David Crerar and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 207
[2013] AATA 207
| Division | GENERAL ADMINISTRATIVE DIVISION |
| File Number | 2012/3996 |
| Re | David Crerar |
| APPLICANT | |
| And | Secretary, Department of Families, Housing, Community Services and Indigenous Affairs |
| RESPONDENT |
DECISION
| Tribunal | Dr Kerry Breen, Member |
| Date | 10 April 2013 |
| Place | Melbourne |
The Tribunal affirms the decision under review.
[sgd].................................................................
Dr Kerry Breen, Member
SOCIAL SECURITY - disability support pension – end stage renal failure– hypertension with left ventricular hypertrophy – conditions permanent - 15 impairment points - decision affirmed.
Legislation
Social Security Act 1991 section 94(1)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 section 6
REASONS FOR DECISION
Dr Kerry Breen, Member
10 April 2013
Mr David Crerar suffers from chronic renal disease and associated health conditions. On or about 5 April 2012 he lodged a medical certificate with Centrelink, the service provider for the Department of Families, Housing, Community Services and Indigenous Affairs . On 11 April 2012 he lodged a claim for disability support pension (DSP) with Centrelink. The claim was supported by a Medical Report Disability Support Pension dated 10 May 2012, completed by his general practitioner.
Centrelink referred Mr Crerar for a Job Capacity Assessment, which was conducted on 24 May 2012. The assessor advised that Mr Crerar’s renal disease was fully diagnosed, treated and stabilised, as required under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and assigned the condition 10 impairment points. The assessor advised that Mr Crerar’s depression was temporary, and that he had a work capacity of 15 to 22 hours per week.
On 31 May 2012 a Centrelink officer rejected Mr Crerar’s DSP claim. On 28 June 2012 an authorised review officer (ARO) affirmed the Centrelink officer’s decision to reject the DSP claim.
On 11 July 2012 Mr Crerar applied to the Social Security Appeals Tribunal (SSAT) for a review of the ARO’s decision. The SSAT conducted a hearing on 4 September 2012, at which Mr Crerar gave evidence by telephone. The SSAT affirmed the ARO’s decision. Mr Crerar now seeks review of the SSAT decision by this Tribunal.
ISSUES
The issues to be determined are:
What permanent medical conditions does Mr Crerar suffer from?
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 5 April 2012 and the subsequent 13 weeks.
LEGISLATION
The relevant legislation includes s 94(1) of the Social Security Act 1991 (the Act) and the Impairment Tables. 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; ...
In order that a person’s impairment be assessed under the Impairment Tables, the medical condition(s) causing the impairment must be permanent and be more likely than not, in the light of available evidence, to persist for more than two years, as is provided in section 6 of the Impairment Tables which reads as follows:
6Applying the Tables
Assessing functional capacity
(1)The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.
Applying the Tables
(2)The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
Note:For additional information that must be taken into account in applying the Tables see section 7.
Impairment ratings
(3)An impairment rating can only be assigned to an impairment if:
(a)the person’s condition causing that impairment is permanent; and
Note:For permanent see subsection 6(4).
(bthe impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.
Permanency of conditions
(4)For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
Note: For fully diagnosed and fully treated see subsection 6(5).
(c)the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
…
THE EVIDENCE OF THE APPLICANT
Mr Crerar stated that he was first diagnosed with a kidney problem in 2009. His kidney disease is slowly progressive and he is likely to need some form of renal dialysis in the near future.
He was working full time on an assembly line but gave up this work in March 2012. He stated that he had to give up work partly because frequent medical appointments made it very difficult to continue and partly because of episodes of dizziness and fainting related to his renal failure and treatment for high blood pressure.
He first developed physical symptoms from renal failure a few months before he stopped work. His symptoms included swelling of his legs, which was made worse by prolonged standing, and dizziness when getting up from a seated position.
Mr Crerar stated that his high blood pressure was first recognised in 2009. He now takes six tablets per day for this problem. His blood pressure is controlled but episodes of dizziness remain a problem, particularly if he stands up too quickly. He has blacked out at home twice as a result of this.
Mr Crerar stated he has been told he has a slightly enlarged heart and had a scan of his heart done recently. He has been told his heart might get better after a kidney transplant operation.
Mr Crerar stated that he was diagnosed with depression shortly after he had to give up work. He said he felt very low at that time both over having to stop work and because of the diagnosis of renal failure. He has not received any treatment for depression.
Mr Crerar stated that his renal failure is getting worse and that he will probably need to start dialysis later this year. No decision has been made as to whether this will be by haemodialysis or peritoneal dialysis. He has been booked for the surgical procedure to create an arterio-venous fistula in his arm as a prelude to possible haemodialysis.
Mr Crerar stated that high potassium levels due to renal failure remain a problem and he has to take resonium powder every day to help keep this under control.
Mr Crerar stated that his renal specialist, Dr Danby, has told him that the waiting time for a donor kidney is between two to four years. He has not been placed on a waiting list for a kidney. He is hopeful that his sister may be able to donate a kidney to him. His sister has a ten-month old baby and because of this a donation will not take place until some undefined time in the future. In answer to a question from the Tribunal, he stated that his sister has told him that she does not think she will have any more children. (The Tribunal notes that this is relevant because if his sister was planning to have another child, donation of a kidney would be deferred.)
Mr Crerar stated that his health was a little bit worse now as compared to when he made the application for DSP. He is able to move around freely but has some swelling of the ankles. He lives with his parents. He is able to undertake light work such as watering the garden or weeding the garden for an hour or so but then feels cactus. He is able to do the shopping and can drive for 40 minutes for medical appointments. He lives in a separate unit at his parents’ home but has meals with his parents.
The Tribunal invited Mr Crerar to read the following account of his current symptoms as recorded by a Centrelink ARO in a telephone interview on 28 June 2012:
David stated he suffers from kidney failure. He said that although he was not on dialysis at present, he has been told this is inevitable. The condition leaves him very tired and lethargic and he becomes dizzy if he lifts anything too heavy or overdoes it.
I asked David about his daily activities. He stated he lives with his family. He stated he is able to do light household tasks such as light cleaning but nothing too heavy outside. He continues to drive and is able to do the grocery shopping. He confirmed that self care is unaffected.
David said he is able to walk around a shopping centre/supermarket without assistance. He said he is able to walk from the carpark to the shopping centre and, although doesn’t currently use public transport, he does not envisage any difficulties with this at present. He stated however that this would change once he was on dialysis.
David said he is able to perform light day to day household tasks (such as folding and putting away laundry), He said he does not have any difficulties sitting down but needs to be careful getting up due to dizzy spells as a result of medication he is taking.
David stated he is able to stand for approx 30 mins after which time he gets tired. He also said he is able to walk around for 30 mins or so before he has to rest.
Mr Crerar acknowledged that this was an accurate account of his symptoms at that time.
MEDICAL EVIDENCE
The written medical evidence before the Tribunal includes:
a Centrelink medical certificate completed and signed by Dr Elroy Schroeder, dated 23 March 2007;
a Centrelink medical certificate completed and signed by Dr Farhat Arjmand, dated 15 January 2009;
a Centrelink medical certificate completed and signed by Dr Schroeder, dated 5 April 2012;
a Medical Report Disability Support Pension form completed by Dr Schroeder. (The copy before this Tribunal is undated but in the body of the report mention is made of a physical examination conducted on 8 May 2012. In the index to the section 37 documents the date of the report is given as 10 May 2012);
a letter addressed to Dr Schroeder from the Department of Renal Medicine of Eastern Health (Box Hill Hospital) dated 19 June 2012 signed by Dr Sid Rajakaumar, nephrologist;
a letter addressed to Dr Schroeder from the Department of Renal Medicine of Eastern Health (Maroondah Hospital) dated 3 July 2012 signed by Dr Darren Lee, nephrologist;
an entry in the medical records of Mr Crerar made by Dr Danby on 3 April 2012;
an entry into the medical records of Mr Crerar made by Dr Danby on 29 November 2011;
a letter addressed to Dr Schroeder from Maroondah Hospital dated 25 August 2011 and signed by Dr Fei Fei Pan, Renal Registrar;
a letter addressed to Dr Schroeder from Maroondah Hospital dictated on 5 April 2011 and signed by Dr Fei Fei Pan, Renal Registrar;
a letter addressed to Mr Crerar from Dr Philip Danby, consultant physician and nephrologist, dated 3 September 2012.
Paragraphs 22 to 37 summarise the information contained in the written medical evidence. In March 2007, Mr Crerar’s general practitioner Dr Schroeder certified that Mr Crerar suffered from hypertension with symptoms of episodic dizziness. Dr Schroeder recorded that Mr Crerar had been his patient since November 2006.
In January 2009, Dr Arjmand of the Yarra Valley Clinic certified a diagnosis of hypertension, lower back pain and listed symptoms as pain, tiredness, dizziness.
In April 2012, Dr Schroeder certified that Mr Crerar suffered from 1 Renal failure/hypertension, 2 Depression and 3 Hyperkalaemia. Under the heading of Symptoms, for condition 1 Dr Schroeder wrote:
fatigue, very poor reanal (sic) function, attends Renal unit at Maroondah, being considered for dialysis and/or Renal transplantation.
For condition 2 he wrote low moods. For condition 3, he noted cardiac threat and later noted: The hyperkalaemia can cause sudden death.
In the Medical Report Disability Support Pension document of May 2012, completed by Dr Schroeder, the condition with the most impact was recorded as SEVERE RENAL FAILURE. Candidate for dialysis +/or Renal Transplant. Complicated by HYPERKALAEMIA + HYPERTENSION. The date of onset was given as 2007. Under the heading History, he wrote Patient has seen Dr Phil DANBY renal special NOW attends Renal Unit Maroondah Hospital. Current symptoms were listed as Fatigue low effort tolerance. In response to question H about how the condition affects the patient’s ability to function he wrote: poor endurance. poor employability patient will not pass preemployment medical.
In April 2011, Dr Pan, Renal Registrar at Maroondah Hospital wrote a letter to Dr Schroeder after reviewing Mr Crerar in Renal Outpatients. The letter states since last review he has remained well and then goes on to summarise the results of blood tests, findings on examination and immediate management plans.
In August 2011, Dr Pan wrote again to Dr Schroeder. In part, the letter stated David is generally going well. Since starting frusemide, his (sic) reports reduced SOA (The Tribunal interprets SOA as swelling of the ankles.) He denies dyspnoea, appetite remains stable. He remains fairly active – working in a factory (truck assembly) during the week.
The potassium (K+) level at this time was 5.3
The medical record entry of Dr Danby on 29 November 2011 notes mild anaemia with Hb 99 and Ferritin 109 as well as recent K+ of 6.5. Dr Danby added for 1g iron infusion.
The medical record entry of Dr Danby on 3 April 2012 notes I was called by lab last night.K+ of 7.0. Advised to take resonium last night and this morning.
The letter of Dr Rajakuamar of 19 June 2012 is detailed, presumably because as he noted:
David is usually seen at Maroondah Renal Outpatient Clinic but attended Box Hill to follow up issues related to dialysis and transplantation.
Dr Rajakuamar wrote:
He remains reasonably well with no lethargy, a good appetite, and no shortness of breath, no chest pain and no urinary symptoms. I note significant hyperkalaemia a couple of months ago which settled with a period of his ACE inhibitor and ARB. ... David says he recently quit his job due to the constraints of his numerous medical appointments.…
The letter of Dr Rajakuamar also notes in regard to kidney transplantation:
He will likely have a waiting time of 2-4 years for a deceased donor kidney following commencement of dialysis. ...
In the letter of 3 July 2012, Dr Darren Lee, nephrologist, wrote the following:
PROBLEM LIST:
1.CKD 4-5 secondary to IgA nephropathy with significant damage on biopsy
2.Hyperkalaemia on dual blockade
3.Hypertension
4.Smoker - ~ 5 cigarettes per day
5.Hyperlipidaemia
6.Severe LVH – speckled appearance but negative Congo red on renal biopsy and no paraproteinaemia; seeing cardiologist in August 2012.
(The Tribunal assumes that CKD means chronic kidney disease and that LVH means left ventricular hypertrophy). Dr Lee’s letter discusses issues around control of hyperkalaemia and blood pressure and around future management options but does not refer to any symptoms that Mr Crerar may have been experiencing at that time.
In his letter addressed to Mr Crerar dated 3 September 2012, Dr Danby summarised Mr Crerar’s medical problems as:
1.Near end stage renal failure secondary to burnt out glomerulonephritis. Your current creatinine is over 300. You have nephrotic range proteinuria.
2.Ongoing significant hypertension.
3.Early renal bone disease.
The letter went on to state:
You have had vein mapping and are currently being worked up for vascular access with a view to commencement of dialysis.
End stage renal failure and dialysis are a disabling constellation of problems. In Australia only a small percentage of people on dialysis are able to undertake employment. The majority are unable to work.
CONSIDERATION OF THE ISSUES
Based on Mr Crerar’s evidence, which is supported by the reports of Dr Schroeder and the renal specialists involved in the care of Mr Crerar, the Tribunal is satisfied that at the time of his application for DSP, Mr Crerar suffered from the conditions of end-stage chronic renal disease, hypertension with left ventricular hypertrophy and depression.
End-stage chronic renal disease
At the time of his DSP application, the medical evidence is clear that this condition was fully diagnosed. Although it is virtually certain, based on the reports of his treating nephrologists, that Mr Crerar’s condition will continue to slowly deteriorate to the point of needing dialysis and/or kidney transplantation, the Tribunal is satisfied that at the time of the application for DSP this condition had been fully treated and stabilised and can be deemed permanent for the purposes of the Social Security legislation.
There is no table in the Impairment Tables that specifically addresses disability secondary to renal disease. The respondent submitted that the appropriate table that applies to Mr Crerar is Table 1 - Functions requiring physical exertion and stamina. In the absence of any other applicable table and as Table 1 does refer to end stage organ failure as a condition commonly associated with extreme fatigue or exhaustion, the Tribunal accepts the use of this table to rate Mr Crerar’s degree of disability.
In her report dated 15 May 2012, the Job Capacity Assessor, Ms Mary Harris, determined, by applying Table 1, that Mr Crerar’s disability rating was 10 impairment points. Ms Harris’s determination was based on factors including symptoms of: fatigue, poor endurance … dizziness, tiredness, occasional blackouts. Noting that the next rating of 20 impairment points requires severe functional impact whereby a person: usually experiences symptoms (eg shortness of breath, fatigue, cardiac pain) when performing light physical activities, the Tribunal accepts and adopts the rating of 10 impairment points. This rating is also consistent with the description of symptoms and abilities given by Mr Crerar to the Tribunal and at an earlier date to an ARO.
Hypertension with left ventricular hypertrophy
From the medical evidence, it is clear that this condition has been fully diagnosed, fully treated and stabilised and can thus be deemed permanent for the purposes of the Social Security legislation. While hypertension is likely to be the cause of the observed left ventricular enlargement, and while the drugs used to control the hypertension are likely to be the cause of episodes of dizziness, there is no evidence that the hypertension of itself is the source of any symptoms or disability. It is possible that left ventricular enlargement is associated with some cardiac dysfunction, thereby contributing to fatigue and poor endurance. However, no medical evidence has been presented to the Tribunal in this regard.
Mr Crerar’s description of dizziness when standing up quickly, and of two blackouts experienced at home as part of this problem is, from the Tribunal’s own knowledge, consistent with the effects of medication for hypertension. Although the limited medical reports provided to the Tribunal do not mention this issue, the Tribunal accepts that blackouts have occurred as reported.
The relevant table under which this condition should be assessed appears to be Table 15 – Functions of Consciousness. Under this table, 5 impairment points are to be awarded when:
There is a mild functional impact from loss of consciousness or altered state of consciousness during waking hours when occupied with a task or activity.(1) The person:
(a)either:
...
(i) has rare episodes of involuntary loss of consciousness,
which:
(A)occur no more than twice per year; and
(B)do not usually require hospitalisation…..
Given Mr Crerar’s evidence of the frequency of dizziness leading to actual blackouts, the Tribunal assesses a rating of 5 impairment points to be appropriate.
Depression
From his own account, Mr Crerar described feeling low after being diagnosed with kidney disease and on having to stop work. He has not sought treatment for depression. Depression is not identified as a problem in any of the medical reports from the Eastern Health nephrologists. It is only mentioned in the Medical Report Disability Support Pension document of Dr Schroeder of May 2012 in passing under the heading of any other information in the terms of depression due to disability. Mr Crerar has not required medication for depression and has not required referral to a psychiatrist or psychologist.
It is thus not appropriate that this mild depression, experienced as a reaction to his other medical problems, should be deemed as permanent under the Social Security legislation. Even if the Tribunal is wrong in this regard and instead applies the Impairment Tables to this condition, the condition is causing no disability and would not attract any impairment points.
CONCLUSIONS
The Tribunal is satisfied that Mr Crerar suffers from the medical conditions of end-stage renal failure and hypertension with left ventricular hypertrophy.
The Tribunal is also satisfied that these medical conditions have been fully diagnosed, treated and stabilised and likely to persist for more than two years; and thus may be deemed to be permanent as required by s 94(1) of the Act. The Tribunal notes that there is a possibility that Mr Crerar will receive a kidney donated by his sister at some time in the future. As this is not confirmed and as the time that this might take place is currently unknown, in the Tribunal’s view, it is preferable to have regard to the more usual reasonable medical treatment of end-stage renal failure, which is to commence dialysis and to be placed on a waiting list for a donor kidney from a deceased person. Based on the report of Dr Rajakuamar, the waiting time for such a donor kidney is 2-4 years.
As his conditions of end-stage renal failure and hypertension with left ventricular hypertrophy are deemed permanent, the next requirement for DSP under s 94(1)(b) of the Act is for the conditions to be allocated 20 impairment points. Under Table 1, the Tribunal has allocated 10 impairment points for the condition of end stage renal failure. Under Table 5, the Tribunal has allocated 5 impairment points for the condition of hypertension and left ventricular hypertrophy. As this does not amount to 20 impairment points, Mr Crerar does not meet the requirement of s 94(1)(b) of the Act. Accordingly, his application for DSP cannot succeed.
Since the application fails on this ground, the Tribunal has not considered the issue of whether Mr Crerar has a continuing inability to work.
During the hearing the Tribunal noted that twelve months have elapsed since Mr Crerar first lodged his application for DSP. In that time it is quite possible that any disability associated with his medical conditions has increased. It is not open to the Tribunal to address this possibility at this hearing. It can only be dealt with by Mr Crerar making a new application for DSP.
DECISION
I affirm the decision under review.
| I certify that the preceding 53 (fifty‑three) paragraphs are a true copy of the reasons for the decision herein of Dr Kerry Breen, Member. |
[sgd]..............................................................
Dianne Eva - Administrative Assistant
Dated 10 April 2013
| Date of telephone hearing | 25 March 2013 |
| Applicant | In person |
| Advocate for the Respondent | Adrian Pascale, Program Litigation and Review Branch |
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