had cortisone injections. She said she uses heat/ice packs, analgesic rubs and heat packs. She sometimes takes Panadeine Forte. She lives in constant pain. When her back is bad she will wear a brace for 18 hours a day.
She said her main problem is bending. She is unable to do sit-ups. Stairs are a problem, especially going down. She can manage to attend to her floors, because she has a special mop and has lino so as to avoid having to vacuum. Friends help.
On the above medical and other evidence, I find that the Applicant’s spinal condition attracts an impairment rating of 5 points under Table 4 – Spinal Function.
Shoulder and upper arm disorder
At the time of cancellation of her DSP, the most up-to-date medical evidence in relation to the Applicant’s shoulder and upper arm disorder was contained in the DSP Review Medical Report by Dr Khan. Dr Khan stated that the Applicant was suffering from a right shoulder soft tissue injury resulting from a fall from a horse in 1987. Her current treatment, which Dr Khan noted would continue, included heat packs, home exercises, and Panadol Osteo.
In the JCA report dated 26 April 2013, it was noted that the Applicant had reported sustaining a right shoulder soft tissue injury in a motor vehicle accident in 2006. She reported that she experiences right shoulder pain that impacts her range of movement and ability to lift repetitively, although she maintains good fine motor skills and the ability to lift heavy objects (greater than 10 kg).
An MRI of the right shoulder performed on 25 May 2007 showed no evidence of “significant cuff or labral pathology”. It also indicated:
·… Normal biceps tendon.
·Minor signal in the subdeltoid/subacromial bursa in keeping with mild bursitis.
·Prominent red marrow in the region of the shoulder girdle.
An x-ray and ultrasound of the right shoulder dated 30 November 2012 (filed by the Applicant) showed “no acute bony injury” and “partial thickness bursal surface tear anterior supraspinatus with associated bursitis and impingement.”
The medical report by Dr Bodel, orthopaedic surgeon, dated 21 February 2013, recorded that the Applicant had reported that she had injured her neck and right shoulder in a motor vehicle accident in 2006. Her current complaints in relation to her shoulder included “pain over the front of the right shoulder and [she] cannot push, pull or lift or use the right arm overhead”. On examination she had reduced range of movement of the right shoulder. Dr Bodel diagnosed the Applicant as suffering from “rotator cuff pathology in both shoulders” but assessed her as having a nil impairment rating under Table 2 – Upper Limb Function based on “the clinical findings at the examination and [her] heavily calloused hands which indicate that she is capable of picking, handling and manipulating most objects encountered on a daily basis without difficulty”.
The Applicant gave evidence she is unable to lift above shoulder height and that occasionally she has a problem with the laundry and she will do smaller loads and hang on a clothes-horse and not on the clothes-line. She can drive a car but not for long periods because turning to look over her shoulder is a problem. She experiences numbness and tingling in her right hand although her fine motor skills are unaffected. She is ambidextrous and writes with her left hand. Her shoulder, as well as her back, causes problems lifting. She said she no longer has any strength in her shoulder. She feeds the horses in smaller feed lots than she used to do. Because the feed lots are smaller she has to bend further to reach them.
The relevant portion of Table 2 of the Impairment Tables is as follows:
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.
The Respondent contended that, based on the above medical and other evidence, it is open for the Tribunal to find that the Applicant’s right upper limb condition attracts a nil impairment rating under Table 2. While I accept that the Applicant experiences lifting problems and may have some problems reaching, I do not find her to meet the descriptor for 5 impairment points. The rating is therefore 0 points.
Lower limb deficiencies
The Applicant reported to Dr Bodel a right knee injury in the late 1990s, in respect of which she had two arthroscopies. (The Applicant noted she had had three, not two operations on her knee.) She also reported an injury to her left ankle when she was kicked by a horse in 2001, for which she received conservative treatment. As noted in Dr Bodel’s report dated 21 February 2013, the Applicant reported “generalised knee pain in the right knee and any attempt to kneel, squat or climb aggravates the knee pain” and “pain in the left ankle and prolonged standing or walking on uneven ground aggravates that pain”. Dr Bodel diagnosed the Applicant as suffering from “retropatellar articular cartilage damage and early arthritic change in the region of the right knee and a soft tissue ligamentous injury to the region of the left ankle caused by various events that have occurred over time”.
Table 3 – Lower Limb Function provides, relevantly as follows:
0
There is no functional impact on activities requiring use of the lower limbs.
(1) The person can:
(a) walk without difficulty on a variety of different terrains and at varying speeds; and
(b) walk without difficulty around the home and community; and
(c) kneel or squat and rise back to a standing position without difficulty; and
(d) stand unaided for at least 10 minutes; and
(e) use stairs without difficulty.
5
There is a mild functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a) the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or
(b) the person has some difficulty walking around a shopping mall or supermarket without a rest; or
(c) the person has some difficulty climbing stairs; and
(2) At least one of the following applies:
(a) the person is unable to stand for more than 10 minutes;
(b) the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.
The Respondent submitted that the Applicant’s evidence that she used a walking stick because of, not only her knee, but also because of her back and vertigo, meant that it could not be said that she met the descriptor for 5 impairment points in relation to her lower limb function alone.
The Respondent also noted that she was reported to have told the ARO that when shopping she could walk for 30 minutes before needing to rest. The Applicant’s evidence, though, was that she uses a walking stick for stability, which she agreed related to her balance as well. She said that on a good day – about once a week – she could drive for about 30-45 minutes. She cannot travel by train because of jolting. To attend the hearing she travelled to the city and stayed overnight so as to recuperate after the trip.
The Applicant said she has a mobility sticker so she can park close to the shops. She usually has someone with her to help lift the shopping out of the trolley.
The Applicant said her right knee dislocates spontaneously. She described having to “put her leg in the car” with the seat pushed right back. She uses her left leg to brake because it is hard to move from one pedal to the other. Consequently, it is almost impossible to drive a manual car.
She said, too, that she had severe bruising of her left ankle when in 2001 she was kicked by a horse. The ankle still gives her trouble if she stands for a long time on hard ground. If she sits for too long her right knee and her left ankle seize up.
She said she sometimes wears “a contraption” on her left knee – an elastic bandage which is a kind of sports strap. She commenced using a stick in late 2013, but this is also because of her balance.
I accept that the Applicant has difficulty walking around the shops and needs to rest. I accept that she has some difficulty with stairs. I accept that the Applicant has problems standing for extended periods, the length of which may vary. She either straps her knee or uses a walking stick. While she may find the stick of assistance because of her back and ear-related balance problems, this does not detract from her need for a stick, or to have her knee strapped.
I consider that, based on the above medical and other evidence, an impairment rating of 5 points can be assigned to the Applicant’s lower limb condition under Table 3.
Hearing loss
At the time of cancellation of her DSP, the most up-to-date medical evidence in relation to the Applicant’s hearing loss was contained in the DSP Medical Report completed by Dr David Charles, general practitioner, dated 31 January 2008. Dr Charles reported that the Applicant suffers from cholesteatoma of the left ear resulting in hearing loss and hearing difficulties in the left ear and some communication difficulty.
In support of her application for review, the Applicant provided a CT scan of the temporal bones in her ears which showed a “small opacity seen superiorly in the mastoid bowl” of the left ear, no abnormality in the left inner ear structures, and no abnormality in the right external, middle and inner ear.
The Applicant also provided a DSP Medical Report by Dr Sean Flanagan, otolaryngologist, dated 27 July 2012. Dr Flanagan diagnosed the Applicant with “chronic left ear disease and hearing loss” resulting in “significant left hearing loss [and] mild-moderate balance disturbance”. The Applicant also relied on the medical report of Dr Flanagan dated 20 March 2013. The doctor stated that he last saw the Applicant in July 2012 and her hearing thresholds in her left ear had declined by approximately 30 decibels over the last two years. He described her hearing in one ear as “very poor”, although the other ear was reasonable good. There had been surgical intervention but her hearing remains poor. She has occasional difficulty with balance.
While Dr Flanagan did not assign an impairment rating in his report of 20 March 2013, he stated that “in reference to impairment table 11, she would fall into the category of mild functional impairment on activities involving her hearing”.
The relevant Impairment Table is Table 11 – Hearing and other Functions of the Ear. A mild functional impairment results in an impairment rating of 5 points, as follows:
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).
The Applicant’s evidence was of poor hearing in her left ear, which was first discovered at school hearing tests. She has a recurring tumour. Not only is her hearing poor in the left ear but she has balance problems and also tinnitus. She was nearly hit by a car once, so needs to be especially vigilant when crossing the road. She always uses her right ear when using the phone. She finds accents problematic. She has explored hearing aids but her problem does not lend itself to them because the problem is in the eardrum. She is unable to wear earplugs or ear phones and even earrings affect her ear.
I consider that, based on the above medical and other evidence, an impairment rating of 5 points can be assigned to the Applicant’s hearing loss condition under Table 11.
Hypothyroidism
The JCA report dated 26 April 2013 recorded that the Applicant takes thyroid medication as she was born without thyroid glands. The assessor noted that this condition posed minimal functional impacts and assigned a nil impairment rating under Table 1 – Functions requiring Physical Exertion and Stamina.
This is consistent with the Applicant’s evidence to the SSAT, where she reported that she experiences no symptoms in relation to this condition due to hormone replacement therapy, and that the condition has no adverse impact on her ability to function. In her evidence to this Tribunal, though, she said that the condition reduces the effectiveness of some medication.
The Respondent contended, and I agree, that, based on the above medical and other evidence, no impairment rating can be assigned to the Applicant’s hypothyroidism under Table 1 – Functions requiring Physical Exertion and Stamina.
Conclusion as to impairment
Taken together the Applicant’s combined impairment rating is 20 points.
CONTINUING INABILITY TO WORK
I therefore turn to the remaining question. The Respondent had conceded that, should the Tribunal find that the Applicant meets other qualification criteria for DSP, the Applicant has a continuing inability to work and satisfies s 94(1)(c)(i) of the Act.
The Applicant therefore meets all the requirements to qualify for the DSP at the date of cancellation.
DECISION
The decision under review is therefore set aside.
I certify that the preceding 85 (eighty-five) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member .........[sgd]...............................................................
Associate
Dated 11 April 2014
Dates of hearing 20 January 2014 and 26 February 2014 Applicant In person Solicitor for the Respondent Dr S Thompson, Sparke Helmore
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