Medovarski and National Disability Insurance Agency

Medovarski and National Disability Insurance Agency [2022] AATA 2737 (19 August 2022)
AppID:Medovarski and National Disability Insurance Agency

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2019/7198
Re:Zlato Medovarski
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Senior Member K. Parker
Date:19 August 2022
Date of written reasons: 19 August 2022
Place:Melbourne

The Tribunal affirms the Decision Under Review. The effect of this decision is that the Applicant’s request under s 18 of the National Disability Insurance Scheme Act 2013 (Cth) to access the National Disability Insurance Scheme is not granted.
......................[sgd]..................................................
Senior Member K. Parker
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – review of decision by NDIA not to grant the Applicant’s request to access the NDIS – whether Applicant meets access criteria – whether Applicant meets “disability requirements” or “early intervention requirements” under ss 24 and 25 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) respectively – Applicant has long-standing multimorbidity including morbid obesity, type 2 diabetes, osteoarthritis, obstructive sleep apnoea, vision problems, and other conditions – consideration of socioeconomic factors, personality traits and level of Applicant’s comprehension, when assessing history of non-compliance with treatment recommendations and whether appropriate evidence-based treatments are “available” to him – whether impairments are, or likely to be, permanent – whether Applicant’s permanent sensory impairment from problems with his vision has resulted in substantially reduced functional capacity in any one of the prescribed six activities in s 24(1)(c) of the NDIS Act – Decision Under Review affirmed – access to the NDIS not granted – non-binding observations made
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
Cases
FBJV and National Disability Insurance Agency [2021] AATA 913
Secondary Materials
NDIS Operational Guidelines (Access Guidelines) - Applying to the NDIS | NDIS
The Royal Australian College of General Practitioners. Management of type 2 diabetes:
A handbook for general practice. East Melbourne, Vic: RACGP, 2020. Management-of-type-2-diabetes-A-handbook-for-general-practice.aspx.pdf
Macquarie Dictionary (online as of 2 August 2022)
REASONS FOR DECISION
Senior Member K. Parker
19 August 2022
INTRODUCTION

The Applicant, Mr Zlato Medovarski, aged 63, is morbidly obese and has osteoarthritis in his hips, multilevel degeneration in his spine, type 2 diabetes, diabetic neuropathy, obstructive sleep apnoea (OSA) and other conditions affecting his health and bodily function. He has undergone a left hip replacement procedure, and his right fifth (little) toe has been amputated. Mr Medovarski has been on the disability support pension for over 20 years, following cessation of work after a workplace accident causing an injury to his back.
In 2018, Mr Medovarski made a request to the National Disability Insurance Agency (NDIA) under s 18 of the National Disability Insurance Scheme Act2013 (NDIS Act), to be granted access as a participant to the National Disability Insurance Scheme (NDIS).
This case is particularly complex due to Mr Medovarski’s multimorbidity. It involves a close examination of Mr Medovarski’s extensive medical and clinical history spanning more than a decade. Mr Medovarski did not have any legal representation in this proceeding. However, he was assisted by non-legal disability advocates from Action on Disabilities within Ethnic Communities Inc. (ADEC).[1] The Tribunal acknowledges the able assistance provided by the ADEC advocates in representing Mr Medovarski at the hearing and during this proceeding.
[1] Ms Mary Nathan-Habila, Mr Mark Eather (no longer working at ADEC), and more recently, Ms Mina Pollio, Senior NDIS Appeals Officer, at ADEC.
On 30 July 2019, a delegate of the NDIA decided not to grant Mr Medovarski access to the NDIS (Original Decision).[2] Mr Medovarski sought an internal review by a different delegate of the NDIA (that is, a “reviewer”) under s 100(6) of the NDIS Act. On 1 October 2019, the reviewer confirmed the Original Decision not to grant Mr Medovarski access to the NDIS (Decision Under Review).[3]
[2] Refer HTB at TB55.
[3] Ibid at TB31.
Mr Medovarski seeks review of the Decision Under Review by the National Disability Insurance Scheme Division of the Administrative Appeals Tribunal (Tribunal). The Tribunal’s jurisdiction arises under s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), operating in conjunction with s 103 of the NDIS Act.
For the reasons set out below, the Tribunal affirms the Decision Under Review on the basis that it concludes that Mr Medovarski does not meet the access criteria under s 21 of the NDIS Act. The Tribunal is not satisfied that Mr Medovarski meets either the “disability requirements” under s 24 of the NDIS Act, or the “early intervention requirements” under s 25. The Tribunal also makes non-binding observations at the end of these Reasons for Decision which Mr Medovarski may wish to discuss with his advocates from ADEC or seek independent legal advice about. Mr Medovarski is at liberty to make a further request under s 18 of the NDIS Act to be granted access to the NDIA, but he must do so before he reaches the age of 65.[4]
[4] Refer NDIS Act, ss 21(1)(a) and 22.
BACKGROUND
By way of background, Mr Medovarski immigrated from Croatia to Australia in the 1960’s. He has a reasonably good command of the English language and did not require an interpreter at the hearing.
Mr Medovarski lives alone in private rental accommodation in a unit in Laverton, a suburb of Melbourne. He owns and drives a van. He has been provided with a mobility scooter, but Mr Medovarski’s evidence was that he has not used it much (that is, only about six times).[5] It is wrapped in heavy protective plastic and sits next to his flat. Mr Medovarski holds a taxi licence. He denied having worked as a taxi driver in recent times and informed the Tribunal he was going to take steps to have his taxi licence cancelled.[6]
[5] Refer Transcript Day 2 on P-110.
[6] Ibid at P-115.
Mr Medovarski does not have internet services at his home. He told the Tribunal he does not know how to use his computer, iPad, or mobile telephone.[7] This raises concerns about Mr Medovarski’s access to information and his ability to communicate effectively and fully with the broader community, including with his medical and clinical providers. He told the Tribunal he deals with people over the telephone.
[7] Ibid at P-115 & P116.
Mr Medovarski has a few friends who assist him from time to time (mainly with transport). He seems to have a limited family network; he is single and has been estranged from his 30-year-old daughter (and grandson), for at least the last 8 years, if not longer.[8] Mr Medovarski’s mother is elderly and lives independently in Williamstown. He told the Tribunal that he visits her sometimes, but her nephew is now involved.
[8] Refer Home Medication Review completed by Ms Quek, Pharmacist, on 12 June 2020, with report dated 18 June 2020, see HTB at TB805. The evidence was inconsistent in respect of how long Mr Medovarski has been estranged from his daughter, for instance, at the hearing, Mr Medovarski said he had not seen his daughter for 10 years, although nothing turns on it.
The Tribunal gained an impression at the hearing that Mr Medovarski’s level of comprehension about some of the matters addressed during the hearing was deficient. This gives rise to concerns about the degree of Mr Medovarski’s overall cognitive function and the impact of his individual personality traits on his capacity for comprehension and effective decision-making when it came to matters concerning self-management of his multimorbidity and in particular, the management of his diabetes. This is significant because it may underpin or explain:
(a)the history before the Tribunal of Mr Medovarski’s reported longstanding poor glycaemic control, impacting his weight gain, diabetic neuropathy, and his other diabetes-related conditions;
(b)references throughout the medical records to Mr Medovarski’s non-compliance with various treatment recommendations by his treating medical and other health professionals over the last decade; and
(c)Mr Medovarski’s reported failure to attend certain medical and clinical appointments.
There was no claim made by, or on behalf of, Mr Medovarski at any time, that he has any impairment to his psychological, intellectual and/or cognitive function affecting him in the activity of self-management, or in any other domain.
There was limited evidence before the Tribunal about Mr Medovarski’s cognitive and/or intellectual capacity. The Tribunal did have before it a “Neuropsychology” report which was contained within the summonsed hospital records. This report was prepared by Dr Tracy Henderson, Senior Clinical Neuropsychologist, and Ms Katharine Baker, Provisional Psychologist, on 29 March 2017 during a hospital admission at Sunshine Hospital (Neuropsychology Report).[9] Dr Henderson and Ms Baker stated in this report that they examined Mr Medovarski for the purpose of completing a cognitive assessment.
[9] Refer HTB at TB221.
Dr Henderson’s and Ms Baker’s impression of Mr Medovarski was that he “only had mild impairments in his working memory and executive functions (minor inefficiencies in planning and abstract reasoning)”, “his memory is intact aside from a tendency to confuse minor details on delayed recall”, and he was “capable of comprehending and remembering clinical information”.[10] Dr Henderson and Ms Baker stated that he showed no behavioural disturbance on their interaction with him, but “displayed a somewhat rigid thinking style and a tendency to retain grudges and lost trust after having a negative interaction with someone”.[11] They referred to Mr Medovarski having been “behaviourally agitated or abusive” in the past and recommended strategies in order for staff to identify common themes or triggers that could be managed or prevented.[12]
[10] Ibid.
[11] Ibid.
[12] Ibid.
In a letter by Dr Khai Yang Ooi, Consultant Nephrologist, dated 29 March 2016, Dr Ooi records Mr Medovarski as having a medical background which included (among other things) “depression”.[13] A hospital discharge summary for an admission of Mr Medovarski to hospital in November 2020 records that he had an “ongoing” medical history including (among other things) “depression”.[14] Dr Kathryn Winter, General Practitioner, records in her clinical notes that a reason for Mr Medovarski having a telehealth appointment with her on 18 August 2020 included “Depression”.[15]
[13] Ibid at TB674.
[14] Ibid at TB210.
[15] Refer Exhibit R3 at page 33.
The Tribunal asked Mr Medovarski whether he had ever suffered from depression, as had been noted in the clinical records.[16] He was adamant that he had never suffered from depression, had never seen a psychologist (because he said he did not need one), had not taken antidepressant medication, and had never been placed on a mental health plan. When asked, he indicated that his doctors had never recommended that he see someone. This is inconsistent with the clinical notes of Dr Winter of a telephone consultation on 22 June 2020, where she records that Mr Medovarski’s mood fluctuated with periods of “low mood and low motivation”. Dr Winter states in her notes: “- not keen for counselling at this stage”.[17]
[16] Refer Transcript Day 2 at P-112 & P-113.
[17] Refer Exhibit R3 at page 75.
When asked, Mr Medovarski said he was not affected psychologically from his two previous workplace accidents.[18] Mr Medovarski said that he had not seen his daughter since about ten years ago. When asked whether he found this upsetting, Mr Medovarski answered “no”. He said she was a “young lady”, there were “strange behaviours” and “whatever she does, she does”.[19] On a few occasions during the hearing, Mr Medovarski became agitated and on occasion, became quite upset. He managed to restore his composure and to proceed with the hearing.
[18] Refer Transcript Day 2 at P-113.As mentioned above, Mr Medovarski injured his back in a workplace accident and he also injured his shoulder in a further workplace accident.
[19] Ibid.
Despite Mr Medovarski’s denial about not being depressed and perhaps on account of the impacts of Mr Medovarski’s personality traits, one of them being a high degree of self-assurance (not always aligned with his level of knowledge and comprehension),[20] it was apparent to the Tribunal that Mr Medovarski has very significant struggles in the domain of self-management, particularly when it came to the effective self-management of the medical conditions underlining his impairments. Mr Medovarski had limited insight into this and did not seem aware of his long history of being unable to effectively manage his numerous medical conditions and, in particular with controlling his diabetes, requiring a high degree of dedicated daily monitoring and medical management. The Tribunal will return to these observations below at paragraphs [171] to [172] inclusive.
[20] This is supported by the impression by Dr Henderson and Ms Baker in the Neuropsychology Report that Mr Medovarski “displayed a somewhat rigid thinking style”.
The matters set out in paragraphs [9] to [18] add complexity to Mr Medovarski’s overall circumstances.
The Tribunal notes that up until the present time, Mr Medovarski has not been without support. Apart from the assistance of his friends, he has received disability-support services (and the provision of assistive equipment) under different community, hospital, and State-government-based programs. He has been in receipt of the disability support pension for over 20 years. For instance, a diabetic educator/pharmacist and nurse have regularly attended his home to assist him with his diabetic management (see further detail below); he has been provided with access to a CPAP machine under a hospital program for his condition of OSA; he has been subsidised to engage a cleaner to assist him to clean his home on a fortnightly basis; and he has participated in a community-access program involving (assisted) fishing with a community fishing group.
EVIDENCE AND SUBMISSIONS
In preparing this application for hearing, the NDIA lodged with the Tribunal a consolidated hearing tender bundle (HTB) comprising 880 pages. The HTB contains:[21]
(a)the NDIA’s Statement of Facts, Issues and Contentions (NDIA’s SFIC);
(b)the set of Tribunal documents lodged by the NDIA pursuant to s 37 of the AAT Act (T-Documents);
(c)a set of documents comprising Mr Medovarski’s evidence, and his Statement of Lived Experience dated 2 July 2020;[22]
(d)a set of documents comprising the NDIA’s evidence; and
(e)extracts from Mr Medovarski’s medical records produced under summons by the following medical clinics:
(i)Altona Health;[23] and
(ii)CoHealth Laverton.[24]
[21] The HTB was received as an exhibit at the hearing of this application: Exhibit R5. The Tribunal acknowledges the assistance provided by the NDIA and its legal representatives in preparing the HTB.
[22] Refer HTB at TB362.
[23] Pages 39 to 44 of the set of Altona Health medical records were tendered as a separate exhibit at the hearing: Exhibit R2.
[24] Pages 11 to 76 of the set of CoHealth Laverton medical records were tendered as a separate exhibit at the hearing: Exhibit R3.
Mr Medovarski’s advocate at the hearing, Mr Mark Eather, Senior NDIS Appeals Officer, ADEC, made an opening statement at the commencement of the hearing and lodged a written version of this statement with the Tribunal (Mr Medovarski’s Opening Statement).
The NDIA was represented by Mr Phillip Nolan of counsel, and in-house lawyer from the NDIA. After the hearing, the NDIA lodged a 28-page detailed closing submission prepared by Mr Nolan (NDIA’s Closing Submission). Mr Medovarski lodged a one-page closing submissions in reply to this (Mr Medovarski’s Reply Closing Submissions). The NDIA lodged a further outline of submission dated 9 August 2022 (NDIA’s Further Submissions). Mr Medovarski was provided with an opportunity to lodge reply submissions. His disability advocate informed the Tribunal Mr Medovarski did not wish to do so, or to lodge any further information or evidence.[25]
[25] Refer email from Ms Pollio to the Registry of the Tribunal dated 16 August 2022.
With the cooperation of Mr Medovarski, the NDIA arranged and funded the following two independent assessments of Mr Medovarski in his home:
(a)a functional assessment by Ms Amanda McLaughlin, Consultant Occupational Therapist, who issued a report dated 3 August 2021 (Ms McLaughlin’s Report); and
(b)a medicolegal examination by Dr Tim Hwang, Occupational Physician, who issued a report dated 4 August 2021 (Dr Hwang’s Report).
Ms McLaughlin and Dr Hwang were called as expert witnesses to give evidence on the second day of the hearing.
At the commencement of the hearing, the Tribunal was informed that one of Mr Medovarski’s treating general practitioners, Dr Winter, was unavailable to be called as a witness due to personal circumstances. The NDIA indicated that it would no longer press for Dr Winter to be made available for cross-examination in relation to her medical reports concerning Mr Medovarski.[26] The Tribunal invited Mr Medovarski to make an adjournment application if he wished to arrange for one of his treating general practitioners to give evidence at the hearing. He informed the Tribunal he wanted the hearing to proceed as scheduled. The Tribunal acceded to this request.[27]
[26] Refer Transcript Day 1 at P-10 & P-11.
[27] Ibid at P-12 & P-13.
The Tribunal invited Mr Medovarski and/or his advocates to make an application, before the hearing concluded, if they would like to call Dr Winter or one of his other treating general practitioners, Dr Lucas De Siqueira, to give evidence at a resumed hearing. Towards the end of the second day of the hearing, Mr Medovarski’s representative informed the Tribunal that Mr Medovarski did not wish to call any further medical witnesses.[28]
[28] Refer Transcript Day 2 at P-153.
ISSUES
Section 21 of the NDIS Act provides that a person satisfies the access criteria if they meet:
(a)the “age requirements” under s 22;
and, at the time of considering the access request;
(b)the “residence requirements” under s 23 of the NDIS Act; and
(c)either the “disability requirements” under s 24 or the “early intervention requirements” under s 25.
It is not disputed by the NDIA that at the time Mr Medovarski made his access request, he met both the “age requirements” and “residence requirements” under ss 22 and 23 of the NDIS Act. The Tribunal finds accordingly.
The issues in dispute in this application are whether Mr Medovarski meets either of:
(a)the “disability requirements” under s 24 of the NDIS Act; or
(b)the “early intervention requirements” under s 25 of the NDIS Act.
ACCESS RULES AND POLICY GUIDANCE
Section 209(1) of the NDIS Act provides that the Minister may, by legislative instrument, make rules prescribing matters required or permitted under the NDIS Act or necessary or convenient to be prescribed in order to carry out or give effect to the NDIS Act. Section 27 of the NDIS Act permits the Minister to make NDIS rules prescribing circumstances in which, or criteria to be applied in assessing whether many of the disability or early intervention requirements are met under ss 24 or 25 of the NDIS Act.
Pursuant to s 209(1), in conjunction with s 27, the Minister has issued the following rules by legislative instrument - National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Access Rules).

The NDIA has issued policy guidance dealing with the assessment of whether a person meets the disability or early intervention requirements under ss 24 or 25 of the NDIS Act: Applying to the NDIS | NDIS. The Tribunal will refer to this policy guidance as the Access Guidelines. In accordance with established legal principles, the Tribunal will take this policy guidance into account when making this decision, unless there are cogent reasons not to do so, for instance, the policy guidance is inconsistent with the provisions of the NDIS legislative regime.
The NDIA contends, in effect, that Mr Medovarski should not be granted access to the NDIS because he does not meet all of the mandatory criteria under ss 24 or 25 of the NDIS Act.
CONSIDERATION OF WHETHER MR MEDOVARSKI MEETS THE “DISABILITY REQUIREMENTS” UNDER S 24
The “disability requirements” under s 24 of the NDIS Act are made up of five mandatory criteria as follows:
(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 to one or more impairments attributable to a psychiatric condition; 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, or psychosocial functioning in undertaking, 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.
Section 24(1)(a) - Disability
The first criterion, under s 24(1)(a), requires a person seeking access to the NDIS to have a “disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments, or to one or more impairments attributable to a psychiatric condition”.
The Tribunal may take into consideration medical diagnoses that have been made in respect of the person, as an indicator that they might have certain impairments. This does not complete the Tribunal’s task. The Tribunal must go on to satisfy itself, on the evidence before it, whether the person has one or more impairments as described in s 24(1)(a) of the NDIS Act.
The Tribunal notes the following guidance provided in the Access Guidelines issued by the NDIA reflecting the requirements in s 24(1)(a):[29]
[29] Refer Access Guidelines at pages 6 and 7.
Is your disability caused by an impairment?
When we consider your disability, we think about whether any reduction or loss in your ability to do things, across all life domains, is because of an impairment.
An impairment is a loss or significant change in at least one of:
• your body’s functions
• your body structure
• how you think and learn.
To meet the disability requirements, we must have evidence your disability is caused by at least one of the impairments below
• intellectual – such as how you speak and listen, read and write, solve problems,
and process and remember information
• cognitive – such as how you think, learn new things, use judgment to make
decisions, and pay attention
• neurological – such as how your body functions
• sensory – such as how you see or hear
• physical – such as the ability to move parts of your body.
You may also be eligible for the NDIS if you have a psychosocial disability.
This means you have reduced capacity to do daily life activities and tasks due to your mental health.
It doesn’t matter what caused your impairment, for example if you’ve had it from birth, or acquired it from an injury, accident or health condition.
It also doesn’t matter if you have one impairment, or more than one impairment.
Mr Medovarski’s Opening Statement refers to Mr Medovarski having the following 11 conditions:
(a)osteoarthritis (including a hip replacement) diagnosed on 19 October 2011;[30]
[30] Refer HTB at TB603.
(b)diabetes mellitus (or type 2 diabetes) diagnosed in 1991 (Diabetes);[31]
(c)diabetic retinopathy (diagnosed in 2012);[32]
(d)diabetic neuropathy (that is, nerve damage caused by diabetes);
(e)morbid obesity;
(f)hypertension (diagnosed on 24 August 2011);[33]
(g)hypercholesterolaemia (diagnosed on 29 February 2012);[34]
(h)dyslipidaemia;
(i)renal impairment (diagnosed in 2013);[35]
(j)pulmonary embolism; and
(k)heart failure.
[31] There were inconsistent references in the medical evidence as to the timing of Mr Medovarski’s diagnosis with diabetes mellitus (or type 2 diabetes). On page TB600 of the HTB, there is a reference to him being diagnosed in 1991; on page TB226, there is reference to a diagnosis date of 7 September 2011; and on page TB230, there is a reference to a diagnosis having been made in 1999. Nothing turns on whether he was diagnosed in 1991, 1999 or in 2011. For present purposes, the Tribunal finds that Mr Medovarski was diagnosed with this condition since as early as 1991.
[32] Ibid at TB603 and TB226.
[33] Ibid at TB602 & TB226.
[34] Ibid.
[35] Ibid at TB603.
Radiological evidence before the Tribunal shows that Mr Medovarski has multilevel spinal degeneration.[36]
[36] Refer HTB at TB194.
Shortly before handing down the Tribunal’s decision in this application, Mr Medovarski’s disability advocates informed the Registry of the Tribunal in relation to his condition of diabetes that: “the client says he has been told conflicting information that he is type 1 & then type 2”.[37] However, there was no medical verification or evidence before the Tribunal to support that Mr Medovarski has ever been diagnosed or considered that he might have type 1 diabetes. The Tribunal requested that Mr Medovarski provide further evidence (after making enquiries with his general practitioner), evidencing that he may have type 1 diabetes, rather than type 2; and if so, what difference, if any, it would make to his doctor’s/specialist’s treatment recommendations.[38] On 1 August 2022, ADEC, on behalf of Mr Medovarski wrote to the Tribunal to advise that Mr Medovarski accepted that he had type 2 diabetes. Based on this indication from Mr Medovarski and on the medical evidence in this matter, the Tribunal finds that Mr Medovarski has type 2, and not type 1, diabetes.
[37] Refer email from ADEC to the Registry of the Tribunal on 1 August 2022.
[38] Refer email from Registry of the Tribunal to ADEC on 1 August 2022.
The medical evidence before the Tribunal also refers to Mr Medovarski having been diagnosed with OSA following sleep studies performed on him. He was provided with a hospital-funded continuous positive airway pressure (CPAP) machine, which is a common treatment for OSA. He did not take up the initial offer of receiving a CPAP machine because he was not prepared to pay for some consumables but eventually, he agreed to this and obtained a CPAP machine. As mentioned above, Mr Medovarski’s general practitioner referred to him having “depression”,[39] and this was also referred to on a hospital discharge summary,[40] but there is limited medical evidence before the Tribunal about this condition. Mr Medovarski had his right fifth (or little) toe amputated in 2016.[41] Dr Hwang refers to Mr Medovarski having a “possible history” of asthma.[42]
[39] Refer Exhibit R3 at page 33.
[40] HTB at TB210.
[41] Ibid at TB663.
[42] Refer HTB at TB421.
At the commencement of the hearing, Mr Medovarski informed the Tribunal that he underwent surgery for cancer in his left eye a year and half prior, at the Eye and Ear Hospital.[43] The Tribunal was unable to identify medical evidence in the materials presented to it verifying that Mr Medovarski had left eye cancer. However, the Tribunal identified references to Mr Medovarski having undergone eye surgery for a cataract and problems with his vision. The Tribunal will address Mr Medovarski’s eyes conditions and vision in further detail below.
[43] Refer Transcript Day 1 at P-18.
Mr Medovarski also informed the Tribunal that he had received treatment for melanomas in the past, which have remained in remission.[44] There were references in the material to Mr Medovarski having had melanoma(s) many years ago which were surgically removed.[45] There is no evidence that this has remained a medical problem for Mr Medovarski or has caused any functional impairment.
[44] Ibid.
[45] Refer HTB at TB663.
On 11 October 2018, Dr De Siqueira signed an “Access Request - Supporting Evidence Form” in support of Mr Medovarski’s NDIS access request.[46] On this form, Dr De Siqueira described Mr Medovarski’s “primary impairment”, (being the impairment “with the most impact on his life”), as osteoarthritis, which he has had for over a decade. This impairment was recorded by Dr De Siqueira as likely to be lifelong. Dr De Siqueira noted that Mr Medovarski had received treatment in the form of physiotherapy, analgesia, and a total hip replacement.[47]
[46] Ibid at TB44-49.
[47] Ibid at TB45.
Dr De Siqueira also stated on this form that Mr Medovarski had other impairments (which had “a significant impact” upon him), being diabetes, obesity, hypertension, dyslipidaemia, and heart failure. Dr De Siqueira states that Mr Medovarski was on “multiple medications” for those conditions, and he described them as being likely to be lifelong.[48] Dyslipidaemia means that the level of lipids (fats) in a person’s blood is too high. Dr Winter, in her letter to the NDIA on 8 December 2020, stated that dyslipidaemia and hypercholesterolaemia are conditions that contribute to Mr Medovarski’s poor health, but she was unable to specifically quantify ways in which those conditions affect Mr Medovarski’s functioning in isolation to his other conditions as listed in her report. There was insufficient medical evidence before the Tribunal for it to be satisfied that either dyslipidaemia or hypercholesterolaemia had resulted in Mr Medovarski having an impairment of the type described in s 24(1)(a) of the NDIS Act.
[48] Ibid.
Ongoing physiotherapy and bariatric surgery were identified by Dr De Siqueira on this form as “early intervention supports”.[49]
[49] Ibid at TB46.
On this form, Dr De Siqueira stated that Mr Medovarski’s impairments had caused functional incapacity in the domains of mobility and self-management. In relation to mobility, Dr De Siqueira stated that Mr Medovarski used a “walking frame/stick”, had “significantly limited mobility”, “needed adequate OT home assessment for rails etc.”, and was “unable to climb stairs”.[50] In relation to self-management, the doctor stated that Mr Medovarski “needed patches for glucose monitoring”.[51]
[50] Ibid at TB47.
[51] Ibid at TB49.
At the commencement of the hearing, Mr Nolan confirmed that based on the opinion of Dr Hwang, the NDIA accepted that Mr Medovarski has some disabilities attributable to impairments which he described as, “poorly controlled diabetes with diabetic neuropathy, nephropathy [kidney disease], cardiac failure, and chronic pain”.[52] The nature of the functional impairments arising from those conditions were not specifically identified. The NDIA did not make any contentions as to whether it accepted or rejected that Mr Medovarski had any other impairments arising from the other medical conditions referred to in paragraphs [39] to [44] of these Reasons for Decision.
[52] Refer Day 1 of Transcript at P-10.
In the NDIA’s Closing Submissions, the NDIA accepted that Mr Medovarski has disabilities “in the nature of poorly controlled diabetes with diabetic neuropathy, nephropathy and retinopathy, cardiac failure, and chronic pain”. The NDIA contends that the reference to “chronic pain” included his “lower back pain and bilateral hip osteoarthritis”.[53] The NDIA further articulates that Mr Medovarski has disabilities “attributable to an impairment in that the pain and neuropathy is restricting the full functional use of the Applicant’s limbs”.[54]
[53] Refer NDIA’s Closing Submissions at paragraph 4(a).
[54] Ibid at paragraph [4(b)].
In the NDIA’s Closing Submissions, the NDIA contends that morbid obesity is not an impairment, and this meant that “the resultant lack of mobility and difficulties with self-care are not relevant to assessment of the disability requirements”.[55] The Tribunal considers this contention to be misconceived. The Tribunal is required to consider whether Mr Medovarski has impairments involving the loss of or damage to his intellectual, cognitive, neurological, sensory, or physical function or impairments attributable to a psychiatric condition, when assessing the “disability” criterion under subsection 24(1)(a) of the NDIS Act. It matters not that those impairments arise from his bodily state of morbid obesity or some other medical condition, such as type 2 diabetes. Any resulting impairment(s) is the focus of the assessment to be made when considering the “s 24(1)(a)” criterion.
[55] Refer NDIA’s Closing Submissions at paragraph 4(c).
Dr Hwang stated in his report that the NDIA had “provided him” with diagnoses of the 11 conditions referred to in paragraph [39]. After reviewing the available information and following his assessment of Mr Medovarski, Dr Hwang also noted a “possible history” of asthma; amputation of the right little toe; chronic back pain associated with multi-level degeneration; and OSA (for which he used a CPAP machine).[56]
[56] Refer Exhibit R4 - Dr Hwang’s Report at page 4.
Dr Hwang opines that the main contributing conditions of Mr Medovarski’s overall disability, “in order of importance”, are his:
(a)morbid obesity;
(b)type II diabetes (which he said was “poorly controlled, requiring insulin”, and associated with complications including diabetic nephropathy (renal impairment) and retinopathy); and
(c)heart failure.[57]
[57] Refer Exhibit R4 - Dr Hwang’s Report at page 5.
Dr Hwang opines that there were “significant synergistic effects between the three conditions” (obesity, diabetes, and heart failure), contributing to Mr Medovarski’s overall disability.[58]
[58] Ibid.
The Tribunal is satisfied on the basis of the medical evidence before it, and in particular Dr Hwang’s Report, that Mr Medovarski has a “disability” arising from his:
(a)impairment to his physical function resulting from his:
(i)bodily state of morbid obesity (the Tribunal was provided with a clinical record indicating that as of 4 August 2022, Mr Medovarski’s weight is 168.2kg, height is 170cm, and body mass index (BMI) is 58.2);[59]
(ii)diabetic neuropathy, which causes him numbness and pain, and restricts the use of his lower limbs;
(iii)osteoarthritis, affecting his hips;
(iv)multilevel spinal degeneration, causing him back pain; and
(v)reduced physical endurance and stamina, resulting from poor cardiovascular function such as shortness of breath, OSA, and cardiac failure; and
(b)impairment to his sensory function arising from problems with his vision.
[59] Mr Medovarski’s current weight, height and BMI was reported to the Tribunal by his disability advocates on 8 August 2022.
The Tribunal finds that Mr Medovarski does not have a disability attributable to an impairment arising from hypertension, based on the opinion of Dr Mary-Anne Papalia, Endocrinologist, Western Health, who states in her medical report dated 13 November 2013 that his hypertension was “currently well controlled on medication”.[60]
[60] Refer HTB at TB601.
Section 24(1)(b) – Permanency
The second criterion, under subsection 24(1)(b) of the NDIS Act, requires a person seeking access to the NDIS to have one or more impairments that “are, or are likely to be, permanent”. The word “permanent” is not defined in the NDIS Act.
Rule 5.4 of the Access Rules provides that an impairment is considered permanent, or 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”.
Rule 5.5 provides that:
An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate, or there are prospects that the severity of the impact of the impairment on the person’s functional capacity, including their psychosocial functioning, may improve.
Rule 5.6 provides that 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”. This rule also provides that:
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).
Rule 5.7 provides that 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”.
The NDIA contends that the Tribunal cannot be satisfied that Mr Medovarski’s impairments are, or are likely to be permanent, and for this reason, Mr Medovarski does not meet the criterion under s 24(1)(b) of the NDIS Act. The NDIA bases its contention upon an assertion that the following treatment options have been specifically, and repeatedly, recommended to Mr Medovarski, and he has not properly undertaken them:[61]
(a)dieting and weight loss through a weight loss clinic;
(b)bariatric surgery; and
(c)exercise physiology.
[61] Refer NDIA’s Closing Submissions at paragraph 4(d).
On this basis, the NDIA contends that the Tribunal is unable to conclude that that there are “no available medical, clinical, or other treatments” (see Rule 5.4 of the Access Rules), that are likely to remedy Mr Medovarski’s impairments. The NDIA contends that while the term “remedy” would include providing a cure to the impairment, it may also extend to treatment that “eases or alleviates (pain, distress, anxiety, need, etc.)” the impact or effects of the impairment. The NDIA referred to a decision by the Administrative Appeals Tribunal in FBJV and NDIA [2021] AATA 913 (FBJV).[62]
[62] Refer FBJV and National Disability Insurance Agency [2021] AATA 913, [117].
In FBJV, Member Webb’s interpretation of “remedy” within the meaning of Rule 5.4 of the Access Rules was based upon the ordinary everyday meaning of the term “remedy”. Member Webb drew upon the Macquarie dictionary meanings of the terms “remedy”, which includes “something that cures or relieves a disease or bodily disorder; a healing medicine, application, or treatment”,[63] and “relieve” which includes “to ease or alleviate (pain, distress, anxiety, need, etc.)”.[64] Member Webb also applied the NDIA’s policy guidance in its Access Guidelines that dealt with the construction of s 24(1)(b) of the NDIS Act which previously, until it was recently updated, guided decision-makers to consider whether there are no medical, clinical, or other treatments which could cure or substantially relieve the impairments.[65]
[63] Refer Macquarie Dictionary (online at 2 August 2022), “remedy”, Def 1.
[64] Ibid, “relieve”, Def 1.
[65] Refer Access Guidelines (issued on 1 July 2022) at page 8.
On 1 July 2022, the Access Guidelines were amended and now they guide decision-makers to consider whether there are no such treatments that could cure or relieve the impairments. That is, the term “substantially” has been removed.[66]
[66] Refer Access Guidelines (issued on 1 July 2022) at page 8.

When applying Rule 5.4 of the Access Rules, the Tribunal is required to satisfy itself as to whether there are “no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment”. If the Tribunal is satisfied as such, it must conclude the impairments under consideration are, or likely to be permanent. This assessment does not involve consideration of whether a person did not understand or might have been confused about the medical or clinical advice and/or recommendations that was provided to them. In fact, it is not reliant upon a medical or clinical professional having recommended to the person that they undertake the particular treatment that falls into this description. Instead, the Tribunal must consider whether there exists any “known, available and appropriate evidence-based” treatments for the conditions likely to remedy the impairment(s); whether the person seeking access to the NDIS has undertaken those treatments; and if not, Rule 5.4, requires that the Tribunal is unable to conclude that the impairments under consideration are, or likely to be, permanent.
Mr Medovarski’s physical impairments
The Tribunal will start by considering whether Mr Medovarski’s physical impairments are, or are likely to be, permanent. To make this assessment the Tribunal will:
(a)consider the underlying bodily or medical conditions giving rise to his physical impairments;
(b)seek to identify the “medical, clinical, or other treatments” Mr Medovarski has received or undertaken for those underlying conditions;
(c)consider whether there are any other “available and appropriate evidence-based medical, clinical, or other treatments” he could receive, but has not yet received, for those conditions, likely to remedy them.
(a) Underlying conditions
In relation to the first point, the Tribunal has found that Mr Medovarski’s disability arising from his physical impairments are the result of his:
(a)bodily state of morbid obesity;
(b)diabetic neuropathy causing numbness and pain, restricting the functional use of his lower limbs;
(c)osteoarthritis, affecting his hips;
(d)multilevel spinal degeneration, causing back pain; and
(e)reduced physical endurance and stamina, resulting from poor cardiovascular function such as shortness of breath, OSA, and cardiac failure.
(b) Past treatments accessed by Mr Medovarski
Mr Medovarski’s Statement of Lived Experience does not shed light on the past treatments received by him. Mostly, it comprises an explanation as to the types of supports that Mr Medovarski is seeking, the reasons why he needs those supports and what they would assist him to do. It does not describe the way in which his functional impairments have impacted upon him, other than at a very high level of stating they have a “major” impact upon his life, both in the home and in the community.
To fill this information gap about Mr Medovarski’s past treatments and the impacts upon him, as mentioned above, his medical records were summonsed and produced to the Tribunal. The NDIA arranged for an independent assessment to be undertaken by Ms McLaughlin and Dr Hwang as mentioned above and their respective reports contain a history taken from Mr Medovarski about the treatments he had received. Mr Medovarski also gave evidence as a lay witness at the hearing and was subjected to cross-examination. He was also questioned by the Tribunal about treatments for the bodily and medical conditions underlying his impairments.
Based on those records and Mr Medovarski’s evidence at the hearing, the Tribunal finds that Mr Medovarski has undertaken the following treatments for his bodily and medical conditions:
(a)he has regularly consulted his treating general practitioners at Altona Health and CoHealth Laverton over the last decade about his various conditions;
(b)he has been referred to and been seen by a range of different medical specialists, including endocrinologists, nephrologists, cardiologists, respiratory/sleep specialists, and pain specialists/anaesthetists;
(c)he has undergone X-rays and CT scans in relation to his hips and spine;
(d)he has undergone numerous echocardiograms (ECG) to test his heart;
(e)he has attended hospital-based and diabetes-specific weight loss clinics at different times;
(f)he has received diabetic management counselling at diabetes clinics;
(g)he has received physiotherapy and occupational therapy, albeit quite limited in scope;
(h)he has received regular home visits from diabetic educators/pharmacists to educate him about managing his diabetes through monitoring and medical management of his blood glucose levels and also in an attempt to optimise his diet;
(i)he has received home visits three times per week from a nursing service to attend to his foot care, apply tubigrips, monitor his blood glucose levels and oral medications;
(j)he has engaged in sleep studies and has been provided with a CPAP machine;
(k)he has received ongoing advice to assist him to optimise his compliance with CPAP therapy;
(l)he has been prescribed with and has taken a range of different medications including:
(i)insulin (since 2012), and other medications seeking to control his blood glucose levels and diabetes condition; and
(ii)analgesics, to assist him in controlling his pain levels;
(m)he had his right fifth (or little) toe amputated in 2016, from a complication arising from his diabetic neuropathy (that is, he sustained a diabetic foot ulcer);
(n)he underwent left hip replacement surgery in April 2017, with reported good results;[67] and
(o)he has had surgery on his eyes for a cataract and reportedly (according to Mr Medovarski) eye cancer, and been prescribed with corrective reading glasses to improve his vision.
(c) Whether there are any “available and appropriate evidence-based other medical, clinical, and other treatments” likely to remedy Mr Medovarski’s conditions causing physical impairment
[67] Refer HTB at TB743.
At the hearing, Dr Hwang, Occupational Physician, who examined Mr Medovarski on 28 July 2021, recorded that he has no known family history of heart disease, diabetes, or morbid obesity, although he described some of his family members as being “somewhat overweight”.[68] Dr Hwang stated that Mr Medovarski was “in a position” where his various medical conditions, combined, made it “very difficult” for him to achieve “any improvement”. Dr Hwang noted that it was “beyond scope of his expertise to assess Mr Medovarski’s compliance with diet”, except to note that he had attempted to comply with a diet with varying success and overall, he had been “fighting a losing battle with obesity, with a gradual increase in his weight from 100kgs to 172kgs over the last 10-15 years”.[69]
[68] Refer Exhibit R4 - Dr Hwang’s Report at page 4.
[69] Ibid at page 14.
Dr Hwang explained that Mr Medovarski’s “diabetic control was poor”, and he “requires insulin”, which “makes it more difficult to control his weight” and in turn, Mr Medovarski’s “obesity, makes it more difficult for his diabetes to be controlled”.[70] This evidence assisted the Tribunal to understand the circular impacts of his various conditions and how important it is that Mr Medovarski comply with all of the various treatments that had been recommended to him in a concerted manner.
[70] Ibid.
The propositions of Dr Hwang referred to in the above paragraph are reflected in the information provided in the Royal Australian College of General Practitioners’ Management of type 2 diabetes: A handbook for general practice (RACGP Diabetes Handbook).[71]
[71] Refer Royal Australian College of General Practitioners, Management of type 2 diabetes: A handbook for general practice (East Melbourne, 2020).
The RACGP Diabetes Handbook explains as follows:[72]
Self-management involves the person with diabetes working in partnership with their carers and health professionals to:
• understand their condition and various treatment options
• contribute to, review and monitor, a plan of care (eg care plan)
• engage in activities that protect and promote health
• monitor and manage symptoms and signs of the condition
• manage the impact of the condition on physical functioning, emotions and interpersonal relationships.
Identifying barriers to self-management is important when developing a management plan with the patient. Issues around cognition, physical disability, mental health, health literacy, socioeconomic constraints, location and access to services can affect the ability of the person to self-manage their diabetes.
[72] Ibid at page 14.
The RACGP Diabetes Handbook provides that all persons with type 2 diabetes are encouraged to approach or reach the following goals: follow dietary guidelines, lose weight if overweight or obese, engage in exercise, not smoke cigarettes, limit alcohol consumption, monitor blood glucose/HbA1c/blood lipid levels, monitor blood pressure, urine albumin excretion levels and receive certain vaccinations.[73]
[73] Ibid at pages i-ii.
Based on the medical evidence, the Tribunal considers there are at least four key treatments that Mr Medovarski could potentially undertake for his physical impairments to treat his diabetes, OSA, osteoarthritis, and morbid obesity:
(a)Treatment 1: compliant and effective monitoring and medical management of his diabetes to ensure that his blood glucose levels are properly controlled;
(b)Treatment 2: compliance with a diabetic-specific “very low energy diet” (VLED);[74]
(c)Treatment 3: compliance with a regular exercise program guided by an exercise physiologist and/or physiotherapist, to assist in controlling his diabetes by minimising his need to use insulin or high doses of insulin, and to assist in reducing his weight, which in turn will treat his OSA and osteoarthritis; and
(d)Treatment 4: by undertaking bariatric surgery to assist in reducing his weight, which in turn would assist in controlling his diabetes and to treat his OSA, osteoarthritis and morbid obesity.
[74] Ibid at page 42.
There is conflicting evidence before the Tribunal as to whether Mr Medovarski has fully and effectively complied with the medical and clinical recommendations that he undertake each of Treatments 1 to 4 above, as examined in greater detail below.
The Tribunal acknowledges that Mr Medovarski was cooperative when answering questions asked of him by the Tribunal at the hearing. He seemed to do so to the best of his ability. The Tribunal does not consider that Mr Medovarski sought to mislead the Tribunal. However, the Tribunal found Mr Medovarski to be an unreliable historian for the reasons contended by the NDIA in its Closing Submissions.[75] By his answers to the Tribunal’s questions, and during cross-examination, Mr Medovarski displayed an apparent lack of comprehension and insight in respect of his various (complex) medical conditions and his bodily state of obesity, and the steps required to actively address those conditions through medical and clinical treatment. The Tribunal considers that Mr Medovarski’s strong sense of self-assurance (at times unwarranted), and rigid mindset, got in the way of him being open to, and dutifully following, the medical and clinical advice given to him by his treating health professionals.
[75] Refer NDIA’s Closing Submissions at paragraphs [18]-[24].
On balance and for the reasons outlined below, the Tribunal considers that Mr Medovarski has been mostly non-compliant in effectively undertaking the above four treatments, as reflected by the remarks of his treating health professionals in the medical and clinical records referred to in more detail below.
Treatment 1 – monitor and medically manage his type 2 diabetes
As set out below, the medical evidence before the Tribunal revealed that Mr Medovarski’s documented history of having poorly controlled type 2 diabetes is a fundamental factor that has contributed to the level of his ongoing physical impairments. The Tribunal considers that the poor control of Mr Medovarski’s diabetes arises from his lack of commitment to following the medical and clinical advice given to him by his treating endocrinologists, general practitioners, diabetes educators, nurses, and pharmacists of the steps he needed to take on a consistent and regular daily basis to control his diabetes.
Extensive efforts were made by the endocrinologists and diabetes educators to assist Mr Medovarski to manage the ongoing monitoring and medications, aimed at controlling his diabetes. Specifically:
(a)Mr Medovarski was referred to the Diabetes Education Centre at The Royal Melbourne Hospital (RMH) in November 2011.[76] Mr Medovarski confirmed at the hearing that he had been to the Diabetes Education Centre.[77] Mr Medovarski recalled that they had usually spoken to him about his diet, but he claimed not to have a problem with his diet. Mr Medovarski said that he had a problem with his medication and insulin and was putting on weight;[78]
(b)medical records produced to the Tribunal included two letters issued by the Diabetes Education Service, advising Mr Medovarski of appointments at the centre on 21 November 2011 and 1 December 2011. Both letters have a line and the acronym, “FTA”, written diagonally across the letter, from which it may be inferred that Mr Medovarski failed to attend those appointments;[79]
(c)by November 2013, Mr Medovarski was seen by Dr Papalia. Dr Papalia refers in her report dated 13 November 2013 that Mr Medovarski had been referred to the Diabetes Clinic at hospital and that he had “poorly controlled Type 2 diabetes”.[80] She records that Mr Medovarski was undergoing diabetic nurse education and his insulin doses had been steadily escalating. Dr Papalia assessed Mr Medovarski as being at high risk of macrovascular complications. She increased his medications of Metformin (a medication used to control blood sugar levels in persons with diabetes) and Mixtard;[81]
(d)the Tribunal notes a referral letter by Dr Brian Stewart, general practitioner, dated 24 September 2014 to the Endocrinology Clinic at Western Hospital Adult Outpatients. Dr Stewart refers to Mr Medovarski’s recent HbA1c in July being 9.8 reflecting “poor control”.[82] Mr Medovarski was encouraged by Dr Stewart to perform home glucometer readings;
(e)on 21 January 2015, Mr Medovarski was reviewed by Dr Deepak Dutta, Endocrinologist, in charge of the Diabetics Clinic at Western Health. Dr Dutta reported in his letter of the same date that Mr Medovarski “does not record his blood sugars, and says he checks them relatively infrequently”.[83] His levels indicated poor diabetic control;
(f)Dr Sarah Qian, Endocrinology Registrar, wrote to Mr Medovarski’s general practitioner on 14 March 2018 about problems that continued with Mr Medovarski’s glycaemic control, and that he was continuing to liaise with a diabetes educator in the community weekly or fortnightly;[84]
(g)on 13 June 2018, Dr Papalia reviewed Mr Medovarski reporting in her letter of the same date that he continued to have “poorly controlled diabetes”.[85] Reference was made to Mr Medovarski having been recommended Metformin therapy, but that he was not taking that therapy;
(h)on 14 February 2020, Mr Medovarski’s general practitioner re-referred him to the Western Health Endocrinology Department for “poorly controlled DM”, with a note that he had been “discharged after missed appointment but needs re-engagement”.[86] Mr Medovarski saw a diabetes educator at the end of February 2020, who recommended that he discuss with his general practitioner that he commences on Optifast and the referral to Diabetes Rapid Access Clinic.[87] At the hearing, Mr Medovarski accepted that he had missed appointments with the endocrinologist in the past;[88] and
(i)Ms Louise Williams, Clinical Nurse Consultant – Diabetes, from Bolton Clarke, wrote to Mr Medovarski’s general practitioner on 10 March 2020, describing that their organisation was visiting him three times per week to attend to foot care, apply tubigrips, monitor BGL’s and oral medications. An indication was made that they were finding it “difficult to support [Mr Medovarski] with his medical management”.[89]
[76] Refer HTB at TB591.
[77] Refer Transcript Day 1 at P-21 & P-22.
[78] Ibid at P-22.
[79] Refer HTB at TB591-592.
[80] Ibid at TB600.
[81] Ibid at TB601.
[82] Ibid at TB614.
[83] Ibid at TB641
[84] Ibid at TB759 & TB60.
[85] Ibid at TB764 & TB765.
[86] Ibid at TB785.
[87] Ibid at TB787.
[88] Refer Transcript Day 1 at P-56.
[89] Ibid at TB789.
Despite those extensive efforts made by the endocrinologists and diabetes educators to assist Mr Medovarski over the years to manage the ongoing monitoring and medications aimed at controlling his diabetes, the Tribunal finds that Mr Medovarski was largely non-compliant. The Tribunal finds that Mr Medovarski failed at self-managing his diabetes effectively. This finding is based on the numerous remarks by his treating health professionals in his medical reports, referred to in paragraph [82], to the effect that his diabetes was poorly controlled, as reflected by Mr Medovarski’s longstanding high blood glucose level readings.
Mr Medovarski’s struggle to consistently comply with Treatment 1 is also evident from the comments of Ms Quek in the Medical Management Plan prepared for him following a Home Medication Review undertaken on 12 June 2020 at his home. Her report dated 18 June 2020 refers to Mr Medovarski having a poor understanding about the purpose of his medications.[90] Ms Quek states that he knew he had to take his tablets at mealtimes and inject his insulin prior to meals, three times per day. She states that he was known to miss his medications, due to sleeps or naps and had an episode where he missed his medications for an entire day. Ms Quek states that she assisted Mr Medovarski to set alarms on his phone to remind him to take his medications.[91]
[90] Ibid at TB808.
[91] Ibid.
Accordingly, the Tribunal finds that Treatment 1 is an available and appropriate evidence-based treatment for Mr Medovarski which he can, but has yet to, undertake on a regular and sustained basis. Were he to do so, the Tribunal finds that this treatment, by itself, or in combination with any or all of Treatments 2, 3 and 4), is likely to remedy his physical impairments by relieving (and substantially so) his diabetes, thereby minimising weight gain and relieving the symptomatology arising from his spinal degeneration, osteoarthritis and OSA.
Treatment 2 – diabetic-specific VLED
Mr Medovarski’s evidence was that he had complied with a diabetic-specific VLED as recommended to him by his treating general practitioners, endocrinologists, dieticians, diabetic educators, pharmacists, and by others assisting him at the hospital-based weight loss clinics.
The Tribunal notes there were specific periods of time over which Mr Medovarski lost a significant amount of weight when he was an inpatient in a hospital where the food he consumed was within the control of the hospital; or when he had a specific immediate need to lose weight (that is, he was being prepared for surgery), thereby motivating him to properly comply with the dietary recommendations made to him and to use Optifast meal replacements. Specifically:
(a)when Mr Medovarski altered his diet in 2014, he lost 5.6kg in weight and 5.5cm off his waist circumference.[92] At the hearing, Mr Medovarski agreed that when he had altered his diet, he had lost 5.6kg in a month;[93]
(b)Mr Medovarski attended a diabetes and weight loss clinic at the Austin on 15 August 2016 and was recorded to weigh 168.4kg at that time.[94] Mr Medovarski underwent his left hip replacement surgery the following year in April 2017. Mr Medovarski’s general practitioner at Altona Health recorded Mr Medovarski as weighing 144kg in May 2017; 142kg in June 2017; and 140kg in July 2017. This represented a very significant total weight loss of 28.4kg between August 2016 and July 2017;[95]
(c)on 20 January 2017, Dr Andrew Talbot, Consultant Nephrologist, reported that Mr Medovarski has lost 8kg to 9kg, on a diet of Optifast for breakfast and lunch with a normal dinner;[96] and
(d)on 20 March 2018, Mr Medovarski’s weight was recorded at the time of a sleep study as being 153.9kg.[97] On 13 June 2018, Mr Medovarski was listed for a laparoscopic gastric band procedure and he was recommended to commence on the Optifast diet in the weeks leading up to the surgery.[98] By September 2018, Mr Medovarski’s weight had reduced to 142kg.[99] At the hearing, Mr Medovarski agreed that he weighed 142kg as of this date.[100] This represented another very significant degree of weight loss of 11.9kg achieved by Mr Medovarski between March 2018 and September 2018.
[92] Refer HTB at TB614.
[93] Refer Transcript Day 1 at P-27.
[94] Refer HTB at TB685.
[95] Refer Transcript at P-50 & P-51 and Exhibit R1 at page 39.
[96] Refer HTB at TB715.
[97] Ibid at TB762.
[98] Ibid at TB764 & TB765.
[99] Ibid at TB766.
[100] Refer Transcript Day 1 at P-54.

This evidence satisfies the Tribunal that when Mr Medovarski is compliant with a diet, he is capable of losing a significant amount of weight. This is supported by the opinion of Dr Gayathlri Mathanasensrajah, Intern, Weight Control Clinic, at Austin Health who reviewed him on 27 July 2015 and stated in his letter to Mr Medovarski’s general practitioner that Mr Medovarski was “aware that the diet has the potential to help reduce his weight by 70kg to 80kg if he is compliant”.[101]
[101] Refer HTB at TB655.
Mr Medovarski’s treating health professionals have on many occasions referred to Mr Medovarski being non-compliant with his diet, eating too many carbohydrates and that they were informed by Mr Medovarski himself that he “sometimes gives in to cravings”,[102] or was “comfort eating” at times.[103] Mr Medovarski sought to deny those conversations, suggesting instead that he was misunderstood, or some of those matters recorded in the clinical records were fabricated. The Tribunal does not accept Mr Medovarski’s evidence in this regard and accepts that the statements in the medical records by several of his treating health professionals, consistently referring to Mr Medovarski as being non-compliant with his diet, were more reliable than Mr Medovarski’s memory about those matters. Specifically:
[102] Ibid at TB813.
[103] Refer Exhibit R3 at page 32.
(a)Dr Papalia refers in her report dated 13 November 2013 that Mr Medovarski reported “excessive weight gain in the order of 30kg in the last few years” and that he had acknowledged that “he is not compliant with regards to the low GI diet”.[104] This was put to Mr Medovarski at the hearing, and he said he was complying with the diet, but he said “at the end of the day… it wasn’t doing me any good”.[105] She made arrangements for him to be reviewed by the dietician in the clinic, to assist him with weight loss.[106] At the hearing, Mr Medovarski accepted that this recommendation had been made to him;[107]
[104] Refer HTB at TB600.
[105] Refer Transcript Day 1 at P-23.
[106] Ibid at TB601.
[107] Refer Transcript Day 1 at P-24.
(b)on 21 January 2015, Dr Dutta reported that Mr Medovarski’s weight was 159.5kg, with a weight gain of 15kg since November 2013, some of which “may be” oedema fluid, but that there was “obviously ongoing weight gain”.[108] Dr Dutta stated that this made it difficult to treat his diabetes, which required large doses of insulin (tying back into the negative impact of Mr Medovarski’s diabetes being “poorly controlled” and thereby requiring the use of insulin, and in high doses). Dr Dutta stated Mr Medovarski was on appropriate treatment for most of his other conditions but noted that Mr Medovarski had been “unable to afford CPAP” for his OSA. Mr Medovarski told the doctor he did not eat much, and the doctor recorded that Mr Medovarski had “declined further dietitian review” on that day;[109]
[108] Refer HTB at TB641.
[109] Ibid.
(c)on 27 July 2015, Dr Mathanasensrajah reviewed Mr Medovarski and stated in his report of the same date, that he was finding the diet “rather difficult to comply with”, and “there have been quite a few indiscretions”.[110] The doctor commented that there was a lot of counselling at the previous session regarding the diet, and the avoidance of carbohydrates in the context of establishing ketosis.[111] Dr Mathanasensrajah stated that “it is not clear how much of this Mr Medovarski has actually taken on board”.[112] At the hearing, Mr Medovarski gave evidence that it was not true what Dr Mathanasensrajah had stated in this report, because he said half of the food the doctor had mentioned he had been eating, he could not afford.[113] He denied having “four pieces of fruit, a plate of cannelloni, chicken, potato, and coleslaw for dinner”.[114] The Tribunal does not accept Mr Medovarski’s explanation. Almost all of those of meals, expect perhaps for the chicken, contained low-cost ingredients such as potatoes, cabbage and pasta. The Tribunal considers that the medical record by Dr Mathanasensrajah is an accurate representation of his discussion with Mr Medovarski, that Mr Medovarski was finding it difficult to comply with the diet and there had been quite a few indiscretions;
[110] Ibid at TB655.
[111] Ketosis in the body occurs when it does not have enough carbohydrates to burn for energy and instead, burns fat to make ketones, which the body uses as fuel.
[112] Ibid.at TB655.
[113] Refer Transcript Day 1 at P-34 and P-35.
[114] Ibid at P-35.
(d)on 11 April 2016, Mr Medovarski was reviewed in the Austin obesity clinic.[115] Dr Sonali Shah, Registrar, notes in her report of the same date, “poor compliance” to a VLED, and that Mr Medovarski continued to “snack in between meals”.[116] Dr Shah noted that Mr Medovarski continued to have high carbohydrate foods, including rice. At the hearing, Mr Medovarski denied this, and he also denied that he had gained weight in the setting of non-compliance with a VLED.[117] The Tribunal considers that the medical record by Dr Shah is an accurate representation of her discussion with Mr Medovarski that he was eating high carbohydrate food, such as rice, and was non-compliant with the VLED resulting in weight gain, as it was taken at the time of if this consultation and the Tribunal considers it more reliable than the memory of Mr Medovarski;
[115] Refer TB676.
[116] Ibid.
[117] Refer Transcript Day 1 at P-39.
(e)on 15 August 2016, Mr Medovarski was reviewed by Dr Lee at the Austin Diabetes and Weight Control Clinic. His weight was recorded to have increased to 168.4kg. It was noted that there was “poor compliance to VLED” and that he was having rice, pasta, sandwiches for lunch/dinner and Optifast for breakfast. He was noted as having “snacks between meals”.[118] At the hearing, Mr Medovarski gave evidence denying those matters.[119] The medical notes indicate that Mr Medovarski was cautioned regarding weight gain, and that he may not be eligible for bariatric surgery if his BMI was greater than 50. He was advised to adhere to dietary restrictions.[120] At the hearing, Mr Medovarski said he remembered this, but that it was “quite clear [the surgery] was never going to happen”. He suggested the doctor wrote down “something to make themselves look good”.[121] The Tribunal rejects this evidence by Mr Medovarski and accepts the assertions made by Dr Lee contained in these medical records, which were made on the same day of the consultation with Mr Medovarski, as an accurate representation of the discussions between them on 15 August 2016. The Tribunal does not accept Mr Medovarski’s denial of those matters because his denial is based on his memory of a consultation which took place in 2016, which the Tribunal considers to be unreliable;
[118] Refer HTB at TB685.
[119] Refer Transcript Day 1 at P-40 and P-42.
[120] Refer TB685.1 & TB685.2.
[121] Refer Transcript Day 1 at P-40.
(f)on 14 March 2018, Dr Qian reported that Mr Medovarski had continued on Optifast meals for breakfast and lunch, but “has spaghetti and other foods for dinner”.[122] Dr Qian states that Mr Medovarski was on the waitlist to have lap band surgery and she expected this to occur in the next three to four months. At the hearing, Mr Medovarski gave evidence that he was not always having those types of food for dinner but has spaghetti when he cooks it (about once every six weeks), but not much – “just a little bit, a handful”, because of the sugar levels;[123]
[122] Ibid at TB760.
[123] Refer Transcript Day 1 at P-53.
(g)Dr Papalia reviewed Mr Medovarski on 13 June 2018, reporting in her letter of the same date, that Mr Medovarski had been listed for a laparoscopic gastric band procedure and that he had been recommended to commence on the Optifast diet in the weeks leading up to his surgery, but had not started on the diet. His weight was recorded at 150kg. [124] The Tribunal is satisfied that even when Mr Medovarski had an opportunity presented to him to undergo bariatric surgery through the public health system, he did not comply with the recommended diet to reduce his BMI to below 50, to prepare him for this procedure; [125]
[124] Ibid at TB764 & TB765.
[125] Ibid.
(h)Mr Medovarski attended Dr De Siqueira on 28 May 2019.[126] Dr De Siqueira recorded that Mr Medovarski was “not eating properly” and had started Optifast two days prior. In the same clinical note, Dr De Siqueira states, “still not good diet; reinforced [importance] of good diet control”. At the hearing, Mr Medovarski did not accept this and asserted that this statement was “wrong”.[127] The Tribunal does not accept the evidence of Mr Medovarski and instead, considers that the medical notes taken on the same day as Dr De Siqueira’s consultation with Mr Medovarski are more reliable than Mr Medovarski’s memory of those events, and they accurately record the impression of the doctor as of 28 May 2019, that Mr Medovarski’s diet was “still not good”, and he was counselled by the doctor about this;
[126] Refer Exhibit R2 at page 195.
[127] Ibid at P-78.
(i)on 26 September 2019, Dr De Siqueira, in his clinical notes, recorded that he had reinforced with Mr Medovarski the importance of a regular diet and minimising carbohydrates.[128] At the hearing, Mr Medovarski said he and Dr De Siqueira had never discussed diets or anything of that nature and he was there every week to see the doctor. He denied this discussion took place.[129] The Tribunal considers it to be implausible that a general practitioner of a patient who has longstanding uncontrolled diabetes, OSA, and is morbidly obese, would never have discussed with them the need to control their diet. The Tribunal rejects Mr Medovarski’s evidence that he had never discussed diets with Dr De Siqueira. Instead, the Tribunal prefers and accepts that the medical records of Dr De Siqueira recorded that he had made recommendations to Mr Medovarski about his diet and discussed dietary issues on multiple occasion, is an accurate representation of what took place at those medical consultations;
[128] Refer Exhibit R2 at page 200 and Transcript Day 2 at P-80.
[129] Refer Transcript Day 2 at P-80.
(j)on or about 24 April 2020, Dr De alwis at Western Health undertook a diabetes clinical review of Mr Medovarski.[130] Dr De alwis recommended that Mr Medovarski reduce his calorie intake “by portion control, reducing carbohydrate intake, eg. Rice, pasta, roti, bread, juice, soft drink and increasing fibre and vegetables in diet if needed”.[131] At the hearing, Mr Medovarski said he had been complying with the dietary recommendations.[132] Dr De alwis recommended that Mr Medovarski’s general practitioner refer him to a community-based dietician under a care plan.[133] The Tribunal finds that this medical record accurately recorded that as at 24 April 2020, Mr Medovarski was assessed as having to reduce his calorie intake, from which the Tribunal infers that Mr Medovarski’s calorie intake at that time was high, and he was non-compliant with the recommended VLED;
[130] Ibid at TB800.
[131] Ibid at 801.
[132] Refer Transcript Day 1 at P-59.
[133] Ibid at TB801.
(k)on 21 July 2020 Ms Quek sent an email to Dr Winter stating as follows:[134]
[134] Refer Exhibit R3 at page 25.
[Mr Medovarski] has stopped taking Optislim and is having normal food. I have spoken to him numerous times about reducing this food portions as well as his carbohydrate intake (when he has carbohydrates, he has a pot of rice or 4 to 8 slices of white bread in one sitting).
At the hearing, Mr Medovarski was taken to this clinical note and he accepted that he had stopped the Optislim diet, but he did not accept that he ate this much. He said he did not have bread at his home, most of the time.[135] The Tribunal does not accept this evidence because there is no reason why Ms Quek would fabricate such detailed positive assertions about Mr Medovarski’s eating habits. The Tribunal prefers the reliability of the contemporaneous clinical notes made by Ms Quek, over Mr Medovarski’s memory as to his dietary habits at this time (which the Tribunal considers to be unreliable);
[135] Refer Transcript Day 2 at P-82.
(l)in a further email from Ms Quek to Dr Winter on 17 August 2020, she states as follows (bold emphasis added):[136]
[136] Refer Exhibit R3 at page 31 & 32 and Transcript Day 2 at P-83.
His blood glucose levels have fluctuated significantly, varies from week to week, as Zlatko has been eating rolls and pancakes as a form of comfort eating.
(m)in a further clinical note of a telephone consultation between Mr Medovarski and Dr Winter on 18 August 2020, Dr Winter states (bold emphasis added): [137]
[137] Refer Exhibit R3 at page 32 and Transcript Day 2 at P-84.
Obesity
…
- using meal replacement and watching snack intake - but varied comfort eating of high CHO foods
- weight is 165kg today.
Management
Ongoing encouraged re healthy diet choices
(n)on 21 August 2020 Dr De alwis undertook a further diabetes clinical review of Mr Medovarski reporting that she had discussed with him, “diet, consistency and avoiding carbohydrate snacks”.[138] The doctor records that Mr Medovarski had said he was aware of what he needed to avoid, but that “he sometimes gives in to cravings”[139]. The Tribunal finds that these comments were made by Mr Medovarski;
(o)on 25 August 2020, Mr Medovarski saw Dr Winter. Dr Winter’s clinical notes record that Mr Medovarski had told her he liked “fresh bread but acknowledges this increases his [blood sugar levels]”. She also records in her notes that Mr Medovarski had declined “dietician referral – has support from [Ms Quek] and feels he knows what to do”;[140]
(p)Mr Medovarski’s general practitioner, Dr Winter, reports in a letter dated 18 February 2021 that he had been rejected from the Austin Bariatric Clinic and referred to the Bariatric Service at the Alfred.[141] A case conference at the Austin took place on 25 February 2021 and the clinical notes record that Mr Medovarski had been “non-compliant with medical weight loss”, and was discharged from “endo bariatrics” for failing to attend two group sessions.[142] At the hearing, Mr Medovarski stated these assertions were “partly wrong” as he “didn’t refuse to attend appointments” but rather “couldn’t afford to get there”.[143] He also stated that it was “all made up… they just said no and that was it”.[144]
(q)on 19 February 2021, Ms Quek sent an email to Dr Winter to report that Mr Medovarski was conscious of his weight gain, but had been “unable to control his cravings” which was attributed in part to the high dose of insulin, as well as his lack of exercise;[145] and
(r)on 23 March 2021, Mr Medovarski’s general practitioner wrote to the Western Health Diabetes Clinic to advise that Mr Medovarski was planning to commence on Dulaglutide that week. This drug acts as an agonist at the GLP-1 receptor. This letter also records that he was “not keen to see a dietician”, and that he, “sporadically uses diet shakes as a meal replacement”.[146]
[138] Refer HTB at TB813.
[139] Ibid.
[140] Refer Exhibit R3 at page 33.
[141] Refer HTB at TB845.
[142] Ibid at TB848.
[143] Refer Transcript Day 1 at P-64.
[144] Ibid at P-66.
[145] Refer Exhibit R3 at page 58 and refer Transcript Day 2 at P-88.
[146] Ibid at TB861.
During cross-examination, Mr Medovarski accepted that, as set out in Ms McLaughlin’s Report, that he had told her that he was not on Optifast at the time she examined him (on 29 July 2021).[147] He also accepted that he had told Ms McLaughlin that he had been having things like eggs and tomatoes (fried), sometimes soup for breakfast and a bacon sandwich (not a roll) for lunch. He said there was a reason for this which related to his blood sugar levels but no further explanation about this was provided.[148] He later gave evidence that he only had bacon once month.[149] Mr Nolan put to Mr Medovarski that he had told Ms McLaughlin that he ate the following food for dinner: chicken schnitzel, mashed potatoes, pork chops or ribs or kiev and cabbage stew.[150] He denied this. Then, Mr Medovarski accepted that this was his diet, but the way it was put to him was “wrong”[151]. He explained that he would prepare portions that would last him for a number of days.[152]
[147] Ibid at TB395 and refer Transcript Day 2 at P-103.
[148] Refer Transcript Day 2 at P103.
[149] Ibid at P-108.
[150] Ibid at P-104.
[151] Ibid at P-105.
[152] Ibid.
In Ms McLaughlin’s Report, she stated that Mr Medovarski had “provided an inconsistent account of his dietary habits”, including that he stated he was “starving to death” and “they make up” that he was not sticking to his diet; while also stating that he “wouldn’t know how” to change his diet and the medications he was taking were “putting the weight on”.[153].
[153] Refer HTB at TB396.
The Tribunal notes the references in Ms McLaughlin’s Report to Mr Medovarski having made the following statements to her – “I wouldn’t know how to change my diet too much”; “this is the food I ate all my life, I love it”; and that he knew “not to eat too much”. At the hearing, Mr Medovarski disputed that he had said he would not know how to change his diet, and suggested Mr McLaughlin had not properly understood him. He said he could not recall what he said to her, but he did not accept that he had this conversation with her.[154] The Tribunal prefers Ms McLaughlin’s evidence over the oral evidence given by Mr Medovarski at the hearing, as there is no reason why she would fabricate such matters and Mr Medovarski could not recall what he had said to her during the assessment. Ms McLaughlin took contemporaneous notes throughout the assessment process and for this reason, the Tribunal considers that her account of what Mr Medovarski had informed her was more reliable than Mr Medovarski’s memory of those conversations.
[154] Ibid at P-134 & P135.
Mr Medovarski sought to minimise or downplay the significance of what was recorded about his eating habits and non-compliance with dietary recommendations in the medical and clinical records, but his evidence about this was unpersuasive. No plausible reason was given by him at the hearing, when asked, as to why so many different health professionals would have repeatedly made false assertions in their clinical notes about his eating habits and non-compliance with dietary recommendations.
Mr Medovarski gave evidence at the hearing that he was compliant with a VLED. The Tribunal does not accept this evidence and considers it implausible in light of the numerous inconsistent accounts given by various medical and clinical health professionals noting the history Mr Medovarski had given them at various times during their consultations with him over the years, specifically, those as set out in paragraph [89] of these Reasons for Decision. The Tribunal is satisfied that Mr Medovarski was largely non-compliant with the dietary recommendations made to him over the years, except for certain discrete periods as referred to in paragraph [87] above. The Tribunal accepts the accounts provided in those medical and clinical notes to be more reliable than the memory of Mr Medovarski as to what he might have reported to those health professionals at various times about his dietary intake, and whether he was replacing breakfast and lunch meals with Optifast, as recommended by the weight loss clinicians.
At the hearing, Mr Eather contended there were barriers to Mr Medovarski losing weight. Mr Eather submitted that Mr Medovarski was currently seeing a diabetic educator on a regular basis, who was assisting him to monitor his diet. Mr Eather highlighted that Mr Medovarski had gained 60kg, which Mr Eather attributed to (among other things), the side effects of increased insulin.[155] In relation to this contention and Mr Medovarski’s claim that the diets were not doing him any good (see paragraph [89(a)] of these Reasons for Decision), the Tribunal notes that in Dr Hwang’s Report, he stated there was a “further metabolic cause” for Mr Medovarski’s weight gain, due to him being on insulin.[156] However, the reason Mr Medovarski requires insulin, or high doses of insulin, is because his diabetes has been “poorly controlled” on account of Mr Medovarski not effectively undertaking Treatment 1 on a regular and consistent basis.
[155] Refer Transcript Day 1 at P-6.
[156] Refer HTB at TB433. The report refers to “weight loss” but Dr Hwang confirmed in correspondence to the Registry under cover of the Respondent’s email dated 4 August 2022 that this was an error, and it was intended to be a reference to “weight gain”.

In his report, Dr Hwang stated that Mr Medovarski had been waiting for an assessment for bariatric surgery for several years and had not yet received an appointment.[258] Based on the medical evidence at the hearing and as presented in the medical records, this assertion by Mr Medovarski to Dr Hwang was factually incorrect. He was being prepared for surgery in 2019, as referred to above, but failed to comply with the pre-operative requirements. Dr Hwang states in his Report he did not anticipate that Mr Medovarski would be able to obtain bariatric surgery “in the near future”, and that while he was waiting, he expected Mr Medovarski’s condition “to continue or possibly worsen”.[259] This opinion appears to have been based on the misinformation provided by Mr Medovarski to Dr Hwang that he had been waiting for an assessment for bariatric surgery for several years and had not yet received an appointment. In his report, Dr Hwang also noted Mr Medovarski’s age and further degenerative diseases, which he considered “may progress over the next few years”, and opined as follows:[260]
I would not expect that bariatric surgery is likely to lead to significant improvement. At most, it may achieve minor improvement in his mobility and general function compared to the natural course of progress which would be expected to deteriorate over the next few years.
[258] Refer HTB at TB431.
[259] Ibid.
[260] Ibid at TB432. Mr Eather specifically drew the Tribunal’s attention to this part of Dr Hwang’s Report.
As outlined in paragraph [96] above, at the hearing, Dr Hwang resiled from this opinion and agreed that it was realistic that Mr Medovarski might be able to reduce his weight to 100kg to 120kg if he were to comply with the recommended diets; undertaken bariatric surgery and engage in exercise as guided by an exercise physiologist.
The Tribunal finds that Treatment 4 is an available and appropriate evidence-based treatment for Mr Medovarski which he can, but has yet to, undertake. Were he to do so, the Tribunal finds that this treatment, by itself, or in combination with any or all of Treatments 1, 2 and 3), is likely to remedy his physical impairments by relieving (and substantially so) his bodily state of morbid obesity, diabetes, and in turn, the symptomatology arising from his spinal degeneration, osteoarthritis and OSA.
Based on the findings of the Tribunal in paragraphs [85], [102], [117] and [145] the Tribunal is unable to conclude that that there are “no available medical, clinical, or other treatments” (see Rule 5.4 of the Access Rules), that are likely to remedy Mr Medovarski’s physical impairments. Accordingly, the Tribunal concludes that in respect of Mr Medovarski’s physical impairments, the criterion under s 24(1)(b) of the NDIS Act is not met. On account of this being a mandatory criterion in order for a person to satisfy the s 24 “disability requirements” under the Act, it is not necessary for the Tribunal to proceed to a consideration of whether Mr Medovarski’s physical impairments satisfy the other mandatory criterion under s 24(1).
Mr Medovarski’s sensory impairment arising from problems with his vision
The Tribunal has found that Mr Medovarski has a disability arising from an impairment to his sensory function arising from problems with his vision.
The medical records show that in mid-2017 a cortical cataract was discovered in Mr Medovarski’s right eye and was subsequently extracted. Mr Medovarski claimed that he had surgery in the left eye also for cancer.[261]
[261] Refer Transcript Day 1 at P-18.
Mr Medovarski was examined by an optometrist, Ms Nguyen, and in her report dated 8 April 2020, she states as follows (emphasis added):[262]
Ocular posterior segment examination through dilated pupils showed no diabetic retinopathy in either eye. There was no macular oedema. L traumatic optic neuropathy with previous vitrectomy was noted. As Mr Medovarski has diabetes, optometry revie(sic) in 12 months was recommended. They were advised to return sooner if there is any change in vision. The importance of good control of blood sugar and blood pressure in minimising diabetic retinopathy was emphasised.
[262] Refer HTB at TB799.
In a report by Dr Winter on 3 July 2020, she states that Mr Medovarski has “poor vision” that “affects him daily as it is difficult to see with both distance and near vision being affected”. Dr Winter states that Mr Medovarski has difficulty managing his medications and needs assistance with reading fine print.[263] Seemingly inconsistent with this report by Dr Winter, especially the indication that it is difficult for him to see with “distance” vision, Mr Medovarski stated his vision is sufficient to drive.[264] He holds a driver’s and taxi licence, and he gave evidence that he drives his van.[265]
[263] Ibid at TB187.
[264] Refer Transcript Day 2 at P-111.
[265] Refer Transcript Day 2 at P-115 & P-119.
Mr Medovarski saw an ophthalmologist, Dr Aaron Yeung, on 12 August 2020 who states that he had undergone significant treatment for his diabetic retinopathy. Dr Yeung states that he has a good amount of PRP (platelet rich plasma) treatment to both eyes, which has resulted in a small epiretinal membrane in his left eye. He says that both of Mr Medovarski’s maculae are “otherwise dry”. Dr Yeung records Mr Medovarski’s visual acuity is 6/6 in the right eye (that is, representing normal vision) and 6/12 in the left eye (that is, representing half normal vision), that his intraocular pressures are normal and that he has a significant amount of “punctate epithelial erosions”. Dr Yeung recommended frequent lubrication to help clarify the vision in his left eye and suggested ongoing annual review.[266]
[266] Refer HTB at TB197.
Mr Medovarski has been prescribed with corrective reading glasses.[267]
[267] Ibid at TB400 & TB402.
There was no medical evidence before the Tribunal indicating that there were further interventions, surgical or otherwise, planned for Mr Medovarski planned for the future. The Tribunal is satisfied that Mr Medovarski’s sensory impairment due to problems with his vision is permanent and that s 24(1)(b) of the NDIS Act is satisfied. The Tribunal will proceed to consider whether the next mandatory criterion under s 24(1)(c) of the NDIS Act is satisfied.
Section 24(1)(c) – substantially reduced functional capacity
As mentioned above, Mr Medovarski holds a licence and drives his car. In Ms McLaughlin’s Report, she records that Mr Medovarski had told her, “I drive. I am comfortable driving. I feel safe; otherwise, I wouldn’t drive…I had my eyes tested and they are okay for driving…”.[268] In Ms McLaughlin’s Report, she also states that Mr Medovarski has informed her as follows, “I go pay bills myself. I can still read all the mail with my glasses. I only got them recently. I was avoiding the phone and all that because I couldn’t see properly. But I had surgery in both eyes not long ago”.[269]
[268] Refer HTB at TB400.
[269] Ibid.
Mr Medovarski has, in effect, normal vision in his right eye and half normal vision in his left eye. He has been issued with prescription glasses to assist in correcting his vision. Mr Medovarski’s vision is sufficient to allow him to hold a driver’s license and he currently drives his van on public roads. He is able to manage his own financial affairs which requires him to read certain financial information. During the independent occupational therapy assessment, Ms McLaughlin did not observe Mr Medovarski experiencing difficulty seeing, as he walked around inside his residential unit. The Tribunal accepts the Mr Medovarski may experience challenges when reading fine print but is not satisfied on the limited medical evidence before it in respect of Mr Medovarski’s vision, that his sensory impairment from the problems with his vision has resulted in substantially reduced functional capacity in any one of the six prescribed activities in s 24(1)(c) of the NDIS Act.
CONSIDERATION OF WHETHER MR MEDOVARSKI MEETS THE “EARLY INTERVENTION REQUIREMENTS” UNDER S 25
The Tribunal has concluded that Mr Medovarski does not meet the “disability requirements” under s 24. The Tribunal must proceed to a consideration as to whether Mr Medovarski meets the “early intervention requirements” under s 25 of the NDIS Act.
Section 25(1) of the NDIS Act provides as follows:
(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; or
(ii)has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent; or
(iii)      is a child who has developmental delay; 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.
Note:   In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
The Tribunal has considered Part 6 of the Access Rules dealing with the assessment of when a person meets the early intervention requirements. Section 25(1) is reflected in Rule 6.2 of the Access Rules, Rules 6.4 to 6.7 deal with the issue of “permanency” and Rule 6.8 concerns decision about whether the provision of early intervention supports is likely to benefit the person.
The NDIA contended that Mr Medovarski did not meet the early intervention requirements because:[270]
(a)his claimed impairments are not “permanent”, as required under s 25(1)(a) of the NDIS Act;
(b)the evidence does not demonstrate:
(i)the provision of early intervention supports that are likely to benefit Mr Medovarski to reduce his needs for support; or
(ii)address the supports he requires and the outcomes to be achieved in relation to his functional capacity, as required by s 25(1)(b) of the NDIS Act; and
(c)the evidence provided does not indicate the early intervention supports likely to benefit the Applicant by achieving one or more of the outcomes listed in s 25(1)(c) of the NDIS Act. The NDIA contended there is no indication in the evidence provided, as to what benefits may or may not be experienced from Mr Medovarski receiving support.
[270] Refer NDIA’s Closing Submissions at paragraph [115].
Mr Medovarski’s Opening Statement and his Reply Closing Submissions did not specifically address the mandatory criteria under s 25 of the NDIS Act.
Under s 25, there are three mandatory requirements that a person must meet in order to meet the “early intervention requirements” under the NDIS Act. The first requirement, as relevant to Mr Medovarski, is that he must have one or more identified intellectual, cognitive, neurological, sensory, or physical impairments that are, or are likely to be, permanent or impairments are attributable to a psychiatric condition and are, or are likely to be, permanent. The Tribunal has found that Mr Medovarski has one impairment which met this description, being his sensory impairment arising from the problems with his vision.
The second requirement under s 25 is that the provision of early intervention supports for the person is likely to benefit the person by reducing their future needs for supports in relation to disability. Relevantly, the Access Guidelines provide as follows (footnotes omitted):[271]
[271] Refer Access Guidelines at page 13.
How will early intervention help you?
We need to decide that getting early intervention supports means you’ll likely need less disability supports in the future.
We need to know that early intervention supports will help you with at least one of the following:
•addressing the impact of your impairment on your ability to move around, communicate, socialise, learn, look after yourself and organise your life.
•          preventing your functional capacity from getting worse.
•          improving your functional capacity.
•supporting your informal supports, which includes building their skills to help you.
To help us decide if the early intervention will help you in these ways, we look at:
•          how your impairment might change over time
•          how long you’ve had your impairment
•          if there’s been a significant change to your impairment
•          if your needs are likely to change soon, such as if you’re finishing school.
In Mr Medovarski’s Opening Statement, it was contended that if Mr Medovarski was granted access to the scheme it would mean his “overall health needs” would be met appropriately by the scheme. The specific interventions identified included the cost of “his admission to the local pool for hydrotherapy” and “payment of such activities”. It would also include payment for “nursing support”. Further, it was stated that access to the NDIS would help him “to achieve his goals of increased independence in the home and community and increased social participation and contribution” which the Tribunal understands to be a request for core supports to assist him with personal care and to access the community. At the commencement of the hearing, Mr Eather submitted that Mr Medovarski was seeking a scooter that met his physical needs, a new chair, bathroom equipment, payment of nurses to treat his leg in terms of changing bandages and attending to his other needs related to his health conditions, payment of his fishing activities with the local fishing group and funding for health professionals such as physiotherapists and occupational therapists to increase his capacity in terms of mobility and strength and helping him increase his independence and safety in the home and the community.[272]
[272] Refer Transcript Day 1 at P-17 & P-18.
However, there are no supports specifically identified by Mr Medovarski which are aimed at building his functional capacity or otherwise intended to reduce his future disability-related needs by reducing the level of his sensory impairment or preventing his vision impairment from deteriorating. The medical evidence before the Tribunal as referred to above in paragraph [149] provides that the proper diabetic control is the intervention that will protect Mr Medovarski against a deterioration of his vision (in terms of minimising any diabetic retinopathy). Otherwise, Mr Medovarski had already received intervention in the form of surgery to his eyes (which remains available to Mr Medovarski should any future need for surgery arise), and an optometrist has issued him with prescriptive glasses.
For this reason, the Tribunal could not identify any early intervention support that was proposed to be provided to Mr Medovarski and are likely to benefit him, by reducing his future needs for supports in relation to disability arising from his sensory impairment related to his vision. The Tribunal is not satisfied that Mr Medovarski has met this second early intervention requirement under s 25(1)(b) of the NDIA Act in respect of his permanent sensory impairment arising from the problems with his vision. As the requirements under s 25(1) are cumulative, it is not necessary to proceed to a consideration of whether the third early intervention requirement under s 25(1)(c) of the NDIS Act is met.
The Tribunal concludes that Mr Medovarski does not meet the early intervention requirements under s 25 of the NDIS Act because he does not meet the second mandatory requirement under s 25(1)(b).
CONCLUSION
The Tribunal has found that Mr Medovarski has disabilities arising from the physical impairments described in paragraph [55]. However, the Tribunal in not satisfied that his physical impairments are, or are likely to be, permanent, and for this reason, Mr Medovarski does not meet the criterion under s 24(1)(b) of the NDIS Act in respect of those impairments.
The Tribunal has found that Mr Medovarski has disabilities arising from a sensory impairment due to problems with his vision. The Tribunal is satisfied that his sensory impairment is, or is likely to be, permanent. However, the Tribunal is not satisfied that his sensory impairment has resulted in a substantially reduced functional capacity in any one of the six prescribed activities in s 24(1)(c) of the NDIS Act.
Based on those conclusions, the Tribunal concludes that Mr Medovarski does not meet the “disability requirements” under s 24 of the NDIS Act. The Tribunal has also concluded that Mr Medovarski does not meet the “early intervention” requirements under s 25 of the NDIS Act.
For those reasons, the Tribunal concludes that Mr Medovarski does not meet the access requirements under s 21 of the NDIS Act. Accordingly, the Tribunal affirms the Decision under Review.
NON-BINDING OBSERVATIONS
The Tribunal refers to the matters set out in paragraphs [12] to [18] of these Reasons for Decision and makes the following non-binding observations to assist Mr Medovarski who was not legally represented in this proceeding. The Tribunal, as constituted, does not hold medical qualifications but it did gain an impression that Mr Medovarski may have impairments relating to his mental health function and/or his cognitive function.[273] As discussed in those paragraphs, there is limited medical evidence before the Tribunal about those matters. Mr Medovarski and his treating health professionals may wish to pursue some formal assessments relating to Mr Medovarski’s mental health and cognitive function to explore these matters. If it is considered that by those examining or treating Mr Medovarski for any such impairments that impact upon Mr Medovarski’s ability to self-manage his medical and bodily conditions (in particular his capacity to comply with recommendations made to him in relation to Treatments 1 to 4 inclusive), it may be beneficial for to him to substantively address any such mental health or cognitive dysfunction.
[273] This impression was gained throughout the hearing generally, including when Mr Medovarski gave the evidence referred to in paragraph [107] of these Reasons for Decision.
The Tribunal encourages Mr Medovarski to keep an open mind in relation to all treatment recommendations made of him by each of his treating health professionals and to make every future endeavour to comply with those recommendations (and the processes associated with them). He may wish to maintain a logbook recording the medical and clinical recommendations made to him from this point forward, and what he has done to comply with those recommendations going forward including keeping a precise diary of his dietary intake.
Mr Medovarski is at liberty to make a new request to the NDIA under s 18 of the NDIS Act, to become a participant in the NDIS, should he wish to do so. As mentioned above, he must do so before he turns 65 years of age in order to meet the “age requirements” under s 22 of the NDIS Act.

I certify that the preceding 173 (one-hundred and seventy-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member K. Parker

..........................[sgd]..............................................
Associate
Dated: 19 August 2022

Dates of hearing: 17 and 18 August 2021

Date final submissions received: 9 August 2022

Advocate for the Applicant at the hearing: Mr Mark Eather, (formerly) Senior NDIS Appeals Officer, ADEC

Counsel for the Respondent:

Mr Phillip Nolan of counsel

Solicitors for the Respondent:

Mr Sarah Wise, In-house Lawyer, National Disability Insurance Scheme

[2022] AATA 2737

19 August 2022

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Standing

Statutory Construction

Dates of hearing:	17 and 18 August 2021
Date final submissions received:	9 August 2022
Advocate for the Applicant at the hearing:	Mr Mark Eather, (formerly) Senior NDIS Appeals Officer, ADEC
Counsel for the Respondent:	Mr Phillip Nolan of counsel
Solicitors for the Respondent:	Mr Sarah Wise, In-house Lawyer, National Disability Insurance Scheme