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Gasteen and Department of Family and Community Services [2001] AATA 147  (27 February 2001)

Last Updated: 20 March 2001

DECISION AND REASONS FOR DECISION [2001] AATA 147

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2000/383

GENERAL ADMINISTRATIVE DIVISION )

Re FRANCESCA GASTEEN

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Dr E K Christie, Member

Date 27 February 2001

Place Brisbane

Decision The Tribunal sets aside the decision under review and in substitution therefor decides that Miss Gasteen was qualified for Disability Support Pension from 6 August 1999.

...............(Signed).......................

DR E K CHRISTIE

MEMBER

CATCHWORDS

SOCIAL SECURITY - Disability Support Pension - chronic fatigue syndrome -whether condition fully treated and stabilised - assessment of impairment -whether a continuing inability to work

Social Security Act 1991: ss.94

Working Group, Royal Australasian College of Physicians (1997)

"Draft Clinical Practice Guidelines on the evaluation of prolonged fatigue and the diagnosis and management of chronic fatigue syndrome" Version 1, December 1997 (Copyright 1997 Medical Journal of Australia)

REASONS FOR DECISION

27 February 2001 Dr E K Christie

1. This is an application by Francesca Gasteen for a review of the decision of the Social Security Appeals Tribunal ("the SSAT") made on 27 March 2000 to reject Ms. Gasteen's claim for Disability Support Pension ("DSP"). The SSAT affirmed the decision of a Centrelink Authorised Review Officer made on 15 December 1999.

2. In reaching its decision, the SSAT concluded:

"15. The Tribunal has found that Miss Gasteen suffers groups of symptoms including nausea, diarrhoea, vomiting, intermittent respiratory/viral infections, intermittent asthma attack and depressive illness. The Tribunal has found that the cause of these symptoms has not been conclusively documented and diagnosed.

16. The evidence does not support these conditions as being fully documented and diagnosed or investigated, treated and stabilised. The conditions of chronic fatigue syndrome and depressive illness cannot thus be considered to be permanent and cannot be assigned an impairment rating under the Impairment Tables in Schedule 1B of the Act. ....." (T2 Folio 12)

3. At the hearing, Miss Gasteen was represented by Miss C. Heyworth-Smith of Counsel. The respondent was represented by Mr. Neil Foster, a Departmental Advocate. Evidence on behalf of the applicant was given by Miss Gasteen, her mother, Gail Gasteen and Dr. Chris Cantor, psychiatrist.

4. At the hearing, the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, the "T" documents (Exhibit 1) and the following exhibits:

* Exhibit 2 - Medical Report Dr. C. Cantor, psychiatrist, 9 May 2000

* Exhibit 3 - Medical Report Dr. J.B. Ryan, General Practitioner, 24 July 2000.

* Exhibit 4 - Medical Report Dr. C. Cantor, psychiatrist, 3 November 2000

* Exhibit 5 - Medical Report Dr. S. Yang, Health Services Australia, 22 September 2000

5. At the end of the hearing the Tribunal reserved its decision in order to pursue its inquisitorial powers in relation to the question of whether Miss Gasteen's condition of chronic fatigue syndrome ("CFS") was a "fully documented and diagnosed condition which had been investigated, treated and stabilised". Accordingly, a 1997 article produced by a Working Group Convened by the Royal Australasian College of Physicians titled "Draft Clinical Practice Guidelines on the Evaluation of Prolonged Fatigue and the Diagnosis and Management of Chronic Fatigue Syndrome [the "RACP Draft Guidelines"] was provided to each party at the hearing. Both parties were given a deadline for the receipt of their submissions of 19 January 2001. Submissions were received from both the applicant and respondent on 12 January 2001.

FACTS´

6. The general facts were not in dispute and may be stated briefly. Miss Gasteen lodged a claim for DSP on 6 August 1999. Miss Gasteen experiences symptoms including nausea, diarrhoea, vomiting, intermittent respiratory/viral infections and intermittent asthma attack. It was not in dispute that Miss Gasteen suffers from CFS. It was also common ground that Miss Gasteen also experiences symptoms of depressive illness.

7. The Authorised Review Officer accepted the assessment made by Health Services Australia that Miss Gasteen had CFS causing episodes of tiredness and fatigue that often prevent attendance at university or work. (T2 Folio 5).

ISSUES BEFORE THE TRIBUNAL

8. The issues for the Tribunal to decide were:

* Whether Miss Gasteen's condition of CFS had been fully treated and stabilised;

* Whether Miss Gasteen's CFS condition was a permanent medical condition and whether the impairment attracted a rating of 20 points or more on the Impairment Tables; and

* If this were the case, whether or not Miss Gasteen would be able to work for at least two years, or alternatively, whether she would be able to be retrained for work within two years.

EVIDENCE OF FRANCESCA GASTEEN

9. Miss Gasteen is aged 20 and has had CFS for around 7˝ years. The effects of this medical condition on her physical health were:

* Being bed ridden for about six months;

* Backache;

* Joint and muscle pain (particularly if she overexerts);

* Chest pain;

* Lethargy and or overwhelming feeling of tiredness;

* Excessive sleeping pattern (an average of 12 - 16 hours sleep per day); and

* Rhinitis and sinusitis.

10. Miss Gasteen stated that she was diagnosed with depression in mid-1995 together with an anxiety disorder. She believes that for the past few years she no longer suffers depression; in addition, that her anxiety disorder had ended in 1996. These conditions had been treated with anti-depressants and counselling.

11. Miss Gasteen had been absent from school, due to illness, for 50% of Years 8 and 9 and for all year 10. She managed to complete Years 11 and 12 with a reduced subject load and achieved an Overall Position (OP) score of 6. With this score, she applied for and was accepted into Queensland University of Technology to study drama. However, she suffered a chest infection in April/May 1998 and was forced to discontinue her studies as her chronic fatigue syndrome symptoms recurred.

12. Miss Gasteen returned to English Literature/Drama studies at University of Queensland, undertaking two subjects, on a part time basis in Semester 1 of 1999. However, this study was discontinued in May 1999. Her treating doctor recommended that she not pursue any work or university study for 12 months while undertaking antibiotic treatment.

13. Miss Gasteen said that in 2000 she had participated in community theatre for around six to nine hours per week.

14. In terms of employment, Miss Gasteen stated that she had worked for five hours per week, in 1998, for the Cerebral Palsy Association. Currently, she is unemployed and unable to hold down a job because of her need for around 16 hours sleep per day. Without this sleep requirement, she succumbs to viruses and becomes run down.

EVIDENCE OF GAIL GASTEEN

15. Mrs. Gail Gasteen is Francesca Gasteen's mother. She said that her daughter had become ill in 1993. The symptoms seemed to be viral associated with respiratory problems and muscle and back pain. The initial treatment was based on treating the viral problem with the use of Panadol for pain relief.

16. CFS was first diagnosed at the end of 1993 by Dr. Ryan. His diagnosis was based on a process of eliminating other possible contributing medical conditions and included assessment with blood tests and lung x-rays.

17. Mrs. Gasteen said that a full spectrum of conventional medical treatments had been used over time to boost her daughter's immune system, varying from Vitamin C injections to courses of antibiotics. In addition, "fringe treatments" such as acupuncture had also been used.

18. Mrs. Gasteen believed her daughter's depression symptoms only persisted over an 18 to 24 month period following the initial diagnosis in 1995.

EVIDENCE OF DR. CHRIS CANTOR

19. Dr. Cantor has had a special interest in CFS for about 10 years. He had first seen Miss Gasteen as a patient on 11 April 2000. In diagnosing Miss Gasteen's condition as CFS he had relied on the diagnostic criteria published by the Centre for Disease Control (USA) ["CDC"].

20. In terms of excluding depression as a possible cause of chronic fatigue, Dr. Cantor referred to the following objective criteria he had used to distinguish between CFS and depression"

* CFS patients "tend to express relative optimism for the future" and that they are "not too distorted by secondary depression";

* Patients with depression, in contrast, are very pessimistic and are concerned that they are not going to get better; they tend to be very despondent about their protracted illness;

* Consequently, CFS and depression patients could be distinguished on their degree of optimism or pessimism of their condition;

* CFS patients could also be characterised from depression patients by their "quality of concentration", CFS patients having "more difficulty remembering names" compared with depressed people; and

* In addition, CFS patients experience a very peculiar type of malaise - one of "feeling ill shortly after exercise", something "that we don't see in depression".

21. Dr. Cantor stated that the severity of depression that Miss Gasteen had experienced in recent times had been "very, very mild, quite consistent with a good remission and I wouldn't hesitate to tell her that she should be going back to work immediately. But, of course, she's not in such a state; she is significantly unfit for work but it has not, in my opinion, got much to do with the depression."

22. Applying these criteria to Miss Gasteen's circumstances, Dr. Cantor 's view was that depression could be excluded as a cause of Miss Gasteen's CFS. Furthermore, Dr. Cantor's assessment of Miss Gasteen's "depressive elements of her presentation are such that if depression were her principal condition, I would say that she would be totally fit for full-time work right now." However, this was not the case as she was "significantly unfit for work".

23. Dr. Cantor described Vibramycin antibiotic therapy that had been used to treat Miss Gasteen's CFS for six months as an "experimental treatment and one which I am not convinced about either way". Dr. Cantor said that his preferred treatment for CFS was supportive contact and educational treatment about the nature of CFS with the aim to assist the patient "accept the necessary changes in their lifestyle and to help reaffirm them as a person".

24. Having reviewed Miss Gasteen's circumstances, it was Dr. Cantor's view that this was not a case of "endless repetition with other anti-depressants". It was his view that cognitive behaviour therapy was the most important psychological therapy as the means for enabling some meaningful connection with life to be re-established. In this regard, Dr. Cantor stated that Miss Gasteen had largely cured herself because of the interest in acting she had actively pursued. This interest had helped her to re-establish her identity in life as well as being a powerful motivator for her to get well. It was Dr. Cantor's view that Miss Gasteen's interest in acting was one that he saw as a strong psychological motivator for getting her out of what some might describe as "abnormal illness behaviour". Accordingly, it was Dr. Cantor's view that Miss Gasteen's depressive or other psychiatric illness had been fully treated and stabilised.

25. With regard to whether Miss Gasteen's psychiatric impairment had been optimally treated and stabilised, it was Dr. Cantor's view that the "psychological incentive of pursuing her love of acting and all the potential rewards that could come from it....[to be] a far more powerful psychological treatment than psychotherapy that a psychiatrist may offer to a patient."

26. Dr. Cantor did not believe that there were any psychiatric treatments that Miss Gasteen could now have that would be likely to enable her to undertake full-time work within the next two years.

27. During cross-examination by Mr. Foster, Dr. Cantor stated:

* That in Miss Gasteen's case, where there had been a history of depression and that a trial of psychiatric therapy was a part of establishing a condition of CFS in order to exclude psychiatric factors;

* That it was "important to understand that many of the symptoms of CFS overlap to a remarkable degree with depressive illness and some other psychological conditions";

* That he had treated Miss Gasteen's depression and had pursued other avenues for treatment such as cognitive behaviour therapy;

* That it was often the case that the treatment of depression only lead to "pretty modest" improvements in CFS;

* That he believed his treatment of Miss Gasteen had helped clarify the diagnosis of CFS. It was Dr. Cantor's view that in Miss Gasteen's case there was "really very little evidence of any significant residual depression but there's a lot of evidence of residual disability"; and

* Moreover, that it was his view that Miss Gasteen had substantial ongoing CFS causing her residual disability; he did not see that untreated depression "at all likely as the cause of her ongoing disability".

28. In response to a Tribunal question, Dr. Cantor acknowledged that the CDC diagnostic criteria for CFS were "pretty old now". However, he was only "vaguely familiar" with the more recent clinical guidelines titled "Chronic Fatigue Syndrome" prepared by the Royal Australasian College of Physicians and published by the Australian Medical Association.

CONTENTIONS AND SUBMISSIONS OF THE PARTIES

29. Miss Heyworth-Smith submitted that, with respect to the Impairment Tables requirement for assigning a rating to a condition that the condition must be a fully treated, documented, diagnosed condition which had been investigated, treated and stabilised, referred only to those treatments which were not experimental in nature. In addition it referred to treatments that were known to actually lead to improvement or, in any event, not cause detriment in a majority of cases.

30. Miss Heyworth-Smith further submitted that although "Treatment" is not defined in the Act or the Schedule thereto, "Treat" has been defined as "to deal with (a disease, patient, etc.) in order to relieve or cure" [the Macquarie Dictionary, Macquarie Library, 1982 at page 1840]. Accordingly, a course of drugs which were experimental could not be considered "treatment" in accordance with the common meaning of that term eg. Vibramycin antibiotic thereby undertaken by Miss Gasteen. Its primary purpose was to determine whether or not it could in fact relieve or cure a disease, rather than actually doing so. Miss Heyworth-Smith contended that the use of Vibramycin antibiotic therapy should not have been taken in to account in assessing whether or not Miss Gasteen's condition was permanent at the time she applied for DSP.

31. Miss Heyworth-Smith also contended that the conclusions upon which the SSAT had based its decision specifically:

(a) That CFS itself was a condition that could not be considered to be a "fully documented, diagnosed condition"; and

(b) In the absence of a specialist report concerning the depression suffered by Miss Gasteen, her condition could not be considered fully documented and diagnosed;

were against the weight of the evidence before the SSAT.

32. Miss Heyworth-Smith then referred to Dr. Yang's report where the opinion he expressed was that it was not clear that psychiatric causes had been excluded as a possible cause of Miss Gasteen's CFS symptoms.

33. She then referred to Dr. Yang's extrapolations, in response to Dr. Cantor's reports that until Miss Gasteen received further psychiatric management, including cognitive behavioural therapy, her psychiatric impairment may not be considered optimally treated and fully stabilised. Dr. Yang further concluded that Miss Gasteen's condition could only be labelled as CFS if the symptoms persisted after optimal treatment of her depression. Miss Heyworth-Smith stated that when Dr. Cantor had these views of Dr. Yang put to him, Dr. Cantor's oral evidence was "I quite definitely disagree with that....".

34. Miss Heyworth-Smith submitted that at the time Miss Gasteen had first consulted Dr. Cantor in early 2000, he had done as much as he could in terms of her treatment for the depression and to encourage her acting interest as a form of self-motivated cognitive behaviour therapy.

35. Moreover, Miss Heyworth-Smith contended that Miss Gasteen had received no new treatment between the time of her DSP application (August 1999) and when Dr. Cantor saw her in early 2000 as her condition had remained stable in this time. Accordingly, it was her contention that Miss Gasteen's condition was a fully documented, diagnosed condition which had been investigated, treated and stabilised, as at the date of her application for DSP.

36. In terms of the diagnosis of Miss Gasteen's condition, Miss Heyworth-Smith concluded with the submission that Miss Gasteen's depression was diagnosed in 1995 and had been treated since then. The treatment of the depression had not altered significantly the symptoms of the CFS and according to Dr. Cantor, would not do so in the future. Accordingly, there were no other differential diagnoses to be documented and investigated in this case.

37. In terms of an Impairment Rating for Miss Gasteen's CFS condition under Table 20: Miscellaneous - Malignance, Hypertension.... & Chronic Fatigue or Pain, Miss Heyworth-Smith contended that Miss Gasteen met the requirements for at least 20 points to be assigned because:

".... of her symptoms including fatigue, vomiting, nausea, reflux, lack of concentration, short term memory loss, difficulty speaking (being 'stumped' halfway through sentences), diarrhoea and intermittent respiratory and viral infections. She was affected on a daily basis and described her day as involving waking in the late morning, reading in bed, going to rehearsals in the afternoon (8 to 10 hours per week), lying down after rehearsals, helping with cooking, watching television in the evening and going to bed at about 10.30."

38. Finally, Miss Heyworth-Smith contended that the weight of medical evidence (Dr. Ryan T9 - 17 August 1999; Dr. Cantor Exhibit 2 - 9 May 2000; and Dr. Ryan Exhibit 3 - 24 July 2000) all supported the conclusion that Miss Gasteen would be unable to work for at least two years or to be retrained for work within two years.

39. Mr. Foster referred to the Draft Clinical Practice Guidelines on CFS prepared by the Royal Australian College of Physicians ('RACP Guidelines'). For a clinical diagnosis of CFS, the Guidelines required "exclusion of alternative medical and psychiatric disorders" and "appropriate psychological evaluation of the patient". Mr. Foster then referred to the report of Dr. Yang (Exhibit 5) were Dr. Yang expressed the view that psychiatric causes are "of relevance for determining permanent impairment as a coexistent treatable psychiatric condition that may benefit and respond to appropriate therapy could preclude a permanent impairment rating (page 2)".

40. Mr. Foster contended that for Miss Gasteen's CFS condition to be a rateable condition at the time of the claim, it must be shown:

(a) That the clinical diagnosis of CFS was established; and

(b) That the severity and long-term effects of her CFS could be assessed.

It was Mr. Foster's contention that neither of these requirements had been met.

41. Mr. Foster submitted that the requirement for a clinical diagnosis of CFS to be consistent with the RACP Guidelines, had not been met. This could be adduced from Dr. Yang's opinion. Dr. Yang's view was that psychiatric factors had not been excluded at the time the claim for DSP was lodged (Exhibit 2, page 2).

42. Mr. Foster referred to the following conflicting medical opinions in contending that a firm diagnosis of CFS could not be made:

* Dr. Ryan (T9, 17 August 1999) - Miss Gasteen was suffering CFS;

* Dr. Whitby (T22, 2 August 1993) - no unifying diagnosis made and referred to "three or four discrete illnesses which occurred sequentially giving the appearance of a continuing illness when in actual fact, they were four different infections"; and

* Dr. Harbison (T6, 16 June 1998) - Miss Gasteen was suffering a "depressive illness" that was temporary and fluctuating.

43. Furthermore, Mr. Foster submitted that it was Dr. Yang's view that Miss Gasteen's condition could not be regarded as a rateable condition until Dr. Cantor's treatment had been completed. Dr. Cantor stated in evidence that his treatment had run its course by May 2000. In addition, Miss Gasteen had not commenced specialist treatment for depression with Dr. Cantor until April 2000 - six months after lodging her claim for DSP. Therefore, at best, Miss Gasteen's condition could not be rateable until nine months after the time of claim. This was outside the three month limit for qualification for disability support pension.

44. Mr. Foster further contended that there remained a possibility that Miss Gasteen's depression might improve. Accordingly, Mr. Foster submitted that at the time the DSP claim was lodged and during the following three months, Miss Gasteen's CFS condition was not "a fully documented, diagnosed condition which had been investigated, treated and stabilised" as required by the Impairment Tables. Therefore, no impairment rating could be assigned under Table 20.

45. With respect to Miss Gasteen's depression, Mr. Foster submitted, that at the time of the DSP claim, there was very little medical evidence about her depression: see Dr. Harbison (T6 pp 48-49); Dr. Ryan (T9). Nor had Miss Gasteen stated in her claim that depression was an illness or disability that she had (see T8, p79). Consequently, it was Mr. Foster's contention that Miss Gasteen's depression could not be assigned an impairment rating because it was not properly documented at the time of claim. In addition, nor had her depression been adequately treated and stabilised.

46. Mr. Foster further submitted that it was not until Miss Gasteen consulted Dr. Cantor in April 2000 that her depression was documented in a manner which would allow rating under the impairment tables. However, this documentation occurred well after the three month time limit for qualification. Whilst Dr. Cantor's treatment was plainly necessary to determine whether any improvement of Miss Gasteen's depression was possible (ie that the condition had stablilised), it could only be made once reasonable attempts at treatment were attempted. This conclusion could only have been made after April 2000.

47. Mr. Foster submitted that even if an impairment rating for depression was possible, "the assessment by Dr. Cantor was that the condition was not severe". Such an assessment would preclude a rating of 20 points under Table 6.

48. With respect to Miss Gasteen's continuing inability to work, Mr. Foster acknowledged that as a result of treatment by Dr. Cantor, the weight of the medical evidence now indicated that Miss Gasteen most likely had a continuing inability to work. However, Mr. Foster contended that satisfaction of section 94(1)(c) would be of no assistance to Miss Gasteen's application given his submissions that she failed to satisfy section 94(1)(b) of the Social Security Act 1991.

CONSIDERATION OF THE ISSUES

49. The objective of the Tribunal is to review administrative decisions, not only on their merits, but in accordance with the law at all times. The relevant legislation is the Social Security Act 1991 ("the Act").

50. Section 94 of the Act has provisions for Qualification for Disability Support Pension - Continuing Inability to Work.

"94(1) [Qualification - continuing inability to work] 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% or more under the Impairment Tables; and

(c) because of the impairment the person has a continuing inability to work; and

(d) the person has turned 16; and

(e) the person either:

(i) is an Australian resident at the time when the person first satisfied paragraph (c); or .....

94(2) [Meaning of 'continuing inability to work'] 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 education 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(5) [Interpretation] in this Section:

....

'work' means work:

(a) that is for at least 30 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."

51. Before resolving the disputed issues of (a) assessment of impairment rating and (b) continuing inability to work, the requirement imposed by Schedule 1B of the Tables for Assessment of Impairment for Disability Support Pension must be evaluated. Specifically, the following requirement in paragraph 4:

"For an impairment rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is to establish a working diagnosis based on the best available evidence."

52. The Tribunal disagrees with the following conclusion made by the SSAT:

".... That the condition of chronic fatigue syndrome was a poorly defined condition that could not be found to be a 'fully documented, diagnosed condition' within the terms of the Impairment Tables in Schedule 1B of the Act. The Tribunal concluded that, in the absence of specialist opinion establishing a diagnosis, Miss Gasteen's condition must be considered 'temporary' within the terms of the Act and thus unable to be assigned an impairment rating for the purposes of establishing qualification for disability support pension. (T2 folios 9, 10) [Tribunal emphasis].

53. The Tribunal concludes that application of the RACP Guidelines provide objective criteria for diagnosing the condition of CFS and so offsets the concerns of the SSAT that CFS "was a poorly defined condition".

54. The RACP Guidelines state:

"A diagnosis of CFS is made on clinical grounds. It relies on the presence of characteristic symptoms (see Box 1), and the exclusion of alternative medical and psychiatric diagnoses. In individual patients, the symptoms of CFS may overlap with other common syndromes such as fibromyalgia and irritable bowel syndrome, and the primary diagnosis will depend on which symptoms are the most dominant and disabling. People with CFS often have concurrent depression, and this need not be considered an alternative primary diagnosis.

As similar symptoms may also occur in a range of other disorders (e.g., thyroid disease, anaemia, major depression), the first priority in clinical assessment is to exclude alternative explanations...."

BOX 1 (RACP GUIDELINES)

1: Diagnostic criteria for chronic

fatigue syndrome (Fukuda,et al. 1994)

1. Fatigue

Clinically evaluated, unexplained, persistent or relapsing

fatigue persistent for six months or more, that:

* is of new or definite onset

* is not the result of ongoing exertion

* is not substantially alleviated by rest

* results in substantial reduction in previous levels of

occupational, educational, social or personal

activities

and

2. Other symptoms

Four or more of the following symptoms that are

concurrent, persistent for six months or more and which

did not predate the fatigue:

* Impaired short term memory or concentration

* Sore throat * Tender cervical or axillary lymph nodes

* Muscle pain

* Multi-joint pain without arthritis

* Headaches of a new type, pattern, or severity

* Unrefreshing sleep

* Post-exertional malaise lasting more than 24 hours

55. Applying the RACP Diagnostic Guidelines to the evidence before the Tribunal (see paragraphs 9, 11, 14, 15, 20; T9), the Tribunal concludes that Miss Gasteen's condition may be diagnosed as CFS.

56. Furthermore, in terms of whether this condition has been fully documented, investigated, treated and stabilised, the Tribunal prefers the evidence of Dr. Cantor to Dr. Yang. Based on Dr. Cantor's evidence (paragraphs 20, 23, 24, 25, 27), as well as Mrs. Gasteen's evidence (paragraphs 16, 17, 18) the Tribunal finds that Miss Gasteen's CFS condition was fully documented and diagnosed and had been investigated, treated and stablilised in a manner consistent with the requirements of Schedule 1 B of the "Tables for Assessment of Impairment for DSP" as well as the RACP Guidelines.

57. The Tribunal further concludes that, on the balance of probabilities, from the date of and three months after lodging of the DSP application (6 August 1999) and Dr. Cantor's consultations (9 May 2000, Exhibit 2; 3 November 2000, Exhibit 4), Miss Gasteen's depression had stabilised. Moreover, the Tribunal concludes that her ongoing CFS symptoms had also remained unchanged.

58. The Tribunal has made these conclusions because of:

* Dr. Ryan's clinical notes from 30 April 1999 to 13 March 2000 (T3 Folios 160 to 162);

* The SSAT findings of fact on her symptoms (T2 Folio 1);

* Miss Gasteen's oral evidence to the Tribunal (paragraph 9); and

* The same anti-depressant medication regime existing, with little scope for improvement with psychological therapies.

59. Accordingly, the Tribunal concludes that Dr. Cantor's reports (Exhibits 2, 4) are relevant in considering Miss Gasteen's application for DSP at the time it was lodged and three months thereafter.

60. Based on the findings in paragraphs (55-59) the Tribunal finds that an impairment rating for the purposes of establishing qualification for DSP can be assigned. The Tribunal agrees with the submissions of Miss Heyworth-Smith (see paragraph 37) and finds that Miss Gasteen should be assigned 20 points under Table 20 ("Miscellaneous - Malignance, Hypertension - Chronic Fatigue or Pain").

61. The Tribunal further finds that the weight of medical evidence (but see paragraphs 38, 48) supports the conclusion that Miss Gasteen is unable to work for at least two years or able to be retrained for work within two years.

62. Based on all of the above findings, the Tribunal sets aside the decision under review and in substitution therefore decides that Miss Gasteen was qualified for disability support pension at the time application was made on 6 August 1999.

I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of Dr E K Christie, Member.

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

B. iHitchcock, Secretary

Date/s of Hearing 1 December 2000

Date of Decision 27 February 2001

Counsel for the Applicant Miss Heyworth-Smith

Solicitor for the Applicant Welfare Rights Centre

Respondent Mr. N. Foster, Departmental Advocate