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

Abdalla and Secretary, Department of Social Services (Social services second review) [2016] AATA 701 (9 September 2016)

Division

GENERAL DIVISION

File Number

2015/1241

Re

Naser Abdalla

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Regina Perton, Member

Date 9 September 2016

Place Melbourne
The Tribunal affirms the decision under review.

[sgd]........................................................................
Regina Perton, Member
Catchwords
SOCIAL SECURITY - disability support pension – whether medical conditions fully diagnosed, treated and stabilised at time of claim or within 13 weeks of that date – points to be allocated - some conditions not fully diagnosed, treated and stabilized - insufficient points to qualify for disability support pension - decision affirmed
Legislation
Social Security Act 1991 section 94
Social Security (Administration) Act 1999 Schedule 2, section 4
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Regina Perton, Member
9 September 2016

Mr Naser Abdalla lodged a claim for disability support pension (DSP) with Centrelink on 15 July 2013. He was then 46 years old. On 2 September 2013, a Centrelink officer rejected Mr Abdalla’s claim (the first original decision). Centrelink administers DSP for the Secretary, Department of Social Services (the respondent).
Mr Abdalla lodged a second fresh claim for DSP on 13 May 2014. On 2 June 2014, a Centrelink officer rejected the claim (the second original decision).
Both decisions were separately reviewed by a different authorised review officer of Centrelink (ARO). The original decisions were affirmed in late June 2014 and late July 2014 respectively.
Mr Abdalla lodged an application for review of both decisions with the Social Security Appeals Tribunal (SSAT) on 16 December 2014. On 20 February 2015 the SSAT affirmed the ARO's decisions to refuse DSP for both claims on the basis that Mr Abdalla's impairments did not rate 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) on 15 July 2013 and 13 May 2014, or within 13 weeks of those dates (the relevant periods).
On 16 March 2015 Mr Abdalla lodged an application for review of the SSAT decision with this Tribunal.
The issue before the Tribunal is whether Mr Abdalla satisfied the requirements for DSP during either of the relevant periods. The Tribunal is not empowered to decide whether he meets the requirements at the present date.
QUALIFICATION FOR DSP DURING THE RELEVANT PERIODS
Section 94 of the Social Security Act 1991 (the Act) sets out the criteria for a person to qualify for DSP.
94(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) the person has a continuing inability to work
…
When deciding whether a person qualifies for DSP, the decision-maker also needs to take into account the provisions of section 4(1) of Schedule 2 to the Social Security (Administration) Act 1999 (the Administration Act). Section 4(1) allows a person who does not qualify for DSP at the date of application to be granted DSP if they qualify within 13 weeks of that date.
Does Mr Abdalla Suffer from an Impairment?
In his claim form lodged on 15 July 2013, Mr Abdalla indicated that he migrated to Australia from Egypt in September 1996. Evidence provided to the Tribunal indicates that he was working as a cleaner at a shopping centre in 2011 when he was physically and verbally attacked. He and his doctors state that his mental health has been affected by the attack. He has also developed other physical ailments in recent years.
On 26 June 2013 Mr Abdalla’s general practitioner, Dr M S Moosa, completed a medical report indicating that Mr Abdalla suffered from PTSD (post-traumatic stress disorder) with a date of onset in 2011 and Duanes syndrome (an eyesight disorder) with no date of onset given.
Dr Moosa prepared a further medical report on 3 October 2013 in which he stated that his patient suffered from Post Traumatic Stress and was under the care of a psychiatrist, Dr Humrany. Dr Moosa stated that the condition impacted on Mr Abdalla’s ability to function due to Poor thinking, poor … [indecipherable], anxiety, depressed.
Dr Moosa stated Mr Abdalla also suffered from Poor vision L eye Duanes syndrome. He was under the care of the Footscray Eye Clinic for that condition which was described as severe. Dr Moosa stated that his patient needs a pension as he is unlikely to work again.
In the claim form lodged on 13 May 2014, Mr Abdalla added diabetes to his list of ailments. In a medical report dated 12 May 2014, Dr Moosa stated that Mr Abdalla had been his patient for seven years. Dr Moosa noted that Mr Abdalla was still being treated by Dr Humrany, and added a psychologist, Mr David Read, as also conducting treatment.
Dr Moosa indicated that the current symptoms of PTSD experienced by Mr Abdalla were stress, anxiety and poor sleep. The impact on him was described as Poor Concentration, Poor problem solving, Flashes of incident. Dr Moosa stated that diabetes was diagnosed about a year earlier with the treatment being oral tables, diet, exercise, care plan, dietician. Dr Moosa again described his patient as unfit for work.
The Tribunal accepts that Mr Abdalla suffered from a number of medical conditions during the relevant period and continues to do so. The Tribunal accepts that Mr Abdalla suffered from physical and mental impairments at the time he lodged his claims for DSP. He therefore meets the requirements of section 94(1)(a) of the Act in relation to both claims.
Does Mr Abdalla’s Condition Attract an Impairment Rating of 20 Points?
The Tribunal must next decide whether Mr Abdalla's medical conditions attract an impairment rating totalling 20 points, subject to satisfying the requirements under paragraphs 6(3) and (4) of the Impairment Tables. The legislation only allows for impairment points to be assigned for a particular condition if it has been fully diagnosed by an appropriately qualified medical practitioner, has been fully treated and fully stabilised, and is likely to persist for more than two years (section 94(2) of the Act).
Paragraph 6 of the Impairment Tables states that:
Applying the Tables
(2)The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
…
Impairment ratings
(3)An impairment rating can only be assigned to an impairment if:
(a)the person’s condition causing that impairment is permanent; and
Note: For permanent see subsection 6(4).
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
…
Permanency of conditions
(4)For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
Note: For fully diagnosed and fully treated see subsection 6(5).
(c)the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(bthe person has not undertaken reasonable treatment for the condition and:
(i)     significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)     there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Note:        For reasonable treatment see subsection 6(7).
Reasonable treatment
(7)For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a)is available at a location reasonably accessible to the person; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
Impairment has no functional impact
(8)The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.
Example: A person may be diagnosed with hypertension but with appropriate treatment the impairment resulting from this condition may not result in any functional impact.
Assessing functional impact of pain
(9)There is no Table dealing specifically with pain and when assessing pain the following must be considered:
(a)acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and
(b)chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and
(c)whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).
Paragraph 8 of the Impairment Tables sets out what cannot be taken into account.
8Information that must not be taken into account in applying the Tables
(1)...
(2)Unless required under the Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.
Example: Unless specifically referred to by a descriptor in a Table, the following must not be taken into account in assessing an impairment: the availability of suitable work in the person’s local community; English language competence; age; gender; level of education; numeracy and literacy skills; level of work skills and experience; social or domestic situation; level of personal motivation; or religious or cultural factors.
PTSD/Anxiety/Depression
Mr Abdalla’s PTSD with associated symptoms was diagnosed following an assault in his workplace in 2011. A number of reports were arranged by solicitors acting for Mr Abdalla in relation to an appeal to the Medical Panels following a notification that Mr Abdalla’s weekly payments would cease on 13 July 2013.
Dr Moosa in a report dated 20 April 2013, stated:
…
History & Condition … Following the accident, Mr Abdalla described a devastating and impairment in his mental state in the form of being extremely anxious, easily overwhelmed and unable to calm down and relax. He described his mood as mainly towards the low side, being teary, touchy and sensitive with low depressed mood and lack of interest.
Mr Abdalla has ongoing and strong vivid flashback phenomena about the accident. He describes his sleeping as severely impaired with ongoing nightmares.
…
Mr Abdalla told me that he became aggressive in his behaviour towards his wife and his children.
Prognosis: Mr Abdalla suffers from post traumatic stress disorder as a result of the injuries he sustained. I feel the condition has not stabilised yet. I am not optimistic of the outcome of the injuries and emotional stress he sustained.
Treatment: Mr Abdalla was referred to a Psychologist, a Psychiatrist and was also seen by a work cover Psychiatrist. He is on Pristiq 15 mg and Temaze for his insomnia.
Current Work Capacity: Mr Abdalla is presently unable to return to his pre-injury employment.
Considering a suitable employment in the future one has to take into account the following factors:
1.    His eye
2.    His poor command of English
3.    His skills
4.    His mental state.
I am of the opinion that Mr Abdalla lacks the abilities to attract any employer. I am pessimistic about his future job prospects.
Dr Raid Al Humrany, Mr Abdalla’s treating psychiatrist, provided a report dated 17 April 2013. He provided a Personal and Social History he had obtained during his patient’s regular visits. Mr Abdalla obtained a diploma degree in trading in Egypt and described himself as being sociable, easygoing person, very peaceful and devoted his life to work and family commitments.
…
Around the age of 31, Mr Abdalla decided to leave his country Egypt and migrated to Australia for good. Following his arrival to Australia, Mr Abdalla told me that he was working in different industries including hospitality for a couple of years, working as a cleaner for many years in different places including universities and finally in shopping centre (Brimbank Shopping Centre) for the last three years until the time of the accident and left the job in January 2011.
Mr Abdalla denied any previous psychiatric history with no mental illness in the family and no drug and alcohol abuse.
Dr Humrany provided a description of the circumstances of Mr Abdalla’s injury and the verbal and physical abuse he had experienced at the hands of an aggressive stranger. Dr Humrany goes on to describe aspects of the difficulties Mr Abdalla experienced in obtaining workers’ compensation which was finally approved in February 2012.
…
Mr Abdalla told me that he was seen by a variety of psychiatrists from workcover as well as his lawyers who in turn encouraged him to see a psychiatrist and psychologist for ongoing follow up.
Mr Abdalla told me that he was commenced on Pristiq 50 mg early this year which has had a partial affect on his mental state and recently and prior to his attendance to my clinic, his medication was increased to 100 mg.
…
At that stage, and based on that single interview, I got the impression that Mr Abdalla described a history that suggested emotional and physical abuse at work, element of PTSD with a mixture of anxiety and episode of depression
Our management at that time included:-
1.    To keep going with his antidepressant medication Pristiq 100mg in the morning.
2.    He was advised to take a small dose of sleeping pills Imovane 7.5mg 1 tablet at night for a week, then possibility to cut it down and make it 1 tablet when he needs it.
3.    To be linked with an Arabic speaking psychologist to modify his negative thoughts and attitude, phobia and fears as well as anxiety symptoms following the accident.
4.    To keep seeing his general practitioner and ophthalmologist to deal with his physical condition.
On the following visits, and with ongoing medical and psychotherapy, Mr Abdalla described good improvement in his mental state, mainly with his depressive element, social interaction, communication, however he still manifests on and off anxiety symptoms, racing thoughts overwhelming with minor flashback phenomena about the accident that happened in the past.
Mr Abdalla described some improvement in his sleeping and appetite without any worthlessness, helplessness and no suicidal and homicidal thoughts.
…
At this stage, Mr Abdalla is in the stage of improvement and we decided to cut down his medication Pristiq to 50mg and possibility to cut it down further in the near future when he is able to resume his full commitment as before.
In regards to his working capacity and based on my observations, I am of the opinion that Mr Abdalla should be linked with a proper vocational assessment on which he is currently with to find a suitable job that fits his physical and mental capacity.
I am of the opinion that Mr Abdalla is not fit to work in his previous employment and it is preferable to avoid any noises environment in his future job to avoid any flaring up of his anxiety or bad temper as much as we could…
Mr Abdalla told the Tribunal that he is still seeing Dr Humrany but had not been able to provide an updated report because he could not afford the cost of such a report.
The reports cited above indicate that at the date of the first claim in July 2013, Mr Abdalla’s psychiatrist and doctor were still considering a number of options in relation to his treatment including changing his drug regime, seeing an Arabic speaking psychologist and a prescription to help his insomnia. The Tribunal finds that Mr Abdalla’s condition could not be considered fully treated and stabilised in relation to the July 2013 claim.
During 2014, there were further assessments made of Mr Abdalla’s mental health. During a Job Capacity Assessment on 30 May 2014 a Job Capacity Assessor (JCA) who is a registered psychologist found that Mr Abdalla’s condition was fully diagnosed, fully treated and fully stabilised. An Arabic interpreter was present. The JCA stated in her report:
Post Traumatic Stress Disorder
Onset/Diagnosis – January 2011 – with workplace assault
Past Treatment – Medication with changes as needed. Psychiatrist on a fortnightly basis for the Dr Raid Al Humrany 1.5 years; Prior to this was seeing a psychiatrist with work cover; seeing General Psychologist David Read for around 1 to 1.5 years, reports D. Read recommends he exercise 3 times per day which he still needs to do
Current – continues to see Psychologist, Psychiatrist, take prescribed medications
Future treatment – Any same as past, increase daily exercise
Symptoms – Low mood, fearful, poor concentration, nervousness, sleeping difficulties, irritability, social withdrawal, anxiety, flashes of past workplace incident from 2011; client reports he gets anxiety/stress, can isolate himself at times from others as he does not like too much noise; reports he goes to the shops with his wife when she goes shopping, can drive locally, really goes alone though; accepts wife’s help when she tries to help him; can drive locally and independently for this; has 1 friend whom sees him and he accepts his supportive help; no past hospitalisations, or behavioural issues; no psychotic symptoms or substance abuse
…
Total impairment rating: 10
Supporting reasons summary:
There is a moderate functional impact on activities involving mental health function – goes out alone infrequently and is not actively involved in social events; has difficulty coping with situations involving stress; activity levels are noticeably reduced; he goes to the shops with his wife when she goes shopping, can drive locally, really goes alone due to anxiety/fear; accepting of family’s help.
In December 2014, a WorkCover Medical Panel comprising two psychiatrists stated:
…
The worker presented as middle-aged gentleman in neat casual clothes and good grooming, readily engaging with the Panel and the interpreter, keen to relate the relevant information. He was respectful throughout and unnecessarily apologised for what were sometimes lengthy answers and understood that sometimes he needed to be curtailed. At the start of the assessment the worker appeared to be significantly stressed by the lighting and expressed gratitude when these were switched off and no longer looked discomforted. He maintained good visual contact with the Panel Members… At all times through the interview he presented as tense but when talking about the incidence of 2011, as well as the effect on his current functioning, he became quite agitated which shifting of body posture and anguish look on his face. At no stage did he break into tears, although he said that he was on the verge of such. It was the Panel’s impression that anxiety and agitation were the predominant emotion and that he wasn’t clinically depressed although certainly is dysphoric regarding his predicament. Other than his circumstantial style of speech, there was no disorder of thought form or speech. There were no psychotic symptoms and his belief that he could be attacked in the home was formed by his anxiety as well as experiences with the alleged assailants…. The Panel considered that the worker had a poor understanding of the nature of his psychological condition and had difficulty rationalising his fear-based thinking.
The panel formed the opinion that in the context of the experiences is explained by the worker in 2011 while working with the cleaner at a shopping centre he experienced immediate fear and distress and felt that significant harm would come to him. Following these series of events the worker has continued to have fearful feelings of further assault but has also developed symptoms that are indicative of a Post Traumatic Stress Disorder relevant to the accepted psychiatric condition injury.
Despite treatment input through a Psychiatrist and Psychologist, there has been no improvement in his clinical condition, which is causing impairment of work and domestic function, the Panel considers that due to the nature of the worker’s psychiatric injury and the length of the history, the worker’s current psychiatric condition is static or well stabilised and is not likely to remit despite further medical treatment. The Panel therefore concluded that for the purposes of impairment, the worker’s psychiatric condition is stable and permanent.
…

The SSAT, in its decision, stated the following:
… The Tribunal considered that Mr Abdalla’s symptoms met the requirements for the allocation of 10 points on Table 5. The Tribunal considered that there was evidence from Mr Abdalla and Dr Moosa that some of the requirements for 20 points on Table 5 were met, but is not satisfied that he met most of the requirements as needed for the allocation of 20 points. The Tribunal therefore decided that Mr Abdalla would be allocated 10 points on Table 5 of the Impairment Tables.
The respondent submitted that although Dr Humrany’s opinion in relation to the second claim under consideration is unknown, the Tribunal can be reasonably satisfied that the condition was permanent during the second qualification period based on the reports of the JCA and the WorkCover Medical Panel. The respondent also submitted that 10 points was the appropriate assessment.
The preamble at the start of Table 5 states:
Table 5 is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment).
·   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).
·   Self-report of symptoms alone is insufficient.
...
·   The signs and symptoms of mental health impairment may vary over time. The person’s presentation on the day of the assessment should not solely be relied upon.
·   For mental health conditions that are episodic or fluctuate, the rating that best reflects the person’s overall functional ability must be applied, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
The points to be allocated as set out in Table 5 are set out below:
There is no functional impact on activities involving mental health function.
(1) The person has no difficulties with most of the following:
(a) self care and independent living;
Example: The person lives independently and attends to all self care needs without support.
(b) social/recreational activities and travel;
Example 1: The person goes out regularly to social and recreational events without support.
Example 2: The person is able to travel to and from unfamiliar environments independently.
(c) interpersonal relationships;
Example: The person has no difficulty forming and sustaining relationships.
(d) concentration and task completion;
Example 1: The person has no difficulties concentrating on most tasks.
Example 2: The person is able to complete a training or educational course or qualification in the normal timeframe.
(e) behaviour, planning and decision-making;
Example: There is no evidence of significant difficulties in behaviour, planning or decision-making.
(f) work/training capacity.
Example: The person is able to cope with the normal demands of a job which is consistent with their education and training.
Five points are awarded in the following circumstances.
There is a mild functional impact on activities involving mental health function.
(1) The person has mild difficulties with most of the following:
(a) self care and independent living;
Example: The person lives independently but may sometimes neglect self-care, grooming or meals.
(b) social/recreational activities and travel;
Example 1: The person is not actively involved when attending social or recreational activities.
Example 2: The person sometimes is reluctant to travel alone to unfamiliar environments.
(c) interpersonal relationships;
Example: The person has interpersonal relationships that are strained with occasional tension or arguments.
(d) concentration and task completion;
Example 1: The person has difficulty focusing on complex tasks for more than 1 hour.
Example 2: The person has some difficulties completing education or training.
(e) behaviour, planning and decision-making;
Example 1: The person has unusual behaviours that may disturb other people or attract negative attention and may sometimes be more effusive, demanding or obsessive than is appropriate to the situation.
Example 2: The person has slight difficulties in planning and organising more complex activities.
(f) work/training capacity.
Example: The person has occasional interpersonal conflicts at work, education or training that requires intervention by a supervisor, manager or teacher or changes in placement or groupings.
Ten points are awarded in the following circumstances:
There is a moderate functional impact on activities involving mental health function.
(1) The person has moderate difficulties with most of the following:
(a) self care and independent living;
Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.
(b) social/recreational activities and travel;
Example 1: The person goes out alone infrequently and is not actively involved in social events.
Example 2: The person will often refuse to travel alone to unfamiliar environments.
(c) interpersonal relationships;
Example: The person has difficulty making and keeping friends or sustaining relationships.
(d) concentration and task completion;
Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).
Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).
(e) behaviour, planning and decision-making;
Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.
Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).
Example 3: The person’s activity levels are noticeably increased or reduced.
(f) work/training capacity.
Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.
Twenty points are given in the following circumstances:
There is a severe functional impact on activities involving mental health function.
(1) The person has severe difficulties with most of the following:
(a) self care and independent living;
Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.
(b)social/recreational activities and travel;
Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).
(c) interpersonal relationships;
Example 1: The person has very limited social contacts and involvement unless these are organised for the person.
Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.
(d) concentration and task completion;
Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.
Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.
(e) behaviour, planning and decision-making;
Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.
(f) work/training capacity.
Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.
This Tribunal, on looking at all the evidence including Mr Abdalla’s oral evidence, is of the view that he was somewhere between 10 and 20 points as at the date of the second claim. However, paragraph 11 of the Impairment Tables dictates the following in such circumstances:
11       Assigning an impairment rating
(1)       In assigning an impairment rating:
(a)       an impairment rating can only be assigned in accordance with the rating points in each Table; and
(b)       a rating cannot be assigned between consecutive impairment ratings; and
Example: A rating of 15 cannot be assigned between 10 and 20.
(c)       if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied; …
…
The Tribunal is not satisfied that Mr Abdalla met all the criteria for 20 points on Table 5 at the date of the second claim. Therefore, taking into account paragraph 11 of the Impairment Tables, the Tribunal finds that Mr Abdalla is entitled to 10 points in relation to his mental health condition as at May to August 2014.
Eye condition (Duane’s syndrome)
In his medical report in relation to the first claim, Dr Moosa stated that Mr Abdalla suffered from Duane’s syndrome. He stated that the condition had been confirmed by the Footscray Eye Clinic and that the treatment was conservative. He stated that there was no specialist report available at that time.
In a medical report prepared in October 2013, Dr Moosa stated that his patient suffered from poor vision in the L eye, Duane’s syndrome. He stated that Mr Abdalla was under care at the Footscray Eye Clinic. Mr Abdalla’s current symptoms were poor vision, severe and the condition was expected to deteriorate. Dr Moosa’s medical report dated 12 May 2014, did not provide any update on the eye condition.
Dr Julian Mazzetti, ophthalmologist, of the Vision Eye Institute in Footscray, provided a report dated 1 September 2014 to Mr Haroon Moosa of Ivanhoe Optical.
I saw Mr Abdalla back in March 2011 and I think you have my report from that time. A CT scan also from 5 March 2011 was essentially normal.
Your referred Mr Abdalla back in July this year with an acuity of 6/18 in the right eye and only light perception in the left, and he saw Dr Jamie La Nauze [another ophthalmologist at that clinic].
There appears to be no report from that date, but he was booked in to return the following week, and I saw him on 11 August 2014. His acuities at that visit were 6/36 in the right eye and only hand movements in the left. His visual field studies showed virtually no peripheral vision recordable in either eye.
I could not ascertain the cause of his visual loss. He was understandably very upset due to his difficulties, and because of the number of recent motor vehicle accidents in which he had been involved – which he said numbered at least five or six.
He said he was no longer going to drive and that his wife was about to get her licence, and he would apply for a disability pension.
I suggested that he see one of the other doctors here in the Clinic, as I could not work out what had happened to his vision between 2011 and July this year, but he said that he did not wish to see any other doctors here and that he would speak to you about things.
I am sorry that I cannot offer any further help or advice, other than I think he should be assessed from scratch by another ophthalmologist, and perhaps his neuro‑imaging should be repeated as well, as there has been quite a definite and marked deterioration in his vision since 2011.
On 2 September 2014 Mr Haroon Moosa completed a Centrelink form entitled Request for Ophthalmologist/Optometrist Report. Mr Moosa stated that the onset of Duane’s syndrome and severe visual loss had a date of onset of 5 March 2011. The prognosis was Poor - no treatment. He stated that there was no peripheral vision recordable and that there was severe visual loss.
The Tribunal accepts that Mr Abdalla suffers from a serious eyesight problem. However, as at May to August 2014, the condition could not be considered fully diagnosed, fully treated or stabilised in light of Dr Mazzetti’s opinion of 1 September 2014 in which he express that he was baffled at the cause of the increase in severity of the condition. He recommended that Mr Abdalla seek the opinion of another ophthalmologist, but there is no evidence that Mr Abdalla has done so.
In these circumstances, the Tribunal cannot award any points despite accepting the serious impact of the eye condition on Mr Abdalla.
Diabetes
In his medical report dated 12 May 2014, Dr Moosa states that Mr Abdalla suffers from diabetes which was diagnosed a year earlier. The current treatment was oral tablets, diet, exercise, care plan, dietician. There is no indication of the impact of the condition on Mr Abdalla’s ability to function or whether it was fully treated and stabilised as at May to August 2013.
The Tribunal does not have evidence before it to enable it to award any points for that condition as at the date of the second claim under consideration.
Conclusion
The Tribunal finds that Mr Abdalla does not meet section 94(1)(b) of the Act during the relevant period as he has not been allocated 20 points for his impairments under the Impairment Tables based on his functioning in mid-2014. .
The Tribunal accepts that Mr Abdalla is unable to work given the significant impact of his symptoms. However, the Tribunal is not able to consider whether Mr Abdalla would qualify for DSP if it were considering his medical conditions and limitations at the present time.
DECISION
The Tribunal affirms the decisions under review.

47. I certify that the preceding 46 (forty‑six) paragraphs are a true copy of the reasons for the decision herein of Ms Regina Perton, Member

[sgd]...........................................................
Associate
Dated 9 September 2016

Date of hearing 7 March 2016

Date of final directions hearing 1 August 2016

Applicant In Person

Advocate for the Respondent Mr Tim Noonan

Solicitors for the Respondent Department of Human Services,
FOI and Information and Litigation Branch

[2016] AATA 701

9 September 2016

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Division	GENERAL DIVISION
File Number	2015/1241
Re	Naser Abdalla
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Regina Perton, Member
Date	9 September 2016
Place	Melbourne

Date of hearing	7 March 2016
Date of final directions hearing	1 August 2016
Applicant	In Person
Advocate for the Respondent	Mr Tim Noonan
Solicitors for the Respondent	Department of Human Services, FOI and Information and Litigation Branch