Briggs and Department of Family and Community Services - [2001] AATA 8

DECISION AND REASONS FOR DECISION [2001] AATA 8

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1805

GENERAL ADMINISTRATIVE DIVISION        )
           Re      Lawrence George Briggs
  Applicant
            And Secretary, Department of Family and Community Services
  Respondent

DECISION

Tribunal SM Bullock , Senior Member

Date10 January 2001
PlacePort Macquarie

Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review is set aside and in substitution therefor the Tribunal decides that Mr Briggs is qualified to receive a Disability Support Pension pursuant to section 94 of the Social Security Act 1991.

................[sgnd]....................

Ms SM Bullock
Senior Member
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – visual impairment – impairment points – continuing inability to work.
LEGISLATION
Social Security Act 1991 – ss 94(1), 94(2), 94(5)

REASONS FOR DECISION

Ms SM Bullock
Senior Member

This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") from a decision made on 29 July 1999 by the Social Security Appeals Tribunal ("the SSAT"), which effectively held that the Applicant was not entitled to receive a Disability Support Pension.
The application for review was heard before the Tribunal on 27 November 2000. The Applicant, Mr Briggs, was self-represented. Mr J Kenny, Departmental Advocate, appeared for the Secretary, Department of Family and Community Services ("the Department"), the Respondent in this matter.
The relevant procedural history may be summarised as follows:

Mr Briggs began to receive the Disability Support Pension in 1992 (T23).
On 22 December 1998, following a routine review of Mr Briggs' medical condition and an assessment pursuant to the (then recently amended) Impairment Tables at Schedule 1B to the Social Security Act 1991("the Impairment Tables"), Mr Briggs' Disability Support Pension was cancelled (T38). It was decided that Mr Briggs no longer qualified for this type of pension as, following a medical examination by Dr M McGinty of Health Services Australia (T37), it was found that Mr Briggs was "fit to work in suitable lighting" (T37).
On 20 January 1999, Mr Briggs sought to have the decision to cancel his entitlement to the Disability Support Pension reviewed.
The review process which followed, extended from an internal review at Centrelink, to a decision of the SSAT, dated 29 July 1999. However, Mr Briggs' application remained unsuccessful at each stage of review.
The SSAT held that Mr Briggs' impairment rating, pursuant to the Impairment Tables, is nil points. Therefore, Mr Briggs did not satisfy subsection 94(1)(b) of the Social SecurityAct 1991 and was thereby not qualified to receive the Disability Support Pension (T3).
By virtue of an application lodged on 30 November 1999, Mr Briggs then sought a review by the Tribunal.

The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and the following exhibits:

Exhibit         Description Date
T1 Section 37 Documents.
A1      Letter from Dr K D Frumar, Opthalmic Surgeon.          13 April 2000
A2      Letter from Mr Briggs to Mr J Kenny, Departmental Advocate.          29 May 2000
R1      Respondent's Statement of Facts and Contentions. 24 November 2000
R2      Letter from Mr J Kenny, Departmental Advocate, to Dr K D Frumar.            7 April 2000
R3      File Reviews by Dr D Keen, Senior Adviser, Health Services Australia.     6 July 2000 31 July 2000
R4      Medical Review by Dr K P Clahane, General Practitioner. 28 July 2000
R5      Medical Certificate Issued by Dr C Moran, General Practitioner.      14 September 2000

ISSUES

The issues to be determined in this matter relate to Mr Briggs' qualification for a Disability Support Pension. It is conceded by the Department and accepted by the Tribunal, that Mr Briggs satisfies subsection 94(1)(a) of the Social SecurityAct 1991 in that he has a number of physical impairments.
Mr Briggs suffers from photophobia and impaired vision in both his eyes, described by his General Practitioner, Dr K P Clahane, as "sub-total blindness" (Exhibit R4).
Having thus established that the Applicant satisfies section 94(1)(a), the matter for determination by the Tribunal centres upon whether:

The Applicant has an impairment which translates into at least 20 points under the Impairment Tables as required to satisfy subsection 94(1)(b); and

The Applicant has a continuing inability to work as required by subsection 94(1)(c)(i).

LEGISLATION

The legislation relevant to a determination in this matter is the Social Security Act 1991 ("the Act"). Section 94 of the Act deals with qualification for Disability Support Pension. As relevant, section 94 provides:

"
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.(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.

…"

BACKGROUND

The facts contained below are by way of background information and are not in dispute.

Mr Briggs was born in Australia on 21 November 1954.
In 1979, Mr Briggs was involved in a road accident whereupon the windshield of the car which he was driving smashed and he suffered extensive glass damage to both eyes.
Since the time of this accident Mr Briggs has undergone a number of operations on his eyes; his eyes are often irritated and water, they tire easily, dark spots appear and he is particularly sensitive to light and glare.
Mr Briggs still has shards of glass in his eyes and approximately eight to ten times a year, his eyes expel glass. This lasts for a period of up to 12 hours at a time and is a painful and frightening experience.
Mr Briggs lives on his own in his own home in Laurieton, New South Wales. He has had heavy shutters installed in order to block out the light. He can, however, do his own housework and mow the lawns, albeit at times which are suitable to him in terms of light and glare.
He can no longer drive because of the glare of the sun, lights and the reflection from other cars. His neighbours assist him with shopping and carrying out general chores.
Mr Briggs always wears a hat and dark sunglasses outside and does not walk outdoors unless the sun is in the right position in the sky - above the brim of his hat. He must also wear dark glasses when indoors, in order to reduce the intensity and glare of the light.
Before the 1979 accident, Mr Briggs was a fitter machinist and welder. He was self-employed until 1986 (T7).
On 23 February 1998, Dr M Harden, an approved medical practitioner, examined Mr Briggs and provided an overall medical and work ability assessment in the following terms:
"43 year old male with non specific visual disturbance allegedly preventing him from doing all work or retraining. Client claims to have photophobia but has deep suntan. Client mows lawn, shops, does housework and is otherwise well" (T34, p119).
On 17 August 1998, Mr Briggs was assessed by Ophthalmologist, Dr G Schiller and on 18 November 1998, Dr Schiller reported that stemming from a motor vehicle accident in 1979, Mr Briggs had, in 1982, suffered a detached retina in his right eye and then had a cataract extraction, in 1995, in the same eye. Dr Schiller further reported the following in relation to Mr Briggs' eye condition, inter alia:-

"…He has vision of 6/9 in the right eye and 6/12 in the left eye…
His prognosis is fairly stable. He may develop glaucoma. There is a risk of further retinal problems. He has a cataract in the left eye and will probably require surgery for this. His corneal scarring is fairly stable. This is what is giving him most of his problems".

Dr Schiller concluded that:

"He [Mr Briggs] is able to work thirty hours a week in areas where there is not much glare and the lighting conditions are satisfactory" (T36).

On 9 December 1998, Dr M McGinty, a Health Services Australia Senior Medical Adviser, conducted a review of Mr Briggs' file with the addition of the report from Dr Schiller. Dr McGinty concluded:
"Mr Briggs is fit to work in suitable lighting. He will be more comfortable in situations where there is little glare.
HIS TOTAL WORK-RELATED IMPAIRMENT RATING IS 0% (Table 13 0% for acuity 6/9 with implant and 0% Table 14 photophobia)" (T37).

EVIDENCE OF MR BRIGGS

Mr Briggs related to the Tribunal that he had been involved in a motor vehicle accident in 1979, whereby the windscreen of the car shattered and he was injured with glass entering and cutting both his eyes and eyelids. At this time, doctors told Mr Briggs that he would never see again.
Since that time, Mr Briggs reported having numerous operations on his eyes, including an operation for a detached retina in his right eye and an operation to remove glass from the centre of his left eye. Mr Briggs told the Tribunal that he has also had a cataract removed in 1994 and has undergone laser surgery on his eyes – the last of which occurred in 1995, although he may need to have further laser surgery in the future.
Mr Briggs further related to the Tribunal that eight to ten times a year, shards of glass still come out of his eyes. Mr Briggs reported that when he lived in Sydney and he could feel that the glass was beginning to come out of his eyes, he was able to immediately consult his specialist who would pluck the glass out. However, now that he lives in Laurieton, he has no local access to specialist doctors and therefore, eight to ten times a year, he suffers glass being expelled from his eyes. Each time this occurs, the process lasts for approximately 12 hours and is extremely painful. Mr Briggs described that he is completely immobile during this period; he lies in bed and tries not to move his eyes from side to side because such movement results in great pain as the glass tears at his eyelids.
Mr Briggs lives by himself and has arranged his home and his daily activities in order to accommodate for his eye conditions such as sensitivity to light, sun and glare. He told the Tribunal that he always wears a hat and dark sunglasses and does not walk outdoors unless the sun is in the right position in the sky - above the brim of his hat. He also wears dark glasses when indoors, in order to reduce the intensity and glare of the light. Mr Briggs further stated that his eyes tire easily and that they water regularly. He stated that he has to sleep or at least try to rest when his eyes begin to water, otherwise the pain in his eyes increases and he will ultimately be forced to stay in bed for longer. Indeed, Mr Briggs stated that when his eyes are tired they simply involuntarily force themselves shut.
Mr Briggs further stated that he is not able to drive; traffic and the light and glare associated with other cars and traffic lights, as well as the glare of the sun are too much for his eyes in their present condition. Mr Briggs stated that the last time he drove a car was in approximately 1991. Mr Briggs told the Tribunal that he did not believe that he would be able to drive again.
Further, Mr Briggs stated that he relies upon his neighbours to drive him if he needs to get anywhere (for example his neighbours drove him to the Tribunal hearing). He stated that he is otherwise able to carry out his own household chores and shopping and is also able to take care of himself.
Mr Briggs cannot read or watch television for any extended period of time; for example, he cannot read for longer than approximately ten minutes and it takes him a long time to finish a page of reading. He finds that the glare off the paper and off any screen, such as a television or computer screen, is very painful.
Mr Briggs' main form of entertainment is listening to the radio or television. He also greatly enjoys walking and this is his main form of recreation and exercise. Mr Briggs rarely goes out socialising at local clubs because he finds it difficult to comply with dress code regulations (as he needs to keep dark sunglasses and a hat on to block out the light).
In relation to his ability to work, Mr Briggs told the Tribunal that he returned to work (that is, his contract work as a fitter and welder) six months after the accident. However, after some time, he found that he was not able to do any of the physical work himself and he then took on a supervisory role. During this period, he also took time off work when he had troubles with his eyes: for example in 1981, he took three to four months off following an operation for a detached retina; when such instances occurred, Mr Briggs' brother would take over the running of the business for him.
Mr Briggs stated that although he was self-employed until 1986, he was only able to carry on a business because he had his brother working with him and his brother carried out all the physical labour; in Mr Briggs words, his brother "really did it all". Mr Briggs told the Tribunal that once his brother moved to Queensland, it was no longer possible nor viable for Mr Briggs to continue in the same line of work and he found it very difficult to think of what other work he could do with the skills he had. Mr Briggs further stated that at the time when his brother moved to Queensland, he did try to continue working but found that firstly, he could not do the work because of his eyes and secondly, he could not tell anyone about his eyes because no one would offer him fitting / welding work if they knew of his condition. Accordingly, despite having done extremely well in his apprenticeship and later, being very successful in his business, Mr Briggs stated that he had to give up working.
Mr Briggs told the Tribunal that his first attempt at rehabilitation occurred when he undertook a massage course in Port Macquarie; he said that he had thought he might be able to work as a masseur, as this work would require only his hands and would not place such a great strain on his eyes. However, Mr Briggs was not able to complete this course; he stated that he found the required reading and lecture videos "impossible" because of the strain on his eyes. Mr Briggs further stated that even the glare off the whiteboard caused him pain. He tried to tape the lectures instead but found it very difficult to keep up and after approximately three months, he ceased attending the course.
Lastly, in a written letter to the Respondent, which the Tribunal has taken into evidence as Exhibit A2, Mr Briggs described his condition in the following terms:
"I have extreme trouble with light, examples the house lights, glare off motor vehicles, sun, windows, water and even the TV. This occurs even though I'm wearing the darkest prescription glasses available and a hat.
When the light has affected my eyes, floating black spots appear and continuous watering. If I don't sleep immediately …[at this point the statement contains pictorial representation with notations which the Tribunal has interpreted as] a strange shaped object appears as well as bright round spots or 'moons', which start travelling from the bottom to the top of my eye.
When any of the above happens I must rest my eyes. During the day I rest or sleep from 1 hour or more until the watering, moons and spots have ceased. This will occur 2-4 days a week.
My eyes can't tolerate bathroom cleaning products, methylated sprits, petrol and similar things.
I do not walk in the mornings - or late afternoon because of the sun. I walk when the sun is above the brim of my hat.
Seven – eight (approx) times a year glass comes out of my eyes. This can take up to 12 hours before it comes out. During this period it is very painful to move either eye" (Exhibit A2).

OTHER MEDICAL EVIDENCE

On 13 April 2000, Dr K D Frumar, Mr Briggs' treating Ophthalmic Surgeon, reported that as at 7 April 2000, Mr Briggs' visual acuity in the right eye is 6/6 part when hyperopic astigmatism is corrected and the left eye improves to 6/9 when myopia and astigmatism are corrected. Dr Frumar noted that there is hemiamiridia on the right superiorally, left corneal scars over the visual axis and a dilated non functional left pupil (Exhibit A1). Dr Frumar further noted that Mr Briggs is extremely photophobic and responds to illumination at the level of normal lighting with such responses as closing his eyes, lacrimating out of proportion to such stimuli and guarding his eyes from the light with his hand. Dr Frumar opined:
"Clearly the light sensitive difficulties are significant and certainly are not addressed adequately in any of the tables which are used by the department to assess disability. My observation at the time of examination suggests that Mr Briggs would be unable to perform work outdoors in sunlight conditions. He would be significantly disabled to work in a brightly lit factory environment even with glasses on. He would however be able to function in an office situation with reduced lighting if he wore appropriate spectacle correction with lens tinting or filtering to reduce the ambient illumination to a level of personal tolerance. Clearly this would limit his options significantly."
Dr Frumar concluded that Mr Briggs was significantly disabled by glare both indoors and outdoors; he has difficulty maintaining near vision and this would limit him doing close work. Dr Frumar opined that convergence exercises being undertaken by Mr Briggs should assist with these latter symptoms and he has good quality distance vision.
Dr D Keen, Senior Medical Adviser, Health Services Australia
Dr Keen undertook two file reviews of Mr Briggs' case on 6 July and 31 July 2000 (Exhibit R3). Dr Keen noted that Dr Frumar and other medical examiners have expressed an opinion that the standard ophthalmic tables in the Impairment Tables, underscore Mr Briggs' true impairment. Dr Keen considered that Table 20 for Miscellaneous Conditions would be appropriate to use in Mr Briggs' case and accordingly an impairment of either 15 or 20 is appropriate. However, given that two specialists had recently opined that Mr Briggs is capable of work under specified conditions, Dr Keen considered a rating of 15 points was the most appropriate rating. Dr Keen opined that in a specific indoor environment with subdued lighting, Mr Briggs could undertake "a range of possible occupations" - however, the Tribunal notes that no examples of "possible occupations" were given.

Dr Keen's latter file review reiterates his earlier opinion that Table 20 is the most appropriate table to assess Mr Briggs' visual incapacity. Dr Keen opined that Table 21 – Intermittent Conditions, is not appropriate as it is used to assess conditions whose chief characteristic is that they are 'inherently episodic in nature, and are asymptomatic between episodes'.
Dr K P Clahane
Dr Clahane completed a medical review form in relation to Mr Briggs on 28 July 2000 (Exhibit R4). Dr Clahane noted that Mr Briggs had been a patient of his practice since 16 August 1989. Dr Clahane recorded Mr Briggs' conditions as:
"Substantial blindness
Excruciating photophobia – sensitivity…
Extreme photosensitivity"
In relation to Mr Briggs' ability to return to either part-time or full-time work, or to study, Dr Clahane opined that Mr Briggs would be unable to work either part or full-time nor to study.
Dr C Moran, General Practitioner
Dr Moran completed a medical certificate on 14 September 2000, certifying that Mr Briggs has been unfit for work from 1983 to 14 December 2000 (Exhibit R5). Because of Mr Briggs' 'sub-total blindness', Dr Moran considered that Mr Briggs could not maintain any normal occupation due to:
"Gross photophobia, lacrimation and occular fatigue".

SUBMISSIONS

Mr Briggs informed the Tribunal that the pain in his eyes varies each day. He submitted to the Tribunal that he had to give up on work and his business, as his eyes simply could not take the strain. He asked the Tribunal to consider that at the time when he was still able to work, he did not approach the Department for help nor did he seek to retrain, as he was simply concerned to get the bills paid on time.
Mr Briggs further contended that the result of attempting the massage course has been a further deterioration of his eyes. Mr Briggs submitted that he is scared to "push my eyes too far" as he fears that he will end up completely blind, or rather, in his words, "with no eyes at all".
Mr Briggs submitted that he needs very particular light conditions – for example, the light needs to be dim, consistent and without any glare. Mr Briggs also stated that his eyes cannot adjust from light to dark or vice versa. Further, he is very sensitive to fumes and therefore the suggestion that he could perhaps work in a photographic dark room is not viable, as the fumes from the chemicals would greatly irritate his eyes.
Mr Briggs also pointed out that a great impediment to his being able to work is the fact that he is unable to drive or use public transport (indeed, public transport services are very limited where Mr Briggs lives). Thus, there would always be an issue as to travelling to and from work.
Mr Briggs submitted that perhaps he could work from home if that work did not involve him having to use his eyes on a regular basis. His attempt at the massage course had the aim of enabling him to work from home but unfortunately his visual impairments prevented him from undertaking the training required to obtain the necessary massage skills. Mr Briggs submitted that he could not think of any other work he could undertake from home.
In response to cross-examination and in his submissions, Mr Briggs stated that he feels very depressed that he cannot work and that he is ashamed every time that he has to go into the Department of Family and Community Services. He submitted he has tried very hard to continue to be a productive member of the work force. Mr Briggs contended, however, that "my eyes have decided for me that I cannot work".
Mr Briggs further responded that he works his life around his eyes and so his eyes control what he does. For example, Mr Briggs stated that there are days when physically and mentally he is feeling good but if his eyes are tired that day, he will not be able to do anything and then, having rested all day, he will not be able to sleep at night. Mr Briggs stated that this situation is very frustrating for him.
Mr Briggs also contended that although he has been doing the eye exercises recommended by Dr Frumar, there has been no real improvement in his ability to focus and there remains a complete lack of voluntary convergence in his eyes. Mr Briggs asked the Tribunal to consider that he cannot see anything close up.
Mr Briggs submitted that he is willing to try to work if work could be found that properly accommodated for his eyes and particularly his sensitivity to light and glare. Mr Briggs reiterated, however, that if the rehabilitation course or employment had an adverse affect on his eyes (as occurred when he undertook the massage course at Port Macquarie), it was not worth persisting with, as he did not want to end up losing his sight. Mr Briggs submitted that he was reluctant to try something which may create further eye problems unless he was fairly certain that it was going to work.
Further, Mr Briggs submitted that in its review of his application, the Tribunal should consider that his appointment with Dr McGinty at Health Services Australia resulted in an assessment which was carried out under controlled conditions – conditions which are unlike those found in normal every day life and work where light intensity, consistency and glare cannot be controlled. He also submitted that Dr McGinty did not ask him any questions about his ability to work.
Finally, Mr Briggs submitted that with the new Impairment Tables contained in Schedule 1B of the Social Security Act 1991 there was no scope for a proper assessment of someone with his visual impairments; indeed this was mentioned in the decision of the SSAT and by Dr Keen (Exhibit R3). Arising out of discussion of Mr Kenny's submissions, Mr Briggs submitted that perhaps, in addition to Table 20 being used to rate his overall eye condition, Table 21 could also be utilised to separately assess the episodes when glass comes out of his eyes.
In his submissions to the Tribunal Mr Kenny provided the Tribunal with an amended Statement of Facts and Contentions (Exhibit R1). In these written submissions, the Respondent maintains that 15 points pursuant to Table 20 is an appropriate reflection of Mr Briggs' impairments. Inter alia, the Respondent submitted:-
"Consistent with medical opinion, photophobia and epiphora rate as nil under table 14 of the impairment tables (miscellaneous [eye] conditions). However, in assessing the impairment rating, it is appropriate to also consider table 20 which is specifically intended for conditions which are not covered or are underscored by the function-specific tables and which result in non-episodic interference with daily activities…".

Further,

"The respondent rejects the use of table 21 (intermittent conditions) as an alternative to table 20, for the reasons given by Dr Keen on 31/7/2000. The symptoms and effects are not inherently episodic in nature with asymptomatic interludes. Rather, they can be present at any time when the relevant stimulus is applied".
Lastly, the Respondent concluded that:
"Mr Briggs does not have the required impairment points to qualify for DSP. Nor does he have a continuing inability to work, though he now needs to avoid jobs which necessitate driving, dangerous machine work, glare and bright lights".

At the hearing, however, having heard the evidence and submissions put to the Tribunal by Mr Briggs, Mr Kenny was able to concede that there is no obstacle to assessing Mr Briggs pursuant to both Table 20 and 21. Indeed, Mr Kenny stated that it may be possible to have the glass episodes which Mr Briggs endures considered as a stand alone issue under Table 21 and to assess the underlying issue of Mr Briggs' general visual impairments separately, pursuant to Table 20.
Further, Mr Kenny submitted that if the Tribunal determined that Mr Briggs does meet the criteria necessary to be awarded 20 points under the Impairment Tables, it is very difficult to conceive of a suitable work environment for Mr Briggs. Mr Kenny suggested that perhaps work in the 'teleservice' industry, which did not require much writing or computer work, may be appropriate. Mr Kenny also submitted that Mr Briggs may be able to work in a photographic lab or that he could work from home doing massage. Mr Kenny concluded that it was not likely that Mr Briggs could re-train within two years because of his particular learning curve, which has been brought on by the injuries in his eyes. This set of circumstances is a great shame, Mr Kenny submitted, noting Mr Briggs' considerable ability.
Mr Kenny also noted that it was most unfortunate that Mr Briggs had not been contacted by a Departmental Rehabilitation Officer and that it seemed that Mr Briggs had "fallen through the cracks" of the Department's rehabilitation assessment services.
FINDINGS
The Tribunal has reached a decision in this matter taking into account the oral and documentary evidence of both the Applicant and the Respondent, their submissions and by applying the relevant legislation.
The Tribunal considers Mr Briggs to have been a truthful and credible witness. Further, the Tribunal finds that Mr Briggs was able to relate to the Tribunal in a frank and guileless manner the accident which he sustained in 1979 and the injuries to his eyes, including the glass episodes, which he has endured since.
The Tribunal considers that the episodes where shards of glass extrude from Mr Briggs' eyes to be an objectively horrific experience. Indeed, Mr Briggs is to be commended on the unexaggerated way in which he described these episodes. The Tribunal finds that these episodes cannot appropriately be ignored when assessing Mr Briggs. Further, the Tribunal finds that because of the intermittent nature of the episodes, it is appropriate to assess this aspect of Mr Briggs' incapacity separately pursuant to Table 21 of the Impairment Tables.
Considering Table 21.1, Intermittent Attack - Severity, the Tribunal assessed the severity at four to reflect that when having an episode of glass being expelled, Mr Briggs has major restrictions in many everyday activities. He has to lie down and remain motionless.
Table 21.2 deals with Intermittent Attacks – Duration. Mr Briggs' evidence is that the attacks can last up to 12 hours, which is covered by the description of prolonged duration.
Table 21.3 deals with Severity – Grading Code. A level four severity attack (Table 21.1) with prolonged attack duration (Table 21.2), produces a grading code of "G".
Table 21.4 assigns an impairment rating. The evidence is that Mr Briggs experiences the episodes of glass expulsion eight to ten times per year. This would provide a frequency of 10+. The combination of a grading code of "G" (Table 21.3) and frequency of 10+ days per year produces an impairment of 5 from Table 21.4.
The Tribunal has also considered Table 20 for Miscellaneous Conditions. The Tribunal prefers to utilise Table 20 instead of the system specific visual impairment tables, as Table 20 is more accurately able to assess Mr Briggs' visual and related difficulties. The Tribunal accordingly determines that the appropriate impairment is 20 points to reflect that Mr Briggs' symptoms are very severe with decreased ability/efficiency to carry out many everyday activities. The symptoms of Mr Briggs' visual problems also restrict him because his eyes water excessively. His eyes also become easily fatigued and will often close involuntarily. Further, the Tribunal considers that Mr Briggs' eye problems restrict his ability to persist with or even commence work or study.
The combined impairment rating for Mr Briggs' eyes condition is 25 points and he thus satisfies subsection 94(1)(b) of the Act.
Having thus determined that Mr Briggs satisfies subsections 94(1)(a) and (b) of the Act, the Tribunal turned to consider whether Mr Briggs has a continuing inability to work as required for qualification for the Disability Support Pension pursuant to subsection 94(1)(c)(i).
In assessing Mr Briggs' ability to work, the Tribunal has taken into consideration the oral evidence provided by Mr Briggs as well as the available medical evidence. The Tribunal notes the opinion of Mr Briggs' Ophthalmologist, Dr K. D. Frumar (Exhibit A1), in which Dr Frumar states that Mr Briggs could not work in a brightly lit factory but could work indoors if he wore tinted and filtering spectacles. Dr Frumar noted, however, that Mr Briggs' ability to undertake close work is limited.
The Tribunal also considered the evidence of Dr Schiller (T36), Dr McGinty (T37) and Dr Keen (Exhibit R3) who opine that Mr Briggs is able to work in suitable lighting. Dr Clahane, one of Mr Briggs' treating doctors, opines that Mr Briggs is unable to work or retrain on either a full or part-time basis.
The Tribunal notes the evidence of Mr Briggs that he is frightened to over- exert his eyes through work / rehabilitation, as he is scared that he may "lose my eyes". The Tribunal further notes that Mr Briggs was unable to think of any specific work which he could realistically undertake. Indeed, the Respondent, in the Tribunal's view, was also unable to suggest viable options for work for Mr Briggs. Work in a photographic laboratory requires work with chemicals and would also require dealing with adjustment between light and dark. Work in a "teleservice" centre would also require close computer work which Mr Briggs would not be able to do because of his eye problems. As noted previously, the Respondent also conceded that it is not clear that Mr Briggs could undergo rehabilitation within two years because his visual impairments make learning slow and difficult.
In reaching a determination in this matter it is important to consider that adjusting a workplace or training facility to suit Mr Briggs' needs, is not just a matter of dimming the lights. Fluctuations of light and glare would also need to be controlled. There is also the issue of frequent fatigue in Mr Briggs' eyes, which simply close inadvertently. Mr Briggs' eyes also water excessively. He has eight to ten episodes per year when glass shards extrude from his eyes. Any exposure to chemicals, fumes or solvents, severely irritate Mr Briggs' eyes and his poor near vision, despite convergence exercises, clearly limits his ability to undertake close work.
While noting the medical opinions including specifically that of Dr Frumar, who considered that under controlled conditions Mr Briggs has limited work options, the Tribunal considers that Dr Frumar nonetheless expresses reservations as to the realistic likelihood of Mr Briggs being able to work. Considering the practical requirements of Mr Briggs' condition and the severe manifestation of its many symptoms, the Tribunal does not consider that Mr Briggs could undertake work within the next two years.
Mr Briggs' ability to sustain close office work is severely restricted by his limited near vision and the hope that convergence exercises may improve this has not borne fruit. Further, the Tribunal is also of the view that no work place could ever be adjusted to a sufficient level to allow Mr Briggs with his significant disabilities to work either part or full-time. In such circumstances, the Tribunal finds that on all the evidence, pursuant to subsection 94(2)(a) of the Act, Mr Briggs is unable to work.
Turning to subsection 94(2)(b)(i) of the Act, the Tribunal has noted Mr Briggs' attempts to retrain and to adjust the training regime to try to suit his visual impairments, namely whilst undertaking the massage course at Port Macquarie. Again, difficulties arose with close work, computer screen based training, variation in glare and light intensity and even when using audio training, his eyes continued to water constantly and / or because of fatigue, they simply closed involuntarily. Thus, the Tribunal finds that even with the best will and motivation, which the Tribunal accepts Mr Briggs' has, his visual condition, of itself, prevents him from undertaking educational or on - the - job training within the next two years. Accordingly the Tribunal finds that Mr Briggs satisfies subsection 94(2)(b)(i) of the Act.
Accordingly, having found, pursuant to subsection 94(2) of the Act that Mr Briggs' visual impairments are of themselves sufficient to prevent him from undertaking any work within the next two years and that the impairments are of themselves sufficient to prevent him from undertaking educational or vocational training or on-the-job training during the next two years, the Tribunal determines that Mr Briggs has a continuing inability to work pursuant to subsection 94(1)(c) of the Act. Having so determined, the Tribunal finds that Mr Briggs is qualified to receive a Disability Support Pension.
In all the circumstances and for the reasons set out above, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision of the SSAT dated 13 August 1999 and in substitution therefor the Tribunal decides that Mr Briggs is qualified, pursuant to section 94 of the Social Security Act 1991, to receive the Disability Support Pension.
I certify that the 61 preceding paragraphs are a true copy of the reasons for the decision herein of SM Bullock
Signed:         .....................[sgnd].........................................................
  Rikka Cullen, Personal Assistant.
Date of Hearing:                  27 November 2000
Date of Decision:            10 January 2001
Representative for the Applicant:           Mr Briggs, Self-Represented
Representative for the Respondent:       Mr Kenny, Departmental Advocate
Secretary, Department of Family and
Community Services.