Ryan and Secretary, Department of Family and Community Services [2003] AATA 31 (15 January 2003)

Last Updated: 16 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 31

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/427

GENERAL ADMINISTRATIVE DIVISION )

Re PHILLIP RYAN

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Rear Admiral A R Horton AO Member

Date 15 January 2003

Place Dubbo

Decision The decision under review is affirmed.

[SGD] Rear Admiral A R Horton AO

Member

CATCHWORDS

SOCIAL SECURITY - eligibility for disability support pension - whether Applicant has physical, intellectual or psychiatric impairment - whether condition is diagnosed, permanent, treated and stabilised - whether impairment can be assessed, and if so, whether 20 points or more - whether continuing inability to work

Social Security Act 1991 - section 94, schedule 1B

Social Security (Administration) Act 1999 - schedule 2

REASONS FOR DECISION

15 January 2003 Rear Admiral A R Horton AO, Member

1. Mr Phillip Ryan, the Applicant in this matter, seeks review of a decision of the Social Security Appeals Tribunal ("the SSAT") dated 12 March 2002 which affirmed in the majority a decision of an authorised review officer ("ARO") on 25 October 2001, which in turn affirmed a decision of an authorised delegate of the Secretary, Department of Family and Community Services ("the Respondent") on 6 September 2001, that he is not eligible for the disability support pension ("DSP").

2. The Applicant lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 27 March 2002. At a hearing before the Tribunal in Dubbo on 25 November 2002, the Applicant was self represented and gave oral evidence. Ms R Quinn, an advocate for Centrelink, appeared for the Respondent.

3. The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"). The Tribunal also took into evidence the following documents:

Exhibit A1 Report by Dr S Sinha, Psychiatrist, dated 26 July 2002

Exhibit R1 Report by Dr M Lim, Occupational Physician, dated 10 August 2002

Exhibit R2 Medical Assessment by Dr G Patow of Health Services Australia, received by Centrelink on 10 September 2002

ISSUES

4. The issues in this matter, as nominated by the Respondent and agreed by the Applicant are:

(a) whether, for the purposes of section 94(1) of the Social Security Act 1991 ("the Act"), the Applicant's impairment meets the criteria for assessment of work-related impairment as defined in the introduction to Schedule 1B of the Act; and

(b) if so, whether the impairment, of itself, is of 20 points or more pursuant to section 94(1)(b) of the Act; and

(c) if so, whether the Applicant has a continuing inability to work pursuant to section 94(1)(c).

LEGISLATION

5. Section 94 of the Act defines the qualification criteria for the disability support pension, and states, relevantly:

"94(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 Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and

(d) the person has turned 16; and

(e) the person either;

(i) is an Australian resident at the time when the person first satisfies paragraph (c); or

(ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

(iii) is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

(A) is not an Australian resident; and

(B) is a dependent child of an Australian resident;

and the person becomes an Australian resident while a dependent child of an Australian resident.

94(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that :

(a) the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years; and

(b) either:

(i) the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or

(ii) if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training - such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.

94(3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

(a) the availability to the person of educational or vocational training or on-the-job training; or

(b) if subsection (4) does not apply to the person - the availability to the person of work in the person's locally accessible labour market.

94(4) For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do work, have regard to the likely availability to the person of work in the person's locally accessible labour market.

94(5) In this section:

...

"work" means work:

(a) that is for at least 30 hours per week at award wages or above; and

(b) ..."

6. Schedule 2, Part 2 of the Social Security (Administration) Act 1999 relevantly states:

"4. Start day - early claim

If

(a) a person (other than a detained person) makes a claim for a relevant social security payment; and

(b) the person is not, on the day on which the claim was made, qualified for the payment; and

(c) assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim was made, and;

(d) the person becomes so qualified within that period;

the claim is taken to be made on the first day on which the person is qualified for the social security payment."

7. Impairment is assessed against the work-related Impairment Tables at Schedule 1B of the Act. The introduction to the Tables states, relevantly:

"2. These tables are designed to assess impairment in relation to work and consist of system based tables that assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance. These Tables are function based rather than diagnosis based. ...

3. These tables give particular emphasis to the loss of functional capacity that a person experiences in relation to work. ...

4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned, the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. ...

5. The condition must be considered to be permanent. ...

6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:

What treatment or rehabilitation has occurred;

Whether treatment is still continuing or is planned in the near future;

Whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.

In this context, reasonable treatment is taken to be:

Treatment that is feasible and accessible, ie, available locally at a reasonable cost;

...

It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment ...In those cases where significant functional improvement is not expected...it may be reasonable to consider the condition stabilised.

...

8. In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it. ..."

BACKGROUND

8. Following various specialist medical consultations and tests, Mr Ryan lodged a claim for the DSP on 17 August 2001, citing a condition of "hydrocarbon sensitivity", a condition subsequently referred to by his treating general practitioner (Dr D C Gibson) as "intolerance to exhaust fumes from motor vehicles". An examination for the Respondent was undertaken by Ms C Ellem, RN of Health Services Australia (HSA), she being of the opinion that the condition was temporary, but "not expected to resolve within 24 months" (as was the case with the SSAT, the Tribunal is unclear as to why this initial assessment was not undertaken by a "medical practitioner"). Ms Ellem further considered Mr Ryan was able to undertake full-time work, providing such work was in a non-allergic environment, an assessment of work capabilities being considered appropriate (T6 pp82 - 84). Based on that report, Dr D Finn of HSA opined that the Applicant would need retraining for employment in a environment free of allergens and that whilst he was currently fit for part-time employment, the long term outlook was difficult to predict. On 6 September 2001, the Respondent rejected the claim for DSP.

9. A further report from Dr Gibson (10 September 2001) assessed Mr Ryan's condition as long term and deteriorating; he considered he could return to part time work, but would not be fit for full time work at his usual occupation for more than two years.

Dr K Boyapita of HSA then undertook a file review, and generally endorsed the opinion of Dr Finn, opining that Mr Ryan was fit for employment in the appropriate environment, and would benefit from re-skilling (T6 p85). On 25 October 2001, the ARO affirmed the decision, the only additional medical report to the above being a further certificate from Dr Gibson dated 20 September 2001 in which he opined that Mr Ryan could not do any work for more than two years.

APPLICANT'S EVIDENCE

10. Mr Ryan was born in Dubbo in May 1958, and with the exception of a short period working in a sawmill in Victoria, he has lived in the Dubbo area all his life. It appears that he left school at the age of about 15, and his subsequent employment has been mainly labouring as a casual. His most recent "long term" employment has been as an agitator driver for Pioneer Concrete, again as a casual. Initially he was working about 20 hours a week, but this was gradually reduced (by management) to about one day per month. He gave evidence that whilst he remains "on the books" of Pioneer, his last job was some six months ago (about April 2002). At Exhibit R1, Dr Lim suggests from the history he recorded, that Mr Ryan's last job with Pioneer Concrete was in about October 2001.

11. More recently, Mr Ryan obtained temporary work on drains with Dubbo City Council. This lasted about 8 weeks until June 2002. When asked by the Respondent whether he could have continued with such work had it been available, Mr Ryan stated that he did not know.

12. Mr Ryan told the Tribunal that he commenced to suffer from the effects of vehicle exhaust emissions a few years ago. He feels he cannot work primarily because he cannot get to any place of employment due to the adverse affect of his intolerance to vehicle exhaust fumes. He stated that as soon as he leaves his home, he starts to get headaches and nausea, which in turn impacts on his ability to concentrate. It had been suggested that this condition was not so apparent when in the vicinity of diesel vehicles, or when driving such vehicles, but Mr Ryan said this had turned out to be not the case, albeit the headaches and nausea developed a little more slowly. He has access to a car and can drive, but does so rarely. The Applicant wears a mask whilst driving. He expressed great concern that his condition has not been properly diagnosed, and that no remedial action, other than some medications, had been identified in spite of seeing various specialists. He considers the examination by Dr Lim (Exhibit R1) to have been limited and hence leading to incorrect conclusions as to his health and his ability to work. He referred the Tribunal to the view of his general practitioner, Dr Gibson, that his future is very bleak.

13. Mr Ryan lives with his de facto partner and three children. Their home is on a busy road, and hence he has to keep the home closed up to minimise the effect of vehicle fumes. He acknowledged this was difficult for the children. He stated he has no social life, goes out only occasionally, and when he does, suffers from headaches and nausea. He cuts the grass with difficulty. In the medical reports available to the Tribunal, various medications have been prescribed; Sudafed, Panadeine Forte, Zyrtec, Rhinocort and Aroprax. Mr Ryan's evidence to the Tribunal was that he presently takes 6 to 12 Panadeine Forte each day; "they don't work", but he feels they help calm him down. He also takes Aroprax as recently prescribed by Dr Sinha (Exhibit A1). He is in receipt of newstart allowance.

MEDICAL EVIDENCE

14. With the exception of the reports by Drs Sinha (Exhibit A1) and Lim (Exhibit R1), medical reports available to the Tribunal were in the form of a transcript only (T18 pp 111-112). Dr D Hammill, Consultant Physician, provided the initial specialist report on 25 October 2000. He states Mr Ryan has a "peculiar problem with allergy affecting his frontal and maxillary sinuses confirmed on CT and this allergy seems to be mainly due to hydrocarbons from fuel". He refers to previous ENT surgery for sinuses, and recommends tests for allergies; he opines that "he is in a bad industrial situation and I am not sure that anything can be done until he removes himself from the cause".

15. Dr G Pulley, Naturopath, examined Mr Ryan in November 2000. The history he has taken refers to sinusitis, also present in other family members, being aggravated by car fumes. He notes, from enclosures to the referral, that Mr Ryan had "quite a low IgE and negative responses to dust mite, Rye grass and a mould mixture". He refers to drinking of alcohol although this is contradicted in other medical reports. He notes no known allergies. He suggests that Mr Ryan thought his major problem "had always been petrol fumes". He tested Mr Ryan for sensitivity to relevant chemicals, obtaining a possible reaction to salicylate, but none to glycerin, phenol or petroleum products. He recommended Mr Ryan wear a charcoal filter mask when driving in heavy traffic or when exposed to fumes. Finally. he notes that Mr Ryan advised that he did not wish any further appointments, a position agreed by Mr Ryan in evidence, who stated that he was acting on the advice of Dr Adelstein.

16. Drs S Adelstein and D Heyworth-Smith of the Royal Prince Alfred Imunology Clinic, saw Mr Ryan in February 2001. They described the symptoms as reported to them as moderately severe frontal headaches, mild nausea and a foul taste in the mouth, with symptoms being less severe when travelling in a newer model vehicle or diesel truck. Symptoms of nasal obstruction, related to a background of "mild to moderate allergic rhinitis with predominantly obstructive nasal symptoms" have been improved following ENT surgery, but this has not led to any improvement in intolerance to traffic fumes. They conclude by suggesting that the hypersensitivity to traffic fumes "probably represents a chemical irritation of his nasal and sinus mucosa rather than a specific IgE mediated allergy per se. In general, this is difficult to manage, as the symptoms seem to be exacerbated by even minimal exposure to the fumes".

17. The report by Drs Adelstein and Heyworth-Smith refers to a further consultation to be arranged with them at Orange Base Hospital some two months later. No later medical report from these doctors was available to the Tribunal.

18. On 27 March 2001, Dr Suran Fernando, Registrar of the Orange Health Service, wrote in a similar vein to the earlier specialists in terms of the symptoms and effects, concluding that "one can be confident that it is not an IgE mediated phenomenon," and proposing a discussion and appointment if necessary with Dr R Loblay, Immunologist/Allergist at Royal Prince Alfred Hospital. In response to the Tribunal, Mr Ryan stated that he had not seen Dr Loblay, but understood that Dr Adelstein had discussed his situation with Dr Loblay.

19. Dr S Sinha, Staff Specialist in Psychiatry in the Macquarie Area Health Services, saw Mr Ryan in July 2002, this being subsequent to the majority decision of the SSAT. He notes in his report of 26 July that Mr Ryan had been referred to him by the Area Mental Health Team, following a request for help with long term problems. He defined Mr Ryan's presentation at that examination as "marked anhedonia, dysphoric mood, low self esteem and a very cynical almost fatalistic attitude about possible help". He diagnosed depression, starting Mr Ryan on Aropax. He offered no opinion as to any allergy, this being outside his area of expertise. In evidence, Mr Ryan stated that he had not seen Dr Sinha since that one consultation, but was seeking referral to another psychiatrist. No reason was offered for this intention to change specialists.

20. The remaining medical report is that by Dr Lim, Occupational Physician, who saw Mr Ryan at the request of the Respondent on 6 August 2002 (Exhibit R1 refers). He gives his qualifications as including "ample experience in the assessments of workers with intolerances to noxious substances as well as work related allergic disorders". He notes in the history he obtained from Mr Ryan, that the employment of the latter through a labour hire agency on Council sewerage work in mid 2002, was terminated due to a dispute over wages. He opines that whilst previous medical reports show an acceptance of an intolerance to motor vehicle exhausts, Mr Ryan does not have a significant health problem, nor an allergic disorder apart from perennial rhinitis.

21. In response to the specific questions posed by the Respondent, Dr Lim gave his opinion that Mr Ryan does not have an assessable impairment, that is, Mr Ryan has no objective sign of significant organ dysfunction. He suggests the claim of being sensitised to hydrocarbons is inconsistent with lifestyle, reported activities and clinical presentation, and concludes with the view that Mr Ryan is able to continue in his usual occupations without the necessity for retraining.

22. Following this report by Dr Lim, a further file review by Dr G Patow of HSA was undertaken. His report is at Exhibit R2. It is undated, although the Respondent submitted that the relevant date was 10 September 2002. Suffice to the satisfaction of the Tribunal that Dr Patow refers to his assessment being in reference to the report by Dr Lim. On review, Dr Patow suggests an impairment rating against Table 20 - Miscellaneous conditions - of nil points, which relates to "minor symptoms which are easily tolerated and have no appreciable effect on ability to work". Dr Patow opines that the Applicant is fit for truck driving duties (with appropriate protective personal equipment) and alternate duties.

ANALYSIS OF EVIDENCE AND FINDINGS

23. In summarising his situation, the Applicant emphasised his inability to work, and that such inability initially presented itself in the context of travelling outside his home to any place of employment. He had earlier stated that the suggestion in some medical reports that he was able to work within the confines of a diesel truck cabin was misleading, and that the conditions of headache and nausea, with an inability to concentrate, still resulted, albeit the onset may be somewhat slower.

24. Following his consultation with the immunologists at Royal Prince Alfred Hospital, he had reservations as to the negative allergic tests conducted by Dr Pulley. He further considered that the conclusions drawn by Dr Lim could not be sustained given the limited time of the examination (stated by Dr Lim at Exhibit R1 as 40 minutes) and what he considered to be, minimal examination.

25. The Respondent submitted that the symptoms reported by Mr Ryan and the lack of definition of the condition by medical practitioners, particularly in respect of no identifiable allergy, did not satisfy the requirements of the Impairment Tables at Schedule 1 B of the Act. In the Appllcant's case, there was no consistent diagnosis, nor has the condition been treated and stabilised. Further, there was no consistent view that the condition was permanent. The Respondent further contended that there was a lack of objective evidence as to symptomatology.

26. The Respondent submitted that were it to be found that a condition was permanent, then there was insufficient evidence to suggest that the Applicant had a continuing inability to work, as would be required under subsection 94(1)(c) of the Act. The Respondent drew on the reports by Drs Adelstein, Heyworth-Smith and Fernando, in respect of the evidence given them by Mr Ryan regarding lesser symptoms when operating a diesel truck, and the assessment by HSA doctors that alternate employment was in any event quite feasible. Finally, the Respondent referred to the views of Dr Lim, and the conclusions of Dr Patow of HSA, both of which held to the view that the Applicant was fit for usual full-time duties.

27. The relevant period under review in this matter is that of 13 weeks from the date of lodgment of the claim for DSP, that is from 17 August 2001 to 16 November 2001. That period encompasses the reports of Drs Gibson, Hammill, Pulley, Adelstein and Heyworth-Smith and Fernando. The Tribunal also takes account of the later reports by Drs Sinha, Lim and Patow as they provide further opinions on the medical condition of the Applicant. The Tribunal takes account of the evidence of Mr Ryan, particularly where it provides a different perspective to that given in medical reports. A case in point is the ability or otherwise of Mr Ryan to work in a diesel truck environment.

28. The Tribunal is concerned that the available medical evidence is inconclusive, offering as it does, no clear diagnosis of the Applicant's condition. Nor does it suggest the way ahead whereby this condition might be fully diagnosed, treated and stabilised. Also of concern is that notwithstanding the frustrations of receiving inconclusive opinions as to his condition, Mr Ryan has shown limited initiative to obtain more definitive resolution. He has stated that he does not wish to see Dr Pulley, Naturopath, again. There is no evidence that he has followed the advice of Drs Adelstein and Heyworth- Smith for follow-up appointments. He has not seen Dr Loblay as suggested by Dr Fernando. And he indicated to the Tribunal that after making the initial approach to the Macquarie Area Mental Health Team, and seeing Dr Sinha, he has not followed up that first appointment, albeit Dr Sinha relates a condition of depression in addition to the ongoing issue of intolerance to motor vehicle fumes.

29. The Tribunal finds as fact on the evidence that Mr Ryan has a history of a sinus condition. The preponderance of the medical opinion is that Mr Ryan also has a sensitivity to, or an intolerance of, motor vehicle petrol fumes. There is however, no concensus on the reason for that intolerance. Drs Adelstein, Heyworth-Smith and Fernando are of the opinion that his symptoms do not relate to a specific IgE mediated allergy, that is, he has no evident immunological disposition, and Dr Pulley obtained no reaction to petroleum products. The weight of opinion is that the symptoms of headache, nausea, fatigue and inability to concentrate are not the result of an immunological or allergic condition.

30. The majority decision by the SSAT in this matter found that insufficient investigation of the Applicant's condition had been undertaken to enable a definitive diagnosis to be reached and the condition to be considered "permanent" as required under the instructions for the use of the Impairment Tables in Schedule 1B of the Act. The dissenting decision of the SSAT concluded that the evidence as to "insensitivity/intolerance to petrol fumes" was sufficient to enable a "working diagnosis" to be accorded for the purposes of meeting the Impairment Table criteria, and in turn for an impairment rating to be assigned, the dissenting member drawing on Re Hudson and Department of Family and Community Services [2000] AATA 502.

31. The Respondent submitted that Re Hudson (supra) was not on all fours with this matter, noting also that in referring to Re Hudson, the dissenting member of the SSAT did not have the benefit of later medical reports, particularly that of Dr Lim. The tribunal in Re Hudson noted at paragraph 41:

"That it is permanent at the operative time is not in question for it has existed for both three years before and after the operative period. That it has been extensively documented, investigated, treated and stabilised is well documented, the only unsatisfactory feature being an inability by the many specialists involved to agree upon the exact nature of the underlying pathology"

The tribunal in Re Hudson (supra) reached the conclusion that a "working diagnosis" of "chronic abdominal condition" could be established.

In the matter before this Tribunal, it can be argued that a working diagnosis of "intolerance to motor vehicle exhausts" could suffice, and the Tribunal so accepts such a description of the condition. But that alone is insufficient to meet other criteria required for the assessment of work related impairment under the Impairment Tables, whereby the permanence or otherwise of the condition must be established, and investigation, treatment and stabilisation addressed.

32. Paragraph 5 of the introduction to the Impairment Tables provides guidance as to when a condition may be considered permanent. It states "Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years". Dr Gibson has consistently maintained in Treating Doctor's Reports since August 2001 that the condition is long term, that is, it is likely to persist for at least two years. Registered Nurse Ellem took the same view and Dr Finn considered the long term employment outlook to be difficult to predict, implying that the condition could well be long term. Whilst Dr Lim states there is no objective sign of a significant organ dysfunction, and that Mr Ryan does not have a clinically assessable impairment, he makes no comment as to whether the condition of intolerance, accepted by various specialists, is long term or otherwise. On balance, the Tribunal finds that the impairment resulting from this condition is permanent, and in doing so, takes account of the treatments variously prescribed by medical specialists, and the further wording in paragraph 5 of the introduction to the Impairment Tables wherein it states "A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next two years". The Tribunal finds that a working diagnosis has been established, that the condition is being treated (albeit such treatments vary), and the condition presently meets the criteria for stabilisation, and hence determines that the Applicant meets the criteria in subsection 94(1)(a) of the Act.

33. The Tribunal can therefore proceed to determine a rating against the appropriate Impairment Table pursuant to subsection 94(1)(b) of the Act. Table 20 refers to miscellaneous conditions, and is relevant to this condition. Only Dr Patow of HSA has sought to make a rating assessment, that being done on the papers and following the later examinations by Drs Sinha and Lim. Because of the inability of the various specialists to agree to a specific diagnosis, resulting in the adoption by the Tribunal of the working diagnosis of "intolerance to motor vehicle exhausts", an impairment rating can only be determined by taking into account evidence and medical assessments relating to the Applicant's ability to work.

34. With the exception of Dr Gibson's report on 10 September 2001, when he indicated that Mr Ryan could return to part time work of at least eight hours per week, Dr Gibson has consistently maintained that the Applicant cannot undertake work, in any employment for more than two years, primarily because of his inability to travel and the conditions of headaches and nausea that would result. He further does not consider face to face study for at least fifteen hours per week (Treating Doctor's Report question 8) to be feasible for more than two years.

35. Dr Hammill considers Mr Ryan to be "in a bad industrial situation" and expresses uncertainty as to the future until the cause is removed, but he makes no comment as to whether other employment is feasible. Dr Pulley recommends that the Applicant use a charcoal filter mask when driving or exposed to fumes - and the Applicant stated to the Tribunal that he used such a mask - but makes no further comment as to an ability to work. Drs Adelstein and Heyworth- Smith note that Mr Ryan is "greatly troubled by intolerance...", that the symptoms resolve when away from motor vehicles for a period, and that it is "a very difficult problem". Whilst recommending avoidance measures, they do not comment on whether any employment is feasible. Dr Fernando also makes no work-related comment, but does note the opinion of Mr Ryan that the mask does not make any difference.

36. Registered Nurse Ellem and Drs Finn and Boyapati of HSA take the view that the Applicant is able to undertake full-time work, (and training for alternate employment where necessary), for at least thirty hours per week, the caveat in each case being that such employment be in an area not exposed to vehicle fumes. Dr Patow of HSA, commenting some 12 months later, considers the condition as having minor symptomatology only, whereby truck driving (with appropriate protective equipment) and alternate employment is possible. It is apparent that in each case, the belief was that the wearing of a suitable personal protective mask and/or working in a diesel truck cabin, reduced or controlled the symptoms, a view contrary to that given by the Applicant in oral evidence. Finally, and following examination, Dr Lim took the view that there was no medical reason why Mr Ryan should not return to normal duties, suggesting there was no impairment, and that his lifestyle, reported activities and clinical presentation were inconsistent with the claimed sensitivity.

37. The evidence of Mr Ryan to the Tribunal has been discussed. He maintained that even were employment obtainable in an environmentally acceptable workplace, his intolerance, and the adverse effects that it quickly produced, became apparent when outside his home. Hence he could not travel. As noted, he disagreed with the suggestion that a mask was sufficient to negate the problem, or that symptoms were much less when driving in the sealed cabin of a diesel vehicle.

38. It is acknowledged that Mr Ryan, from his evidence, has always worked in a casual capacity. It is also evident that his schooling ceased at about the age of 15 years, and this may inhibit him being retrained for some types of employment. But in respect of his claim, supported by Dr Gibson, that he cannot travel from his home to a place of employment, the Tribunal takes account of his employment with Dubbo City Council for some two months in 2002. In giving such evidence to the Tribunal, Mr Ryan effectively conceded that he was able to travel to his place of work at that time, and the Tribunal is of the opinion that there is no evidence to suggest that such a situation would not have existed some months earlier in the period within which DSP is considered. Whether or not that employment ceased due to a dispute over pay, as Dr Lim attributed in the history he obtained from Mr Ryan, is not of relevance.

39. Taking all these factors into account, an impairment rating under Table 20 of 15 points is considered a realistic assessment. 15 points is defined as:

"Moderate to severe symptoms which are distressing but prevent few everyday activities. Self-care is unaffected and independence is retained. Symptoms may have mild to moderate impact on ability to perform or persist with work-related tasks and/or attend work. Full-time work would still be possible".

40. 15 impairment points is insufficient to satisfy the conditions of subsection 94(1)(b) of the Act, whereby an impairment rating of 20 points or more is required, and hence Mr Ryan is not eligible for the DSP. For completeness, had the conditions of subsection 94(1)(b) been met, it is the opinion of this Tribunal that Mr Ryan would have failed the third leg of the test, that is, the continuing inability to work pursuant to subsection 94 (1)(c) of the Act. The weight of evidence is that in the period under review, Mr Ryan had the ability to return to the work force and to work for at least 30 hours per week, and the fact that he subsequently undertook such work for Dubbo City Council confirms that finding. In summary, the impairment of itself, pursuant to subsection 94(2), was not sufficient to prevent him doing any work within the next two years.

41. An issue which gives the Tribunal concern in this matter, is the apparent reluctance by Mr Ryan, as addressed earlier, to pursue resolution of his medical condition. It is acknowledged that the follow up for further medical consultations and tests is made more difficult because of his relative isolation at Dubbo and his avoidance of travel due to his intolerance to motor vehicle exhausts, but he appears to be unwilling to take up the opportunities as offered by various specialists, nor indeed to persist with recommended medications in some instances. If his medical condition is as severe as he portrays, it would seem to be in his best interest to pursue all avenues that might be made available.

42. The medical report by Dr Sanjay Sinha dated 26 July 2002 (Exhibit A1) notes a diagnosis of depression, a condition that would be considered under a DSP application. Dr Sinha's report is outside the 13 weeks after the date of lodgement of this claim for DSP and it is not within the power of the Tribunal to take that diagnosis of depression into consideration. However, the Applicant has the right to make a new DSP application listing the additional condition of depression and to support his application by further medical reports.

43. The decision under review is affirmed.

I certify that the 43 preceding paragraphs are a true copy of

the reasons for the decision herein of Rear Admiral A R Horton AO, Member

Signed: H Sim .....................................................................................

Associate

Date of Hearing 25 November 2002

Date of Decision 15 January 2003

Representative for Applicant Self Represented

Advocate for the Respondent Ms Rachael Quinn