Parsa and Secretary, Department of Social Services (Social services second review)

[2016] AATA 431

Parsa and Secretary, Department of Social Services (Social services second review) [2016] AATA 431 (27 June 2016)

Division	GENERAL DIVISION
File Number(s)	2015/6385
Re	Ali Parsa
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr I Alexander, Member
Date	27 June 2016
Place	Sydney

The decision under review is affirmed.

.............................[sgd]...........................................

Dr I Alexander, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether conditions fully diagnosed, treated and stabilised – impairment ratings – continuing inability to work – whether applicant suffered severe functional impact on activities – insufficient corroborating evidence of applicant’s impairments – decision affirmed 

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth)

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Social Security (Active Participation for Disability Support Pension) Determination 2014

REASONS FOR DECISION

Dr I Alexander, Member

27 June 2016

1. On 19 June 2015, Mr Parsa, who is now 62 years old, lodged a claim for disability support pension (DSP) on the basis that he suffered several medical conditions which were having an impact on his ability to function.

2. The claim was rejected by Centrelink, both initially and on internal review, on the basis that he did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (“the Act”). In particular, he did not satisfy s 94(1)(b) of the Act as his impairment was not rated 20 points or more under the Impairment Tables.

3. In a decision dated 23 November 2015, the Social Services and Child Support Division (SSCSD) found that Mr Parsa’s total rating under the Impairment Tables was 15 points, with 10 points under Table 4 and 5 points under Table 3 and did not qualify for DSP.  

4. In these proceedings Mr Parsa, who was self- represented, seeks review of the decision of the SSCSD.

   ISSUES

5. In order to qualify for DSP Mr Parsa must satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with the requirements of the Social Security (Administration) Act1999 (Cth), that is, between 19 June 2015 and 18 September 2015 (the claim period).

6. Section 94(1) of the Act provides that 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)the person has a continuing inability to work as defined by the Act.

7. The Respondent concedes and the Tribunal accepts that Mr Parsa suffers medical conditions that cause impairment and, therefore, satisfied s 94(1)(a) of the Act at the time of his claim for DSP.

8. The relevant medical conditions include a spine condition, a lower limb condition, a mental health condition and hypertension.

9. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Determination”) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).

10. For the purposes of paragraph 6(3)(a), a condition is permanent if it is:

    ·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)); and

    ·fully treated (paragraph 6(4)(b)); and

    ·fully stabilised (paragraph 6(4)(c)); and

    ·the condition is more likely than not to persist for more than two years (paragraph 6(4)(d)).

11. The Introduction to each relevant Table requires that “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”.

12. Also, the Introduction to Table 5 of the Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, states that the diagnosis of the condition “must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist)”.

13. The Respondent contends that, during the claim period, Mr Parsa had a total rating of 0 points under the Impairment Tables and, therefore, had not satisfied s 94(1)(b) of the Act.

14. Alternatively, the Respondent contends that, during the claim period, Mr Parsa could not satisfy s 94(1)(c) of the Act as he did not have a “continuing inability to work” because he had not actively participated in a POS as required by s 94(2)(aa) of the Act.

15. Section 94(2)(aa) provides that a person has a “continuing inability to work” because of an impairment if the Secretary is satisfied that “in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) – the person has actively participated in a program of support within the meaning of subsection (3C)”.

16. Subsection 3B provides that a person’s impairment is a severe impairment if the person’s impairment is 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

17. Subsection 7 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the “POS Determination”) provides, inter alia, that a person has actively participated in a POS if they have participated in the program of support for a period of at least 18 months during the 36 months prior to the date of claim.

18. At the hearing it was agreed that Mr Parsa had not participated in a POS during the 36 months prior to the date of claim which means that his application for review cannot succeed unless he suffered a “severe impairment” during the claim period.

19. It follows that the determinative issue in this matter is whether, during the claim period, Mr Parsa suffered an impairment of 20 points or more under the Impairment Tables and, in particular, whether any of his medical conditions warranted a rating of 20 points or more under a single Table.

    MR PARSA’S EVIDENCE 

20. At the hearing Mr Parsa told the Tribunal that he had worked casually as an interpreter for several years including more recent overseas assignments at Manus and Christmas Islands. During these years he had been receiving a part DSP which was cancelled when he had earned significantly more income during the overseas assignments.

21. Mr Parsa told the Tribunal that currently he lives alone and is able to manage most daily self-care activities and domestic chores with some difficulty.  He stated that his most significant problem is chronic pain involving his neck, back and knees and that he needs several daily pain medications which require careful management. He explained that prior to his bilateral knee replacements in 2010, he was almost wheel-chair bound but is now able to walk short distances without walking aids if he takes appropriate pain medication.

22. Mr Parsa claims that he suffers “chronic anxiety” which is treated by his GP with antidepressant medication (Endep). He has not been seen by a psychiatrist or clinical psychologist in recent years.

    Medical evidence 

23. Mr Parsa relies on a Centrelink Medical Report, dated 18 June 2015, which was provided by Dr W S Guirguis, his GP for the last thirteen years.

24. Dr Guirguis lists “Chronic neck and lower back pain” and “Osteoarthritis both knees” as medical conditions causing significant functional impact.

25. With respect to the neck and back pain Dr Guirguis notes that Mr Parsa requires “long term pain killers and narcotic analgesia”. His description of impact on ability to function is only partly legible but appears to indicate that Mr Parsa’s “chronic pain” affects his ability to walk or stand for extended periods.

26. With respect to the “osteoarthritis” in both knees Dr Guirguis notes current treatment as “Mobic” and describes impact on ability to function as “inability to stand or sit or walk for long time [sic]”.

27. Dr Guirguis also lists “anxiety (chronic)” and “hypertension” as medical conditions that are generally well managed and cause minimal or limited impact but provides no other details.

    Job Capacity Assessment (JCA) Report 

28. In the JCA report dated 24 August 2015 the assessor stated that the client reported, inter alia, the following with respect to spinal function:

    ... he can bend to retrieve items from the floor from standing… he can bend over to put his shoes and socks on… nil difficulties with turning their [sic] trunk from side to side… he can turn his neck to look from side to side when driving or crossing the road… is able to look up however this harder and causes pain…

29. The assessor observed the client to sit “for at least 30 minutes without pain behaviours” and to “stand and walk independently from sitting”.

30. With respect to lower limb function the assessor stated that the client reported, inter alia, the following:

    … he can walk for 20-25 minutes before resting… can walk from his house to the nearby shops and train station (a reported 4 minute walk)… he only does small amounts of shopping at time to avoid prolonged periods of time on his feet… can stand to shower for 10 minutes… he is able to use 4-5 stairs without difficulty however he avoids longer flights of stairs and uses lifts/escalators.

31. The assessor observed the client to “mobilise independently around the Centrelink office”.

    Evidence to the Social Security And Child Support Division

32. Mr Parsa told the SSCSD inter alia the following

    … his capacity to stand, sit and walk is greater in the morning, and gradually decreases during the course of the day… he can sit or drive for about 30 to 40 minutes at a time… he lives alone… he cannot stand long enough to cook a meal… he can hang washing as long as the line is low… he has to do his ironing in the morning… he can vacuum without bending… he struggles to clean his small unit… he does not generally do a large grocery shop as carrying bags causes him pain, so he shops a little every couple of days… [he] has a disabled parking permit and is able to walk from the car to the shops …..he is still working casually as an interpreter, doing smaller jobs and telephone interpreting from home… 

    Consideration

33. For present purposes I accept that, during the claim period, Mr Parsa’s spine and lower limb conditions were permanent within the meaning of the Impairment Determination.

34. In assigning a rating under the Impairment Tables the Introduction to each of the relevant Tables clearly states that “self-report of symptoms” is insufficient and that there must be corroborating evidence of a person’s impairment. 

35. Dr Guirguis’ report is, in my view, unhelpful as he does no not provide a satisfactory assessment of Mr Parsa’s functional impairment and does not address the relevant descriptors in Impairment Tables 3 and 4.

36. As there is no other corroborative evidence to support Mr Parsa’s claim I am satisfied that, during the claim period, a rating under Table 3 and Table 4 could not be applied.

37. The diagnosis of Mr Parsa’s currently claimed mental health condition has not been confirmed by a psychiatrist or clinical psychologist, therefore, a rating under Impairment Table 5 cannot be applied.  

38. I accept that, during the claim period, Mr Parsa’s hypertension was permanent for the purposes of the Impairment Determination. There is no evidence, however, that he suffers any functional impairment as a result of this condition so that a rating of 0 points under the Impairment Tables would apply.

    DECISION

39. For the reasons set out above, I am satisfied that during the claim period, Mr Parsa’s impairment was not 20 points or more under the Impairment Tables so that he did not satisfy s 94(1b) of the Act and did not qualify for DSP.

40. The decision under review is affirmed.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

...........................[sgd].............................................

Associate

Dated 27 June 2016

Date(s) of hearing	10 June 2016
Applicant	In person
Solicitors for the Respondent	Department of Human Services