Bolland and Secretary, Department of Social Services (Social services second review)

[2015] AATA 891

Bolland and Secretary, Department of Social Services (Social services second review) [2015] AATA 891 (20 November 2015)

Division	GENERAL DIVISION
File Number	2014/4124
Re	Suzanne Bolland
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Member I Thompson
Date	20 November 2015
Place	Adelaide

The Tribunal sets aside the decision under review.

...................[Sgd]...............................................

Member I Thompson

CATCHWORDS

SOCIAL SECURITY - pensions benefits and allowances - disability support pension

LEGISLATION

Social Security Act 1991, s 94

Social Security (Administration) Act 1999

CASES

Re Hynninen and Secretary, Department of Families, Housing Community Services and Indigenous Affairs [2012] AATA 664

SECONDARY MATERIALS

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

REASONS FOR DECISION

Member I Thompson

20 November 2015

INTRODUCTION

1. Ms Bolland was granted the disability support pension (DSP) on 18 February 2011 due to her condition of Meniere’s disease.  In November 2013, Centrelink commenced a medical review and decided on 3 June 2014 that Ms Bolland no longer qualified for the DSP.  She sought a review of that decision and a Centrelink authorised review officer (ARO) affirmed the decision to cancel the DSP.  The ARO identified two conditions, namely Meniere’s disease and lumbar disc bulge.  The ARO found that the condition of Meniere’s disease was permanent and a rating of 5 impairment points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) was appropriate.  The ARO did not consider that Ms Bolland’s back condition was permanent as it had not been fully treated and stabilised. 

2. Ms Bolland applied to the Social Security Appeals Tribunal (SSAT) for a review of the decision of the Centrelink ARO.  The SSAT concluded that the condition of Meniere’s disease was permanent and fully diagnosed, treated and stabilised.  The SSAT found that Ms Bolland had this condition for a number of years and applied 10 impairment points under Table 11 of the Impairment Tables.  The SSAT concluded that the lumbar condition was not permanent.  In all, the SSAT concluded that Ms Bolland did not meet the requisite 20 points on the Impairment Tables and did not qualify for DSP.  Accordingly the decision of the Centrelink ARO was affirmed.

3. Ms Bolland applied to this tribunal for a review of the SSAT decision claiming that that decision was wrong and that she should be allocated 20 points for the Meniere’s condition under Table 11 of the Impairment Tables.

   LEGISLATION AND ISSUES

4. The Social Security Act 1991 (the Act) sets out the qualification criteria for DSP.  Section 94(1) of the Act provides that an applicant must have:

   (a)a physical, intellectual or psychiatric impairment;

   (b)an impairment of 20 points or more under the Impairment Tables; and

   (c)a continuing inability to work.

5. Under s 94(2) of the Act a person is regarded as having a “continuing inability to work” if:

   (a)they have an inability to work due to their accepted impairments for 15 hours or more a week; and

   (b)they have actively participated in a “program of support”.

   The second requirement is not necessary, however, if a person has a severe impairment of 20 points or more under a single Impairment Table.

6. Under s 80 of the Social Security (Administration) Act 1999 (Administration Act) the Secretary may determine that a social security payment should be cancelled or suspended for a person who is not or was not qualified for the payment.

7. Under s 63 of the Administration Act the Secretary may require a person who is receiving a social security payment to undergo a medical examination.  A notice under s 63 of the Administration Act was given to Ms Bolland.  She was examined by Dr Te-Loo and a report was provided. 

8. The Secretary subsequently made a determination under s 80 of the Administration Act to cancel Ms Bolland’s DSP. In making that decision the Secretary was required by s 27(3) of the Act to apply the Impairment Tables in force as at the date of the assessment notice that was given to Ms Bolland. The notice was dated 20 November 2013.

9. Ms Bolland had been granted the DSP under qualification criteria that were different from the qualification criteria in force from 1 January 2012 when the Act was amended.  From 1 January 2012 the qualification for DSP is assessed using a new version of the Impairment Tables.

10. In the statement of facts, issues and contentions the Secretary conceded that the finding of the SSAT was appropriate, namely that 10 Impairment points should be assigned for the condition of Meniere’s disease.  Furthermore the Secretary contended that Ms Bolland does not have a continuing inability to work as required by s 94(1)(c) of the Act.  The Secretary sought an order affirming the SSAT decision under review.

11. In her statement, Ms Bolland asserted that she was encouraged by Centrelink in early 2011 to apply for the DSP.  Previously she received Newstart.  Although there is now a new version of the Impairment Tables in force, she contends that her symptoms have changed and worsened.  Having been on Newstart and subsequently, from 2011, the DSP, her work skills have deteriorated and Centrelink have underestimated the severity of her condition. 

    EVIDENCE

    Medical evidence

12. Dr Shared Chawla is an ENT surgeon with the Department of Otorhinolaryngology, Head and Neck Surgery, Royal Adelaide Hospital.  A report from Dr Chawla dated 11 November 2014[1] refers to Ms Bolland having a diagnosis of Meniere’s disease in 2001 with “hypofunction of the right labyrinth”.  There was a diagnosis of “benign paroxysmal positional vertigo” in 2011.  More recently vertiginous attacks lasting two to three hours approximately two to three times per month have occurred.  They are preceded by a prodrome with light-headedness, left sided ear pressure and a feeling of fogginess.  Dr Chawla reported hearing on the right side was stable but there is fluctuating loss of hearing on the left side.  Dr Chawla wrote that Ms Bolland has “constant bilateral tinnitus”.  Medication is appropriate to manage acute vertiginous attacks and comprises Stemetil and Valium.  Ms Bolland may also be developing Meniere’s disease on the left side.  There is an overlay of anxiety contributing to the symptoms and a three month follow-up was recommended.

    [1] Exhibit 4.

13. Dr David Gidley is an ENT Registrar with the Department of Otorhinolaryngology, Head and Neck Surgery, Royal Adelaide Hospital.  He wrote a report dated 29 July 2014[2] in which he confirmed the diagnosis of Meniere’s disease with a recent significant increase in vertiginous bouts, though without significant change in hearing loss or tinnitus.  Following vertiginous episodes Ms Bolland sleeps for several hours and stays in bed for one to two days, with dysarthria for two to three days.  Overall it takes her 10 to 15 days per bout to recover and this is significantly longer than usual for Meniere’s.  Dr Gidley concluded:

    “Overall testing does not indicate that there is any other explanation for her hearing loss and vertiginous symptoms in keeping with a Meniere’s diagnosis.  I have referred her for neurology assessment given the very prolonged period of recovery and the query postictal like symptoms that she developed for 2-3 days post attack.  I will leave it up to neurology to see if they feel there is any need for further investigation or whether they believe this is also in conjunction with her Meniere’s.”

    [2] Exhibit 2.

14. A general medical practitioner Dr A Te-Loo wrote a report dated 16 January 2014[3] regarding Ms Bolland’s Meniere’s disease.  Dr Te-Loo reported balance issues with walking, hearing loss and tinnitus.  It was suggested that treatment should continue and comprise medication and physiotherapy.  Other conditions including the lumbar disc bulge, were generally well managed, treated and having minimal or limited impact on ability to function. 

    [3] Exhibit 1, T19.

15. A general medical practitioner Dr Sohail Ashraf wrote a report dated 17 June 2003[4] in which he referred to the confirmed diagnosis of Meniere’s disease with onset in 2001 and a diagnosis confirmed in June 2002.  Dr Ashraf wrote that the symptoms were:

    “Vertigo, loss of hearing, difficulty concentrating, uncoordinated.  Cannot walk or drive when gets attack.  Attacks now are almost a permanent feature”

    Dr Ashraf reported that Ms Bolland cannot walk or stand when she is suffering the attacks and she is unable to communicate effectively and unable to look after herself, or drive, following the attacks.

    [4] Exhibit 1, T14.

16. A report by Dr William Ducrou, medical adviser with Health Services Australia, dated 14 July 2003[5] referred to the condition of Meniere’s disease from 2001.  Dr Ducrou wrote a summary about Ms Bolland referring to her as a social worker who had managed a women’s indigenous shelter in Arnham Land and having to stop work in May 2003 due to recurrent Meniere’s disease.  He wrote that she was unfit for all work at that time due to exacerbation of vertigo and would require further specialist treatment.  Over the previous six months she had reported frequent vertigo, nausea and tinnitus.  Dr Ducrou wrote that she would lie down during an attack which could last from one hour to two days, occurring every one to two weeks.

    [5] Exhibit 1, T15.

    Job Capacity Assessment reports

17. A Job Capacity Assessment (JCA) report dated  1 March 2011[6] recorded Ms Bolland’s base line work capacity at 0-7 hours per week and a future work capacity within two years with intervention at 0-7 hours per week.[7]  That report followed a face to face assessment with Ms Bolland.  At that time she was 58 years old.  While the assessment was carried out under old Impairment Tables, the comments of the assessor about functional impact and work capacity highlight the difficulties of Ms Bolland’s condition.  In relation to functional impact the JCA report noted that Meniere’s disease results in extreme loss of balance and dizziness, while also causing Ms Bolland to lose her balance and have mild hearing loss.

    [6] Exhibit 1, T17.

    [7] Exhibit 1, T17 page 209.

18. A Job Capacity Assessment report (JCA) dated 2 June 2014[8] was prepared by a Centrelink officer who is an accredited exercise physiologist and registered occupational therapist.  In that JCA report the assessor concluded that Ms Bolland’s condition of Meniere’s disease was permanent and fully diagnosed, treated and stabilised.  The report followed a face to face interview with Ms Bolland.  She told the assessor that she was first diagnosed with the condition by a specialist in Whyalla in 2003.  Because of deterioration she was subsequently diagnosed in 2011 by specialists at the Royal Adelaide Hospital.  Over the years the condition had been treated with medication and occasional vestibular physiotherapy.  Ms Bolland said that she belongs to the Meniere’s Association which provides support and she is reviewed by the Royal Adelaide Hospital on an irregular basis.  She told the assessor that she was experiencing episodes on average once a month and advised that these episodes may last between one day to one week.  She said that she typically feels unbalanced and when affected by the episodes she also has severe dizziness, nausea, episodic diarrhoea and reduced hearing (which is worse with background noise). 

    [8] Exhibit 1, T20.

19. This report recommended an impairment rating of 5 points under Impairment Table 11, (Hearing and other functions of the ear), for the condition of Meniere’s disease.  The assessor consulted Dr A Polong from the Health Professional Advisory Unit in relation to the impairment rating.  The assessor concluded that:

    “…  Ms Bolland has occasional difficulty with balance (e.g. occasional dizziness) which occasionally interferes with routine activities due to Meniere’s disease.” [9]

    [9] Exhibit 1, T20 page 239.

20. The JCA report dated 2 June 2014 also referred to other conditions.  One of those conditions was a spinal disorder.  The assessor concluded that the spinal disorder was permanent but not fully diagnosed, treated or stabilised.  The assessor referred to a urinary tract condition as temporary.  Finally the assessor referred to a cancer/tumour as generally well managed and causing minimal or limited impacts upon function.  The assessor considered that Ms Bolland’s base line work capacity was 15-22 hours per week in light semi-skilled work. 

    Ms Bolland

21. Ms Bolland gave evidence to the Tribunal.  She is now 63 years old.  Her work history includes twelve years employment with the South Australian public service in administrative roles.  She has worked in Sydney, in rural South Australia and in the Northern Territory.  She has worked in art centres in remote communities.  Her last regular employment was in 2007.  More recently she worked on a short term basis in a remote community in 2012.  However she found the work was stressful because of the effects of Meniere’s disease.

22. In her evidence, Ms Bolland said that she first suffered symptoms of Meniere’s disease in 2001.  She received a diagnosis soon after from a doctor in Whyalla.  She was suffering from dizziness and nausea and some hearing loss in the right ear.  Occasionally she suffered attacks of nausea, followed by dizziness and vomiting.  Over the years, through to the present time, those attacks have increased in frequency to a point where they happen once a month and occasionally twice a month.  In mid 2014 the regular pattern of those attacks included nausea, hearing loss and dizziness.  She cannot move when she is suffering in this way.  She goes to bed and stays there for anything between two to five hours.  Occasionally she is incontinent.  After a few hours she gets up and she can slowly move around.  However it takes her about one week to get better.  During that time she has problems with concentration, headaches, lack of balance and she can’t communicate effectively.

23. Ms Bolland gave evidence about tinnitus.  Initially it affected her hearing in the right ear through ringing which has become louder.  More recently she has suffered from buzzing in the left ear.  She has received medical care from the Royal Adelaide Hospital over several years through the ear, nose and throat outpatient clinic.  She takes medication every day to try to control the tinnitus.  She takes larger doses of medication when she is suffering from bouts of nausea and dizziness.  She said that the tinnitus affects her ability to hear and communicate.  It affects her all the time.  It interrupts her train of thought.  She has to focus and concentrate intensely in conversations because of the noises in her ears, loud ringing in the right ear and a low buzz in the left ear.  She suffers from some hearing loss which is worse with background noise.  She said that her balance is continuously affected and she referred to a 30 per cent deviation to the right.  Her lack of balance is worse after a bout of nausea and dizziness.  Generally it is worse when she is stressed and she does have a number of stressors presently in her life.  They relate to a series of unfortunate problems in her family.

24. In her evidence Ms Bolland said that she could not work for 15 hours per week in any capacity.  She said that she couldn’t concentrate.  She couldn’t get herself organised.  She could not do retail work or the kind of work she enjoyed doing in art galleries.  In fact she leads quite an isolated life.  She restricts her social life to a small number of friends who are aware of her problems.  Occasionally the effects of those conditions embarrass her and adversely affect her confidence.  She spends most of her time at home.  Her home life is divided mainly between residing with family in Queensland and residing with family in Adelaide.

25. Ms Bolland referred to the lumbar hernia from which she suffers some pain and discomfort.  She takes medication to reduce the pain.

26. In her evidence and also in a written submission to the Tribunal[10] Ms Bolland stated that she was encouraged by Centrelink officers in 2011 to apply for the DSP.  She had been receiving Newstart and she was dissatisfied with a Job Network Provider.  Her application for the DSP succeeded under the criteria which applied at that time.  She remained in receipt of the DSP and she assumed it would continue.  She expected that the review of her entitlement in 2014 was a formality.  She had been away from the workforce for 3 years.  Her Meniere’s condition had worsened.  Her capacity for work had deteriorated.  She had undertaken tests through the Commonwealth department of Health and Aging for hearing aids and other assistance such as maskers.  In all, by the time that the DSP was cancelled she considered that she had become almost unemployable. 

    [10] Exhibit 7.

    CONSIDERATION

27. The Impairment Tables provide the mechanism to assign ratings for the level of functional impact of an impairment.  The Impairment Tables are based on function rather than diagnosis and they describe functional activities, abilities, symptoms and limitations.  Section 6 of the rules for applying the Impairment Tables states that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and that the impairment results from a condition that is more likely than not to persist for more than two years.  The Impairment Tables provide that a condition is permanent if it has been fully diagnosed, fully treated and fully stabilised.  The functional capacity which is rated under the Impairment Tables concerns the question of an individual’s capacity to work.

28. The Tribunal agrees with the finding both of the ARO and the SSAT that the condition of Meniere’s disease is permanent and fully diagnosed, treated and stabilised.

29. The ARO allocated 5 impairment points under Table 11 for Meniere’s disease.  The SSAT allocated 10 impairment points under Table 11.  The SSAT stated that it :

    “…could not apply 20 impairment points under Table 11 as Ms Bolland is not completely reliant in all situations on a recognised sign language, lip reading or other non-verbal communication method to converse with others.  Also, based on the medical evidence provided, she does not have continual difficulty with balance or continual ringing in the ears that interferes with hearing.” [11]

    [11] Exhibit 1, T2 p 11.

30. Impairment Table 11 relates to hearing and other functions of the ear.  It is used where a person has a permanent condition that results in a functional impairment from activities involving hearing (communication) or other functions of the ear, for example 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.

31. Moderate functional impact on activities involving hearing (communication) functions or other functions of the ear attract 10 points as set out in Table 11 as follows:

Points

Descriptors

5

…

10

There is 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

1. Severe functional impact on activities involving hearing (communication) function or other functions of the ear attract 20 points as set out in Table 11 as follows:

Points

Descriptors

10

…

20

There is 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 a 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. 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

1. The Secretary obtained a review from Dr Sandra Armstrong of the Health Professional Advisory Unit (HPAU).[12]  The review included a summary of the medical reports which were received in evidence as exhibits.  The HPAU discussion raised the possibility of an anxiety disorder.  It noted that psychological diagnosis had not been confirmed.  Dr Chawla also referred to an overlay of anxiety.  Dr Gidley made a referral for a neurology assessment.

   [12] Exhibit 6.

2. The reports by the ENT surgeon Dr Chawla and the report by the ENT Registrar Dr Gidley post–date the decisions of the ARO and the SSAT. They are, however, significant in determining the ratings for the level of functional impact of Ms Bolland’s hearing functions.

3. The descriptor for severe functional impact in Table 11, sub-section (2), is expressed as an alternative to the descriptors in sub-section (1) which concerns hearing function. .Sub-section (2) concerns problems with balance or, alternatively, not conjunctively, problems with ringing in the ears.  

4. Ms Bolland gave detailed evidence about her hearing and communication.  The Tribunal accepts her evidence.  In relation to hearing function, Ms Bolland has difficulty hearing conversation at average volume in a room with no background noise.  She can use a landline telephone with some degree of ease.  She is not partially reliant on lip reading or sign language.  However it helps her considerably to focus by looking directly at the other person in a conversation.  She does prefer captions to follow a television program, but she is not completely reliant on them to follow a program.

5. The Tribunal accepts the report of the ENT surgeon Dr Chawla and the report by the ENT Registrar Dr Gidley in relation to the diagnosis of Meniere’s disease, the attacks of vertigo and tinnitus. The Tribunal finds that Ms Bolland has a medically diagnosed disorder of the inner ear.  She was first diagnosed with Meniere’s disease some 14 years ago.  The condition has remained throughout and gradually deteriorated.  The Tribunal is satisfied that at the time of the Centrelink review, Ms Bolland suffered from continual ringing in the ears and the ringing interfered with her hearing.  She has suffered from tinnitus and it reached a point where it was a continuous ringing in both ears.  Having regard to Ms Bolland’s evidence and taking into account all of the medical evidence, the Tribunal considers that the descriptors for a severe functional impact reflect the nature and extent of Ms Bolland’s impairment, namely Meniere’s disease with constant tinnitus.

6. Accordingly the Tribunal finds that appropriate rating is 20 impairment points under Table 11 for Ms Bolland’s hearing and other functions of the ear.  In view of the long-term presence and impact of the impairment, it is not surprising that Ms Bolland may have some undiagnosed features of anxiety.  However, the evidence is clear about the existence of her condition of Meniere’s disease and its severe functional impact.

7. The report from Dr Te-Loo, dated 16 January 2014[13] referred to the lumbar disc bulge as a medical condition that is generally well managed and presently causes minimal or limited impact on Ms Bolland’s ability to function.  Other medical issues that were mentioned in passing are generally well managed and do not require consideration in relation to the DSP entitlement.

   [13] Exhibit 1, T19

   CONTINUING INABILITY TO WORK

8. The next issue for determination is whether Ms Bolland had a continuing inability to work as required by s 94(1)(c)(i)of the Act.

9. Section 94 (2) of the Act defines a continuing inability to work as follows:

   “Continuing inability to work

   (2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that: 

   (aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)--the person has actively participated in a program of support within the meaning of subsection (3C); and

   (a) in all cases-- the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

   (b) in all cases-- either: 

   (i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

   (ii) if the impairment does not prevent the person from undertaking a training activity--such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

   Note:  For work see subsection (5).

   …”

10. With an impairment rating of 20 points under a single impairment table, it follows that Ms Bolland has a severe impairment within the meaning of s 94(3B) of the Act and participation in program of support is not relevant.  In fact, s 94(3A) of the Act refers to a person receiving a DSP who is also in receipt of a notice under s 63 of the Administration Act in relation to assessing the person’s qualification for that pension.  In those circumstances, if the person’s impairment is not severe, the requirement to participate actively in a program of support under s 94(2)(aa) is also negated. 

11. In deciding whether there is a continuing inability to work under s 94(1)(c)(i) a number of factors must be disregarded.  They were set out in Re Hynninen and Secretary, Department of Families, Housing Community Services and Indigenous Affairs [2012] AATA 664 as:

    ·any impairments that have not been assigned a rating under the impairment tables (Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500);

    ·the availability of work in the person’s locally accessible labour market (s94(3)(b));

    ·the person’s motivation to work or train, except when medical evidence indicates that the lack of motivation is directly attributable to the impairment (Secretary, Department of Social Security v Pusnjak [1999] FCA 994; (1999) 56 ALD 444, 451);

    ·the person’s preferences regarding the type of work or training (Crossland and Secretary, Department  of Family and Community Services [2004] AAT 864 [34]);

    ·the person’s potential attractiveness to an employer in a particular area of work or employer preferences and discriminatory practices that exist in the open labour market, including the willingness or otherwise of employers to engage people with disabilities (Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846); and

    ·the existence of a benign employer or sheltered or special employment; that is, only the normal workplace is considered (Li and Secretary, Department of Employment and Workplace Relations [2007] AATA 1606; (2007) 96 ALD 769; Re Hamal and Secretary, Department of Social Service [1993] AATA 283; (1993) 30 ALD 517).

12. The second JCA report dated 2 June 2014 recorded Ms Bolland base line work capacity at 15-22 hours per week, together with capacity for work within two years with intervention also at 15-22 hours per week.  The JCA report followed a face to face assessment with Ms Bolland and at that time she was 62 years old.  She was not working in any capacity.  The JCA report referred to Ms Bolland having occasional difficulty with balance arising out of Meniere’s disease and occasional interference with routine activities.

13. Based on all of the evidence, the Tribunal considers it is an understatement to describe Ms Bolland’s difficulties with balance and interference with routine activities as merely occasional.  As the first JCA report dated 1 March 2011 stated :

    “Her condition is episodic and she has attacks of dizziness, loss of concentration and her endurance levels are reduced.  Her loss of balance, hearing loss and ability to be co-ordinated is difficult during an episode.  She reports these episodes are becoming more frequent and limit her ability to work.”

14. The Tribunal accepts Dr Chawla’s analysis of Ms Bolland’s condition of Meniere’s disease, vertiginous attacks, effects on hearing and constant bilateral tinnitus.  The Tribunal has previously alluded to the fact that Ms Bolland’s impairment from Meniere’s disease has gradually deteriorated over many years and its functional impact has become more disabling.  The Tribunal considers that Ms Bolland’s impairments from Meniere’s disease have led to a loss of functional capacity which adversely affects her ability to work at least 15 hours per week.  The vertiginous attacks which she suffers are unpredictable and severe.  Their affects are debilitating over several days.  Even with support and training, the Tribunal does not consider that Ms Bolland could retain employment at 15 hours per week.  It follows that she has a continuing inability to work within the meaning of s 94(1)(c) of the Act.

    SUMMARY

15. The Tribunal finds that s 94(1)(a) of the Act regarding physical impairment is satisfied.  Ms Bolland’s condition of Meniere’s disease was fully diagnosed, fully treated and fully stabilised.  The appropriate rating for that condition is 20 points under the Impairment Tables.  That is a severe impairment within the meaning of s 94(3B) of the Act.

16. The Tribunal is satisfied that Ms Bolland has a continuing inability to work within the meaning of s 94(1)(c) of the Act.

    DECISION

17. For the reasons set out above the Tribunal sets aside the decision under review and instead the Tribunal decides that Ms Bolland is qualified to receive the disability support pension from 3 June 2014.

I certify that the preceding 49 (forty -nine) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson

....................[Sgd]..............................................

Administrative Assistant

Dated 20 November 2015

Date(s) of hearing	17 September 2015
Applicant	In person
Advocate for the Respondent	Mr C Visser
Solicitors for the Respondent	Department of Human Services