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

[2015] AATA 609

Mancia and Secretary, Department of Social Services (Social services second review) [2015] AATA 609 (31 July 2015)

Division	GENERAL DIVISION
File Number(s)	2014/5998
Re	Domenico Mancia
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Deputy President Gary Humphries
Date	31 July 2015
Date of written reasons	19 August 2015
Place	Canberra

The decision under review is affirmed.

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

Deputy President Gary Humphries

Catchwords

SOCIAL SECURITY – disability support pension – whether conditions fully diagnosed, treated and stabilised – whether impairments attract a rating of 20 points or more under the Impairment Tables – decision affirmed.

Legislation

Social Security Act 1991 (Cth) s 94(1)

Social Security (Administration) Act 1999

Cases

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Secondary Materials

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

Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Deputy President Gary Humphries

19 August 2015

Background

1. This is a claim for disability support pension.  It was originally made on 17 December 2013 by Mr Domenico Mancia who was born on 16 July 1958 and is currently 57 years old.  Mr Mancia had a workplace accident in 2005 when he was hit by a forklift truck and that necessitated surgery on his left ankle.  That has left him with a permanent impairment.  Mr Mancia has seen a number of doctors in that time.  He has told the Tribunal about having had to see a large number of practitioners who at various stages over the last 10 years have dealt with him, although reports from some of those doctors are not available to the Tribunal at the moment.

2. Mr Mancia’s claim for a Disability Support Pension (DSP) was rejected by Centrelink, then by an authorised review officer and in turn by the Social Security Appeals Tribunal. He now appeals to the Administrative Appeals Tribunal.  He has appeared today by video link from Bathurst.  I have before me a number of medical reports, including the ones that appear in the T-documents, particularly reports of Dr Killey, his own GP.  There are also two Job Capacity Assessment reports in the T-documents and there are some other medical reports which have been produced by Mr Mancia: one from Dr Killey, for example, a report of a scan that he has had done at the Nepean Blue Mountains Centre and a report from Mr Woodside, a psychologist.  But I note that these reports deal with the situation as it pertains in 2015 and have limited relevance to the condition that Mr Mancia was suffering from in December 2013 to March 2014 which is the relevant period provided for by the legislation.

   Legislative framework

3. The relevant legislation is the Social Security Act 1991, the Social Security (Administration) Act 1999, the Impairment Tables and the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011.  I can take into account to some extent the more recent medical reports under the terms of the decision in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[1] but only to throw light on the nature of the condition that Mr Mancia must have suffered from between December 2013 and March 2014.

   [1] [2012] AATA 922.

   Did Mr Mancia qualify for the DSP under s 94(1) of the Social Security Act?

4. Turning to the legislation, section 94 requires that in order to get the DSP Mr Mancia must have a physical, intellectual or psychiatric impairment equating to 20 or more points under the Impairment Tables, and a continuing inability to work. 

5. I find that Mr Mancia does indeed have physical and psychiatric impairments, including left ankle arthritis and tendinopathy, lumbar spondylosis, depression and Hepatitis C.  All of those conditions are made out.

6. However it is also necessary for Mr Mancia to show that he has a rating of 20 points or more under the Impairment Tables and that the impairments in question are permanent, that is they are fully diagnosed, fully treated and fully stabilised.  I am not satisfied that some of these conditions fall into that category, and I will go through each of those conditions now in more detail.

   The Ankle Condition

7. Looking at the ankle condition, it is not fully diagnosed, fully treated and fully stabilised. It is clear that medical attention is still being devoted to considering what long term treatment might be suitable for dealing with this condition.  Dr Killey last year suggested point fusion treatment and I have nothing before me to suggest that that option is no longer being considered. I note that as of next week Mr Mancia will be seeing Dr Thong, who will be looking at pain management with respect to his back and his ankle which may result in some treatment options which look at the further treatment or stabilisation of this injury.

8. I note that those further reports, that evidence, effectively means that the condition is not yet capable of being considered a permanent impairment.  Even if there was a permanent impairment with respect to the ankle, I find that the relevant table would probably allocate Mr Mancia approximately five points. He mentions for example that he is able to use stairs or steps without assistance, admittedly only a few at a time but he can use the stairs by themselves.  That would suggest that a rating of 10 points under table 3 of the Impairment Tables is not appropriate.  Most likely he attracts five points under that Impairment Table based on the evidence provided by Dr Killey.

9. There was some level of inconsistency between what Dr Killey wrote in his report in March 2014 and what Mr Mancia has told me today, but of course the requirements of the Impairment Table are that there be some corroboration, as it were, from medical reports of any condition that the applicant, him or herself, reports; and therefore if the condition is worse today than it was during the relevant period, which may well be the case, it is not a worsening of the condition which I can properly take into account for the purposes of this decision.

   Lumbar Spondylosis

10. With respect to the spine, I do find that there is a back problem there and that it is persistent and it is ongoing.  I note however, again, that there is further medical attention to be given to that condition by Dr Thong and possibly other doctors as well.  Given that it is still being examined by doctors, presumably for the purposes of determining whether some treatment might be available which relieves the condition, I have to find that the condition is not yet fully diagnosed, treated and stabilised.  Even if it was, based on the evidence that I have heard today it would probably attract a rating of approximately five points, possibly 10 points but most likely five points.

    Depression

11. With respect to depression, I note that has been a consistent problem for Mr Mancia since the death of his father, or possibly later than that but certainly he gives evidence that the condition has been in place since his father died in January 2011.  I note, however, that the most recent psychological report from Mr Woodside suggests that Mr Mancia would prefer not to take medications for his condition.  It is his right to do that.  He is not obliged to take medications he prefers not to take but if he takes the view that the medications ought not to be used, that does go to the question of whether his condition can be said to be fully treated and stabilised; and if medication is being refused, it is not possible to say whether the condition is actually stabilised, given that it is possible some medication he is yet to have attempted might be successful in dealing with his depression.

    Hepatitis C

12. I also note Dr Killey’s evidence that Mr Mancia suffers from Hepatitis C and that it has a minimal or limited impact on his ability to function. Mr Mancia suggests that that is not necessarily the case, but it is not a matter that I can take any further without medical evidence to suggest that in some way the Hepatitis C might be more serious than Dr Killey suggests or might have perhaps become worse than was the case when Dr Killey last examined him in December 2014.

    Did Mr Mancia have a continuing inability to work (s 94(1)(c)(i) of the Social Security Act)?

13. It is not necessary to consider the question of whether Mr Mancia has a continuing inability to work based on the above findings. 

    Conclusion

14. I have to decline to change the decision that has been made already by Centrelink and by the Social Security Appeals Tribunal.  But let me say that there is some evidence that Mr Mancia’s condition is worsening.  In fact, Dr Killey says that.  Dr Killey says that the back condition and the ankle condition are deteriorating, and what that means is that at some point you may well have enough impairment about those things in terms of your movement, your ability to bend down and lift and pick things up, to do other things that people normally do, to qualify for the DSP at some point in the future.

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries

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

Associate

Dated 19 August 2015

Date(s) of hearing	31 July 2015
Applicant	In person
Solicitors for the Respondent	Department of Human Services