Narelle Whitham and Secretary, Department of Social Services

[2015] AATA 9

[2015] AATA 9 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/2105
Re	Narelle Whitham
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Miss E A Shanahan, Member
Date	12 January 2015
Place	Melbourne

The Tribunal affirms the decision under review.

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

Member

SOCIAL SECURITY – pensions benefits allowances – disability support pension claim – conditions of chronic fatigue syndrome, post-traumatic stress disorder, depression and chronic obstructive pulmonary disease – no condition fully diagnosed, treated and stabilised – no impairment rating attracted – decision affirmed.

Legislation

Social Security Act 1991
Social Security (Administration) Act 1999

Social Security (Tables for the Assessment of Work Related Impairment for Disability Support) Determination 2011

REASONS FOR DECISION

Miss E A Shanahan, Member

12 January 2015

1. Mrs Whitham lodged a claim for disability support pension (DSP) with Centrelink on 24 October 2012.  She described her disabilities and illnesses as being shortness of breath, severe chest pains, high blood pressure and an inability to walk for more than five metres because of her shortness of breath.  Her application was supported by a treating doctor’s report from her general practitioner, Dr Shahid Khan.  Dr Khan provided two medical reports, dated 16 October 2012 and 14 November 2012.  These reports are substantively the same. 

2. Dr Khan stated that Mrs Whitham’s medical condition resulting in an incapacity for work was chronic fatigue syndrome (CFS).  The onset of this condition was on 29 February 2012.  He said that this diagnosis was still under investigation and specialist consideration as on 16 October 2014.  While the impact of the condition was expected to persist for three to 24 months, Mrs Whitham’s ability to function within the next two years was considered to be uncertain.

3. Dr Patrick Cooney, consultant physician and nephrologist, provided a report to Dr Khan dated 20 September 2012 indicating that further investigation was underway. 

4. On 29 November 2012, Mrs Whitham underwent a job capacity assessment (JCA) by a registered occupational therapist who determined that the conditions of CFS, hypertension, past hysterectomy and oophorectomy, and morbid obesity had not been fully diagnosed, treated and stabilised and therefore did not attract an impairment rating under the Social Security (Tables for the Assessment of Work Related Impairment for Disability Support) Determination 2011 (the Impairment Tables).  Mrs Whitham was also assessed as having a work capacity of 15 to 22 hours per week within two years, with intervention.  A Centrelink officer, based on the evidence then available, rejected Mrs Whitham’s application for DSP on 4 December 2012.

5. Mrs Whitham sought review of this decision by an authorised review officer (ARO).  She provided further medical evidence from another general practitioner, Dr Michael Moynihan, as well as reports from the consultant physician, Dr Cooney.  The ARO decision was not made until 17 January 2014.  The ARO found the medical conditions claimed were not fully diagnosed, treated and stabilised and thus did not attract an impairment rating under the Impairment Tables.

6. Mrs Whitham lodged an application for review of the ARO’s decision with the Social Security Appeals Tribunal (SSAT) on 31 January 2014. The SSAT heard the matter by telephone on 12 March 2014.  It affirmed the decision under review on the same grounds, namely that the conditions were not fully diagnosed, treated and stabilised.  Mrs Whitham lodged her application for a review of the SSAT decision by the Administrative Appeals Tribunal (AAT) on 24 April 2014. 

7. The hearing was conducted by telephone as Mrs Whitham stated she was unable to travel. She was self-represented. Mr Kasper Maat, Senior Lawyer of the Australian Government Solicitor represented the Secretary, Department of Social Services (the Secretary). The Respondent lodged documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T-documents and Supplementary T‑documents).  They were assigned Exhibit number R1.  Further reports were also provided by Dr Cooney, the consultant physician, and Dr Sandra Armstrong of the Health Professional Advisory Unit (Supplementary T‑document 4, pages 12-18).

8. The Tribunal contacted Dr Michael Moynihan by telephone to verify his experience and qualifications, and in particular whether he had the appropriate qualifications and experience required by s 6(4) of the Impairment Tables.   

   BACKGROUND TO THE APPLICATION

9. Mrs Whitham lives in a remote area in New South Wales. She worked as a massage therapist and beautician in the Moulamein area until mid-2012.  In February 2012 she became acutely short of breath overnight.  Since that time her dyspnoea has increased and she is unable to walk more than five metres without becoming short of breath and developing chest pain.  She is unable to perform all the activities of daily living.  She has had to cease work. 

10. Mrs Whitham’s general practitioner, Dr Khan, diagnosed CFS with an onset date of 29 February 2012.  There is little description of the nature or characteristics of her chest pain in the general practitioner’s reports, other than to say it is sharp and stabbing and worsening.  It would appear that the shortness of breath and the chest pain are attributed to chronic fatigue syndrome.

11. Dr Khan referred Mrs Whitham to Dr Cooney.  Dr Cooney provided a more detailed history, physical examination and report of investigations.  He noted that Mrs Whitham is an ex-smoker having ceased in January 2012 but had only an eight pack-year history of smoking.  He described Mrs Whitham’s chest pain as being sharp, intermittent and localised to the left hemithorax.  A chest X-ray in January 2012 was normal, as were blood tests. 

12. Mrs Whitham was admitted to Swan Hill Hospital in August 2012 and underwent several blood tests and a stress ECG.  The stress ECG was normal, as were all the blood tests.  Later in August 2012, she again attended the Swan Hill Hospital, Emergency Department where further blood tests were conducted, including creatinine-kinase, troponin, glucose, cholesterol and triglycerides, liver function tests and a full blood examination.  All of these tests were within the normal range, except for her liver function tests which were slightly abnormal. Mrs Whitham underwent a transthoracic echocardiogram which showed normal cardiac function.

13. On physical examination Dr Cooney noted an elevation of Mrs Whitham’s blood pressure at 155/95 mmHg, obesity (her weight being 106 kilograms) and recorded that she became short of breath on walking from the waiting room to the consulting room.  The physical examination was otherwise entirely normal.

14. Dr Cooney was of the opinion that the cause of Mrs Whitham’s shortness of breath was unclear.  He arranged for her to undergo a ventilation perfusion (V/Q) scan of her lungs to exclude a pulmonary embolus; high resolution CT scanning of the lungs to exclude interstitial lung disease, pneumonitis or chronic obstructive pulmonary disease (COPD) and also performed more blood tests.  He arranged for her to see a respiratory physician and undergo respiratory function testing in Bendigo once the other investigations were completed.

15. The results of all this extensive testing were entirely normal, except for slightly abnormal liver function tests compatible with fatty change in her liver, which in turn was compatible with her morbid obesity.  When reviewed on 19 October 2012 Mrs Whitham’s dyspnoea was unchanged but her blood pressure was better controlled, with a reading of 140/80 mmHg and her lung fields remained clear.  

16. Mrs Whitham did not keep the appointment with the respiratory physician, Dr Campagnaro. Thus, there is no respiratory physician’s opinion or pulmonary function laboratory testing of her lung function available to this Tribunal.

17. On receipt of all these reports, Centrelink obtained a JCA which determined that Mrs Whitham’s condition of CFS as reported by Dr Khan was not fully diagnosed, treated and stabilised.  The assessor did note the other conditions in Dr Cooney’s reports regarding Mrs Whitham’s severe dyspnoea on exertion.

18. Mrs Whitham’s application for DSP was rejected.  She sought review by an ARO and in the interim provided further reports from Dr Moynihan, her general practitioner, who had treated her over a period of some years.  On 14 January 2013 Dr Moynihan certified Mrs Whitham as suffering from PTSD, depression and chronic fatigue syndrome.  Later in the same year, on 13 September 2013, Dr Moynihan wrote to Centrelink advising that Mrs Whitham was suffering from chronic obstructive pulmonary disease. On 30 January 2014 he provided a further treating doctor’s report (TDR) attributing her total inability to work to the presence of chronic obstructive pulmonary disease, CFS and depression.  In this TDR, Dr Moynihan stated he was an experienced psychotherapist. 

19. Dr Moynihan assessed Mrs Whitham’s impairment rating in accordance with the Guide to the Assessment of the Degree of Permanent Impairment (the Guide) and the Impairment Tables as being at least 70 points.  In a further treating doctor’s report dated 1 August 2014, Dr Moynihan indicated that the conditions he had previously reported of back pain due to spondylitis, De Quervain’s tenosynovitis and chronic cystic hydradenitis were all well controlled and had limited or minimal impact on Mrs Whitham’s functional capacity. 

20. Dr Moynihan dated Mrs Whitham’s onset of depression and presumably PTSD, as occurring in 2010, preceding the diagnosis of CFS.  He had been anxious to treat Mrs Whitham’s psychiatric conditions with triple therapy involving Escitalopram (an antidepressant), Lamotrigine (an anti-epileptic occasionally used for treatment of depression) and Rivotril (a benzodiazepine).  He indicated that this drug combination was effective for CFS. 

21. A further JCA was performed on 14 March 2013.  The assessment was conducted by a registered psychologist, a qualified social worker and a registered nurse.  On this occasion the assessors deemed the medical conditions to be considered were depression, chronic fatigue syndrome, morbid obesity, hypertension and thoracic spondylosis giving rise to back pain.  Only the hypertension was considered to be fully diagnosed and treated; and as it was well controlled, it did not contribute to any incapacity.  All the other conditions were considered not fully diagnosed, treated or stabilised.  Once more, Mrs Whitham’s work capacity with intervention over the following two years was considered to be 15 to 22 hours per week for light semi-skilled work, such as a receptionist. 

22. The SSAT affirmed the decision of the ARO. 

    EVIDENCE BEFORE THE TRIBUNAL

23. The hearing was conducted by telephone as Mrs Whitham advised that she is unable to travel.  She gave evidence confirming the date of onset of her CFS, its severity and that her predominate symptom is shortness of breath on minor exertion.  In terms of her depression, she stated that her only symptom was that she frequently became teary eyed. 

24. Mrs Whitham had provided Dr Moynihan with the relevant guidelines to the Impairment Tables and those sections of Determination 2011 outlining the Rules for applying the Impairment Tables, in particular paragraph 5 (Purpose and design of the Tables) and paragraph 6 (3)(a) (Applying the Tables), regarding permanency and that the condition must be fully diagnosed by an appropriately qualified medical practitioner.

25. Mrs Whitham informed the Tribunal that Dr Moynihan had read those sections of Determination 2011 and advised her that he met the requirements in that he was a rural general practitioner with a Fellowship of the Australian College of Rural Medicine.  This resulted in his Australian Health Professional Registration Authority (AHPRA) classification as being a general practitioner specialist.  According to Mrs Whitham, Dr Moynihan had majored in psychology and had in the past been offered the role of Medical Director of the Bendigo Mental Health Service, which he had declined. 

26. Mrs Whitham also confirmed that she was restricted in her ability to travel and limited her travel to seeing Dr Moynihan once a fortnight.  This involved an 87 kilometre drive from her home in Moulamein to Swan Hill.  Had she kept the appointment to see Dr Campagnaro in Bendigo, this would have involved travelling more than 500 kilometres, which she said she could not tolerate.  Mrs Whitham also confirmed that she had not undertaken the prescribed course of treatment for her CFS as advised by Dr Moynihan as she could not afford the cost of the medication. 

    Dr Michael Moynihan

27. Mrs Whitham requested that the Tribunal contact Dr Moynihan by telephone.  Dr Moynihan adopted the reports he had provided to Centrelink. 

28. The Tribunal sought clarification of Dr Moynihan’s qualifications as his letterhead and treating doctor reports indicated that he had obtained his primary medical qualifications, Bachelor of Medicine and Bachelor of Surgery, overseas. His other qualifications were a Diploma of Obstetrics and a Fellowship of the Australian College of Rural Medicine. Dr Moynihan confirmed these were his only qualifications and that he had never undergone training in psychiatry or psychology. Nor had he been offered the position in Bendigo as Director of the Mental Health Service.  However, he explained that he had 25 years’ experience working in rural areas, 15 of them in Swan Hill and 10 at Nyah West.  Dr Moynihan stated that it was difficult to obtain specialist opinions in rural practice areas. He regarded himself as a generalist who was able to deal with the vast majority of medical and psychological conditions. 

    DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL

29. The documentary evidence relevant to Mrs Whitham’s claim has been included under the heading BACKGROUND TO THE APPLICATION.  No test results or physical examination findings have been provided by the treating general practitioners.  Only Dr Cooney has provided such information. Mrs Whitham confirmed that she has never seen a clinical psychologist or a psychiatrist; nor has she seen an expert such as a rheumatologist or occupational health physician regarding her CFS. 

30. The Secretary obtained the opinion of Dr Sandra Armstrong, Medical Advisor to the Health Professional Advisory Unit.  Dr Armstrong provided a detailed written assessment of the medical evidence lodged in support of Mrs Whitham’s application for DSP.  Dr Armstrong noted there have been no specialist opinions provided regarding the diagnosis of CFS.  She also noted that the data that has been provided showed no evidence of the exclusion of other conditions required to support the diagnosis of CFS (CFS is regarded as a diagnosis of exclusion based on history, examination and investigations.)

31. In his reports, Dr Cooney did not accept the diagnosis of CFS.  He merely noted that such a diagnosis had been made by Dr Khan. Dr Cooney attempted to find or exclude other causes of severe dyspnoea on exertion.  Regrettably, Mrs Whitham has not seen the necessary respiratory physician or undergone appropriate lung function testing by a stand-alone respiratory function laboratory. 

32. Dr Armstrong also noted the conflicting evidence regarding the time of onset of Mrs Whitham’s depression.  According to Dr Moynihan, the depression preceded the onset of CFS by two years; whereas Dr Khan said the depression and the CFS occurred simultaneously.  Dr Armstrong quoted the international guidelines which state that:

    CFS should not be diagnosed if the patient has an identifiable medical or psychiatric condition that could plausibly account for their symptoms.

    Dr Moynihan first reported the diagnosis of PTSD on 14 January 2013, but stated that he had made this diagnosis in 2010. This is contrary to Dr Cooney’s report of 20 September 2012 in which he noted that Mrs Whitham denied currently being depressed. 

33. Dr Armstrong was perturbed by the recommendation of triple therapy with Escitalopram, Lamotrigine and Rivotril for either PTSD or CFS as she could not find any evidence- based management regime involving the use of these medications.

34. Dr Armstrong was provided with the lung function tests performed on 22 November 2013, which were said to confirm the diagnosis of COPD.  In her opinion, the tests did not because they revealed a normal FEV1/FVC ratio (forced expiratory volume in 1 second/forced vital capacity ratio).  Dr Armstrong’s report also suggested that the figures obtained on testing were unreliable.

    RELEVANT LEGISLATION

35. The Social Security Act 1991 provides at s 94 qualifications for DSP stating:

    94       Qualification for disability support pension

    (1)A person is qualified for disability support pension if:

    (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;

    (ii)the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and ...

36. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 provides in paragraphs 6(3) and 6(4) that:

    Impairment ratings

    (3)An impairment rating can only be assigned to an impairment if:

    (a)the person’s condition causing that impairment is permanent; and

    Note:   For permanent see subsection 6(4).

    (b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.

    Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.

    Permanency of conditions

    (4)For the purposes of paragraph 6(3)(a) a condition is permanent if:

    (a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and

    (b)the condition has been fully treated; and

    Note:   For fully diagnosed and fully treated see subsection 6(5).

    (c)the condition has been fully stabilised; and

    Note:   For fully stabilised see subsection 6(6).

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

37. The Social Security (Administration) Act 1999 (the Administration Act) s 41(1) provides that:

    41Commencement

    (1)Unless another provision of the social security law provides otherwise, a social security payment becomes payable to a person on the person’s start day in relation to the social security payment. ...

    A person’s qualifications under s 94 of the Act are to be determined as at the date on which the claim for DSP is made or within 13 weeks of that date (s 4(1)(c) of the Administration Act).

    SUBMISSIONS

38. Mrs Whitham did not make any formal submissions but said that she had intended her claim for DSP to be determined solely on her CFS and not on the additional psychological disorders referred to by Dr Moynihan. 

39. Mr Maat submitted that the Secretary accepted that Mrs Whitham satisfied s 94(1)(a) of the Act in that she had an illness; that is a physical, intellectual or psychiatric impairment as defined in the Act. The Secretary also accepted that at the time of her application for DSP, 24 October 2012, Mrs Whitham had been diagnosed as suffering from CFS, had undergone a hysterectomy in 2010, and had been diagnosed with hypertension and obesity. Mr Maat accepted that Mrs Whitham had been diagnosed with depression and PTSD on 9 January 2013 but he submitted that this diagnosis was made by a general practitioner and not a psychiatrist or psychologist as required. In addition the CFS had not been confirmed by an expert in this condition.

1. Mr Maat contended that at the time of lodgement of the claim, although a presumptive diagnosis of CFS had been made, it was subject to ongoing investigation and confirmation by an appropriately qualified medical practitioner.  That confirmation has not been forthcoming.  The conditions of depression and PTSD have not been confirmed at any time by an appropriately qualified person. 

2. Mr Maat submitted that the CFS, the depression and the PTSD, even if they had been confirmed, had not been treated and stabilised.  Dr Moynihan’s reports made it clear that he wished to treat the CFS with triple therapy, which would presumably also affect PTSD.  However, Mrs Whitham had not undertaken the treatment as she could not afford the medication.  Similarly, he submitted that Mrs Whitham’s obesity had not been treated.  He accepted that Mrs Whitham’s hypertension had been treated and stabilised but noted that it had a minimal impact on her function. 

3. Mr Maat submitted that given the contention that none of the applicant’s medical conditions had been shown to be fully diagnosed, treated and stabilised and therefore did not attract an impairment rating, it was not necessary for the Tribunal to consider whether Mrs Whitham had a continuing inability to work.   He noted that Mrs Whitham had not participated in a program of support at any time during the three year period immediately preceding her claim. 

   TRIBUNAL’S DELIBERATIONS

4. When Mrs Whitham lodged her claim for DSP, Dr Khan certified that she was suffering from possible CFS and was undergoing further investigation with referral to a specialist physician.  Dr Khan placed the onset of the CFS as being an acute event on 29 February 2012 with the symptoms said to be indicative of CFS being sudden and increasing shortness of breath on exertion impacting on her daily activities and resulting in severe fatigue.  The prognosis was said to be uncertain.  Dr Khan’s medical report some four weeks later was to the same effect but also indicated that future treatment would involve obtaining the opinion of a respiratory physician. 

5. Dr Moynihan’s medical reports were not received until after the Centrelink primary decision-maker had rejected Mrs Whitham’s claim for DSP.  Dr Moynihan provided a different clinical history, dating the onset of the condition to August 2010, when Mrs Whitham had been subjected to severe psychological stress within her family.  Dr Moynihan described the symptoms as being of the full CFS spectrum, namely pain (presumably in the chest), fatigue and reduced exercise tolerance. 

6. Dr Moynihan outlined the treatment he would recommend but stated that Mrs Whitham could not afford it.

7. Dr Cooney, the consultant physician and nephrologist, investigated Mrs Whitham in terms of her severe dyspnoea on exertion.  These investigations were extensive and ruled out a cardiac origin, the occurrence of pulmonary embolism and infarction and the presence of interstitial lung disease, he having obtained both a V/Q scan and a high resolution CT scan of Mrs Whitham’s lungs.  Dr Cooney appropriately referred Mrs Whitham to a respiratory physician for an opinion and the performance of lung function tests.  Mrs Whitham did not keep the appointment and has never seen a respiratory physician. 

8. On 22 November 2013 Mrs Whitham underwent lung function testing at the Swan Hill Medical Group general practice.  This was performed with a spirometer known as EasyOne(TM) Diagnostic EU 2.24 and to the Tribunal Member’s own knowledge  does not compare in any way with the equipment and investigations performed in a respiratory function laboratory. 

9. Despite Dr Moynihan’s diagnosis of chronic obstructive pulmonary disease, based on this testing the tests do not reveal such a diagnosis.   Accepting the best of the three tests, the ratio FEV1/FVC is 71.2 per cent, which is within the normal range.  Mrs Whitham’s lung volumes, that is her FVC is reduced to 54 per cent of predicted volume and her FEV1 similarly is reduced to 45 per cent of predicted volume.  There was no improvement in these volumes with bronchodilators.  The machine-generated report states: Caution: No Acceptable Maneuvers [sic] – Interpret With Care.  The Tribunal regards these tests as being unreliable given the normal V/Q scan, the high resolution CT lung scan and Dr Cooney’s report that Mrs Whitham had only an eight pack-year smoking history (a pack-year of smoking is the smoking of 20 cigarettes daily for one year.)

10. Mrs Whitham was diagnosed as suffering from PTSD and depression. The stressor founding the diagnosis of PTSD being stressful experiences with her daughter over a period of 10 years.  Mrs Whitham had not been seen by a psychiatrist or clinical psychologist; although, in his evidence, Dr Moynihan said he thought she had seen a psychologist many years ago.  He did not have any correspondence from that psychologist. 

11. On 14 January 2014 Dr Moynihan certified  that Mrs Whitham’s morbid obesity, thoracic spondylosis giving rise to back pain and past history of hysterectomy and ovarian cystectomy  were well controlled and causing minimal impact on Mrs Whitham’s ability to function.

12. The content of some of the medical reports is conflicting in terms of the duration of the CFS and the presence or absence of psychiatric disorders.  The Tribunal was not provided with the results of any investigations performed by the treating general practitioners nor were the clinical records available.  The only results of physical examination and investigations were provided by Dr Cooney and all of these were within the normal range. 

13. The major medical conditions which have been said to cause Mrs Whitham’s incapacity, namely the CFS and her psychiatric disorders, have not been fully diagnosed by appropriately qualified medical specialists, such as a rheumatologist and a psychologist or psychiatrist. These conditions have not been treated as Mrs Whitham is unable to afford the medication favoured by her treating general practitioner.

14. As neither her CFS nor her psychiatric disorders have been fully diagnosed, treated and stabilised, an impairment rating is not attracted. Therefore, s 94(1)(b) of the Act is not satisfied. This failure to attract an impairment rating was present throughout the period under review between 24 October 2012 and 24 January 2013.

15. The Tribunal affirms the decision under review.

I certify that the preceding 54 (fifty‑four) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

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

Associate

Dated 12 January 2015

Date of hearing	3 December 2014
Applicant	In person
Solicitor for the Respondent	Mr Kasper Maat
Solicitors for the Respondent	Australian Government Solicitor