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

[2018] AATA 4536

Burmas and Secretary, Department of Social Services (Social services second review) [2018] AATA 4536 (6 December 2018)

Division:GENERAL DIVISION

File Number:          2018/1975

Re:Agi Burmas

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member C Edwardes

Date:6 December 2018

Place:Perth

The AAT1 decision is affirmed.

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

Member C Edwardes

CATCHWORDS

SOCIAL SECURITY – disability support pension – medical conditions – migraine – fibromyalgia – depression/anxiety – gastroenterological – qualification period – impairment tables – no program of support – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) – s 94, s 94(1), s 94(1)(a), s 94(1)(b), s 94(1)(c), s 94(1)(c)(i), s 94(2), s 94(3B), s 94(3C)

Social Security (Administration) Act 1999 (Cth) – s 179, Sch 2 cl 4 (1)

CASES

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

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Harris v Secretary, Department of Employment and Workplace relations (2007) 158 FCR 252

Ulukut and Secretary, Department of Social Services [2014] AATA 399

SECONDARY MATERIALS

Social Security (Active Participation for Disability Support Pension) Determination 2014 – s 5, s 7(1), s 7(2)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – s 6(5), s 6(6), s 6(7), s 7, s 8, s 8(1), s 9, s 10, s 11, s 11(1)(c), Table 1

The Guide to Social Security Law

REASONS FOR DECISION

Member C Edwardes

6 December 2018

THE APPLICATION

1. This is an application for review of a decision of the Social Services & Child Support Division of the Tribunal (AAT1) made on 20 March 2018. AAT1 affirmed a decision to reject the Applicant’s claim for Disability Support Pension (DSP) which was lodged by the Applicant on 22 May 2017 (T13, page 149-176).

   INTRODUCTION

2. On 22 May 2017, the Applicant lodged a claim for DSP, detailing medical conditions of “Fibromyalgia, Migrains (sic), Cluster Headaches, Tension Headaches, Weather Headaches, Gluten Intolerance, I.B.S [Irritable Bowel Syndrome], Hypoglycaemia, Panic Attacks” (T13, page 172).

3. The claim was rejected by a Centrelink officer and the Applicant was advised of this rejection by letter dated 19 September 2017 (T15, page 188). The rejection of the claim was on the basis that the Applicant had been assessed as not having an impairment rating of 20 points or more.

4. The Applicant requested review of the Centrelink officer’s decision (T19, page 192). The review was undertaken by an Authorised Review Officer (ARO) and the Applicant received notification of the review outcome on 27 October 2017, which was to affirm the Centrelink officer’s decision (T20, page 193-198).

5. The ARO advised the Applicant of a number of findings (T20, page 194):

   Your conditions of fibromyalgia, migraine and irritable bowel syndrome are not accepted as being fully treated and stabilised.

   Your total impairment rating is 0 points.

   You do not have an impairment rating of 20 points or more.

   You do not have a continuing inability to work 15 hours per week or more because of your impairment.

6. The Applicant subsequently lodged an application with AAT1 to review the decision on 12 January 2018 (T26, page 211-213). AAT1 affirmed the decision on 20 March 2018 (T2, page 3-13). AAT1 determined that the Applicant had generated an impairment rating of 10 points under the Impairment Tables.

7. In regards to the Applicant’s condition of “migraine”, AAT1 determined that the condition was fully diagnosed, but not fully treated and stabilised. AAT1 determined that the Applicant’s condition of “fibromyalgia” was fully diagnosed, treated and stabilised, and generated an impairment rating of 10 points. In regards to the Applicant’s condition of “depression/anxiety”, AAT1 determined that the condition was fully diagnosed, but not fully treated and stabilised.

8. The Applicant lodged an application for review of AAT1’s decision with the General Division of the Administrative Appeals Tribunal (the Tribunal) on 16 April 2018 (T1, page 1-2).

9. The Applicant submitted the following as her reasons for lodging an application for review:

   Because I did not accept Botox I received zero points and was told that I have not been fully treated. I believe that Botox would not benefit me because it does not guarantee success and as I have severe side affects (sic) from medications there is no guarantee that I would not have severe side affects (sic) to Botox. I believe that I have been fully treated. The psychologist has stated that there is no cure for depression and anxiety. The reason I continue to see her is not to get a cure but to maintain my mental health. I believe that I have been fully treated.

10. The Tribunal has jurisdiction to hear this application pursuant to s 179 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act), which states:

    (1)  Application may be made to the AAT for review (AAT second review ) of a decision of the AAT on AAT first review made under subsection 43(1) of the AAT Act.

    RELEVANT LEGISLATION

11. The relevant provisions governing eligibility for DSP are contained in the Social Security Act 1991 (Cth) (the Act) and the Administration Act.

12. Section 94 of the Act provides the criteria for DSP, relevantly:

    1A 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:

    (d)the person has a continuing inability to work;

    (e)…

    Assessing impairments and assigning an impairment rating

13. The Impairment Tables referred to in s 94(1)(b) of the Act are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination). The tables contained within the Determination are referred to as the “Impairment Tables”.

14. Section 94(1)(b) of the Act obliges the Tribunal to determine whether the Applicant’s impairments are worth 20 points or more under the Impairment Tables. In Ulukut and Secretary, Department of Social Services [2014] AATA 399, Senior Member Isenberg explained the operation of the Impairment Tables as follows:

    5. … The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition: s 3 of the Determination. A claimant’s impairment is to 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: s 6(1) of the Determination.

    6. The Tables may only be applied after the person’s medical history has been considered. An impairment can only be allocated if a condition is permanent, ie fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination. (Original emphasis.)

15. Section 6(5), s 6(6) and s 6(7) of the Determination provide further guidance in assessing whether or not a condition is permanent. Section 8(1) of the Determination stipulates that symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.

16. Sections 7 to 11 of the Determination provide guidance in how to assess information and evidence using the Impairment Tables and how to assign impairment ratings. In particular, s 11(1)(c) of the Determination states that “if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied…”

    Continuing inability to work

17. As detailed above, in s 94(1)(c)(i) of the Act a criterion for qualifying for DSP is that the person has a “continuing inability to work”. Pursuant to s 94(2) of the Act:

    (2)  A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

    (aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support -- the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and

    (a)in all cases -- the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

    (b)in all cases -- either:

    (i)       the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

    (ii)       if the impairment does not prevent the person from undertaking a training activity -- such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

    (Emphasis added.)

18. “Severe impairment” is defined in s 94(3B) of the Act:

    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. (Original emphasis.)

19. Section 94(3C) of the Act states that a person has “actively participated” in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister. 

20. Relevantly, s 5, s 7(1) and s 7(2) of the Social Security (Active Participation for Disability Support Pension) Determination 2014 require, generally, that a person is to participate in a program of support (POS) for 18 months in the 36 months prior to the date of the relevant claim for DSP. 

    QUALIFICATION PERIOD

21. Section 94 of the Act must be read in conjunction with Sch 2 cl 4(1) of the Administration Act. In accordance with the requirements in Sch 2 cl 4(1) of the Administration Act, there is a 13 week qualifying period for DSP. The Tribunal is required to determine the Applicant’s claim for DSP in the 13 week period commencing on the day on which the Applicant’s claim for DSP was registered by Centrelink, and concluding 13 weeks after that day. In the present case, the Tribunal finds the 13 week period is from the 22 May 2017 to 21 August 2017 inclusive, and is known as the “Qualification Period”.

22. For a claim to be successful, a person must be qualified for DSP during the Qualification Period. Changes in medical conditions that occur later are not relevant to the claim. They may however, be relevant to a future claim (See Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34] and Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 at [1].

23. The Tribunal is also assisted by The Guide to Social Security Law (the Guide). The Guide provides assistance to those who administer the Act. Whilst not bound to apply policy guidelines, the Tribunal will usually do so unless there are cogent reasons in a particular case not to do so (Refer to Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).

    ISSUES

24. The key issue for the Tribunal to determine is whether the Applicant was qualified for DSP during the Qualification Period for the purposes of s 94(1) of the Act.

25. This requires consideration of whether at the time of the Qualification Period:

    (a)the Applicant had any physical, intellectual or psychiatric impairment;

    (b)if so, whether these impairments attracted ratings of at least 20 points under the Impairment Tables; and

    (c)if so, whether the Applicant had a “continuing inability to work” as defined in s 94(2) of the Act.

    EVIDENCE

26. The application was heard in Perth on 12 November 2018. The Applicant was self-represented, appeared in person and was supported by her brother. The Respondent was represented by Ms Jones-Bolla of Sparke Helmore.

27. The Tribunal had the following evidence before it:

    ·Exhibit A1 – Applicant’s submission dated 30 June 2018.

    ·Exhibit A2 – Letter from Frank Rudics dated 24 June 2018.

    ·Exhibit A3 – Letter from Dr Mariet Job dated 11 June 2018.

    ·Exhibit A4 – Letter from Dr Mariet Job dated 21 September 2017.

    ·Exhibit A5 – Letter from Dr Andreea Harsanyi dated 5 May 2017.

    ·Exhibit A6 – Extract from AAT1 written decision

    ·Exhibit A7 – Resignation letter dated 15 May 2017.

    ·Exhibit R1 – T documents (T1 to T32, including pages 1-277)

    ·Exhibit R2 – Respondent’s Statement of Facts, Issues and Contentions.

    ·Exhibit R3 – Respondent’s list of authorities.

    ·Exhibit R4 – Attachment A: Further evidence.

    ·Exhibit R5 – Respondent’s Hearing Certificate.

28. The Tribunal has reviewed all of the material before it. The Tribunal is satisfied that all relevant evidence was before it, and that both parties were provided an opportunity to address the evidence and the matters in issue, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.

29. The Respondent made the following contentions in respect to the medical conditions of the Applicant (R2):

    21. The Secretary accepts that the applicant had impairments for the purposes of section 94(1)(a) of the Act. However, the Secretary contends that the applicant's impairments do not attract a rating of at least 20 points under the Impairment Tables during the qualification period, and section 94(1)(b) is not met. The Secretary further contends that the applicant does not have a continuing inability to work and she does not satisfy section 94(1)(c) of the Act.

    Migraines

    30.      The Secretary contends that the applicant's migraines were fully diagnosed, but not fully treated or stabilised during the qualification period. On that basis, an impairment rating cannot be assigned.

    31.      Prior to and during the qualification period, the applicant had not sought specialist input into the treatment and management of the condition. This did not occur until she consulted Dr Cunningham, neurologist, in December 2017, being approximately four months outside the qualification period, and more than three years since it was recommended as future treatment in the medical report of Dr Cluett, general practitioner, dated 26 July 2014.

    32.      At the time of Dr Cunningham's consultation, further reasonable treatment was recommended to the applicant, including Botox injections and trialling and titrating the dose of new medications. The evidence of Dr Cunningham was that the applicant declined the use of Botox therapy, despite him advising that it was ‘’by far the most efficacious treatment for chronic migraine’.

    33.      The Secretary contends that neurology review, and the treatment recommendations made by Dr Cunningham outside the qualification period, constitute 'reasonable treatment' for the purposes of subsection 6(7) of the Rules. There is no evidence to suggest that the applicant had a medical or other compelling reason to refuse Botox therapy, nor is there any evidence to suggest that the treatment pursued and recommended outside the qualification period was unlikely to result in a significant functional improvement. To the contrary, the evidence of Dr Cunningham was that the applicant had not yet trialled ‘by far' the most efficacious form of treatment for chronic migraines.

    Fibromyalgia

    34.      The Secretary concedes that the applicant's fibromyalgia was fully diagnosed, treated and stabilised during the qualification period.

    35.      In respect of the appropriate impairment rating, the Secretary contends that the impairment arising from the condition rated 5 points under Table 1 of the Impairment Tables during the qualification period. This is on the basis that the applicant experienced occasional difficulty walking to local facilities without stopping to rest, performing physically active tasks and heavier household activities, satisfying descriptors (1)(a)(i) and (ii) of the 5 point rating.

    36.      The Secretary relies on the report by Dr Harsanyi, rheumatologist, dated 5 May 2017 that reported ‘several years of gradually progressive fatigue, generalised myalgia and tenderness’,  and the medical certificate of Dr Job, general practitioner, dated 17 May 2017 that reported ‘fatigue, joint pains [and] decreased mobility had to quite (sic) work’.

    37.      The Secretary contends that the condition cannot attract a higher rating under Table 1 of the Impairment Tables during the qualification period, relying on the following evidence:

    (a)         The applicant's demonstrated ability to engage in work as a physiotherapy assistant for 6 hours per day, 3 days per week, for several years up until 26 May 2017, being after her relevant claim for DSP; and

    (b)        The applicant's self-reports to the JCA of remaining independent with her activities of daily living, being able to drive without issue and walking daily for 20-30 minutes.

    38.      The Secretary acknowledges the latest evidence produced by the applicant's general practitioner, Dr Job, dated 11 June 2018 that indicated the impairment arising from the condition caused a ‘severe impact on functional activities’. The Secretary contends that little weight ought to be afforded to this evidence on the basis that it is produced approximately 10 months outside the qualification period and not referrable to the applicant's condition at that time.

    39.      Dr Job also indicated that the condition had deteriorated, noting that '[the applicant's] fibromyalgia has worsened over the last years' and that 'she has had increased  fatigue'. Reference is also made to the applicant being unable to perform household activities, which is contrary to the applicant's contemporaneous comments to the JCA during the qualification period. The Secretary contends that any deterioration in the applicant's functional impairment can only be considered in the context of a new claim.

    Depression/Anxiety

    40.      The Secretary contends that the applicant's mental health condition was not fully diagnosed, treated and stabilised during the qualification period. On that basis, an impairment rating cannot be assigned.

    41.      In respect of the diagnosis, the Introduction to Table 5 of the Impairment Tables requires that 'the diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).'

    42.      The applicant's mental health diagnosis of 'concomitant anxiety-depressive condition' was not confirmed by either a clinical psychologist or psychiatrist until the report of Ms Mutton, clinical psychologist, dated 10 January 2018. That is, approximately five months outside the qualification period. Ms Mutton first saw the applicant on 4 January 2018, and her report does not confirm that the applicant was suffering from a diagnosable mental health condition as at the qualification period. The condition was accordingly not fully diagnosed at the date of claim.

    43.      There is also no evidence of the applicant receiving reasonable treatment for the condition prior to or during the qualification period, such as a sustained period of psychological counselling in conjunction with pharmacological intervention. The applicant did not commence treatment with Ms Mutton until January 2018 and, at that time, Ms Mutton confirmed that there were 'a number of further treatment strategies which I have discussed with Ms Burmas that will also be valuable in the management of her conditions. We have made a subsequent appointment to commence treatment'.

    44.      The Secretary contends that psychological counselling is reasonable treatment and there is no evidence that such treatment was, at the qualification period, unlikely to result in significant functional improvement. Accordingly, the Secretary contends that the mental health condition was not fully treated or stabilised at the date of claim.

    Gastroenterological conditions

    45.      The Secretary contends that the applicant's gastroenterological conditions, including gluten intolerance, irritable bowel syndrome and hypoglycaemia, were not fully diagnosed, treated or stabilised during the qualification period. There is no evidence of definitive diagnoses, nor any evidence of reasonable treatment having been undertaken by the applicant.

1. The Applicant has provided written submissions outlining the series of impacts her medical conditions have had on her quality of life. She states (A1):

   I wish to appeal the decision to award only 10 points toward my medical condition as outlined in the impairment table requirements for Disability Support Pension.

   I sincerely feel and believe, as well as others (along with documented evidence), that I should be awarded 20 points in order to receive the Disability Support Pensioner (sic).

   As anyone can attest, living on the Disability Support Pension is only a means of support for pensioners and is not designed to live a life of luxury.   No one in their right mind is looking forward to one day achieving their life-long goal of being on the Disability Support Pension.   No, it is forced upon people who have a disability and therefore are unable to work.   The quality of life has diminished and disintegrated to such an extent that their (sic) is no option but the Disability Support Pension.

   This has been, is and will continue to be true in my case - the quality of life due to my health conditions have rapidly decreased to the point where I myself need a carer.   If I need a carer and assistance, this means that I am unable to support myself financially and physically.   How debilitating!

   There are no ifs and buts about it - I have Fibromyalgia.

   Over the past 3 years, (since I was diagnosed with Fibromyalgia), and especially from April 2017 to August 2017, I have experienced worsening symptoms of this debilitating condition.   What makes it heart breaking (sic) is that there is no cure.   Stress adds to the symptoms.    Stress especially of not knowing where I will get my next meal from, how I will accomplish simple household tasks and if I will receive Government support for my condition or whether I will be denied once again.

   As the impairment tables are function based and describe functional activities, abilities, symptoms and limitations. I believe that I should be awarded 20 points for my condition.   Believe me, I don’t feel in any way that this is an ‘award’.

   According to the impairment table for the 20 point requirements, a person needs to qualify as there needs to be a ‘severe’ functional impact on activities requiring physical exertion or stamina.

   In my personal case, I cannot use public transport without assistance as I experience mental overload leading to panic attacks which leave me confused as to my location.   Due to feeling dizzy and overwhelmed, I am physically exhausted and therefore avoid taking public transport.    I believe that this is a ‘severe’ and not moderate impact on my daily life.

   Here is an example of how severe it is.

   Taking public transport is not just hopping on a bus or a train. You've got to know where the bus or train is going, when to set off, where to buy the ticket, how to pay for it.   Then there are all the people around you. So many faces, so much noise.                I cannot handle crowds, it's just too much to take in.   I hear everyone talking at once and I understand nothing.

   Sensory overload is real and extremely frustrating. It is part of Fibromyalgia. It has a severe functional impact on my life. This has been experienced especially since April 20I7 to August 20I7 and until now.

   While at home, due to my afflicting Fibromyalgia, I am unable to perform simple, light day to day tasks that most people find incredibly easy.   For me, it is a nightmare.  I cannot change the sheets on my bed, clean the bathroom, mop up or vacuum, or even light gardening. I used to enjoy doing these things and assisting others with these tasks years ago, but now they have to be done for me. This has lead (sic) to depression.   This has been experienced especially since April 2017 to August 2017 and until now.

   These household tasks are usually undertaken by others; from my 23 year old sister to my 70 year old father and other relatives in between. The reason is due to extreme pain and physical exhaustion. It has a severe functional impact on my life.

   The symptoms that I struggle with that stop me from living a normal life of complete independent living are: chronic muscle pain and stiffness, extreme fatigue, sensory and cognitive overload, reactive depression, impaired concentration, inability to multitask as well as a host of other impairments.

   The reason I am able to exist semi-independently is due to my family. They are the best thing in my life.   Without them I would probably be in a nursing home or require a full-time carer. With their daily assistance, I am able to retain some semblance of dignity.        Every single day since April 2017 to August 2017 and up to now, they help me with something.   If they travel to Perth, I have to travel with them as they can't leave me alone.

   Here are some examples of the daily assistance I have received since April 2017 to August 2017.

   My freezer is full of home made (sic) meals that my father and stepmother prepare for me. All I have to do is heat it up in the microwave and then throw out the plastic takeaway containers.   This is a great help as in this way I eat healthy meals and have basically no dishes to wash up.

   I value their ongoing support even in what seems like little things such as daily phone calls to encourage me and remind me of appointments. My stepmother, who is very organised, is invaluable to me. She also looks after the cleaning at my home.   If it wasn't for their kindness and patience and daily help with even simple light day to day household activities, I wouldn't be able to live independently.                As it is, I feel that I am a huge burden to them.

   My younger sister looks after my hair which includes cutting and colouring of my white and grey hairs. This is very helpful as it lessens some financial burden and most importantly takes away much physical exertion. As it is, I am only able to wash my own hair once a week. It is extremely exhausting to even do that.

   I also receive regular help with shopping.   This has been the case especially since April 2017 to August 2017 until now.

   My father, who has the only license in the family apart from me, drives me to the shops with my stepmother.   This means they travel 20km to pick me up, and if we buy a few groceries in the small town of [omitted] where I live, they sometimes wait patiently for me. They always drop me off at the shop entrance or will walk inside with me and assist me as I cannot walk far without assistance.

   Because I move so slowly, it takes me much longer to shop than normal and I have to stop and take a rest. It is exhausting and painful just buying a few groceries as I don't have the stamina.   Most times, however, they carry the shopping bags for me, load them into the car and drive me home. Then they unload my shopping and pack it away for me. After this, they drive back home another 20km.

   This is the least painful scenario.

   If I need to get some things that are not available in [Applicant’s home town], or that are so overpriced in [Applicant’s home town] my family will drive 20km, pick me up, drive 70km to Narrogin, assist with the shopping drive 70km back to [Applicant’s home town], unload the shopping and drive 20km back home.   Most times this is financially not viable as both my father and stepmother are pensioners.             Therefore, they will often do the shopping in (sic) my behalf.

   This shopping related exertion and experience applies to doctors appointments, Centrelink appointments and other appointments.

   In May 2017, I felt that it was necessary to quit my work. I was becoming more unreliable and a burden to my employer. I never thought that day would come.        At that time, I was working just 3 days per week - only 6 hours per day including tea and lunch break at a local nursing home in [Applicant’s home town].              My employer was very kind to me by trying to break up the day with regular rest periods.   But even that proved to be too much for me to deal with as I was in constant pain and exhaustion.             I was actually doing some very low impact work - many times just sitting with residents and keeping them company and staying with them during their 'end of life' period. I realised that my inability to fulfil (sic) such simple tasks was affecting my employment and my employer.   Severe functional impairment? Definitely.   I therefore decided that it was best to resign.   Not to get another job. Or an easier job. But to quit working as I would continue to be a burden to any employer.   In all honesty, I am not employable and cannot maintain an employment status. This is attested to by all the medical documents in my file, including my doctors (sic) letter that forms part of this appeal.

   According to the impairment tables, 10 points (which I received) are given if symptoms are experienced frequently.   I believe that this was your perception in my case.   I can assure you that nothing could be further from the truth.

   My functional impairment on daily life is severe, not moderate.   I experience symptoms all the time.   That is, 24 hours of every single day. Constantly. Without let up.   This was the case from April 2017 to August 2017 and continues to this very day.

   As I cannot afford Silver Chain or other home care options, I am totally reliant on my family and friends for daily care. But there will come a time where they won't be able to help me anymore.   My aged father is 70 and he is not a healthy man at all. I am surprised that he is still alive.

   Being on the Disability Support Pension would at least allow me to afford some home care and thus relieve the burden I have placed on my family.

   In conclusion, this is not an argument about how much I can work. I cannot work. I know and understand that Centrelink does not approve all applications for the Disability Support Pension blindly.

   However, I ask that you please consider the medical evidence pertaining to my description of the severe functional impact that Fibromyalgia has on my life. It will only get worse.   My limitations are so severe that it is impossible for me to sustain any work related tasks of even a clerical or sedentary nature for a continuous period of at least 3 hours.

   In fact, it is my brother and sister-in-law that have typed this letter in (sic) my behalf because I cannot sit in front of a computer for more than a few minutes at a time.                  I cannot type due to neurocognitive symptoms of Fibromyalgia which have resulted in my impaired concentration, impaired speed of performance as well as cognitive overload.

2. The Applicant’s father made the following submission (A2):

   Everything in this letter relates to events from April 2017 to August 2017 up till (sic) now.

   Life is more than points on a paper.   No one knows my daughter better than myself.

   It is a terrible heartache for me to see my daughter suffer everyday (sic) from this condition of Fibromyalgia and due to my age and infirmity not being able to help properly. I cry nearly everyday (sic) just thinking about her suffering. When she suffers, I suffer as well.

   In the past few years I have seen a deterioration of Agi's health.  She went from a very strong, happy, energetic person, to a sad, depressed (sic) exhausted person in constant pain.   She was always first to run and help others in need, whether cleaning, gardening or cooking for them. Now she needs others to do those things for her. My family does these things for her.

   Fibromyalgia has robbed my daughter of her life and vitality. It has taken her energy physically, emotionally and mentally and has left an empty shell of a woman.

   I have a wonderful wife who is 18 years younger than me (I am 70) and she has been a great help for Agi.   My dear wife regularly reminds Agi of her appointments as Agi can't remember them.   Either we or my son in Perth pick up Agi and take her to appointments.                 We visit Agi daily or more frequently as her needs dictate and help her with basic and obviously hard household duties.   We make sure that we cook more than our needs, so we can bring her meals which she can freeze. We take Agi shopping as she needs help even getting a few things and then we make sure that we grab her bags and put them away for her. Sometimes we don’t take her as it takes her too long so we just buy her things that are on her list.   When we travel to Narrogin for shopping, it is a 180km trip which is exhausting for all of us.

   I am old and sick and my wife is my kind carer. In her love and kindness, she has been a great support and help to Agi. Unfortunately, we cannot sustain this support indefinitely either financially or physically.   Agi having the disability pension will allow her to afford her home care.

   You base your decisions on the impact her symptoms have on her daily life.   I know and see the impact Fibromyalgia has on my daughter's life.                   She would work if she could. She always was a hard worker, never lazy, always putting in a full days (sic) work, often doing more than what was required.

   Requesting the Disability Pension is not something she would have been wanting to do.   It is out of necessity that she is asking for this, not because she is lazy. I’m surprised that she didn't get the Disability Pension as yet while the tax that she paid over the many years that she worked was happily received.                 The taxes we pay, in part, I know allows this country to look after those in genuine need.  My daughter is in genuine need.  She is a human with dignity, not a number on a page.

   HEARING

3. The Applicant stated she only wanted to address the medical condition of fibromyalgia. She understood all remaining conditions she had claimed were outside the Qualification Period.

4. The Respondent opened and relied on its Statement of Facts, Issues and Contentions. The Respondent contended the following in respect to the Applicant’s medical conditions:

   ·Migraine – fully diagnosed.

   ·Fibromyalgia – fully diagnosed, treated and stabilised, and generated an impairment rating of 5 points.

   ·Depression/Anxiety – Not fully diagnosed, treated and stabilised.

   ·Gastroenterological – No evidence to substantiate the claim.

5. The Applicant gave the following evidence during cross-examination:

   ·She resigned from employment on the 12 May 2017 before she lodged her claim for DSP. Her condition of fibromyalgia at the time was severe.

   ·She claimed that evidence to the Job Capacity Assessor and AAT1, at times, had been unintentionally misconstrued.

   ·She was employed as physiotherapist assistant for aged care individuals. She thoroughly enjoyed this job and was very disappointed when she had to stop work.

   ·She stopped work because her fibromyalgia had made her unreliable and she had exhausted her sick leave.

   ·She confirmed that she had not undertaken Botox treatment for her migraines.

   ·She said she relies upon the support of her close family and friends in her daily life.

   ·She disputed that she was living independently.

   ·She only drove her car when she had a passenger with her. 

   ·She walked only when she could, and when referred to house sitting she did this a long time ago.

   ·She does go shopping on her own.

   ·She agreed her treatment for depression and anxiety was outside the Qualification Period.

6. The Tribunal found the Applicant to be a truthful witness.

   CONSIDERATION

7. The Tribunal will now consider all the evidence before it, including the written and oral submissions made by both the Applicant and the Respondent.

   Does the Applicant suffer from a physical, intellectual or psychiatric impairment or impairments?

8. It is not in dispute that the Applicant suffers from the following medical conditions: migraines, fibromyalgia, depression and anxiety, and gastroenterological.

9. The Tribunal notes the medical reports which attest to the fact that the Applicant suffers from these medical conditions (R3).

10. The Tribunal finds the Applicant does satisfy s 94(1)(a) of the Social Security Act 1991; that she has “a physical, intellectual or psychiatric impairment”.

    Do the Applicant’s impairments generate an impairment rating of 20 points or more under the Determination?

    Migraines

11. The Applicant told AAT1 that (T2, page 7):

    • Migraine attacks began in her teenage years. She experienced headaches, nausea plus sensitivity to light and noise. Initially these tended to occur on a monthly basis, around the time of her period.

    • She had left school at the age of 14 years and was working in a supermarket. She was young and fit and generally put up with the attacks. She did not seek any specific treatment but occasionally had to take time off work.

    • As the years went by the attacks became more frequent with wide widespread pains in her head and neck. She saw many doctors and tried a variety of medications including Digesic, Mersyndol and daily Sandomigran. She had a bad response to many of these.

    • In her 20s and 30s Imigran appeared as a treatment. She used that in the form of tablets and nasal spray. For a while it helped, but then ceased being effective.

    • Over the years she has had a variety of jobs which have included working in supermarkets, cooking in a roadhouse and cleaning. Her most recent employment was a part-time job in a nursing home where she worked three days a week as a physiotherapy assistant. She enjoyed that work but retired in about April or May 2017 because she knew she would lose her job because of frequent absences for medical conditions.

    • She was briefly married, for about two years. There are no children.

    • She has a permanent headache which is there all the time. It is a lot worse when she is stressed or anxious.

    • She had never been referred to a specialist about this problem until her current GP, Dr Job, referred her to a neurologist, Dr Cunningham, who she saw in about December 2017. He suggested some additional medications and recommended Botox injections. She tried the tablets, which had no benefit. She declined having Botox injections.

    • She takes no regular medication for the problem but uses a variety of pain killers intermittently.

12. The Tribunal notes the Job Capacity Assessment (JCA) report of 12 August 2014 (T7, page 137) that states the Applicant has been referred to a neurologist but had yet to action this referral.

13. The Tribunal notes the JCA report of 9 August 2017 (T14, page 179-180) which states the Applicant’s “migraine” condition is fully diagnosed but not fully treated and stabilised. The report indicates the Applicant had still not actioned seeing a neurologist.

14. The Tribunal notes the ARO report of 27 October 2017 (T20, page 195) states “Because you have a specialist review pending and because there is insufficient medical evidence to confirm the past, present and future planned treatment or the frequency, severity and duration of migraine, I can not (sic) accept this condition is fully treated and stabilised.”

15. The Applicant told the Tribunal, she understood treatment for this condition is outside the Qualification Period.

16. Having considered all the evidence before it, the Tribunal finds this condition is fully diagnosed but was not fully treated and stabilised during the Qualification Period. The Applicant had not, during the Qualification Period, undertaken any specialist treatment for this condition, which was noted in the JCA report of 2014. Her current claim for DSP shows she has only just undertaken specialist assessment; however, this occurred outside the Qualification Period (T24, page 208-209).

    Fibromyalgia

17. The Applicant told AAT1(T2, page 8-9):

    • Some time ago she spent a year or so living in New South Wales (NSW), with relatives. She consulted a local doctor because of feelings of increasing fatigue and widespread muscle soreness. This had been going on for about a year prior to her seeking medical attention and she thought it was related to her undergoing an early menopause.

    • The doctor in NSW diagnosed fibromyalgia. Treatment has been with various medications, physiotherapy and stretching exercises. Nothing has made much difference.

    • Since returning to live in Western Australia she has found a new GP, Dr Job. In May 2017 Dr Job referred her to a rheumatologist, Dr Harsanyi, who arranged some tests and has confirmed the diagnosis of fibromyalgia/chronic fatigue. She suggested a trial of tablets but they did not help.

    • She lives alone with her cat in a small unit with a courtyard garden. She manages her own domestic duties with the help of her father and her sister, who live nearby. Housework is done very slowly and she tires quickly. She drives a car but usually only travels with a passenger because of panic attacks.

    • She can do some shopping on her own and carry light loads. She recently injured her left shoulder which adds to the problem.

    • She has widespread aches and pains which restrict her a lot. She has physiotherapy now and then and does some stretching. Every morning she has a hot shower to help get her body moving.

    • She tries to go for regular walks and on a good day can manage about 30 minutes before feeling exhausted. Nowadays she can manage this about twice a week. She has a short sleep most afternoons.

1. The Tribunal notes that the JCA report of 2014 makes no mention of this condition.

2. The Tribunal notes the JCA report of 9 August 2017 (T14, page 178-179) stated that the Applicant was working until May 2017 when she then had to cease working due to increasing health issues. The report states “She remains independent with her activities of daily living and reports she enjoys and can drive without issue, except that she does not like driving alone and always goes shopping with family. She is able to get out and walk and does so daily for 20-30 minutes.” The report further states – “…. the treating Rheumatologist has indicated the need to undertake further investigation due to concurrent metabolic, perimenopausal (sic) and lymph node issues which are complicating diagnosis...”

3. On this basis the JCA claimed the condition was not fully diagnosed, treated and stabilised. The ARO report at T20, page 195 determined this condition as fully diagnosed but not fully treated and stabilised as a result of the ongoing trialling of medication.

4. The Tribunal notes some discrepancy between the evidence of the Applicant and the evidence contained in the JCA report. Much of this, the Tribunal finds, is attributed to how answers to questions are interpreted. The Tribunal is satisfied that the discrepancies have been clarified by the Applicant.

5. The Tribunal notes Dr Job’s report of 11 June 2018 at (A3) which states “Her fibromyalgia has worsened over the last years. On 17/05/2017 Agi reported to me that she has to quit work. At that time she was only managing 3 days a week for 6 hours. Over the years her fibromyalgia has had a severe impact on her functional activities.” It is not clear to the Tribunal what the Applicant’s functional capacity was assessed at, at the time of the Qualification Period.

6. Dr Job further stated (at A3) “Over the years her fibromyalgia has had a severe impact on her functional impact”. This report is dated approximately 10 months after the Qualification Period. That in and of itself is not an issue for the Tribunal. What is an issue, however, is that there is a lack of corroborative medical advice describing the functional impairment of the Applicant, in line with the Impairment Tables, at the time of the Applicant’s claim.

7. The Tribunal notes Dr Harsanyi’s report of the 5 May 2017 (A5), which states “Agi understands this is a chronic condition which needs to be managed with lifestyle changes, regular low grade exercise, relation therapy and neuropathic drugs when tolerated.”

8. The Tribunal, having assessed all the evidence before it, determines this condition is fully diagnosed, treated and stabilised. The Tribunal notes the Applicant’s evidence to this Tribunal, her reports to the Job Capacity Assessor and to AAT1 and, therefore, determines this condition generates an impairment rating of 10 points under Table 1 of the Impairment Tables.

   Depression/Anxiety

9. The Applicant told AAT1 (T2, page 9):

   • She has felt anxious and depressed for a long time but never did anything about it. The doctor in Sydney who diagnosed fibromyalgia said those feelings were related to the condition.

   • In the past she has tried anti-depressant tablets, mainly as part of treatment for fibromyalgia, but reacted badly to them. She is on no specific treatment for mental health problems.

   • Prior to lodging her DSP claim she had never seen a psychiatrist or clinical psychologist.

   • In December 2017 her GP, Dr Job, made a mental health plan for her and referred her to a psychologist, Lynette Mutton.

10. Table 5 of the Impairment Tables (T3, page 52) states “The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).”

11. The Tribunal notes the Applicant saw a clinical psychologist on 4 January 2018, well outside the Qualification Period, and that she had commenced a number of treatments (T25, page 210).

12. The Tribunal finds that this condition is fully diagnosed but was not fully treated and stabilised during the Qualification Period.

    Gastroenterological Condition

13. The Tribunal supports the Secretary’s contention there is no evidence before it as to whether the conditions of gluten intolerance, irritable bowel syndrome and hypoglycaemia were fully diagnosed, treated and stabilised during the Qualification Period.

    Does the Applicant have a continuing inability to work?

14. The Tribunal finds that the Applicant has 10 points under the Impairment Tables and therefore fails to satisfy subsection 94(1)(b) of the Act. Given this finding, it is not necessary for the Tribunal to consider s 94(1)(c) of the Act and determine whether the Applicant has a continuing inability to work.

    DECISION

15. For the reasons given above, the Applicant does not qualify for DSP. The decision under review is affirmed.

I certify that the preceding 61 (sixty -one) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes

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

Associate

Dated: 6 December 2018

Date of hearing:	12 November 2018
Applicant:	In person
Counsel for the Respondent:	Ms Jones-Bolla
Solicitors for the Respondent:	Sparke Helmore