Al Homedi and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2012] AATA 896

[2012] AATA 896

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/4921
Re	Mana Al Homedi
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Dr Kerry Breen, Member
Date	19 December 2012
Place	Melbourne

The Tribunal affirms the decision under review.

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

Dr Kerry Breen, Member

SOCIAL SECURITY – disability support pension – chronic renal failure – renal dialysis – condition not fully treated or stabilised – decision affirmed.    

Legislation

Social Security Act 1991 section 94(1)

Social Security (Administration) Act 1999

Tables for the Assessment of Work-Related Impairment for Disability Support Pension

REASONS FOR DECISION

Dr Kerry Breen, Member

19 December 2012

1. Mr Mana Al Homedi, 28 years old, applied to Centrelink for a disability support pension (DSP) on 11 November 2010. Centrelink is the service delivery agency for the Department of Families, Housing, Community Services and Indigenous Affairs. His application was supported by a treating doctor’s report (TDR) dated 9 November 2010. The TDR contained a diagnosis of chronic renal failure and an uncertain expectation of the impact of this condition on Mr Al Homedi’s ability to function. Mr Al Homedi provided an additional TDR dated 19 January 2011. On 24 February 2011 a Centrelink officer rejected Mr Al Homedi’s DSP claim.

2. Mr Al Homedi sought review of the original decision from a Centrelink authorised review officer (ARO), who affirmed it on 7 April 2011. He then applied to the Social Security Appeals Tribunal (SSAT) for a review of the ARO’s decision. The SSAT affirmed the ARO’s decision on 28 October 2011. On 17 November 2011 Mr Al Homedi applied to this Tribunal for a review of the SSAT decision.

3. The hearing was conducted with the assistance of an interpreter in the Arabic language.

   ISSUES

4. The issues to be determined are:

   ·Does Mr Al Homedi have a physical, intellectual or psychiatric impairment?

   ·What impairment ratings do his conditions attract? and

   ·If the total impairment rating is 20 points or more, what is the impact of these conditions on his capacity to work?

   The relevant assessment period is from 11 November 2010 and the subsequent 13 weeks in accordance with section 4(1) in Schedule 2 to the Social Security (Administration) Act 1999.

   LEGISLATION

5. The relevant legislation includes s 94(1) of the Social Security Act 1991 (the Act) and the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Impairment Tables) in Schedule 1B to the Act.

6. Section 94 (1) of the Act provides:

   94(1)    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)         one of the following applies:

   (i)       the person has a continuing inability to work; …

7. The Introduction to the Impairment Tables provides:

   4. A rating is only to be assigned after a comprehensive history and examination.  For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.  The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating.  In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.

   5. The condition must be considered to be permanent.  Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future.  This will be taken as lasting for more than two years.  A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years. .    

   6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:

   what treatment or rehabilitation has occurred;

   whether treatment is still continuing or is planned in the near future;

   whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.

   CONTENTIONS

8. Mr Al Homedi contends in brief that because he was very unwell, as at November 2010, he met the requirements for DSP at that time.

9. The respondent contends that Mr Al Homedi’s condition does not comply with the Act because his condition, as at November 2010, had not been fully treated and stabilised. Hence, it could not be considered permanent. The respondent made it clear to the Tribunal that neither the diagnosis of the condition nor the fact that the condition was causing disability at that time was in dispute.

   MEDICAL EVIDENCE

10. Mr Al Homedi, who is originally from Iraq arrived in Australia in 2009. In 2004 he donated a kidney to his brother who suffered from renal failure. Two years later, Mr Al Homedi was found to have impaired function of his remaining kidney. After his arrival in Australia, he was found to have advanced kidney failure. Initially, he resided in Sydney briefly and was under the care of a specialist. He then moved to Shepparton. In November 2010 Mr Al Homedi’s general practitioner, Dr Mazen Albatat, referred him to Goulburn Valley Health (GVH) where he was admitted because his kidney failure was causing symptoms.

11. The Registrar to the Department of Medicine at GVH, Dr K B Kashi, completed a TDR dated 9 November 2010. This report stated that Mr Al Homedi had been referred to GVH by his general practitioner because of GI symptoms and a rising creatinine level. Dr Kashi diagnosed Mr Al Homedi with chronic renal failure. He listed the current symptoms as feeling nauseated with worsening of kidney function. The hospital admission was of for five days. Dr Kashi wrote under the heading of Current treatment that he has been referred for AV fistula procedure to be started on dialysis. Under the heading of Future/planned treatment, he wrote patient has been referred for fistula formation procedure and will be started on dialysis in future. 

12. On 17 December 2010 Professor W Adam, consultant physician at GVH, wrote a letter regarding Mr Al Homedi to Dr Albatat. The letter stated in part:

    I reviewed Mr Alhomedi [sic] for his renal impairment. He says he feels well and indeed looks well. … I had a long discussion through an interpreter about the type of dialysis he might undertake and he was keen to delay this decision for another month. Given his general good health, on report and appearance, I think we have to delay dialysis a bit longer.

13. On 25 February 2011 Professor Adam reviewed Mr Al Homedi at the Specialist Consulting Suite at GVH and wrote again to Dr Albatat. In part, the letter stated

    …he feels okay but is tired. He is not very active but occasionally walks for half a mile, although sometimes needs a break to do so. His appetite is worse and his taste has deteriorated and he had one episode of nausea.

    Later in the letter he wrote:

    I think it is time to get Mr Alhomedi’s fistula in situ. He is travelling in the next few weeks so I am trying to organise it in about 4 weeks.

14. On 20 May 2011 Professor Adam wrote a letter addressed To whom it may concern. It said:

    Mr Alhomedi has end-stage renal failure and is about to start dialysis. At this stage he is quite symptomatic and unable to work. The transition to chronic dialysis is a difficult problem for patients and they are often unfit to work for some time. Their capacity to work in the future can only be made by reassessment at a later date (some months). Further complicating the matter, Mr Alhomedi will be put on the transplant programme with a similar unpredictability about work capacity.

15. In a medical certificate that contains the date of 16 June 2011 next to Mr Al Homedi’s signed authority to release medical information, Dr B La Brooy of St Vincent’s Hospital, Fitzroy certified a diagnosis of end-stage renal failure with symptoms of fatigue +++, nausea and shortness of breath. Dr La Brooy wrote that the treatment consisted of haemodialysis 3 x week for 4-6 hours. Although not formally dated, the certificate indicates that Mr Al Homedi was an inpatient at St Vincent’s Hospital between 7 June 2011 and at least 16 June 2011.

16. In his oral evidence, Mr Al Homedi recounted that prior to the surgical creation of a fistula in his arm (for dialysis), he had a procedure consistent with the placement in his neck of temporary vascular access for dialysis. He stated that he was then dialysed three times a week for four months before the surgical fistula was sited in his arm. He thought that this had happened early in 2010. This evidence created some confusion for the Tribunal. This form of treatment was not mentioned in the reports available to the Tribunal. As Mr Al Homedi was unsure of the dates of these events, the Tribunal adjourned the hearing pending receipt of more detailed medical information from St Vincent’s Hospital.

17. St Vincent’s Hospital subsequently provided a copy of 91 pages of the medical records of Mr Al Homedi. These contained copies of correspondence already before the Tribunal as well as some additional correspondence between doctors at GVH and St Vincent’s Hospital. This additional correspondence did not add to the Tribunal’s understanding of Mr Al Homedi’s state of health between 9 November 2010 and his admission to St Vincent’s Hospital on 7 June 2011. However, the records did explain Mr Al Homedi’s recall of a catheter having been placed in his neck.  The discharge summary dated 17 June 2011 completed by Dr B La Brooy makes reference to starting HDx via permacath and creation of L AVF. [Tribunal note: this translates as the use of a vascular catheter placed in a large vein in the neck (permacath) to be used for haemodialysis (HDx) for a number of weeks pending satisfactory healing of the surgical procedure of creating an arterio-venous fistula in the left forearm (L AVF)]. This record is consistent with Mr Al Homedi’s recall of the events but shows that these took place in June 2011 and not in 2010.

18. Mr Al Homedi also informed the Tribunal that in 2010 he was advised by Professor Adam that he should start home peritoneal dialysis. Mr Al Homedi explained that he was deeply opposed to this form of dialysis because he had seen his eldest brother suffer during such treatment. 

19. Mr Al Homedi’s Centrelink file contains three other TDRs. A TDR dated 26 August 2009 and signed by Dr S Z Ayoub of Campbelltown NSW, provided the diagnosis of stage IV kidney disease and listed Current symptoms as depressed mood as he is young with no future. Dizziness and headache when his blood pressure fluctuates.

20. A TDR dated 19 January 2011 and signed by Dr Amil Dewan of Market Place Medical Centre, Shepparton, lists Current symptoms as fatigue, chronic tiredness, bone pains & anemia [sic], fainting, hypertension.

21. A TDR dated 12 March 2011 and signed by Dr M Albatat of Nixon Street Medical Centre, Shepparton lists Current symptoms as recurrent nausea, vomiting & lethargy.

22. The respondent informed the Tribunal that Mr Al Homedi was granted DSP on 15 December 2011.

    CONSIDERATION OF THE ISSUES

23. It is clear from the medical evidence that at the time of his application for DSP, Mr Al Homedi had been diagnosed with advanced chronic renal disease and that at some time in the next few months he would need to commence treatment with renal dialysis. The respondent conceded that the diagnosis was not in dispute. The Tribunal finds that there is sufficient medical evidence to support the diagnosis and thus the applicant meets the requirements of s 94(1)(a) of the Act.

24. Under s 94(1)(b) of the Act, points under the Impairment Tables can only be allocated if a condition is deemed to be permanent. Paragraph 5 of the introduction to the Impairment Tables reads:

    The condition must be considered to be permanent.  Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future.  This will be taken as lasting for more than two years.  A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.

    While paragraph 6 reads: 

    In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:

    ·what treatment or rehabilitation has occurred;

    ·whether treatment is still continuing or is planned in the near future;

    ·whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years.

25. At and around the date of his DSP application (11 November 2010) the medical evidence as to Mr Al Homedi’s degree of disability is somewhat confusing.  In Professor Adam’s letter dated 17 December 2010, it states that he feels well. However, in a TDR completed by Dr Kashi, dated 9 November 2010, his current symptoms were listed as feeling nauseated with worsening of kidney function.

26. Mr Al Homedi’s condition then deteriorated. In a TDR dated 19 January 2011, Dr Dewan listed his current symptoms as fatigue, chronic tiredness, bone pains & anemia, fainting, hypertension. On 25 February 2011 Professor Adam described him as feeling okay but is tired.  On 20 May 2011 Professor Adam described him as having end-stage renal failure and is about to start dialysis. He wrote At this stage he is quite symptomatic and unable to work and made arrangements for him to commence dialysis.

27. Mr Al Homedi was being considered for renal dialysis at the time of his application for DSP.  As dialysis, a form of further reasonable medical treatment, did not commence for another six months approximately, his condition as at the time of the application and during the subsequent 13 weeks cannot be described as treated and stabilised. While his progressive renal failure is undoubtedly medically permanent, the condition does not meet the legal requirement of permanent since treatment in the form of regular dialysis and later transplantation can restore people to better health.

28. As his condition is not permanent, The Tribunal cannot allocate impairment points to the condition. Accordingly, Mr Al Homedi does not meet the requirements of section 94(1)(b) of the Act and his application must fail.

    DECISION

29. The Tribunal affirms the decision under review.

I certify that the preceding 29
(twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Dr Kerry Breen, Member.

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

Administrative Assistant

Dated 19 December 2012

Dates of hearing	12 October 2012 & 3 December 2012
Applicant	In person
Advocate for the Respondent	Ms Ailsa Bramley, Centrelink Program Litigation and Review Branch