Maroulis and National Disability Insurance Agency (NDIS)

[2025] ARTA 1132

Maroulis and National Disability Insurance Agency (NDIS) [2025] ARTA 1132 (27 June 2025)

Applicant:John Maroulis

Respondent:  National Disability Insurance Agency

Tribunal Number:                2023/3089

Tribunal:General Member I Selley

Place:Adelaide

Date:27 June 2025

Decision:The Tribunal affirms the decision under review.

Statement made on 27 June 2025 at 3:20pm

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – access request – whether access criteria under s21 of the Act met - disability requirements under s 24 of the Act –- physical, sensory, cognitive and psychosocial impairments – whether impairments are, or likely to be permanent - decision under review affirmed

Legislation

Administrative Review Tribunal Act 2024 (Cth)

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act) (Cth)

National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth) - s129
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)

Cases
Mulligan v National Disability Insurance Agency (2015) 233 FCR 201
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC 11
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

Beezley v Repatriation Commission [2015] FCAFC 165

Secondary Materials

National Disability Insurance Agency, NDIS Operational Guidelines: Applying to the NDIS (Guidelines, 14 October 2024, pre-legislation changes) Review Tribunal, Practice Direction (Expert Evidence) 2024, Administrative-Review-Tribunal--Expert-and-Opinion-Evidence--Practice-Direction-2024--Publication-Version-.pdf

Administrative Review Tribunal, Common Procedures Practice Direction 2024, Common Procedures Practice Direction 2024_0.pdf

Statement of Reasons

INTRODUCTION

1. The issue for my determination is whether Mr Maroulis meets either the disability or early intervention requirements to access the NDIS in the National Disability Insurance Scheme Act 2013 (the Act). The Tribunal is satisfied on the evidence that Mr Maroulis meets the age and residence requirements.

2. Mr Maroulis is a 67-year-old divorced man. He resides as a lodger in a friend’s house in Adelaide. He is unemployed and receives the Age Pension.

3. Mr Maroulis lives with medical conditions which impair his functioning. This decision is about whether those impairments are of such nature and extent he should be granted access as a participant to the National Disability Insurance Scheme (NDIS).

4. For the reasons below, I have determined Mr Maroulis does not meet either requirement because his impairments are not permanent or likely to be permanent.

   THE APPLICATION

5. In August 2022, just before his 65^th birthday, Mr Maroulis made a request to the National Disability Insurance Agency (the Agency) to access the NDIS (the access request). In November 2022, the Agency refused the access request[1] (the access decision). Mr Maroulis then applied to the Agency for an internal review of that decision, and in February 2023, the Agency again determined not to grant him access (the internal review decision).

   [1] Joint Tender Bundle (JTB), page 38

6. In May 2023, Mr Maroulis applied to the Administrative Appeals Tribunal (AAT) for a review of the internal review decision. In October 2024, the Administrative Review Tribunal (ART) was established to replace the AAT and Mr Maroulis’ AAT Application was transferred to the ART[2]. His application had been progressing unsuccessfully through alternative dispute resolution until October 2024 when it was constituted to me for hearing and final determination. I am satisfied the application to the AAT is valid and the ART has jurisdiction to determine it[3].

   [2] Item 24, Part 5 to Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024

   [3] Section 25 of the Administrative Appeals Tribunal Act 1975 and section 103 NDIS Act together gave the AAT the power to review an internal review decision by the Agency about access and . “Decisions about whether a person satisfies the criteria to be assess as a participant can be internally reviewed (s 99) and then reviewed externally by the Tribunal (s103)” at [33] [which decision is this?]

   LEGISLATION AND POLICY

   The Access Criteria

7. To become a participant in the NDIS, Mr Maroullis must meet the access criteria in section 21 of the Act. This requires him to meet both the age and residence requirements in sections 22 and 23, and then either of the disability requirements detailed in section 24 or the early intervention requirements in section 25 of the Act.

8. Sections 24 and 25 of the Act were amended after Mr Maroulis made the AAT application, however, those changes apply only to access requests made on or after 3 October 2024[4].

   The Disability and Early Intervention Requirements

   [4] National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) 2024 (the Amending Act), Item 126(1) of Part 3 of Schedule 1

9. Section 24 of the Act relevantly states:

   (1)“A person meets the disability requirements if:

   (a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and

   (b)the impairment or impairments are, or are likely to be, permanent; and

   (c)the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:

   (i)     communication

   (ii)    social interaction

   (iii)    learning

   (iv)   mobility

   (v)    self care

   (vi)   self management; and

   (d)the impairment or impairments affect the person’s capacity for social or economic participation; and

   (e)the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.

   (2)For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.

   (3)For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require NDIS supports under the National Disability Insurance Scheme for the person's lifetime, despite the episodic or fluctuating nature of the impairments.

   (4)Subsection (3) does not limit subsection (2)”

10. Section 25 provides an alternative basis for access to section 24. Subsections 25(1) and 25(1A) relevantly state:

    (1)“A person meets the early intervention requirements if:

    (a)the person:

    (i)     has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent;

    (ii)    has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent; social interaction;

    (iii)    is a child who has developmentaldelay; and

    (b)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and

    (c)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:

    (i)mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or;

    (ii)preventing the deterioration of such functional capacity; or

    (iii)improving such functional capacity; or

    (iv)strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.

    (1A) For the purposes of subparagraph (1)(a)(i) or (ii), an impairment or impairments that are episodic or fluctuating may be taken to be permanent despite the episodic or fluctuating nature of the impairments.”

    NDIS Access Rules

11. The Tribunal must apply the mandatory instructions for interpreting sections 24 and 25 in the NDIS (Becoming a Participant) Rules 2016 (the Access Rules). The Access Rules set out the circumstances in which, and the criteria the Tribunal must apply in assessing whether:

    ·impairments are or are likely to be permanent

    ·any permanent impairments result in substantially reduced functional capacity in undertaking one or more activities; and

    ·provision of early intervention supports is likely to benefit the person.

    Judicial interpretation of the Access Criteria

12. The Tribunal must apply the relevant jurisprudence of the courts in access matters.

13. The courts have said that the purpose of the access criteria and section 24(1) is to impose a series of “components and thresholds” [5] to gaining access to the NDIS.

    [5] Mulligan v NDIA [2015] FCA 544, at [18],

14. Given that Mr Maroulis must satisfy every component in section 24(1), the Tribunal’s approach is to consider whether each is in turn is satisfied before progressing to the next. If he fails to satisfy one, then he cannot meet the disability requirements, and the Tribunal must turn its attention to whether he meets the early intervention requirements. The components of section 25 are also cumulative, and each must in turn be satisfied.

15. The courts emphasise that the central concept in an access matter is “Impairment”[6].  It is not the name of a person’s disability or their medical diagnoses or conditions[7].

    [6] National Disability Insurance Agency v Davis [2022] FCA 1003 (Davis) at [69]

    [7] Ibid

16. Impairment involves the loss of or damage to a physical, sensory or mental function[8].

    [8] Mulligan, [51]

17. The courts have said “permanent” means “enduring”[9]. An impairment may endure even if it fluctuates, or may fluctuate during a person‘s lifetime, in its intensity and impact [10].

    [9] National Disability Insurance Agency v Davis [2022] FCS 1002 at [85]

    [10] Davis, at [82], reflecting the clarifications in subsections 24(3) and 25(1A)

18. The Tribunal must engage in a fact-finding exercise and examine the evidence of medical practitioners, clinicians, an applicant and their supports to determine the permanency and severity of the applicant’s impairments and the impact on their ability to undertake specified, multi-faceted life activities[11].

    [11] Ibid

19. It is for Mr Maroulis to provide the Tribunal with sufficient evidence and information to persuade it that he meets the access criteria[12], and for the Agency to assist the Tribunal to make the correct or preferable decision[13].

    [12] Beezley v Repatriation Commission (2015) FCAFC 165 at [68]; Davis [citation ctb]

    [13] Section 56(1), ART Act

20. I discuss relevant jurisprudence concerning the Access Rules below.

    NDIS Guidelines

21. The Tribunal must take into consideration[14], but is not bound by[15], the Agency’s current policy guidance contained in NDIS – Applying to the NDIS Guidelines (the Access Guidelines). The Access Guidelines are regularly updated and those relating to access requests received by the Agency before 3 October 2024 are relevant to this matter[16].

    [14] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634; (1979) 2 ALD 60.

    [15] G v Minister for Immigration and Border Protection, per Mortimer J [2018] FCA 1229 at [171]

    [16] Applying to the NDIS | NDIS

    EVIDENCE, SUBMISSIONS AND PROCEDURE

22. On 28 and 29 January 2025, the Tribunal conducted a hearing by video.

23. A Joint Tender Bundle (JTB) of documents from both parties was given to the Tribunal and admitted into evidence. It includes the documents held by the Agency at the time of and relevant to the Tribunal Application including the internal review decision (the T-Docs) and evidence later obtained by the parties and given to the Tribunal during the proceedings.

24. The Tribunal heard evidence from:

    ·Mr Maroulis, who provided written statements dated January 2025[17] and August 2023[18].  

    ·Ms Phyllis Tsoi, occupational therapist and expert witness for Mr Maroulis who assessed his functional capacity and prepared a report dated 14 January 2025[19].

    ·Mr Stuart Burgoyne, occupational therapist and expert witness for the Agency who conducted a functional capacity assessment of Mr Maroulis and prepared a report dated 31 March 2024[20].

    [17] JTB, 109

    [18] JTB, 27

    [19] JTB, 114

    [20] JTB, 136

25. Mr Maroulis represented himself with Ms Kristina Lulic attending as an informal support person. Ms Lulic also provided support to Mr Maroulis by providing computer access and a space in her home so he could participate in the hearing. The Agency was represented by Ms Josephine Battiste as Counsel, instructed by Mr Jack Watts of Maddocks lawyers.

26. At the hearing, Mr Maroulis described Ms Lulic as his occasional counsellor, which Ms Lulic confirmed. She provided correspondence in support of the Tribunal application and the internal review request[21]. She completed the Tribunal Application for Mr Maroulis’ and self-identifies there as his representative. I consider Ms Lulic to be an advocate for Mr Maroulis. As she did not give evidence at the hearing despite being available, and her written evidence could not be tested, I attach no weight to it.

    [21] 8 February 2023, JTB 59; 8 May 2023, JTB 60, undated letter in support of internal review request, JTB 103

27. Mr Maroulis relies on three reports from his psychiatrist Dr Giardini, dated March 2022, December 2022 and October 2023.

28. He relies on one report from his GP Dr Zuvela, dated September 2023. Dr Zuvela is the practitioner who completed the Access Request.

29. Mr Maroulis did not call Dr Giardini or Dr Zuvela to give evidence, stating they were unavailable. The Agency did not require their attendance for cross-examination.

30. Other than two, one-page records headed “Summary of Medical History”, dated August 2022 and October 2024, which list his medical diagnoses and medications, Mr Maroulis did not provide medical, clinical or allied health records.

31. Mr Maroulis did not respond to the Tribunal’s directions dated 8 May 2024 enabling him to provide further psychiatric and GP reports. He did not comply with directions dated 31 October 2024 enabling him to provide further evidence despite encouragement from the Tribunal to contact it if he was having difficulties complying.

32. Both parties provided pre-hearing written submissions. The Agency provided a Statement of Facts Issues and Contentions (SFIC) and made detailed closing oral submissions. Mr Maroulis, not having the benefit of legal representation, provided brief oral and written submissions.

33. The Agency’s SFIC was prepared and filed in December 2024, prior to Mr Maroulis’ submission of Ms Tsoi’s report. The Agency was nonetheless able to address the report in its examination and cross-examination of witnesses and closing submissions at hearing. This included obtaining information from Mr Maroulis and Ms Tsoi about the briefing given to Ms Tsoi prior to her undertaking the functional capacity assessment.

34. As Mr Maroulis was self-represented and providing limited expert evidence, one day of the hearing was dedicated to his testimony so as to assist him to present his case and the Tribunal to understand it.

35. The Tribunal took Mr Maroulis through the scheduled breaks in the hearing program and encouraged him to request a break whenever he felt he was tired and losing his concentration. The Tribunal also asked Mr Maroulis during his evidence if he would like to take a break as he said he had not had much sleep. Mr Maorulis declined stating he did not need one. The Tribunal confirmed with Mr Maroulis that he could take short breaks to look at his notes and documents if he needed and he did take up this opportunity at various points in the hearing.  

36. In presenting the evidence below, I have used footnotes to reference information found in the documents before the Tribunal. Where there is no document referenced, this means that the evidence being referred to was given at the hearing. This is to avoid repeated references to the hearing. Where helpful, I have made specific reference to whether the evidence was given under cross-examination.  

    THE ISSUES

37. There are two key issues in this case. The first is whether Mr Maroulis meets the disability or early intervention requirements of the access criteria. The second is whether he has given the Tribunal sufficient and reliable information so that it can be satisfied that he does.

    Sufficiency and reliability of Mr Maroulis’ evidence: overview

38. The Agency submits, in general terms, there are too many gaps and uncertainties in the evidence before the Tribunal for any safe conclusions to be drawn. In the alternative, it submits there is not enough evidence for the Tribunal to be positively satisfied that certain criteria have been met. It is an extensive exercise for the Tribunal to analyse and consider the information before it and determine its reliability and the weight I should give it.

39. Mr Maroulis centres his claims around a substantial number of medical diagnoses in the records and reports of Dr Zuvela and Dr Giardini as well as self-diagnoses that are not independently corroborated. Although evidence of Mr Maroulis’ medical conditions is certainly relevant to the proceedings, that he has this focus to the detriment of detailing his impairments makes the Tribunal’s task more difficult. It also detracts from him satisfying the Tribunal that he has met the components and thresholds he is required to under the Act.

40. Furthermore, Mr Maroulis’ position about which medical conditions cause him impairments is changeable. By way of one example, having claimed impairments arising from Bells Palsy in his access request, Mr Maroulis did not make these claims in his January 2025 statement submitted in response to the Tribunal’s directions to state the conditions and impairments on which he relies, but then reasserted impairments arising from Bells Palsy in the hearing. This changeability repeats across his evidence and submissions, and I detail it further below in considering his claims.

41. Mr Maroulis argues that he suffers some 28 medical conditions that have in turn caused him loss or damage to his functional capacity, many of which he describes as “health impairments”. These are:

    chronic persistent major depression, anxiety, obsessive compulsive disorder, agoraphobia, claustrophobia, sociophobia, post-traumatic stress disorder, hoarding disorder, failing eyesight, glaucoma, bilateral cataract extractions, bilateral shoulder bursitis, bulging cervical spine disc, osteoarthritis of the left hip and lower back, osteoarthritis generally, sciatica, bilateral knee problems, morbid obesity, mini strokes, bells palsy, acquired brain injury (ABI), transient ischemic attack (TIA), concussion syndrome,  hypercholesterolaemia, chronic asthma, vitamin D insufficiency, hypertension and vertigo.

42. I find Mr Maroulis’ approach to his submissions and evidence to be often broad-brush and indiscriminate with a tendency to embellish or avoid scrutiny, as to the conditions and impairments he suffers and the impact of his impairments on his daily life. The Agency submits, and I accept, that Mr Maroulis at times constructed his evidence for it to appear more favourable to the Tribunal. The Agency submits, and I accept, that Mr Maroulis is prone to engage in self-diagnosis.

43. The Agency submits there are inconsistencies between what Mr Maroulis has said on occasion to different people and with respect to his own evidence in various forms, either directly before the Tribunal or in written material he has provided. It submits the Tribunal should proceed with caution in its approach to Mr Maroulis’ claims that are not independently corroborated or where the evidence is inconsistent. I accept these submissions.

1. I accept the Agency’s submission that Mr Maroulis’ self-limiting behaviours, as identified by Mr Burgoyne, should also be considered when assessing the reliability of his evidence. Mr Burgoyne stated that Mr Maroulis is motivated to avoid harming or hurting himself. He stated that Mr Maroulis has a very poor expectation of success, and that his relative strength is conversation around his interests and past successes[22]. In understanding Mr Maroulis’ evidence, I consider his diagnosis of obsessive-compulsive disorder (OCD)[23], which I accept, and the reports of Dr Giardini that Mr Maroulis is absorbed with his problems[24].

   [22] JTB, 139

   [23] JTB, 107

   [24] JTB, 46

2. There is limited independent medical and other expert evidence before the Tribunal from Mr Maroulis’ treating and assessing practitioners. What evidence there is often lacks explanation of the medical finding, treatment given and outcomes of treatment, and reports as fact what Mr Maroulis has told them.

3. As Mr Maroulis is the source of many of the reported experiences upon which experts have relied in forming opinions, to an extent the problems with his reliability afflict their evidence.

4. This is of concern in the reports of Dr Giardini and particularly the report of Ms Tsoi, who reports as fact numerous claims reported to her by Mr Maroulis that are unsubstantiated or inconsistent with other material, including material given to her as part of her briefing.

5. For example, Ms Tsoi states that since Mr Maroulis made the access request, his condition has further deteriorated due to lack of support and has resulted in frequent falls and decline in mental health[25]. She concludes that delayed access to the NDIS has resulted in further deterioration of Mr Maroulis’ mental and physical health increasing his needs for supports[26]. She concludes Mr Maroulis is a high falls risk[27]. As reasoned below, the Tribunal lacks reliable medical evidence that Mr Maroulis has fallen or experienced declines in his diagnosed conditions.

   [25] JTB, 134

   [26] JTB, 118

   [27] JTB, 128

6. Ms Tsoi reports as fact that Mr Maroulis had to stop work due to ill health[28] whereas it is not in doubt that he stopped because he was disqualified from practicing as a psychologist for reasons of professional misconduct[29].

   [28] JTB, 119

   [29] JTB, 35, 137

7. Ms Tsoi reports as fact that Mr Maroulis is unable to leave the house[30], whereas Mr Maroulis’ own evidence in his statements and at hearing as discussed below establishes that he regularly leaves the house. She reports as fact that Mr Maroulis is dependent on his housemate to shop for groceries[31] whereas Mr Maroulis’ own evidence establishes they sometimes shop for groceries together. I take a similar view of Ms Tsoi’s conclusion that Mr Maroulis has lost all his friends[32] and has no family[33]. Ms Tsoi reports that Mr Maroulis cannot cook due to poor balance, mobility and pain[34] whereas his own evidence is that he largely does not cook because he has not learned how to. She reports that Mr Maroulis does not drive due to disability[35] whereas his own evidence is that he can drive but does not because he cannot afford a car[36].

   [30] JTB, 119, 122

   [31] JTB, 121

   [32] JTB, 122

   [33] JTB, 118.

   [34] JTB, 120

   [35] JTB, 131

   [36] JTB, 145

8. Moreover, the considerable disparities between the information Mr Maroulis is reported as having told Ms Tsoi, and the information he gave the Tribunal, unambiguously demonstrates to the Tribunal that Mr Maroulis exaggerated his claims to Ms Tsoi for the purposes of obtaining a more favourable functional assessment. This weighs heavily on the credibility and reliability of his evidence and renders, to the extent they were not persuasively reaffirmed with reasons or reconsidered in oral evidence, Ms Tsoi’s conclusions on Mr Maroulis’ functional capacity to be unreliable. This is compounded by the incomplete nature of her pre-assessment briefing and her approach to the assessment for the Tribunal proceedings.

9. Ms Tsoi confirmed at the hearing she had performed a functional capacity assessment for Mr Maroulis as she would for any other client.  She confirmed that she had not been provided with or had regard to the Tribunal’s guidance to experts in giving expert evidence or opinion. The Tribunal’s view is that Ms Tsoi’s report does not meet several of the standards expressed in clause 3 of the ART (Expert Evidence) Practice Direction 2024 and takes a cautious approach to her report accordingly[37].

   [37]  The ART Common Procedures Practice Direction (Practice Direction), at clauses 6.9 and 6.10 as well as the ART (Expert Evidence) Practice Direction 2024 indicate that non-compliance with the Expert Practice Direction may impact the weight given to the expert evidence.

10. Ms Tsoi initially stated under cross-examination that she had been engaged by Ms Lulic and provided with only three documents, being the 2023 reports from Dr Giardini and Dr Zuvela and a hospital discharge summary which was not in the JTB.

11. Asked whether she had been advised of the functional capacity assessment conducted by Mr Burgoyne, she stated that she had been given the report but not read it because she knew it was not relevant due to the further deterioration of Mr Maroulis condition and she wanted to be efficient with her time. She had also been given Mr Maroulis’ January 2025 statement, but she had only glanced at it. Ms Tsoi confirmed she had been given Dr Zuvela’s Summary of Medical History from October 2024 but did not comment on whether she had considered it. She asked Mr Maroulis for a list of his medication and he sent her a list of his medications by SMS. Mr Maroulis confirmed this in his own evidence. She advised the Tribunal that the list of diagnoses that appears in her report[38] was taken from a completed referral form and confirmed by Mr Maroulis during the assessment and that she did not form any opinion of those diagnoses herself.

    [38] JTB, 114

12. From these accounts, the Tribunal concludes that Ms Tsoi did not consider in preparing her report either the report of Mr Burgoyne or the diagnoses and medications listed in the medical summary from Dr Zuvela because she assessed it as unimportant to do so. She did not consider the 2022 reports from Dr Giardini or any other materials relied upon by Mr Maroulis in the JTB because she was not provided with them.

13. Asked why she concluded Mr Maroulis had deteriorated since the March 2024 assessment, Ms Tsoi said that Mr Maroulis has increased pain and reduced mobility over the last two years due to the deterioration of his mental health and lack of support. She said you can see that because he has not been going out and not socialising and seeing friends his mental health has declined. She said that because he has been falling more, he has an increased fear of falling and the falls result in injury and further reducing his mobility. As I have noted above and reasoned further below, the Tribunal rejects Mr Maroulis’ claims regarding socialising, falling and mental health decline as unsupported by sufficient, reliable evidence. The Tribunal notes, to the extent to which Ms Tsoi’s conclusions regarding Mr Maroulis’ impairments and their impact turn upon her acceptance of his claims to be experiencing many falls, the Tribunal, as reasoned below, does not accept them.

14. Ms Tsoi agreed that she was not in a position to explain any differences between her report and Mr Burgoyne’s report because she had not read it. She agreed that she could not say if any differences could be attributed to any changes in Mr Maroulis condition.

15. At the hearing, however, I found Ms Tsoi to be reasonably self-reflective.  She acknowledged that her report could have been more carefully written in parts. As to information and opinion that Ms Tsoi had the opportunity to reflect on and add to, qualify or revise in her oral evidence, I generally accept her evidence as reliable. I otherwise have given little or no weight to uncorroborated information that is only in her report.

16. I take a similar stance regarding statements in Dr Giardini’s reports that are extraneous to his role as Mr Maroulis’ diagnosing and treating psychologist.  I place no weight on statements in Dr Giardini’s reports that Mr Maroulis has physical conditions and impairments. There is no indication in Dr Giardini’s reports as to how he reached these conclusions or that he prepared his October 2023 report, which was prepared for these proceedings, having considered the AAT ‘Guidelines - Persons Giving Expert and Opinion Evidence that were in force at that time. He was unavailable for the hearing and for his evidence to be tested.

17. In summary, the Tribunal proceeds with considerable caution in its approach to Mr Maroulis’ claims that are not independently corroborated by relevant expert evidence and where the evidence before it is vague, exaggerated, inconsistent and does not meet the standards of the Tribunal’s guidance for expert evidence and opinion.  

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Section 24(1)(a): Does Mr Maroulis have a disability that is attributable to an impairment, or an impairment to which a psychosocial disability is attributable?

18. In its closing submissions at the hearing, the Agency grouped Mr Maroulis’ claimed impairments and associated medical conditions into four of the five, high-level categories in section 24(1)(a): psychosocial, cognitive, sensory (vision), and physical (mobility and pain).

19. I am assisted in framing my analysis and reasons by adopting these practical groupings.

20. Although the focus of the access criteria is on impairment and not medical conditions, evidence of the latter is relevant to whether Mr Maroulis has one or more impairments and defining them with sufficient precision to be able to assess their permanency and impact. In the section below I determine whether I am satisfied Mr Maroulis has one or more impairments giving rise to a disability and whether he has the medical diagnoses he claims give rise to impairment.

21. For the reasons below, I accept Mr Maroulis has the following impairments:

    ·Psychosocial impairments to which major depression, OCD and anxiety are attributable

    ·Cognitive impairments to which major depression, OCD and anxiety are attributable

    ·Sensory impairment of his vision due to cataracts

    ·Physical impairments of reduced mobility, balance, strength and endurance and associated pain

    Psychosocial impairments arising from anxiety, depression and obsessive-compulsive disorder

22. Mr Maroulis has consistently claimed to be living with impairments arising from chronic major depression, anxiety and OCD.

23. In the access request form, Dr Zuvela identifies these conditions as his main disability, and they have been consistently diagnosed by Dr Giardini. Dr Giardini states most recently as October 2023, and I accept, that he has been Mr Maroulis’ treating psychiatrist since 2016. Dr Giardini identifies, and I accept that Mr Maroulis demonstrates low mood, decision-making paralysis, difficulties with leaving the house, being pre-occupied with perceived injustices, financial stress and time-consuming ritualistic and repetitive behaviours to prevent anticipated harm[39]. Ms Tsoi also observes the presence of obsessive-compulsive behaviours impacting his daily activities.

    [39] JTB, 35-36

24. There is no dispute from the Agency about the integrity of those diagnoses. Mr Burgoyne also identifies that Mr Maroulis’ decision-making, outlook, motivation, memory, concentration and willingness to engage with others are impaired by these conditions[40] . He confirmed at hearing that his observations were consistent with Mr Maroulis having major depression and a lack of motivation.

    [40] JTB, 140, 143 and 144

25. Mr Maroulis stated at hearing that because of his depression he experiences short term memory deficits, difficulties with concentration and decision making and poor sleep.

26. I accept that Mr Maroulis has impairments to which depression, anxiety and OCD are attributable.

    Psychosocial impairments arising from Post Traumatic Stress Disorder (PTSD)

27. In the access request, Mr Maroulis states that PTSD is part of his main disability, however Dr Zuvela does not mention PTSD in the access request or in his September 2023 letter. Mr Maroulis told the Tribunal he sees Dr Zuvela on average every fortnight and that Dr Zuvela wants to know everything about him physically and psychologically.

28. Mr Maroulis does not mention PTSD in either his August 2023 or his January 2025 statement.

29. Asked if he had been diagnosed with PTSD, Mr Maroulis replied that he thought Dr Giardini had made this diagnosis but wanted to check his documents. He proceeded to tell the Tribunal about the nature of anxiety as a psychiatric condition. The Tribunal advised Mr Maroulis he was not permitted to give expert evidence in support of his own case.

30. Mr Maroulis stated that Dr Giardini had treated him for PTSD by giving him breathing exercises and anxiety tablets. He said he developed the condition in response to being physically assaulted by strangers and claimed he told Dr Giardini about this incident. Mr Maroulis said that if he finds himself experiencing PTSD while out, instead of escaping he practices breathing and relaxation techniques. He then added that he did not find himself in situations these days where his PTSD is triggered. He told the Tribunal that he “definitely feels” his PTSD affects him. He feels more fearful going out and he tries to avoid it. He feels more comfortable knowing where he is going, and he needs to plan ahead all the time.  He said that one of the reasons he does not go out much is because he does not like to when it is unplanned.

31. PTSD is not named as diagnosis or otherwise mentioned by Dr Giardini in his reports. There is also no mention in Dr Giardini’s reports of Mr Maroullis having been assaulted and this being the cause of or contributor to a psychosocial condition. Dr Giardini’s reports are otherwise reasonably detailed in the personal circumstances and events that he associates with Mr Maroulis’ anxiety, depression and OCD.

32. There only reference to PTSD is in the two, one-page summaries of medical histories from Dr Zuvela dated August 2022 and October 2024.

33. I find Mr Maroulis’ evidence on his claimed PTSD to be evasive and difficult to follow. It is not corroborated by any statements, reports or records produced by Mr Maroulis, Dr Giardini and Dr Zuvela other than the two, one-page Health Summaries from Dr Zuvela.

34. For these reasons, I do not accept that Mr Maroulis has a diagnosis of PTSD or any impairment to which a psychosocial disability of PTSD is attributable.

    Psychosocial impairments arising from claustrophobia, agoraphobia and social phobia

35. In his January 2025 statement, Mr Maroulis states that he constantly suffers from agoraphobia and claustrophobia, and these interfere with his everyday existence.

36. At the start of the hearing, Mr Maroulis stated that he had noticed himself developing agoraphobic symptoms because he felt more comfortable being at home. He said he was becoming housebound because he may have an accident if he went out.

37. Asked by the Tribunal if he had been diagnosed with agoraphobia as it did not appear to be the case from his medical evidence, Mr Maroulis said he thought the doctors had put that down. The Tribunal reflected its understanding that Mr Maroulis’ fear of going out was part of his anxiety. Mr Maroulis then confirmed there was no separate diagnosis of agoraphobia or claustrophobia. He said he has agoraphobia because he feels uncomfortable going out and would rather stay home where he is safe. He said he can’t go on public transport because he feels closed in. He added that he was unsteady on his feet on the few occasions he took a bus in the past, on one occasion falling which also caused a phobia. He reiterated that he definitely has agoraphobia.

38. Mr Maroulis made a new claim in the hearing, stating he was developing social phobia because he didn’t feel comfortable with people around him. The Tribunal did not observe any discomfort from Mr Maroulis in interacting in the hearing or being with Ms Lulic and he did not express any. He gave evidence at the hearing of going to sometimes very large gatherings at church and funerals and did not identify experiencing social anxiety in these settings. He spoke of his positive interactions with his treating practitioners, their administrative staff and members of the church and Greek community.

39. I do not find Mr Maroulis’ evidence on these matters to be compelling. I find that Mr Maroulis has no diagnosis of claustrophobia, agoraphobia or social phobia. I have accepted above that Mr Maroulis experiences impairments in his willingness to engage with others and difficulties in leaving the house arising from depression, anxiety and OCD. I do not accept he has any impairments to which the conditions of agoraphobia, claustrophobia or social phobia are specifically attributable.

    Psychosocial impairments arising from hoarding disorder

40. Dr Giardini states in March 2022 that Mr Maroulis also has a Hoarding Disorder, basing his diagnosis on information given to him by Ms Lulic that Mr Maroulis’ home is highly cluttered and unsanitary[41]. As expressed above, I do not place weight on the evidence of Ms Lulic. Given Dr Giardini cites no other basis for his conclusion other than a hoarding disorder can be associated with OCD, I have concerns about the reliability of this diagnosis.  

    [41] JTB, 35

41. Mr Maroulis did not appear to press the diagnosis in the hearing.

42. Dr Giardini reports that at the time of this diagnosis, Mr Maroulis was residing in his late mother’s house, who had been living with dementia[42]. There is no information as to whether Dr Giardini or Ms Lulic inquired into whether the hoarding was being done by Mr Maroulis’ late mother.

    [42] TB, 35

43. In March 2024, Mr Burgoyne reports Mr Maroulis “is disorganised and his home is cluttered and not clean[43]…. His Obsessive-Compulsive disorder has led to hoarding in the past however due to his limited financial resources at present this is limited”.[44]  Photos attached to the report indicate some untidiness and uncleanliness.

    [43] JTB, 139

    [44] JTB, 140

44. Ms Tsoi reports in January 2025 that Mr Maroulis’ home is unclean and untidy. She does not comment on hoarding.

45. The Respondent has referred the Tribunal and the Applicant to expert guidelines from the American Psychiatric Association on treating OCD[45]. These identify hoarding as a part of a symptomatology of “scrupulosity, perfectionism and preoccupation with rules and order” and to be differentiated as a psychiatric disorder from “the obsessions, compulsions and rituals of OCD”[46]. The evidence before the Tribunal does not indicate Mr Maroulis’ experiences or expresses these symptoms. 

    [45] Treating Obsessive-Compulsive Disorder: A Quick Reference Guide, undated, JTB, E36, 1773-1790

    [46] JTB, 1779

46. On the limited evidence before the Tribunal, I am not satisfied that Mr Maroulis has an impairment to which a hoarding disorder is attributable.

    Cognitive impairment arising from psychosocial impairment

47. Neither Dr Zuvela nor Mr Maroulis specifically identified cognitive impairment in the access request form. It is not mentioned in either the Access or Internal Review decision or in the Tribunal Application.

48. Dr Giardini does however mention “cognitive difficulties” in his March 2022 letter to support the access request. He describes Mr Maroulis as having great difficulty maintaining concentration on things because of depression and stress, being frequently forgetful and having poor-short-term memory[47]. In his December 2022 report, Dr Giardini refers to Mr Maroulis as feeling greatly overwhelmed by his many current life problems and as having a tendency to be paralysed in decision-making, of struggling with severe indecisiveness and a “negative cycle of not bothering to make plans to solve his problems”[48].

    [47] JTB, 6

    [48] JTB, 14-15

49. Dr Zuvela in his September 2023 report states Mr Maroulis’ anxiety and depression result in cognitive and intellectual impairment[49].

    [49] JTB, 105

1. Mr Maroulis does not identify cognitive difficulties in his August 2023 or January 2025 statements.

2. Mr Maroulis was identified by Mr Burgoyne as having a mild cognitive impairment based on his score in the Montreal Cognitive Assessment (MoCA), which Mr Burgoyne states “is a widely used tool designed to detect mild cognitive impairment (MCA)[50]. He notes Mr Maroulis as scoring full marks with naming, abstraction and orientation but as having difficulties with memory, language, attention and executive functioning.

   [50] JTB, 138

3. Ms Tsoi also identified Mr Maroulis as having a mild cognitive impairment[51]. She clarified at hearing this was due to him not being able to recall all of five specified words in a Saint Louis University Mental Status (SLUMS) test, which she describes as a brief assessment tool for people with mild cognitive impairment[52].

   [51] JTB, 127

   [52] JTB, 127

4. In her report as qualified at the hearing Ms Tsoi observed that Mr Maroulis has poor attention and concentration. She deduced that he has poor working memory, planning and problem solving and that his overall cognition is impacted by his mental health symptoms[53].

   [53] JTB, 118

5. Ms Tsoi attributes her findings to Mr Maroulis’ mental health conditions, multiple concussions and transient ischemic attacks (TIA) and poor sleep[54]. She said that his concussions led to memory loss, diminished concentration and overall diminished cognitive performance. She acknowledged, however, that she did not form an understanding of when he had a concussion. She qualified that in her opinion, Mr Maroulis’ mental health would be the most significant reason for her observations of cognitive impairment.

   [54] JTB, 122

6. Based on the above medical and clinical evidence, I accept that Mr Maroulis has a mild cognitive impairment to which a psychosocial disability is attributable. There is insufficient evidence for me to be satisfied Mr Maroulis has an intellectual impairment. For the reasons below, I am not satisfied he has a cognitive impairment arising from acquired brain injury ABI, TIA, or concussion.

   Cognitive impairments: acquired brain injury (ABI), transient ischemic attacks (TIA), concussion syndrome and cerebrovascular disease

7. Claims of having impairment arising from ABI, TIA and concussion do not appear in the documents before the Tribunal until Ms Tsoi’s January 2025 report.

8. In his evidence in chief, Mr Maroulis told the Tribunal there was something wrong with his head as it seems to shut down. He said he had to see a neurologist. He claimed he had had a few mini strokes. He went to bed recently thinking he might have had a stroke.

9. In cross examination, Mr Maroulis was asked to confirm that he was booked in for a neurological assessment. He stated that he was but he did not know when as he needed to pay $500 out of his own pocket and he could not afford that. His GP told him it would be 18 months to two years for an assessment in the public hospital system so he hopes he can slowly save from his pension.  He said his referral was because he is having problems with his memory and everything becomes like a fog. He said he had had many falls and has balance problems. He agreed with Counsel’s assertion that because of his cognitive symptoms his GP decided it would be appropriate for him to be assessed by a neurologist.

10. The Tribunal does not accept that Mr Maroulis has been referred or booked for a neurological assessment. The Tribunal is of the view that this exchange arose from a misunderstanding by Counsel for the Agency and Mr Maroulis simply agreeing with the proposition and then being deliberately vague about when any such assessment might take place. There are no references in the JTB to Mr Maroulis having been referred to a neurologist.

11. Mr Maroulis stated at hearing that he was diagnosed with an ABI when he had a car accident and was referred to the Royal Adelaide Hospital (RAH). Mr Maroulis did not provide the Tribunal with records associated with an admission to the RAH. Mr Maroulis then explained that he was told at the hospital that the blood vessels in his brain are thin, they could burst if he did anything strenuous and he would have a seizure or stroke. He said he was now fearful of strenuous activity. He was not sure if this was written down anywhere.

12. Dr Zuvela’s October 2024 Medical History Summary records a diagnosis of Cerebrovascular disease or “CVA”.

13. Mr Burgoyne records Mr Maroulis as having told him that he had ‘had a brain scan which showed narrow blood vessels in the brain and was advised not to do weights’[55] Mr Maroulis repeated this on a number of occasions at the hearing and stated that is what his diagnosis of CVA relates to.

    [55] JTB, 166

14. Mr Maroulis has not been diagnosed with an ABI or stroke, including TIA. The Tribunal notes that a stroke is a life-threatening event and that Mr Maroulis is very focused on his health. I consider it highly unlikely that if Mr Maroulis had been so diagnosed that he would have failed to produce relevant medical records to the Tribunal.

15. Mr stated that he probably had a concussion syndrome, like a lot of footballers, as he has fallen a number of times. He did not know if there was a diagnosis, but he remembered “them” saying that to him when he had a car accident.  Mr Maroulis clarified the accident occurred in winter 2023. He said he had a second accident in late 2023. Mr Maroulis said there were no compensation proceedings as the doctor advised him against it. He said he had a number of falls prior to the car accidents where he hit his head.

16. The Tribunal accepts that Mr Maroulis has had a number of car accidents based on the reports of Dr Giardini and Mr Burgoyne and explained further by Mr Maroulis at the hearing. However, the Tribunal has no medical or clinical evidence that one or more of these accidents resulted in Mr Maroulis acquiring a brain injury.

17. The Tribunal also has no medical or clinical evidence supporting Mr Maroulis’ claim that he experiences cognitive or other impairments from CVA or that he has had concussion syndrome from one or more falls or car accidents.

18. In the absence of further evidence that corroborate his accounts, I consider his claims to experience cognitive impairment arising from an ABI, concussion syndrome or TIA, to be speculative. I am not satisfied he experiences cognitive or other impairment to which acquired brain injury (ABI), transient ischemic attack (TIA), concussion syndrome and cerebrovascular disease are attributable.

    Cognitive or sensory impairment – Bells Palsy

19. At the hearing, Mr Maroulis recounted the circumstances leading to his diagnosis of Bells Palsy. The Tribunal accepts on the basis of Dr Zuvela’s records that Mr Maroulis was diagnosed with the condition. Mr Maroulis did not specify when the event occurred other than it was while he was working as a psychologist. Noting Mr Maroulis ceased practicing as a psychologist in 2019, the Tribunal accepts that in 2019 or earlier he was diagnosed with Bells Palsy.

20. Mr Maroulis’ evidence about the consequences of Bells Palsy is vague and contradictory. During his account he variously stated that Bells Palsy was and was not a type of stroke. As I note above, there is no mention by Dr Zuvela of Mr Maroulis having had a stroke.

21. Mr Maroulis’ oral testimony was that he still suffers from symptoms of Bells Palsy and that was all he could say about it. Mr Maroulis made a passing inference that those symptoms concerned his speech. He did not elaborate and the Tribunal otherwise has no evidence that Mr Maroulis experiences sensory impairment related specifically to his speech. There are some very broad and speculative references in Ms Tsoi’s report that Mr Maroulis has difficulties with swallowing and chewing due to abnormal noises.

22. The Tribunal finds there is no connection between his Bells Palsy diagnosis, which it accepts, and the impairments he has claimed in these proceedings.

23. The Tribunal is not satisfied on the evidence that Mr Maroulis has impairments arising from Bells Palsy.

    Sensory - Vision

24. Mr Maroulis has consistently claimed that his vision is impaired. His evidence and the evidence of his treating professionals as to the underlying medical cause or causes and the nature of such impairment is, however, significantly limited, inconsistent and contradictory.

25. Mr Maroulis variously claims his vision impairment is due to glaucoma, cataracts and/or intraoccular lens dislocation.

26. In its internal review decision, the Agency found Mr Maroulis to have a sensory disability attributable to his condition of glaucoma[56] in apparent reliance on the letters from Dr Giardini available at that time. That decision does not mention cataracts or dislocated intraocular lens however.

    [56] JTB, 20

27. The Agency in its SFIC does not express a view on whether Mr Maroulis has a disability attributable to vision impairment but notes Dr Giardini’s reports that Mr Maroulis lives with bilateral severe glaucoma[57]. I note their submission that Mr Maroulis provided no evidence from a relevant medical specialist such as an ophthalmologist or optometrist.

    [57] March 2022 and October 2023

28. Vision impairment is not identified by Dr Zuvela in the access request form as a disability. Mr Maroulis identifies visual impairment as his 5^th disability in the access request, and attributes it to cataract surgery and dislocated intraocular lens. He does not attribute the impairment to glaucoma.

29. Dr Zuvela does not identify visual impairment as one of Mr Maroulis’ disabilities in his September 2023 report.

30. Mr Maroulis in his January 2025 statement claims as his impairment, failing eyesight from glaucoma and that he has had surgical treatment for glaucoma. He claims to have a cataract that can no longer be operated on and cannot be improved and that he needs a biannual optometry clearance to drive because of both these conditions.

31. Mr Maroulis wore optical glasses from time to time at the hearing and identified these as prescription reading glasses. He said he also wore glasses for distance vision. He reported the same to Ms Tsoi. She observed him to be wearing sunglasses indoors in response to glare in his living room[58] and concluded he is “vision impaired, sensitivity to light”[59].

    [58] JTB p 122

    [59] JTB 0118 and oral evidence

32. Mr Maroulis stated at the hearing that he has been diagnosed with glaucoma and that he had two major surgeries on both eyes and many laser treatments. He said the requirement for the driving clearance arises from his glaucoma and that all possible treatment for glaucoma has been exhausted. He said that his glaucoma was caused by a strike to one eye during an assault upon him by strangers. Mr Maroulis said his GP Dr Zuvela asks him about this glaucoma in their fortnightly appointments. He stated that there’s a high likelihood he will be blind down the track.

33. At hearing, Mr Maroulis said he has had cataract extractions, one on his better left eye and three to date on his right eye because the replacement lens kept coming out. He said he may need another, and fourth, surgery on his right eye.

34. He said he needs glasses for close-up and distance and needs to wear sunglasses[60].

    [60] JTB, 35, 37, 44, 46, 107

35. Mr Maroulis did not provide the Tribunal with copies of his current or past drivers’ licence or of current or past optometry clearances, other assessments or treatment records. This is despite his claim of seeing an optometrist once a month. He provided no records from an ophthalmologist despite claiming the professor who treated him is of great renown.

36. There are only passing references to glaucoma in his documentary evidence in the reports of Dr Giardini and Ms Tsoi. Poor vision is not mentioned in Mr Burgoyne’s assessment. Dr Giardini is a psychiatrist and provides no explanation as to the basis for this statement and did not give evidence at the hearing. There is also an inconsistency between Dr Giardini’s statement that Mr Maroulis cannot do grocery shopping and house cleaning due to poor eyesight[61], and Mr Maroulis attributing in his written statements the difficulties of grocery shopping to his anxiety around leaving the house[62] and difficulties with housework to limited mobility and problems with balance[63].

    [61] JTB, 36, 27-28

    [62] JTB, 110

    [63] JTB, 27

37. The only reliable medical evidence before the Tribunal regarding impaired vision are two, one-page “medical history” records from Dr Zuvela, the most recent of which dated 26 October 2024 notes as part of Mr Maroulis’ “past history” that he has had cataract surgery which resulted in a dislocated intraocular lens, and that he also had “visual impairment”. There is no statement of being diagnosed with or receiving surgery for glaucoma in Mr Maroulis’ medical histories and there is no evidence before the Tribunal that his prescribed medications form part of treatment for any vision impairment and associated causes.

38. I accept that Mr Maroulis wears glasses for near and distance vision. Mr Maroulis said at the hearing that his eyesight became misaligned from the cataract surgery and his glasses are prescribed to correct that misalignment. He also said his problems with his eyes started when he was struck in the eye.

39. I am unable to overcome the disparity between the extent of the treatment and assessment claimed by Mr Maroulis regarding glaucoma, and the absence of supporting medical evidence. I am unable to reconcile Mr Maroulis’ claims to be asked about his glaucoma by Dr Zuvela every fortnight with there being no mention by Dr Zuvela of glaucoma in his reports and records. Dr Zuvela reports that he has been Mr Maroulis’ GP since approximately August 2020[64]. I am unable to reconcile the apparent inconsistency in Mr Maroulis’ evidence that his glaucoma is bilateral and that it resulted from him being struck in one eye; that glaucoma is the sole basis for his driving clearance and that he needs the clearance due to both glaucoma and cataracts. Neither Dr Zuvela nor Mr Maroulis identified glaucoma as a cause of visual impairment in the access request form, however Mr Maroulis did identify cataracts. Further, the evidence before the Tribunal that Mr Maroulis has a visual impairment is consistent with a finding that impairment arises from cataracts and an unsuccessful treatment of the right eye to date.

    [64] JTB, 55

40. Considering all the evidence, I am not satisfied Mr Maroulis has impaired vision arising from glaucoma.

41. I am satisfied Mr Maroulis has a disability attributable to the sensory impairment of a loss of vision arising from cataracts and cataract treatment.

    Physical impairment: Overview

42. The Tribunal observes that Mr Maroulis’ claimed physical conditions and impairments are the most challenging to assess due to the insufficiency of reliable evidence before the Tribunal.

43. I am satisfied that Mr Maroulis has physical impairments of reduced mobility, as well as reduced balance, strength and endurance. I am also satisfied these physical impairments cause him pain or are exacerbated by pain.

44. Importantly, I find it is not possible to define the impairments with any further precision. I accept the Agency’s submission there is insufficient evidence to attribute these impairments to specific organic causes or diagnoses. This is substantially because there is no expert medical or clinical evidence before the Tribunal from any professional diagnosing or treating Mr Maroulis for a physical condition. This includes physiotherapy and chiropractic treatment he told the Tribunal he had been receiving for several years.

45. I address below each of the medical conditions of a physical nature that Mr Maroulis claims he has been diagnosed with and make findings as to whether I accept them. I then address the evidence provided by Ms Tsoi and Mr Burgoyne concerning Mr Maroulis’ mobility, balance, strength and pain.

46. Broadly, I find that Mr Maroulis has self-diagnosed several medical conditions which are not substantiated. Nonetheless, on considering also the evidence of Ms Tsoi and Mr Burgoyne, I accept in some instances that he does experience pain or reduced mobility in the areas of the body the diagnosis ordinarily relates to. In other instances, I accept the medical diagnosis but am unable to draw reliable conclusions about their contribution, if any, to the accepted impairments.

    Morbid obesity

47. Mr Maroulis consistently claimed in his documents and at the hearing to have been diagnosed with morbid obesity and Dr Zuvela’s records confirm this diagnoses since at least August 2022. Mr Maroulis did not expressly connect his morbid obesity to his impairments.

48. I am satisfied Mr Maroulis has a medical diagnosis of morbid obesity but am unable to attribute an impairment to it.  

    Gout

49. Mr Maroulis consistently claimed in his documents and at the hearing to have been diagnosed with gout. Dr Zuvela’s records confirm the diagnosis since at least August 2022. Mr Maroulis stated at the hearing he has had gout for many years and that if he misses his medication for two or three days he can hardly walk from the pain in his feet and toes.

50. I am satisfied Mr Maroulis has a medical diagnosis of gout which impairs his mobility and causes pain if he does not take his prescribed medication.

    Bilateral knee pain

51. Mr Maroulis claims in his January 2025 statement that he has a “health impairments” of bilateral knee pain and occasional sciatica. He also reported bilateral knee pain and sciatica as diagnosed conditions to Ms Tsoi[65].  

    [65] JTB, 114

52. In her oral evidence, Ms Tsoi indicated that she was unable to recall whether her reference to Mr Maroulis experiencing severe pain in his legs in her report[66] concerned his reported osteoarthritis, knee pain or something else. She revised her evidence to say leg pain was only reported to her by Mr Maroulis and not clinically observed. The Tribunal concludes that Ms Tsoi’s evidence on Mr Maroulis’s knee and leg pain is unreliable and places no weight upon it. There is no other relevant medical or clinical evidence of this specific impairment before the Tribunal.

    [66] JTB, 118

53. Asked by the Tribunal about the treatment he receives for bilateral knee pain, Mr Maroulis said it was rest, analgesics, anti-inflamatories, ice packs and physiotherapy cream. He said that if it is really bad he sees Dr Zuvela and asks him what he can do to relieve the pain. He did not provide further information about the advice Dr Zuvela has given him, whether he has implemented it or whether he has been referred to a specialist.  

54. In cross-examination, Mr Maroulis said he had not mentioned his knee pain to Dr Zuvela because Dr Zuvela had earlier told him he was getting too many scans and too much radiation. He conceded the treatments he uses are self-prescribed.

55. Given the internal inconsistencies in his testimony, the self-administered nature of the claimed treatments and the absence of a diagnosis in Dr Zuvela’s notes, I am not satisfied Mr Maroulis has been diagnosed with knee pain or any conditions relating to his knees. I am not satisfied Mr Maroulis has an impairment arising from his knees.

    Sciatica

56. Sciatica is not mentioned in Dr Zuvela’s 2022 or 2024 medical history summaries. Under cross-examination, Mr Maroulis stated he had not raised his sciatica with Dr Zuvela. He said it had been diagnosed by a previous GP who had referred him to a radiologist. This led him to believe that the sciatica would be treated by a procedure that could result in paralysis.

57. I am not satisfied that Mr Maroulis has a diagnosis of sciatica or that he has any impairment arising from sciatica.

    Bilateral shoulder bursitis

58. Bilateral shoulder bursitis is not mentioned in Dr Zuvela’s medical history summaries.

59. In his 2023 statement, Mr Maroulis states that he takes a long time to put clothes on the line because of bilateral shoulder bursitis. He does not identify any other activities as being impacted. He identifies bilateral shoulder bursitis as a “health impairment” in his January 2025 statement and it appears as a diagnosed condition in Ms Tsoi’s report.

60. Ms Tsoi reports in January 2025 that she observed Mr Maroulis as having a limited range of movement in his shoulders. She explained at the hearing that Mr Maroulis had demonstrated during his assessment an inability to move his elbow above 90 degrees. Mr Maroulis told her he has bursitis and is having difficulty removing his top. In cross-examination, Ms Tsoi acknowledged that if Mr Maroulis spontaneously moved his arm to the side or gestured above his head that would not be consistent with what Mr Maroulis told her.

1. Mr Burgoyne clarified at hearing that the references to bilateral shoulder bursitis in his report are only based on reports from Mr Maroulis. He said that Mr Maroulis exhibited a slight loss in his range of movement in his shoulders and reported shoulder pain.

2. Mr Maroulis told the Tribunal he had been referred for shoulder bursitis treatment by Dr Zuvela to at least two physiotherapists, who he did not name, and one chiropractor, Professor Tony Fotopolous. Dr Zuvela has also prescribed anti-inflammatories or pain medication for his shoulders. He stated he saw the practitioners Dr Zuvela referred him to. The Tribunal observes that Dr Zuvela has recorded prescriptions of Panamax, which is paracetamol and an analgesic, but not anti-inflammatories.  

3. Mr Maroulis struggled in the hearing to recall when he commenced physiotherapy for his bursitis. In these moments, he gestured his right arm forwards twice at head height, as he was signalling that one of the physiotherapists was located opposite the GP surgery. There was no indication from Mr Maroulis either in his face or verbally that these movements caused pain or even discomfort. The Tribunal observed him to be moving freely and quickly. He made similar gestures when giving evidence about going to church and signalling the layout of the seating in the church and when talking about his eyesight under cross-examination. He frequently placed his hands on his head throughout the hearing.

4. Mr Maroulis could recall only that he first saw the physiotherapists before he made his access request. He once saw a physio in one of the public hospitals and had not been to physio opposite the GP practice for a while. He preferred to see the Chiropractor as he found it more helpful for those parts of his body where he has a lot of pain. Mr Maroulis said the physiotherapy and chiropractic treatment he receives for his bursitis is the same as what he receives for his sciatica.

5. The Tribunal considers that when given the opportunity, Mr Maroulis was unable to provide the Tribunal with any meaningful information about his shoulder bursitis. Based on Ms Tsoi’s evidence, I find his demonstrated range of shoulder movement in the hearing to be contrary to a diagnosis of shoulder bursitis

6. I am not satisfied Mr Maroulis has been diagnosed with bilateral shoulder bursitis or an impairment to which bilateral shoulder bursitis is attributable. I accept however that Mr Maroulis has impairments of a slight loss of range of movement and pain in his shoulders.

   Chronic discogenic lumbar back pain, spondylosis, and osteoarthritis of the left hip

7. In the access request form, Dr Zuvela identifies discogenic lumbar back pain as Mr Maroulis’ second of only two disabilities and he references the same diagnosis in the August 2022 and October 2024 medical history summaries.

8. Dr Zuvela does not identify Mr Maroulis’ mobility as being impacted by any impairment in the access request. In his September 2023 report, Dr Zuvela states Mr Maroulis’ mobility is “significantly impaired by other medical issues” but does not elaborate[67]. The Tribunal has no further information from Dr Zuvela about this discrepancy in his reports.

   [67] JTB, 105

9. Dr Zuvela identifies in August 2022 and October 2024 that Mr Maroulis has a diagnosis of spondylosis, and in October 2024, arthritis of the left hip.

10. Mr Burgoyne reports that Mr Maroulis complained about his lower back, spine and hips during the functional assessment.  

11. Mr Maroulis claims he has been diagnosed with osteoarthritis. He explained at the hearing that whilst this is especially in his left hip it is throughout his body. Mr Maroulis did not provide evidence to the Tribunal that he has arthritis other than in his spine and left hip.

12. I accept Mr Maroulis has diagnoses of disc deterioration in his lumbar spine and osteoarthritis of the spine and left hip. I accept Mr Maroulis has impaired mobility and pain from these conditions.

    Bulging cervical spine disc

13. In his January 2025 statement, Mr Maroulis claims he has been diagnosed with a bulging cervical spine disc. At the hearing, he confirmed he had provided the Tribunal with no medical evidence to confirm this diagnosis.

14. I am not satisfied Mr Maroulis has a diagnosis of bulging cervical spine disc or any impairments arising from this condition.

    Left fractured scaphoid

15. Mr Maroulis did not raise his left fractured scaphoid as a cause of impairment until the hearing, where he stated only that it still causes him a lot of problems. From the medical summaries of Dr Zuvela, I am satisfied Mr Maroulis was so diagnosed in 2015. I am not satisfied on the very limited information available that he has any impairments from this previous condition.

    Falls

16. Mr Maroulis made numerous claims at the hearing to have fallen. He also reported to Ms Tsoi that he had fallen on many occasions. Given the prevalence of these claims I deal with them separately here. Mr Maroulis is not recorded as having reported falls to Dr Zuvela, Dr Giardini or Mr Burgoyne.

17. Ms Tsoi reports Mr Maroulis has fallen on average three times a month, has suffered head injuries, fractures and concussion syndrome from falling and was hospitalised after falls[68]. I have not been satisfied that Mr Maroulis has been diagnosed with concussion syndrome. In her oral evidence, Ms Tsoi clarified Mr Maroulis’ fear of falling was reported to her, and not observed[69].

    [68] JTB, 119

    [69] JTB, 118

18. Mr Maroulis’ claims in the hearing to have fallen include the following:

    ·he uses walking sticks because he has balance problems and has fallen a few times

    ·he has had a few falls wherever he is

    ·he’s fallen a lot of times in the bathroom, in the kitchen, in the back garden of his current residence and even out on the street

    ·he fell on the bus on one occasion, causing a sort of phobia

    ·he has fallen a few times on the steps of the GP surgery. The problem was not the steps. He just loses balance and it is unpredictable, even though it is flat, and a lot of people have to help him

    ·at the GP Surgery, psychiatrist’s and chiropractor’s rooms the secretaries see him arriving and go out to help him into the clinic

    ·at the church, the volunteers and funeral staff see him arriving and help him into the church.

19. The Tribunal has not been presented with any hospital admission records and has no medical notes that record Mr Maroulis as having fallen. Dr Zuvela’s reports do not mention falls despite claims of multiple occurrences. In Mr Maroulis’ accounts of falls, he provided no persuasive details beyond the location in which he fell. He provided no information about how the fall came to occur, when it occurred, who was there, what he did afterwards or how it made him feel. I have concluded above that Mr Maroulis misled Ms Tsoi to obtain a more favourable functional capacity assessment and have rejected his claims to have been diagnosed with concussion syndrome.

20. For these reasons, I do not find his claims to have fallen compelling and I am not satisfied any are true. I am not satisfied Mr Maroulis has impairments arising from falls.

    Balance, mobility and pain

21. Ms Tsoi told the Tribunal she observed poor balance and pain to be Mr Maroulis’ two main impairments. She records observing poor mobility, balance, strength and endurance in her report[70]. She observed him mobilising with two walking sticks[71].

    [70] JTB, 118, 119

    [71] JTB, 119

22. Ms Tsoi agreed that Mr Maroulis lives a very sedentary lifestyle and explained that he is not able to walk a very long distance without pausing. That tells her his strength and endurance are reduced. Ms Tsoi said that she did not have the expertise to diagnose the cause of these impairments. She summarised that pain is self-reported.

23. Mr Burgoyne observed Mr Maroulis mobilising around his house and yard using a single point walking stick. He observed Mr Maroulis to be independent in his transfers. He observed Mr Maroulis as having difficulty with uneven surfaces and as needing frequent short rest breaks of standing for less than one minute[72]. Mr Burgoyne refers to Mr Maroulis as having “physical issues” [73] and states these appear to stem from two separate motor vehicle accidents. Mr Maroulis reported to Mr Burgoyne he has osteoarthritis in both hips caused by two motor vehicle accidents and that he is on the public waiting list for hip replacements[74].

    [72] JTB 144-145

    [73] JTB, 137

    [74] JTB, 146

24. Mr Burgoyne opines that Mr Maroulis has become sedentary and deconditioned, in some part through avoidance, and that those physical issues could contribute to his depression.

25. Mr Burgoyne does not report any other specific observations of impaired mobility but states in broad terms that “Mr Maroulis is having difficulties across his whole body due to decondition and self-limiting beliefs”[75].

    [75] JTB, 146

26. Mr Maroulis reports difficulties with walking, balance and pain throughout his evidence. He confirmed at hearing that he had two car accidents and that he sees mainly a chiropractor to manage his pain as well as by taking anti-inflammatories and applying physiotherapy cream and ice packs.

27. The Tribunal accepts Mr Maroulis has impairments of reduced mobility, balance, strength and endurance. It accepts Mr Maroulis has an impairment of pain. Although pain could be considered a neurological or sensory impairment, there is no information before the Tribunal to suggest that Mr Maroulis’ pain arises from anything other than the physical impairments the Tribunal has accepted. For this reason, I consider it as part of those impairments in addressing the question of permanency.

    Other conditions

28. Mr Maroulis put forward other medical conditions as relevant to the proceedings. Whilst I accept these diagnoses have been made, Mr Maroulis did not identify an impairment arising from them, either his own evidence or through the reports of his treating and diagnostic professionals. Accordingly, I am not satisfied he has impairments attributable to the following medical conditions: Vitamin D deficiency, hypertension, hypercholesterolemia, and chronic asthma.

    Conclusions on disability

29. I am satisfied Mr Maroulis has a disability attributable to the psychosocial, cognitive, sensory and physical impairments I have accepted above.

30. Accordingly, Mr Maroulis satisfies the disability criteria in section 24(1)(a) and section 25(1)(a) of the NDIS Act.

31. The next question is whether these impairments are permanent.

    Section 24(1)(b): Are Mr Maroulis’ impairments permanent or likely to be permanent?

    When will an impairment be considered permanent?

32. Access Rules 5.4 to 5.7 set out the mandatory criteria for determining permanency of an impairment. Of particular relevance are rules 5.4, 5.6 and 5.7:

    ·5.4 An impairment is, or is likely to be, permanent only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.

    ·5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).

    ·5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.

33. The courts have said that rules, 5.4 and 5.6 in practice prescribe mandatory exclusionary circumstances which, if met, require the Tribunal to conclude that the impairment is not permanent[76].   

    [76] Davis, at [73]-[75]

34. As to the adjectives in rule 5.4:

    (a)the word ‘remedy’ “should be understood to mean something approaching a removal or cure of the impairment”[77]

    (b)the word ‘known’ connotes a treatment which can be identified by Australian medical practitioners as a suitable treatment for the person’s particular impairment”[78]

    (c)the word “appropriate” “connotes a treatment which has a capacity to “remedy” the impairment and is suitable for the particular individual concerned to undergo”[79]

    (d)the word “available” “should be understood as directed at what treatments an individual can, in reality, access”[80].

    [77] Davis, at [136]

    [78] Davis, at [137]

    [79] Davis, at [137]

    [80] Davis, at [138]

35. List B in the Access Guideline states the conditions the Agency accepts as likely to result in permanent impairment. I note that none of the conditions I have accepted are on List B.

36. In relation to whether an impairment is likely to be permanent, the Access Guideline reflects the jurisprudence and relevantly state:

    ·We need to know whether your impairments are enduring so that you require NDIS supports on an ongoing basis.

    ·We will focus on your impairments, and not on the cause of your impairments, or your diagnoses.

    ·Even when your condition or diagnosis is permanent, we’ll check if your impairment is permanent too. For example, you may not be eligible if your impairment is temporary, or if there are known, available and appropriate evidence-based clinical, medical or other remaining treatments options that are likely to remedy the impairment.

    ·Generally, we’ll consider whether your impairment is likely to be permanent if all available and appropriate treatment options are pursued.

    ·Your impairment will likely be permanent if your treating professional tells us there are no further treatments that could remedy it.

    ·Your treating professional will tell us or be asked to certify if there are medical, clinical or other treatments that are likely to remedy your impairment. We need to understand whether there are treatments that are:

    o    known – the treatment can be identified by an Australian medical practitioner as a suitable treatment for your impairment

    o    available to you – we need to take account of whether there are genuine barriers that prevent you from accessing treatment including, but not limited to, the nature of your impairment and your ability to access treatment

    o    appropriate for you and your impairment – we need to consider whether the treatment could remedy your impairment and is suitable and safe for you to undergo. Your ability to undergo treatment will be assessed according to your capabilities, your health and other personal circumstances, including your living arrangements

    o    evidence-based – there’s proof the treatment is likely to be effective.

    ·When we look at what treatments are available to you, we think about whether the treatment is suitable for your personal situation. The word treatment should be understood in a broadest sense and may include changes to your diet and lifestyle.

    ·If you’re still undergoing or have recently had treatment, we may not be sure you have a permanent impairment if that treatment could remedy the impairment.

    ·In some situations, it may be clear your impairment is likely to be permanent while you’re still undergoing treatment or rehabilitation. For example, you may still need treatment and rehabilitation for a spinal cord injury, but it’s clear you are likely to have a permanent impairment.

    Assessment of permanency: overview

37. Before assessing permanency in detail below, I make a number of preliminary observations.

38. The Agency does not accept that any of Mr Maroulis’ impairments are permanent. The Agency accepts that he has undergone some treatment for his psychosocial impairments but argues there is insufficient evidence for Mr Maroulis to overcome Rule 5.4[81]. The Agency contends that in relation to sensory and physical impairments the evidence available regarding treatments undertaken is negligible and that these impairments are excluded under Rules 5.4 and 5.6.

    [81] JTB, 9

39. I note that the focus of Rule 5.4 and 5.6 is on medical and clinical treatment. They require the Tribunal to consider what treatment is available and suitable and the likely outcomes of Mr Maroulis undertaking it. Both rules clearly indicate that consideration of the treatment Mr Maroulis has had to date for his impairments is integral to these issues and overcoming these threshold exclusions in these Rules. This is further emphasised by the references to the importance of information from treating professionals in the above policy positions and extracts from the Access Guidelines. It is particularly important to rule 5.6 which focuses on whether “further” medical treatment or review is required. This reflects the intention in the disability and early intervention requirements that prospective participants should have undertaken at least some treatment for their impairments before being given access to the NDIS.

40. It follows it will be difficult for the Tribunal to be positively satisfied the statutory thresholds are met for Mr Maroulis’ vision and physical impairments for which Mr Maroulis has provided no expert evidence as to his treatment to date.

41. This is compounded by Ms Tsoi not addressing treatments to physical impairments to date and the potential effectiveness of possible future interventions in her report. The latter is addressed in Mr Burgoyne’s report which as I have found above, Ms Tsoi determined she did not need to consider and respond to. The opinions of Mr Burgoyne, as I detail further below, are that further treatments are likely to lead to improved outcomes from Mr Maroulis.

42. Mr Maroulis did talk to the Tribunal about the effectiveness of some of the treatments he has received to date and some that have been considered and planned. However, there are the difficulties with the reliability of his evidence as discussed and reasoned above. I consider his relevant testimony below, including what he told the Tribunal about compliance with his prescribed treatments.

43. I note that both Mr Burgoyne and Ms Tsoi conclude that Mr Maroulis’ psychosocial impairments are a cause of his physical impairments. Mr Burgoyne opines that psychosocial and physical factors interact with each other. He opines that his psychological impairments contribute to his self-limiting behaviours. He explained that self-limiting behaviours involve limiting actions to avoid injury, pain or situations the person does not like.  This included a fear of pain. He opines that with mobility issues in particular and arthritis it is the not doing anything that worsens the physical impairments.

44. I accept these opinions. These are key issues in this case. If Mr Maroulis’ psychosocial impairments are not permanent and can be improved, this suggests to the Tribunal that Mr Maroulis’ physical impairments related to mobility cannot be permanent either.

45. I note that the requirements for permanency are the same for both the access and early intervention requirements. If I find that Mr Maroulis’ impairments are not permanent for the purpose of the access requirements, then he cannot meet the early intervention requirements.  

    Psychosocial disabilities – depression, anxiety and OCD – treatment overview

46. The Tribunal is satisfied from Dr Giardini’s three reports that Mr Maroulis has received treatment for his psychosocial disabilities from Dr Giardini and that treatment commenced in 2016 upon referral from Mr Maroulis’ then GP. The most recent report from Dr Giardini was written in October 2023, or 15 months prior to the hearing. The Tribunal has no independent evidence that Dr Giardini has continued to treat Mr Maroulis since then.  

47. The Tribunal has limited information about the duration, nature, extent and effectiveness of Dr Giardini’s treatment. Dr Giardini’s reports concentrate on his opinions as to the life circumstances that underpin Mr Maroulis’ psychosocial conditions and their impact upon him. Dr Giardini’s comments about the impacts seldom specify whether they are Dr Giardini’s conclusions based on clinical assessment or are repeating what Mr Maroulis has reported to him.

1. In March 2022, Dr Giardini states the following regarding treatment:

   ·Mr Maroulis was referred to him by his then GP in October 2016 with symptoms of stress, anxiety and depression   

   ·Mr Maroulis has been attending him for some time for treatment and supportive therapy.

   ·He is prescribing Mr Maroulis antidepressant medication.

   ·All avenues of treatment have been attempted without significant improvement.

   ·His psychiatric conditions are permanent.

2. The Tribunal does not place weight upon Dr Giardini’s explicit conclusions of permanency as this is a legal test.

3. In December 2022, Dr Giardini only repeats the above information regarding treatment.

4. In October 2023, Dr Giardini again repeats his statements from March 2022. He confirms he has been treating Mr Maroulis since October 2016. He adds only that all efforts in treating chronic Major Depression, anxiety and OCD have been exhausted.  

5. The Tribunal notes the lack of development of Dr Giardini’s expert evidence despite an 18 month period of treatment.

6. Beyond the above information, the Tribunal has no evidence from Dr Giardini as to the nature of the treatment including how frequently he has seen Mr Maroulis, the medication or medications he prescribed during that time, how he evaluated his treatment and how he responded to his evaluations.

7. The Agency submits, and I accept, that Dr Giardini’s reports lack relevant details in his treatment of Mr Maroulis as to:

   ·the use of therapeutic interventions that are commonly deployed to treat psychosocial impairments, as referenced in the Royal Australian and New Zealand College of Psychiatrists – Guidelines on mood disorder and Guidelines on the treatment of panic disorder, social anxiety disorder and generalised anxiety disorder in the JTB[82]

   ·the particular anti-depressants that have been trialled, explored or ruled out, if this has occurred

   ·whether other first and second line treatment options such as electroconvulsive therapy or transcranial magnetic stimulation have been explored

   [82] JTB, 1624 – 1661; JTB 1742 - 1752

8. Further, the Tribunal notes that Dr Giardini’s reports provide no information about Mr Maroulis’ engagement and compliance with the treatment that has been prescribed.

9. Dr Zuvela’s records from March 2022 and October 2024 confirm Mr Maroulis has been prescribed with Lexapro, which the Agency explained at the hearing is an SSRI-type antidepressant.

10. Ms Tsoi in January 2025 reports that Mr Maroulis is taking Eleva Sertraline and Dosulepin Viatris medication. At the hearing, Mr Maroulis produced a box of medication labelled “Eleva”. Mr Maroulis did not provide medical evidence about why Eleva and Dosulepin are prescribed.

11. Mr Maroulis’ written statements provide very limited information about his psychiatric treatment.

12. At the hearing, Mr Maroulis was asked questions by the Tribunal and the Agency about his medication generally and specifically for his psychiatric treatment. He was asked about his treatment by Dr Giardini.

13. Mr Maroulis said that until the last three years, he was not seeing Dr Giardini that regularly. Over these last three years, he has had approximately monthly appointments some of which take place over the phone. Dr Giardini asks questions during the appointment and then sends a prescription to the GP or pharmacy. Dr Giardini had given him prescriptions for depression and for anxiety, which includes the OCD. Mr Maroulis could not recall the name of his medication for depression and said he thought that Dr Zuvela had written it down.

14. Mr Maroulis stated that he texted Ms Tsoi a list of his current medications based on what he had at home. The Tribunal observes that Mr Maroulis gave Ms Tsoi a list of 19 medications in January 2025. Also in January 2025, Mr Maroulis submitted to the Tribunal that he relies on the list of nine medications in Dr Zuvela’s summary dated October 2024, some of which are not the same as those given to Ms Tsoi.

15. Asked whether he was compliant with his medication, Mr Maroulis stated that he did not want to get addicted to medication, especially for anxiety or depression or sleeping. He said he takes melatonin, which is a safe medication to take at night. He then appeared to correct himself, stating he was compliant with taking his medication other than occasionally forgetting to take it perhaps three times a month when he is tired.

16. Mr Maroulis was asked a series of questions by the Agency seeking to clarify the differences between his psychiatric medication as listed by Dr Zuvela and the list he gave to Ms Tsoi.  

17. Asked if he had recently changed his medication relating to depression, given Dr Zuvela records him as taking Lexapro whereas Ms Tsoi notes him as reporting to takes Sertraline, Mr Maroulis said that “when you are seeing two different doctors it gets confusing and these days when it comes to psychiatric medication he usually goes with the psychiatrist more now”.

18. Asked if he was saying that his medication had not changed between Dr Zuvela’s last Health Summary, in October 2024 and his appointment with Ms Tsoi, in January 2025, Mr Maroulis said he was not able to think at the moment.

19. Mr Maroulis said he gets confused and asked the Agency if Lexapro is for anxiety. Counsel replied that it is an SSRI. Mr Maroulis indicated that he was satisfied with Counsel’s response.

20. The Agency asked Mr Maroulis if he could remember when switched from Lexapro to Sertraline and how long he had been on the Sertraline. Mr Maroulis said he could not remember and gets confused these days about the length of the medication. He knew the psychiatrist had prescribed something for anxiety fairly recently but he wasn’t sure if he “put it in there”. Mr Maroulis could not remember the name of the medication. He said it was prescribed when he last saw the psychiatrist a few weeks ago, “whenever it was, I can’t remember exactly”.

21. Mr Maroulis said he was sure the medication was for anxiety. He asked Dr Giardini not to give him something strong because he did not want to get addicted to strong medications.  He then added that he mostly relied on the behavioural therapy for his treatment.

22. Earlier in the hearing, Mr Maroulis had given evidence indicating that he effectively self-manages his medication and is engaged in this part of his daily life. He arranges to have his prescriptions filled fortnightly. He explained that he had developed a system whereby he calls the pharmacy ahead so he does not have to wait as long. He takes an uber to and from the pharmacy.

23. Having considered the above in light of Mr Maroulis’ mild cognitive impairment impacting short term memory, my approach to his evidence in light of reliability and credibility concerns, the evidence below regarding his non-compliance with physiotherapy treatment I am not satisfied that he has given a reliable account of his treatment for anxiety, depression and OCD and his compliance with that treatment.

24. In note in particular the following:

    ·Mr Maroulis’ claims to be confused about his medication were not convincing. I find that he consciously sought to evade a reasonable series of questions to clarify discrepancies about his psychiatric medication that arise from the documentary evidence he has put forward to support his case.  

    ·Mr Maroulis’ statements that he has only recently been prescribed by Dr Giardini medication for anxiety and his documentary evidence that his medication has changed from Lexapro to Eleva and Dosulpein Viatris are inconsistent with Dr Giardini’s 2022 and 2023 reports that all avenues of treatment have been attempted.

    ·Mr Maroulis in response to an open question about compliance with medication, offered that he took melatonin instead of medication for anxiety and depression because he did not want to get addicted to these medications.

    ·His inability to recall whether his medication had recently changed, how long he had been on particular medication, the names of any of his psychiatric medications, when he last saw his psychiatrist, and not knowing what Lexapro is for cannot be solely attributed to his mild cognitive impairment and cannot be reconciled with his evidence that he is cautious about his medication and actively manages his treatments including by arranging to have his scripts filled fortnightly and by seeing Dr Zuvela fortnightly.

25. Considered with the limitations of Dr Giardini’s reports as reasoned above, I am not satisfied that there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy Mr Maroulis’ psychosocial impairments. I am not satisfied those impairments do not require further medical treatment or review in order for their permanency or likely permanency to be demonstrated.

26. Accordingly, I find that Mr Maroulis’ psychosocial impairments are not, nor are likely to be permanent.

    Cognitive impairment

27. Given my findings above that Mr Maroulis cognitive impairment is attributable to his psychosocial impairment and psychiatric conditions, it follows that I am not satisfied there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy Mr Maroulis’ cognitive impairment. I am also not satisfied this impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated.

28. Accordingly, I find that Mr Maroulis’ cognitive impairment is not, and is not likely to be, permanent.

    Sensory - Vision impairment

29. The Agency did not accept at internal review that Mr Maroulis has a permanent sensory impairment due to insufficient medical and clinical evidence regarding treatment[83]. It did not address his vision impairment in its statement of facts, issues and contentions.

    [83] JTB, 20-22

30. At the hearing, the Agency submitted the Tribunal could not on the available evidence assess the permanency of Mr Maroulis’ vision impairment or impact on his function and noted he has provided no evidence from a relevant medical specialist such as an ophthalmologist or optometrist. For the reasons below, I accept this submission.  

31. At hearing, Mr Maroulis said he has had cataract extractions, one on his better left eye and three to date on his right eye because the replacement lens kept coming out. He said he may need another, and fourth, surgery on his right eye. Mr Maroulis did not suggest this was not accessible to him.

32. He said he could not work because of his failing eyesight. The evidence before the Tribunal indicates however that Mr Maroulis was deregistered from his profession as a psychologist for a three-year period in 2019 for professional misconduct and that he has not worked since then because of the disqualification and his depression[84].

    [84] JTB, 35, 37, 44, 46, 107

33. Asked about his current treatment, Mr Maroulis said he sees an optometrist on average once a month and there was not much they can do other than make a lens; if it was bad they send him to different specialists, they check the pressure, monitor his condition, and may make him a new and stronger lens. Asked when he last saw an eye specialist, Mr Maroulis said it was before Christmas, and he has had concussions and forgets sometimes. I note that I have rejected Mr Maroulis’ claims to have concussion syndrome.

34. Mr Maroulis did not provide the Tribunal with copies of his current or past drivers’ licence or of current or past optometry clearances, other relevant specialist assessments or treatment records other than Dr Zuvela’s medical history summaries, which do not indicate his prescribed medications form part of treatment for cataracts.  

35. I have earlier accepted that the requirements on Mr Maroulis regarding the renewal of his drivers’ licence confirms the existence of a current visual impairment. That infers his current impairment is not insignificant. However, in and of itself, it does not give rise to a reliable conclusion about the permanence or likely permanence of the impairment.  

36. I accept that Mr Maroulis has been treated for cataracts and that one of those treatments resulted in the replacement lens in the right eye being dislocated, that this continues to cause impairment and that a fourth operation to attempt to correct the lens is being considered. I do not have sufficient evidence, however, about the impairment and the possible outcomes of further surgery to be positively satisfied either that there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy his visual impairment, or that no further medical treatment or review is required in order for its permanency or likely permanency to be demonstrated.

37. Accordingly, I am unable to be positively satisfied on the evidence that Mr Maroulis has a vision impairment that is, or is likely, to be permanent.

    Physical impairments

38. As noted above, Mr Maroulis provided no independent evidence about his treatment for his physical impairments. A significant part of the hearing was dedicated to obtaining information from him on this issue.

39. The Agency points to the lack of evidence in their statement of facts, issues and contentions. At the hearing, the Agency submitted that o

    ther than the osteoarthritis of the left hip, which is subject to hip replacement surgery, there is no clear cause for his physical impairments.  

    
    

    Without a way for the Tribunal to be satisfied as to the underlying condition and its permanency or have some other basis on which to assess the permanency of those particular issues, the Tribunal cannot be satisfied that the permanency requirements are met with respect to any of the physical impairments.

40. Mr Burgoyne opines in his report that Mr Maroulis’ physical impairments appear to stem from two separate motor vehicle accidents and deconditioning from his sedentary lifestyle. The accident had caused hip displacement and in general terms soft tissue injuries affecting his hips, spine and shoulders.

41. He clarified that this view came from what Mr Maroulis told him. Mr Burgoyne said he had not been given radiological information that would enable him to advance his opinion further. Mr Burgoyne opined that for fear of potentially hurting himself, Mr Maroulis has become sedentary. This in turn has led to deconditioning and an exacerbation of other ailments.

42. Ms Tsoi in her oral evidence agreed that Mr Maroulis lives a sedentary life and is significantly deconditioned. However, she could not say the extent to which this was the cause of his reduced mobility, balance, strength and endurance as the underlying causes would usually be diagnosed by a physiotherapist.

43. Mr Maroulis gave evidence at the hearing that the only surgical treatment he has sought for his physical impairments is hip replacement surgery. He has seen a surgeon in a public hospital and is now on the waiting list for hip surgery.

44. Mr Maroulis inferred that the surgery was not accessible to him because he was advised by the specialist to lose weight before the operation and to go swimming, to the gym and do hydrotherapy. He said Dr Zuvela referred him to a dietician. He stated that he attended one appointment which was a waste of time, because the advice concerned how to cook when he cannot cook and to reduce his intake of refined foods including bread when as a European bread is his staple diet.  He acknowledged he should have learned how to cook. Mr Maroulis indicated he could not action the diet and exercise advice because he is on a pension and needs to spend a lot of money on Ubers. He said he is unable to take public transport because he has claustrophobia, however I have rejected this diagnosis above.

45. Mr Maroulis’ evidence regarding the expert advice to lose weight and build his strength prior to hip replacement surger ywas unclear as to whether it is a pre-condition or recommendation. In any event, I do not accept the reasons given by Mr Maroulis establish this surgical treatment to be inaccessible to him. I note the Guidelines identify changes to diet and lifestyle as treatment and that Mr Maroulis has been non-compliant with dietary treatment.

46. It is not possible for me to ignore that Mr Maroulis went to some efforts to withhold from the Tribunal the extent to which his physical impairments are associated with problems with his left hip, or hips, as evidenced by his response to a series of questions exploring whether his difficulties with walking came from his osteoarthritis in his hip. Mr Maroulis initially denied that was the case. He then agreed that was part of it ‘because he has osteoarthritis throughout his body’. He then said the reason he uses the walking sticks was because he has balance problems and has fallen a few times and he had pain. Asked if this was the pain in his hips, Mr Maroulis agreed and then denied that was the case. He said the sticks also helped him with his sciatica which was unpredictable. Mr Maroulis said he gets confused because of his memory. He thought the problem with his balance could be related to vertigo which he had in the past. He said it was like his head was spinning and he just had a balance problem which meant he could not stand for too long.

47. In summary, in relation to impairments arising from his osteoarthritis of the left hip I conclude that Mr Maroulis does not overcome the thresholds in Rules 5.4 and 5.6.

48. At the hearing Mr Maroulis gave evidence about his physiotherapy and chiropractic treatment. He gave this evidence in response to questions about his shoulder bursitis, which I have not accepted as a diagnosed condition. However, he went on to say this was also the treatment he received for other physical conditions. I am satisfied that Mr Maroulis has undertaken some physiotherapy and chiropractic treatment for his physical impairments.

49. Mr Maroulis told the Tribunal Dr Zuvela had referred him to at least two physiotherapists, and one chiropractor, Professor Tony Fotopolous. Dr Zuvela has also prescribed anti-inflammatories or pain medication for his shoulders. He stated he saw the practitioners Dr Zuvela referred him to. The Tribunal observes that Dr Zuvela has recorded prescriptions of Panamax, which is paracetamol.

50. Mr Maroulis struggled in the hearing to recall when he commenced physiotherapy. He could recall only that he first saw the physiotherapists before he made his access request. He saw one in a public hospital, but they did not do anything for him. They just gave him exercises and sent him home. The other physiotherapist is located opposite Dr Zuvela’s surgery.

51. Asked how often he went to the physiotherapist opposite Dr Zuvela, Mr Maroulis said he had not been to them for a while. He estimated it would be at least eight months prior to the hearing. He said the chiropractor seemed to be helping with his pain more, so he preferred to go to the chiropractor. He used four to five of the subsidised entitlements each year to see the chiropractor. He last went to the chiropractor in about September 2024. Mr Maroulis said the treatment he got from the chiropractor is a lot of hands-on stuff, some manipulation, exercises and a bullet gun which relieves the pressure from points in his body where he has a lot of pain. The relief from unbearable pain only lasts a few days. I accept he also uses Flexor physio cream and ice packs to manage the symptoms of pain and discomfort

52. The Tribunal notes that Mr Maroulis attended a two-day hearing. He did not ask the Tribunal for breaks despite being encouraged to if needed and was observed to be sitting without any obvious signs of being in pain.

53. Mr Maroulis said that he does not do the exercises recommended by the physiotherapist because the physiotherapist is lazy. He only gives him a piece of paper with the exercises and does not teach Mr Maroulis how to do them. He finds it too physically and mentally challenging and he just gives up. He did not mention any names of the physiotherapists he had seen.

1. I accept that Mr Maroulis uses an annual Medicare-subsidised health care plan for four to five chiropractic treatments each year and has occasionally seen a physiotherapist in recent years. I find however that Mr Maroulis has been substantially non-compliant with physiotherapy treatment designed to address his physical impairments.  

2. Mr Burgoyne opined at the hearing that with some targeted strengthening and conditioning, there is no doubt that Mr Maroulis’ mobility could be significantly improved. He recommended that Mr Maroulis commence a program by an exercise physiologist that he does himself at home, starting off very lightly.

3. Asked about Mr Maroulis’ capacity to comply with such a program, Mr Burgoyne opined that he is not convinced Mr Maroulis would comply because of his lack of motivation. If he did comply he would expect to see really positive results within 12 weeks, with particularly great improvement in balance, coordination and stability on his feet. Mr Burgoyne opined the program would continue to build on strengths and improve his psychosocial impairments given the huge link between doing exercise and improving mental health.

4. Mr Maroulis became angered at Mr Burgoyne’s suggestion that he had limited motivation and disagreed with it.

5. Whilst I accept that Mr Maroulis by reason of his financial circumstances and his psychosocial impairments experiences some challenges to compliance with physiotherapy treatments and would also with a structured exercise physiology program, I am not satisfied these impediments are of such an extent as to make these treatments unavailable to or inappropriate for to him within the meaning of Rule 5.4.

6. For the reasons above, I am not satisfied that there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy Mr Maroulis’ physical impairments. I am not satisfied those impairments do not require further medical treatment or review in order for their permanency or likely permanency to be demonstrated.

7. Accordingly, I find that Mr Maroulis’ physical impairments are not, nor are likely to be permanent.

   Conclusions on permanency

8. I am not satisfied Mr Maroulis’s impairments are, or are likely to be, permanent.

9. Accordingly, Mr Maroulis does not satisfy the element of permanency in the disability and early intervention requirements, in section 24(1)(b) and section 25(1)(a)(i) and (ii) of the Act.

   CONCLUSION

10. I have ultimately concluded that Mr Maroulis’ primary impairments are psychosocial and physical, which are interrelated and reinforced by one another.

11. While Mr Maroulis is currently impaired, it is also apparent on the evidence that these impairments and their underlying conditions, have not been fully treated and cannot be regarded as permanent as is required by the Act.

12. As I have concluded Mr Maroulis does not meet the requirements for access to the NDIS, I am obliged to affirm the decision under review.

    DECISION

13. The decision under review is affirmed.

Date(s) of hearing:

28 and 29 January 2025

Applicant:

Mr John Maroulis with support from Ms K Lulic

Solicitors for the Respondent:

Counsel for the Respondent:

Mr Jack Watts, Maddocks

Ms Josephine Battiste