NDIS: Permanence of impairment / transplant list.

GXYZ and National Disability Insurance Agency [2020] AATA 3907 (on JADE) required the Tribunal to consider a number of issues regarding an applicant suffering IgA nephropathy with end stage renal failure, diabetes, depression and an anxiety disorder.

Of particular interest was the issue of whether the whether the impairments were permanent, in the sense of whether a potential renal transplant was likely to remedy the impairments. That issue was addressed at [82], with the conclusion at [91]:

Considering all the medical evidence, I find the applicant’s impairment of IgA nephropathy with stage V renal failure is, or is likely to be, permanent. In making this finding, I am satisfied the evidence of Drs ‘D’ and ‘E’ opine that the applicant’s IgA nephropathy is more likely than not to reoccur even if the applicant has a renal transplant. I also note that there is a significant level of uncertainty – and therefore some difficulty in predicting the likelihood and/or extent of ‘improvement’ – in relation to the applicant undergoing a kidney transplant: this includes the timeframe for the applicant undergoing transplant surgery because he is on a deceased donor waitlist; the effect of immunosuppression (including steroid) medication post-transplant surgery on his conditions of depression and anxiety as well as his diabetes; the risk of the IgA nephropathy reoccurring in the transplant kidney; and the period of time that the applicant will receive benefit from the transplant kidney.

The Tribunal held that the medical evidence indicates that the applicant’s impairment of IgA nephropathy with end stage kidney disease is permanent within the meaning of paragraph 24(1)(b) of the NDIS Actnotwithstanding that the impairment may vary in intensity and the severity of its impact on the functional capacity of the applicant may fluctuate.