Bugno and Secretary, Department of Employment and Workplace Relations
[2005] AATA 788
•18 August 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 788
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2005/82
GENERAL ADMINISTRATIVE DIVISION ) Re MAREE BUGNO Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT & WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Mr S. Webb, Member Date18 August 2005
PlaceCanberra
Decision The decision under review is affirmed. ..............................................
Mr S. Webb, Member
CATCHWORDS
SOCIAL SECURITY - benefits and entitlements - disability support pension - variable undiagnosed symptoms - alternative therapies - condition not fully investigated, treated or stabilised - decision affirmed
Social Security Act 1991 s 94, Schedule 1B
Social Security (Administration) Act 1999 Schedule 2
Secretary, Department of Social Security v Pusnjak (1999) 164 ALR 572
Re Hudson and Secretary, Department of Family and Community Services [2000] AATA 502
REASONS FOR DECISION
18 August 2005 Mr S. Webb, Member 1. By this application Maree Bugno is seeking review of the decision by the Social Security Appeals Tribunal (“SSAT”) dated 7 March 2005 to affirm a primary decision by Centrelink to reject her claim for a Disability Support Pension (“DSP”).
2. The matter came on for hearing on 5 August 2005 in Canberra. Ms Bugno was not legally represented. The Respondent Secretary was represented by Mr Luke Carter, Centrelink Service Recovery Team. Ms Bugno and Ms Dierdre Doherty, Ms Bugno’s friend, gave sworn oral evidence. Materials were tendered and labelled for identification.
factual context
3. The following information is not in dispute.
4. Ms Bugno’s date of birth is 25 December 1957. She claimed DSP on 14 October 2002 (T12).
5. On 19 February 2003 Centrelink determined to reject her claim (T19).
6. On 12 February 2004 Ms Bugno signed a Medical Assessment Report in relation to DSP (T25).
7. On 29 September 2004 Ms Bugno attempted to ‘appeal’ the decision to reject her claim for DSP (T27). On 7 October 2004 she informed Centrelink that (T28):
“There is no further medical evidence to support my claim for payment – there is no change from the period 2002-2003 to the current time.”
8. On 6 December 2004 a Centrelink officer decided that the original decision to reject Ms Bugno’s claim for DSP was correct (T29). Ms Bugno requested review of that decision by an Authorised Review Officer (“ARO”) on 9 December 2004 (T31).
9. On 3 February 2005 an ARO decided that the original decision to reject Ms Bugno’s claim for DSP was correct (T36). Ms Bugno applied for review of that decision by the SSAT.
10. On 7 March 2005 the SSAT affirmed the ARO’s decision (T2). On 24 March 2005 Ms Bugno made application for review of that decision by the Administrative Appeals Tribunal (T1).
legislation and law
11. Ms Bugno’s application rises for consideration under the Social Security Act 1991 (“the Act”) and the Social Security (Administration) Act 1999 (“the Administration Act”).
12. In order to qualify for a DSP a claimant must have a physical, psychiatric or intellectual impairment that warrants a rating of 20 or more points under the Impairment Tables set out at Schedule 1B of the Act and a continuing incapacity for work (subs 94(1)).
13. A claimant must either qualify for a DSP on the day on which the claim is made or within 13 weeks thereafter (Clause 4, Part 2, Schedule 2, Administration Act).
issues for determination
14. As Ms Bugno lodged her claim for DSP on 14 October 2002, it follows that the period during which she must qualify for DSP if her application is to succeed is from 14 October 2002 until 14 January 2003 (“the qualification period”). The issues for determination in these proceedings are, with reference to the qualification period:
(a)Did Ms Bugno suffer from a physical, psychiatric or intellectual impairment?
(b)If so, was her impairment of 20 or more points under the Impairment Tables?
(c)If so, did she have a continuing inability to work?
15. Matters pursuant to subparagraphs 94(1)(d) and (e) are not in issue in these proceedings.
consideration and findings
16. In making this decision I have carefully considered all of the evidence, the submissions of the parties, the relevant caselaw and legislation.
17. The first question is whether Ms Bugno has a physical, psychiatric or intellectual impairment. The word ‘impairment’ is not given special meaning in the Act. The word is defined to mean “Any loss or abnormality of psychological, physiological or anatomical structure or function” (Taber’s Medical Dictionary, 18th Edition 1997) or “The action of impairing, or fact of being impaired; deterioration; injurious lessening or weakening” (Oxford English Dictionary, 2nd Edition 1998).
18. In order to determine whether Ms Bugno has an impairment it is necessary to carefully consider her reported symptoms and her relevant medical history.
19. Ms Bugno gave evidence that she suffers from chronic fatigue, migraines, depression, low immunity, food allergies, hormone imbalances, pain in various parts of her body, weakness in her legs and arthritis. She stated that she has difficulty thinking and her communication skills are deteriorating. She claimed that she has suffered from these or similar symptoms for many years.
20. Ms Bugno stated on 14 February 2002, when she made claim for DSP, that she did “not currently have a treating doctor and I have been seeing an acupuncturist for 5 years” (T14). In the DSP claim form she stated (T16 folio 70):
“I have been attending the Weston Acupuncture and Naturopathic Clinic … since 1997, mainly on a weekly basis. Since leaving work in March 2002 due to job restructuring, I had a break of a few months and then returned to the Clinic on a fortnightly basis.
I have tried medical doctors over the decades but there [sic] tests never show anything, and now I refuse to go! Having blood tests can trigger off migranes [sic] and my veins split when dye is injected into them. Also the dye given in X-rays has given me psoriasis of the skull. Besides my original problems, courtesy of the medical profession, I now have many more!”
21. Ms Bugno tendered extracts of her Medicare records since 1984 (Exhibit A, Attachment 5) from which it can be discerned that she has consulted a number of medical practitioners and has been the subject of a variety of medical tests and procedures since 1984. However there is only scant evidence concerning the results of any such consultations, tests or procedures. I note the X-ray reports by Dr N. Smith in 1992 and 1993 indicate endometriosis. Subsequent surgery confirmed that diagnosis in 1995 (Exhibit A, p1).
22. Thereafter and prior to the commencement of the qualification period, Ms Bugno was subjected to pathological testing in 1997, by request of Dr L. Hillman, and in 2001, by request of Dr P. Kwan (Exhibit A, Attachment 5, p7). The results of those pathological tests conducted by Dr G. Armellin and Dr I. Clark, respectively, are not in evidence. Nor is there evidence that Drs Hillman or Kwan made any diagnoses or recommended treatment on the basis of those tests. On 14 February 2002 Dr D. Morewood conducted a CT Chest examination by request of Dr Kwan (Exhibit A, Attachment 5, p8). The results of that examination and any opinions Dr Kwan may have formed subsequently are not in evidence.
23. Dr S. Singh referred Ms Bugno for pathological tests on 4 February 2003 and subsequently Dr T. La referred her for pathological tests on 21 May 2003. In both cases a suite of tests were conducted by Dr N. Taylor. On 27 May 2003 Dr I. Duncan performed an ultrasound of Ms Bugno’s abdomen. She underwent an “IVP” test performed by Dr R. Allen on 2 June 2003 and consulted Dr P. Collignon, Physician, on 20 June 2003. The results of those tests (Exhibit A, Attachment 5, p8) are not in evidence.
24. On 11 February 2004 Dr Duncan performed an ultrasound of Ms Bugno’s pelvis (T24). He reported a lesion on the right ovary and recommended a further scan in three to six months time.
25. Ms Bugno’s evidence was that she has given up on doctors and relies, instead, on alternative therapies. Nonetheless, she tendered medical certificates of Dr C. Brown, dated 16 December 2004 and 18 July 2005, and of Dr K. Johar , dated 6 June 2005 (Exhibit A, Attachment 6), stating that she obtained the medical certificates for Centrelink purposes. Dr Brown certified that Ms Bugno was unfit for work from 16 December 2004 to 10 March 2005 and from 18 July to 18 October 2005, and recorded the following ‘diagnosis’ in the certificate date 12 December 2004:
“Complex set of symptomatology, both physical and mental. Exact diagnosis uncertain. Pathological testing not rewarding.”
In the certificate dated 6 June 2005 Dr Johah diagnosed chronic fatigue syndrome and certified that Ms Bugno was unfit for work from 6 June to 6 September 2005.
26. Ms Bugno tendered evidence of her numerous and frequent attendances at the Weston Acupuncture and Naturopathic Clinic since 1997, where she consulted Mr Ben Cella. Ms Bugno stated that Mr Cella had not given any diagnosis of her symptoms but treated her for “Ying on Ying”. She was unable to explain the meaning of that term. In her written statement Ms Bugno stated (Exhibit A, p2):
“In 1999, while being attended to by Mr Ben Cella … I was given a VEGA pathological test. It showed I have malaria, ross river virus and meningitis. Also, my body had too high levels of potassium, magnesium and calcium…
Mr Cella considers the results of the VEGA testing system to be too confidential and not to be released…
To get similar pathological test results acceptable to an Australian GP, I would need to undergo a spinal tap procedure. Physically and psychologically, I am unprepared for this.”
27. On 14 November 2002 Ms Nicole Cella reported (T13):
“Marie Bugno has attended this clinic from 1997 to this date suffering from various complaints such as Allergies, Joint pains, hormone imbalances causing depression.
Maria [sic] finds it difficult to work for eight hours due to her inability to stand or sit for long periods. She benefits greatly from Acupuncture and Remedial Massage and natural nutrients.”
28. Mr Cella advised Ms Bugno to rest from 4 May 2003 to 4 August 2003 (T21), from 4 November 2003 to 4 February 2004 (T22) and from 23 January 2004 to 23 April 2004 (T23).
29. Ms Bugno tendered statements by Ms Ev Miller and Ms Annegret Schelb, both undated (Exhibit A, Attachments 2 and 4 respectively). Ms Bugno gave evidence that Ms Miller has treated her with electrolysis for a number of years and that Ms Schelb is providing “bioenergy treatment”. Ms Schelb, whose qualifications are not in evidence, stated (Exhibit A, Attachment 4):
I have known Maree Bugno from Duffy since 23 January 2005 and have been treating her for a variety of symptoms including long term Chronic Fatigue Syndrome (CFS).
According to my assessment of her health she is suffering mainly from a nervous disorder brought about by CFS which impinges greatly on her digestive tract and causes disorder in her glandular and hormonal system. This in turn affect [sic] her cognitive abilities in terms of clear thinking and the ability to make sound decisions.
My main focus of treatment has therefore been the endocrine system as well as addressing liver and digestive functions. Both of these areas are a major issue in chronic fatigue cases.
It is my professional opinion that at this stage of the treatment Ms Bugno is too unstable to hold down a working position but, given time for further treatment, she should be able to make a recovery and hopefully be able to resume work.
I have treated both men and women with chronic fatigue for 15 years and have never seen a case where recovery time was speedy. It always seems to be an uphill battle and can take years…”
30. There are two reports in evidence by Dr I. Richards, Health Services Australia, (T17 and T25). Ms Bugno asserted that she was not examined by Dr Richards for Health Services Australia, but was examined by a female “Dr Rodriguez”. I directed the respondent to clarify this point with health Services Australia during the hearing and was informed that verbal confirmation had been given over the telephone that the Health Services Australia records indicate that Dr Richards assessed Ms Bugno. On that basis I will consider Dr Richards’ assessments.
31. On 4 December 2002 Dr Richards made the following assessments (T17 folios 74 to 76):
“Joint pains/allergies … Impairment Table 20 … condition not stabilised
Endometriosis … Impairment Table 20 … not stabilised
Depression … Impairment Table 6 … not stabilised”
He reported the following barriers to economic and social participation (T17, folio 80):
“Physical limitations - Symptoms may impact upon full time work.
Psychological – Impacts on ability to carry out work.
Jobs seeking skills – obtain employment independently.”
Dr Richards concluded (T17, folio 85):
“Ms Bugno complains of joint pains, abdominal cramps associated with her periods, multiple allergies and depression. In the absence of any clinical data including investigations I am unable to make any definite conclusions. (No TDR).
However, feel that symptoms of depression is [sic] a major contributory factor to her present condition. She declines medical management of her condition other than by alternate medical therapists.
I am of the opinion her condition is temporary and she is not fit for full time work at the present time. She should be recovered in 6/12.”
32. On 12 February 2004 Dr Richards made the following assessments (T25 folios 99 to 101):
“Chronic Fatigue Syndrome … Impairment Table 20 … mild to moderate symptoms impacting on ability to perform work related duties … Not stabilised. I will require more information and treating doctor reports.
Chronic pelvic pain – premenstrual tension … Impairment Table 22 … Regular frequent symptoms, decreased ability to carry out every day activities… Condition not stabilised.
Breast pain … Impairment Table 20 … Minimal impact … Permanent.”
33. On the basis of careful consideration of the foregoing and Ms Bugno’s oral evidence, I am reasonably satisfied that she had a physical and psychological impairment on the day she made her claim for DSP. It is not possible on the available evidence to determine with any certainty the precise nature of her impairment. However, I accept that Ms Bugno suffered from symptoms that impaired her physical and psychological functions during the qualification period.
34. The absence of a specific diagnosis does not reduce the extent of Ms Bugno’s impairment at that time. The concept of impairment at subparagraph 94(1)(a) should not be given a narrow construction (see Secretary, Department of Social Security v Pusnjak (1999) 164 ALR 572 at 579, par 27). The subparagraph directs attention to the character of impairment, that is, being of a physical, psychiatric or intellectual character, whereby physical, psychiatric or intellectual function is impaired. It is not necessary to consider questions of severity or degree at this stage. What is required is evidence of impairment of the requisite character.
35. It follows that Ms Bugno satisfies subparagraph 94(1(a) of the Act.
36. The next question is whether Ms Bugno’s impairment is of 20 or more points under the Impairment Tables set out at Schedule 1B to the Act.
37. The preamble to the Impairment Tables relevantly states:
“2. These Tables are designed to assess impairment in relation to work and consist of system based tables that assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance. These Tables are function based rather than diagnosis based... The question which must be asked in each and every case is "which body systems have a functional impairment due to this condition?"
…
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.In this context, reasonable treatment is taken to be:
treatment that is feasible and accessible ie, available locally at a reasonable cost;
where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.
In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the medical officer should:
evaluate and document the probable outcome of treatment and the main risks and or side effects of the treatment; and
indicate why this treatment is reasonable; and
note the reasons why the person has chosen not to have treatment.” (Emphasis added)
38. Before considering the specific tables that may be relevant in this case, it is necessary, therefore, to determine whether Ms Bugno’s impairments arise from a condition that had been fully investigated, treated and stabilised, and was permanent, either by the date she lodged her claim for DSP on 14 October 2002 or within the qualification period thereafter. It is at this point that diagnosis of the cause of impairment is relevant. Diagnosis is part of the medical process of investigation of impairment which includes the development of treatment options and a prognosis. As the preamble to the Impairment Tables makes clear, the Tables are not based on diagnosis, but go to the impairment of function. For that reason, what is required for the purpose of subparagraph 94(1)(b) is evidence of a comprehensive history of medical investigation and examination of the impairment. In that context, diagnosis may identify the nature of the impairment rather than, necessarily, identifying a particular disease or cause of impairment, even though that would commonly be the case. It follows, that subparagraph 94(1)(b) does not require the diagnosis of a specific disease, but does require diagnosis and documentation of the nature of impairment, even if, as may uncommonly occur, the collective symptoms by which the impairment is manifest cannot be described within the label of a particular disease (Re Hudson and Secretary, Department of Family and Community Services [2000] AATA 502).
39. As will appear, I am satisfied that the nature of Ms Bugno’s impairment was not fully diagnosed, documented, investigated, treated or stabilised on the day she claimed DSP or within the thirteen week qualification period thereafter.
40. The medical evidence is that investigations into Ms Bugno’s symptoms were on-going during the qualification period and thereafter. Dr Taylor conducted pathological tests in February and May 2003. As can be seen from Exhibit A, Attachment 5 pp 8 and 9, investigations have continued until at least March 2005.
41. Even by Ms Bugno’s own account, her condition deteriorated despite Mr Cella’s efforts and she commenced new treatment in January 2005 with Ms Schelb, which she claims is beneficial and may result in improvement. Ms Bugno stated that she expected to be able to return to work but requires a period of time in which to address her health issues and recouperate.
42. Considering all of the evidence I am unable to find that a comprehensive investigation of the nature of Ms Bugno’s impairment was completed prior to or during the qualification period. Her impairment was not fully diagnosed, documented, investigated, treated or stabilised at that time. I so find.
43. Endometriosis was diagnosed and treated in 1995. On Dr Duncan’s report that condition persisted to 2004 and warranted further investigation thereafter. Dr Richards accepted that Ms Bugno suffered from joint pains, allergies and depression in December 2002, but found that those conditions were not stabilised. That is perhaps unsurprising as investigations into the cause of those symptoms were ongoing at that time.
44. Ms Bugno may seek relief in the terms of the preamble I have set out above, on the basis that she refused medical treatment that was a high risk or which caused unacceptable side effects. However, even if I accepted that certain medical treatments were not reasonable treatments in her case, and I make no such finding, it would then be necessary to consider whether other medical treatments with a high success rate and a low risk are available to Ms Bugno. In relation to depression, for example, Ms Bugno asserted that she would not take antidepressant medication because she is allergic to it. Despite there being no evidence to support her claim, an alternative treatment, psychological counselling, is regularly employed by medical practitioners in the treatment of depression. In December 2002 Dr Richards recommended psychological counselling as appropriate treatment in this case, and expected significant improvement in three to six months. However, Ms Bugno chose not to pursue such treatment.
45. Ms Bugno clearly stated that she is dissatisfied with the failure of her doctors to diagnose or treat her condition. Nonetheless, absent a comprehensive history of clinical investigation, examination and assessment of her impairment, it is not possible to make an assessment whether her impairment is stable or susceptible to improvement by treatment within the next two years.
46. Carefully considering all of the evidence, I am reasonably satisfied that Ms Bugno’s impairment was not fully diagnosed, documented, investigated, treated and stabilised prior to or during the qualification period, and so find. Her condition was not permanent at that time and cannot properly be assessed under the Impairment Tables. It follows that Ms Bugno does not satisfy the requirements of subparagraph 94(1)(b) of the Act and, unfortunately f or her, her claim must fail.
47. It is not strictly necessary to proceed to consider whether Ms Bugno had a continuing inability to work during the qualification period pursuant to subparagraph 94(1(c) of the Act. I note, however, that Ms Bugno claimed that she had suffered from her impairment since at least 1994. By her own evidence she was employed by the Attorney General’s Department in the Australian Government Solicitor’s division on a full time basis until March 2002, at which time she was made redundant. Ms Bugno has not been in employment since that time.
48. That being so, Ms Bugno was able to work on a full time basis despite the symptoms of impairment she suffered prior to March 2002. In all likelihood the loss of her long term employment in the public service and her subsequent difficulty obtaining employment may have played a significant part in the progress of her health complaints. By Ms Bugno’s own account she lost her ability to work full time in a matter of months after losing her job. In her oral testimony she steadfastly asserted that she would not contemplate any form of part time work because she claimed she is unable to establish a routine in part time employment.
49. That evidence must be considered in relation to the assessment of her ability to work or to undertake training in the requisite number of hours per week by medical practitioners during the qualification period. I note that that evidence, at that time, indicates a present unfitness for full time work and an assessment that she would be able to undertake the required amount of work or training within two years of the qualification period. It is reasonable to interpret that assessment on the basis of appropriate treatment being obtained, as recommended by Dr Richards, for example. Ms Bugno chose not to pursue that treatment, opting instead to obtain acupuncture, massage and herbal remedies. By her own evidence her condition has deteriorated. In the absence of appropriate and reasonable medical treatment it is perhaps unsurprising that Ms Bugno continues to be unfit for work (certificates of Dr Brown and Dr Johar).
50. The essential question, therefore, is: what is reasonable medical treatment for Ms Bugno’s impairment? It is not sufficient for Ms Bugno to claim that she is allergic to an array of medications or that she is frustrated with doctors. She may be allergic, as she claims, but I am unable to find so in the absence of reliable evidence. It may be that certain treatments are a high risk for Ms Bugno, but there is no reliable evidence of that before me. While it is open to Ms Bugno to choose her treatment, for present purposes she may decline a treatment if it is not reasonable and still succeed. In this case, however, I am not satisfied that the treatments Ms Bugno chose to decline, such as psychological counselling, anti-depressant medication and systematic medical assessment of her health status, were not reasonable treatment for her in the circumstances.
51. I am reasonably satisfied that Ms Bugno was not qualified for the DSP either on the date she lodged her claim or within the thirteen week qualification period thereafter. It follows that the decision under review must be affirmed. I note that this decision does not preclude Ms Bugno from lodging another claim for DSP.
decision
52. The decision under review is affirmed.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
Signed: .....................................................................................
AssociateDate/s of Hearing 5 August 2005
Date of Decision 18 August 2005
Representative for the Applicant Self
Counsel for the Respondent
Solicitor for the Respondent
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