Borthistle and Secretary, Department of Familieis, Housing, Community Services and Indigenous Affairs [2011] AATA 63 (4 February 2011)

Last Updated: 7 February 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 63

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/5593

GENERAL ADMINISTRATIVE DIVISION		)
	Re		LYNNETTE BORTHISTLE

Applicant

And

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal

Mr P Wulf, Member

Date 4 February 2011

Place Brisbane

Decision

The Tribunal affirms the decision under review.

.............................................
Member

CATCHWORDS

SOCIAL SECURITY – Benefits and allowances – Pension – Claim for disability support pension – No permanent medical impairment – Ability to work following treatment – Decision affirmed

Social Security Act 1991 (Cth) s 94, Schedule 1B

Administrative Appeals Tribunal Act 1974 (Cth) s 37

REASONS FOR DECISION

4 February 2011

Mr P Wulf, Member

1. The applicant, Ms Lynnette Borthistle, made a claim for Disability Support Pension (“DSP”) on 12 May 2009 with Centrelink[1]. In support of her claim the applicant submitted a number of medical reports[2], including one from a naturopathic herbalist showing she had a permanent medical condition and a continuing inability to work.[3] These will be discussed in detail later in this decision.
2. On 3 June 2009, Centrelink advised the applicant that it had made a decision not to pay her DSP and that her claim was rejected.[4] On 24 July 2009, the decision not to pay the applicant DSP was reviewed based on additional supporting medical material.[5] On 24 July 2009, the original decision maker (“ODM”) affirmed the original decision considering the new material.[6] An Authorised Review Officer (“ARO”) reviewed and affirmed the decision to not pay the applicant DSP on 25 August 2009.[7]
3. The applicant sought review by the Social Security Appeals Tribunal (“SSAT”) on 11 September 2009. The SSAT found that the applicant did not qualify for DSP.[8] On 25 November 2009, the applicant applied to this Tribunal for a review of the decision.[9]
4. This Tribunal affirms the original decision for the reasons contained below.

ISSUES

5. The relevant issues for the Tribunal to consider in this matter are:
   • (a) Does the applicant suffer from a physical, intellectual or psychiatric impairment as at the date of her DSP application (12 May 2009) or within 13 weeks after that time (11 August 2009) which attracted 20 or more points under Schedule 1B – Tables for the assessment of work-related impairment for DSP (‘the Impairment Tables’) – of the Social Security Act 1991 (Cth) (‘the Act’), that was a fully documented and diagnosed condition which had been investigated, treated and stabilised[10] and which is “permanent” (lasting for more than two years)[11]; and
   • (b) If so, does the applicant have a continuing inability to work?

LEGISLATIVE SCHEME

6. Section 94 of the Act provides as follows:

94 Qualification for disability support pension
94(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person’s impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
(ii) the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
(d) the person has turned 16; and
(e) the person either:
(i) is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii) is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A) is not an Australian resident; and
(B) is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident.
94(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a) the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years;
and
(b) either:
(i) the 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
(ii) if 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.
94(3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a) the availability to the person of educational or vocational training or on-the-job training; or
(b) if subsection (4) does not apply to the person-the availability to the person of work in the person's locally accessible labour market.
94(5) "work" means work:
(a) that is for at least 15 hours per week at award wages or above; and
(b) that exists in Australia even if not within the person's locally accessible labour market.

THE EVIDENCE

7. The evidence before the Tribunal was comprised of:

(1) The “T-Documents” (Exhibit 1 (T1–T26/1–156) lodged by the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (“Respondent”) in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);

(2) A document tendered by the applicant written by a Dr Lawrence Wilson MD titled “Adrenal Burnout Syndrome” and dated December 2009 (no source or publication details) (Exhibit 2);

(3) A document tendered by the applicant written by a un-named source entitled “Adrenal and Nervous Exhaustion – “Burn Out” Herbal Support Program” dated 2007 (no source or publication details) (Exhibit 3);

(4) The applicant’s Statement of Facts and Contentions (undated) (Exhibit 4);

(5) A Centrelink Medical Certificate prepared by Dr Hugh Dearnley dated 24 September 2010 (Exhibit 5);

(6) The applicant’s Medical Records provided by the North Coast Area Health Service, NSW Health for the period 20 November 2006 to 27 November 2006 (Exhibit 6);

(7) A Centrelink Medical Report for Disability Support Pension prepared by Dr Hugh Dearnley dated 30 October 2010 (Exhibit 7);

(8) A Medical Report prepared by Dr Adrian Jackson, a Consultant Physician dated 3 September 2010 (Exhibit 8);

(9) The respondent’s Statement of Facts and Contentions dated 15 November 2010 (Exhibit 9);

(10) A document tendered by the applicant written by Wendy Carpenter, Naturopathic Herbalist dated 11 December 2009 (Exhibit 10);

(11) A document tendered by the applicant written by a Councillor Adam J Marshall, Mayor of the Shire of Gunnedah dated 10 November 2008 (Exhibit 11); and

(12) An e-mail tendered by the applicant, written by an unknown source, from the Menopause Institute with a subject heading “Information on Adrenal Fatigue from Dr Aaron” dated 18 November 2010 (Exhibit 12).

ANALYSIS

8. The applicant was born in 1949. Her evidence was that she has training in religious theology and was also a beauty therapist. She has been married and divorced on a number of occasions.
9. The applicant had previously lived in the Tweed Heads area of New South Wales. From the evidence, it would appear that subsequent to her most recent divorce she moved to the town of Curlewis (near Gunnedah) in New South Wales. There was no evidence as to why this occurred or why she chose to live in this location. The applicant stated that she was a “prisoner in her own home” and that certain events had occurred while she was living in Curlewis. However, there was no real evidence from the applicant as to what these events were, except to say that she believes that these events had a significant deleterious effect on her wellbeing and caused the conditions that resulted in her filing a claim for DSP.
10. In recent months, the applicant has lived in a caravan and has also relied on friends for accommodation. One of those friends attended the hearing with the applicant.
11. To be eligible for DSP under the Act, the claimant must have a physical, intellectual or psychiatric impairment at as the date of her DSP application (12 May 2009), or within 13 weeks after that time (11 August 2009). The impairment must then attract 20 or more points under the Impairment Tables that has been fully documented, the condition is permanent, and had been investigated, treated and stabilised. There must also be a continuing inability to work.
12. As part of the application process for DSP, the applicant was assessed by Ms Rebecca Faulkner, a Registered Occupational Therapist who prepared a Job Capacity Assessment Report for the respondent.[12] Ms Faulkner, who gave evidence by telephone, has been a Registered Occupational Therapist since completing a Bachelor of Applied Science in Occupational Therapy in 2003. Ms Faulkner saw the applicant on two occasions. Therefore, the Tribunal finds that she would have a reasonably good knowledge of the applicant’s medical conditions and of the applicant personally.
13. The report indicates that the applicant was suffering from depression and anxiety. The report also states that the applicant was suffering from endocrine system dysfunction, although the naturopathic herbalist indicated it was actually adrenal exhaustion.[13] The condition of adrenal exhaustion was only supported by material presented by the naturopathic herbalist and no other medical evidence supported the condition. Ms Faulkner considered that none of the conditions were fully diagnosed, treated and stabilised, based on the information from doctors (Dr Hugh Dearnley and others). Ms Faulkner also considered that, based on the information from doctors, the conditions would significantly improve within 3 – 24 months and therefore they were not permanent.
14. Ms Faulkner, along with the doctors, considered the most appropriate course of action to alleviate the applicant of her conditions and to allow her to have a continuing ability to work was for the applicant to take pharmaceutical medication, see a psychologist for cognitive behavioural therapy (“CBT”) and seek the services of a counsellor. Ms Faulkner’s evidence was that the last two aspects were critical to the applicant being able to resume a lifestyle that would significantly improve her health and allow her return to work within 3 – 24 months.
15. Ms Faulkner considered that, based on the conditions at the time and with no medical treatment, the applicant had an ability to work 8 – 14 hours per week. This may have qualified the applicant for DSP if she had a continuing inability to work, however, with the intervention discussed above it was considered the applicant could work as many as 15 – 22 hours per week.
16. As part of the Job Capacity Assessment Report, it was determined that the applicant was to undertake CBT. An initial action plan was developed to assist the applicant with her medical conditions.[14] The applicant was to commence CBT on 3 September 2009.[15] It would appear that the applicant attended only three sessions with Heather Vernon, a senior psychologist with the APS Psychologists.[16] While the applicant may think this was sufficient, the Tribunal believes that continued intervention from a senior psychologist would have significantly improved her conditions.
17. The applicant also stated in her DSP application that she possibly intended to take medication in the future.[17] This was supported by her doctor, Dr Hugh Dearnley, who indicated that with medication the applicant would improve significantly within 3 – 24 months.[18] This was also part of the initial plan to assist the applicant to recover and was discussed in the Job Capacity Assessment Report. It was further supported by Dr Paul Wood when he first consulted with the applicant in June 2009.[19] Dr Wood also considered that the applicant was only unfit for work for a period of three months and should significantly improve within 3 – 24 months, although it is noted that Dr Wood had ticked ‘uncertain’ on his Centrelink Medical Report. It is important to note that this was the first time Dr Wood had seen the applicant.
18. However, on her own admission, the applicant advised the Tribunal that she had not taken any recognised pharmaceutical medication for her supposed medical conditions. This does not follow the applicant’s statements in her DSP application, but more importantly, the advice of her treating physicians particularly in that the doctor Dr Dearnley, the doctor the applicant had seen the most, thought that this would be essential to see a significant improvement in her conditions within 3 – 24 months. Unfortunately, the applicant did not call Dr Dearnley as an expert to assist her in this appeal.
19. The report of Dr Adrian Jackson is also quite specific in its interpretation of the applicant’s impairments.[20] Dr Jackson makes it clear that that there is no evidence of any medical condition that would prevent the applicant from working and, with treatment, the applicant would be able to work in the future.
20. Based on all the evidence, Dr Jackson appears to suggest that the applicant did not have a permanent condition and, with intervention, she would have the ability to work like most people.
21. The applicant relied heavily on evidence that related to naturopathic remedies. While the Tribunal as constituted agrees with natural remedies and their use for assistance with medical conditions, herbal medicines and naturopathy cannot be considered appropriate in forming the view as to a person’s condition and diagnosis for the purposes of the Impairments Tables. Government policy indicates treatment must be performed by qualified medical practitioners.
22. The Tribunal does have some concerns regarding the evidence tendered to it by the applicant. The Tribunal finds that much of the evidence tendered by the applicant could have little weight placed upon it. For example, the website related to Exhibit 3 (herbal remedies) refers to dogs, horses and cats as well as humans, and therefore the Tribunal finds that this could be considered as frivolous evidence.
23. The applicant appeared to suggest that the respondent and its employees and agents, including Ms Faulkner (who saw the applicant when she undertook the Job Capacity Assessment), were conspiring against her or had a vendetta against her. The applicant raised issues that people at Centrelink may know other people where she previously lived in Curlewis and this swayed Ms Faulkner’s capacity to be honest in her assessment. This assertion by the applicant was of major concern to the Tribunal. It was not supported by any evidence and is therefore considered fanciful.
    
24. The applicant further indicated that she was a “prisoner in her own home” but could not adduce any evidence which supported that statement. For example, the applicant tendered a letter from Councillor Marshall that referred to an event that “should have involved the Police”; however there was no evidence as to what this incident was. The applicant did not adduce any evidence as to the matter being pressed with the Police. Therefore, little weight can be placed on this evidence.
25. The applicant also appeared to suggest that her stressors were based on a divorce that happened a number of years ago, and that she should receive DSP because her ex-husband was supposedly living a ‘good life’ as a result of receiving a pension and monies retained from the divorce. This is irrelevant to the Tribunal’s decision as to her condition and the legislative requirements of a claim for DSP.
26. The applicant further indicated that people in the Tweed Shire community were against her as a result of her previous work as a Reverend. Again, there was no evidence that this was the case. This is also irrelevant to the Tribunal as there appears to be no substance to the matter.

DETERMINATION

27. The Tribunal finds that the applicant does not have a permanent impairment. All the evidence indicates that, with proper treatment, the applicant has the ability to work up to 22 hours per week. Accordingly, her conditions clearly do not fall within the definition of “permanent” under the Impairment Tables. Further, as the conditions are not permanent, and the applicant has failed to follow the required treatment, the applicant does not have a continuing inability to work.
28. The Tribunal affirms the original decision. The applicant is not entitled to receive DSP payments.
    

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Mr P Wulf, Member

Signed: .....................................................................................

Research Assistant

Date/s of Hearing 2 December 2010

Date of Decision 4 February 2011

Applicant was self-represented

Solicitor for the Respondent Ms Helen Wallis-Dunn

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[1] Exhibit 1, T10/49 –71 (claim is dated 11 May 2009).
[2] Exhibit 1, T5/32 –39; T6/40 and T7/41.
[3] Exhibit 1, T8/42.
[4] Exhibit 1, T15/88 – 89.
[5] Exhibit 1, T16/90–97, T18/100 –105, T19/106 –111.
[6] Exhibit 1, T17/98 –99, T20/112, T25/146.
[7] Exhibit 1, T23/115 –124.
[8] Exhibit 1, T2/3 –12.
[9] Exhibit 1, T1/1 –2.
[10] Social Security Act 1991 (Cth) Schedule 1B (Introduction, Paragraph 4).
[11] Social Security Act 1991 (Cth) Schedule 1B (Introduction, Paragraph 5).
[12] Exhibit 1, T14/82 – 87.
[13] Exhibit 1, T14/82 – 87.
[14] Exhibit 1, T18/100 –105.
[15] Exhibit 1, T23/115 –124.
[16] Exhibit 1, T24/126
[17] Exhibit 1, T5/32 – 39.
[18] Exhibit 1, T5/34
[19] Exhibit 1, T16/90 – 97.
[20] Exhibit 8.