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

Rylko; Secretary, Department of Social Services and (Social services second review) [2021] AATA 307 (25 February 2021)
Division:GENERAL DIVISION
File Number:2017/6479
Re:Secretary, Department of Social Services
APPLICANT

AndPeter Rylko
RESPONDENT

DECISION
Tribunal:Senior Member D R Davies
Date:25 February 2021
Place:Brisbane

The Tribunal sets aside the decision under review and in substitution the Tribunal decides that Mr Rylko’s DSP claim lodged on 2 June 2015 is refused.
........................................................................
Senior Member D R Davies
Catchwords
SOCIAL SECURITY – claim for disability support pension – where claim for pension granted by AAT first review – application for AAT second review by Secretary – whether points can be awarded under impairment tables – whether condition fully diagnosed – condition not fully diagnosed on the medical evidence – decision under review set aside and substituted with decision that claimant is not qualified for disability support pension as at the Qualification Period
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Cases
Bobera and Secretary Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary Department of Social Services [2014] AATA 447
Gallacher v Secretary Department of Social Services [2015] FCA 1123
REASONS FOR DECISION
Senior Member D R Davies
25 February 2021
INTRODUCTION

The Applicant seeks the review of the decision made by the Social Services and Child Support Division of the Administrative Appeals Tribunal on 21 September 2017 (AAT1) that set aside the decision then under review and in substitution decided that the Respondent was qualified for disability support pension under section 94(1) of the Social Security Act 1991 (Cth) from 2 June 2015 with the date of effect of 10 April 2017.[1]
[1] As Mr Rylko applied for AAT first review of the decision more than 13 weeks after the date of notice of the decision of the Authorised Review Officer, the decision on AAT first review takes effect on the date of the application to the Tribunal for AAT first review of the decision; see section 147 of the Social Security (Administration) Act 1999 (Cth).
DEFINITIONS
In this decision:
AAT1 means the Social Services and Child Support Division of the Administrative Appeals Tribunal.
ARO means the decision of the Authorised Review Officer of 1 March 2016.
CFS means chronic fatigue syndrome.
DSP means disability support pension under the Social Security Act 1991 (Cth).
JCA means the job capacity assessment conducted by the Job Capacity Assessor.
Mr Rylko means the Respondent, Mr Peter Rylko.
Qualification Period means the period from 2 June 2015 to 1 September 2015.
Secretary means the Applicant, the Secretary, Department of Social Services.
the Act means the Social Security Act 1991 (Cth).
the Administration Act means the Social Security (Administration) Act 1999 (Cth).
the Impairment Tables meaning the tables under the Impairment Tables Determination.[2]
the Impairment Tables Determination means the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Cth).
the POS Determination means the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth).
POS means Program of Support.
[2] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth).
BACKGROUND
Mr Rylko is now 38 years old.[3]
[3] Exhibit 1 Tribunal Documents T10 p103.
On 2 June 2015, Mr Rylko lodged his claim with the Secretary for DSP.[4]
[4] Exhibit 1 Tribunal Documents T10 pp102-129.
On 1 July 2015, a JCA was conducted by Job Capacity Assessors. In the report dated 13 July 2015, the Assessors considered the condition of CFS and concluded that the condition was temporary and that it could not be rated under the Impairment Tables.[5]
[5] Exhibit 1 Tribunal Documents T11 pp130-134.
The JCA recommended that Mr Rylko had a temporary work capacity of 0-7 hours per week, a baseline work capacity of 30+ hours per week, and a capacity for work within two years with intervention of 30+ hours per week.[6]
[6] Exhibit 1 Tribunal Documents T11 p132.
On 1 September 2015, Mr Rylko’s claim for DSP was rejected.[7]
[7] Exhibit 1 Tribunal Documents T14 pp138-139.
Mr Rylko requested internal review of that decision. On 1 March 2016, the rejection decision was affirmed by an ARO.[8]
[8] Exhibit 1 Tribunal Documents T17 pp144-148.
The ARO found that the CFS condition was not fully treated and fully stabilised and therefore, an impairment rating could not be assigned under the Impairment Tables. The ARO also found that Mr Rylko had not actively participated in a POS and did not have a continuing inability to work.
On 10 July 2017, Mr Rylko lodged an application for AAT first review of this decision with AAT1.
On 21 September 2017, AAT1 set aside the decision to reject Mr Rylko’s claim for DSP and found:
(a)Mr Rylko had been diagnosed with post tick bite CFS;
(b)The post tick bite CFS was fully diagnosed, fully treated and fully stabilised and the impairments caused by the condition attracted a total impairment rating of 35 points, comprising:
(i)10 points under Table 1 – functions requiring physical exertion and stamina;
(ii)20 points under Table 7 – brain function; and
(iii)5 points under Table 14 – functions of the skin.
(c)Mr Rylko had a severe impairment and was therefore not required to have actively participated in a POS;
(d)Mr Rylko had a continuing inability to work; and
(e)The date of effect of the decision of the decision was 10 April 2017 as the Application for Review to AAT1 was not made within 13 weeks of the ARO decision.[9]
[9] Exhibit 1 Tribunal Documents T2 pp3-19.
Accordingly, the AAT1 found Mr Rylko was qualified for DSP under section 94(1) of the Act from 2 June 2015 and the date of effect of this decision was 10 April 2017.[10]
[10] Exhibit 1 Tribunal Documents T2 p19.
On 25 October 2017, the Secretary lodged an Application for Review of the decision of AAT1 in this Tribunal.[11]
[11] Exhibit 1 Tribunal Documents T1.
LEGISLATIVE FRAMEWORK
The relevant legislation is contained in:
(a)the Act;
(b)the Administration Act;
(c)the Impairment Tables; and
(d)the POS Determination.
Section 94 of the Act describes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are:
·That the person has a physical, intellectual or psychiatric impairment;
·That the person’s impairment is 20 points or more under the Impairment Tables; and
·That the person has a continuing inability to work.
The Administration Act makes it clear that qualification for DSP and assessment of the relevant impairment ratings are determined as at the date of the claim which in this case is 2 June 2015. 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.[12]
[12] See sections 41 and 42, Schedule 2, Part 2 of the Administration Act
Therefore, the relevant period for considering whether Mr Rylko qualified for DSP is between 2 June 2015 and 1 September 2015 (the Qualification Period).
Previous decisions of both this Tribunal and the Federal Court of Australia have emphasised that the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the claim for DSP, and the 13 weeks which followed it. Evidence, such as medical reports, that come into being after the Qualification Period, may still be relevant, but only in so far as they are referrable to the person’s condition during the Qualification Period.[13]
[13] See Bobera and Secretary Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 [34]; Fanning and Secretary Department of Social Services [2014] AATA 447 [32] and Gallacher v Secretary Department of Social Services [2015] FCA 1123 [25], [28].
The Impairment Tables are contained in the Impairment Tables Determination, a legislative instrument made under the Act.[14]
[14] See section 26(1) of the Act.
The Tables are function-based, rather than diagnosis-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.[15]
[15] See section 5(2) of the Impairment Tables Determination.
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.[16]
[16] See section 6(1) of the Impairment Tables Determination.
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.[17]
[17] See section 6(3) of the Impairment Tables Determination.
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 be more likely than not, in light of available evidence, to persist for more than two years.[18]
[18] See section 6(4) of the Impairment Tables Determination.
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, the following factors 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.[19]
[19] See section 6(5) of the Impairment Tables Determination.
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 a significant functional improvement to a level enabling the person to undertake work in the next two 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 two 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.[20]
[20] See section 6(6) of the Impairment Tables Determination.
“Reasonable Treatment” is treatment that:
(a)Is available at a location reasonably assessable to the person;
(b)Is at a reasonable cost;
(c)Can reliably be expected to result in a substantial improvement in functional capacity;
(d)Is regularly undertaken or performed;
(e)Has a high success rate; and
(f)Carries a low risk to the person.[21]
[21] See section 6(7) of the Impairment Tables Determination.
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.[22]
[22] See section 11(1) of the Impairment Tables Determination.
As regards the requirement that the person have a continuing inability to work, all the criteria in section 94(2) of the Act need to be satisfied. In summary, the criteria are that the person must:
(a)Have actively participated in a POS (if the person does not have a severe impairment within the meaning of section 94(3B)); and
(b)Be unable to work for at least 15 hours per week independently of a POS; and
(c)Be unable to participate in a training activity, or if the impairment does not prevent the person from undertaking a training activity, such activity is unlikely (because of the impairment) to enable him or her to do any work independently of a POS within the next two years.
A person’s impairment is a “severe impairment” if their impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are assigned under a single Impairment Table.[23]
[23] See section 94(3B) of the Act.
ISSUES FOR THE TRIBUNAL
The parties have agreed on the following matters:
(a)For Mr Rylko’s claim to succeed, he needs to have qualified for DSP during the Qualification Period, being the period from 2 June 2015 to 1 September 2015;[24]
(b)Mr Rylko satisfied s94(1)(a) of the Act, in that he suffered from a physical, intellectual or psychiatric impairment during the Qualification Period;[25] and
(c)Mr Rylko had not participated in a POS under s94(2)(aa) of the Act, and so, in order to qualify for DSP he must be found to have had a “severe impairment” (20 impairment points or more assigned under a single Impairment Table).[26]
[24] Exhibit 3 Applicant’s Statement of Facts Issues and Contentions paragraph 16; Exhibit 21 – Respondent’s Submissions paragraph 4.
[25] Exhibit 3 Applicant’s Statement of Facts Issues and Contentions paragraph 31; Exhibit 2 – Respondent’s Submissions paragraph 4.
[26] Exhibit 3 – Applicant’s Statement of Facts Issues and Contentions paragraph 34; Exhibit 22 – Applicant’s closing submissions paragraph 30; Exhibit 21 – Respondent’s Submissions paragraph 4; Definition of “Severe Impairment” in s94(3B) of the Act.
The issues in contention to be determined are:
(a)Whether during the Qualification Period, Mr Rylko’s condition was fully diagnosed, fully treated and fully stabilised;
(b)Whether during the Qualification Period, Mr Rylko suffered a severe impairment of 20 impairment points or more assigned under a single Impairment Table; and
(c)Whether Mr Rylko had a “continuing inability to work” within two years of the Qualification Period.
THE EVIDENCE
The evidence before the Tribunal comprises the Exhibits which were admitted at the Hearing including the Tribunal Documents, as well as oral evidence given in-person or by telephone at the Hearing. A considerable amount of medical evidence has been provided. Mr Rylko gave oral evidence in-person. Doctors du Plessis and Rassaby, Mr Perros, a Clinical Psychologist, and Ms Tay, the Job Capacity Assessor, gave oral evidence by telephone. The Secretary was represented by her solicitors and Mr Rylko was represented by Mr Nolan of Counsel.
Mr Rylko gave his evidence by way of his written statement.[27] He also gave oral evidence and was subjected to cross-examination at the Hearing. Whilst I found Mr Rylko to be at times vague and somewhat evasive in his oral evidence, some of that may be attributable to his medical condition to which I will refer in the course of this Decision. Whilst I do not disbelieve Mr Rylko, on contentious matters, my preference is to accept his evidence which is corroborated by other witnesses, and particularly, as required by the legislation, medical practitioners. The evidence of Mr Rylko to which I will refer in this decision, is contained in his statement or his evidence at the Hearing as the case may be.
[27] Exhibit 6.
Mr Rylko was born in 1982. He and his wife separated in or around March 2017. He said that prior to March 2017 he was living with his wife and two children who are now 10 and 9 years old. Following the separation, he moved into his brother’s house at Terranora and lived with his mother. He said that his two children live with him during the week and they stay with their mother on weekends.
Mr Rylko says that when he was about 11 years of age, he contracted glandular fever for a two to three-week period and, for a period of time following that, he intermittently had a sore throat, headaches and poor sleep. He occasionally had ‘flare-ups’, however they were not as bad as the initial episode. In his oral evidence, he said that he thought he had recurrences of glandular fever about annually over the ensuing period of three to four years.
Mr Rylko attended a number of High Schools in Queensland while completing his Secondary Education to Year 12. Following High School, he completed a semester of a bridging course at the University of Southern Queensland before commencing a degree in Surveying. He completed 2 years of that surveying degree at the University of Southern Queensland.
Dr Chris Oates, Consultant Occupational Physician, in his report dated 31 March 2017,[28] records Mr Rylko’s medical history as including that in 2002 he had a left knee injury and saw an Orthopaedic Surgeon in March 2003. Mr Rylko was advised that he had an anterior cruciate ligament and lateral meniscal tears and also lateral collateral ligament tears and that he required surgery but he did not go ahead with this. In 2004, Mr Rylko developed low back pain whilst he was green-keeping at the Gabba Cricket Ground. He had injured his back jumping a fence at age 12 and, after this, had flu-like illness with myalgias. He was diagnosed with possible discitis, but this was subsequently ruled out and his low back became less of a problem.
[28] Exhibit 1 Tribunal Documents T22 p187.
In December 2004, Mr Rylko attended Dr Peter Comben, his General Practitioner, for symptoms of ongoing malaise and severe fatigue with fevers and sweating, not dissimilar to the symptoms he remembered at the age of 13.[29]
[29] Exhibit 6 p2.
On 4 March 2005, Dr Comben referred Mr Rylko to Dr John Webb, Rheumatologist, for opinion and management of a four-month history of myalgia and arthralgia on a background of chronic pain.[30]
[30] Exhibit 19.
Mr Rylko was examined by Dr Webb and he provided a report dated 4 April 2005.[31] Dr Webb records that, on examination, all major body systems seemed normal. There was wide-spread tenderness to palmation of the trunk and all four limbs including the points characteristic of fibromyalgia syndrome.
[31] Exhibit 20.
Dr Webb records that Mr Rylko’s “symptomatic ill health …..adds up to chronic fatigue syndrome plus chronic fibromyalgia syndrome. There is some depression and this may be significant. I think you need to send this young fellow for psychological counselling. He should be encouraged to get back to his active lifestyle as well”.[32]
[32] Exhibit 20.
Mr Rylko said in his statement that Dr Comben referred him to Dr Sandra Masih for psychological assessment and management of his symptoms relating to the CFS and subsequent depression. However, in his evidence at the hearing, Mr Rylko could not recall whether Dr Masih was a psychologist nor the extent of any treatment he had undergone with her. There is no report from Dr Masih in evidence before the Tribunal. In May 2012, Mr Rylko was treated by Dr Comben for anxiety due to his upcoming exam. In his oral evidence, he said that his counselling may have been through the University of Southern Queensland which he was attending. Dr Lewis Rassaby, Mr Rylko’s General Practitioner, said in his oral evidence at the Hearing that on 12 June 2014, he had referred Mr Rylko to the University of Queensland Psychology Clinic for assessment but not for therapy.
Mr Rylko in his statement says that, on 23 July 2013, he was working in an area of bushland outside Mullumbimby as a Surveyor’s Assistant with Brown & Pluthero. At that time, he was working fulltime. He said that during the course of this work he was bitten by a tick. In his oral evidence he said that the tick was on his upper chest area on the right side near his collarbone. He said that he was not sure how long the tick had been there as he had been working in the bush for a few days. However, he said that he went home each evening and had a shower and it may have only been there the day that he discovered it. He said that his mother pulled the tick out with tweezers and at that time his mother noticed a rash on his lower abdomen. In his oral evidence, Mr Rylko said that he assumed this was a sweat rash from working in the scrub with a work belt and hot work clothing.

Mr Rylko was not particularly sick initially, although over the next three months or so he progressively worsened to the point where, on 13 October 2013, he attended Dr Comben for the rash on his elbows, back of his knees and abdomen. He said in his oral evidence that this was the first time that he had attended a doctor about these symptoms. He said that Dr Comben referred him for pathology tests including Rickettsia serology, Ross River Virus and Barmah Forest antibodies and white cell count. All blood tests came back as negative to exposure to any of the suspected viral studies. Mr Rylko says that in that consultation, due to his ongoing symptoms of headaches, lethargy, fever, fatigue, sweating and the intermittent rash, he was prescribed doxycycline and prednisolone, as well as being given a medical certificate certifying him as unfit for work. There is no report from Dr Comben in relation to those attendances.
In November 2013, Mr Rylko went back to the same medical centre due to ongoing symptoms although he said that he saw a different doctor to Dr Comben. He said that it was recommended that he attend the Tweed Hospital. On 6 November 2013, he attended Tweed Hospital for assessment. He said that further Rickettsia, Ross River Virus and Barmah Forest virus serology tests were repeated at the hospital. All results were negative apart from the presence of a low-level antibody to influenza virus which may have indicated an early influenza infection.
The hospital released him into the care of his General Practitioner. He attended the Banora Point Medical Centre and saw a number of doctors, the last of whom was Dr Rassaby, Mr Rylko’s current General Practitioner who is now at Pottsville Medical.
In late 2013, Dr Rassaby referred Mr Rylko to Dr Andrew Jones, a Consultant Physician specialising in Infectious Diseases. Dr Jones provided a report to Dr Rassaby dated 2 December 2013.[33] Dr Jones recorded that Mr Rylko’s reported history included that “he certainly got a tick bite on 23 July whilst out surveying…..and didn’t get the tick off for some three days”. Dr Jones reported that at this time Mr Rylko was still playing squash regularly and soccer, but he had not been able to keep that up over the past few weeks. Dr Jones observed that “today all I can see is an area of what looks like contact dermatitis over the central lower abdomen but none elsewhere. Certainly there is no overly infected or infective rash. Indeed examination today is entirely unremarkable”. Dr Jones noted that Dr Rylko had described significant head and neck pain, but both were getting better. He also described significant fatigue which was ongoing, although gradually improving. Dr Jones reported that Mr Rylko’s neurology was “grossly normal”. He noted that the pathology taken at Tweed Heads Hospital was negative. Dr Jones was of the opinion that Mr Rylko was suffering from a form of “post-infective syndrome”. He did not think specific therapy was likely to help. Other than a test for Q-Fever, Dr Jones did not think any further treatment was indicated. He recommended a structured and ordered return to physical activity and a progressive return to work. He said that he believed that Mr Rylko had a “perfectly normal immune system … and … he will make an ongoing (though perhaps slow) complete recovery”.
[33] Exhibit 1 Tribunal Documents T4 p85.
Dr Jones reviewed Mr Rylko on 26 March 2014. In his report of that date,[34] Dr Jones noted that Mr Rylko’s symptoms were “still consistent with a post-infective syndrome which continues to cause him difficulty with concentration and with full stamina, though his strength is improving. He still suffers from regular headaches, though overall his symptoms are resolving”. Dr Jones stated that he regarded “this condition as having been triggered by infection, but not reflecting ongoing infection”.
[34] Exhibit 1 Tribunal Documents T5 p87.
Dr Jones stated that he expected “an ongoing (and eventually complete) recovery from this”, but that the timeline for recovery remained difficult to predict. He stated that a gradual return to high levels of physical and mental activity provide the best prospect of ongoing sustained recovery. Dr Jones considered that whilst Mr Rylko’s limitations may preclude him from returning to the full extent of work he was previously performing, Dr Jones would support any planned and gradual return to work and to more normal levels of physical activity. Dr Jones concluded that he “would support any structured activity including … physiotherapy or similar that would assist in [Mr Rylko’s] ongoing recovery”.
In his evidence, Dr Rassaby said that he referred Mr Rylko to Dr Shiva Baghaei, Dermatologist, on 10 July 2014. Dr Baghaei referred Mr Rylko for pathology tests for Lyme serology. On 13 September 2014, Dr Baghaei reported to Dr Rassaby that the histopathology result was low grade lymphocytic vasculitis, dermal hyposensitivity reaction, positive to Borrelia burgdorferi IgG (CLIA) but the Borrelia SPP IgG (Immunoblot was negative).[35] The pathologist report commented that the absence of a positive Immunoblot indicates the CLIA result is likely to be a false positive or cross reacting antibody.[36]
[35] Exhibit 1 Tribunal Documents T7 p89.
[36] Exhibit 1 Tribunal Documents T6 p88.
Dr Baghaei then referred Mr Rylko to Dr Michael Whitby, an Infectious Diseases Specialist.
Dr Whitby examined Mr Rylko on 18 November 2014. Dr Whitby prepared a report dated 15 November 2014[37] in which he recorded that Mr Rylko “has no significant past medical history apart from some type of cervical discitis at the age of 12”.
[37] Exhibit 18.
Dr Whitby’s report does not refer to Mr Rylko’s prior CFS diagnosis in 2005. Dr Whitby reported that Mr Rylko said that many of his symptoms were improving. He noted that Mr Rylko “had quite marked ‘cognitive dysfunction’. His description with poor memory and poor concentration. He is fatigued, sleeping in the afternoon. He says his fatigue is improved and he is taking his two children aged 5 and 6 to school in the morning”.
Dr Whitby reported that clinical examination was essentially normal. He had an erythemato-macular rash with some hyperkeratotic areas over the bathing trunk area of his anterior body. He noted the biopsy results which showed a lymphocytic vasculitis. Dr Whitby opined that Mr Rylko has been extensively investigated with no positive results apart from the skin biopsy showing either a low-grade lymphocytic vasculitis or a dermal hypersensitivity reaction. He said that he could not offer an opinion as to why Mr Rylko may have ongoing fatigue, myalgia and lethargy in the presence of a completely normal blood test. Dr Whitby thought that a psychogenic aetiology should be considered and recommended a review by a psychiatrist. He said he could not see a reason for Mr Rylko not to return to work given the complete normality of the results, which appear to exclude systemic illness. Dr Whitby stated that he could find no reason to attribute Mr Rylko’s ongoing symptomatology to his tick bite. There was no evidence of an ongoing infectious disease transmitted by a tick.
On 13 May 2015, Dr Rassaby completed a DSP Medical Report Form.[38] In that report, Dr Rassaby stated the diagnosis to be chronic fatigue syndrome/aftermath of Rickettsia infection Borrelia infection from tick bite 23/4/2013”. He stated that the diagnosis was presumptive but that no further investigations were planned to confirm this diagnosis. He stated that there was no current treatment as there was “none known”. Past treatment was stated as having been doxycycline for 10 days in 2013. Mr Rylko’s current symptoms were described as “severe fatigue, myalgia, fever, rash, inability to concentrate”.
[38] Exhibit 1 Tribunal Documents T9 p91.
Mr Rylko lodged his DSP claim form on 2 June 2015.[39] On 1 July 2015, Mr Rylko had an in-person meeting with Ms Corina Tay, a Social Worker and an unnamed Registered Nurse for the purposes of a JCA. Ms Tay prepared the JCA report dated 13 July 2015.[40] In this report Ms Tay identified the condition as CFS and that it was temporary because on the medical reports, neither doctor had stated that the condition or symptoms were permanent with ongoing impact. Accordingly, they could not attract an impairment rating. She assessed Mr Rylko’s temporary work capacity as 0-7 hours per week and baseline work capacity as 30+ hours per week with suitable work being light, semi-skilled. Mr Rylko’s capacity for work within two years with intervention was assessed at 30+ hours per week. Ms Tay considered appropriate interventions to be counselling, secondary rehabilitation and specialist assessment.
[39] Exhibit 1 Tribunal Documents T10 p102.
[40] Exhibit 1 Tribunal Documents T11 pp130-134.
Ms Tay gave oral evidence by telephone at the Hearing. In her evidence she said that she formed the opinion that Mr Rylko’s condition was temporary based on the medical evidence. She said that in assessing Mr Rylko’s temporary work capacity and baseline work capacity, she followed internal guidelines which did not permit those assessments to be reduced if it was a temporary condition. Ms Tay was unable to be specific about what those guidelines were but thought it would have been some form of policy or procedure. In relation to the appropriate interventions, she said that somewhere in these guidelines there was a requirement that with CFS there should be counselling. She went on to say that there was “an understanding” that counselling was a form of treatment for CFS and that is why she put that down. I found Ms Tay to be an unimpressive witness. She was evasive in her answers to the questions put to her at the Hearing. It was apparent that she did not apply any objective assessment as to Mr Rylko’s work capacity or future interventions, but rather, she followed some vague and imprecise internal guidelines, policy or understanding in forming her assessment. I give little weight to her evidence and her assessment.
On 11 August 2015, Mr Rylko’s claim for DSP was refused.[41]
[41] Exhibit 1 Tribunal Documents T12 p135.
On 14 August 2015, Dr Rassaby prepared a medical certificate which diagnosed Mr Rylko with a relapsing tick bite related chronic illness. The symptoms were noted as exceptional fatigue, night sweats, fever, rash, memory dysfunction, cognitive dysfunction, nausea, intermittent headaches, myalgia, arthralgia. The prognosis was uncertain and Dr Rassaby opined that Mr Rylko had been unfit for work and study from October 2013 and that the condition was expected to last longer than another two years.[42]
[42] Exhibit 1 Tribunal Documents T13 p137.
In his evidence at the Hearing, Dr Rassaby said that in June 2015 he referred Mr Rylko to Dr Sean Butler, a Geriatrician who was, in England, a General Physician with a special interest in infectious diseases.
On 28 September 2015, Dr Butler reviewed Mr Rylko and provided a report. This report is not separately in the evidence before the Tribunal but there is a lengthy extract of it in the decision of AAT1.[43] In this extract, Dr Butler notes that:
Signs and symptoms of Peter’s disease are however typical of Lyme disease. He describes erythema migrants, fever, myalgia, malaise, arthralgia, intermittent headaches and tender local adenopathy with significant fatigue, intermittent hot flushes and intermittent night sweats.
In this extract, Dr Butler discusses current research in relation to Lyme disease and tick related illnesses. It refers to potential treatment suggestions, but these are not listed in the extract.
[43] Exhibit 1 Tribunal Documents T2 pp9-10.
On 2 November 2015, Dr Butler further reviewed Mr Rylko and reported[44] that he had reviewed blood results and brain imaging. The MRI was essentially normal:
However, the cerebral perfusion study is quite abnormal. There are multi focal areas of reduced perfusion of the temporal lobes, the frontal lobes and the parietal lobes. There is an absence of severe head injury or vascular changes noted.
[44] Exhibit 1 Tribunal Documents T15, p140.
The report went on to note:
I note abnormalities in Lyme’s and encephalopathy include:
(a)Hypo perfusion, a very discreet (sic) degree of cerebrovascular insufficiency which itself can cause cognitive abnormality. Clearly, although not diagnostic, this is an abnormal scan and supports the fact that there is real organic disease. It may not be Lyme disease specifically, but the tick bite appears to be associated with a significant immune reaction and chronic fatigue syndrome.
In his report, Dr Butler noted that whilst clinical examination was essentially normal, Mr Rylko had an erythromacular papular rash with hyperkeratotic areas on the belly and that this has been diagnosed as lymphocytic vasculitis. He said that Mr Rylko continued to describe symptomology of CFS. He went on to say:
It is clear to me that prior to 2013, he was well, and following a tick bite, he developed a viral induced multisystem disorder. Whether this was related to organisms associated with ticks …. it is immaterial in the acknowledgment that the tick bite appears to be the defining aetiology of a multi system disorder. Subsequently he developed chronic fatigue syndrome which is characterised by long term fatigue.
Dr Butler stated:
Evidence suggests that psychology intervention CBT counselling, graduated exercise program, vit A enhancement, vit B enhancement, chronic pain management programs and sleep hygiene strategies are all of benefit. Medication plays a minor role… I have no doubt that the initial tick bite appears to have set off an immune response that subsequently resulted in chronic fatigue syndrome.
It would appear that in forming these views, Dr Butler may not have been aware of Mr Rylko’s complete medical history including that he had previously experienced similar symptoms apart from the rash and had been diagnosed with CFS. Dr Butler went on to say that, in discussion with Mr Rylko, they have elected the following treatments:
Anti-depressant therapy; start Cymbalta 30 mg
Continued graduated exercise program and swimming program
CBT please consider a referral to a psychologist of your choice
Neuropsychology referral to Dr Stephen Conroy
Vitamin enhancement
Cancel LP
Full discussion with Peter and his wife.[45]
[45] Exhibit 1 Tribunal Documents T15 p141.
In a medical certificate dated 15 December 2015, Dr Rassaby certified that Mr Rylko was receiving “medical treatment for a tick bite related multi-system illness”. Dr Rassaby stated that “his prognosis for full recovery is very guarded and he is not expected to recover from his illness for at least 2 years. He is severely disabled by his illness and is unable to return to his usual occupation”.
Dr Rassaby in his oral evidence said that the treatments suggested by Dr Butler are not supported by hard evidence and for CFS there is no hard evidence that any particular therapy or pharmacological therapy is effective. He also said that on 15 December 2015 he referred Mr Rylko to Mr Stephen Conroy, a Psychologist for 10 sessions. He said that he did not know what the outcome of this was and he did not have any report from Mr Conroy in his records. He said that he did not know if this referral had been executed.
Mr Rylko in his statement said that he attended two sessions with Mr Conroy and after that Mr Conroy advised him that cognitive behavioural therapy (CBT) was not necessary for him. In his oral evidence, Mr Rylko was vague about his treatment with Mr Conroy and thought it could have been between 2013 to 2016 and that Mr Conroy may have written a letter to Dr Rassaby, however, Dr Rassaby did not have any record of any such letter from Mr Conroy.
In relation to Cymbalta, Mr Rylko’s evidence was that he did not undergo that treatment because it was an antidepressant and he was concerned about possible side-effects. He also did not believe that he was depressed. He said that he discussed this with Dr Rassaby, who Mr Rylko says was comfortable with him not taking Cymbalta. In his oral evidence, Dr Rassaby said that he did not have any record of having discussing Cymbalta therapy with Mr Rylko, but that not prescribing it would be consistent with his general approach to problems of this sort. In relation to exercise, Dr Rassaby said that he had not prepared an exercise program for Mr Rylko and had not referred him to a physiotherapist for a supervised exercise program. Mr Rylko in his oral evidence said that he had not undergone any formal exercise program with a physiotherapist or exercise physiologist. Mr Rylko said that in 2015 he was doing exercise when he could, going swimming and playing squash. He said that between 2013 and 2015 he had lost stamina but that he did not think he had lost muscle condition. He said that he tried to play squash for about 30 minutes per week for exercise on days that suited him. He was not part of a club nor any organised competition. He said that sometimes he cannot complete 30 minutes of squash. In relation to swimming, he said that he would try to average 10 laps of a 25 metre pool, although he would often then feel exhausted afterwards.
In his statement, Mr Rylko said that from 13 October 2013 until 2016 he did not perform any work. In 2016 and 2017 he made some brief attempts at carpentry and house-painting work, however he was unable to tolerate more than a couple of days of part-time activity.
In February 2016, Mr Rylko enrolled in a Diploma of Massage Therapy at TAFE. He said that in 2016 the units were mostly theory-based and the sessions would not go for more than three hours on any given day. He said that his mother was a naturopath and remedial massage therapist who operated her own business. He said that he hoped that when he had completed the course he would be able to work for her. He said that when he had completed the course he had sat in with clients of his mother and he did not think that it was a realistic possibility that he would do the work.
As part of the Diploma of Remedial Massage Course, Mr Rylko took part in a study tour to Japan from 23 April to 1 May 2017. The itinerary and program for this study tour is in evidence.[46] It shows numerous activities each day including visits to medical schools, universities, rehabilitation centres as well as associated travel and social events. In his oral evidence, Mr Rylko said that on most days there was a lot of moving around and travel between the various places. He said that he completed the itinerary and whatever was organised, he completed. He said that, based on that trip, he couldn’t do 15 hours per week training or study or work. He said that he did not relate the trip to work and saw it as a holiday and a cultural trip. He said he was constantly in a fever and covered in a rash during the trip.
[46] Exhibit 1 Tribunal Documents T21 pp155-181.
On 25 July 2016, Mr Rylko was examined by Dr John Davis, Occupational Physician, for the purpose of his workers’ compensation claim with WorkCover (NSW). Doctor Davis provided a report dated 26 July 2016.[47] In his report, Dr Davis recorded Mr Rylko’s medical history and noted the assessment in 2005 by a Rheumatologist with regard to the symptoms. He recorded Mr Rylko’s persistent complaints as being fatigued, especially after exertion, along with episodes of dizziness and headaches. Mr Rylko said his rash was cyclical and usually affected the abdomen and elbow. Mr Rylko told him that he had been unable to continue playing squash but over the last 12 months had started swimming and was able to average 10 laps in a 25 metre pool, although he felt exhausted afterwards. On examination, there was excellent muscle development and normal tone and balance. Examination of his trunk and limbs did not demonstrate any abnormality apart from minor tenderness in the lumbar spine. Neurological examination was normal. Muscle strength was normal. Dr Davis commented that:
Mr Rylko presents with a number of symptoms consistent with chronic fatigue syndrome which is diagnosed as a medical condition of no known cause, with fever, aching and prolonged tiredness and depression often occurring after a viral infection.
[47] Exhibit 15.

Dr Davis remarked that:
The provisional diagnosis would be chronic fatigue syndrome and given his history it may be reasonably related to the tick bite……There is no specific treatment for the syndrome, although if depression is a factor, then certainly treatment with anti-depressants would be reasonable with psychological counselling and a graded exercise program. The exercise program should be formulated by an exercise physiologist or an experienced physiotherapist….Counselling……I believe that it would be reasonable that he commence with 12 sessions and re-assessment be sought at the conclusion of those sessions…… Based on his current presentation, even with the provision of a graded return-to-work program, it is unlikely that he would be capable of working on a full-time basis although certainly I expect that he would be able to grade up to around 25 hours per week. If there is future improvement in his symptoms, then his work capacity would increase.
In a subsequent report dated 25 May 2017,[48] Dr Davis reviewed his earlier report in light of a report from Dr Chris Oates dated 31 March 2017, which report is discussed below. In this regard, Dr Davis noted that Mr Rylko had a recorded history of having been diagnosed as suffering with CFS in 2005 although, as far as could be ascertained, he then basically recovered and was not impaired in his ability to undertake work or sporting activities. He said that he was “unable to find any literature suggesting that chronic fatigue syndrome is subject to relapses after a symptom free period such as the period between 2015 and 2013 when he was bitten by a tick”.
[48] Exhibit 15.
He concluded that the best description of the current situation would be a diagnosis of “post-treatment Lyme disease syndrome and that the Lyme disease based on a reasonable degree of probability was occasioned by the tick bite”.
On 28 March 2017, Mr Rylko was examined by Dr Chris Oates, Occupational Physician for the purposes of his WorkCover claim. Dr Oates provided his report dated 31 March 2017 which is referred to above.[49] In his report Dr Oates thoroughly recorded Mr Rylko’s medical history. He noted that Mr Rylko went with his wife to Paris for eight days in 2015. Dr Oates relevantly stated:
Mr Rylko does recite symptoms which could be consistent with chronic fatigue syndrome. However, this syndrome is based on symptoms which are completely subjective. There is no objective evidence of any significant illness or other condition on examination. There is a small area of non-specific skin rash on the lower abdomen … which has the appearance of mild eczematous dermatitis. His described symptoms of fatigue … could be consistent with chronic fatigue syndrome. However, a recurring rash and complaints of mild fever (not in evidence on examination today) are not consistent with chronic fatigue syndrome…
In my opinion, the claimed chronic fatigue syndrome is a pre-existing condition as documented in the file evidence which pre-dates the alleged work injury by some 8 years…
Chronic fatigue syndrome can behave in an unpredictable relapsing fashion as it is possible that Mr Rylko enjoyed a period of relative freedom from the chronic fatigue syndrome condition in the period between 2005 and 2013…
It is possible that the subsequent condition was a recurrence of an earlier occurring chronic fatigue syndrome and may not have any definite relationship to the tick bite at all. In my opinion, a definite causal link cannot be established”.
[49] Exhibit 1 Tribunal Documents T22 pp183-190.
Dr Oates concluded that it is his opinion that:
Mr Rylko is fit for normal duties without restriction. However his subjective complaints of fatigue and poor exercise tolerance may subjectively render him fit for light sedentary work only.
In relation to further treatment, Dr Oates commented:
There are no future treatment requirements for any work-related condition in my opinion. He did trial cognitive behavioural therapy which, along with a graded exercise program and anti-depressant medication if depressive features are prominent, are the recognised treatment modalities for chronic fatigue syndrome. I note that he has trialled the first two treatments and cognitive behavioural therapy was considered to be unnecessary by the treating psychologist and an exercise program had not been successful, but he had declined to trial anti-depressant medication.
In Semester 2, 2017, Mr Rylko enrolled in the Bachelor of Exercise Science at Southern Cross University. However, he said that he was unable to complete even the first semester of the course and withdrew due to ongoing symptoms.
On 30 June 2017, Dr Rassaby completed a further Centrelink medical certificate.[50] It recorded the diagnosis as “post tick bite chronic fatigue syndrome”. The condition was stated to be permanent. Mr Rylko’s symptoms were stated by Dr Rassaby as “exceptional fatigue, fever, night sweats, rash, memory dysfunction”; with the prognosis being that the symptoms were likely to continue.
[50] Exhibit 1 Tribunal Documents T20 p154.
In response to a request from AAT1 on 13 September 2017, Dr Rassaby issued a letter providing his opinion on Mr Rylko’s ratings under the Impairment Tables.[51] Dr Rassaby relevantly gave the following ratings:
Table 1 – 10 points
Table 7 – 20 points
Table 14 – 5 points
[51] Exhibit 1 Tribunal Documents T22 p182.
On 21 September 2017, AAT1 set aside the ARO’s decision of 1 March 2016 and decided that Mr Rylko qualified for DSP from 2 June 2015 effective from 10 April 2017.[52] The Secretary seeks the review of that decision.
[52] Exhibit 1 Tribunal Documents T2 p3.
In about October 2017, Mr Rylko started work as a telephone salesperson selling solar electrical installations via telephone canvassing. He was subcontracted by Hardy Electrical and Solar and says that he only got the job because he knew the owner of the business very well and the owner was his brother’s best friend. He said that the owner was aware of his illness and gave him the flexibility to work when able to. He said that there had been some weeks when he did not work at all and that it usually took him an hour to do a job that would take the other salesmen only five minutes to complete. In his oral evidence, Mr Rylko said that some weeks he was able to work between 1-10 hours. He said that the duties of his role consist of telephone discussions with customers, some data entry, and he explained to customers how solar systems work.
In his oral evidence, Dr Rassaby said that in January 2018 he had tried to arrange an appointment for Mr Rylko with one of Australia’s foremost infectious diseases specialist, Dr Hudson in Sydney. However, Dr Hudson was not taking any new patients. Dr Rassaby said that by the end of 2015 there weren’t any further specialists he could suggest to Mr Rylko as he had already referred him to doctors Jones, Butler and Baghaei.
Dr Rassaby provided a further report dated 21 November 2019.[53] In this report, Dr Rassaby stated that:
[53] Exhibit 17.
Mr Rylko reported difficulties in remembering routines, tasks and instructions…”
Mr Rylko reported severe problems with his attention and concentration and that he was distractible to the extent that he was no longer able to read and study effectively. I have no reason to question his account as I have found him to be an impressively severe and honest historian despite his evident cognitive impairments…
He reported difficulties in problem solving… I was aware that problem solving comprehension and planning difficulties were impacting on his relationships, especially in his relationship with his partner and two children…
Decision making. Mr Rylko reported difficulties in this area which were also evident during consultations with me… His fatigue levels were very high…
Comprehension. Although highly intelligent, Mr Rylko often demonstrated difficulty in formulating his illness narratives… He often appeared fatigued and slow in his thinking processes although he remained insightful with evident effort…
Behavioural regulations. I found him often to be emotionally labile when describing the impact of his illness on his functioning…
Self-awareness. Mr Rylko presented as an exceptionally honest and motivated man struggling with a condition that impairs his ability to deal effectively with it and one that has had a disastrous effect on his family life and career…
Mr Rylko is able to walk around the shopping centre without assistance and mobilise from a carpark into a shopping centre or supermarket, use public transport and perform day to day household duties but is likely to be exceptionally fatigued by any one of these activities and be essentially bedridden for several days thereafter. He may be able to sustain three hourly shirts of light sedentary work without a break…
I am of the opinion that because of the sudden appearance of his symptoms in association with his history of tick bite, the persistence of a rash that is typically Rickettsial in appearance that he has sustained a very major insult to his health de novo or, that a previous condition, characterized by easy fatigability was greatly exacerbated by the tick bite… The precise diagnosis of his condition remains elusive…
In his oral evidence Dr Rassaby said that his judgments relied primarily on what Mr Rylko has told him. He said that in the contents of his report of 21 November 2019 were representative of his assessment of Mr Rylko. Dr Rassaby said that Mr Rylko’s condition and the activities he could undertake have fluctuated over time, rather than deteriorated. Dr Rassaby remarked that he sought the opinion of various specialists because he thought the diagnosis was lacking. He said that he did not specifically seek recommendations for treatment. He said that he needed clarification of the diagnosis to develop effective treatments. He said that he did not feel that Mr Rylko had ever had a diagnosis that was sufficient to provide a basis for effective treatment to Mr Rylko. Dr Rassaby went on to say that you can treat a condition without an effective diagnosis. However, he said that without a diagnosis, the condition has not been optimally treated and Mr Rylko still did not have a diagnosis.
Dr Rassaby further remarked that in 2020, Mr Rylko was prescribed a course of antibiotics which Mr Rylko had initiated following a visit which he had made to Germany to a clinic that specialised in Lyme disease and the broad range of illnesses that one can contract from tick bites. Dr Rassaby said that he believed there was no result from those antibiotic treatments.
As Mr Rylko had finished his evidence and had left the Hearing at the time Dr Rassaby gave this evidence in relation to Mr Rylko’s trip to Germany, I requested that the Respondent’s written submissions to be provided following the Hearing address the question of this trip to Germany by Mr Rylko in 2020. In the Respondent’s Outline of Submissions dated 29 January 2021[54] at paragraph 83, it states:
The Respondent travelled to Germany between approximately 20 December 2019 and 6 January 2020. The purpose of the travel was to attend the BCA Clinic in Germany. The Respondent travelled alone but stayed in Germany with a friend. His friend and their family provided the accommodation and meals for him. The clinic was approximately a 2 hour drive away from his friend’s house and they drove him there. When he was at the BCA clinic, they provided a lot of blood tests and clinical assessments. Part of that process was the course of antibiotics. The client was hoping to return to Germany after the antibiotic course to see how his body reacted to that and to see what further treatment would be done. However, Covid-19 occurred and so further travel couldn’t be done.
[54] Exhibit 21.
It is of concern that in his evidence, Mr Rylko failed to mention that he had travelled alone to Germany for nearly three weeks in December 2019 and January 2020. I note that since 2013, Mr Rylko also travelled overseas to Paris in 2015 with his wife for eight days, and to Japan in 2017 for the TAFE Massage Therapy Course.
In his statement,[55] Mr Rylko said at paragraph 67 that:
[55] Exhibit 6.
Since I ceased work in October 2013, I have suffered the following symptoms at varying degrees and still do:
(a)I experience a fever and rash, although both are intermittently.
(b)Further symptoms include lethargy, nausea, fibromyalgia and chronic fatigue symptoms.
(c)I continue to have disorientation and memory loss.
(d)My memory loss relates particularly to number and word retrieval;
(e)At times it is difficult for me to recognise individual letters, words and numbers. Even when staring at a ruler, I cannot recall the numbers I am actually looking at.
(f)I continue to experience difficulty in following conversations.
(g)I have difficulty concentrating.
(h)I have extreme post activity fatigue (mental or physical) along with general malaise.
(i)I continue to have problems with simple and complex calculations and difficulty in understanding simple and complex concepts.
(j)I also continue to experience brain fog, dizziness, poor depth/distance perception and poor awareness of my surroundings.
(k)I also have issues with light sensitivity.
(l)I continue to have balance problems and disorientation.
(m)My symptoms fluctuate in intensity from moderate to severe.
(n)Since the tick bite I have not been symptom free.
In his oral evidence, Mr Rylko said that he had all of those symptoms between June 2015 and September 2015. He said that at present, he is living in his brother’s house in Terranora with his mother and two children. He said that his children take the bus to and from school and they spend the weekends with their mother. Since he separated from his wife in March 2017, his mother has attended to most of the activities around the house. He said that as it is his brother’s house, his brother does most of the heavy work around the house including gardening. He said that prior to the middle of last year when he started the course of antibiotics, he did some washing, dishes and hanging clothes around the house and occasionally mowed the lawn. He said he drives a car and, on occasions, he uses public transport including to travel to the Hearing of this application. He said that he manages his own personal care and although he doesn’t attend social events, he does not have any problems in interactions with other people. He said that at times he has problems with concentration and with comprehension involving complex technical matters. He said that he hasn’t experienced the rash for about six months but between June to September 2015, he was still experiencing the rash. He said that sometimes it was worse than others and it was usually associated with a fever. He said that being out in the sun or swimming at the pool did not bring on the rash.
On 12 March 2018, Mr Rylko was examined by Dr LJ du Plessis, a Neurologist and Rehabilitation Physician. Dr du Plessis prepared reports dated 26 March 2018[56] and 3 October 2018,[57] and also gave oral evidence by telephone at the Hearing.
[56] Exhibit 8.
[57] Exhibit 9.
In his report of 26 March 2018,[58] Dr du Plessis noted that he found Mr Rylko’s report of his history was extremely vague, indecisive and evasive at times. He stated that he found it difficult to clinically assess Mr Rylko. He noted that Mr Rylko told him that at that time he was the best he had been since September or October 2017. Having carefully reviewed the various medical reports which were provided to him and following examination of Mr Rylko, Dr du Plessis remarked that there was no evidence of the scar usually left by a tick bite and that no scar had been recorded in any of the previous medical reports. He said that the history of the tick bite is only based on the information provided by Mr Rylko and there is no external confirmation of the tick bite having occurred. He said that whilst a headache and rash were typical features in the early stages following a tick bite, in Mr Rylko’s case, there was no report of a palmar rash in the early stages following the tick bite and the rash on his lower abdomen had been diagnosed as “non-specific dermal hypersensitivity or low grade vasculitis”.
[58] Exhibit 8.
Dr du Plessis reported that in 2005, Mr Rylko had been diagnosed with CFS that had persisted for some time. He noted that Mr Rylko reported that he had myalgia and arthralgia, but that those symptoms, along with most of the symptoms reported by Mr Rylko, were subjective and not able to be clinically verified. He also considered that, as Mr Rylko reported that he had cognitive impairment, Mr Rylko should have a detailed neuropsychological assessment. Dr du Plessis considered that as a headache was such a common symptom, not much diagnostic value could be attached to it. He noted there was no abnormality in the blood test which had been investigated by Dr Butler. He also noted the results of the Lyme disease serology and that one of the tests, Borrelia burgdorferi was positive. He commented that this test can cross-react with glandular fever virus infection which was a condition that Mr Rylko had when he was younger. He stated that because of this, that positive test means “absolutely nothing in terms with assisting in the making of the diagnosis”.
Dr du Plessis was of the opinion that the diagnosis of Mr Rylko’s condition has never been confirmed. Because of this lack of diagnosis, there has been a lack of him being able to be adequately treated and because Mr Rylko reports that his symptoms are changing from time to time, although stable over the last few months, his symptoms cannot be considered fully stable. He stated that Mr Rylko does not have any neurological deficits. In his report, Dr du Plessis opined that Mr Rylko would score 0 points under Table 1 relating to physical exertion and stamina; 0 points under Table 7, subject to a neuropsychological assessment; and 0 points under Table 14 in respect of skin conditions. Dr du Plessis did not consider that the conditions of CFS and vasculitis were fully diagnosed, fully treated and fully stabilised at the time of the Qualification Period.
Dr Sowby, an Occupational Physician, examined Mr Rylko on 10 July 2018 and provided a report dated 12 July 2018.[59] Dr Sowby considered that Mr Rylko presented with CFS and more recently has developed a significant depressive illness following his marital separation. He considered that Mr Rylko had undergone appropriate treatment for CFS with limited effect, and that Mr Rylko’s prognosis was for the current situation regarding his CFS to continue for the foreseeable future. He assessed Mr Rylko’s impairment ratings as Table 1 – 10 points; Table 7 – 20 points; Table 14 – 5 points.
[59] Exhibit 13.
Dr Sowby’s report was reviewed by Dr du Plessis and he provided a further report dated 3 October 2018.[60] In his report Dr du Plessis noted that Dr Sowby referred to a brain scan which demonstrated “something funny in the frontal lobe” but that he had not been privy to this actual report. Dr du Plessis noted that Mr Rylko has never undergone a neuropsychological assessment to confirm his reported cognitive problems, and neither have his other symptoms been substantiated as they are, in the main, purely subjective. Dr du Plessis was aware that Mr Rylko had separated from his partner and this caused depressive symptoms. He noted that Dr Sowby had indicated that Mr Rylko presented with CFS and more recently had developed a significant depressive illness following his marital separation. Dr du Plessis commented that CFS cannot be physically confirmed by means of physical examination as it is a subjective condition. He acknowledged that Mr Rylko may have developed secondary depressive symptoms and, in his opinion, chronic depression is a more appropriate diagnosis than CFS. Dr du Plessis remarked that the report of Dr Sowby did not change his original opinion and he still considered that Mr Rylko should undergo neurological/cognitive assessment to establish the level of fatigue and the reported cognitive impairment.
[60] Exhibit 9.

In his oral evidence at the Hearing, Dr du Plessis said that he saw the report from Mr Perros, whose evidence is discussed below, of the neuropsychological testing earlier that day. He said that Mr Perros did not find any significant neuropsychological impairment. He said that he had a problem with the condition CFS as it is subjective. He said that his own observations when he examined Mr Rylko and the results of the test administered by Mr Perros proved that, cognitively, there was nothing wrong with Mr Rylko. He did not find any evidence of Mr Rylko having suffered a brain injury during his examination and did not perceive any memory or concentration issues. Dr du Plessis said that he accepted that Mr Rylko had been diagnosed with CFS, but that he was not an expert in CFS. He said that he was concerned that it was a recurrence of something which had occurred in 2005. He said that the symptoms of CFS are all subjective and he did not believe that CFS is an organic injury. He said that the symptoms referred to in Dr Butler’s report could refer to a number of conditions.
In his oral evidence, Dr du Plessis said that the treatment Mr Rylko should have received for the vasculitis would have been by steroid injection. In relation to CFS he said that the recommendation is a graduated exercise program and this would have been the case in 2015. He said that there is a difference between swimming or playing squash occasionally and an exercise program. Dr du Plessis said that whether Mr Rylko has depression and a psychiatric condition was outside his expertise. In commenting on Dr Oates’ report, Dr duPlessis said that, regarding treatments, Mr Rylko did not complete the full treatment. He said that Mr Rylko did not undertake the anti-depressant medication and he did not complete the course of CBT, nor did he undertake an exercise program. He said that even though Mr Perros found that Mr Rylko did not have a cognitive deficit, CBT would have been of benefit. Dr du Plessis did not accept that by March 2017, Mr Rylko’s CFS was fully diagnosed and fully treated.
Mr Peter Perros, a Clinical Neuropsychologist and Forensic Psychologist, assessed Mr Rylko on 11 December 2018 and provided a report dated 4 January 2019.[61] In his report, Mr Perros remarked that Mr Rylko was referred to psychologist Mr John Kotroni by Dr Rassaby. Mr Perros reported that Mr Rylko told him that he had completed three sessions with Mr Kotroni. I note that there was no report from Mr Kotroni in evidence, nor did Dr Rassaby mention in his evidence that he had referred Mr Rylko to Mr Kotroni. It is possible that this may in fact have been Mr Conroy, to whom Doctors Butler and Rassaby had previously referred. Mr Perros gave Mr Rylko a number of tests over a period of several hours. Mr Perros in his summary opined that Mr Rylko has an essentially normal psychometric profile. He stated that Mr Rylko is susceptible to fatigue and his attention and effort appear affected by fatigue. Mr Perros stated that from the psychological perspective, Mr Rylko was fit to perform junior-level administrative work. He said that there was no impairment under the guidelines which arises on the basis of his neuropsychological profile.
[61] Exhibit 11.
In his report, Mr Perros stated that Mr Rylko “scored in the average to above average in most areas and there are indications Mr Rylko has underachieved occupationally. He stated that “Mr Rylko achieved average to above average scores on measures of reasoning and memory.”
Mr Perros also gave oral evidence by telephone at the Hearing. He said that he thought Mr Rylko applied himself well to the testing. He said that Mr Rylko’s test results suggested he is a fairly bright man. He said that towards the end of the testing, Mr Rylko started flagging but this was not unusual and it was a fairly long day for Mr Rylko. He said that Mr Rylko’s full scale IQ was 112 which was roughly where it should be.
Mr Perros said that it was hard to say whether Mr Rylko would have achieved similar results if the testing had been carried out in 2015, commenting that some of the scores could have been different. He said that when he saw Mr Rylko, Mr Rylko reported moderate distress over the breakup of his marriage. He said that if Mr Rylko had been in a happier space in 2015 one might expect better scores in some of the tests if they had been administered at that time. He said that if Mr Rylko was in a happier place in 2015 in relation to the position of his marriage, he might have had a 5% better result. Mr Perros said that cognitive function tends to be fairly stable over time. He said that if Mr Rylko’s situation was little different in 2015, the results would probably not be that different but they would not be the same.
CONSIDERATION
Was Mr Rylko’s condition fully diagnosed, fully treated and fully stabilised?
As previously mentioned, it is necessary to determine whether during the Qualification Period Mr Rylko’s condition was permanent in that: it had been fully diagnosed by an appropriately qualified Medical Practitioner; it had been fully treated; it had fully stabilised; and was more likely than not in light of available evidence to persist for more than two years. In determining this, factors to be considered include whether there is corroborating evidence of the condition, whether treatment or rehabilitation has occurred in relation to the condition and whether treatment is continuing or planned in the next two years.
Mr Rylko’s medical condition needs to be assessed as at the time of the Qualification Period. Accordingly, considerable weight must be given to the medical and other evidence as at that time. Medical reports after that time are only relevant so far as they are referrable to Mr Rylko’s condition during the Qualification Period.
As I have previously mentioned, in 2005 when he was 22 years of age, Mr Rylko was diagnosed by Dr Webb as having CFS plus chronic fibromyalgia syndrome.[62] Dr Webb recorded that Mr Rylko said that he also had contracted glandular fever at 11 years of age. In March 2012, Mr Rylko was treated by Dr Comben, his GP, for an anxiety disorder due to his upcoming exams.
[62] Exhibit 19.
Mr Rylko said that he was bitten by a tick in July 2013. Over the ensuing months, he said that he experienced various symptoms to which I have referred earlier in this decision. Mr Rylko said that over the next three months his condition worsened and he attended Dr Comben for treatment in relation to those symptoms. In late 2013, he attended his then GP Dr Rassaby who then referred him to various specialists to whom I have referred earlier in this decision. At the time Mr Rylko made his DSP claim on 2 June 2015, Dr Rassaby provided a report[63] that Mr Rylko’s condition was diagnosed presumptively as being CFS as an aftermath of infection from the tick bite in July 2013.
[63] Exhibit 1 Tribunal Documents T9.
In December 2013 Dr Jones, a Consultant Physician, considered that Mr Rylko was suffering from a form of post-infective syndrome.[64] In September 2014, Dr Baghaei, Dermatologist, reported that histopathology indicated that Mr Rylko had low-grade lymphocytic vasculitis and a dermal hypersensitivity reaction.[65] In December 2014, Dr Whitby, an Infectious Diseases Specialist, could not offer any opinion as to why Mr Rylko may have had ongoing fatigue, myalgia and lethargy in the presence of a completely normal blood test. He could find no reason to attribute Mr Rylko’s ongoing symptomatology to his tick bite.[66] In November 2015, Dr Butler, a Physician, was of the opinion that the initial tick bite appears to have set off an immune response that subsequently resulted in CFS.[67]
[64] Exhibit 1 Tribunal Documents T4.
[65] Exhibit 1 Tribunal Documents T7.
[66] Exhibit 18.
[67] Exhibit 1 Tribunal Documents T15.
In July 2016, Dr Davis, Occupational Medicine Specialist, was of the opinion that Mr Rylko’s provisional diagnosis would be CFS and, given his history, it may be reasonably related to the tick bite. He recommended various treatments but said that Mr Rylko’s overall prognosis must remain quite guarded.[68] In a subsequent report dated 25 May 2017[69], Dr Davis opined that the best description of Mr Rylko’s current situation would be a diagnosis of post-treatment Lyme disease syndrome and that the Lyme disease, based on a reasonable degree of probability, was occasioned by the tick bite.
[68] Exhibit 18.
[69] Exhibit 15.
In March 2017, Dr Oates, Occupational Physician, considered that Mr Rylko’s symptoms could be consistent with CFS but this syndrome is based on reported symptoms which are completely subjective. There was no objective evidence of any significant illness or other condition on examination. His opinion was that the claimed CFS is a pre-existing condition.[70]
[70] Exhibit 1 Tribunal Documents T22.
In March 2018, Dr du Plessis, Neurologist and Rehabilitation Physician, examined Mr Rylko and, in his report,[71] questioned whether Mr Rylko had suffered a tick bite as there was no scar evident. He was of the opinion that Mr Rylko’s claimed conditions of CFS and vasculitis were not fully diagnosed, fully treated nor fully stabilised as at the Qualification Period. His evidence was that Mr Rylko’s symptoms of CFS were subjective and were not clinically confirmed. In relation to possible cognitive impairment, Dr du Plessis considered that a detailed psychological assessment was required. Following that assessment being carried out by Mr Perros in December 2018, Dr du Plessis’ evidence was that Mr Perros’ report indicated that there was no significant neurological impairment. Dr du Plessis acknowledged in his evidence that he was not an expert in CFS. In his report of 3 October 2018,[72] Dr du Plessis opined that Mr Rylko’s subjective symptoms have been attributed to CFS which, however, cannot be physically confirmed by means of physical examination as it is a subjective diagnosis. It was his opinion that chronic depression was a more appropriate diagnosis than CFS.
[71] Exhibit 8.
[72] Exhibit 9.
Mr Perros, Clinical Psychologist, examined Mr Rylko in December 2019. His report[73] and oral evidence bore the conclusion that Mr Rylko did not have any specific deficits in cognitive function and his psychometric profile was essentially normal with no evidence of impairment. He was of the opinion that in 2015, Mr Rylko’s results would probably not have been that different although they would not have been the same.
[73] Exhibit 11.
As I previously mentioned, Dr Rassaby in his oral evidence said that he had sought the opinion of the various specialists because he thought the diagnosis was lacking. He said that he did not feel that “we have ever had a diagnosis that it was sufficient to provide an effective treatment for Mr Rylko”.
As I have previously mentioned, I did not find Mr Rylko to be in an impressive witness and I am reluctant to accept his evidence on contentious matters without corroboration particularly by appropriately qualified medical practitioners. I find it difficult to accept some of Mr Rylko’s evidence as to the extent of his fatigue and physical capabilities in light of his own evidence as to swimming and playing squash and particularly that he has been able to travel overseas to Paris in 2015 with his wife, to Japan in 2017 with a TAFE group, and to Germany in December 2019/January 2020 on his own.
There is no corroborative evidence that he suffered a tick bite in July 2013. There is also the divergence of opinion among the various medical specialists about whether the CFS condition was caused by the tick bite or whether it was the reoccurrence of a pre-existing condition from 2005.
To briefly summarise the medical evidence:
·In December 2013, Dr Jones was of the view that Mr Rylko had a form of post-infective syndrome.
·In March 2014, Dr Jones was of the opinion that Mr Rylko’s symptoms were still consistent with a post-infective syndrome which continued to cause him difficulty with concentration and full stamina.
·In September 2014, Dr Baghaei reported low-grade lymphocytic vasculitis and dermal hypersensitivity.
·In December 2014, Dr Whitby could not offer an opinion as to why Mr Rylko may have fatigue, myalgia and lethargy.
·In November 2015, Dr Butler was of the opinion that the tick bite had set off an immune response that subsequently resulted in CFS;
·In July 2016, Dr Davis gave a provisional diagnosis of CFS which might be reasonably related to the tick bite.
·In May 2017, Dr Davis was of the opinion that the diagnosis is post-treatment Lyme disease syndrome.
·In March 2017, Dr Oates considered the symptoms could be consistent with CFS but this was based on Mr Rylko‘s reported symptoms which were subjective.
·In March 2018, Dr du Plessis was of the opinion that the purported conditions of CFS and vasculitis were not fully diagnosed, fully treated nor fully stabilised.
·In October 2018, Dr du Plessis was of the opinion that chronic depression was a more appropriate diagnosis than CFS.
·In July 2018, Dr Sowby was of the opinion that Mr Rylko presented with CFS and more recently had developed a significant depressive illness.
·In January 2019, Mr Perros found no evidence of cognitive impairment.
·While in May 2015, Dr Rassaby presumptively diagnosed Mr Rylko’s condition as CFS as an aftermath of infection following the tick bite in July 2013, in oral evidence at the Hearing he said that he did not feel there has ever been a diagnosis that was sufficient to provide an effective treatment.
While some of the medical evidence to which I have referred was provided outside the Qualification Period, I consider that most of it does assist to inform as to Mr Rylko’s condition during the Qualification Period.
In terms of diagnosis, having regard to the medical evidence to which I have referred, there is no clear diagnosis of his condition during the Qualification Period and the medical opinions vary significantly. Accordingly, I am not satisfied that Mr Rylko’s purported condition was fully diagnosed within the meaning of s6(5) of the Impairment Tables as at the Qualification Period.
Accordingly, I find that Mr Rylko’s condition was not fully diagnosed within the meaning of s6(5) of the Impairment Tables during the Qualification Period.
It follows that, in accordance with s6 of the Impairment Tables, I find that Mr Rylko’s condition was not permanent as at the Qualification Period and that an impairment rating cannot be assigned to his condition.
Accordingly, Mr Rylko does not satisfy s94(1)(b) of the Act.
In view of the conclusion I have reached above, it is not necessary to consider whether Mr Rylko met the requirements that his impairment was a severe impairment and that he had a continuing inability to work.
CONCLUSION
I find that Mr Rylko is not qualified for DSP in respect of his claim lodged on 2 June 2015. The Application for Review of the Decision of AAT1 is successful. The Decision under review is set aside and in substitution the decision is that Mr Rylko’s DSP claim lodged on 2 June 2015 is refused.

I certify that the preceding 122 (one hundred and twenty two) paragraphs are a true copy of the reasons for the decision herein of Senior Member D R Davies

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Associate
Dated: 25 February 2021

Dates of hearing: 27-28 January 2021

Final submissions received: 4 February 2021

Solicitor for the Applicant: Ms Maleah Underhill, Mills Oakley Lawyers

Counsel for the Respondent: Mr Philip Nolan

Solicitor for the Respondent: Mr Paul Watson, Berrill & Watson Lawyers

[2021] AATA 307

25 February 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Appeal

Dates of hearing:	27-28 January 2021
Final submissions received:	4 February 2021
Solicitor for the Applicant:	Ms Maleah Underhill, Mills Oakley Lawyers
Counsel for the Respondent:	Mr Philip Nolan
Solicitor for the Respondent:	Mr Paul Watson, Berrill & Watson Lawyers