Moira Brodie and Secretary, Department of Social Services

[2015] AATA 242

[2015] AATA 242 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/5440
Re	Moira Brodie
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	23 April 2015
Place	Brisbane

The decision under review is affirmed.

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Senior Member Bernard J McCabe

CATCHWORDS

SOCIAL SECURITY – disability support pension –  13-week assessment period – application of ‘medical criteria’ – no impairment points attributed to clinical depression – chronic fatigue syndrome and fibromyalgia not fully diagnosed, treated and stabilised – decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 ss 6; 8; Pt 3

REASONS FOR DECISION

23 April 2015

1. Moira Brodie has been very sick for a long time. She lives with her elderly mother and her daughter. Mrs Brodie Snr takes care of the family, and attends to all of the housework and other duties because Moira, the applicant, is so unwell. On 7 March 2014, Ms Brodie lodged a claim for the disability support pension (“DSP”). Her application was supported by a treating doctor’s report prepared by her general practitioner, Dr Cattley.
   Dr Cattley says Ms Brodie suffers from clinical depression, chronic fatigue syndrome and fibromyalgia.

2. Centrelink refused Ms Brodie’s original claim because it concluded she was unable to satisfy what are commonly known as the “medical criteria” in s 94 of the
   Social Security Act 1991 (Cth) (“the Act”) during the assessment period (a 13-week period commencing on the date the application was filed). Centrelink does not doubt
   Ms Brodie was unwell, and it does not dispute that she was debilitated during the assessment period. Centrelink does not question Ms Brodie’s honesty or the competence and professionalism of her treating doctors. (I add that observation because the file includes correspondence from treating doctors in which they express their frustration over the process.)

3. As it happens, Centrelink (acting on behalf of the Secretary, who is the respondent in these proceedings) was right to refuse the claim at the time – although I note Centrelink accepted a subsequent claim in October 2014 in light of evidence of Ms Brodie’s deteriorating psychiatric condition. These proceedings relate to the applicant’s entitlements in the period between March and October 2014. In the paragraphs that follow, I explain my reasons for affirming this decision.

   THE MEDICAL CRITERIA IN SECTION 94

4. Section 94 requires an applicant to satisfy a number of criteria before he or she becomes eligible to receive the DSP. Section 94(1)(a) says the applicant must experience a psychiatric, intellectual or physical impairment. There is no doubt Ms Brodie satisfied this requirement during the assessment period: the respondent accepts Ms Brodie experienced symptoms of depression and symptoms associated with chronic fatigue syndrome and fibromyalgia.

5. Section 94(1)(b) says the applicant must attract at least 20 points under the impairment tables which are published pursuant to the Act. The impairment tables are contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”). The impairment tables are designed to assess the functional impact of a condition on a person.
   This is where the Secretary says Ms Brodie runs into difficulty.

6. Sub-section 6(3) of the rules which accompany the impairment tables in the Determination says an impairment rating can only be assigned in respect of a condition if, after considering the medical history, the decision-maker is satisfied the condition in question is permanent – which means the condition is (a) fully diagnosed by an appropriately qualified medical practitioner; (b) fully treated; (c) fully stabilised;
   and (d) likely to persist more than two years: sub-section 6(4). Sub-section 8(1) of the Determination says the applicant’s own description of her symptoms can only be taken into account for the purposes of the assessment where there is corroborating evidence. (The instruction in s 8(1) is repeated in the preamble to the relevant impairment tables.)

7. The Secretary accepts the applicant’s depression condition has been appropriately diagnosed. At the hearing, Ms Forsyth acknowledged on behalf of the respondent that there was evidence to support a finding at the relevant time that the condition was fully treated and stabilised[1] – but she went on to point out Dr Cattley’s report
   of 7 February 2014 (exhibit one at p 161ff) said the depression was “generally well managed and [caused] minimal or limited impact on ability to function” (at p 170).
   

   [1]
   In those circumstances, Ms Forsyth argued, it was impossible to assign an impairment rating under Table 5, which deals with mental health function.

8. Ms Brodie suggested in her oral evidence that there might have been a degree of understatement in Dr Cattley’s report. I also note her condition was regarded as being sufficiently serious by October 2014 that she became eligible to receive the DSP from that point. But that does not change what the applicant’s treating doctor said about her psychiatric condition during the assessment period. I accept Centrelink was right to conclude on the basis of that evidence that Ms Brodie’s psychiatric condition did not attract any impairment rating during the assessment period. 

9. The applicant’s claims in respect of fibromyalgia and chronic fatigue syndrome raise different issues. She says those conditions combine to debilitate her. In her oral evidence, she explained she can do nothing around the house; while she agreed she has good days and bad days, on the bad days – which occur frequently – she might be confined to bed all day. Ms Brodie’s mother essentially confirmed that account in her own oral evidence. I was told the applicant has been in this situation for many years, although her condition may have become worse since the assessment period.

10. The respondent says I am not entitled to rely on the applicant’s self-reporting.
    

    [2] Table 1, which deals with “Functions requiring Physical Exertion and Stamina”

    Ms Forsyth pointed out the preamble to the relevant impairment table[2] says self-reports can only be taken into account if they are corroborated. The preamble goes on to list several examples of objective expert medical evidence which might constitute corroborating evidence for the purposes of the exercise. I doubt that corroboration by the applicant’s mother is sufficient. But Ms Forsyth says we do not need to get to that point because the threshold question of diagnosis cannot be resolved in Ms Brodie’s favour.

11. It appears Ms Brodie’s treating doctors have long assumed the applicant suffers from fibromyalgia and chronic fatigue syndrome. Dr Cattley certainly proceeded on that basis when he completed the treating doctor’s report in February 2014. I do not dispute that his view of the applicant’s condition was reasonable from the point of view of a treating doctor, but the law requires that I be satisfied the diagnosis was made (or able to be made) during the relevant period, and that it was made by an appropriately qualified medical practitioner.

12. Ms Brodie’s psychiatrist certainly accepts the applicant has been suffering from chronic fatigue syndrome for at least a decade. He says so in an exasperated tone in his letter of 27 January 2015: exhibit two. He apparently reached that conclusion on the basis of the history he took from Ms Brodie. Dr Wright, the psychiatrist, accepts there is disagreement within the medical profession over whether the disorder in question is ‘real’. It is also unclear whether chronic fatigue syndrome is a psychiatric condition, which raises a question over whether Dr Wright is appropriately qualified to offer that diagnosis for present purposes.

13. The applicant saw a rheumatologist about her conditions for the purposes of her DSP application. The rheumatologist, Dr Tsai, conceded in his report dated 8 July 2014 (exhibit one at p 181ff) that he was not an expert on fibromyalgia and chronic fatigue syndrome, although he agreed it was an appropriate provisional diagnosis
    (exhibit one at p 182). He recommended further investigation. I note Dr Cattley referred to further investigations in his treating doctor’s report: he said the applicant was awaiting results from a test for Lyme’s disease (exhibit one at p 166). (The applicant said those test results were received shortly after the report was completed. The tests showed she does not have Lyme’s disease.)

14. While it is regrettable the applicant was not referred to an expert in the particular area until more recently, there is no doubt that the diagnosis of these two conditions is a difficult task. The applicant acknowledged in her oral evidence there is no test for either condition: they are diagnoses reached through a process of exclusion.  The investigations required to reach a formal diagnosis for the purposes of this exercise had not been completed during the assessment period. Indeed, Ms Brodie observed in her oral evidence that she was tested for rheumatoid arthritis – another possible explanation – as recently as the beginning of 2015.

15. I cannot be satisfied on the evidence before me that the applicant was properly diagnosed with fibromyalgia and chronic fatigue syndrome during the assessment period. In making that finding, I intend no criticism of the approach adopted by the applicant’s treating doctors in managing her treatment: they are the experts in treating her various conditions. But Centrelink officers (and the Tribunal when it stands in their shoes on review) are not trying to treat the applicant, or second-guess treatment decisions. The decision-makers’ role is different. They are interpreting and administering the social security legislation to determine whether Ms Brodie is entitled to a particular form of pension.
    The decision-making process we must follow is set down in the Act. The Centrelink officers – who are accountable to the Tribunal and the Federal Court – have correctly applied the law in this case. I am satisfied the applicant’s fibromyalgia and chronic fatigue syndrome were not fully diagnosed within the meaning of s 94(1)(b) during the assessment period. In those circumstances, there is no need for me to consider the third criterion, set out in s 94(1)(c)(i), which considers whether there is a continuing inability to work.

    CONCLUSION

16. The applicant is unable to satisfy the criterion set out in s 94(1)(b) of the Act. It follows the application for DSP lodged in March 2014 cannot be accepted. The decision under review is therefore affirmed.

I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

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Dated 23 April 2015

Date of hearing	16 April 2015
Applicant	In person
Advocate for the Respondent	Ms J Forsyth
Solicitors for the Respondent	Department of Human Services

I note the Secretary’s Statement of Facts, Issues and Contentions does not go so far. The Statement says the Tribunal should not be satisfied the applicant’s depressive condition was fully treated and stabilised. I am satisfied

Ms Forsyth’s concession on the Secretary’s behalf was realistic and appropriate.