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

[2016] AATA 426

Hussein and Secretary, Department of Social Services (Social services second review) [2016] AATA 426 (6 June 2016)

Division	GENERAL DIVISION
File Number	2015/4153
Re	Shamsiya Hussein
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Miss E A Shanahan, Member
Date	6 June 2016
Date of written reasons	24 June 2016
Place	Melbourne

For the reasons given orally at the conclusion of the hearing of this proceeding, the Tribunal affirms the decision under review.

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

Miss E A Shanahan, Member

SOCIAL SECURITY  - pensions, allowances and benefits – disability support pension – bronchiectasis secondary to tuberculosis – surgical treatment and embolization of bronchial arteries – continuing chronic cough and daily haemoptysis – dyspnoea on exertion – paucity of medical data – decision affirmed

Legislation

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

REASONS FOR DECISION

Miss E A Shanahan, Member

1. On 6 June 2016 an oral decision was handed down affirming the decision under review. The decision was based upon the medical data, opinions and functional capacity assessment then available to the Tribunal. 

2. The Tribunal had expressed its reservations in relation to the decision based on repeated Centrelink entries which did not reflect the diagnosis, the apparent lack of knowledge as to what bronchiectasis was both on the part of the treating general practitioner and other paramedical persons such as the Job Capacity Assessors (JCAs) and conflicting evidence as to when Ms Hussein had undergone various surgical procedures.

3. As a result of these concerns, the Tribunal advised Ms Hussein to submit a further application for the Disability Support Pension (DSP) immediately and suggested that the Respondent obtain further opinions and details of the previous treatment that Ms Hussein has undergone.

   BACKGROUND TO THE APPLICATION

4. On 16 February 2015 Ms Hussein lodged a claim for the DSP.   The medical report accompanying her claim was completed by Dr Monica Cooper who stated that Ms Hussein had bronchiectasis and asthma with decreased lung function.  The onset of the condition was said to be January 2005 and the treatment was antibiotic therapy with Klacid, what appears to be cyclosporine (although this is difficult to decipher) and the bronchodilator Seretide. 

5. Dr Cooper declared Ms Hussein’s past history to be lobectomy and embolization. Her current symptoms were said to be chronic cough, poor exercise tolerance and poor respiratory function.  It was advised that Ms Hussein had developed tuberculosis in 1993 and had suffered complications of that condition thereafter.  In terms of her ability to function, it was stated that Ms Hussein had poor endurance and was very sensitive to cleaning products.  Dr Cooper did not complete the questions relating to Ms Hussein’s ability to function over a period of time or any effect the condition might have in the longer term.

6. The JCA was performed by an exercise physiologist (the assessor) on 7 July 2014.  The assessor had stated the condition to be bronchiectasis with an onset in 2014.  The symptoms have been reported as proneness to chest infections, fatigue, shortness of breath, coughing up phlegm and occasionally blood.  Dust and chemicals were said to aggravate the condition. 

7. The assessor estimated Ms Hussein’s work capacity at the time of consultation to be 8 to 14 hours.  As her symptoms would lessen in the warmer weather, her baseline work capacity was assessed as 30 plus hours.

8. The assessor recommended light semi-skilled work and suggested employment in child care.  An impairment rating of 10 points based on the functional table, Table 1 of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011, was assigned.  

9. On 17 March 2015 the delegate of Centrelink rejected the claim for DSP and on 12 May 2015 an Authorised Review Officer (ARO) affirmed this decision.

10. On 23 July 2015, Member Grant (the Member) of the Administrative Appeals Tribunal (first tier review) affirmed the decision of the ARO.  This decision states that the lobectomy was performed in 2007, as was the craniotomy.  It also reports that in 2012 Ms Hussein was admitted to the Royal Melbourne Hospital on four to five occasions, and was told she might need further surgery in the form of a left upper lobectomy which would in fact result in all of her left lung having been resected. 

11. The Member expressed her difficulty relating to the decision making process, based on the fact that the treating general practitioner answered the question relating to life expectancy reduction in the negative.  This opinion was said to be inconsistent with the information given by Ms Hussein, who feared her illness was life threatening and considered Dr Cooper’s reports had not provided much information.

12. Based on the evidence, the Member determined that Ms Hussein only attracted 10 points as an impairment rating and thus affirmed the decision. The Member recommended that more detailed medical information be obtained from both Dr Cooper and the Royal Melbourne Hospital, clarifying Ms Hussein’s treatment history over the last few years and providing greater detail of the impact of her condition on her functional capacity.

13. On 14 August 2015 Ms Hussein lodged an application for second tier review by the AAT.

14. There is no evidence before this Tribunal that the above recommendations were acted upon.

    LEGISLATION

15. The criteria for DSP are outlined in s 94 of the Social Security Act 1991 (the Act) which states:

    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  ...

16. A severe impairment is defined in s 94(3B) which states:

    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.

17. The relevance of a severe impairment is that if one particular condition attracts an impairment rating of 20 points a program of support is not required to be undertaken.

18. The qualifying period in which this Tribunal may review the decision is defined in the Social Security (Administration) Act 1999 as being the period of application until 13 weeks thereafter.

    TRIBUNAL’S DELIBERATIONS

19. Based on the medical data and opinions provided, the Tribunal has no alternative but to affirm the decision under review. 

20. At the commencement of the hearing I conveyed my concerns to Mr de Uray.  I had been assigned as the Member to hear this application whether by design of pure happenstance.  I have 40 years’ experience in the diagnosis and treatment of bronchiectasis including having performed many lobectomies for localised disease. 

21. As a result of my experience, it was clear to me that Centrelink staff were unfamiliar with the condition, as was the JCA and the treating general practitioner.  While the current treating respiratory physician had provided more detailed reports he had not addressed Ms Hussein’s functional capacity, the severity of her lung disease, left blank details relating to provision of medical certificates and work capacity, did not explain what was listed under treatment as embolization, did not mention the fact that Ms Hussein had undergone a craniotomy for a brain abscess, nor were the reports of her CT scans of the chest (four since 2009) or the results of sputum cultures and lung function testing provided. 

22. I was perturbed that from 2000 to 2013 Ms Hussein had, with assistance of Centrelink and employment services, obtained full time work as a patient care attendant in a public hospital.  She had ceased work in approximately February 2013 as she could no longer cope with the physical demands of the work.  Throughout the period of employment she continued to have a productive cough and daily haemoptysis (coughing up blood). 

23. Dr Hammerschlag provided more details in a letter dated 24 November 2015, including information that Ms Hussein’s sputum had been colonised with an antibiotic resistant pseudomonas bacillus and that she was more prone to developing resistant organisms due to her work environment. 

24. I have not found any reports relating to sputum cultures for tuberculosis as it was a mycobacterium tuberculosis infection that caused her bronchiectasis and brain abscess.  Ms Hussein remains on anti-tuberculous therapy 20 years after the initial diagnosis.  As Ms Hussein worked in a hospital up until 2013 and the JCA has suggested she could currently work in child care, her sputum culture results and current infectious status are of great importance with respect to any further employment. 

25. I asked Ms Hussein many questions relating to her functional capacity.  Her physical activities are restricted to 10 minutes of slow walking, putting on the kettle and occasionally a saucepan.  In the winter she stays inside as directed by the Department of Respiratory Medicine at the Royal Melbourne Hospital.  She has not been out for a meal in a restaurant, pub or private home for four years and because of her symptoms she sleeps sitting up so that coughing and haemoptysis are limited. Her nephew lives with her and does all the cleaning and shopping and keeps a close eye on her state of health. Her brother Salem, who sponsored her migration to Australia, also provides assistance. He accompanied her to the hearing and gave evidence relating to the three years Ms Hussein spent in a refugee camp in Kenya where tuberculous was rife.

26. Bronchiectasis is an irreversible destructive process involving the bronchi and is often localised to a lobe when secondary to untreated or under-treated pneumonia but unfortunately may be more generalised and not amenable to surgery.  The word ectasia is derived from the Greek word meaning stretched.  As the result of prolonged infection the elastic tissue and cartilage in the bronchial wall is damaged and destroyed.  The lining of the bronchi (epithelium) is also damaged and the cilia lost and as a result sputum retention and secondary infection occur. The bronchial arteries become thin walled, tortuous and fragile. 

27. In Australia, bronchiectasis has greatly reduced in incidence with the ever increasing availability of antibiotics and medical awareness of the need for urgent and adequate treatment of severe consolidated pneumonia.  The vast majority of severe cases of bronchiectasis seen in Australia in the last 20 years (that is new cases of bronchiectasis) have been in the refugee/migrant population, particularly those from South-East Asia, the Middle East and Northern and East Africa. 

28. General practitioners would rarely see patients with bronchiectasis today.  Dr Cooper described Ms Hussein as having chronic bronchiectasis which is a misnomer as there is no such thing as acute bronchiectasis.  Centrelink staff have on several occasions listed Ms Hussein as suffering from bronchitis, a relatively innocuous condition. 

29. Ms Hussein has been advised to lodge a new claim for the DSP.  Mr de Uray has undertaken to obtain a more detailed report from the Royal Melbourne Hospital. 

30. The medical data required is;

    ·the results of sputum cultures;

    ·the results of CT scanning of Ms Hussein’s lungs;

    ·the results of Ms Hussein’s lung function tests done over several years;

    ·the details of the left frontal craniotomy she underwent for a  tuberculosis (TB) related brain abscess;

    ·is there current sputum infection which would pose a risk to other persons;

    ·Ms Hussein’s prognosis given that further surgery does not appear possible and bronchial artery embolization is not to be repeated. She was informed on 3 June 2016 that the embolization has not reduced the haemoptysis and was said to have caused further lung damage; and

    ·if all of the above information is obtained and considered, an assessment as to what types of work could she do given her shortness of breath, frequent hospital admissions, infective exacerbations and continuing haemoptysis.

31. The Tribunal affirms the decision under review based on the paucity of medical evidence available at the time of application and the following 13 week qualification period.

I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

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

Associate

Dated 24 June 2016

Date of hearing	6 June 2016
Advocate for the Applicant	Mr Salam Hussein
Advocate for the Respondent	Tim de Uray