Peters and Secretary, Department of Social Services (Social services second review)
[2021] AATA 2250
•13 July 2021
Peters and Secretary, Department of Social Services (Social services second review) [2021] AATA 2250 (13 July 2021)
Division:GENERAL DIVISION
File Number: 2019/8314
Re:Mr Ronald Peters
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Ms A E Burke AO, Member
Date:13 July 2021
Place:Melbourne
The Tribunal sets aside the decision under review and remits the matter for reconsideration with a direction that the Applicant satisfies section 94(1)(a), (b) and (c) of the Social Security Act 1991 (Cth).
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Ms A E Burke AO, Member
Catchwords
SOCIAL SECURITY – application for disability support pension – whether qualified – whether insufficient medical evidence provided – whether impairment attracts rating of 20 points or more under Impairment Tables – whether permanently blind - where program of support had not been undertaken – decision under review set aside.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011Cases
Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558
Sesalim v Secretary, Department of Social Services [2018] FCA 1159
Secondary Materials
Guide to Social Security Law, Department of Social Services
REASONS FOR DECISION
Ms A E Burke AO, Member
13 July 2021
INTRODUCTION
Mr Peters (the Applicant) is seeking a second tier review of the decision made by the Secretary, Department of Social Services (the Respondent) to refuse to grant him a Disability Support Pension (DSP), pursuant to section 94 of the Social Security Act 1991 (Cth) (the Act).
Mr Peters lodged a claim for DSP on 20 September 2018. On 13 October 2018, Centrelink rejected Mr Peters’ claim for DSP, as he did not have an impairment rating of 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). On 14 June 2019 a Centrelink Authorised Review Officer (ARO) affirmed the decision. Mr Peters sought review of the decision by the ARO at the Social Services and Child Support Division of this Tribunal (Tier 1), which affirmed the decision on 18 November 2019. Centrelink is the service provider for the then Department of Human Services, now Services Australia.
The application was heard via telephone on 21 May 2021. Mr Peters was represented by Ms Tanya Harding, an Advocate from the Rights, Information and Advocacy Centre (RIAC). Ms Laura Hannigan, Solicitor in the Legal Services Division of Services Australia, appeared for the Respondent. Mr Peters gave evidence under affirmation and Dr Sandra Armstrong of the Health Profession Advisory Unit (HPAU) of Services Australia appeared as an expert medical witness for the Respondent.
THE ISSUES IN CONTENTION
The issue in contention is whether Mr Peters was qualified for a DSP from the date of his claim, 20 September 2018, to a date 13 weeks thereafter, 20 December 2018 (the qualifying period). This is in accordance with section 4(1) of Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act).
The Tribunal must consider whether Mr Peters had:
(a)a physical, intellectual or psychiatric impairment(s);
(b)a fully diagnosed, treated and stabilised condition(s) which results in impairments attracting 20 points or more under the the Impairment Tables; and
(c)a continuing inability to work.
BACKGROUND
Mr Peters is a 62-year-old who lives alone in regional Victoria. Mr Peters completed Year 11 and holds various welding, fabricating and electrical certificates. Prior to his stroke, Mr Peters worked as a mechanical engineer at a cannery, a workshop supervisor for a welding and fabricating business. and as a maintenance supervisor for a large linen and garment service for seven years. Mr Peters currently receives DSP, which was granted on 2 March 2021, following a subsequent claim for DSP.
On 16 January 2018 Mr Peters suffered a left midbrain and thalamic infarct (Ischaemic stroke). He was hospitalised as a result and subsequently spent six months in rehabilitation.
On 20 September 2018, Mr Peters made an application for DSP citing his medical conditions as “stroke on 16/1/18, diplopia and lethargy”.
On 8 October 2018 Centrelink undertook a DSP Medical assessment on Mr Peters’ DSP application. Centrelink determined Mr Peters was manifestly medically ineligible as his conditions were not fully diagnosed, treated and stabilised at the date of his claim. The assessor (an occupational therapist) found:
Left midbrain and thalamic infarct
Medical information indicates the onset of the medical condition to be 16/01/2018 with ongoing diplopia, right sided weakness and lethargy. With consideration to the nature of the condition, improvements following are stroke are expected for up to 12 months post the date of onset. There is no medical information available to indicate whether claimant has reached maximal improvement. Therefore as claimant may have further functional improvements, this condition is unable to be considered to be fully treated and stabilised at this time.
Additionally, there is no information available from an ophthalmologist to confirm his ongoing diplopia, as per table 12’s diagnostic criteria.
On 14 June 2019 a departmental ARO affirmed the earlier Centrelink finding on internal review. The ARO stated the following:
On the evidence before me, I have found that your conditions of Left midbrain and thalamic infarct (stroke) and diplopia (double vision) cannot be considered permanent as defined in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011.
As indicated above, a permanent condition is one that has been fully diagnosed, treated and stabilised, is likely to continue for at least two years, and it is unlikely that there will be any significant functional improvement within that time. If a condition is not considered fully diagnosed, treated and stabilised, social security law says that an impairment rating cannot be assigned.
The department must be satisfied that you have undertaken and exhausted all reasonable treatment options (including secondary rehabilitation) and that no further treatment or investigation is planned or needed.
A condition is considered fully treated if, it is determined that the person has received all reasonable treatment or rehabilitation for the condition.
Also considered is whether treatment is still continuing or is planned in the next two years. This is because the stability of a condition may depend on whether reasonable treatment has been undertaken, is being undertaken, or is planned to be undertaken.
The medical evidence you provided to support your claim for Disability Support Pension indicated you suffer from the conditions of left midbrain and thalamic infarct and diplopia following a stroke that occurred in January 2018.
The conditions of left midbrain and thalamic infarct are not considered fully treated and stabilised during the relevant period as improvements following the stroke are expected for up to 12 months post the date of onset. There is no medical information available to indicate whether you have reached maximal improvement, however as you may have further functional improvements, this condition is unable to be considered to be fully treated and stabilised at this time.
In relation to the condition of diplopia, there is no information available from an ophthalmologist to confirm the condition is permanent and that it has been fully treated and stabilised. Accordingly, an impairment rating was correctly not assigned for this condition during the ‘relevant period’.
On 18 November 2019 AAT Tier 1 affirmed the ARO decision to reject Mr Peters’ DSP claim. AAT Tier 1 awarded Mr Peters an impairment rating of five points, under Table 12 – Visual Function, as Member Markov found Mr Peters’ visual impairment, which he concluded was due solely to the diplopia, was mild. The Member determined no impairment rating could be assigned to Mr Peters’ tunnel vision, as this was not diagnosed at the date of claim. The Member did not address whether Mr Peters had a continuing inability to work as he did not satisfy section 94(1)(b) of the Act, and therefore was not qualified for the DSP at the date of his claim.
On 13 December 2019, Mr Peters sought a review of the Tier 1 decision by this division of the Tribunal (Tier 2), as he disagreed with the decision. He stated:
I don't believe the medical reports that the decision was based on are correct or reflect capabilities. I would like time to gather and present up to date medical reports.
On 1 April 2021, Dr Sandra Armstrong, general practitioner from the HPAU, provided a medical opinion regarding Mr Peters’ medical conditions for the purposes of this review:
I consider that Mr Peters’ diplopia was fully diagnosed, treated and stabilised, as at the qualification period, and the appropriate rating was 5 points on Table 12 (visual function). I consider that his tunnel vision/visual field constriction condition was not fully diagnosed, treated and stabilised, as at the qualification period. His other reported medical conditions were also not fully diagnosed, treated and stabilised, as at the qualification period. Therefore Mr Peters cannot be rated as having a continuing inability to work, as he has not been allocated a severe impairment rating of 20 points, or completed a Programme of Support and allocated a total of 20 points.
RELEVANT LEGISLATION AND ISSUES
Section 94(1) of the Act provides that a person is qualified for DSP if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person's impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
Paragraph 6(3)(a) of the Impairment Tables require that an impairment rating can only be assigned if the condition causing that impairment is “permanent”.
Paragraph 6(4) of the Impairment Tables states that a condition is “permanent” if:
(a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b) the condition has been fully treated; and
(c) the condition has been fully stabilised; and
(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
The introduction to each relevant Impairment Table requires that Self-report of symptoms alone is insufficient and There must be corroborating evidence of the person’s impairment.
Paragraph 6(5) of the Impairment Tables states:
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a) whether there is corroborating evidence of the condition; and
(b) what treatment or rehabilitation has occurred in relation to the condition; and
(c) whether treatment is continuing or is planned in the next 2 years.
Paragraph 6(6) of the Impairment Tables states:
For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b) The person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
For the purposes of paragraph 6(7) of the Impairment Tables, reasonable treatment is treatment that:
(a) is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c) can reliably be expected to result in a substantial improvement in functional capacity; and
(d) is regularly undertaken or performed; and
(e) has a high success rate; and
(f) carries a low risk to the person.
The Impairment Tables are function-based, rather than diagnosis-based. They describe functional activities, abilities, symptoms and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of an impairment and not to assess conditions.[1]
[1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 s 5(2).
Paragraph 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can, or could do; not on the basis of what a person chooses to do or what others do for the person.
Paragraph 6(8) of the Impairment Tables further provides that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned. In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment from the condition may not result in any functional impact.
Therefore, it is necessary to consider the Applicant’s medical conditions with reference to the applicable Impairment Tables.
Part 2 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (POS determination) lists a number of exemptions, to the general requirements that a person must participate in a program of support for at least 18 months, in cases where a person does not have a severe impairment.
The POS determination relevantly provides:
Part 2—Requirements for active participation
7 Requirements for active participation
…
(4) This subsection is satisfied in relation to a person and a program of support if:
(a) the program of support was terminated before the end of the relevant period; and
(b) the program of support was terminated because the person was unable, solely because of his or her impairment, to improve his or her capacity to prepare for, find or maintain work through continued participation in the program.
(5) This subsection is satisfied in relation to a person and a program of support if:
(a) At the end of the relevant period, the person is participating in the program of support; and
(b) The person is prevented, solely because of his or her impairment, from improving his or her capacity to prepare for, find or maintain work through continued participation in the program.
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
The evidence before the Tribunal included documents provided by the Respondent under s 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents”. Mr Peters lodged additional medical reports.
Does Mr Peters have a physical, intellectual or psychiatric impairment?
Section 94(1)(a) of the Act provides that to qualify for DSP in the first instance a person must suffer from an impairment.
The Respondent accepts that Mr Peters is suffering from impairments due to his stroke. The Tribunal finds that Mr Peters was living with these impairments during the qualifying period and therefore meets the requirements of section 94(1)(a) of the Act.
As noted above, section 94(1)(b) of the Act states that the second DSP qualification requirement is that the person’s impairment rating is 20 points or more under the Impairment Tables.
Does Mr Peters have medical conditions that result in impairments that can be rated 20 points or more under the Impairment Tables?
Mr Peters’ advocate advised the hearing that she was not a lawyer and that they had been unable to get legal assistance to support Mr Peters, despite trying many legal avenues.
Mr Peters’ advocate explained that Mr Peters had not submitted another application for DSP until 2021, as he had been awaiting advice from Victoria Legal Aid about whether it would fund his case. But no one had provided any guidance or advice to Mr Peters on how to proceed. Eventually, Mr Peters determined it would be best to lodge a new claim whilst he continued to pursue his application for review. Mr Peters’ advocate advised the Tribunal that she and Mr Peters did not understand why Centrelink continued to reject this claim, as Mr Peters’ subsequent DSP claim had been granted on the basis of identical medical evidence to his original claim, currently before the Tribunal.
Mr Peters advised the Tribunal that there had been no change or improvement in his vison since his stroke in 2018, and that no treatment had improved his vision. Mr Peters advised that he received no treatment beyond the eye-patch, which he has been wearing to mitigate his double vison. But the eye-patch only assists with seeing things directly in front of him and has no impact on his peripheral vison or depth perception. Mr Peters also advised that his specialist had informed him the condition was permanent and there is no prospect of improvement. Mr Peters could not understand why the letters from his ophthalmologist Dr Meagher, his consultant physician Dr De Silva, his optometrist Mr Graham Hill, and his general practitioner Dr Ball, were not sufficient for Centrelink to determine he was eligible for a DSP in 2018.
Mr Peters was confused by several statements in numerous doctors’ reports including the suggestion that prisms had come close to giving him single vision. No treating doctor had ever suggested he try prism glasses. Mr Peters has not driven since his stroke as he believes he would be a danger on the road. And no treating doctor had organised for an occupational assessment of his ability to drive safely. Additionally, at no stage had any treating doctor suggested he undertake “squint surgery”.
The Respondent contended that Mr Peters did not qualify for DSP under section 94 of the Act during the qualification period, as Mr Peters did not have a total impairment rating of 20 points or more under the Impairment Tables; and he did not have a continuing inability to work. Additionally, the Respondent contended that Mr Peters did not qualify for DSP under section 95 of the Act during the qualification period as he was not permanently blind.
Diplopia (Double vision)
On 2 February 2018 Dr Peter Meagher, ophthalmologist, provided a report on Mr Peters following his thalamic infarct, which notes Mr Peters “is certainly an interesting ocular motility problem”. In his report he states:
At review today, he certainly had a marked limitation of upgaze and a lesser, but quite prominent, limitation of downgaze. These gaze palsies are quite typical of thalamic infarcts. He did not have any retraction and nystagmus, and somewhat unusually, he had an exophoria rather than an esophoria. He complained of vertical diplopia, which I could not elicit clinically, but would most likely fit with askewed deviation, which are common with these lesions.
Unfortunately, the treatment is time, with no therapy, apart from occlusion being of any immediate use. He may recover in a three to four month period. If not, we will try some prismatic correction for him. I am not sure that a surgical solution will be an option here. I have asked to see him in another three months
On 15 June 2018 Dr David Ball, Mr Peters general practitioner since 2005, provided a Centrelink Medical Certificate that indicated Mr Peters suffered a stroke on 16 January 2018. He described it as permanent, with symptoms of diplopia, right-sided weakness and lethargy.
On 25 July 2018 Dr Janith De Silva, a consultant physician, reported on a follow-up review of Mr Peters for his ischaemic stroke affecting the midbrain and thalamus and causing him to have diplopia. In his report he states:
He wears an eyepatch to support with this and under the care of ophthalmology and awaiting further follow-up in September 2018. …
Other than the diplopia and headache, Ron is progressing reasonably well.
On 5 September 2018 Dr De Silva reported on a further review of Mr Peters, stating:
He is under ophthalmology follow-up and currently wears patch on the right side to avoid impact of the diplopia. His physical strength is normal at this stage. Headache has improved, but he is complaining of night sweats once in a while without any weight loss.
He is due for eye review in next few weeks’ time to monitor the progress in relation to his diplopia.
On 27 September 2018 Dr Meagher reported on a review of Mr Peters, noting:
My refractive findings were unchanged with 6/6 vision bilaterally. Today’s prescription was right -1.00 x 90, and left -0.7 × 8.5. 8 prism dioptres divided base-in and 7 prism dioptres base-down in the left eye came close to giving him single vision.
My examination suggests there should be less vertical prism, as the deviation did not appear that great, but I could not get any single vision and feared that this amount of vertical prism may be a little too much for him. He covers one eye much of the time and manages quite well.
My view is that since he has been at least three months with patching oft the eye, he should be able to legally drive a car, providing he passes an OT assessment. I would appreciate a visual field done at Graham Hill optometry, just to be sure the stroke has not caused any unexpected field defect.
…
I am not sure whether we can comfortably get him in a pair of glasses that will suit him, so he may need to continue occlusion therapy. If he is stable over the next six months or so, I might send him to the ocular motility unit at the Eye and Ear hospital, who could consider squint surgery to help him further.
On 5 December 2018 Dr De Silva reported on a further review of Mr Peters, stating:
Ron returned to the Neurovascular Clinic for follow-up. He has been progressing the same without any significant improvement of his diplopia. He is under the care of ophthalmology… Overall, he is progressing well except his ongoing diplopia.
On 18 January 2019, Dr Meagher provided a report to Mr Peters’ optometrist in which he opined:
This note confirms based on visual fields you’ve recently undertaken, that his peripheral field restriction is such that he would qualify for a blind pension. Coupled with his vertical diplopia from his previous thalamic stoke, he’s entitled to apply for a disability pension based on his visual problems.
On 21 January 2019 Mr Graham Hill, optometrist, provided a report to Dr Ball, Mr Peters’ GP, stating:
He has unstable diplopia which is only managed by occlusion.
He has “tunnel vision” and his central vision is 6/7.5 R&L.
He visuals are constricted to within 20degrees which qualifies him for a blind pension.
I have spoken to Peter Meagher and he supports this assessment.
On 15 May 2019 Dr De Silva reported on a further review of Mr Peters, stating:
I reviewed Ron in the Neurovascular Clinic as per his ischaemic stroke. Overall, he has been progressing well, his diplopia has not improved much. He is under Ophthalmology follow-up for that and awaiting to consider glasses with prisms to rectify his diplopia. His known risk factors are under control; however, he is having excessive sleepiness during the day with inadequate response to his headache while taking amitriptyline 10mg nocte.
On 7 October 2019 Dr Bell provided a report for Mr Peters Centrelink application, in which he states:
Ron suffered a thalamic stroke in January 2018. This caused diplopia (double vision) and tunnel vision (measured as constricted to within 20 degrees).
He has seen an ophthalmologist and continues to see an optometrist.
My understanding is that is eye changes are permanent and have now stabilised and will not improve.
On 30 September 2020 Dr Meagher provided a report to Mr Peters for his DSP review, in which he states:
There seems to be some confusion regarding Ron Peters.
Based on the visual fields that Mr Hill has performed and in addition to his other visual disabilities Mr Hill declared that Ron is legally blind. Based on the field that I’ve seen performed by Mr Hill I’m happy to support that claim.
When I saw Ron two years ago there was considerable hope that his condition would improve, and I did not have access to the visual fields at that time. As such the diagnosis of legal blindness can be made from his visual fields but in my view, I did not have enough information to make that assessment two years ago.
On 17 February 2021 Dr De Silva provided a report for to Mr Peters for his DSP appeal, in which he states:
This letter is to confirm I have been treating Mr Peters since January 2018 for his ischaemic stroke.
He has had left midbrain and left thalamic ischaemic stoke in January 2018 leading to diplopia.
Diplopia is due to damage to the inter-nuclear connecting tracts and mid brain located 3rd and 4th ocular motor nerve nuclei. During his follow up until now (last review was on 16/12/2020), there was no significant improvement of his diplopia making him permanently disabled with his binocular vision (due to diplopia).
He was referred to ophthalmology consultants to consider possibility of having corrective lens/ prism. Unfortunately, there was no successful resolution received.
Therefore, he is unable to engage with any activity which involves binocular vision.
In the HPAU report of 1 April 2021, Dr Armstrong recorded her interviews with Mr Peters treating doctors:
a.On 18/3/21 I spoke to Dr De Silva, a specialist physician who told me that Mr Peters was wearing an eye patch “from time to time” during the qualification period, especially if he was “out and about”. Wearing an eye patch helped to prevent Mr Peters’ migraine headaches. Dr De Silva did not know the cause of the reported tunnel vision, but said it was not related to the stroke. Dr De Silva told me that sometimes people who are trying to adjust to the loss of their binocular vision may get some constriction of their visual fields. Dr De Silva was not sure if visual field constriction to within 20° would be obvious to others and said that he had not performed a clinical confrontation visual field test. Dr De Silva also said that perimetry was more accurate than clinical visual field testing. Dr De Silva said a thalamic stroke was not a cause of limb weakness and Mr Peters did not have any objective weakness in his right arm and leg. Dr DeSilva said that Mr Peters’ headache was a secondary (as in less important) problem and had improved somewhat with the use of sodium valproate. He was not sure of the duration of the headache. I asked about work capacity and Dr De Silva said his previous employment “was not an easy job to do”. I informed Dr De Silva that the definition of work was any employment, study or training and he then said it would depend on the type of job and whether it only needed monocular vision.
b.On 26/3/21 I spoke to Dr Meagher, an ophthalmologist who told me he had not seen Mr Peters for 3 years and he had been very surprised at the result of Mr Peters’ visual field perimetry test. There was no ocular cause such as glaucoma for the visual field constriction, as thalamic strokes may cause hemianopic field defects (loss of ½ of the visual field in each eye), but “tunnel vision” defects were not typical. Dr Meagher was somewhat “jaundiced” about the result and recommended more sophisticated visual field tests performed at varying distances and a review by a neuro-ophthalmologist. Dr Meagher confirmed that perimetry was a subjective test which relied on patient cooperation. A patient with a visual field constriction to within 20° would be able to ambulate without help, but they would normally complain of poor peripheral vision, although some patients can compensate. I informed Dr Meagher that a subsequent perimetry test had shown a visual field constriction to within 5° and he told me that someone with that degree of visual field loss would be unable to ambulate without help. Dr Meagher also told me that surgery may be possible for his diplopia, as it had remained stable for several years.
Dr Armstrong advised the Tribunal that whilst she is not an eye specialist, she was a qualified and practising doctor, who had been undertaking HPAU assessments for 10 years. Dr Armstrong advised that as a general practitioner her training had included an understanding of the eye and vision. In her current practice, she deals with many issues relating to vision and complications arising from strokes. Dr Armstrong had the advantage of reading Mr Peters’ numerous medical reports and had spoken to his ophthalmologist and specialist physician to gain a complete picture of Mr Peters’ functional ability during the qualification period.
Dr Armstrong asserted that during the qualifying period Mr Peters was able to ambulate without assistance and held a valid driver’s licence. On this basis, Mr Peters cannot be considered legally blind, nor receive more than 5 points under the Impairment Tables. Additionally, Dr Armstrong asserted that Mr Peters’ Visual Field Test was not completed until after he had submitted his claim for DSP and the findings of visual field constriction (tunnel vison) were not made during the qualification period. Further, during the qualification period Mr Peters was benefiting from occlusion and would have the capacity to work in a position which required monocular vision, such as a car park attendant.
Mr Peters’ representative questioned the validity of Dr Armstrong’s assessment as she is not an ophthalmologist and has no specialist training in vision, noting that Table 12 requires a report from a medical practitioner with supporting evidence from an ophthalmologist. Mr Peters’ representative also questioned the reliability of some information provided by Mr Peters’ treating doctors, as many of the statements were inaccurate, such as the suggested trial of prism glasses, Mr Peters’ need for surgery, and his ability to drive.
Having considered all the evidence before it, and relying upon the findings of the HPAU report and the reports of Dr Meagher and Dr DeSilva, the Tribunal is satisfied that Mr Peters’ Diplopia was fully diagnosed, treated and stabilised during the qualifying period.
Tunnel vision
On 16 July 2020 Mr Hill provided a report for Mr Peters’ DSP review stating:
Mr Peters has been seen by me on 3 occasions.
He has restricted visual fields (enclosed) to with 5 degrees of centration.
His central vision is 6/7.5, however the “tunnel vision” is such that he is considered legally blind.
In the HPAU report of 1 April 2021 Dr Armstrong opined:
This condition was first mentioned in an 18/1/19 (nearly 1 month after the end of the qualification period) letter by Dr Meagher which states “based on the recent visual field assessment by G Hill, the peripheral visual field restriction is such that he would qualify for blind pension. Coupled with vertical diplopia from the previous thalamic stroke entitled to qualify for DSP”. A 21/1/19 letter from G Hill, an optometrist reports that Mr Peters has “tunnel vision” and his visual field is constricted to within 20°.
………
I agree with the 18/9/19 AAT1 decision that Mr Peters’ tunnel vision/visual field constriction was not fully diagnosed, as at the qualification period, as it was diagnosed after the qualification period. Both Dr De Silva and Dr Meagher told me that the tunnel vision was not related to Mr Peters’ stroke and Dr Meagher told me that there was no ocular cause for the tunnel vision. Furthermore it seems that Dr Meagher has not reviewed Mr Peters since the initial perimetry test, as he told me that he had not seen him for 3 years, which perhaps seems rather surprising, as a visual field constriction to within 20° is a significant finding and would not meet Australian medical requirements for a driving licence. Furthermore Dr Meagher told me that a person with a visual field constriction to within 5° (as stated in the 16/7/20 letter from G Hill) would need help to ambulate. Therefore Mr Peters would have very little useful vision, so I consider a diagnosis is important, as it may lead to beneficial treatments, for example treatment for glaucoma, or exclude other causes such as a brain tumour compressing optic nerves. When I spoke to Dr Meagher he recommended an assessment by a neuro-ophthalmologist and more sophisticated perimetry testing. It is not known if Mr Peters has seen an alternative ophthalmologist or had further investigations. It also seems puzzling that Dr De Silva’s 17/2/21 letter does not refer to a severe visual field defects, as a constriction to within 5° would be obvious to an onlooker. I would also have expected that Mr Peters would have been referred to the NDIS, so he could obtain appropriate assistive devices and support. However Mr Peters’ customer record does not indicate that he is an NDIS participant. I therefore consider that Mr Peters cannot be allocated an impairment rating for this condition and cannot be considered permanently blind, as this requires details of diagnosis and prognosis.
The Respondent contended that Mr Peters’ tunnel vision was not fully diagnosed, treated and stabilised during the qualification period, relying on the following evidence:
(a)The first mention of tunnel vision in the evidence was in a letter dated 18 January 2019 by Dr Meagher to Mr Hill confirming that the visual field tests recently undertaken by Mr Hill indicated Mr Peters has peripheral field restriction.
(b)A report dated 21 January 2019 by Mr Graham Hill, optometrist, refers to visual field tests conducted on 9 January 2019 and states that the tests show Mr Peters has “tunnel vision” and his visual fields are constricted to within 20 degrees.
(c)All of Mr Peters’ medical certificates prior to 18 January 2019 make no mention of tunnel vision; and all the medical certificates dated 3 April 2018 to 12 September 2018 mention diplopia but make no mention of restricted visual fields.
(d)The HPAU report dated 1 April 2021 opined that “tunnel vision is not a diagnosis in itself, but a description of the visual field constriction”. Dr Armstrong stated that she considers that a diagnosis is important, as it may lead to beneficial treatments, for example treatment for glaucoma; or exclude other causes such as a brain tumour compressing optic nerves. Dr Armstrong’s report recorded:
(i)Dr Meagher and Dr Silva as reporting that Mr Peters’ tunnel vision was not related to the Applicant’s stroke;
(ii)Dr Meagher stating there was no ocular cause for the tunnel vision;
(iii)Dr Meagher recommending that Mr Peters be assessed by a neuro-ophthalmologist and undertake a more sophisticated perimetry test in order to obtain a proper diagnosis. He confirmed that he had not seen Mr Peters for three years.
Dr Armstrong advised the Tribunal that tunnel vision is not a diagnosis but a way of describing the vision Mr Peters would experience, based on Mr Hill’s field vison results. Dr Armstrong advised that Dr Meagher had informed her he was “jaundiced” about the results; and believed Mr Peters required more sophisticated testing. Dr Armstrong advised the Tribunal that based on her review of Mr Peters numerous reports and discussions with his doctors, she determined he had sufficient sight in one eye. And that a diagnosis of visual field constriction could not be determined on the material available to her.
Dr Armstrong could not explain to the Tribunal why it appears that Dr Meagher’s advice to her was contrary to the advice he had provided in his reports of 18 January 2019 and 20 September 2020.
The Respondent contended that if the Tribunal was to find Mr Peters’ tunnel vision was fully diagnosed, treated and stabilised (which it did not concede), then the maximum impairment rating that could be assigned under Table 12 in respect of the impairment is a rating of 10 points; as there was no evidence at the qualification period, that Mr Peters was unable to move around independently in unfamiliar environments. This is a necessary requirement to be able to meet the severe impairment level.
The Respondent noted that Mr Peters appears to have physically attended the offices of Dr Meagher and Dr De Silva during the qualification period. He also physically attended the office of Mr Hill on three occasions (9 January 2019, 12 December 2019 and 9 July 2020). The Respondent contended that as none of these practitioners commented that Mr Peters required assistance to attend the appointments or that he was accompanied by anyone, he was able to move around independently.
The Tribunal found the assumption that Mr Peters was able to move independently during the qualification period troubling. The Respondent has assumed Mr Peters could ambulate unaided but provided no evidence to support that assertion. The Respondent based its assumption on the fact that no doctor recorded in their medical reports that Mr Peters was accompanied to his appointments. However, no verification of this assumption was presented to the Tribunal.
Dr Armstrong’s report notes that Dr Meagher seems to doubt the field report provided by the optometrists to whom he had referred Mr Peters, noting this would mean he had difficulty ambulating. However, Dr Armstrong did not record Dr Meagher’s assessment of Mr Peters actual physical mobility when he had seen him during the qualification period.
The Tribunal was alarmed by Dr Armstrong’s comment that, “I would also have expected that Mr Peters would have been referred to the NDIS, so he could obtain appropriate assistive devices and support. However, Mr Peters’ customer record does not indicate that he is an NDIS participant.” The Tribunal was concerned that this observation had formed part of the basis of Dr Armstrong’s determination that Mr Peters’ vison loss was not fully diagnosed, treated and stabilised at the date of qualification. The Tribunal asked Mr Peters if he had sought assistance under the NDIS. His advocate advised they had started the process but had been concentrating on Mr Peters’ DSP applications in the first instance.
The Tribunal found it difficult to accept the contentions of the Respondent and Dr Armstrong were based on contemporaneous and objective evidence, as there was no evidence presented to support their assumptions. The Tribunal is urged to prefer contemporaneous and objective evidence over Mr Peters’ self-reported evidence, but this is difficult when a determination of Mr Peters’ ability to move around independently in unfamiliar environments was based on assumptions and obviously contrary to Mr Peters’ own evidence; and not supported by the field vision test undertaken by Mr Hills.
The Tribunal asked the Respondent if it had considered Mr Peters’ condition in light of the decision of Deputy President Forgie in Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558, where she found:
85. While it is true that Mrs Eid’s Fibromyalgia was not diagnosed until after 19 December 2011, I do not think that anything in s 94 or in Schedule 1B requires the diagnosis to have been made at the date a claim was made or taken to have been made. What is required by cl 4 of the Introduction to Schedule 1B is that “For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.” These matters must be viewed in light of the material available and in relation to the period during which her qualification for a DSP is being determined. Any subsequent change in her health is, as Gyles J said in Harris v Secretary, Department of Employment and Workplace Relations, irrelevant except insofar as it may cast light on the position at the relevant time.
86. In the case of Mrs Eid, there is no actual change in her condition. Her functional limitations have remained constant over a long period of time. In the case of her pain, all that has changed is the description or diagnosis of her condition from Spinal Disorder – Other to Fibromyalgia. Under the description of a Spinal Disorder – Other, the Medical Reports and Medical Certificates provided by Mrs Eid’s general practitioners show that osteoarthritis and facet joint degeneration have been previously diagnosed. Her complaints of pain in her lower back and her difficulties in sitting and standing have been noted and she has been treated in various ways for the condition whether by medication, physiotherapy or massage. In view of that, I do not accept the submission made on behalf of the Secretary that they have not been investigated and excluded. Dr Gassin has noted the history of her treatment in coming to his diagnosis which is, as the Secretary submitted and Dr Sillcock said in cross examination, a diagnosis of exclusion.
87. On the evidence of Dr Gassin, I find that the condition has no treatment. His evidence is to be preferred to the recommendation in the JCA Reports that Mrs Eid be referred to a pain clinic. Quite apart from the disquiet I have expressed over the content of the JCA Reports and the recommendations they have made, I think that their recommendations have been overtaken by Dr Gassin’s report. In view of his report and in view of the longstanding nature of her condition to date, I am satisfied that Mrs Eid’s Fibromyalgia has been fully diagnosed.
88. It matters not, in my view, that the diagnosis came after 19 December 2011 provided Mrs Eid was suffering from the condition at that date and provided it could be said, on all of the evidence, to have been fully treated and fully stabilised as at that date. In everyday English usage, a “diagnosis” is “... the process whereby a disease or disorder is provisionally identified on the basis of its symptoms and the patient’s medical history. ...”.[64] In medical usage, its meaning is little different: “... 1. The art of the act of determining the nature of a patient’s disease. 2. A conclusion reached in the identification of a patient’s disease.”[65] There is nothing inherent in the process of diagnosis or in diagnosis itself that suggests that a condition does not exist until it is diagnosed. There is nothing in Schedule 1B or in the Impairment Tables that suggests that either. All that they do is require that the condition be fully diagnosed. A person can suffer from a condition on a particular date even if it is yet to be identified and a name given to it as a result of a subsequent process of diagnosis that has regard to, among other matters, the symptoms that the person suffered on that date and his or her medical history at that time. Provided there is a diagnosis at some stage and the evidence shows that the person suffered from the condition in the relevant period, that meets the description of being a condition that is fully diagnosed.
89. That is to be contrasted with the requirement in Schedule 1B and in the Impairment Tables that the condition be fully treated and fully stabilised. A condition cannot be said to meet those criteria on a particular date if further treatment is feasible and accessible at a reasonable cost, that treatment is of a type regularly undertaken or performed with a high success rate and leading to a substantial improvement in the person’s condition while being at low risk to the person.
90. What is the likelihood of a significant functional improvement in Mrs Eid’s condition either with or without treatment? Dr Gassin has said that there is no treatment for it. He has not given any express prognosis in his report. When read with his statement that there is no treatment for the condition, the fact that he does not can be read as an implicit statement that he expects the condition to persist for an indefinite duration. That is consistent with Dr Saghir’s statement in his report that I have taken to be dated 9 February 2012 that Mrs Eid’s Fibromyalgia was “permanent”.[66] I do not accept that his prognosis of the condition was that it was “fair” at that time. He wrote “fair” in response to the heading on the Medical Certificate that read “Prognosis – Symptoms are:”. In view of his statement that the condition was permanent, I cannot read into the single word “fair” when given as a prognosis of symptoms any intention by Dr Saghir to suggest that the condition of Fibromyalgia was not permanent.
94. In the case of Mrs Eid’s depression, all that has changed since 19 December 2011 is that a diagnosis has now been given by a psychiatrist who has diagnosed her as suffering from an anxiety disorder with secondary depression rather than from depression. He has changed her medications because Avanza and Cymbalta that she had previously been prescribed had both made her tired. I am not satisfied that a change of medication on that basis should be taken as an indication that Mrs Eid’s condition was not fully treated and stabilised when she was prescribed and taking Cymbalta. Both are used to treat depression and anxiety disorder although, it is apparent from Dr Gassin’s report, that Cymbalta is, as an antidepressant, appropriate treatment for Fibromyalgia as well. I find that Dr Manawadu’s report corroborates or is consistent with Dr Saghir’s earlier diagnosis. The treatment that he has prescribed is an anti-depressant as Dr Saghir prescribed.
96. Given the longstanding nature of Mrs Eid’s depression, her medication regime over the years and the counselling sessions she had between April and November 2011 without improvement, I am satisfied that Mrs Eid’s depression, however described, has been fully diagnosed, treated and stabilised at 19 December 2011. I am also satisfied that it is more likely than not to persist for at least two years.
The Tribunal found, as with the case of Mrs Eid, that there had been no actual change in Mr Peters’ condition of vison loss since his stroke; and his functional limitations have remained constant over a long period of time. The Tribunal notes, in particular, the report of Dr De Silva dated 17 February 2021 which stated: “there was no significant improvement of his diplopia making him permanently disabled with his binocular vision (due to diplopia)”.
The Tribunal concurred with the Deputy President’s finding in Eid: “Provided there is a diagnosis at some stage and the evidence shows that the person suffered from the condition in the relevant period, that meets the description of being a condition that is fully diagnosed”. The Tribunal found that Mr Peters’ visual field constriction was fully diagnosed, treated and stabilised during the qualification period, relying upon Mr Hills reported vison field test, which was endorsed a month after qualification by Dr Meagher on 18 January 2019
Consideration of Table 12 – Visual Function
The Tribunal explored the functional impact of Mr Peters’ impairment under Table 12 of the Impairment Tables, because Mr Peters’ accepted condition of stroke has impacted his vision. In particular, the Tribunal explored his capacity in respect of a severe functional impact. Table 12 states:
There is a severe functional impact on activities involving visual function.
(1) The person:
(a) has severe difficulties seeing things at a distance or close up when wearing glasses or contact lenses if these are usually worn; and
(b) needs to use vision aids or assistive devices other than spectacles and contact lenses for many tasks; and
(c) has severe difficulty performing many day to day activities involving vision (e.g. difficulty distinguishing between different types of food in tins or packets, seeing the level of fluid in a cup or reading aisle signs in the supermarket even when standing close to these); and
(d) either:
(i) is unable to see routine workplace, educational or training information (e.g. signs, safety information, or manuals) even when using any assistive devices or technology that they have; or
(ii) needs assistance to use public or other means of transport to travel to work, educational or community facilities even when using any assistive devices that they have (e.g. a guide dog or cane); and
(e) is unable to move around independently in unfamiliar environments.
Mr Peters advised the Tribunal that during the qualification period:
a)He had extreme difficulty seeing things close up or at a distance, that his vison loss has not been assisted by contact lenses or glasses, and that he has been advised that there is no surgery or other treatment, such as prisms, which will help improve his vision. He wears an eye patch while out of the house to trick his eyes into allowing him to focus but this does not help him see in his periphery or help to read things, such as labels on items on a supermarket shelf.
b)That he uses a magnifying glass to read.
c)That he has severe difficulty performing many daily activities. He was trialling living on his own for the first time since he had the stroke. He had lived with a friend and then his brother, as he was not able to do anything like cooking, cleaning or shopping. He is still struggling with performing most daily activities of living but was lucky as he has a lot of people dropping by to see if he is okay and to help with meals; and that he can ring anyone at any stage if he has problems.
d)That he had not returned to work, or his own home or driven since he had the stroke. He had assumed his licence had been cancelled but no one ever spoke to him about it. He had no occupational therapist assessment to see if he could drive as none was offered; but he believed it would be pointless as he feels he would be a danger on the road and had sold his car three or four months after his stroke.
e)That he does not use public transport as there is none available in his regional community, and that his brother was his main driver. He had used a taxi for the first time only recently as his brother was busy.
f)That he is unable to attend Centrelink, doctors’ appointments, or the supermarket on his own because he needs the support of another person to attend unfamiliar environments as he can only look straight ahead and has no depth perception. He needs someone to point out things like steps, poles, chairs and other people, or he will bump into them and fall down. Since his stroke he has found walking difficult, which has not improved. His vision impacts his balance and his lack of perception makes going downstairs and negotiating gutters impossible, so he attends all appointments with someone else.
The Respondent accepted that Mr Peters’ diplopia was fully diagnosed, treated and stabilised as at the qualification period per the findings of the HPAU medical assessor. However, the Respondent contended that based on the medical evidence, the functional impairment arising from this condition would attract a maximum of 5 points under Table 12 of the Impairment Tables. The Respondent relied upon the following:
(a)a report dated 5 September 2018 by Dr Janith De Silva, consultant physician, stating that Mr Peters currently wears an eye patch on the right side to avoid the impact of Diplopia;
(b)a report dated 27 September 2018 by Dr Peter Meagher, ophthalmologist, stating Mr Peters “covers one eye much of the time and manages quite well”, “should be able to legally drive a car, providing he passes an OT assessment” and ”should be able to function reasonably well in the workforce, apart from avoiding machinery that is likely to cause injury, such as a circular saw or similar”;
(c)a report dated 21 January 2019 by Mr Graham Hill, optometrist, stating that Mr Peters’ Diplopia is “managed by occlusion”;
(d)a report dated 17 February 2021 by Dr De Silva stating that Mr Peters is “unable to engage with any activity which involves binocular vision”;
(e)the HPAU report dated 1 April 2021, written by a qualified medical practitioner, who had the benefit of all the available evidence as well as verbal conversations with Dr De Silva and Dr Meagher. The report considered the appropriate impairment rating in respect of Mr Peters’ Table 12 impairment was 5 points on the basis that he met descriptor (1)(e) of the mild impairment rating under Table 12 because of his Diplopia condition.
The Respondent contended that contemporaneous and objective evidence should be preferred over Mr Peters’ self-reported evidence, which was given a considerable time after the qualification period, to the extent that there are any inconsistencies. Contemporaneous evidence by Mr Peters’ treating doctors indicate he was managing his Diplopia quite well with occlusion (covering one eye). Dr Meagher was of the opinion in September 2018 that Mr Peters should be able to legally drive a car and function reasonably well in the workforce.
The Respondent referred the Tribunal to the matter of Sesalim v Secretary, Department of Social Services [2018] FCA 1159 (per Bromberg J, at [17]– [22]. In this case, the Federal Court made it clear that the structure of the Tables requires the Tribunal to compare and contrast the descriptors and examples at each level in order to determine whether a person’s impairment is mild, moderate, severe or extreme.
The Respondent contended that in such an exercise of comparing and contrasting the descriptors at each level in Table 12 and having regard to the medical evidence of Mr Peters’ capacity and functional impairment, the appropriate impairment rating under Table 12 was no more than 5 points. The Respondent argued Mr Peters had functional vision in only one eye which corresponds to descriptor 1(e) for mild functional impact. The contemporaneous evidence from treating doctors is that Mr Peters was “managing quite well” with occlusion for his Diplopia and that this matches descriptor (1) for mild functional impact.
Mr Peters’ representative argued that Dr Meagher’s report of 18 January 2019 categorically states that, based on the visual fields test undertaken by Mr Hill, Mr Peters would qualify for a blind pension. Mr Peters and his representative could not comprehend why this letter was insufficient for Centrelink to have granted Mr Peters a DSP pension.
The Tribunal found that Mr Peters’ condition of Diplopia was having a severe impact on his functionality during the qualifying period as self-reported and as corroborated by his treating medical practitioners. Dr Meagher’s report clearly indicates that Mr Peters was unable to achieve any single vision during the qualification period, indicating Mr Peters did not have functional vision in one eye at the time.
The Tribunal relied upon the report of Dr Meagher during the qualification period, on 27 September 2018, where he found:
My refractive findings were unchanged with 6/6 vision bilaterally. Today’s prescription was right -1.00 x 90, and left -0.7×8.5. 8prism dioptres divided base-in and 7 prism dioptres base-down in the left eye came close to giving him single vision.
My examination suggests there should be less vertical prism, as the deviation did not appear that great, but I could not get any single vision and feared that this amount vertical prism may be a little too much for him.
The Tribunal also relied upon the report of Dr De Silva during the qualification period, from 5 December 2018, where he found:
Ron returned to the neurovascular clinic for follow-up. He has been progressing well without any significant improvement of his diplopia. He is under the care of ophthalmology… Overall, he is progressing well except his ongoing diplopia.
An additional report from Dr De Silva after the qualification period, on 17 February 2021, confirms Mr Peters has not experienced any improvement in his vision since his stroke in 2018:
Diplopia is due to damage to the inter-nuclear connecting tracts and mid brain located 3rd and 4th ocular motor nerve nuclei. During his follow up until now (last review was on 16/12/2020), there was no significant improvement of his diplopia making him permanently disabled with his binocular vision (due to diplopia).
He was referred to ophthalmology consultants to consider possibility of having corrective lens/prism. Unfortunately, there was no successful resolution received.
Therefore, he is unable to engage with any activity which involves binocular vision.
In addition, Mr Peters reported he has difficulties with performing all aspects of daily living and is dependent on the support of his brother and numerous friends to manage from day to day. Mr Peters reported he requires the support of another person to attend unfamiliar environments, as he can only look straight ahead and has no depth perception.
The Tribunal therefore assigned 20 points under Table 12 – Visual Functions, for his Diplopia, finding Mr Peters had a severe functional impact on activities requiring vision at the time of qualification.
Other Conditions
Several other conditions appear in Mr Peters’ medical evidence associated with his stroke. These were assessed by the AAT1 and include hypertension, right-sided weakness, headache, depression and a hearing impairment.
On 15 May 2019 Dr De Silva reported on a further review of Mr Peters, observing that his known risk factors are currently stable.
On 7 October 2019, Dr Bell provided Centrelink with a Medical Certificate that indicated Mr Peters had a stroke on 16 January 2018. He described the condition as permanent and presenting with symptoms of Diplopia, tunnel vison, right-sided weakness and lethargy.
In the HPAU report of 1 April 2021 Dr Armstrong opined:
I agree with the 18/9/19 AAT1 decision that the other conditions reported by Mr Peters cannot be allocated an impairment rating, as they were not fully diagnosed, treated and stabilised, as at the qualification period. A number of medical certificates by his GP, Dr D Ball state that he has right sided weakness and at the AAT1 hearing Mr Peters reported ongoing weakness and loss of dexterity in his right arm and hand. A 5/9/18 letter by Dr De Silva indicates that Mr Peters’ physical strength was normal. When I spoke to Dr De Silva on 18/3/21 he told me that a thalamic stroke was not a cause of limb weakness and Mr Peters did not have any objective weakness in his right arm and leg. Hence his right sided weakness cannot be rated as fully diagnosed, as at the qualification period.
At the AAT1 hearing Mr Peters reported a hearing impairment since the stroke, but this has not been confirmed by way of hearing tests, so cannot be considered fully diagnosed, as at the date of qualification.
A 21/2/18 medical certificate by Dr S Ho stated that Mr Peters had intermittent headache and the 25/7/18 letter by Dr De Silva refers to ongoing likely tension-type headache, which occurred every 3rd day, which responded to paracetamol and may require additional medication as headache prophylaxis. The 5/9/18 letter by Dr De Silva reports that the headache is improving, as this was just before the onset of the qualification period, I consider that Mr Peters’ headache condition was fully diagnosed, but not fully treated and stabilised, as at the qualification period. I note that a 15/5/19 letter by Dr De Silva indicates that the headache did not improve much with amitriptyline and this had been replaced with sodium valproate. Dr De Silva told me that Mr Peter’s headache had improved somewhat with the use of sodium valproate, but was unable to elaborate on the functional impact of the headaches.
I agree with the AAT1 decision that Mr Peters’ hypertension has no appreciable associated functional incapacity and therefore does not warrant an impairment rating, although it would have been a risk factor for his stroke.
I also agree that Mr Peters’ depression cannot rated as fully diagnosed, as at the qualification period, as there is no provided evidence that this diagnosis was confirmed by a psychiatrist or clinical psychologist.
15/6/18 and 12/9/18 medical certificates by Dr Ball indicate that Mr Peters has lethargy, however a cause, prognosis and severity is not stated. The 15/5/19 letter by Dr De Silva refers to excessive daytime sleepiness with amitriptyline, so it may have been related to this, in which case you would expect this to improve once this medication was ceased.
Stroke can be a cause of lethargy, but I would usually expect this to significantly improve within 2 years. The letters by Dr De Silva do not refer to lethargy or fatigue and the AAT1 decision does not indicate that Mr Peters discussed this during the hearing. I therefore consider that Mr Peters’ lethargy was not fully diagnosed, treated and stabilised, as at the qualification period.
The Respondent contended that none of the conditions could be assigned an impairment rating on the basis that none of them were fully diagnosed, treated and stabilised in the qualification period.
Mr Peters did not press any of these conditions, arguing his vision was causing him the greatest functional impairment, but noted that following the stroke he took a long time to recover. Mr Peters stated that he had not been able to move on his own after his stroke and required the use of a wheelchair. Mr Peters testified he had to re-learn how to do many things, including walking and talking, and it had taken him six to seven months to be on his feet. Mr Peters stated that he had not been able to work since his stroke, had not driven since his stroke, and still couldn’t walk properly. He testified that he relied upon his brother to take him to appointments, and he had to leave his home as it was too isolated for him to manage on his own. However, he was trialling residential accommodation nearer the city centre.
The Tribunal found that during the qualification period Mr Peters’ other conditions arising from his stroke were fully diagnosed, treated and stabilised, but were having a minimal impact on his ability to function, noting the report of Dr De Silva on 15 May 2019. Therefore, the Tribunal awarded zero points to these conditions.
Impairment Rating
The Tribunal finds that Mr Peters has an overall impairment rating of 20 points under Table 12 – Visual Functions. Therefore, Mr Peters satisfies section 94(1)(b) of the Act.
Does Mr Peters have a continuing inability to work?
To qualify for the DSP, Mr Peters must not only satisfy the requirement that he has impairments that can be assigned 20 points or more under the Impairment Tables; he must also demonstrate that he has a continuing inability to work. Mr Peters would be considered to have a continuing inability to work if he has actively participated in a program of support within the meaning of section 94(3C) of the Act prior to his claim for DSP, and his impairment is of itself sufficient to prevent him from improving his capacity to prepare for, find or maintain work through continued participation in the program. A person with a severe impairment is not required to satisfy the Secretary that they have actively participated in a program of support. A person’s impairment is a severe impairment if it attracts 20 points or more under a single Impairment Table.
The Tribunal strictly applies the program of support (POS) requirement, finding that no power exists to dispense with it under the operation of section 94(2)(aa) of the Act. It is irrelevant whether an applicant was aware of the requirement.
The Respondent contended that Mr Peters did not satisfy section 94(2)(aa) of the Act during the qualification period, as his Centrelink records indicated that he had completed 0 days in the POS period, which was less than the 18 months required under paragraph 7(2) of the POS Determination. Further, the Respondent argued there was no evidence that Mr Peters had completed a POS that was less than 18 months (in accordance with paragraph 7(3)) or that his participation was terminated (in accordance with paragraph 7(4)).
The POS Determination requires that an applicant for DSP must actively participate in the program for 18 months within the three years prior to the date of claim. As the Tribunal has found that Mr Peters has a severe impairment that is assigned 20 points or more under a single Impairment Table, he is not required to have participated in a program of support, and he accordingly satisfies section 94(2)(aa) of the Act.
The Respondent contended that Mr Peters had a continuing ability to work, with a work capacity of greater than 15 hours per week, as his impairments did not prevent him, within the next 2 years with intervention, from being able to work or study for 15 to 22 hours per week.
Dr Meagher in his report of 27 September 2018 stated:
He should be able to function well in the workforce apart from avoiding machinery that is likely to cause injury, such as a circular saw or similar. Ron feels that there may also be some issues in regards to his performance beyond his diplopia, and that is certainly possible.
The HPAU report recorded:
I believe he would be able to improve his capacity to find and maintain work through continued participation in a program of support. When I spoke to Dr De Silva on 18/3/21 he told me that Mr Peters could be employed in a position that required monocular vision. Suitable employment could therefore include a car park attendant.
Mr Peters advised the Tribunal that he did not believe he could undertake any form of work, as he would be a danger to himself and his employer. He considered his lack of peripheral vision and depth perception an insurmountable impediment to any form of employment.
The Tribunal determined that Mr Peters had a continuing inability to work as his monocular vision, as described by Dr De Silva, meant his impairment was itself sufficient to prevent him from improving his capacity to prepare for, find or maintain work.
Qualification under s 95 of the Act
Section 95 of the Act outlines qualification for disability support pension - permanent blindness:
(1) A person is qualified for a disability support pension if:
(a) the person is permanently blind;
The Guide to Social Security Law (the Guide) at 1.1.P.210 provides the following definition for ‘permanently blind’:
When determining permanent blindness for the purposes of DSP or Age, the following guidelines are applied:
• corrected visual acuity (1.1.V.50) on the Snellen Scale must be less than 6/60 in both eyes, or
• constriction to within 10 degrees or less of arc of central fixation in the better eye, irrespective of corrected visual acuity, or
• a combination of visual defects resulting in the same degree of visual impairment as that occurring in the above points.
The Respondent contended that Mr Peters’ tunnel vision could not be considered permanent during the qualification period because there was no diagnosis or prognosis during that period. The Respondent noted that whilst Permanently is not defined in the legislation, the ordinary meaning of the word is “lasting for a long time or for ever” (Cambridge Dictionary).
The Respondent argued Mr Peters was not permanently blind during the qualification period, and that the HPAU report of the trained and qualified medical practitioner employed by Centrelink should be accepted in relation to Mr Peters’ blindness. The Respondent argued Dr Armstrong’s specialised knowledge, experience, and the benefit of her conferring with Mr Peters’ two key specialist doctors, Dr De Silva and Dr Meagher, equipped her to make an informed opinion of Mr Peters’ blindness.
The Respondent did note that Dr Meagher has stated on two occasions (18 January 2019 and 30 September 2020) that Mr Peters was permanently blind. However, the Respondent argued that in both of these reports, it is clear that the only reason Dr Meagher made this assessment is due to reliance on visual field test results gathered by Mr Hill. The Respondent argued that the accuracy of these tests is uncertain, citing Dr Armstrong’s report which states that perimetry tests are subjective and require the cooperation of the patient. The Respondent also submitted, noting the same report, that the results of the tests did not correlate with the other evidence. In particular, the test undertaken on 9 July 2020 indicated visual field restriction within 5 degrees. As Dr Armstrong states that visual field restriction within 5 degrees would be obvious to an onlooker, and yet Dr De Silva makes no mention of the problem in his report dated 17 February 2021.
The Respondent contended that, even if the Tribunal was to accept the visual field test results as accurate, Mr Peters’ blindness cannot be considered permanent during the qualification period. The Respondent argued the visual field test results were undertaken after the qualification period and Dr Meagher’s reports are dated after the qualification period. The Respondent further contended that Dr Meagher clearly qualifies his statement that Mr Peters is permanently blind in his report of 30 September 2020, by stating that he “did not have enough information to make that assessment two years ago” (in the qualification period].
The Respondent argued that if the Tribunal disagreed with its contention, and instead accepted that Mr Peters’ tunnel vision was permanent at the qualification period and/or the visual field test results were accurate, he still could not qualify under section 95 because his visual field restriction as of 9 January 2019 was only constricted within 20 degrees and the Guide requires that it be constricted within 10 degrees.
The Respondent also argued there was no evidence before the Tribunal which indicated Mr Peters’ corrected visual acuity on the Snellen Scale is less than 6/60 in both eyes, or a combination of visual defects resulting in the same degree of visual impairment as that occurring for visual constriction within 10 degrees, or visual acuity of less than 6/60 on the Snellen Scale.
The Tribunal was concerned by the Respondent and Dr Armstrong’s suggestion that it should not rely on visual field test results carried out by Mr Hill, which had formed the basis of Dr Meagher’s reports of 18 January 2019 and 30 September 2020, assessing Mr Peters as permanently blind. There was no contemporaneous or objective evidence which refuted the findings of these reports and the evidence from Mr Peters was that his treating doctors had not recommended any further tests or treatment in respect of his vision loss.
Whilst the Tribunal was concerned that many of the assumptions concerning Mr Peters’ condition had been based on conversations with his doctors, two and half years after his claim, and not actual reports of the time, it could not find Mr Peters was permanently blind at the date of his claim in accordance with section 95 of the Act.
The Tribunal accepted Dr Meagher’s finding of 6/6 vison bilaterally during the qualification period; and Mr Hills’ assessment, two weeks outside the qualification period, that Mr Peter’s central vision was 6/7.5 r/l and that his visual field was constricted to within 20°.
A person with ‘perfect’ corrected visual acuity on the Snellen test would record a result of 6/6 (using lenses if needed); which means that the subject can read the bottom line on the chart at a distance of 6 metres from the chart. As visual acuity gets worse, the second number in the 6/6 result gets larger. A result of 6/60 means that the subject can only read the top line on the chart from a distance of 6 metres. (For an assessment of blindness, this measure would have to apply to both eyes. If so, nothing more need be done. The criterion for blindness is met.) In Mr Peters’ case, this criterion was not met at the date of claim. Both Dr Meagher and Mr Hills recorded a visual acuity result well within the acceptable range.
A normal visual field test is one in which there is no constriction, that is, the “panorama” of vision is full (up to 90 degrees) when the subject looks straight ahead fixing his vision on a central point. If, for whatever reason, a person has a severely constricted visual field (less than 10 degrees as ruled by the Guide) it is as though he is looking at the world through a straw. This is sufficient to make an assessment of blindness, regardless of the Snellen test results. Thus, either a Snellen test of 6/60 (or worse), or a field test of 10 degrees or less, qualifies an individual as blind.
Mr Peters may well have met the Guide’s criteria for blindness with a combination of “lesser” results (say a Snellen test of 6/7.5 plus a field test of less than 20 degrees). However, this opinion was not provided during Mr Peters’ qualification period and as such, the Tribunal determined Mr Peters was not permanently blind in accordance with section 95 of the Act for this application.
CONCLUSION
The Tribunal is satisfied that at the date of application, Mr Peters was qualified to receive the DSP, as his impairments attracted 20 impairment points under the Impairment Tables. As such, he was not required to undertake a POS as his impairment was considered to be severe. Additionally, he satisfies section 94(1)(c) of the Act in that he had a continuing inability to work.
DECISION
The Tribunal sets aside the decision under review and remits the matter for reconsideration with a direction that the Applicant satisfies section 94(1)(a), (b) and (c) of the Act.
I certify that the preceding 112 (one hundred and twelve) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member
...........[sgd]............................
Associate
Dated: 13 July 2021
Date of hearing:
21 May 2021
Advocate for the Applicant:
Ms Tanya Harding
Rights, Information and Advocacy Centre Advocate for the Respondent: Ms Laura Hannigan Solicitors for the Respondent: Services Australia
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