Al-Shuraifi; Secretary, Department of Social Services and (Social services second review) - [2019] AATA 4377

Al-Shuraifi; Secretary, Department of Social Services and (Social services second review) [2019] AATA 4377 (29 October 2019)
Division:GENERAL DIVISION
File Number(s): 2018/2937
Re:Secretary, Department of Social Services
APPLICANT

AndAdel Al-Shuraifi
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:29 October 2019
Place:Brisbane

The Administrative Appeals Tribunal sets aside the decision of the Social Services & Child Support Division of the Tribunal dated 24 April 2018 and substitutes a decision that the Respondent met the requirements of section 94(1) of the Social Security Act 1991 (Cth) and was qualified for Disability Support Pension at the date of his claim on 18 April 2017.
...................................[SGD].....................................
Member D Mitchell
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – DSP – whether medical conditions fully diagnosed, fully treated and fully stabilised – vision impairment condition - whether 20 points or more under the Impairment Tables during the Relevant Period – continuing inability to work – decision under review set aside and substituted
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Comcare v Lilley [2013] FCAFC 121
Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Harris [2010] FCA 360
REASONS FOR DECISION
Member D Mitchell
29 October 2019
INTRODUCTION

The decision under review is the decision of the Social Services & Child Support Division (SSCSD) of the Administrative Appeals Tribunal dated 24 April 2018. On that date, the SSCSD set aside the decision of the Applicant and referred the matter back for reconsideration in accordance with a direction that Mr Adel Al-Shuraifi (the Respondent) satisfied section 95 of the Social Security Act 1991 (Cth) as at 10 April 2017.[1]
[1] Exhibit 1, T Documents, T2, pages 4-9, Decision of the SSCSD.
BACKGROUND
On 10 April 2017, the Respondent lodged an incomplete claim for Disability Support Pension (DSP).[2]
[2] Exhibit 1, T Documents, T35, page 253, Centrelink Document List and customer contact notes for the period 03.04.2017 – 02.03.2018 – provides that the claim is missing pages 25-32; and T17, pages 132–155, Claim for DSP – noting page 155 is signed and dated 4 April 2017.
On 18 April 2017, the Respondent lodged further material in relation to his claim for DSP, which was then considered complete by the Applicant and could be assessed.[3] On his DSP claim form, the Respondent listed chronic shoulder pain and right knee pain as the disabilities, illnesses or injuries that he had.[4]
[3] Exhibit 1, T Documents, T17, pages 156-161, Claim for DSP – noting page 161 is signed and dated 18 April 2017; T35, pages 252-253, Centrelink Document List and customer contact notes for the period 03.04.2017 – 02.03.2018 – provides that the Respondent had provided pages 28-32 of the claim form.
[4] Exhibit 1, T Documents, T17, page 157, Claim for DSP.
On 8 August 2017, the Respondent attended a face to face Job Capacity Assessment (JCA) with an Assessor, whose professional discipline is listed as a Rehabilitation Counsellor.[5] In a JCA report dated 23 August 2017 the Assessor recommended that the:[6]
·Respondent’s knee and shoulder conditions were fully diagnosed, however were not fully treated and fully stabilised;
·Respondent’s low vision could not be considered fully diagnosed, fully treated and fully stabilised in the absence of current treatment and prognostic information; and
·Respondent had a work capacity within two years with intervention of 15 to 22 hours per week.
[5] Exhibit 1, T Documents, T22, page 168, Job Capacity Assessment Report.
[6] Exhibit 1, T Documents, T22, pages 168-177, Job Capacity Assessment Report.
A decision was made to reject the Respondent’s claim for DSP on 22 September 2017, on the basis that the Respondent did not have an impairment of 20 points or more under the Impairment Tables.[7]
[7] Exhibit 1, T Documents, T23, pages 178-179, Centrelink Notice: Rejection of DSP claim.
The Respondent sought review of the decision and provided further medical evidence.
On 29 January 2018, the Respondent attended a second face to face JCA.[8] The Assessor, with the professional discipline of Rehabilitation Counsellor, provided a report dated 16 February 2018 confirming her view in relation to the Respondent’s knee and shoulder conditions and work capacity. In considering the new medical evidence, the Assessor formed the view that the Respondent’s low vision condition was fully diagnosed, fully treated and fully stabilised and could be assigned 10 points under Impairment Table 12 – Visual Function.[9]
[8] Exhibit 1, T Documents, T29, page 195, Job Capacity Assessment Report.
[9] Exhibit 1, T Documents, T29, pages 195-207, Job Capacity Assessment Report.
On 2 March 2018, an Authorised Review Officer (ARO) affirmed the decision to refuse the Respondent’s claim for DSP. The ARO made the following key findings:[10]
[10] Exhibit 1, T Documents, T30, pages 208-214, Authorised Review Officer Decision and Notes.
·You were paid Newstart Allowance for the period 28 November 2016 to 27 January 2017.
·On 9 December 2016 you lodged a letter from your employer… where this employer had decided to terminate your employment as you were not following directions given.
·You were then granted Newstart Allowance from 20 March 2017.
·On 10 April 2017 you lodged a claim for Disability Support Pension.
·You have the following permanent condition: bilateral optic atrophy.
·Your conditions of (R) knee patellofemoral fissuring and (L) subacromial bursitis with impingement are not accepted as being permanent 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.
On 13 March 2018, the Respondent sought review of the DSP refusal decision by the SSCSD.[11] On 24 April 2018, the SSCSD set aside the Applicant’s decision and substituted its own decision that the Respondent satisfied section 95 of the Social Security Act 1991 (Cth) and was therefore qualified for DSP. The SSCSD concluded that the Respondent was permanently blind as at 10 April 2017. [12]
[11] Exhibit 1, T Documents, T31, pages 215-216, Referral to SSCSD.
[12] Exhibit 1, T Documents, T2, pages 4-9, Decision of the SSCSD.
Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal, by way of an application dated 28 May 2018.[13]
[13] Exhibit 1, T Documents, T1, pages 1-3, Application for Review.
The Applicant and Respondent have provided further medical evidence in relation to the Respondent’s level of vision impairment and the resulting functional impairments.
On 28 May 2019, a Hearing was held for this application. The Applicant was represented by Ms Maleah Underhill of Mills Oakley Lawyers. The Respondent was represented by Mr Phil Nolan of Counsel, instructed by Legal Aid Queensland.
The issue to be determined by the Tribunal is whether the Respondent is entitled to receive the DSP at the date of his claim or within 13 weeks thereafter.
THE LAW
The relevant law in assessing a person’s qualification for DSP is found in the Social Security Act 1991 (Cth) (the Act), the Social Security (Administration) Act1999 (Cth) (the Administration Act) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination).
Section 94 of the Act prescribes the criteria that must be met to qualify for the payment of DSP. In the present case, the predominant qualification questions before the Tribunal are:
1.Does the Respondent have a physical, intellectual or psychiatric impairment;[14]
2.Do the Respondent’s impairments attract 20 points or more under the Impairment Tables;[15] and
3.Does the Respondent have a continuing inability to work?[16]
[14] Section 94(1)(a) of the Act.
[15] Section 94(1)(b) of the Act.
[16] Section 94(1)(c) of the Act.
The Impairment Tables are set out in the Determination, which is made pursuant to section 26 of the Act and came into force on 1 January 2012. Section 5(2) of the Determination sets out that the purpose and general design principles of the Impairment Tables is that the Tables:
(a)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and
(b)are function based rather than diagnosis based; and
(c)describe functional activities, abilities, symptoms and limitations; and
(d)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
Under the Determination, the impairment of a person is limited to being assessed on the basis of what a person can or could do, not on the basis of what the person chooses to do or what others do for them.[17] The Impairment 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.[18] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[19]
[17] Section 6(1) of the Determination.
[18] Section 6(2) of the Determination.
[19] Section 8(1) of the Determination.
Further, an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than two years.[20]
[20] Section 6(3) of the Determination.
In order for a person’s condition to be considered permanent the condition must:[21]
(a)have been fully diagnosed by an appropriately qualified medical practitioner; and
(b)have been fully treated; and
(c)have been fully stabilised; and
(d)be more likely than not, in light of available evidence, to persist for more than two years.
[21] Section 6(4) of the Determination.
To determine whether a condition has been fully diagnosed by an appropriately qualified medical practitioner, and whether it has been fully treated, it must be considered whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and, whether treatment is continuing or planned in the next two years.[22]
[22] Section 6(5) of the Determination.
A condition is considered to be fully stabilised if:[23]
(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 two 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 two 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.
[23] Section 6(6) of the Determination.
Reasonable treatment is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[24]
[24] Section 6(7) of the Determination.
The Determination sets out that, in selecting the applicable Impairment Table, it is necessary to identify the loss of function; refer to the Table related to the function affected; then identify the correct impairment rating.[25] In assessing impairments where a single condition causes multiple impairments each impairment should be assessed under the relevant Table and where more than one Table is used to assess multiple impairments resulting from the single condition, impairment ratings for the same impairment must not be assigned under more than one Table.[26] Where multiple conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.[27]
[25] Section 10 of the Determination.
[26] Sections 10(3) and (4) of the Determination.
[27] Sections 10(5) and (6) of the Determination.
An impairment rating can only be assigned in accordance with the rating points in each Impairment Table; cannot be assigned between consecutive impairment ratings; if an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[28]
[28] Section 11(1) of the Determination.
In order to have a continuing inability to work which is required to satisfy section 94(1)(c) of the Act a person must meet the criteria of section 94(2), which requires that a person must:
(a)if they do not have a severe impairment, have actively participated in a program of support; and
(b)be unable to do any work independently of a program of support within the next two years; and
(c)be unable to participate in a training activity during the next two years or 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 two years.
A person’s impairment is considered to be a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.[29]
[29] Section 94(3B) of the Act.
Work means work that is for at least 15 hours per week on wages that are at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market.[30]
[30] Section 94(5) of the Act.
Section 95 of the Act provides that a person is qualified for DSP if the person is permanently blind, has turned 16 years of age and the relevant residency requirements are met.
The Administration Act sets out that qualification for DSP, and therefore assessment of the relevant impairment ratings, is to be determined at the date of claim or where a person is not qualified on that date but becomes qualified within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[31]
[31] Sections 41 and 42; clause 3 and clause 4(1) of Schedule 2, Part 2 of the Administration Act.
Both the Tribunal and the Federal Court have concluded that there is a requirement to look at the Respondent’s circumstances as they were, and the evidence that was available, at the time of the application for DSP and the 13 weeks which followed it. Further, medical and other evidence that are provided outside this Relevant Period may be considered, however only insofar as they are referable to a Respondent’s condition during the Relevant Period.[32]
[32] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services[2015] FCA 1123 at [25]-[28].
RELEVANT PERIOD
The Relevant Period in this matter commences on 18 April 2017,[33] being the date the Respondent lodged his claim for DSP, and ending 13 weeks later on 17 July 2017. The Tribunal is therefore limited to considering evidence as far as it relates to the Respondent’s medical conditions and functional impairments as they were during the Relevant Period.
[33] The date of claim is the date that the Respondent’s claim met the requirements of section 11 of the Administration Act. There is no evidence before the Tribunal to indicate that section 13(1) of the Administration Act applies to deem an earlier lodgement date.
PRELIMINARY MATTERS
At the outset of the Hearing, both Parties confirmed their written contentions that at no stage during the Relevant Period was the Respondent permanently blind and therefore did not meet the requirements of section 95 of the Act.[34] I accept these submissions and find, based on the evidence before the Tribunal, that the Respondent did not satisfy the requirements of section 95 of the Act during the Relevant Period.
[34] Exhibit 3, Secretary’s Statement of Issues, Facts & Contentions, pages 5-7, paragraphs 28-37; Exhibit 4, Respondent’s Statement of Issues, Facts & Contention, page 1, paragraph 4.
Consequently, the Respondent’s claim for DSP must be considered pursuant to the requirements set out in section 94 of the Act.
Based on the evidence before the Tribunal, it is clear that the Respondent had impairments during the Relevant Period and therefore has met the requirements of section 94(1)(a) of the Act. This point is not in contention.[35] The Applicant considers the Respondent’s impairments include left shoulder,[36] right knee[37] and vision impairment conditions.[38]
[35] Exhibit 3, Secretary’s Statement of Issues, Facts & Contentions, page 9, paragraphs 50-52.
[36] Exhibit 3, Secretary’s Statement of Issues, Facts & Contentions, pages 9-10, paragraphs 53-55.
[37] Exhibit 3, Secretary’s Statement of Issues, Facts & Contentions, pages 10-11, paragraphs 56-57.
[38] Exhibit 3, Secretary’s Statement of Issues, Facts & Contentions, pages 11-16, paragraphs 58-69.
At the Hearing, the Respondent conceded that his left shoulder and right knee conditions were not fully diagnosed, fully treated and fully stabilised at the Relevant Period.
Based on the medical evidence before the Tribunal and the concession made by the Respondent at the Hearing, I am satisfied that the Respondent’s left shoulder and right knee conditions were not fully diagnosed, fully treated, and fully stabilised during the Relevant Period. Accordingly, the Respondent’s left shoulder and right knee conditions are not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for these conditions.
ISSUES
The remaining issues for the Tribunal to consider are:
1.Whether, within the Relevant Period, the Respondent’s vision impairment condition attracted 20 points or more under Table 12 the Impairment Tables which deals with visual function; and
2.If so, did the Respondent have a continuing inability to work?
EVIDENCE
Evidence provided through the Respondent’s claim for DSP
Based on the medical evidence before the Tribunal, the Respondent’s visual acuity results based on the Snellen scale, ranging from 23 July 2014 until 19 April 2017, were:
·23 July 2014 – 6/15, 6/15;[39]
·20 October 2014 – 6/18, 6/18;[40]
·22 October 2014 – 6/15 (R eye), 6/20 (L eye);[41]
·6 July 2015 – 6/18, 6/18;[42]
·18 January 2016 – 6/18, 6/18;[43]
·26 July 2016 – 6/18, 6/18;[44] and
·19 April 2017 – 6/15, 6/15.[45]
[39] Exhibit 1, T Documents, T8, page 59, Ophthalmologist and other testing progress notes and findings.
[40] Exhibit 1, T Documents, T8, page 69, Ophthalmologist and other testing progress notes and findings.
[41] Exhibit 1, T Documents, T8, page 73, Ophthalmologist and other testing progress notes and findings.
[42] Exhibit 1, T Documents, T8, page 74, Ophthalmologist and other testing progress notes and findings.
[43] Exhibit 1, T Documents, T8, page 78, Ophthalmologist and other testing progress notes and findings.
[44] Exhibit 1, T Documents, T8, page 86, Ophthalmologist and other testing progress notes and findings.
[45] Exhibit 1, T Documents, T8, page 103, Ophthalmologist and other testing progress notes and findings.

On 8 August 2017, the Respondent attended a face to face JCA with an Assessor whose professional discipline is listed as Rehabilitation Counsellor.[46] In the subsequent JCA Report dated 23 August 2017, the Assessor found the Respondent’s “Low Vision – Both Eyes” condition is considered verified and permanent due to its chronic nature, however it is not considered fully diagnosed, fully treated and fully stabilised in the absence of current treatment and prognostic information.[47] The Assessor noted that the:[48]
Client reported:
Has difficulty with reading. Client reported he would be unable to read a typed document sitting on a desk in front of him, he indicated would see blurred lines only. The Assessor observed the client to pick up a typed document and position it close to his eyes, he then indicated he was then able to read.
He would use his mobile phone's camera to magnify documents when he was working.
Difficulty seeing in the distance for example in his former workplace he was not able to use the forklift with high reaching due to reported limited distance vision.
Has had a driver's licence but does not drive, indicated due to impaired vision and is unable to see road signage, particularly at night.
Client reported he does not have prescription eyewear nor supports/modifications. He reported that he not been advised or referred to services to investigate potential assistive supports/modifications.
[46] Exhibit 1, T Documents, T22, page 168, Job Capacity Assessment Report.
[47] Exhibit 1, T Documents, T22, pages 168-177, Job Capacity Assessment Report.
[48] Exhibit 1, T Documents, T22, page 171, Job Capacity Assessment Report.
On 29 January 2018, the Respondent attended a face to face JCA with the same Assessor who provided the report dated 23 August 2017.[49] In the subsequent JCA Report dated 16 February 2018,[50] the Assessor provided:[51]
Assessor Observation: Assessor observed the Claimant to mobilise independently and without issue to walk from the waiting area of the Centrelink Customer Service Centre to the meeting room at the back of the service centre. After the assessment he was observed to walk from the meeting room and navigate through customers lined up at the front door of the Centrelink customer service centre. Claimant was observed to fill out (hand write) a medical consent form without observed issue e.g. Claimant was able to hand write the form unaided (no modifications)
The condition of Bilateral optic neuropathy is assessed as permanent and fully diagnosed, treated and stabilised. The impacts have been longstanding, despite access to consistent and reasonable treatment. The condition is expected to gradually deteriorate over time.
[49] Exhibit 1, T Documents, T29, page 195, Job Capacity Assessment Report.
[50] Exhibit 1, T Documents, T29, pages 195-207, Job Capacity Assessment Report.
[51] Exhibit 1, T Documents, T29, page 199, Job Capacity Assessment Report.
In the JCA report dated 16 February 2018, the Assessor formed the view that the Respondent’s vision impairment condition could be assigned 10 impairment points under Table 12 of the Impairment Tables. The Assessor reported that the Respondent had a baseline work capacity of 8-14 hours per week and with intervention of 15-22 hours per week.[52]
[52] Exhibit 1, T Documents, T29, page 202, Job Capacity Assessment Report.
In a Centrelink Request for Ophthalmologist/Optometrist Report completed on 18 October 2017, Dr John Harrison, Ophthalmologist, diagnosed the Respondent as having bilateral optic neuropathy. He recorded the “Date of onset” as “as child” and “Prognosis” as “Guarded: likely to be slowly progressive”.[53] At that date, the Respondent’s visual acuity was recorded as 6/30 and 6/24.[54]
[53] Exhibit 1, T Documents, T26, page 188, Request for ophthalmologist/optometrist report.
[54] Exhibit 1, T Documents, T26, pages 183-190, Request for ophthalmologist/optometrist report.
In a report dated 18 April 2018, Dr Jenny Tian, Ophthalmology Registrar for Dr Harrison at the Royal Brisbane and Women Hospital (RBWH), provided that the Respondent was reviewed on that day and his visual acuity was 6/20 and 6/20. She provided that:[55]
[The Respondent] reports that his impaired vision has Impacted on his day to day function. He reports that he could no longer drive due to his vision, which is correct as he no longer meets the criteria for driving according to QLD transport guideline. He struggles to see the bus number; he has to hold magazine/newspaper close to his face in order to read; and he occasionally gets watery eyes. [The Respondent] does not work at the moment and does not use visual aids or assistive devices. He does not wear glasses or contact lens as he reports 'they don't help', However, [the Respondent] could still function independently and is able to orientate and move around independently in unfamiliar environment. He could still dress, cook and look after himself without assistant.
Overall [the Respondent’s] impaired vision has mild functional impact on activities involving visual function.
[55] Exhibit 1, T Documents, T32, page 217, Medical report authored by Dr Jenny Tian.
In response to a Legal Aid Questionnaire dated 19 September 2018, Dr Harrison provided the following responses:[56]
[56] Exhibit 12, Questionnaire completed by Dr John Harrison dated 19 September 2018.
These questions concern the situation in the period on or before 10 July 2017 as this is the period which is relevant to this appeal
In addition, further information is requested to enable a fresh disability support application to be made.
Vision Impairment
We understand that [the Respondent] was diagnosed in your ophthalmology clinic with bilateral optic nerve atrophy of unknown cause in 2014 [as set out by Dr Jenny Tian, Ophthalmology Registrar at the Royal Brisbane Hospital by a letter dated 18 April 2018].
Is this correct?
Yes
Is it the case that prior to 10 July 2017 and continuing there is no known treatment that would have resulted in a significant improvement in his level of impairment on or before the next two years?
Yes
In the period currently and on or before July last year, would this patient have had constriction to within 10 degrees of fixation in the better eye irrespective of corrected visual acuity?
No
In the period mentioned above would this patient have had a combination of visual defects resulting in the same degree of visual impairment as that occurring in the above points? [Visual acuity on the Snellen Scale after correction by suitable lenses of less than 6/60 in both eye OR constriction to within 10 degrees of fixation in the better eye irrespective of corrected visual acuity]. Please explain.
No
In the period would this patient have had severe difficulties seeing things at a distance or close up even if wearing glasses or contact lenses if these could assist?
Yes
In the period would this patient have needed to use vision aids or assistive devices other than spectacles and contact lenses for many tasks?
Possibly
In the period would this patient have had severe difficulty performing many day to day activities involving vision? (e.g. difficulty distinguishing between different types of food in tins or packets, seeing the level of fluid in a cup or reading aisle signs in the supermarket even when standing close to these)
Yes
In the period would this patient have been unable to see routine workplace, educational or training information (e.g. signs, safety information, or manuals) even when using any assistive devices or technology that he has?
Possibly
In the period would this patient have needed assistance to use public or other means of transport to travel to work, educational or community facilities even when using any assistive devices he has (e.g. a guide dog or cane)?
Yes
In the period would this patient have been unable to move around independently in unfamiliar environments?
Quite likely
Would be unable to recognise people until quiet close or by auditory cues
In this period could [the Respondent] have safely worked more than 15 hours per week without excessive support from other employees?
I doubt that.
In a letter dated 19 September 2018, Dr K Poon, Ophthalmology RMO at the RBWH, provided that the Respondent’s visual acuity rating was 6/48 and 6/48. He said:[57]
I am writing to advise that due to an eye condition, [the Respondent] has slowly worsening vision and visual fields with poor colour vision. As a result, he is not fit to drive and will have ongoing impact to his daily activities relating to the above.
[57] Exhibit 11, Report of Dr K Poon dated 19 September 2018.
Evidence of Dr Alan Hilton
At the request of the Applicant, Dr Alan Hilton, Consultant Ophthalmologist, provided a report dated 10 August 2018[58] having undertaken a detailed examination of material regarding the Respondent. Dr Hilton did not personally examine the Respondent at any time.
[58] Exhibit 13, Report of Dr Alan Hilton dated 10 August 2018.
In his report, Dr Hilton opined that:
·The Respondent’s vision impairment condition was fully diagnosed, fully treated and fully stabilised at the Relevant Period.[59]
[59] Exhibit 13, Report of Dr Alan Hilton dated 10 August 2018, page 6.
·There was no treatment for the Respondent’s vision impairment condition.[60]
[60] Exhibit 13, Report of Dr Alan Hilton dated 10 August 2018, page 5.
·The Respondent’s functional impairment resulting from his vision impairment condition met the descriptors for 10 points on Table 12 of the Impairment Tables. He provided:[61]
[61] Exhibit 13, Report of Dr Alan Hilton dated 10 August 2018, pages 6-7.
[The Respondent] qualifies for a moderate functional impact on activities involving visual function.
1a. He does have difficulty seeing things at distance and close up, although he has normal side vision or visual field.
1b. Visual aids or assistive devices do not help to improve his vision in either eye.
1c. He does have difficulties performing some day-to-day activities, that is he has difficulty seeing printed letters, signs or route numbers on approaching buses or at train stations and also because of his poor visual acuity in each eye, he is unable to obtain a driving licence.
1d. He does have difficulty seeing routine workplace, educational and training information.
2. He does have moderate discomfort when performing day-to-day activities involving his eyes, that is frequent watering of his eyes.
2a. However, he is able to function independently in familiar environments, that is without regular assistance from other people, and b) he is able to travel independently using public transport when using any assistive devices that he may have.
I have had specific regard to Dr Harrison's report and test, dated 19 April 2017 and 18 October 2017 and also to Dr Tian's report dated 18 April 2018. The visual defects and function described in those reports are likely to be representative of [the Respondent’s] level of impairment and functioning at the qualification period. There would certainly be no improvement in his vision following the qualification period.
·The Respondent would have been able to undertake work or training activities independently of a program of support of at least 15 hours per week within two years of the Relevant Period.[62]
·The types of occupations that the Respondent would have been capable of undertaking were labouring and similar occupations to that he was involved in at the time of his assessment.[63]
[62] Exhibit 13, Report of Dr Alan Hilton dated 10 August 2018, page 7.
[63] Exhibit 13, Report of Dr Alan Hilton dated 10 August 2018, page 7.
At the Hearing before this Tribunal, Dr Hilton gave evidence by telephone under affirmation. He:
·Confirmed his qualifications and spoke of his extensive experience including medicolegal work for 20 or more years for WorkCover and as the Chairman of the Medical Assessment Tribunal as the ophthalmology representative.
·Confirmed that his expertise extends to providing opinion in relation to a person’s visual acuity and function.
·Explained the Snellen scale as a measurement of vision that is carried out at a distance of six metres and:[64]
[64] Transcript of Proceedings, page 11, lines 6-10.
… normal vision is 6/6, that’s what a person can see at 6 metres, and the chart usually goes from 6/6 to 6/9 to 6/12 to 6/18 to 6/36 to 6/60. What this means is that we get a measurement – we get a measurement of the vision of each person and we can then quantify the degree of their vision.
·Confirmed that the Snellen scale is purely subjective.
·Told the Tribunal that for someone to be able to drive their vision has to be at least 6/12 in their better eye.
·Told the Tribunal that a person with a rating of 6/18 or 6/20 would be able to see moderately well. He said:[65]
[65] Transcript of Proceedings, page 13, lines 18-32.
… The person would have difficulty with seeing details. The person would have difficulty with small print. The person would be able to read signs and would be able to read a newspaper, but perhaps might have difficulty reading the smallest print in the newspaper
… if they were doing shopping, for instance, they may have difficulty reading – reading the small print on a product that may want to buy but they would be able to read the large print on that product…
They would have no difficulty identifying faces at all.
… if they were watching television they would be able to see the television reasonably clearly but they would have difficulty reading, say the text that is sometimes put down the bottom of the television.
·Told the Tribunal that the main difference between a person that can drive at 6/12 in their best eye and person at 6/18 to 6/20 is their ability to read smaller print.
·When asked to explain why he said that the Respondent had difficulty with some tasks and a moderate impairment under Table 12 of the Impairment Tables, as opposed to having a severe difficulty, and what he said the difference was, he said:
oThe measurement of visual acuity.
oThere would be some subjective considerations as well in what a person could or could not see.
oFor description 1(a) a severe difficulty would equate to a person who is unable to see the top letter on the chart, which is a vision of less than 6/60. A person who has moderate difficulty would be able to see, for example, halfway down the visual acuity chart.
oHalfway down would be 6/18.
oHe would consider that a rating of 6/24 or 6/30 would fall in between a moderate and severe rating.
oFor descriptor 1(b) relating to the need to use vision aids or assistive devices other than spectacles and contact lenses, the distinction between having difficulty with some or many tasks is difficult. If there were many tasks, then the Respondent would have considerable difficulty in all of his day to day activities and it seemed from the report that this was not the case.
oIn his view, someone with a visual acuity of 6/18 in their worst eye would still be able to do most tasks.
oFor descriptor 1(c) as per descriptor 1(b) it is difficult to make the distinction between having difficulty with some or many day to day activities, however based on his experience, the evidence favours that the Respondent has some, rather than many, difficulties with day to day activities.
oIn his view, during the Relevant Period the Respondent would have been able to work in a labouring job such as digging or cutting down trees without any difficulty. However, if his job entailed reading instructions, then he would have difficulty.
oIn his opinion and experience, people with a 6/18 rating on the Snellen scale are regularly employed and are not generally limited to labouring work.
·In relation to the extent that the report of Dr Tian can be relied upon as relevant back to the Relevant Period, he said:[66]
… I have been through the notes from the hospital and we have on the 16^th of the 3^rd 2017 at the hospital his vision was recorded at 6/12 in the right eye and 6/18 in the left eye and also on the 18 January 2016 the vision was rated 6/15 in the right eye and 6/18 in the left eye. So, there – you can see from that that between the period of assessment and the report of Dr Tian there has been a small drop in his visual acuity in each eye...
·Considered that Dr Tian’s report of 6/20 in each eye would be based on a level of measured acuity that was similar to that measured in the Relevant Period.
[66] Transcript of Proceedings, page 15, lines 16-21.
On cross-examination, Dr Hilton:
·Confirmed that his view was that for someone to meet the 20 point descriptor on Table 12 of the Impairment Tables he would expect them to have a visual acuity of 6/60 as an approximation.
·Confirmed that a 6/60 visual acuity would equate to the definition of permanently blind for the Centrelink guidelines.
·Agreed that it would be possible that two people with the same level of vision can have different levels of independence and skills.
·Agreed that assumptions should not be made based on a person’s level of independence and difficulties with activities of daily living based solely on the clinical level of blindness.
·Provided that in his view issues, such as poor depth perceptions, would play a very small part in determining the difficulties that someone would face in activities of daily living.
·Agreed that you cannot base an opinion on loss of function based purely on some visual acuity records.
·Confirmed that he had not personally examined the Respondent.
·Confirmed that he relied on the reports of Dr Tian and Dr Harrison in writing his report and agreed that if he was performing an assessment he would go into a lot more detail about what a person can do and cannot do.
·Agreed that his opinion is limited in what he could actually provide an opinion on without the further information that he would most usually obtain, as he had not interviewed the Respondent.
·Maintained his view that the Respondent’s 6/18 vision means he would not meet the 20 point descriptor for Table 12.
·Confirmed that he knows Dr Harrison and that he is an eminent ophthalmologist in Queensland. He acknowledged that Dr Harrison has been examining the Respondent every six months since 2014 and agreed that Dr Harrison would be in a much better position to assess the respondent’s level of function during the Relevant Period.
Evidence of Dr Nicole Grant
In January 2019, Dr Grant, Occupational Therapist, provided a revised Occupational Therapy Assessment Report at the request of the Respondent. This report remained dated 23 November 2018.[67] Dr Grant undertook an assessment at the Respondent’s home on 1 November 2018 to determine the Respondent’s functional capacity compared to the descriptors in Table 12 of the Impairment Tables at that time and on or before 10 July 2017.[68]
[67] Exhibit 7, Amended Report of Dr Nicole Grant dated 23 November 2018.
[68] Exhibit 7, Amended Report of Dr Nicole Grant dated 23 November 2018.
In her written report, Dr Grant provided that:[69]
[69] Exhibit 7, Amended Report of Dr Nicole Grant dated 23 November 2018.
·In April 2018, the Respondent’s visual acuity was reported as being 6/20 in both eyes and he described his vision as being very blurry and that he cannot make out people’s faces from around four metres away.
·The Respondent reported to her that:
oHe had completed year 12 in Kuwait and after school commenced work in warehousing, obtained a forklift ticket and has since continued in labouring roles.
oHe last worked in March 2017 as a labourer. He could not continue, because he was unable to see the labels due to his impaired visual acuity.
oHe enjoyed listening to music and talking to his family. His parents lived in Kuwait and he had a sister in America. He felt quite isolated, as his family were overseas and his closest friends lived in Sydney.
oHe had not shared information about his medical condition with his family as he did not want them to worry. He preferred not to disclose this information to potential employers or other contacts as he did not want to be pitied.
oHe believed this to be a cultural trait and said that he did not feel comfortable asking for help. He preferred to be as independent as possible, however this was increasingly difficult with his disability.
oHis housemate did the cooking and thorough cleaning. He was able to assist with cleaning, but tended to miss the details. He generally washed the dishes and wiped benches.
oHe was able to complete the laundry and hang clothes on the line. He was unable to determine if his clothes were stained and would wear darker colours outside of the home to be sure he was tidily dressed.
oHis housemate did the grocery shopping as he could not see items on the shelf. He avoided buying items that he could not read the ingredients for due to dietary restrictions. When attempting to shop or purchase other retail items he could not see the screen at the checkout, he could not read a menu when eating out.
oHe placed his face within centimetres of the mirror to brush his teeth, shave and perform other personal hygiene tasks. He used his hand to feel his way around the shower. He had non-slip matting in the shower to prevent slips and falls.
oHe tripped sometimes, because he could not see obstacles in his path. He did not want to use a stick or other mobility aid as he was self-conscious.
oHe had a bus stop approximately 75 metres away from his apartment. He knew which bus number to catch, however he waved down every bus or asked someone else at the bus stop as he could not see the number from a distance.
·In being asked to report on the Respondent’s self-reported and demonstrated positional and functional tolerances as compared to the descriptors in Table 12 of the Impairment Tables, she provided:
oBased on the assessment undertaken, the functional impact of the Respondent’s visual impairment on his ability to undertake activities is considered to be severe for the following reasons:[70]
[70] Exhibit 7, Amended Report of Dr Nicole Grant dated 23 November 2018.
[The Respondent] has severe difficulties seeing things at a distance or close up.
[The Respondent] needs to use vision aids or assistive devices other than spectacles and contact lenses for many tasks, such as using a magnifying sheet or other magnification tool for reading small print on medication, following recipes, reading information brochures and leaflets, reading timetables, reading menus, completing forms, making lists, reading information on cleaning products, reading labels on bottles e.g. shampoo/ conditioner, and reading assembly instructions, for example.
[The Respondent] is aware that he needs to use aids but is very self-conscious about his disability and is reluctant to draw attention to himself.
[The Respondent] has severe difficulty performing many day to day activities involving vision (e.g. difficulty reading labels on food packets, seeing fluid level in cups and other vessels)
[The Respondent] needs assistance to use public or other means of transport to travel to work, education or community facilities even when using any assistive devices.
[The Respondent] is unable to move around independently in unfamiliar environments.
·She considers that the Respondent meets the 20 point descriptors on Table 12 of the Impairment Tables and when asked to comment on whether on or before 10 July 2017 the Respondent’s functions would have differed and if so how, she provided:[71]
[71] Exhibit 7, Amended Report of Dr Nicole Grant dated 23 November 2018.
[The Respondent’s] vision is deteriorating, so his function may have been slightly better than his current presentation, however it is difficult to comment without having met [the Respondent] prior to this assessment.
·In relation to the Respondent’s capacity to work or train within two years of the Relevant Period she provided:[72]
It is my opinion that [the Respondent’s] vision impairment prevented him from working more than 15 hours per week in the two years from 10 April 2017 to 10 July 2017. He is untrained for any roles that could potentially be modified to accommodate his visual impairment.
It is my opinion that [the Respondent’s] vision impairment did not prevent him from undertaking a training activity that would equip him to work within two years from 10 April 2017 to 10 July 2017. Training however, would need to be significantly modified to accommodate his visual impairment, for example he would need training materials to be enlarged, and he would need assistance to navigate unfamiliar environments where training activities were to be undertaken. [The Respondent] is able to find his way if there are clearly no obstacles or trip hazards, however he is needs to take his time which is likely to affect his performance of work tasks in any work environment. He has been observed being able to fill out forms to enter basic details such as signature and personal information, however [the Respondent] struggles with more detailed documents and will need to use magnification aids for most written and typed work. He currently chooses not to use aids as aforementioned, he is still adjusting to his disability and reports to be quite self-conscious. He would rather not use aids such as magnifying sheets as he feels this draws attention to his disability. He is aware however, that he will need to use aids eventually, as advised by his healthcare professionals.
[The Respondent’s] capacity to work is increasingly limited due to his deteriorating vision. For [the Respondent] to be able to work, he will need to retrain in a role that takes into consideration his physical limitations. He will also need a sympathetic employer who has an understanding of working with individuals who have a vision impairment and is able to provide significant modification to work tasks and to the work environment to accommodate his requirements. As such he is not capable of competing for employment in the open labour market and would need the assistance of a Disability Employment Provider who has experience with visual impairment. [The Respondent] is at this time, unable to work in an open, unsupported environment. He requires excessive support, more than what would be considered reasonable adjustments and/ or normal supervision in order to perform the work.
Work tasks that [the Respondent] may be able to perform if he has the necessary support, training, and environmental modifications include interpreter, call centre, reception, store greeter.
It is unknown if exertion beyond usual visual tolerance is likely to worsen [the Respondent’s] symptoms or trigger a flare up. It is clear however, that if [the Respondent] was asked to perform a task or activity that required good visual acuity he would be at risk of jeopardising his own safety and the safety of others, and/ or being unable to complete the activity or task satisfactorily.
[72] Exhibit 7, Amended Report of Dr Nicole Grant dated 23 November 2018.

At the Hearing before this Tribunal, Dr Grant gave evidence by telephone and under affirmation:
·She confirmed that she is an occupational therapist registered to practice in Queensland and that she personally examined the Respondent on 1 November 2018.
·When taken to page three of her report and the heading “Activities of daily living”, she agreed that her report reflected the instructions that the Respondent’s representative had provided to her as at the date of the assessment.
·When asked if she discussed with the Respondent his difficulties at any time prior to the assessment, she advised she had spoken to him about his difficulties during the Relevant Period.
·When asked what those difficulties were, she provided that they were the same difficulties she had described in her report:[73]
… those things had become more difficult over time. So, in terms of things like seeing items around the house, shampoo bottles, ingredients for cooking, et cetera, as well as looking at things in grocery stores, on restaurant menus, all of those things worsened over time. So, those same things had just become more and more difficult as time passed.
·She confirmed that her view was that based on the difficulties that the Respondent was facing in April to July 2017 that her opinion was that he meets the 20 point descriptors on Table 12 of the Impairment Tables.
[73] Transcript of Proceedings, page 55, lines 38-43.
On cross-examination, Dr Grant:
·Confirmed her view was that the Respondent’s vision impairment prevented him from working for more than two years from the Relevant Period.
·When asked if this view was premised on her statement that the Respondent “is untrained for any roles that could potentially be modified to accommodate his visual impairment”[74] and was her opinion that if an employer at that time was aware of the Respondent’s visual impairment would he have been able to work – she said she did not believe so.
[74] Exhibit 7, Amended Report of Dr Nicole Grant dated 23 November 2018.
·When asked whether the Respondent could do very basic things that do not require reading, she said the question is about the Respondent’s safety and that of those around him. She could not foresee that there would be any tasks where he would be able to be accommodated to the point that he could work unsupervised. She confirmed this view was based on the information the Respondent had told her.
·When asked if she had regard to any information independent from what the Respondent told her to draw the same conclusion, she said she had reviewed the medical reports given to her as well.
·When asked about her report where she said the Respondent could undertake training, she said that he could potentially have participated in training. However, that was very different to actually working in a workplace where there are expectations on how the work is to be done. She said it was quite possible that the Respondent would have been able to participate in some training, but she maintained that that would not necessarily translate into him being capable of actually performing work tasks.
·Said that the results of visual acuity give an indication about what a person might be experiencing, but her assessment was based on their subjective reporting together with the reporting of other specialists involved in the care at that time.
·Said what she was trying to do was to determine, through her assessment process, what a person’s typical functioning may be. Not just on the day that she sees them, but on other days. In her assessment of the Respondent, she said she did see him on one particular day and could form some opinions based on what she saw on that day. Part of her area of expertise is to develop an opinion of somebody’s function over time and on different days through carefully considered questions. Through that assessment process she needs to be able to formulate an opinion by identifying patterns and getting a greater understanding of somebody’s function across a range of environments and on a range of days.
·When asked whether it would be fair to say that her assessment was quite heavily reliant on the information that the subject of the assessment was giving her, Dr Grant said she would not say heavily. It was a combination of their self-report, her clinical observations as a professional and correlating that with the information that she could obtain from other reports if needed.
·Provided an overview of how she typically conducts her assessments and in particular the Respondent’s assessment. Dr Grant said:[75]
[75] Transcript of Proceedings, page 61, lines 11-40.
So, when I come to somebody’s home, so I’m always looking to see what their – you know, the condition of their home is. If it is – would accurately reflect the condition that this person may have. So, in this particular case, I was looking for anything that might indicate that [the Respondent] is having difficulty and his house, you know, things were quite – you could see that there was not a lot of organisation and I’m always making – I guess, noting what sort of things might help supports the statements provided by the person that I’m assessing and certainly on this particular occasion, I could see that the condition of the house and where things were located, for example, you know, frequently used medications and things like that were in easy reach positions and were separated from other household items.
So, I’m not just relying on self-report, I’m relying on my observations and doing a bit of an assessment of the environment and things like that as well. I always take time to ensure that I’m developing a rapport with the person that I am interviewing, so that they feel safe and comfortable and free to answer as truthfully as possible. Part of my training is in interviewing and ascertaining as best as possible, that the answers that I am getting are truthful and asking questions in a number of different ways, so I can make, I guess, assumptions about how the questions have been answered and whether there is consistency in the responses.
So, I am using the combination of my observations, of body language, of you know, patterns in answers, as well as the answers themselves and if I need to seek clarity, I will always ask. So, I guess, do you have any other questions about my approach and if I need to clarify anything with other health providers, I can look to the reports, but there is always an opportunity for me to seek information if I feel the need.
·When asked if she checked with the authors of the reports in this matter to clarify anything, she said she did not feel she needed to.
·When asked whether it was possible to separate the mess or habits of the Respondent’s housemate, she said it was not possible unless you spend time with them and asked different questions, but her point in mentioning it was that the environmental conditions were consistent with the Respondent’s self-report of how he lived his life.
·When asked whether the Respondent was more of a messy person than an organised person, she said possibly. The point was to say that she did notice that there were differences in what would typically be expected for somebody who does not struggle.
·Believed that even with training the Respondent could not work in a mainstream employment situation and was not competitive at all in the open labour market.
·Stated that, in her opinion, the Respondent would benefit from using an aid when walking as it would give him a little more stability with mobilising around.
The Tribunal sought context from Dr Grant in relation to how her report related back to the Respondent’s functional impairments during the Relevant Period. She said:[76]
So, his vision is worse now than he said it was at that time. But at that time… he still had quite significant deterioration of his vision. So, you can, from that, make assumptions about – and also, his report of his function at that time, which I may not have explained clearly in the report… But you make assumptions about, I guess, the accuracy of his self-report, it is absolutely credible that he would still have had the same difficulties that are described in the report.
[76] Transcript of Proceedings, page 65, lines 14-21.
The Tribunal asked Dr Grant how she felt she went getting the Respondent to disclose his situation to her, given that the Respondent had told the Tribunal that it was difficult for him to talk to people about his condition. Dr Grant told the Tribunal that she felt the Respondent opened up to her quite easily and that she feels that is a strength of hers, as a health professional and Assessor, to make people feel comfortable. She said that the Respondent was quite candid about the difficulty he was having with managing his condition and that he expressed sadness at the fact that he felt he could not share that with his family because of cultural barriers. She said the Respondent expressed regret that he felt that he could not seek help and that this is as a result of some cultural differences. Dr Grant said:[77]
[The Respondent] apparently, hadn’t told his parents that he was experiencing this level of difficulty. So, I felt that if he could comfortably share that with he, I felt that I was obtaining information from him that was, you know, accurate to the best of his ability and that I was able to obtain some information that, perhaps, he had not shared with his other health professionals, probably because he was feeling comfortable and safe in his home environment, which is not something that other health professionals have the advantage of – in a, sort of, different clinical environment, you do get different information from people.
[77] Transcript of Proceedings, pages 65-66, lines 44-5.
The Tribunal also asked Dr Grant to further clarify what her opinion was in relation to the Respondent’s capacity to work or undertake training that would assist him to work within two years from the Relevant Period. Dr Grant said:[78]
Sorry, in that period of time, his vision impairment prevented him from working. He – even if he did participate in training, which I believe he could have with some support, with quite a bit of support actually, I still don’t think it would have prepared him for – to be competitive in the open labour market. He would require significant amount of support, potentially, through a disability employment service and even then, under those circumstances, I think they would be quite challenged in finding him suitable employment.
[78] Transcript of Proceedings, page 66, lines 10-17.
Evidence of Dr Rasha Al Tameemi
Dr Rasha Al Tameemi, the Respondent’s General Practitioner, has been treating the Respondent since 2013. There are a number of medical reports before the Tribunal that have been provided by Dr Al Tameemi. Of these reports, it is not until the medical certificate dated 3 February 2018 that a reference is made to the Respondent’s “Bilateral Optic Neuropathy, of unknown cause, affecting his vision”.[79]
[79] Exhibit 2, Supplementary T Documents, ST37, page 74, Medical certificate of Dr Al Tameemi.
On 25 January 2019, Dr Al Tameemi provided two letters, which are largely the same.[80] In the second letter, Dr Al Tameemi provided:[81]
[80] Exhibit 2, Supplementary T Documents, ST48, pages 111-112, Letter from Dr Al Tameemi.
[81] Exhibit 2, Supplementary T Documents, ST48, page 112, Letter from Dr Al Tameemi; Exhibit 5, Report of Dr Rasha Al Tameemi dated 25 January 2019.
[The Respondent] is one of our patients at Cornwall Street Medial Centre.
He has been attending our practice since April 2013.
[The Respondent] was diagnosed with Bilateral Optic Nerve Atrophy in 2014, which has resulted in gradual progressive deterioration of his vision.
The condition is permanent and progressive.
He reports his vision as very blurry.
He is certified by his Ophthalmologist as unfit to drive as per Dr.Poon’s letter dated 19 September 2018.
With this poor vision, he has severe difficulty performing many day to day activities,it is unsafe for him to be independent in unfamiliar environments.
[The Respondent’s] capacity to work is greatly limited due to his deteriorating vision, I think he is unfit to work. He is under the care of Ophthalmology clinic at RBWH.
In summery [the Respondent’s] deteriorating vision greatly impacts his function and ability to perform daily activities.
He needs supervision and assistance with many daily living tasks.
I agree with the contents of the Occupational Therapy report dated 23/11/2018, and it is consistent with my clinical notes and observations that were made before 10 July 2017.
At the Hearing before this Tribunal, Dr Al Tameemi gave evidence by telephone under affirmation, she:
·Confirmed that she is a general practitioner registered in Queensland and that she had been treating the Respondent since 2013. She said that the Respondent had seen her as well as other doctors at her practice during that time, however he was seeing her more frequently since 2016.
·Confirmed she had full access to the Respondent’s records at her practice since April 2013.
·Confirmed she understood the Tribunal was dealing with a claim for DSP made by the Respondent and that it relates to a period between April and July 2017. She confirmed she was treating the Respondent during that period.
·Said that the Respondent did not consult her during the Relevant Period in relation to his vision impairment condition. She was aware that it was diagnosed in 2014 at the Ophthalmology Clinic at the RBWH, however she said they did not send her any reports.
·When asked about a report she provided on 25 January 2019 in response to the report of Dr Grant, she confirmed that the opinions expressed in the report were her opinions reasonably held.
·Said during the Relevant Period she was treating the Respondent for musculoskeletal issues. She was aware that he was under the treatment of the Ophthalmology Clinic at the RBWH, and he had mentioned that he had problems with his vision and that his vision was deteriorating. She did not go any further with this as she was not treating his vision impairment condition.
·Confirmed that she had assisted the Respondent to fill in his claim for DSP form and that the conditions she had listed on the claim form were based on the conditions for which she was treating him.
·Confirmed that she left the treatment of the Respondent’s vision impairment condition to the RBWH and that does not mean he did not or does not have a problem.
On cross-examination, Dr Al Tameemi told the Tribunal that:
·When asked why she had written two reports on 25 January 2019, she said it was because she changed something on one of the reports to put in a reference to a date. She was not sure why the reference to the visual acuity was taken out, but thinks it was because she was not the one who was checking the Respondent’s visual acuity.
·The contents of the occupational therapy report dated 23 November 2018, is consistent with her clinical notes and observations made before 10 July 2017. She confirmed that she would have reviewed her clinical notes at that time, but that her notes did not really concentrate on the Respondent’s visual problems as she was treating his musculoskeletal issues. She said she knew the Respondent had an issue, but it was not in her notes before she received the reports in 2017, because she was not treating him for that condition at that time.
·Her notes do not actually address visual function before 2017.
·The Respondent started to talk more to her in the last year about his vision impairment condition and because of that she considered it was getting worse – because he was talking about it. She said he could no longer drive, he could not see clearly and needed to look at things close up and he missed his family.
·In helping the Respondent to fill in his claim for DSP form that she did not at that time think his visual impairment condition was an issue as she did not have any documents in relation to it. At that time, she was not aware there was a diagnosis as she had not received anything from the clinic.
·When she takes consultation notes she records why the patient is there and what is done, what the management and plan for care is and if there are any investigations. If significant issues were raised, she would record them.
Evidence of the Respondent
The Respondent’s Counsel advised the Tribunal that the Respondent is unable to read documents due to his vision impairment and as such documents have to be read to him.
The Respondent provided a written statement dated 31 August 2018 that set out the difficulties he was experiencing with activities of daily living and employment. There is no reference in the statement as to what period of time the details relating to his difficulties with activities of daily living were referring.[82]
[82] Exhibit 12, Respondent’s Statutory Declaration dated 31 August 2018.
At the Hearing, the Respondent appeared by telephone and provided evidence under affirmation. The Respondent’s evidence was taken in two parts due to the availability of the expert witnesses.
In response to questions asked by his Counsel, the Respondent:
·Confirmed his name, date of birth and address.
·Told the Tribunal he had been living with his housemate for around four and half years.
·When asked if he recalled attending Toowoomba on 31 August 2018 where he was read out his statement from Mr Darren Lewis, Legal Aid Solicitor, he said he was not sure about the date. He did remember being in Toowoomba and a man from Legal Aid reading a statement for him before he signed it and the man witnessed his signature.
·When asked if the information that was read out to him on that date was true and correct to the best of his recollection, he said that was right.
·Provided detailed evidence in relation to employment positions he had held since February 2015. In each of the roles the Respondent described, he was able to undertake the initial more simple duties. However, it appears that the Respondent was well-liked and a good worker and consequently was usually asked to take on more responsibility and more difficult tasks. These tasks required more reading or the use of heavy equipment, such as driving a forklift. The Respondent described how these tasks led to him having accidents and/or being unable to perform the duties as required.
·Told the Tribunal he work at a storage company in February 2015. His duties included assembling the timber storage cubes and loading them on to trucks. The Respondent said he drove a forklift and moved the cubes from the loading bay to stacks in the warehouse. When asked if there were any issues in operating the forklift, the Respondent replied that he smashed a few of the crates:[83]
[83] Transcript of Proceedings, page 30, line 2-3.
… but it wasn’t really that big smash because I was really really careful when I moved them.
·Told the Tribunal that due to his vision impairment, he could not judge distance. His employment ended after a couple of months.
·Told the Tribunal that at his next job, he started to build wheelbarrows, which he described as a simple task involving piecing three parts together using a bolt gun. The manager liked the him, so he involved him in more work including despatch. The Respondent stated that this took him a long time to learn, because it involved a lot of reading. He said he made a lot of mistakes.
·Said he did not tell his employers about his vision impairment issues:[84]
[84] Transcript of Proceedings, page 31, lines 22-24.
… the others, you know, they complaining because I was not the right guy, you know? Like, they don’t know about my – my problem, and I would never tell them. Even we go back now, I’ll never tell them.
·Said he does not tell them, because he does not want people to have sympathy for him. He wanted to get the job and it was an issue of self-respect and confidence.
·Told the Tribunal that at the end of 2016, he worked for a pipe manufacturing company. The role was a little physical, but mostly involved reading. For example, he had to accurately record the dimensions of the pipes. He had to use a small measuring tape, as well as see the numbers on the inside of the pipes. He said he avoided these duties as best he could.
·Said his own family does not know about his vision impairment condition, just his doctors and Centrelink.
·Said he did not remember who helped him fill out his DSP forms.
·Said he attended the Chermside Centrelink office when he had to go into a Centrelink office. He said he went there regularly in 2014-2015 to report his income, as he did not do anything on the computer. He said when he was working he went there regularly.
·Told the Tribunal that the Centrelink office is next to Westfield Chermside and that he had trouble getting to the office. The bus drops him off at the shopping centre and he got lost all the time. He said that once he was inside the Centrelink office it was not that hard for him to get around, because it was big inside, a big space which was half empty most of the time.
·Told the Tribunal he could not fill out forms. It was really hard, because even when he got really close to the form he could not see it clearly. It got very blurry. He said it was kind of like spaghetti. When he was told to fill out a form in Centrelink, he never did. He took the form home, unless they were just asking him to sign it and then they pointed their finger to where they want him to sign and he signed the form.
·When asked what he meant during the Relevant Period in relation to being able to cook a meal, he told the Tribunal that he had difficulties doing everything. He said he had difficulties using a knife, cleaning up, choosing spices, knowing when things were cooked. He relied on smell and taste. He said it took him a long time as the preparation took longer than the cooking – washing vegetables, peeling garlic, chopping tomatoes. During the Relevant Period, it took him around three to four hours to cook a hot meal.
·When asked about moving around in unfamiliar environments, he told the Tribunal that he had difficulties and he likened it to closing your eyes and trying to find your way around. He said he missed directions and it was difficult to figure out exactly where he was. He could not move freely with confidence.
·Told the Tribunal that to the best of his recollection the information he gave to Dr Grant when she came to his home was true and correct.

On cross-examination, the Respondent:
·When asked why he did not include his vision impairment condition on his claim for DSP form, said:[85]
[85] Transcript of Proceedings, page 40, lines 3-5.
Well, to my best knowledge I did because my vision it was the main thing and if you cannot see it maybe that’s – that’s really dumb mistake by me…
·Was unsure of what information he had provided with his claim for DSP. He thought it was all reports, x-rays, everything he had.
·When referred to a medical certificate dated 20 April 2017 completed by Dr Al Tameemi which did not refer to his vision impairment and asked why this was the case, he said:[86]
[86] Transcript of Proceedings, page 40, lines 43-47.
I was talking about my vision to that time but she is not an ophthalmologist, she cannot help with anything, she doesn’t know anything, it was just like kind of talk, you know, express myself, like take what I feel out to the doctor, you know, and she cannot help with that but she recommended psychologist because she says, You’re depressed.
·Said that he did not complain to Dr Al Tameemi about his vision impairment condition and he told the Job Capacity Assessor that when they said they were going to call her.
·Said that Dr Al Tameemi did not know how bad his vision impairment condition was. They just talked about it in general. He said he did not raise his difficulties with her. He saw Dr Harrison for his vision issues.
·Did not want to tell his family about his vision impairment condition, as he did not want to worry them. They would worry, because he was here on his own.
·Said he did not tell his employers about his vision impairment condition, because he believed they would not give him the job.
·When asked for further information about his job where he built wheelbarrows, he said he could because it was simple. He confirmed that job was in September 2015.
·Got his forklift licence in 2012 and stopped using it in mid-2016. He stopped driving a forklift, because he said:[87]
[87] Transcript of Proceedings, page 46, lines 1-5.
I can make a drama if I operate a forklift. Simply is that, I'm going to kill myself, I'm going to kill people, I don't want to make a drama. Small mistake can make big - big problems. It's a machine, it's like killing machine. It's not a bicycle, it's a forklift.
·Still has hope that they will find medicine that will fix his vision.
·When asked if he told the Job Capacity Assessor the truth during the assessment conducted on 8 August 2017, he said he did.
·When asked if he told Dr Al Tameemi and his other treating doctors the truth, he said he did.
·Said he used his mobile phone’s magnifying function to read documents and that he had difficulty seeing in the distance.
·Said he could not see road signage, particularly at night.
·When asked about the JCA report where the Assessor observed him pick up a document and read it close to his face, he said he did not recall reading anything during that meeting, that they just chatted.
·When referred to another JCA report where it was recorded that he was observed making his way through Centrelink and filling out a medical consent form by hand without assistance or difficulty, he said he walked through without assistance because the area was clear, flat and there are no steps. He said he did not fill out a form at Centrelink, because he never does that.
In response to questions asked by the Tribunal, the Respondent said that:
·His vision impairment condition had gotten a lot worse since April 2017.
·In the year between April 2017 and his statement dated 31 August 2018, his vision had also gotten worse. He said:[88]
It’s always getting worse. It’s never stable. It’s always getting worse and worse.
·He does not like talking about his difficulties. He said nobody likes to feel disabled or unqualified.
·He was unsure whether he was telling the Legal Aid Officer in Toowoomba in August 2018 about how he was at that time or about how he was during the Relevant Period, they were just talking.
·He did not remember whether when talking with Dr Grant they talked about the Relevant Period.
[88] Transcript of Proceedings, page 49, lines 22-23.
On re-examination, the Respondent told the Tribunal that:
·In April 2017 when he made cereal in the morning, he would often spill the milk because he could not see the bowl.
·He had difficulties telling the difference between household products, so he kept them in particular spots.
At this juncture, due to arrangements made in relation to availability of the expert witnesses, the Tribunal excused the Respondent. The Parties discussed the possibility of recalling the Respondent later in the Hearing to provide further evidence in relation to the statement he provided on 31 August 2018. This approach was taken due to the importance of this statement to establishing the Respondent’s functional impairments at a given point in time. Difficulty arose in this matter as the Respondent cannot read the material himself.
After hearing the expert evidence, the Respondent was recalled to give further evidence.
At this point the Respondent was asked to bring his mind back to when he went to Toowoomba and gave his statement, which was read to him by a Legal Aid Officer in August 2018 and referred to his situation at that time. He said yes to having had difficulties with the following during the Relevant Period:
·Spilling milk when he made his cereal, because he could not see the bowl properly.
·Seeing the difference between household products, if so did he keep them in different place to avoid the problem?
·Telling the difference between shampoo and conditioner.
·Putting on clothes – matching or seeing any detail or colour in his clothes.
Upon further enquiry by the Respondent’s Counsel, he told the Tribunal that in July 2017:
·He was not driving.
·He was not reading the newspaper, watching television or using a computer or text messages.
·He was not reading or writing. He said that:[89]
[89] Transcript of Proceedings, page 79, lines 30-35.
If you try to write something, you know, you have to write it as big as you can read it, you know, and you know you’re writing, like the right thing, you know, the right words, right? As you need to closer, you know, like little child when they start drawing or something…
·To read he would have to put the book or paper close to his face and that caused him to get dizzy. He just could not keep reading.
·He was not doing grocery shopping on a regular basis. He left it to his housemate to do and he would give her money or they would go together. If he did go grocery shopping, it would take too long and he would buy the wrong things. He would have to ask the shop assistants for a lot of help.
·He had difficulties differentiating between coins, but he could tell from the size. However, if something the same size and shape was put with the coins he could not tell the difference.
·He kicked his toe on furniture a lot and it caused him to break the nail of his big toe.
·He could recognise his friends through their height and body weight if they were close.
·He needed to grip the handrail to go up the stairs to his apartment to avoid tripping and he also had to do this to get into the shower.
·It took him extra time to do everything.
·When he tried to concentrate to read, it made the words blurrier. He would have to take a second to rest his eyes before trying again.
·If he looked at something in front of him, it would be blurry. For example, if he held two things in his hands and tried to see what was in his right hand and then his left hand the left one would be very blurry. He had to wait a couple of seconds.
·The best way he could describe waking up in the morning and opening his eyes was that he would have to wait a little bit until he could see; otherwise it was like he was almost blind.
·Sunlight made it feel like his eyes were burning.
·If he looked up towards the ceiling, his eyes became extremely teary and itchy. If looking to the sky, his eyes got really itchy.
The Respondent told the Tribunal he stopped work in March 2017.
On further cross-examination, the Respondent:
·When asked whether he would say he has a good memory given he had just given evidence in relation to April 2017, he said very much so:[90]
… cannot remember everything because technically I’m not a machine, right, but there is some parts I remember 100 per cent. Like for example, I remember something from my childhood when I was eight years or something but I don’t remember four years ago or five years ago… Some stuff that has really shocked you, that stick in your mind, like, this is the first… experience what I’m having and what is the difficulty, that really shocked me, you know. So that’s why it is in my mind…
[90] Transcript of Proceedings, page 82, lines 33-40.
In response to questions asked by the Tribunal, the Respondent said that back in the Relevant Period:
·He could not watch television and he could not watch a movie at the cinema, as even with the big screen it was still blurry.
·He could catch the bus, but needed help. The help he needed was to ask someone else at the bus stop what number bus was approaching and to sit at the front of the bus and ask the bus driver to tell him when it was his stop and time to get off. He did not tell them he needed help rather he would say he did not know the area or that he forgot his glasses.
·When he had to go somewhere he had not been before he would go earlier if he had an appointment, up to three hours earlier. If he had to catch a bus, he would get lost and sometimes he would walk around and around and keep asking for directions. He gave himself plenty of time.
·He would not go to unfamiliar places or outside unless he had to for example if he had to go to Centrelink, the passport office or immigration office. He would not cause himself stress.
CONTENTIONS
Contentions of the Applicant
The Applicant contended that the Respondent’s vision impairment condition was fully diagnosed, fully treated and fully stabilised at the Relevant Period and can be assigned impairment points under the Impairment Tables.[91]
[91] Exhibit 3, Secretary’s Statement of Issues, Facts & Contentions, page 11, paragraphs 58-60.
The Applicant relied on the following evidence in support of this conclusion:[92]
(a)Reports from the Royal Brisbane and Women's Hospital Opthalmology Outpatient Clinic dating back to July 2014 show visual acuity of 6/15 in both eyes (T8, 59), decreasing to 6/18 in July 2015 (T8, 74), January 2016 (T8, 78) and July 2016 (T8, 86), and then recorded as 6/15 in April 2017 (T8, 103);
(b)In his report of 18 October 2017, Dr Harrison confirmed onset of the condition in childhood and opined that the Respondent's prognosis was guarded, with the condition likely to be slowly progressive. At that time the Respondent's visual acuity is recorded as 6/30 in the right eye, and 6/24 in the left eye (T26, 188);
(c)Dr Jenny Tian records the Respondent's best corrected visual acuity as 6/20 bilaterally and notes a score of 0/15 on colour vision test for both eyes in her letter dated 18 April 2018 (T32, 217); and
(d)Dr Hilton reports that there is no treatment for the Respondent's condition and that it is permanent (see pages 5 and 6 of his 10 August 2018 report).
[92] Exhibit 3, Secretary’s Statement of Issues, Facts & Contentions, page 11, paragraph 59.
The Applicant contended that the Respondent’s vision impairment condition can be assigned a maximum of 10 impairment points under Table 12 of the Impairment Tables during the Relevant Period. The reasoning for this contention was set out fully in the Applicant’s Statement of Issues, Facts and Contentions.[93]
[93] Exhibit 3, Secretary’s Statement of Issues, Facts & Contentions, pages 11-16, paragraphs 61-69.
At the Hearing, the Applicant did not change their contentions.
As a consequence of the evidence set out above, the Applicant stated that the main point of contention appeared to be that the Respondent said that his reporting to Dr Grant and to the Legal Aid Solicitor were reflective of the period dating back to the Relevant Period.
The Applicant submitted that neither the person who took the Respondent’s statement nor Dr Grant were present during the Relevant Period and were not able to provide a contemporaneous account as to whether or not the Respondent’s self-reported functioning was what they observed, reported on or treated at that time.
In support of their contention that the Respondent’s vision impairment conditions could be assigned no more than 10 impairment points on Table 12 of the Impairment Tables during the Relevant Period, the Applicant stated that:
·The evidence of Dr Al Tameemi was problematic as she confirmed that she did not discuss the Respondent’s problems with vision in any way. The Applicant made reference to Dr Al Tameemi’s clinical notes dating back to April 2015 mentioning a number of issues, however made little reference to the Applicant’s vision impairment condition. The Applicant submitted in April 2017 there was a situation where the Respondent’s treating practitioner did not consider or record visual function was an issue or concern such that she would put it in her clinical notes or refer to it in the DSP application.
·The records of the RBWH provided that the Respondent’s visual acuity was 6/12 and 6/12 on 26 July 2016 and he was legally able to drive on that day and then when his visual acuity was taken on 16 March 2017 he was still legally able to drive. The last recorded visual acuity score during the Relevant Period was 6/15 in both eyes on 19 April 2017.
·Dr Hilton gave evidence that:[94]
[94] Transcript of Proceedings, page 87, lines 15-26.
…people with a score of between 6/12, 6/15, 6/18, 6/20 in each eye are still able to do most activities of daily living without significant difficulty. They have some difficulty and that was acknowledged in terms of being able to read and being able to read smaller print but in his experience, a person who can stand in front of a chart and at 6/12 or 6/18 read that chart, that correlates in an ability to see other things like faces. It correlates in an ability to see things like surrounds and environs and products.
·The Respondent’s information is that in 2015 and 2016 he did undertake work. In particular, he referred to undertaking work that required him to assemble wheelbarrows using a bolt gun and did so successfully for a period of three months without any reported difficulty. His evidence was that the difficulty started when the employer asked him to learn despatch which required him to undertake reading tasks and it was this that he said he had difficulty with. His evidence indicated that he avoided reading tasks and telling his employer that the tasks were not within his capability, certainly not without some form of assistance like being able to use his phone to magnify a number or words.
·In circumstances where the Respondent had, at that time and since, actively avoided accepting reasonable help, taking reasonable measures to maintain employment or seeking employment that is suitable, the Applicant’s position is that the evidence demonstrates that the Respondent was capable of doing work of a more manual nature. The Applicant said:[95]
[95] Transcript of Proceedings, page 90, lines 11-13.
A lot of the tasks that you might find in day to day living require you to be able to read the smaller print but most tasks in day to day living don’t require you to do that.
·The help the Respondent sought when using public transport is not outside the experience of most people when it came to travelling in an unfamiliar environment.
·It may take the Respondent more time to get from A to B, but he was able to do it. Right up until March 2017 he was able to get from home to work, work to home and do that work. This excluded work that involved reading, it is accepted that he had difficulty with that.
·Dr Hilton indicated that difficulty with reading tasks is absolutely consistent with the ratings that, in his opinion, would demonstrate to some degree his functional capacity. Accepting that the rating itself under the Snellen scale is dependent on subjective reporting and obviously a person is different subjectively to the next person and may ultimately have a slightly different ability to do things.
·Dr Grant said that ultimately what she is referring to and what she is relying on is largely subjective.
·The Respondent:[96]
[96] Transcript of Proceedings, pages 90-91, lines 46-3.
… consistently referred to choosing to do things, to choosing not to tell people about his condition, to actively avoiding putting himself in a situation where that might come to the fore and avoiding particular tasks that he sees or has had I guess some limited experience in performing previously.
·The Respondent suggested that due to the Respondent’s vision impairment any job he gets requires him to have a benevolent employer. Ultimately, in an open job market he would not be able to compete. The Applicant contended that:
oThere are requirements in employment law that require certain kinds of discrimination to not occur and for reasonable adaptations in the workplace to be made to support a person whose abilities may be somewhat limited. For example, if they needed voice assisted technology, a particular assistive device or some other adjustment to perform the duties.
oThe Respondent never gave any of his employers the opportunity to make adjustments.
oIt is actually not the case that a person that has visual impairments to the degree described in the multiple reports coming out of the RBHW, that all of those people are somehow employed by benevolent employers and there was an adjustment made in the workplace.
·It is accepted that Dr Grant said that the Respondent could do a training activity. It is not accepted that, that training activity, merely by reason that it would take a bit longer or need to be adapted, is outside of what is anticipated in that particular section when it says that a person needs to have a continuing inability to work and cannot participate in work and cannot participate in training.
·It is submitted that the Respondent did not need assistance from another person to use public transport, rather he asked questions that members of the public would ordinarily ask when they were catching a bus that perhaps they had not caught before to a place that they had not been before. He did not need help getting on the bus, asking the bus driver questions, getting off the bus and making his way to his destination. Although it may have taken extra time, it did not require the assistance of another person.
·Weight should be put on Dr Hilton’s evidence.
·There is no clear documentation in the RBWH records that the Respondent was having significant other difficulties.
·There is no evidence of the Respondent reaching out for help or assistance for whatever reasons to overcome his difficulties.
·There is no information other than the Respondent’s self-report and what he told Dr Grant. The Applicant submitted that Dr Grant’s report may assist the Respondent moving forward, but does not relate back to the Relevant Period.
The Applicant contended that at the Relevant Period the Respondent did not have a continuing inability to work and that it was conceded that he did have an ability to undertake a training activity.

The Applicant contended that the decision under review should be set aside and a decision substituted that the Respondent did not satisfy section 95 or sections 94(1)(b) or 94(1)(c) of the Act and was not qualified for DSP in respect to his claim lodged on 18 April 2017.
Contentions of the Respondent
The Respondent’s Counsel contended that he should be assigned 20 impairment points under Table 12 of the Impairment Tables and had a continuing inability to work.
The Respondent’s Counsel contended that:
·The Respondent gave evidence about the difficulties he was having. He confirmed that while he made his statement in 2018, the problems outlined were also his problems in 2017.
·Dr Grant also confirmed in evidence that those problems that she observed were related to the problems back in 2017.
·The JCA report dated 23 August 2017 provided:[97]
[97] Exhibit 1, T Documents, T22, page 171, Job Capacity Assessment Report.
Client reported:
Has difficulty with reading. Client reported he would be unable to read a typed document sitting on a desk in front of him, he indicated would see blurred lines only. The Assessor observed the client to pick up a typed document, position it close to his eyes, he then indicated he was able to read.
·This is consistent with the evidence provided by the Respondent that in 2017 that the only way he could read a document was by putting it right up to his face.
·To suggest that there is no evidence whatsoever of any reporting of difficulties during the Relevant Period is simply not true. It is accepted that JCA reports have a limited timeframe in which to get information. The Assessor would have done her best to obtain information. The mere fact that the Respondent has now subsequently elaborated upon what he had difficulties with does not change the fact that it is an accurate account of what happened. When asked he remembers it clearly and there is contemporaneous reporting of it.
·Dr Al Tameemi confirmed that she was not treating the Respondent for the eye condition and that was why it is not in the records. The condition was being treated solely by Dr Harrison.
·Dr Harrison did treat the Respondent throughout the Relevant Period. He had treated the Respondent every six months since 2014. Dr Hilton confirmed how eminent Dr Harrison is and that an assessment of function would be better served by getting an opinion from Dr Harrison. In reference to the response to a Questionnaire provided by Dr Harrison dated 19 September 2018, it should be noted that notwithstanding his findings on visual acuity, he still found that the Respondent in July 2017:
owould have severe difficulties seeing things either distant or close, even when wearing glasses or contacts;
omay have needed to use vision aids;
owould have had severe difficulty performing many activities of daily living; and
owould have been unable to move independently in unfamiliar environments.
·Dr Harrison, as the ophthalmologist that treated the Respondent at the Relevant Period, clearly supported the Respondent’s reporting of lack of function during the Relevant Period.
·In reviewing Table 12 of the Impairment Tables, the 20 point descriptors need to be looked at in the context of the 30 point descriptors. The descriptor for 30 points they say:
There is an extreme functional impact on activities involving visual function.
(1) The person is not considered permanently blind and, due to extreme functional impact on vision, the person:
(a)Needs assistance to move around even in familiar environments; and
(b)Needs assistance to perform most day to day activities.
·A rating of 30 points does not require permanent blindness. It is a level less than that and necessarily involves someone to be with that person the whole time and in performing activities of daily living. The requirement is something less than that to meet the 20 point descriptors.
·The opinion of Dr Hilton should not be accepted as:
oDr Hilton assessed the Respondent as meeting the 10 point descriptors under Table 12. He accepted that he did not personally examine the Respondent and acknowledged that he was unable to clarify, discuss or elaborate on any of the issues with the Respondent. He was solely reliant on what Dr Tian said. The extent of difficulties that Dr Tian said in her report referred to the Respondent struggling to see a bus, magazine and paper. In terms of the activities of daily living, he could still dress, cook and look after himself without assistance. That was the only information Dr Hilton was relying upon in determining whether the Respondent met the 10 or 20 point descriptors. It was submitted that on that basis Dr Hilton’s evidence cannot be accepted.
oDr Hilton’s evidence also confirmed that Dr Harrison was in a much better position to assess the level of impairment.
oWhen asked about the level of impairment and level of function, “he kept going back to, well, that would not be commensurate to visual acuity levels that were displayed during the relevant time. He kept repeating that.”[98] However, he said this while also saying that consideration should be given to the fact that two people with the same level of vision loss can have different levels of independence. Assumptions should not be made based solely on the clinical level of blindness the person has.
[98] Transcript of Proceedings, page 97, lines 12-14.
oWhen specifically asked about what sort of visual acuity he would need to see in order to get a 20 point rating under Table 12 he said legally blind – 6/60. That is way too high a threshold to apply for a 20 point rating.
·Dr Grant provided a very comprehensive report confirming the difficulties of the Respondent during the Relevant Period and supports a finding of 20 impairment points.
·In relation to the 20 point descriptors set out in Table 12 of the Impairment Tables:
oThe Respondent did not wear glasses or contact lenses, because they were of no effect. Dr Harrison and Dr Grant support that the Respondent had difficulties seeing things at a distance or up close. The Respondent gave evidence that the only way he could see was if he looked at it right up to his face, and even then he took significant time doing it.
oDr Grant supported a need for the use of vision aids.
oIt was supported by doctors that the Respondent had severe difficulties performing many day to day activities.
oThe Respondent required assistance to use public transport. While it could be argued that asking for directions when unfamiliar with an area does not signify requiring assistance, the Respondent’s situation was different. He needed assistance and used the bus driver and passengers as assistance.
oIn relation to being unable to move around independently in unfamiliar environments, unable did not mean impossible. Unable meant requiring a disproportionate amount of effort to perform the activity. It did not mean impossible (relying on Comcare v Lilley [2013] FCAFC 121). The Respondent gave evidence that he avoided unfamiliar environments when he could, however when he could not he spent an extra two to three hours to wander around trying to find the place he needed to be. It was submitted that falls within the meaning of being unable to move around independently.
In relation to work capacity, the Respondent relies on the decision of Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Harris [2010] FCA 360 (Harris). The Respondent’s Counsel submitted that:
·The appropriate test is set out in paragraph 92:
Does the impairment of itself considered in isolation from other matters that may influence the person’s attitude to working (such as motivational matters and the like) have such an impact on the person’s capacity for work that it prevents him or her from doing at least 15 hours of work per week that exists anywhere in Australia for persons with such an impairment judged in a normal or open workplace in that part of the labour market relevant to the person’s skills and experience.
(emphasis added)
·Greenwood J is referring to in a normal open workplace which is a normal job for normal people that does not require the benevolent employer. It was submitted by the Applicant in their facts and contentions and they provide some Tribunal case law that benevolent or sympathetic employers that require accommodations in order to facilitate that employment should not be taken into account.
·Paragraphs 112-115 refer to part of the facts of the case, in particular paragraph 113 provides a discussion about the evidence. In Harris, there was evidence given by an orthopaedic surgeon about the ability of someone to work in sedentary employment. That was the extent of the evidence. The orthopaedic surgeon goes on and talks about the other limitations that would preclude a finding of working in such sedentary employment. Dr Winstanley said that if there was a suitable job, a suitable type of activity that existed or a job that was tailor-made to the person’s situation that did not involve bending, lifting or twisting-type activities, then he would be able to do the sedentary employment.
·His Honour made the point that evidence is required.
·In the context of the Respondent’s case, Counsel said:[99]
Now, the point that His Honour was making in this part of the judgment was you just can’t simply point to specific tasks and say, well, that job exists. You need evidence. To date, the extent of evidence about what specific job the respondent could perform during these two periods is some manual labour. Putting together some wheelbarrows I think was the extent of it. The respondent qualified that in confirming that in that job, the colleagues who were employed in a normal setting had to do both. They had to do both of those jobs. It is obvious from his evidence that after three months of teaching in doing this basic job, he was being taught to do something else. He said that was part of his job. That’s what he had to do, which he couldn’t do. On that basis, you can’t just isolate one specific work task and plonk that in front of someone and say, yes, they can work. That is the point of the decision in Harris.
[99] Transcript of Proceedings, page 99, lines 30-42.
The Respondent’s Counsel further submitted in relation to the Respondent’s inability to work that:
·The JCA report dated 23 August 2017 provided that the Respondent had a recommended baseline capacity work capacity of 15 to 22 hours per week, reflecting the likely ongoing restrictions.[100] The report stated that the reduced vision may impact the client’s role suitability, reliability and endurance.
·The JCA report said with continued medical management and support from the Disability Employment Services which includes doing a number of things. One of them is a referral to Vision Australia. Vision Australia refers to workplace assessment and modifications, including a consideration of equipment, work hours and work duties.
·These comments were repeated in the JCA report dated 16 February 2018.
·There is no evidence of that job existing, it is what they say the Respondent could do. If the Applicant’s position is that there is a job out there that the Respondent is capable of doing with modifications and an employee is willing to provide those modifications, there needs to be evidence of this. At this stage, there is no evidence of this.
·In her report and oral evidence, Dr Grant addressed that even with some support the Respondent is unable to work in anything. She said:[101]
… well, unable to work in the real world, if I can put it like that.
·In the Questionnaire completed by Dr Harrison where he provided that he doubts that the Respondent could have safely worked more than 15 hours a week with excessive support from other employees should be relied upon.
[100] Exhibit 1, T Documents, T22, page 174, Job Capacity Assessment Report.
[101] Transcript of Proceedings, page 100, line 35.
On balance, the Respondent’s Counsel contended that the Respondent should be assigned 20 impairment points under Table 12 of the Impairment Tables, has an inability to work within the two year period from the Relevant Period and that, albeit for different reasons, the decision subject to this Tribunal’s review ought to be affirmed.
CONSIDERATION
Did the Respondent’s vision impairment condition attract 20 points or more under Table 12 of the Impairment Tables – Section 94(1)(b) of the Act?
The Tribunal notes that the Respondent was very open in providing his oral evidence. It was clear that he feels embarrassment when discussing his visual impairment condition and subsequent need for assistance. The Respondent is private when it comes to his condition. At the Hearing, he expressed that this is due to his cultural background. In the Tribunal’s view, if it were possible, the Respondent would prefer to work rather than engage in the DSP process.
Both the Applicant and Respondent agree that the Respondent’s vision impairment condition was fully diagnosed, fully treated and fully stabilised at the Relevant Period and can therefore can be assigned a rating under Table 12 of the Impairment Tables.[102]
[102] Exhibit 3, Secretary’s Statement of Issues, Facts & Contentions, page 11, paragraph 58; Exhibit 4, Respondent’s Statement of Issues, Facts & Contentions, page 4, paragraph 22.
Based on the evidence before the Tribunal, I am satisfied that the Respondent’s vision impairment condition was fully diagnosed, fully treated and fully stabilised at the Relevant Period. As such, the functional impairment of the condition can be assessed under Table 12 of the Impairment Tables.
The Applicant contends that the Respondent’s vision impairment condition should be assigned 10 points under Table 12 of the Impairment Tables.[103]
[103] Exhibit 3, Secretary’s Statement of Issues, Facts & Contentions, pages 11-16, paragraphs 58-69.
The Respondent contends that his vision impairment condition should be assigned 20 points under Table 12 of the Impairment Tables.[104]
[104] Exhibit 4, Respondent’s Statement of Issues, Facts & Contention, pages 4-6, paragraphs 18-30.
Table 12 of the Impairment Tables relates to visual function. The descriptors that relate to moderate and severe functional impact on activities involving visual function are as follows:

10

There is a moderate functional impact on activities involving visual function.

(1)      The person:

(a)      has moderate difficulties seeing things at a distance or close up when wearing glasses or contact lenses if these are usually worn or the person has very limited vision to the sides when looking straight ahead or the person has other significant loss in their field of vision (e.g. patches where they can see nothing or very little); and

(b)      needs to use vision aids or assistive devices other than spectacles and contact lenses for some tasks; and

(c)      has difficulty performing some day to day activities involving vision (e.g. difficulty seeing the print letters, signs or route numbers on approaching buses or at train stations); and

(d)      has at least one of the following:

(i)       some difficulty seeing routine workplace, educational or training information (e.g. signs, safety information, or manuals) and may need to use alternative formats (e.g. large print), assistive devices or technology for vision in work, training or educational settings;

(ii)       moderate discomfort when performing day to day activities involving the eyes (e.g. frequent watering of the eyes, frequent difficulty opening the eyes, or moderate difficulty moving or coordinating the eyes, or unable to tolerate normal levels of light indoors or outdoors);

(iii)      only 1 eye or functional vision in only 1 eye and has mild problems with the vision in their only functioning eye; and

(2)      The person:

(a)      is able to function independently in familiar environments (that is, without regular assistance from other people); and

(b)      is able to travel independently using public transport when using any assistive devices that they have and usually use.

20

There is a severe functional impact on activities involving visual function.

(1)      The person:

(a)      has severe difficulties seeing things at a distance or close up when wearing glasses or contact lenses if these are usually worn; and

(b)      needs to use vision aids or assistive devices other than spectacles and contact lenses for many tasks; and

(c)      has severe difficulty performing many day to day activities involving vision (e.g. difficulty distinguishing between different types of food in tins or packets, seeing the level of fluid in a cup or reading aisle signs in the supermarket even when standing close to these); and

(d)      either:

(i)       is unable to see routine workplace, educational or training information (e.g. signs, safety information, or manuals) even when using any assistive devices or technology that they have; or

(ii)       needs assistance to use public or other means of transport to travel to work, educational or community facilities even when using any assistive devices that they have (e.g. a guide dog or cane); and

(e)      is unable to move around independently in unfamiliar environments.

The issue for the Tribunal is whether the Respondent’s vision impairment condition should be assigned 10 or 20 impairment points under Table 12 of the Impairment Tables.
There is a variance in view in relation to this point. The Applicant and Dr Hilton agree that during the Relevant Period the Respondent’s visual impairment condition caused a moderate functional impairment and should appropriately be assigned 10 impairment points under Table 12. On the other hand, the Respondent contends that the evidence before the Tribunal demonstrates that during the Relevant Period the functional impairment was severe and should appropriately be assigned 20 impairment points under Table 12. The Respondent relies upon his evidence and contends that the views of Dr Grant and Dr Harrison should be preferred.
As set out above in relation to the evidence given at the Hearing by the Respondent and his written statement dated 31 August 2018, a point of difficulty arose as to whether the information outlined in that statement was referrable to the Relevant Period rather than only to the date of the statement. Further, whether the Respondent could reliably recall the details of the functional impairment his condition was causing in the Relevant Period was raised, especially in the context that it is accepted that his condition has worsened since he made this claim for DSP.
In considering the evidence before the Tribunal as a whole, I am persuaded to accept the evidence of the Respondent that the functional impairments described in his written statement were also applicable at the date of claim. This is consistent with the evidence provided by the Respondent to the Job Capacity Assessors throughout the process and that provided to Dr Grant during her assessment. Further, the Respondent reasonably referred to having a clearer memory of events in his life that shocked him. I have no doubt that the deterioration of his vision and subsequent difficulties would be something that would be difficult to forget.
Although the Respondent openly said that he does not disclose the difficulties he experiences as a result of his vision impairment condition or directly seek assistance, this does not mean that he is not experiencing the difficulties he outlined or that he does not seek or need assistance.
In the provision of his evidence to the Tribunal Dr Hilton stated that while there can be a general expectation of a person’s abilities based on their visual acuity, this is subjective and each person’s experience may be different. Dr Hilton maintained that based on his expertise and experience he considered the Respondent’s functional impairment to be moderate.

Dr Hilton did, however, concede that as the Respondent’s treating ophthalmologist Dr Harrison would be in a better position to be able to make an assessment of his functional impairment. To that extent, the Respondent contended that the opinion provided by Dr Harrison dated 19 September 2018 in response to the Legal Aid Questionnaire[105] should be preferred. Dr Harrison’s responses are set out in paragraph 44 above and are supportive of the Respondent’s functional impairment meeting the 20 point descriptors of Table 12 at the Relevant Period. Given how regularly Dr Harrison reviewed the Respondent and Dr Hilton’s reference to his prominence, I place more weight on the view of Dr Harrison.
[105] Exhibit 12, Questionnaire completed by Dr John Harrison dated 19 September 2018.
Concern was raised in relation to the applicability of the report of Dr Grant dated 23 November 2018 and subsequent evidence relating to the Respondent’s functional impairment during the Relevant Period. Based on Dr Grant’s evidence set out above in relation to the methodology of how she undertakes her reports and assurance that she was referring to both the Respondent’s functional impairment at the time of assessment and during the Relevant Period, I accept the evidence of Dr Grant.
On balance, I am persuaded by the contentions of the Respondent and find that the functional impairment caused by the Respondent’s vision impairment condition at the Relevant Period was severe and met the 20 point descriptors as set out in Table 12 of the Impairment Tables.
Consequently, I find that the Respondent met the requirements of section 94(1)(b) of the Act at the Relevant Period.
As a result of the Respondent’s vision impairment condition, did he have a continuing inability work – Section 94(1)(c) of the Act?
I must now consider whether the Respondent had a continuing inability to work pursuant to section 94(1)(c) of the Act.
Section 94(2) of the Act sets out the requirements that must be met for a person to have a continuing inability to work for the purposes of section 94(1)(c) of the Act. It requires that a person must:
(a)if they do not have a severe impairment, have actively participated in a program of support; and
(b)be unable to work for at least 15 hours per week independently of a program of support within the next two years; and
(c)be unable to participate in a training activity during the next two years or 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 two years.
As the Respondent has been assigned 20 points under Table 12 of the Impairment Tables, he has a severe impairment[106] and is not required to have participated in a program of support.
[106] Section 94(3B) of the Act.
In relation to whether the Respondent is unable to work for at least 15 hours per week independently of a program of support due to his vision impairment condition within two years from the Relevant Period is a matter of conjecture. Dr Grant, Dr Harrison and the Respondent provided evidence in relation to the Respondent’s workplace accidents and errors due to his vision impairment. Based on the evidence before the Tribunal, I am persuaded by the Respondent’s contentions outlined above.
Whether or not the Respondent was able to participate in a training activity was not in contention. Although the evidence indicated that he could, such an activity would need to be undertaken in an extremely supported manner. I note that due to his vision impairment condition, the Respondent has severe difficulties finding his way around new places, reading and writing.
The remaining issue comes down to whether, within the two years following the Relevant Period, a training activity would be unlikely to enable the person to do any work independently of a program of support.
I accept the evidence of Dr Hilton and the contentions of the Applicant that generally people with a visual acuity of 6/18 and 6/18 may be engaged in the workforce. However, each case must be assessed on its facts.
The evidence of Dr Grant is that even though the Respondent could have taken part in a training activity, it would not have assisted him to work independently of a program of support within the two years following the Relevant Period. This was confirmed by Dr Harrison who indicated that he doubted that the Respondent could have worked safely for more than 15 hours a week without excessive support from other employees.
The evidence demonstrates that the Respondent’s vision impairment condition is deteriorating and there is no further treatment that will assist to improve the condition. This is evidenced by the visual acuity results and subsequent prognosis. Therefore, I am not persuaded that undertaking a training activity would enable the Respondent to undertake work independently from a program of support within two years from the Relevant Period.
Consequently, I find that the Respondent met the requirements of section 94(1)(c) of the Act at the Relevant Period.
CONCLUSION
I find that the Respondent was not legally blind at the date of his claim for DSP and did not meet the requirements of section 95 of the Act.
I find that the Respondent had impairments for the purposes of section 94(1)(a) of the Act.
I find that the Respondent’s left shoulder and right knee conditions were not fully diagnosed, fully treated or fully stabilised during the Relevant Period. Therefore, the conditions could not be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for these conditions.
I find that the Respondent’s vision impairment condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period. The condition could be considered permanent for the purposes of applying the Impairment Tables and can be assigned 20 impairment points on Table 12.
I find that the Respondent’s impairments attract 20 points under the Impairment Tables and meets the requirements of section 94(1)(b) of the Act.
I find that the Respondent had a continuing inability to work pursuant to section 94(1)(c) of the Act.
DECISION
I set aside the decision of the SSCSD dated 24 April 2018 and substitute a decision that the Respondent met the eligibility requirements of section 94(1) of the Act and was qualified for DSP at the date of his claim on 18 April 2017.

I certify that the preceding 121 (one hundred and twenty-one) paragraphs are a true copy of the reasons for the decision herein of

Member D Mitchell

...................................[SGD].....................................
Associate
Dated: 29 October 2019

Date of Hearing: 28 May 2019

Solicitors for the Applicant: Mills Oakley Lawyers

Counsel for the Respondent: Mr Phil Nolan

Solicitors for the Respondent: Legal Aid Queensland

Date of Hearing:	28 May 2019
Solicitors for the Applicant:	Mills Oakley Lawyers
Counsel for the Respondent:	Mr Phil Nolan
Solicitors for the Respondent:	Legal Aid Queensland