Campbell and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 856

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 856

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/1617

GENERAL ADMINISTRATIVE  DIVISION		)
Re		KENNETH CAMPBELL

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mrs Josephine Kelly, Senior Member

Date25 September 2008

PlaceSydney

Decision The reviewable decision to refuse Mr Campbell's claim for disability support pension is affirmed

...................[sgd]......................

Senior Member
  Mrs Josephine Kelly

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension  – Claim for – Relevant conditions - Meniere’s disease – Tinnitus – Hearing loss -  Osteoarthritis - Whether 20 points or more under Impairment Tables within 13 weeks of claim date – Medical evidence considered – Held Meniere’s disease and osteoarthritis permanent conditions - Held 10 points under Table 20 for tinnitus – Not qualified for pension - Reviewable decision affirmed

Social Security Act 1991, s 94, Schedule 1B

Social Security (Administration) Act 1999, Schedule 2

REASONS FOR DECISION

25 September 2008 Mrs Josephine Kelly, Senior Member      

1. Mr Kenneth Campbell was an economics and geography teacher for 30 years, until 2003. He suffers from various medical conditions, but says that tinnitus and hearing loss cause the greatest difficulties for him. He seeks a disability support pension (the DSP). To qualify for the DSP, Mr Campbell has to satisfy the criteria specified in s 94 of the Social Security Act 1991 (the Act) within 13 weeks of the date he applied, which was 7 March 2006 (the qualification period).

The Issues

2.      The issues are:

(a)  Did Mr Campbell have an impairment rating of 20 points or more on or within 13 weeks of 7 March 2006?

(b)  Did Mr Campbell have a continuing inability to work within 13 weeks of 7 March 2006?

Did Mr Campbell have an impairment rating of 20 points or more within 13 weeks of 7 March 2006?

3. Mr Lozynsky, who appeared for the Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs, accepted that Mr Campbell has a physical impairment and therefore satisfied s 94(1)(a) of the Act. I accept that this is so.

4. Therefore the first issue is whether Mr Campbell had an impairment rating of 20 points or more under the Impairment Tables in Schedule 1B of the Act within 13 weeks of making his claim on 7 March 2006, as required by s 94(1)(b) of the Act and Schedule 2, section 4(1) of the Social Security (Administration) Act 1999. 

5.      Mr Campbell represented himself.  He gave evidence orally and provided in support of his case, a number of letters he had written, medical reports, and imaging studies.  He argued that he met the 20 points criterion.  We understood him to rely particularly on a report dated 6 March 2007 from Dr Walker, who has been Mr Campbell's general practitioner since 2004.  Dr Walker assessed his impairment from tinnitus as 20 or 30 points.

Consideration

6.      Mr Campbell gave evidence about the medical conditions that he has and the difficulties they cause for him.  I do not doubt that he gave his evidence honestly and without exaggeration.  In his claim form for the DSP he listed the following disabilities, illnesses or injuries that he had: Meniere's Disease, Tinnitus, Depression, Deafness (severe in both ears), osteoarthritis in both knees and both ankles.

7.      Ménière's disease is a disorder of the inner ear resulting in the clinical symptoms of vertigo, tinnitus, and hearing loss.  Mr Campbell told me that he was diagnosed with this disease in about 2004.

8.      Mr Lozynsky accepted that Meniere's Disease suffered by Mr Campbell, in terms of the symptoms of tinnitus and hearing loss, satisfied the requirement under the Impairment Tables of being permanent, as described in paragraphs 5 and 6 of the Introduction to those tables..

9.      Following is a summary of Mr Campbell’s oral evidence.   I understood Mr Campbell to say that since the death of his wife in 2003, his hearing loss and tinnitus have been disabling.  Before that, he had battled on because he got a certain amount of satisfaction from his teaching.  He had taken carer's leave to look after his wife and returned to work after her death, but he could not concentrate on what he had to do, for example, marking, and his work was no longer so important to him.

10.     Mr Campbell said that the Meniere's Disease causes him to lose balance occasionally when he is standing up.    He described getting a panic sort of feeling which makes him feel like he is spinning.  He occasionally gets it when sitting or lying down. He said that he has no difficulty driving or looking after himself.

11.     He said that tinnitus is a real problem for him.  He described a constant rushing sound in his ears which is very distracting.   At other times there is a strange whistling sound like a demented canary.  He said that his tinnitus makes it difficult to concentrate, for example when reading, and communicating with people.  It is also worse when he is under stress.  For example, it was worse during the hearing before the Tribunal.  He has contacted the Tinnitus Association.  He did not find a tinnitus masker, which I understand is using a distracting sound such as having the radio on, to be helpful.

12.     Mr Campbell's hearing loss was apparent from at least 1992 when he was fully investigated by an ear, nose and throat specialist, and tested by an audiologist.   The 1992 audiologist's report was before us.  It had been provided to Centrelink in 1996, which led to some confusion.

13.     Mr Campbell said that he found hearing aids unhelpful where there is any other noise, but helpful in quiet situations.  Although he understands that his hearing loss is equal in both ears, he finds that he prefers to use his left ear.  He finds men  easier to hear than women, because of the pitch of the voice. He misses things said on the radio, and so wears his hearing aids if he wishes to listen to something specific on the radio.  He often does not hear the door bell.

14.     When Mr Campbell suffered from depression following his wife's death in 2003, he was advised to see a psychiatrist.   He was prescribed anti-depressant medication but avoided taking it.  He has an unfilled prescription and will take it if he feels it necessary.   He had not taken any medication for 18 months or more at the time of the hearing.  He was not sure whether he was taking any medication when he applied for the DSP in March 2006.

15.     Mr Campbell has a bad right knee which he thought stemmed from an injury he suffered to his left ankle in a motor cycle accident in about 1967.  He has had difficulty walking since then.During cross-examination it was suggested that in March 2006 he only complained to the Health Services Australia (HSA) nurse about his right knee and not both knees.   Mr Campbell said that he would have told the nurse that all his joints were painful, but then said that he possibly only discussed his right knee because it was a newly developing problem for him and he had a severe problem with it at that time.

16.     He has been taking Celebrex since 2003.  No hydrotherapy or physiotherapy has been recommended by his doctor.  He said that physiotherapy would not fix osteo-arthritis.  He had stopped taking Celebrex for a few weeks when he heard that it can lead to cardio-vascular complications, but had to starting taking it again because of the pain caused by his arthritis.   He said that the most severe pain is in his left ankle, and at the moment the next most painful joint is his right ankle.  In March 2006 his right knee was painful continuously.  He said that he has used a walking stick sometimes, but also said that he uses one most days.  He uses it going up and downstairs. 

17.     He lives alone in a two storey house.  The bedroom is upstairs.  He manages, but he has problems walking up and down the steps.  If necessary, he would live downstairs.  He did not bring his walking stick to the hearing because he drove to the railway station.  Mr Campbell said that he does not want an invasive operation, a knee replacement.

18.     Mr Campbell looks after himself.  He does a little gardening and mows the lawn occasionally. He can push the shopping trolley and can use public transport.  He does not have a social life.  He uses the internet at the library, reads the paper, and borrows books.   He has daughters in Canada and Canberra. He communicates with them by telephone and internet.

19.     He thought that in 2006 he probably would have gone bushwalking, swimming and fishing.  He does none of those activities now.  At present he can walk 300 or 400 metres and in 2006 could probably have walked further.  He can stand for 20 minutes or half an hour, which is probably about the same as in 2006.  Although he accepted that if he had told the HSA nurse in 2006 that he could stand for 60 minutes, he said that he would not have been pain free.

20.     Mr Campbell suffered a fall in August 2007 and injured his right shoulder which he wished to have taken into account. There were in evidence reports of imaging studies undertaken in August and September 2007, including reports from Dr Peduto and Dr Leung.  They recorded various findings, including tears to the biceps tendon and the supraspinatus tendon.   Mr Campbell gave evidence about his shoulder pain. .However, I cannot take the effects of this injury into account because the injury occurred after  the 13 week period beginning 6 March 2006.

21.     Following is a summary of the other evidence before me. 

22.     Dr Walker filled out a treating doctor's report dated 3 March 2006, which Mr Campbell submitted with his claim for the DSP.  In that report, Dr Walker recorded a diagnosis of Meniere's Disease in 2004 and a history of progressive onset of tinnitus becoming constant and distracting, and progressive hearing loss since 1992.   He wrote that:

deafness caused inability to continue working as schoolteacher & caused exacerbation of depression.

23.     Dr Walker recorded as current treatment, antidepressants and hearing aids.  He did not record depression as a condition which has a significant impact on Mr Campbell's function.

24.     In that report Dr Walker listed osteoarthritis of the right knee as a condition which was generally well managed and caused minimal or limited impact on ability to function.  The treatment was anti-inflammatories and glucosamine.  He did not expect significant improvement, and wrote that the impact on ability to function was reduced and painful mobility.

25.     A registered nurse employed by Health Services Australia (HSA) saw Mr Campbell for a medical assessment on 14 March 2006 and filled out a form.  The nurse noted that Mr Campbell suffered from Menieres Disease, the symptoms being bilateral deafness and tinnitus, which at times becomes louder; and that the treatment was bilateral hearing aids and anti-depressants. The nurse observed he had to repeat questions and raise his voice, even when Mr Campbell was wearing his hearing aids. The nurse reported Mr Campbell had osteoarthritis of the right knee which was diagnosed in 2005; that walking and standing caused pain; that he could walk for 30 minutes, could not squat, and pain increased when walking down inclines and stairs; that Mr Campbell had a limping style of walk and had to use his arms and hands to stand; the treatment was Indocid, Celebrex and Glucosamine.   

26.     Dr O'Riordan, an HSA doctor, carried out a file assessment on 12 May 2006.  The material considered included Dr Walker's treating doctor report, unspecified specialist reports, and the nurse's assessment.   The hearing loss was assessed as 8.1% binaural, for which 0 points were allocated under Table 13 (sic).  That is  obviously a typing error and should refer to Table 12 which deals with “Hearing Function”.   Dr O'Riordan allocated 10 points under Table 20 for tinnitus because it had a moderate functional impact.

27.     Mr Campbell sought a review by a Centrelink Authorised Review Officer (ARO).  He did not feel that all his medical conditions had been taken into account and wished to provide further evidence in relation to his arthritis and depression.  He provided X-rays of both knees and ankles and feet dated 6 June 2006 and a hearing test dated 16 June 2005. In a letter of the same date he stated that his tinnitus was severe enough for 20 points because it makes sleep and concentration difficult.   He stated that his hearing and tinnitus had worsened substantially in the last year, his hearing aids did little to help in most situations, and that his arthritis caused considerable pain, and made sleep difficult.  A medical certificate dated 13 June 2006 from Dr Walker provided a diagnosis of osteoarthritis and stated that it was a permanent condition which was likely to deteriorate within the next 2 years.  The  listed symptoms were severe pain and restricted mobility of both knees and left ankle. Dr Walker listed anti inflammatories and analgesics as the treatment.

28.     The ARO considered the material sent by Mr Campbell, including the 16 June 2005 audiogram, and determined that the overall percentage loss of binaural hearing was 20.3%, which resulted in an assessment of 0 points under Table 12.  The ARO allocated 10 points for tinnitus under Table 20.

29.     A registered occupational therapist, Ms Lee, undertook a face to face job capacity assessment on 12 June 2007 and a file assessment on 25 October 2007. The relevant opinion in her report was that the permanent conditions at the time of the DSP claim were Meniere's disease, tinnitus, bilateral hearing loss, and osteoarthritis in the right knee and left ankle.  She assessed a 10 point rating due to mild to moderate symptoms for tinnitus according to Table 20, 0 points for hearing loss according to Table 12, and 0 points according to Table 4 for osteoarthritis affecting knees/left ankle on the basis of the history Mr Campbell provided.

30.     In the report dated 6 August 2007, Dr Walker assessed Mr Campbell's impairment as a result of tinnitus as 20 to 30 points on the "tables".  Dr Walker stated that Mr Campbell manifests "severe symptoms with a decreased ability/efficiency to carry out everyday activities" though "most daily activities can be carried out with some difficulty".  "Symptoms may prevent or lead to avoidance of some daily tasks" "symptoms cause significant interference with ability to perform or persist with work-related tasks".  These symptoms would rate an assessment of 20 points.   In support of a 30 point assessment, Dr Walker wrote: "Symptoms cause severe interference with ability to perform work or attend work".

Conclusion

31.     In my opinion, the evidence around the time when Mr Campbell made his claim is the most helpful.  Dr Walker referred to Meniere's disease, specifically tinnitus and deafness as conditions that significantly impacted on Mr Campbell's function.  He referred to depression only in passing in relation to those symptoms.  He listed osteoarthritis of the right knee as a condition which was generally well managed and caused minimal or limited impact on ability to function.    He did not refer at all to osteoarthritis in other parts of Mr Campbell's body.

32.     The HSA nurse who saw Mr Campbell in March also referred to the Meniere's disease, tinnitus and hearing loss, and osteoarthritis of the right knee.

33.     Taking into account of all of the evidence, I find that, in the 13 week period beginning on 7 March 2006, the conditions that were permanent (within the meaning of the Impairment Tables) were Meniere's Disease, the symptoms being tinnitus and bilateral hearing loss, and osteoarthritis of the right knee.

34.     There was really no evidence at that time that the Meniere's Disease was causing Mr Campbell to suffer loss of balance or spinning sensation.  Dr Walker made no reference to such symptoms in his treating doctor's report.  At the time of the hearing such symptoms were not interfering to any significant extent with Mr Campbell's ability to function.  I agree with Ms Lee's assessment of 0 points under Table 21 because to the extent that Mr Campbell had some symptoms at the relevant time, they were intermittent, minor and easily tolerated. 

35.     Tinnitus falls under Table 20 “Miscellanous Ear, Nose and Throat Conditions.” Relevantly, 10 points are to be assigned for mild to moderate symptoms which are irritating or unpleasant but rarely prevent completion of any activity. The symptoms may cause loss of efficiency of daily activities but minimal interference performing or persisting with work-related tasks and minimal effect and/or impact on work attendance. Taking into account all the evidence, I find that Mr Campbell had an impairment rating of 10 points for his tinnitus  under Table 20.

36.     Bilateral hearing loss is assessed as 0 points according to Table 12.  The report of 16 June 2005 showed 20.1% loss, while the 13 May 2005 showed 23.5% loss.  Under the Table nil points are allocated for binaural hearing loss from 0 – 24.9%.

37.     I accept Dr Walker's opinion in his treating doctor's report that at the relevant time the osteoarthritis in Mr Campbell's right knee was well managed and caused minimal impact on his functioning.   Moreover, Mr Campbell's own evidence supports the finding that nil points should be allocated under Table 4.

38.     I do not consider that the criteria for 10 points under Table 4 were met at that time, that is, demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause moderate interference with walking and one or more of the following:  climbing, squatting, sitting or kneeling or Pain or claudication restricts walking (4km/h) to 50-250 m or less at a time. Can walk further after resting.

39. I conclude that Mr Campbell’s total impairment rating on or within 13 weeks of 7 March 2006 was 10 points, which did not satisfy the 20 points impairment required by s 94(1)(b) of the Act. It follows that he did not qualify for the DSP in the qualification period.

40.     Given my conclusion, it is unnecessary for me to consider the second issue set out above.

41.     I understand that Mr Campbell will be very disappointed by this decision.  I repeat, as I told him at the hearing, that he can make a new application for the DSP and provide supporting information in relation to each of his current medical conditions.

Decision

42.     The reviewable decision to refuse Mr Campbell's claim for DSP is affirmed.

I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Josephine Kelly, Senior Member.

Signed: ……[sgd].………..

Steven Mulipola, Associate

Date of hearing:  26 May 2008

Date of decision:  25 September 2008

Representative for the Applicant:  Self-represented

Solicitors for the Respondent:      Centrelink Legal Services