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

[2017] AATA 1064

McAuley and Secretary, Department of Social Services (Social services second review) [2017] AATA 1064 (16 June 2017)

Division:GENERAL DIVISION

File Number(s):2015/1395      

Re:Christina McAuley

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:Dr I Alexander, Member

Date:16 June 2017

Place:Sydney

The decision under review is affirmed.

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

Dr I Alexander, Member

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – chronic fatigue syndrome – Lyme Disease – applicant suffers an impairment – applicant’s impairments do not total 20 points or more under the impairment tables – decision under review affirmed

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

REASONS FOR DECISION

Dr I Alexander, Member

16 June 2017

1. On the 21 March 2014, Ms McAuley lodged a claim for Disability Support Pension (DSP) on the basis that she suffered impairment because of chronic fatigue syndrome (CFS).

   The claim was rejected by Centrelink, both initially and on internal review, on the basis that she did not satisfy the requirements of s 94 of the Social Security Act 1991 (the Act). In particular, she did not satisfy s 94(1)(b) of the Act as her impairment was not 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Determination).

2. In a decision dated 15 February 2015, the (former) Social Security Appeals Tribunal (SSAT) affirmed the decision to reject Ms McAuley’s claim. The SSAT found that Ms McAuley did not satisfy section 94(1)(b) of the Act because her CFS was “fully diagnosed but not fully treated and fully stabilised” so that a rating under the Impairment Tables could not be applied.

3. In this proceeding Ms McAuley, who was self-represented, seeks review of the decision of the SSAT.

   ISSUES

4. In order to qualify for DSP Ms McAuley must satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with clause 4(1) of Schedule 2 to the Social Security (Administration) Act1999, that is, between 21 March 2014 and 20 June 2014 (the claim period).

5. Section 94(1) of the Act provides that a person is qualified for DSP if:

   ·the person has a physical, intellectual or psychiatric impairment (94(1)(a)); and

   ·the person’s impairment is of 20 points or more under the Impairment Tables (94(1)(b)); and

   ·the person has a continuing inability to work as defined by the Act (94(1)(c)(i)).

6. The Respondent concedes, and the Tribunal accepts, that Ms McAuley suffers a medical condition that causes impairment and, therefore, satisfied s 94(1)(a) of the Act at the time of her claim for DSP.

7. The Impairment Tables require that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).

8. For the purposes of paragraph 6(3)(a), a condition is permanent if it is:

   ·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)); and

   ·fully treated (paragraph 6(4)(b)); and

   ·fully stabilised (paragraph 6(4)(c)); and

   ·the condition is more likely than not, in light of available evidence, to persist for more than 2 years (paragraph 6(4)(d)).

9. The Introduction to each relevant Table of the Impairment Determination requires that the “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment.”

10. Ms McAuley contends that she suffered significant impairment as a result of two medical conditions namely, chronic fatigue syndrome and Lyme disease.

11. The Respondent contends that, during the claim period, the two medical conditions were not fully diagnosed, fully treated and fully stabilised and, therefore, not permanent for the purposes of the Impairment Determination so that a rating under the Impairment Tables cannot be applied.

12. Therefore, the definitive issue in this matter is whether, during the claim period, Ms McAuley’s impairment was 20 points or more under the Impairment Tables and if so, whether she had a continuing inability to work.

    MS MCAULEY’S EVIDENCE

13. Ms McAuley told the Tribunal that in April/May 2013, about 6 weeks after having walked her dogs through some long grass she developed an itchy rash on her left ankle. She also developed “photosensitivity” and felt tired all the time.

14. Ms McAuley said she consulted the Internet and searched between 40 and 50 illustrations of rashes until she found one that was similar to hers. She eventually found an illustration of a rash caused by B Borrelia Burgdorferi infection (Lyme disease). She noticed that her own symptoms were similar to the symptoms that were described on the internet and were consistent with Lyme disease. She concluded that she must be suffering from this disease.

15. Ms McAuley said she consulted several doctors but was not able to have her self-diagnosis confirmed and get any treatment.  In September 2013, she was seen by Dr Norris, a general practitioner (GP) who diagnosed CFS and arranged for blood to be sent to a laboratory in the USA to test for Lyme disease.

16. Ms McAuley stated that the test result, which was finalised in November 2013, was positive and therefore, proved that she was suffering from Lyme disease.

17. Ms McAuley explained that she had travelled overseas on two occasions. In 2004 she spent three to four weeks overseas when she visited California (Los Angeles), Mexico and Hawaii.  In January 2006 she spent ten days in Bali.

    MEDICAL EVIDENCE

18. In an undated Centerlink Medical Report, Dr Norris states that Ms McAuley had been her patient since 25 September 2013 and lists a diagnosis of CFS as the medical condition with the most functional impact.

19. Dr Norris states that the date of onset was May 2013, day of diagnosis was 25 September 2013 and that the diagnosis was confirmed but not supported by further specialist opinion.

20. Dr Norris further noted that Ms McAuley’s current symptoms included brain fog, cognitive impairment, joint pains, low mood and fatigue. 

21. Additionally, Dr Norris specified in her report that the current treatment was “lifestyle/ sleep hygiene. Graded exercise, trial of antibiotics for confirmed infection”. It was stated that “Igenex Bloods +ve for Borrelia and bartonella” and antibiotic treatment was started on 13 November 2013.

22. In a brief letter to Dr Norris, dated 11 March 2014, Dr McNaught, rheumatologist, states the following:

    …Thank you for referring Christina…..It sounds like she may have had Lyme disease, possibly tick borne from western Sydney. As you know there is a lot of controversy about whether the disease even exists however she does seem to have the typical rash and features of it and has had IgM Lyme disease serology performed successfully in the United States. Her IgG was negative and of course the first antibody that appears is nearly always IgM followed by IgG so that we would like to see a conversion from IgM to IgG in the case of chronic Lyme disease…

    It is relevant that she has many persisting joint symptoms and because of the disorder has lost her job so that she is trying to apply for early release of her superannuation.  Unfortunately, Centrelink will probably not accept anything unless we have a proven diagnosis.

23. In a brief letter to Dr Norris, dated 4 April 2014, Dr McNaught states the following:

    ……I reviewed Christina again today and have completed the superannuation release to the best of my ability. The diagnosis I put down was chronic fatigue syndrome which in this case appears to be Lyme serology negative as witnessed by the recent blood test…… I really do know all about Lyme disease and I am doubtful that it exists in substantial degree in Australia …..She has serology from the United States which is apparently positive and if she can use this then well and good. However, it should be noted the result in Australia was negative and it is the same test……[emphasis added]

24. In a brief report dated 28 May 2014, Dr Norris states that Ms McAuley has been diagnosed with CFS and that the onset of this was in approximately September 2013.   She also states that a related condition, Lyme disease was diagnosed in November 2013.

    Health Professional Advisory Unit Review

25. In a review prepared for Program Litigation and Review Branch, Department of Human Services dated 14 September 2015 Dr Armstrong, Medical Advisor, states the following with respect to Lyme disease:

    ·Lyme disease is an infectious disease which can result in a multitude of long term systemic issues if it is not treated promptly with antibiotics. However even late presentations [in the vast majority of cases] can be cured with a two to four week course of antibiotics.  It is caused by a Borrelia bacterium and is transmitted following a tick bite, where the tick is infected with this bacterium.

    ·Only some tick species are capable of being infected by the Borrelia bacteria and then passing it on to humans, and these are only found in parts of Asia, Europe and North America. So far no laboratory has found any evidence of Borrelia infection in Australian ticks and there have been no confirmed cases of Lyme disease acquired in Australia.

    ·A January 2015 progress report on Lyme disease in Australia from Professor Baggoley, Chief Medical Officer with the Australian Department of Health states that “the conclusive finding of a bacterium that could cause Lyme Disease-like syndrome in Australia has yet to be made.”

    ·The Royal College of Pathologists of Australia [RCPA] in a February 2014 position statement reported that “accredited Australian diagnostic laboratories are able to confidently diagnose Lyme disease by serology ….In a non- endemic country such as Australia it is not possible to reliably diagnose Lyme disease on clinical symptoms and signs only. Laboratory testing is essential…Many of the tests performed by such laboratories [non-NATA/RCPA accredited laboratories in Australia and overseas], according to Australian expert pathologists, have not been validated for use to diagnose Lyme Disease…

    ·Serology testing is considered to be the mainstay of diagnostic testing for Lyme disease. Initial screening with an enzyme immune assay [EIA], or rarely with an IFA [indirect immunofluorescence] followed by immunoblot assay [Western blot] is the current standard Australian protocol. The RCPA position statement reports that these tests are technically complex and that caution must be used in the interpretation of positive, or indeterminate laboratory results, as false positives [tests indicating disease in someone without the disease] may occur, especially in a low prevalence country such as Australia.

    ·Igenex is not a NATA, or RCPA accredited laboratory…Furthermore the investigation results from IGenex do not confirm a Lyme disease diagnosis. The initial IFA on 16/10/13 for Borrelia was negative, so further testing was not indicated. Also the Igenex IgG [late antibody response] Western blot was negative, although the IgM [early antibody response] was positive. The preeminent USA public health organisation, the CDC [Centres for Disease Control and Prevention] recommends that if symptoms have been present for more than 30 days [as in this case], then only the IgG western blot should be performed and that a positive IgM test alone is insufficient to diagnose current disease and that it may be a false positive.

26. With respect to CFS Dr Armstrong states, inter alia, the following:

    ·In my opinion, a diagnosis of CFS should be made by a specialist physician, although there are some GPs with a special interest in CFS who may be proficient at this.

    ·CFS is a clinical diagnosis, but it is generally accepted that appropriate diagnostic criteria must be met as defined by the CDC, Canadian guidelines, etc. Other conditions that may also cause severe fatigue must be excluded with an appropriate history, examination and investigations.

    IGeneX  Inc

27. Laboratory report - 2 November 2013

    ·IFA   B BURGDORFERI   G/M/A     <40     negative

    ·LYME IgM WESTERN BLOT

    2 starred bands   23-25 +++, 31 ++, 41++, 83-93+ KDa  -    positive

    The IgM WB is considered positive if two or more of the double starred bands…are present…Positive result with proteins at 31, 41 and/or 83 kDa may be due to non-specific binding of viral or other spirochetal antibodies …..

    ·LYME IgG WESTERN BLOT  - negative   

    CONSIDERATION

    Lyme Disease

28. Ms McAuley contends that, during the claim period, she suffered from CFS and Lyme disease and relies on the documentary evidence provided by her treating doctors at that time, Dr Norris and Dr McNaught, as well as the laboratory report from IGenex.

29. The IGenex report does not confirm the diagnosis of Lyme disease, either past or present, as the IgG Western blot was negative. Also, in his letter to Dr Norris, on 4 April 2014, Dr McNaught agreed that the Lyme serology was negative as confirmed by a test done in Australia.

30. In her letter of 28 May 2014, Dr Norris still asserts that Lyme disease was diagnosed in November 2013 and lists a number of symptoms attributed to this disease. She appears to have misinterpreted the IGeneX laboratory results and ignored the letter from Dr McNaught. This raises concerns about the reliability of her evidence.

31. On the available evidence I am satisfied that, during the claim period, Ms McAuley did not suffer from Lyme disease.

    Chronic Fatigue Syndrome

32. Ms McAuley claims that her CFS symptoms started in April/May 2013 but she did not see Dr Norris until 25 September 2013 who diagnosed the condition on the same day.

33. In her undated report, Dr Norris lists Ms McAuley’s current symptoms but provides no credible explanation for the apparent on the spot diagnosis of such a complex medical condition. She does not refer to any of the relevant well accepted diagnostic criteria, does not provide a full medical history or details of any physical examination. Also, there is no evidence that alternative diagnoses to explain Ms McAuley symptoms were considered.

34. In her letter of 28 May 2014, Dr Norris states that Ms McAuley has been diagnosed with CFS and indicates that the “onset of this condition was in approximately September 2013.” Apart from a list of reported symptoms Dr Norris does not provide any explanation to support the diagnosis, appears to have  confused the date of onset (the same date was listed in the undated Centrelink medical report as the date of diagnosis) and continues to assume that the condition is related to Lyme disease.

35. In his letter of 4 April, Dr McNaught appears to accept the diagnosis of CFS but does not indicate that he performed any form of assessment of Ms McAuley which would support or confirm the diagnosis.

36. On the available evidence, I am not persuaded that the diagnosis of CFS, which was made in September 2013, was reliable and that the cause of Ms McAuley’s symptoms, during the claim period, was fully diagnosed.  

37. It follows that I am satisfied that, during the claim period, Ms McAuley’s medical condition was not fully diagnosed and therefore was no fully treated and fully stabilised. This means that a rating under the Impairment Tables could not have been applied and as she did not have an impairment of 20 points or more, she did not satisfy section 94(1)(b) of the Act and did not qualify for DSP at the date of claim or in the thirteen weeks following that date.

    DECISION

38. For reasons set out above, Ms McAuley did not satisfy section 94(1)(b) of the Act, during the claim period, and therefore, did not qualify for DSP.

39. Decision under review is affirmed.

I certify that the preceding 65 (sixty -five) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

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

Associate

Dated: 16 June 2017

Date(s) of hearing:	30 May 2017
Applicant:	In person
Solicitors for the Respondent:	J Larcombe, Department of Human Services