Linguey and Secretary, Department of Social Services (Social services second review)

[2016] AATA 219

Linguey and Secretary, Department of Social Services (Social services second review) [2016] AATA 219 (7 April 2016)

Division	GENERAL DIVISION
File Number(s)	2015/4217
Re	Lawrence Linguey
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A C Cotter
Date	7 April  2016
Place	Brisbane

The decision under review is affirmed.

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

Senior Member A C Cotter

Catchwords

Disability Support Pension – Impairment ratings – Does not attract 20 points under Impairment Tables – Continuing Ability to work – Insufficient participation in Program of Support – Decision under review affirmed

Legislation

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Secondary Materials

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)

REASONS FOR DECISION

Senior Member A C Cotter

7 April 2016

INTRODUCTION

1.    Mr Lawrence Linguey made a claim for Disability Support Pension (“DSP”) in February 2015. In his claim form, he listed his disabilities as hearing (tinnitus), arthritis and heart condition.[1]

[1] Exhibit 1, T Documents, T 24, page 149, Mr Linguey’s claim for DSP dated 18 February 2015.

2.    A supporting medical report was provided by his general practitioner, Dr Amador Ibanez-Almarche. He described the conditions most having an impact on Mr Linguey’s functional ability as Ischaemic heart disease - AMI (Acute Myocardial Infarction) and hearing loss. As to the former, he noted that Mr Linguey had a cardiac stent inserted in 2013. No future treatment was planned, although Dr Ibanez-Almarche observed that Mr Linguey needed to make some lifestyle changes. The doctor noted that Mr Linguey suffered shortness of breath on minimal exertion. With regard to the hearing loss, current and future treatment was noted as hearing aids. Dr Ibanez-Almarche also remarked that Mr Linguey had osteoarthritis in his knees, but that condition was well managed and caused minimal or limited impact on his ability to function.[2]

[2] Exhibit 1, T Documents, T 23, pages 124-134, medical report of Dr Amador Ibanez- Almarche dated 16 February 2015.

3.    In early March 2015, Mr Linguey attended an assessment by a Job Capacity Assessor (“JCA”), who recommended that his impairments be assigned a total of 15 points under the Impairment Tables. She assessed his baseline work capacity as between 15 and 22 hours per week.[3]

[3] Exhibit 1, T Documents, T 25, pages 165-171, Job Capacity Assessment report dated 6 March 2015.

4.    Presumably based on that assessment, Mr Linguey’s claim was rejected on the ground that he did not have 20 points or more under the Impairment Tables.[4]

[4] Exhibit 1, T Documents, T 26, pages 172-173, letter, Centrelink to Mr Linguey dated 26 March 2015.

5. Mr Linguey sought reviews of that decision, first by an Authorised Review Officer,[5] and later by the Social Services & Child Support Division of this Tribunal (“First Review”).[6] Both were unsuccessful.

[5] Exhibit 1, T Documents, T 29, pages 199-204, Authorised Review Officer’s letter and notes dated 15 May 2015.

[6] Exhibit 1, T Documents, T 2, pages 2-9, decision and reasons for decision of the Social Services & Child Support Division dated 23 July 2015.

6.    Still dissatisfied with the outcome, Mr Linguey has applied to the General Division of this Tribunal to review the decision made at the First Review.

7.    Before I deal with the specific issues raised by this application, I outline the key legislative provisions.

THE LEGISLATIVE FRAMEWORK

8. Section 94 of the Social Security Act 1991 (Cth) (“Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are: that the applicant has a physical, intellectual or psychiatric impairment; that the applicant’s impairment is of 20 points or more under the Impairment Tables; and that the applicant has a continuing inability to work.

9.    The Social Security (Administration) Act 1999 (Cth) makes it clear that qualification for DSP and assessment of the relevant impairment ratings are to be determined as at the date of claim (in this case, 19 February 2015). There is, however, an exception where the person is not qualified on that date but “becomes qualified” within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[7] Therefore, the relevant period for considering whether Mr Linguey qualified for DSP is between 19 February 2015 and 21 May 2015.

[7] See s 41 and s 42, and cl 3 and cl 4(1)(c), Schedule 2, Part 2 of the Social Security (Administration) Act 1999 (Cth).

10.  The Impairment Tables are contained in the Social Security (Tables for the Assessment ofWork-related Impairment for Disability Support Pension) Determination 2011 (“Determination”), a legislative instrument made under the Act.[8] The Tables are function based, rather than diagnostic based, and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[9] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they choose to do or what others do for them.[10]

[8] See s 26(1) of the Act.

[9] See s 5(2) of the Determination.

[10] See s 6(1) of the Determination.

11.  Under the rules for applying the Impairment Tables, an impairment rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than two years.[11] In order for a condition to be considered “permanent”, it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not, in light of available evidence, to persist for more than two years.[12]

[11] See s 6(3) of the Determination.

[12] See s 6(4) of the Determination.

12.  An impairment rating can only be assigned in accordance with the rating points in each Table. A rating cannot be assigned between two consecutive impairment ratings. If an impairment is considered as falling between two ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[13]

[13] See s 11(1) of the Determination.

13. With regard to the requirement that the applicant have a continuing inability to work, all the criteria in s 94(2) of the Act need to be satisfied. Essentially, they are that the applicant must:

a)have actively participated in a program of support (if he or she does not have a “severe impairment” as defined in s 94(3B)); and

b)be unable to work for at least 15 hours per week independently of a program of support; and

c)be unable to participate in a training activity, or if the impairment does not prevent the applicant from undertaking a training activity, such activity is unlikely (because of the impairment) to enable him or her to do any work independently of a program of support within the next two years.

14. Under s 94(3B) of the Act, a person’s impairment is considered “severe” if their impairment is of 20 points or more under the Tables, of which 20 points or more are under a single Table.

ISSUES FOR THE TRIBUNAL

15.  It is accepted that, at the relevant time, Mr Linguey had physical impairments arising from the conditions already mentioned.[14] The first of the requirements, in s 94(1)(a) of the Act, is therefore satisfied.

[14] See Exhibit, 2, Secretary’s Statement of Facts and Contentions dated 29 January 2016, paragraph [20].

16.  Consequently, the remaining issues for me to consider are:

a)whether, at the relevant time, Mr Linguey’s impairments attracted 20 points or more under the Impairment Tables; and

b)if so, whether he had a continuing inability to work.

17.I address those issues below.

CONSIDERATION

Did Mr Linguey have 20 points or more under the Impairment Tables?

18.  I consider this question by reference to the conditions mentioned above.

Heart disease

19. 

It is not in dispute that this condition was fully diagnosed, treated and stabilised during the relevant period.[15] Mr Linguey suffered an Acute Myocardial Infarction in July 2013 and subsequently required stent insertion. No future treatment was envisaged by

[15] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 29 January 2016, paragraph [33].

Dr Ibanez-Almarche, although he noted Mr Linguey needed to make some lifestyle changes.

20.  Dr Ibanez-Almarche indicated that this condition caused Mr Linguey to experience shortness of breath on minimal exertion.[16] It is therefore appropriate to consider this impairment under Table 1, dealing with functions requiring physical exertion and stamina.

[16] Exhibit 1, T Documents, T 23, page 129, medical report of Dr Amador Ibanez-Almarche dated 16 February 2015.

21.  In addition to Dr Ibanez-Almarche’s observations, recourse can also be had to Mr Linguey’s self-report to the JCA and his evidence at the time of the First Review.

22.  Mr Linguey told the JCA that his shortness of breath typically occurred when he was performing  physically active tasks or heavier household activities, such  as lawn mowing, walking up stairs, home maintenance (e.g. hanging curtains), and driving heavy machinery. He said that the symptoms typically did not occur when he was engaging in light to moderate activity.[17]

[17] Exhibit 1, T Documents, T 25, page 167, report of JCA dated 6 March 2015.

23.  Giving evidence at the First Review, Mr Linguey said that he was able to do his grocery shopping without difficulty and without “any huffing or puffing”. He went on to say that his breathing is “generally good when undertaking light activities, although more intensive activities like vacuuming cause shortness of breath”.[18]

[18] Exhibit 1, T Documents, T 2, page 8, decision and reasons for decision of Social Services & Child Support Division dated 23 July 2015, paragraphs [23] and [24].

24.  Mr Linguey’s partner, Ms Leanne Dehne, gave evidence at the hearing, and largely confirmed what Mr Linguey told the First Review, as outlined in the preceding paragraph. She repeated what she told the First Review, that Mr Linguey ends up “gasping for breath” after sexual activity,[19] adding that she is concerned that he could over-exert himself. 

[19] Ibid, paragraph [24].

25.  Having regard to that evidence, I consider that Mr Linguey satisfies the descriptor for mild functional impairment under Table 1 and that five points should therefore be assigned in respect of this impairment. I do not believe there is any evidence to warrant a consideration of moderate functional impairment (10 points).

Hearing loss

26.  Mr Linguey described this as his main issue.

27.  The report of Dr Ibanez-Almarche which accompanied the claim identified hearing loss as a condition impacting on Mr Linguey’s ability to function. It noted that the diagnosis was supported by the further specialist opinion of an audiologist, whose report was attached.[20] The audiologist, Ms Zoe Williams of Australian Hearing, confirmed Mr Linguey’s reports of “experiencing tinnitus in both ears of severe severity and also history of noise exposure”. His audiogram showed mild to severe sensorineural hearing loss bilaterally. Tympanometry results were “consistent with normal middle ear function in both ears”. Speech audiometry showed good speech discrimination in both ears with appropriate amplification. Ms Williams added that Mr Linguey was “keen to proceed” with hearing aids to assist his listening needs.[21]

[20] Exhibit 1, T Documents, T 23, page 130, medical report of Dr Amador Ibanez-Almarche dated 16 February 2015.

[21] Exhibit 1, T Documents, T 18, page 118, report of Ms Zoe Williams (Australian Hearing) dated 4 July 2014.

28.  The JCA recorded that Mr Linguey was able to converse with her in a quiet interview room, although he reported difficulty in the presence of background noise such as other voices, traffic or industrial sounds. Her report noted that while Mr Linguey wears bilateral hearing aids, he typically removes them and relies on head phones when using a telephone.[22]

[22] Exhibit 1, T Documents, T 25, page 168, report of JCA dated 6 March 2015.

29.  Consistent with the JCA report, it was noted on the occasion of the First Review (which was heard by phone) that Mr Linguey was easily able to conduct a conversation using headphones plugged into his mobile phone with “the volume turned up to full”. By contrast, it was noted that, despite the assistance of his hearing aids, he appeared to understand little of the conversation when using the speaker function on his phone.[23]

[23] Exhibit 1, T Documents, T 2, page 6, decision and reasons for decision of Social Services & Child Support Division dated 23 July 2015, paragraph [14].

30.  Mr Linguey told the First Review that he misses around 50% of a conversation conducted at normal volume in a quiet room and can only understand around 20% of speech from a television at normal volume. If there is any background noise, he cannot hear a thing. He noted that the JCA did not record in her report the fact that he continually had to have her repeat sentences.[24]

31.  Mr Linguey also told the First Review that a different audiologist had observed that he relied heavily on lip reading to fully understand a normal conversation.[25] However, there was no other evidence to corroborate that observation.

32.  Subsequent to the First Review, Dr Ibanez-Almarche provided a further report in which he stated that Mr Linguey had “moderately-severe hearing loss and complains of constant tinnitus, postural dizziness and true vertigo”. He observed that “(a)ll these symptoms and signs are consistent with an inner ear pathology. Possibly Meniere’s disease”.[26] A medical certificate completed by Dr Ibanez-Almarche the same day described past and present treatment of Mr Linguey’s hearing loss as “n/a”, with hearing aids as planned treatment.[27]

33.  Mr Linguey and Ms Dehne gave evidence at the hearing as to the impact which Mr Linguey’s hearing loss had on their daily lives.

34.  Ms Dehne described life as being “very hard”. She said that she has to ask Mr Linguey a question at least three times before he responds. The television is turned up very loud, which she does not like. Communication is quite difficult, and made worse by the fact that her son mumbles. Mr Linguey’s condition has been the source of much miscommunication; she finds it frustrating.

35.  Mr Linguey told me that he had previously been approached for a job driving heavy equipment (which he did prior to his heart attack), but was subsequently refused that role because of his poor hearing. He also told me that he does voluntary work for Vinnies two days a week, each of seven and a half hours’ duration. He described the difficulties he encounters in that role, in not being able to hear his supervisor’s instructions. As a result of his condition, he tends to withdraw.

36.  I asked Mr Linguey about his use of hearing aids. He told me that he had obtained a free pair from the Government but they were useless and he does not use them. He said that they simply amplify the sound, so that he hears a cacophony of competing sounds. There are other, more sophisticated hearing aids available that mitigate that problem, but they are too expensive.

37.  During cross-examination, Mr Linguey was asked about his dizziness and vertigo and in particular, whether there had been any earlier reference to them in the material before Dr Ibanez-Almarche’s most recent report. He was unable to identify any. He did not know what, if any, further action his doctor had planned for him, such as referral to an Ear, Nose and Throat specialist.

38.Mr Linguey contended that his hearing impairments should be considered severe and attract 20 points alone under Table 11 (Hearing and other Functions of the Ear). He submitted that he satisfied all but two of the sub points in point (1) of the descriptors for severe impact, as well as meeting the separate descriptor in point (2). 

[24] Ibid, paragraph [16].

[25] Ibid, paragraph [17].

[26] Exhibit 2(a), medical report of Dr Amador Ibanez-Almarche dated 21 December 2015.

[27] Exhibit 2(b), medical certificate of Dr Amador Ibanez-Almarche dated 21 December 2015.

39.  It was submitted on behalf of the Secretary that the impairment was moderate and attracted no more than 10 points.[28]

[28] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 29 January 2016, paragraph [37].

40.  Point (1) of the descriptors relates to hearing function, while point (2) is concerned with balance or ringing in the ears.

41.  As regards the descriptor under point (1), Mr Linguey submitted that he met the requirements in sub points (a), (b) and (c). However, he conceded that he did not meet those in sub points (d) and (e), relating to the need to use a captioned telephone and being completely reliant on sign language, lip reading or other non-verbal communication methods in order to converse with others. I believe those concessions were appropriate. I also have doubts as to whether Mr Linguey could meet sub point (a), given the observations of the JCA that they were able to converse in a quiet interview room (notwithstanding that Mr Linguey may have had to ask for her to repeat sentences).  As all of the requirements in the sub points have to be met, I do not consider that Mr Linguey satisfied the descriptor in point (1).

42.  Point (2) of the descriptors for 20 points reads:

(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).

43.  As mentioned earlier, Dr Ibanez-Almarche’s December 2015 report was the first occasion on which reference had been made to balance and dizziness.  The report simply noted that Mr Linguey complains of dizziness and true vertigo. The Introduction to Table 11 states that self-report of symptoms alone is insufficient and that there must be corroborating evidence of the person’s impairment. In the absence of such evidence, I do not consider the first limb of the descriptor in point (2) is met. In any event, there is no earlier reference to these symptoms; the complaints come some seven months after the relevant period.

44.  As to the second limb, Mr Linguey says that he has continual ringing in the ears which interfere with hearing, and that is due to a medically diagnosed disorder of the middle ear, such as Meniere’s disease or tinnitus. The difficulty for Mr Linguey is that while there has been mention of those disorders, there has not, at least on the evidence, been a diagnosis as required under the table. The Introduction to Table 11 requires that diagnosis of the condition must be made by an appropriately qualified medical practitioner with supporting evidence from an audiologist or Ear, Nose and Throat specialist. Tinnitus was not diagnosed by Ms Williams in July 2014; rather, she recorded Mr Linguey’s report of tinnitus without going further. Similarly, Dr Ibanez-Almarche’s most recent report does not diagnose Meniere’s disease; it simply notes it as a possibility. Even if it were a diagnosis, there is no supporting evidence from an audiologist or Ear, Nose and Throat specialist. Indeed, on the contrary, Dr Ibanez-Almarche’s suggestion of inner ear pathology is inconsistent with Ms Williams’ observation that tympanometry results were consistent with normal middle ear function in both ears. I therefore do not consider that the second limb of the descriptor in point (2) could be satisfied based on the available material. Further, in respect of Meniere’s disease, Mr Linguey suffers from the same timing issue as mentioned already; even if he could satisfy the necessary tests, this issue was first raised some seven months after the relevant period.

45.  For those reasons, I do not believe that Mr Linguey presently satisfies the requirements for severe impairment under Table 11. I do, however, accept that his hearing loss, as previously diagnosed and reported, is moderate and attracts 10 points accordingly.

The knee condition

46.  There is no dispute that Mr Linguey has a lower limb impairment from osteoarthritis in both knees and that the condition was fully diagnosed, treated and stabilised at the relevant time.[29]

[29] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 29 January 2016, paragraph [28].

47.  Dr Ibanez-Almarche described the condition as well managed and one which had minimal or limited impact on Mr Linguey’s ability to function.[30]

[30] Exhibit 1, T Documents, T 23, page 133, medical report of Dr Amador Ibanez- Almarche dated 16 February 2015.

48.  Mr Linguey told the JCA that although he was independent in doing so, he did use a railing for support when climbing stairs. He also reported having a standing tolerance of five to 10 minutes, although he did not require the use of a walking stick.[31]

[31] Exhibit 1, T Documents, T 25, page 168, JCA report dated 6 March 2015.

49.  In evidence at the First Review, Mr Linguey said that he was walking four kilometres every second or third day following his heart operation in 2013. However, he decided to stop because of the knee pain which it caused. He indicated that he is able to do his grocery shopping without issue. He told the First Review that he was able to negotiate a flight of stairs with some difficulty and was able to stand for 10 to 15 minutes; he did not require the use of a walking aid.[32]

[32] Exhibit 1, T Documents, T 2, page 9, decision and reasons for decision of Social Services & Child Support Division dated 23 July 2015, paragraphs [28] and [29].

50.  The relevant table to consider is Table 3 (Lower Limb Function).  The descriptor for mild functional impact (five points) requires the applicant to have met two requirements. The first, contained in point (1) of the descriptors, is satisfied in the present case, in that it is accepted that Mr Linguey has some difficulty in climbing stairs as specified in sub point (1)(c). To be assigned five points, he also has to satisfy point (2), which requires at least one of the following: the person is unable to stand for more than 10 minutes; and the person can mobilise effectively, but needs to use a lower limb prosthesis or a walking stick. It being accepted that Mr Linguey does not use a walking stick, the question arises as to his standing tolerance. There is some inconsistency on that question, between what Mr Linguey told the JCA (five to 10 minutes) and subsequently, the First Review (10 to 15 minutes).  I also note that at the hearing before me, Mr Linguey did not contest that he could stand for more than 10 minutes. Given that, and the fact that Mr Linguey’s evidence to the First Review was on affirmation, I do not believe that he satisfies point (2) of the descriptors, and therefore does not meet the requirements for mild functional impairment. I therefore assign nil points to this impairment.

Other conditions

51.  An earlier report prepared by another doctor, Dr Jacob Mathai, also mentioned two other conditions - gout and depression - not addressed by Dr Ibanez-Almarche. For the sake of completeness, I also deal with them here.

52.  Both of those conditions were described by Dr Mathai in his last report as generally well managed and which caused limited or minimal impact on functional ability.[33]

[33] Exhibit 1, T Documents, T14, page 106, Medical Report of Dr Jacob Mathai dated 20 January 2014.

53.  That view was reiterated by Mr Linguey at the First Review. He said that his depression had since resolved and that his gout was well controlled with medication and therefore, was not an issue.[34]

[34] Exhibit 1, T Documents, T 2, page 4, decision and reasons for decision of the Social Services & Child Support Division dated 23 July 2015, paragraph [10].

54.  I therefore assign no points in respect of those conditions.

Total impairment points – summary

55.  To summarise, I consider that Mr Linguey has 15 impairment points, being five points under Table 1 (Functions requiring Physical Exertion and Stamina) and 10 points under Table 11 (Hearing and other Functions of the Ear).

56. I therefore conclude that, at the relevant time, Mr Linguey did not qualify for DSP because he did not satisfy the requirement under s 94(1)(b) of the Act, that he have impairments of 20 points or more under the tables.

Continuing Inability to Work

57. 

In light of my finding that Mr Linguey did not qualify for DSP because he did not have the requisite total of impairment points, it is unnecessary for me to consider the question of whether he had a continuing inability to work, since the requirements of

s 94 are cumulative.

58.  However, in case I am wrong in relation to the assignment of impairment points, I make the following comments, for the sake of completeness.

59. As none of Mr Linguey’s impairments attracted 20 points under a single table, they could not be considered “severe” for the purposes of s 94(3B) of the Act.

60.  Consequently, Mr Linguey cannot be said to have a continuing inability to work unless he actively participated in a Program of Support (“POS”). In order to satisfy the relevant requirement, he had to have actively participated in a POS for 18 months in the 36 months prior to the date of claim.

61.  There is no evidence that Mr Linguey satisfied that requirement. In fact, his referral history[35] shows only limited intermittent participation interspersed with significant periods of temporary exemptions (which are not counted as participation[36]). Calculations undertaken by the Secretary’s lawyer suggest that Mr Linguey had participated on 295 days (about 10 months) in the relevant period.[37] Mr Linguey did not directly challenge that, saying that he did not keep a record of the relevant dates.

[35] Exhibit 2(c), POS Referral History: Attachment C to Secretary’s Statement of Facts and Contentions dated 29 January 2016.

[36] See s 8 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (“Active Participation Determination “).

[37] Exhibit 3, working calculation of POS activity.

62.  Nor is there any evidence that any of the exceptions to POS participation apply in Mr Linguey’s case.[38]

[38] See ss 7(3) to 7(5) of the Active Participation Determination.

63.  Even if, contrary to my earlier finding, Mr Linguey’s impairments attracted 20 points under the tables, it follows that he would still not qualify for DSP because he had not actively participated in a POS.

CONCLUSION

64.  To conclude, I do not consider that, at the relevant time, Mr Linguey qualified for DSP because his impairments did not attract 20 points or more under the Impairment Tables. Even if they did, I do not think he would have been able to meet the “continuing inability to work” requirement, in that he did not relevantly participate in a POS.

65.  Accordingly, the decision under review is affirmed.

I certify that the preceding 65 paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter.

………[sgd]…………………..

Associate

Dated 7 April 2016

Date of hearing  11 March 2016

Applicant  Lawrence Linguey, self by phone

Advocate for Respondent                  Department of Human Services