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

[2017] AATA 1449

Dernaj and Secretary, Department of Social Services (Social services second review) [2017] AATA 1449 (13 September 2017)

Division:GENERAL DIVISION

File Number:           2016/5604

Re:Matthew Dernaj

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Miss E A Shanahan, Member

Date:13 September 2017

Place:Melbourne

The Tribunal affirms the decision under review.

........................................................................

Miss E A Shanahan, Member

SOCIAL SECURITY - pensions benefits and allowances – application for disability support pension – end stage renal failure – long term haemodialysis – no plan for renal transplantation – condition permanent, fully diagnosed but not fully treated and stabilised – impairment point rating not attracted – decision affirmed

Legislation

Social Security Act 1991
Social Security (Administration) Act 1999
Social Security (Active Participation for Disability Support Pension) Determination 2014

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

Cases

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

Secondary Materials

Guide to Social Security Law

REASONS FOR DECISION

Miss E A Shanahan, Member

13 September 2017

1. Mr Dernaj, now 44 years old, lodged an application for disability support pension (DSP) with Centrelink on 26 November 2015. The condition claimed as disabling was end stage chronic renal failure. A Centrelink delegate rejected the application on 28 March 2016. At Mr Dernaj’s request, an authorised review officer (ARO) reconsidered his claim and affirmed the determination on 29 June 2016. The ARO advised Mr Dernaj that as his condition was not fully treated and stabilised at the time of his application, an impairment rating could not be assigned for its impact on Mr Dernaj’s functioning.

2. Mr Dernaj lodged an application with the Administrative Appeal Tribunal, Social Security and Child Support Division (AAT 1^st Tier). The AAT 1^st Tier heard the application on 16 September 2016 and affirmed the ARO decision. The 1^st Tier found that Mr Dernaj’s renal failure was not fully treated and stabilised at the time of his application as required by the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).

3. On 18 October 2016 Mr Dernaj made an application to the General and Other Divisions of the Administrative Appeals Tribunal for a review of the 1^st Tier decision.   

4. At the hearing on 28 June 2017, Mr Dernaj was self-represented and Mr Pietro Nacion, a solicitor of Sparke Helmore, appeared for the Secretary, Department of Social Services (the Secretary). The Secretary provided the s 37 documentation (the T-documents, Exhibit R1) as required by the Administrative Appeals Tribunal Act 1975. Mr Dernaj gave evidence before the Tribunal.

   BACKGROUND TO THE APPLICATION

5. Mr Dernaj has not worked since 4 June 2013. He ran a business known as ADP Recruitment but stopped on the above date because of a shortage of work. He now lives with his parents, both of whom are invalids. His mother has cancer and his father has chronic renal failure for which he has been receiving haemodialysis for 15 years.

6. Mr Dernaj was diagnosed with end stage renal failure due to autosomal dominant polycystic kidney disease (ADPKD) on 13 November 2015. His father has the same condition, as did his grandfather and one or more of his uncles. 

7. On 12 November 2015 Mr Dernaj presented to the Accident and Emergency Department at Sunshine Hospital. He was admitted directly to the Intensive Care Unit as his preliminary investigations in the Emergency Department revealed a serum potassium level of 8.2 mmol/ltr with electrocardiographic evidence of widened QRS complexes necessitating urgent haemodialysis. His renal function tests were diagnostic of end stage renal failure with a Creatine level 10 times normal, a urea level 10 to 12 times normal and a glomerular filtration rate of 4mls per minute, the normal being greater than 60mls per minute. His serum calcium level was also dangerously low and the phosphorus level high. On arrival he had given a history of four days of itch, nausea and severe fatigue. No reference is made to his health status prior to 8 November 2015 by the hospital or his general practitioner, Dr Moosa.

8. Mr Dernaj rapidly responded to multiple runs of haemodialysis; and on 19 November 2015 a permacath was inserted into his right jugular vein and thereby into his superior vena cava to facilitate further outpatient haemodialysis. In addition, his fluid intake was restricted to 750mls per day and calcium supplements and monthly anabolic hormone injections for anaemia were prescribed. Screening tests for suitability for renal transplantation were conducted and no contrary indications were found. 

9. Over the past two years Mr Dernaj has had no fixed haemodialysis site and has had to take appointments wherever available. These have been in Sunshine, Williamstown or Sunbury. As a result he has had to drive varying distances to the dialysis unit. This has taken up to one hour each way on many occasions. He was receiving haemodialysis four days a week. In addition, access to his veins for dialysis has been plagued by complications and failures of surgically constructed arteriovenous shunts (referred to in some documents as fistulae). Peritoneal dialysis was mooted as an alternative to haemodialysis given the difficulty with access, although peritoneal dialysis is not recommended in polycystic renal disease. 

10. The first two surgical shunts failed in early 2016, one remaining patent for 24 hours and the other for one month. The first permacath inserted on the right side lasted for 12 months but then became infected and had to be removed. The second permacath inserted on the left side was removed in January 2017 and the catheter was found to be clotted. The second arteriovenous shunt on the left wrist was constructed in June 2016, revised in January 2017 and now functions well. Since January 2017 he has been fully anticoagulated with Warfarin because of the finding of a clotted permacath. His Warfarin medication was to be reviewed in late July 2017.  Mr Dernaj has not been placed on the renal transplantation list at Western Health. 

    EVIDENCE BEFORE THE TRIBUNAL

11. With the exception of a two-page discharge summary from Western Health and some attached biochemical and haematological results, all information has been provided by Mr Dernaj. Dr Moosa’s reports provide a diagnosis of renal failure and treatment of haemodialysis, with originally no comment as to prognosis or impact on his ability to function. In a letter dated 31 January 2017, Dr Moosa advised that Mr Dernaj was unable to work more than 15 hours per week.

12. Mr Dernaj confirmed his ongoing symptomatology of lethargy but stated he was able to do all of the activities of daily living. He still passed approximately 200mls of urine daily and admitted that on the day before he is due to have haemodialysis he will exceed his daily fluid intake restriction of 750mls as he feels better when more hydrated. On direct questioning by the Tribunal he confirmed that his kidneys were increased in size, the right more than the left; that he does get some loin pain; and that his potassium levels have been difficult to control. He confirmed that he had undergone echocardiography, this being indicated in PCKD (polycystic kidney disease) as it may be accompanied by incompetency of a heart valve. He had not had an MRI of his brain to exclude the presence of cerebral arterial aneurysms, the incidence of which is also increased in this condition. Mr Dernaj was aware that his father had been denied renal transplantation as he had been found to have a leaking valve. 

13. Mr Dernaj had been having haemodialysis four days a week. This had recently been reduced to three (Tuesdays, Wednesdays and Fridays), initially for five hours on each occasion; and now, at his request, for four and half hours on each occasion.  He arrives at the Outpatient Dialysis Unit 15 to 30 minutes before haemodialysis is due to commence and remains for about 30 minutes after it has finished, as haemostasis has to be confirmed before he is found fit to go home. This is because he is anticoagulated and at risk of bleeding. Depending on the location of the dialysis unit to which he is allotted, the total time expended with travel is around eight hours. Now that he has a permanent site at Sunshine, this time may decrease. 

14. Mr Dernaj was aware of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (POS) requirements. He had attended two employment providers but was excluded from their services on the basis that he owned a rental property. Mr Dernaj gave evidence that this property is mortgaged and he clears approximately $200.00 per month after mortgage and cost repayments. In the past eighteen months he has had to borrow money from relatives to pay his council rates and other charges. 

    DOCUMENTARY EVIDENCE

15. A job capacity assessment (JCA) was to be undertaken on 23 March 2016 by an exercise physiologist. This was to be a face-to-face interview. Mr Dernaj did not attend the interview as he was in hospital (Footscray Hospital) at the time, undergoing a further refashioning of his arteriovenous shunt. The exercise physiologist proceeded on the basis of the file provided and determined that while Mr Dernaj’s renal failure was permanent, it was not fully treated and stabilised as the options of peritoneal dialysis and renal transplantation remained available. Mr Dernaj’s capacity for work within two years with intervention was estimated to be 15 to 22 hours. Further medical treatment would increase his work capacity up to a possible 30 plus hours per week. Given this finding, an impairment rating was not attracted.

16. On direct questioning Mr Dernaj told the Tribunal that he had made several attempts to obtain detailed reports from Dr Moosa and Western Health but his requests had been refused.

    RELEVANT LEGISLATION

17. The criteria for qualification for the DSP are contained in s 94 of the Social Security Act 1991 (the Act):

    94 Qualification for disability support pension

    (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;

    (ii)the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and  ...

    A severe impairment will fall under a single table and be assigned an impairment rating of 20 points, obviating the need to have completed a program of support as required by the Act. Section 94(3B) states:

    Severe impairment

    (3B)A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

    Example 1:A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.

    Example 2:A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment.

    Example 3:A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.

    SUBMISSIONS

18. Mr Dernaj did not make formal submissions but relied on his evidence before the Tribunal.

    The Secretary

19. Mr Nacion identified the period under review, being the qualification period, as the date of the claim - 26 November 2015 - and the 13 weeks thereafter, until 25 February 2016 (Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs). He submitted that during this period Mr Dernaj’s end stage renal failure was not fully treated and stabilised as he was awaiting surgery for the construction of a fistula, had only recently commenced dialysis and was to be considered for a renal transplant. He conceded that Mr Dernaj met the requirements of s 94(1)(a) of the Act but as his renal failure was not fully treated or stabilised an impairment rating could not be assigned and therefore it was unnecessary to proceed to a consideration of his capacity for work. In light of the failure to satisfy s 94(1)(b), his failure to participate in a POS was of secondary importance; although had he done so it might go toward any further application for a DSP.

20. Mr Nacion urged the Tribunal to accept and rely on the JCA report of the exercise physiologist. 

    TRIBUNAL DELIBERATIONS

21. Mr Dernaj has a permanent life threatening condition, amenable only to long term haemodialysis or renal transplantation. His major symptom is unrelenting fatigue.

22. Currently, he spends three days of the normal working week undergoing haemodialysis allowing only Monday and Thursday for any possible work. The JCA identified suitable employment as work in the service industry. 

23. There is a paucity of medical evidence and opinion as to prognosis available to the Tribunal. This precludes the Tribunal from a finding other than that the requirements of s 94(1)(b) with respect to an impairment rating of 20 points has not been met during the qualifying period of 26 November 2015 until 25 February 2016.

24. As Mr Dernaj remains on long term haemodialysis, probably required for three to four days per week, and has not been placed on a waiting list for renal transplantation, he has been advised to lodge a new application for DSP.

25. The Tribunal affirms the decision under review.

I certify that the preceding 25 (twenty‑five) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

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

Associate

Dated: 13 September 2017

Date of hearing:	28 June 2017
Applicant:	In person
Advocate for the Respondent:	Mr Pietro Nacion
Solicitors for the Respondent:	Sparke Helmore Solicitors