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

[2024] AATA 63

Pinto and Secretary, Department of Social Services (Social services second review) [2024] AATA 63 (25 January 2024)

Division:GENERAL DIVISION

File Number:2022/2712          

Re:Mr Goncalo Pinto  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

Tribunal:Senior Member B. Pola

Date:25 January 2024

Place:Brisbane

DECISION

Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the Social Services and Child Support Division dated 1 March 2022, to decline the applicant’s claim for the Disability Support Pension.

...............................[SGD].........................................

Senior Member B. Pola

CATCHWORDS

SOCIAL SERVICES – Eligibility for Disability Support Pension – Appeal of decision of Social Services and Child Support Division – where purported impairments included visual conditions, upper limb conditions, and spinal condition amongst others – where applicant’s self-reported evidence of conditions in contrast with medical material – where evidence of each of conditions not in support of awarding 20 impairment points per legislative requirements – section 94(1)(b) of Social Security Act 1991 (Cth) not satisfied – decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
Social Security (Administration Act) 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Social Security Act 1991 (Cth)

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Fanning and Secretary, Department of Social Services (2014) 144 ALDA 133
Faulkner and Comcare [2007] AATA 1541
Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Kioa v West (1985) 159 CLR 550

REASONS FOR DECISION

Senior Member B. Pola

25 January 2024

BACKGROUND

1. On 24 December 2020, the applicant, Mr Goncalo Pinto, lodged a claim for the Disability Support Pension (herein referred to as the ‘DSP’) with Services Australia (herein referred to as the “Agency”)[1].

   [1] Exhibit TR1, T19, pages 142 to 174.

2. On 26 May 2021, the applicant was advised by the Agency that his claim for the DSP was rejected on the basis that his former partner’s income was above the financial threshold for eligibility for the DSP[2].

   [2] Exhibit TR1, T32, page 264.

3. The decision to reject the applicant’s claim for the DSP was affirmed by an Authorised Review Officer (herein referred to as an ‘ARO’) after an internal review by Services Australia on 18 September 2021[3]. The Tribunal notes that the applicant was advised of the outcome of the ARO’s review by way of a phone call and a letter, with records of the respondent stating the rejection of the applicant’s claim for the DSP on the grounds of medical and non-medical eligibility requirements[4].

   [3] Exhibit TR1, T26, pages 200 to 207; T32, page 270.

   [4] Exhibit TR1, T32, page 267.

4. The applicant applied to the Social Services and Child Support Division (herein referred to as the ‘SSCSD’) of the Administrative Appeals Tribunal (herein referred to as the ‘Tribunal’), to review the Agency’s decision to reject his claim for the DSP. On 1 March 2022, the SSCSD of the Tribunal affirmed the decision to reject the applicant’s claim for the DSP[5]. The Tribunal notes the scope of the SSCSD review was limited to assessing the applicant’s medical eligibility for the DSP.

   [5] Exhibit TR1, T2, pages 4 to 12.

5. The applicant applied to the General Division of the Tribunal for a second review of this decision on 23 March 2022[6].

   [6] Exhibit TR1, T1, pages 1 to 3.

6. On 14 November 2023 the respondent wrote to the applicant seeking further financial information pursuant to section 196 of the Social Security (Administration Act) 1999 (Cth) (herein referred to as the ‘Administration Act’), requiring the applicant to complete an income stream details form, including to furnish certain income tax returns, amongst other requests.

7. On 28 November 2023 this Tribunal held a Directions Hearing to ascertain the scope of the review with respect to this application, given the respondent’s request for additional financial information referred to above, and the differing scope of the earlier review of the applicant’s claim for the DSP before the SSCSD of the Tribunal, and the review conducted by the ARO. Following consensus from both the applicant and respondent, it was agreed that the scope of issues to be determined in the application before this Tribunal would be limited to the applicant’s medical eligibility for his application for the DSP dated 24 December 2020. Any future decision made with respect to the applicant’s non-medical eligibility requirements for this DSP application would be subject to a separate application for review by the applicant.

   JURISDICTION

8. This is an application to review a decision of the SSCSD of the Tribunal, which affirmed an earlier decision of the respondent to reject the applicant’s claim for the DSP.

9. The applicant’s claim of 24 December 2020 has been reviewed in accordance with section 135 of the Administration Act by an ARO, per their decision dated 18 September 2021. The SSCSD of the Tribunal subsequently reviewed the decision of the ARO and published its reasons on 1 March 2022.

10. In accordance with section 179(1) of the Administration Act, the Tribunal therefore has jurisdiction to review the applicant’s DSP claim of 24 December 2020.

    ISSUES

11. The issues before the Tribunal for consideration is whether the applicant was medically qualified to receive the DSP in relation to his claim lodged on 24 December 2020 and ending 13 weeks later, on 25 March 2021 (herein referred to as the ‘Qualification Period’)[7], that is:

    (a)Whether the applicant had impairments during the Qualification Period in accordance with section 94(1)(a) of the Social Security Act 1991 (Cth) (herein referred to as the ‘Act’)?

    (b)Whether the applicant’s impairments attract 20 points or more under the Impairment Tables, contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)[8] (herein referred to as the ‘Determination’) within the Qualification Period for the purpose of section 94(1)(b) of the Act? 

    (i)If so, did the applicant have a continuing inability to work as defined in section 94(2) of the Act, for the purpose of section 94(1)(c) of the Act?

    [7] The Qualification Period is discussed in later paragraphs of this decision.

    [8] The Tribunal notes a new Determination took effect from 1 April 2023, but for the purposes of the present

    RELEVANT LEGISLATIVE FRAMEWORK

12. The medical qualification criteria regarding eligibility for the DSP are set out in paragraphs (a), (b) and (c) of section 94(1) of the Act:

    94 Qualification for disability support pension

    (1)A person is qualified for disability support pension 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;

    (ii)the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system

13. To be medically qualified for the DSP, a person must therefore have a physical, intellectual, or psychiatric impairment, that has a total rating of 20 points or more under one (or several) Impairment Tables, and a continuing inability to work which, in some circumstances, includes participation in a Program of Support (herein referred to as ‘POS’).

14. Section 26(1) of the Act provides that, “…the Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for disability support pension”.

15. It is the Tribunal’s role to stand in the shoes of the original decision-maker[9] and determine whether the decision was the correct or preferable one based on the material before it[10].

    [9]     Faulkner and Comcare [2007] AATA 1541 at [27].

    [10]    Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; (1979) 46 FLR 409, 419 (per Bowen CJ and Deane J).

16. Given this, the Tribunal must make its decision in accordance with the Determination which came into effect from 1 January 2012. The following paragraphs outline key sections of the Determination.

17. Section 6 of the Determination provides that, “the impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person”[11]. Further, the Impairment Tables in the Determination may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered[12].

    [11]    Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth), section 6(1).

    [12] Ibid, section 6(2).

18. An Impairment Rating may only be assigned to an impairment if[13]:

    (a)the person’s condition causing the impairment is permanent; and

    (b)the impairment that results from that condition is more likely than not, in light of evidence, to persist for more than two years.

    [13] Ibid, section 6(3).

19. Further, for a condition to be considered permanent pursuant section 6(3)(a) of the Determination, the condition must also[14]:

    (a)be fully diagnosed by an appropriately qualified medical practitioner; and

    (b)be fully treated; and

    (c)be fully stabilised; and

    (d)be more likely than not, in light of available evidence, to persist for more than two years.

    [14] Ibid, section 6(4).

20. When considering whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether the condition has been fully treated, the following is also to be considered[15]:

    (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 two years.

    [15] Ibid, section 6(5).

21. A condition is considered fully stabilised if[16]:

    (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 two 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 two 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.

    [16] Ibid, section 6(6).

22. Reasonable treatment is a treatment that[17]:

    (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.

    [17] Ibid, section 6(7).

23. Section 6(8) of the Determination provides that, “the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned”. Section 6(9) of the Determination sets out circumstances to be considered in relation to pain.

24. Sections 7 to 11 of the Determination provide guidance as to how the Impairment Tables should be used to assess information and evidence and how to assign Impairment Ratings.

25. In particular, section 8(1) of the Determination provides that, “symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence”.

26. Meanwhile section 11(1)(c) of the Determination provides that in assigning an Impairment Rating, “if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied”.

    Continuing inability to work

27. As previously detailed in earlier reasons of this decision, section 94(1)(c)(i) of the Act states that in order to qualify for the DSP, a person must have a, “continuing inability to work”. Section 94(2) of the Act stipulates that:

    (2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

    (aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and

    (a)in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

    (b)in all cases—either:

    (i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

    (ii)if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

28. A “severe impairment” is defined in section 94(3B) of the Act:

    A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

29. Section 94(3C) of the Act states that:

    A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.

30. The Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (herein referred to as the ‘Participation Determination’) came into effect on   3 January 2015, and sets out the requirements for ‘active participation’ for those people required to demonstrate they have actively participated in a POS.

    QUALIFICATION PERIOD

31. Schedule 2, Part 2, section 4(1) of the Administration Act outlines that the Qualification Period for a social security payment occurs within the 13 weeks after the day on which the claim is made. Where a person subsequently becomes qualified after the lodging of the claim, the commencement date for the DSP is the date on which the claimant becomes qualified[18].

    [18] Social Security (Administration Act) 1999 (Cth), Schedule 2, Part 2, section 4(1)(d).

32. For the purposes of this decision, the day which the applicant’s claim for the DSP was lodged with Centrelink was 24 December 2020[19] and concluded 13 weeks after that day. The Tribunal finds the 13-week period ended on 25 March 2021.

    [19] Exhibit TR1, T19, pages 142 to 174.

33. This means that for a claim to be successful, the person must be qualified for the DSP during this Qualification Period, noting that changes in medical conditions which occur later are not relevant to this claim, but may be relevant to a separate future claim. Further evidence (medical or other) provided outside the Qualification Period may be considered if it is referable to the applicant’s condition during the Qualification Period[20].

    [20]  Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012]   

    CONSIDERATION

34. The application was heard in Brisbane on 13 December 2023 with all parties appearing by telephone as permitted by section 33A of the Administrative Appeals Tribunal Act 1975 (Cth). The applicant was self-represented, and the respondent was represented by Ms Alicia Henderson from Services Australia (additionally, Ms Michelle Cornish from Services Australia was an observer for the respondent, but a non-participant at the hearing). The Tribunal considered oral submissions made by the applicant and respondent, in addition to submitted written evidence, as outlined in the Exhibit Register (marked as Annexure 1 at the end of these reasons).

35. Following the conclusion of the hearing on 13 December 2023, the applicant wrote to the Tribunal by way of email later that evening, to complain with respect to the time provided to the applicant for his closing submissions, and stated, “… I, the applicant, was rushed to finish my presentation and not allowed to comment on the Condition: Spinal Function, Table 4 and present my concluding comments. This is not fair. My question is Why?”. Respectfully, the Tribunal disagrees with the applicant’s assertion in the question he posed and is of the view the applicant was afforded procedural fairness.

36. In arriving at this view, the Tribunal has had regard to His Honour Mason J, in Kioa v West[21] that, “…the expression “procedural fairness” … conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case…”.

    [21] Kioa v West (1985) 159 CLR 550, 585.

37. In considering the Applicant’s assertion, the Tribunal has had regard to the following timeline of events, and conduct of the hearing:

    (a)the application for review was received on 23 March 2022 by the Tribunal[22].

    (b)The Tribunal had listed multiple case conferences in this matter, on 26 April 2023, 30 June 2023, 18 July 2023 and 29 August 2023.

    (c)The Tribunal convened a Directions Hearing on 28 November 2023, during which both the applicant and the respondent were invited to make submissions as to whether the substantive hearing was ready to proceed on 13 December 2023. The applicant submitted that he wanted the hearing to proceed as listed.

    (d)On 11 December 2023, the Tribunal registry conducted a pre-hearing check with the applicant confirming the date and time of the hearing, the contact number to reach him on, and that he had all the material required ahead of the hearing. During this verbal pre-hearing check, the hearing process was explained to the applicant, and he confirmed his understanding in relation to the same.

    (e)The usual procedure for a hearing is that the applicant, after outlining their case will present any evidence, written and oral, in support of that case. The respondent may cross-examine any witnesses. The respondent will then outline its case and present any evidence. The applicant may cross-examine the respondent's witnesses. The applicant may lead evidence in rebuttal to answer points made in the respondent's case in certain instances. At the conclusion of the evidence, each party then has an opportunity to make closing submissions. At the hearing on 13 December 2023, given the applicant was self-represented and there were no witnesses, the Tribunal varied the usual procedures regarding the hearing, so the applicant had the benefit of hearing the respondent’s opening and closing position first. In the Tribunal’s view, the applicant was afforded numerous opportunities throughout the hearing to address contentions put to him via the respondent’s cross-examination, with respect to his spinal condition.

    (f)Finally, the Tribunal has had regard to the written submissions of the applicant in relation to his spinal condition, which are captured in the Exhibit Register, in Annexure 1 of these reasons[23].

    [22]  Exhibit TR1, T1, pages 2 and 3.

    [23] Exhibit A1, pages 3 and 4; Exhibit TR1, T28, pages 212 and 213; and Exhibit R1, Attachment A, pages 3 to

1. In view of the above factual circumstances, the Tribunal is of the view the applicant was afforded procedural fairness with respect to addressing contentions with respect to his spinal condition. Further, for reasons more fulsomely explained in the latter paragraphs of this decision, the Tribunal is unable to rely on the applicant’s self-reported symptoms with respect to his spinal condition, as the Determination requires the decision-maker to directly refer to corroborating medical evidence[24]. In the latter reasons of this decision the Tribunal makes findings with respect to the lack of contemporaneous medical evidence regarding the applicant’s spinal condition, as being the reason the applicant’s condition was unable to be considered fully diagnosed, fully treated or fully stabilised, and therefore was unable to be assigned an impairment rating in accordance with the Determination.

   [24] The Determination, section 8(1).

   Section 94(1)(a) of the Act (physical, intellectual, or psychiatric impairment)

2. It is not in contention that the applicant suffers from a number of impairments relevant to this application with respect to his medical eligibility for the DSP[25]. In his application form for the DSP signed on 3 November 2020, the applicant listed the following medical conditions that significantly affected his ability to work[26]:

   [25] Exhibit R1, page 7, paragraph 47.

   [26] Exhibit TR1, T19, page 169.

   “… Psychiatric: Post Traumatic Stress Disorder (PSTD)

   Physical: Bilateral Lateral Epicondylitis
              : Broken L&R wrists
   Limited downward movement and grip;
   Left thumb – no movement
              : Broken neck
              : Blind R/Eye
              : Retina Detachment L/Eye
              : L/Kidney removed…”

   [Sic]

3. The Tribunal finds the following impairments relevant to this application after review of the evidence:

   (i)Visual condition;

   (ii)Atrial fibrillation condition;

   (iii)Spinal condition;

   (iv)Upper limb conditions; and

   (v)Mental health condition.

   Section 94(1)(b) of the Act (Is a person’s impairment 20 points or more under the Impairment Tables)

4. The Tribunal will now consider each impairment identified with respect to the application of section 94(1)(b) of the Act, and whether they meet the relevant provisions contained within the Determination.

   (i)        Visual condition

5. The applicant sustained an injury to his right eye due to an accident in 1985, and subsequently lost all vision in this eye, with the applicant reliant on vision from his left eye.

6. Evidence before the Tribunal from hospital records confirm that in June 2013, the applicant had a retinal detachment in his left eye, which was successfully treated with surgery[27]. Post operative correspondence from an ophthalmologist and vitreoretinal surgeon stated they were, “… very pleased to report that his vision has been restored to 6/6 (pinhole) and he [the applicant] is delighted with the outcome…” [28] [Tribunal insertion].

   [27] Exhibit TR1, T14, page 129 to 131.

   [28] Exhibit TR1, T14, page 132.

7. In submissions before the Tribunal the applicant confirmed he subsequently sustained vision loss in his left eye, and he is required to continually use “Timolol” eye drops to control intraocular pressure in his left eye[29].

   [29] Exhibit R1, Attachment A, page 3.

8. On 15 December 2020 the applicant’s optometrist recorded a visual defect in the applicant’s left eye as having “constriction of visual fields inferior nasal to central fixation”[30]. At this appointment, the applicant’s optometrist recorded that his right eye had no vision and therefore no peripheral vision.

   [30] Exhibit TR1, T17, pages 139 and 140.

9. Corroborative medical evidence before the Tribunal confirms the applicant was referred to an ophthalmology clinic on 24 June 2021, following two earlier reviews which occurred in May and April 2021[31]. In a letter dated 22 July 2021, with respect to a patient review on              24 June 2021, a treating neuro-ophthalmologist confirmed the following diagnosis, treatment, and prognosis for the applicant with respect to his visual condition[32]:

   [31] Exhibit TR2, ST4, pages 135 to 151.

   [32] Exhibit TR2, ST4, pages 131 and 132.

   “… Diagnosis:
   1. Left phthisical eye due to previous trauma and retinal detachment.
   2. Previous retinal detachment with surgical vitrectomy repair.
   3. Cataract surgery in the left eye in the past.
   4. Treated ocular hypertension with timolol BD in the left eye.
   Goncalo was seen for review in the ophthalmology clinic today. He has been seen three times over the last couple of months as he has been worried about his peripheral vision in his left eye having a superior nasal constriction in his visual field. I cannot correlate this to his peripheral vision test today on Humphrey visual field which shows a slight depression in his visual field in the inferotemporal quadrant which is the opposite side to where he states he has his symptoms.

   Overall, he was most worried whether he had any retinal re-detachment. We have examined his retina three times now in the last two months and I am happy to say that I cannot see any evidence of retinal detachment. He does have some retinal scarring from previous operations to reattach the retina.

   Otherwise, he is seeing 6/6 vision in the left eye with a pressure of 18 on Goldmann tonometry, which is fairly well controlled with the timolol drops that he is using.

   Since things are quite stable now and he has been reassured that we did not see any signs of retinal detachment, we have stretched his appointments out to a yearly appointment. I would appreciate it if you could continue to re-prescribe the timolol, 1 drop BD to the left eye as necessary to keep the pressure at 18 or below…”

10. Whilst the above evidence falls outside the Qualification Period with respect to the application before the Tribunal, the Tribunal is of the view the specialist confirmation of the applicant’s past treatment regarding the use of eye drops to control intraocular pressure in his left eye is referrable to the applicant’s condition prior to and during the Qualification Period.

11. The applicant gave evidence to the Tribunal that he was prescribed glasses following surgery on his left eye in June 2013, which is confirmed in a letter from 14 August 2013 from the applicant’s treating ophthalmologist to his GP[33].

    [33] Exhibit TR1, T14, page 132.

12. The Tribunal is satisfied the applicant’s visual condition is permanent, and has been fully diagnosed, fully treated and fully stabilised during the Qualification Period in accordance with the Determination for his application for the DSP. The Tribunal notes that the diagnosis of the applicant’s condition is supported by evidence from an ophthalmologist as detailed in the above reasons, which is a requirement per the introduction to the appropriate Impairment Table in the Determination, which is Table 12 – Visual Function.

13. The Tribunal has considered a Health Professional Advisory Unit (herein referred to as “HPAU”) report dated 6 June 2023 prepared by an independent medical practitioner who is a fellow of the Australasian Faculty of Occupational and Environmental Medicine of the Royal Australasian College of Physicians (FAFOEM-RACP) and has medical specialist registration with the Australian Health Practitioner Regulation Agency (AHPRA)[34]. With respect to assessing the applicant’s functional impairment resulting from his visual condition, the following opinion was provided[35]:

    “… It is clear that Mr Pinto’s visual loss does not warrant a blind pension. He informed the AAT1 tribunal (para. 28): “He still holds an open driver’s licence and drives his car as necessary. […] His visual acuity is good though he now needs glasses to read and there is a loss of field vision still and he has to look to the right due to the loss of right eye sight. He reports he has had two car accidents where he couldn’t see things on the right and had to have the car door replaced and says he has almost run into people on pedestrian crossings as he doesn’t see them until the last minute.”

    The tribunal assigned 5 impairment points under Table 12 – Visual Function, however in my opinion 10 points can probably be conceded as consistent with the available specialist and self-reported evidence on Mr Pinto’s left eye functioning. Applicable descriptors for a 10-point-rating would be (1) (a) ‘other significant loss in their field of vision’; (b) somewhat problematic – a left eye intraocular lens for cataract treatment (as implied in Dr A Fong’s letter typed on 22/07/21 and apparently confirmed by Dr S Godfrey’s notes referring to ‘B/L PCIOL’, see above ) may qualify as an alternate vision aid or assistive device; (c) (i) and (iii); and (2) (a) and (b)…”

    [34] Exhibit TR2, ST10, page 231-247.

    [35] Ibid, pages 243 to 244.

14. Respectfully, the Tribunal is of the view that the available corroborative medical evidence (as required by the introduction to Table 12 – Visual Function in the Determination) referrable to the Qualification Period for this application, is consistent with a finding that the applicant’s functional impairment from his visual condition is of a mild functional impact, as transposed below:

Points

Descriptors

5

There is a mild functional impact on activities involving visual function.

(1)  The person can perform most day to day activities involving vision and has mild difficulties seeing things at a distance or close up when wearing glasses or contact lenses (if these are usually worn), and at least one of the following applies:

(a)  the person has some difficulty seeing the fine print in newspapers or magazines (e.g. they have to hold the print further away or use brighter light);

(b)  the person has some difficulty seeing road signs, street signs or bus numbers or has some difficulty reading road signs at night but can still travel around the community and use public transport without assistance;

(c)  when looking straight ahead, the person has some difficulty seeing objects to the side or in the centre of their field of vision;

(d)  the person experiences some discomfort when performing day to day activities involving the eyes (e.g. mild occasional watering of the eyes, mild difficulty opening the eyes, or mild difficulty moving or coordinating the eyes, or difficulty tolerating bright lights and sunlight);

(e)  the person has functional vision in only 1 eye, or only has 1 eye, but has good vision in the remaining eye.

1. The Tribunal is of the view the applicant meets descriptor (1) in Table 12 – Visual Function in the Determination consistent with a mild functional impact. Further, the Tribunal is of the view, that as at the Qualification Period for this application, the applicant also met descriptor (1)(e) in Table 12 – Visual Function in the Determination. Such a finding in the Tribunal’s view is also consistent with the applicant’s reported functional abilities. For the period of October 2017 to 20 March 2020 the applicant listed his occupation as a self-employed Uber driver on his record with the respondent[36]. The applicant gave evidence to the Tribunal that he stopped driving as an Uber driver following an assault which occurred in March 2019. The applicant also stated he currently held an open driver’s licence and continues to drive his car as necessary.

   [36] Exhibit R1, Attachment B, page 21.

2. The Tribunal accepts that the applicant’s visual condition has deteriorated in the time which has passed since the Qualification Period for this application (being 24 December 2020 to 25 March 2021) as confirmed by ophthalmologist clinical measurements that were taken on 13 May 2021 and 16 June 2022[37]. However, the available corroborative medical evidence directly referable to the applicant’s condition during the Qualification Period was that for his field of vision in his left eye, the applicant had a 20% constriction as reported by the applicant’s optometrist on 15 December 2020[38].

   [37] Exhibit TR2, ST4, pages 146 and 138.

   [38] Exhibit TR1, T17, pages 138-140.

3. The Tribunal has found the applicant’s visual condition was permanent, and at the time of the Qualification Period for this application, it was considered fully diagnosed, fully treated and fully stabilised in accordance with the Determination. For the reasons outlined, the Tribunal assigns the applicant’s visual condition an impairment rating of 5 points under Table 12 – Visual Function in the Determination. 

   (ii)       Atrial fibrillation condition

4. Historical hospital records of the applicant before the Tribunal confirm the applicant was discharged from hospital on 12 March 2012 after being diagnosed with “Vasovagal syncope” and newly detected “Atrial fibrillation’[39]. The records indicate the applicant was successfully treated and prescribed medication at the time to be taken twice a day.

   [39] Exhibit TR1, T4, pages 105 to 108.

5. Pharmaceutical Benefit Summary records of the applicant indicate this medication had not been dispensed from 8 January 2018[40]. There is no further contemporaneous medical evidence regarding this condition of the applicant, nor is there any corroborative evidence confirming the functional impact such a condition has on the applicant.

   [40] Exhibit TR2, ST1, pages 13 and 14.

6. The Tribunal is satisfied the applicant’s Atrial fibrillation condition was fully diagnosed, fully treated and fully stabilised prior to the Qualification Period for his application for the DSP with reference to the corroborative evidence referred to above. The most appropriate table to assess the functional impairment is Table 1 – Functions requiring Physical Exertion and Stamina. The Tribunal is of the view that an impairment rating of nil points under the relevant impairment table ought to be assigned, in circumstances where the only available evidence suggests this condition was successfully treated.

   (iii)      Spinal Condition

7. In a written statement provided as evidence for the first tier review of this application, the applicant stated that he had fractured his vertebra in a surfing accident in January 2007[41]. A hospital discharge summary dated 12 February 2007 provides the following history of the condition[42]:

   “… As you would be aware Mr Goncalo Pinto is a 50 year old man who was admitted previously to Gold Coast Hospital in the end of January following an anterior body fracture of C2 that was sustained in a surfing accident. This fracture was thought to be stable and he was discharged following a brief admission for analgesia. Mr Pinto represented on the 2nd February 2007 with an acute exacerbation of neck pain following a sudden rotation incident.

   On examination as previously did not display any neurological findings. He was in a lot of pain and remained in spinal precautions on his bed and this was felt to be the reason why he was unable to pass urine successfully. AN IDC was nonetheless placed and a CT scan undertaken. This demonstrated the presence of his previously diagnosed anterior body fracture and no new pathology.

   Mr Pinto had an uneventful stay for the next 3 days. He was discharged home following a successful trial of void in a soft collar to prevent any further sudden movements exacerbating his pain. We will review him in our Outpatients Department in 4 to 6 weeks time…”

   [41] Exhibit TR1, T28, page 212.

   [42] Exhibit TR2, ST4, page 179.

8. A medical certificate dated 9 December 2020 from the applicant’s treating General Practitioner (herein referred to as “GP”) stated the applicant suffered from the following medical condition, “… Fracture anterior body C2 vertebra January 2007 – ongoing neck since then…”[43]. It was further stated in this letter that the condition was considered permanent and stable in the view of the GP.

   [43] Exhibit TR1, T16, page 137.

9. The applicant’s Medicare patient history report indicates the applicant attended four appointments with a physiotherapist between 19 May 2020 and 16 June 2020[44]. The applicant gave evidence to the Tribunal that he discontinued with physiotherapy because it caused him additional pain. The Tribunal notes there is no corroborative medical evidence to support the applicant’s claim.

   [44] Exhibit TR2, ST1, page 9.

10. The originating injury the applicant suffered occurred in 2007. There is scant corroborative medical evidence in the time since then by way of (for example) imaging, specialist review, or pain management assessment as required by the introduction to the relevant impairment table, Table 4 – Spinal Function in the Determination.

11. Further, the Tribunal is of the view that there is a divergence in the limited medical evidence available with respect to this condition against the self-reported evidence of the applicant with respect to his functional ability. To this point, the Tribunal notes the applicant’s treating GP provided a report on 23 December 2021, stating the following with respect to the applicant’s spinal condition[45]:

    “… Mr Pinto cannot turn his head to the right without having to turn his whole trunk. He also can only lift his upper limbs to shoulder height before causing more pain (right worse than left) and therefore is very limited in being able to perform overhead duties…
    … Mr Pinto has seen a physiotherapist and has been given home based exercises to try to improve the mobility in his neck and reduce the pain but there has been no improvement since December 2020…
    … (a) Mr Pinto’s previous C2 fracture continues to cause him significant neck pain. He is unable to look up to perform overhead activities due to exacerbation of his neck pain, headache and pain in his upper limbs if he lifted above shoulder height.
    (b) Mr Pinto cannot turn his head to the right without having to turn his whole trunk.
    

    [45] Exhibit TR1, T28, page 224 and 226.

    (c) Previous C2 and C5 fractures have contributed to degenerative changes throughout the cervical spine. This results in neck, thoracic and lower back pain, neck stiffness and migraines…”

12. In the above-mentioned report the applicant’s treating GP indicated the applicant should be awarded an Impairment Rating of 20 points for this condition, consistent with a severe functional impact from 9 December 2020.

13. The applicant gave evidence to the Tribunal that in the period to at least March 2019, he was a full-time Uber driver working up to 6 days a week, which he gave up following a physical assault. The applicant’s evidence to the Tribunal is that he still holds an open driver’s licence and drives when necessary, and also confirmed earlier evidence at first review before the Tribunal that he manages his own care with respect to activities of daily living[46].

    [46] Exhibit TR1, T2, page 11, paragraphs 35, 36, and 38.

14. The Tribunal is of the view the applicant’s evidence does not support a finding that his spinal condition should be assessed as severe in accordance with Table 4 – Spinal Function in the Determination, as the applicant’s evidence is inconsistent with a severe impairment rating which states the applicant would be unable to:

    (a)perform any overhead activities; or

    (b)turn their head, or bend their neck, without moving their trunk; or

    (c)bend forward to pick up a light object from a desk or table; or

    (d)remain seated for at least 10 minutes.

15. Supporting the Tribunal’s view is the opinion of the medical specialist from the HPAU report of 6 June 2023 detailed in earlier reasons, where the clinician similarly concluded that in their opinion, the reported neck and back symptoms cannot be reliably deemed fully diagnosed, treated and stabilised without the benefit of specialist assessment and clinical correlation[47].

    [47] Exhibit TR2, ST10, page 245, paragraph 4.2.

16. It is for these reasons the Tribunal is not convinced on the state of the limited corroborative medical evidence that the applicant’s spinal condition is considered fully diagnosed, fully treated and fully stabilised in the Qualification Period in accordance with the Determination. Therefore, an impairment rating could not be assigned to this condition.

    (iv)Upper limb conditions

1. Evidence before the Tribunal confirms the applicant fractured both his right wrist (in 1987) and his left wrist (in 2014). There is limited corroborative medical evidence with respect to the applicant’s fracture of his right wrist. Attempts were made by the respondent to access medical files, but due to the historical data retention policy of the hospital where the applicant sought treatment, the files have been destroyed[48].

   [48] Exhibit R1, page 12, paragraph 83.

2. Hospital records before the Tribunal confirm the applicant was treated for a fracture of his distal radius and ulner syloid in his left wrist on 1 September 1996[49]. A medical certificate from the applicant’s GP in October 2014 confirmed the applicant’s left wrist was further treated with a plaster cast[50].

   [49] Exhibit TR2, ST2, pages 21 to 23.

   [50] Exhibit TR1, T8, page 117.

3. A hospital discharge report dated 28 August 2017 details the applicant’s admission to hospital for a left flexor pollicis longus (herein referred to as “FPL’) reconstruction and removal of plates, secondary to a previous plate which lead to the rupture of the applicant’s FPL in his left wrist[51]. The hospital discharge summary provided the applicant with the following ongoing care to be managed by his GP[52]:

   “… 1. To be followed up in Orthopaedic Clinic

   2. Please ensure patient has attended their Outpatient Clinic Appointment

   3. Please review the patient for any issues arising before their orthopaedic appointment.
   4. Please review analgesia needs and prescribe additional medication if required.
   5. Continue with any usual medications.
   6. If you are concerned about an infection, please contact the orthopaedic department prior to commencing antibiotics. Symptoms may include increased pain, redness, swelling or heat from the site.
   

   [51] Exhibit TR2, ST4, page 27.

   [52] Ibid page 28.

   7. Please review patient at 2 weeks for wound review and removal of staples/sutures if needed…”

4. With respect to the available evidence before the Tribunal regarding the post operative care of the applicant’s condition, the Tribunal refers to the summary provided by the applicant’s treating GP in a form dated 12 February 2022, which states[53]:

   “… Professor Bindara stated in the operation notes that the FPL could not be reconstructed therefore the condition is fully treated and has been stable for the past 4 + years…
   …
   … The severed left FPL has resulted in no movement of his left thumb and poor grip. Both left and right hands are very restricted in downwards movements, which cause significant pain. Mr Pinto has also developed bilateral lateral epicondylitis …
   …
   … Mr Pinto had follow up appointments with the orthopaedic team and physiotherapist after his August 2017 surgery. Their aim was to try to improve upper limb function and reduction of pain. There has been no improvement since December 2020…
   …
   

   [53] Exhibit TR1, T28, pages 217, 218 and 220. Whilst this report postdates the Qualification Period for this

   … Due to fractures in both wrists, Mr Pinto has developed arthritis in both wrists. He has very restricted downward movement and strength in his wrists so he is not able to do any heavy lifting or perform repetitive tasks. Rupture of the left FPL tendon has resulted in no movement of the left thumb and no grip strength in the left hand. Mr Pinto has also developed bilateral lateral epicondylitis which is very painful. He needs to rest and minimise use of his upper limbs, take pain relief as required, try physiotherapy and possibly local steroid injection…”

5. With respect to the GP’s claims regarding the applicant’s arthritis in both wrists, the Tribunal does not regard this as a diagnosis, as this diagnosis falls outside the Qualification Period for this application. Additionally, there is a lack of corroborating evidence to verify such a diagnosis (for example, imaging or specialist review as detailed in the Determination).

6. Further, the Tribunal is of the view that the opinion of the applicant’s GP in their report of   12 February 2022 regarding the applicant’s epicondylitis (that the applicant, “try physiotherapy and possibly local steroid injection”) suggests the applicant could be exploring further treatments in order to improve this condition at the time the report was written, outside the Qualification Period for this application. 

7. The Tribunal notes the opinion of the medical specialist from the HPAU report of   6 June 2023 that the diagnosis of the applicant’s epicondylitis as detailed above by the applicant’s GP, would require further clinical correlation by way of imaging, and that further specialist review would be beneficial given the applicant’s ongoing symptoms[54]. It was on this basis that the medical specialist formed the view that the applicant’s conditions were not considered fully diagnosed, fully treated or fully stabilised in accordance with the Determination. The Tribunal agrees with this opinion on reflection of the available evidence, with respect to the applicant’s epicondylitis.

   [54] Exhibit TR2, ST10, page 246, paragraph 5.2.

8. With respect to the applicant’s ruptured FPL, the Tribunal is satisfied that this condition is permanent and considered fully diagnosed, fully treated and fully stabilised in accordance with the Determination. This finding is made with reference to the evidence outlined in the above reasons from the hospital discharge report dated 28 August 2017 regarding the applicant’s surgery, and the follow up treatment which was documented by the applicant’s GP in the form dated 12 February 2022[55]. Further, with respect to assessing whether the applicant’s ruptured FPL was considered fully stabilised and fully treated, the Tribunal has had regard to the reported opinion of Professor Bindara, that the applicant’s, “… FPL could not be reconstructed therefore the condition is fully treated and has been stable for the past 4 + years…”[56].

   [55] Exhibit TR1, T28, pages 217, 218 and 220. Whilst this report post dates the Qualification Period for this

   [56] Exhibit TR1, T28, page 217.

9. The Determination states that where multiple conditions cause a common impairment, a single rating should be assigned in relation to that common or combined impairment under a single table[57]. 

   [57] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension)

10. Given the Tribunal’s finding that the applicant’s epicondylitis was not considered fully diagnosed, fully treated or fully stabilised in accordance with the Determination; the Tribunal will exclude this when assessing the functional impairment of the applicant’s upper limb condition and only apply a rating to the upper limb condition for impairments which are assessed as fully diagnosed, fully treated and fully stabilised (i.e. the applicant’s ruptured FPL in his left wrist). The most appropriate impairment table to apply to this condition is Table 2 – Upper Limb Function.

11. The applicant’s treating GP provided their own assessment as to the applicant’s functional impairment with respect to his upper limb condition, as detailed in their form dated  12 February 2022[58]. The Tribunal observes the opinion of the applicant’s GP in their note, which was that the applicant first met the criteria for a severe functional impairment on   9 December 2020. Whilst the form signed by the applicant’s GP falls outside the Qualification Period for this application, the Tribunal has considered the reasons of the applicant’s GP as they are directly referrable to the applicant’s FPL condition prior to the Qualification Period of this application. The Tribunal refers to the GP’s assessment of the applicant’s functional impairment, relevant to the applicant’s ruptured FPL in his left wrist:

    “…  He has very restricted downward movement and strength in his wrists so he is not able to do any heavy lifting or perform repetitive tasks. Rupture of the left FPL tendon has resulted in no movement of the left thumb and no grip strength in the left hand…”

    [58] Exhibit TR1, T28, page 220.

12. The Tribunal also has referred to the medical specialist from the HPAU report of   6 June 2023, who gave a contradicting opinion with respect to the applicant’s likely functional impairment resulting from the rupture to his FPL in his left wrist, based on the medical evidence which is before the Tribunal[59]:

    “… the left FPL tendon rupture would not be expected to result in no movement of the thumb and no left hand grip strength, as reported by the GP Dr C Lee. Loss of function to that extent is not considered plausible as the unrepaired flexor pollicis longus tendon is only one of many muscles and tendons, including thenar eminence muscles, that control thumb movement. Grip strength would be affected for some tasks as the FPL is the only muscle that flexes the interphalangeal (IP) joint (distal phalanx) of the thumb…”

    [59] Exhibit TR2, ST10, page 246, paragraph 5.3.

13. The applicant’s evidence to the Tribunal with respect to his functional abilities as detailed in earlier reasons, was that the applicant manages his own care with respect to activities of daily living, and he also confirmed that he still holds an open driver’s licence and drives when necessary[60].  Additionally, the applicant told the first tier of the Tribunal the following with respect to his functional abilities[61]:

    “… Mr Pinto reports he currently lives alone in a camper trailer on land he acquired after separating from his partner. He cares for himself and is able to clean and cook as needed. He drives and undertakes his own shopping. He says he takes time to do things. He carries light bags of groceries and can do a range of activities but is limited by weight and size of items to carry. He is able to write and provided a document relating to his claim which he reported took him some time to write. He does have a wrist brace he uses if he has to do something requiring more support…”

    [60] Exhibit TR1, T2, page 11, paragraphs 35, 36, and 38.

    [61] Exhibit TR1, T2, page 8, paragraph 20.

14. The Tribunal is of the view that the available corroborative medical evidence (as required by the introduction to Table 2 – Upper Limb Function in the Determination) referrable to the Qualification Period for this application, is consistent with a finding that the applicant’s functional impairment from his upper limb condition is of a mild functional impact, as transposed below:

Points

Descriptors

5

There is a mild functional impact on activities using hands or arms.

(1)  The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:

(a)  picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);

(b) handling very small objects (e.g. coins);

(c) doing up buttons;

(d) reaching up or out to pick up objects.

1. The Tribunal makes this finding with respect to the medical specialist’s assessment in the HPAU report of 6 June 2023 (in particular that the applicant’s grip strength would be affected for some tasks), observing the Tribunal’s finding with respect to the applicant’s ruptured FPL in his left wrist was fully diagnosed, fully treated and fully stabilised in accordance with the Determination. The Tribunal is of the view that this impairment rating is also consistent with the evidence of the applicant with respect to his functional abilities.

2. The Tribunal notes there is limited evidence corroborating the opinion of the applicant’s treating GP in their form of 12 February 2022 regarding the applicant’s functional ability. The Tribunal is of the view that the applicant’s evidence with respect to his functional ability regarding his upper limb condition is completely at odds with the allocation of a severe impairment rating with respect to the functional impact on the applicant using his hands or arms as implied by his treating GP’s report of 12 February 2022 (detailed in the above reasons). A severe impairment rating in Table 2 – Upper Limb Function requires that a person meet most of the following descriptors:

   (a)the person has limited movement or coordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional;

   (b)the person has severe difficulty handling, moving or carrying most objects even when using or wearing any prosthesis or assistive device that they have and usually use;

   (c)the person has difficulty using a computer keyboard despite appropriate adaptations;

   (d)the person has severe difficulty using a pen or pencil;

   (e)the person has severe difficulty turning the pages of a book without assistance.

3. The Tribunal has found the applicant’s upper limb condition was permanent, and at the time of the Qualification Period for this application, it was considered fully diagnosed, fully treated and fully stabilised in accordance with the Determination. Further, the Tribunal assigns the applicant’s upper limb condition an impairment rating of 5 points under Table 2 – Upper Limb Function in the Determination. 

   (v) Mental Health condition

4. The introduction to Table 5 – Mental Health Function within the Determination stipulates:

   “… The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist)…”  

5. The Tribunal notes the applicant does not have a diagnosis from a psychiatrist or clinical psychologist. The applicant’s mental health condition was diagnosed by the applicant’s treating GP in medical certificates provided on 25 March 2020, 15 October 2020 and  9 December 2020[62]. It is noted the applicant was referred to a registered psychologist on 25 March 2020[63].

   [62] Exhibit TR1, T13, page 124; T28, page 227; and T16, page 137.

   [63] Exhibit TR1, T28, page 222.

6. The Tribunal acknowledges the evidence of the applicant at the hearing with respect to the improvement the applicant has experienced from the treatment he has received from his registered psychologist.

7. However, in the absence of a diagnosis from a psychiatrist or clinical psychologist referable to the Qualification Period, any mental health condition of the applicant cannot be considered diagnosed. Therefore, the Tribunal was unable to assess the condition or assign an Impairment Rating as part of this application.

   Summary

8. The Tribunal has found that the applicant’s conditions attracted a total of 10 points with respect to their assigned Impairment Ratings, which is short of the required 20 points as required by section 94(1)(b) of the Act.

9. As the Tribunal has found that the applicant does not satisfy section 94(1)(b) of the Act, there is no need to consider the remaining relevant provisions.

   DECISION

10. Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the Social Services and Child Support Division dated 1 March 2022, to decline the applicant’s claim for the Disability Support Pension.

    I certify that the preceding 91 (ninety-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member B. Pola

    ……………[SGD]….……………

    Associate

    Dated: 25 January 2024

    Date of hearing:  13 December 2023

    Applicant:  Mr Goncalo Pinto (self-represented)

    Solicitor for Respondent:                  Ms Alicia Henderson (Services Australia)

    Observer for Respondent:                 Ms Michelle Cornish (Services Australia)

    Annexure 1 – Exhibit Register

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
R1.	Respondent Statement of Facts, Issues and Contentions (incl. Attachment A and Attachment B; 46 pages)	R	26.09.2023
A1.	Applicant Reply Statement (5 pages)	A	11.12.2023
TR1.	Section 37 T-Documents (T1-T33; pp 272)	-	-	26.04.2022
TR2.	Supplementary Section 37 T-Documents (ST1-ST10; pp 247)	-	-	22.06.2023

   application, the earlier Determination was in force during the Qualification Period for this application.

AATA 922 at [34]; Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA  

404 at [1]; Fanning and Secretary, Department of Social Services (2014) 144 ALDA 133; [2014] AATA 447 at

[31].

   5.

   application, the Tribunal has relied on the aspects as outlined in the written reasons which are directly referable   
   to the applicant’s condition prior to the Qualification Period.

   application, the Tribunal has relied on it as it is directly referable to the applicant’s treatment of his ruptured
   FPL in his left wrist which occurred prior to the Qualification Period.

   Determination 2011 (Cth), section 10(5).