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

[2016] AATA 928

Kirby and Secretary, Department of Social Services (Social services second review) [2016] AATA 928 (22 November 2016)

Division	GENERAL DIVISION
File Number	2016/1374
Re	Angeline Kirby
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member T. Tavoularis
Date	22 November 2016
Place	Brisbane

The decision under review is affirmed.

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

Senior Member T. Tavoularis

SOCIAL SECURITY – DISABILITY SUPPORT PENSION – whether Applicant had conditions that were fully diagnosed, treated and stabilised during relevant period – whether Applicant had 20 impairment points – Chronic Fatigue Syndrome – Asthma – Fibromyalgia – Multiple Chemical Sensitivities – Electromagnetic Hypersensitivity Syndrome – Mental Health - Applicant only has 10 impairment points – decision under review is affirmed.

Legislation
Social Security Act 1991 (Cth), s 94
Social Security (Administration) Act 1999 (Cth)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Cases

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

Secondary Materials

The Guide to Social Security Law

REASONS FOR DECISION

Senior Member T. Tavoularis

22 November 2016

INTRODUCTION

1. On 15 October 2014, Angeline Kirby (“the Applicant”) lodged a claim for Disability Support Pension (“DSP”) listing her medical conditions as asthma, allergies, chronic fatigue syndrome (“CFS”), multiple chemical sensitivities (“MCS”), fibromyalgia, and electro-magnetic radiation hypersensitivity.[1]   

   [1] See Exhibit 2, T Documents, T11, p 103-130.

1. To support her claim for DSP, the Applicant has provided a number of medical reports and/or certificates from her general practitioner, Dr Brian Biggs.[2]  

   [2] See summary of Dr Briggs reports in Respondent’s Statement of Facts, Issues and Contentions, p 2, [3.4].

2. The balance of the Applicant’s medical and other evidence comprises a sizeable bundle of anecdotal material including copies of newspaper articles, letters from her mother and handwritten notes purporting to describe symptoms.  The material is compounded, perhaps to an unnecessary and unreasonable extent, by virtue of the Applicant providing medical evidence relating to her previous claim for an invalid pension in the 1980’s. It is apparent from the dates appearing next to each item of medical evidence provided by the Applicant that aside from the report(s) provided by Dr Briggs, there is a relative dearth of medical evidence contemporaneous with her claim.  The consequences of this reality emerge later in this decision.    

HISTORY OF THE MATTER

1. Before commencing any discussion or analysis as to the medical evidence relevant to this claim, I feel compelled to make mention of the significant amount of historical material filed by the Applicant in the hope that it may be of some relevance to this claim. By way of reminder, this is a claim made in October 2014.  The T Documents are of inordinate bulk and a significant portion thereof can only be of historical or of marginal interest or relevance. 

1. Sections T4 and T5 of the T Documents (from pages 54 – 89) and T12 (from pages 131 – 265) comprise a large amount of material relating to this Applicant’s previous claim for invalid pension.  This material dates from as far back as May 1977 until February 1991. It is material purporting to be evidence in this application. This specific material is therefore at least 30, almost 40 years old.   Given the age of this material and given also the relatively recent material applicable (or possibly attributable) to the present application, I will give little or no weight to the abovementioned old material appearing at Sections T4, T5 and T12 of the T Documents.

2. This application has evolved thus:

1. 15 October 2014:  the Applicant lodged a claim for DSP with Centrelink.

2. 26 May 2015:  a Job Capacity Assessor (“JCA”) prepared a report[3] and looked at each of the Applicant’s stated conditions. For each condition, the JCA concluded:

   [3] Exhibit 2, T Documents, pp 302 – 310.

   ·Chronic fatigue syndrome: this condition was found to be verified and fully diagnosed but not fully treated and stabilised. The JCA thought this condition could be an exacerbation of another condition. The JCA also thought this condition was “….. still being reviewed and assessed as the customer [ie the Applicant] has only recently started to see her new GP and treatments [sic] still being explored  [sic] the condition is unable to be assessed as fully diagnosed or stabilised.”[4] Therefore, no impairment points could be allocated;

   [4] Ibid, p 303.

   ·Musculo-skeletal disorder: the JCA recorded that the Applicant said “… she has a current oral infection and is taking anti-biotic [sic] which has exacerbated her other conditions and she is in the process of having this dealt with”.[5]   No impairment points were allocated to this condition;

   [5] Ibid, p 304.

   ·Asthma:  the JCA considered this condition to be fully diagnosed, treated and stabilised and therefore capable of allocation of impairment points.  The JCA allocated 5 impairment points to this asthma condition pursuant to Impairment Table 1.  The JCA opined that the asthma condition gave rise to a mild functional impact on this Applicant’s activities requiring physical exertion or stamina.  In particular, the JCA thought the Applicant:      

   oexperienced the stated symptoms at descriptor 1(a) when performing physically demanding activities and, due to these symptoms, the Applicant had occasional difficulty with activities such as walking upstairs and performing housework; and

   owas able to perform most work-related tasks other than tasks involved heavy manual labour in accordance with the requirements of descriptor 1(b) of the mild functional impact portion of Table 1;

   ·Psychological/psychiatric disorder: the JCA thought this condition was permanent and fully diagnosed but not able to be assessed as fully treated or stabilised. Accordingly, no impairment rating was allocated to it.  The JCA based this assessment on the opinion of the clinical psychologist, Dr Margarett Judd, who thought:

   othe Applicant did not present with depressive or anxiety symptoms nor any related symptoms;

   oa diagnosis of Somatization Disorder with features of Histrionic Personality Disorder could be made;

   othe Personality Assessment Inventory (“PAI”) test conducted on the Applicant did not provide any indication of depressive or anxiety symptoms and the level of worry and sensitivity observed in the Applicant “…. is still within what is considered to be the normal range”.[6]

   [6] Ibid, T16, p 300.

   oalthough the Applicant  has limited work experience, there have been periods in her past when she has functioned quite well;

   othe Applicant’s condition is one that is likely to cause her to be continuously concerned with her health status  and physical problems but the condition is unable to be fully treated or stabilised.

   Accordingly, the JCA formed the view that the Applicant has been able to function effectively in the past and that this may be an option with further interventions.

1. 27 May 2015:  the Respondent wrote to the Applicant advising that her claim for DSP had been rejected.[7]

   [7] Ibid, T18, p 311-312.

2. 29 September 2015:  Centrelink referred the matter to the Health Professional Advisory Unit (“HPAU”) for opinion which was duly provided on 15 October 2015.  The principal question before the HPAU involved a “…. review of the customer’s [Applicant] medical conditions -  CFS (Chronic Fatigue Syndrome) and Epstein-Barr virus, Ross River virus, Somatization Disorder and Asthma, and whether these conditions could be assessed as FDTS (fully diagnosed, treated and  stabilised) and if assessed as FDTS, the impairment points which could be assigned ….”.[8]  The HPAU opined (with reference to each of the identified symptoms/conditions) as follows:

   [8] Ibid, T25, p 420.

   ·Somatization Disorder with some features of Histrionic Personality Disorder: this condition was considered to be permanent and fully diagnosed but not fully treated and stabilised such as to be able to attract an impairment rating;

   ·Chronic Fatigue Syndrome: the condition was considered to be permanent and fully diagnosed, treated and stabilised. The diagnosis of Chronic Fatigue Syndrome and Fibromyalgia were considered to be diagnoses of exclusion for the purposes of separate allocation of impairment point rating to each condition. The HPAU allocated 10 impairment points to the Chronic Fatigue Syndrome condition pursuant to the moderate functional impact descriptors appearing in Impairment Table 1. Specifically, the HPAU reporter found the Applicant met descriptors (1)(a)(ii) and (b);

   ·Asthma: the condition was considered to be permanent and fully diagnosed, treated and stabilised.  However, the HPAU reporter was of the view that the asthma condition attracted nil impairment points pursuant to Impairment Table 1 “….. as the functional impacts of the asthma are covered by the impairment point rating assigned to the Chronic Fatigue Syndrome”. This opinion was based on the provisions of the “Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011” (“the Determination”) and that “… where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.” [9]

   [9] Ibid, T25, p 425.

   ·Multiple Chemical Sensitivities (“MCS”):   the condition was considered to be permanent but not fully diagnosed, treated and stabilised.  The HPAU reporter thought this MCS condition to be permanent on the basis of a Centrelink Medical Certificate issued by Dr B Biggs on 19 December 2014.  However, the HPAU reporter also thought there was no previous medical evidence documenting this MCS condition, nor any other medical documentation as to how the diagnosis of this MCS condition was made.     The HPAU reporter concluded his remarks regarding this MCS condition with “If a condition is not fully diagnosed, the condition cannot be assessed as fully treated and stabilised.”[10]   Accordingly, no impairment points were allocated to this MCS condition.

   [10] Ibid, T25, p 425.

   ·Electromagnetic Hypersensitivity Syndrome (“EHS”):   the condition was considered to be permanent but not fully diagnosed, treated and stabilised. The HPAU reporter said “Electromagnetic hypersensitivity is to this point in time, not a valid medical diagnosis and has no clear diagnostic criteria as per the advice of the World Health Organization (WHO).  WHO and the European Economic and Social Committee (EESC) recognise that EHS is characterized by a variety of non-specific symptoms that differ from individual to individual and the symptoms are certainly real and can vary widely in their severity although there is no scientific basis to link EHS symptoms to radiofrequency exposure. Therefore the condition reported as EHS cannot be considered to be fully diagnosed.  If a condition is not fully diagnosed, the condition cannot be assessed as fully treated and stabilised.” [11]  

   [11] Ibid,T25, p 427.

3. 20 October 2015:  an Authorized Review Officer (“ARO”)  reviewed, inter alia, the JCA report and additional other relevant evidence provided to the Respondent and made the following findings of fact:

   “Findings of Fact
   After careful consideration of the evidence, I have made these key findings:

   ·     You have the following permanent conditions: chronic fatigue syndrome and asthma;

   ·     Your conditions of anxiety/depression/panic attacks, multiple chemical sensitivities and electromagnetic hypersensitivity syndrome are not accepted as being permanent as they have not been fully diagnosed, treated and stabilised;

   ·     Your total impairment rating is 10;

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

   ·     You do not have a continuing inability to work 15 hours per week or more because of your impairment.”[12]

   The ARO allocated the 10 impairment points to the chronic fatigue syndrome condition pursuant to the moderate functional impairment descriptors appearing in that portion of Table 1.

1. 11 February 2016:  at first review, this Tribunal (via the Social Security and Child Support Division), affirmed the decision under review.[13]  This Tribunal, upon first review, made findings consistent with those of the HPAU and found the Applicant had a total impairment rating of 10 points but no more.  Accordingly, the Applicant did not meet the minimum 20 points necessary for a possible grant of DSP and was not successful at that first review.

2. 17 March 2016:  the present application for second review, which is now before me, was filed at the AAT general division by the Applicant. [14]

   [12] Ibid, T21, p 403.

   [13] Ibid, pp 5 – 11.

   [14] Ibid, T1, pp 1 – 4.

THE LEGISLATIVE FRAMEWORK

1. Section 94 of the Social Security Act 1991 (Cth) (“the Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are that the Applicant has a physical, intellectual or psychiatric impairment; that the Applicant’s impairment is of 20 points or more under the Impairment Tables; and that the Applicant has a continuing inability to work.

1. The Social Security (Administration) Act 1999 (Cth) makes it clear that qualification for DSP and assessment of the relevant impairment ratings are to be determined as at the date of claim (in this case, 15 October 2014). There is, however, an exception where the person is not qualified on that date but “becomes qualified” within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[15] Therefore, the relevant period for considering whether the Applicant qualified for DSP is between 15 October 2014 and 14 January 2015 (“the Relevant Period”).

   [15] See ss 41 and 42, and cl 3 and cl 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999 (Cth).

2. The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”), a legislative instrument made under the Act.[16] The Tables are function based rather than diagnostic based and describe functional activities, abilities, symptoms and limitations.  They are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.[17] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they chose to do or what others do for them.[18]

   [16] See s 26(1) of the Act.

   [17] See s 5(2) of the Determination.

   [18] See s 6(1) of the Determination.

10.  Under the rules for applying the Impairment Tables, an impairment rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than two years.[19] In order for a condition to be considered “permanent” it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not, in light of available evidence, to persist for more than two years.[20]

[19] See s 6(3) of the Determination.

[20] See s 6(4) of the Determination.

11.  In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, the following facts are to be considered:  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.[21]

[21] See s 6(5) of the Determination.

12.  A condition is “fully stabilised” if:

a)    either the 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 2 years; or

b)    the person has not undertaken reasonable treatment for the condition and:

i.significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

ii.there is a medical or other compelling reason for the person not to undertake reasonable treatment.[22]

[22] See s 6(6) of the Determination.

13.  “Reasonable treatment” is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[23]

[23] See s 6(7) of the Determination.

14.  An impairment rating can only be assigned in accordance with the rating points in each Table. A rating cannot be assigned between two consecutive impairment ratings.  If an impairment is considered as falling between two ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.  A rating cannot be assigned in excess of the maximum rating specified in each Table.[24]

[24] See s 11(1) of the Determination.

15. In respect of the requirement that the Applicant have a continuing inability to work, all the criteria in s 94(2) of the Act need to be satisfied.

ISSUES FOR THE TRIBUNAL

16.  Based on the totality of the medical and other material provided during the life of the claim and, as conceded by the Respondent, there is no doubt that the Applicant suffers from a number of medical conditions constituting physical, intellectual or psychiatric impairments.[25] Consequently, the first of the requirements under s 94(1) of the Act is satisfied.

[25] Exhibit 1, Respondent’s SFIC, p 4,  [4.5].

17.  The remaining issues for me to consider are therefore:

a)    whether, at the relevant time (ie during the Relevant Period), the Applicant’s impairments attracted 20 impairment points or more under the relevant impairment tables; and

b)    if so, whether the Applicant had a continuing inability to work.

CONSIDERATION
Did the Applicant’s impairments attract 20 points or more under the Impairment Tables?

18.  I propose to deal with this issue by reference to the Applicant’s various medical conditions.

Chronic Fatigue Syndrome (CFS)

19.  There is consensus between the parties that this condition was fully diagnosed, treated and stabilised at the Relevant Period.  As such, an impairment rating can be allocated to it.

20.  The Applicant primarily relies on the medical evidence of her General Practitioner, Dr Brian Biggs. He provided a medical report on 19 December 2014[26] (during the Relevant Period).  He opined as follows:

[26] Exhibit 2, T Documents, T14, pp 268 – 278.

• the diagnosis was one of “Chronic Fatigue Syndrome incl EBV, RRV and Fibromyalgia”;

• the onset of the condition occurred in “1985”;

• its current treatment had consisted of “Health, Diet and Vitamins” and “Supportive therapy”;

• past treatment for this CFS condition consisted of “fully [unreadable] reviewed” and “lots of tests”;

• future treatment consisted of “Natural remedies/Naturopath”;

• current symptoms include “Fatigue …. poor concentration; unwellness, aches and pains”;

• this CFS condition impacted upon the Applicant’s capacity to function by reducing her endurance, her cognitive function, her concentration, her behaviour, planning and interpersonal relationships;

• he thought those conditions were fully diagnosed, treated and stabilised;

• he thought there were no further treatment options available to the Applicant due to her “environmental asthma and chemical sensitivity”;

• he also thought “no further treatment will help” this CFS condition.

21.  Almost twelve months later, Dr Biggs then provided a second report dated 3 December 2015.[27] He provides commentary on the functional impact of the CFS condition on the Applicant:

“Her CFS causes significant functional impairments resulting in an inability to work and thus in my opinion satisfying a rating of at least 20 points based on the fact that she is unable to perform light physical duties including walking around a shop without assistance, walking between a shop and carpark without assistance, using public transport without assistance and unable to perform light day to day household  activities including folding washing and light gardening.  Any of these activities and others that require physical exertion and stamina would cause a severe functional impact on Angeline. She is unable to sustain work related activities for a continuous shift of at least 3 hrs.  In fact her family heavily support, care for, help and supervise Angeline with all activities of daily living including simple household duties.  It is often the responsibility of the family to perform and complete these tasks on Angeline’s behalf due to the severity of her condition.”

[27] Ibid, T24, pp 416 – 417.

22.   A third report followed from Dr Biggs two months later on 3 February 2016.[28]  In this report, Dr Biggs seems to be clarifying or amplifying his telephone discussion with the HPAU reporter on 8 October 2015:

“Additional info re Ms Angeline Kirby, age 44 yrs – see below for copy of my notes documented from phone call to HP on 8/10/15 where I stated Angeline was incapable on even her 3 (not “4”) good days per week to do more than 15 mins (eg folding clothes or “light laundry”) without severe repercussions ie resting for a significant period of time.  And certainly nowhere near the 3 hrs of continuous work they are meant to be able to do to score less than 20 points on disability table.  Thus on her 4 bad days she would obviously be a lot worse ie totally and permanently disabled to be able to work.  Her CFS alone should easily be enough of a diagnosis to be granted the DSP.”

[28] Ibid, T26, p 429.

23.  To my mind, there are two fundamental difficulties with the stated basis of the Applicant’s contention suggesting 20 impairment points.   First, my assessment of the Applicant’s condition(s) must be undertaken at the Relevant Period, that being 15 October 2014 to 14 January 2015.  Second, the question as to the level of evidentiary weight that can be given to the unscientific evidence of the Applicant and her mother who acted as her advocate at the hearing.

24.  It is well established (and, indeed, mandatory in a legislative sense) that the Applicant’s condition and thus assessment of attributable impairment points must be undertaken as at the Relevant Period.  This has been made clear by the Tribunal in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]:

“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”. 
[my underlining].

25.   It is an unfortunate feature of the Applicant’s case that with the exception of two Centrelink pro-forma medical certificates from Dr Biggs[29] and a Centrelink pro-forma report from Dr Biggs[30],  none of her medical evidence is contemporaneous with or otherwise probative of her condition(s) during the Relevant Period.  

[29] Exhibit 2:  T Documents, T10, p 102 and T13, pp 266 – 267.

[30] Ibid, T14, pp 268 – 278.

26.  In the absence of medical evidence that is adequate and contemporaneous with the Relevant Period, regard must be had to the level of weight I can safely allocate to this Applicant’s self-reporting (primarily to Dr Biggs) of her symptoms.  The Guide to Social Security Law at paragraph 3.6.3.40 addresses this matter:

“Determination of the descriptor that best fits the person’s impairment level must be based on the available medical evidence including the person’s medical history, investigation results and clinical findings.  A person’s self-reported symptoms must not solely be relied on.   It would be inappropriate to apply an impairment rating based solely on a person’s self-reported functional history if this level of functional impairment is not consistent with the medical evidence available.”  (underlining added).

27.  I endorse this view.  In the absence of a corroborating report(s) relating to the Relevant Period from a suitably qualified medical professional, I have difficulty in disturbing the earlier findings and recommendations of the HPAU insofar as an impairment rating for the CFS condition is concerned.

28.  I agree with the findings of the HPAU reporter (as discussed above in paragraph 6(ii) of this decision) that the CFS condition was fully diagnosed, treated and stabilised.

29.  In terms of an impairment rating for this CFS condition, I respectfully concur with the HPAU reporter and my Tribunal colleague at first review.  Having regard to the totality of the evidence, I am of the view that the appropriate rating is 10 points under Table 1.

30.  I therefore find this Applicant:

• would, during the Relevant Period,  have experienced difficulty in performing day to day household activities. Although she could perform light household chores such as changing sheets on a bed or sweeping paths;[31] and

• given (a) her capacity to mobilise independently, I find she is able to (for example) use public transport and walk around a shopping centre and (b) she would be able to perform – on a paced basis - most work-related tasks of a clerical, stationary or sedentary nature, that is, tasks not requiring a high level of physical exertion.[32]

  [31] See moderate functional impact descriptor (1)(a)(ii) in Table 1 of Determination.

  [32] See moderate functional impact descriptor (1)(b) in Table 1 of Determination,

31.  I find this Applicant’s CFS symptoms exclude her from the 20 point descriptors because, at the Relevant Period, they:

1. did not prevent her from walking (or mobilising in a wheelchair) around a shopping centre without assistance;[33]

2. did not prevent her from walking (or mobilising in a wheelchair) from the carpark into a shopping centre without assistance;[34]

3. did not prevent her from using public transport without assistance. I have difficulty in accepting the Applicant’s contention that “she is unable to use public transport and relies on her mother or daughter to drive her around”[35] especially given her evidence of being able to mobilise independently to walk from the carpark into a shopping centre and to also walk around a shopping centre.  Accordingly, I accept the contention of the Respondent that this is more an indication what the Applicant chooses to do and what her family is willing to do for her rather than what she cannot actually do.  I also accept the Respondent’s contention about an absence of corroborative evidence to support any suggestion the Applicant is unable to use public transport without assistance;

4. did not prevent her from performing light day to day household activities such as folding or putting away laundry;

5. did not preclude her from performing most work-related tasks of a clerical, stationary or sedentary nature – that is, tasks not requiring a high level of physical exertion.

   [33] See Exhibit 2, T Documents, T25, p 422 – Dr Biggs comments to HPAU reporter, Applicant can walk for 15 minutes without assistance until she needs to rest. 

   [34] Exhibit 2, T Documents, T25, p 422:   Applicant self-reports to her GP, Dr Biggs, that she is able to walk for 15 minutes without assistance and can do shopping for about 15 minutes before she begins to feel unwell.

   [35] Ibid.

Asthma

32.  Both parties agree this condition is a longstanding one in the history of this Applicant’s symptomatology.  Both parties also agree this condition was fully diagnosed, treated and stabilised at the Relevant Period.

33.  In terms of an impairment rating, I endorse the findings of the HPAU reporter and assign nil points to this condition pursuant to Table 1.  This is on the basis that the HPAU reporter thought (in my view, correctly) the functional impacts of the asthma condition were covered by the impairment point rating assigned to the CFS condition.

34. I accept the Respondent’s contention that Impairment Table 1 is the appropriate table to assess this Applicant’s level of impairment from the asthma condition because it impacts on functions requiring exertion and stamina. I also accept the Respondent’s contention that the evidence before me indicates this condition, at best, has a mild impact on her functioning. The CFS and asthma conditions thus constitute a common impairment to exertion and stamina. The mild impact of the asthma is already taken into account in the 10 point rating assigned under Table 1 for the functional impacts of the CFS condition. This policy of the allocation of a single rating to common or combined impairments under a single Impairment Table appears at paragraph 10(5) of the Determination:

“Multiple conditions causing a common impairment:

(5)Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.”

Fibromyalgia

35. The Respondent concedes there is some indication of this condition in the medical evidence. I agree with the Respondent’s contention that due to an absence of specialist medical reports to confirm the diagnosis and/or any treatment the Applicant may have undertaken for this condition, it cannot be considered fully diagnosed, treated and stabilised. I also agree with the contention that any functional impact of this fibromyalgia condition would constitute a common impairment to the CFS condition. As such, the provisions of paragraph 10(5) and (6) of the Determination would apply so that any moderate impairment rating for the fibromyalgia would thus be “captured” by the rating already assigned to the CFS condition.

Multiple Chemical Sensitivities

36.  I find this condition was verified on the basis of Dr Biggs’ medical report dated
19 December 2014 and his medical certificate of 27 March 2015.  In terms of an independent diagnosis of this condition, he noted:

“Multiple Paediatricians, Respiratory + Hospital Doctors 1970’s + 1980’s
2002 – Prince Charles
Dr Maurice Heiner 1988 Respiratory Physician

Dr Philip Masel - Prince Charles 2002 Respiratory Physician”.[36]

[36] Ibid, T14, p 271.

37.  These comments by Dr Biggs, well intended though they may be, do not constitute corroborating specialist reports (preferably during the Relevant Period), confirming these diagnoses apparently made up to 40 years ago.   As such, the Tribunal cannot safely find the condition to be fully diagnosed, treated and stabilised and no impairment rating can be allocated to it.

Electromagnetic Hypersensitivity Syndrome

38.  Again, Dr Biggs makes reference to this condition in his Medical Certificates of 19 December 2014 and 27 March 2015 but there is no corroborating evidence from suitably qualified specialists (during the Relevant Period) confirming this diagnosis.  I agree with the findings of the HPAU reporter that this condition is not fully diagnosed, treated and stabilised. Accordingly, no impairment points can be allocated to it.

Mental Health Function

39.  In the context of this Applicant’s DSP history, symptoms of mental health can only be described as being at an embryonic stage.  She does not list mental health as one of her disabilities when she applied for DSP on 15 October 2014.[37]  Dr Biggs gives it passing mention in his report of 19 December 2014 but thought her “….. anxiety and depression; panic attacks…. are generally well managed and …. cause minimal or limited impact on  [her] ability to function.”[38]

[37] See Ibid T11, p 115.

[38] Exhibit 2, T Documents, T14 at p 277 (Q. 6).

40.  The Clinical Psychologist (Dr Margaret Judd), on referral from the JCA reporter, opined that the Applicant meets the criteria for Somatization Disorder with features of Histrionic Personality Disorder.  In my view, this condition can be regarded as fully diagnosed.  It cannot, however, be considered fully treated and stabilised.  There is no evidence the Applicant has undertaken treatment for the condition. I cannot find a reason as to why she is unable to do so, or that her condition would not improve if she did undertake treatment.[39]  On this basis, no impairment rating can be assigned to these mental health symptoms.

[39] See Determination, paragraphs 6(5)(b) and 6(6).  

Summary

41. This Applicant has failed to reach 20 points or more via this application due to a relative dearth of medical evidence contemporaneous with or otherwise probative of her condition(s) during the Relevant Period. The totality of both the expert evidence and medical evidence of the Applicant (and her mother/advocate) is not of sufficient insight for this Tribunal to award her greater than 10 points for all her stated conditions. Those 10 points are allocated under Table 1 for her CFS condition, which also encompasses a rating for her asthma. Therefore, the Applicant does not satisfy the second of the requirements under section 94(1)[40] for this DSP application.

[40] See s 94(1)(b) of the Act.

Continuing Inability to Work?

42.  Given that this Applicant does not reach 20 points or more at the Relevant Period, it is unnecessary to consider this question.

Some additional observations

43.  I respectfully observe and/or repeat two things:

a.    my observation that this Applicant seems a sincere woman with a stated list of conditions; and

b.    the Court’s comments in Bobera[41] that “….. 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.”

[41] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34].

44.  Her primary contended conditions may well have worsened since the Relevant Period.  Other ailments may well have manifested during the Relevant Period. The totality of her current symptomatology, if properly analysed, reported upon and progressed through a fresh application for DSP, could conceivably result in a more favourable impairment rating.  This, in turn, may or may not result in a residual issue of any continuing inability to work.  It ultimately comes down to the Applicant’s capacity to endure the requirements of a fresh application.

CONCLUSION

45.  The Applicant does not qualify for DSP because her impairments only attracted 10 impairment points at the relevant period.

46.  Accordingly, the decision under review is affirmed.

I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis

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

Associate

Dated 22 November 2016

Date of hearing	31 August 2016
Advocates for the Applicant	In person - Lorraine Gilbert (mother), and by phone - Errol Rafter (Red Cross)
Solicitor for the Respondent	C. Cameron, Clayton Utz