Tooley and Secretary, Department of Employment and Workplace Relations
[2007] AATA 1666
•14 August 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1666
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/556
GENERAL ADMINISTRATIVE DIVISION ) Re CHRISTOPHER TOOLEY Applicant
And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Dr M Denovan, Member Date14 August 2007
PlaceBrisbane
Decision The Tribunal:
(a) removes the privacy order issued on 18 October 2006; and
(b) sets aside the decision of the Social Security Appeals Tribunal, and substitutes a decision that the applicant is qualified for disability support pension pursuant to s 94 of the Social Security Act 1991 from 20 June 2005..................[sgd].............................
Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – chronic fatigue syndrome – medical evidence – diagnosis of exclusion – applicant had an impairment during the claim period – applicant has impairment rating of 20 points – the applicant has a continuing inability to work – decision under review set aside
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Social Security (Administration) Act 1999 (Cth) Schedule 2 section 4Social Security Act 1991 (Cth) ss 94, Schedule 1B
Bugno and Secretary, Department of Employment and Workplace Relations [2005] AATA 788
Maroun and Secretary to the Department of Family and Community Services [2003] AATA 347
REASONS FOR DECISION
14 August 2007 Dr M Denovan, Member Introduction
1. Mr Christopher Tooley suffers from significant impairments. He was previously granted disability support pension, however that benefit was cancelled. Mr Tooley has reapplied for disability support pension (DSP) and I have to decide whether he is eligible to receive that pension.
Background
2. Mr Tooley was 52 years of age when he made his most recent claim for disability support pension. He worked in an administrative and clerical capacity within different branches of the Queensland Public Service for over twenty years.
3. Mr Tooley received a temporary disablement pension from the Government Superannuation Office from 14 April 1992. He was medically retired from the public service on 22 October 1993 and received a Permanent and Partial Disablement Benefit from the public service at that time.
4. Mr Tooley was granted a disability support pension on 4 March 1994. That benefit was cancelled by Centrelink on 20 April 2004 due to Mr Tooley’s failure to return an update form.
5. On 20 June 2005 Mr Tooley lodged a new application for disability support pension (T8). A treating doctor’s report from general practitioner, Dr Blair-West (T9) was lodged on 23 June 2005.
6. Dr Blair-West provided a diagnosis of chronic fatigue syndrome. He described the applicant’s symptoms as generalised weakness, some depression, headache and cramps. Dr Blair-West said that the current treatment was panadeine forte for headaches, vitamins and Normison. Dr Blair-West noted that acupuncture had been tried in the past however no future treatment was planned. Dr Blair-West considered the applicant’s condition would persist for more than 24 months and would remain unchanged during that time.
7. On 1 August 2005 the applicant was assessed by a medical adviser from Health Services Australia, Dr Sutherland (T26).
8. Dr Sutherland provided a diagnosis of chronic fatigue syndrome. He reported that the impact of this on the applicant’s ability to function was that the applicant “has daily headaches, [is] always tired, does not sleep well, [and] always takes things slowly”. Dr Sutherland observed the applicant to have no apparent physical or mental impairment of any kind, and that he was independent in all ADLs (activities of daily living). Dr Sutherland noted there was no change in the applicant’s condition in the last six years.
9. On 26 August 2005 Centrelink rejected the applicant’s claim for disability support pension (T30).
10. Mr Tooley was dissatisfied with the decision of Centrelink, and on 29 August 2005 he requested a review of the decision. On 25 October 2005 the original decision maker affirmed the decision. On 29 November 2005 the applicant requested that an authorised review officer review the decision.
11. On 28 December 2005 an authorised review officer affirmed the decision to reject the applicant’s claim for disability support pension (T37).
12. On 20 March 2006 the applicant applied to the Social Security Appeals Tribunal (SSAT) for review of the decision. The decision was affirmed by the SSAT on 29 June 2006.
13. The application for review of the decision by the Administrative Appeals Tribunal (AAT) was lodged on 10 August 2006 pursuant to a direction by the Tribunal made on 13 September 2006 extending the time for making an application for review to 10 August 2006.
Material before the tribunal
14. The following documents were admitted into evidence:
Exhibit 1 T documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
Exhibit 2 Bundle of documents lodged by the Applicant
Exhibit 3 Statement of Christopher Tooley dated 16 May 2007
Exhibit 4 Statutory Declaration of Charmian Beabout dated 16 May 2007
Exhibit 5 Statutory Declaration of Beverley Sirl dated15 May 2007
Exhibit 6 Report of Dr G. E. Blair-West dated 15 May 2007 with pathology reports attached
Exhibit 7 Report of Dr K O’Sullivan dated 3 May 2007
Exhibit 8 Urine test Report by the Department of Biological Sciences, University of Newcastle dated 29 September 1998
Exhibit 9 Report of Dr J. B. Ryan dated 20 September 1994
Exhibit 10 Correspondence from the Government Superannuation Office to the applicant dated 28 September 1993
Exhibit 11 Correspondence from the Queensland Department of Environment and Heritage to the applicant dated 20 October 1993
Exhibit 12 Two letters from Prudential Assurance Co Ltd to applicant dated 12 January 1994 and 19 December 1994
Exhibit 13 Reports received by the Administrative Appeals Tribunal on 21 May 2007 including report by Dr J McFarlane dated 4 November 1992; Report by Dr T Bell dated 18 May 1993; and report of Dr B Klug dated 6 September 1993
Exhibit 14 Report of Dr M Wilson dated 28 May 2007 in response to facsimiles dated 16 May 2007 and 21 May 2007
Exhibit 15 Clinical practice guidelines 2002 for Chronic fatigue syndrome
Exhibit 16 Facsimile from Boe Lawyers to Dr K O’Sullivan dated 1 May 2007
Exhibit 17 Dr K O’Sullivan’s clinical notes
Exhibit 18 Letter from Dr W Sutherland dated 29 May 2007
Exhibit 19 Letter to Dr W Sutherland dated 24 May 2007
Exhibit 20 Letter to Dr Toft dated 27 March 2007
Exhibit 21 Report of Dr C Mitchell dated 30 May 2007
Issue For Determination
15. I have to consider whether Mr Tooley is entitled to disability support pension.
16. Under Schedule 2, section 4(1) of the Social Security (Administration) Act 1999 if the applicant does not qualify for disability support pension on the day on which he made the claim, but qualifies for it within the next 13 weeks, he is taken to qualify for it. He therefore needs to meet the criteria for disability support pension within the period of 13 weeks after the day on which the claim was made, that is from 20 June 2005 to 19 September 2005 (the claim period).
17. To qualify for disability support pension the applicant needs to meet the criteria set out in s 94 of the Social Security Act 1991 (the Act), that is:
·he must have a physical, intellectual or psychiatric impairment; and
·his impairment must have been of 20 points or more under the Impairment Tables; and
·he must have a continuing inability to work.
Before an impairment rating can be assigned under the Impairment Tables that may be relevant, it is necessary to determine whether Mr Tooley’s impairments arise from a condition that has been fully documented, diagnosed, investigated, treated and stabilised, and which is permanent (Schedule 1B of the Act).
Evidence of the Applicant
18. Mr Tooley provided a written statement (exhibit 3) and provided oral evidence to the Tribunal in person at the hearing. The following is the gist of his oral evidence:
19. Mr Tooley’s basic pattern of his standard day has not really changed since he stopped work in 1992. He is a night owl. He usually wakes very tired with some sort of headache. He gets up around 3-4pm and gets a cup of coffee. He then usually finds some tablets for his headache and organises some sort of snack. He rings his mother every second night. He needs to rest every 30 to 60 minutes. He sorts through his mail and has another rest before getting up at about 8pm to prepare his main meal. It is often necessary for him to lie down again at 9 or 10 pm. He tends to cook the meat and vegetables and then he comes back and cooks the rest of the meal after lying down. It takes him two to three hours, maybe even four hours depending on how weary he is, to prepare his main meal.
20. During his waking hours, Mr Tooley has two moderately lengthy rests of about 30 minutes to two hours, and several shorter rests.
21. Mr Tooley tends to use the same cooking utensils and cleans up when he has the energy. Mr Tooley spends most of his time listening to the radio. He pays his own bills by B-Pay on the telephone. He tends to make mistakes more easily in the beginning of the day and so he delays paying the bills until later in his day. He usually goes to bed between 3 and 5 am.
22. Mr Tooley showers sometimes every two or three days, sometimes once a week. He shaves when he has a shower.
23. Mr Tooley washes his laundry when he has the energy. He doesn’t have the energy to do much washing, and just washes a few items at a time in buckets in the upstairs bathroom. Mr Tooley owns a washing machine; however it is usually to exhausting for him to walk down and up the stairs to use it. He hangs his clothing on the upstairs back landing. Mr Tooley goes several weeks between washing loads of clothes.
24. Mr Tooley pays for domestic help rarely, perhaps once a year. He does very little himself, perhaps wiping the benches when he has the energy.
25. A neighbour and various associates do Mr Tooley’s shopping for him. He has not done his own shopping for two years. When Mr Tooley was entitled to home care that service performed his shopping for him.
26. Mr Tooley cuts his own hair. He uses a special comb with a razor attachment. Mr Tooley rarely requires new clothing; if he does he gives one of his friends a list when they are doing his shopping.
27. Mr Tooley struggles down to one of his neighbour’s houses, two houses away, once or twice a week to leave his mail for posting. Mr Tooley has very few social contacts that visit. He keeps in contact with most of his friends by telephone. His social contact has been almost exclusively by telephone since 1998/1999. His mother is an early in the day person and he does not have the energy to visit her at a time convenient to her. Mr Tooley saw his mother once a week until 1998. By 1999 he had reduced his visits to his mother to once a year.
28. Mr Tooley’s cousin took him for a holiday to her home at Coolum beach six years ago. That was his last holiday. Now he is too worn out to repeat such a holiday, although he would like to go.
29. Mr Tooley last drove two years ago. He still owns a car however he failed to renew his driver’s licence when it was due on his birthday last year. He was too weary at that time to go out even with assistance.
30. Mr Tooley leaves his house once or twice a year. He attended an appointment with Dr Wilson after being transported to the surgery by ambulance. Mr Tooley did not take the antidepressant, Lovan, prescribed by Dr Wilson as he wanted a second opinion. Mr Tooley had heard from the ME/CFS society that some chronic fatigue sufferers had had a negative reaction to such substances. Mr Tooley cannot be sure if he raised his concerns with Dr Blair-West or with Dr Wilson.
31. Mr Tooley recalls Dr Blair-West talking to him about walking up and down the street. Mr Tooley was concerned that he would get down the street and have to sit or lie down on the footpath. It is only about midnight that Mr Tooley would have sufficient energy to perform such activity, and Mr Tooley is not comfortable walking in the street at that time of night. Mr Tooley tried to perform the exercise program proposed by Dr Blair-West on a handful of occasions however he found it tended to take more out of him than it should have.
32. Mr Tooley said that he would be unable to attend therapy outside the home. Financially Mr Tooley has been relying on his superannuation and assistance provided by his mother. Mr Tooley was receiving Newstart allowance for a while however that benefit was cancelled when he did not have the energy to attend job interviews.
33. Mr Tooley has no computer skills. He last used a computer at work in 1991/1992.
34. Mr Tooley used a taxi for transport to the Tribunal hearing. He was assisted by a friend. Mr Tooley could not recall if Dr McFarlane was the first doctor to diagnose him with chronic fatigue syndrome. He does not remember what she prescribed for treatment. He thinks he may have been given headache and sleeping tablets. He cannot recall being prescribed antidepressants. Nor can Mr Tooley remember one way or another whether Dr O’Sullivan prescribed him Prothiaden or any other antidepressant.
35. Mr Tooley was concerned about taking antidepressants prescribed by Dr Wilson; however he doubts he was so concerned in early years because it was only after he read adverse information from the ME/CFS society that he developed concerns.
36. Mr Tooley has only become aware of cognitive behaviour therapy in the last four to five years. He recalls Dr O’Sullivan discussing in very broad terms what was going on in his life.
37. Mr Tooley remembers trying acupuncture to treat his symptoms. He cannot recall the details of his treatment because after a while it all has become a blur.
Medical evidence
Dr O’Sullivan
38. Dr O’Sullivan was Mr Tooley’s treating general practitioner from 1992 to 2003. She has prepared a written report dated 3 May 2007 (T7) and her clinical notes are included as Exhibit 17. Dr O’Sullivan has more than 10 years general practice experience. She also has a Bachelor of Arts degree, majoring in psychology, and was a psychiatric registrar for nine months prior to entering general practice. The gist of her oral evidence by telephone at the hearing is as follows:
39. When Mr Tooley first consulted Dr O’Sullivan he was ill, suffering from chronic fatigue syndrome. Mr Tooley continued to suffer from this condition throughout the time he was Dr O’Sullivan’s patient and did not get better. Chronic fatigue syndrome is a diagnosis made after the exclusion of other possible conditions, and Mr Tooley’s blood tests were all normal in 1993 onwards. A test specific to chronic fatigue syndrome was not performed until 21 September 1998. The results of that test, (a urine test for 1-methyl-histidine – Exhibit 8) confirmed that Mr Tooley suffered from chronic fatigue syndrome. Dr O’Sullivan acknowledged that the urine test is not accepted by the wider medical community as diagnostic of chronic fatigue syndrome. Dr O’Sullivan believes Mr Tooley was suffering from chronic fatigue syndrome at the time he first consulted her, and that diagnosis was confirmed by the urine test performed in 1998.
40. In Dr O’Sullivan’s opinion Mr Tooley also suffers from depression, anxiety and personality disorder. Dr O’Sullivan said that Mr Tooley was prescribed the antidepressant Prothiaden from 1993-1998 and she believes he was compliant, as he always asked for repeat prescriptions. Dr O’Sullivan also treated Mr Tooley with lifestyle counselling, and cognitive behaviour therapy, in which she discussed his views of the world and challenged those views with other alternative views of the world. Dr O’Sullivan recalls considering referring Mr Tooley to a psychiatrist. She cannot now recall why she did not. Dr O’Sullivan cannot recall if she recommended Mr Tooley try any activity programs. Dr O’Sullivan does recall trying many things (treatments).
41. Mr Tooley showed no change in his state in response to treatment. He repeatedly presented with easy fatigability, lethargy, headache, temperatures, myalgia, and severe arm and leg pain, which are aspects of his chronic fatigue syndrome.
42. Dr O’Sullivan saw Mr Tooley approximately every two weeks. Mr Tooley initially visited Dr O’Sullivan at her surgery however after 2000 he became too ill to attend and Dr O’Sullivan visited him every couple of months at home. Dr O’Sullivan may not have always made an entry on Mr Tooley’s record every time she performed a home visit. Mr Tooley’s condition never improved; in fact Dr O’Sullivan considers that his condition deteriorated.
Dr Blair-West
43. Dr Blair-West is a general practitioner. He has been a general practitioner since approximately 1962. Dr Blair-West provided treating doctor’s reports dated 22 June 2005, and 12 February 2007, the latter with pathology results attached, and a report dated 15 May 2007 with pathology reports attached (Exhibit 6). He spoke to the Tribunal by telephone and the following is a summary of the evidence that he provided.
44. Mr Tooley has been Dr Blair-West’s patient since 5 September 2003. Dr Blair-West recalls Mr Tooley phoning stating that he was too ill to visit a doctor’s surgery. Dr Blair-West agreed to treat Mr Tooley by home visits. At the time Mr Tooley could not find anyone else (other medical practitioner) to look after him. Dr Blair-West has always visited Mr Tooley in his home.
45. Dr Blair-West had some difficulty accurately recalling how often he has seen Mr Tooley. He initially said that he thought he had seen Mr Tooley approximately every six to eight weeks. It was pointed out to Dr Blair-West that his clinical notes did not reflect such frequency. Dr Blair-West was uncertain when he did refer to his clinical notes, whether his entries reflected an actual home visit, or alternatively were indicative that he had spoken to Mr Tooley by telephone or merely responded to an email request from Mr Tooley for a prescription. After some reflection, Dr Blair-West estimated the frequency of his visits to Mr Tooley and estimated that it was approximately every two to three months. Dr Blair-West said that it was very unlikely that he would have visited Mr Tooley without making any record in his clinical notes.
46. Dr Blair-West said that Mr Tooley has pain in his lower neck radiating to his shoulder and arm, which wakes him at night. When he first saw Mr Tooley, Dr Blair-West recalls him stating that he had chronic fatigue syndrome for 25 years. Dr Blair-West said Mr Tooley at that time had just enough energy to walk around the house. When he first saw Mr Tooley, Dr Blair-West was not very hopeful that he would improve as there had been no success in 23 years. Lately Mr Tooley has complained of pain in his right neck and his right face. That is the only change Dr Blair-West has ever noticed in Mr Tooley’s condition.
47. Dr Blair-West said that chronic fatigue syndrome is a diagnosis of exclusion, which he assumed was correct, as when he first saw Mr Tooley it had been investigated for a number of years.
48. Dr Blair-West referred to pathology results dated 23 September 2003 which he said were all normal, supporting the diagnosis of chronic fatigue syndrome. Dr Blair-West said that in considering the diagnosis, one must consider or rule out psychiatric conditions. Mr Tooley did not alert Dr Blair-West to any serious psychiatric disorder.
49. Dr Blair-West said that Mr Tooley does not get out of bed, and cannot behave in a normal way in relation to energy expenditure. Dr Blair-West said that Mr Tooley has no residual capacity to work, and has not ever had any since he has been his patient.
50. Dr Blair-West said that when he visits Mr Tooley’s house every horizontal surface has paper work on it; it is a chaotic situation, and he has to put papers on the floor in order to find somewhere to sit. Dr Blair-West said that this situation was a side effect of chronic fatigue syndrome.
51. Dr Blair-West recalls Mr Tooley telling him that he receives treatment from a homeopath.
52. Dr Blair-West gave Mr Tooley advice on a walking program on 5 May 2004. He suggested that Mr Tooley increase his walking gradually. Dr Blair-West provided Mr Tooley with a written copy of this program and physically demonstrated to Mr Tooley which houses in the street he was to walk to each day. Mr Tooley seems to have partially accepted of the plan in that he gave it a go, but he just could not do it. Dr Blair-West followed up Mr Tooley to see if he had persisted with the exercise program, however he was of the impression that Mr Tooley could not do it. There were no other attempts made with an activity program as Mr Tooley was not in a position to attend physiotherapy or go on a treadmill, and physiotherapy services do not perform home visits.
53. Dr Blair-West referred Mr Tooley to physician Dr Wilson at the public clinic as he considered it was time for a second opinion, an objective assessment, about Mr Tooley’s continuing condition. Dr Blair-West considered that Dr Wilson had all the facilities of a psychologist and cognitive therapy and would have referred Mr Tooley had that been appropriate. For this reason, and also because of Mr Tooley’s inability to regularly leave his house, Dr Blair-West did not make separate referrals to those services. Additionally it is only in the last six to eight months that general practitioners have had access to psychologists, and Mr Blair-West is not aware of any telephone psychological services. Also Dr Blair-West recalls Dr Wilson recommending an antidepressant; however it made no improvement in Mr Tooley’s condition.
Dr Wilson
54. Dr Wilson is a specialist visiting physician at the Royal Brisbane and Women’s Hospital. He has provided a report dated 28 May 2007 (Exhibit 14). In his report Dr Wilson said that Mr Tooley told him that he had chronic fatigue syndrome for 25 years and Dr Wilson did not disagree. Dr Wilson said that he did not know what chronic fatigue is and for that reason he is always reluctant to diagnose it. Dr Wilson said that he made no diagnosis of any other psychiatric illness, but advised Mr Tooley to take Lovan 5mg daily as it is said to help people with chronic fatigue syndrome. Dr Wilson said that he doubts that Mr Tooley is capable of working, and opined that he is totally incapacitated for any kind of work, as he has little energy, except for the minimal amount required for self-care, and he needs to rest in bed a lot of the time and he sleeps in the mornings.
55. Dr Wilson provided evidence by telephone. The following is a summary of the evidence Dr Wilson provided at the hearing.
56. Dr Wilson said that he hesitated to make a diagnosis of chronic fatigue syndrome as it is not a disease but more of an illness, and there is imprecision in making such a diagnosis. Dr Wilson said that there was no alternative diagnosis that he has read in the reports of Dr Bell and Dr Klug, and he concurs with Dr Bell, that the diagnosis of chronic fatigue seems reasonable. Dr Wilson said that he was only provided with those reports this year and did not have knowledge of those reports when Mr Tooley consulted him.
57. Dr Wilson said that he prescribed Lovan because he thought that it might increase Mr Tooley’s energy levels and elevate his mood and increase his motivation. Dr Wilson said that he was cautiously optimistic, given the length of illness, and he would have been moderately surprised if the Lovan had worked. Dr Wilson thought it had a possible ability to help, not a probability. At the time Dr Wilson saw Mr Tooley, Lovan was a fairly new therapy for chronic fatigue syndrome, and had probably come into use about one year prior. Subsequent studies have shown that antidepressants are of little use, and Dr Wilson would no longer recommend such treatment.
58. Dr Wilson said that a program of exercise would have been appropriate treatment for Mr Tooley; however he did not push this, as Dr Blair-West had indicated in his referral that such treatment had already been attempted. Dr Wilson said that he did not discuss an exercise program with Mr Tooley, that such a program was potentially beneficial, that it was an avenue that should be available to him; however Mr Tooley was unlikely to benefit.
59. Dr Wilson said that cognitive behaviour therapy is a recommended treatment for chronic fatigue syndrome; it is successful in some, depending on who is administering the treatment. Dr Wilson said it was less likely that Mr Tooley would benefit as he has been ill for 25 years. Dr Wilson said that it would be valuable to try cognitive therapy. It would require treatment once a week, and is not available through the public hospital system. It is however, in Dr Wilson’s opinion, unlikely to help Mr Tooley.
Dr Bell
60. Dr Bell is a psychiatrist. He saw Mr Tooley at the request of the Government Superannuation Office and prepared a report dated 18 May 1993 (Exhibit 13). In that report Dr Bell said the diagnostic possibilities for Mr Tooley’s condition were chronic fatigue syndrome, a form of atypical depression or malingering. Dr Bell opined that Mr Tooley has a dysthymic disorder or atypical depressive disorder. Dr Bell expressed the view that he did not believe Mr Tooley was malingering. Dr Bell said that whatever the nature and cause of Mr Tooley’s condition, the extent of it is quite disabling and is likely to remain so for the foreseeable future. Dr Bell stated that he would be very reluctant to consider Mr Tooley to have a total and permanent disability, and that he felt sure that at some stage in the future he would be capable of resuming some kind of employment.
61. At the hearing Dr Bell provided evidence by telephone and the following is a summary of the gist of what he said. Dr Bell said that he only had his report and no longer had clinical notes relating to his consultation with Mr Tooley. Dr Bell said that chronic fatigue syndrome was a very controversial diagnosis at the time he examined Mr Tooley that it was not an illness, but rather symptoms that can occur in many conditions, both psychiatric and physical.
62. Dr Bell explained that the DSM-IV now includes a diagnosis of Undifferentiated Somatifiorm disorder, and that is what Mr Tooley would have probably been said to have had, had he been diagnosed today. The diagnosis of that condition requires one or more physical systems such as fatigue and vague symptoms with an inference to having psychiatric causation. Dr Bell said that the diagnosis does not matter, it is the same condition and the same set of symptoms, irrespective of the diagnosis, and there is very little that can be done for anyone with all three of the conditions he suggested.
63. Dr Bell said that at the time of consultation, he thought that Mr Tooley would have recovered in the next ten years; he expected a spontaneous recovery. Dr Bell said that the longer a patient has chronic fatigue syndrome the worse the prognosis.
64. Dr Bell said that there are three usual types of treatment for chronic fatigue syndrome. Firstly there is a course of psychotropic medication, for example antidepressants, some of which have a high success rate, especially when depression is coexisting with chronic fatigue syndrome. The second treatment modality is psychotherapy, usually provided by a psychiatrist. This treatment does not have a high success rate, it usually requires 10-12 years of continuous therapy, ideally once a week, but pragmatically once every two weeks. Dr Bell said that psychotherapy has a possibility only of helping. Such treatment would be covered by Medicare, however he is unaware of a psychiatrist who performs home visits. Cognitive behaviour therapy is the third treatment option, which might be more effective than psychotherapy but not a great deal so. Like psychotherapy, it is usually very long term, ten years or more, and requires ideally weekly, but for practical purposes, fortnightly therapy. Dr Bell is aware that Medicare now provides a subsidy for the fees of psychologists (the usual practitioners of cognitive therapy), but this assistance is usually limited to twelve sessions a year. Dr Bell said that it is a possibility that cognitive behaviour therapy would assist, but not a strong probability. Dr Bell is not aware of cognitive behaviour therapy being available by telephone. To be effective, the therapist has to be sitting in close proximity to the patient.
65. Dr Bell said that there was a small possibility only that one of the three therapies would have lead to some amelioration of Mr Tooley’s condition. Dr Bell said that whilst physical activity is beneficial to all persons, by itself it is not going to assist Mr Tooley.
Dr Klug
66. Dr Klug, psychiatrist, prepared a report for the Government Superannuation Office, dated 6 September 1993 (exhibit 13). In that report Dr Klug said that he examined Mr Tooley for two hours. Dr Klug opined that Mr Tooley’s history suggests that he suffers from chronic fatigue syndrome, and said that in spite of the lack of objective evidence to support Mr Tooley’s incapacity; his perceived incapacity is such as to prevent him from carrying out the duties of his position as an Administrative Officer. Dr Klug opined that there are sufficient psychiatric reasons for consideration to be given to Mr Tooley being retired on the grounds of ill health.
Dr Sutherland
67. Dr Sutherland is a medical practitioner with a graduate diploma in public health. Dr Sutherland saw Mr Tooley in his role as a medical adviser for Health Services Australia. He has provided a medical assessment report dated 1 August 2005 (T26) and a report dated 29 May 2007 (Exhibit 18).
68. Dr Sutherland provided a report dated 1 August 2005 over which a privacy order was issued by the AAT on 18 October 2006. The need for that order no longer exists as material of a similar nature has been provided by many other medical practitioners. In that report Dr Sutherland opined that Mr Tooley’s chronic fatigue syndrome was a temporary condition. Dr Sutherland considered that Mr Tooley could work for 0-7 hours a week, and would be capable of working 15-29 hours a week within 6-24 months.
69. Dr Sutherland provided evidence at the hearing by telephone and the following is a summary of the evidence that he provided. Dr Sutherland said that he has seen the reports of Dr Bell and Dr Klug. Although he is not a psychiatrist, he has treated patients under the guidance of psychiatrists.
70. He recalls Mr Tooley as presenting with no external signs that he could not do things. Everything appeared to be functioning other than that he complained of symptoms of fatigue, flu, and poor sleep. Dr Sutherland said that he had 45 minutes to see Mr Tooley and write his report. At the time he prepared his report he did not have any medical information except the report of Dr Blair-West.
71. Dr Sutherland said the diagnosis of chronic fatigue syndrome was reached by exclusion rather than by proof. The urine test to his mind is inconclusive, and Mr Tooley’s urine results rather demonstrate things that reflect a sedentary lifestyle. Dr Sutherland said that he would want further investigation before he would commit someone to a diagnosis of chronic fatigue syndrome.
72. Dr Sutherland said that people with chronic fatigue syndrome need one on one attention in order for an exercise program to be effective. In relation to the cognitive behaviour therapy provided by Dr O’Sullivan, Dr Sutherland said what was provided was limited and he thought it was necessary to make sure Mr Tooley did not have some other underlying condition. Dr Sutherland said that he does not think that Mr Tooley has had a fair deal so far. He pointed out that Mr Tooley’s biochemical profile demonstrated changes in his calcium phosphate levels and this is largely caused by inactivity, and he would benefit from dietary advice.
73. Dr Sutherland said that when he examined Mr Tooley he was in surprisingly good spirits, given that he had been forced to catch a taxi to the consultation. Mr Tooley demonstrated no evidence of physical or mental incapacity and was easygoing. If Mr Tooley’s condition was permanent Dr Sutherland would give him ten points from the impairment tables, however Dr Sutherland does not think Mr Tooley has been investigated sufficiently, and at the time he examined him, he wanted Centrelink to investigate him further.
74. Dr Sutherland does not believe Mr Tooley would be able to re-enter the work force without assistance as he has not done much for such a long time, he would need help with psychological adjustment and also to get physically fit. Dr Sutherland believes Mr Tooley would need an assessment of his ability to build up his hours of work, access to rehabilitation, counselling and review by a psychiatrist. As he has not had a career for some years, in Dr Sutherland’s opinion Mr Tooley would not be able to get a job without rehabilitation. Dr Sutherland said that he was aware that Mr Tooley was unable to perform his own shopping and received assistance with homecare, he got the impression that he did his own cooking, most of his own cleaning, and could care for himself in his own home.
75. Dr Sutherland said that Mr Tooley would not be able to get counselling unless financially assisted as the fees would be prohibitive.
76. Dr Sutherland said that Mr Tooley’s circumstances, as he was informed at the hearing, are much worse than he presented on the day of examination. Dr Sutherland said that he did not have a history of Mr Tooley having limited ability to wash and shave. Dr Sutherland said that the likelihood that Mr Tooley is amenable to treatment is a lot less than he initially thought.
Dr Mitchell
77. Dr Mitchell is a medical adviser for Health Services Australia. He has never seen Mr Tooley and has prepared a report dated 30 May 2007 at the request of the respondent, on the basis of a file review relating to Mr Tooley’s medical history and application for DSP (Exhibit 21).
78. In that report Dr Mitchell said that in his opinion, Mr Tooley does meet the diagnostic criteria for chronic fatigue syndrome. Dr Mitchell noted that whilst Dr Klug observed Mr Tooley to demonstrate no overt concern while describing his longstanding chronic, allegedly incapacitating illness, and that his general demeanour was more suggestive of a carefree, happy person than someone suffering from a serious health problem, nonetheless he still came to the conclusion that there were “sufficient psychiatric grounds” for Mr Tooley to be retired on the grounds of ill health.
79. Dr Mitchell observed that it is perhaps not surprising that 12 years later there was again disparity between Dr Sutherland’s assessment, based on his observation, and Mr Tooley’s self-report of the severity of his symptoms.
80. Dr Mitchell suggested that Mr Tooley could have been given cognitive behavioural therapy by telephone, however he stated that he was unaware whether any psychologists offered such therapy by telephone.
81. At the hearing Dr Mitchell provided evidence by conference telephone and the following is a summary of that evidence.
82. Dr Mitchell is an electrical engineer and graduated from medicine in 1997. Dr Mitchell has not worked as a general practitioner; his experience has been preparing assessments for Centrelink, occupational medicine and Defence Force Recruiting. Dr Mitchell has seen patients clinically as part of Workcover practice in recent years.
83. Dr Mitchell said the diagnosis of chronic fatigue syndrome is one of exclusion. The symptoms that Mr Tooley described are consistent with the diagnosis. Dr Mitchell believes there is some doubt as to whether Mr Tooley suffers from chronic fatigue syndrome or a psychiatric disorder. Dr Mitchell said that it was mentioned in several places that Mr Tooley was suffering from a mixed anxiety depressive disorder. Dr Mitchell said that a trial of lithium could be used to treat depression.
84. Dr Mitchell said that patients with chronic fatigue syndrome can be treated with antidepressants, and structured psychological treatment, in which they learn mental techniques to change their negative thought pattern. This involves interacting with a therapist and talking and being given pen and paper exercises.
85. Dr Mitchell said that physical activity in the form of graduated exercise therapy is something that has to be sited to the individual patient. For example someone that is housebound may be required to walk to the kitchen one more time than they would ordinarily as the starting point in therapy. A gradual increase in the amount of exercise that they performed would follow and would improve conditioning. Dr Mitchell said that Mr Tooley may well experience fatigue before he experienced improvements with such therapy, and it would be preferable if someone could supervise such treatment.
86. Dr Mitchell said that there are a group of general practitioners who use urine tests to diagnose chronic fatigue syndrome but such testing was not generally accepted as diagnostic. Dr Mitchell said he thinks Mr Tooley should have been referred to a rheumatologist or general physician.
87. Dr Mitchell said that people with true chronic fatigue experience very significant fatigue after very limited exertion. Dr Mitchell said it was very difficult to make a diagnosis of chronic fatigue on a single observation. Dr Mitchell said that depression can be co-morbid with chronic fatigue syndrome, and though he thought that Mr Tooley’s symptoms met the diagnostic criteria, any other similar conditions need to be excluded.
88. Dr Mitchell suggested that antinuclear antibody (ANA) and other similar tests should have been performed to see if Mr Tooley had any other condition that would explain his symptoms. Dr Mitchell noted that there has never been a structured plan for the treatment of Mr Tooley, he has never been assessed by a team and the clinical practice guidelines recommend specialist referral. Dr Mitchell also considers that a referral to a psychiatrist may have been useful.
89. Dr Mitchell agreed that Mr Tooley’s prognosis is poor, and that he presents at the severe end of the negative spectrum. Dr Mitchell said that cognitive therapy offered a possibility of successful treatment rather than a probability. Dr Mitchell is unaware if such service is available by telephone. Dr Mitchell said that he is not qualified to comment on the effectiveness of such a service delivered by telephone; however he imagines that it would not be ideal. Dr Mitchell agrees that such therapy may extend for ten years.
90. Dr Mitchell considers occupational therapy, in the form of exercise therapy, a part of cognitive therapy. He is unaware of the availability of an occupational therapist that would provide home visits to deliver such therapy.
91. Dr Mitchell said that he has examined Dr O’Sullivan’s notes and was unable to find anything that refers to her having provided cognitive behaviour therapy. He said it is probably difficult to say just how much improvement from such therapy would occur. Frequent consultations would be required according to Dr Mitchell.
92. Dr Mitchell said that no pharmacological treatment has been shown to be effective in the treatment of chronic fatigue therapy. Such treatment might improve sleep patterns and have the secondary benefit of reducing fatigue symptoms. Dr Mitchell could not say that such therapy would have a likely benefit, antidepressants could in fact aggravate the symptoms of chronic fatigue syndrome. Whether or not such therapy was beneficial is highly patient dependant.
Other witnesses
Ms Sirl
93. Ms Sirl provided a statutory declaration dated 15 May 2007 (Exhibit 5). She appeared at the hearing in person and the following is a summary of her evidence.
94. Ms Sirl met Mr Tooley in 1989 at a train station. Sometime later Mr Tooley commenced working at the same place as Ms Sirl. Ms Sirl saw Mr Tooley both at work and socially. When Ms Sirl first met Mr Tooley he was healthy. Ms Sirl met most of Mr Tooley’s friends, mostly at Mr Tooley’s home. Mr Tooley would regularly cook for his friends, and it was on those occasions Ms Sirl became acquainted with them.
95. Ms Sirl and Mr Tooley would watch videos, go to the theatre, eat out, and go shopping together. These activities and the dinner parties gradually ceased, Ms Sirl cannot recall exactly when, but it was in the 1990’s. Ms Sirl attempted to organise outings however Mr Tooley said he was too unwell to participate. Around 1994 Ms Sirl recalls that Mr Tooley ceased his regular visits to his parent’s home.
96. When Ms Sirl moved to Clayfield she continued to see Mr Tooley. Mr Tooley owned a car and would visit her home at Clayfield. He did not visit after 1995, due to his illness.
97. In 1995 Ms Sirl rented a room at Mr Tooley’s house for a period of approximately six months. During this time Ms Sirl observed Mr Tooley’s sleep pattern to be very erratic. He would be up in the early hours of the morning and asleep during day hours. Because of the noise during the early hours Ms Sirl found it difficult to sleep, and for this reason she eventually moved out.
98. Ms Sirl still visits Mr Tooley occasionally. These visits are restricted to times which are mutually suitable. Ms Sirl is at work when Mr Tooley is asleep, and he is usually awake when Ms Sirl is asleep. Ms Sirl usually visits late afternoon, and stays for a couple of cups of coffee, after which time Mr Tooley is usually tied, and so she leaves. Ms Sirl has moved to the Glass House Mountains, and now visits Mr Tooley infrequently. Ms Sirl still has contact with Mr Tooley by telephone at least once a fortnight, for anywhere between ten minutes and a couple of hours, depending on how well Mr Tooley is feeling.
99. Ms Sirl said that to her knowledge Mr Tooley has not left his house for years. In her opinion, you could not drag him out. Ms Sirl described Mr Tooley’s house as embarrassingly dirty, and untidy, and noted that the roof is leaking. When Ms Sirl first met Mr Tooley, his house was tidy and neat.
100. Ms Sirl has limited knowledge about the medical treatment Mr Tooley is receiving for his chronic fatigue syndrome. She has never offered to drive him to his medical appointments; however, she has offered to take him to church. Mr Tooley did not accept that offer.
Mrs Beabout
101. Mrs Beabout is a neighbour of Mr Tooley. She has provided a statutory declaration dated 16 May 2007 (Exhibit 4). Mrs Beabout attended the hearing in person and the following is a summary of the evidence that she provided.
102. Mrs Beabout lives on the same street as Mr Tooley; there is one house between hers and his. When Mrs Beabout and her husband moved into their house Mr Tooley came and introduced himself and provided helpful information about the neighbourhood. Mr Tooley invited her husband and herself to a BBQ for his birthday in approximately 1993. There were about ten people there and everyone brought a contribution of food. That was the first time Mrs Beabout met Mr Tooley’s friends. When she first met Mr Tooley he was interested in what was going on. Mrs Beabout would see Mr Tooley out in his yard, tinkering with his car, burning the rubbish. She has noted a change, maybe over the last five years. Mrs Beabout said that she does not see Mr Tooley in his yard anymore.
103. Mrs Beabout previously would take Mr Tooley shopping. It has been more than five years since she has taken him shopping. When Mr Tooley became too unwell to do his own shopping, Mrs Beabout did it for some time, then he got home care, and now he has found someone else to do it.
104. She occasionally sees someone visit Mr Tooley’s home, but not very often, and this has been the case for quite a few years. Mrs Beabout believes Mr Tooley’s social life is mostly on the telephone. Mrs Beabout said that Mr Tooley attended one of her Christmas parties about ten years ago. That is the only time he has socialised at her home.
105. Mrs Beabout sees Mr Tooley about once a week or once a fortnight. When she first moved to her home Mrs Beabout saw Mr Tooley about three times a week. Now most of her communication with him is by notes he leaves under her door. Sometimes Mr Tooley calls out to Mrs Beabout when she comes home from work, and he meets her in the street. Mrs Beabout occasionally does some top up shopping for Mr Tooley. On those occasions Mr Tooley takes all week to prepare and give her his list.
106. About two years ago Mrs Beabout drove Mr Tooley to his mother’s home for Christmas day. Mrs Beabout said that she waited a lot of the day until Mr Tooley could figure out when he could cope with the outing. Mrs Beabout believes Mr Tooley’s mother is in hospital and he has not been able to visit her.
107. Mrs Beabout said that Mr Tooley’s home is very messy. It is necessary when she visits to walk between things; there are empty containers everywhere, the benches are covered, there is nowhere to sit, there are papers and other stuff on the chairs, and a layer of dust on everything. Mrs Beabout said that Mr Tooley’s house has been like that for years.
108. Mrs Beabout said that Mr Tooley is preoccupied with his own health, that is what he mostly talks about. Mrs Beabout is aware that Mr Tooley has a homeopath visit his home, and she is aware that the homeopath did his shopping for a little while. Mrs Beabout said that Mr Tooley gets his scripts from Dr Blair-West, and on one occasion he showed her a script for antidepressants, which he was very concerned about, because he thought that these drugs might make his condition worse.
Findings of Tribunal
Did Mr Tooley suffer from a physical, psychiatric or intellectual impairment during the claim period?
109. All of the medical evidence before me supports Mr Tooley’s claim that he has consistently and continuously complained of tiredness, loss of energy, weakness, headaches and pain, recurrent respiratory tract infections and colds, and abnormal sleep patterns since on or before 1993.
110. That Mr Tooley was suffering from physical inabilities to the extent that he states during the claim period is support by long time acquaintances Ms Sirl and Mrs Beabout, both of whom I found to be reliable and credible witnesses.
111. The only doctor who saw Mr Tooley during the claim period was Dr Blair-West. From his oral evidence it appeared that Dr Blair-West is not entirely sure of exactly how often he has attended Mr Tooley in person, however it was clear that Dr Blair-West was very familiar with Mr Tooley and his medical impairments, having attended him at his home many times since 2003, as well as responding to telephone and mail requests from Mr Tooley.
112. Whilst there is no objective way to confirm whether in fact Mr Tooley suffers these symptoms, I accept him to be a truthful and reliable witness. I note that Mr Tooley’s credibility was not questioned by any of the examining doctors, and even the respondent’s barrister, Mr Clark, observed him to be credible and a reliable historian.
113. I find that due to the symptoms referred to above, Mr Tooley is mostly housebound, capable of minimal self-care only, and that this was the case throughout the entire claim period. For these reasons I find that Mr Tooley suffered from a physiological and psychological impairment at the time he made his application for DSP, and it follows that he satisfies subparagraph 94(1)(a) of the Act.
Did Mr Tooley have a fully documented, diagnosed, condition which has been investigated, treated and stabilised within the claim period?
114. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next two years.
115. In order to assess whether a condition is fully diagnosed, treated and stabilised I must consider:
·what treatment or rehabilitation has occurred;
·whether treatment is still continuing or is planned in the near future;
·whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years.
In this context, reasonable treatment is taken to be:
· treatment that is feasible and accessible ie, available locally at a reasonable cost;
· where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
116. A condition is considered permanent if after being diagnosed, treated and stabilised it is more likely than not that it will persist for the foreseeable future.
117. It was said that during the claim period the applicant did not have a condition which could be assessed under the Impairment Tables, because Mr Tooley’s condition was not a fully diagnosed, treated, stabilised and permanent condition. Mr Tooley may have either chronic fatigue syndrome, or a type of depression, or a combination of both. According to the respondent he requires further investigation, perhaps by psychiatrists. Further, the respondent argues that all available treatment modalities have not been appropriately tried by Mr Tooley, and this is because, at least in part, Mr Tooley has an attitude unconducive to treatment, and he lacks motivation.
118. Ms Kidson (Counsel for the applicant) referred me to the case of Bugno and Secretary, Department of Employment and Workplace Relations [2005] AATA 788 as authority for her position that I am to focus on the actual impairment experienced rather than its underlying medical cause. The Respondent said that case was distinguishable from this present case, however did not elaborate as to why.
Was the condition fully diagnosed?
119. In the case of Bugno at [38] the AAT considered that subparagraph 94(1)(b) “does not require the diagnosis of a specific disease, but does require [the] diagnosis and documentation of the nature of impairment”.
120. In the case of Maroun and Secretary to the Department of Family and Community Services [2003] AATA 347 it was not considered a bar to a claim for disability support pension that different diagnostic labels had been given at various times to a condition that existed in the same form for many years.
121. In the case before me it is clear that all medical practitioners who have examined Mr Tooley have reported the same set of symptoms, described broadly as chronic fatigue.
122. With the exception of Dr O’Sullivan, all doctors concerned have indicated that chronic fatigue syndrome is a diagnosis of exclusion only, and that no pathological testing was available to confirm the diagnosis. Dr O’Sullivan believes the diagnosis is supported by urine testing however she indicated that such tests when performed in 1998 only went to confirming the diagnosis, which up to that time, she had made on the basis of exclusion. Like Dr O’Sullivan, Dr Blair-West performed a number of pathological investigations in an attempt to ascertain the cause of Mr Tooley’s symptoms.
123. Dr O’Sullivan, Dr James and Dr Blair-West all provided a diagnosis of chronic fatigue syndrome. Dr Klug opined that Mr Tooley suffers from an illness behaviour, likely psychological in nature. All four doctors have indicated that the diagnosis predated the claim period. As I have accepted Mr Tooley’s evidence that his symptoms have not significantly altered, only worsened since the time he saw Dr Klug and Dr O’Sullivan, I find that their diagnosis would be applicable to Mr Tooley’s medical condition that he suffered from during the claim period.
124. Dr Sutherland and Dr Mitchell both indicated that alternative diagnoses had not been fully investigated.
125. With respect, I find the opinion of both doctor’s of little assistance. Dr Mitchell has never seen Mr Tooley in person, and came to his conclusion by revising the written evidence provided to him. Dr Sutherland saw Mr Tooley and prepared a report in a total of 45 minutes, and at the time did not have access to all available information. Neither Dr Sutherland nor Dr Mitchell is a medical specialist, and Dr Mitchell has had extremely limited experience in clinical practice. Their opinions are frankly of little value when compared to the evidence of Dr O’Sullivan and Dr Blair-West who have been familiar with the patient for a number of years.
126. I was impressed by Dr O’Sullivan, who has treated the applicant for approximately ten years, however importantly I note that she had no contact with him during the claim period. Whilst providing evidence, Dr O’Sullivan was clearly irritated at times, however her sincere belief that Mr Tooley had genuine and serious medical problems, from which he was severely handicapped, was abundantly clear. It is of little relevance that Dr O’Sullivan believes that a somewhat controversial urine test confirms the diagnosis of chronic fatigue, because such pathology testing was not relied upon by her when she diagnosed Mr Tooley.
127. Dr Sutherland offered little suggestion as to exactly what else Mr Tooley should undergo in order for his condition to be fully diagnosed.
128. Dr Mitchell was slightly more constructive. He agreed that Mr Tooley’s symptoms meet the diagnostic criteria for chronic fatigue syndrome however said that other similar things (I take it he means other medical conditions with similar symptoms) need exclusion. Dr Mitchell suggested Mr Tooley should be assessed by either or both a physician or a psychiatrist, a suggestion I did not find persuasive, given Mr Tooley has been assessed by physician Dr P Atkins in 1992, physician, Dr Wilson, in 2006, and two psychiatrists in or around 1993. Whilst those psychiatric opinions were given some time ago, there is no suggestion that Mr Tooley’s symptoms have significantly changed, other than to get worse, and importantly neither psychiatrist Dr Bell nor physician Dr Wilson, suggested further psychiatric assessment as necessary to confirm the diagnosis.
129. My confidence in Dr Mitchell’s opinion was further eroded when he expressed limited knowledge of the clinical practical guidelines for chronic fatigue syndrome (Exhibit 15), a document that all other medical practitioners who had been asked about, expressed knowledge of. Dr Mitchell indicated that Mr Tooley should have had an antinuclear antibody (ANA) pathology test performed prior to the diagnosis of chronic fatigue syndrome being made. Dr Mitchell said he was unaware that such testing was recommended as not routine by the guidelines. He said it may have been an appropriate investigation given Mr Tooley’s symptoms of pain. I note Dr Wilson who examined Mr Tooley in 2006 did not consider it necessary to perform such pathology or similar testing, and I therefore do not accept that this is a test that should have been performed prior to the diagnosis of chronic fatigue syndrome being made in this case.
130. In contrast to Dr Mitchell, psychiatrist Dr Bell has examined the patient. He told the Tribunal that he did not consider that Mr Tooley presented to him significantly differently to the way he presented to Dr Klug. The significance of this is that Dr Klug noted in his report that Mr Tooley demonstrated no observable signs of illness, an observation Dr Sutherland also made. However unlike Dr Klug and Dr Bell, Dr Sutherland appeared from his evidence to place reliance on this observation when he concluded that Mr Tooley was capable of working.
131. This observation did not prevent Dr Klug concluding that Mr Tooley suffered from chronic fatigue syndrome. Whilst Dr Bell initially provided a diagnosis of atypical depressive disorder, and not chronic fatigue syndrome, I note the evidence of himself and Dr Klug is that a diagnosis of the latter was considered controversial at the time of their written reports.
132. I accept Dr Bell’s expert evidence that it is not important whether Mr Tooley’s condition is diagnosed as chronic fatigue syndrome or some sort of depressive disorder, the symptoms (and treatment) for both conditions are the same. Dr Bell is an expert in his field, and although he has not seen Mr Tooley since 1993, I found his evidence far more persuasive than either Dr Sutherland or Dr Mitchell. Further, his evidence was consistent with both Dr O’Sullivan and Dr Blair-West, both of whom have been very familiar with Mr Tooley as a patient in the years following Dr Bell’s consultation with Mr Tooley.
133. For these reasons I find that Mr Tooley has chronic fatigue syndrome, or a condition with identical symptoms to the condition known as chronic fatigue syndrome, and that his impairment was fully diagnosed well before the claim period, and did not in any significant way change during the claim period.
Was Mr Tooley’s condition fully treated?
134. There were three treatment modalities suggested during the hearing, including drug therapy such as antidepressants, cognitive behaviour therapy and a graduated program of physical activity. Whether the third therapy is a separate entity as the second has been speculated to by some, but for the purpose of my decision, is irrelevant.
135. I also accept Dr O’Sullivan’s evidence that Mr Tooley was prescribed and tried antidepressant pharmacological therapy. Whilst Dr O’Sullivan cannot vouch for the fact that Mr Tooley actually complied with such therapy, it is her opinion as his treating medical practitioner that he in fact did. She recalls Mr Tooley asking for repeat prescriptions of the same antidepressant, and Mr Tooley did not say he did not comply. He stated that he simply just does not remember. That is not surprising given Mr Tooley’s state of disfunctioning. Further Mr Tooley has explained that whilst he was concerned about taking the antidepressant Lovan, he may not have been concerned about taking antidepressants prescribed by Dr O’Sullivan because at that point in time he was not as well informed about the adverse potential of such medication. I accept this to be the case and find that Mr Tooley has taken antidepressants for a significant period of time without success.
136. Lack of energy and motivation is clearly part of Mr Tooley’s condition. Mr Tooley has tried homeopathic therapy for a number of years, and has consistently attended and requested assistance for his condition from Dr McFarlane, Dr O’Sullivan and Dr Blair-West. He has also complied with Dr Blair-West’s suggestion he attend Dr Wilson, in spite of the clear difficulties this imposed upon Mr Tooley.
137. I also accept Dr O‘Sullivan’s evidence as fact that she provided cognitive behaviour therapy to Mr Tooley for a number of years. Whilst the description of such therapy does not conform to the ideal described by expert witness Dr Bell, I find that to be irrelevant as Dr Bell stated that such therapy requires approximately ten years of weekly therapy in person. Clearly such therapy is not a practical option to Mr Tooley, never has been, and could not possibly be regarded as reasonable therapy for his condition.
138. I find that exercise therapy, whether a separate or combined therapy to cognitive behaviour therapy, was attempted by Dr Blair-West and did not prove successful for Mr Tooley. The suggestion of individual supervised exercise therapy for Mr Tooley is ludicrous given his financial and other resources. It is certainly not a practical option open to the majority of the public, and to deny Mr Tooley disability support pension because he has not engaged in an individually supervised activity program would make a mockery of the legislative provisions.
139. It is Dr Bell’s evidence that all three treatment modalities discussed would have had a possibility, but not a probability of providing benefit to Mr Tooley. Dr Bell and Dr Blair-West considered the prolonged existence of Mr Tooley’s illness as indicative of a poor prognosis, irrespective of whatever treatment was offered. Both Dr Bell and Dr Klug, experts in their field, considered Mr Tooley’s condition was one that, were it to resolve, would do so spontaneously.
140. The only other treatment suggestion has been by Dr Sutherland who stated that Mr Tooley would benefit from some dietary advice (which in my opinion is stating the obvious and it does not require a medical degree to make that conclusion). There is no suggestion that that therapy is reasonable treatment for chronic fatigue syndrome and likely to have a benefit.
141. I find that Mr Tooley’s medical condition has been fully treated, and that for the purposes of the Act, it is a condition that can be given an Impairment rating.
Impairment rating from the Tables
142. Table Twenty of the Impairment Tables reads as follows:
TABLE 20. MISCELLANEOUS - MALIGNANCY, HYPERTENSION, HIV INFECTION, MORBID OBESITY (ie BMI >40), HEART/LIVER/KIDNEY TRANSPLANTS, MISCELLANEOUS EAR/NOSE/THROAT CONDITIONS & CHRONIC FATIGUE OR PAIN
Table 20 can be used for miscellaneous conditions, for example, malignancy, HIV infection, morbid obesity, transplants, miscellaneous ear/nose/throat conditions, disorders with chronic fatigue (including Chronic Fatigue Syndrome) or pain and hypertension. Where there is a separate loss of function, in addition to the loss which can be rated using the system-specific Tables, Table 20 can be used. Double-counting of a particular loss of function, by the use of more than one Table, must be avoided.
Rating Criteria
NIL Controlled hypertension
Malignancy in remission with a good to fair prognosis
Minor symptoms which are easily tolerated and have no appreciable effect on ability to work.
TEN Mild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity. Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work-related tasks.
There is minimal effect/impact on work attendance.
Hypertension that is difficult to control despite intensive therapy but without end- organ damage
Potentially life-threatening condition which is currently not interfering with daily activities eg. malignancy in remission with a poor prognosis
Heart/Liver/Kidney transplants - well controlled (well functioning) with only mild systemic symptoms.
FIFTEEN Moderate to severe symptoms which are more distressing but prevent few everyday activities. Self-care is unaffected and independence is retained. Symptoms may have mild to moderate impact on ability to perform or persist with work-related tasks and/or attend work. Full-time work would still be possible.
Potentially life-threatening condition which is currently interfering with daily activities but self-care is unaffected.
TWENTY More severe symptoms with a decreased ability/efficiency to carry out many everyday activities. Most daily activities can be completed with some difficulty. Symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. Symptoms cause significant interference with ability to perform or persist with work-related tasks. Symptoms may cause prolonged absences from work.
THIRTY Very severe symptoms which lead to substantial difficulty with most daily tasks. Assistance with elements of self-care may be required. Symptoms cause severe interference with ability to work or attend work (ie. minimal residual work capacity).
Heart/Liver/Kidney transplants - poorly controlled (poorly functioning) with fairly severe symptoms which lead to substantial difficulty with most daily tasks
Malignant hypertension - severe, uncontrolled
Inoperable, symptomatic and life-threatening aneurysm or malignancy. Very poor prognosis with only a very limited lifespan.
FORTY Major restrictions in many everyday activities. Capacity for self-care is restricted, leading to dependence on others. No residual work capacity.
143. Whilst Dr Sutherland took the view, if permanent, Mr Tooley’s condition should be rated at 10 impairment points, he was clearly not informed as to the severity of Mr Tooley’s impairment.
144. Dr Sutherland noted that Mr Tooley presented with no observable signs of impairment. Given that this is consistent with the observation of Dr Klug and Dr Bell, both of whom considered Dr Tooley had impairment of such a degree that he was incapable of working, I do not accept the respondent’s invitation to assess Mr Tooley’s degree of impairment on the basis of my observation of him at the hearing.
145. It is clear that on many occasions Mr Tooley’s brief presentation for a few minutes or hours has not reflected his long incapacity. The effort and energy required by Mr Tooley to present to medical appointments and matters such as the hearing are substantial, and he does not have the capacity to leave his house or perform more than basic self-care regularly, or for sustained periods of time. At the hearing Dr Sutherland said that he had not previously been given a complete history and concluded that Mr Tooley’s circumstances are much worse than the information previously before him.
146. The evidence before me is that Mr Tooley’s impairment corresponds with a rating of 20 points. That is my finding.
Does Mr Tooley have a continuing inability to work or retrain?
147. At the time of the application, s 94(2) provides that for a person to be considered to have a continuing inability to work:
·The impairment is of itself sufficient to prevent the person from doing any work within the next 2 years, and
·either,
othe impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years, or
oif the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training – such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.
148. Work is defined by section 94(5) of the Act as work of at least 30 hours per week, at award wages or above, that exists in Australia, even if not locally accessible by the person.
149. Mr Tooley has constant tiredness, an inability to leave his home regularly for any extended period of time, an inability to perform more than the basic amount of self care, and an inability to maintain regular sleep patterns which indicate that for all practical purposes, Mr Tooley has an inability to perform any kind of work, now and during the claim period. The evidence of Dr Blair-West, who was familiar with Mr Tooley during the claim period, was that Mr Tooley was incapable of work. That too was the evidence of physician Dr Wilson, who saw Mr Tooley shortly after the claim period. I find Dr Wilson’s evidence significant given the long standing nature of Mr Tooley’s condition and because I have previously concluded that Mr Tooley’s condition has not significantly changed between the claim period and the hearing.
150. Whilst Dr Sutherland considered that Mr Tooley had a capacity to work, I have previously stated my reasons for discounting his evidence. Those reasons also apply to his opinion in relation to Mr Tooley’s capacity to work. Whilst Dr Sutherland did not observe any objective signs of Mr Tooley’s incapacity, I consider this not significant as the same observation was made by Dr Klug. Dr Bell said that his clinical findings were not significantly different to those of Dr Klug. Both psychiatrists concluded that Mr Tooley had an inability to work. Whilst both psychiatrists on or about 1993 considered that Mr Tooley would likely be able to return to some type of work sometime in the future, it is clear that that has not been the case, and was not the likely case in 2005, during the claim period.
151. Several doctors, notably Dr Blair-West and Dr Bell have stated that the lengthy period of Mr Tooley’s illness is associated with a poor prognosis, and inconsistent with a spontaneous recovery. Any lack of motivation on Mr Tooley’s part that may be attributable to his inability to either work or retrain is clearly part of the symptomotology of his condition. That is the effect of the report of specialists Dr Klug, Dr Bell, and also other medical practitioners.
152. I find that Mr Tooley was incapable of working in any capacity at all and also incapable of being retrained during the claim period.
Findings of the Tribunal
153. The Tribunal:
(a) removes the privacy order issued on 18 October 2006; and
(b) sets aside the decision of the Social Security Appeals Tribunal, and substitutes a decision that the applicant is qualified for disability support pension pursuant to s 94 of the Social Security Act 1991 from 20 June 2005.
I certify that the 153 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member
Signed: .............[sgd]..................................................................
F Kamst, Legal Research OfficerDate/s of Hearing 9 July 2007 and 10 July 2007
Date of Decision 14 August 2007
Counsel for the Applicant Ms N Kidson
Solicitor for the Applicant Ms N Lusk, Boe Lawyers
Counsel for the Respondent Mr C Clark
Solicitor for the Respondent Ms S Dole, Sparke Helmore Lawyers
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