JOHN PATTINSON and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2013] AATA 257

[2013] AATA 257 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/4490
Re	JOHN PATTINSON
APPLICANT
And	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT

DECISION

Tribunal	Mr R G Kenny, Senior Member
Date	29 April 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 – Two forms of physical impairment – Impairment Tables – First condition not fully treated and stabilised and not permanent – Impairment for other condition 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 27, 94

Social Security (Administration) Act 1999 (Cth) 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

BACKGROUND

1. On 25 January 2012, Mr John Pattinson made a claim for disability support pension which is payable under the terms of the Social Security Act 1991 (Cth) (the Act). This was rejected by a Centrelink delegate on 16 March 2012. On 12 July 2012, an authorised review officer affirmed that decision, as did the Social Security Appeals Tribunal on 26 September 2012. The conditions identified by Mr Pattinson’s treating practitioner, Dr Anura Tennakoon, in her report, dated 2 February 2012, were “neck spondylosis” and “L/S hearing impairment /tinnitus”.[1]

   [1] Exhibit 1, T-document 18, pp. 142-149.

   LEGISLATION, ISSUES AND SUBMISSIONS

2. The qualifications for disability support pension are set out in s 94 of the Act. It is common ground that Mr Pattinson meets the age and residency requirements of that provision and has a physical impairment in relation to his spinal and hearing conditions. The remaining requirements in s 94 of the Act, and the matters in issue, are:

   ·whether Mr Pattinson has an impairment rating of 20 points or more which is calculated under the Impairment Tables[2] in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 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.

   [2] See s 27 of the Act.

3. To qualify for disability support pension, all of the requirements in s 94 of the Act must be met. Further, they must be met at the time of the initial claim or in the period of 13 weeks from the day of the claim.[3] In Mr Pattinson's case, that period is from 25 January 2012 until 25 April 2012 (the relevant period). It is noted that a subsequent claim by Mr Pattinson for disability support pension was granted by the respondent with effect from 28 November 2012.

   [3] See Schedule 2, cl 3 and cl 4 of the Social Security (Administration) Act 1999 (Cth).

4. The requirements to be followed in applying the Impairment Tables are set out in s 6 therein, which 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).

5. Ms Bob Hamilton, for the respondent, submitted that, on the evidence available in the relevant period, only one of the two conditions identified above was fully diagnosed, fully treated and fully stabilised so as to be permanent such that an impairment rating could be allocated to it. This was neck spondylosis for which, he submitted, a rating of 10 points, assessed under Table 4 of the Impairment Tables, was appropriate. He expressed concern at the approach adopted by assessors in relation to Mr Pattinson’s tinnitus. He submitted that it had not been fully diagnosed as required under the Impairment Tables at any time from the start of the relevant period and that, accordingly, no impairment rating could be allocated to it under Table 11. He submitted that Mr Pattinson had a diagnosed hearing condition in the form of mild hearing loss in his left ear but that this attracted a nil impairment rating. This meant, he submitted, that the level of impairment required under s 94(1) of the Act was not satisfied. He also submitted that Mr Pattinson did not satisfy the incapacity for work requirements of s 94(2) of the Act.

6. Mr Pattinson’s submission was that proper regard had not been had by the respondent to the medical evidence he had provided. He submitted, initially, that he should have been allocated 20 points for his neck condition. However, during the hearing he indicated that 10 points was appropriate. He submitted that he should have been allocated 10 points for his tinnitus and that he was no longer capable of carrying out his work as a truck driver. With a combined allocation of 20 points and reduced work capacity, he submitted that he should have been paid the disability support pension from the date of his claim in January 2012.

   EVIDENCE

7. Mr Pattinson described the problems he has with his neck but he conceded that he is able raise his arms above his head for short periods, to rotate his head to an extent, to bend and pick up items placed at knee height and to remain in a seated position for an hour or more. He said that his spinal problem has worsened since he made his claim for disability support pension in January 2012.

8. In relation to his hearing, Mr Pattinson said that he had been provided with a hearing aid some two years ago and that it was to assist him with his tinnitus. He described this condition as very distracting, especially when other conversations are taking place, and he said that it also interferes with his sleep.

9. An audiometry report, dated 13 January 2011,[4] from Australian Hearing refers to Mr Pattinson complaining of severe tinnitus in his left ear. It also reports normal hearing in the right ear and a mild sensorineural hearing loss in the left ear. A further report from Australian Hearing dated 23 November 2011,[5] again reports normal hearing in the right ear with some worsening in the left ear at 2000 Hz. Tinnitius of increased severity is described and it is noted that a hearing aid had recently been provided to Mr Pattinson for the condition. An audiogram from the Royal Brisbane & Royal Women’s Hospital dated 20 January 2012, describes Mr Pattinson’s hearing as “essentially normal” and, because of this, the left ear hearing aid as being of no help to him. Tinnitus is not referred to in that report. Dr Tannakoon, on 2 February 2012, diagnosed Mr Pattinson as having “L/S hearing impairment” and “tinnitus”.[6]

   [4] Exhibit 4.

   [5] Exhibit 1, T-document 11, pp. 107-108.

   [6] Exhibit 1, T-document 18, pp. 142-149, esp. p. 145.

10. A Job Capacity Assessment (JCA) report was completed on 13 February 2012 by rehabilitation counsellor “CW”.[7] In reliance on an audiologist’s assessment on 20 January 2012, she described Mr Pattinson’s tinnitus as permanent and his hearing as “essentially normal”. That report described Mr Pattinson as not being a candidate for hearing aids and that he remained on a waiting list to see an ear, nose and throat specialist. Despite the reference to the permanence of the condition, the reporter’s opinion was that the condition had not been fully diagnosed or stabilised because of the pending specialist treatment and that no impairment rating under Table 11 could be allocated to it.

    [7] Exhibit 1, T-document 19, pp. 150-157.

11. The JCA reporter also referred to Mr Pattinson’s spondylosis as permanent, with functional effects identified as reduced sitting capacity of one hour with breaks, standing tolerance of one hour and a reduced range of movement tolerance to half normal. In so concluding, the reporter reviewed medical reports from Dr Tennakoon and physiotherapist Steve Skippen. The reporter’s opinion was that the appropriate impairment rating under Table 4 for spondylosis was 10 points.

12. The reporter also considered Mr Pattinson’s work capacity and assessed this at a baseline capacity of 15-22 hours per week and also at that level, with intervention, in light skilled work such as administration, bench top assembly or customer service.

13. Medical reports completed after the relevant period comprise that of Dr Neil Jensen on 3 December 2012[8] and Dr Lisa Christiansen on 6 December 2012[9], as well as a JCA report, dated 13 December 2012, from CW.[10] Dr Jensen again entered a diagnosis of tinnitus with its impact being “constant ringing in ears”; Dr Christiansen also diagnosed tinnitus which “disrupts concentration, sleep and functionality”; but each of them categorised the condition as being “well managed “ and causing “minimal or limited impact on ability to function”. Dr Jensen identified Mr Pattinson’s neck problem and noted that it had deteriorated with “progressive increase in pain and limitation of function”.

    [8] Exhibit 2, Supplementary T-document 1, pp. 210-218.

    [9] Exhibit 2, Supplementary T-document 3, pp. 224-231.

    [10] Exhibit 2, Supplementary T-document 4, pp. 234-240.

    CONSIDERATION

14. As noted above, the relevant period for assessing Mr Pattinson’s qualification for the disability support pension is the 13 weeks from 25 January 2012 until 24 April 2012. Mr Pattinson’s evidence and the medical evidence from that period in relation to his back condition supports the opinion of the JCA reporter that the appropriate impairment rating under Table 4 is 10 points. It reads:

    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).

15. In relation to tinnitus, Mr Hamilton expressed concern that the diagnosis had been made in circumstances where the only material available was Mr Pattinson’s own reporting of the noises in his ear. In that regard, Mr Hamilton noted that the Introduction to Table 11 was guarded in relation to self-reporting. I accept his contention in that regard but note that the reference in the Introduction is that self-report of symptoms “alone” is insufficient. A further requirement is corroborating evidence from a source which includes the person’s treating doctor. In this case, there is such a report. Further, the Introduction to Table 11 refers to the need, in making a diagnosis, for supporting evidence by an audiologist or ENT specialist and, in that regard, it has been confirmed by audiologist Lisa Christiansen. I am satisfied that a diagnosis of tinnitus may be made. However, Dr Tennakoon’s report refers to ongoing investigations in relation to that condition and I am satisfied that the JCA reporter has correctly assessed it as not being fully treated and stabilised. In that situation, the condition cannot be described as permanent[11] and an impairment rating may not be allocated to Mr Pattinson’s tinnitus. To the extent that Mr Pattinson’s claim is for hearing loss, I am satisfied on the material before me that his hearing in the right ear is at normal levels and that he a mild loss in the left ear. The appropriate impairment rating under Table 11 for his hearing loss is nil.

    [11] See s 6(3) and (4) of the Impairment Tables.

16. With ratings of 10 and nil under the Impairment Tables, the overall impairment rating which may be allocated to Mr Pattinson’s conditions is below the threshold level of 20 points as provided for in s 94(1)(b) of the Act. It follows that, during the relevant period, he was not qualified for disability support pension. It is not necessary for consideration to be given to his capacity for work.

    DECISION

17. The Tribunal affirms the decision under review.

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.

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

Associate

Dated 29 April 2013

Date of hearing	16 April 2013
Applicant	In person
Solicitor for the Respondent	Mr Bob Hamilton