Tennant and Secretary, Department of Social Services (Social security)

[2018] AATA 1628

Tennant and Secretary, Department of Social Services (Social security) [2018] AATA 1628 (4 June 2018)

Division:GENERAL DIVISION

File Number(s):      2017/3807

Re:Susan Tennant

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Bill Stefaniak AM RFD, Senior Member

Date:4 June 2018

Place:Sydney

The decision under review is affirmed.

.........................sgd................................

Bill Stefaniak AM RFD, Senior Member

CATCHWORDS

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

LEGISLATION

Social Security Act 1991 (Cth) s 94

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

Schedule 2 of the Social Security (Administration) Act 1999 (Cth)

REASONS FOR DECISION

Bill Stefaniak AM, RFD Senior Member

4 June 2018

INTRODUCTION

1. The Applicant was born on 9 August 1957.

2. In 1999 she came to Australia and has resided here since that time. Prior to coming to Australia the Applicant contracted Lyme Disease and other ailments for which she received treatment in the USA.  She continued to require treatment for various ailments in Australia.

3. After many years of struggling to work due to ill health in her various roles in Academia and in the Tertiary Education Sector, the Applicant found by 2010 as a result of her ailments, that she could no longer do even part-time work from home.

4. On 27 April 2016, she lodged a claim for DSP with the Department which was rejected on 21 September 2016 on the basis that the Applicant did not have an impairment rating of 20 points or more under the Impairment Tables.

5. This decision was affirmed on 2 February 2017 by an ARO and the Applicant’s appeal to the AAT1 was also unsuccessful.  This was confirmed in the AAT1’s decision dated 15 June 2017 affirming the ARO’s decision. On 29 June 2017 she appealed to this tribunal.

6. The matter was heard in Sydney on 8 December 2017 and 9 February 2018 and the Applicant appeared by phone.

7. A  Commonwealth Medical Officer Dr Susan Armstrong gave evidence on behalf of the Respondent and the Applicant and her daughter gave evidence on behalf of the Applicant.

   RELEVANT LEGISLATION AND ISSUES

8. Section 94(1) of the Social Security Act1991 (Cth) (the Act) provides that a person qualifies for DSP 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)   the person has a continuing inability to work as defined in s 94(2) of the Act.

9. In accordance with the requirements of schedule 2 of the Social Security ( Administration ) Act 1999 (Cth), to qualify for the DSP, the  Applicant must satisfy the requirements of        s 94 of the Act as at the date of her claim or within 13 weeks of lodging the claim, namely between 27 April and 27 July 2016 ( the claim period ).

10. The Applicant provided a plethora of reports, academic articles, reports and statements, many of which related to Lyme Disease, as evidence before the tribunal both before during and after the hearings. The tribunal thanks her for her assistance in that regard.

11. The Respondent accepted that the Applicant had impairments during the claim period and therefore satisfied s 94(1)(a) of the Act, but contended that those impairments did not attract an impairment rating of 20 points or more under the Impairment Tables and thus the Applicant did not meet the criteria set out in s 94(1)(b) of the Act.

12. The Respondent further contended that even if the Applicant did satisfy the s 94(1)(b) criteria she did not satisfy the criteria under s 94(1)(c) of the Act as she was not enrolled in, nor had she completed a program of support as required under s 94(2) of the Act.

    DOES THE APPLICANT HAVE MEDICAL CONDITIONS THAT CAN BE RATED AT 20 POINTS OR MORE UNDERTHE IMPAIRMENT TABLES

13. The Social Security (Tables for the Assessment of Work –related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) requires that an impairment rating can only be assigned if the condition causing that impairment is         “permanent”.

14. As set out in paragraph 6(4) of the Impairment Tables, a condition is permanent if it;

    ·   has been fully diagnosed by an appropriately qualified medical practitioner;

    and

    ·   has been fully treated; and

    ·   has been fully  stabilised; and

    ·   is more likely than not to persist for more than 2 years.

15. The Impairment Tables describe functional activities, abilities, symptoms and limitations and are designed to assign ratings to determine the level of functional impact of impairment.

16. The introduction to each relevant table requires that “self-reporting of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”.

17. Relying on the evidence before me, I consider that the Applicant’s medical conditions for the purposes of her claim for DSP  are:

    ·   Lyme disease;

    ·   Chronic fatigue and fibromyalgia;

    ·   Cardiac condition;

    ·   Cervical spine condition;

    ·   Myloclonic jerks;

    ·   Endometrical polyp;

    ·   Iron deficiency Anaemia

18. This Tribunal accepts that a number of these conditions did not have, as at the claim period, any functional impact on the Applicant and that some of them also seem to overlap with Lyme Disease (notably CFS and fibromyalgia).

19. It also became clear to the Tribunal during the hearing that the various medical issues and ailments affecting the Applicant had gotten worse since the claim period. The evidence of the Applicant, corroborated in nearly all aspects by her daughter who saw and continues to see her on a regular basis supports this as does some of the medical evidence before the Tribunal.

20. I will now consider each of these medical conditions and their relative ratings under the Impairment Tables Determination.

    LYME DISEASE

21. The Tribunal notes the varied medical views on this disease and also the fact that its manifestations are very similar to other less controversial diseases or ailments such as Chronic Fatigue Syndrome (CFS).

22. Having looked at all the evidence the Tribunal is prepared to find that the Applicant was infected by a tick in the 1980’s in the USA and seems to have contracted Chronic Lyme Disease as a result. The Tribunal notes that Dr J Brewer diagnosed her as such in 1995 in the USA. He diagnosed her with Lyme Disease with CFS and fibromyalgia.

23. On 15 July 2016 the Applicant was examined in Sydney by Dr P Dobie an Australian expert in Lyme Disease who stated in his report dated 29 August 2016, that as at the time he diagnosed her, the Applicant had Chronic Lyme Disease.

24. As that report related to an examination during the claim period the Tribunal accepts that was when the actual diagnosis took place.

25. As Dr Dobie is an expert in Lyme disease and Dr Susan Armstrong is not (she being more of a mental health expert), the Tribunal prefers the evidence of Dr Dobie which corroborates the original diagnosis in 1995 by Dr Brewer. I note that this evidence has also been accepted by the ARO and the AAT1.

26. The Applicant gave evidence both before the AAT1 and before this Tribunal. Her daughter also gave evidence before this Tribunal that largely corroborated what the Applicant said.

27. Both the Applicant and her daughter indicated that the Applicant’s condition had become a lot worse since the claim period.

28. Chronic Lyme Disease, CFS and fibromyalgia are covered by Table 1 (although table 14 may also be of some relevance as far as the skin ailment parts of Lyme Disease are concerned). It should be noted that this aspect of Lyme disease does not affect the Applicant to any great degree and Table 1 is the appropriate table.

29. As at the claim period the Applicant suffered from constant fatigue and widespread pain. At the time she was living with her mother and whilst spending a lot of time in bed, she could manage some cooking and some light cleaning, sweeping and vacuuming. She was able to make the beds and she shopped on line and rarely left the house. At that stage she was still able to drive to local facilities if she had to. She suffered from insomnia.

30. Within about 6 months or so of the claim period the Applicant’s condition worsened and she stopped driving. She could not use public transport. She spent more time in bed.

31. Dr C Wong noted in his letter dated 3 August 2017, that the Applicant reported she was lethargic, had insomnia and suffers from an “abrupt sudden vocalisation with non–rhythmic motor.” This manifested itself every 20 to 30 minutes when, whilst giving evidence to the Tribunal she would let out a loud constant squawk which would last for a few seconds. It sounded like a loud crow call.

32. The Tribunal has considered the descriptors in Table 1 and agrees with the AAT1’s allocation of 10 points as at the time of the claim period.

33. The Applicant experienced frequent symptoms of shortness of breath, fatigue, cardiac pain when performing day to day activities around the home and community and as a result was unable to walk far outside the home.  She also had difficulties performing day to day household activities such as changing sheets on a bed, but could walk around a shopping centre and could perform tasks not requiring a high level of physical exertion.

34. Whilst it is the Tribunal’s view that as at the date of the hearing in December 2017 and again in February 2018, the Applicant would in all likelihood qualify for 20 points under this Table and thus not need to satisfy the need to have completed a POS, as at the claim period she only qualified for 10 points.

    CHRONIC FATIQUE SYNDROME

35. As this condition is covered by the same table as Lyme Disease (Table 1) and thus cannot be covered twice, I refer to my comments above which refer to the symptoms of Lyme Disease, CFS and fibromyalgia.

    CARDIAC CONDITION

36. The Respondent accepts that at the time of the claim period this condition was fully diagnosed, treated and stabilised, but as at the claim period the reports of Dr Woods dated 28 July 2015 and Dr Tongue dated 28 August 2016, indicated that there were no significant issues (Dr Woods) and in the case of Dr Tongue, there was no condition to treat at the time and no functional impact. Accordingly, no points can be allocated.

    CERVICAL SPINE CONDITION

37. This condition was diagnosed in 2007 and was treated up until 2010 with some success by Mr Farmer, a Physiotherapist following the Applicant’s 2007 motor vehicle accident.

38. The Respondent contended that it was not fully treated and stabilised as at the claim period and the evidence tends to back this up. In Dr Tongue’s August 2016 report, she reported having no knowledge of this injury and in an MRI report dated 14 September 2016, Dr Kueh reported mild to moderate C4/5 foraminal narrowing.

39. On 25 July 2017, Mr Farmer re-examined the Applicant and found that she scored 37/50 compared to 23/50 in 2007 and 2008, on the Vemon Mior neck disability indicator.  A score of over 35 (which is the highest score possible) suggested a significant neck disability. This is however a year after the claim period, but it does indicate that the condition had significantly deteriorated and as at 2017 was classed as a significant disability.

40. No doubt, providing it can now be classed as fully stabilised and fully treated (that is, any further treatment will not improve it, just help with pain management and coping) and assuming it has a significant functional impact, which seems on the evidence to be likely, then this condition would now attract a rating under Table 4 of the Impairment Tables.

41. However, as at the claim period this was not the case.

    MYLOCLONIC JERKS

42. The Tribunal accepts on the evidence before it as at the claim period the cause of this problem was still being investigated. 

43. Even as late as 3 August 2017, Dr Wong stated in his report that he did not think it was epilepsy but felt further testing was necessary to exclude epilepsy or any interictal epileptiform discharges. Dr Wong witnessed one of the applicant’s abrupt, sudden vocalisations with non-rhythmic motor (the sudden crow-like squawk referred to earlier) but did not think it was a seizure of any kind, nor was it likely to be epilepsy.

44. In his August 2017 letter, Dr C Wong recommended the Applicant obtain a further MRI scan and for that to be compared with her current scan. Accordingly, this condition cannot be rated as at the claim period.

    ENDOMETRICAL POLYP

45. Whilst there were some issues around whether this fully diagnosed condition was fully treated and fully stabilised as at the claim period., there was no evidence it caused the Applicant any current specific symptoms as at the claim period. The Applicant also confirmed that this was the case with the JCA herself on 2 August 2016. Accordingly, as there was no evidence that this condition caused any functional impact at the time of the claim period, it cannot be rated.

    IRON DEFICIENCY ANAEMIA

46. This condition appears to have stabilised prior to the claim period and the Applicant’s full blood examination for the period between January to July 2016 indicated normal haemoglobin and iron studies as indicated in Dr Armstrong’s report at attachment a) to the Secretary’s Statement of Facts and Contentions tendered in evidence.

47. The evidence suggests this condition caused the Applicant no functional impairment as at the claim period.

    IMPAIRMENT RATING

48. As the main ailments of Lyme Disease and CFS have similar symptoms and can only be rated together under Table 1, in my view as at the claim period, the Applicant can only get 10 points under that Table. As her other main ailment, namely her spine was not fully treated and stabilised and as there was no medical evidence of how it was travelling between 2010 and 2017, the Tribunal cannot assess the condition as at 2016.

49. If it could, from my observations of the evidence it may well have been able to rate 10 points from what the Applicant and her daughter told the Tribunal. However, even if that could be allocated, the Applicant still would need 20 points for any one table to avoid the requirement to undertake a program of support for 18 of the last 36 months.

    PROGRAM OF SUPPORT REQUIREMENT 

50. Unfortunately for the Applicant she had as at 26 April 2016, only completed 493 days out of the 546 she needed to complete for the period 26 April 2013 to 26 April 2016 (the mandatory 3 year period). Further, as at 26 April 2016 she had ceased to be enrolled in a POS.

51. There was no evidence before the Tribunal that she had been exited from the programme because of her condition and so she fell short of the requirement regarding completing a program of support as required.

52. This however is academic as she can only be allocated 10 points in total for the reasons given above.

    CONTINUING INABILITY TO WORK

53. I do not accept the Respondent’s assertion that the Applicant, as at the claim period  and certainly as at today when her conditions have deteriorated further to a significant degree, would have the ability to do after 2 years without intervention, work for at least 15 hours per week.

54. Dr Dobie in his report of 26 August 2016 stated that the Applicant was permanently disabled due to chronic illness. In a phone discussion with the DHS assessor on 31 August 2016, Dr Dobie further stated that in his view, “she (the Applicant) is totally and permanently incapacitated for work’’ as also stated in Dr Sandra Anderson’s report dated 2 November 2017, at p.9.

55. The Tribunal prefers Dr Dobie’s evidence to that of the JCA, as Dr Dobie conducted a medical examination of the Applicant during the claim period and has years of experience as a medical expert in certain ailments relevant to the Applicant which in the Tribunal’s view is of much greater weight than a less qualified JCA who is not a medical practitioner.

56. The Tribunal’s own assessment of the Applicant and of her daughter’s evidence is that it would be extremely difficult as at the claim period to accept that there would be any work anywhere in Australia she could do for 15 hours or more a week without intervention.

57. The Tribunal is bolstered further in this view by the fact that the Applicant had struggled from the 1980’s onward with her employment as a result of her ailments.

58. She has made a not insignificant contribution to the work force in both the USA and after 1999 in Australia, until in or around 2010 she found she was no longer able to even do 8 hours or so a week self-paced work at home.

59. The Tribunal accepts the Applicant’s evidence that she would love to work and notes that due to the nature of her professional work she would not qualify for DSP due to her income, even if she could only manage 6 to 8 hours work per week. She has a financial incentive as much as anything else to work.

60. The Tribunal agrees with Dr Dobie’s assessment and further, as it accepts the Applicant has gotten worse since 2016, is also satisfied that that assessment is current and will remain so.  Amongst other issues, the sudden loud ear-piercing squawk that emits from the Applicant every 20 or 30 minutes would be problematic for other co-workers and members of the public and could really be only tolerated if she was working by herself. Her Lyme Disease and CFS problems, coupled with back issues and likely mental health (depression) issues, support this prognosis.

61. The Tribunal finds that the Applicant is a very sick lady suffering from significant medical issues.

    CONCLUSION

62. For the reasons given above, I am satisfied the Applicant did not meet the requirements of s 94(1)(b) of the Act during the claim period as her  impairments were not rated at 20 points or more under the Impairment Tables. As can be seen from above, the Tribunal can only award her 10 points.

63. The Tribunal also notes that there is significant evidence that the Applicant may also be, and probably has been for some time, suffering from depression. This needs to be diagnosed by a suitably qualified health professional (either a psychiatrist or a clinical psychologist) and certified to be fully stabilised and treated to qualify for points.

64. The Tribunal further notes that it is obvious from the evidence that the Applicant’s assessable conditions under Table 1 (Lyme Disease and CFS and Fibromyalgia) have worsened since the claim period and may well now attract 20 points if assessed under Table 1 today. This would negate the need for the POS requirement. 

65. The Applicant is entitled to submit a new application for DSP at any time. Any fresh application should be supported by new reports by relevant health professionals (especially from her GP and from a psychiatrist or clinical psychologist for any mental health issue like depression) and should address the relevant impairment tables, commenting on the descriptors therein and assigning her points for each condition.

    DECISION

66. For the reasons given above the decision under review is affirmed.

I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Bill Stefaniak AM RFD, Senior Member.

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Associate

Dated:  4 June 2018

Date(s) of hearing: 8 December 2017 and 9 February 2018