O'Meara and Secretary, Department of Social Services (Social services second review)

[2017] AATA 1226

O'Meara and Secretary, Department of Social Services (Social services second review) [2017] AATA 1226 (7 August 2017)

Division:GENERAL DIVISION

File Number:           2017/0380

Re:Michael O'Meara

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member P E Nolan

Date:7 August 2017

Place:Brisbane

The decision under review is affirmed.

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

Senior Member P E Nolan

CATCHWORDS

SOCIAL SECURITY – disability support pension – inner ear conditions – whether conditions permanent – whether conditions fully diagnosed – whether sufficient supporting documentation for conditions to be diagnosed – where conditions were not fully diagnosed – where conditions were not permanent – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth), s 94
Social Security (Administration) Act 1999 (Cth), ss 41 and 42, and cls 3 and 4(1), Schedule 2, Part 2

CASES

Balihodzic and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 795

Bobera and Secretary, Department of Families, housing, community Services and Indigenous Affairs

[2012] AATA 992

Dawson and Secretary, Department of Social Services

[2016] AATA 332

SECONDARY MATERIALS

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

REASONS FOR DECISION

Senior Member P E Nolan

7 August 2017

INTRODUCTION

1. On 15 February 2016, Mr Michael O’Meara (“the Applicant”) lodged a claim for Disability Support Pension (“DSP”), listing his medical conditions as “accute (sic) dizziness + vertigo”; “no balance”; and “vestibular neuritis”.[1]

   [1] Exhibit 1, T Documents, T 24, p 64.

2. In support of his claim for the DSP, the Applicant provided a medical report by
   

   [2] Exhibit 1, T Documents, T 25, pp 92-93.

   Mr Simon Whitehart, a physiotherapist at the Royal Brisbane and Women’s Hospital Vestibular Physiotherapy Screening Clinic.[2] It does not appear that the Applicant attached the standard form DSP medical report to his application, and nor did he provide any supporting evidence from a doctor when he lodged his application.

3. The Applicant was unsuccessful in his application for DSP, and was notified on
   10 May 2016 after an unfavourable Job Capacity Assessment (“JCA”) Report dated
   13 April 2016. Dissatisfied with this result, the Applicant sought review of that decision by an Authorised Review Officer (“ARO”). In a decision dated 27 June 2016, ARO relied on a second JCA Report dated 1 June 2016, as well as additional medical evidence, in upholding the original decision. The Applicant subsequently applied for review of that decision by the Social Services and Child Support Division of this Tribunal (“AAT1”), where he was again found to not qualify for the DSP, in a decision dated
   13 December 2016.

4. On 11 January 2017, the Applicant applied to this Tribunal for review of the decision made by the Respondent not to grant him DSP.

5. The issue before the Tribunal is whether the Applicant qualified for DSP within the relevant qualification period (the “Relevant Period”) – the condition must be assessed as it was between 15 February 2016 (the date of the Applicant’s claim), and 16 May 2016
   (13 weeks after the date of the Applicant’s claim).

   LEGISLATIVE FRAMEWORK

   6. Section 94 of the Social Security Act 1991 (Cth) (“the 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.

   7.       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, 15 February 2016). 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.[3]  Therefore, the relevant period for considering whether the Applicant qualified for DSP is between 15 February 2016 and 16 May 2016 (“the Relevant Period”). The Applicant’s condition and thus assessment of attributable impairment points must be undertaken as at the Relevant Period.[4]

   [3] See ss 41 and 42, and cl 3 and cl 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999

   [4] See Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

   8.       The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”).[5] 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.[6] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they chose to do or what others do for them.[7]

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

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

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

   9.       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 is more likely than not, in light of the available evidence, to persist for more than two years.[8] 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 to persist for more than two years.[9]

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

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

   10.     In determining whether a condition has been fully diagnosed and fully treated, the following facts are to be considered:

   (a)whether there is corroborating evidence of the condition;

   (b)what treatment or rehabilitation has occurred in relation to the condition; and

   (c)whether treatment is continuing or is planned in the next two years.[10]

   [10] See s 6(5) of the Determination.

   11.     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:

   (c)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

   (d)there is a medical or other compelling reason for the person not to undertake reasonable treatment.[11]

   12.     “Reasonable treatment” is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[12] An impairment rating can only be assigned in accordance with the rating points in each Table.

   13. In respect of the requirement that the Applicant have a continuing inability to work, all the criteria in section 94(2) of the Act need to be satisfied.

   CONSIDERATION

   Did the Applicant have a physical, intellectual, or psychiatric condition which was fully diagnosed, treated and stabilised during the relevant period?

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

   [12] See s 6(7) of the Determination.

   Which Conditions Does the Applicant Suffer From?

6. In his application for DSP, the Applicant listed three conditions for which he sought to claim DSP: “accute (sic) dizziness + vertigo”; “no balance”; and “vestibular neuritis”.[13] Although there is some evidence the Applicant also suffers from some cardiovascular conditions,[14] I am limited in this matter to consider only the conditions listed on the Applicant’s claim for DSP, as no decision has been made on those conditions.[15]

   [13] Exhibit 1, T Documents, T 24, p 64.

   [14] See for example Exhibit 1, T Documents, T 10, p 44.

   [15] See for example Balihodzic and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 795, [17] (DP Forgie).

7. The Applicant appeared before the Tribunal by telephone and spoke about his condition and the lengths he had gone to in order to cope with it. I have no doubt that he is telling the truth and believe him. He has clearly done everything in his power to cope with and treat the condition as best he can. In my opinion he is not exaggerating at all. However, unfortunately, his oral evidence is not enough. I will deal with that shortly.

8. The Respondent concedes that the Applicant suffers from “chronic subjective dizziness” caused by vestibular neuritis.[16] On balance, I consider that the three conditions the Applicant listed in his claim essentially represent the condition, its symptoms and its cause. I therefore find that this is the condition from which the Applicant suffers, for the purposes of this decision.

   [16] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), [45]-[48].

   Is the Applicant’s Condition Fully Diagnosed, Treated and Stabilised?

9. To determine if the condition is fully diagnosed by a relevant medical practitioner, I must look to the requirements of the relevant Impairment Table.[17] The appropriate Table is Table 11 of the Impairment Tables, which deals with ear infections and other ear-related functions. Provided there is some functional impact, the scope of points that can be assigned under Table 11 ranges from 5 to 20 points. The most applicable sub-paragraph in Table 11 to the Applicant’s condition is sub-paragraph 2 in each of the different point bands. This is appropriate because the Applicant complains of dizziness and lack of balance. However, the impairment needs to be attributable to “a medically diagnosed disorder of the inner ear”.[18]

   [17] Dawson and Secretary, Department of Social Services [2016] AATA 332, [75].

   [18] The Determination, Table 11, pp 47-48.

10. Table 11 requires that the diagnosis of the condition must “be made by an appropriately qualified medical practitioner with supporting evidence from an audiologist or Ear, Nose and Throat (ENT) specialist.”[19] Similarly, there must be corroborating evidence to be considered under section 6(5)(a) of the Determination. This is described non-exhaustively as a report from a treating doctor, or the confirmation of a diagnosis by a medical specialist, or the results of an audiological assessment.[20]

    [19] The Determination, Table 11, p 46.

    [20] The Determination, Table 11, p 46.

11. The only evidence provided with the Applicant’s claim was a report from
    Mr Simon Whitehart, a physiotherapist. Other evidence has been compiled in the
    T Documents, and primarily consists of medical certificates provided to the Respondent by the Applicant’s various treating doctors. Mr Whitehart’s reports are the most substantive evidence provided. While I have no doubt that Mr Whitehart was trying to help the Applicant, he has in a sense become unhelpful due to what I consider to be the undue weight that has been attached by various sources, including by AAT1, and the Applicant’s current GP, Dr Ceasar Torres, to Mr Whitehart’s opinions.

12. Although, on close analysis, it is clear that neither AAT1 nor Dr Torres relied entirely upon Mr Whitehart’s reports, it is plain from Table 11 that what is needed for the Applicant to show that his conditions are fully diagnosed is a medical practitioner diagnosing the condition with supporting evidence from an Ear, Nose and Throat (ENT) specialist or an audiologist. This diagnosis must apply during the relevant period.

13. While Dr Torres did, in his report of 23 May 2016, say the Applicant had been diagnosed as “suffering from Chronic Vertigo”,[21] his report is insufficiently detailed for me to be able to make a finding that the condition was fully diagnosed. Dr Torres describes the diagnosis as having been made by Dr Andrew Wong, a neurologist, and by Mr Whitehart. Mr Whitehart is neither an ENT specialist nor an audiologist, so his statement is insufficient to form the basis of a diagnosis. From this report, however, it can be gleamed that the Applicant has been treated by Dr Wong. Unfortunately, as I have not been presented any direct evidence of Dr Wong’s report or diagnosis, it is impossible for me to rely on his opinion to find that the Applicant’s condition was fully diagnosed.

    [21] Exhibit 1, T Documents, T 33, p 131.

14. Even if the Tribunal had the benefit of Dr Wong’s report, that may not be sufficient for me to form the view that the Applicant’s condition was fully diagnosed. The words of Table 11 are clear: the diagnosis must have been made “with supporting evidence from an audiologist or Ear, Nose and Throat (ENT) specialist” (emphasis added). Unless that supporting evidence exists, it is not clear to me how a diagnosis can be made in accordance with Table 11. At any rate, it does not appear that Dr Wong, a neurologist, would satisfy this requirement.

15. Perhaps the most unfortunate part of this for the Applicant is that, from the evidence, he may well have been referred to, and perhaps even visited, an ENT specialist. In a medical report for Sickness Allowance dated 16 August 2014, Dr Michael Viray, the Applicant’s then-GP, mentioned that the Applicant had been referred to an ENT specialist.[22] Indeed, in several of Dr Viray’s and Dr Torres’ medical certificates for the Applicant, they mentioned that the Applicant was being reviewed by an ENT specialist, and was visiting an ENT clinic.[23] However, on the evidence before me, I cannot conclude that a diagnosis was made by this ENT specialist, or by either Dr Viray or Dr Torres with reference to any report by the ENT Specialist. Quite simply, the Tribunal cannot assume these things;
    

    [22] Exhibit 1, T Documents, T 17, p 53.

    [23] Exhibit 1, T Documents, T18-22, pp 58-62.

    I must be presented with concrete evidence on which to ground my conclusions.

16. As I cannot be sure that the Applicant’s condition was fully diagnosed, it follows that it was not fully treated or stabilised. I therefore cannot find that it was “permanent”.

17. As the Applicant’s condition was not “permanent”, I do not need to progress to considering whether his impairment attracts any Impairment points under Table 11. Similarly, there is no need for me to assess whether the Applicant’s impairment was “severe”, whether he had participated in a program of support, or whether he had a continuing inability to work.

    CONCLUSION

18. In all the circumstances above, I cannot find that the Applicant’s condition is “permanent”, which is required for him to pass the first hurdle and for an impairment rating to be assigned. This concerns me because from the oral testimony from the hearing, it seems to me that the Applicant may genuinely suffer from a condition which would attract 20 points under Table 11. However, without the medical evidence supporting this conclusion, I am not in a position to find it.

19. The medical evidence provided does not sufficiently demonstrate that the Applicant met the criteria for 20 impairment points under Table 11 in the Relevant Period, and that the condition was fully diagnosed, treated and stabilised. Although he may well be successful in a future claim for DSP, with respect to this application, I must affirm the decision under review.

I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member P E Nolan

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

Associate

Dated: 7 August 2017

Dates of hearing:	25 May 2017
Applicant:	By phone
Solicitors for the Respondent:	Ms Shelley He Mills Oakley Lawyers

(Cth).

[2012] AATA 922 at [34]