Lozi and Secretary Department of Family and Community Services
[2005] AATA 700
•25 July 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 700
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1127
GENERAL ADMINSTRATIVE DIVISION ) Re ABDUL LOZI Applicant
And
SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Dr J D Campbell, Member Date25 July 2005
PlaceSydney
Decision The decision under review is affirmed.
[Sgd] Dr J D Campbell Member
CATCHWORDS
SOCIAL SECURITY - disability support pension – impairments – whether the Applicant met criteria for disability support pension during relevant 13 week period – whether Applicant’s impairments have a combined rating or 20 points or more under the Impairment Tables - whether the Applicant has a continuing inability to work – Applicant’s impairments do not have combined rating of 20 points – decision affirmed
Social Security Act 1991, section 94, Schedule 1B
Social Security (Administration) Act 1999 Schedule 2
REASONS FOR DECISION
25 July 2005 Dr J D Campbell, Member 1. In this application, Mr Lozi seeks review of a decision of the Social Security Appeals Tribunal (“SSAT”) dated 25 February 2004, which affirmed a decision of a Centrelink delegate, dated 14 April 2003, to reject Mr Lozi’s claim for Disability Support Pension (“DSP”). This latter decision had been reviewed and affirmed by an Authorised Review Officer (“ARO”) on 5 September 2003.
background
2. Mr Lozi lodged a DSP claim form on 31 March 2003. In Part K of the Treating Doctor’s Report dated 10 April 2003, Mr Lozi described his disabilities as “disc neck, nerve in arms torn, knee condition and lower back pain” (T25,p71). Mr Lozi stated that these disabilities caused him difficulty “all the time”:
·sitting for long periods
·standing for long periods because of knee pain
·walking because of knee pain
·driving a car for long periods because of back pain
·lifting or carrying because of neck disc and knee pain
3. Mr Lozi stated that he had no trouble bending, speaking, remembering, interacting with others, managing his personal affairs or caring for himself and that he sometimes experienced difficulty operating everyday appliances, hearing, attending work, (knee pain), understanding or following instructions, sleeping (pain in arm) and breathing. Mr Lozi stated that he often had difficulties using public transport (hand problem), reading (neck pain), writing and concentrating (T25, p72).
4. Dr Alsayed completed a Treating Doctor’s Report on 25 March 2003. In this report (T24) Dr Alsayed described Mr Lozi’s clinical conditions, history and symptomatology in the following terms:
·Disc prolapse: lower back pain since 1990, which increases on standing, sitting and walking for more than one hour. Condition is currently treated with indocid and has previously been treated with NSAIDS. Further treatment envisaged is physiotherapy and referral to orthopaedic specialist; is unable to work because of his back pain with the condition likely to persist for more than 24 months.
·Knee condition: knee pain started in 1992, with the pain increasing on standing and walking. In 1992, arthroscopic examination was performed on both knees. Condition treated with pain killers. Condition fluctuates but the impact on Mr Lozi’s ability to function will persist for more than 24 months.
5. Dr Alsayed also reported that Mr Lozi suffered from allergic rhinitis (which had a “moderate” impact on his ability to function) as well as gouty arthritis, gastroesophageal reflux disorder and bilateral tinnitus, all of which placed a “severe” impact on Mr Lozi’s ability to function.
6. Mr Lozi was examined by Dr Elliott, a Medical Adviser, with Health Services Australia (“HAS”) on 10 April 2003. In his whole person assessment (T26) Dr Elliott detailed the following:
“This client last worked in December 1999 as a driver/cleaner for QANTAS. He ceased this occupation after 6 years due to left elbow pain. He had previously worked as a truck driver and storeperson. He is partially literate in English. According to the client and documentation, he has the following medical conditions:
I. Lower Back Pain – this developed in 1990. The client stated that he experiences intermittent lower back pain with prolonged standing and walking. On examination, his overall lumbar spine mobility was mildly restricted, and he transferred with minimal difficulty. There were no x-rays available for comment. This condition is permanent, and prevents heavy lifting, bending and prolonged postures.
II. Neck Pain – this developed in 1991.On examination, the client’s neck mobility was restricted by 25%. There were no x-rays available for inspection. This condition is permanent, and prevents duties involving repetitive head turning.
III. Bilateral Elbow Pain – this developed after the work injury in 1998. The workers’ compensation case has been settled. On examination, the client had full left elbow range of motion, and moderate weakness of the left hand grip. This condition is permanent, and prevents heavy manual duties.
IV. Left Knee Gouty Arthritis – the client had an episode of gout in the left knee in 1991. On examination today, he walked normally, and there was no swelling or deformity of the left knee. This condition is permanent, and may cause difficulty performing the following duties: prolonged walking/standing, kneeling, squatting, and walking repetitively on uneven surfaces.
V. Bilateral Inguinal Hernia Repair – this was performed in 1988/9. The client experiences occasional mild groin discomfort. This condition is mild, and only prevents heavy lifting, and repetitive bending.
VI. Tinnitus – this developed in 1998. The client stated that he experiences occasional mild bilateral ringing in the ears. This condition is mild, and may cause occasional concentration difficulty.
VII. Gastro-Oesophageal Reflux – this condition is generally controlled by medication, and has minimal impact on the client’s work ability.
Hence, this client has a combined impairment rating of 10. He is medically fit for full-time light work, such as parking attendant and photograph processor. The client would benefit from vocational retraining/rehabilitation, in conjunction with an English literacy course.”
7. In a medical certificate dated 23 April 2003, Dr Alsayed reported that Mr Lozi was unfit for work from 23 April 2003 to 23 July 2003, due to disc prolapse C6/7, a knee condition, tendonitis both elbows, gouty arthritis, Baker’s cyst and gastro oesophageal reflux disorder (T27).
8. In a further medical certificate, dated 9 July 2003, Dr Mahony, Consultant Orthopaedic Surgeon, detailed Mr Lozi’s neck, back, knees and elbow conditions; all conditions associated with pain and are all likely to persist and deteriorate within two years (T28). Dr Mahony considered Mr Lozi unfit for work from 9 July 2003 to 8 October 2003.
9. An MRI examination was performed on Mr Lozi’s lumbar spine on 19 August 2003. Dr Peduto, Consultant Radiologist, reported (T29):
“No evidence of canal stenosis or foraminal narrowing. Broad based disc bulges at L2/3 and L3/4 with no significant effect on the nerve roots.”
10. In a letter to Dr Ali, Consultant Psychiatrist, dated 8 December 2003 Dr Alsayed indicated that Mr Lozi has suffered from a depressive anxiety disorder since 2002. In a letter dated 9 December 2003, Dr Ali confirmed that Mr Lozi had a depressive illness and was being treated with one tablet of Aropax per day (T12).
issues
11. The particular issues in this matter are whether:
·At 31 March 2003, or at any time during a period of 13 weeks thereafter, Mr Lozi satisfied the qualification criteria for DSP pursuant to section 94(1) of the Social Security Act1991 (“the Act”).
·Mr Lozi has physical or psychiatric impairments, which upon assessment have a combined impairment rating of 20 or more points under the Impairment Tables at Schedule 1B of the Act.
·Mr Lozi has a continuing inability to work as defined within subsections 94(2) to 94(5) of the Act.
decision
12. For the reasons nominated later in this decision I find that Mr Lozi did not qualify for DSP during the relevant period.
mr lozi’s evidence
13. Mr Lozi told the Tribunal that he was born in Lebanon on 1 October 1954. He completed high school but did not take the final examination, and speaks Arabic and French, with some fluency in English. He migrated to Australia at age 17 and commenced welding at a private company, where he injured his eyes. He then worked as a labourer for a number of companies before commencing work as a cleaner at Arnott’s in 1975, where he later became a cook. Mr Lozi married in 1978. In 1982 he ceased employment with Arnott’s because he moved house.
14. About two months after leaving Arnott’s he hurt his back whilst moving furniture with his brother. He was treated with physiotherapy and his back was x-rayed at that time. Between 1982 and 1988 Mr Lozi remained unemployed, despite attempts to secure employment. He believes that prospective employers declined to employ him because of his back problems.
15. In 1988 Mr Lozi commenced working for Philippines Food Products as a storeman/driver; a job involving carrying and lifting. Whislt delivering a ten pound bag of rice Mr Lozi injured his neck and for 11 days was unable to move his neck to the right side. Mr Lozi also suffered a hernia while undertaking deliveries and injured his left knee three weeks after returning to work following surgery for his hernia. He left this position in 1995 after the company went bankrupt.
16. Mr Lozi commenced working part-time with Qantas in 1993 as a driver/cleaner, transferring to full-time work after 11 months. His duties involved carrying heavy bags of dirty linen, as well as other cleaning and carrying duties. Mr Lozi said that over time he was required to increase the pace of his working activities; from cleaning four planes per shift in 1993 to 13 by the time he left in 1999.
17. In 1997 Mr Lozi injured his left elbow when carrying a bag of linen which became caught in a luggage locker. He was treated with physiotherapy, laser therapy and by a chiropractor. He remained on light duties for nine months, and during this period his grading was lowered from a level four to a level three.
18. Mr Lozi stated that while working with Qantas he also experienced intermittent whistling in his ears, the left being worse than the right.
19. Mr Lozi stated that he is married with seven children; five of whom are still at home. He and his family have lived in rental accommodation for the last seven to eight years.
20. Mr Lozi detailed his current symptomatology :
(a) Neck:Pain in posterior to right aspect of his neck, with some radiation to the right shoulder. Pain is present most of the time and sometimes wakes him at night when he turns over.
(b) Lower back: Grabbing pain like a hot needle in his lower back every day, with numbness extending into his right leg. He is unable to sit or stand longer than 30 minutes and undertakes no exercise.
(c) Left knee: Sharp pain under the patella and he feels that he does not have much power in his left leg. He is able to squat, but is not comfortable doing so. He has a Baker’s cyst behind his left knee. He also has some problems with his right knee.
21. Mr Lozi enjoyed working, but nowadays he does very little and spends his day at home lying down and walking within the home. His wife does all the cooking and household tasks and he does no household activities, but may on occasions accompany his wife shopping. He has little interest in reading or television and does not go out during the day to meet friends for coffee. He can shower and dress himself, although on occasion he experiences some trouble with his trousers. He currently takes the following medication: Celebrex one daily, Tramal one daily, Losec one daily, Aropax one daily and uses Voltaren cream and Panamax. Mr Lozi has seen a psychiatrist on a couple of occasions and is irregular in taking his antidepressant medication.
22. In comparing his current symptomatology with March 2003, Mr Lozi stated that at this time (June 2005) his neck, back, elbow and ear conditions are worse and. his knee condition remains the same.
23. Mr Lozi stated that he continues to hold a car and forklift licence but he rarely drives. He indicated that he came to the Tribunal by train (40 minutes journey), walked from St. James station to the Tribunal (300 metres), and climbed the steps slowly. He has not done any gardening for two years and sees his local doctor every two to three weeks.
further medical evidence
dr graham mahony – consultant orthopaedic surgeon
24. In a report dated 29 June 2004 (T31) Dr Mahony detailed Mr Lozi’s complaints and concluded that:
“Mr Lozi has symptoms referable to a cervical strain with nerve root irritation affecting the upper limbs and there is evidence of a discogenic lesion at the C6/C7 levels.
He also has symptoms referable to bilateral lateral epicondylitis and a left medial epicondylitis and I would consider that pressure on the elbows producing numbness of the ring and little fingers could be associated with bilateral ulnar nerve neuritis.
He also has symptoms referable to a low lumbar back strain in association with degenerate changes with nerve root affecting the lower limbs and there is evidence of discogenic lesions at the L2/3 and L3/4 levels causing a mild impression on the thecal sac at the L2/3 level and degenerate changes in the left knee.”
health assessor’s report
25. A health assessor’s report was conducted by Ms Prasad, a registered nurse, on 21 September 2004 (T33). Ms Prasad reported that Mr Lozi was able to dress, shower, undertake personal hygiene, shop with assistance from his children, socialise, drive, use public transport and walk slowly up 10 stairs. However, he can not carry 10kg in weight upstairs or undertake any household chores or gardening. Ms Prasad recorded no or mild difficulty with digital dexterity in hands, moderate loss of grip strength in both hands and no or mild loss of movement in either arms. The left knee is reported as causing no difficulty with transfer/mobility, but is said to restrict walking to 50-250 metres. The back condition is reported as causing the loss of one quarter range of movement in formal circumstances and none or minor restrictions in informal circumstances. Ms Prasad noted that Mr Lozi “gets depressed because unable to work and use to be very active”.
26. On 11 October 2004 Dr Arad provided a further whole person assessment report, based on the Ms Prasad’s report. Dr Arad summarised his whole person assessment report in the following terms:
“General Information. Mr Lozi was born in 1954. He has arrived in Australia more than ten years ago. Mr Lozi has worked as a driver and aircraft cleaner. The customer stopped working in 1999. He stopped with this workload because of medical reasons. He is assessed regarding Newstart Allowance benefits. This report is based on the observations and the report done by the HSA registered nurse. Mr Lozi presents with:
Back Pain. Mr Lozi displayed a good range of back movements. Mr Lozi has been suffering from back problems for several years. The back problem affects the right lower extremity. Mr Lozi said that he could sit about fifteen minutes, stand less than 15 minutes and walk less than 15 minutes. There are difficulties with bending. His medications include Tramal and non-steroidal anti-inflammatory drugs. At present, Mr Lozi sees an orthopaedic surgeon. The functional impact of this condition is unlikely to change within the next two years. In this case I regard it as permanent. The impairment rate related to this condition is 0.
Right Elbow Pain. There is a mild interference to the use of the dominant upper limb. Mr Lozi is right handed. There are symptoms since 1998. He can lift his arms above his head. He described some numbness in his hands. He indicated that it was difficult to use the right hand for repetitive manual tasks. His drugs include Tramal and Vioxx. The non drug treatment includes specialist treatment. He displayed an adequate range of right shoulder movements. The grip power of his right hand was moderately reduced. The functional impact of this condition is unlikely to change within the next two years. In this case I regard it as permanent. The impairment rate related to this condition is 0.
Left Elbow Pain. There is a mild interference to the use of the non-dominant upper limb. Mr Lozi is right handed. There are symptoms since 1998. He indicated that the use of the left hand for repetitive manual tasks was difficult. His drugs include Tramal and Vioxx. The non drug treatment includes specialist treatment. He displayed an adequate range of left shoulder movements. He displayed a moderate reduction of the grip power of the left hand. The functional impact of this condition is unlikely to change within the next two years. In this case I regard it as permanent. The impairment rate related to this condition is 0.
Left Knee Pain and Left Knee Arthritis. There is a moderate interference with walking and climbing. He said that he could walk 5 minutes. He had cartilage operation in 1989. He described difficulties with climbing, squatting and kneeling. His drugs include Tramal and Vioxx. Non-drug treatment includes specialist treatment. He was noted to walk and to transfer without difficulties. The functional impact of this condition is unlikely to change during the next two years. In this case I regard it as permanent. The impairment rate related to this condition is 10.
Anxiety and Depression. Mr Lozi functions with some difficulty due to moderate regular symptoms. He attributed lack of work to his depression. He indicated that he finds it difficult to cope with stress. He is not socially isolated. Mr Lozi did not express suicidal ideas. His drugs include Aropax. He has not been admitted to hospital for this condition. He was cooperative today. He has seen a psychiatrist. As his depression is attributed to lack of work, the condition may improve with a gradual return to work program and training. The functional impact of this condition may change during the next two years and therefore I regard it as temporary.
Fitness for Work. Following today’s evaluation, I find that Mr Lozi is unsuitable for full time work. As the impact of the health problem on the ability to work may change within 12 months, I recommend a review in one year.
With successful vocational rehabilitation, training and gradual return to work program he may be able to increase his activities and consequently his depression will improve.”
dr harvey sutton – consultant occupational physician
27. In a report dated 2 February 2005 (Exhibit A2), Dr Harvey-Sutton detailed a history of Mr Lozi’s disabilities and activities. On clinical examination Dr Harvey- Sutton observed that Mr Lozi “looked older than his stated age. His affect was flat … his musculature did not appear well toned and there was abdominal laxity”. She noted a loss of half the normal range of movement of the cervical spine and tenderness over the medial epicondyle of each elbow. Dr Harvey-Sutton recorded a variation between a quarter loss of range of movement of the thoraco lumbar spine on informal examination with a somewhat greater loss of range of movement on formal examination and a normal range of movements of the left knee.
28. Dr Harvey-Sutton concluded that Mr Lozi had the following disabilities:
· chronic neck pain – symptomatic cervical spondylosis
· chronic low back pain – symptomatic lumbar spondylosis
· history of right and left epicondylitis of the elbows, particularly the left elbow
In relation to the left knee Dr Harvey-Sutton acknowledged a history of symptoms in the left knee but noted that there were no objective abnormalities
29. Dr Harvey-Sutton believed the above conditions had been diagnosed, treated and stabilised by the time Mr Lozi made his application for DSP on 31 March 2003.
30. Dr Harvey-Sutton assessed the impairments in the following terms:
·Cervical impairment -10 point rating per Table 5.1; a loss of half the normal range of movement with frequent pain.
·Thoracolumbar spine impairment – 10 point rating pursuant to Table 5.2; loss of one quarter of the normal range of movement as well as back pain or referred pain with many physical activities.
·Upper limbs – nil points pursuant to Table 3.
·Lower limbs – nil points pursuant to Table 4.
31. Dr Harvey-Sutton considered that Mr Lozi’s impairments would prevent him from working more than 30 hours per week for the next two years. In so stating the doctor relied upon the clinical history, clinical examination, his general level of fitness and the MRI scan investigation.
32. Finally Dr Harvey-Sutton doubts whether Mr Lozi could successfully complete educational, vocational or on the job training, and finds it unlikely that such training would equip him to do any work within two years.
consideration and findings
33. I note the relative consistency with which Mr Lozi has related his employment and injury history, together with symptomatology arising over time from his disabilities. Mr Lozi has given evidence of his blunted interest in every day issues and his minimalist and sedentary lifestyle. He has admitted that he takes his antidepressant medication irregularly and that his symptoms were much worse at the time of the hearing than at the time of his application for DSP. I find that Mr Lozi relates a consistent and reliable history of his difficulties and symptoms, within a context of a person both unhappy and sad with the role in life he is currently leading.
34. I note Schedule 2, clause 4 of the social Security (Administration) Act 1999, which in effect restricts any analysis of the impairments relating to the claim to be confined to a period of 13 weeks from the date of claim, namely 31 March 2003.
35. Material relating to Mr Lozi’s impairments that exist during the operative period must be the focus of the Tribunal’s attention. Material falling outside this period, and which relate to these impairments, are used by the Tribunal only to increase understanding of the impairments and the conditions that led to the impairments which existed during the operative period.
36. Dr Alsayed’s Treating Doctor’s Report of 25 March 2003 defines two major impairments (disc prolapse and knee condition) and other impairments (allergic rhinitis, gastro oesophageal reflux disorder, gouty arthritis and bilateral tinnitus). I find this report lacking in necessary detail both in terms of delineating the actual medical conditions and the resulting impairments, as well as seemingly ignoring the neck condition, and the bilateral elbow pain issue.
37. The report of Dr Elliott dated 10 April 2003 is the only report during the operative period that deals effectively with each and every one of Mr Lozi’s impairments in a manner which is understandable to an analysis of how the doctor arrived at his findings. A medical certificate from Dr Alsayed, dated 23 April 2003, addresses some of the detail lacking in his earlier report by referring to the medical conditions of tendonitis of both elbows and a disc prolapse C6/7, but again fails to particularise any assessment of the impairments or detail any symptomatology. The neck condition but not the back condition had been detailed in a Treating Doctors Report of 13 August 2001 and in a medical certificate of 20 November 2002. Similarly a medical certificate, dated 9 July 2003, provided by Dr Mahony is of little assistance in furthering any analysis of Mr Lozi’s impairments at that time.
38. The report of Dr Mahony of 29 June 2004 particularises symptomatology referable to a number of conditions but provides little assistance in better understanding the issues pertaining to the assessment of impairments during the operative period.
39. I found the health assessor’s report of 21 September 2004 a useful and practical document in so far as it detailed an assessment of Mr Lozi’s abilities and capabilities on that day. However the report did not seem to encompass any examination of the cervical spine, either knee or an exploration of the full range of movements of the thoraco lumbar spine.
40. I find Dr Arad’s report dated 11 October 2004 less than satisfactory in that it carries through the inadequacies intrinsic to the earlier assessor’s report, as well as providing an opinion on an opinion, which is both an interesting exercise, somewhat speculative and somewhat unfair to the person being assessed. I find that Dr Arad’s report provides little assistance, if any, in better understanding Mr Lozi’s medical and psychiatric impairments during the operative period.
41. In a report of February 2005, Dr Harvey-Sutton detailed Mr Lozi’s conditions present at the time of consultation, with her examination revealing minimal findings in the upper limbs and no objective findings in the left knee. In her report, Dr Harvey-Sutton recognised symptoms of pain radiating to the right leg which have not been detailed as evident during the operative period. Similarly her assessment of the neck impairment details a loss of the normal range of movement of the cervical spine which was not in evidence during the operative period. Further I also express some difficulty in understanding the opinions given in relation to the continuing inability to work, in that it would appear she is of the opinion that Mr Lozi can work 30 hours per week. Some clarification of that opinion is required.
42. Dr Harvey-Sutton’s report is an assessment of Mr Lozi’s impairments in February 2005; some 18 months outside the operative period. It clearly demonstrates a deterioration in neck and back pathology, which would appear to be consistent with the underlying pathology and Mr Lozi’s opinion that his symptoms in relation to these two impairments were worse. The report also suggests an improvement in the assessment of both the epicondylitis and knee impairments with both assessed as nil points impairments. In summary I consider that Dr Harvey-Sutton’s report, while helpful in the definition of impairments and the assessment of those impairments in 2005, adds little to a better understanding of the assessment process for the nominated impairments during the operative period.
43. I now move to examine what impairments were present during the operative period. I am satisfied and so find that the following impairments, with definition of clinical features, were present during the operative period.:
(a)Lower Back Pain (lumbar spondylosis) – intermittent lower back pain with prolonged standing and walking (more than one hour);
·MRI scan disc bulges at L2/3, L3/4, with no significant effects on the nerve roots
·lumbar spine range of movements mildly restricted
·condition permanent
·prevents heavy lifting, bending and prolonged postures
(b) Neck pain (cervical spondylosis) – pain in neck posteriorly
·normal range of movement of cervical spine restricted by 25%
·condition permanent
·prevents duties involving repetitive head movement
(c)Bilateral elbow pain (epicondylitis) – developed after work injury in 1998
·full range of movement left elbow
·moderate weakness of left hand grip
·right hand dominant
·permanent
·Prevents heavy manual duties
(d) Left knee pain – gout left knee 1991
·history of Baker’s cyst
·no abnormality detected in left knee
·minor degenerative changes at patello femoral junction (CT scan of 13 October 2000), with no evidence of Baker’s cyst
(e) Bilateral inguinal hernia - repaired 1988/89
· experiences mild discomfort in groin occasionally
· prevents heavy lifting and repetitive bending
· condition assessed as mild
(f) Tinnitus – commenced in 1998
· experiences occasional mild ringing in his ears
(g)Gastro-oesophageal reflux – controlled by medications (Zantac, later Losec) minimal impact on workability
(h) Allergic rhinitis – no impairment details as to significance
In so finding I rely on Mr Lozi’s evidence, Dr Alsayed’s reports and more importantly the report of Dr Elliott; both because of its completeness and particularity. Reliance is also placed on the report of the MRI examination of August 2003, whilst subsequent reports are of assistance in providing a further clinical history of subsequent assessments over time of the defined impairments.
44. I note there is no mention of a depressive disorder in any of the material prior to Dr Alsayed’s letter to Dr Ali in December 2003. From 2002 there is no material before the Tribunal which suggests that this depressive disorder was treated and stabilised prior to or during the operative period. As such, and for the want of adequate material, I am unable to state that such a disorder was present during the operative period. Further even if it was, it would not be appropriate to make an assessment as the condition had not been effectively treated and stabilised.
45. In addressing the issue of assessment of each impairment found to be in existence during the operative period, I make the following findings pursuant to the Impairment Tables:
(a) Low Back Pain - Table 5.2
- Nil points rating as impairment involves a normal or nearly normal range of movement. Treatment: Four Indocid capsules per day.
(b) Neck Pain - Table 5.1
-Five points rating as impairment involves a loss of quarter normal range of movement of cervical spine.
(c) Elbow Pain (bilateral) - Table 3
-Five points rating as impairment involves a loss of grip strength in left hand (non dominant), which causes interference with manual handling.
(d) Left Knee Condition - Table 4
-Nil point rating as able to walk without difficulty on different terrains at varying speeds for distances greater than 500 metres.
(e) Gastro-Oesophageal Reflux - Table 11.1
-Nil points as symptoms controlled by medications
(f) Tinnitus- Table 20
-Not appropriate to assess under Table 20 as impairment intermittent and mild; and
- Table 21
-Not appropriate to assess under Table 21 as no diagnosed condition causing the symptoms.
(g) Bilateral inguinal hernia - Table 11.2
- Nil rating; minimal symptoms
- Table 20
- Nil rating, minor symptoms
(h) Allergic rhinitis - Table 20
- Nil rating, minor symptoms
46. I also considered the assessment of pain pursuant to Table 20. The medication in use during the operative period included antiinflammatory medication (Celebrex; one capsule twice a day, Indocid; one capsule four times a day and Tramal; one to two capsules a day) (T23). I am unable to carry the assessment any further as the material before the Tribunal, in so far as it relates to the operative period, is not descriptive of the frequency and intensity of the pain or what effect such pain had on Mr Lozi’s ability to function at home or at work. Further, as the assessment of the neck, back and elbow pain was undertaken on demonstrable loss of function, a further assessment for pain, even if the appropriate material was available, would lead to an issue of double counting, as pain is often the circumstance which limits the function.
47. In summary I conclude that Mr Lozi has a combined impairment rating of 10 points pursuant to the Impairment Tables.
48. In addressing the issue of Mr Lozi’s continuing inability to work during the operative assessment period, I note the opinion of Dr Alsayed that because of his impairments Mr Lozi will not be able to work for more than two years. I note the certificate of Dr Mahony of 9 July 2003 that, because of his impairments, Mr Lozi will not be able to work for three months and that his conditions will continue to deteriorate over the next 24 months. Neither opinion is supported by any reasoning as to how they arrived at their respective opinions. This alone causes a difficulty, particularly where Mr Lozi has detailed his personal assessment of what difficulties arose from his disabilities in both the domestic and work environment in his application for DSP.
49. The whole person assessment by Dr Elliott defined Mr Lozi’s conditions, nominated the restriction caused by these impairments and assessed these impairments. Dr Elliott also recognised that Mr Lozi’s physical limitations (musculo skeletal impairments) would prevent him from doing heavy work; that Mr Lozi had few transferable skills and was only partially literate in English. In such circumstances Dr Elliott concluded that Mr Lozi was medically fit to undertake full-time light work and that he would benefit from on the job training and vocational retraining/rehabilitation to undertake such activities.
50. Mr Lozi has a varied employment history, involving some semiskilled activities as well as labouring activities. I also note his domestic circumstances and his ability to understand English (interpreter available but not used), albeit being somewhat hesitant.
51. In acknowledging such personal circumstances and work experiences, I conclude that the impact of the various impairments with which Mr Losi is inflicted place restrictions on the nature and type of work which he can undertake. I do not believe they render Mr Lozi unemployable, but I do consider they limit the range of employment opportunities. Dr Elliott opined that Mr Lozi is suited to full-time light work in semi sedentary type activities. I agree with such an opinion.
52. In further comment I note the time that has elapsed between the primary application and the processing of the various avenues of appeal. It is evident that Mr Lozi was of depressed mood at the time of the hearing and his memory of health issues dating back some two years was at best hazy and at worse non-existent. Further, during these two years of process new impairments have intervened (depression) and old impairments have continued their degenerative process. It seems to me that it would be fairer to an individual and much more efficient to initiate a new claim immediately when it becomes evident that such circumstances exist; with the claim currently in the appeal process afforded an early and speedy determination.
53. In summary I conclude that Mr Lozi failed to qualify for a DSP as a consequence of his application of 31 March 2003 for the reasons that while he satisfied section 94(1) (a) of the Act (presence of physical impairments), assessment of those impairments amount to a combined impairment rating of 10 points pursuant to the Impairment Tables; such an assessment failing to satisfy the 20 points of more required to satisfy section 94(1)(b) of the Act. Further I concluded that Mr Lozi does not have a continuing inability to work pursuant to section 94(1)(c) of the Act in that Mr Lozi, because of his impairments, is not prevented from working for at least 30 hours per week within the next two years. I would also note that Mr Lozi’s impairments do not prevent him from undertaking vocational or educational training or on the job training within the next two years.
determination
54. The decision under review is affirmed.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member
Signed: A. Krilis
AssociateDate/s of Hearing 10 June 2005
Date of Decision 25 July 2005
Representative for the Applicant Bora Touch
Solicitor for the Respondent James Larcombe
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