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

Battaia and Secretary, Department of Social Services (Social services second review) [2018] AATA 163 (7 February 2018)
Division:GENERAL DIVISION
File Number: 2017/2345
Re:Denis Battaia
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:7 February 2018
Place:Brisbane

The Tribunal affirms the decision under review.
.............................[Sgd]...........................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether medical conditions permanent – whether 20 points or more under the impairment tables during the relevant period – decision under review affirmed
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)
REASONS FOR DECISION
Member D K Grigg
7 February 2018
INTRODUCTION AND CLAIMS HISTORY

On 11 July 2016, Mr Battaia lodged a claim for Disability Support Pension (“DSP”) describing his medical conditions as follows:[1]
·blind in left eye
·damaged cornea in right eye
·three discs damaged in neck
·cracked tendons in right shoulder
·disc prolapse in lower back
·damaged right elbow
·depression
[1] Exhibit 1, T Documents, T 15, page 91, Mr Battaia’s Claim for DSP dated 26 June 2015.
Mr Battaia claims that his medical conditions affect his ability to work because he cannot see properly and is in chronic pain.[2] At the hearing, Mr Battaia confirmed that he was only relying on his spinal condition and vision loss for this application.[3]
[2] Exhibit 1, T Documents, T 15, page 92, Mr Battaia’s Claim for DSP dated 26 June 2015.
[3] No medical evidence in relation to the shoulder, elbow and depression conditions were provided by Mr Battaia.
Following a Job Capacity Assessment (“JCA”), the Department of Human Services (“Centrelink”) rejected Mr Battaia’s claim for DSP on the basis that he did not have impairments with a total impairment rating of 20 points or more.[4]
[4] Exhibit 1, T Documents, T 18, pages 106 – 107, Rejection of claim for DSP dated 13 August 2016.
Mr Battaia sought a review of Centrelink’s decision by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that
[5] Exhibit 1, T Documents, T 20, pages 109 – 114, Decision of ARO and notes dated 13 October 2016.
Mr Battaia’s medical conditions were either not permanent, as defined in the Social Security Act 1991 (Cth) (the “Act”), or did not attract an impairment rating of 20 points.[5]
On 2 December 2016, Mr Battaia lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal.[6] The SSCSD rejected
[6] Exhibit 1, T Documents, T 23, page 117, Letter from the AAT to Centrelink dated 2 December 2016.
[7] Exhibit 1, T Documents, T2, pages 3 – 8, SSCSD’s Decision and Reasons for Decision dated 16 March 2017.
Mr Battaia’s claim and affirmed the ARO’s decision on 16 March 2017.[7]
Mr Battaia has sought a review of the SSCSD’s decision by this Tribunal.[8]
[8] Exhibit 1, T Documents, T1, pages 1–2, Application for Review of Decision dated 13 April 2017.
ISSUES FOR DETERMINATION
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):
(a)Mr Battaia must have a physical, intellectual or psychiatric impairment;
(b)Mr Battaia’s impairment/s must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”);[9]
(c)Mr Battaia has a continuing inability to work.
[9] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Mr Battaia meets the Section 94 Requirements is the date the claim for DSP was lodged (in this instance, 11 July 2016), unless Mr Battaia becomes qualified within 13 weeks of lodging the claim, in which case his start day is the day he becomes qualified.[10] Therefore, to qualify for DSP Mr Battaia must have met the Section 94 Requirements between 11 July 2016 and 3 October 2016 (“Qualification Period”).
[10] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999
(Cth).
It is important to keep in mind that medical evidence concerning the functional impact of Mr Battaia’s impairments after the Qualification Period can be considered if it “casts light on” the functional impact of the impairments as at the Qualification Period.[11]
DID MR BATTAIA HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION DATE: SECTION 94(1)(A)?
[11] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; and on
appeal Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].
What is an Impairment?
The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[12]
Mr Battaia’s Medical Conditions
[12] Determination, s 3.
Cervical and Lumbar Spine
Dr Leibowitz conducted an x-ray of Mr Battaia’s lumbar spine and a CT scan of his cervical spine in October 2003 which indicated that:[13]
(a)there is mild L5 – S1 disc space narrowing with associated osteophytosis;
(b)facet joint degenerative changes are present at the C3 – 4 level on the right and C4 – 5 bilaterally, worse left;
(c)uncovertebral joint degenerative changes present at C5 – 6 level with an associated left paracentral disc protrusion;
(d)a mass effect on the left side of the cord by the uncovertebral joint hypertrophic change; and
(e)broad-based disc protrusion together with uncovertebral joint hypertrophic change present at the C6 – 7 level, possibly with the left for amenable stenosis.
[13] Exhibit 1, T Documents, T5, pages 49 – 50, X-Ray and CT scan report dated 23 October 2003.
Dr Leibowitz noted that the “degree of neural compromise would be best assessed with an MRI”.
In November 2003, a CT scan of Mr Battaia’s lumbar spine indicated a large left-sided L4-5 disc prolapse that travels in a caudate direction and is likely to be compressing the left L4 nerve root.[14]
[14] Exhibit 1, T Documents, T6, page 51, CT scan report dated 24 November 2003.
In October 2005, Mr Battaia was seen by Dr Kyaw San, Orthopaedic Surgeon, who reported that:[15]
[15] Exhibit 1, T Documents, T7, page 52, Report of Dr San dated 5 October 2005.
(a)Mr Battaia had had a history of pain in the neck and lower back for more than 10 years which had started gradually after a fall from scaffolding;
(b)Mr Battaia’s left-sided neck pain is associated with numbness in the ulnar portion of the left hand;
(c)Mr Battaia has possible C5 – 6 nerve root compression;
(d)Mr Battaia’s pain is gradually increasing;
(e)Mr Battaia finds it difficult to sleep at night sometimes;
(f)Mr Battaia’s lower back pain is associated with dull aching pain radiating down the left thigh and the left leg especially after sitting for long periods while driving his truck long distances;
(g)clinically, cervical and lumbar spine show no deformity, no limitation of movement, no tenderness with a good range of motion;
(h)there were no power deficiency or abnormal reflexes;
(i)other than the subjective impaired sensations there was no neurological deficit;
(j)according to old notes, an old MRI and CT scan revealed Mr Battaia has been suffering from cervical spondylosis with osteophyte compressing on the C5/6 nerve root on the left side and lumbar disc prolapse with L4 nerve root compression on the left side;
(k)he had arranged for an MRI scan to be undertaken to ascertain the extent of the neurological involvement; and
(l)he recommended Mr Battaia take care of his back, back care, physiotherapy, gentle exercise and medications whenever necessary.
Following a fall, Mr Battaia had a cervical spine x-ray undertaken in March 2012 which found:[16]
(a)advanced spondylotic changes resulting in partial ankylosis of cerebral cervical elements but no evidence of an acute bone or joint injury;
(b)large bridging osteophytes anteriorly, some of which have become detached, but no evidence to suggest that any of these changes are acute;
(c)marked narrowing of the C6/7 and to a lesser extent the C5/6 disc spaces;
(d)foraminal encroachment bilaterally at C3/4 and C4/5 and C6/7; and
(e)the left first rib is hypoplastic within anomalous articulation with the secondary which is a developmental anomaly.
[16] Exhibit 1, T Documents, T 10, page 60, X-ray report dated 16 March 2012.
In April 2015, Mr Battaia attended Mater Hospital in Mackay with back pain. The progress notes from the hospital, sent to Mr Battaia’s General Practitioner at that time, Dr Knopova, indicate that Mr Battaia was prescribed analgesics, noting that analgesics had resolved his sciatica in the past, and it was suggested that he consider a referral to a physiotherapist. The Hospital also recorded that Mr Battaia was “not keen on imaging”.[17]
[17] Exhibit 1, T Documents, T 11, page 61, Progress Notes, Mater Hospital Mackay dated 15 April 2015.
In November 2016, Mr Battaia had a further x-ray and CT scan of his cervical spine which indicated “pronounced” and “severe…degenerative changes at several levels”.[18]
[18] Exhibit 1, T Documents, T 21, page 115, X-ray and CT scan report dated 21 November 2016.
Dr Manda Brits, General Practitioner, reported in November 2016 that:[19]
(a)the CT scan confirms that several of the nerves in Mr Battaia’s neck were being pressed by severe degeneration and calcified bony protrusions between the small vertical joints;
(b)Mr Battaia’s neck movements are extremely restricted – about 30% of what is expected for his age, and are painful and jerky;
(c)Mr Battaia has constant pain in the neck, top of the shoulders and base of skull;
(d)Mr Battaia also has numbness and a tingling feeling in his left hand and fingers;
(e)Mr Battaia is currently treating this condition with long-acting morphine tablets; and
(f)Mr Battaia is totally unable to do any manual labour due to his neck pain and aggravation by manual tasks.
[19] Exhibit 1, T Documents, T 22, page 116, Report of Dr Brits dated 30 November 2016.
Dr Brits reported in June 2017 that:[20]
(a)Mr Battaia had severe neck problems due to falling from a scaffold 20 years ago;
(b)if Mr Battaia turns his head more than 40 degrees the neck muscles go into a spasm with severe pain that only responds to morphine type of painkillers; and
(c)his neck injury is stable and stationary, and no further treatment is available.
[20] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions dated 14 December 2017, Attachment A,
Report of Dr Brits dated 26 June 2017.
Vision
In March 2014, Mr Battaia presented at the clinic of Dr Andrew Apel, Eye Physician and Surgeon, regarding being severely bothered by glare in his good right eye due to corneal dystrophy and a mild cataract. Dr Apel discussed the risks of surgery to the right eye and confirmed that, because Mr Battaia was binocular at that stage, surgery was not the best idea as vision rehabilitation could take 12 to 18 months and it could not be guaranteed that it would solve the primary complaint of glare.[21]
[21] Exhibit 1, T Documents, T 19, page 108, Report of Dr Apel dated 2 September 2016.
In June 2015, Mr Battaia was seen by Dr Chris Hornsby, Ophthalmic Surgeon and Physician. Dr Hornsby reported that Mr Battaia:[22]
(a)has a thickened cornea on the right side with a central scar and a nuclear sclerotic cataract grade 2 on the right side;
(b)was not able to drive with his current vision; and
(c)was considering whether to proceed with recommended surgery.
[22] Exhibit 1, T Documents, T 12, page 62, Report of Dr Hornsby dated 1 July 2015.
In July 2016, Dr Hornsby reported that:[23]
(a)Mr Battaia was blind in his left eye;
(b)Mr Battaia has a corneal dystrophy and a cataract in his right eye which has reduced his visual acuity to 6/18;
(c)while Mr Battaia did not strictly conform to the criteria for legal blindness he is effectively so;
(d)Mr Battaia is unable to legally drive and is not able to work and his activities of daily living are significantly impaired;
(e)Mr Battaia requires his partner to be with him when he is anywhere out of the house;
(f)there is a possibility that his vision on the right side could be improved but it would require a corneal graft and cataract surgery;
(g)given that his right eye is his only eye, it is understandable that Mr Battaia is hesitant to have surgery; and
(h)in his opinion, Mr Battaia should qualify for DSP in regard to blindness in his current state.
[23] Exhibit 1, T Documents, T 13, page 63, Report of Dr Hornsby dated 26 July 2016.
Dr Manda Brits reported in June 2017 that:[24]
(a)Mr Battaia had extremely bad eyesight and was legally blind; and
(b)his vision loss was stable and stationary, and no further treatment was available.
[24] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions dated 14 December 2017, Attachment A,
Report of Dr Brits dated 26 June 2017.
Conclusion on Impairments
The Secretary accepts that Mr Battaia suffered from impairments for the purposes of section 94(1)(a) at the Qualification Date.[25]
[25] See Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions dated 14 December 2017, para 22.
Given the medical evidence, the Tribunal finds that Mr Battaia suffered from a Spinal Impairment and Vision Impairment for the purposes of section 94(1)(a) at the Qualification Date.
DO MR BATTAIA’S IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[26] They are function based[27] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[28]
[26] Determination, s 4(2) and 5(2)(a).
[27] Determination, s 5(2)(b) and (c).
[28] Determination, s 5(2)(d).
An Impairment Rating can only be assigned to Mr Battaia’s impairments if:[29]
(a)Mr Battaia’s conditions causing the impairments are permanent; and
(b)the impairments that result from the conditions are more likely than not, in light of available evidence, to persist for more than 2 years.
[29] Determination, see s 6(3).
Mr Battaia’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[30]
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[30] Determination, see s 6(4).
In determining whether a condition has been “fully diagnosed” by an appropriately qualified medical practitioner and whether it has been “fully treated”[31], the following must be considered:[32]
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
[31] For the purposes of ss 6(4)(a) and (b) of the Determination.
[32] Determination, see s 6(5).
A condition is “fully stabilised”[33] if:[34]
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment;[35] or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[33] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[34] Determination, see s 6(6).
[35] For reasonable treatment see s 6(7) of the Determination.
Once it has been established that the applicant for DSP has a permanent impairment, it can then be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an Impairment Rating using the Impairment Tables can be assigned.
Before applying the Tables, the Tribunal must first consider Mr Battaia’s medical history, in relation to the conditions causing the Impairments.[36]
SPINAL IMPAIRMENT
[36] Determination, see s 6(2).
Is Mr Battaia’s Spinal Impairment permanent and likely to persist for at least 2 years?
The Secretary accepts that Mr Battaia’s Spinal Impairment was fully diagnosed.[37]
[37] Exhibit 2, Secretary’s Statement of issues, Facts and Contentions dated 14 December 2017, para 34.
The Tribunal finds that the medical evidence indicates that, during the Qualification Period, Mr Battaia had been diagnosed with lumbar disc prolapse with L4 nerve root compression on the left side of the lumbar spine and severe degenerative changes at several levels of his cervical spine.
The issue becomes whether these conditions were fully treated and fully stabilised.
The Secretary contends that the Spinal Impairments were not fully treated and stabilised during the Qualification Period because the medical evidence indicated that further investigation was required by way of a MRI in order to determine whether there were neurological deficits and that this was recommended on two occasions by both Dr Leibowitz and Dr San.[38] The Tribunal finds that this does not concern treatment, but rather, whether there were also neurological impairments. As there is no MRI evidence to consider, whether there are neurological deficits is not relevant to this application.
[38] Exhibit 2, Secretary’s Statement of issues, Facts and Contentions dated 14 December 2017, para 34.
The evidence indicates that the recommended treatment has been physiotherapy and analgesics. The evidence also indicates that, during the Qualification Period, Mr Battaia was taking the analgesics recommended by his general practitioner at that time, Dr Knopova. There appears to have been no physiotherapy referral made. It is not clear that, at least in relation to the Cervical Spine Impairment, that would have resulted in a significant improvement in Mr Battaia’s ability to function.
Mr Battaia told the Tribunal that the painkillers being prescribed by Dr Knopova, Panadeine Forte, were not strong enough and that she would not agree to provide him with anything stronger. Mr Battaia says he began seeing Dr Brits instead who, in November 2016, prescribed long-acting morphine tablets. This is confirmed by Dr Brits.[39]
[39] Exhibit 1, T Documents, T 22, page 116, Report of Dr Brits dated 30 November 2016.

At the hearing, Ms Forsyth, for the Secretary submitted that, because Mr Battaia did not start seeing Dr Brits and commencing on strong pain relief medication that he says works better until after the Qualification Period, it cannot be said that he was fully treated during the Qualification Period. The Tribunal considers that the fact that Mr Battaia changed his medication after the Qualification Period does not mean he was not fully treated because during the Qualification Period he was:
(a)following the recommendations of his then treating doctor; and
(b)there is no suggestion in the evidence that, if he had been taking a stronger pain killer, such as morphine, during the Qualification Period, it would result in a significant functional improvement (The Tribunal notes here that, in fact, the evidence indicates that Mr Battaia’s ability to function has worsened since November 2016).
The Tribunal considers that the Cervical Spine Impairment is permanent for the purposes of the Act and an Impairment rating can be assigned.
Using the Impairment Tables
The level of impact of Mr Battaia’s Impairment has to be assessed against the descriptors[40] (which describe the level of functional impact resulting from a permanent condition) contained within the relevant Tables in order to assign an impairment rating (the number in the column in a Table headed “Points” corresponding to a descriptor).[41]
[40] Determination, see ss 3 and 5(3).
[41] Determination, see ss 3 and 5(3).
Section 6 of the Determination sets out the rules governing the determination of impairment.
The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.[42]
[42] Determination, see s 6(1).
The Tribunal is obliged by the Determination to take the following information into account in applying the Tables:[43]
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
[43] Determination, see s 7.
The Tribunal must not take into account the following information in applying the Tables:[44]
(a)symptoms reported by Mr Battaia in relation to his condition where there is no corroborating evidence; and
(b)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Mr Battaia’s local community.
[44] Determination, see s 8.
Which Tables are appropriate are determined by:[45]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[45] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[46]
[46] Determination, see s 10(3).
If an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[47]
[47] Determination, see s 11(1).
The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[48]
[48] Determination, see s 11(3).
Where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.[49]
[49] Determination, see s 11(5).
Relevant Impairment Table and Impairment Rating
Table 4 of the Determination, which deals with spinal function, is the relevant Table.
The Introduction to Table 4 of the Determination provides:
·Table 4 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purpose of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions commonly associated with spinal function impairment (e.g. spinal cord injury, spinal stenosis, cervical spondylosis, lumbar radiculopathy, herniated or ruptured disc, spinal cord tumours, arthritis or osteoporosis involving the spine);
oa report from a physiotherapist or other rehabilitation practitioner confirming loss of range of movement in the spine or other effects of spinal disease or injury.
·In using Table 4, descriptors are to be met only from spinal conditions. Restrictions on overhead tasks resulting from shoulder conditions should be rated under Table 2.
To obtain a 5-point rating, the corroborating evidence would need to show that

Mr Battaia has some difficulty in:
(a)activities over head height (e.g. activities requiring Mr Battaia to look upwards); or
(b)bending to knee level and straightening up again without difficulty; or
(c)turning his trunk or moving his head (e.g. to look to the sides or upwards).
To obtain a 10-point rating, the corroborating evidence would need to show that

Mr Battaia is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a)he is unable to sustain overhead activities (e.g. accessing items over head height); or
(b)he has difficulty moving his head to look in all directions (e.g. turning his head to look over his shoulder); or
(c)he is unable to bend forward to pick up a light object placed at knee height; or
(d)he needs assistance to get up out of a wheelchair (if not independently mobile in a wheelchair).
To obtain a 20-point rating, the corroborating evidence would need to show that

Mr Battaia is unable to:
(a)perform any overhead activities; or
(b)turn his head, or bend his neck, without moving his trunk; or
(c)bend forward to pick up a light object from a desk or table; or
(d)remain seated for at least 10 minutes.
Evidence of impact on function and Impairment Rating
Mr Battaia contends that his Spinal Impairment is having a moderate impact on his ability to function and warrants a 10-point rating under Table 4. The Secretary submits that, in the event the Tribunal found the Spinal Impairment to be permanent, an appropriate Impairment Rating under Table 4 was 10-points.
The evidence of Dr Brits, in a report prepared only a few weeks after the end of the Qualification Period, was that Mr Battaia’s neck movements were restricted to about 30% of someone his age and were painful and jerky.
Mr Battaia told the Tribunal that he had difficulty turning his head and that while he looks after himself, it would be very difficult without the morphine because of the degree of pain.
There is no other corroborating evidence in relation to the Spinal Impairment. As there is no evidence that, during the Qualification Period, Mr Battaia was unable to perform any overhead activities, or turn his head, or bend his neck, without moving his trunk, or bend forward to pick up a light object from a desk or table or remain seated for at least 10 minutes, a 20-point rating is inappropriate. The Tribunal finds that Mr Battaia’s Spinal Impairment warrants a 10-point Impairment rating.
The Spinal Impairment is clearly deteriorating. The Tribunal would normally suggest that Mr Battaia consider lodging a new claim for DSP, however, Ms Forsyth informed the Tribunal that Mr Battaia has already done so and has been receiving the DSP since July 2017.
VISION IMPAIRMENT
Is Mr Battaia’s Vision Impairment permanent and likely to persist for at least 2 years?
The medical evidence demonstrates that Mr Battaia’s Vision Impairment was permanent for the purpose of the Act during the Qualification Period. This is accepted by the Secretary.[50]
[50] Exhibit 2, Secretary’s Statement of issues, Facts and Contentions dated 14 December 2017, para 40.
Therefore, an Impairment Rating can be assigned.
Relevant Impairment Table and Impairment Rating
Table 12 of the Determination, which deals with visual function, is the relevant Table.
The Introduction to Table 12 of the Determination provides:
·Table 12 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving visual function.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner with supporting evidence from an ophthalmologist.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist (e.g. ophthalmologist, ophthalmic surgeon) confirming diagnosis of conditions associated with vision impairment (e.g. diabetic retinopathy, glaucoma, retinitis pigmentosa, macular degeneration, cataracts, congenital blindness);
oresults of vision assessments (e.g. from an optometrist).
·Table 12 should be applied with the person using any visual aids the person usually uses (e.g. spectacles or contact lenses).
·Where severe or extreme loss of visual function is evident or suspected, it is to be recommended that assessment by a qualified ophthalmologist occur to determine if the person meets the criteria for permanent blindness.
To obtain a 10-point rating, the corroborating evidence would need to show that

Mr Battaia:
(1)
(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)
(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.
To obtain a 20-point, rating the corroborating evidence would need to show that

Mr Battaia:
(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.
Evidence of impact on function
In July 2016, Dr Hornsby reported that Mr Battaia:[51]
(a)was blind in his left eye;
(b)has a corneal dystrophy and a cataract in his right eye which has reduced his visual acuity to 6/18 ;
(c)did not strictly conform to the criteria for legal blindness but he was effectively so;
(d)is unable to legally drive and is not able to work and his activities of daily living are significantly impaired; and
(e)requires his partner to be with him when he is anywhere out of the house.
[51] Exhibit 1, T Documents, T 13, page 63, Report of Dr Hornsby dated 26 July 2016.
The JCA reported in August 2016 that Mr Battaia:[52]
(a)said he had moderate vision difficulties;
(b)is unable to drive;
(c)uses vision aids for reading;
(d)has difficulty negotiating stairs but no difficulty negotiating shopping aisles;
(e)functions independently in familiar environments such as at home and his local shopping centre; and
(f)can use public transport if necessary.
[52] Exhibit 1, T Documents, T 17, pages 100-105, JCA report dated 11 August 2016.
The JCA concluded that an appropriate Impairment Rating under Table 12 for Mr Battaia Vision Impairment was 10 points.[53] A 10-point Impairment Rating is also what is contended by the Secretary.[54]
[53] Exhibit 1, T Documents, T 17, page 102, JCA report dated 11 August 2016.
[54] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions dated 14 December 2017, para 40.
Mr Battaia told the Tribunal that:
(a)he “can see” but it is hard to distinguish between levels and he cannot see things on the ground;
(b)he can see straight ahead poorly but not peripherally;
(c)he cannot read fine print, and some very fine print he cannot read even when using a magnifying glass;
(d)he can walk to the bus stop, but he does not use public transport as there is limited availability where he lives and he could not use public transport because he cannot read signs;
(e)he lives independently but has difficulty doing things at home and has a girlfriend who comes by to assist him and take him to buy groceries 4-5 times per week;
(f)he cannot read signs, so he cannot walk anywhere safely;
(g)he was able to fill out the DSP claim form and review application with help from someone who indicated where he needed to write his answers.
(h)things have deteriorated since the Qualification Period;
The evidence is very difficult to interpret when considering it against the descriptors in Table 12. The Ophthalmology Specialist considered that Mr Battaia was essentially blind and that his activities of daily living were significantly impaired. Yet, throughout the Qualification Period, Mr Battaia was living alone and essentially caring for himself, although with regular help from his friend.
The Tribunal considers that the evidence indicates a rating of between 10 and 20 points under Table 12. The Determination provides that if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[55] Therefore, the Tribunal assigns a 10 point Impairment Rating under Table 12.
[55] Determination, see s 11(1).
As referred to earlier, the Tribunal would normally suggest that Mr Battaia consider lodging a new claim for DSP, however, Ms Forsyth informed the Tribunal that Mr Battaia has already done so and has been receiving the DSP since July 2017
WERE MR BATTAIA’S IMPAIRMENTS OF 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES: S 94(1)(B)?
To qualify for DSP, a minimum of 20 points is required pursuant to section 94(1)(b).
The Tribunal has found that the total Impairment Rating for Mr Battaia’s permanent impairments was 20 points, therefore he satisfies section 94(1)(b) of the Act.
DID MR BATTAIA HAVE A CONTINUING INABILITY TO WORK? (SECTION 94(1)(C))
Mr Battaia’s permanent impairments attract an impairment rating of more than 20 points under the Impairment Tables in the Qualification Period and, therefore, it is necessary to consider whether he had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of s 94(1)(c) at that time.
Section 94(2)(aa) sets out when a person has a continuing inability to work because of an impairment. It provides:
(1)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support--the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases--the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases--either:
(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking a training activity--such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Note: For work see subsection (5).
(2)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a)the availability to the person of a training activity; or
(b)the availability to the person of work in the person's locally accessible labour market.
(3C) A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
The Tribunal did not find that Mr Battaia’s Impairments attracted 20 points under one single Impairment Table (i.e. they were not “severe impairments” as defined in s 94(3B)), therefore, he is under an obligation to have completed a POS.
The requirements for a program of support, as referred to in s 94(3C) are set out in the Social Security (Active Participation for Disability Support Pension) Determination 2014 (“POS Determination”). Section 7 of the POS Determination sets out the requirements for active participation and provides, relevantly in s 7(2), that a person will have actively participated in a program of support if they have participated in it for at least 18 months during the relevant period. Any periods of time during which a person has not participated in a program of support is not taken into account.[56]
[56] POS Determination, see s 8(1).

The relevant period in this case is the 36 months prior to the date of the DSP Claim. That is, Mr Battaia must have actively participated in a POS for at least 18 months prior to 11 July 2016. A POS is an obligatory legislative requirement.
Centrelink records confirm that Mr Battaia has not participated in a POS.[57]
[57] Exhibit 1, T Documents, T 27, pages 136 - 137, Program of Support Summary.
.
As a result, the Tribunal finds that during the Qualification Period Mr Battaia did not satisfy the requirements in section 94(2) of the Act and therefore, did not fulfil the requirement in section 94(1)(c) of the Act.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 83 (eighty - three) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

..............................[Sgd]..........................................
Associate
Dated: 7 February 2018

Date of hearing: 30 January 2018

Applicant: By phone

Advocate for the Respondent: Jasmine Forsyth

Solicitors for the Respondent: Department of Human Services

[2018] AATA 163

7 February 2018

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Date of hearing:	30 January 2018
Applicant:	By phone
Advocate for the Respondent:	Jasmine Forsyth
Solicitors for the Respondent:	Department of Human Services