Parsa and Secretary, Department of Family and Community Services

[2004] AATA 25

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 25

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/633

GENERAL ADMINISTRATIVE DIVISION		)
Re		Ali-Asghar PARSA

Applicant

And Secretary, Department of Family and Community Services

Respondent

DECISION

Tribunal Ms N Isenberg, Member

Date16 January 2004

PlaceSydney

Decision The decision under review is set aside and in substitution therefor the Tribunal decides that Mr Parsa has an impairment rated at 20 points and because of that impairment has a continuing inability to undertake any work for at least 30 hours per week in the next two years.

[Sgd] Ms N Isenberg, Member

CATCHWORDS

SOCIAL SECURITY - disability support pension – physical impairment – entitlement to disability support pension – whether the Applicant had an impairment rating of 20 points or more under the impairment tables – whether the Applicant had a “continuing inability to work” – decision set aside

LEGISLATION

Social Security Act 1991 – sections 94(1), (2), (3), (4), (5), (6), Schedule 1B

Social Security (Administration) Act 1999 –Schedule 2

CASE LAW

Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444

Re Hamal and Secretary, Department of Social Security (1993) 30 ALD 517

Triantafillou and Secretary, Department of Family and Community Services [2003] AATA 56

Re Panke and Director-General of Social Security (1981) 4 ALD 179

Annas v Director of Social Security (1985) 8 FCR 49

REASONS FOR DECISION

16 January 2004 Ms N Isenberg, Member

DECISION UNDER REVIEW

1.      The decision under review before the Administrative Appeals Tribunal (“the Tribunal") was the decision of the Secretary, Department of Family and Community Services (”Centrelink”) dated 13 December 2002 (T14) as affirmed by the Authorised Review Officer (“ARO”) on 6 March 2003 (T27) and the Social Security Appeals Tribunal (“the SSAT") on 8 April 2003 (T2), to reject Mr Ali-Ashgar Parsa’s claim for disability support pension (“DSP”). .

BACKGROUND

2.      Mr Parsa was born on 6 December 1953.  He was injured in a motor vehicle accident in July 1994 and sustained injuries to his back, neck and right knee.  He continued to work until March 1996 when his existing conditions were exacerbated as a result of lifting a picture frame at work.  He has not worked since then.

3.      He applied for DSP on 13 November 2002.  Centrelink rejected the claim on 13 December 2002 and the decision was reviewed and affirmed by an ARO on 6 March 2003.  Mr Parsa appealed to the SSAT and was unsuccessful when a decision was delivered on 8 April 2003.  Mr Parsa appealed to the Tribunal on 17 April 2003.

ISSUE BEFORE THE TRIBUNAL

4.      The main issues to be determined with relation to this matter are:

a)Does Mr Parsa have a physical, intellectual or psychiatric impairment of 20 points or more under the Impairment Tables in Schedule 1B of the Social Security Act 1991 (“the Act”); and, if so,

b)Does he have a continuing inability to work because of the impairment because;

·     the impairment of itself prevents him from doing any work for at least 30 hours per week at award wages within the next two years; and either

·     the impairment of itself is sufficient to prevent him from undertaking educational or vocational training or on the job training during the next two years; or

·     such training is unlikely (because of the impairment) to enable him to do any work for at least 30 hours per week at award wages within the next two years.

CONSIDERATION PERIOD FOR ENTITLEMENT TO DSP

5. Schedule 2, clause 4 of the Social Security (Administration) Act1999 (“the SSA Act”) provides that the relevant time to consider a person’s entitlement is during the 13 weeks after the claim. Therefore, I had to consider if Mr Parsa was entitled to the DSP by 13 February 2003.

APPEARANCES

6.      A hearing was held on 4 December 2003 at which, Mr Parsa was represented by Ms K Sant of counsel and Centrelink was represented by Ms J Green, an advocate from the Advocacy and Administrative Law Team at Centrelink.

EVIDENCE: Documents

7.      In addition to documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), further documents were tendered.

CONSIDERATION OF THE EVIDENCE and FINDINGS

8.      In coming to the correct and preferable decision, I took into account all the evidence, submissions, case law and relevant legislation.

Did Mr Parsa by 13 February 2003 have a physical, intellectual or psychiatric impairment of 20 points or more?

9.      Mr Parsa’s claim for DSP was on the basis of lower back pain and neck pain.  In his Treating Doctor's Report, Dr Soliman wrote that Mr Parsa also had asthma but it was well managed.  Subsequently, Mr Parsa mentioned that he had knee and arm pain as well.

10.     In the course of investigation of his condition Mr Parsa was found to have depression.  At the outset of the hearing Ms Green conceded that the appropriate rating for that condition was 10 impairment points.

11. Ms Sant submitted that the appropriate course was to apply Table 20 of Schedule 1B of the Act because Mr Parsa’s main complaint was of chronic entrenched pain. She submitted that in the circumstances Table 20 better addressed Mr Parsa’s disability and that in applying that Table Mr Parsa’s condition attracted a rating of at least 10, or perhaps even 15 or 20 impairment points.

12.     The descriptors for those ratings are as follows:

“TABLE 20.MISCELLANEOUS - MALIGNANCY, HYPERTENSION, HIV INFECTION, MORBID OBESITY (ie BMI >40), HEART/LIVER/KIDNEY TRANSPLANTS, MISCELLANEOUS EAR/NOSE/THROAT CONDITIONS & CHRONIC FATIGUE OR PAIN

Table 20 can be used for miscellaneous conditions, for example, malignancy, HIV infection, morbid obesity, transplants, miscellaneous ear/nose/throat conditions, disorders with chronic fatigue (including Chronic Fatigue Syndrome) or pain and hypertension. Where there is a separate loss of function, in addition to the loss which can be rated using the system-specific Tables, Table 20 can be used. Double-counting of a particular loss of function, by the use of more than one Table, must be avoided.

Rating  Criteria

…

TENMild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity. Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work-related tasks. There is minimal effect/impact on work attendance. Hypertension that is difficult to control despite intensive therapy but without end-organ damage Potentially life-threatening condition which is currently not interfering with daily activities eg. malignancy in remission with a poor prognosis Heart/Liver/Kidney transplants - well controlled (well functioning) with only mild systemic symptoms.

FIFTEEN Moderate to severe symptoms which are more distressing but prevent few everyday activities. Self-care is unaffected and independence is retained. Symptoms may have mild to moderate impact on ability to perform or persist with work-related tasks and/or attend work. Full-time work would still be possible. Potentially life-threatening condition which is currently interfering with daily activities but self-care is unaffected.

TWENTYMore severe symptoms with a decreased ability/efficiency to carry out many everyday activities. Most daily activities can be completed with some difficulty. Symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. Symptoms cause significant interference with ability to perform or persist with work-related tasks. Symptoms may cause prolonged absences from work.”

13.     In response Ms Green referred to paragraph 8 of the Introduction, which states as follows:

“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 judgement and be convinced that pain or fatigue is a significant factor contributing towards the person's overall functional impairment. Medical reports and the person's history should consistently indicate the presence of chronic entrenched pain or fatigue.” (Tribunal emphasis)

14.     Centrelink argued that Table 20 should only be used if medical evidence suggests that using Tables 5.1 and 5.2 would underestimate Mr Parsa’s level of disability.  Ms Green pointed out that Drs Pereira and Ma from Health Services Australia (“HSA") both regarded Tables 5.1 and 5.2 to be appropriate.  More significantly, Mr Parsa’s occupational physician, Dr Lewis-Enright also had no difficulty in assessing Mr Parsa’s condition under those Tables and made no comment that Table 20 was more appropriate; notwithstanding that Mr Parsa told him of the pain in his neck, body, right arm to his fingers, his legs, in particular his back, and his right buttock and into his right leg. 

15.     While Mr Parsa spoke extensively of his pain, which I accept, there was no medical evidence of underestimation of his level of disability in using those Tables. I am not inclined to adopt the course proposed by Ms Sant and turn instead to rate Mr Parsa in accordance with the relevant functional Tables.

Cervical spine

16.     Dr Pereira commented that Mr Parsa’s neck had full range of movement.  Dr Lewis-Enright, however found a 25-50% reduction in Mr Parsa’s range of movement.  Taking the lower end of that range he attributed a rating of 5 impairment points under Table 5.1 as follows:

“TABLE 5.      SPINAL FUNCTION

Determination of spinal impairments must be based on a demonstrable loss of function.

TABLE 5.1     Cervical spine

Rating           Criteria

…

FIVE    Loss of quarter of normal range of movement.”

17.     Ms Green’s position was that the evidence of Dr Pereira was to be preferred because his examination took place on 2 December 2002, that is within the 13 week period under consideration, whereas Dr Lewis-Enright did not examine Mr Parsa until 1 July 2003.  Ms Green argued that any change reflected a deterioration during the intervening period.

18.     Ms Sant referred me to the xray report of Dr Sachinwalla, dated 4 January 2000, in which Mr Parsa was found to have moderate cervical spondylosis from C3 to C7.  The report detailed several aspects of Mr Parsa’s cervical spine which were, in varying ways, abnormal. 

19.     I observe that in the record of Mr Parsa’s compensation proceedings a number of medical reports in respect of Mr Parsa’s neck were referred to, dating between mid 1996 and mid 1998:

“Drs Giblin, McGee-Collett, Lee and Salmon all give assessments being as a consequence of the motor vehicle accident.”

20.     Dr Ma was dismissive of the compensation proceedings, noting that Mr Parsa had lost his case.  The present matter is quite different, in that no issue arises here in relation to causation.

21.     Mr Parsa’s evidence was that his neck pain produces a headache which is ‘constant’ and ‘strong’.  His neck pain and headache remain with him even after he takes medication.  Mr Parsa’s understanding is that his neck discs are permanently damaged and surgery will not help.  He described deterioration between the time of the motor vehicle accident and his cessation of work in 1996 and an ongoing increase in pain since that time.  His evidence was of heavy medication, although he tries to take as little as possible to reduce possible organ damage through constant consumption of analgesics.

22.     I accept that there is long-standing radiological evidence of abnormalities in Mr Parsa’s cervical spine.  The treating doctor’s report is very scanty.  Dr Pereira’s report is more specific in relation to range of movement.  I accept, however, from the available medical evidence, both from Dr Lewis-Enright and those doctors whose evidence was summarised in the compensation proceedings, that Mr Parsa’s condition has deteriorated.  I also accept that it is likely that, on thorough investigation, his range of movement was likely to have been in the range of only 75% of normal, within the 13 weeks of the lodgment of his claim.  I note that Dr Lewis-Enright was prepared to assess the loss of range of movement at up to 50%.  Such a loss, given Mr Parsa’s history, does not happen overnight.

23.     I am prepared to accept that Mr Parsa’s loss of range of movement is properly assessed at 5 impairment points for a loss of a quarter of range of movement.

Referred pain to arm

24.     Dr Pereira did not rate Mr Parsa’s upper limb function.  The ARO noted that Mr Parsa’s treating doctor had not mentioned it in his report.  I agree with the ARO and the SSAT that a rating of nil is appropriate, in that while Mr Parsa is right hand dominant he did not give evidence, nor was there medical evidence, that his loss of strength caused a moderate interference with hand function of manual handling.  His evidence was of increased pain if lifting weights.  I consider this effect to be mild and accordingly this functional effect is rated at nil.

Thoracolumbar spine

25.     Dr Pereira commented that Mr Parsa’s back had an ‘excellent’ range of movement.  Dr Lewis-Enright however found a loss of flexion to between 25-50%.  Lateral flexion was reduced to between 50-75% and angular rotation was reduced to benefit 50-75%.  Mr Parsa told the SSAT that his back pain is in the lower back and radiates down through his buttocks and legs.  Significantly, in my view, Dr Lewis-Enright found muscle wasting in the right thigh and I consider this to be consistent with Mr Parsa’s description of his condition.  As I observed above, this does not happen overnight.

26.     In the compensation proceedings, the Respondent’s doctor conceded that Mr Parsa could have some mechanical low back pain as a consequence of the congenital abnormality in his low back.  As early as 1996, Mr Parsa was complaining to doctors of back pain and referred symptoms to the right leg.  Mr Parsa’s evidence before me was that he can only walk for 45 minutes to one hour before having to sit down.  While he can drive for up to 45 minutes in a day, he is unable to do this regularly, and in doing so he will be required to be heavily medicated to manage the trip. Afterwards he needs to medicate further and rest.

27.     Ms Green pointed out that Dr Pereira had observed Mr Parsa to be able to squat, whereas Dr Lewis-Enright found that he could not.  I note that in the compensation proceedings Dr McGee-Collett was said to have recorded that Mr Parsa had difficulty loading his van in the crouching position, which I take to mean something in the nature of a squat.

28.     I find that Mr Parsa meets the descriptor for 10 impairment points under Table 5.2 as follows:

“TABLE 5.2    Thoraco—lumbar-sacral spine

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.

…

TEN Loss of one-quarter of normal range of movement as well as back pain or referred pain: with many physical activities and with standing for about 30 minutes and with sitting or driving for about 60 minutes. Or Loss of half of normal range of movement.”

29.     In relation to Mr Parsa’s asthma, I find the evidence to be that the condition is easily tolerated and has no appreciable effect on his ability to work, thereby attracting a rating of nil under Table 20. 

Combined impairment

30.     Taken together Mr Parsa’s combined impairment exceeds 20 impairment points.

31.     I therefore turn to the remaining question:

Does Mr Parsa have a continuing inability to work because of the impairment?

32.     In Re Hamal and Secretary, Department of Social Security (1993) 30 ALD 517 (at 525), the Tribunal described the realities of the modern workplace and the need to consider the issue of work in its context:

"When considering the issue of work in this context, the tribunal is of the view that it is the “normal workplace” against which a person's abilities are to be judged, not the workplace of the “benign employer”".

33.     Relying on Hamal the Tribunal in Triantafillou and Secretary, Department of Family and Community Services [2003] AATA 56 interpreted ‘work’ to be work that is carried out in the "open workplace" and not work that is insulated from dynamic and unpredictable demands.

34.     Assessment of Mr Parsa’s continuing “inability to work” must be made in accordance with the legislation as explained by Drummond J in Secretary of Department of Social Security v Pusnjak (1999) 56 ALD 444, where the Court set out at 452 to 453 the relevant questions:

“As to s 94 (2)(a): Does the impairment of itself, ie, considered in isolation from other matters that may influence his attitude to working, have such an impact on the particular claimant's capacity for work that it prevents him from doing work available anywhere in Australia, being work of a kind which the particular applicant is, by reason of his existing work skills and experience, capable of performing, without the need for retraining? “

35.     It was submitted that Mr Parsa meets the above test, if I were to consider the combined impact of his conditions.  There are limitations on his ability to sit, stand, and bend for long periods.  Even if he were to do these activities he would not sustain full-time work. 

36.     In addition, his sleep is interrupted by pain, and heavy medication decreases his powers of concentration.

37.     Mr Parsa is presently registered with about 20 employment agencies and has applied for numerous jobs.  He has undertaken a number of courses but has difficulty sitting for extended periods in lecture conditions.  He has worked as a salesman and he did security work some years ago.  He is a qualified interpreter and is on call, ironically for Centrelink, depending on availability.  That job, which remains current, entails travel.  When he is engaged to interpret he may find that there is a three to four hour round trip involved.  To travel that long in the car, he takes extra medication beforehand and more afterwards, when he also must rest.  He said he was able to lift, but this causes increased pain and he ‘pays the price’ for his activities.

38.     It was said that there is in fact no job where he could lie down whenever he felt like it.  In any possible employment he would represent a high workers compensation risk.  In this regard Ms Sant referred me to Re Panke and Director-General of Social Security (1981) 4 ALD 179, which was followed in Annas v Director-General of Social Security (1985) 8 FCR 49

39.     Mr Parsa’s depression, as a result of his frustration, would also have to be taken into account.  While he was described by Dr Pereira as having ‘little motivation for work’ that has now been recognised, and conceded by Centrelink, as depression.  It was submitted that a prospective employer could easily make the mistake of assuming Mr Parsa is unmotivated, while he is, in fact, depressed.

40.     Ms Green referred me to Dr Pereira’s observations that Mr Parsa was, at the date of his examination, fit for work.  She suggested that Mr Parsa could continue with his telephone interpreting, lying down as necessary.

41.     Ms Sant said that Dr Lewis-Enright should be preferred to Dr Pereira because he had undertaken a more detailed examination of Mr Parsa.  In addition, because of his specialty as an occupational physician, his views in relation to work ability should be preferred to those of Dr Pereira.

42.     There was some discussion regarding the weight to be given to the various medical reports given that Dr Pereira’s report precedes the relevant date by three months, and Dr Lewis-Enright’s report post dates the relevant date by four months.  In answer to this Ms Sant noted that Mr Parsa has not been able to work since 1996.  There was evidence that his condition had deteriorated before that time, so as to force his leaving the workforce.  His evidence was that his condition has deteriorated since that time.  If he was unable to cope with work in 1996, and as his condition has deteriorated further, it is more likely than not that his deterioration, such as to satisfy section 94(2)(a), occurred sometime between 1996 and November 2002; rather than, co-incidentally, sometime after mid February 2003 (the relevant cut-off date) and Dr Lewis-Enright’s report of 1 July 2003.

43.     I agree with this approach and find that Mr Parsa is prevented, by virtue of his incapacity from doing work of a kind which he is, by reason of his existing work skills and experience, capable of performing, without the need for retraining.

44.     Having come to this view I then turned to the next limb identified in Pusnjak.

Is the impairment of itself sufficient to prevent Mr Parsa undertaking, during the next two years, retraining of a kind that is available to him and which would fit him for a class of work available in Australia that he currently lacks the skills or experience to perform, even if unimpaired?

45.     In this regard I note that Ms Green did not press the re-training issue. As Mr Parsa possesses wide experience and a high skill level, it would be inappropriate to suggest he needs re-training.

46.     I therefore find that Mr Parsa was, at the relevant date, qualified for DSP because he has an impairment, which is properly rated at at least 20 points under the Impairment Tables.  I also find that because of the impairment, he has a continuing inability to undertake any work for at least 30 hours per week in the next two years. 

DECISION

47.     The decision under review is set aside and in substitution therefor the Tribunal decides that Mr Parsa has an impairment rated at 20 points and because of that impairment has a continuing inability to undertake any work for at least 30 hours per week in the next two years.

I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member

Signed:         A. Krilis
  Associate

Date of Decision  16 January 2004
Counsel for the Applicant  Ms K Sant
Solicitor for the Applicant  Cvetanka Jankulouska
Advocate for the Respondent                    Ms J Green