Cartmell and Secretary, Department of Family and Community Servic Es

[2003] AATA 886

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 886

ADMINISTRATIVE APPEALS TRIBUNAL        N2002/482

GENERAL ADMINISTRATIVE DIVISION

Re: Trevor CARTMELL

Applicant

And: Secretary, Department of Family and Community Services

Respondent

DECISION

Tribunal:       P.J. Lindsay, Senior Member

Date:             9 September 2003

Place:            Sydney

Decision:The decision under review is affirmed.

. . . . . . . . .. . . . . . . . . . . . . . . .

Senior Member

©        Commonwealth of Australia          (2003)

CATCHWORDS

Social security – disability support pension – eligibility -- impairment rating - whether impairment of 20 points or more – whether continuing inability to work - decision affirmed

Social Security Act 1991 s.94, Schedule 1B.

Social Security (Administration) Act 1999 Schedule 2.

Secretary, Department of Social Security v Pusnjak [1999] FCA 994

REASONS FOR DECISION

P.J. Lindsay, Senior Member

1. Trevor Cartmell (the applicant) has applied to the Tribunal for a review of the decision by the Social Security Appeals Tribunal (SSAT) dated 27 February 2002 that rejected his claim for the Disability Support Pension. The SSAT affirmed a decision by an authorised review officer at Centrelink dated 28 December 2001 (T14) that Mr Cartmell’s impairment rating was less than the minimum required to qualify for the Disability Support Pension. At the Tribunal’s hearing, the applicant, who was represented by Mr C Colborne of counsel, gave evidence. The respondent, the Secretary to the Department of Family and Community Services, was represented by its advocate Ms R Quinn. The Tribunal had before it the documents (T documents) lodged under s.37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act).

2.      Mr Cartmell made a claim for Disability Support Pension on 19 October 2001 and listed his disabilities as back trouble, occasional cramps in the hands, shoulders and legs that cause pain (T4-52). Submitted with his claim was a treating doctor’s report by Dr Goyal, who diagnosed (T6-64):

- back pain, shoulder pain, leg and hands, the clinical features of which were noted as back ache relating to work.  There was a reference to the medications prescribed.

-     depression, with crying noted as the clinical feature.  Treatment was through counselling.

Both conditions were described as fluctuating but long term in nature, that is, likely to persist for at least two years.  In Dr Goyal’s opinion, Mr Cartmell would not be likely to be able to return to part time or full time work of any kind, or to return to face to face study for a minimum fifteen hours a week, for at least two years.  In assessing the applicant’s ability to perform any work over the following two years, Dr Goyal stated (T6-67):

-     the applicant would be able without difficulty to understand and follow work instructions;

-     the applicant’s conditions would not pose any difficulty to his ability to interact with others and to behave appropriately at work;

-     there would not be any sensory or articulatory impairment to the applicant’s communicating fluently at work;

-     the applicant has some reduction in dexterity that would affect his manipulation of objects for work and his mobility to and from, and around, work would be constrained in some situations;

-     the applicant would be unable to lift, carry and move objects;

-     in undertaking a variety of tasks, the applicant may be distressed or have difficulty alternating between tasks.

3.      Subsequently Dr Goyal confirmed by letter dated 19 February 2002 (T15) that the applicant has been a patient for about seven years and that he has been treated for gout, chronic obstructive airways disease and lower back pain, shoulder pain and aches all over his body.

4.      Dr P Chew of Health Services Australia examined Mr Cartmell on 19 November 2001.  Dr Chew completed a whole person assessment of Mr Cartmell (T7) and addressed each of his medical problems:

-lower back pain: an X-ray from 1999 showed early degenerative changes.  Mr Cartmell would occasionally take Panadeine Forte twice a week.  He was found to ambulate and transfer well, and his loss of normal range of movement was less than 25 per cent.

-     fractures of both upper limbs: neither fracture occurred within the past five years. The right wrist fracture healed well. There were bony protuberances resulting from the fractured left hand.  Nevertheless Mr Cartmell had a normal grip and dexterity in both hands.

-     depression: there were no specific symptoms and Mr Cartmell was not receiving treatment.  His mental state was normal.

5. Accordingly, Dr Chew assessed a total impairment rating of 5 points for lower back pain under Table 5.2 of the Impairment Tables contained in Schedule 1B of the Social Security Act 1991 (the Act).  Although Mr Cartmell was not considered fit for his previous work or work involving physical exertion, Dr Chew stated that the impairment rating suggested he was fit for other light work, with training to acquire the necessary skills.

6.      Centrelink notified Mr Cartmell on 23 November 2001 that his claim for Disability Support Pension had been rejected because his permanent medical impairment rating was below the minimum 20 points required (T9).  On reconsideration, and without any additional medical evidence being furnished by the applicant, Centrelink again rejected the claim (T12).  Subsequently, at Mr Cartmell’s request an authorised review officer from Centrelink reviewed his claim.  On 28 December 2001 the authorised review officer stated that he agreed with the overall rating of 5 points for Mr Cartmell’s impairments and so affirmed the decision under review (T14).

7. An appeal to the SSAT was unsuccessful but the SSAT found a greater level of work-related impairment due to the applicant’s lower back condition which it assessed at 10 points (T2). Pursuant to s.179 of the Social Security (Administration) Act 1999 (the Administration Act), Mr Cartmell seeks the Tribunal’s review of the SSAT’s decision.

applicable legislation

8.      To qualify for the Disability Support Pension, a person must satisfy the following requirements of the Act:

Qualification for disability support pension

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

…

9.      The expression ‘continuing inability to work’ is explained in s.94(2) of the Act as follows:

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.

Note: For work see subsection (5).

Subsection 94(5) states:

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.

10.The Administration Act relevantly provides:

Schedule 2—Rules for working out start day

…

Part 2—General rules

3 Start day—general rule

(1) If:

(a) a person makes a claim for a social security payment; and

(b) the person is qualified for the payment on the day on which the claim is made;

the person's start day in relation to the payment is the day on which the claim is made.

…

4 Start day—early claim

(1) If:

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

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

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

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

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

evidence

11.      Mr Cartmell was born on 2 May 1954.  He is a bachelor and lives with his mother. His formal education ended when he left school at age 15, after having spent two years in high school.  He had problems at school with reading and writing.  

12.     Mr Cartmell has spent his working life exclusively in manual labour occupations.  He injured his back while working as a grave-digger and received compensation of $25,000 about eighteen years ago.   Mr Cartmell gave evidence about his working life since injuring his back.  He said he has worked mowing lawns for about 5½ months..  He was then out of work for approximately 5 or 6 years until he found a permanent job as a stablehand, but was made redundant after about five weeks.  Subsequently, around nine years ago, he worked at a school as a general assistant as part of a government retraining program.  He did mainly handyman tasks.  During the six months program, he also attended a technical course and said he was given basic instruction in welding, woodwork and metalwork.  He has not worked since this job.  He said the technical course has not helped him find work because he is still unable to spell, but he acknowledged that it improved his reading and writing and gave him some confidence.

13.     As for his current complaints, Mr Cartmell said his shoulders give him a little bit of pain about once a day.  The pain is not provoked by activity.  He also has stiffness in the shoulders and they sometimes click, and he finds that this affects his capacity to lift.  He referred to a sharp pain in the collarbone area that he suffers around once a month for a couple of minutes.  Mr Cartmell said that he plays golf, usually 18 holes, once a week with a group of older friends.  A round will take them about 4½ to 5 hours.  He pulls a buggy equipped with a seat.  A couple of times he has had to interrupt a round because of problems with his shoulders.

14.     Mr Cartmell said the arthritis in his hands causes his fingers to lock if he has to write for a long time.  On average his left hand will cramp once a day while driving his car.  He tries to avoid carrying bags for any distance because a cramp can cause him to drop what he is carrying.  Cramping of the left hand requires him to use his palm when changing gears in his car.  In cross-examination he stated that he is able to dress himself and his only problem is with buttons.  Shaving, grooming and brushing teeth pose no problems.

15.     He said his legs are stiff and his joints click.  He paces himself while walking.  He will stop for a minute or two after walking 100 to 200 metres because his ankles, knees and hips will become stiff and he will be a little out of breath.  He said if he walks at a sensible speed he can function reasonably.  He said he can manage 18 holes of golf because he does not over-exert himself.

16.     Gardening, which usually requires him to kneel while clipping lawn edges, will leave his lower back very sore.  His hands, shoulders, knees and ankles will be sore too.   He can experience sharp pain in his back while watching television.  He is able to attend to domestic chores such as ironing, vacuuming and making his bed.  After ironing about five garments, he can notice pins and needles in his hand, and discomfort in the shoulders and lower back.

17.     He will get a stiff neck a few times a week and the stiffness will last around 10 to 20 minutes.  The stiffness is not provoked by activity. 

18.     Mr Cartmell occasionally feels pressure in his chest.  On referral to Dr Leung, a consultant cardiologist, he was informed that his blood pressure was normal and that he should continue taking medication to control his cholesterol. 

19.     He does not consult a doctor about his psoriasis or another skin condition, Darier’s Disease, which he said were largely dormant.  The conditions are only symptomatic while he is experiencing stress and flare-ups tend to occur only every six months or so.   In answer to Ms Quinn, the applicant said that he has put up with the conditions since he was about 11.  In that time, he thinks the conditions have caused him to take only a couple of days off work.  He agreed that his skin conditions have been quite good for about the past six or seven years.

20.     Lastly, Mr Cartmell described becoming short of breath.  This can trouble him while walking, gardening and ascending stairs.  He told the Tribunal that he smokes a packet of cigarettes a day.  He has consulted his G.P, Dr Goyal, about panting problems.  Dr Goyal listened to Mr Cartmell’s chest and advised him that it was not too bad.

21.     Mr Cartmell takes the following medication: Lipex for cholesterol, Vioxx for arthritis, an anti-depressant and a tablet to help with gastro-reflux.  On average he will take two Panadeine Forte a week, commonly before his round of golf.  

Dr Lewis- Enright

22.     Dr Lewis-Enright, consultant occupational medicine physician, examined Mr Cartmell on 11 July 2002 and provided a report to his solicitors dated 15 August 2002 (Exhibit A1).  The history obtained was of a progressive deterioration in the lower back, leading to the compensation claim.  Consequently, Mr Cartmell is no longer able to bend and walking is a problem, though he is able to play a round of golf every week.  He experiences occasional sharp twinges in the back, against a background of low level back pain.  Mr Cartmell becomes breathless when ascending two flights of stairs and he suffers joint pain on descending.  His arthritis in his hands, fingers, ankles and neck does not respond well to treatment.  Dr Lewis-Enright noted chronic gout.  Specifically, in relation to shortness of breath, the applicant stated he has had the problem from two to five years.  He has chest pain, made worse by walking and effort, that comes and goes.  He described being down in the dumps for a long time. 

23.     Dr Lewis-Enright preferred to assess each of Mr Cartmell’s arthritic conditions under the specific impairment table relating to that condition rather than assessing the arthritis under Table 20 ‘Miscellaneous’. He explained that “The higher assessment is gained by considering the individual functional systems and as the assessment process is functionally orientated, I will assess the individual’s abilities using the separate tables”.

24.     Dr Lewis-Enright provided the following assessments of functional limitation for work due to the applicant’s impairments:

- 5 points under Table 5.1 in relation to the cervical spine.  On examination, Dr Lewis-Enright had found a residual range of movement of about 70 per cent. 

- 40 points under Table 5.2 ‘Thoraco-lumbar-sacral spine’.  On examination the applicant was unable to flex forward without support and having to hold his hands on his knees.  Dr Lewis-Enright found approximately 25 per cent range of movement including hip flexion.

- 10 points under Table 4 ‘Function of the lower limbs’.  Crepitus in both ankles was noted.  The applicant was able to squat but had great difficulty in lowering and rising but he could stand on his toes and stand on his heels.  The right ankle reflex was decreased.  He could walk 100-200 metres but then had to rest due to joint pain as well as shortness of breath.

- 20 points under Table 18 ‘Skin Disorders’ regarding the applicant’s skin conditions of psoriasis and Darier’s Disease.  The assessment was 40 points when the skin is florid.  In coming to this assessment, Dr Lewis-Enright noted that Darier’s Disease caused the applicant’s skin to ulcerate in response to sunlight exposure and become intensely itchy on an unpredictable basis, the itch continuing for days.  Medication offered no response, and focal skin infection also accompanies this condition.

25.     There was a composite assessment of 75 points for the cervical and thoraco lumbar spine functional disabilities, lower limb and skin conditions.  Dr Lewis-Enright did not give consideration to the moderate to severe congestive cardiac failure that was present because the applicant was about to be reviewed by a specialist and presumably would have received some form of medication.

Dr Goyal

26.     Dr Goyal has been the applicant’s general practitioner since 31 July 1995.  In a report to his legal representatives dated 11 June 2003 (Exhibit A2) Dr Goyal stated that during this period, Mr Cartmell has complained of back pain, shoulder pain, chest pain and shortness of breath.  In response to complaints of pain in the left shoulder, left hand and generalised aches and pains all over Dr Goyal referred Mr Cartmell to Dr Vignaendra, consultant neurologist and Dr Choy, consultant rheumatologist.  However, no cause for the applicant’s pain was found.  He was prescribed with Tablet Vioxx since 30 November 2001.

27.     Dr Goyal saw Mr Cartmell on 18 January 2002 when he complained of a sore throat and a cough for the last one to two weeks.  Dr Goyal took a history of smoking 10-15 cigarettes a day over the last two years.  Mr Cartmell was diagnosed with Chronic Obstructive Airways disease.  On 19 April 2002, Dr Goyal saw the applicant about his complaint of chest tightness.  He was referred to Dr Leung, consultant cardiologist, for cardiac assessment because of a history of chest pain.  On examination his blood pressure was found to be normal and all other examinations were normal. 

Dr Dinnen

28.     On 8 July 2003, Dr Dinnen, consultant psychiatrist, interviewed Mr Cartmell.  In a report of 18 July 2003 to the applicant’s legal representatives (Exhibit A3) Dr Dinnen stated that there was no convincing evidence of a depressive illness.  He noted various medical problems, but considered the major cause of the applicant’s long term unemployment to be personality inadequacy.  In Dr Dinnen’s opinion the applicant was clinically dysfunctional with regard to psychological adaptation and noted that his most obvious problem was below average intellectual capacity.  Dr Dinnen suggested formal psychometric testing.

Gerard Glancey

29.     Gerard Glancey of Gerard Glancey & Associates, psychologists, provided an intelligence assessment dated 26 August 2003 (Exhibit A4).  The results of Mr Cartmell’s IQ assessment supported Mr Glancey’s view that the applicant is able to perform labouring work.  In Mr Glancey’s opinion, the applicant lacked the literacy skills necessary to function within a clerical capacity.  Results of testing suggested that Mr Cartmell has a poor short term memory.  In conclusion, Mr Cartmell was found to be suited only to basic labouring work and would require supervision in the workplace.

Dr Wong

30.     On 14 October 2002 Dr Wong, an occupational physician, examined Mr Cartmell and prepared a report dated 16 October 2002 for the respondent (Exhibit R2).  Dr Wong found as follows:

-     a restricted range of movement of the cervical and lumber spine and thus physical impairment.  Using Table 3 ‘Upper Limb Function’ Dr Wong assessed Mr Cartmell at 0 points, finding he was able to use his dominant limb effectively.  Dr Wong justified his finding on the applicant’s history of playing golf weekly and being independent with self-care.  His examination found no bony injury secondary to arthritis, extension and rotation of both shoulders were to expected limits.

-     The applicant’s history referred to stiffness in the knee joints and recurrent symptoms and two episodes of his left knee collapsing on him.  Dr Wong used Table 4 ‘Function of the Lower Limbs’ to assess Mr Cartmell’s lower limb function.  Due to the applicant’s ability to walk five hundred metres or more, the assessment was 0 points. 

-     Dr Wong found full range of forward flexion of the cervical spine and extension was to three-quarters of expected range.  Rotation in both directions was normal and lateral flexion was limited to ten degrees.  Under Table 5 ‘Spinal Function’, Dr Wong assessed 0 points because he found Mr Cartmell had near normal range of movement. 

-     The assessment under Table 5.2 ‘Thoraco-lumbar-sacral spine’ was 0 points as the applicant’s loss of restriction of movement of the lumbar spine is less than a quarter of normal range.

-     Dr Wong’s assessment under Table 18 ‘Skin Disorders’ was 0 points because the skin lesions do not limit the applicant’s ability to carry out activities of daily living.

-     the applicant’s gout was assessed by reference to Table 21 ‘Intermittent Conditions.’  Taking account of its severity and duration, Dr Wong assessed the impairment at 0 points. 

31.Overall, Dr Wong concluded as follows:

Therefore, whilst I am of the opinion that Mr Cartmell has reduced function of his cervical spine, lumbar spine and he also suffers with a skin condition, overall his conditions are not so severe that he qualifies for an impairment rating of 5% or more.

In Dr Wong’s opinion Mr Cartmell is fit to participate in gainful employment and has the capacity to perform suitable work for more than thirty hours a week.  Suitable work would be light manual work or sedentary tasks, such duties including light packing in a factory, working as a ticket collector, turnstile attendant or carpark attendant.  With minimal training, Dr Wong believes that Mr Cartmell could work as a retail assistant in a hardware store provided he did not have to lift weights in excess of 20kg.  In his opinion, Mr Cartmell is fit to undertake training.

32.     In a subsequent report dated 3 August 2003 (Exhibit R1) Dr Wong reported the results of a pulmonary test undertaken by the applicant on 29 July 2003.  Dr Wong measured Mr Cartmell’s Forced Expiratory Volume and Forced Vital Capacity and found that his pulmonary function tests were within normal limits.  Applying Table 2 ‘Loss of Respiratory Function - Physiological Measurements’ Dr Wong assessed the applicant as having a 0 per cent impairment rating. 

consideration and findings

33.     Mr Colborne submitted that Mr Cartmell’s arthritis of the shoulders, hands, fingers, hips, knees and ankles should be globally assessed at 20 points under Table 20.  Alternatively, he submitted that Mr Cartmell satisfies s.94(1)(a) and (b) of the Act by reason of the applicant’s lower back pain, that should be assessed at either 5 or 10 points under table 5.2, and his emphysema assessed at 15 points under Table 2. He conceded that, in light of Dr Dinnen’s report, the applicant did not suffer from depression. Further, Mr Colborne submitted that the applicant has a continuing inability to do the kind of work that by virtue of his skill and experience he is capable of performing.  He referred to Secretary, Department of Social Security v Pusnjak [1999] FCA 994, where Drummond J held that it is apt for the Tribunal to take account of an applicant’s actual work skills and experience and capacity to be retrained for any work that he could thereafter do in determining whether the applicant had a continuing inability to work because of an impairment. Mr Colborne submitted that there is no training available that would give Mr Cartmell the skills necessary to do the kind of work he is fit to perform for 30 hours a week and that s.94(2) was satisfied.

34.     For the respondent Ms Quinn submitted that Mr Cartmell’s chronic airflow limitation had not become a permanent impairment during the qualifying period that ended on 19 January 2002, being thirteen weeks after he lodged his claim for Disability Support Pension on 19 October 2001 (ss.3, 4 of the Administration Act).  She referred to the comment by Dr Lewis-Enright that he gave no consideration to Mr Cartmell’s congestive cardiac failure because, at the date of his examination on 11 July 2002, the condition was to be reviewed and some medication prescribed.  It was contended, therefore, that Mr Cartmell’s chronic airflow limitation has not been fully investigated, treated and stabilised and therefore cannot be assigned a rating under the impairment tables.  Ms Quinn conceded that the appropriate rating for Mr Cartmell’s lumbar spine condition was 5 points under table 5.2.  Ms Quinn submitted that Mr Cartmell’s other medical conditions should be assessed at 0 points under the relevant impairment tables.  In relation to s.94(2)(a) Ms Quinn submitted that, although the applicant is not able to carry out manual labour of the kind he has performed previously, he had the capacity for light manual work or sedentary tasks for more than 30 hours a week.  Finally, the respondent argued that Mr Cartmell did not satisfy s.94(2)(b), and pointed to Mr Cartmell’s oral evidence of successful participation in training programs.

35.     The Tribunal accepts Mr Cartmell’s evidence that he has neck pain, shoulder and lower back pain, pain in the hands and fingers, pain in the lower limbs and joints, gout, psoriasis and Darier's disease, Chronic Obstructive Airways disease and emphysema.  Accordingly, Mr Cartmell satisfies s.94(1)(a).

36.     The Tribunal prefers the approach that each doctor has taken to determining impairment under the impairment tables, that is, by applying the relevant system specific table rather than Table 20.  In addition, the Tribunal finds support for this approach in Mr Cartmell’s oral evidence which is not suggestive of chronic pain from his various conditions.  Rather, his evidence was of “a little bit of pain” in the shoulders, occasional sharp pain in the collar bone, stiffness in the fingers and legs, lower back soreness following activity such as kneeling to clip the lawn’s edges, and occasional back pain while standing or watching television.

37.     On balance the Tribunal finds that the appropriate rating for the neck pain is 0 points under table 5.1.  Dr Goyal did not refer to cervical spine problems in his treating doctor’s report or his letters of 19 February 2002 and 11 June 2003.  Dr Chew did not diagnose a cervical spine condition.  Dr Wong found a near normal range of movement.  Although Dr Lewis-Enright found the range of movement restricted to 70 per cent, his opinion is also at odds with that of the consultant rheumatologist Dr Choy and the consultant neurologist Dr Vigaendra, who found no explanation for Mr Cartmell’s aches and pains all over. 

38.     In relation to the shoulder and lower back pain the Tribunal concludes that Dr Chew’s assessment of 5 points under Table 5.2 is appropriate. The Tribunal is mindful that Dr Lewis-Enright assessed Mr Cartmell’s work-related impairment at 40 points since he found a 25 per cent range of movement.   Dr Wong assessed 0 points because he found Mr Cartmell had lost less than a quarter of normal range of movement.   Dr Chew, however, found the applicant to have lost approximately 25 per cent in his range of movement and so assessed his work-related impairment at 5 points.  Table 5.2 ‘Thoraco-lumbar-sacral spine’ states:

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.  …

FORTY  Ankylosis in an unfavourable position, or unstable joint

The Tribunal does not accept that the disparity between the doctors’ findings can be justified by expected variation from day to day in lower back symptoms.  The Tribunal is satisfied on balance that Mr Cartmell’s level of pain and restriction of movement do not warrant a rating exceeding 5 points.  This finding is supported by his evidence that he is able to play golf every week, can function reasonably well if he walks at a moderate speed, gets occasional pain while standing and can do the edges of his lawn for 1½ to 2 hours every fortnight in summer.

39.     The evidence clearly favours a rating of 0 points under Table 3 in respect of Mr Cartmell’s pain in and cramping of the hands and fingers.  The Tribunal accepts the evidence of Dr Wong and Dr Chew that Mr Cartmell is able to use his dominant limb effectively, that he has normal grip and dexterity in both hands.  He is independent at home and can drive.  Dr Lewis-Enright did not make an assessment under this table and while he found joint stiffness, he also found there was normal grip.

40. Dr Goyal’s letter of 11 June 2003 referred to his consultation with the applicant on 18 February 2002 in relation to his sore throat and cough, and a history of smoking 10 to 15 cigarettes a day for two years. Dr Goyal’s diagnosis was Chronic Obstructive Airways disease. Dr Lewis-Enright’s report recorded his diagnosis of emphysema. There is no evidence, however, of medication having been prescribed for either condition. In addition, there is no direct evidence of either condition having stabilised by the end of the qualifying period. Significantly, investigation by way of spirometry testing was not undertaken until after the qualifying period. Dr Lewis-Enright noted that Mr Cartmell was in congestive cardiac failure and unable to complete a spirometry test at the time of examination. Dr Lewis-Enright said that Mr Cartmell has suffered from emphysema for at least two years. The Tribunal notes, however, from the applicant’s evidence that he has seen Dr Goyal about shortness of breath and was advised that the condition was not too bad. Moreover Dr Wong’s report does not refer to Chronic Obstructive Airways disease or emphysema. Similarly there is no reference to the conditions in either Dr Goyal’s treating doctor’s report or Dr Chew’s assessment. It is relevant to note the introduction to the impairment tables in Schedule 1B of the Act:

4.  A rating is only to be assigned after a comprehensive history and examination.  For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. …

On balance the Tribunal finds that the conditions of Chronic Obstructive Airways disease and emphysema have not been fully investigated, treated and stabilised within the qualifying period. Thus they are not permanent conditions and cannot be assigned impairment ratings.

41.     So far as Mr Cartmell’s other conditions are concerned, Dr Lewis-Enright assessed his arthritis affecting his lower limbs and joints at 10 points under Table 4, which deals with the function of lower limbs and states:

RATING  CRITERIA

NIL Walks without difficulty on a variety of different terrains and at                           varying speeds for distances of more than 500m.

TEN  Demonstrable loss of strength, mobility, stability, balance,              

coordination and/or sensation such as to cause moderate

interference with walking and one or more of the following:

climbing, squatting, sitting or kneeling or

Pain or claudication restricts walking to 250-500m or less, at a

slow to moderate pace (4 km/h). Can walk further after resting. …            

Dr Lewis-Enright noted the applicant’s crepitus in the ankles, pain on coming down stairs and inability to squat without great difficulty.  Dr Wong assessed 0 points because Mr Cartmell had told him he had no difficulty walking.  Dr Wong’s examination of the applicant’s ankles and knees revealed no arthritic changes and the restriction of movement in the joints was free of pain and within normal limits.  Mr Cartmell’s evidence was that he will walk 100 to 200 metres before having to rest because of the stiffness in his ankles, knees and hips.  That evidence leads the Tribunal to prefer Dr Lewis-Enright’s assessment of 10 points.

42.     As for Mr Cartmell’s psoriasis and Darier’s disease, Dr Lewis-Enright’s assessment of 20 points under Table 18 is not accepted because of Mr Cartmell’s evidence that the conditions have only ever caused to take a couple of days off work. Dr Wong found Mr Cartmell’s skin lesions had not affected his ability to carry out activities of daily living.  An assessment of 0 points is therefore considered appropriate.

43.     Dr Lewis-Enright preferred to assess the work-related impairment due to Mr Cartmell’s gout by including it in his global assessment under Table 20.  Dr Wong, however, assessed the condition at 0 points under Table 21 ‘Intermittent Conditions’.  The Tribunal prefers Dr Wong’s approach and his assessment, noting also that Mr Cartmell’s oral evidence placed little, if any significance on the condition.

44.     For these reasons, the Tribunal finds that Mr Cartmell’s impairment is of 15 points under the impairment tables.  He does not satisfy s.94(1)(b) of the Act and so cannot satisfy s.94(1).  Accordingly, there is no necessity for the Tribunal to determine whether he has a continuing inability to work under s.94(1)(c) of the Act.  The decision under review is affirmed.

I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of P.J. Lindsay, Senior Member.

Signed: B. Sinclair    .......................................................................................
  Associate

Date of Hearing  27 August 2003
Date of Decision  9 September 2003

Applicant’s counsel  C. Colborne  

Respondent’s representative        Centerelink