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

Conway; Secretary, Department of Social Services and (Social services second review) [2021] AATA 1552 (28 May 2021)
Division:GENERAL DIVISION
File Number(s): 2019/4348
Re:Secretary, Department of Social Services
APPLICANT

AndLachlan Conway
RESPONDENT

DECISION
Tribunal:Senior Member B J Illingworth
Date:28 May 2021
Place:Adelaide

The Tribunal sets aside the decision under review; and in substitution, decides that the Respondent was not eligible to receive the disability support pension as he has not satisfied sections 94(1)(b) or (c) of the Social Security Act 1991 as at the date of claim or during the Qualification Period.
........................[SGND].......................
Senior Member B J Illingworth
Catchwords
SOCIAL SECURITY – Claim for Disability Support Pension – Physical, intellectual or psychiatric impairment –Whether a combined impairment rating of 20 points or more exists under the Impairment Tables – Whether fully diagnosed, fully treated and stabilised –Decision under review set aside and substituted
Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Secondary Materials
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension 2011) Determination 2011.
REASONS FOR DECISION
Senior Member B J Illingworth
28 May 2021
Introduction

On 11 June 2019, the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) set aside the decision made by the Department of Human Services (Centrelink) to reject the Respondent’s claim for disability support pension (DSP) lodged on 23 November 2018.
The AAT1 decided that the matter be remitted to the Chief Executive Officer of Centrelink for reconsideration with the direction that the Respondent satisfied paragraphs 94 (1) (a), (b) and (c) of the Social Security Act 1991 (the Act) and qualified for DSP.
The Secretary of the Department of Social Services (the Applicant) has applied to review the decision of the AAT1 to the General Division of the Administrative Appeals Tribunal (AAT2) which is the application now before me.
At the hearing, the Applicant was represented by Mr Burgess of Sparke Helmore Lawyers and the Respondent was represented Ms McDermott of Darwin Community Legal Centre. The parties and witnesses appeared by telephone.
Issues
For the Respondent to qualify for the DSP he must satisfy the provisions of s 94 of the Act namely that;
(a)he has a physical, intellectual or psychiatric impairment(s) for the purposes of s 94 (1) (a) of the Act; and
(b)that his impairment(s) attracts a rating of 20 impairment points according to the Impairment Tables referred to in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension 2011) Determination 2011 (the Determination); and
(c)that he has a continuing inability to work (CITW); and
(d)that if he does not have a severe impairment which is defined as a score of 20 points pursuant to a single Table, but has a combined total of 20 points from two or more impairments on the Impairment Tables, the Respondent must have actively participated in a program of support in accordance with the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination), namely, that he participated in the program of support for a period of at least 18 months within the 36 months prior to the claim for DSP being lodged.
Impairment ratings are to be assessed having regard to the Impairment Tables which are found in the Determination. Those Tables contain instructions for assessing impairments with respect to nominated conditions. Those conditions must be permanent resulting in functional impairment, must be diagnosed by an appropriately qualified medical practitioner and there must be corroborating evidence of the person’s impairment. Self-report of symptoms alone is insufficient.
A permanent condition is one that, pursuant to Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act), has been fully diagnosed, treated and stabilised (FDTS) as at the date of the claim, namely 23 November 2018, or up to 13 weeks thereafter (the Qualification Period). The Qualification Period in this matter is 23 November 2018 to 31 January 2019.
In assessing whether a condition is fully diagnosed and fully treated, clause 6(5) of the Determination provides that the following must be considered:
(a)whether there is corroborating evidence of the condition;
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next two years.
A condition is ‘fully stabilised’ if:[1]
(a)the person has undertaken reasonable treatment for that condition, and it is unlikely that further reasonable treatment will result in significant functional improvement to a level enabling the person to undertake work in the next two years; or
(b)if the person has not undertaken reasonable treatment for the condition:
(i)such treatment is not expected to result in a significant functional improvement to a level enabling the person to undertake work in the next two years; or
(ii)there is a medical or other compelling reason not to undertake reasonable treatment.
[1] Clause 6(6) of the Determination.
The Applicant accepts that the Respondent satisfied the provision of s 94(1)(a) of the Act, namely that the Respondent had a physical, intellectual, or psychiatric impairment at the time of filing his application for DSP. The Tribunal agrees with that concession. However, the Applicant argues that the Respondent does not satisfy subsections 94(1)(b) and (c) of the Act, does not have an impairment rating of 20 points or more under the Impairment Tables, and does not have a CITW.
In the Respondent’s application for DSP[2], he listed his medical conditions as:
chronic fatigue syndrome (CFS) /myalgic enceohalomyelitist;
chronic inflammatory response syndrome (CIRS); and
biotoxin illness/mould illness.
[2] Exhibit A, PT 21, pages 190 – 193.
The Respondent wrote in the application for DSP that he had been undergoing various treatments for the past 12 months for biotoxin/mould illness, which he said was only diagnosed after expensive testing in November 2017, at which point he started treatment for that illness.
He described his current treatment as:
·ongoing daily infrared sauna;
·coffee enemas;
·supplementation of vitamin C and minerals\detox supplement;
·lymphatic drainage massage; and
·“most importantly”, currently for the last nine months following the “Shoemaker” protocol for toxin removal and the various 11 steps and medications.
The persons providing support and treatment were:
·Richard Sagar – Darwin dietician;
·Dr Michael Paroulakis – general practitioner; and
·Dr Andrew MacDonald – specialist for CFS/autoimmune illness.
The Respondent described symptoms of extreme lethargy and fatigue, toxic cells, brain fog, memory issues, physical and mental issues (numerous), inconsistent energy levels and flareups which can cause him to “crash” which can last for weeks to months, and lower body output.
In the decision dated 11 June 2019, the AAT1 accepted that the Respondent suffered from CFS which was FDTS at the date of the DSP claim and that it was likely to persist for more than two years. The AAT1 summarised the Respondent’s evidence of symptoms as including:
·marked fatigue and cognitive impairment since 2016;
·constantly exhausted and needing to pace activities;
·activities limited to light household tasks only and needing to sleep recurrently for short intervals throughout the day;
·returned to live with his parents because he needs assistance with most household tasks including shopping and cooking but can shop for a few items and do his own washing;
·Concentration difficulties limited to brief 15-minute intervals;
·regularly unable to get out of bed due to debilitating fatigue;
·difficulty with short-term memory, relying on lists and reminders; and
·having tried to maintain employment including part-time hours and flexible work arrangements, fatigue and cognitive impairment prevented ongoing work.
The AAT1 at paragraphs 19 and 20 of its decision said as follows:
Dr Edwards on 5 April 2019 described symptoms of severe debilitating fatigue and cognitive dysfunction. Dr Alam described initial symptoms of chronic tiredness and excessive fatigue. Dr Flavell noted symptoms of poor concentration and fatigue. Dr Paroulakis on 1 December 2017 confirmed persisting presence of severe lethargy, brain fog, severe joint pain and severe indigestion. Dr Paroulakis was initially hopeful that the relapse would be measured in months; however, the symptoms persisted and on 4 December 2018 Dr Paroulakis confirmed that Mr Conway was totally unfit for work due to the severity of his condition, and that this had been the case for the past six weeks.
The tribunal finds that this is consistent with a moderate impact on functions requiring physical exertion and stamina and a moderate impact on brain function. Therefore, the tribunal assigns an impairment rating of 10 points under Impairment Table 1 and 10 points under Impairment Table 7 for the condition.
Parties’ Opening Submissions
The Applicant submitted that the Respondent’s primary condition, CFS, was fully diagnosed but not fully treated and fully stabilised at the date of the claim for DSP or during the Qualification Period. It was submitted that the Respondent had not consulted a psychiatrist and had not been trialled with, or undertaken treatment with, antidepressant medication as recommended by the Respondent’s treating doctor, Dr MacDonald, and by the independent occupational physician, Dr Ugwu.
The Respondent also submitted that there was arguably a separate psychological depressive condition or, alternatively, that depressive condition was a symptom of the Respondent’s CFS, for which the Respondent had been prescribed medication, but that he ceased taking, which Dr MacDonald said was unfortunate.
There was no FDTS psychological condition that could be assessed under Table 5 because there was no report from a psychiatrist or clinical psychologist in relation to that condition. The Applicant referred to the Respondent’s submission that his diagnosed CFS could be assessed as 10 points under Table 1 and 10 points under Table 2. The Applicant submitted that the Respondent’s condition could not be assessed. In the alternative, that such assessment would be 10 points under Table 1 and five points under Table 7 as referred to in the report of Dr Ugwu.
The Applicant also referred to a separate CIRS related to a biotoxin/mould illness. That was not a valid, diagnosed condition and, in any event, was not FDTS and did not give rise to an assessment under the Tables. Further, it appears that condition is not now pressed by the Respondent and that any symptoms relating to that condition are subsumed by the CFS.
Insofar as the Respondent argues that the condition of CFS gives rise to a functional impairment to be assessed on two Impairment Tables, namely with respect to performing activities requiring physical exertion or stamina or brain function on Tables 1 and 7 respectively, it was submitted that the Respondent did not satisfy a combined impairment rating of 20 points on both Tables. The Applicant referred to the report of occupational physician Dr Ugwu and submitted that, if capable of assessment, a maximum of 5 points was available on Table 7.
The Applicant submitted that, even if the Respondent satisfied the Tribunal that he had a combined impairment rating of 20 points, he had not, at the time of filing his application for DSP, been an active participant in the program of support for the required period. He had only 149 days of active participation at the date of the application for DSP, rather than the required 18 months of participation in the three years prior to filing the claim for DSP. Further, that he did not satisfy the alternate criteria in clause 6(5) of the Determination. The Applicant also submitted that the Respondent had the ability to work 15 hours a week within two years of the filing of his claim for DSP, and again referred to the opinion of the occupational physician Dr Ugwu upon which the Applicant relied.
The Respondent in opening relied upon his Statement of Facts, Issues and Contentions (SOFIC) and submitted his condition arose due to CFS and not an underlying psychiatric disorder. However, counsel clarified a change in the Respondent’s circumstances that had occurred since filing the SOFIC.
In his SOFIC, the Respondent submitted that his impairment was due to his CFS and not any psychological condition, and that he had never been diagnosed with such a condition. Since the filing of that SOFIC, the Respondent had been admitted to a psychiatric hospital in October 2020 for four weeks, but he had still not been diagnosed with a psychological condition. The Respondent submitted that despite the hospital admission he still qualified for DSP by virtue of his CFS.
The Respondent agreed there was no relevant diagnosis from a psychiatrist or clinical psychologist. An assessment under Table 5 does not arise in this matter, but the Respondent was entitled to an impairment assessment pursuant to both Table 1 and Table 7 as a consequence of his CFS consistent with the decision of the AAT1.
The Respondent’s Evidence
The Respondent was 39 years of age and was born in November 1981. He said that his CFS started between 2009 and 2010 after he contracted the swine flu and other viruses from which he did not properly recover. His treating medical practitioners then worked with the Respondent over the next two years to stabilise the condition. By 2013 the condition was stabilised, and they had a future treatment plan.
In about 2017 – 2018 a secondary condition, namely toxic mouldiness or CIRS, developed due to environmental conditions which can impact on a person’s health. The Respondent said that he was not really relying on that condition which he said was not a recognised medical illness in Australia. In this matter he was relying on his CFS, which he said was the underlying condition which has stopped him from working.
The Respondent said because of the CFS he would tire quickly. After 30 minutes of work his energy levels would drop dramatically, he would lose his mental focus and clarity and he would become physically weak. He said he had poor sleep, his body was not working, and the numerous symptoms impacted on his ability to work.
In May 2018 he was last employed. He could not complete a 4-hour day and he removed himself from his employment. In mid-2018, he was sick and by the end of 2018 he was “very very sick”. He said that, in the 13-week Qualification Period, he was “very sick in that period in particular”.
The CFS affects him physically with a constant feeling of weak skeletal joints and muscles. He had tenderness and soreness in his muscles, ligaments and joints. It stopped him from engaging with the physical side of his life, and he did not do much physical movement. He then said that there was the cognitive impact including lack of sleep, and non-restorative sleep, such that the next day he would feel like he had not had a night’s sleep. He would then try to catch up on sleep every day and his brain would play up, his memory would deteriorate, and he had cognitive issues. He was forgetful and therefore stored things on his telephone or would do other things to remind himself of upcoming events. He also relied on others around him and his parents to assist him. The Respondent explained that some weeks he might be very good and can prepare food, but he can suddenly deteriorate, and in those circumstances, he would rely on his parents to come down to help and provide food and make meals. This occurred randomly without any discernible reason.
In respect of his treatment, the Respondent had been placed on antidepressant medication in or about 2011. It was a small dose of 10 milligrams to help him sleep and was prescribed for that sole purpose. He used it through most of the illness. It was never prescribed for depression.
The Respondent said that he has been using lots of natural supplements and vitamin supplements prescribed by doctors such as vitamin B12, C and D. He was low in those vitamins because of his CFS. The vitamins improved his energy. He has been taking those supplements for the last 7 – 8 years.
The Tribunal received into evidence a volume of Facebook posts made by the Respondent, from the period of mid-2018 to 2019[3]. They include Facebook posts proximate to the Qualification Period when the Respondent said he was “very very sick.” That material was not before the AAT1.
[3] Exhibit C.
The Respondent was asked about those Facebook posts and why he used that platform. He said that the point he was making by those Facebook posts was that he does see glimpses of life every now and then, and he tried to do activities that makes himself look like a normal person. He said that he would say that he was doing a lot more than he actually was. He would make it look like he had normal function so that he would appear to be a normal person. It was not an accurate reflection of his life. There were images that showed him at a social activity, but he may have slept for a week in advance of that function to prepare to attend. He would attend functions at a later hour than others, would only stay for a few hours and then went home earlier than most people. He showed the highlights in his life. He tried to show he was living a life, hence the captions on the Facebook entries to make people believe he was more active than he was.
He said he wanted to be noticed. He is still a single man and he wanted to show the goodness in his life. There was not much to show when he is lying in bed every day. He tried to show he was out there doing the things that other people were doing. He wanted to show that he was social and did not want to lose his friends.
In the period leading up to his claim for DSP, he had been off work since May 2018. He thought he was to be placed on a sickness allowance then learned he was on the Newstart allowance. When he realised the mutual obligation requirements that accompanied the Newstart allowance, he applied for DSP. At that time, he was receiving treatment from his normal doctor, Dr Michael Paroulakis, and Dr Ruth Edwards was working on his CRIS. He only saw Dr MacDonald when he needed something special to deal with his CFS. He described Dr MacDonald as the main doctor in Darwin dealing with CFS.
The Tribunal asked the Respondent when, immediately prior to the claim for DSP, he last saw Dr MacDonald. He could not recall seeing him between the date he ceased work in May 2018 and the application for DSP in November 2018. At that time, he was seeing Dr Ruth Edwards to deal with secondary issues with CIRS. He said Dr MacDonald came to Darwin every month or randomly and the Respondent only used his services when he needed something specific. The Respondent agreed that, as at the date of the filing of the claim for DSP, there were two conditions that were impacting upon him, namely (i) CFS and (ii) CIRS that Dr Edwards was assisting his with. However, he said he was not putting any focus on the CIRS with respect to the DSP application because Centrelink did not recognise it as a medical condition.
Cross-examination
The Respondent was asked to outline his recent admission to hospital for a psychological condition. He said he was in the mental health facility for about a month for mania, and delusional grandiose ideas. Mentally, he went into mania and delusional ideas about the future. He was prescribed Olanzapine which is an antipsychotic medication. He said he had not previously been prescribed that medication.

Counsel referred the Respondent to the medical records from Pandanus Medical Centre dated 29 October 2019[4] and the Patient Summary dated 6 November 2019, which indicated that on 25 April 2019 he was prescribed Olanzapine 10 milligrams. The Respondent said he was going through a spiritual awakening or perhaps the early signs of the condition back then. He was offered the drug at that time, but he did not take it because he thought he was cognitively and mentally fine. He said the doctor did not force it upon him and it was not as serious back then.
[4] Exhibit A1, PST3, pages 67 – 85.
The Respondent did not think he had seen a psychiatrist in April 2019. However, he was referred to the Patient Summary record from his treating medical surgery[5] and the notes for a consultation dated 25 April 2019 which reads as follows:
History: please refer to recent psychiatric report, for over a month generalized headache, for blood profile and CT cranium
Treatment/Plan: Temaze 10 mg Tablets as directed…Diazepam 5mg Tablets…Olanzapine 10 Orally disintegrating tablets…
[5] Ibid, PST3, page 74.
The Respondent said that he was previously seen in a mental health facility because his parents thought his mental state was not stable, and they asked him to go and see someone at that facility. The Respondent said that he had a two-hour interview with them but nothing further. He said they thought he should take Olanzapine but the Respondent said that he did not have any psychiatric problem and did not have any need to take the drug.
It was put to the Respondent that he had not mentioned that consultation at any stage before. He said that it was not relevant. He said his parents thought he was a bit unusual at the time, so they suggested he speak to someone at the Tamarind Centre which was a mental health facility. Those at the centre recommended he take Olanzpine. He went back to his general practitioner who prescribed Olanzapine but he never filled the prescription. The Medical Practice notes record on 25 May 2019 the Respondent was prescribed Olanzapine. The Respondent said it was up to him whether he took the prescribed medication.
In consequence of his recent admission to, and release from, a mental health facility three weeks prior to the hearing, the Respondent said he was there receiving Olanzapine and he is taking that medication now.
The tricyclic antidepressant prescribed in 2011 to help him sleep, which he used for most of his illness was Imipranine hydrachloride 10mg. It was prescribed by Dr MacDonald. The Respondent said that he was unsure whether there was any benefit from the medication, but more recently he did not think it assisted him. He stopped taking that medication within the last 12 months. The Respondent then said he decided to remove it.
It was then put to the Respondent that he was last prescribed that medication by Dr MacDonald on 25 October 2016[6]. The Respondent said, “I don’t know where this is going or why that would be relevant and I don’t have that good a memory”. The Respondent then said that he does not need a prescription for that medication, that he gets it from overseas and said, “I don’t get the line of questioning”.
[6] Ibid, PST3, page 71.
The Tribunal then asked when he was last prescribed the medication. He said Dr Paroulakis had been prescribing it until recently, despite having just said he does not need a prescription and he purchases it from overseas. There was no evidence contained in the Patient Summary from Pandanus Medical Centre where Dr MacDonald and Dr Paroulakis practice, of the Respondent being prescribed that medication after 25 October 2016. His evidence on that topic was not credible or reliable.
The Respondent then said he obtained the medication from overseas using a script from Australia. He does not get the medication from an Australian pharmacy because the drug was stopped in Australia a few years ago. He then repeated that Dr Paroulakis continued to provide him with a prescription for Imipranine which he filled through an overseas supplier.
The Respondent said he could never get the medication without a script. He would obtain the medication online from America. Counsel then put to the Respondent the patient record said that the last occasion he was prescribed the medication was 25 October 2016. Counsel referred the Respondent to the patient consult record for 25 October 2016 which indicated that Dr Paroulakis prescribed Imipramine on that occasion which was 300 tablets with two repeats.
Counsel then suggested that he had not taken Imipramine after he ceased employment in 2018. The Respondent rejected that and said he stopped the medication three months ago at his own accord. He spoke to his doctor who did not object because it was such a small dose. He told Dr MacDonald that he did not believe it was helping him with respect to sleep and his doctor agreed that he ceased taking that medication.
The Tribunal then asked the Respondent how that occurred given his earlier evidence that he had not seen Dr MacDonald between the time he stopped employment in May 2018 and the filing of his application for DSP. He then explained that, when he was talking to Dr Macdonald about three months ago with respect to his current hearing, he then raised his intention to stop taking Imipramine.
His evidence on this topic was not credible or reliable.
The Respondent conceded that there have been concerns by others in the past about his mental health and that as at November 2018 he had not seen a psychiatrist. He agreed however that he had been reporting to his treating doctors that he was suffering anxiety, and that he had been on a GP mental health care plans before. The Respondent then said that the only reason he had seen a psychologist in the past was as a result of anger being directed towards him in his workplace. He was at the time working at a betting agency and when people lost their money, they would direct anger towards him including by telephone. He did not take that conduct well. Nonetheless, the Respondent conceded he had reported anxiety and lack of sleep to his medical practitioner and he was prescribed medication to assist him with sleeping such as diazepam and stillnox. The Respondent said he did not need a psychiatrist.
The Respondent was then referred to a consultation with Dr Paroulakis on 23 July 2015[7], in which the doctor recorded under heading ‘History: patient review’, that the PTSD remains a problem and a medical certificate was issued. The Respondent said that he did not report PTSD to Dr Paroulakis. The Respondent suggested that the doctor was referring to the stress that accompanied his CFS and did not know what he was referring to with respect to PTSD.
[7] Ibid, PST 3, page 81.
The Respondent was asked about his consultation with Dr Ugwu in which the doctor reported that, in respect of the Table 7 impairment, he considered the Respondent to have, during the Qualification Period, suffered mild functional impact resulting from the neurological cognitive condition and that he was doing well largely through the whole period, except in June 2019 when he had a flareup. The Respondent acknowledged that flare ups occur. It can be a couple days of pain and cognitive problems, or for significant periods when he was unable to function.
The Respondent said that he probably did tell Dr Ugwu that he had a relapse or ‘flare up’ in June 2019. He told Dr Ugwu that he probably had a bad flu, which made his CFS flare up. The Respondent went on to say that Dr Ugwu wrote that he was sicker in June 2019 than in the Qualification Period, which is not what he told him.
The Respondent was referred to his Facebook entries[8]. He said that if he had an event to attend, such as a dance, he would sleep the week before so that he had the energy to attend that function. He would arrive late, often sit down in the corner and not dance. He did not go to functions regularly. He would rest the week before, arrive late and leave early. He wanted to show people he was “still out there”, he was still a normal person and he tried to show that.
[8] Exhibit C.
The Respondent was then referred in cross examination to various Facebook entries[9].
[9] Ibid.
Commencing at page 186 of Exhibit C there was a photograph dated 1 June 2019 of a football ground with the caption “in the G spot of the TIO Stadium Mararra. C’arn the Crows.” This, counsel put to the Respondent, was at a time when he said to Dr Ugwu that he suffered a relapse.
At page 185 of Exhibit C, on 2 June 2019, there was a photograph of the Respondent standing in front of a Liverpool Soccer Club flag. The caption reads “6am and the Reds are marching in!” The Respondent recalled that photograph taken on the occasion that Liverpool won the Champions League. It was put to the Respondent that these events occurred on consecutive days. The Respondent could not recall if that was so but then said that the proposition was probably correct.
The Respondent was then taken to a Facebook entry dated 9 June 2019, at page 183 of Exhibit C depicting a music concert and photographs of people dancing. The caption reads, “I’ve been waiting all night for you to tell me what you want [heart emoji] Tell me, tell me that you need me…One of the best music festivals I’ve seen up here in D’Town… Cheers also to the new friends made, dancing our life’s worries away, into the late hours of the night”. The videos attached showed dancing. The Respondent denied that he had been dancing late into the night, saying that he arrived late and left early. He did what he could do at the festival. He denied he was shown dancing. When referred to a photograph of a man and woman dancing, with the Respondent standing in the background, he said there was no proof that he was dancing in those videos.
The Respondent was then referred to the following Facebook entries:
(a)On 4 June 2019 which depicted a soccer pitch. The Respondent accepted he went to a soccer game[10].
[10] Ibid, page 182.
(b)On 10 June 2019 with heading “[the Respondent] is at Snapper Rocks.” The captions read: “Waterfront meditation, yoga, swimming, sun and chills…[11]” The Respondent said he could do things depicted in the photographs because he was sitting down at the soccer and sitting down at Snapper Rocks. He said that no physical energy was exerted.
[11] Ibid.
(c)On 12 June 2019 “[the Respondent] is with JS and JB” who were two friends. The photographs depict the Respondent standing and socialising with a group of friends at an outdoor function[12].
[12] Ibid, page 182.
(d)The Respondent reproduced an advertisement for a function called “The Gathering Nirvana” for Thursday, June 13 at 7pm followed by various Facebook posts by a person LP, and the Respondent dated 14 June 2019 of a concert at the Nirvana Restaurant[13]. The Respondent agreed he was there.
[13] Ibid, page 181.
(e)On 14 June 2019 an entry depicted the Respondent and two others at the Monsoon Restaurant and Party Bar in Darwin[14]. The Respondent became argumentative about being bombarded with evidence when all of these things can be done when suffering from his disability. The Tribunal directed the Respondent to answer the questions. He agreed that he was depicted in that photograph.
[14] Ibid, page 176.
(f)On 14 June 2019 there is a post from an outdoor function at The Buff Club depicting a band, and captioned “Just another day in paradise at Darwin with EO”[15]. The Respondent accepted he was also at The Bath Club on 14 June 2019.
[15] Ibid.
(g)On 15 June 2019, being various photographs of a soccer ground with caption “Pre-game Verdi FC vs Darwin Olympic FC….”[16]. The Respondent agreed he was at a soccer game on 15 June 2019.
(h)On 16 June 2019, being photographs of the Darwin International Buddhist Temple where the Respondent agreed he attended[17].
(i)On 16 June 2019 the Respondent posted “Has anyone got spare tickets to the V8’s Sunday session? Would love to go see IIIy at 7:15pm”[18]. IIIy is a rock band. Two of the Respondent’s Facebook posts dated 16 June 2019 depict that concert. The Respondent accepted that he attended the event, which the Tribunal infers is a car race, followed by the concert that evening.
(j)On 22 June 2019, the Respondent posted “attending WHY NOT 2019 at Darwin Botanic Gardens.[19]” He said this was a music festival.
(k)On 23 June 2019 at 4.13pm, headed “[the Respondent] recommends THROB NIGHTCLUB.[20]” The caption reads “WHY NOT 2019…Oh what a night haha!” The Respondent acknowledged that after attending the music festival he then went to the nightclub and posted the photographs the following day on 23 June 2019. The photographs included the Respondent dancing on a pole. Counsel then referred the Respondent to part of his caption which reads, “If only sober Lachy had re-instated to me earlier, that I would be lifting a 60 kg fridge up two-flight [sic] of stairs today (and 20 boxes of my belongings), I may have planned the night out a little wiser ha ha!” He accepted that in that caption he implied that he lifted a 60kg fridge up two flights of stairs. He said he implied a lot of things in a lot of posts which were not true.
(l)On 27 June 2019, the Respondent accepted that he was at the Mindil Beach Sunset Market[21]. The Respondent said that most of the time during this and other occasions depicted in the Facebook entries he was sitting down.
(m)On 28 June 2019 he posted at 7.53pm, “Still three days to Territory Day! We don’t f#ck around up here. Every day is a celebration tho if you live your life right”[22]. The Respondent volunteered again that he was sitting down. The Respondent accepted that the post contained photographs and videos of the Territory Day fireworks.
(n)On 29 June 2019, at the Darwin Railway Club, the Respondent posted at 9.38pm with the caption “Will I sleep tonight! Yeeeessss!”[23]. The Respondent agreed he saw some music bands at that club. After that there is post at 11.06pm at Youth Shack Backpackers. The Respondent accepted that he subsequently went to that venue after the Darwin Railway Club.
(o)On 30 June 2019, at 12.34 am, depicts pokie machines[24]. The Respondent agreed that this was the same night as the above 29 June 2019 event and the pokie machines were out the back of the venue they were attending.
(p)On 1 July 2019 at 5:01pm, the Respondent agreed he was at the Mindil Beach Sunset Market and at 9.04 pm that evening was another post from the market[25].
[16] Ibid, page 175.
[17] Ibid, pages 173-174.
[18] Ibid, page 172.
[19] Ibid, page 168.
[20] Ibid, page 167.
[21] Ibid, page 166.
[22] Ibid, page 165.
[23] Ibid, page 164.
[24] Ibid, page 163.
[25] Ibid, page 162.
Counsel put to the Respondent that he was not sleeping for a week before each occasion because on a number of occasions he was attending events on consecutive days. The Respondent agreed with that proposition.
It was also put to the Applicant that this was the time he told Dr Ugwu that he was at his worst. The Applicant denied saying that and said that Dr Ugwu decided the Applicant was at his worst then. He was at his worst at the time he made his DSP claim. He said he felt better within a couple of weeks of the June 2019 flare up and then he fell away again. He said that he thought he was, at this time, on his way to recovery and did a bit more but his health fell away again.
Counsel put to the Respondent that in November 2018, during the Qualification Period, his Facebook post indicated that he was fishing for barramundi in the million-dollar barramundi tournament. The Respondent conceded he was fishing at the back of his house[26].
[26] Ibid, page 223.
The Respondent was then referred to a post of 6 November 2018 depicting him at the Darwin Turf Club[27]. He conceded he attended horseracing that day.
[27] Ibid, page 224.
On 13 November 2018, the Respondent conceded that he went to the cinema and saw Bohemian Rhapsody.
The Tribunal referred the Respondent to a post from 11 November 2018, with the caption “Good day out with the lads Million-dollar Barra still eludes us but ended up a beautiful day…” Then on 1 January 2019, photographs of a New Year’s Eve party which depicted the Applicant and others with the following caption:
Happy New Years all. Wild night with some cool peeps and very happy to see the back of the hardest year of my life and some stability and strength returning finally towards the end of 2018. Thanks for all the support, fun times, and love this year friends, much appreciated! Onwards and upwards 2019. Peace out!
Counsel referred the Respondent to his earlier evidence that, at this time during the Qualification Period, he said his he was at his worst which was not consistent with the Facebook posts. The Applicant said he would say things to people, just to make it sound as though he was living a life. He often said he was getting his strength back.
In November 2018, the Respondent said was living by himself in an apartment. He said at that time it was one of the nastiest times of his illness and, at times, he could not get out off the couch. His parents helped him every day.
The Respondent had denied he was out fishing in November 2018, but then conceded he went fishing, to a New Years’ Eve party, the races and the movies. He said he could do minimal “stuff” for himself. He said at times he would need supervision and other times he would not. He then said he may have been better at about the time he was fishing but during that period was generally sick. He said his parents would supervise him when required. His condition was very up and down. He said that he needed his parents all the time in the lead up to the Qualification Period.
The Respondent conceded that he would attend medical appointments by himself, attend the races, go fishing and was not supervised.
In re-examination, the Respondent said that, in respect of the reference about moving the fridge, a gentleman employed as a removalist moved the fridge and the Respondent directed him.
In answer to questions from the Tribunal, on the day he went fishing depicted on 10 November 2019 he said he was 50 metres from his home. The fishing scene in the post of 11 November 2019 was also close to his house.
Dr Ugwu’s Evidence
Dr Ugwu provided a report dated 16 December 2019, following an assessment on 11 December 2019 and he gave oral evidence. He is an occupational physician. He has experience treating patients with CFS, their return to work and vocational pursuits. He was provided with a copy of the Facebook entries contained in Exhibit C prior to his assessment of the Respondent.
In respect of his report at page 8, paragraph 4 Dr Ugwu was asked to explain the history and presentation of the Respondent that led to his diagnosis of depressive affective disorder as a significant part of his CFS. He explained that 30 – 40% of people presenting with CFS have a depressive disorder. The Respondent’s presentation and history was consistent with depressive affective disorder. The Respondent had been previously prescribed antidepressant medication by his treating doctors, albeit to some extent as a sedative. But he did not see management of a depressive condition in the Respondent’s medical history. He was taking antidepressant medication Imipramine at the time of the consultation as a sedative.
Depressive affective disorder can react with a person with CFS resulting in significant fatigue from activity. Difficulty with sleep changes, joint pain, low mood, lack of interest or enthusiasm can be indicative of a depressive condition. The Respondent provided information and history that was consistent with depressive affective disorder.
Counsel for the Applicant referred Dr Ugwu to the Respondent’s evidence, namely that in April 2019 he attended the Tamarin Centre. His parents took him there and he saw a psychiatrist for about two hours. It was recommended he take Olanzapine because of his mood. He chose not to take the medication. The Respondent was admitted in October 2020 as an inpatient to a psychiatric facility for displaying symptoms of mania, where he remained for about a month and was discharged about a month before the hearing. He was prescribed and was currently taking Olanzapine.

Dr Ugwu said he received a history of previous use of Olanzapine. It is used as a schizophrenic medication but also used for depressive affective disorder and depression.
Insofar as the evidence suggests that he didn’t take the medication following the April 2019 recommendation, it suggests a mental health condition may have been present during the Qualification Period. Dr Ugwu said the best medical speciality to recommend medication, given the suggestion of depressive affective disorder, depression, mania and schizophrenia during the Qualification Period was a psychiatrist. There was no referral to a psychiatrist and the Respondent told Dr Ugwu that he had not seen a psychiatrist but saw a psychologist in 2014.
Dr Ugwu was referred to pages 10 – 11 of his report and his reference to the Qualification Period. Regarding the Qualification Period, the Respondent said that he was generally functioning well and making good progress apart for periods of flare up such as June 2019. In relation to the June 2019 flare up he did not refer to anything specific but referred to increase fatigue, mood and irritability.
Insofar as Dr Ugwu referred to CIRS, he explained it is not a recognised medical condition in the diagnostic manual and medical practitioners and doctors do not use that diagnosis.
As for the Respondent’s work capacity during the Qualification Period, taking into account his level of function, activities and severity of condition, Dr Ugwu concluded that the Respondent was fit for work, with restriction of light office duties, for three hours a day, five days a week, namely 15 hours in seven days.
As for his assessment of the Respondent’s functional impairment referred to at page 10 of the report, and in respect of Table 7, he was not able to separate the impairment from the CFS. It is difficult to separate a person’s impairment when that person suffers with CFS and depressive affective disorder.
In cross-examination, Dr Ugwu said he had practiced in this area of medicine for 20 years. His work has exposed him to assessing people with CFS and their return to work and work capacity. It is common for those suffering from CFS to have a depressive disorder. He said, 30 - 40% of people with CFS also suffer from a depressive disorder.
When a person is referred with CFS, he will look for the presence of a depressive disorder or depression. The treatment of those conditions can result in significant improvement in the person’s overall presentation. Where there are features of depression, he will take an interest in considering the mental health condition. By dealing with depression, he achieves a good outcome for CFS sufferers.
Dr Ugwu agreed that there was a large volume of material provided to him which he considered prior to the consultation with the Respondent, but his competence is working with individuals in respect of helping them return to work, and it is not uncommon for him to receive a large volume of material. In relation to the Respondent, he took one hour to take his history and examine him. It took a lot longer to go through the material prior to the consultation. He said he was not underprepared to see the Respondent.
The Respondent did not say that he was depressed, but that was the impression Dr Ugwu gained from his demeanour and presentation during the consultation, namely that he was down. Dr Ugwu never used the word depression during the consultation but used the term ‘low’.
Counsel referred to page 7 of the Dr Ugwu’s report which reads, “[The Respondent] admits to symptoms of low mood, agitation, anger, rage, depression, poor refreshing sleep, fatigue, lack of interest and enthusiasm.” Dr Ugwu said that he was talking about symptoms, not the Respondent’s use of those descriptive words, including depression. Counsel referred to the Respondent saying he was suffering from mania. He agreed that was not a symptom of depressive affective disorder, but said it is a symptom of affective disorder in the sense of a presentation with bipolar, manic depressive disorder. It is in a different direction from depression.
Insofar as Dr Ugwu reported at page 12 that the Respondent could work a maximum of 3 hours a day, 5 days a week, he said he should not have used the word maximum. It should correctly read at least 3 hours a day, but not much more than that, and 5 days a week.
Dr Ugwu was sent the social media posts and considered them. In considering his presentation during the Qualification Period, he had regard to the material and the history provided by the Respondent which he documented in the report.
Mr Ken Conway (Respondent’s father)
He said that the Respondent had been diagnosed with CFS in about 2010 – 2011 by rehabilitation specialist Dr Favel at the Royal Darwin Hospital. They have been trying to manage his condition ever since. It affects his health generally and he is prone to other ailments. He is now unable to work. He tried different methods to maintain employment which did not work. He has been unemployed now for about two years.
He remembered the period when the Respondent applied for DSP. Since then his health has fluctuated. There was a period of time in 2020 where his health improved. However, the Respondent had to move out of the family home and sell his car. The family home is old and prone to mould which might be aggravating his condition. They had to be careful about accommodation and mode of transport. He moved to independent living in a unit.
He and his wife had been caring for the Respondent, albeit not in their home. They have made modifications to their home, including new ceilings, should he need to return home. They see him daily and in 2020 he visited them every day. He used an electric bike or public transport to travel to their home. They installed a home sauna and he would use their swimming pool. He would also do meditation. They assist with cooking and he cooks for himself. They provide transport using their car.
In respect of transport, he originally had a car. Then he sold the car and bought a motorbike. He no longer has a motorbike but uses his father’s electric bike which he parked at his unit. From time to time Mr Conway will give him a lift to appointments or the shops and occasionally he will borrow Mr Conway’s new car.
The Applicant lives a couple of kilometres from Woolworths in the city. Mr Conway may on occasions drive him to the shops. There is a market approximately 200 metres from his home and sometimes he does his shopping online and has it delivered. He prefers to go out and, on those occasions, he or the Respondent’s mother will go with him. They will go with him once a month. He cannot walk to the shops in the city. It’s also 1.5 kilometres to the main bus stop.
As for housework, his mother will do anything major such as the bathroom. The Respondent does light housework. The cooking is shared equally. His mother will cook something for him, which he freezes. She will cook specifically for him and his diet.
The Respondent has memory issues. Prior to CFS, he was a top sportsman, had good memory and was a good card player. He dabbled in online poker. That’s now disappeared. He misplaces things. He searches for words or stops halfway through a sentence. He keeps track of appointments, but they will check in regularly to make sure he is organised.
As for the Respondent’s concentration, when he applies himself, he can concentrate for short periods, but he cannot sustain it. He will stop and take a rest, sometimes sleeping, resting or meditating. He will need to prepare himself. He had difficulty at work focusing both on mental and physical levels.
In terms of planning, often he has to postpone engagements. He is good at analysing his own capacity.
The Respondent’s social life changed. Before CFS he was active socially. He was gregarious and the life of the party, had a great sense of humour and got on well with people. He has virtually no social life now. He finds it difficult to relate to people who were his friends, and he avoided social activity to stay off alcohol which was not good for him. He reads a lot and thinks about alternate remedies and medication that can help him.
When the Respondent moved to a new house in June 2019, Mr Conway assisted him. There were items in storage. He had a memory of moving a fridge and others were involved. They hired a truck and two people to help. He could not be specific about the move and the refrigerator.
Mr Conway said that his son was wanting to be a soccer coach, having previously been a good soccer player. However, it was too much for him and he had to give it up.
In cross-examination, Mr Conway said for most of 2020 until 2 months ago, the Respondent visited daily. He would use their pool and would meditate. For the last few weeks, they have not seen him as much. He hasn’t had the transport. In referring Mr Conway to the Qualification Period, he could not be specific about the Respondent’s condition and its impact upon him. They probably did not see him, but they would have been in contact almost daily. They did not provide daily supervision. They currently do not do so every day.
Dr MacDonald’s evidence
The Respondent relied on Dr MacDonald’s reports dated 6 June 2019[28] and 6 June 2020[29] as his evidence in chief.
[28] Exhibit A, PT29, page 222.
[29] Exhibit K.
In cross-examination Dr MacDonald said that he saw the Respondent at the Pandanus Medical in the Northern Territory.
Dr MacDonald saw the Respondent on the day of his report, dated 6 June 2019. Prior to that, he last saw the Respondent on 21 November 2017, and he did not see the Applicant between those dates.
In his report dated 6 June 2019, he reported that he saw the Respondent on 15 February 2013 for evaluation and management of his CFS symptoms. He had initially been diagnosed by Dr Flavell of Royal Garden Hospital in 2010. The Respondent was treated with regular B12 injections and low dose imipramine with a graded return to exercise in which he made reasonable progress over 18 – 24 months. His condition stabilised and he returned to work in 2014. The Respondent was also seen by other doctors in the same practice, including Dr Paroulakis for ongoing management of his condition.
In re-examination, Dr MacDonald said that between November 2017 and June 2019, the Respondent attended the practice and saw Dr Paroulakis on at least 8 occasions and possibly more. Dr Paroulakis works permanently in Darwin and was overseeing his condition during that period. Dr MacDonald works in Adelaide and consults in Darwin four or five times a month.
In response to the Tribunal’s question, Dr MacDonald said the Respondent was referred to a psychologist in 2016 namely Dr Rudge. The practice notes contain a referral letter requesting Dr Rudge see the Respondent to deal with stress with a view to counselling and referenced his history of CFS. There was also a mental health plan done at the same time dated 17 November 2016 and prepared by Dr Paroulakis. The plan enabled the patient to get access to psychological treatment with Medicare benefits. The notes said the Respondent was under stress but otherwise there was very little information in the notes.
Closing submissions
The Applicant
Counsel submitted that the evidence supports a finding that the CFS was not fully treated and stabilised during the Qualification Period for the following reasons:
(a)The evidence of the Respondent and the medical evidence confirms he repeatedly sought treatment for mental health conditions. Dr Ugwu explained that the Respondent’s symptoms were consistent with symptoms of depression and a depressive affective disorder.
(b)The depressive symptoms and disorder cannot be separated from the CFS. It cannot be determined what symptoms arise from CFS and what symptoms arise from the depressive disorder. Further, even if the depressive symptoms do not give rise to a diagnosis of a depressive disorder, treatment of those symptoms, including a referral to a psychiatrist and a trial of appropriate antidepressant medication targeted to the symptoms complained of by the Respondent, separate to assisting him to sleep, had not been trialled before or during the Qualification Period. If trialled, it was likely that it would have resulted in a significant functional improvement to a level that allowed the Respondent to return to work for a period of at least 15 hours per week.
(c)Alternatively, if the psychological condition was yet to be diagnosed, any impairment flowing from the CFS cannot be assessed under Table 7. Dr Ugwu’s evidence, which was not challenged in cross-examination, was that he would be unable to separate out the symptoms that arise from any mental health condition from the symptoms that arise from CFS.
(d)The Applicant accepts that a maximum impairment rating of 10 points on Table 1 would be appropriate should the Tribunal find the CFS condition was FDTS during the Qualification Period. However, the Tribunal ought not accept that there is a severe functional impairment arising from that condition under Table 7. This, it was submitted, must be correct when viewed against the activities and events the Applicant was attending at the time that he lodged his DSP claim and including in June 2019 when he said his condition again worsened. He was attending social outings into the late hours of the night, the next day and on consecutive days and he does not satisfy a severe impairment rating under Table 1 or Table 7. The Facebook evidence was compelling.
(e)In regard to Table 7, the evidence before the Tribunal does not support the Respondent needing frequent, namely at least once a day, assistance and supervision at all for any one of the categories to be considered in respect of severe functional impairment.
Hence, it was submitted, that the CFS was not fully treated and stabilised during the Qualification Period. The fact that the Respondent was referred, shortly after the Qualification Period, and more recently sought treatment for his mental health, supports the submission that prior to and during the Qualification Period it was appropriate for him to be assessed by a psychiatrist to determine what treatment was necessary.
The CIRS condition is not pressed as separate condition to the CFS.
The Respondent does not meet s 94(1)(b) during the Qualification Period. Dr MacDonald did not see the Respondent at or about the time of the claim for DSP or the Qualification Period. Further, the clinical notes that were before the Tribunal do not accord with the opinions expressed in the doctor’s report.
As for the Respondent’s work capacity, Dr Ugwu’s evidence was that the Respondent could work at least 3 hours a day or 15 hours a week, albeit not much more. He was the only expert who gave evidence on that topic and his evidence should be accepted. Hence, he did not satisfy s 94(1)(c).
Even if the Tribunal was satisfied that the Respondent was entitled to a combined total of 20 points, he had not actively participated a program of support at the date of his claim for DSP.
The Respondent
Counsel argued that the Respondent met the criteria for the grant of DSP because the CFS was FDTS. There was a long history of treatment since 2010. The CFS was fully treated and stabilised, having undertaken all reasonable treatment available to the Respondent.
As for his impairment, the evidence of Dr MacDonald should be preferred. He was the treating doctor and set up the management plan that Dr Paroulakis was creating. He made the decision about the management of the Respondent’s condition.
The Respondent argues that he should be assigned an impairment rating of 10 points on Table 1 and 20 points on Table 7. It was noted that in respect of the latter claim, the AAT1 awarded 10 points on Table 7.
In relation to Table 7 – Brain Function, it was submitted that a person needs frequent (at least once a day) assistance and supervision in at least one of those functions referred to in items (1)(a) – (j) of Table 7. The impaired condition need not be the same each day and can vary from day to day, but each day that person required assistance for at least one of the named functions. The task required to be performed each day may differ, but each must require assistance and supervision. The Tribunal agrees with that submission with respect to the application of the Table.
Counsel submitted that each of the neurological or cognitive conditions in Table 7 are a consequence of CFS. It was submitted that self-reporting is going to be a major factor in identifying the functional impact of CFS, however in Dr MacDonald’s report of 6 June 2020, he confirmed the Respondent has a lot of trouble with planning, concentration and memory and referred the Tribunal to page 2 of his report. It was submitted that this was also confirmed by the evidence of the Respondent’s father.
As for the physical impairments referable to Table 1, it was submitted that he could never walk to the shop and then walk home. He needed and received assistance when shopping. It was submitted he had serious mobility issues and often needs assistance. Mr Conway said the Respondent cannot mop the floor, but he can do light tasks in and around the home. Further, it was submitted that he does have limitation on his physical stamina and exertion.
In respect of the question of whether the Respondent’s conditions are the consequence of CFS or depressive affective disorder as referred by Dr Ugwu, it was submitted that all of his functional impairment should be considered as part of his CFS. It is that condition which is exacerbated by other conditions affecting his life, such as CIRS or other issues that may affect him from time to time.
Counsel referred to the report of Dr Ruth Edwards dated 6 May 2020, who it was said opined that the Respondent’s impairment was a consequence of his CFS, even while she was treating the mould allergy condition. Hence, it was argued that the mould condition together with any depressive condition were aggravating and exacerbating his CFS and not a cause of it. The same, it was submitted, can be said of any depressive condition.
If the depressive condition is consequent upon another cause, other than CFS, and gives rise to a separate impairment rating, the Tribunal should be cautious of other impairments being raised when they relate to Table 5 – Mental Health Function, in the absence of a diagnosis from a psychiatrist or clinical psychologist.
The Respondent invited the Tribunal to disregard the report of Dr Ugwu dated 16 December 2019 as it was made over 12 months from the end of the Qualification Period and when the doctor had regard to misleading social media posts.
In respect of the social media material, it was submitted that, having regard to the Respondent’s evidence and that of his father, he did not move a 60 kilogram fridge and that the Respondent has a fear of not having friends. Consequently, he tries to present himself as he used to be prior to the impact CFS had upon him. To the extent that there was a period when he was going out, he arrived late and left early, in that relevant period, and there was a lengthy post about his condition and pleading with his friends not to forget him.
Council referred to the evidence of the Respondent’s father in relation to him endeavouring to be a soccer coach which was something the Applicant was anxious to do. Nonetheless, despite that desire he was unable to continue because of his CFS condition.
In regard to the CITW, counsel submitted that when the Respondent was working, he could not complete his reduced work hours. Dr Ugwu’s evidence gave inconsistent answers about a maximum of 3 hours per day which he changed to at least 3 hours a day and it was submitted that the Tribunal ought to disregard his opinion. It was submitted that the Respondent has no ability to work which was supported by the evidence is father, Dr Edwards, Dr MacDonald and Dr Paroulakis.
He was involved in the POS but was unable to participate because he was unwell. He met the requirements of clause 7(5) of the Determination. He was still in the program at the time of the claim as required by clause 7(5)(a) and he was prevented solely from his impairment from maintaining work. He met the exemption which should apply to the Respondent.
Applicant’s reply

The Applicant in reply submitted that in respect of Dr Edwards’ report of 6 May 2020[30], the Tribunal should give no weight to that report because:
(a)the report is a response to a series of questions, some of which are very leading.’ The questions gave the doctor and opportunity to circle the answer to the question that was most accurate to the opinion formed. Further, the questionnaire only referenced the severe impairment category (20 points) and not the other categories of impairment under the relevant Table;
(b)the responses to questions in respect of the Respondent’s impairment were inconsistent with what was demonstrated the Respondent was able to do at that time;
(c)the doctor did not give evidence, and was not made available to be cross-examined on the report generally and the inconsistencies;
(d)there was no explanation for the opinions reached and the report was a tick box that only included the answer that would support a finding of 20 points; and
(e)nowhere in the report was the opinion of the doctor a thorough review of the Respondent directed to the Qualification Period; and
(f)there is no reference in the report to the acknowledgement of the Tribunal’s requirements in respect of the duty of an expert.
[30] Exhibit I.
Counsel for the Applicant submitted that Respondents criticism of Dr Ugwu’s report was without merit. He based his report on the history given by the Respondent, a thorough review of all of the available medical evidence which included evidence throughout the Qualification Period, and the Facebook material Exhibit C. On that basis, it is not a report which should be given no weight as was submitted by counsel for the Respondent.
Further the criticism of Dr Ugwu with respect to the Respondent’s work capacity was without merit. He merely corrected the language of the report to use the words “at least” rather than the word “maximum” which accords with an earlier passage in his report.
Consideration
The Tribunal received two reports of Dr Howard Flavell, Rehabilitation Specialist, Royal Darwin Hospital both dated 24 March 2011 in which he opined that it was likely the Respondent had CFS. The Tribunal also received a referral letter of the same date to Dr Bourke of Darwin Hospital asking he see the Respondent to exclude any other organic issues. The Tribunal does not have a report from Dr Bourke.
Dr MacDonald in his report of 6 June 2019 (five months after the Qualification Period) confirmed the diagnosis of CFS and that he and other doctors in his practice had been treating the Respondent for that condition for a number of years. However, prior to that date he last saw the Respondent over 18 months earlier on 21 November 2017 (twelve months before the Qualification Period). There is no evidence that Dr MacDonald saw the Respondent after 9 June 2019 or at or about the time of the Qualification Period. The Tribunal did not receive a report nor hear evidence from Dr Paroulakis or such other doctor from the practice where the Respondent was receiving treatment.
The Applicant does not dispute that the Respondent’s condition of CFS has been fully diagnosed and the Tribunal agrees with that concession.
The question for the Tribunal in this matter is whether the condition of CFS had been fully treated and fully stabilised as at the date of the application for DSP on 23 November 2018 or within the Qualification Period.
In an Employment Services Assessment Report dated 6 July 2018[31], the reporting physiotherapist referred to “Dr Paroulakis (22.6.2018) noted severe lethargy, fatigue…. brain fog, severe joint pain and severe indigestion.” The Respondent reported to the physiotherapist that if he pushed himself beyond his limits, he would be unable to work for several days due to exertional malaise and needs to rest in bed for several days to recover. Endurance and stamina were reported low. Brain fog difficulty makes judgement and concentrating difficult, with issues with short and long term memory with poor recall. He referred to support from his parents. He had a walking tolerance of 1.5 kilometres, but he was unable to recover as fast as he once was. He complained of waking during the night, not getting a deep sleep, lung function issues including tightness of chest and inability to obtain adequate oxygen exchange, which he reported improved with removing himself from mouldy environments. The author opined that the Respondent should be able to increase work to 15 – 22 hours per week in a safe and suitable environment with appropriate support modification.
[31] Exhibit A, T14, pages 151 – 157.
The Respondent said that at the time of filing his application for DSP he was “very very sick” and the worst he had ever been in his life. In his evidence, he described the significant debilitating effect that the condition had upon him and his ability to function on a daily basis. He said the condition stopped him in respect of the physical side of his life and referred to the impact it had on his ability to sleep, which meant he was chasing sleep every day, and he detailed his cognitive issues including that he was forgetful, had brain fog and relied on others, in particular his parents, to assist him. He was placed on antidepressant medication from in or about 2011 to assist with his sleep which he has used throughout most of his illness. He also referred to the various medications and vitamin supplements he was receiving.
In his report dated 16 December 2019, Dr Ugwu reported that the Respondent described himself as frustrated and exhausted and, in the last year, he has felt angry and depressed which he believed is caused by his “mould” condition, which arises from being exposed to a mouldy environment, which included from his car which he then sold, and from his parent’s house. He is quoted as saying, “my parent’s house is a mouldy house, that is probably what damaged my life throughout”. He had low energy compounded by his mould condition which he said was diagnosed in 2016. The mould condition combined with the CFS made his psychological condition worse, but he does not believe that he has depression.
The Respondent does not rely on his CIRS in support of his claim for DSP. Nonetheless, he still maintained that the condition was impacting upon him, including his low energy level which also formed part of his CFS condition. The Respondent was consulting a dietician Dr Sagar who diagnosed CIRS, as well as Dr Edwards in relation to that condition.
Dr Ugwu reported that the Respondent said, outside the period of a relapse, he was usually able to vacuum, mop and cook but generally has his groceries delivered. His walking tolerance was a couple hundred metres per day. He generally does not exercise but will go out to socialise occasionally, approximately 10 times a year. He avoids social activities because it often leads to fatigue.
The Respondent reported to Dr Ugwu generally doing well save for a relapse in June 2019 which he described as a “flare up”. This was a period of significant deterioration which “improved again back to the status between 2016 and June 2019”.
Under heading ‘Current Status’, Dr Ugwu detailed the Respondent’s numerous complaints about his current health in which he complained of, or attributed much of his condition to, his adverse reaction to mould. This included worsening mood, issues with sleep, frustration, exhaustion, feeling hopeless, angry and depressed. He also described low energy in the year preceding his claim in November 2018 as compounded by the mould condition, and the combination of CIRS and CFS all made his psychological condition worse. He then said, “[the Respondent] however states he does not believe that depression is his problem, as he believes it is the ‘mould’ condition and the chronic fatigue syndrome that is his main problem.” The Respondent referred to being detoxified by using activated charcoal, and other complementary medicine products.
The Respondent told Dr Ugwu that he had never seen a psychiatrist but did consult a psychologist in 2014. As can be seen by the Applicant’s evidence, that was not true at least insofar as the patient summary records of April 2019 referred to a recent psychiatric report and that his parents were concerned about his mental state, and asked him to see a psychiatrist at a mental health facility which he did in April 2019. It was recommended he take Olanzapine which was prescribed by his general practitioner, but he refused to fill the prescription because he did not believe he had a psychiatric problem.
Under heading ‘Examination’, Dr Ugwu reported the Applicant presenting with normal gait, no obvious muscle wasting, lethargy or fatigue. He did not have an unhealthy pale appearance (pallor), no upper respiratory irritation, jaundice or cyanosis. He had full range of spinal movement, he performed squats with ease and normal movement of elbows and shoulders.
Under heading ‘Psych Assessment’ it was noted the Respondent wanted a heal himself in a natural way saying,
my doctors tried to point me to the antidepressants, I tried sometimes but it made me worse earlier in the course of my chronic fatigue syndrome diagnosis. He further admitted that his doctors subsequently advised again to place him on antidepressants but he does not wish to be on antidepressants.
Under heading ‘Summary and Assessment’, Dr Ugwu said the Respondent reported worsening of his condition since 2016 following the diagnosis of his mould condition. He then reported:
[The Respondent] admits to symptoms of low mood, agitation, anger, rage, depression, poor refreshing sleep, fatigue, lack of interest and enthusiasm. These however he ascribes to the mould diagnosis. He states his psychological symptoms worsened since 2016 and is ongoing, exacerbated particularly by what he describes as “mould hit” when he believes he gets exposed to mould.
Dr Ugwu opined that the diagnosis of CFS as at the Qualification Period was appropriate, however, in addition a diagnosis of depressive disorder during the Qualification Period was in order. He continued:
I consider that Mr Conway has history and presentation to make a diagnosis of depressive disorder as a significant part of his chronic fatigue syndrome presentation, or in fact a separate diagnosis of depression as a separate condition. Mr Conway acknowledged that his treating doctors had proposed antidepressant management but he was not keen to take that up. I have not identified adequate antidepression management neither has he had a specialist psychiatrist review during the period prior to and during the “qualification period.”
Dr Ugwu said the Respondent did not wish to commence antidepressants. He said he had adverse effects to antidepressant medication, that he did not have a depressive condition, and that he wished to further manage himself with supplementary or “natural treatment”. Dr Ugwu opined that referral for psychiatric review and management prior to and during the Qualification Period was in order. Further, that pharmacotherapy for the depressive disorder would have improved the Applicant’s symptoms of fatigue, edginess, irritability, and sense of hopelessness and disempowerment. He reported that antidepressant medication had been successfully used in the management of depressive disorders as a separate entity and had in some cases produced improved outcomes with CFS.
Dr Ugwu did not consider the CFS condition was FDTS during the Qualification Period.
Importantly, Dr Ugwu reported that he received social media information depicting the Respondent participating in various social activities. He accepted that the Respondent would have had some difficulty concentrating on complex tasks for more than an hour but did not appear to have difficulty planning and organising or arranging travel and related activities, including socialising and maintaining contact with his social contacts. This material was not before the other medical practitioners who reported to the Tribunal and was not provided to them to comment upon when giving evidence.
Dr Ugwu opined that, in respect of the Table 1, the Respondent was within the moderate functional impact category during the Qualification Period. In respect of Table 7, the Respondent qualified for mild functional impact resulting from a neurological cognitive condition. Dr Ugwu also opined that the Respondent either had a mental health condition or psychiatric disorder which gave rise to a possible assessment under Table 5. He reported the Respondent “can be assigned a mild functional impact being capable of self-care and independent living, however reports avoiding social interaction. He also describes strained interpersonal relationships with occasional tension and arguments with his parents.”
Dr Ugwu said the Applicant had:
strongly formed views about his medical conditions and the related diagnosis; in particular he considers that what he refers to as a “mould” condition as a primary cause of his presentation of low mood, depressed affected and agitation. As I have advised earlier, a psychiatrist review is advised.
In his report dated 6 June 2020, Dr MacDonald confirmed that the Respondent had been diagnosed with CFS in 2011 and first consulted with him in 2013 with respect to the long-term management of the condition, that treatment had only been partially effective and that the Respondent sought other advice having been diagnosed with a mould reaction in relation to which Dr MacDonald could not comment.
Dr MacDonald said the Applicant had not been diagnosed with depression and referred to tricyclic antidepressant medication in low dose been prescribed to assist with sleep. He reports “the previous medical report by Dr Jude Ugwu did not seem to engage in this concept.” Yet it is unclear upon what basis he makes that criticism of Dr Ugwu, who reported under heading ‘Management’ the use of Imipramine since 2011 which helped the Respondent sleep.
It is also here appropriate to note the contradictory evidence of the Respondent in relation to his use of Imipramine. He said he used the drug for most of his illness which was prescribed by Dr MacDonald. He stopped taking it within the last 12 months. However, the Respondent had not seen Dr MacDonald for over 18 months, and the medical records indicate he was last prescribed the medication by Dr MacDonald on 25 October 2016. He then said he did not need a prescription for the medication which he obtained from overseas. He became argumentative. In answers to questions from the Tribunal he then said that Dr Paroulakis had been prescribing Imipramine until recently which script he used to acquire the drug from overseas. Nonetheless, there were no medical records of such prescription since 25 October 2016. The Respondent’s evidence was confusing and lacked both credibility and reliability. The Tribunal is satisfied that the medical records are correct and that he was not prescribed Imipramine after 25 October 2016.
The Facebook material which was before Dr Ugwu and the Tribunal was directed in particular to two specific periods in the Respondent’s life when he said his CFS had a significant debilitating impact upon him and his day to day life, namely, the Qualification Period and in June 2019 when he had a relapse.
At a time of the Qualification Period, when he said he was “very very sick”, and the sickest he had been in his life, there are Facebook entries depicting him with friends, on 6 November 2018 posing with two ladies at the Darwin Races, on 10 and 11 November 2018 fishing in the million dollar barramundi competition, and 1 January 2019 at a New Years’ Eve party which he captioned “Wild night with cool peeps…”
In May 2019, there are Facebook entries referring to him out walking, partying with “cuzzies”, attending a music festival, on 22 May 2019 playing golf with his father, and on 30 May 2019 a photograph of his new motorbike. Then there are a series of events commencing in or around June 2019, including on 1 June 2019, attending a night football match, on 2 June 2019 standing before a Liverpool soccer club flag with the caption “6 am and the Reds are marching in”, 4 June 2019 at a night soccer match, 12 June 2019 socialising at an outdoor function with friends, 14 June 2019 at various concert venues including posing with a man and a woman at Monsoons Restaurant, 15 June 2019 at a pre-game soccer occasion, 16 June 2019 visiting a Buddhist Temple and Gardens and on that same evening at a music concert. On 22 and 23 June 2019 and again 28 and 29 June 2019 at music concerts. Those Facebook entries also show the Respondent pole dancing.
The Respondent said he mentioned to Dr Ugwu the period of June 2019 because he had the flu and a consequent relapse in his CFS condition. He later said that he came good after a couple of weeks in June when he thought he was on his way to recovery, but then his health fell away again. He also accused Dr Ugwu of not accurately recording the history of reported symptoms and making up his own entries. The Respondent’s evidence was unbelievable and an attempt to invent an explanation for why in May, and throughout June 2019, he was performing at a much higher level of functioning than he otherwise described in evidence. His evidence lacked credibility and reliability. He was not truthful when giving this evidence.
That Facebook material demonstrated the Respondent enjoying a lifestyle that was significantly different to the debilitating effects he said that his CFS was having upon him at that time. Insofar as he said he was socialising occasionally the Tribunal does not accept that evidence. The attendance at social functions, music concerts, football and soccer matches, including on consecutive days is not explained by the Respondent when he said he would exaggerate his participation in events to give the appearance of an active lifestyle, that he would arrive late and leave early or that he would sleep for a week before he would go to a function. The Tribunal does not accept his explanation that on these occasions he was merely sitting down and was not expending energy. The Facebook material is also inconsistent with the Respondent’s suggested limited ability to walk.
Having regard to that evidence the Tribunal is satisfied that the Respondent was not credible or reliable in describing the impact his CFS was having upon him during the Qualification Period and in June 2019.
The Tribunal also prefers the evidence of Dr Ugwu to that of Dr MacDonald and Dr Edwards. Dr MacDonald’s reports were brief. Dr MacDonald had limited contact with the Respondent, saw him five months before the Qualification Period, did not direct his report or evidence to the Qualification Period and had not seen nor was he referred to the Facebook material. He does report, however, that it was unfortunate that the Respondent did not continue with antidepressant medication. The Tribunal agrees with the Applicant’s submissions with respect to the criticism of the reports of Dr Edwards being proforma documents directed only to severe impairment ratings on Table 1 and Table 7.
Counsel for the Respondent referred to his inability to walk to shops. However, that evidence needs to be given context. The Respondent’s father said in evidence that he and his wife would take the Respondent shopping to Woolworths which was a couple of kilometres from his house in the city and it was all uphill. There was a market approximately 200 metres from the Respondent’s home where he would shop, or he would do so online and get deliveries.
The Tribunal accepts that the Respondent’s father was a truthful witness who did his best to assist the Tribunal. He became upset when explaining the Respondent’s condition and how it affected him, and the impact his condition has had upon both he and his wife. The Tribunal accepts that he and his wife help and support the Respondent. However, his evidence was general in nature and not specifically referable to the Qualification Period. The Facebook entries were not put to him in evidence, and again the Facebook entries demonstrate the Respondent was not a person who was unable to walk or suffered from the mobility impairments referred to in the severe or moderate functional impact assessments described in Table 1.

The Respondent said in evidence that he had seen a psychologist in the past as a result of anger directed to him in the workplace.
The Tribunal received a report of Dr Ruth Rudge, clinical psychologist, dated 14 April 2020[32] of two brief paragraphs in which she refers to previous treatment for issues associated with long-term chronic fatigue syndrome and that at no time had the Respondent shown signs of having a depressive disorder. She said the Applicant did not have a depressive illness nor suffer from any underlying depressive symptoms.
[32] Exhibit I.
That report is so lacking in detail that it is unhelpful. It does not inform the Tribunal about when the consultations took place, how many times the Respondent consulted her and is not referable to the Qualification Period. The Respondent said that he saw a clinical psychologist in 2014. Having regard to the evidence, the Tribunal concludes that Dr Ruth Rudge’s report is referable to that 2014 consultation, four year before the application for DSP.
The thorough report of Dr Ugwu detailed the symptoms of depressive illness to which I have referred. Again, the Tribunal prefers the evidence of Dr Ugwu as it relates to the Respondent’s medical condition at the time of the Qualification Period. The Tribunal also accepts his opinion in relation to the Respondent’s work capacity.
It is also relevant that in the medical records indicate mental health concerns including on July 2015 that his PTSD remains a problem. Prior to the Qualification Period he had been place on mental health care plans. The Respondent’s parents thought he was behaviour was unusual and he attended the Tamarind Centre in April 2019 where he saw a psychiatrist for about two hours. It was recommended he take Olanzapine because of his mood. Olanzapine is a schizophrenic medication also used for depressive affective disorders and depression.
The medical notes of 25 April 2019 refer to a recent psychiatric report which arguably was received following the Tamarind Centre consultation which was not before the Tribunal. He was prescribed Olanzapine by Dr Paroulakis. He declined to fill the prescription because he did not think he had a psychiatric condition. Further, as counsel for the Respondent properly disclosed to the Tribunal, the Respondent was admitted in October 2020 to a psychiatric facility as an inpatient because he was displaying symptoms of mania. He remained there for approximately one month and was prescribed and currently taking Olanzapine.
The Tribunal accepts the evidence of Dr Ugwu that a person suffering from is CFS may also present with a depressive affective disorder or depression. The symptoms cannot be separated. However, the treatment of the depressive affective disorder or depression can, and in the circumstances of the Respondent, would likely have resulted in a significant functional improvement including the potential that he be able to return to work for a period of at least 15 hours per week.
The Tribunal accepts Dr Ugwus opinion that the Respondent had arguably demonstrated symptoms consistent with depressive affective disorder or depression at the time of the Qualification Period and before.
Hence, it could be said that while his CFS was fully diagnosed, it was reasonable that he received treatment by a psychiatrist and engage in reasonable treatment including the taking of medication for such diagnosed condition, which was likely to have a beneficial impact on his CFS.
Accordingly, the Tribunal is satisfied that the Respondent’s CFS was fully diagnosed but not fully treated and fully stabilised at the time of the Qualification Period. The Tribunal also accepts the opinion of Dr Ugwu that the Respondent would have had the capacity to work at least, but not much more, than 15 hours per week.
Conclusion
The Tribunal is satisfied that the Respondent’s CFS was not fully treated and fully stabilised as at the date of the claim for DSP or during the Qualification Period and therefore he is not entitled to an assessment in respect of the Impairment Tables contained in the Determination.
Decision
The Tribunal sets aside the decision under review; and in substitution, decides that the Respondent was not eligible to receive the disability support pension as he has not satisfied sections 94(1)(b) or (c) of the Social Security Act 1991 as at the date of claim or during the Qualification Period.

I certify that the preceding one hundred and seventy-eight (178) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

.......................[SGND]..............................
Associate
Dated: 28 May 2021

Date of hearing: 18 November 2020

Advocate for the Applicant: Ashley Burgess, Sparke Helmore Lawyers

Advocate for the Respondent: Bridgett McDermott, Darwin Community Legal Centre

[2021] AATA 1552

28 May 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Date of hearing:	18 November 2020
Advocate for the Applicant:	Ashley Burgess, Sparke Helmore Lawyers
Advocate for the Respondent:	Bridgett McDermott, Darwin Community Legal Centre