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

Thomson and Secretary, Department of Social Services (Social services second review) [2016] AATA 194 (31 March 2016)

Division

GENERAL DIVISION

File Number

2015/3771

Re

Douglas Thomson

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Deputy President Dr Christopher Kendall

Date 31 March 2016

Place Perth
The decision under review is affirmed.
........................[sgd]...............................................
Deputy President Dr Christopher Kendall
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – meaning of "the Relevant Period" - whether there is a physical, intellectual or psychiatric impairment – whether impairment is of 20 points or more under the Impairment Tables - whether Applicant has a continuing inability to work – decision under review affirmed
LEGISLATION
The Social Security Act 1991 (Cth) – 94(1)(a) – 94(1)(b) – 94(1)(c) – 94(2) – 94(5)
The Social Security (Administration) Act 1999 (Cth) - Schedule 2
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 - 6(3) – 6(4) – 6(5) – 6(6) – 6(7) – Table 11.
CASES
Crossland and Secretary, Department of Family and Community Services [2004] AATA 864
Li and Secretary, Department of Employment and Workplace Relations [2007] AATA 1606
Re Fanning and Secretary, Department of Social Services [2014] AATA 447
Secretary, Department of Family & Community Services v Michael (2001) 116 FCR 500
Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444
Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846
REASONS FOR DECISION
Deputy President Dr Christopher Kendall
31 March 2016
INTRODUCTION

This matter requires the Tribunal to determine whether Mr Douglas Thomson, aged 62, is eligible for Disability Support Pension (“DSP”). On 9 July 2015, the Administrative Appeals Tribunal (Social Services and Child Support Division) (the “SSCSD”) found that Mr Thomson did not qualify for DSP. That decision affirmed an earlier decision by Centrelink that Mr Thomson did not quality for DSP.
The background facts to this matter, which are not in dispute, were summarised by the Secretary, Department of Social Services (the “Secretary”) in their Statement of Facts, Issues and Contentions dated 30 October 2015 at paragraphs 1 and 3-15. The Tribunal repeats those facts below as follows.
On 28 January 2015, Mr Thomson lodged a claim for DSP (T9 at 61; T17 at 124).
On 24 February 2015, a Job Capacity Assessment (“JCA”) was conducted (T10 at 91). The Tribunal notes that this follows an earlier JCA report dated 14 November 2012, which relates to hearing loss and which is summarised below.
In the 2015 JCA report, It was found that Mr Thomson suffered from partial hearing loss and that this partial hearing loss was fully diagnosed, treated and stabilised as required by the Social Security Act 1991 (the “Social Security Act”). The JCA recommended that the impairment arising from this condition attract an impairment rating of 10 points under Impairment Table 11 of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the “Impairment Tables”) (T10 at 95). Further conditions of depression, alcohol dependence, lower limb deficiencies and musculo-skeletal disorder were assessed but were found not to have been fully diagnosed, treated and stabilised. Accordingly, no impairment ratings were assigned under the relevant Impairment Tables for these conditions (T10 at 92-93).
The 2015 JCA report found that Mr Thomson’s baseline work capacity was 8-14 hours per week and his capacity for work within 2 years with intervention was between 8-14 hours per week (T10 at 96).
On 26 February 2015, Mr Thomson’s claim for DSP was rejected by Centrelink (T11 at 99) (the “Original Decision”).
On 16 March 2015, Mr Thomson requested a review of the Original Decision by an Authorised Review Officer (“ARO”) (T17 at 122).
On 18 March 2015, an ARO affirmed the Original Decision and informed Mr Thomson in writing (T13 at 102). Relevantly, the ARO accepted that Mr Thomson had hearing loss and assigned a rating of 10 points under Table 11 of the Impairment Tables. However, the ARO found that the conditions of depression, alcohol dependence, right knee pain and Dupuytren’s contracture were not fully diagnosed, treated and stabilised and that, accordingly, no impairment ratings could be assigned to these conditions under the relevant Impairment Tables. It was concluded that Mr Thomson did not qualify for DSP. The Original Decision was thus affirmed (T13 105).
On 17 April 2015, Mr Thomson applied to the SSCSD for review of the decision to reject his claim for DSP (T2 at 4).
On 9 July 2015, the SSCSD affirmed the decision to reject Mr Thomson’s claim for DSP (T2 at 3). The SSCSD found that:
a)    Mr Thomson suffers from hearing loss; depression; alcohol dependency; right knee pain and Dupuytren’s Contracture.
b)    The correct impairment rating for Mr Thomson’s hearing loss was 10 points under Impairment Table 11 (T2 at 7).
c)    As Mr Thomson’s depression had not been confirmed by a clinical psychologist or psychiatrist, it could not be considered fully diagnosed, treated or stabilised and could not attract any points under the impairment Tables (T2 at 8).
d) Mr Thomson’s alcohol dependency had not been fully treated and stabilised and could not attract any points under the Impairment Tables (T2 at 9).
e) Mr Thomson’s right knee pain had not been fully treated and stabilised and could not attract any points under the Impairment Tables (T2 at 9).
f) Dupuytren’s Contracture had not been fully diagnosed, treated or stabilised and could not attract any points under the Impairment Tables (T2 at 10).
g) As Mr Thomson had a total rating of 10 points under the Impairment Tables, he did not satisfy subsection 94(1)(b) of the Social Security Act and was thus not eligible for DSP.
The SSCSD affirmed the Centrelink’s decision to deny Mr Thomson DSP.
On 27 July 2015, Mr Thomson lodged an Application for Review of Decision with the Administrative Appeals Tribunal (General Division) (the “Tribunal”).
ISSUES
The issue before this Tribunal was correctly outlined by the Secretary before this Tribunal as being whether Mr Thomson was qualified or became qualified to receive DSP within the period 28 January 2015 (the date of claim) to 28 April 2015 (13 weeks after that date).
To qualify for DSP, Mr Thomson must meet the requirements in section 94 of the Social Security Act. In particular, the Tribunal must determine:
a)    whether Mr Thomson’s impairments were permanent, and, if so;
b)    whether Mr Thomson’s impairments attracted an impairment rating of at least 20 points, and, if so;
c)    whether Mr Thomson had a continuing inability to work, including the requirement to have actively participated in a program of support.
LEGISLATION
Section 94 of the Social Security Act sets out the requirements of qualification for DSP.
Relevantly, section 94(1) provides:
(1) A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person's impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) the person has a continuing inability to work;
…
In addition to the Social Security Act, other legislation relevant to Mr Thomson’s application is:
a)The Social Security (Administration) Act 1999 (the “Administration Act”);
b)The Impairment Tables; and
c)The Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (the “Participation Determination”).
The sections of these statutes that are relevant to Mr Thomson’s application are discussed in detail below.
RELEVANT PERIOD
The Administration Act provides that the start-date for a qualified DSP claimant is the day on which the claim is made: Schedule 2. This means that qualification for DSP and any impairment ratings must be determined as at the date of claim.
In Re Fanning and Secretary, Department of Social Services [2014] AATA 447, Deputy President Handley explained (at [31]-[33]):
[31] In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or within the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only in so far as they are referable to the applicant's condition during the relevant period.
[32] This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404. Gyles J stated at [1] that as an applicant's entitlement to DSP must be considered at the date of claim and within the 13 week period, "Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time".
[33] … The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal's decision.
The Relevant Period in relation to whether Mr Thomson qualifies for DSP is 28 January 2015 (the date Mr Thomson lodged his claim for DSP) to 28 April 2015 (13 weeks after Mr Thomson lodged his claim for DSP) (the "Relevant Period").
Mr Thomson did not dispute these dates and indicated verbally before this Tribunal that he understood the significance of the Relevant Period in relation to his eligibility for DSP.
EVIDENCE
The Tribunal had before it a set of T-Documents that included all of the relevant Centrelink and medical evidence that was before the SSCD. At the hearing of this matter before this Tribunal, Mr Thomson provided further medical evidence. This evidence is highlighted and discussed below.
The Tribunal notes the following relevant material before it.
Job Capacity Assessment Report dated 14 November 2012 (T6 at 44)
As noted above, a JCA Report was prepared on 14 November 2012. The Report concluded that Mr Thomson was not eligible for DSP and found as follows:
Medical Condition Details
Condition:      Hearing Loss-Partial           Type: Permanent
This condition is: Verified by medical evidence; Fully Diagnosed; Fully Treated; Fully Stabilised.
Remarks:Audiology testing Aug 2012 reports 46% hearing loss L and 58% on R with total 47% binaural hearing loss. Has good speech discrimination at amplified levels. Poor speech discrimination at normal conversation in quiet. They recommend hearing aids as would make speech more clear and also mask tinnitus. Tinnitus has gradually worsened. Worse when quieter at end of day if has been exposed to lot noise. Cannot afford cost of hearing aids as $2,508 therefore condition considered FTDS.
…
Impairment
Condition:     Hearing Loss – Partial
Impairment Table:      11 – Hearing and other Recommended Rating:      10
Functions of the Ear
Functional Impact:    Moderate functional impact on activities involving hearing. Even when using assistive devices. Has difficulty hearing a conversation at average volume in a room with no background noise, has to use a telephone with a T switch and has occasional difficulty with some words and is partially reliant on lip reading or sign language. Has more frequent difficulty with balance, e.g. occasional dizziness or ringing in ears which interferes with communication or routine activities.
Total impairment rating: 10
Supporting reasons summary:
Has poor speech discrimination at normal conversation levels in quiet able to hear using a mobile phone but tinnitus is aggravated afterwards. Unable to lip read or use sign language. Cups hand to ear to hear. Not able to afford cost of hearing aids. Tinnitus is worse when quiet and at end of day if been exposed to lot of noise.
This client has resided in Australia for: 10 years or more
Barriers to be addressed
Barrier:          Physical limitations restricting type of work (V03)
Barrier:          Concentration limitations (H09)
Barrier:          Sensory communication (H05)
Barrier:          No or limited work skills (V02)
Support Requirements
Requirement:     Communicate with others  Duration:     12 to 24 months
Requirement:     Concentrate or remain task focused            Duration:     6 to 12 months
Requirement:     Understand and follow instructions              Duration:     6 to 12 months
Requirement:     Maintain sustainable employment                Duration:     Less than 6 months
Based on the level of support required the client requires specialist disability employment interventions. The client is best suited to DES – Disability Management Service.
Work Capacity
Baseline Work Capacity: 15-22 Hours per week
(Excludes any temporary impacts noted above)
Rationale:Needs to work in quiet environments. Hearing aids are recommended for work by Audiologist
Suitable work: Moderate less skilled (W06)
Examples:      DMS to determine
Capacity for work within 2 years with intervention: 23-29 Hours per week
Rationale:Will need DMS support to develop effective communication strategies for in the workplace.
Suitable work: Moderate less skilled (W06)
Examples: DMS to determine
Interventions
Interventions that were identified for this client
Intervention:  Other medical intervention (specify) (M56)
Expected outcomes/improvements:     hearing aids
Intervention:  Disability management education/counselling (H59)
Intervention:  Post-secondary/adult course – vocational (E57)
Intervention:  Vocational assessment/counselling (V52)
Intervention:  Vocational rehabilitation (V51)
Intervention:  Work experience (V58)
Intervention:  Workplace assessment (V55)
Assessment Summary
The assessment was completed successfully.
Employment History / Goals:
Last worked Oct 2011 on dairy farm until farm sold. Had been there for 3.5 years. Prior to that worked in road maintenance. Main work history has been event hire. Has had periods of being out of work. Does not see himself working again and feels his body is breaking down. Completed year 10 not computer literate.
Barriers & Interventions summary:
Has hearing loss which impacts on communication has been recommended to have hearing aids but cannot cost [sic].
Additional Comments:
Mr Thomson is a 59 year old man who had a PH JCA for DSP as he lives in Witchcliffe.
He has lived In Witchcliffe since 2002. He lives alone. Has a D/L but no car as he has sold it due to not being able to afford registration cost. Reports he does not have a GP, with only seeing GP to have TDR completed, he reports difficulties with his hands seizing up and has had a L knee arthroscopy.
This report does not contain any information, which if released to the client, might be prejudicial to his/her health.
The client's personal factors have a Moderate impact on their ability to work, obtain work or look for work.
Rationale:
age, lives remotely, financial stress, no transport
Recommendations
Recommendation TypeProgram / Other ProgramTimeframe / Dates
Employment Service             DES – Disability Management
Service
…
Job Capacity Assessment Report dated 24 February 2015 (T10, p 91)
This report reads as follows:
Medical Conditions
Medical Condition Details
Condition:      Depression     Type: Permanent
This condition is: Verified by medical evidence.
Remarks:The client has been presumptively diagnosed with depression (as per medical report completed by Dr Gareth Mann, 06/01/15; the treating doctor has not offered onset/diagnosis dates; however, client reports a 30 year history of depressive symptomatology). His current treatment includes, GP review as required and medication; and he has a history of treatment including same, short term psychological intervention (client noted one session with clinical psychologist, May Jo Duffy in late 2014; unable to establish rapport and did not return for further sessions), and assessment with South West Mental Health Services (Margaret River clinic; unsure of professional’s details; 1 assessment session in August 2014), The treating doctor notes future/planned treatment as: encourage drinking reduction and seek help of D&A team. The client notes nil current intention for same. The treating doctor expects this condition to continue impacting for more than 24 months with an uncertain prognosis. Given the presumptive diagnosis and limited treatment to date, this condition is assessed as permanent not fully diagnosed, treated and stabilised.
The treating doctor notes: daily: lack of motivation, heavy drinking; endurance reduced; movement – clumsy; behaviour can be quite antisocial and agoraphobic, poor interpersonal relationships; no need for social care.
The client forwarded ongoing symptoms and impacts including, neglects activities of daily living (noted that he has not cleaned his home since July 2014), episodic broken sleep (refreshing), no motivation, hopelessness, chronic low mood, social avoidance/withdrawal, reclusive, avoidance of public places and crowds, trust issues, and interpersonal relationships limitations. He noted that he is independent in self-care, nil anxiety, able to independently attend familiar places (e g. supermarket), nil short term memory or concentration limitations (noted that he reads 3 books per week and has done for many years; and able to sit through a movie without distraction), nil impact on self-esteem and confidence, nil problem solvlng/decision making/judgement limitations, and has few obligations and thus, is unsure as to his organisational skills.
…
Condition:      Alcohol Dependence        Type: Permanent
This condition is: Verified by medical evidence.
Remarks:       The client has been presumptively diagnosed with alcoholism (as per medical report completed by Dr Gareth Mann, 06/01/15; the treating doctor has not offered onset/diagnosis dates; however, client reports onset of problematic usage into adolescence). His current treatment includes, GP review as required and he noted that he has decreased his intake (due to financial limitations); and he has a history of treatment including same, short term psychological intervention (client noted one session with clinical psychologist, May Jo Duffy in late 2014; unable to establish rapport and did not return for further sessions), hospital admission (1 occasion, 1986 in Brisbane for 3 days), and assessment with South West Mental Health Services (Margaret River clinic; unsure of professional's details; 1 assessment session in August 2014). The treating doctor notes future/planned treatment as: encourage drinking reduction and seek help of D&A team. The client notes nil current intention for same. The treating doctor expects this condition to continue impacting for more than 24 months with an uncertain prognosis. Given the presumptive diagnosis and limited treatment to date, this condition is assessed as permanent not fully diagnosed, treated and stabilised.
The treating doctor notes: daily: lack of motivation, heavy drinking; endurance reduced; movement – clumsy; behaviour can be quite antisocial and agoraphobic, poor interpersonal relationships; no need for social care.
The client forwarded ongoing symptoms and impacts including, neglects activities of daily living (noted that he has not cleaned his home since July 2014), daily usage (home brewed spirits) commencing from early morning (5:30am) until mid-evening, increased tolerance (noted that despite heavy drinking daily, he does not become intoxicated), episodic tremors (hands), physical and psychological withdrawal symptoms, nil motivation, cravings, hopelessness, social avoidance/withdrawal, reclusive, avoidant of public places and crowds, interpersonal relationships limitations and feels burnt out. He forwarded nil preoccupation with sourcing his next drink.
…
Condition:     Lower Limb Deficiencies       Type: Permanent
This condition is: Verified by medical evidence.
Remarks:       The client has been presumptively diagnosed with right knee pain (as per medical report completed by Dr Gareth Mann, 06/01/15; the treating doctor has not offered onset/diagnosis dates; however, client reports onset of symptoms prior to 2007). His current treatment includes, GP review as required, avoidance of aggravating activities, rest periods as required, self-pacing activities, and episodic across counter medication (analgesics) as required (is avoidant of any medication); and he has a history of treatment including, specialist review (orthopaedic surgeon Allan Chong, 2007ish), arthroscopy (2007ish), shortterm physiotherapy (postarthroscopy), and medical investigations. The treating doctor notes future/planned treatment as: x-ray – intervention if necessary. The treating doctor expects this condition to continue impacting for more than 24 months with an uncertain prognosis. Given the presumptive diagnosis and limited treatment to date (e.g. limited physical therapies), this condition is assessed as permanent not fully diagnosed, treated and stabilised.
The treating doctor notes: daily pain; endurance reduced, can walk 10 minutes then has to sit; no other issue apart from affecting mood.
The client reports ongoing symptoms and impacts including, frequent right knee pain (more often than not and at least a background chronic dull ache), walking <1 km (noted that it takes him 15 minutes to walk approximately 1 km over uneven terrain to his landlord's premises, and subsequently requires a rest period), standing limitations (unsure of tolerances), driving <1hour (requires 2 stops on a journey to Perth), difficulties with stairs, and is unable to kneel or squat.
…
Condition:     Musculo-skeletal Disorder – Type: permanent
Other
This condition is: Verified by medical evidence.
Remarks:       The client has been diagnosed with: dupuytren's contracture (as per medical report completed by Dr Gareth Mann, 06/01/15; the client reports onset approximately 7 years ago). The client noted nil current or history of treatment. This condition is assessed as likely to continue impacting for more than 24 months. Given limited medical support, this condition is assessed as permanent not fully diagnosed, treated and stabilised.
The treating doctor notes limited functional impact.
The client notes limited functional impact, however, pain when flattening his hands and difficulties using any vibrating power tools. He informed that after using same, he is unable to grip, noting his ‘hands are dead’.
…
Condition:     Hearing Loss- Partial             Type: Permanent
This condition is: Verified by medical evidence; Fully Diagnosed; Fully Treated; Fully Stabilised.
Remarks:The client has been diagnosed with deafness; also noted in historical medical information: 47% binaural hearing loss (as per medical reports completed by Dr Gareth Mann, 06/01/15; and Dr Robert Bucat, 28/08/12; and hearing testing report completed by audiologist, Eimear O’Brien, Connect Hearing. 02/08/12; the treating doctor notes: long standing; the client reports onset approximately 25 years ago). His current treatment includes, avoidance of aggravating environments; and history of treatment includes, same and hearing testing (most recent, 02/08/12). He informed that hearing aids have been recommended, however, he is unable to gain same due to financial limitations. The treating doctor has historically noted future/planned treatment as; may be suitable tor hearing aids. This condition is assessed as likely to continue impacting for more than 24 months without significant improvement. Given the impact of financial limitations on gaining hearing aids, this condition is assessed as permanent, fully diagnosed, treated, and stabilised.
The treating doctors have noted: difficulty with communications; significant hearing loss wife large effect on communication; daily tinnitus; unaided hearing is inadequate to communicate effectively in general conversations.
The audiologist has noted: reported significant hearing difficulty in general conversations or when the hearing situation was more challenging (e.g. back ground noise at work); also reported severe tinnitus which could be extremely bothersome; has suffered bilateral tinnitus for 20 years; in total he has 47% binaural hearing loss.
The client reports ongoing symptoms including, hearing impaired, and significant difficulties hearing in some environments. The client's medical condition/s does not prevent them from using public transport without substantial assistance.
…
Impairment
Condition:     Hearing Loss- Partial
Impairment Table: 11    Hearing and other       Recommended Rating: 10
Functions of the Ear
Functional impact:    There is a moderate functional impact on activities involving hearing (communication) function and other functions of the ears.
The client
-    Has more frequent difficulty with ringing in his ears which interferes with communication ability and routine activities, due to a medically diagnosed disorder of the inner ear (tinnitus). The client forwarded ongoing impacts including, chronic tinnitus/high pitched ringing in his bilateral ears, episodic difficulties hearing one on one conversations in a quiet environment (usually OK, however, episodically requires repetition or clarification; was OK during this current assessment), difficulties hearing his television (has it on highest possible volume and sits very close: no need for captions), has significant difficulties hearing in environments with any background noise, has significant difficulties hearing in group settings (e.g. with group of 4 and 2 are talking, he is unable to dearly distinguish speech), has difficulties hearing a ringing telephone, has difficulties hearing emergency alarms and sirens, any background noise will aggravate symptoms, and has difficulties hearing on a telephone, especially with any background noise and subsequently experiences an exacerbation in tinnitus after a conversation on telephone (e.g. noted up to an hour severe symptoms).
Total impairment rating: 10
Supporting reasons summary:
Table 11 has been utilised to capture the functional impacts of the client’s condition: 47% binaural hearing loss and tinnitus.
This client has resided in Australia for: 10 years or more
Barriers
Barriers to be addressed
Barrier:  Alcohol Dependence (ALC)
Barrier:  Psychological/psychiatric condition (H02)
Barrier:  Other personal barrier (specify) (U12)
Impact on employment:      The client is 61 years of age, resides outside of a small coastal centre, has transport limitations, a limited recent employment history, limited reliable local supports, is socially isolated, has experienced family relationship Issues, and has an ex-offender history (1970s).
Support Requirements
Based on the level of support required the client does not require specialist disability employment Interventions.
Work Capacity
Baseline Work Capacity: 8-14 Hours per week
(Excludes any temporary impacts noted above)
Rationale:The client has permanent medical conditions, which impact on his dally functioning, appropriate employment options, and baseline capacity for work (impacts described within the report and include the client’s abilities to: maintain a positive outlook and mood most of the time, display emotions appropriate to the situation, consistently persist at work activities, manage anxiety about work issues, cope with change in the work environment, perform work consistently, move around freely, manage pain, maintain required work pace without tiring, lift, carry and move objects, deal effectively with conflict management, perform physical tasks, hear adequately in the work environment, and effectively interact with others in a variety of contexts).
Suitable work: Moderate less skilled (W06)
Examples:      traffic control;
Capacity for work within 2 years with Intervention: 8-14 Hours per week
Rationale:The client is not expected to improve on his assessed baseline capacity despite appropriate supports.
Suitable work: Moderate less skilled (W06)
Examples:      traffic control;
Interventions
Interventions that were identified for this client
Intervention: Substance abuse assistance/counselling (H60)
Intervention: Psychological/cognitive assessment/intervention (P55)
Intervention: Other personal interventions (specify) (U67)
Expected outcomes/improvements: Appropriate interventions to address detailed barriers.
Assessment Summary
The assessment was completed successfully.
Employment History / Goals:
The client reports his most recent period of paid employment as 2011/12 after 3.5 years as a dairy hand; history includes, light road maintenance, events, fish factory, weather observer, showing movies, and sowing; unsure of appropriate options and does not feel job ready/able; noted that he has primarily been employed since full time school based education; forwarded multiple vocationally related tickets, including, blue card, bob cat, front end loader, chainsaw, fire extinguisher and others.
Barriers & Interventions summary:
See barriers and interventions,
Additional Comments:
Physical medical conditions and impairment table (including rating) have been reviewed by Contributing assessor (Registered Occupational Therapist) and it is confirmed that appropriate impairment table and rating have been applied for this assessment. NP2590,
This report does not contain any information, which if released to the client might be prejudicial to his/her health.
The client's personal factors have a High impact on their ability to work, obtain work or lock for work.
Rationale:
See barriers and report content.
The risk of non-compliance Is rated as High with a review period of 26 weeks.
The following Vulnerability indicators) have been identified;
DAD – Drug/alcohol dependence severe enough to impede co
PPM – Psychiatric problems or mental illness
Rationale:
See barriers and report content
Referrals
Recommendation Type Program/Other Program Timeframe/Dates
Employment Service              Stream 4
Review Outcome of Authorised Review Officer of Centrelink dated 18 March 2015

As noted above, an ARO Report dated 18 March 2015 also found that Mr Thomson did not qualify for DSP. It found as follows:
Your Review Outcome
I am an Authorised Review Officer, an independent officer authorised to review decisions made by the Australian Government Department of Human Services (the department). I have reviewed the decision made on 26 February 2015 to reject your claim for Disability Support Pension.
I was unable to phone you to discuss your review as you do not have a contact phone number. After carefully considering this decision I have found it was correct. This means your review was unsuccessful.
I invite you to contact me on … if you wish to discuss this decision.
Explanation of Decision
In making this decision I have considered the facts and circumstances of your case and examined how the relevant legislation and policy applies to the facts.
You requested a review because you didn't agree with the decision to reject your claim.
Issues
The main issues in this review are whether:
·You have one or more permanent conditions;
·You have an impairment rating of at least 20 points under the Impairment Tables;
·You have a continuing inability to work for 15 hours a week, or more, because of your impairment.
Law and Policy
I have applied the following:
·     Section 34 of the Social Security Act 1991 says that a person is qualified for Disability Support Pension if they have an impairment rating of 20 points or more and a continuing inability to work 15 hours per week or more.
·     Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). These Tables are used to assess file impact a person’s impairment has on their ability to work.
To access the applied legislation, please go to Government policy referred to in this letter can be found at You can also ask us for a copy of the relevant law or policy.
Evidence
I have taken into account the following information:
·     Your claim for Disability Support Pension received by the department on 28 January 2015.
·     The report completed by Dr Mann on 6 January 2015.
·     The letter from Dr Mann confirming your deafness.
·     The Job Capacity Assessment (JCA) report completed on 24 February 2015.
·     Computer and file records maintained by the department.
Findings of Fact
After careful consideration of the evidence, I have made these key findings:
·     You have the following conditions: deafness, depression, alcoholism, right knee pain and Dupuytren’s contracture.
·     Your condition of deafness is accepted as being able to have an impairment rating assessed as it has been fully treated and stabilised.
·     Your conditions of depression, alcoholism, right knee pain and Dupuytren’s contracture are not accepted as being able to have an impairment rating assessed, as they have not been fully treated and stabilised.
·     Your total impairment rating is 10 points.
·     You do not have an impairment rating of 20 points or more.
·     You do not have a continuing inability to work 15 hours per week or more because of your impairment.
Reasons for Decision
To qualify for Disability Support Pension you need to have conditions which can be assigned a rating of 20 points or more under the Impairment Tables.
Only conditions which have been fully diagnosed, fully treated and stabilised, are likely to continue for at least two years, and where there is unlikely to be any significant functional improvement within that time, can be assessed for an impairment rating. There must also be sufficient medical evidence to support an impairment rating being applied.
I have found that your condition of deafness is able to have an impairment rating assessed under the Impairment Tables.
The medical report did not indicate the full functional impact of your deafness, however the letter from Dr Mann did indicate difficulty with communication. The JCA report found this condition was fully treated and stabilised, as although a previous JCA report completed in 2012 indicated you may benefit from hearing aids, the excessive cost made it unlikely that you would be able to obtain the hearing aids within the next 2 years. The assessor noted you were previously confirmed as having a 47% binaural hearing loss. The assessor applied a 10 point rating from impairment Table 11, which relates to hearing and other functions of the ear.
I have decided a 10 point rating from Impairment Table 11 is to be applied in relation to your hearing condition. This rating applies as the JCA report notes your treating doctors have indicated difficulty with communications, with daily tinnitus and unaided hearing being inadequate to communicate effectively in general conversations. The JCA report noted a previous audiologist report, which indicated significant hearing difficulty in general conversations or when the hearing situation was more challenging (e.g. background noise at work). The report also noted severe tinnitus which could be extremely bothersome and that you have suffered bilateral tinnitus for 20 years. The report noted you advised you have ongoing symptoms including, hearing impairment and significant difficulties hearing in some environments. The JCA report noted the previous audiologist had noted hearing difficulty In general conversations or when the hearing situation was more challenging (e.g. back ground noise at work). A 10 point rating applies as there is a moderate functional impact on activities involving hearing (communication) function or other functions of the ear and you have difficulty hearing a conversation at average volume in a room with no background noise and also have frequent difficulty with ringing in the ears which interferes with communication ability or routine activities, due to a medically diagnosed disorder of the inner ear due to your tinnitus. There was insufficient medical evidence to support a higher 20 point rating from Table 11.
A 20 point rating from Table 11 applies where 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. 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 cm a recognised sign language (e.g. Auslan), lip reading, other non-verbal communication method (e.g. note taking) to converse with others; or, 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).
l have found that your conditions of depression, alcoholism, right knee pain and Dupuytren's contracture cannot be considered able to have an impairment rating assessed at the time of your claim.
For all mental health conditions, in addition to being fully treated and stabilised, they must be diagnosed by a qualified medical practitioner which includes a psychiatrist, or there must be written evidence of the involvement of a clinical psychologist in the treatment of those conditions, before an impairment rating may be assessed. I could find no evidence of the involvement of a psychiatrist or clinical psychologist with your depression and as such, an impairment rating could not be assessed at the time of your claim.
For your alcoholism, the medical report indicated the functional impact of this condition as being uncertain and future planned treatment of encouragement to reduce your drinking and referral for drug and alcohol counselling. As further treatment options exist an impairment rating could not be assessed for this condition.
For your right knee pain, the medical report indicated the functional impact of this condition as reduced endurance and you being able to walk for 10 minutes before needing to sit. The JCA report found this condition was not fully treated and stabilised and I agree with that finding. The report noted you advised of frequent right knee pain more often than not and at least a background chronic dull ache. You also advised of being able to walk approximately 15 minutes over uneven terrain to your landlord’s premises and subsequently require a rest period. You advised of driving for less than 1 hour and require 2 stops on a trip to Perth, have difficulties with stairs and are unable to keel or squat The JCA report also noted you had seen an orthopaedic surgeon Allan Chong around 2007 and also had an arthroscopy around that time, with short term physiotherapy following the arthroscopy, There is insufficient medical intervention in recent years to consider this condition to be fully treated and stabilised at the time of your claim. I note that despite this condition you were able to work after 2007 and appear to have had minimal treatment since 2007.
For your Dupuytren's contracture, the medical report indicated the functional impact of this condition as minimal or limited. The JCA report found this condition was not fully treated and stabilised due to a lack of medical evidence to support an impairment rating being assessed and l agree with that finding. The JCA report notes you advised of limited functional impact for the condition, but have pain when flattening your hands and also have difficulties using any vibrating power toots. You advised that after using these, you are unable to grip and your ‘hands are dead’.
Your total impairment rating is therefore 10 points.
To demonstrate a continuing inability to work, a person must either have a severe impairment, which is an impairment that has been given 20 points or more under a single Impairment Table, or the person must have actively participated in a program of support for 18 months in the 36 months prior to the person's claim being lodged.
A program of support is a program designed to help a person to prepare for, and find or maintain work, taking into account the person’s medical conditions, level of impairment and individual needs. These programs are usually funded by the government.
I have found evidence to support that you met the program of support requirements at the time of your claim of 28 January 2015, however as you did not have a total 20 point rating this provision had no impact on you qualifying for Disability Support Pension at that time.
In addition to having an Impairment rating of 20 points or more, to qualify for Disability Support Pension you must also have a continuing inability to work at least 15 hours per week or more.
The Job Capacity Assessor indicated that you have a current work capacity of 8 -14 hours per week with or without assistance from a Stream 4 service provider.
I note you have previously been able to work despite your medical conditions and that with treatment, you are likely to still have some capacity to work. I note that a previous Employment Pathway Plan you entered into with PVS Workfind, you appear to have undertaken full time education of a Certificate 3 in Business Administration with SWIT Margaret River, which indicates a reasonable work capacity given that course was for 50 hours per fortnight
I accept that the types of work appropriate to you may be more limited due to your conditions. However, based on the Job Capacity Assessment and other available evidence, I consider that you have the capacity to undertake light less skilled work of at least 15 hours per week in the next two years, Your medical conditions would also not prevent you from undertaking a further training activity to prepare you for alternative work within two years.
As you do not have an impairment rating of 20 points or more and do not have a continuing inability to work, you do not qualify for Disability Support Pension.
…
Report of Dr Paul Salmon, SKG Radiology, dated 7 August 2003
This report reads as follows:
X-RAY CERVICAL SPINE:
There is focal spondylotic change between C5/C6 and C7/D1. Mild facet joint enlargement is also present at several levels and the oblique views do show very mild foraminal narrowing mainly on the right side. There is no significant neurocentric joint enlargement. No soft tissue abnormality is shown.
X-RAY LUMBAR SPINE:
Endplate osteophytes are seen at most levels. None of the disc spaces are narrowed. There is no spondylolisthesis present. No definite spondylosis but the possibility of a left L5 pars defect is considered. No other abnormality shown.
X-RAY RIGHT THUMB:
Clinical History: Pain in the thumb.
Findings: No bone, joint or soft tissue abnormality shown.
Report of Eimear O’Brien, Audiologist, dated 2 August 2012 (T4 at 35)
This report reads as follows:
Douglas Thomson was seen on the 2nd of August at Connect Hearing. He reported significant hearing difficulty in general conversations, or when the hearing situation was more challenging (eg background noise at work). He also reported severe tinnitus which could be extremely bothersome. He has suffered bilateral tinnitus for 20 years. Doug has always worked around noise, his most recent job was at a Dairy, he is currently unemployed.
Otoscopy:
Otoscopy showed relatively clear external ear canals bilaterally.
Audiometry:
Audiometry indicated a mild to severe sensorineural hearing loss on the left and a moderate to severe sensorineural hearing loss
Speech:
Speech discrimination testing indicated good speech discrimination at appropriately amplified levels bilaterally, poor speech) discrimination at normal conversational levels in quiet.
Tympanometry:
Tympanometry indicated Type A tympanograms bilaterally, consistent with normal middle ear pressure and tympanic compliance.
Conclusion:
Douglas has 45% percentage hearing loss on the left, and 58% percentage hearing loss on the right so in total he has 47% binaural hearing loss.
Douglas would benefit from binaural amplification, his unaided hearing is inadequate to communicate effectively in general conversations. Hearing aids would assist Doug by making speech more clear, especially in background noise. Hearing aids would also mask the tinnitus which Doug is finding very distressing. Doug would be more suited to employment with the assistance of hearing aids.
Medical Report of Dr Bucat dated 28 August 2012 (T5 at 36-43)
This report was prepared for the purposes of Mr Thomson’s DSP application.
The Tribunal notes the following information provided on this report:
Give details about the conditions that have a significant impact on the patient’s ability to function. List conditions in order of degree of impact on ability to function, starting with condition with most impact.
Condition 1 – condition with most impact
Diagnosis
A          Diagnosis
47% binaural hearing loss
This diagnosis is:    Confirmed
Clinical Features
B         History
Provide details including etiology, precipitating factors, underlying causes, results and dates of investigation/procedures and specialist consultations (e.g. radiology, pathology, RFTs, specialist reports).
Long History of farm work – gradual loss of hearing with increasing tinnitus.
C         Current Symptoms
Provide details of the current clinical features and symptoms, including frequency and severity, experienced by the patient due to this condition. Be specific in indicating the severity of the medical impairment.
Significant hearing loss with large effect on communication. Daily tinnitus.
D         Current Treatment
Provide details of all current treatment for this condition (e.g. surgery, medication, counselling, physical therapy, rehabilitation). Include specific details such as dates of commencement of treatment, frequency, duration, types, etc
Unable to afford hearing aids.
E         Past Treatment
Provide details of all significant past treatment, duration and responses.
Include specific details such as dates of commencement of treatment, frequency, duration, types, etc.
See hearing test
F         Future/planned treatment
Provide details of any further scheduled or proposed treatment with estimates of likely dates of commencement and expected duration.
May be suitable for hearing aids.
G        Patient’s compliance with recommended treatment.
Usually compliant
Impact on ability to function
HDetails about how this condition currently affects the patient’s ability to function.
Be specific and consider the effects due to the condition alone.
Consider:
·ability to sit/stand/move
·ability for self care
·endurance
·need for support in activities of daily living
·communication
·need for high levels of care (e.g.nursing home level of care)
·cognitive function
·any adverse effects of treatment.
Unaided hearing is inadequate to communicate effectively in general conversations.
The current impact of this condition on the patient’s ability to function is expected to persist for:
More than 24 months
J         Within the next 2 years the effect of this condition on the patient’s ability to function is expected to:
Uncertain
Provide details, if relevant
Suitable for hearing aids.
Report of Dr I Cappe dated 13 January 2015
This report reads as follows:
XR RT KNEE 13/01/2015 Reference: 5984872
X-RAY RIGHT KNEE
History:
Persistent right knee pain.
Findings:
There is osteoarthritic change with joint space narrowing in the medial compartment and prominent osteophytes at the tibiofemoral and patellofemoral joint margins. There is an effusion in the suprapatellar recess. There is osteoarthritic change in the comparative AP film of the left knee with mild joint space narrowing in the lateral compartment and associated osteophytes.
Report of Y Thomas, Radiologist, dated 31 March 2015
This report reads as follows:
XR LT KNEE AND RT SHOULDER 31/03/2015 Reference: 6017743
LEFT KNEE RADIOGRAPH:
There is joint space narrowing involving the medial and lateral compartments of the knee with minimal sclerosis suggestive of early osteoarthritis.
There is irregularity of the lateral femoral condyle articular surface raising the possibility of osteochondral injuries.
Advanced degenerative changes are noted in the medial compartment of the right knee characterised by a bone-on-bone appearance and subchondral sclerosis.
RIGHT SHOULDER RADIOGRAPH;
No glenohumeral joint abnormality is seen. The joint is enlocated.
No acromioclavicular joint abnormality is seen.
No fracture or focal osseous abnormality identified.
Report of Dr Gareth Mann dated 6 January 2015 (T8)
This report was prepared for the purposes of Mr Thomson’s DSP application. The Tribunal notes the following information provided in this report:
Condition 1 – condition with most impact
Diagnosis
A Diagnosis
Depression/Alcoholism
The diagnosis is:
Presumptive – Are further investigations/tests planned to confirm the diagnosis?
No
Treatment
B Current Treatment
Provide details of all current treatment for this condition (e.g. hospitalisation, surgery, medication and dosage, counselling, physical therapy, rehabilitation, frequency of treatment)
Treatment   Date commenced
Anti-depressants  2/9/14
Specialist consultation
Have you or another doctor from your practice previously referred this patient to a specialist?
Yes   Give details below
Name  Speciality                  Date of Consultation
Southwest Mental Health                   Psychiatry  7/8/14
Mary Jo Duffy  Psychologist  Not known
Future/planned treatment
Provide details of any further scheduled or proposed treatment with estimates of likely dates of commencement and expected duration.
Encourage drinking reduction and seek help of D & A team.
Patient’s compliance with recommended treatment
Uncertain
Detail any issues related to accessing or undertaking suitable treatment that affect the level of compliance.
Takes medication
Clinical features
Current Symptoms
Describe current symptoms. Be specific and include severity, frequency and duration.
Note: Symptoms are those persisting despite treatment, aids, equipment or assistive technology.
Daily lack of motivation. Heavy drinking.
Provide details of underlying causes and contributing factors, results and dates of        investigations/procedures and specialist consultations (e.g. radiology, pathology, RFTs,
specialist reports)
Alcohol
Impact on ability to function
Details about how this condition and its treatment currently impact on the patient’s ability to function.
Be specific and consider the impacts on:
·endurance
·movement/dexterity (e.g. walking, bending, sitting, standing, lifting/carrying/manipulating objects)
·neurological/cognitive function (e.g. concentrating, decision making, memory, problem solving)
·functions of consciousness (details of involuntary loss of consciousness or altered consciousness (e.g. seizures, migraines))
·behaviour, planning, interpersonal relationships
·sensory function (e.g. seeing, hearing, speaking)
·digestive, reproductive, continence function
·need for care (e.g. support in daily living, support accommodation or nursing home/hospital care).
Endurance reduced, movement – clumsy, behaviour – can be quite antisocial and agoraphobic.
Poor interpersonal relationships. No need for social care.
The impact of this condition on the patient’s ability to function is expected to persist for:
More than 24 months.
Within the next 2 years the effect of this condition on the patient’s ability to function is expected to:
Uncertain.
Condition 2
Diagnosis
Right knee pain.
The diagnosis is:
Presumptive – Are further investigations/tests planned to confirm the diagnosis?
Yes – Give details below
Other – Allan Chong
Are the relevant specialist reports available?
No
Treatment
Current treatment
Provide details of all current treatment for this condition (e.g. hospitalisation, surgery, medication and dosage, counselling, physical therapy, rehabilitation, frequency of treatment)
Treatment
Nil
Past treatment
Provide details of past treatment for this condition (e.g. hospitalisation, surgery, medication and dosage, counselling, physical therapy, rehabilitation, frequency of treatment)
Treatment type
Nil
Specialist Consultation
Have you or another doctor from your practice previously referred this patient to a specialist?
No
Future/planned treatment
Provide details of any further scheduled or proposed treatment with estimates of likely dates of commencement and expected duration.
X-ray – intervention if necessary
Patient’s compliance with recommended treatment
Uncertain
Clinical Features
Current symptoms
Describe current symptoms. Be specific and include severity, frequency and duration.
Note: Symptoms are those persisting despite treatment, aids, equipment or assistive technology
Daily pain
Provide details of underlying causes and contributing factors, results and dates of investigations/procedures and specialist consultations (e.g. radiology, pathology, RFTs, specialist reports)
Right knee pain – years
Impact on ability to function
Details about how this condition and its treatment currently impact on the patient’s ability to function
Be specific and consider the impacts on:
·Endurance
·movement/dexterity (e.g. walking, bending, sitting, standing, lifting/carrying/manipulating objects)
·neurological/cognitive function (e.g. concentrating, decision making, memory, problem solving
·functions of consciousness (details of involuntary loss of consciousness or altered      consciousness (e.g. seizures, migraines))
·behaviour, planning, interpersonal relationships
·sensory function (e.g. seeing, hearing, speaking)
·digestive, reproductive, continence function
·need for care (e.g. support in daily living, support accommodation or nursing home/hospital care).
Endurance – reduced – can walk 10 mins then has to sit. No other issue apart from affecting nosed [sic]
The impact of this condition on the patient’s ability to function is expected to persist for:
More than 24 months
Within the next 2 years the effect of this condition on the patient’s ability to function is expected to:
Uncertain
Does the patient have any other medical conditions that are generally well managed and that cause minimal or limited impact on ability to function?
Yes – Give details below
Dupuytrens Contracture – (illegible) painful
Further Report of Dr Gareth Mann dated 16 June 2015

This report reads as follows:
Doug is considerably disabled by his medical conditions:
To elaborate further; hearing appears to be permanently affected which results in limited communication abilities, this interferes with his daily life.
His osteoarthritis (particularly in the knees, but also more widespread), is severe, permanent and only going to get worse, he may get some relief in the future, but I believe this will only be possible with quite major surgery, if appropriate. Walking is particularly difficult, getting painful over short distances. He is unable to stand for prolonged periods.
His depression is ongoing and though not accepted by the psychiatrist that he has seen, I believe this affects his motivation, behaviours, social interactions and certainly would severely hamper his ability to work. He is affected negatively every day, and takes the antidepressant medication Sertraline.
Doug appears to have carpal tunnel syndrome which severely limits his ability to work. He is affected every day, with weakness and pains in his hands.
Finally Doug’s alcoholism which is long term and unlikely to improve in the immediate future.
I cannot see how Doug could be gainfully employed in any meaningful role.
Mr Thomson’s Statement of Facts, Issues and Contentions filed with the Tribunal on 14 December 2015 but dated 7 December 2015
This document, comprising 4 pages, reads as follows:
STATEMENT of FACTS, ISSUES and CONTENTIONS
DECISION UNDER REVIEW
1.        The decision under review is the decision made by the Social Security Appeals Tribunal On 9 July 2015. That decision affirmed the decision to reject my claim for DSP
ISSUES
1. I was qualified under section 94 of the Social Security Act.
a.    My impairments are permanent in that they will last more than two years.
b.    Together they attain more than 20 points.
c.     I had and have a continuing inability to work.
FACTS
1.    My claim was lodged on 28 Jan 2015
2.    Enclosed was a copy of radiologist Dr I Cappe’s report dated 13 Jan 2015
3.    There is no mention of this in any correspondence from Centrelink or Section 37 documents
4.    I have enclosed a copy with this submission
5.    Radiologist Dr Y Thomas’s report was posted to Centrelink on 7 April 2015. It was dated 31 MARCH 2015
6.    I have enclosed a copy with this submission
7.    My JCA interview on 28 Jan 2015 was not recorded and I disagree with many points
8.    The interviewer was not a qualified medical doctor
9.    He did not identify himself as a psychologist
10. Claim for DSP rejected
11. Requested review and informed ARO that I would do so by mail
12. Lodged written submission on 7 April 2015
13. Spoke to ARO on 13 April 2015
14. He confirmed his decision
15. He claimed to have my letter in front of him
16. I claim he did not
17. Tribunal hearing on 9 July 2015
18. Chairman said meeting will be recorded. I agreed
19. Chairman asked me to swear an oath. I did so
20. Tribunal chairman clearly states he saw no X rays
21. I had 5 large X ray and MRI scan envelopes with me
22. He did view one and only one and showed it to his companion
23. That is a false claim by the chairman and not a clerical error
24. I also had copies of two specialist medical reports 25.
25. After 24 minutes both got up and left
26. I was denied the right to ask questions or present evidence
27. Correspondence from tribunal confirmed ARO decision
28. Telephoned tribunal on 20 July 2015
29. I requested a copy of the tape or a written transcript
30. I was refused both
31. I consider that tape as evidence
32. Application to AAT 27 July 2015
ISSUES
1)    All my relevant medical evidence is within the 13 week period.
2)    I am claiming this period and not the case claimed by the Centrelink lawyer.
3)    It is agreed that I satisfy section 94 1 (A) of the act.
4)    Through my X-rays, which only one was viewed, and related medical reports which I have submitted, I qualify for at least 20 points.
5)    My in ability to work arises from the fact that both knees require major surgery. The right knee will be done first. The waiting time is 18 months, followed by 3 months physiotherapy. Then I join the waiting list again for the left knee, 18 months and 3 months physio. That is a total of 3 years 6 months, in excess of the required 2 years.
6)    Both knees are fully diagnosed. The only treatment is surgery. There are no drugs or therapy to cure bone on bone conditions like mine.
7)    There is then a moderate functional impact on activities using lower limbs according to social security tables when at least one of their descriptors says at table 3 (1) (A) at least one of the following applies in that I am unable to walk far outside the home or shop or anywhere. That is a rating of at least 10 points. Therefor I qualify for DSP as the hearing problem + the knees equals 20 points in the period specified. My case does not rest on length of time as does the respondents case.
CONTENTIONS
1)    The respondent places too much faith in the JCA report. It was not recorded so we have no way of confirming that report. We do not know the questions asked, and no way of knowing if my answers were what is stated or something else. I contend then that the JCA report be disregarded.
2)    I don’t know what the respondent believes what a programme of support means. Here is what happens in a POS to all including myself. You had an appointment you went, they printed paper, you signed until the next time and then did it all over again. No job interviews, no job referrals, nothing. There was no support. It was support on paper only. They got paid anyway. They had no interest to get you employment.
3)    Also about that certificate 3 in business admin, it was not 25 hours per week. It was 3 hours per week. It was the wrong course. I applied for BASIC COMPUTER FOR BEGINNERS, but because there were not enough pupils they put me in a class that was well advanced in computers, I lasted for 2 part classes only.
4)    And the ARO failed in making a correct decision in that he did not have all the verifiable medical evidence. He did not view the X-rays. I see no evidence to say he saw the specialists report, dated 13/1/85, so by not seeing all the evidence he failed to make the correct decision.
5)    I agree with respondent’s contention number 29. The hearing of 10 points can stand or be increased.
6)    Contention 44 about knee pain is fully explained in the two specialist’s reports. I will enclose a further two copies as the two previous have not been mentioned. These verify my chronic condition.
7)    Contention 47 regarding my hands was treated very lightly by the SSAT chairman in that he only asked me if I could do up a button. I said I could. With that question and answer he supposes there is no problem. The problem with my hands is when I perform that most personal bodily function, then there is a problem. It is diagnosed and can be treated with surgery. Again a waiting list. Until then I have to bear it.
8)    Contention 50 – 52 I do not agree
9)    Contention 54 – 56 I do not agree
10) The order sought by the respondent is for the verdict of the tribunal of 9/7/15 to stand. I cannot and will not agree to that It clearly states in their guidance pamphlets that I can present evidence and ask questions. They looked at one X-ray only, and even that they deny. They left abruptly and denied my right to ask questions, I had no chance to present two medical reports. Their decision was incorrect.
As all my evidence can be confirmed and that all the respondent cannot, I ask the tribunal to rescind their decision and find for the applicant.
CONSIDERATION
Does Mr Thomson have an impairment?
It was not disputed before this Tribunal that during the Relevant Period Mr Thomson had the following impairments as per section 94(1)(a) of the Social Security Act:
·Hearing loss
·Depression
·Alcohol Dependence
·Right knee pain
·Dupuytren’s Contracture
Mr Thomson thus satisfies the requirements of section 94(1)(a) of the Social Security Act.
Were Mr Thomson’s Impairments “Permanent”?
Pursuant to section 94(1)(b) of the Social Security Act, Mr Thomson’s functional impairments must attract an impairment rating of 20 points or more under the Impairment Tables before he can be awarded DSP.
An impairment rating can only be assigned to an impairment if the condition causing the impairment is “permanent”, and the impairment that results from the condition is more likely than not, in light of available evidence, to persist for more than 2 years: s 6(3) of the Impairment Tables Determination.
Section 6(4) of the Impairment Tables Determination states that 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
(c) the condition has been fully stabilised; and
(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Further, section 6(5) of the Impairment Tables Determination states:
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.
Under s 6(6) of the Impairment Tables Determination, "fully stabilised" means:
(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 medical or other compelling reason for the person not to undertake reasonable treatment.
Pursuant to section 6(7), "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.
Hearing Loss
In relation to Mr Thomson’s hearing loss, the SSCSD found as follows:
28. Mr Thomson told the tribunal:
•He has noticed gradually worsening problems with his hearing over the past 20 or so years. He has tinnitus, a permanent "ringing" in both ears which interferes with being able to hear normal conversations. It is particularly difficult to hear people when there is significant background noise.
•He has had a number of hearing tests, the first being around 2003 and the most recent in 2012. He felt that the audiologists were only interested in selling him a hearing aid. He has never tried using one and has never consulted an ear specialist.
•He has worked in a wide variety of jobs during his adult life, including some years with the Main Roads Department. His most recent job was on a dairy farm. Hearing problems have never interfered with his employment in any significant way.
•The cause of tinnitus has been explained to him by several doctors and he understands nothing can be done for it
29.The tribunal noted an audiology report from Connect Hearing dated 2 August 2012. This reported a 47% binaural sensorineural hearing loss. Hearing aids were recommended to improve the hearing and to mask the distressing tinnitus,
30.The tribunal members observed that Mr Thomson participated in conversation with them at normal voice levels with only a little occasional difficulty with hearing the questions.
31.The tribunal determined that the problem of hearing loss is permanent Even though recommended treatment with hearing aids has not been undertaken, the tribunal agrees with the JCA recommendation that this has a moderate impact on function and generates 10 points from Impairment Table 11 – hearing and other functions of the ear.
Before this Tribunal, the Secretary contended as follows in relation to Mr Thomson’s hearing loss:
34.The Respondent accepts that the Applicant suffered from hearing loss during the claim period and that this condition is fully diagnosed, treated and stabilised. The Applicant was recommended treatment with hearing aids. This has not occurred although it was noted that he was unable to afford hearing aids (T5, 38).
35.The Respondent contends that the impairment arising from the hearing loss warrants an impairment rating of 10 points under Table 11 because:
a.The report of Eimear O’Brien dated 2 August 2012 noted that the Applicant had a 47% binaural sensorineural hearing loss (T4, 35).
b.The report of Dr Bucat dated 28 August 2012 noted that the Applicant has a “... gradual loss of hearing with increasing tinnitus” (T5, 37).
c.The JCAs noted that the Applicant had “episodic difficulties hearing one on one conversations in a quiet environment (usually OK, however; episodically requires repetition or clarification; was OK during this current assessment)” (T10, 95).
d.The Applicant’s evidence to the Tribunal was that his “hearing problems have never interfered with his employment in any significant way” (T2, 7).
e.The Tribunal members observed that the Applicant “participated in conversation with them at normal voice levels with only a little occasional difficulty with hearing the questions” (T2, 7).
f.Each of the JCA’s recommended a rating of 10 points for the impairment arising from the Applicant’s hearing loss (T6, 44; T10, 91).
The Tribunal agrees and finds that Mr Thomson’s hearing loss has been fully diagnosed, treated and stabilised.
In relation to what impairment rating can be applied, the Tribunal notes that Table 11 of the Impairment Tables provides as follows:
Table 11 – Hearing and other Functions of the Ear

Introduction to Table 11

·     Table 11 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving hearing (communication) function or other functions of the ear (e.g. balance).

·     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.

·     Self-report of symptoms alone is insufficient.

·     There must be corroborating evidence of the person’s impairment.

·     Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:

a report from the person’s treating doctor;

a report from a medical specialist (e.g. an ENT specialist or neurologist) confirming diagnosis of conditions associated with hearing impairment or other impaired function of the ear (e.g. congenital deafness, presbycusis, acoustic neuroma, side-effects of medication, Meniere's disease or neurological conditions including Multiple Sclerosis);

results of audiological assessment undertaken by a fully qualified audiologist or ENT specialist.

·      Table 11 should be applied with the person using any prescribed hearing aid, cochlear implant or other assistive listening device that they usually use.

·      If the person uses recognised sign language or other non-verbal communication method as a result of hearing loss only, the person’s hearing and communication function should be assessed using Table 11.

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).

Before this Tribunal, Mr Thomson initially appeared to have trouble hearing what was said to him. That issue resolved itself as the hearing progressed with the Deputy President and counsel for the Secretary sitting closer to Mr Thomson than might normally be the case.
Mr Thomson does not use a hearing aid of any sort. It was evident to the Tribunal that despite this, he was still able to hear voices at moderate volume and respond to questions asked of him.
The Tribunal notes the hearing assessment conducted by audiologist Eimear O’Brien (T4) which found that Mr Thomson had 45% hearing loss on the left, and 58% hearing loss on the right; hence, 47% binaural hearing loss. There was no evidence before the Tribunal to contradict these findings.
Further, having reviewed the relevant Impairment Table, there is no evidence before the Tribunal that would allow for an impairment rating of 20 (that being “severe”). There is no evidence, for example, that during the Relevant Period, Mr Thomson had severe difficulty hearing any conversation even at raised volume in a room with no background noise (that is, he was unable to hear someone speaking to him in a loud voice, or was unable to hear someone shouting a warning). Nor was there any medical or specialist evidence that during the Relevant Period, Mr Thomson was unable to hear sounds needed for personal or workplace safety (e.g. a smoke alarm, fire evacuation siren, or car or truck horn). Nor was there any evidence that he was 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. Nor was there any evidence that Mr Thomson had continual difficulty with balance.
Having reviewed the evidence available to it and in light of the content of Table 11 above, the Tribunal finds that the impairment arising from Mr Thomson’s hearing loss warrants an impairment rating of 10 points.
Depression
In relation to this condition, the SSCSD found as follows:
32.      Mr Thomson told the tribunal:
·     He is not sure when he became depressed, but for the past five or ten years he has become increasingly unhappy, “pissed off” and angry.
·     He talked to Dr Mann about this in 2014 and was put on Sertraline tablets. He takes one every day, but doesn’t know if they have made any difference.
·     Dr Mann has also referred him to two psychologists, one through SW Mental Health Services, and one privately. On both occasions he was told that they didn’t deal with his sort of problem. He told Dr Mann about this but nothing further has been done.
·     He has never seen a psychiatrist.
·     He lives alone in a rented house on the dairy farm where he worked until 2011, when the farmer retired from farming and sold his cattle. There is no similar work available in the local area.
·     His marriage ended in 1985. He has two adult children. He has had no contact with his 34 year old son, who has been involved with drugs, for at least 10 years. His daughter, aged 30, lives in Spearwood. They have an excellent relationship and he gets great pleasure from his granddaughter who he sees several times a year.
·     His mother is alive and lives in Mandurah. He sees her three or four times a year.
·     He has a number of friends with whom he socialises. He doesn’t go out at night but they may come and visit. He has no TV but has the radio on as background noise.
·     He had been made angry by the JCA report and the letter from the ARO. Both contained inaccuracies.
33.The tribunal noted that depression was identified as a problem by Dr Mann, both in his medical report and the subsequent letter, provided by Mr Thomson at the hearing. In the latter, Dr Mann said that the diagnosis was “not accepted by the psychiatrist he has seen”. When this was pointed out to Mr Thomson he told the tribunal this was a mistake and he had not seen a psychiatrist
34.The tribunal determined that, in the absence of any confirmation by a psychiatrist or clinical psychologist the condition of depression cannot be considered fully diagnosed, treated or stabilised, it cannot be considered for an impairment rating.
In its Statement of facts, Issues and Contentions, the Secretary contended as follows in relation to Mr Thomson’s mental health condition:
36.The Respondent submits that this medical condition has not been fully diagnosed, treated or stabilised. Table 5 of the Impairment Tables is the table used when a person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment).
37.The introduction to Table 5 requires that a diagnosis of a mental health condition (depression) must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist). This is a mandatory requirement and, in the absence of any evidence that a diagnosis of depression had been confirmed by either a psychiatrist or a clinical psychologist, a rating cannot be assigned under Table 5.
38.The Applicant told the Tribunal that he was not sure of the onset of this condition but first talked to his GP (Dr Mann) about this in September 2014 and then started taking anti-depressants on a daily basis. He told the Tribunal he had never seen a psychiatrist and although he was referred to two psychologists they both told him they “didn’t deal with his sort of problem” (T2, 8). He has not had any further follow up.
39.The report of Dr Mann dated 16 June 2015, notes that: “His depression is ongoing and though not accepted by the psychiatrist that he has seen, I believe this affects his motivation, behaviours, social interactions and certainly would severely hamper his ability to work” (Annexure A). The Applicant confirmed to the Tribunal that he had not seen a psychiatrist and that this observation was a mistake.
40.The Respondent contends that the mental health condition was not fully diagnosed, treated and stabilised at the Relevant Period. No impairment rating can be assigned under Table 5 of the impairment Tables for any impairment arising from this condition.
The Tribunal notes that Table 5 of the Impairment Tables reads as follows:
The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).
Before this Tribunal Mr Thomson made it clear that, despite what had been stated in the relevant JCA and ARO reports and by his treating doctor, he had not had not seen, and was not seeing, a qualified medical practitioner (ie, a psychiatrist or a clinical psychologist) for the purposes of treatment.
The Tribunal does not doubt that Mr Thomson is clearly distressed. He struck this Tribunal as a truthful and credible witness. Unfortunately, without corroborating medical evidence of the sort required under the Impairment Tables, the Tribunal cannot conclude that his mental health condition was, during the Relevant Period, fully diagnosed, treated and stabilised. No impairment rating can thus be assigned under Table 5 of the impairment Tables for any impairment arising from this condition.
Alcohol Dependency
In relation to this condition, the SSCSD found, as follows:
35.      Mr Thomson told the tribunal:
·     He has had alcohol-related problems for most of his adult life.
·     He has had several convictions, including a five-year gaol term following a shooting incident. He lost his driving licence at one time following a failed breath test and was also convicted for refusing a breath test There have been no incidents involving the police for the past ten years.
·     He makes his own alcohol which he estimates is about 20% proof. He consumes between half and one litre a day. He doesn’t get drunk but sips continuously all day long. He has shaky hands but can go for a day without a drink with no obvious ill effects.
·     He has drunk in this manner for many years, including whilst working. It has never affected his work except that he might have forgotten things now and then.
·     His GP is fully aware of the problem, but has not suggested any strategies for dealing with it.
·     He has no interest in seeking help from AA or other groups and is happy with the way things are.
36.The tribunal determined that the problem of alcohol dependency is fully diagnosed. However the absence of any attempts to reduce the problem means that it cannot be considered fully treated or stabilised, it cannot be considered for an impairment rating.
In relation to this condition, the Secretary contended in its Statement of Facts, Issues and Contentions as follows:
41.The Respondent submits that this medical condition has not been fully diagnosed, treated or stabilised. The Applicant has had alcohol-related problems for most of his adult life and has had a number of convictions in the past for failing a breath test and refusing a breath test (T2, 8).
42.The Applicant drinks home made alcohol continuously ail day, which he estimates is 20% proof. It is understood that the Applicant has no interest in seeking assistance to reduce or cease his alcohol consumption (T2, 8 – 9).
43.The Applicant has made no attempt to reduce his alcohol consumption and accordingly the condition cannot be considered fully treated and stabilised and thus no impairment rating can be assigned under the Impairment Tables for any impairment arising from this condition.
In oral evidence before this Tribunal Mr Thomson stressed that, despite drinking 1 ltr of alcohol a day, he did not believe his drinking caused him any difficulties.
It is clear that in the circumstances of this case it cannot be said that Mr Thomson’s condition has been fully diagnosed, treated or stabilised. He has contended that he does not have a problem with alcohol. As such, he is not of the view that he requires treatment.
Accordingly, no impairment rating can be assigned to this condition.
Right knee pain
In relation to this condition, the SSCSD found as follows:
37.      Mr Thomson told the tribunal:
·     He has had pain and clicking in his right knee for about ten years. Dr Mann has arranged X-rays which show bone on bone.
·     In the past he had a work related injury to his left knee and had a short operation, menisectomy, to remove some loose cartilage.
·     Apart from arranging X-rays Dr Mann has not referred him to an orthopaedic surgeon, but has said he will eventually need both knees replaced.
·     His knee gives him pain when walking. He can only manage about 10 minutes. Standing is uncomfortable and he has to move frequently.
·     He borrows a car and shops in Margaret River once a fortnight.
38.The tribunal noted Dr Mann's letter of 16 June 2015 referred to widespread arthritis, particularly in the knees. In his medical report dated 6 January 2015 Dr Mann stated current treatment for the knee pain was “nil”.
39.The tribunal had no access to X-ray reports relating to the right knee. However the tribunal is willing to accept Dr Mann’s diagnosis of osteoarthritis.
40.The tribunal determined that the problem of right knee pain is fully diagnosed. However it cannot be considered fully treated or stabilised, and therefore cannot be considered for an impairment rating
In relation to this condition, the Secretary contended as follows:
44.The Respondent submits that this medical condition has not been fully diagnosed, treated or stabilised. The report of Dr Mann dated 6 January 2015, notes that current treatment for this condition is “Nil” and that future planned treatment was “x-ray – intervention if necessary” (T8, 55 – 56).
45.There are no x-ray reports of the Applicant’s knees before the Tribunal, The report of Dr Mann dated 16 June 2015 notes that the Applicant has “osteoarthritis (particularly in the knees but also more widespread), [the osteoarthritis] is severe, permanent and only going to get worse, he may get some relief in the future, but I believe this will only be possible with quite major surgery." (Annexure A).
46.The Applicant has not yet had any treatment for this condition and accordingly the condition cannot be considered fully treated and stabilised and no impairment rating can be assigned under the Impairment Tables for any impairment arising from this condition.
The Tribunal agrees with the assessment of both the SSCSD and the Secretary. The Tribunal has reviewed the new evidence submitted by Mr Thomson before this Tribunal (ie, the radiology report of Dr Salmon dated 7 August 2003; the radiology report of Dr Cappe dated 13 January 2015; the radiology report of Dr Thomas dated 31 March 2015 and the report of Dr Mann dated 16 June 2015). This is all evidence that was not available to the SSCSD or the Secretary prior to Mr Thomson’s hearing before this Tribunal. Unfortunately, this information does not assist Mr Thomson in relation to whether his right knee condition was fully treated or stabilised.
While the Tribunal accepts that Mr Thomson is clearly in pain, there is no evidence before this Tribunal that he has, for example, been referred to an orthopaedic surgeon, has seen that surgeon and that there is some sort of medical strategy in place to help treat and stabilise this condition.
Accordingly, the Tribunal finds that Mr Thomson’s right knee condition has not been fully treated and stabilised. As such, no impairment rating can be assigned to this condition.
Condition Dupuytren’s Contracture
In relation to this condition, the SSCSD found as follows:
41.      Mr Thomson told the tribunal:
·     He has had painful, throbbing hands for some years. At times his fingers are numb. He has trouble gripping things.
·     He is able to manage buttons and opening bottles.
·     He has been told that as well as Dupuytren's contractures he has carpal tunnel syndrome. He knows surgery is possible for this. It has not been suggested by his doctor.
42.The tribunal noted that in his medical report dated 6 January 2015 Dr Mann listed bilateral Dupuytren's contracture as a condition generally well managed with minimal or limited impact on function. In his letter dated 16 June 2015 Dr Mann stated: “Doug appears to have carpal tunnel syndrome which severely limits his ability to work. He is affected every day with weakness and pains in his hands”. No mention was made of Dupuytren’s contracture.
43.The tribunal determined that the problems affecting Mr Thomson's hands are not fully diagnosed, treated or stabilised, and therefore cannot be considered for an impairment rating
In relation to this issue, the Secretary contended before this Tribunal as follows:
47.The report of Dr Mann dated 6 January 2015, notes that the condition of bilateral Dupuytren’s contracture was generally well-managed with minimal or limited impact on function (T8, 58).
48.The report of Dr Mann dated 16 June 2015 notes that: “Doug appears to have carpal tunnel syndrome which severely limits his ability to work: He is affected every day, with weakness and pains in his hands” (Annexure A). There is no mention of Dupuytren’s contracture in this report.
49.The problems affecting the Applicant's hands have not been fully diagnosed, fully treated or stabilised, and no impairment rating can be assigned under the impairment Tables for any impairment arising from this condition.
The Tribunal agrees with this assessment. During the hearing of this matter, Mr Thomson showed the Tribunal the state of his hands. It is clear that he is physically quite uncomfortable. Unfortunately, again, the Tribunal has no evidence before it that shows that this condition has been fully treated and stabilised. Dr Mann in his latest report of 16 June 2016, refers to carpal tunnel syndrome. Medically, this is different from Dupuytren’s Contracture. Further, there is no other supporting evidence that shows what has been done to treat and stabilise this condition. Has Mr Thomson, for example, seen a hand surgeon or received ongoing physiotherapy for this condition? Without this material, the Tribunal cannot conclude that this condition has been fully treated or stabilised.
Accordingly, no impairment rating can be assigned under the impairment Tables for any impairment arising from Dupuytren’s Contracture.
Continuing Inability to Work
This issue was not discussed by the SSCSD.
Before this Tribunal, the Secretary contended as follows:
50.Due to the cumulative construction of section 94 of the Act, if, as the Respondent maintains, the Applicant does not have an impairment rating of 20 points or more, then he is not qualified for DSP. There is no legal requirement to consider whether or not the Applicant has a continuing inability to work for the purposes of subparagraph 94(1)(c)(i) and subsection 94(2) of the Act
51.However, if the Tribunal did not accept the Respondent’s contentions in this regard and instead found that the Applicant had a total impairment rating of 20 points over separate impairment Tables (which is not conceded), the Respondent contends that the Applicant does not have a continuing inability to work for the purposes of section 94(1)(c)(i).
52.The Applicant was assessed as having a capacity to work of less than 15 hours per week with intervention by the JCA (T10, 91). However, the Respondent contends that the Applicant has a capacity to work at least 15 hours per week, as found by the ARO (T13, 103). The ARO considered that -
The Job Capacity Assessor indicated that you have a current work capacity of 8-14 hours per week with or without assistance from a Stream 4 service provider.
I note you have previously been able to work despite your medical conditions and that with treatment, you are likely to still have some capacity to work. I note that a previous Employment Pathway Plan you entered into with PVS Workfind, you appear to have undertaken full time education of a Certificate 3 in Business Administration with SWIT Margaret River; which indicates a reasonable work capacity given that course was for 50 hours per fortnight
I accept that the types of work appropriate to you may be more limited due to your conditions. However, based on the Job Capacity Assessment and other available evidence, I consider that you have the capacity to undertake light less skilled work of at least 15 hours per week in the next two years. Your medical conditions would also not prevent you from undertaking a further training activity to prepare you for alternative work within two years.
53.The Respondent agrees with the ARO’s views as expressed above.
54.The Respondent contends that the Applicant does not have a continuing inability to work under section 94(2)(a) or (b).
The Tribunal has found that only one of Mr Thomson’s impairments was fully treated or stabilised during the Relevant Period – that being his hearing loss. It has also found that in relation to that condition, he only receives an impairment rating of 10 points under Table 11 of the Impairment Tables.
In the circumstances, it is not necessary for the Tribunal to determine whether Mr Thomson has a continuing inability to work pursuant to section 94(1)(c) of the Social Security Act.
For the sake of completeness, however, the Tribunal makes the following observations.
If the Tribunal had been satisfied that Mr Thomson’s conditions were fully diagnosed, fully treated and fully stabilised during the Relevant Period, and the resulting impairments cumulatively attracted impairment ratings of at least 20 points under the Impairment Tables, then the Tribunal would also need to determine whether Mr Thomson had a "continuing inability to work" for the purposes of section 94(1)(c)(i) of the Social Security Act.

Section 94(2) of the Social Security Act defines a "continuing inability to work" as follows:
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B) – the person has actively participated in a program of support within the meaning of subsection (3C); and
(a)in all cases – the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases – either:
(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
The evidence shows that Mr Thomson participated in a program of support. This was not contested before this Tribunal. Mr Thomson would still be required, however, to demonstrate that he met the continuing inability to work criteria in sections 94(2)(a) and (b) of the Social Security Act.
Section 94(5) of the Social Security Act defines “work” as work that is for at least 15 hours per week on wages that are at or above the relevant minimum wage that exists in Australia, even if not within the person's locally accessible labour market.
When determining whether a person has a continuing inability to work, the Tribunal should disregard the following factors:
a) any impairments that have not been assigned a rating under the Impairment Tables (Secretary, Department of Family & Community Services v Michael (2001) 116 FCR 500);
b) the availability of work in the person's locally accessible labour market (section 94(3)(b) of the Social Security Act);
c)    the person's motivation to work or train except when medical evidence indicates that the lack of motivation is directly attributable to the impairment (Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444, 451);
d)    the person's preferences regarding the type of work or training (Crossland and Secretary, Department of Family and Community Services [2004] AATA 864 [34]);
e)    the person's potential attractiveness to an employer in a particular area of work or employer preferences and discriminatory practices that exist in the open labour market, including the willingness or otherwise of employers to engage people with disabilities (Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846);
f)     the existence of a benign employer or sheltered or special employment; that is, only the normal workplace is considered (Li and Secretary, Department of Employment and Workplace Relations [2007] AATA 1606).
The Secretary contended that Mr Thomson is likely to be able to work for at least 15 hours per week within 2 years of lodging his claim. In making this contention, the Secretary relied on the assessment made by the ARO. In so doing, the Secretary rejected the JCA findings.
The Tribunal agrees with this assessment. The Tribunal notes that Dr Mann says that he is of the view that Mr Thomson cannot be “gainfully employed in any meaningful role” given his current conditions. Unfortunately, Dr Mann does not explain what he means by “meaningful role”. Nor does he clarify whether his conclusions take into account the fact that treatment options (like knee and hand surgery and psychiatric care (for example) are available, all of which, arguably, would improve Mr Thomson’s ability to work work).
The Tribunal further notes that Mr Thomson had engaged in an intensive study program (50 hours per fortnight). This is stressed in the ARO report.
The Tribunal finds that while it may well be the case that Mr Thomson may not find the type of employment he would prefer, based on the evidence before it, the Tribunal prefers the findings of the ARO over those of the JCA.
The Tribunal finds that Mr Thomson did have an ability to work for the purposes of section 94(1)(c) of the Social Security Act.
CONCLUSION
This is a most unfortunate case. The Tribunal is not unsympathetic to Mr Thomson’s situation. He is clearly distressed and in pain.
However, the Tribunal can only look at the evidence before it in relation to the legislation relevant to DSP.
In that context, the Tribunal finds that during the Relevant Period, Mr Thomson had the following impairments as per section 94(1)(a) of the Social Security Act:
·     Hearing loss
·     Depression
·     Alcohol Dependence
·     Right knee pain
·     Dupuytren's Contracture
Mr Thomson thus satisfies the requirements of section 94(1)(a) of the Social Security Act.
In relation to these impairments, the Tribunal finds that only Mr Thomson‘s hearing loss was fully diagnosed, treated and stabilised and that the impairment arising from the hearing loss warrants an impairment rating of 10 points under Table 11.
Accordingly, as Mr Thomson’s impairment rating does not total 20 points under the Impairment Tables, he does not satisfy the requirements of section 94(1)(b) of the Social Security Act.
Accordingly, the Tribunal finds that Mr Thomson is not eligible for DSP.
DECISION
For the reasons outlined above, the decision under review is affirmed.

I certify that the preceding 96 (ninety six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr Christopher Kendall.
...............[sgd D Brodie]........................................
Administrative Assistant
Dated 31 March 2016

Date of hearing 21 March 2016

Applicant In person

Counsel for the Respondent Ms B Rayment

Solicitors for the Respondent Mills Oakley Lawyers

[2016] AATA 194

31 March 2016

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Division	GENERAL DIVISION
File Number	2015/3771
Re	Douglas Thomson
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Deputy President Dr Christopher Kendall
Date	31 March 2016
Place	Perth

Introduction to Table 11
· Table 11 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving hearing (communication) function or other functions of the ear (e.g. balance). · 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. · Self-report of symptoms alone is insufficient. · There must be corroborating evidence of the person’s impairment. · Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following: a report from the person’s treating doctor; a report from a medical specialist (e.g. an ENT specialist or neurologist) confirming diagnosis of conditions associated with hearing impairment or other impaired function of the ear (e.g. congenital deafness, presbycusis, acoustic neuroma, side-effects of medication, Meniere's disease or neurological conditions including Multiple Sclerosis); results of audiological assessment undertaken by a fully qualified audiologist or ENT specialist. · Table 11 should be applied with the person using any prescribed hearing aid, cochlear implant or other assistive listening device that they usually use. · If the person uses recognised sign language or other non-verbal communication method as a result of hearing loss only, the person’s hearing and communication function should be assessed using Table 11.
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).

Date of hearing	21 March 2016
Applicant	In person
Counsel for the Respondent	Ms B Rayment
Solicitors for the Respondent	Mills Oakley Lawyers