Gregory Stevens and Secretary, Department of Social Services
[2013] AATA 785
[2013] AATA 785
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/3709
Re
Gregory Stevens
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 7 November 2013 Place Brisbane The Tribunal affirms the decision under review.
........................[Sgd]................................................
Mr R G Kenny, Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Relevant period for assessment – Physical impairment from heart condition, back condition and hearing loss – Impairment Tables – Conditions fully diagnosed, treated, stabilised and likely to persist for more than 2 years – Overall impairment rating less than 20 points – Applicant not qualified for disability support pension during the relevant period – Decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 23, 26, 27, 94, Sch 1A
Social Security (Administration) Act 1999 (Cth) ss 63, 80
Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005 (Cth) ss 9 and 13 of Sch 2
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mr R G Kenny, Senior Member
7 November 2013
BACKGROUND
From 2004, Gregory Stevens was in receipt of the disability support pension which is a social security payment under the Social Security Act 1991 (Cth) (“the Act”) and the Social Security (Administration) Act 1999 (Cth) (“the Administration Act).[1]
On 30 January 2012, Centrelink wrote to Mr Stevens concerning a review of his disability support pension, requesting that he participate in a medical review.[2]
On 7 August 2012, after a reconsideration of Mr Stevens’ circumstances, Centrelink determined that he was no longer qualified for the disability support pension and that the payment should be cancelled.[3] That decision was affirmed by an authorised review officer on 15 April 2013 and by the Social Security Appeals Tribunal on 25 June 2013.
[1] See s 23 of the Act.
[2] This was a notice in accordance with s 63 of the Administration Act.
[3] See s 80 of the Administration Act.
LEGISLATION, ISSUES AND SUBMISSIONS
The qualifications for disability support pension are set out in s 94 of the Act. It is common ground that the applicant meets the age and residency requirements of that provision and has a physical impairment in relation to a heart condition, a lumbar spine condition, hearing loss and plantar fasciitis. The remaining requirements in s 94 of the Act, and the matters in issue, are:
·whether Mr Stevens has an impairment rating of 20 points or more which is calculated under the Impairment Tables[4] in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”) as required by s 94(1)(b) of the Act; and, if so
·whether he has a continuing inability to work as required by s 94(1)(c)(i) of the Act.
[4] See ss 26 and 27 of the Act.
The definition of “work” in this case is that set out in s 94(5) of the Act as it read prior to 1 July 2006.[5] This is:
work means work:
(a) that is for at least 30 hours per week on wages that are at or above the relevant minimum wage; and
(b) that exists in Australia, even if not within the person’s locally accessible labour market.
Because Mr Stevens was in receipt of the disability support pension when the cancellation decision was made, he is not required, in the assessment of his work capacity, to have participated in a program of support.[6]
[5] See Schedule 1A of the Act and the Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005 (Cth) ss 9 and 13 of Sch 2.
[6] See ss 94(2)(aa) and 94(3A) of the Act.
To qualify for a disability support pension, all of the requirements in s 94 of the Act must be met. In Mr Stevens’ case, they must be met on the date of the cancellation decision i.e. 7 August 2012 (“the relevant date”).
The requirements to be followed in applying the Impairment Tables are set out in Pt 2 of the Determination which is headed Rules for applying the Impairment Tables (“the Rules”). Section 6 within Pt 2 reads:
6 Applying the Tables
Assessing functional capacity
(1) The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.
Applying the Tables
(2) The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
Note: For additional information that must be taken into account in applying the Tables see section 7.
Impairment ratings
(3) An impairment rating can only be assigned to an impairment if:
(a) the person’s condition causing that impairment is permanent; and
Note: For permanent see subsection 6(4).
(b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.
Permanency of conditions
(4) For the purposes of paragraph 6(3)(a) 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
Note: For fully diagnosed and fully treated see subsection 6(5).
(c) the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(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 is planned in the next 2 years.
Fully stabilised
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a) either 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; or
(b) the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Note: For reasonable treatment see subsection 6(7).
Reasonable treatment
(7) For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a) is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c) can reliably be expected to result in a substantial improvement in 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.
Impairment has no functional impact
(8) The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.
Example: A person may be diagnosed with hypertension but with appropriate treatment the impairment resulting from this condition may not result in any functional impact.
Assessing functional impact of pain
(9) There is no Table dealing specifically with pain and when assessing pain the following must be considered:
(a) acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and
(b) chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and
(c) whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).
Mr Ashley Burgess, for the respondent, accepted that Mr Stevens’ hearing loss, heart condition and back condition were permanent in that they were fully diagnosed, treated, stabilised and likely to persist for more than two years. However, he submitted that the level of overall impairment for those conditions was not sufficient to attract an overall rating of 20 points under the relevant Impartment Tables. Further, he submitted that no impairment ratings should be allocated to Mr Stevens’ plantar fasciitis as it was not “permanent” because it was not fully treated or likely to persist for more than two years. Mr Burgess noted that Mr Stevens referred to having suffered from dyslexia since his childhood but submitted that this could not be allocated an impairment rating because there was no medical evidence in relation to that condition. He conceded that, in accordance with the findings by the job capacity assessor in the report, dated
18 July 2012, Mr Stevens satisfied the incapacity for work requirements of s 94(2) of the Act as they apply to him. Despite that, because of the overall impairment rating, he submitted that the decision under review ought be affirmed.
Mr Stevens submitted that his heart condition, back condition, hearing loss and plantar fasciitis were permanent and should be allocated an overall impairment rating of at least 20 points under the Impairment Tables. He described a problem with his left shoulder and the condition of dyslexia but conceded that there was no medical evidence in relation to those matters. Mr Stevens submitted that he was not capable of undertaking work or retraining for work because of his back and heart conditions and that he remained qualified for the disability support pension.
EVIDENCE
Mr Stevens
Mr Stevens lived in New South Wales until he moved to Queensland in September 2013. Most of his medical reports were completed while he was in New South Wales by his cardiologist Dr James Rogers and his treating doctors Dr Chris Wood and
Dr Aditya Shah. In Queensland, his general practitioner is Dr Paul Lanham.
Mr Stevens’ evidence was that he is dyslexic but that he had not discussed that condition with any health professional. He identified an injury to his left shoulder but agreed that he had no medical evidence in relation to that condition. Mr Stevens described the onset of angina from his heart condition when he engaged in more strenuous physical activity, such as when he is out shopping or in walking distances, and that he controlled this with medication and by taking appropriate rest. The main problem associated with his back condition is that he experiences referred sciatic pain in his left leg. He has difficulty sitting or standing in one place for long periods and resigned from his job as a school bus driver in October last year because of the discomfort associated with his back. His bus driving duties lasted for three to four hours per day and he had been able to tolerate this because it was structured in a way which enabled him to take periodic breaks when he could walk around or rest. His plantar fasciitis causes him to feel pain in his heels, especially in the morning when first getting out of bed, but this usually settles though there have been occasions when some pain has persisted for up to two weeks. His hearing was tested in May 2013 and the use of hearing aids was recommended. These have recently been fitted and, while his hearing has improved, he is still adjusting to their use.
The reports completed in 2012 by Dr Rogers, Dr Wood and Dr Shah were referred to
Mr Stevens. He agreed with their respective comments about the impact on him of his heart and back conditions. He is able to undertake activities of daily living including cooking, cleaning, changing his bed coverings but described difficulty in activities such as hanging more than a few items of washing on a line above his head. He manages all of these household tasks by working within his limits and by resting as and when he requires it. His back condition causes problems when bending but he is able to manage tasks from about the level of his knees and above. He kneels down in order to lift items from floor level.
On 18 October 2012, Mr Stevens wrote to his employer advising that he was no longer able to undertake his bus-driving responsibilities because of his back condition and that he would resign as from that date.
Medical evidence
There were several reports in evidence from 2004 and 2005 when Mr Stevens was first granted the disability support pension. Their respective authors were cardiologist
Dr Andrew Hill and Dr Rogers and general practitioner, Dr Nerida Finch. As noted above, Mr Stevens’ circumstances are to be assessed as at 7 August 2012 and those earlier reports are of limited usefulness in assessing Mr Stevens as at that date. However, an x-ray and CT scan of Mr Stevens’ spine were reported upon by Dr Rita Di Genua on 24 February 2005. Therein, she diagnosed lumbar spondylosis involving minor degenerative change at L3/4, L4/5, L5/6 and L6/S1.[7]
[7] Exhibit 1, T-Document 10, p. 122.
Ischaemic Heart Disease
On 17 April 2012,[8] Dr Rogers described Mr Stevens’ symptoms as: “minor chest tightness, on heavy exertion. Stable”; “asymptomatic on mild exertion”; and “No problem with modest exertion.” He referred to treatment with medication and concluded that, in the next two years, the condition was “most likely to remain stable” but that it was “unpredictable”.
[8] Exhibit 1, T-Document 17, pp. 152-159.
In a report, dated 23 March 2012,[9] Dr Wood confirmed the diagnosis of ischaemic heart disease and wrote that Mr Stevens may get angina if he pushes himself too hard but that he has “learned to live within limits”. His opinion was that Mr Stevens “needs to moderate all physical activity so working within reasonable limits”.
[9] Exhibit 1, T-Document 16, p. 144-151.
Dr Shah completed a report on 25 October 2012.[10] She noted that Mr Stevens was continuing to be treated by Dr Rogers. She described “tiredness symptoms due to multiple medication” which impacted on his “endurance” and which he would be taking “for life”.
[10] Exhibit 1, T-Document 20, pp. 170-180.
Back condition
Dr Wood, on 23 March 2012, gave a “presumptive” diagnosis of degenerative lumbar spine with a date of onset 25 years earlier. He referred to past treatment as including physiotherapy and traction with current treatment comprising rest, back care and paracetamol medication. He described a limited capacity to bend, to lift and to twist the spine.
On 17 April 2012, Dr Rogers identified Mr Stevens’ back pain and described “pain on bending and movement.” Dr Rogers also noted that this condition did not fall within his area of expertise.
Dr Shah, on 25 October 2012, reported that Mr Stevens’ lower back pain impacted on his prolonged walking and sitting and for which he had regular physiotherapy with treatment comprising “rest as necessary, regular exercise”. Her opinion was that it would persist for more than two years. In a further report, dated 3 May 2013, Dr Shah noted that
Mr Stevens had difficulty in standing for more than 10 minutes because of his spinal pathology.[11]
[11] Exhibit 1, T-Document 25, p. 199.
On 13 May 2013, Dr Sean Khoury reported on the results of a CT scan of the lumbar spine and concluded:[12]
Mild bilateral lateral recess narrowing at L3-4, and mild canal compromise at L4-5. No nerve root compression is identified to account for the left sciatica. MR assessment would be of use if clinically indicated.
[12] Exhibit 1, T-Document 25, p. 200.
On 24 June 2013, Dr Wood described “chronic lumbo-sacral back pain and fluctuant left sciatica” with episodic exacerbations.[13] Dr Wood noted daily symptoms, with which
Mr Stevens has learned to live, but with limitations in standing and bending. His opinion was that the condition was stable and that it would attract 5 impairment points under the relevant tables. Dr Wood advised that he had seen the results described by Dr Khoury.
[13] Exhibit 1, T-Document 25, p. 205.
Plantar fasciitis
In his report of 23 March 2012, Dr Wood noted the condition plantar fasciitis and his opinion was that significant improvement was expected. He described its impact on
Mr Stevens as “Pain both feet with prolonged standing, walking”. On 25 October 2012,
Dr Shah noted the condition but listed it as being generally well managed and causing minimal or limited impact on Mr Stevens’ functioning.
Hearing
On 23 March 2012, Dr Wood referred to Mr Stevens’ hearing loss and described its impact as “Difficulty communicating if background noise”. Dr Radha Simhadri, audiologist, completed a report on 6 May 2013, some nine months after the relevant date. He reported that tests revealed asymmetrical mild to severe hearing loss which was worse in the right ear. He suggested that Mr Stevens seek medical attention to exclude any retrocochlear abnormality on the right side. Dr Simhadri described a binaural percentage loss of 20%[14] with a moderate functional impact on his activities involving hearing. His opinion was that Mr Stevens would benefit from binaural receiver-in-the-ear hearing aids.
[14] This result was obtained by Dr J Deves, ENT Surgeon, who recorded a 19.8% hearing loss on 6 May 2013: see exhibit 1, T-Document 25, p. 198.
Sleep Apnoea
Dr Finch wrote, on 16 March 2005, that Mr Stevens suffered from sleep apnoea for which CPAP therapy was required.[15] However, reports in 2012 and 2013 make no reference to this condition.
[15] Exhibit 1, T-Document 12, p. 124.
Job Capacity Assessment (“JCA”) report
A Work Capacity/Participation Assessment Report was completed on 5 April 2005[16] in which impairment ratings of 30 and 10 were recommended for Mr Stevens’ ischaemic heart disease and lumbar spine degeneration, respectively.[17] That report provided the basis for the payment of disability support pension to him from that time.
[16] Exhibit 1, T-Document 13, pp. 125-134.
[17] Utilising the now repealed Impairment Tables in Sch 1B of the Act.
On 18 July 2012, a JCA report was completed.[18] Plantar fasciitis was recognised by the assessor as being temporary because it had no impact on activities of daily living and significant improvement was expected in the next two years. A respiratory condition was described as permanent but not fully diagnosed, treated and stabilised and the assessor noted that a recommended CPAP trial had not been conducted. No impairment ratings were allocated for those conditions.
[18] Exhibit 1, T-Document 11, pp. 160-166.
The assessor identified the following conditions as being permanent, in the sense that they were fully diagnosed, treated and stabilised, for assessment purposes: hearing loss and coronary artery disease. For hearing loss, the assessor described communication difficulty when background noise was present for which no improvement was expected. A rating of 5 points under Table 11 of the Impartment Tables was recommended.
For coronary artery disease, the assessor noted that Mr Stevens takes medication and undertakes an exercise program; that he was able to manage all activities of daily living; but that he may get angina if he pushes himself too hard. The assessor noted that he has learned to live within reasonable limits by modulating physical activity and that no further treatment was planned. A rating of 5 points under Table 1 of the Impartment Tables was recommended.
The assessor noted conflicting evidence in relation to the diagnosis of Mr Stevens’ back condition. She referred to the diagnosis of lumbar spondylosis in 2005 but also
Dr Wood’s more recent “presumptive” diagnosis which she explained as indicating that treatment options had not been fully explored. Current treatment comprises pacing of activities of daily living and paracetamol. The assessor concluded that this condition was not fully diagnosed, treated and stabilised but that, if it were, a rating of 5 points under Table 4 of the Impartment Tables would be appropriate.
The JCA reporters’ opinion was that an overall impairment rating of 10 points was applicable to Mr Stevens. In relation to work capacity, the assessor noted that Mr Stevens had been working for 15 hours per week as a school bus driver and expressed the opinion that he was capable of obtaining and maintaining employment for up to 29 hours
per week.
CONSIDERATION
As noted above,[19] the requirements to be followed in applying the Impairment Tables are set out in s 6 of the Rules. I am satisfied that Mr Stevens’ dyslexia and sleep apnoea were not permanent as at the relevant date because there is no medical evidence to support diagnoses of those conditions at that time. Similarly, I am satisfied that, on the basis of the evidence of Dr Wood and Dr Shah,[20] his plantar fasciitis was not permanent in that, as at the relevant date, it was not fully diagnosed, treated, stabilised and likely to persist for more than two years. Impairment ratings may not be allocated to those conditions.
[19] See Para 5 (above).
[20] See Para 21 (above).
I accept as correct the opinion of the JCA assessor that Mr Stevens’ heart condition, whether it be described as ischaemic heart disease or coronary artery disease, is permanent. I accept Mr Burgess’ submission that Mr Stevens’ back condition should be treated as fully diagnosed as lumbar spondylosis by Dr Genua in 2005 and, in that regard, note that the JCA assessor described it as “permanent” despite her concerns about the diagnosis. Mr Stevens has had continuing management of his hearing loss and has recently been fitted with hearing aids. Despite that, I accept the opinion of the JCA assessor that his loss of hearing was permanent as at the relevant date.
It follows that an impairment rating may be allocated for Mr Stevens’ heart condition, his back condition and his hearing loss. The relevant Impairment Tables, respectively, are Tables 1, 4 and 11 which read:[21]
Table 1 – Functions requiring Physical Exertion and Stamina
[21] The respective Introductions to the Tables have been omitted.
Points Descriptors 0 There is no functional impact on activities requiring physical exertion or stamina.
(1)The person:
(a) is able to undertake exercise appropriate to their age for at least 30 minutes at a time; and
(b) has no difficulty completing physically active tasks around their home and community.5 There is a mild functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:
(i) walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or
(ii) performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and(b) is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).
10 There is a moderate functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:
(i) is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or
(ii) has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and(b) is able to:
(i) use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and
(ii) perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).20 There is a severe functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:(i) walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or
(ii) walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or
(iii) use public transport without assistance; or
(iv) perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and(b) has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.
30 There is an extreme functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) is completely unable to perform activities requiring physical exertion or stamina; or
(b) experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing any activities requiring physical exertion or stamina and, due to these symptoms, the person is unable to move around inside the home without assistance.(2) This impairment rating level includes people who require Oxygen treatment (e.g. the use of an Oxygen concentrator during the day or to move around).
Table 4 – Spinal Function
Points
Descriptors
0 There is no functional impact on activities involving spinal function.
(1) The person can:
(a) bend down to pick a light object off the floor (e.g. a piece of paper); and
(b) turn their trunk from side to side; and
(c) turn their head to look to the sides or upwards.5 There is a mild functional impact on activities involving spinal function.
(1) The person has some difficulty in:
(a) activities over head height (e.g. activities requiring the person to look upwards); or
(b) bending to knee level and straightening up again without difficulty; or
(c) turning their trunk or moving their head (e.g. to look to the sides or upwards).10 There is a moderate functional impact on activities involving spinal function.
(1)The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a)the person is unable to sustain overhead activities (e.g. accessing items over head height); or
(b) the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c) the person is unable to bend forward to pick up a light object placed at knee height; or
(d) the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).20 There is a severe functional impact on activities involving spinal function.
(1) The person is unable to:
(a) any overhead activities; or
(b) their head, or bend their neck, without moving their trunk; or
(c)bend forward to pick up a light object from a desk or table; or
(d) remain seated for at least 10 minutes.30 There is an extreme functional impact on activities involving spinal function.
(1) The person is:
(a) completely unable to perform activities involving spinal function; or
(b) unable to bend or turn their trunk or their neck to complete the most basic of daily activities (e.g. dressing, bathing, showering or light housework).Table 11 – Hearing and other Functions of the Ear
Points
Descriptors
0
There is no functional impact on activities involving hearing (communication) function or other functions of the ear.
(1) The person:
(a) can hear a conversation at average volume in a room with an average level of background noise (e.g. other people talking quietly in the background); and
(b) does not have to turn the television volume up louder than others in the household to hear clearly; and
(c) the person does not need to use a hearing aid, cochlear implant or other assistive listening device.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).
30
There is an extreme 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.
(1) The person:
(a) is unable to hear anything at all; and
(b) has limited or no ability to understand a recognised sign language (e.g. Auslan).Heart condition
For this condition, the medical reports prepared around the relevant date are those of
Dr Rogers, Dr Wood and Dr Shah. The contents of their respective reports were referred to Mr Stevens and he did not contest their correctness. Dr Rogers described his symptoms as: “minor chest tightness, on heavy exertion. Stable”; “asymptomatic on mild exertion;” and “No problem with moderate exertion.” Dr Wood wrote that Mr Stevens may get angina if he pushes himself too hard but that he has “learned to live within limits”. Dr Shah described “tiredness symptoms due to multiple medication” which impacted on his “endurance” and which he would be taking “for life”.
At the 5 point level in Table 1 of the Impairment Tables, the guiding descriptor is a “mild functional impact on activities requiring physical exertion or stamina”. This reflects the experiencing of occasional symptoms when performing physically demanding activities with associated difficulty in walking to local facilities without stopping to rest, performing physically active tasks or heavier household activities but where most work-related tasks, other than tasks involving heavy manual labour, are able to be performed. The criteria at the 10 point level under that Table require the experiencing of frequent symptoms in day to day activities around the home and community with increased difficulty in mobilisation and, amongst other things, performing day to day household activities such as changing the sheets on a bed.
The JCA assessor recommended 5 points under Table 1 of the Impairment Tables for this condition and I am satisfied that this rating is consistent with Mr Stevens’ evidence[22] and the accounts provided by him to the medical practitioners noted above.
[22] See Para 10 (above).
Back condition
Dr Rogers, Dr Wood and Dr Shah provided evidence in relation to this condition at or about the relevant date. They described limitations on bending and lifting as well as with prolonged walking and sitting. Dr Wood also provided a report some ten months after the relevant date in which episodic exacerbations of sciatica were noted but, even then, his opinion was that the appropriate rating for this condition was 5 points under Table 4 of the Impairment Tables. Dr Khoury’s report was dated some nine months after the relevant date and he was unable to identify nerve root compression to account for left sciatica.
In Table 4 of the Impairment Tables, the guiding descriptor at the level of 5 points is “mild functional impact on activities involving spinal function”. The relevant criteria include some difficulty in activities over head height and bending to knee level and straightening up again without difficulty. The evidence of Mr Stevens was that he was able to hang some clothes on a line but quickly tired and had difficult continuing with this activity. At the 10 point level, a criterion is an inability to sustain overhead activities. Mr Stevens’ description of his inability in hanging washing meets the limitation given at both the 5 and 10 points levels. However, there was no evidence that other aspects of the 10 point criteria, such as being unable to bend forward to pick up a light object placed at knee height or needing assistance to get up out of a chair, were met. I note that rule 11(1)(c) of the Rules reads:
11 Assigning an impairment rating
…
(1)(c) if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied;
The JCA assessor recommended a rating of 5 points for this condition and that was also the opinion of Dr Wood months later. I am satisfied that 5 points is the appropriate rating under Table 4 of the Impairment Tables for this condition.
Hearing loss
In March 2012, Dr Wood referred to Mr Stevens’ hearing loss and described its impact as presenting difficulty when communicating in the presence of background noise.
Dr Simhadri, in May 2013, confirmed binaural percentage hearing loss of 20% with a moderate functional impact on his activities involving hearing. The recommendation for hearing aids has been carried out.
The guiding descriptor at the 5 point level in Table 11 of the Impairment Tables is that there is mild functional impact on activities involving hearing (communication) function or other functions of the ear. The criteria at that level include “difficulty hearing a conversation at an average volume in a room with background noise” and where a hearing aid may be used. The JCA assessor recommended a rating of 5 points under Table 11 of the Impairment Tables and I am satisfied that that is the appropriate rating in this matter.
Overall impairment
With allocations of 5 points for each of the three conditions identified above as being permanent in Mr Stevens, the overall impairment is 15 points. On the basis of those findings, it follows that the threshold of 20 impairment points required under s 94(1) of the Act is not met. The applicant was not qualified for the disability support pension as at the relevant date.
Work capacity
The respondent has conceded that the work capacity requirement of s 94 of the Act is satisfied. However, as the required impairment rating had not been met, it is not necessary to consider the work capacity requirement of that provision.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of
Mr R G Kenny, Senior Member...............................[Sgd].........................................
Associate
Dated 7 November 2013
Date of hearing 28 October 2013 Applicant In person Solicitor for the Respondent Mr Ashley Burgess, Departmental Advocate
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