Al-Hammad and Secretary, Department of Social Services (Social services second review)

[2015] AATA 682

Al-Hammad and Secretary, Department of Social Services (Social services second review) [2015] AATA 682 (23 July 2015)

Division	GENERAL DIVISION
File Number	2015/1314
Re	Asam Al-Hammad
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Miss E A Shanahan, Member
Date	23 July 2015
Date of written reasons	8 September 2015
Place	Melbourne

An oral decision affirming the decision under review was handed down on 23 July 2015.

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

Miss E A Shanahan

SOCIAL SECURITY - Disability Support Pension cancellation- successful cardiac surgery-excellent cardiac function-no explanation for symptoms- other conditions not fully diagnosed, treated and stabilised- no impairment points attracted-decision affirmed.

Legislation

Social Security Act 1991

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

REASONS FOR DECISION

Miss E A Shanahan, Member

8 September 2015

1. The Tribunal handed down an oral decision in this matter on 23 July 2015 which affirmed the cancellation of the applicant’s disability support pension.  The applicant’s response to this decision delivered to him via an interpreter was to feign a collapse and then leave the hearing room. I am informed by the hearing attendant that after he left the hearing room he was extremely agitated, angry and spat at the respondent’s legal representatives.

2. The applicant did not request written reasons. However,  I have decided to provide  brief written reasons for the oral decision, primarily to assist the applicant’s medical advisers with regard to the information required by the primary decision maker and the Tribunal in order to determine whether  the applicant qualifies for the disability support pension, should he choose to make another application.

3. The applicant came to Australia from Iraq in late 2010 on a refugee visa.  He lived with his cousin who cared for him and received a carer’s allowance from Centrelink.  The applicant’s wife and three children remained in Iraq.  They joined him in 2011.

4. The applicant has never worked.  He is thought to have suffered from rheumatic fever as a child and in his mid-teens was diagnosed with aortic incompetence.  When he was about nine years old he fractured his left elbow and received minimal medical treatment. As a result, he has a deformity of his left arm with reduced ranges of movement and reduced development of the limb.  In 2008 he travelled to Iran for open heart surgery.  His incompetent aortic valve was replaced with a mechanical prosthesis. He has taken the anticoagulant warfarin since this procedure.

5. Following his arrival in Australia, the applicant’s claim for the disability support pension was successful. He was assessed as having an impairment rating of 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011, because of recurrent aortic incompetence.  Over the following two years the degree of incompetence increased. He was investigated and found to have a para-valvular leak.  The aortic incompetence was associated with anterior chest pain and quite severe shortness of breath on exertion.  The applicant could only walk 100 to 150 metres before needing to stop and rest.

6. Following a full investigation the applicant underwent a further aortic valve replacement on 30 January 2013.  At operation the applicant was found to have a 2 cm x 3 cm detachment of the valve from the aortic annulus. The prosthetic valve was removed and replaced with a new mechanical valve.  On this occasion, the valve sutures through the aortic wall were buttressed to prevent recurrent leaking.  The applicant’s post-operative course was uncomplicated and he was discharged home on 7 February 2013.  His warfarin medication was continued.

7. The applicant gave evidence that his symptoms improved following this procedure but the improvement was short-lived.  He now claims that he has frequent episodes of chest wall pain, which he indicated related to his surgical incision and this is associated with shortness of breath.  His wife performs all tasks for him.  She bathes him, dresses him, assists him in walking and generally waits on him hand and foot.  This is in addition to caring for their four children.  The applicant also suffers from depression, low back pain radiating to both lower limbs and severe insomnia.  The applicant gave evidence that he does not sleep in a bed but always sleeps sitting up in a chair as he is frightened he will die if he lies flat.  The applicant informed the Tribunal that he had been told he may require further aortic valve surgery.  He said he had also been told that the main artery (presumably the aorta) was enlarged and measured 5.5 cm and should it get to 6 cm he would need to have the aorta replaced.

8. The applicant left school after completing grade 4 and is able to read and write a little in Arabic.  He has not had any training in English, although his children who are now at school in Australia do speak the language.

9. The applicant’s wife also gave evidence before the Tribunal.  She has been married to him for 10 years and they have four children aged 9, 8, 7 and 2. Throughout their marriage the wife has always provided the applicant with support including assisting him in walking. She does everything around the house.  Mrs Al-Hammad left school after year six and said she had lived in Iran for some years but stated that her husband had only been in Iran for his heart surgery.

10. The Tribunal was provided with a report from the Austin Hospital regarding the applicant’s aortic valve replacement.  The report confirmed that the procedure was uneventful.  Also provided was a report of an echocardiogram performed in April 2013. It revealed an excellent result following valve replacement. The applicant’s left and right ventricular function was now quite normal.  The applicant’s aortic root measures 5 cm in diameter and the ascending aorta is recorded as measuring just over 4 cm in diameter.

11. The report from the applicant’s general practitioner stated that he had aortic competence and was unable to work despite having had two aortic vulve (sic) replacements. No explanation was given for the applicant’s recurrent shortness of breath on exertion, his chest pain or his occasional palpitations.  Similarly, the applicant’s treating cardiologist has said that in view of the existing shortness of breath the applicant is unfit for physical activities; but he has not provided any explanation for the applicant’s dyspnoea either. The job capacity assessor who saw the applicant in September 2014 had discussed the medical reports with a doctor in the Health Professional Advisory Unit and was advised that there was insufficient information to explain the level of impairment the applicant claimed. The applicant’s other conditions were all assessed as not fully diagnosed, treated and stabilised and therefore not attracting an impairment rating.

12. The Tribunal accepts that the applicant was depressed.  However, he had not been seen by a psychiatrist or a clinical psychologist as required by the legislation.  The applicant was referred to a consultant psychiatrist and was seen on 13 April 2015.  The psychiatrist has diagnosed a chronic adjustment disorder with depression, secondary to the heart disease.  Treatment with an antidepressant has been commenced and the dosage of the medication is to be adjusted according to the clinical response. Clearly, the depression is not yet fully treated and stabilised.

13. As no medical evidence has been provided to the Tribunal to explain the applicant’s current chest pain, palpitations and shortness of breath, given the earlier objective evidence of an excellent physiological result following the aortic valve replacement, the applicant’s cardiac status cannot be assessed as fully diagnosed, treated and stabilised and therefore an impairment rating is not attracted.

14. The applicant clearly satisfies section 94(1)(a) of the Act in that he has both a physical and mental conditions. However, he does not satisfy 94(1)(b) of the Act and therefore it is not necessary to consider whether  he has a continuing inability to work.

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of:
Miss E A Shanahan, Member

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

Administrative Assistant

Dated   8 September 2015

Date of hearing	23 July 2015
Applicant	In person
Advocate for the Respondent	Mr J Henderson - Human Services