Hi all. I have a client who was badly beaten around the head and neck, and sustained various injuries. He still has some physical issues, but his majory problem now is that he has been left with terrible photosensitivity. He cannot tolerate lights, and always wears dark glasses and a peak cap. He has been told by the eye hospital that mechanically there is nothing wrong with his eyes - and his visual acuity is 6/6. However, he is unable to read coloured paper at all, and for other reading he needs at leaft 14 point with clear font. Even then, he is only able to read a few words before getting terrible eye strain and headaches. The pain clinic have told him they think it is abnormal nerve responses - over stimulation - and he must not do anything to aggravate this. He is also getting glare from the paper. I argued at tribunal that he has no useful ability to read as it cannot be sustained on a regular or repeated basis. At his PCA examination he was found to have no problems at all with his vision. The tribunal was adjourned for both us and Tribunal Service to get extra medical evidence. We are writing again to those involved, but does anyone have any ideas re case law that my be useful - or anything else for that matter?

There are two I can think off, one which may help and one which doesn't.

C12/00-01(IB)isn't so good as it held that it the activity of vision is being tested and no sustained reading ability is to be imported into it.
CIB/2952/2004 may be of some use as it makes reference to electric light and states that this includes fluorescent light. A claimant who experiences problems with fluorescent light may score points.

Is your client taking any prescribed medication? If so what is he taking? How long has he suffered this condition? what point after the incident did it become apparent that photosensitivity was diagnosed?

Hi - many thanks for your interest. My client actually experienced a torn retina in the assault, but this has healed and is not causing the photosensitivity. The photosensitivity has been present ever since the assault. He is taking Paracetamol prn, but for the past few months has also been taking Gabapentin. He says that this is definitely helping with the nerve pain - especially in the face and neck, but not so much the photosensitivity.

Look forward to your reply.

That is interesting, having knowledge and experience myself with the DLA I am assuming here that there is an argument that the client is not classed as disabled. I can understand their findings as a direct result of the medical evidence available, I also don't feel that your client has been fully explored medically. This raises all together separate issues but most relevant is commitment in writing by a medical professional confirming that there is nerve damage which as a direct result is causing the Photosensitive, looking at medical papers in relation to this their is a link. I have noticed that the pain team confirm this and have advised to refrain from over stimulation. This is correct because as a direct result of repetitive eye strain can lead to seizures, headaches and stiffness to the neck. So the advice here is good but again i would stress here that they commit this in writing. Now what is really interesting is the drug that has been prescribed "Gabapentin" is used for the treatment of nerve damage and is also used for seizures mainly for people who have epilepsy, which as we know is connected to the vision and is effecting by flashing lights creating the trigger of epilepsy. I feel that this is a wise move to have placed the client on this drug, as a direct result of all this prior to taking this drug if the client had encountered a seizure as a result of constant eye strain and persisted in ignoring the effects of the strain there is a good chance that this may have happened again leaving the medical profession liable for malpractice. Now if all else fails here and there is no joy with understanding what is the cause of the photo sensitivity or commitment by the medical profession, but all be it here looking into the medical background of photo sensitivity in relation to impact and the 6/6 eye score i would say that there is nerve damage and this could take some time to heal depending on the clients age. It would be interesting to know if the client is suffering from any recent change in moods at this stage as the prescribed drug causes; drowsiness
tiredness or weakness
dizziness
headache
shaking of a part of your body that you cannot control
double or blurred vision
unsteadiness
anxiety
memory problems
strange or unusual thoughts
unwanted eye movements
nausea
vomiting
heartburn
diarrhea
dry mouth
constipation
weight gain
swelling of the hands, feet, ankles, or lower legs
back or joint pain
fever
runny nose, sneezing, cough, sore throat, or flu-like symptoms
ear pain
red, itchy eyes (sometimes with swelling or discharge)


There is also a warning that this drug can lead to approximately twice the risk of suicidal behavior or ideation (0.43%) compared to patients receiving placebo (0.22%). Now if the client is suffering from depression which may be as a direct result of such court proceedings or indeed a side effect of the drug then that in its self would leave the client open for incapacity benefit. But to define this as a disability i would feel that you are going to find it hard. The vision test confirms a 6/6 and what the DLA are looking for here is blindness then it would be classed as a disability. Unless you can obtain a medical report stating long term neural damage effecting his abilities then in defence of the DLA i would say it is not a viable claim but more so an incapacity issue. Another option to explore is, has the client been issued with special eye wear to protect against the light and if so who prescribed it there is a possibility here that a report from them may do some good.

I do hope that i have been of some help for you and your client and wish you all the best, if you want to bounce any idea's or opinions then feel free i am only to happy to try and help.

"The pain clinic have told him they think it is abnormal nerve responses - over stimulation - and he must not do anything to aggravate this."

I would make an argument that Reg 27(b) would apply.

David

CIB 2584/2002 concerned someone affected by bright light. Take a look at para 15. It may help.

http://www.osscsc.gov.uk/judgmentfiles/j1043/cib%202584%202002.doc

Commissioner’s Decision R(IB) 2/99 (T) concerns the variability of a claimant’s condition due to post viral syndrome. The Commissioners found that the did not need to be satisfied for each day in a period of incapacity, and that ‘one should not stray too far from an arithmetical approach..’ They went in to cite C 1/95(IB), a Northern Ireland case, in which the Chief Commissioner there stated:

‘The real issue is whether, taking an overall view of the claimant’s capacity to perform the activity in question, he should reasonably considered to be incapable of performing it. The fact that he might occasionally manage to accomplish it, would be of no consequence if, for most of the time, and in most circumstances, he could not do so.’