Douglas; Secretary, Department of Social Services (Social services second review)
[2017] AATA 581
•3 May 2017
Douglas; Secretary, Department of Social Services (Social services second review) [2017] AATA 581 (3 May 2017)
Division:GENERAL DIVISION
File Number(s): 2016/2282
Re:Secretary, Department of Social Services
APPLICANT
AndRachel Douglas
RESPONDENT
DECISION
Tribunal:Professor R McCallum AO, Member
Date:3 May 2017
Place:Sydney
The decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal, dated 1 April 2016 and posted 8 April 2016, is set aside with a direction that Ms Douglas did not qualify for Disability Support Pension during the period from 7 April 2015 to 7 July 2015.
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Professor R McCallum AO, Member
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – Chronic Fatigue Syndrome – respondent has a physical, intellectual or psychiatric impairment – respondent’s condition not fully treated, diagnosed and stabilised - decision under review set aside and substituted
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) sch 2 Cl 4
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)CASES
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447Ulukut and Secretary, Department of Social Services [2014] AATA 399
REASONS FOR DECISION
Professor R McCallum AO, Member
3 May 2017
The Respondent, Ms Rachel Douglas is a young adult.
On 7 April 2015, Ms Douglas lodged a claim for Disability Support Pension (DSP).
Her claim was accompanied by a medical report from her general practitioner, Dr Penny Caldicott, dated 23 March 2015. In this report, Dr Caldicott recounted that Ms Douglas had been her patient since 2005. Dr Caldicott stated that Ms Douglas suffers from chronic fatigue syndrome, the onset of which was in 2006. Dr Caldicott wrote that this diagnosis is presumptive and that no further investigations or tests were planned to confirm the diagnosis. Dr Caldicott stated that the diagnosis was confirmed in 2008 by a paediatrician, Dr Underwood.
In the report, Dr Caldicott wrote of the effects on Ms Douglas as follows:
Sleeping part of most days, after working 6 hrs, comes home and sleeps x 1 ½ days. Poor concentration and short term memory. Frequent headaches - unable to notice a headache. Very irritable, anxiety and severe nausea mid cycle + before menstruation.
Dr Caldicott stated that the current treatment was graded exercise, rest and sleep when needed and avoidance of chemicals and additives in Ms Douglas’ diet. Dr Caldicott stated that future treatment was graded exercise, and treatment of micronutrients deficiencies.
In a later medical report dated 10 March 2016, Dr Caldicott wrote that she had "made an error” in stating that the chronic fatigue syndrome was presumptive.
On 27 May 2015, Ms Douglas attended a job capacity assessment (JCA). In the JCA report, which was submitted on 7 July 2015, it was stated that Ms Douglas’ condition of chronic fatigue syndrome was not fully diagnosed, treated and stabilised during the claim period. The report stated as follows:
[I]t appears the only specialist involvement has been Paediatrician review which occurred 7 years ago. Given Ms Douglas' age, it would be beneficial for her to consult with a Rheumatologist given her chronic and severe fatigue. This would help identify any further treatment or management options. In addition, other treatments such as counselling, pain management and conventional medications may assist with nausea symptoms.
The Department of Human Services, which is better known as Centrelink, rejected Ms Douglas’ claim for DSP on 8 July 2015.
MS DOUGLAS SEEKS REVIEW
Ms Douglas sought review from an Authorised Review Officer (ARO), however, on 22 October 2015 the ARO affirmed Centrelink’s decision.
Ms Douglas appealed to the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT) which is known as an AAT first review (AAT1).
The date of the AAT1’s decision is 1 April 2016 and the decision was posted on 8 April 2016.
The AAT1 held that Ms Douglas fulfilled the criteria for the grant of DSP.
Ms Douglas and her mother Mrs Deborah Douglas gave evidence at the AAT1 hearing by telephone.
The AAT1 summarised the evidence as follows:
17. A summary of the oral evidence about the history of treatment, as provided to the tribunal and previously to the job capacity assessor (see folio 58) is:
·Miss Douglas has not seen Dr Underwood for some years and he no longer has any of her medical records. Drs Avard and Caldicott have a special interest in chronic fatigue syndrome and Dr Underwood had indicated that, as the treatment they were recommending was the same as his own, Miss Douglas should continue to be treated by them. She therefore did not return to see him.
·About four years ago she saw a professor in Canberra, who advised her to avoid gluten.
·She has tried a number of different treatment regimens including vitamin and diet therapies and lifestyle changes. They have tried to adopt a holistic approach to the condition. However, as Miss Douglas has a very sensitive gut, she could not tolerate many medications she tried.
·Currently she takes vitamins and nutritional supplements, but no prescription medications because they make her sick. She avoids wheat and preservatives. She tries to do some walking when she can, to avoid depression.
18. A summary of the oral evidence at hearing about the impact of the condition is:
·Fatigue and nausea are the main issues and the condition can be unpredictable. Miss Douglas can have better days in which she might be able to do a bit of walking and perhaps tidy her room. She would then need to rest afterwards. On bad days she would need to stay in bed all day and only gets up to use the bathroom. She also gets headaches for which she takes painkilling medication. Previous acupuncture also helped.
·Miss Douglas is generally independent in her self-care. She denied problems with manual dexterity but said she has reduced grip strength and has some problems washing her hair.
·Most activities, such as folding and putting clothes away, will tire her. She said occasionally she can empty the dishwasher. She tries to go to the shops but cannot last long there. She drives her car to local venues only, about once or twice a week. She does not use mobility aids, and rarely uses public transport. She can only use a computer for short periods due to problems with prolonged sitting. She uses a tablet while lying down.
·Miss Douglas regularly gets “brain fog” and cannot think clearly. She had difficulties with her studies and when she was working. The work involved customer service duties and her employer would allow her to sit/rest as necessary. She could not sustain this work for two 6.5-hour days per week and ceased working in July 2015 (see folios 54 and 62). Mrs Douglas indicated that her daughter would only be able to sustain work for about an hour at a time.
19. The tribunal notes that the job capacity assessor did not consider the condition to be fully treated and stabilised. The assessor stated: "...it appears the only specialist involvement has been paediatrician review which occurred 7 years ago. Given Ms Douglas’s age, it would be beneficial for her to consult with a Rheumatologist given her chronic and severe fatigue. This would help identify any further treatment or management options. In addition, other treatments such as counselling, pain management and conventional medications may assist with nausea symptoms.”
20. After the hearing the tribunal consulted a variety of internet websites concerning chronic fatigue syndrome. Those websites indicate that a diagnosis of the condition can usually only be made by excluding other causes of symptoms complained of and there is no known cure for the condition. There are also stated to be various subtypes of the condition and treatment/management needs to be tailored to the individual. The treatment modalities indicated in those websites are of the types already tried or currently being undertaken by Miss Douglas.
21. The following findings of fact are based on the oral evidence provided at hearing and documentary evidence contained in the applicant's departmental fife and computer record.
The applicant suffers from chronic fatigue syndrome, which is of longstanding. She has undergone a variety of treatment modalities including graded gentle exercise, medications and diet/lifestyle changes.
The applicant has symptoms of fatigue on most days when performing light household tasks and was unable to regularly attend for part-time work of 6.5 hours per day, twice a week. Her employment was reduced to one day per week and then ceased in July 2015.
In its decision, the AAT1 did not set out the internet sites which were consulted after the hearing, nor the date or dates on which these websites were consulted. The AAT1 did not list the titles of the internet articles, nor the names of their authors, nor the qualifications of those authors, including whether or not they had medical qualifications. As these websites were consulted after the hearing, it does appear that the parties to the hearing who were present at the hearing, were given no opportunity to comment on the internet material which the AAT1 consulted.
APPEAL BY THE APPLICANT
The Applicant, the Secretary, Department of Social Services, has appealed to the General Division of the AAT which is known as an AAT second review (AAT2).
THE LEGISLATION
The relevant provisions governing eligibility for DSP are to be found in the Social Security Act 1991 (Cth) (the SS Act).
The criteria for DSP are set forth in section 94 of the SS Act. In Ms Douglas’ circumstances section 94(1) relevantly provides:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person's impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
Put simply, I must be satisfied, first, that Ms Douglas has one or more physical, intellectual or psychiatric impairments. Second, that these impairments are rated at least 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables). Finally, I must be satisfied that Ms Douglas has a continuing inability to work.
The phrase "continuing inability to work" is defined in subsection 94(2) of the SS Act. In Ms Douglas’ circumstances, it relevantly provides as follows:
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)...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.
“Work” is defined in subsection 94(5) as follows:
work means work:
(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person’s locally accessible labour market.
THE IMPAIRMENT TABLES
Section 94(1)(b) of the SS Act obliges me to decide whether the impairments of Ms Douglas are worth 20 points under the Impairment Tables. This requires a few words of explanation.
In Ulukut and Secretary, Department of Social Services [2014] AATA 399 Senior Member Isenberg helpfully explains the operation of the Impairment Tables in the following words which I gratefully reproduce here. Senior Member Isenberg states:
[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, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.
Importantly, impairments can only be assigned ratings under the Impairment Tables when the medical condition is permanent within the meaning of the term in the Impairment Tables and the impairment resulting from the condition is likely to persist for more than two years. The Impairment Tables provide at subsection 6(4) that the condition is considered to be permanent if it has been fully diagnosed, treated, stabilised and is likely to persist for more than two years.
Subsection 6(5) of the Impairment Tables provide that when considering whether a condition is fully diagnosed and treated one must consider: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years.
Subsection 6(6) provides, in part, that a condition is fully stabilised where a person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years.
It is also important to appreciate that under subsection 10(5), if two or more conditions cause a common or combined impairment, then “a single rating should be assigned in relation to that common or combined impairment under a single Table”. However, subsection 10(6) goes on to provide that in assessing two or more conditions which cause a common or combined impairment, “it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once”.
Finally, when assessing mental health functions under Table 5 of the Impairment Tables, regard must be had to its introduction which provides, in part, as follows:
·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).
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
THE THIRTEEN WEEK QUALIFYING PERIOD
Section 94 of the SS Act must be read in conjunction with Schedule 2 clause 4(1) of the Social Security (Administration) Act 1999 (Cth) (Administration Act). It is not necessary to set out this clause; it will suffice to write the following. Clause 4(1) is worded in a complex manner, however, it sets out by implication a 13 week qualifying period for DSP. The effect of this provision is that I am required to determine Ms Douglas’ eligibility for DSP in the 13 week period commencing on the day on which Ms Douglas’ claim for DSP was registered by Centrelink, and concluding 13 weeks after that day. Therefore, I must determine whether Ms Douglas qualified for DSP between 7 April 2015 and 7 July 2015.
The date of the AAT2 hearing was 15 March 2017 which is more than one year and eight months after the end of the claim period.
In Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, Member Breen said at [34]:
In the Tribunal's consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.
In Fanning and Secretary, Department of Social Services [2014] AATA 447, Deputy President Handley said at [31]:
In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or with the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only in so far as they are referrable to the applicant’s condition during the relevant period.
This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404. Gyles J stated at [1] that as an applicant’s entitlement to DSP must be considered at the date of claim and within the 13 week period, “[a]ny subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time”.
The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether “any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years” (emphasis added). While hindsight may suggest that treatment did not result in improvement within two years that is not the question for the Tribunal to determine. The legislation requires the Tribunal is to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision.
THE HEARING
Ms Douglas and her mother Mrs Douglas attended the hearing via the telephone. Mrs Douglas represented her daughter, and she and Ms Douglas both gave evidence over the phone.
Dr Andrew Frean attended the hearing in person and gave evidence under oath.
In my opinion, the three witnesses gave truthful evidence and did their best to assist the Tribunal.
The Report and Evidence of Dr Frean
Centrelink requested Dr Andrew Frean who is an occupational physician, to prepare an independent clinical assessment report to assist the Tribunal. His report is dated 15 September 2016.
Dr Frean examined Ms Douglas on 8 September 2016, and Ms Douglas was accompanied by her mother.
In my deliberations, I have had regard to this clinical assessment report in its entirety, however, the following extracts encapsulate its essence:
Ms Douglas reported being referred to an exercise physiologist around the age of 11 years. She told me that he recommended an intense exercise program without any gradual build-up. She tried it for a few days but her symptoms became worse and she ceased the program in favour of more moderate, self-paced exercise. She did not obtain any significant benefit from this.
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Ms Douglas reported that she consulted a physiotherapist, Ms Margaret Berri, from around the age of 15 years. A schedule of gently-graded exercises and stretching was recommended. Ms Douglas reported that she continues to perform the exercises and consults Ms Berri periodically. She did not report any benefit from the exercises.
I asked Ms Douglas if she had ever consulted or been referred to a psychologist or a psychiatrist. She reported that it had been suggested that she consult a psychologist in the past. She did not initially pursue this since she did not feel comfortable about sharing her personal thoughts with a stranger. She reported seeing a psychologist as part of a mental health treatment plan in January 2016 (after the "relevant period”). She told me that she consulted the psychologist on one occasion only. No specific treatment was recommended. Ms Douglas denied ever being offered any specific psychological therapy, such as cognitive behavioural therapy (CBT).
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Ms Douglas reported that on or around 7 April 2015 to 7 July 2015, she continued to experience ongoing symptoms including nausea, fatigue, anxiety and difficulty concentrating or “brain fog”. She also reported headache associated with the nausea. She descried the headache as “like a band around the head”. She told me that her symptoms were worse around that time because she had been “pushing” herself in an attempt to attend work. She reported that after 2 - 3 hours of work, she often became so fatigued that she needed to leave work at lunchtime so she could go home and lie down. She reported that overall her symptoms were variable and unpredictable, but she had more “bad days” than “good days”.
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With regard to her normal activities of daily living she reported that she was able to attend to her personal care, including bathing and dressing. She told me that she did not dress and remained in her pyjamas on some days. She did not report doing any housework other than putting a few dishes in the dishwasher from time to time. She did not cook, clean or do the washing, since these tasks where done by other members of the family.
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With regard to any physical limitations, Ms Douglas reported that on or around 7 April 2015 to 7 July 2015, she was able to sit for around 10 minutes and stand for around 5 minutes, after which she would need to lie down. She told me that she could walk for around 10 minutes on a "good day”, including negotiating hills and stairs if necessary. She was able to stoop, bend, reach, kneel and squat without any limitation.
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Ms Douglas’ reported that her treatment at or around 7 April 2015 to 7 July 2015 included ranitidine (Zantac) for nausea, which she ceased after 2-weeks due to side-effects. She maintained a gluten free diet and took various vitamin and mineral supplements including vitamin B & C, zinc, magnesium and fish oil. She also took homeopathic treatments.
She continued to perform exercises under the supervision of a physiotherapist, Ms Margaret Berri. She described the exercises as involving mainly stretching and gently-graded walking.
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From the information available, and my clinical assessment, I was unable to identify a definitive diagnosis to account for the duration and severity of Ms Douglas’ reported symptoms and functional incapacity.
While chronic fatigue syndrome may be an appropriate descriptive term applied to individuals with symptoms including overwhelming lethargy, fatigue and often memory and concentration difficulties or "brain fog”, the diagnostic criteria remain ill-defined and the cause remains unexplained. Complex psychological factors may be associated with the condition. As such, chronic fatigue syndrome remains a controversial descriptive term or label, rather than a diagnosis based on objective clinical criteria. Nevertheless, the functional incapacity may be very real to the individuals experiencing these symptoms.
Generally, it would be expected that any physical and psychological causes of fatigue, including sleep disorders, should be excluded before applying the term chronic fatigue syndrome. From the information available, any inflammatory, immunological, endocrine or infective condition has likely been excluded. Up to the relevant period, Ms Douglas had not undergone any psychological assessment or sleep studies.
While many therapies have been tried and tested in individuals with symptoms of chronic fatigue syndrome, only two therapies, cognitive behavioural therapy (CBT) and graded exercise therapy have been shown to produce meaningful benefit [1].
[1] Smith ME, DO, Haney E, McDonagh M, et al. Treatment of Myalgic Encephalomyelitis/Chronic Fatigue Syndrome: A Systematic Review for a National Institutes of Health Pathways to Prevention Workshop. Ann Intern Med. 2015; 162(12): 841-850.
From the information available, Ms Douglas had resisted psychological intervention and had not been offered cognitive behavioural therapy prior to the relevant period. She had also ceased an exercise program prepared by an exercise physiologist when aged around 11 years, due to worsening of symptoms, and had subsequently resisted incremental increases in a gently-graded exercise program prepared by a physiotherapist.
Towards the end of the report, Dr Frean answered a series of questions, and I reproduce below questions E to H and his answers.
(e) What treatment had been undertaken by Ms Douglas for the condition(s) prior to the relevant period?
From the information available, Ms Douglas undertook various treatments including gluten free diet, vitamin and mineral supplements, homeopathic therapy, gently-graded exercise and a trial of medication for nausea. Ms Douglas did not report any benefit from this treatment.
(f) Do you consider that Ms Douglas’ condition(s) had been optimally treated prior to the relevant period? That is, had all appropriate and reasonable treatment been undertaken by her at that time?
No, of many therapies that have been tried and tested in individuals with symptoms of chronic fatigue syndrome, only two therapies, cognitive behavioural therapy (CBT) and graded exercise therapy have been shown to produce meaningful benefit.
From the information available, Ms Douglas had resisted psychological intervention and had not been offered cognitive behavioural therapy. She had not fully participated in a graded exercise program.
No, I do not consider that all appropriate and reasonable treatment had been undertaken by that time.
(g) Are there any further reasonable treatments, not undertaken by Ms Douglas, prior to the relevant period, that you consider would have been appropriate for her to undertake? If such treatment(s) were undertaken, what, in your opinion, would be the likely prognosis of Ms Douglas?
Yes, these have been outlined in my response to question (f).
I consider it a reasonable expectation that with further assessment and treatment, a gradual improvement of her symptoms and physical tolerance could have been expected, depending on how well she was able to manage her ongoing symptoms.
Given the duration of the reported symptoms and functional incapacity, I consider that the prognosis for Ms Douglas’ would likely be guarded in the short-term. Taking account of her young age, I consider the long-term prognosis to be fair to good.
(h) Having regard to the treatment undertaken by Ms Douglas prior to the relevant period, and your answers to questions (e), (f) and (g) above, do you consider that Ms Douglas’ condition(s) was fully diagnosed, fully treated and fully stabilised during the relevant period?
No, for the reasons detailed above under the heading "Summary and Assessment”, and with regard to my answers to the questions (e), (f) and (g) above, I do not consider that Ms Douglas’ condition(s) was fully diagnosed, fully treated and fully stabilised during the relevant period.
In his evidence, Dr Frean confirmed his report and said that he adhered to its findings.
Dr Frean stated that chronic fatigue syndrome was best diagnosed by a process of exclusion.
Dr Frean said that in his view, only two treatments have been shown to be effective. They are cognitive behavioural therapy by psychologists, and graded exercise programs by exercise physiologists.
The evidence of Mrs Douglas gave a history of her daughter’s chronic fatigue syndrome which first seems to have appeared after Ms Douglas had had the chicken pox when she was a child. Ms Douglas had been treated with an anti-viral drug. Several remedies were tried, including acupuncture, nutrient treatment, dietary exclusions like dairy and gluten free regimes, but to no avail.
Mrs Douglas recounted that her daughter did see an exercise physiologist for a time, but relying on Dr Caldicott’s advice, Ms Douglas had backed off and did more gentle exercises with a physiotherapist.
Mrs Douglas said that her daughter had visited a psychologist once, but after she had lodged her claim for DSP.
Mrs Douglas said that Dr Caldicott gave her daughter a type of cognitive behavioural therapy.
The Evidence of Ms Douglas
Ms Douglas said that she began working in a computer store in 2015, but she stopped in 2016 as she became very tired.
Ms Douglas said that she does hold a driver’s licence, but rarely drives.
Ms Douglas stated that she rarely goes shopping by herself, and usually goes with her mother.
Ms Douglas agreed that she did see a psychologist in 2016, but now she prefers to speak with Dr Caldicott.
CONSIDERATION
The issue which I am required to decide, is whether during the claim period from 7 April 2015 to 7 July 2015, Ms Douglas qualified for DSP. In other words, did her application meet the criteria specified in subsection 94(1) of the SS Act which I have set out above?
The first question is whether during the claim period, Ms Douglas suffered from any impairments?
Paragraph 5.1 of the Applicant’s Statement of Facts, Issues and Contentions is as follows:
The Secretary accepts that the Respondent had impairments during the relevant period for the purpose of s 94(1)(a) of the Act arising from chronic fatigue syndrome, which is discussed below.
From the medical evidence before me, I agree with the Applicant that Ms Douglas did suffer from the illness of chronic fatigue syndrome during the claim period, and thus satisfies subsection 94(1) (a) of the SS Act.
The second question is whether the impairment of chronic fatigue syndrome was fully diagnosed, treated and stabilised pursuant to subsection 94(1)(b) of the SS Act when read together with the Impairment Tables?
After examining all of the written material before me, and having regard to the oral evidence at the hearing, I find that Ms Douglas’ chronic fatigue syndrome was not fully diagnosed, treated and stabilised during the claim period.
I agree that diagnosing chronic fatigue syndrome is a process of exclusion. In Ms Douglas’ case, however, neither graded exercises supervised by an exercise physiologist, nor cognitive behavioural therapy by a psychologist were undertaken.
From the evidence of Ms Douglas and Mrs Douglas, Ms Douglas began a regime of graded exercises, but soon stopped the treatment. Instead, she undertook exercises with a physiotherapist.
From the evidence of Ms Douglas and Mrs Douglas, Ms Douglas did not see a psychologist until after she had claimed DSP. Ms Douglas did not undertake a program of cognitive behavioural therapy with a psychologist as she preferred speaking with Dr Caldicott.
In these circumstances, as the possible benefits of programs of graded exercise and cognitive behavioural therapy have not been completed, in my view it is clear that the chronic fatigue syndrome has not been fully diagnosed, treated and stabilised.
Accordingly, Ms Douglas has not fulfilled the criteria specified in section 94(1)(b) of the SS Act when read with the impairment tables.
As the chronic fatigue syndrome has not been fully diagnosed, treated and stabilised during the claim period, I am unable to give it a rating under the Impairment Tables.
As Ms Douglas does not qualify for DSP, it is not necessary for me to determine whether she has a continuing inability to work pursuant to section 94(1)(b)(i) and the attendant provisions of the SS Act.
DECISION
The decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal in this matter, dated 1 April 2016 and posted 8 April 2016, is set aside with a direction that Ms Douglas did not qualify for disability support pension during the period from 7 April 2015 to 7 July 2015.
I certify that the preceding 68 (sixty-eight) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member
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Associate
Dated: 3 May 2017
Date(s) of hearing: 15 March 2017 Solicitors for the Applicant: T Hillyard, Department of Human Services Respondent: By telephone
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