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

Le and Secretary, Department of Social Services (Social services second review) [2019] AATA 4 (7 January 2019)
Division:GENERAL DIVISION
File Number: 2018/4511
Re:Minh Van Le
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:7 January 2019
Place:Brisbane

The Tribunal affirms the decision under review.
.........................[SGD]...............................................
Deputy President J Sosso
CATCHWORDS
SOCIAL SECURITY – disability support pension – Impairment Tables – where Applicant has several conditions – whether conditions are fully diagnosed, treated and stabilised – whether conditions meet requirements for 20 points under the Impairment Tables – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Security [2015] FCA 1123; 68 AAR 1
Harris v Secretary, Department of Employment and Workplace Relations (2007)158 FCR 252
Shi v Migration Agents Registration Authority
(2008) 235 CLR 286

SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Deputy President J Sosso
7 January 2019
INTRODUCTION

Mr Minh Van Le (the Applicant) seeks a review of a decision of the Social Services and Child Support Division of this Tribunal (AAT 1) of 13 July 2018, which affirmed the Department of Human Services (the Department) decision to reject his application for the disability support pension (DSP) which was lodged on 7 November 2017.
The Applicant was born in 1959 and at the date of the Hearing was 59 years of age. He was born in Vietnam and arrived in Australia in 1981 – Exhibit 1 T39 pp. 170, 176. Whilst fluent in the Vietnamese language, and having lived in Australia for 37 years, his English language proficiency was basic. This presented some difficulties as a Vietnamese interpreter was required at the Hearing, and despite the assistance of the interpreter it was difficult at times to ensure that the Tribunal was receiving the information the Applicant was trying to impart and that he understood the questions that were posed and the conduct of the proceedings. Despite these issues, I was satisfied that the Applicant was given the opportunity, assistance and latitude to present his case and to understand the proceedings.
The Applicant listed in his claim the following disabilities, illnesses or injuries that he had suffered – Exhibit 1 T39 p. 195:
·Left eye lost all central vision blind;
·Severe pain left knee;
·Right elbow both left and right knee pain;
·Both feet pain;
·Right lumbar spine pain;
·Diabetes; and
·Headaches.
In a medical certificate dated 1 November 2017, Dr Van Chi Truong opined that the Applicant suffered from the following conditions – Exhibit 1 T37 p. 167:
·Osteoarthritis in the lumbar spine, knees and feet;
·Left elbow pain;
·Tendinopathy;
·Blind in left eye; and
·Diabetes.
The Secretary, Department of Social Services (the Respondent) accepts, on the evidence presented, that the Applicant suffers a physical impairment, and thus satisfies s 94(1)(a) of the Social Security Act 1991 (the Act) – Secretary’s Statement of Issues, Facts and Contentions (SSIFC) para 38.
On 5 March 2018, the Department rejected the Applicant’s claim – Exhibit 1 T45 pp. 215 – 216. At the Applicant’s request, this decision was reviewed by an Authorised Review Officer (ARO) – Exhibit 1 T46 p. 217.
The ARO found that the Applicant’s conditions of osteoarthritis, blindness in the left eye and diabetes were not permanent as they had not been fully diagnosed, treated and stabilised. Accordingly, the ARO did not assign the Applicant any impairment points – Exhibit 1 T47 pp. 218 – 221. The following reasons were given – Exhibit 1 T47 p. 220:
“The Disability Support Medical Assessment recommendation was your medical conditions were not fully diagnosed, treated and stabilised.
A Medical Certificate dated the 1 November 2017 notes you are blind in the left eye/diabetes. A letter from Mr Greg Bowyer notes you have lost all central vision in your left eye and you have extensive scarring at the macula and temporal fundus. A report from Mr Nguyen notes you have poor vision in the left eye, your left eye was visually blind and you have mild posterior-sub-capsular cataracts.
I have therefore decided that your left eye blindness/diabetes cannot be considered a permanent condition as you have not provided corroborating evidence from an ophthalmologist to confirm your blindness or a standalone diagnosis of diabetes to consider you have been fully diagnosed, treated and stabilised.
The medical report from Dr Cunningham notes left knee osteoarthritis and recommended further assessments. A letter from Dr Mark Shaw notes that you have mild osteoarthritic changes to your left knee and your fall on 3 July 2013 caused an aggravation of a pre-existing condition.
A letter from Dr Gamboa notes that you had a left sided knee arthroscope and debridement that was straight forward. Dr Gamboa notes that you have been placed on an accelerated rehabilitation program, with a post-operative review to occur.
The recent medical certificates notes you have osteoarthritis in the lumbar spine, knees, feet and left elbow with associated radiculopathy. The report notes you experience pain and stiffness and your prognosis is uncertain,
I have therefore decided that your osteoarthritis cannot be considered a permanent condition and you have not been fully diagnosed, treated and stabilised. Your medical reports are more than 2 years old and do not indicate that you have engaged in or completed all reasonable treatment and your prognosis is uncertain.
In summary, taking into account your medical information, your total impairment rating is 0 points. As you do not have an impairment rating of 20 points or more, you do not qualify for Disability Support Pension. Your request for review has been unsuccessful.”
The Applicant subsequently requested a review by AAT 1 – Exhibit 1 T49 p. 224.
On 17 May 2018, a Hearing was convened, but the Applicant requested that the decision be deferred to allow him time to provide further medical evidence to AAT 1. The request was granted. After receiving and considering the additional medical evidence, Member Stafford, who constituted the Tribunal, affirmed the decision of the Department – Exhibit

1 T2 pp. 2 – 7.
Member Stafford accepted that the Applicant has no functional vision in his left eye, with evidence of left macular scarring. Further, it was accepted that the Applicant has mild refractive error in his right eye, which requires the use of spectacles. The condition was accepted as being permanent. It was noted that the Applicant was able to drive a car and read print. Member Stafford assigned the Applicant five points under Table 12 - Visual Function – Exhibit 1 T2 pp. 5 – 6.
Member Stafford found that there was insufficient medical evidence regarding previous and current treatments of the Applicant’s arthritis of the lumbar spine, right knee, feet and left elbow, and a lack of specificity in relation to functional loss, to allow the assignment of any points – Exhibit 1 T2 p. 7.
With respect to the arthritis of the left knee, Member Stafford noted that the Applicant had been recommended for a total knee replacement, and that, accordingly, his condition was not fully treated and stabilised at the time of the claim – Exhibit 1 T2 p. 7.
Finally, Member Stafford found that there was insufficient medical evidence of the degree of functional loss caused by the Applicant’s diabetes to assign the condition any impairment points – Exhibit 1 T2 p. 7.
On 9 August 2018, the Applicant applied to the Tribunal for a review of the decision of Member Stafford – Exhibit 1 T1 p.1.
A Hearing was convened in Brisbane on 6 December 2018. The Applicant was self-represented but was assisted by a Vietnamese translator. The Respondent was represented by Mr Andrew Summers and Ms Jasmine Forsyth.
LEGAL PRINCIPLES
To qualify for a DSP a person must satisfy the criteria contained in section 94 of the Social Security Act 1991 (the Act). So far as is relevant, they are:
(a)the person has a physical, intellectual or psychiatric impairment;
(b)the person’s impairments is of 20 points or more under the Impairment Tables; and
(c)the person has a continuing inability to work.
The Impairment Tables are located in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) which is made pursuant to section 26 of the Act and came into force on 1 January 2012.
Clause 5(1) of the Determination provides that in applying the Tables, regard must be had to the principles set out in Clause 5(2) and (3). Importantly, Clause 5(2) explains that the Tables are function based rather than diagnosis based (Cl 5(2)(b) and describe functional activities, abilities, symptoms and limitations (Cl 5(2)(c)). Consequently, the Tables are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions (Cl 5(2)(d)).
The impairment of a person is assessed on the basis of what a person can or could do, and not on what the person chooses to do or what others do for them – Cl 6(1).
An impairment rating can only be assigned to an impairment if the condition causing the impairment is permanent and the resulting impairment is likely to persist for more than two years – Cl 6(3).
To be a permanent condition it must be:
(a)fully diagnosed by a medical practitioner;
(b)fully treated;
(c)fully stabilised; and
(d)more likely than not, to persist for more than two years (Cl 6(4)).
In determining whether a condition has been fully diagnosed and treated the Tribunal is required to consider whether there is corroborating evidence of the condition, what treatment or rehabilitation has occurred and whether treatment is continuing or planned for the next two years – Cl 6(5).
A condition is fully stabilised if one of two circumstances is satisfied. First, the person has undertaken reasonable treatment and further reasonable treatment is unlikely to result in significant functional improvement enabling the person to work in the next two years. Second, where a person has not undertaken reasonable treatment, but significant improvement of the above type is not expected, even if reasonable treatment was undertaken, or there is medical or compelling reason for not undertaking such treatment – Cl 6(6).
A key requirement for consideration in this matter is to be found in Schedule 2, Part

2 Clause 4 of the Social Security (Administration) Act 1999. This provision provides that a DSP claim must be assessed on the Applicant’s medical conditions within 13 weeks from the date the claim is made.
This requirement was explained by the Tribunal in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 (at [34]) as follows:
“In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all of the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly preferred by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.”
CONSIDERATION
Introduction
The task of the Tribunal is to assess the Applicant’s claim for the DSP on his medical condition at the date he made his claim or within 13 weeks thereafter (the qualification period). In this matter the qualification period is 7 November 2017 to 7 February 2018: Social Security (Administration) Act 1999 Schedule 2 Cl 4. Any subsequent changes to the Applicant’s health after the expiration of the qualification period is “irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time” – Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 at 253 per Gyles J.
Issues
It is not contested that the issues to be determined are:
(a)Does the Applicant have one or more permanent medical conditions;
(b)Whether those conditions have been fully diagnosed, treated and stabilised;
(c)Whether an impairment rating of at least 20 impairment points can be assigned; and
(d)If the requisite number of points can be assigned, whether the Applicant has a continuing inability to work.
Does the Applicant have an impairment?
The Respondent accepts (SSIFC para 38) that the Applicant has identified physical impairments that satisfy the requirements of s 94(1)(a) of the Act.
Visual function
It is not disputed that the Applicant lost all central vision in his left eye from retinal damage which occurred in circa 1995 – Exhibit 1 T10 p. 81, report of Sophie Formby, Optometrist. Ms Formby opined in her report, which is dated 13 November 1998, that the Applicant’s “right eye appeared to be healthy, although he would benefit from reading spectacles now.”
With respect to the Applicant’s left eye, Ms Formby made the following observations – Exhibit 1 T10 p. 81:
“However, there is a large dark pigmented scar covering the whole posterior pole of the left eye. Once scarring has occurred to this extent, no vision will be left. Unfortunately, there is no treatment available to restore the retina at this time.”
Ms Formby also observed that the Applicant had “a perfect full field in his right eye”.
In a subsequent report dated 27 November 1998, Ms Formby wrote to the Applicant’s then treating GP, Dr Ha, and enclosed photographs of both eyes. Ms Formby made the following comments about the Applicant’s right eye – Exhibit 1 T11 p. 86:
“At present the right eye appears to be normal. However, I have advised Minh that he should have the right eye checked regularly (at least annually) for any signs of disease changes. The scars would most likely be from a detachment or large haemorrhages which can leave large scarring after they reabsorb.”
Consequently, as at November 1998, the Applicant was functionally blind in his left eye, but his right eye was healthy, despite the scarring, and his vision in that eye was relatively good.
In a report dated 6 November 2017, Mr Thai Nguyen, Optometrist, who had examined the Applicant, opined – Exhibit 1 T40 p. 200:
“Internal examination showed retinal scar in the centre of the left eye. This explained his poor vision in the left eye.
Mr Le’s left eye was visually blind.”
Mr Nguyen opined that the Applicant’s unaided vision was R6/18+2 in his right eye and <6/120 in his left eye.
Table 12 – “Visual Function” is to be used where a person has a permanent condition resulting in functional impairment when performing functions involving visual function.
The diagnosis of the condition must be made by an appropriately qualified medical practitioner with supporting evidence from an ophthalmologist.
The Applicant did obtain the report of an ophthalmologist from the Princess Alexandra Hospital Eye Clinic dated 12 May 2018 – Exhibit 1 T50 pp. 227 – 229. The ophthalmologist noted that the Applicant had a full field of vision in his right eye and nil field of vision in his left – Exhibit 1 T50 p. 227.
The ophthalmologist opined that the Applicant’s visual acuity using the Snellen Scale was 6/12-2 uncorrected in his right eye and nil in his left.
The Tribunal was also presented with two recent reports from optometrists: Mr Russell Bae of 31 August 2018 (Exhibit 3) and Mr Mark Gibson of 5 September 2018 (Exhibit 4).
Mr Bae opined that the Applicant’s best corrected visual acuity using the Snellen scale was less than 6/120 for the Applicant’s left eye and 6/120 for the right eye. Further,

Mr Bae noted that the Applicant’s field of vision was very constricted for both eyes and he opined that he was legally blind – Exhibit 3 pp. 1 – 2.
Mr Gibson estimated the Applicant’s acuity for his right eye as 1/60, and he also opined that the Applicant was legally blind – Exhibit 4 pp. 1 – 2.
Visual acuity defines the ability to read and detect objects at a distance. It is measured by using a standard vision chart if for example, a person has a reading of 6/60, this would mean that the person can see at 6 metres and someone with standard vision can see from 60 metres away. A person with severe vision problems then would receive a reading of 6/60, whereas a person with good vision would have a reading of 6/6, or in the imperial scale – 20/20. Consequently the following Table provides some guidance to understanding visual acuity measures:
Amount of Visual Loss  Visual Acuity
None to slight  6/6 – 6/18
Moderate  <6/18 – 6/60
Severe  <6/60 – 3/60
Profound  <3/60
The Respondent submits that there is no supporting report from an ophthalmologist within the qualification period to confirm the Applicant’s diagnosis. Consequently, his left eye blindness condition cannot be considered permanent and no impairment rating can be assigned – SSIFC para 81.
As the Tribunal’s mandate is to consider the matter afresh, there is no limitation on the Tribunal being presented with, and considering, material that was not produced either to the original decision-maker or material subsequently produced to the decision-maker for the reviewable decision – Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [99] per Hayne and Heydon JJ. In particular, and critically for this matter, the Tribunal is at liberty to admit into evidence, and consider, medical reports prepared after the expiration of the qualification period, provided that those reports relate to the state of an applicant’s health during the qualification period – Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133 at [33] per Deputy President Handley.
In Gallacher v Secretary, Department of Social Security [2015] FCA 1123; 68 AAR

1 Besanko J made the following pertinent observations ([24]/6):
“Dr Tibrewal’s report was received in evidence before the Tribunal, and I have said, it referred to the report in its reasons…However, the Tribunal did not take into account Dr Tibrewal’s conclusions with respect to the applicant’s depression because those conclusions did not relate to the relevant assessment period (ie the period from 4 April 2013 to 4 July 2013). Dr Tibrewal’s report refers to the applicant’s condition of epilepsy apparently diagnosed when she was five years of age and involving a massive seizure in 2008. However, when he comes to express an opinion to the effect the applicant suffers from a major depression, he makes it clear that he is making that assessment as at the time he saw the applicant and wrote his report on 20 January 2015. There is nothing in his report to suggest that the applicant suffered from major depression during the relevant assessment period.”

In each case the decision-maker must consider both the nature of the medical condition and the content and context of the medical report. In this matter the Applicant was not suffering from an evolving medical condition during the qualification period. It is abundantly clear that since the first optometrist report of more than 20 years ago, the Applicant has been functionally blind in his left eye. If not for the fact that Table

12 requires supporting evidence from an ophthalmologist, his left eye blindness would have been appropriately diagnosed as early as 1998.
The report of the ophthalmologist in this matter, simply confirms the fact that the Applicant suffers from blindness in the left eye. A sensible and common sense reading of the evidence is not that this condition arose after the qualification period, or that the ophthalmologist’s report is time limited to that date it was prepared. Rather, it is a confirmatory report that the Applicant suffers from a longstanding condition and that this condition existed at the date he made his claim for the DSP.
The Tribunal accepts, as did AAT 1, that the Applicant has no functional vision in his left eye. The Tribunal also accepts that the Applicant’s condition has been diagnosed in accordance with the requirements of Table 12.
The Applicant was asked a series of questions at the Hearing about his eyesight. He stated that he came to the Tribunal with the aid of a friend who gave him a lift. His friend drove him to the front of the Tribunal building and he entered the premises unaccompanied. The Applicant stated that he did not require the assistance of his friend as he had visited the Tribunal previously and remembered how to access the lifts and which floor to come to. When questioned how he would get back to his home at the conclusion of the Hearing, the Applicant said he would most probably seek a lift from his friend. The Applicant said that he would contact him by mobile phone, and when asked if he could therefore see the numbers on the mobile phone, he replied that he could not see the mobile phone screen but was familiar with the position of the buttons.
Unfortunately, there is relatively little evidence on the extent of the Applicant’s functional limitations brought about by his eye condition.
The evidence suggests that the Applicant has functional vision in only one eye, however, there is a divergence of opinion amongst the professionals who have examined him.
Mr Nguyen, who examined the Applicant in November 2017, opined that his right eye visual acuity was 6/18+2, which means that the amount of visual loss is only moderate. The Ophthalmologist who examined the Applicant in May 2018 was even more positive, and opined a reading of 6/12-2, which equates to only slight loss of vision in the right eye.
In contradistinction both Mr Bae and Mr Gibson gave much more pessimistic reports. In relation to the right eye Mr Bae gave a reading of 6/120 and Mr Gibson gave one of 1/60. Both of these readings are in the profound range, and would, if correct, mean that the Applicant is legally blind.
The Tribunal is confronted with a troubling and somewhat perplexing situation. On the day before the Applicant made his claim, his treating optometrist opined that his right eye vision was relatively good. This favourable diagnosis was repeated by the Ophthalmologist in May 2018.
Yet within a few months, two optometrists independently gave profoundly different and much more negative readings. If the Tribunal was to accept those latter readings, and infer that the Applicant’s right eye vision during the qualification period was of that level, then an assignment of 20 impairment points would be made.
However, the Tribunal is not in a position to make such an inference. First, the reports of Messrs Bae and Gibson were written more than six months after the expiration of the qualification period. Second, they are inconsistent with the Ophthalmologist’s report which was made three months after the end of the qualification period. Third, they are inconsistent with the report of Mr Nguyen, which is dated only one day before the Applicant made his claim. Fourth, if there is a difference between a finding by an Ophthalmologist and an Optometrist, then the former is to be preferred. Finally, there is nothing in the reports of Messrs Bae and Gibson that would allow the Tribunal to infer that a similar reading would have been obtained during the qualification period.
To sum up then, the measures of visual acuity made closest to the qualification period firmly suggest that the Applicant’s right eye vision was moderate to good. It may be, for reasons not disclosed to the Tribunal, that this state of affairs changed after May 2018, and that the Applicant’s right eye vision has deteriorated markedly during the course of 2018. This may well be the case, but as previously stated, the mandate of the Tribunal is not to make findings based on the Applicant’s current condition, but on the nature of this visual function during the qualification period.
I am satisfied, based on the evidence admitted and the information gleaned at the Hearing, that during the qualification period the Applicant:
(a)had moderate difficulties seeing things at a distance or up close when wearing glasses;
(b)needed to use assistive devices for some tasks;
(c)had difficulty performing some day to day activities involving vision;
(d)had only functional vision in one eye and had mild problems with his right eye; and
(e)was able to function independently in familiar environments.
The Tribunal therefore assigns the Applicant 10 points under Table 12.
Arthritis
From approximately 2002, the Applicant worked as a cleaner at Hans Primo – Exhibit

1 T26 p. 125, T30 p. 153. On 3 July 2013 he slipped on animal fat and fell onto the concrete floor injuring his left knee. He was examined by his GP the next day and a period of rest was advised – Exhibit 1 T26 pp. 125 – 126, T30 p. 154.
On 25 July 2013, the Applicant underwent Magnetic Resonance Imaging (MRI) of the left knee which identified osteoarthritis and two tears of the medial meniscus – Exhibit 1 T21 p. 117:
“Moderate medial tibiofemoral and patellofemoral chondromalacia/osteoarthritis.
Joint effusion.
Horizontal tear at midbody and adjacent posterior horn medial meniscus. Radial tear at the mesial end of posterior horn medial meniscus also noted.
Popliteus tendon is hyperintense – tendinopathy or partial tear.
Prepatellar bursitis.”
The Applicant was referred to Dr Gauguin Gamboa, Orthopaedic Surgeon, who on 29 August 2013 performed a left side knee arthroscopy. In his report of the same date,

Dr Gamboa made the following observations – Exhibit 1 T23 p. 120:
“Image 1 demonstrates the patellofemoral compartment, there are grade

1 changes on both the patella and the trochlea. Image 2 demonstrates the large posterior horn, medial meniscal tear and medial compartment. There are grade

2 changes on both the medial tibial patella and the medial femoral condyle. Image 3 demonstrates the same area after adequate debridement. Image 4 demonstrates an intact anterior cruciate ligament, as you can see significant synovitis is present through out the knee Image 5 demonstrates the lateral compartment which is relatively pristine while image 6 demonstrates the patellofemoral compartment after chondroplasty.”
A further MRI of the Applicant’s left knee was performed on 19 November 2013. In his report of the same date, Dr Gaurav Khera made the following conclusions – Exhibit1 T25 pp. 123 – 124:
“Changes from previous partial meniscectomy at medial meniscus.
A radial tear is noted at the mesial end of posterior horn medial meniscus.
Moderate medial compartment chondromalacia with focal moderate chondromalacic change at medial patellar facet. Joint effusion and mild synovitis.”
Unfortunately, despite the operation, the Applicant’s pain did not resolve. He again saw Dr Gamboa and received two further intra-articular injections which only provided him with short-term relief.
After the operation and until December 2013, the Applicant had 20 sessions of physiotherapy and hydrotherapy three times a week for four weeks – Exhibit 1 T26 p. 126, T28 p. 144.
On 11 April 2014, the Applicant was examined by Dr Greg Cunningham who opined that tears of the left meniscus had been surgically treated and resolved. However, he noted that the Applicant was continuing to suffer from osteoarthritis and observed “abnormal illness behaviour”. Dr Cunningham observed that the Applicant’s presentation was “not consistent with the demonstrated degree of osteoarthritis of the left knee” – Exhibit 1 T26 p. 127. It was noted that the Applicant’s pattern of pain distribution was not consistent with osteoarthritis of the left knee, and further assessment was recommended to exclude disease of the lumbar spine and left hip – Exhibit 1 T26 p. 128.
Dr Cunningham opined that the Applicant was suffering from a degenerative disease and observed that the “osteoarthritis of the left knee is currently of mild to moderate severity” – Exhibit 1 T26 p. 128. While observing that the Applicant’s osteoarthritis of the left knee was, at that time, not severe enough to prevent him from safely carrying out work duties, in combination with his other symptoms, Dr Cunningham concluded that these prevented the Applicant “from performing any of the tasks of his current position with [the] company” – Exhibit 1 T26 pp. 128 – 129.
On 5 August 2014, Dr A L V Tran, the Applicant’s then GP, completed a medical report for the purpose of the Applicant’s claim for the DSP. Dr Tran noted that the Applicant had been a patient of the medical practice since 4 July 2013.
Dr Tran only referred to one condition in his report, namely severe left knee pain – Exhibit 1 T27 p. 135.
Dr Tran diagnosed the Applicant as suffering from severe chronic left knee pain “with marked disability”. The symptoms were noted to be constant severe left knee pain with consequent insomnia – Exhibit 1 T27 pp. 135 – 136.
Dr Tran noted that the impacts on the Applicant’s ability to function related to walking and affected his daily living “to some extent”. Nonetheless, Dr Tran stated that the Applicant was “unable to work” – Exhibit 1 T27 p. 137.
On 8 October 2014, the Applicant was examined by Dr Mark Shaw, Orthopaedic Surgeon – Exhibit 1 T30 pp. 153 - 158. Dr Shaw noted that the Applicant was at that time continuing to experience generalised left knee pain, most of which was anteromedially. The Applicant was noted to walk with the aid of a walking stick and his walking distance was limited to 40 metres. He had restricted movement in his left knee which continued to give way. Pain relief was obtained by the ingestion of Tramal and Celebrex – Exhibit

1 T30 p. 155.
Dr Shaw opined that no further surgical treatment could be advised and that the left knee pain was secondary to medial compartment osteoarthritis. This condition could be managed with activity modification, simple analgesia and quadriceps strengthening exercises – Exhibit 1 T30 p. 156.
Dr Shaw also opined that the Applicant was unable to return to his pre-injury duties at Hans Primo and he was restricted to very light physical or sedentary work. Further physical work would require an opportunity to sit at times, and Dr Shaw was unable to identify a previous occupation that was now suitable for the Applicant – Exhibit 1 T30 p. 156.
On 26 October 2017, the Applicant underwent an X-Ray of the lumbosacral spine, both knees and feet. The findings of the lumbar spine were as follows – Exhibit 1 T36 p. 166:
“Spondylosis seen throughout with disc space narrowing and marginal osteophytes, most pronounced at L5 – S1 disc space. There is multilevel facet joint arthrosis. No paraspinal masses. Degeneration, at both sacroiliac joints. Calcification in wall of the aorta.”
The X-Ray also showed moderate osteoarthritic changes in both knees and feet.
The Applicant underwent a further MRI and X-Ray of his left knee on 15 June 2018. The MRI findings were as follows – Exhibit 1 T51 p. 232:
“Conclusion:
·Severe osteoarthrosis in the medial compartment of the knee joint.
·Medial meniscal tear with extrusion.
·Grade 2/3 chondromalacia patella.
·Medial patellofemoral plica.
·Knee joint effusion with synovial hypertrophy.
·Anterior cruciate ligament ganglion cyst.”
Dr Gamboa analysed the findings and wrote to Dr Tran on 24 June 2018 as follows – Exhibit 1 T52 p. 234:
“I was able to personally review his plain radiographs and his MRI scan, which does demonstrate progression of his arthritis. He does have relatively severe arthrosis at this stage and some form of disability would be expected. Nonetheless, upon review of the requirements with regards to obtaining a Disability Support Pension under the Department of Human Services, I do agree that based on the Tables he would fall under a category that would only give him a mild functional impairment on activities using lower limbs, which would only give him 5 points. If stretched, it may get him to 10 points but this is probably not the best fit.
I would be grateful for your advice regarding anything further I should do at this stage. I would however recommend that he is referred to the public system for definitive treatment of his knee, as he would probably be amenable for a total knee replacement.”
The Respondent submits (SSIFC para 75) that the Applicant’s left knee condition was not fully treated and stabilised by the end of the qualification period. This submission is based, in part, on Dr Gamboa’s recommendation in his report of 24 June 2018, that the Applicant may be amenable to a total knee replacement.
The Tribunal does not agree with this submission. The totality of the evidence plainly suggests that by the end of the qualification period, the Applicant’s arthritic condition had stabilised and was slowly degenerating, or, if one accepts the diagnosis of Dr Tran, was stable and stationary – Exhibit 1 T48 p. 223. The reports of Dr Tran of 4 November 2014 (Exhibit 1 T31 p.159) and 29 January 2015 (Exhibit 1 T32 p. 161) indicate that the focus of the treatment was pain relief, with the Applicant being prescribed Panadeine forte, Tramal and Celebrex.
Likewise, some two years later when the Applicant was being treated by Dr Troung, he was continuing to receive “conservative treatment” (Exhibit 1 T37 p. 167), which presumably was the same pain relief regime put in place by Dr Tran.
This conservative treatment is in accord with the recommendations of Dr Shaw, who opined that the Applicant’s left knee should be managed with activity modification, simple analgesia and quadriceps strengthening exercises – Exhibit 1 T30 p. 156.
The medical evidence leads to the conclusion that the workplace injury suffered by the Applicant in 2013 resolved after surgical intervention. However, his underlying arthritic condition has continued to slowly deteriorate. By the conclusion of the qualification period that condition was permanent, and had been fully diagnosed, treated and stabilised.
It is the case with a degenerative condition that from time to time, some medical specialists will recommend surgical intervention. It is also the case, and a matter of common knowledge, that the value of surgical interventions in such cases can often be the subject of vigorous debate within the medical profession and between various branches of that field of science. All that need be noted in the context of this matter is that Dr Gamboa’s recommendation of a total knee replacement was made a number of months after the expiration of the qualification period. Whether he would have made that recommendation based on the condition of the Applicant as at 7 February 2018 is unclear and the Tribunal is not in a position to speculate.
The Tribunal does, however, agree with the Respondent (SSIFC paras 65 – 67) that it is not possible to conclude that by the expiration of the qualification period the Applicant’s arthritis of the spine, right knee and feet had not been fully diagnosed. Such diagnosis is only possible from the time of Dr Gamboa’s report of 24 June 2018, which is outside the qualification period. Further, even if those conditions were fully diagnosed by the conclusion of the qualification period, they were not fully treated or stabilised. Indeed, it is not clear from the evidence before the Tribunal if any particular treatment has yet commenced, let alone whether the arthritis of those parts of the Applicant’s body has been fully stabilised.
It is necessary, then, to assess the Applicant’s functional impairment under Table 3 of the Impairment Tables – Lower Limb Function.
While by no means conclusive, it is appropriate that consideration be given to the assessment of Dr Gamboa in his report of 24 June 2018. Whilst this report is outside the qualification period, as the Applicant has a degenerative disease, the assessment of Dr Gamboa would err on the favourable side to the Applicant.
As previously noted, Dr Gamboa opined that the Applicant would fall under a category that would give him a mild functional impairment, and that an assessment of 5 points would be appropriate – Exhibit 1 T52 p. 234.
The evidence before the Tribunal, including the statements of the Applicant at the Hearing, comport with this assessment.
The evidence before the Tribunal discloses that the Applicant:
(a)has difficulty walking more than 40 metres;
(b)has difficulty walking around local facilities;
(c)has difficulty climbing stairs;
(d)is unable to stand for any lengthy period; and
(e)requires a walking stick to mobilise.
In these circumstances, the Tribunal assigns the Applicant 5 points under Table 3.
Other conditions
In his medical report of 9 April 2018, Dr Tran outlined a number of conditions that the Applicant is afflicted with. Apart from the eye and arthritis conditions discussed above, he also referred to diabetes – Exhibit 1 T48 p. 223.
A perusal of Exhibit 1 discloses a number of references to the Applicant’s diabetes condition. For example, it is referred to in the medical certificates of Dr Troung of 1 November 2017 (Exhibit 1 T37 p. 167) and 30 January 2018 (Exhibit 1 T42 p. 210).
Despite these references to diabetes, there is no mention of this condition in the medical report of Dr Tran of 5 August 2014 (Exhibit 1 T27 pp. 132 – 142) nor in the extensive JCA Report of 4 September 2014 – Exhibit 1 T28 pp. 143 - 150.
The diabetes condition is referred to in the Employment Services Assessment Report of 16 November 2017. The following observations were made – Exhibit 1 T41 p. 204:
“Medical certificate by Dr Troung dated 1.11.2017 noted diagnosis of diabetes and noted poor concentration. The client noted he was diagnosed with diabetes

4-5 years ago and is on medication – Diabex. He noted he saw a dietician 3 years ago and watches his diet. He noted he has taken his BSL 3 times and it was

6-7 mmol.”
The medical evidence before the Tribunal on the Applicant’s diabetes condition is scant. However, even if it is assumed that this condition has been fully diagnosed, there is insufficient evidence for the Tribunal to ascertain whether it is fully treated and fully stabilised. Further, even if it is assumed that the Applicant’s diabetes is fully treated and fully stabilised, there is no evidence of any functional impairments that flow from the condition. Clearly, then, it is not possible to assign any impairment points for this condition.
Apart from diabetes, there are passing references to other conditions that the Applicant has been afflicted with at various stages of his life including hypertension (Exhibit 1 T28 p. 145, T41 p. 203), morbid obesity (Exhibit 1 T28 p. 145, T41 p. 203) and depression (Exhibit 1 T28 p. 146, T41 p. 203).
There is insufficient medical evidence before the Tribunal to confidently determine if these conditions have been fully diagnosed, and it also follows that the Tribunal is unable to determine if the conditions have been fully treated and are fully stabilised. Accordingly, the Tribunal cannot assign any points under the Impairment Tables.
Impairment Points

The Tribunal assigns the Applicant a total of 15 points under Tables 3 and 12.
Continuing inability to work
As the Applicant has been awarded less than 20 impairment points, it is unnecessary to consider whether he has a continuing inability to work under s 94(1)(c) of the Act.
CONCLUSION
The Act provides no discretion to the Tribunal when applying the DSP provisions of the Act. The Tribunal has consistently held that there is no power to dispense with the strict operation of the requirements of s 94 and the relevant Determinations, even though it may result in a harsh and possibly unfair result.
In this matter the Applicant is obviously an unwell man of advancing years. His eyesight is, at the very least, extremely poor and he is suffering from an advanced and painful arthritic condition. His command of the English language is limited, his marriage has broken down, he has no children and he is surviving with the aid of a limited circle of friends. His prospects of ever gaining and maintaining gainful employment are remote.
It is also tolerably clear that the Applicant’s right eye vision has begun to deteriorate, and the rate of deterioration appears to be quite rapid.
It is to be hoped that if the Applicant makes a further claim for the DSP with up to date medical information, including a contemporary report from a ophthalmologist, that the relevant Departmental officers will take into account the contents of this determination.
The decision under review is affirmed.

I certify that the preceding 106 (one hundred and six) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

...........................[SGD].............................................
Associate
Dated: 7 January 2019

Date of hearing: 6 December 2018

Applicant: In person

Advocates for the Respondent: Mr Andrew Summers and Ms Jasmine Forsyth

Solicitors for the Respondent: Department of Human Services

[2019] AATA 4

7 January 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Jurisdiction

Date of hearing:	6 December 2018
Applicant:	In person
Advocates for the Respondent:	Mr Andrew Summers and Ms Jasmine Forsyth
Solicitors for the Respondent:	Department of Human Services