Karroum and Secretary, Department of Family and Community Services - [2002] AATA 757

DECISION AND REASONS FOR DECISION [2002] AATA 757

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1704

GENERAL ADMINISTRATIVE DIVISION )

Re AHMED NAZEM KARROUM
Applicant

And Secretary, Department of Family and Community Services
Respondent

DECISION
Tribunal Rear Admiral A R Horton AO, Member
Date30 August 2002
PlaceSydney
Decision The decision under review is affirmed

[SGD] Rear Admiral A R Horton AO
Member

CATCHWORDS
SOCIAL SECURITY – cancellation of disability support pension – claim for reinstatement - whether Applicant has physical, intellectual or psychiatric impairment of 20 points or more vide Schedule 1B - whether Applicant has continuing inability to undertake work – ability to undertake educational or vocational training

Social Security Act 1991 – section 94, schedule 1B
Social Security (Administration) Act 1999 – section 80

REASONS FOR DECISION

Rear Admiral AR Horton AO, Member

This is an application for review of a decision of the Social Security Appeals Tribunal ("the SSAT") dated 23 October 2001 which affirmed a decision of an authorised review officer ("ARO") of Centrelink dated 11 September 2001, to cancel payment of a disability support pension ("DSP") to Ahmed Nazem Karroum ("the Applicant"). The latter decision followed review of a decision of an authorised delegate of the Secretary, Department of Family and Community Services dated 10 April 2001, to cancel payment of the DSP.
The Applicant lodged an Application for review by the Administrative Appeals Tribunal ("the Tribunal") on 7 November 2001. At the hearing before the Tribunal on 23 July 2002, the Applicant was self-represented. Mr Bernard Slattery, an advocate for Centrelink, appeared for the Respondent. Mr Adnan Jamil, an interpreter fluent in the Arabic language, was present to assist the Tribunal. His services were only occasionally required, given the Applicant's good ability to understand and speak the English language.
The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"). The Tribunal also took into evidence the following documentation:

Exhibit A1                Report by Dr W G D Patrick, Surgeon, dated 30 April 2001
           Exhibit A2                Report by Dr M Guirgis, Consultant Orthopaedic Surgeon, dated 18 April 2002
           Exhibit A3                List of medications provided to the Applicant from Mt Pritchard Pharmacy from 6 April 1999 to 18 July 2002
           Exhibit R1               Three documents relating to an application for DSP 1995 – 96

LEGISLATION

Section 94 of the Social Security Act 1991 ("the Act") defines the qualification criteria for the disability support pension, and states, relevantly:
"94(1)   A person is qualified for disability support pension if:
(a)       the person has a physical, intellectual or psychiatric impairment; and
(b) the person's impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies;
(i)       the person has a continuing inability to work;
(ii) the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
(d)      the person has turned 16; and
(e)      the person either;
(i) is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii) is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A) is not an Australian resident; and
(B) is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident.
94(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that :
(a) the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years; and
(b)        either:
(i) the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training – such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.
94(3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a) the availability to the person of educational or vocational training or on-the-job training; or
if subsection (4) does not apply to the person – the availability to the     person of work in the person's locally accessible labour market.
94(4)For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do work, have regard to the likely availability to the person of work in the person's locally accessible labour market.
94(5) In this section:
…
"work" means work:
(a) that is for at least 30 hours per week at award wages or above; and
(b)…"

Section 80 of the Social Security (Administration) Act 1999 provides the authority for the cancellation of a pension, stating relevantly:
" (1)If the secretary is satisfied that a social security payment is being, or has been, paid to a person:
(a)       who is not, or was not, qualified for the payment; or
(b)       to whom the payment is not, or was not, payable;
the Secretary is to determine that the payment is to be cancelled or suspended.
(2)       …"
Impairment is assessed against the work related Impairment Tables at Schedule 1B of the Act. The introduction to the Tables states, relevantly:
"2.       These tables are designed to assess impairment in relation to work and consist of system based tables that assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance. These Tables are function based rather than diagnosis based. …
3.        These tables give particular emphasis to the loss of functional capacity that a person experiences in relation to work. …
4.        A rating is only to be assigned after a comprehensive history and examination.   For a rating to be assigned, the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. …
5.        The condition must be considered to be permanent. …
…
8.        In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it. For example, Table 5 should be used for spinal pathology. However, where the medical officer is of the opinion that the Tables underestimate the level of disability because of the presence of chronic entrenched pain, Table 20 can be used to assign a rating instead of the Table(s) that otherwise would be used to assess the loss of function to which the pain relates. Medical officers must use their clinical judgment and be convinced that pain or fatigue is a significant factor contributing towards the person's overall functional impairment. Medicals reports and the person's history should consistently indicate the presence of chronic entrenched pain or fatigue."

ISSUES
The Applicant lodged a claim for DSP on 8 December 1995. This claim was originally rejected, but on review, the Applicant was considered to be eligible, and DSP was granted on 10 May 1996 (Exhibit R1). In December 2000, the Applicant was advised that payment of the DSP was due for medical review. The Medical Review form, together with a Treating Doctor's Report by Dr M Guirgis, Consultant Orthopaedic Surgeon, was lodged on 15 January 2001 (T30 and T31). Following consideration of these reports in conjunction with various reports of radiology and imaging studies, and examination by a Health Services Australia ("HSA") doctor, a delegate of the Respondent assessed the combined impairment rating vide the Schedule 1B Impairment Tables as being less than 20 points. The Applicant was accordingly advised that payment of DSP would be cancelled on the basis that he did not meet the conditions of section 94(1)(b) of the Act which requires a total impairment rating of 20 or more points.
That decision was affirmed on review on 24 August 2001, wherein the reviewing officer also considered the Applicant fit for full time work. An ARO affirmed the decision on 11 September 2001, finding the Applicant suffered impairments relating to the cervical spine, right shoulder and right elbow, leading to a total impairment rating of 15 points. The ARO also considered the Applicant was capable of undertaking full time light work.

On 23 October 2001, the SSAT affirmed the Centrelink decision to cancel payment of the disability support pension, determining that the Applicant had a total impairment rating of 15 points, assigning 5 points for the cervical spine and 10 points for upper limb function. The SSAT thus confirmed that the Applicant did not satisfy the provisions of section 94(1)(b) of the Act. The SSAT did not proceed to consider whether the Applicant had a 'continuing inability to work' under section 94(1)(c) of the Act.
The issue before the Tribunal is whether the Applicant ceased to qualify for the DSP, under the provisions of section 94 of the Act, on 10 April 2001, the date that the primary decision in this matter was made by a delegate of the Respondent pursuant to section 80 of the Social Security (Administration) Act 1999.
APPLICANT'S EVIDENCE
The Applicant was born in Lebanon in 1954. He completed his schooling at the age of 17 at the higher school level; he has not undertaken any further formal education studies. Prior to migrating to Australia in 1973, he worked as a shop assistant in a menswear store and also as a part-time welder. In 1975 he returned to Lebanon for a brief visit and to marry. He now lives at Cabramatta West with his wife and three youngest children. He has four older children living away from home. He stated that he gets on well with all his children.
His early employment in Australia was varied; initially he worked for three months as a commercial cleaner, this being followed by a further three months as a machine operator. He then worked as a station assistant for Freight Rail for six months, and as a tram conductor in Melbourne for eight months. On return to Sydney, he was employed for eight months as a factory hand, machining car parts, before gaining employment in 1976 with the Urban Transport Authority, initially as a bus conductor and then as a driver. He considered the latter to be "heavy duty" given the size of the vehicles and the narrow streets.
He remained with the Authority for some three and half to four years, until suffering a work related injury to his lower back, a condition that persisted for the next 7 to 8 years, and which precluded him from working in that period. He achieved a full recovery in 1988, stating to the Tribunal that he had suffered no recurrence of the back problem. In 1988, he completed a three month hospitality course, and worked in that industry for about three months before moving to Moffat Appliances as a storeman/warehouse attendant.
On 7 January 1991, the Applicant suffered an injury to his right elbow when unloading crates of heavy duty commercial ovens. He recalled a 'big click' in the elbow region, and pain requiring him to rest for about 30 minutes. He then worked for the remainder of the day, which he considered aggravated the injury. The next morning his arm was swollen and he was in pain, pain that has been present ever since. He was retrenched from Moffat Appliances in April 1991, being unable to undertake heavy work. He advised the Tribunal that a workers compensation claim in respect of this injury was settled some years ago.
In 1992 he was "looking for light work", and obtained temporary employment as a service station attendant, a position that was only available for a short period. Thereafter he looked for light employment in such businesses as cake shops and florists without success. At about that time he undertook some rehabilitation training with the Commonwealth Rehabilitation Service. He has not been employed, nor looked for employment, since 1992. He is currently in receipt of Newstart Allowance, the conditions of which apparently do not require him to seek work.
The Applicant gave evidence that the pain in his right arm, which is his dominant arm, relates primarily to his elbow and shoulder. It became worse in 1993 – 1995, and shortly thereafter, Dr Guirgis sent him for ultrasound on his elbow and shoulder, leading to cortisone and steroid injections. He considers this treatment did little to alleviate the pain, nor restore movement. He was also suffering from neck pain from about that period, pain which he alleviates to a small extent by rubbing the neck and applying a dressing. In terms of surgical procedures, Dr M Johnson, orthopaedic surgeon, carried out an arthroscopy on his right elbow in 1992, and Professor G Murrell, orthopaedic surgeon, carried out an arthroscopic acromioplasty on his right shoulder in January 2001. The Applicant considered that neither had led to any improvement in his condition.
In May 1999, Professor N Dan, neurosurgeon, recommended ulnar exploration of the right elbow in respect of ulnar nerve lesion (T25). In the event the Applicant decided not to proceed with this surgical procedure because as a public patient there was no guarantee that Dr Dan would be the operating surgeon. That remains the current position.
Mr Karroum described his medical situation, both at the time of responding to the medical review of eligibility for the DSP and now, as pain in the neck becoming worse, his shoulder not improving, and his elbow becoming even more painful. He listed medications as including analgesics, Mobic and Panadeine Forte, as well as the 'bandage' on the neck. At the conclusion of the hearing, the Applicant tabled a printout from the Mt Pritchard pharmacy (Exhibit A3) of prescriptions filled since April 1999. This confirms the above medications, as well as listing Celebrex, and the occasional use of Vioxx, Moxacin and Tramil, these being variously prescribed by his treating general practitioner, Dr Qamar and specialists.
As regards his daily life, the Applicant stated that he drives his children to the local schools each morning. His car is automatic, and he can steer predominantly using his left arm. He cannot drive for long periods, and particularly feels a "crab bite like" sensation in his neck. He cannot undertake outdoor activities around the home, such as lawn mowing, nor can he do housework, due to his inability to use his right arm and the constant pain. He finds his inability to participate in these domestic activities frustrating. He assists his wife with shopping but can only carry light bags. In cross examination, he stated that he bathed himself but takes some 20 minutes to shave using two hands; he needs help to dress. He has no social life because of his condition, which also precluded him from enjoying his previous hobby of fishing.
He gave evidence that whilst he would like to, he could not do any work due to his medical impairments. He was in constant pain, although his neck pain could be alleviated to some extent by his wife massaging his back. He did not consider he could undertake employment involving desk (writing) duties, as his arm pain and weakness is such that he must rest after about twenty minutes. He could not work in a shop because of the constant pain. In response to a question from the Respondent as to whether he could undertake any work at all, he stated that he could not tell unless he tried it.
MEDICAL EVIDENCE

The medical history of the Applicant in the section 37 documents goes back to 1981 in respect of radiological reports of the cervical and lumbar spines, presumably resulting from the work place injury referred to in paragraph 13 above. There are subsequently numerous diagnostic reports and results of medical examinations in respect of the later work place injury to the right arm. But as with the view taken by the SSAT, those reports provide background as to the basis of the Applicant being found eligible for the DSP in 1996, rather than being of assistance in ascertaining his condition some 6 years later when further reviewed. Hence the Tribunal places emphasis on the more recent medical reports and the evidence of the Applicant.
There are no recent reports available to the Tribunal from Dr Qamar, stated by the Applicant to be his treating doctor. There are numerous reports from Dr Guirgis, orthopaedic surgeon, notably those of 8 August 1999 (T27) and 9 April 2001 (T35), the Treating Doctors Report of 12 January 2001 (T30), and a further report dated 18 April 2002 (Exhibit A2). Dr Guirgis has been treating the Applicant since 1981. In his report of 8 August 1999, which appears to be related to a compensation claim, he confirms steroid injection treatment in 1997 and again in 1999. Apparently relating to the period since a previous report in 1994, he describes the Applicant's condition as:

"His right arm condition continued to worsen gradually and steadily as time passed. He continued to complain of persistent pain felt along the outer and inner border of his right elbow. He continued to complain of weakness and stiffness felt in that elbow. More recently he was unable to put his right elbow straight. He also continued to complain of painful stiffness and heaviness in the right shoulder and described difficulties that would require him to lift his arm above the shoulder level or to bring his arm behind his back. Moving the right arm in certain directions intensified the pain felt in the right shoulder. He described pins and needles, numbness and tingling spreading from the inner border of his elbow down the medial forearm to the medial hand. He described pins and needles, numbness and tingling involving the right little and ring fingers. He described weakness of the gripping power of the right hand. He also described easy tiredness in the right arm and difficulty in doing fine manipulative activities with the right hand."

In this report of examination, Dr Guirgis found a restriction in full extension of the right elbow, tenderness in various parts of the elbow, restriction of the superior radio-ulnar joint and clinical irritation of the ulnar nerve. As for the right shoulder, Dr Guirgis reported some restriction in movement of the gleno-humeral component, altered rhythm and evidence of reduced abduction power. He summarised his findings as "consistent with further progression to the worse of the ongoing post-traumatic pathology around the right elbow with further deterioration of the condition of the right ulnar nerve". He considers the "patient remains unfit to be involved in any activities that require applying stresses to the right arm".
In his treating doctor's report of 12 January 2001, Dr Guirgis diagnoses chronic external/internal epicondylitis of the right elbow with ulnar cubital tunnel syndrome, chronic rotator cuff artropathy of the right shoulder with infringement, and chronic mechanical derangement of the cervical spine. He considers all conditions long term and considers the Applicant unlikely to be able to return to full time work for more than two years. He further believes the Applicant would not benefit from training, education or rehabilitation to the extent of being able to work 8 hours per week in the next two years.

A Medical Assessment examination was carried out by Dr Ryerson of HSA on 19 March 2001, the Applicant having undergone surgery under Professor Murrell for decompression of the subacromial space in the shoulder on 23 January. Conditions relating to the cervical spine, right shoulder and elbow injury, and restricted vision were diagnosed. The former condition was given an impairment rating of 5 points under table 5.1 on the basis of "some mild loss of movement", Dr Ryerson also noting "constant pain (leading to) headache". In respect of the shoulder and elbow injury, Dr Ryerson assessed that the condition would improve in time, but rated an impairment of 10 points under Table 3, on the basis of "moderate interference with heavy and repetitive movements". No points were awarded for the slight reduction in vision.
The opinion of Dr Ryerson is at variance with that of Dr Guirgis in respect of the Applicant's ability to undertake full time work and/or vocational training, the former providing the following assessment:

"Needs to avoid prolonged sustained use of upper limbs, working above shoulder height, lifting and carrying heavy objects. Needs to alter neck position periodically and avoid looking up frequently. He may benefit from glasses for reading.
As he continues to have physiotherapy after the surgery on his right shoulder, he is fit for part time light work now, such as gate keeper or light sales with the above limitations. Within the next six months, he is likely to be fit for fulltime work. He might benefit from pain management and retraining to improve his job prospects. Review in six months if not looking for work by then."

In a further report dated 9 April 2001 (T35), again apparently in relation to a compensation claim, Dr Guirgis confirms regular examinations of the Applicant in the intervening period. His findings were generally similar to those in the earlier report at paragraphs 22 and 23 above, with the exception that movement of the gleno-humeral component of the shoulder was "markedly restricted in all directions". He opined that "the signs and diagnosis remains consistent with further progression to the worse of the ongoing post-traumatic pathology around the right elbow with further deterioration of the condition of the right ulnar nerve". He also noted the proposal for surgical treatment to the ulnar nerve by Dr Dan, and the right shoulder surgery performed by Professor Murrell.
Two reports by Dr W G D Patrick, Surgeon, were available to the Tribunal. On 5 May 2000 (T28), he opined after examination that the Applicant had developed "some degree of lateral epicondylitis and osteochondral erosions at the radio-humeral articulation (of the right elbow), some degree of right ulnar neuritis (not severe) and some rotator cuff tendonitis at the right shoulder". He considered it unlikely that surgical intervention would facilitate any return to the workforce, but this opinion seemed to be based on the length of time that the Applicant had been out of the work force. This opinion as to the permanent impairments was re-affirmed on file review at Exhibit A1.
On 3 May 2001, Dr T Nguyen of HSA expressed agreement with the 'decision' following a file review. The Applicant was then referred to Dr A Wong, occupational physician, who undertook an examination for the Respondent on 23 July 2001 (T39). He summarised his diagnosis as "indicative of suffering from minor degenerative changes affecting his surgical spine, impingement of his right shoulder, and entrapment of the right ulnar nerve". He saw no improvement to the latter without surgical intervention. He also opined that the Applicant suffered from "chronic pain behaviour resulting in significant restriction of his physical capacity", although he could not exclude symptom magnifications. He considered him able to engage in suitable employment for 30 hours a week. Based on that report, Dr B Forssman, Senior Medical Advisor of HSA, writing that the Applicant was applying for DSP rather than being in the position of having DSP cancelled, opined that the Applicant could perform full-time sedentary duties.
SUBMISSIONS

The Applicant submitted that in his view, the reports by Dr Guirgis, his treating doctor for many years, and a specialist orthopaedic surgeon, should have precedence over the single report by Dr Ryerson, a general practitioner. Whilst he considered Dr Wong had carried out a thorough examination, as reflected in his report, he did not consider that conclusions drawn by Dr Wong reflected the extent of his impairments, the pain that resulted from these impairments which justified extra consideration, the impact on his life and his inability to return to the work force.
The Respondent submitted that the total impairment rating from the Impairment Tables was 15 points, and hence the Applicant could not meet the criteria in section 94(1)(b) of the Act. The cervical spine impairment warranted 5 points under Table 5.2 based on the reports by Dr Guirgis at T35 and Exhibit A2, the assessment by Dr Ryerson of HSA and the evidence of the Applicant. The Respondent submitted that the right arm and shoulder condition should be rated under Table 3 for Upper Limb Function, and that a rating of 10 points was adequate as the Applicant's condition aptly fitted the criteria for that rating. The Respondent further submitted that such a rating also took account of the inability of the Applicant to undertake heavy manual labour. Finally, the Respondent suggested that in supporting a higher rating, as he did at Exhibit A2, Dr Guirgis was placing undue emphasis on labour intensive work considerations.
In the event that the Tribunal concluded that the Applicant did meet the provisions of section 94(1)(b), that is, an impairment of 20 points or more, then the Respondent submitted that the Applicant could not meet the "continuing inability to work" criteria pursuant to section 94(1)(c). He submitted that the Applicant was capable of undertaking light sedentary full-time work, that there were a range of suitable jobs available, and the Applicant had not tested himself since 1992 in that environment. He further submitted that the legislation required that only the impairments of themselves were relevant to this matter, and that other such as age and time out of the work force, as raised by Dr Guirgis, were not relevant. In terms of whether chronic pain should be considered under Table 20, as permissible under paragraph 8 of the introduction to the Impairment Tables, the Respondent submitted that such a proposal had not been raised in any of the medical reports, and pain had been adequately considered in the relevant table for the extant impairments.
ANALYSIS OF EVIDENCE AND FINDINGS
The issue before the Tribunal is whether the Applicant met the conditions of section 94 of the Act on 10 April 2001, the date on which the Respondent made the primary decision that the Applicant had ceased to qualify for the DSP. That decision took account of impairments in relation to the cervical spine and right shoulder and elbow injury. The decision under review by this Tribunal is that of the SSAT on 23 October 2001 which found that the Applicant did not meet the conditions of section 94(1)(b) in respect of the requirement to have a total impairment rating under the Impairment Tables of 20 points or more, and hence the Applicant did not meet the conditions of section 94(1)(b) of the Act.
The Tribunal must consider whether the impairments, as accepted by the Respondent as meeting the criteria in section 94(1)(a) of the Act, are such as to warrant a combined impairment rating of 20 points or more pursuant to section 94(1)(b) of the Act. The Tribunal considers each impairment condition on the available medical evidence and opinion and the oral evidence given by the Applicant. and witnesses. Subject to a finding of a total impairment rating of 20 points or more, then the Tribunal must go on to consider the third leg of the legislation, that is whether the Applicant has a "continuing inability to work" under section 94(1)(c).
     Cervical spine. Spinal functions are to be considered under Table 5 in Schedule 1B of the Act, Table 5.1 referring to the cervical spine. Dr Guirgis has reported diminished movement of the spine, and in his treating doctor's report, diagnosed chronic mechanical derangement. Xray and bone scans report degenerative change, some spondylosis and a reduced range of movement. Dr Ryerson found a "mild loss of range of movement" with neck pain. Dr Wong found the range of movement to be three quarters of the expected range. Whilst in evidence to the Tribunal the Applicant referred to his neck pain becoming worse, although it could be alleviated by massage, he did not indicate a greater loss of movement than that reported in the various medical examinations. The Tribunal concludes on the evidence that a five point rating under Table 5.1 is appropriate, the criteria being "loss of a quarter of normal range of movement", and so finds.
     Right shoulder and elbow. There is no dispute that the Applicant has injuries to his right shoulder and elbow, and that whilst the former may respond in time following arthroscopic acromioplasty (although the Applicant gave evidence that this had not resulted in any improvement to his shoulder condition), the latter involving entrapment of the right ulnar nerve would not improve without surgical intervention. Limitation on movement is evident, although the observed degree of such limitations varies between the medical specialists. Dr Wong raised the question of symptom magnification, but there is no evidence on which to further consider this suggestion.       The Applicant gave evidence that the injuries to his right shoulder and elbow, were such that not only could he not engage in his previous occupation as a storeman/warehouse attendant, but nor could he work in any capacity. He considered he could not undertake clerical work due to arm pain and weakness. The Tribunal accepts that limitations are placed on the Applicant because of his right arm injuries, as identified to varying degrees by various medical specialists, but is unable to accept his argument that these injuries virtually preclude all activities.
     The relevance of Table 20 in assessing an impairment rating for the right arm needs to be considered, given the Applicant referred to pain and its effect. As per the Introduction to the Impairment Tables, pain or fatigue "should be assessed in terms of the underlying medical condition which causes it", but where this is underestimated "in the view of the medical officer", Table 20 can be used instead of the functional table. In this matter, none of the medical reports suggested that Table 3, for Upper Limb Function, was not appropriate in the circumstances, and the Tribunal accords with this view. Under Table 3, Dr Guirgis recommends a rating of twenty points, Dr Ryerson, (and reviewing HSA doctors) ten points, the intervening fifteen points not being relevant to the dominant limb. Ten and twenty point criteria are relatively defined in the table as:

"TEN Demonstrable evidence of loss of strength, mobility, co-ordination, dexterity and/or sensation of dominant upper limb which causes moderate interference with hand function or manual handling.

TWENTY Demonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation which causes significant interference with hand function or manual handling…"

On the evidence, the Tribunal finds that ten points is the appropriate rating for this impairment, there being no evidence that the impairment has resulted in major losses as described, or that the interference with function and manual dexterity is significant.
Accordingly the Tribunal finds that the Applicant did not, at the time the original decision was made to cease payment of DSP, meet the conditions of section 94 (1)(b) of the Act in respect of the requirement to have a total impairment rating of 20 points or more, he having a total rating of 15 points.
That being the case, it is unnecessary for the Tribunal to consider whether the Applicant has a "continuing inability to work" as defined under section 94(1)(c) of the Act, but it behoves the Tribunal to point out that the test of "continuing inability to work" as further defined in section 94(2) and (3) requires that such inability must result from the impairments alone.
DECISION

The decision under review is affirmed.

I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Rear Admiral A R Horton AO, Member

Signed: A Stephens .....................................................................................

Associate

Date of Hearing  23 July 2002
           Date of Decision  30 August 2002
           Representative for Applicant       Self Represented
           Advocate for the Respondent      Mr B Slattery