Lee and Secretary, Department of Family and Community Services [2003] AATA 55 (21 January 2003)

Last Updated: 23 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 55

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/538

GENERAL ADMINISTRATIVE DIVISION )

Re HONG MENG LEE

Applicant

And SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date 21 January 2003

Place Sydney

Decision The Tribunal determines that the decision under review be affirmed.

[SGD] Dr J D Campbell

Member

CATCHWORDS

SOCIAL SECURITY - disability support pension - compensation injury - preclusion period - claim lodged prior to end of preclusion period - further claim at cessation of preclusion period - impairments - assessment - continuing inability to work

Social Security Act 1991 - section 94, Schedule 1B

REASONS FOR DECISION

21 January 2003 Dr J D Campbell, Member

1. In this matter Mr Hong Meng Lee ("the Applicant") seeks review of a decision of the Social Security Appeals Tribunal ("SSAT"), dated 4 April 2002, which affirmed a decision of an authorised review officer ("ARO") dated 12 February 2002 to reject the Applicant's claim for disability support pension ("DSP"). The ARO had affirmed the decision of an authorised delegate of the Secretary, Department of Family and Community Services ("the Respondent"), dated 4 December 2001 that the Applicant's claim for DSP was not successful.

2. A hearing was held before the Tribunal in Sydney on 29 October 2002 at which the self represented Applicant presented oral evidence. The Respondent was represented by Mr Bernard Slattery, an advocate from the Advocacy and Administrative Law Team at Centrelink.

3. The following documents were placed into evidence before the Tribunal:

Exhibit Description Date

T1-T28 pp1-137 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975

A1 Medical Report and Clinical Records of Dr Knapik 30 May 2002

A3 Medication Summary of Dr Knapik 6 September 2002

A4 Progress Clinical Notes of Dr Knapik As at 22 October 2002

A5 Letter from Centrelink to Mr Lee 26 August 2002

A6 Medical Report of Dr Thangaraj 24 June 2002

R1 Respondent's Statement of Facts & Contentions 18 October 2002

R2 Medical Report of Dr Kamenyitzky 20 August 2002

R3 Medical Report of Dr Chew 22 August 2002

issues

4. The relevant issue in this matter is whether the Applicant is qualified for DSP specifically:

(1) whether, for the purposes of subsection 94(1) of the Social Security Act 1991, the Applicant has a physical, intellectual or psychiatric impairment and whether that impairment is 20 points or more under the Impairment Tables in Schedule 1B; and

(2) if so, whether the impairment is of itself sufficient to prevent the Applicant from doing any work within the next two years; and

* from undertaking educational or vocational training or on-the-job training during the next two years; or

* whether such training is unlikely (because of the impairment) to enable the Applicant to do any work within the next two years.

legislation

5. The relevant legislation is the Social Security Act 1991 ("the Act") and in particular section 94 and the Tables for the Assessment of Work-Related Impairment for Disability Support Pension ("Schedule 1B Impairment Tables").

background

6. The Applicant suffered an injury to his right leg/foot on 27 February 1997 while on his way to work. On 17 December 1999 the Applicant received a lump sum compensation payment of $87,500 (T28). A preclusion period commenced on 15 December 1999 and concluded on 4 December 2001 (T8).

7. On 19 June 2001 Dr J Knapik, the Applicant's attending general practitioner, completed a treating doctor's report (T5). In this report Dr Knapik stated that the Applicant suffered from a right leg injury on 28 February 1997 and that treatment included an operation, NSAIDS and pain relief. He considered that the condition was long term, but while fluctuating, was deteriorating. Dr Knapik considered that the Applicant was unfit for any type of work for more than two years and that his work ability would be affected in the following ways:

* absence from work four or more days per month;

* unable to work full days because of endurance problems;

* unable to travel or move around independently;

* unable to lift, carry and move objects.

8. On 26 June 2001 Dr T Kanapathipillai, a Medical Adviser with Health Services Australia, detailed the following Whole Person Assessment after his examination of the Applicant (T6):

" This 47 year-old man worked as a bus driver and ceased work in February 97, following an injury to his right leg on his way to work. He had his compensation payment fully settled in 1999.

He sustained severe sprained right ankle as a result of a fall into a ditch on his way to work on the 28^th of February 97. He was found to have complete rupture of the lateral ligament of the ankle, at operation and this was repaired with tenodesis. He had X-ray evidence of tilted talus bone (small bone of the ankle joint) consistent with the lateral ligament injury and a large calcaneal (heel) spur as well. Bone scan revealed mild to moderate arthritis in the talo-navicular joint.

He says that he still has cramps in the leg and at times swelling of the ankle with restrictions in standing and walking for more than 10 minutes. However, he could walk independently with mild limp, though slow in his gait. He has mild weakness of plantar flexion, dorsiflexion, eversion and inversion of the foot, but no significant discomfort. He is using endone and temaze still for pain relief at nights.

Based on his presentation today, he cannot drive buses any more. He cannot engage in jobs, involving prolonged standing and walking. He is fit for sedentary light to moderate jobs, like mail sorting, telemarketing, cashier, light processing etc. He would benefit from vocational training for a suitable job."

9. The Applicant's claim for DSP was refused on 30 June 2001 by the Respondent, because he had an impairment rating of ten points. Further it was noted that the Applicant had a compensation preclusion period in existence and that the Applicant would benefit from educational, vocational or on-the-job training (T7).

10. On 20 November 2001 the Applicant lodged a claim for DSP (T9). In this claim the Applicant nominated his disabilities as:

"right foot ankle, swelling on my lower right leg, numb feeling and cramps. Movements within normal limits. Right leg is shorter than left. Right leg unstable and pain. Pain on both calves. I could not walk for days after cramps took place; need wheelchair. Couldn't do things on daily basis. Need Endone tablets and Temazepam capsule daily"."

11. The Applicant indicated in this report that his disabilities interfered with his ability to stand, walk, use public transport, lift, carry, bend, remember, attend work or other appointments, understand or follow instructions, sleep and care for others all the time. Often he stated he was unable to read, write, speak, hear, concentrate, interact with others, manage his personal affairs or care for himself. The Applicant considered that he was unable to undertake a rehabilitation and training program because of his use of medication and the variability in his use of medication and the variability in his condition.

12. A treating doctor's report from Dr Knapik was lodged with the Respondent on 20 November 2001 (T10). Again the condition nominated by Dr Knapik was a right leg injury (antero-lateral and lateral ligament) and that treatment had included an operation and medication with NSAIDS and for pain relief. Dr Knapik considered the Applicant was unfit to perform any work for more than two years and that his work ability was affected in the following ways:

* absence from work four or more days a month;

* unable to work full days because of endurance problems;

* mobility would be constrained in some situations;

* unable to lift, carry or move objects.

13. Dr G Mahony, a Consultant Orthopaedic Surgeon, in his report dated 30 April 1999 (T11) detailed the nature of the Applicant's injury in February 1997 as an injury to his right ankle and foot, and an injury to the right antero-lateral ligament. Operative treatment undertaken on 27 November 1998 revealed a complete rupture of the lateral ligament of the right ankle. That after the recovery from the operation, the Applicant continued to complain of pain in his right ankle.

14. On 4 December 2001 the Applicant was notified that his claim for DSP was rejected in that the Applicant's impairment rating was considered to be less than 20 points.

15. The Applicant in seeking a review of that decision, indicated in an undated request (T15) that:

"I had permanent injuries on both my legs. I need to take drugs every day and sleeping pills and I may need someone to take care of me in the future."

16. A letter from Dr Knapik lodged with the Respondent on 12 December 2001 indicated that the Applicant "has a compensatory problem in his left leg" (T16) and is being prescribed Panadeine Forte, Quinoctal, Temazepam and Endone (T17). A further letter from the Department of Transport was lodged indicating that the Applicant's licence to drive a public passenger vehicle was withdrawn in November 1999 (T18).

17. A review of new medical evidence was undertaken by Dr N Rose, Medical Adviser with Health Services Australia, on 17 December 2001 (T20) and his opinion that Dr Mahony's assessment of 20 per cent permanent loss of efficient use of the right lower limb below the knee (T19) was outdated (two years old) and used different assessment tables.

18. On 12 February 2002 the Applicant was advised that his claim had been reviewed by an ARO and that his appeal was unsuccessful as he had an impairment rating of ten points and he did not have a continuing inability to work (T24).

19. On 21 February 2002 Dr Knapik wrote an open letter in which he stated the Applicant "is suffering from pain and cramps in affected legs and numbness, and he is occasionally losing balance as he cannot support his weight with cramped muscles. He need frequently pain relief medication. He remains unfit for work" (T26).

20. The decision of the ARO was reviewed by the SSAT on 4 April 2002 and affirmed.

applicant's evidence

21. The Applicant told the Tribunal that he was born in Singapore on 21 November 1954, studied law for two and half years before undertaking National Service Training as a commando for three years, after which he served as a chief intelligence officer for 30 months in the Singapore Intelligence Bureau. He stated that he was shot in the line of duty, remained off work for one year after which he was paid compensation of $2000 and dismissed.

22. In 1985 the Applicant stated that he migrated to Australia; that he separated from his wife and child in 1991, and that after his arrival in Australia he spent two years delivering pamphlets for John Fairfax and then worked as a bus driver first for West bus for eight to nine years and then for Busway for two years and two months.

23. The Applicant related to the Tribunal how in February 1997 on his way to work in the afternoon he stepped into a hole and after a couple of hours he was lifted out and taken to a general practitioner who organised X-rays and bandages after which he went to work. The next morning his right leg was swollen and he could not walk. He was granted two weeks sick leave, after which he was returned to work on light duties working initially three hours for three days and then five days. Duties involved washing buses and tyre activities. He was let go after three months and underwent an operative procedure in November 1998 after which he had physiotherapy. He stated he received a compensation payment in December 1999 of some $87,000 for injury to his right leg and loss of income.

24. The Applicant stated that he lives with friends and he has difficulty with walking and movement. He described a normal day as arising around 11.30am, reading the paper, is able to do washing, cooking, watches TV, and walks around, although he can only walk less than 100 metres. He retires to bed at about 2am with two sleeping pills and during the day he spends a lot of the time in bed. His friend does the shopping and cleaning. He states he is unable to run, has difficulty climbing stairs, and takes Endone (two every eight hours), depression pills, sleeping pills, vitamin B and Panadeine Forte.

25. The Applicant informed the Tribunal that he has pain in his right leg, the lateral aspect of his right ankle, and his left leg is now affected. He had swelling of the right ankle after the operation and he has pain all the time, which has got worse since he put the claim for DSP.

26. The Applicant also told the Tribunal of cramps which began after his two operations (examination under anaesthesia in 1998 and operative repair in 1998). He described the cramps as commencing in his right leg and extending to his buttock and stomach, they are worse on exercise and he has a lack of medication to assist in control. He also indicated that they started in his left leg in 2002. He described the situation as regards the cramps as one severe cramp in his right leg a day lasting for 15-20 minutes together with a further five cramps lasting five to six minutes per day. He has not experienced a severe cramp in his left leg, and the cramps are worse in winter.

27. The Applicant also described to the Tribunal the occurrence of blackouts, which started mainly in 2002. He described such an episode which he stated occurred a week before the Tribunal hearing, and in which he experienced lights flashing before falling down to the ground. He stated that he has been referred to a neurologist, who ordered blood and other tests and prescribed vitamin B.

28. The Applicant also informed the Tribunal that he has been distressed since the accident in 1997 in that he feels down, is easily upset, is nervous but has not seen a psychiatrist. He stated that he does not drink alcohol, smokes three to four cigarettes per day and recently had a skin allergy. The Applicant also indicated that he does not know whether he would like to work.

other evidence

29. In a medical report dated 30 May 2002 (Exhibit A1), Dr Knapik indicated that the Applicant was suffering from severe leg pain and cramps, balance problems and recently depression, poor hearing and poor vision. A review of Dr Knapik's Clinical Notes from 19 December 2000 indicates recordings, detailing the Applicant's complaints of variable levels of severity of pain in his right leg, cramps in right leg, both legs (23 August 2001), difficulties with sleeping, an episode of loss of consciousness with referral to a neurologist (23 March 2002), a series of tests ordered by the neurologist which were normal (18 April 2002), depression (30 May 2002), poor hearing and poor eyesight (30 May 2002). The Clinical Notes also indicate many repeat prescriptions for Endone, Panadeine Forte, Temazepam, Vioxx, Quinoctal, Tramal and trial prescription for Cipramil (20 May 2002).

30. In a further report to Centrelink dated 12 July 2002 (Exhibit A2) Dr Knapik detailed the Applicant's major problems and the impairment rating for those assessments as:

* right leg injury - swollen, limited range of movements, limited ability to carry weight, walks with a limp. Changes position while sitting. Difficulty climbing up and downstairs. Impairment rating 20 per cent under Table 4;

* depression - lowered mood; unable to participate; cannot tolerate his pain without pain relief. Impairment rating 10 per cent under Table 6;

* hearing loss - permanent hearing loss identified by ENT specialist. No qualification. Impairment rating nil under Table 12;

* cramp attacks - right leg and recently left leg. Attacks every day or second day, last one hour, unable to participate in any activity during an attack. Impairment rating 20 per cent under Table 21;

* blackouts - occurs every two to three weeks without any prodromal warnings. Assessed by neurologist who is unable to find cause and nature of the problem. Impairment rating five per cent under Table 21.

31. In a further review of Dr Knapik's Clinical Notes (Exhibit A6) the Tribunal notes that notations recording depression (27 August 2002), skin allergy (12 October 2002), nasal problems (3 June 2002), acute on chronic sinusitis (X-ray report 24 June 2002).

32. In a report to Centrelink dated 20 August 2002 (Exhibit R2), Dr P Kamenyitzky, a Senior Medical Adviser with Health Services Australia, in commenting upon Dr Knapik's reports and Clinical Notes, concludes that there is little of significance in this new information apart from:

* a new diagnosis of depression, with no evidence of a psychiatric referral or the prescribing of antidepressant medication;

* that the right leg problems are more severe than was evident to the HSA Medical Adviser.

Dr Kamenyitzky concluded:

" In summary I cannot see any significant new evidence about this customer's medical conditions.

I have no reason to change the overall assessment that he was not medically qualified for the DSP on 20/11/01 or within 13 weeks of lodgement of his claim. "

33. On 22 August 2002 Dr Chew, a Medical Adviser with Health Services Australia, completed the following whole person assessment (Exhibit R3):

"This 47 year old customer last worked as a bus driver in 1997. He stopped work after spraining his R ankle on the way to work early in 1997. According to his treating doctor, Dr Knapik, the sprain failed to improve with conservative measures and he later had arthroscopy which also failed to settle the pain.

The customer believes that he had 2 surgical procedures performed on his R ankle but he was not able to recall this with absolute degree of certainty though he does remember attending 2 different hospitals. The long surgical scar over the lateral aspect of his R ankle would suggest that he had another operation beside his arthroscopy. Following the finalisation of his workers compensation, he went overseas in search for another medical opinion.

He attends today for New Start Allowance Review examination today. However he stated that the examination today has been necessitated by his recent attendances at the AAT. He stated that as the previous assessments had only considered only his ankle injuries and not the resultant cramps or blackouts.

He is currently taking 15mg of Endone three times a day as well as medication for cramps and Vitamin Bs.

He reports poor mobility as a result of the pain in his ankle. He is currently living with an elderly couple. He apparently pays a friend to drive him when necessary and for the shopping to be done for him. His friend took half a day off work to bring him to the assessment today.

He walks slowly with a prominent limp from the office. He crossed the road to where his friend's car was parked. He got into the car without assistance. He did not use a walking stick today as it broke recently. Beside the fungal changes in his feet, he has a surprising amount of callus in his feet. He also has fungal changes in all his fingernails.

He describes severe cramps in his R leg every 2^nd - 3^rd day. This would generally last for 15-20 minutes and responds poorly to anti cramps medications. He would generally need to just let it pass. These cramps would occasionally degenerates into blackout when he would actually lose consciousness. He would see flashing lights and would then collapse. He stated that the time between the warning and the syncope is too short for him to sit down to prevent physical injuries. He stated that he has had skin grazes as a result of the collapses but he has never sustained more severe injuries or bony fractures. He has been blacking out - once a month and this would last for a few minutes. No neurological cause has been found to account for the cramps and the collapses.

He believes that he is taking a medication for depression but is unsure which one it is from his current list of medications which does appear to include an anti depressant. He does not see a psychiatrist. He sometimes wishes that he would rather be in hell. He does not have definite suicidal ideations. His affect is reactive and he is interactive. There is no perceptual disturbance. He is able to hear conversation in a quiet room. His previous audiogram apparently found a binaural loss of 20.3%.

The total impairment rating would then be 20 points being 10 each for his ankle injuries and the cramps of unknown cause. The blackouts descriptively would not trigger of a work related impairment threshold under Table 21 though this may be subjectively disturbing. Also to further assign an impairment rating for the cramps would run the risk of double counting as demonstrated by Dr Knapik. I would agree that the hearing loss would not attract an impairment rating and it would also not preclude gainful employment. It is unclear, given the severity of the chronic pain, why a specialist pain clinic treatment has eluded him. The recent advances made in the field including the use of neurontin would undoubtedly be worth looking into.

Though gaining a total of 20 points impairment rating ostensibly from the same condition of a painful ankle, one would think that he would benefit from vocational rehab and retraining which may potentially lead to full time gainful employment within the next 24 months."

34. On 26 August 2002 the Respondent advised the Applicant that he did not qualify for DSP as he was able to be retrained within two years to do other work (Exhibit A5).

submissions

applicant

35. The Applicant contends that he has particular impairments, namely injury to his right ankle with chronic pain, cramps in right leg, now extending to left leg, depression, hearing loss and blackouts, and that the impairment rating for these disabilities is 20 points or more under the Schedule 1B Impairment Tables.

36. The Applicant further contends that by the very nature of his disabilities he experiences severe difficulties with mobility and that he would have difficulty with travelling to and from work and/or retraining activities. Further he contends that, as the attacks associated with his disabilities (cramps, blackouts) are not able to be predicted, his ability to travel or to work effectively is compromised.

37. The Applicant in relying on the medical reports of Dr Knapik and his own evidence in relation to his disabilities and the effects thereof submits that he qualifies for a DSP.

respondent

38. The Respondent contends that the Applicant does have particular impairments, namely chronic pain associated with injury to right ankle and cramps in the right leg at the time of his lodgement of his claim for DSP on 20 November 2001, or within 13 weeks of that date. Other impairments claimed by the Applicant are in the Respondent's contention impairments which have eventuated subsequently. In so stating the Respondent notes that depression is first mentioned in Dr Knapik's Clinical Notes on 30 May 2002, and that no treatment for depression is nominated until a trial of Cipramil is prescribed on 30 May 2002 and that there has been no referral to a psychiatrist. Further the Respondent observes that blackouts were not a feature of the Applicant's history until 23 March 2002, and difficulties with hearing and vision until 30 May 2002.

39. The Respondent contends that the impairment rating for the Applicant's impairments of pain in right leg and cramps in the right leg has been correctly assessed at 10 points and in so stating relies upon the opinions of Dr Kanapathipillai of 26 June 2001, the failure of Dr Knapik to mention the issue of cramps in his treating doctor's reports of 19 June 2001 and 20 November 2001 and in his letter of 12 December 2001 and the issue of double counting in relation to assessment of the right leg.

40. Further the Respondent, in relying upon the opinions of Drs Kanapathipillai, Rose, Kamenyitzky and Chew, contends that the Applicant does not have a continuing inability to work.

consideration and findings

41. In this matter the Tribunal observes the particulars of the medical evidence that has been detailed in the many and varied reports, the clinical records of Dr Knapik, the Applicant's treating General Practitioner and the Applicant. It is evident that the Applicant suffered a work-related injury in February 1997 and that despite operative correction in November 1998, the Applicant continues to experience symptoms of pain, cramps and intermittent swelling in his right leg. These are well noted in Dr Knapik's records, and while his treating doctor's reports of 19 June 2001 and 20 November 2001 may not record the Applicant's history of episodic cramps in his right leg, the Tribunal notes that such are recorded in Dr Kanapathipillai's report on 26 June 2001 and in the Applicant's notations as to his disabilities on 20 November 2001.

42. The Tribunal also notes that Dr Knapik considers the Applicant to be suffering from depression, blackouts and hearing loss. In analysing the clinical records of Dr Knapik it is evident to the Tribunal that Dr Knapik first records depression as an issue on 30 May 2002, at which time he prescribes an antidepressant. Prior to that date prescriptions had been given for Valium (anti anxiety) and Temazepam (sleeping). Further the Tribunal notes that Dr Knapik first raised the diagnosis of a depression in his letter to Centrelink on 12 July 2002 and at no stage has he referred the Applicant for psychiatric opinion. While noting Dr Knapik's diagnosis of depression, the Tribunal concludes that there is no documented clinical evidence to suggest such a condition existed at the date of lodgement of the claim for DSP on 20 November 2001 or within 13 weeks of that date.

43. Similarly the Tribunal observes that the issue of the Applicant's blackouts did not become a clinical issue until 23 March 2002; that a neurologist referral did occur and that after clinical investigations, the neurologist was unable to determine the cause of such. Again the Tribunal concludes that the Applicant's condition of blackouts was not in existence at the time of lodgement of the claim on 20 November 2001 or within 13 weeks thereof.

44. In relation to the Applicant's binaural hearing disorder, the Tribunal observes that this was first raised as a clinical issue on 30 May 2002. Unfortunately, while there appears to be a record that the Applicant does suffer from a 20.3 per cent binaural hearing loss, the Tribunal, in the absence of an ENT opinion as to the causation of the hearing loss is not in a position to determine whether or not the hearing loss was a longstanding disability.

45. As a consequence of the Tribunal's considerations the Tribunal concludes that the Applicant suffered from the following condition as at 20 November 2001 or within 13 weeks of that date:

* injury to right ankle and lower right leg characterised by chronic pain, periodic cramps and episodic swelling.

46. In further consideration, the Tribunal notes the following statutory framework namely section 94 of the Act which govern the qualification necessary for granting DSP :

"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;

...

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.(5) In this section:

educational or vocational training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;

on-the-job training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;

work means work:

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

(b) that exists in Australia, even if not within the person's locally accessible labour market."

47. The Tribunal is satisfied that the Applicant meets the requirements of section 94(1)(a) of the Act in that his continuing injury to his right ankle and right lower leg constitutes a physical impairment.

48. In addressing the issue of assessment, the Tribunal notes the nature and frequency of symptoms at the operative time (20 November 2001 or within 13 weeks of that date), and the nature of restrictions imposed on the Applicant as a result of his impairment as recorded in the clinical notes and reports of Dr Knapik relevant to that period, the report of Dr Kanapathipillai of 26 June 2001, the Applicant's statement as at 20 November 2001, the reports of Dr Mahony, and the subsequent clinical reports in so far as they permit the Tribunal to better understand the nature and severity of the impairment during the operative period.

49. The Tribunal while noting that previous assessments have all been concerned with assessing the impairment under Schedule 1B Impairment Table 4, function of the lower limb, and that later assessments have also attempted to rate the impairment under Table 21 - Intermittent Conditions, considers that the major or constraining or restricting symptoms arising from the Applicant's impairment at the time of lodgement within 13 weeks, thereof was pain. While this symptom is reflected in part in relation to right lower mobility, the Tribunal considers pain to be the predominant factor in determining of the effect of the Applicant's impairment on his capacity to work and that assessment under Table 4 underestimates the level of disability. In support of the conclusion that pain is the predominant clinical issue, the Tribunal notes the clinical notes of Dr Knapik in which it is evident that pain predominates as a symptom and that pain treatment with Endone and Panadeine Forte is persistent and at a significant level of dosage, if the Applicant's stated level of consumption is correct. It would appear to the Tribunal that a referral to a pain clinic for pain management would be highly desirable in the further management of the Applicant.

50. The Tribunal notes Table 20 of the Schedule 1B Impairment Tables and in particular that portion of the Table detailed:

"Rating fifteen - moderate to severe symptoms which are more 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.

Potentially life-threatening condition, which is currently interfering with daily activities, but self-care is unaffected."

51. The Tribunal, having reviewed the nature, frequency and effects of the symptoms of the Applicant's impairment on his capacity and ability to work, concludes that the impairment rating for the Applicant's disability of pain and cramps in the right lower leg is 15 points under Table 20, having concluded that Table 4 underestimates the level of the Applicant's disability.

52. The Tribunal has already indicated earlier in this decision that the conditions of depression, blackouts and hearing loss are conditions occurring either subsequent to the nominated operative period, or for which there is inadequate documentation upon which to make an assessment that the condition was in existence at or during the operative period (hearing loss). The Tribunal would also note, while that there may be clinical notes indicating an increasing in severity of the symptomology relating to pain and cramps later in 2002, that any such increase in severity of symptoms is a matter for further assessments.

53. In summary it is the Tribunal's finding that the impairment rating for the Applicant's disability of pain and cramps in his lower right limb is 15 points under Table 20. As such it is evident that the Applicant does not satisfy section 94(1)(b) of the Act.

54. In addressing the issue of the Applicant's ability to work at the operative period the Tribunal notes the opinion of Dr Knapik that he has an inability to undertake any form of work for more than two years. The Tribunal also observes the report of Dr Kanapathipillai of 26 June 2001 in which he states that the Applicant is unable to drive buses, not engage in jobs involving prolonged standing and walking. He considered that Applicant is fit for sedentary, light to moderate jobs and that he would benefit from vocational training for a suitable job.

55. The Tribunal also notes the evidence of the Applicant at that time (20 November 2001), and the opinion of Dr Mahony in April 1999, the further undated letter of the Applicant where he states "he had permanent injuries on both legs", the review of such new material by Dr Rose, and the subsequent clinical evidence and oral evidence of the Applicant in so far as is assists the Tribunal in better understanding the issue of the Applicant's capacity to work at the time of lodgment or within 13 weeks thereof.

56. As a consequence the Tribunal concludes that the Applicant did not have a continuing inability to work at the operative period, as the impairment did not itself prevent the Applicant from doing any work within the next two years, nor undertaking educational or vocational training or on-the-job training during the next two years and that such training is unlikely, because of the impairment, to prevent the Applicant from doing any work any work within the next two years. In arriving at such a finding the Tribunal has placed great weight on the reports of Dr Kanapathipillai and Dr Rose in that their opinions are supported by particular written clinical findings to support their evaluations, while that of Dr Knapik are scant in accompanying clinical detail and the reports of Dr Mahony are some two years prior to the operative period.

determination

57. The Tribunal would in conclusion suggest to the Applicant that a further application for DSP should be considered, with the important requirement that medical documentation be provided with his application detailing the nature and condition, including diagnoses of the various conditions claimed, including reports from appropriate specialists.

58. The Tribunal determines that the decision under review be affirmed.

I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member

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

Associate

Date of Hearing 29 October 2002

Date of Decision 21 January 2003

Representative for the Applicant self represented

Advocate for the Respondent Bernard Slattery