Dickson and Secretary, Department of Social Services (Social services second review)
[2018] AATA 1087
•27 April 2018
Dickson and Secretary, Department of Social Services (Social services second review) [2018] AATA 1087 (27 April 2018)
Division:GENERAL DIVISION
File Number(s): 2017/2511
Re:Duncan Dickson
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member Mark Hyman
Date:27 April 2018.
Place:Canberra
The Tribunal affirms the decision under review.
........................................................................
Member Mark Hyman
Catchwords
SOCIAL SECURITY – disability support pension – whether conditions fully diagnosed, fully treated and fully stabilised – degenerative condition of both knees – hearing loss – tinnitus – construction of Table 11 of the Impairment Tables – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 s 37
Social Security Act 1991 ss 26, 94
Social Security (Administration) Act 1999 ss 37, 42, Schedule 2
Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Petrovic and Secretary, Department of Social Services (Social services second review) [2018] AATA 748
Summers and Secretary, Department of Social Services [2014] AATA 165
Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Member Mark Hyman
This decision is about whether the applicant, Mr Duncan Dickson, should be granted disability support pension (DSP). Mr Dickson has longstanding injuries to his knees and problems with his hearing. He lodged a claim for DSP with the Department of Human Services on 21 January 2016. The Department rejected that claim on 15 May 2016 and an authorised review officer affirmed the rejection on 8 September 2016, after Mr Dickson asked for the decision to be reviewed. Mr Dickson applied to this tribunal, and the rejection of his claim was again affirmed at first review on 25 January 2017. Mr Dickson asked for a second review to be conducted and that request brought the matter again before the tribunal.
The tribunal held a hearing on 9 April 2018. Mr Dickson represented himself and the Secretary was represented by Mr Jonathan Tsianikas, a departmental advocate.
The documentary evidence before the tribunal comprised the documents submitted under section 37 of the Administrative Appeals Tribunal Act 1975 (the “T-documents”) and additional documents, three submitted as annexures to the statements of facts, issues and contentions from Mr Dickson and the Secretary and one submitted by Mr Dickson at the hearing:
·Exhibit A1: report by Dr Philip Healey, Mr Dickson’s general practitioner, dated 19 September 2017;
·Exhibit A2: report by Dr Benjamin McCullough, another general practitioner, dated 5 July 2017;
·Exhibit A3: a report by Dr John Seymour, a medico-legal ear, nose and throat consultant, dated 8 January 2018; and
·Exhibit R1: a summary of Mr Dickson’s participation in program of support activities, made by the Department of Human Services, dated 15 June 2017.
LEGISLATION
The grant of DSP is governed by section 94 of the Social Security Act 1991 (the Act). Section 94 reads in part as follows:
94(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 conjunctive drafting of the above provision means that a person must meet all of paragraphs 94(1)(a), (b) and (c) in order to qualify for DSP.
The “Impairment Tables” referred to in paragraph 94(1)(b) are contained in a legislative instrument authorised by subsection 26(1) of the Act: Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. The Impairment Tables set out tests of permanence and severity of impairment. In order to rate a person’s impairment under the Impairment Tables a decision-maker must first determine that the impairment in question is permanent. Section 6 of the Rules for Applying the Impairment Tables (the Rules) provides that an impairment is permanent if it has been fully diagnosed, fully treated and fully stabilised, and is likely to persist for more than two years. Further subsections elaborate in particular on the meaning of ‘fully treated’ and ‘fully stabilised’.
The specific Impairment Tables each relate to an area of impairment (e.g. Table 4 – Spinal Function or Table 10 – Digestive and Reproductive Function) and each Table is preceded by additional Rules governing how the Table is to be used. The tables themselves rate impairments not according to diagnosis of a particular condition, but according to functional impact, that is, according to the degree to which the impairment being assessed affects the kinds of things a person might be expected to do in the workplace.
Assessing whether a particular person qualifies for DSP therefore requires first, establishing that each impairment is fully diagnosed, fully treated and fully stabilised. Once the person satisfies that test, each permanent impairment can be rated for severity under the relevant Impairment Table.
Subsection 37(1), section 42 and clauses 3 and 4 of Schedule 2 to the Social Security (Administration) Act 1999 (the Administration Act) together require the tribunal to determine the applicant’s qualification for the pension at the time of the claim or in the 13 weeks that follow. That means that Mr Dickson must have been qualified in the period from 21 January to 21 April 2016. The qualification period is important in this case because some of Mr Dickson’s medical conditions are dynamic, becoming significantly worse with time; the qualification period prevents developments occurring after the qualification period from being taken into account. This was explained in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, at [34]:
… 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.
ISSUES
The issues before the tribunal in this matters are:
·whether Mr Dickson has one or more physical, intellectual or psychiatric impairments;
·if so, whether those impairments together are of at least 20 points under the Impairment Tables; and
·if so, whether he has a continuing inability to work.
CONSIDERATION
The evidence points to four possible impairments or areas of impairment that might support a claim for DSP by Mr Dickson. There is imaging of his back suggesting osteoarthritis of his lower spine (T56); there is evidence relating to the locking and triggering of his fingers (T66, T67, T68, T71, T72, T78, T79, T82); and there is extensive evidence relating to his knees and his hearing.
It is apparent that Mr Dickson’s spinal condition is asymptomatic, at least for the present, and Mr Dickson stated that he did not rely on the condition to support his claim. There is no impairment of the spine and no rating can be assigned under the Impairment Tables.
Mr Dickson’s finger condition evidently became apparent – or at least became medically documented - only after he lodged a claim for DSP. The earliest medical evidence available to me is imaging of his hand dated 1 September 2016 (T66), more than four months after the qualification period ended. Plainly the condition was not fully diagnosed by the end of the qualification period, and even if the condition was apparent before that time – and I have no medical evidence that it was – it was certainly not fully treated and fully stabilised, as Mr Dickson was at the time of the hearing still having the condition assessed and considering treatment options. Mr Dickson acknowledged during the hearing that his hand condition did not support his claim for DSP.
Does Mr Dickson have one or more impairments?
It is clear from the medical evidence regarding his knees and his hearing, and it is accepted by the Secretary, that at the time of lodging his claim Mr Dickson had physical impairments. He meets paragraph 94(1)(a) of the Act.
Do Mr Dickson’s impairments have a rating of 20 points or more under the Impairment Tables?
Knee condition
In 2002 Mr Dickson injured his left knee in an industrial accident (T5). He developed chondromalacia patella of the left knee (T10, T13, T20, T30) and subsequently – and apparently arising from the injury – developed osteophytes on the left patella (T21, T36, T38). Mr Dickson reports that many years before, in 1985, he had injured his right knee in a motorbike accident and, whether because he was relying more on his right leg because of the new injury or otherwise, after the 2002 accident he began to develop symptoms on the right as well as the left (T30, T31).
Mr Dickson’s knees did not recover at the rate expected by him or his doctors (T12, T19, T31). In 2005 he underwent arthroscopies to both knees, with debridement of the joint surfaces (T39, T41).
At this stage there is an extended medical silence. In oral evidence Mr Dickson said that his knees recovered reasonably from the 2005 surgeries in the months that followed the arthroscopies, but he was left with pain and some limitations, such as difficulty using stairs. From time to time his condition would flare up. Such a flare up occurred in 2007, for example, when he was for some time completely unable to use stairs. The only treatment offered to him was conservative treatment, but he resisted analgesia because he found that the drugs made him sleepy and unable to work. Mr Dickson said that he did consult his doctors at various times, and records of those consultations, paid for through Medicare, could be made available. In 2014 he had moved from Queensland to Hay in NSW, in order to pursue opportunities for employment with the armed forces. Since moving to Hay he had not spoken to his doctors about his knees up until the time of lodging his DSP claim.
In 2016, after he had lodged his DSP claim, the medical evidence shows that Mr Dickson began to have further problems with his knees. He went to Griffith Base Hospital twice, in June and September 2016 (T63, T65), and x-rays at that time show osteoarthritis of the knee with osteophytes on the medial joint line. More recent x-ray imaging taken in January 2017 shows considerable degenerative change, including joint effusion in both knees.
The Secretary’s written submission argued that Mr Dickson’s knee condition that brought about the surgical interventions in 2005 had resolved by the time of his DSP claim in 2016; the developments since that time, it was argued, constituted a new condition that could not be regarded as fully diagnosed, treated and stabilised during the qualification period. With the advantage of Mr Dickson’s oral evidence at the hearing, Mr Tsianikas, for the Secretary, conceded that it was possible to regard the condition as having continued from 2002 to the present as a single condition.
Looking at the arc of Mr Dickson’s knee condition from 2002 to the present, it appears that the sequence of events is along the following lines:
·he suffered a significant industrial accident in 2002;
·this led to a need to have arthroscopies on both knees;
·the operations improved knee function very considerably once the recovery period was over;
·but there was some degenerative change resulting from the injury and this caused continuing pain, mostly at a moderate level, but with higher levels from time to time;
·usually this level of pain did not prompt Mr Dickson to see his doctor;
·this describes the state of Mr Dickson’s knees for several years up to the time that he lodged his DSP claim; and
·following lodgement of his DSP claim in January 2016 Mr Dickson’s knee condition began to worsen.
There are some gaps in the medical evidence, especially between 2005 and 2016, and no medical opinion available to me touches on the point explicitly, but on the balance of probabilities, Mr Dickson has a single knee condition involving degeneration of both knees, initiated by accidents, slowed by the operations in 2005, but persisting at a lower level and reappearing and worsening in 2016. The treatment for the condition since the operations in 2005 has been conservative; Mr Dickson said that nothing was offered beyond analgesia. At the time of lodging the claim it is apparent that the knees were not the primary concern for Mr Dickson or for his doctors, presumably because they were not presenting him with significant problems by comparison with his other health problems during that time. I find that Mr Dickson’s knee impairment, at the date of lodging his claim for DSP, was fully diagnosed, fully treated and fully stabilised.
Under questioning by Mr Tsianikas, Mr Dickson said that when he suffered hearing trauma in June 2015 (see below) he had been working for six months splitting firewood at a sawmill. That work had required that he stand for periods of two to three hours. He estimated his walking tolerance at 15 minutes, and said that after walking for a while he needed to take the weight off his knees. He said that stairs were always hard for him, but acknowledged that he could, if he must, manage stairs with the aid of the banister or rail.
Impairments of the legs, knees and feet are assessed under the Impairment Tables using Table 3 – Lower Limb Functions. That Table assigns 5 points where:
·a person meets at least one of three criteria, each involving some difficulty in use of the limbs – in walking to local facilities such as a bus stop or shopping centre, or in walking around a shopping centre or supermarket without a rest, or in climbing stairs; and
·the person is either unable to stand for more than ten minutes, or the person needs a lower limb prosthesis or walking stick.
The Table assigns 10 points where (relevantly):
·one of three criteria applies, namely that the person is unable to walk to local facilities, or needs assistance to use stairs, or is unable to stand for more than five minutes; but
·the person can use public transport or drive and can walk around a shopping centre or supermarket.
On the basis of the evidence, Mr Tsianikas argued that Mr Dickson should receive zero points, because in the 5-point rating scale he does not meet the second of the criteria – he can stand for more than ten minutes (six months before the lodgement of his claim he could stand for two to three hours, and nothing in the evidence suggests a significant worsening of the condition in the next six months) and he does not need a walking stick or other aid. Mr Dickson said that he should be assigned 10 points because he is unable to walk to local facilities or to manage stairs without assistance.
One problem with Mr Dickson’s claim, with respect to the knees, is that at the time of lodgement there was virtually no contemporaneous medical evidence. From the evidence taken ten years previously I know that he had arthroscopies on both knees; and I know that two months after the qualification period he attended Griffith Base Hospital where the attending doctor recorded (T63) that he walked without an antalgic gait, had a full range of motion in his knee, that his knee and calves showed no tenderness, and that he had no pain associated with the lump on his knee that had prompted him to visit the hospital. Imaging showed osteoarthritis and osteophytes in the knee.
A further two months later, on 1 September 2016, he again attended Griffith Base Hospital; the record of that visit (T65) notes:
Has had pain in both knees since last two months. Previous x-rays show large osteophytes in R knee. States has been exercising a lot recently and pain has increased. Some swelling over R knee which he thinks is the osteophyte. Denies trauma. No fevers. Able to move fully. Able to walk normally but pain comes on after walking for a while.
The record also notes that his gait was normal, there was no significant swelling in the left knee and possible mild swelling in the right knee, with a full range of movement and intact ligaments in both knees.
These records tell me very little about the functional impact of Mr Dickson’s knee condition. They show that he reported some limitations on what he could do but that so far as the examining doctor was concerned there was little indication that knee function was impacted, although there were large osteophytes, especially in the right knee. Mr Dickson said in oral evidence that the attention he received at Griffith Base Hospital was cursory, and contrasted it with that he received at other facilities. While it is true that on the second visit to Griffith Base Hospital (T65) his condition was perhaps misdescribed as “pain lower limb/hip”, it remains the case that these two hospital reports are the medical evidence closest to contemporaneous with the lodgement of the DSP claim; I have no choice but to rely on them.
The Impairment Tables require that a person’s self-report alone not be relied on. This instruction appears in the introduction to each Table (including Table 3) in the words “self-report of symptoms alone is insufficient” and also at subsection 8(1) of the Rules: “Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence”. The corroboration in regard to Mr Dickson’s knees is limited, but it does not suggest any different outcome from that which flows from Mr Dickson’s oral evidence at the hearing.
As Mr Tsianikas pointed out, Mr Dickson does not meet the second criterion in the 5-point rating in Table 3, as he does not need a prosthetic or walking aid, and his standing tolerance is well beyond ten minutes. He does not meet the 10-point rating that he argued for because with a walking tolerance of 15 minutes he is able to walk to local facilities; and although it is difficult for him to manage stairs, to the point that he actively avoids them, he can manage if he has to, using a rail or banister – he does not need someone to assist him (“assistance” in this descriptor means assistance from another person – see Summers and Secretary, Department of Social Services [2014] AATA 165; Petrovic and Secretary, Department of Social Services (Social services second review) [2018] AATA 748). Mr Dickson’s knee impairment is clearly worse than the zero point descriptors, but he does not have an impairment severe enough to meet the 5-point rating. Applying paragraph 11(1)(c) of the Rules, which requires the lower rating be assigned where a person’s impairment falls between two ratings, I assign zero points to Mr Dickson’s knee condition.
I note that Mr Dickson puts some store by the 10-point rating he was given in 2003 in his assessment against a DSP claim made at that time. But that assessment was made on the basis of the evidence available to the decision-maker at the time, applying a different version of the Impairment Tables (the current version was introduced on 1 January 2012). I note, too, that the assessor at that time reported much lower tolerances for standing (15 minutes) and sitting (45 minutes) than Mr Dickson reported at the hearing, some 15 years later.
Hearing impairment
In June 2015, when he was engaged in splitting timber at a sawmill, Mr Dickson suffered an industrial accident when a piece of timber exploded, causing him an acoustic trauma and tinnitus (T45, T47). His hearing has subsequently been tested on a number of occasions, establishing that he has hearing loss, especially at high frequencies (T46, T55, T76, T81, T83). The examination closest in time to lodgement of the DSP claim is that by Dr G Lewkovitz (T55), dating from 22 February 2016 (and therefore occurring during the qualification period). In that examination, which was carried out in the context of an assessment for workers’ compensation, Dr Lewkovitz concluded that:
·Mr Dickson suffered from tinnitus in both ears;
·this was associated with a “sloping” hearing loss at high frequencies (i.e. the hearing loss is more pronounced as the frequency increases);
·otherwise his hearing was in the normal range;
·audiometry was unchanged from earlier results reported from September 2015;
·the tinnitus was matched at 45 dB and 4000Hz in the right ear;
·there was a hearing loss at 500Hz, which was unusual;
·the total hearing loss was not sufficient to warrant the use of hearing aids;
·there was no treatment available for Mr Dickson’s condition; and
·Mr Dickson could work, but may need some protection from noise exposure.
Other audiometry results also show hearing loss, not only at higher frequencies:
·that by audiologist Ms Jessica Ryan, dated 16 September 2015 (T46) reported normal hearing at low frequency sloping to mild/moderate hearing loss at high frequency;
·that by audiologist Mr C Harrison, dated 31 October 2016 (T75) reported a mild hearing loss at 750Hz in the left ear, recovering to normal hearing in the middle frequencies and sloping to mild/moderate hearing loss in the high frequencies, and mild to moderate hearing loss in the right ear with conductive components at 500Hz and 4kHz (and noting significant worsening since a year earlier);
·that by audiologist Ms K Neville dated 12 December 2016 (T81) unhelpfully reported normal to profound hearing loss, apparently because Ms Neville omitted to delete the inappropriate hearing loss options in her template, but the audiometry diagrams suggest similar results to those of Mr Harrison;
·that by audiologist Mr D Keck, dated 20 December 2016 (T83) identified mild sensorineural hearing loss at all frequencies on the right and a slight mid-frequency and mild high frequency sensorineural hearing loss on the left.
Mr Dickson also reported to some of his doctors that he had an increased sensitivity to particular kinds and frequencies of noises, a condition termed hyperacusis. This was noted by Dr Lewkovitz and is also mentioned in reports and referrals by Mr Dickson’s general practitioner, Dr K Amponn-Nyamekye (T74, T84, T85, T87, T88) and by at least one of the audiologist reports (T75).
On 7 November 2016 Mr Dickson saw an ear, nose and throat specialist, Dr S Pearson, who took a patient history and asked for MRI imaging of Mr Dickson’s brain (T76) to exclude retrocochlear pathology as a cause of Mr Dickson’s symptoms (the MRI was performed but was unremarkable (T77)). His report notes the reported source of Mr Dickson’s condition (the explosive splitting of the timber) and the worsening of his hearing loss and other symptoms since that incident (see below). The report foreshadows that Mr Dickson would see a Dr Howison regarding his tinnitus and hyperacusis, but there is no report of a consultation with Dr Howison. (Presumably this is the same person as the Dr Ken Howieson to whom Mr Dickson was referred by Dr Amponn-Nyamekye on 24 October 2016 (T74); there is no Dr Ken Howieson registered with the Australian Health Practitioner Regulation Agency, but there is a Dr Kenneth Howison who is an otolaryngologist.)
Mr Dickson reports a series of developments following the initial incident in the sawmill, each leading to a worsening of his hearing. He stated that part of his examination by Ms Ryan in September 2015 involved a test at 500 Hz, and that this caused him to suffer a further hearing loss; and that when he had a prolonged telephone conversation as part of his medical assessment in October 2016 he suffered a further significant hearing loss – according to Mr Dickson, he lost a further 50% of his hearing. A later report, by Dr J Seymour, an ear, nose and throat medico-legal consultant, dated 8 January 2018, provides a detailed account of Mr Dickson’s condition and takes issue with some of Mr Dickson’s cause-and-effect assertions. Dr Seymour records (Ex A3) that Mr Dickson reported the onset of tinnitus immediately after the initial incident; the hearing loss perhaps two months later; and the hyperacusis three weeks after the incident. Dr Seymour gave a very firm opinion that Mr Dickson’s further hearing loss in October 2016 was not occasioned by the telephone conversation to which Mr Dickson attributed it, as there was no acoustic trauma which could have brought it about. The more probable source of Mr Dickson’s hearing problems, in Dr Seymour’s opinion, was industrial hearing exposure over a prolonged period, possibly combined with age.
Is Mr Dickson’s hearing impairment permanent?
Much of the evidence available to me was gathered in the context of determining liability for Mr Dickson’s hearing loss and in that context the source of the injury – whether a particular event or a lifetime of exposure, for example - is likely to be critical. The source of the injury, however, is not important in assessing Mr Dickson’s ear condition for the purposes of his DSP claim: what matters is whether that condition met the tests for permanence at the time of his claim or in the period shortly thereafter, and if so, how severe the condition was at that time. The report of Dr Lewkovitz, which reflects Mr Dickson’s ear condition during the qualification period, is the best starting point.
It is difficult to see how tinnitus could ever be corroborated persuasively; it is inherently a condition the existence and severity of which only the sufferer can really know with any certainty. Any doctor is limited to reporting what the patient says. But it is noticeable that none of Mr Dickson’s treating doctors have expressed any doubt about the condition, and Mr Dickson has described it consistently since his industrial accident in June 2015. Certainly Dr Lewkovitz had no doubts about the diagnosis. He matched the tinnitus in Mr Dickson’s right ear at a frequency of 4KHz and an intensity of 45 dB, but presumably that was determined by asking Mr Dickson about the frequency and level of sound that aligned with the ringing in his ears – that is, it is in essence another example of a self-report. Despite these limitations, given the acceptance of the condition by Mr Dickson’s doctors, I am satisfied that Mr Dickson’s tinnitus is fully diagnosed.
I am also satisfied that Mr Dickson’s hearing loss is fully diagnosed. This aspect of his ear condition is objectively established by audiological testing, there is confirmation from ear, nose and throat specialists and the evidence is clear.
With regard to Mr Dickson’s hyperacusis, this is recorded as a symptom by Dr Lewkovitz in February 2016 (T55), and is next mentioned in a referral by Dr Amponn-Nyamekye to Dr Ken Howieson [sic] of St George Private Hospital, Kogarah, dated 24 October 2016 (T74). It is also referenced in medical certificates after that time (T84, T85, T87, T88). The only other medical evidence of the condition is in Dr Seymour’s report of January 2018. I conclude that at the time of lodging his claim the medical profession was yet to provide a clear diagnosis of Mr Dickson’s hyperacusis; the earliest evidence that this was an accepted condition is the referral made in October 2016. The only earlier comment is Dr Lewkovitz’s record of the report by Mr Dickson of his symptoms, without any further consideration of a diagnosis. Mr Dickson’s hyperacusis was not fully diagnosed for DSP purposes at the time of claim.
Dr Lewkovitz stated firmly that there was no treatment for tinnitus, and that at that time Mr Dickson did not need hearing aids. I find Mr Dickson’s hearing loss and tinnitus to be fully treated and fully stabilised. They are permanent for DSP purposes.
How severe is Mr Dickson’s hearing impairment?
The severity of a condition affecting the ear is assessed under Table 11 – Hearing and other Functions of the Ear. The drafting of parts of this Table presents some constructional challenges, and so the parts relating to ratings of 5, 10 and 20 points are reproduced in full below.
Points
Descriptors
5
There is mild functional impact on activities involving hearing (communication) function or other functions of the ear.
(1) The person:
(a) has some difficulty hearing a conversation at an average volume in a room with background noise (e.g. other people talking quietly in the background); and
(b) may use a hearing aid, cochlear implant or other device; and
(c) has difficulty hearing conversations when using a standard telephone, particularly in a room with background noise; or
(2) The person has occasional difficulty with balance (e.g. occasional dizziness) or ringing in the ears which occasionally interferes with communication ability or routine activities due to a medically diagnosed disorder of the inner ear (e.g. Meniere’s disease, or tinnitus).
10
There is a moderate functional impact on activities involving hearing (communication) function or other functions of the ear even when using a hearing aid, cochlear implant or other assistive listening device; or sign language interpreting is required.
(1) The person:
(a) has difficulty hearing a conversation at average volume in a room with no background noise; and
(b) the person has to use a telephone with a T switch and has occasional difficulty with some words ; and
(c) is partially reliant on lip-reading or a recognised sign language (e.g. Auslan), that is, the person needs to lip‑read or watch a sign language interpreter in some situations where background noise is present or needs to have parts of conversations clarified or repeated using lip-reading or recognised sign language; or
(2) The person has more frequent difficulty with balance (e.g. has to sit down or hold on to a solid object) or ringing in the ears which interferes with communication ability or routine activities, due to a medically diagnosed disorder of the inner ear (e.g. Meniere’s disease or tinnitus).
20
There is a severe functional impact on activities involving hearing (communication) function or other functions of the ear even when using a hearing aid, cochlear implant or other assistive listening device or technology or sign language interpreting.
(1) The person:
(a) has severe difficulty hearing any conversation even at raised volume in a room with no background noise (that is, is unable to hear someone speaking to them in a loud voice, or is not able to hear someone shouting a warning (e.g. ‘Look out!’)); and
(b) is unable to hear sounds needed for personal or workplace safety (e.g. a smoke alarm, fire evacuation siren, or car or truck horn); and
(c) is reliant on captions to follow a television program or movie; and
(d) needs to use a captioned telephone; and
(e) is completely reliant in all situations on a recognised sign language (e.g. Auslan), lip reading, other non verbal communication method (e.g. note taking) to converse with others; or
(2) The person has continual difficulty with balance (e.g. the person has continual dizziness or has to sit down or hold on to a solid object) or continual ringing in the ears that interferes with hearing, due to a medically diagnosed disorder of the inner ear (e.g. Meniere’s disease or tinnitus).
Mr Dickson argued that he should receive 20 points under this Table, applying paragraph (2) of the 20-point descriptors. By his contention, he met the test set by that paragraph because his tinnitus is continual, it interferes with his hearing and it results from a medically diagnosed disorder. He also argued that because of his hyperacusis he wears earplugs and is at risk of not hearing noises he needs to hear for his personal safety, meeting (in his submission) subparagraph (1)(b) of the 20-point descriptors. He also argued that his case was supported because Mr Keck noted in his audiology report (T83) that at 60 dB Mr Dickson’s ability to discriminate words dropped to 50%.
Mr Tsianikas accepted that Mr Dickson’s condition was permanent and argued that he should receive 5 points: under paragraph (1) of the 5-point descriptors, as his hearing loss was enough to affect his hearing only mildly, both in a room with background noise and on the telephone (the reference to use of an assistive device in sub-paragraph (b), although joined to the other sub-paragraphs with the conjunctive “and” uses “may”, implying that someone may not use such a device but nevertheless meet the test); or under paragraph (2) of the 5-point descriptors tinnitus would cause only an occasional interference with communication, as evidenced by his ability to hear the proceedings – with some difficulty - during the hearing.
The drafting of the second paragraph in each of the boxes extracted above presents obvious inconsistencies (all emphasis added):
·At the 5-point level the text refers to “ringing in the ears which occasionally interferes with communication ability or routine activities …”;
·At the 10-point level the reference to the frequency of the problem is at the beginning of the paragraph: “more frequent difficulty with balance … or ringing in the ears which interferes with communication ability or routine activities…”;
·At the 20-point level further changes in drafting style appear “continual ringing in the ears which interferes with hearing …”.
Thus at the 5-point level it is communication ability that is occasionally interfered with; whereas at the 10-point level the frequency is only tenuously, if at all, tied to the interference; and at the 20-point level it is the ringing that is continual, but the descriptor is not drafted so that the interference must be continual, and the interference is not with communication ability or routine activities (presumably at the other levels referring to sleep, concentration, and the like), but specifically with hearing. It is not obvious why these variations appear in the drafting.
It is necessary to resolve the proper construction of the Table because Mr Dickson made a perfectly rational and reasonable interpretation of the 20-point rating, on the face of it. The evidence does indeed suggest that his tinnitus is continual; it may indeed have some effect on his hearing; and it stems from a medically diagnosed condition. Mr Tsianikas, when asked to interpret the ratings in Table 11, made an argument that:
·it is implicit that at the 20-point level the ringing must continually interfere with hearing; and
·overall, the impairment must be a severe one, taking into account the scheme of the Table as a whole, and the tables in general.
Considering the design of the Impairment Tables as a document and the grading of severity in each of the tables, Mr Tsianikas’s second point is a good one: the Impairment Tables should be viewed and applied as a consistent and organised structure. In the individual case of Table 11, it is first apparent that the chapeau of each box must be met – in the 20-point case, the functional impact on hearing (in this instance) must be severe. This means, for example, that the degree of hearing interference from tinnitus under paragraph (2) must approximate the hearing loss set out in paragraph (1) of that box.
The Rules, at subsection 7(2), provide that a person may be asked to demonstrate abilities described in the Tables, and accordingly Mr Dickson’s hearing capacities were observed over three to four hours. It was clear that Mr Dickson’s ability to hear, while compromised, was not severely affected, against the standards set in Table 11. His hearing was apparently significantly worse on the right side, and he had to position himself accordingly, but he was able to hear what was being said and participate in the hearing without any obvious impediment. Mr Dickson did not need to ask for words to be repeated, or for voices to be raised, although it was clear that he was compelled to listen keenly and carefully and with his left ear turned to the speaker.
For demonstration purposes Mr Dickson used at one point an earplug device inserted only in his left ear that prevents problems with hyperacusis, but even with that earplug (which, he said, provides attenuation of 30 dB) he was able to participate in the hearing. I note too, that although Mr Dickson believes he should be rated at 20 points because his hyperacusis meets subparagraph (1)(b) of the 20-point descriptors, in order to receive a 20-point rating he would be required to meet all of subparagraphs (1)(a) to (d), as each is joined by the conjunctive “and” to the next. Whatever result Mr Dickson might achieve against subparagraph (b), he clearly does not meet the other subparagraphs in paragraph (1) of the 20-point descriptors.
The Tribunal’s hearing rooms are quiet, by design, and so I did not observe Mr Dickson when there was significant background noise. As noted above, he cites Mr Keck’s report regarding word discrimination of only 50% at 60 dB. But that result was for the right ear only, and it is a result from December 2016, well after the qualification period.
Both Mr Dickson’s participation at the hearing and the medical evidence support the conclusion that his hearing loss is mild: that was the conclusion of Dr Lewkovitz (T55) and it is consistent with the other evidence. I am led to assign 5 points to Mr Dickson, on the basis that in a room with background noise there would be some interference with his hearing and similarly his ability to use a telephone would be compromised by background noise. In the same way, his tinnitus would make it difficult for him to hear clearly and this would occasionally interfere with his communication ability.
Total rating under the Impairment Tables
In total Mr Dickson has 5 points under the Impairment Tables. He does not have the 20 points necessary to meet paragraph 94(1)(b) of the Act, and does not qualify for DSP.
Mr Dickson put forward a number of other arguments to support his claims regarding the severity of his impairments, and raised arguments in respect of other matters outside the scope of this review. None of these arguments change the outcome of the review. Each is set out below.
·Mr Dickson argued that weight should be given to his rejection for employment within the defence forces (T42, T58) because of his knee injuries and tinnitus.
·He argued that he should be rated twice under each of Table 3 and Table 11, once for each knee (Table 3) and once for each ear, or alternatively once for hearing loss and once for tinnitus (Table 11), applying subsection 10(3) of the Rules for applying the Impairment Tables.
·Subsection 11(3) of the Rules for applying the Impairment Tables requires that a person’s impairment(s) be assessed against what they are able to do habitually or normally, not once or rarely. If that standard were applied Mr Dickson argued that he would receive a higher rating.
·A debt of $2,621.99 was raised against Mr Dickson for a participation failure in 2015; Mr Dickson said that he had a valid excuse at the time and his debt should be refunded.
·Mr Dickson’s departmental file is disorganised and out of order, making it difficult for him to advance his interests in an ordered way.
Taking each of these matters in turn:
·The criteria used by the defence forces in recruitment are different from those applied in assessing a DSP claim. Indeed, the response to Mr Dickson’s appeal against his rejection by the defence forces, signed by Dr T Bisas, Regional Senior Medical Officer, VIC/TAS, notes that the entry standards for the defence forces are higher than those used for recruitment by other organisations.
·Subsections 10(3) and 10(4) of the Rules provide that where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table, but the same impairment must not be assessed under more than one Table. Subsections 10(5) and 10(6) state that where two or more conditions cause a common or combined impairment, a single rating should be assigned under one Table; separate ratings should not be assigned for each condition. Impairments to both knees have their functional impact together, limiting the extent to which a person can walk, or stand, or climb stairs. In Mr Dickson’s case, the impairments to his knees have a combined functional impact on his lower limbs; his knee condition accordingly receives a single rating under Table 3. Similarly, his hearing loss and tinnitus is a combined condition, rated once under Table 11 for both ears (which in a functional sense hear together, not separately).
·The rating of Mr Dickson’s hearing relied in part on his demonstrated hearing capacity over a period of hours; it took account of the difference that would be caused by a noisier environment. That is in accordance with subsection 11(3) of the rules.
·Mr Dickson’s debt for a participation failure is outside the scope of this review, as is the organisation of his departmental file. With respect to the former I might merely note that Mr Dickson has the option of seeking review of his debt in this tribunal and that the usual time constraints on such appeals do not apply in debt matters.
Continuing inability to work
As I have found that Mr Dickson does not meet paragraph 94(1)(b) of the Act, I do not need to assess him under paragraph 94(1)(c) regarding a continuing inability to work. But there is one point that needs to be raised in that context. Mr Dickson is concerned that his hyperacusis makes him especially susceptible to further injury to his hearing if he goes back to the workplace. He appears to believe that a further rejection of his DSP claim would have the effect of forcing him to return to a workplace that would put him at risk of further injury. But this decision stops at the question of whether he qualifies for DSP; which he does not. I have no powers that extend to the protection Mr Dickson might require in any future workplace.
CONCLUSION
Mr Dickson is not qualified for DSP because he does not meet paragraph 94(1)(b) of the Act. More accurately, he did not meet that paragraph during the qualification period. There is no impediment to Mr Dickson lodging a new claim, which would allow any progression in his conditions, and any additional conditions, to be considered.
The decision under review is affirmed.
60. I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Member Mark Hyman
61.
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Associate
Dated: 1 May 2018
Date(s) of hearing: 9 April 2018 Solicitor for the Applicant: Self-represented Solicitors for the Respondent: Department of Human Services
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