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

[2019] AATA 3431

Mani and Secretary, Department of Social Services (Social services second review) [2019] AATA 3431 (13 September 2019)

Division:GENERAL DIVISION

File Number:           2018/7304

Re:Emmanuel Mani

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:13 September 2019

Place:Sydney

The decision under review is affirmed.

.........................[SGD]...............................................

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – knee pain – depression – back pain – right arm pain – gastro-oesophageal reflux – whether applicant had an impairment rating of 20 points or more under the Impairment Tables – where knee pain and depression fully diagnosed but not fully treated and stabilised during the claim period – where insufficient medical evidence of functional impairment of back pain, right arm pain and gastro-oesophageal reflux – decision affirmed

LEGISLATION

Social Security Act 1991(Cth) s 94
Social Security (Administration) Act 1999 (Cth) s 42

SECONDARY MATERIALS

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

REASONS FOR DECISION

Dr L Bygrave, Member

13 September 2019

INTRODUCTION

1. The applicant, Mr Emmanuel Mani, lodged a claim for disability support pension on 22 November 2017.

2. The Department of Human Services (Centrelink), initially and on review, rejected Mr Mani’s claim for disability support pension because he did not meet the requirements of section 94 of the Social Security Act 1991 (Cth) (the Act).

3. Mr Mani applied to the Social Services and Child Support Division (SSCSD) of the Tribunal for review and, on 5 November 2018, the SSCSD affirmed the decision of Centrelink.

4. Mr Mani subsequently applied to the General Division of the Tribunal for review.

5. The application was heard by the Tribunal in Sydney on 3 September 2019. Mr Mani attended the hearing in person and provided oral evidence to the Tribunal; he did not have legal representation but was supported by his son at the hearing.

   RELEVANT LEGISLATION

   Qualification for disability support pension

6. To qualify for disability support pension, Mr Mani must satisfy the criteria in subsection 94(1) of the Act, which requires him to show he has:

   (a)a physical, intellectual or psychiatric impairment; and

   (b)an impairment rating of 20 or more points according to the Impairment Tables; and

   (c)a continuing inability to work.

7. Further, Mr Mani must satisfy these criteria on the date he applied for disability support pension on 22 November 2017 or within the following 13 weeks: section 42 and Schedule 2 to the Social Security (Administration) Act 1999 (Cth) (the claim period).

   Rules for assigning impairment ratings

8. The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables Determination).

9. The Impairment Tables Determination includes instructions and rules for assessing impairment and the corresponding rating. Depending on how it affects a person’s ability to function, impairment may be rated between nil and 30 points.

10. An impairment rating can only be given to a medical condition that is permanent.  Permanent in this context means a condition is fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years: subsection 6(4).

11. When deciding whether a condition is fully diagnosed and fully treated, it is necessary to consider: whether it has been fully diagnosed by an appropriately qualified doctor; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years: subsection 6(5).

12. Fully stabilised means that it is unlikely that there will be any significant functional improvement in a condition, with or without reasonable treatment, within the next two years: subsection 6(6).

13. Relevantly, the Introduction to Table 5 – Mental Health Function of the Impairment Tables Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, also 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).

14. The Secretary concedes, and the Tribunal agrees, that Mr Mani has medical conditions that cause impairment and therefore, he satisfied paragraph 94(1)(a) of the Act during the claim periods.

15. It follows that the determinative issues for the Tribunal in this matter are whether, during the claim periods, Mr Mani had:

    ·an impairment rating of 20 points or more under the Impairment Tables; and

    ·a continuing inability to work as defined in subsection 94(2) of the Act.

    CONSIDERATION

    Issue – Does Mr Mani have an impairment rating of 20 or more points under the Impairment Tables?

    Knee pain

16. Mr Mani fell and sustained an injury to his knees in 2009. This condition is verified by the following medico-legal reports.

17. In a medical report dated 23 May 2011, Dr John Ireland (orthopaedic surgeon) noted that Mr Mani subsequently underwent treatment of anti-inflammatories, physiotherapy, steroid injections and bilateral knee replacements.[1] A further medical report by Dr Richard Powell (orthopaedic surgeon) on 4 April 2016 stated Mr Mani had “reached maximal medical improvement”.[2]

    [1] Exhibit T-T6, page 105.

    [2] Exhibit T-T11, page 147.

18. In a report on 22 November 2017, Dr Ireland noted Mr Mani’s symptoms “have been progressively deteriorating over the last twelve months” and considered it “would be reasonable to consider a revision of the components”.[3] On 2 August 2018, Dr Ireland reported that Mr Mani’s symptoms were “tending to wax and wane” and he was “not keen on having the surgery at [that] point in time”.[4]

    [3] Exhibit T-T19, page 178.

    [4] Exhibit T-T30, page 243.

19. The medical evidence indicates that, as at the claim period from 22 November 2017 to 21 February 2018, Mr Mani’s knee condition had deteriorated and further surgery was required.

20. Mr Mani told the Tribunal that he underwent surgery on his right knee three weeks prior to the hearing (that is, August 2019). He said he has been attending physiotherapy sessions and is due to attend an appointment with Dr Ireland on 5 September 2019. However, Mr Mani contended that his knee condition has been ongoing since 2009 and will “never be stabilised”.

21. Mr Mani submitted a report from Dr Safa Georgis (general practitioner) dated 18 July 2019, more than 18 months after the claim period. In this report, Dr Georgis noted that he had cared for Mr Mani for more than eight years and opined that Mr Mani had moderate functional impact under Table 3 – Lower Limb Function in the Impairment Tables because he had “limitation of walking distance”, “standing more than 5 minutes” and “difficulties using stairs”.[5] Mr Mani also told the Tribunal that he has difficulties with standing and uses a walking stick when outside. He said he is unable to walk far outside the house because he worries that he may fall over. Mr Mani confirmed he was able to fly between Australia and Fiji in 2016, 2017 and 2019: this travel required him to undertake a three hour flight, and climb and descend stairs to the plane holding onto the railing.

    [5] Exhibit A6.

22. During the claim period, I am satisfied the medical evidence shows Mr Mani’s knee condition was fully diagnosed, but not fully treated and fully stabilised. This is because Mr Mani required further surgery on his right knee, which occurred more than 18 months after the claim period in August 2019. For this reason, I am unable to assign points for this condition in accordance with the Impairment Tables Determination.

    Depression

23. Mr Mani was first diagnosed with major depression by Dr Graham Edwards (psychiatrist) in a medico-legal report dated 29 May 2011.

24. On 26 May 2016, Dr Deepa Malik (consultant psychiatrist) reported that Mr Mani had a depressive disorder secondary to a physical injury: she provided psychoeducation and recommended changes to Mr Mani’s medication.

25. In a further report on 28 September 2017, Dr Malik stated that Mr Mani had requested further electroconvulsive therapy (ECT) treatment as he believed this “was helpful”.[6] The Job Capacity Assessment report on 13 April 2018 also noted that Mr Mani was waiting for a further 12 sessions of ECT treatment.

    [6] Exhibit T-T15, page 159.

26. On 31 March 2019, Mr Mani filed with the Tribunal a document completed by Dr Malik on 30 March 2019, which comprised a copy of Table 5 – Mental Health Function with a circle drawn around “10 points”. No further evidence about Mr Mani’s treatment or function during the claim period was provided to the Tribunal.

27. At the Tribunal hearing, Mr Mani stated that he continues to regularly see Dr Malik and a psychologist for treatment of his depression, and confirmed that he is still waiting to have further sessions of ECT treatment.

28. Based on the medical evidence before the Tribunal, I am satisfied Mr Mani’s condition of depression was fully diagnosed, but not fully treated and stabilised during the claim period because he was awaiting further treatment.

    Back pain

29. Medical imaging of Mr Mani’s lumbo-sacral spine on 4 April 2017 showed “mild multilevel lumbar spondylotic changes”.[7]

    [7] Exhibit T-T14, page 157.

30. Dr Graeme Mendelsohn (general surgeon and musculoskeletal consultant) reported on 13 November 2017 that Mr Mani first experienced back pain in 2016, which he attributed to his “altered gait from his knee problems”.[8]

    [8] Exhibit T-T17, page 169.

31. At the Tribunal hearing, Mr Mani confirmed he experienced back pain in 2016 that was treated with anti-inflammatory medication and physiotherapy. He said he continues to see a physiotherapist if required and has not been referred to a specialist for medical review or further treatment.

32. The report of Dr Georgis dated 18 July 2019 stated that Mr Mani’s spinal condition causes mild functional impact due “to the condition of his…knees with limitation bending and walking distance causing mild limitation range of movement…”[9] I find this report of Dr Georgis, dated more than 18 months after the claim period, refers to Mr Mani’s knee condition rather than his back pain.

    [9] Exhibit A6.

33. I find there is insufficient medical evidence before the Tribunal to show Mr Mani’s back pain was fully diagnosed, treated and stabilised during the claim period. For this reason, I cannot assign points for this condition in accordance with the Impairment Tables Determination.

    Right arm pain

34. Mr Mani fell and fractured his right wrist in 2015.  

35. Dr Powell reported on 4 April 2016 that Mr Mani fell and suffered an injury to his right wrist in July 2015. Mr Mani was treated conservatively with a six week period of cast immobilisation followed by a home exercise program but continued to experience mild tenderness and stiffness in his right wrist. Dr Powell also noted Mr Mani had a gunstock deformity of the right elbow following a childhood injury.

36. Mr Mani told the Tribunal he continues to experience soreness in his right wrist and avoids lifting items with his right arm, although he acknowledged that he holds his walking stick with his right hand. He uses his left hand to pick up items and is able to do up buttons and shoelaces.

37. I find there is a paucity of medical evidence before the Tribunal relating to this condition. There is no information relating to either any current medical treatment of Mr Mani’s right wrist or any functional limitations caused by the condition. For these reasons, the Tribunal is unable to find this condition is permanent and cannot assign points in accordance with the Impairment Tables Determination.

    Gastro-oesophageal reflux

38. A report by Associate Professor Christopher Pokorny (gastroenterologist) dated 23 August 2018 stated that a recent gastroscopy showed Mr Mani had “mild antral gastritis with the rest of the examination being normal”.[10] He further noted that Mr Mani’s reflux symptoms are well controlled on medication.

    [10] Exhibit T-T31, page 244.

39. As this report was written six months after the claim period, I cannot consider this condition for Mr Mani’s disability support pension claim.

    CONCLUSION

40. For the reasons set out above, I am satisfied that Mr Mani did not meet the requirements of paragraph 94(1)(b) of the Act during the claim period because his impairments were not rated at 20 points or more under the Impairment Tables.

41. As I find that Mr Mani did not qualify for the disability support pension during the claim period, it is not necessary to consider whether he had a continuing inability to work.

    DECISION

42. The decision under review is affirmed.

I certify that the preceding 42 (forty -two) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

............................[SGD]............................................

Associate

Dated: 13 September 2019

Date(s) of hearing:	3 September 2019
Applicant:	In person
Solicitors for the Respondent:	T Hibberd, Department of Human Services