Mansour and Secretary, Department of Family and Community Service s [2003] AATA 73 (24 January 2003)

Last Updated: 28 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 73

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/50

GENERAL ADMINISTRATIVE DIVISION	)
	Re	ADEL MANSOUR

Applicant

And

SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Respondent

DECISION

Tribunal

Dr J D Campbell, Member

Date 24 January 2003

Place Sydney

Decision

The Tribunal determines that the decision under review be affirmed in so far as the decision to cancel the Applicant's Disability Support Pension on 8 May 2000 is concerned, but varied to reflect that the period of cancellation ends on 7 August 2002, the day on which the Applicant's Disability Support Pension was regranted.

[SGD] Dr J D Campbell Member

CATCHWORDS

SOCIAL SECURITY - Disability Support Pension - cancellation - multiple impairments - assessment - continuing inability to work

LEGISLATION

Social Security Act 1991 section 94, schedule 1B

REASONS FOR DECISION

24 January 2003

Dr J D Campbell, Member

1. In this matter, Mr Adel Mansour ("the Applicant") seeks review of the decision of the Social Security Appeals Tribunal ("SSAT") dated 3 January 2001 which affirmed the decision of an authorised review officer ("ARO") dated 18 October 2000. The ARO had affirmed the decision of the authorised delegate of the Secretary, Department of Family and Community Services ("the Respondent") dated 8 May 2000 which cancelled the Applicant's payment of Disability Support Pension ("DSP").

2. A hearing was held before the Tribunal in Sydney on 14 October 2002 at which the Tribunal was assisted by an interpreter fluent in the Arabic language. The Applicant was self represented and presented oral evidence to the Tribunal. The Respondent was represented by Ms Cheryl Collis, a solicitor from the Advocacy and Administrative Law Team at Centrelink.

3. The following material was placed into evidence before the Tribunal:

Exhibit	Description	Date
T1-T49 pp1-126	Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
A1	Medical report of Dr D Browne	12 September 2001
A2	Bundle of clinical documents from Health Services Australia, including report of Dr T Mao of 27 June 2002	7 August 2002
A3	Medical report of Dr T Mao	11 April 2002
A4	Medical report from Fairfield Health Service	30 April 2002
A5	Medical report of Dr G Mendelsohn	30 April 2002
A6	Part of Claim for Disability Support Pension re Applicant and his wife	19 August 2002
R1	Respondent's Statement of Facts and Contentions	10 October 2002

ISSUES

4. The relevant issues before the Tribunal were:

* 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

* if so, whether the impairment is of itself sufficient to prevent the Applicant

§ from doing any work within the next 2 years; and

§ from undertaking educational or vocational training or on-the-job training during the next 2 years; or

* whether such training is unlikely (because of the impairment) to enable the Applicant to do any work within the next 2 years.

LEGISLATION

5. The relevant legislation in this matter 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. On 10 March 1987, Dr M Liew, a Consultant Rheumatologist, detailed in a medical report (T4) that the Applicant had knocked the antero-lateral aspect of his left knee against the handle of the machine while working for Borg Warner on 7 March 1986. Further Dr Liew detailed a second incident where the Applicant, when lifting a heavy weight of approximately 40 kilograms at work on 10 October 1986, experienced severe pain to his low back, extending along the back to the neck and shoulder girdles.

7. Dr Liew detailed the Applicant's complaint at that time as:

* pain in the low cervical spine;

* persistent low back pain;

* pain to the antero-lateral aspect of the left knee.

8. At that time Dr Liew considered that the Applicant was suffering from:

* a soft tissue injury to the left knee resulting in peri-arthritis and pain to the knee;

* pre-existing degenerative joint and disc disease of the lumbar spine;

* a developmental anomaly of defect to the pars inter-articularis.

9. On 16 April 1991 Dr Liew in a report to the Applicant's solicitors noted that the Applicant had not returned to work since his work-related incidents in 1986, and concluded that the Applicant's main ongoing problems were:

* spondylolisthesis at the lumbosacral junction;

* degenerative joint and disc disease to the low lumbar spine;

* that he has long recovered from the injury to his left knee;

* that ongoing symptoms in his neck and shoulder girdles and upper limbs are related to cervical spondylosis (T4 pp21-22).

10. On 12 September 1991 the Applicant was granted an Invalid Pension, which was replaced by DSP from 12 November 1991 (T2).

11. On 10 December 1991 Dr Y K Lee, a Consultant Orthopaedic Surgeon, in a letter to Dr Mao concluded that a review of X-rays did not show a definite pars intra- articularis defect and that there was a narrowing of the L4/5 disc space (T8).

12. In a medical report dated 24 February 1993 Dr P Winkler, a Consultant Ear, Nose and Throat Surgeon, stated that the Applicant's audiogram disclosed a very minor industrial hearing loss with no other pathology present (T9).

13. In a medical report dated 14 November 1997 Dr P Collett, a Consultant Respiratory Physician, concluded that the Applicant has mild airflow obstruction on spirometry consistent with his symptoms. Smoking is probably the cause of his airflow obstruction, although the intermittent nature of his symptoms suggests there may also be an asthmatic component (T10). Control spirometry was reported as normal by Dr Collett on 24 December 1997 (T12).

14. On 20 December 1997 Dr G Mendelsohn detailed in a letter to Dr T Mao, that the Applicant suffered from varicose veins in his right leg, and that conservative management was instituted (T11).

15. In a medical report dated 21 July 1998 Dr Liew noted the following symptomatology as described by the Applicant (T13):

* increasing arthralgia affecting various fingers, the knees and the metatarso-phalangeal joint of the great toe;

* chronic pain and stiffness to the neck and the low back;

* difficulties with prolonged sitting or sustaining any activities for an extended period of time. Bending, turning and twisting of his back aggravate the condition.

16. Dr Liew considered the Applicant to be suffering from:

* primary generalised osteoarthritis;

* degenerative disease to the cervical and lumbar spine

and that he was permanently unfit for any gainful employment (T13).

17. On 28 December 1999 the Applicant lodged a claim as part of the review of his DSP. He cited his disabilities as neck, back, knee and hearing problems and indicated he often had difficulties with sitting, standing and walking and that lifting, carrying, bending and operating machinery caused him pain and that he had difficulty with sleeping (pain) and breathing (sinus) (T6).

18. In a treating doctor's report dated 24 December 1999 (T7), Dr Mao listed the Applicant's disabilities as:

* spondylolisthesis/degenerative disc lumbar spine with persistent low back pain.

19. In the same report Dr Mao stated that the Applicant would not be able to return to any form of work for more than two years and that the Applicant's work ability would be affected in the following way:

* absent from work four or more days per month;

* unable to work full days because of endurance problems;

* unable to lift, carry and move objects.

20. In a medical assessment report dated 4 May 2000 (T15), Dr Roberts, a Medical Adviser with Health Services Australia, detailed the following Whole Person Assessment of the Applicant:

"This 55 year old man has not worked for many years. He left his job as a toolmaker on account of back and knee problem in 1986. He was granted IP in 1991 even though the examining CMO thought his condition was temporary. He was found to be fit for work on review in 1997, but DSP was restored on appeal six moths later.

His TD states that the customer's main problem is with back pain. The customer himself also reports neck and knee pain, varicose veins, breathing difficulties, allergic rhinitis and hearing loss. He has not had active treatment for his back apart from acupuncture for some time. He wears hearing aids even though binaural hearing loss is only 12.2 %. He uses puffers for his mild chronic airways disease. He has never required systemic steroids or hospital treatment. He stopped smoking eight years ago. He is currently having weekly desensitising injections for his allergic rhinitis. He has seen a surgeon regarding his varicose veins and is wearing elastic stockings as he does not want surgery. His varicosities are mild and he has no significant oedema or leg ulcers.

At examination he looked well and although anxious was in no distress. He was an alert and cooperative historian, who spoke and understood English well. His hearing was adequate for normal conversation. Gait and posture were normal. He sat comfortably, rose easily and was able to climb on and off the couch unassisted. There was no clinical evidence of lumbar nerve root irritation. X-ray and CT studies of the lumbar spine show very minor degenerative changes, which have not worsened, in the last ten years.

He scores an IR of 5 (Table 5.2) for his back problem. He could be unfit to work as a toolmaker, but he is certainly fit for light work such as car park attendant, caretaker and console operator. He has many medical conditions but is not disabled by them. He would benefit from retraining and there is no medical reason why he cannot undertake this. His main problems are non medical, ie his (relatively) advanced age, as well as his long term unemployment which has had a negative effect on motivation."

21. On 8 May 2000 the Respondent advised the Applicant that his DSP was to cease (T17). On 17 May 2000 the Applicant was advised that his DSP would continue while his appeal is ongoing (T18).

22. In a report to Dr Mao on 10 May 2000 Dr A Lozynsky, Consultant ENT Surgeon, stated that on examination there was no significant enlargement of his inferior or middle nasal turbinates with very good airflow through both nostrils (T23).

23. In a report to Dr Mao dated 15 May 2000 Dr Liew confirmed that:

"The Applicant's problem is again that of a primary generalised osteoarthritis affecting in particular the axial skeleton, various fingers, in particular the right thumb and both knees. ... As for work, I remain of the opinion, that he is totally and permanently unfit for any gainful employment for which he is suited (T22)".

24. In a treating doctor's report dated 25 May 2000 (T20), Dr Liew diagnosed the Applicant's condition as osteoarthritis with pain and stiffness to his neck, back, fingers, thumbs, knees and great toes. He believed the condition to be deteriorating and that the Applicant was unfit for any work for more than two years with his work ability affected by his disability in the following ways:

* absent from work four or more days per month;

* unable to work full days because of endurance problems;

* unable to lift, carry or move objects.

25. In a treating doctor's report dated 25 May 2000 (T21), Dr Mao completed the report in an identical fashion to that of Dr Liew of the same date.

26. As a consequence of a file review by Dr A Elliott on 20 June 2000, following the receipt of the further treating doctors' reports and specialist opinions, the Applicant was referred for Specialist Occupational Physician's Assessment (T24).

27. On 10 August 2000 Dr M Gliksman, a Consultant Occupational Physician, detailed the following medical opinion, following his examination of the Applicant:

"There is radiological evidence of a mild degree of cervical and lumbosacral degenerative change, consistent with Mr Mansour's age and with the presence of a specific developmental anomaly. There is no objective clinical evidence that these changes result in any functional impairment or neural impingement, capable of explaining the symptoms complained of in the cervical spine, shoulders, lumbosacral spine or lower limbs.

Examination of the knees did not reveal clinical evidence of impairment or pathology.

Respiratory examination did not reveal evidence of a significant lung disorder.

Audiometry reveals mild to moderate sensorineural hearing loss, consistent with the noise exposure in the type of work Mr Mansour had been performing.

There is unequivocal evidence of considerable functional overlay.

The osteoarthritic/degenerative changes are of a mild and age appropriate degree only.

The respiratory and allergic rhinitis problems are of a mild degree and are not likely to cause significant impairment, except in excessively dusty conditions or when exposed to allergens.

The sensorineural hearing loss is of a mild to moderate degree and apart from working in noisy environments, would not represent a source of impairment in relation to ability to work.

It is my medical opinion that due to a combination of age-related mild degenerative change and matters related to presbycusis, work in a noisy and heavy industrial environment as that involved, as a toolsetter would now be unsafe for Mr Mansour. However he is fit to perform full hours and full duties of work which do not require repetitive heavy lifting, work in excessively noisy environments, or work in excessively dusty environments." (T25)

28. On 5 September 2000 Dr P Thomas, a Medical Adviser with Health Services Australia, confirmed that in the light of Dr Glicksman's report the assessment of the Applicant's impairments was five points and that he remains fit for a wide variety of light to moderate work (T26).

29. Following confirmation by the Respondent on 15 September 2000 that the original decision was correct, the matter was referred to an ARO at the request of the Applicant. Following a review by the ARO the Applicant was advised on 18 October 2000 that the decision of 8 May 2000 to cancel his DSP was correct (T33).

30. In a medical report dated 11 December 2000 (T41) Dr M Guirgis, a Consultant Orthopaedic Surgeon, concluded that the Applicant suffered from chronic mechanical derangement of the cervical and lumbar areas of the spine caused by discopathic and spondylotic changes, post-traumatic osteoarthritis of the left knee, and chronic rotator cuff arthropathy of the right shoulder with impingement. He assessed the Applicant's disabilities in the following manner:

* cervical spine - loss of about one quarter of normal range of movement, five points under Table 5.1;

* lumbar spine - loss of one quarter of normal range of movement together with back pain with any physical activities, with standing for about 30 minutes, and with sitting or driving for about 60 minutes, ten points under Table 5.2;

* upper limb - demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes moderate interference with hand function and handling, ten points under Table 3.

31. Dr Shirtley, a Consultant Radiologist, in a report dated 4 December 2000 (T42) stated:

" Left knee X-ray

no bony or joint abnormality is seen within the left knee joint. I see no evidence of loose bodies.

Shoulder ultrasound

These films show diffuse alteration to the echo pattern of the right supraspinatus tendon. The tendon itself is thickened and the appearances are consistent with quite marked changes of tendonopathy, but I see no evidence of a full thickness tear. On abduction of the humerus, there is impingement on the right side at approximately 30 degrees. The remainder of the rotator cuff defines normally."

32. In a report dated 19 October 2000 (T43) Dr Mendelsohn, a Consultant Surgeon, confirmed that the Applicant's varicose veins were moderate in size, but certainly not huge.

33. A CT scan of the cervical spine was reported on 31 July 2000 by Dr A Aho, a Consultant Radiologist as:

"No disc herniation has been demonstrated.

There is some narrowing of the left sided exit foramina at the C6/7 level and this is secondary to disc degeneration and there are associated degenerative changes on the vertebral bodies in this area of the spine (T44)."

34. A CT scan of the lumbar spine was reported on 21 July 2000 by Dr S Mudbidri, a Consultant Radiologist as:

"The previously noted pars defect was again seen at the L5/S1 level with posterior neural arch defect. No definite disc herniation could be appreciated at all the three levels with adequate neural exiting foramina...

No cord or nerve root compression could be seen.

Marginal lippings were only noted in the bodies mostly on the anterior aspect. The facet joint showed mild degenerative changes mostly at the L5/S1 level (T44)."

35. In a medical report dated 12 September 2001 Dr D Browne, a General Practitioner assessed the Applicant's impairments after clinical examination and reviewing particular reports from Dr Guirgis and Dr Lozynsky in the following manner (Exhibit A1):

* respiratory - mild emphysema 15 points

* hearing - hearing loss 15 points

* cervical spine - loss of range of movement 5 points

* thoraco-lumbar spine - restricted movement

and symptoms on prolonged driving or standing 10 points

knees - minor problems, early degenerative arthritis 10 points

APPLICANT'S EVIDENCE

36. The Applicant stated that he was born in Egypt in 1945 and that he qualified as a fitter and trainer by age 21, with his first employment being with an iron and steel company between 1966 - 1971. He stated that he was married in 1968 and has had four children. He migrated to Australia in 1971 and worked as a machinist at Borg Warner for 12 months, after which he worked at Weedon and Davies for four and half years. Between 1976 and 1986 he was employed as a toolmaker at Borg Warner.

37. In March 1986 the Applicant indicated that he suffered his first accident which resulted in an arthroscopic examination of his left knee, after which he returned to light duties for two months and then full duties. Later in 1986 the Applicant stated that he hurt his back while lifting at work and he received compensation payments for ten months, because of problems with his back, shoulders and left knee. The Applicant indicated that he ceased work and received unemployment/sickness benefits from the Department of Social Security and in 1991 was granted an invalid pension, which was later converted to DSP. The Applicant indicated that his DSP has been reviewed on two occasions and that initially on both occasions the review assessed his impairments at less than 20 per cent, with the latest in May 2000 being 5 per cent. This, he said, resulted in him losing his DSP in 2001, and be placed on newstart allowance, with a doctor's certificate being required every three months.

38. The Applicant stated that he was advised by Centrelink on 8 August 2002 to again make a claim for DSP, which he did.

39. The Applicant described his various conditions in the following terms:

* chest problems - since 1996 suffered from asthma and placed on medication. He experiences periods of tightness in chest, difficulty in breathing. He notes that he is noisy at night, that stress precipitates asthma, that it appears to be getting worse each year and that it is worse in winter and with hard work. He experiences allergy in spring. In 2000 his chest condition was noisy and for two months he suffered from a chest condition. He wakes up twice a week with shortness of breath and sneezing;

* lower back - pain in midline lower back all the time; is able to walk and sit for half an hour to an hour, able to stand for half an hour. Unable to bend or undertake heavy lifting;

* neck - pain and headache;

* shoulders - pain in both shoulders, right shoulder worse than left.

40. The Applicant told the Tribunal that he is able to walk slowly for one half to one kilometre; that he has some difficulty climbing stairs; that he is able to cook, cut grass, shop, watch television, read, drive a car for 20 minutes to half an hour, carry shopping for a short period, but is unable to paint or do hard work.

41. The Applicant also stated that he had problems with his knees, that his right knee was getting worse, and his left knee clicked. He also stated that he had osteoarthritis in his fingers and toes, had difficulty hearing, but he had had his varicose veins in his legs attended to.

42. In cross-examination the Applicant stated that he had last worked in 1986 and had left work because there were no light duties available; that he had been treated with acupuncture for his back and that at the time of Dr Roberts' examination and now, he suffers bouts of severe pain in his back every two to three weeks and he has to spend three to four days in bed. The Applicant stated that he had seen Dr Harvey Sutton, an Occupational Physician, at the behest of Legal Aid but he had never seen a medical report from that doctor. He considered Dr Glicksman's examination to be thorough, but his examination of the Applicant's range of movements of cervical and lumbar spine caused pain. The Applicant indicated that he saw Dr Browne on two occasions.

OTHER EVIDENCE

43. On 11 April 2002 Dr Mao, the Applicant's General Practitioner, wrote a further medical report summarising the Applicant's various conditions and indicating that the Applicant is unable to return to his normal work as a toolmaker (Exhibit A3).

44. A clinical report from the Fairfield Health Service dated 30 April 2002 indicated that the Applicant had had an uneventful post operative period following the surgical treatment of varicose veins of the right lower limb (Exhibit A4).

45. On 26 June 2002 the Applicant completed medical and employment details as part of a Centrelink Medical Review. He described his medical conditions as:

* osteoarthritis, neck, back, knee and shoulder

* asthma

* allergy

The Applicant also indicated that he was unable to undertake a rehabilitation or training program because of medication, constant pain, allergy, asthma and recent operation on varicose veins (Exhibit A2).

46. In a treating doctor's report dated 27 June 2002 (Exhibit A2), Dr Mao described the Applicant's conditions in the following terms:

* osteoarthritis and right shoulder pain - stiffness and pain in neck, back, fingers, knees and big toe, treatment with NSAIDS if necessary,

* asthma - intermittent attacks of cough and shortness of breath, bronchodilators (ventolin and atrovent)

* allergic rhinitis

Dr Mao considered the Applicant unfit for any work for more than two years.

47. In a whole person assessment report dated 7 August 2002 (Exhibit A2) Dr Reilly, a medical adviser with Health Services Australia, detailed the following:

"This 57 year old man was seen today for New Start Allowance Review. He last worked in 1986 as a toolmaker and ceased after injuries to his shoulder and back.

The client states that he gets pain in most of his joints due to arthritis, including his back, neck, shoulders, knees, and fingers. He states that the pain is constant and he is currently taking Panadeine Forte, Vioxx and Panamax for the pain. He states that he can sit for 30 minutes, and stand for 15 minutes. He has difficulty walking for long periods, and problems climbing stairs and kneeling. He states that when the pain is very severe, his wife must help him with self-cares. He has been seeing various rheumatologists but states that the pain is getting worse.

The client also suffers from asthma and states that he has to take steroids approximately once a month. He is currently using Ventolin and Qvar. He has seen a respiratory physician regarding his asthma.

On examination, the client walked with a limp and was slow to transfer. He had audible wheeze after walking into the office and had to use his Ventolin spray. He had ¾ range of movement in his back and neck, and reduced movement in all directions of both shoulders. He was unable to squat.

This client's total impairment rating is 20 and he is unfit for any open employment and open vocational training, and unsuitable for any rehabilitation in the foreseeable future."

48. The Applicant's DSP was regranted by Centrelink on 7 August 2002.

SUBMISSIONS

49. The Applicant contends that at all times between 8 May 2000 and his regranting of DSP on 7 August 2002 he qualified for DSP in that:

* he suffered from many impairments;

* an assessment of those impairments during that period and more particularly at the time his DSP was cancelled would involve a rating of more than 20 points. In this regard the Applicant relies upon the reports of Drs Liew, Mao, Guirgis, Browne and Reilly;

* he had a continuing inability to work throughout the period, and in so stating relies upon the opinions of the doctors nominated above.

50. The Respondent submits that the Applicant's DSP was correctly cancelled on 8 May 2000 in that at that time:

* the appropriate assessment of the Applicant's conditions was a rating of 15 points;

* the Applicant remained capable of performing suitable light work for 30 hours per week or more.

In making such contentions the Respondent relied upon the opinions of Drs Collett, Roberts, Gliksman and Lee.

CONSIDERATION AND FINDINGS

51. In this matter the Tribunal has been particular in addressing each and every medical report that has been placed before it and the evidence of the Applicant. In the latter the Tribunal has been careful to try and distinguish the Applicant's symptomatology at the time of cancellation of his DSP and his symptomatology at various stages thereafter and at the time of the hearing with an objective of observing any significant change. In so stating the Tribunal recognises the difficulty inherent in such an exercise, for it is difficult for any person with a chronic condition to reflect upon symptomatology over time, unless an event or circumstance assists in particularising a time at which a change in symptomatology occurred. Nevertheless having made such observations, the Tribunal does states that the Applicant has been able to detail the chronology of his various conditions over the time with a degree of consistency.

52. The Tribunal observes that the Applicant has suffered from the various nominated conditions and their associated symptomatology over many years; that the significant issue for the Tribunal to consider is, whether or not in the light of all the clinical information available prior to the cancellation date and any clinical evidence thereafter, which would permit a better understanding of the conditions existing at the cancellation date, the Applicant suffered particular conditions at that time and that the assessment for these conditions is 20 points or greater.

53. The Tribunal, in noting all the clinical material and the evidence of the Applicant, observes that the following conditions have been detailed as present at the time of cancellation of DSP, together with the detailed symptomatology for each condition:

* degenerative disease of the cervical spine (cervical spondylosis)

- pain in the lower cervical region particularly

- difficulties with neck movement

- headaches

* degenerative disease of the lumbar spine (lumbar spondylosis)

- pain in lower back, present

- difficulties with bending, lifting, sitting and driving for an hour

* pars inter-articularis defect of L5/S1

* binaural hearing loss

- 12.2 per cent binaural hearing loss, wears hearing aid

* asthma

- shortness of breath intermittent, tightness, uses inhaler

- FEV, 80 per cent of predicted value

* varicose veins

- right leg; treated with surgical stocking; surgical repair April 2002

* allergic rhinitis

- blockage of nasal passages; treated with desensitisation injections

* painful knees

- pain in knees; right greater than left, clicking in left knee

* pain in both shoulders

- pain worse in right shoulder and some difficulty with movement

* pain in fingers and toes

- pain in the base of the right thumb, at the second metacarpo-phalangeal joint of right hand and in the right first metatarso-phalangeal joint of the big toe.

54. The Tribunal notes the statutory framework contained within section 94 of the Act:

"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

...

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:

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."

55. The Tribunal, in noting the multiplicity of sites about which the Applicant's main complaint is related to pain associated with movement, concurs with the diagnosis of the condition as made by Dr Liew, a Consultant Rheumatologist, when on 15 May 2000 in a letter to Dr Mao he describes the Applicant's condition as one of primary generalised osteoarthritis affecting in particular the axial skeleton, various fingers, the right thumb and both knees. The Tribunal also concludes that the Applicant suffered from the following conditions at that time:

* asthma

* binaural hearing loss

* varicose veins

* allergic rhinitis

56. The Tribunal concludes that in the light of these findings, the Applicant satisfies section 94(1)(a) of the Act.

57. In addressing the issue of assessment at the nominated time under the Schedule 1B Impairment Tables, and in particular the condition of generalised osteoarthritis involving the axial skeleton, shoulders, knees, fingers and toes, the Tribunal notes that the Applicant's predominant symptom is that of pain and that this has existed over many years in varying degrees of intensity and for which he has been treated by self medication with over the counter analgesics and some prescription drugs, such as NSAIDS and Celebrex. The Tribunal further notes that it is pain which the Applicant says limits his range of movement in his spine, shoulders and knees to a varying degree and limits his ability to sit or drive for about an hour and to stand for about half an hour. However the Tribunal notes that it does not limit the Applicant's ability to garden, mow the lawn, shop, walk, do household activities or drive a car, but does limit his ability to carry, move, bend and climb stairs. The Tribunal also notes that the various radiological reports over the time demonstrate only minor degenerative changes in the cervical and lumbar spine, with the CT scan report of 31 July 2000 showing degenerative changes on the vertebral bodies around C6/7 together with some narrowing of the C6/7 vertebral foramina; a CT scan report of the lumbar spine on 21 July 2000 demonstrating a pars defect at L5/S1, mild degenerative changes, no nerve root compression, x-ray left knee on 4 December 2000 showing no bone or joint abnormality and an ultrasound of the shoulders on 4 December 2000 showing some thickening of the right supraspinatus tender, but no evidence of a full thickness tear. The Tribunal also notes that the Applicant at the time of the hearing indicated that he was now only able to drive for 20 to 30 minutes, sit and walk for 30 minutes and stand for 15 minutes. The Tribunal also noted that the Applicant described that he now suffers bouts of severe pain every two to three weeks, during which he has to stay in bed for three to four days and that prescribed medication included Vioxx, Panamax and Panadeine Forte for pain. This in the Tribunal's view would indicate a worsening of the Applicant's generalised osteoarthritis and in particular his low back condition in 2002. Although the Applicant did suggest that the episodes of severe disabling back pain had been present at the time of Dr Roberts' examination, the Tribunal observes that there is no clinical record of such a complaint at that time.

58. In considering the loss of range of normal movement on 8 May 2000, the Tribunal notes that in relation to the cervical spine the following observations were recorded nil - Dr Roberts, variable range of loss of movement associated with considerable functional overlay - Dr Gliksman - 20 per cent Dr Guirgis (11 December 2000 - 1/4 - Dr Reilly (7August 2002); that in the relation to the lumbar spine - 1/4 - Dr Roberts, variable range of less of movement associated with considerable functional overlay - Dr Gliksman, 1/4 Dr Guirgis (11 December 2000), 1/4 Dr Reilly (7 August 2002). The Tribunal notes that Drs Liew and Mao record no observations in this regard and Dr Browne does not detail a nominated loss of movement.

59. In addressing the appropriate Impairment Table under which an assessment of this condition should be made, the Tribunal would conclude that if considered under Table 5.1 and Table 5.2 the impairment rating for the cervical spine condition would be nil points as the available detailed clinical evidence at the relevant period would indicate a nil loss in the normal range of movement and for the thoraco-lumbar sacral spine an impairment rating of ten points on account of a loss of one greater loss of normal range of movement associated with back pain with many physical activities, with standing for 30 minutes and with sitting or driving for 60 minutes. Tables 5.1 and 5.2 provide for:

"Table 5 SPINAL FUNCTION

Determination of spinal impairments must be based on a demonstrable loss of function.

Table 5.1 Cervical spine

Rating Criteria

NIL Normal or nearly normal range of movement

FIVE Loss of quarter of normal range of movement

Table 5.2 Thoraco-lumbar-sacral spine

As spinal mobility is a composite movement, this Table measures overall mobility of the trunk including hip movement and is not intended to measure mobility of individual spinal segments.

Rating Criteria

NIL Normal or nearly normal range of movement

FIVE Loss of one-quarter of normal range of movement

TEN Loss of one-quarter of normal range of movement as well as back pain or referred pain:

* with many physical activities and

* with standing for about 30 minutes and

* with sitting or driving for about 60 minutes.

or

Loss of half of normal range of movement.

TWENTY Loss of half of normal range of movement as well as back pain or referred pain;

* with most physical activities and

* with standing for about 15 minutes and

* with sitting or driving for about 30 minutes.

or

Loss of three-quarters of normal range of movement."

60. Having considered an assessment under Tables 5.1 and 5.2 it becomes evident to the Tribunal that assessment under these Tables is inappropriate, as the assessment fails to acknowledge that pain is the determinant as to the range of movements observed, and that this is not necessarily consistent with the demonstrable loss of spinal function.

61. Accordingly as pain is the predominant symptom and the main agent in the limitation of movement in the cervical and lumbar spines, knees, shoulder, fingers and toes, all of which being encompassed within the condition of generalised osteoarthritis, the Tribunal concludes that the appropriate Table for assessment of the condition of generalised osteoarthritis and its accompanying signs and symptoms is Table 20, which provides:

"TABLE 20. MISCELLANEOUS - MALIGNANCY, HYPERTENSION, HIV INFECTION, MORBID OBESITY (ie BMI>40),HEART/LIVER/KIDNEY TRANSPLANTS, MISCELLANEOUS EAR/NOSE/THROAT CONDITIONS & CHRONIC FATIGUE OR PAIN

Table 20 can be used for miscellaneous conditions, for example, malignancy, HIV infection, morbid obesity, transplants, miscellaneous ear/nose/throat conditions, disorders with chronic fatigue (including Chronic Fatigue Syndrome) or pain and hypertension. Where there is a separate loss of function, in addition to the loss which can be rated using the system-specific Tables, Table 20 can be used. Double counting of a particular loss of function, by the use of more than one Table, must be avoided.

Rating Criteria

NIL Controlled hypertension

Malignancy in remission with a good to fair prognosis

Minor symptoms which are easily tolerated and have no appreciable effect on ability to work.

TEN Mild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity.

Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work-related tasks. There is minimal effect/impact on work attendance.

Hypertension that is difficult to control despite intensive therapy but without end-organ damage.

Potentially life-threatening condition which is currently not interfering with daily activities eg. malignancy in remission with a poor prognosis.

Heart/Liver/Kidney transplants - well controlled (well functioning) with only mild systemic symptoms.

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.

TWENTY More severe symptoms with a decreased ability/efficiency to carry out many everyday activities. Most daily activities can be completed with some difficulty. Symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. Symptoms cause significant interference with ability to perform or persist with work-related tasks. Symptoms may cause prolonged absences from work."

62. The Tribunal having considered all the available clinical material concludes that the appropriate impairment rating is 15 points under Table 20 in that the Applicant does have moderate to severe symptoms that prevent few everyday activities. Further the Applicant at the appropriate time was able to care for himself and retained his independence, although his symptoms had mild to moderate impact on his ability to work.

63. In addressing the Applicant's other conditions, the Tribunal makes the following observations and findings, noting that the appropriate period to which reference is made is 8 May 2000.

(a) Asthma

On 14 November 1997, Dr Collett, a Respiratory Physician, opined that the Applicant suffered from mild airflow obstruction, for which asthma may be a continuing cause. Dr Collett undertook controlled spirometry and reported on 24 December 1997 that this was normal (FEV 80 per cent predicted). Dr Browne reported an FEV1 on 12 September 2001 of 81 per cent. Such readings indicate that the appropriate rating for the Applicant's asthma at the relevant time is nil points under Impairment Table 2. The Tribunal while noting the assessment of Dr Reilly on 7 August 2002 concludes that such an assessment is perhaps reflective of a deterioration in the Applicant's asthma condition or alternatively an acute exacerbation of the asthma condition around the time of the later examination.

(b) Hearing loss

The Applicant has a 12.2 per cent binaural hearing loss, and pursuant to Impairment Table 12 this equates to impairment rating of nil points.

(c) Varicose Veins

The Applicant had varicose veins in his right leg. They were being treated conservatively with stockings. Subsequently operative intervention was successfully undertaken in April 2002. The Tribunal finds that this condition cannot be given impairment rating at the relevant time as the condition was still subject to further treatment.

(d) Allergic Rhinitis

On 10 May 2000 Dr Lozynsky, a Consultant ENT Surgeon advised Dr Mao indicated that there had been an improvement in the allergic nasal symptoms with no significant nasal congestion and that he had a good airflow through both nostrils. The Tribunal finds that the Applicant has a nil points rating under Table 20 at the relevant time for the condition of allergic rhinitis.

64. As a consequence of the Tribunal's considerations and findings the Applicant's impairment rating for all the conditions nominated is 15 points. The Tribunal further finds that the Applicant does not satisfy section 94(1)(b) of the Act and as a consequence does not qualify for DSP from 8 May 2000 until 7 August 2002.

65. The Tribunal also would indicate that there is particular clinical evidence at the relevant period that the Applicant did not have a continuing inability to work. Dr Roberts and Dr Gliksman opinions are relevant in this regard. The Tribunal while noting the opinions of Dr Liew and Dr Mao in this regard observes that there is a distinct lack of critical clinical material in their reports over time to help understand as to how they have arrived at the opinion that the Applicant is unable to perform any form of work for more than two years. A subsequent report by Dr Guirgis in December 2000 is silent on this issue. While the Applicant's age and his long period out of employment are factors which make him less attractive in terms of employability, however these are non medical factors and cannot be considered by the Tribunal. On the clinical evidence before the Tribunal, there are defined opinions by Drs Roberts and Gliksman that the Applicant has a capacity to undertake light work for thirty hours or more per week in employment that makes allowance for his disability (no heavy lifting, no repetitive bending). The Tribunal, in accepting such evidence, finds that the Applicant did not have a continuing inability to work between 8 May 2000 and 7 August 2002, and therefore does not satisfy section 94(1)(c)(i) of the Act.

DETERMINATION

66. The Tribunal determines that the decision under review be affirmed in so far as the decision to cancel the Applicant's Disability Support Pension on 8 May 2000 is concerned, but varied to reflect that the period of cancellation ends on 7 August 2002, the day on which the Applicant 's Disability Support Pension was regranted.

I certify that the 66 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 14 October 2002

Date of Decision 24 January 2003

Representative for the Applicant Self represented

Advocate for the Respondent Ms Cheryl Collis