Confidential and Secretary, Department of Social Services

[2014] AATA 925

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2014/1225

Re

Confidential

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Mr C Ermert, Member

Date 12 December 2014

Place Melbourne
The Tribunal affirms the decision under review.

.......................................[sgd]..............................
Mr C Ermert, Member
CATCHWORDS
SOCIAL SECURITY - Disability Support Pension - whether conditions are fully diagnosed, treated and stabilised - whether impairments attract 20 impairment points – decision affirmed
LEGISLATION
Social Security Act 1991 s.94

Social Security (Administration) Act 1999

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mr C Ermert, Member
12 December 2014
INTRODUCTION

On 6 May 2013 the Applicant lodged with Centrelink a claim for disability support pension (DSP). Centrelink is the service provider for the Department of Social Services, the Respondent. In her application, the Applicant listed her illnesses as severe right ear tinnitus, chronic insomnia, loss of balance, constant fatigue, loss of concentration, blurred vision and occasional hearing difficulties.
On 16 July 2013 a Centrelink officer rejected the claim as the Applicant did not have an impairment rating of 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) (the original decision). The Applicant sought an internal review.
On 29 August 2013 a Centrelink authorised review officer (ARO) assigned 10 impairment points for the Applicant’s tinnitus and hearing loss. The ARO determined that the Applicant’s insomnia and secondary fatigue were not fully treated and stabilised as the Applicant had declined the recommended treatment of white noise masking device, radio playing at night, psychological help and sleep medication. Accordingly, the conditions could not be assigned an impairment rating. As the combined impairment rating was less than 20 points, the ARO affirmed the original decision.
The Applicant requested a review of the ARO’s decision by the Social Security Appeals Tribunal (SSAT) of the ARO decision. On 4 March 2014 the SSAT affirmed the decision to reject the claim for DSP.
On 14 March 2014 the Applicant applied for a review of the SSAT decision by this tribunal.
THE HEARING
Due to the Applicant’s condition, the hearing was conducted by telephone. The Applicant represented herself and gave evidence on affirmation. Ms Chan, a departmental lawyer, represented the Respondent.
I had before me:
·the documents provided by the respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents);
·the Applicant’s Statement of Facts, Issues and Contentions, dated 19 August 2014;
·the Respondent’s Statement of Facts and Contentions dated 26 August 2014, with the attached supplementary documents:
othe Applicant’s Statement of Facts, Issues and Contentions, dated 19 August 2014 – ST1;
oAustralian Health Practitioner Regulation Agency – Register of Practitioners in regard to Dr Kathryn Henry – ST2; and
oCentrelink Appointment History in regard to the Applicant – ST3.
THE LEGISLATION
The relevant legislation is contained in the:
·Social Security Act 1991 (the Act);
·Social Security (Administration) Act 1999 (the Administration Act);
·Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
·Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (the Determination).
THE ISSUES
Section 94 of the Act relevantly prescribes the qualifications for DSP:
(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;
…
(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 …
In the Secretary’s Statement of Facts and Contentions, the Secretary accepts that the Applicant had an impairment arising from her tinnitus during the qualification period. Accordingly, the Secretary accepts that the Applicant satisfies paragraph 94(1)(a) of the Act.
The remaining issues I must determine are whether, during the relevant period, the Applicant’s impairment attracted a rating of 20 points or more under the Impairment Tables. And if so, I must determine whether she has a continuing inability to work and has actively participated in a program of support.
THE RELEVANT PERIOD
Citing section 4(1) of Schedule 2 of the Administration Act, Ms Chan contended that the Applicant’s qualification for DSP is to be determined during the period 6 May 2013 to 5 August 2013.
Section 4(1) of Schedule 2 of the Administration Act provides that:
(1)If:
a.a person … makes a claim for a relevant social security payment; and
b.the person is not, on the day on which the claim is made, qualified for the payment; and
c.… the person will … become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
d.the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
In accordance with the provisions of the Administration Act, I find that the relevant period during which the Applicant needed to qualify for DSP is between 6 May 2013 and 5 August 2013.
THE EVIDENCE
The Applicant testified that in February 2011, during her employment in a call centre, she was exposed to a high pitched noise in her right ear. The noise caused the onset of tinnitus which has persisted and not improved. She said that, as a result, she suffers from dizziness and loss of balance and at times she cannot sleep.
The Applicant said that she would not take sleeping tablets because she was scared of addiction. She did try some sleeping tablets sometime after March 2014 but they made her feel groggy and she had to stop. She also felt susceptible to danger from forgetting to turn off the gas on her stove. She stated she would not take medication that put her at greater risk.
In regard to the use of a masking device, the Applicant said that she could not live on the money she had and could not afford anything extra such as a masking device.
In regard to the Program of Support, the Applicant stated that she went to Nabenet, which provides occupational rehabilitation services, and had fulfilled the requirements.
The Applicant said the detail of her evidence and submission was contained in her Statement of Facts, Issues and Contentions.
In answer to questions from Ms Chan, the Applicant reiterated that she could not afford to acquire a noise masking device and had never considered hiring one. She said she had not tried leaving a radio playing by her bed. She was frightened to leave electrical appliances switched on while she was asleep because of the possibility of fires. She added that even with music playing, she could still hear the tinnitus noise in her ear. She said it is continuous and never stops.
Ms Chan referred to the recommendations made by Dr Henry and Dr Gordon for intervention by way of psychological services. The Applicant said that without financial assistance she could not afford psychological counselling services. She added that tinnitus is a physical condition, not a mental one.
Ms Chan asked whether the Applicant had tried any of the following treatment options:
·sleeping tablets,
·psychological interventions,
·radio playing in the background, or masking.
The Applicant answered no to each option. She also said that she had not tried other options for treatment.
SUBMISSIONS
The Applicant said she relied on the submissions contained in her Statement of Facts, Issues and Contentions.
The Applicant contended that:
·the suggested medications carried a risk of addiction and memory loss;
·the masking device was not available at a cost reasonable to her situation; and
·psychological counselling was not available at a reasonable cost and would not result in significant improvement.
The Applicant submitted that the ARO recognised that these treatment options would not have resulted in significant improvement of her condition. She contended that her condition has no cure and that it is stabilised. She also contended that her condition should attract more than 10 points under Impairment Table 11. She said that her balance was “off” and she has stumbled and fallen on furniture. She said she has dizziness and vertigo.
The Applicant contended that her fatigue should be considered under Impairment Table 1. She submitted that she should have a rating of 20 points from this table as she was unable to perform light day-to-day activities such as light gardening or perform sedentary tasks for periods up to three hours.
The Applicant also contended that she actively participated in a program of support during the three years immediately before the date of her DSP claim through her involvement with Nabenet. She submitted further that as her impairment should be rated at 20 points, there is no need for her to comply with the program of support requirements of the Act.
Ms Chan stated that she relied on the submissions contained in the Secretary’s Statement of Facts and Contentions. Ms Chan reiterated the submission detailed in paragraph 34 that the Applicant’s right ear tinnitus and hearing loss was not fully diagnosed, treated and stabilised during the qualification period. She submitted that there were further reasonable treatment options available which may have resulted in improvement in the next two years.
Ms Chan referred to the Applicant’s oral evidence that she had not tried the treatment options recommended by the doctors. Ms Chan accepted that the treatments were not a cure for the condition but submitted that they were designed to manage the functional impairment arising from the condition.
In regard to the program of support requirements, Ms Chan submitted that the Applicant had no record of active participation in a program of support in the 36 months prior to claiming DSP. Ms Chan acknowledged the Applicant’s involvement with Nabenet. However, she contended that the Applicant had not provided sufficient information to demonstrate that the requirements had been met.
Ms Chan summarized her submissions by contending that the Applicant was not qualified for DSP during the relevant period.
TRIBUNAL CONSIDERATIONS
Assignment of Impairment Ratings
Section 6 of the Impairment Tables sets out the rules for applying the Tables. Section 6(3) of the Impairment Tables provides that an impairment rating can only be assigned to an impairment if the person’s condition is permanent. Section 6(4) provides relevantly that a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
(c)the condition has been fully stabilised; and
…
In determining whether a condition is fully diagnosed and fully treated section 6(5) of the Impairment Tables requires me to consider:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or planned in the next two years.
In determining whether a condition is fully stabilised sub-section (6) relevantly requires me to consider whether the person has undertaken reasonable treatment. Sub-section (7) provides relevantly that reasonable treatment is treatment that:
(a)…
(b)Is at a reasonable cost; and
(c)Can reliably be expected to result in a substantial functional capacity; and
(d)Is regularly undertaken or performed; and
(e)Has a high success rate; and
(f)Carries a low risk to the person.
On her claim form, the Applicant listed her conditions as severe right-ear tinnitus, chronic insomnia, loss of balance, constant fatigue, loss of concentration, headaches, blurred vision and occasional difficulty hearing. I will consider each condition to determine the impairment rating to be assigned.
Right-ear Tinnitus
Whether Fully Diagnosed
The Introduction to Impairment Table 11 – Hearing and other Functions of the Ear states [t]he 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.
Evidence of the diagnosis of tinnitus is contained in:
(a)The reports of Dr Henry dated 11 May 2012 (T5, page 21), 3 August 2012 (T8, page 32), 6 May 2013 (T12, page 54) and 31 July 2013 (T16, page 74); and
(b)The report of Mr Gordon, an Ear, Nose and Throat (ENT) surgeon, dated 6 July 2012 (T6, page 28).
The Respondent has entered no submissions regarding the diagnosis of the condition.
From the evidence, I find that the condition of tinnitus has been fully diagnosed by Dr Henry, an appropriately qualified medical practitioner, with corroborating evidence from Mr Gordon, an ENT specialist. This finding satisfies the requirements of sections 6(4)(a), 6(5)(a) and the Introduction to Table 11 of the Impairment Tables.
Whether Fully Treated
Dr Henry has proposed the following treatment for the tinnitus:
(a)… intervention of psychologist pending funding (T5, page 22);
(b)If funding for psychology approved will proceed with CGU Insurance. May have to obtain Medicare subsidised treatments (T8, page 33);
(c)Advised patient to consider audiological masking device (CGU to consider funding) … Insurer refused counselling funding and patient declined mental health plan funding to ATAPS (T12, page 55); and
(d)Patient has declined to attend medicare funded psychological services due to cost concerns (T16, page 74).
Mr Gordon has proposed the following treatment:
(a)… we did discuss the use of a psychologist and background noise masking to try and improve her symptom … At this stage I have nothing further to offer besides counselling (T7, page 30); and
(b)… she needs to have background noise masking as well as psychology review to help her cope with this issue. There is no question that consultation with a psychologist should be considered in helping her manage her tinnitus (T6, page 28).
In his report dated 12 March 2013 (T13, page 62), Mr Roy Taylor, an ENT surgeon, stated that [a] tinnitus masker is expensive but would presumably be covered by Work care. Theoretically it is a temporary help to tinnitus but I have not seen many patients who use them regularly. I discussed with her today having a radio playing music by her bed at night. She days that she does not like this but I think it would be worth persisting as she will get used to the music quicker than the tinnitus.
The treatments proposed by the doctors included the use of a noise masking device or radio and psychological counselling. In her evidence, the Applicant stated that she had not tried a background noise masking device as she could not afford it and the insurance company would not fund it. She would not leave a radio turned on because of a risk of fire.
The Applicant has not tried psychological counselling as she could not afford to pay for the services. She also said that tinnitus is a physical issue and not a mental one.
It is clear from her evidence that the Applicant has not tried any of the recommended treatments mentioned above. I find that her condition of tinnitus is not fully treated and section 6(4)(b) of the Impairment Tables is not satisfied. As a result, her tinnitus condition is not permanent for the purposes of section 6(4) of the Impairment Tables. Under the provisions of section 6(3) of the Impairment Tables, I cannot assign an impairment rating to this condition.
Insomnia
Whether Fully Diagnosed
In four reports from August 2012 to March 2014, Dr Henry diagnosed insomnia as a consequence of the Applicant’s tinnitus. In his report dated 26 June 2012 (T7, page 30), Mr Gordon refers to her sleep deprivation.
Ms Chang made no submissions regarding the diagnosis of insomnia.
I am satisfied from the reports of Dr Henry and Mr Gordon that the condition of insomnia has been fully diagnosed.
Whether Fully Treated
In her reports, Dr Henry recommends the use of medications for insomnia as well as psychological counselling for tinnitus.
In regard to the use of medications, I note the Applicant’s evidence that during the period in question she has not tried using medications. She said she felt uncomfortable about taking sleeping medication and was scared of developing an addiction. Dr Henry notes in her reports that the Applicant declined to take medications.
In regard to the use of psychological counselling the evidence is clear that the Applicant has not accepted this form of treatment.
The evidence is that the Applicant has not tried to use either of the two recommended forms of treatment. I find that the condition of insomnia is not fully treated and section 6(4)(b) of the Impairment Tables is not satisfied. As a result, her insomnia is not permanent for the purposes of section 6(4) of the Impairment Tables. Under the provisions of section 6(3) of the Impairment Tables, I cannot assign an impairment rating to the condition.
Loss of Balance
Whether Fully Diagnosed
The Applicant testified that she suffered from dizziness, loss of balance and vertigo, saying that she has stumbled over furniture and needs to hold on to something to maintain her balance. However, there is no mention of these symptoms in any of the medical reports during the relevant period. There is no independent or corroborating evidence that the Applicant suffers from the condition.
The Introduction to Table 11 of the Impairment Tables states that [t]he 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.
I find that the condition described as loss of balance, dizziness or vertigo is not fully diagnosed in the relevant period. Under the provisions of section 6(3) of the Impairment Tables, I cannot assign an impairment rating to this condition.
Constant Fatigue and Loss of Concentration
Whether Fully Diagnosed
In her reports, Dr Henry refers to the Applicant’s fatigue and poor concentration resulting from her insomnia. I am satisfied that the conditions are fully diagnosed.
Whether fully Treated
Dr Henry does not make treatment recommendations specific to the conditions of constant fatigue and loss of concentration. Dr Henry’s treatment recommendations relate to the principle condition of insomnia, which is the underlying cause of the fatigue and loss of concentration. I have already found that the insomnia has not been fully treated. As the insomnia has not been fully treated, I find that the conditions of constant fatigue and loss of concentration that result from insomnia are also not fully treated. Under the provisions of section 6(3) of the Impairment Tables, I cannot assign an impairment rating to these conditions.
Headaches and Blurred Vision
Whether Fully Diagnosed

Although the Applicant has listed headaches and blurred vision as conditions in her claim for DSP, she has not presented any evidence of diagnoses of the conditions. The reports of Dr Henry, Mr Gordon and Mr Taylor make no mention of these conditions. As there is no evidence of these conditions I find that they are not fully diagnosed. Under the provisions of section 6(3) of the Impairment Tables, I cannot assign an impairment rating to these conditions.
Difficulty Hearing
Whether Fully Diagnosed
Dr Henry has diagnosed mild right sensorial deafness in her reports of 3 August 2012 (T8, page 32) and 6 May 2013 (T12, page 56). In his report of 26 June 2012 (T7, page 30), Mr Gordon records objective evidence of right ear damage with an abnormal right audiogram.
I am satisfied that the condition has been fully diagnosed in accordance with the provisions of Table 11 of the Impairment Tables and find accordingly.
Whether Fully Treated
In her report of 6 May 2013 (T12, page 54), Dr Henry recorded the current treatment as [r]eferred by ENT specialists for Audiograms, MRI of internal auditory (word indistinguishable) and electro-cochlearography. Under the heading of Future/Planned Treatment Dr Henry recorded [r]egular audiograms / ENT review annually.
In his report of 6 July 2012 (T6, page 28), Mr Gordon records that the Applicant … now has a new audiometric abnormality in the right ear. This has been fully investigated with MRI and there is no underlying tumour.
In her report of 31 July 2013 (T16, page 74), Dr Henry records [p]eriodic review by ENT specialists. Patient’s elected regular ENT will be Mr Roy Taylor. Last review with Mr Taylor 12/03/2013 for consultation only….
From the medical reports, I am satisfied that the condition of hearing difficulty has been fully treated.
Whether Fully Stabilised
Section 6(6)(a) of the Impairment Tables provides relevantly that a condition is fully stabilised if …the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years.
In this case, the treatment for the Applicant’s hearing loss is periodic review by ENT. The Applicant’s last review by Mr Taylor on 12 March 2013 is recorded by Dr Henry as for consultation only. From this evidence I am satisfied that the Applicant has undertaken reasonable treatment for this condition.
There is no evidence in the medical reports that further treatment is unlikely to result in significant improvement to the Applicant’s hearing. I am satisfied that the provisions of sub-section (6)(a) are satisfied. I find that the condition is fully stabilised.
Impairment Rating
Table 11 – Hearing and other Functions of the Ear is the relevant Impairment Table for hearing loss. The Introduction to Table 11 provides that self-report of symptoms alone is insufficient. There must be corroborating evidence of the person’s impairment.
The medical evidence regarding the functional impairment during the relevant period is contained in:
(a)The reports of Dr Henry dated 11 May 2012 (T5, page 21), 3 August 2012 (T8, page 32) and 6 May 2013 (T12, page 56) in which she records mild right sensorial hearing impairment; and
(b)the report of Mr Gordon dated 26 June 2012 (T7, page 30) in which he records [a]udiometry today reveals some mild variation her high frequency hearing on the right which will not be noticeable to her ….
There is no other evidence available which corroborates the Applicant’s account of the symptoms.
I accept that the corroborated evidence shows that the Applicant suffers a mild functional impact on activities involving hearing function. Accordingly, I find that this condition attracts an impairment rating of five points.
Anxiety
Although not included in the Applicant’s claimed list of conditions, Ms Chan has discussed the condition in the Secretary’s Statement of Facts and Contentions. She records that Dr Henry stated that the Applicant developed anxiety from March 2014 (after the qualification period) …. After reviewing the available evidence relating to the relevant period, I find no diagnosis of a condition of anxiety. Under the provisions of section 6(3) of the Impairment Tables, I cannot assign an impairment rating to the condition.
Total Impairment Rating
The only impairment rating that I can assign to the Applicant’s conditions is five points for hearing loss. I am not able to assign impairment ratings to the other conditions as they were not fully diagnosed or fully treated during the relevant period.
As a result the Applicant does not satisfy the provisions of section 94(1)(b) of the Act which requires a rating of 20 points or more.
QUALIFICATION FOR DSP
I have found that during the relevant period the Applicant does not satisfy the provisions of section 94(1)(b) of the Act. As a consequence, the Applicant cannot satisfy all the provisions of section 94(1) of the Act. Accordingly, there is no need for me to determine whether she has a continuing inability to work and whether she has actively participated in a program of support.
I find that during the relevant period the Applicant did not qualify for DSP. This finding affirms the decision of the SSAT.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 78 (seventy-eight) paragraphs are a true copy of the reasons for the decision herein of Mr Conrad Ermert, Member
..............................[sgd]..........................................
Associate
Dated 12 December 2014

Date of hearing 12 November 2014

Applicant In person

Advocate for the Respondent Ms Chan, Government Lawyer

[2014] AATA 925

12 December 2014

Key Legal Topics

Areas of Law

Social Security Law

Legal Concepts

Disability Support Pension

Impairment Rating

Permanent Condition

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/1225
Re	Confidential
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Mr C Ermert, Member
Date	12 December 2014
Place	Melbourne

Date of hearing	12 November 2014
Applicant	In person
Advocate for the Respondent	Ms Chan, Government Lawyer