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

Ljubicic and Secretary, Department of Social Services (Social services second review) [2015] AATA 1003 (22 December 2015)

Division

GENERAL DIVISION

File Number

2015/2372

Re

Kristina Ljubicic

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Egon Fice, Senior Member

Date 22 December 2015

Place Melbourne
The decision under review is set aside and in substitution it is determined that the Applicant meets the criteria for Disability Support Pension specified in s. 94(1)(a), (b) and (c)(i) of the Social Security Act 1991 (Cth) and therefore qualifies for payment of the Disability Support Pension from 20 January 2014.

.............................[sgd]...........................................
Egon Fice, Senior Member
Catchwords
DISABILITY SUPPORT PENSION – impairment assessment – conditions of renal failure, systemic lupus erythematosus, depression and spinal issues – whether conditions fully diagnosed, fully treated and fully stabilised during qualifying period – conditions verified by medical reports – decision under review set aside and substituted
Legislation
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) sch 2 cls 3 – 4
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) ss 5 – 6, 10, 11
Secondary Materials
Elizabeth J Taylor (ed), Dorland’s Illustrated Medical Dictionary (W.B. Saunders Company, 27^th ed, 1988)
REASONS FOR DECISION
Egon Fice, Senior Member
22 December 2015

Ms Kristina Ljubicic lodged a claim for the Disability Support Pension (DSP) on

20 January 2014. On 21 February 2014 a Customer Service Officer (CSO) with Centrelink determined that Ms Ljubicic did not qualify for the DSP because her impairment rating was less than 20 points under s. 94 of the Social Security Act 1991 (the Social Security Act).
Ms Ljubicic sought review of the CSO decision by an Authorised Review Officer (ARO). On 11 August 2014 the ARO affirmed the decision made by the CSO. In a decision made on 22 April 2015, the then Social Security Appeals Tribunal (SSAT), now the Social Services and Child Support Division (SSCSD) of the AAT, affirmed the decision of the ARO. Ms Ljubicic lodged an application with the General Division of the AAT (the Tribunal) on 13 May 2015 seeking a review of the SSCSD decision.
The issues which I am required to determine in this matter are:
(a)whether Ms Ljubicic’s medical conditions have been fully diagnosed, fully treated and fully stabilised;
(b)regarding the medical conditions which have been fully diagnosed, fully treated and fully stabilised, whether individually or cumulatively they attract at least 20 points when applying the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
(c)whether Ms Ljubicic has a continuing inability to work because of her impairments.
QUALIFYING CRITERIA FOR GRANT OF DISABILITY SUPPORT PENSION
To be eligible to receive the disability support pension, ordinarily, the claimant must meet the qualifying criteria on the date when the claim is made. The general rule is that a social security payment commences on the date on which the claim is made if the person is qualified for the payment on that day (Social Security (Administration) Act 1999 (the Administration Act) sch 2 cl. 3(1)). However, the Administration Act also provides for the situation where what is described as an early claim is made. That is, the claimant does not qualify for the payment on the day the claim is made but becomes qualified for the payment within the period of 13 weeks after the date on which the claim is made
(sch 2 cl. 4(1)). In that case, the claim is taken to have been made on the first day on which the person qualified for the social security payment. It also means that if the claimant does not qualify for the claimed social security payment within 13 weeks of the claim having been lodged, the claim must necessarily fail. If a claimant’s condition has altered following that 13 week period, he or she must make a new claim. The period of
13 weeks commencing on the date the claim was lodged is commonly referred to as the qualifying period. The qualifying period for Ms Ljubicic’s claim is between
20 January 2014 and 20 April 2014.
The qualifying criteria for the grant of the DSP are set out in s. 94 of the Social Security Act. The provisions relevant to this matter are as follows:
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 Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and
…
The expression continuing inability to work is defined in the Social Security Act as follows:
94(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support – the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases – the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases – either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Work is defined in s. 94 (5) as:
work means work:
(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person’s locally accessible labour market.
It should be apparent that the qualifying criteria for the grant of the DSP are essentially based not on the medical condition or conditions that a person may have, but rather the effect that such conditions may have on that person’s ability to work. It is about the impairment caused by a medical condition. The degree of impairment is calculated by using the Impairment Tables.
The Impairment Tables make it clear that they are function based rather than diagnosis based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions (s. 5). The impairment of the person must be assessed on the basis of what the person can, or could do, rather than on the basis of what the person chooses to do or what others do for that person (s. 6(1)). Most importantly, an impairment rating can only be assigned to an impairment if the condition causing that impairment is permanent (s. 6(3)(a)). Additionally, the impairment which results from that condition must be more likely than not, in light of available evidence, to persist for more than 2 years

(s. 6(3)(b)).
A medical condition is permanent if the condition has been fully diagnosed by an appropriately qualified medical practitioner; the condition has been fully treated; the condition has been fully stabilised; and the condition is more likely than not, in light of available evidence, to persist for more than 2 years (s. 6(4)).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, the following must be considered (s. 6(5)):
(a)whether there is corroborating evidence of the condition;
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
A condition is fully stabilised if (s. 6(6)):
(a)the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years; or
(b)the person has not undertaken reasonable treatment for the condition and:
i.significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
ii.there is a medical or other compelling reason for the person not to undertake reasonable treatment.
MEDICAL CONDITIONS
The medical report lodged by Ms Ljubicic was completed by Dr Nermana Gradisic on

25 February 2013. Dr Gradisic identified the following medical conditions:
(a)renal (kidney) failure, renal transplant possibly caused by or contributed to by lupus;
(b)chronic lower back pain;
(c)anxiety, depression, mood swings; and
(d)gastro-oesophageal reflux disease (GORD).
The Secretary accepted, and I agree, that Ms Ljubicic has the following conditions and hence satisfies s. 94(1)(a) of the Social Security Act:
(a)kidney condition and lupus;
(b)psychological/psychiatric disorder;
(c)spinal condition;
(d)neck and shoulder pain with stiffness;
(e)eye condition (glaucoma); and
(f)GORD.
IMPAIRMENT RATING
I must now determine whether the correct impairment rating has been applied to
Ms Ljubicic based on her accepted medical conditions. In doing so, I must first consider her medical history in relation to the condition causing the impairment (Impairment Tables s. 6(2)). I should then follow the application principles set out in s. 6 of the Impairment Tables in order to determine whether an impairment rating can be assigned to an impairment and, if so, what that impairment rating should be.
Renal transplant/Lupus
Although these two medical conditions are listed in some reports as a single condition (for example the medical report prepared by Dr Peter Andrianakis on 29 January 2014), they are plainly discrete but interrelated. Lupus is defined in Dorland’s Illustrated Medical Dictionary, the 27^th edition, as (p. 958):
lupus a name originally given to localized destruction or degeneration of the skin caused by various cutaneous diseases. Although the term was formerly used to designate lupus vulgaris and now lupus erythematosus, without a modifier it has no specific meaning.
In some medical reports, the condition is described as systemic lupus erythematosus (SLE). Dorland’s Medical Dictionary explains that condition in the following way (p. 958):
a chronic, remitting, relapsing, inflammatory, and often febrile multisystemic disorder of connective tissue, acute or insidious in onset, characterized principally by involvement of the skin (see cutaneous l. erythematosus), joints, kidneys, and serosal membranes. It is of unknown etiology, but it is thought to represent a failure of the regulatory mechanisms of the autoimmune system that sustain self-tolerance and prevent the body from attacking its own cells, cell constituents, and proteins, suggested by the high level of a wide variety of autoantibodies against nuclear and cytoplasmic cellular components seen in affected individuals. The disorder is marked by a wide variety of abnormalities, including arthritis and arthralgias, nephritis, central nervous system manifestations, pleurisy, pericarditis, leukopenia or thrombocytopenia, haemolytic anemia, elevated erythrocyte sedimentation rate, and positive LE-cell preparations…
It is obviously a serious disease which has very unpleasant signs and symptoms.

Dr Gradisic said in her report of 25 February 2013 that Ms Ljubicic suffered renal failure in October 2010. She had a renal transplant done at the Royal Melbourne Hospital on

20 March 2012. Dr Gradisic described herself as Ms Ljubicic’s treating doctor. In a letter dated 8 April 2013 Dr Gradisic explained that following her renal transplant, Ms Ljubicic was required to take medication to prevent renal transplant rejection and that this was a lifelong requirement. She explained that the medications prescribed were known for unwelcome side effects which were experienced by Ms Ljubicic. They included tremor, anxiety, drowsiness, insomnia, mood swings, depression, fatigue, muscular cramps, and blurred vision. She described Ms Ljubicic as having no confidence to drive a car because of the side effects which she experienced.
In his medical report of 29 January 2014, Dr Andrianakis described Ms Ljubicic as having a long history of autoimmune disease (SLE). He described the effects of this condition as experienced by Ms Ljubicic as being low energy, weakness, easy fatigue and depression. He expected the condition to impact on Ms Ljubicic’s function for more than 24 months. Furthermore, and significantly, Dr Andrianakis was of the view that within the next two years the effect of this condition on her ability to function was expected to deteriorate. He described Ms Ljubicic as having a life-threatening renal problem which caused her general health to suffer daily with bouts of feeling unwell, nausea and weakness.
Dr Andrianakis dealt with SLE as a discrete condition. He indicated that Ms Ljubicic was treated by Dr Tait, a rheumatologist. Her current treatment included duac gel and prednisolone. Dr Andrianakis described the disease as progressive and said it will get worse as there was no cure. He described the current symptoms associated with SLE as headaches, nausea, weakness and low energy levels. He also said this condition was expected to persist for more than 24 months and within the next two years the effect of this condition on her ability to function was expected to deteriorate. Attached to his medical report was a document containing information needed for a DSP medical appeal. As far as her renal transplant and SLE were concerned, he assessed Ms Ljubicic to have 20 points under table number 1. He was of the opinion that no treatment reasonably available would make a difference to Ms Ljubicic such that she could work 15 hours per week in the next two years. In fact, even with reasonable treatment, he expected her condition in the following two years to become worse. In his opinion, Ms Ljubicic’s current capacity to work in any job or to undertake training to get help to work would be 0 – 14 hours per week.
In a brief report dated 27 February 2014 Dr Andrianakis explained that the renal transplant and SLE were separate disorders and that they should attract their own impairment rating. He said both of those conditions were well established and treated as fully as they could be. He emphasised that Ms Ljubicic’s renal transplant and associated ongoing problems attracted 20 points under the Impairment Tables and 10 points for her SLE.
The only other significant medical report which I had in evidence was that provided by

Mr Byron P Rigby, a psychiatrist. It is dated 15 July 2015. While I appreciate that

Mr Rigby’s specialty has nothing to do with renal failure or SLE, he is clearly familiar with the drugs prescribed for Ms Ljubicic for these conditions and their effect on her psychological state. Furthermore, he obtained a history from Ms Ljubicic indicating that she found she had SLE, which he described as an extremely serious autoimmune disease that affects almost all organs of the body, including the kidney, some 11 years previously. He also pointed out that psychiatric conditions appeared to be common in persons with this disorder, either due to the condition itself or to the treatment or both.
There was no dispute that Ms Ljubicic’s renal transplant and SLE were conditions which are properly described as fully diagnosed, fully treated and fully stabilised.
There being no contradictory evidence that SLE and renal failure/transplant should be treated as separate disorders, the medical evidence indicates that these conditions cause multiple impairments and there is probably also overlap such that the two conditions combine to cause a common impairment. In those circumstances, one needs to refer to

s. 10 of the Impairment Tables. Subsections (3) and (4) deal with a single condition causing multiple impairments while subsections (5) and (6) deal with multiple conditions causing a common impairment. Those subsections provide:
Single condition causing multiple impairments
(3) Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.
Example: A stroke may affect different functions, thus resulting in multiple impairments which could be assessed under a number of different Tables including: upper and lower limb function (Tables 2 and 3); brain function (Table 7); communication function (Table 8); and visual function (Table 12).
(4) When using more than one Table to assess multiple impairments resulting from a single condition, impairment ratings for the same impairment must not be assigned under more than one Table.
Multiple conditions causing a common impairment
(5) Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.
(6) Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10 (5), it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.
Example: The presence of both heart disease and chronic lung disease may each result in breathing difficulties. The overall impact on function requiring physical exertion and stamina would be a combined or common effect. In this case a single impairment rating should be assigned using Table 1.
I had in evidence two Job Capacity Assessment Reports. A Job Capacity Assessor (JCA) made an assessment on 20 March 2013 and 17 February 2014. In the first report, as far as SLE is concerned, the JCA reported that it led to Ms Ljubicic feeling sweaty and having wounds which had difficulty healing at times. The JCA also said that no specific functional impacts were reported. The JCA made no reference to any medical reports despite the fact that Dr Gradisic had completed her report on 25 February 2013. Dr Gradisic mentioned SLE in connection with Ms Ljubicic’s low back pain, and also referred to lupus as a possible underlying cause for her renal failure and renal transplant. SLE is frequently associated with those conditions. The same JCA provided the second Job Capacity Assessment Report which was made on 17 February 2014. She noted the medical condition SLE and the report for that condition is word for word identical to the report she provided almost a year earlier. That was despite the fact that by that time, Dr Andrianakis had completed a second report. Dr Andrianakis reported a long history of autoimmune disease and mentioned SLE. He also noted that her treatment involved prednisolone.
Furthermore, I have already referred to the brief report prepared by Dr Gradisic which is dated 8 April 2013. The JCA made no mention of this report, possibly because it was not given to her. Dr Gradisic said:
Following her renal transplant March 2012, Kristina needs to take 5TACrolimus, Myfortic/prednisolone to prevent renal transplant rejection. This is lifelong treatmnet [sic]. This [sic] medications are known for following side effects and are experienced by Kristina; tremor, anxiety, drowseness [sic], insomnia, mood swings, derpession [sic], fatigue, muscloe cramps [sic], blurred vision.
Kristina has no confidence to drive a car due to above side effects.

In his report, Mr Rigby pointed out that Ms Ljubicic did not seem to be aware of the unwanted side effects caused by prednisolone. Furthermore, Mr Rigby said in his report:
About 11 years ago, Ms Ljubicic found she had Systemic Lupus Erythematosis, an extremely serious auto-immune disease that has effects on almost all organs of the body, including the kidney.
In her first report, the JCA allocated 0 points to this condition on the basis that there was no functional impact on activities requiring physical exertion or stamina. With respect, all of the medical reports in evidence dispute that. Furthermore, although conscious of the fact that Mr Rigby is a psychiatrist, I had no evidence before me to dispute his statement regarding the effect of SLE on the body. He referred to it affecting almost all organs, including the kidney.
In her second report, the JCA again recommended 0 points in relation to SLE for physical exertion and stamina and noted that there was no functional impact in order to avoid double counting of similar impairment types. This was taken into account when rating

Ms Ljubicic’s renal condition. Again, as I said when dealing with the Impairment Tables where a single condition may cause multiple impairments or multiple conditions may cause a common impairment, if, as Mr Rigby said in his report, SLE affects most organs of the body, not only is this a case where there may be a single condition causing multiple impairments, but there is probably also the issue of multiple conditions causing a common impairment. This case is nowhere near as simple as the examples cited in these types of cases. It is, in many respects, artificial to attempt to allocate impairments to specific conditions. There is also the added problem of the multiple medications Ms Ljubicic is required to take for the purpose of avoiding organ rejection.
As for the condition described by the JCA as kidney disorder, in her first report the JCA recommended a rating of 5 points there being, in her opinion, mild functional impact on activities requiring physical exertion or stamina. The JCA recorded that Ms Ljubicic said her immune system was weak and that the medication had side effects (shakiness, sweats), and that she was able to do the laundry, vacuuming, cleaning, light home activities but unable to perform heavy work. She recorded that Ms Ljubicic said she was able to drive locally.
In her second report, when dealing with Ms Ljubicic’s kidney disorder the JCA reported symptoms similar to those in her first report but noted that where she stated in her first report that Ms Ljubicic could do the laundry, vacuuming and cleaning, she now had a friend come to help. She was only able to carry out light home activities. She recommended a rating of 10 points on Table 1, noting that Ms Ljubicic’s lupus condition contributed to reduced endurance and was taken into account when rating that condition.
The first point to note is that Ms Ljubicic, in the space of 12 months, appears to have reduced functioning capacity. Given the reports made by Dr Gradisic and Dr Andrianakis, both of whom expected her condition to deteriorate, reduced functional capacity is consistent with those reports. The second point is about the statements made by

Mr Rigby regarding the impact of SLE as well as kidney disease on Ms Ljubicic’s other organs of her body. In fact, Mr Rigby reported that Ms Ljubicic had, at the time he saw her in July 2015, been diagnosed with glaucoma. She was to have treatment by an ophthalmologist. While it is not clear that this condition has any relationship to her kidney problems or her SLE, it is nevertheless consistent with all of the medical reports in evidence. That is, her condition would deteriorate. Furthermore, glaucoma is a known long-term side effect which results from taking prednisolone. Mr Rigby also reported

Ms Ljubicic telling him she experienced something comes into feet first, feels like it’s itchy and I have to get up and move. Mr Rigby said that Ms Ljubicic identified with many of the symptoms he explored associated with restless leg syndrome. Mr Rigby was concerned that Ms Ljubicic mentioned this in passing given the very real impact it was having on her sleep. He also noted that renal issues are a risk factor for restless leg syndrome.

Ms Ljubicic also told Mr Rigby that she was not really doing the home chores and that she was currently showering every three to four days. She described that as scary.
In a report dated 13 July 2015 Dr Andrianakis made a number of points which are supported by the history given to Mr Rigby and his analysis of her condition.

Dr Andrianakis said that Ms Ljubicic had struggled with the effects of her renal impairment pre-and post-renal transplant which occurred some three years ago. She also struggled with an autoimmune disease (SLE) that had many shades and exacerbations causing discomfort for many days then being quiescent when under the management of strong steroids. He said that living with the effects of renal impairment, renal transplant and the side effect of many medications used to manipulate her immune system, made her feel unwell most days. That is certainly the evidence she gave on the hearing of this matter.
The evidence before me regarding her renal disorder/transplant, including the side-effects from her medication taken to avoid organ rejection and in particular prednisolone, a corticosteroid with some serious adverse side-effects, points to her condition causing serious functional impairment. Furthermore, her SLE which was described by Mr Rigby as a serious autoimmune disease affecting almost all organs of the body, adds complications. If I were to treat both conditions as causing a common or combined impairment, I am certain that would most likely be inaccurate. While it is difficult to determine precisely the impairments caused by these conditions and the unwelcome side-effects of necessary medication, particularly as many organs may be involved, I find that Table 1 is appropriate as physical exertion and stamina are functions which are affected amongst possibly others. I am also mindful of what is set out in s. 11(3) of the Impairment Tables which deals with descriptors involving performing activities. It provides:
(3) When determining whether a descriptor applies that involves a person performing an activity, the descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.
Example: If, under Table 2, a person is being assessed as to whether they can unscrew a lid of a soft drink bottle, the relevant impairment rating can only be assigned where the person is generally able to do that activity whenever they attempt it.
I find that Ms Ljubicic’s renal disorder/transplant and SLE have a serious functional impact on activities requiring physical exertion or stamina. Those conditions and her medication make her feel unwell most days. She experiences severe tiredness, fatigue and lethargy. She has problems sleeping which appears to result from restless leg syndrome and this contributes to her condition. She experiences those symptoms most days even when not performing any physical activities.
The evidence was that she had completed some five months of a Program of Support (POS) prior to her lodging her application for the DSP. She said it provided no value to her whatsoever although the POS provider would not exit her from the program even though it was agreed that she would never work again. On that basis, I find it is likely that Ms Ljubicic would have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of least 3 hours.
Ms Ljubicic reported that she was not really doing home chores and she needed to be having a really good day to do those chores. In any event, she had a friend assisting her to do those chores. In other words, these were not activities which she was capable of doing normally and on a repetitive or habitual basis. Ms Ljubicic also reported that at times she would just sit and stare at one spot on the wall, for possibly two hours. She was not aware of the passage of time during those episodes. While I did not have evidence about how far she could walk or whether she could use public transport without assistance, Dr Gradisic reported she suffered from poor physical and mental endurance. Dr Andrianakis referred to poor energy, weakness and easy fatigue. He also said that she had a life-threatening renal problem and that her general health suffered daily because of bouts of not feeling well, nausea, weakness and tiredness.
I find that the correct impairment rating under Table 1 for these two conditions, assuming they cause common impairment on activities requiring physical exertion or stamina, is

20 points.
MENTAL FUNCTIONING – ANXIETY/DEPRESSION
In her letter of 8 April 2013 Dr Gradisic reported that the medications which Ms Ljubicic was required to take to avoid organ rejection had a number of adverse side-effects which she experienced. They included tremor, anxiety, mood swings and depression. She also reported that Ms Ljubicic was diagnosed with depression in 2008 and had been seeing a psychologist. However, Ms Ljubicic’s evidence was that the psychologist was a fraudster and was subsequently charged with conducting a psychological practice when he was not qualified to do so. I had in evidence an extract from a newspaper reporting the fraud. It corroborated Ms Ljubicic’s evidence.
Dr Andrianakis, in his report of 13 July 2015, said that Ms Ljubicic had suffered from depression and anxiety for many years. In a report he prepared dated 27 February 2014, Dr Andrianakis said that he was certified by the AMA to do psychiatric assessments as an Independent Medical Examiner. In that report he said that Ms Ljubicic had an established diagnosis of depression and anxiety which had been fully diagnosed and treated without improvement.
Although Mr Rigby’s report is well outside the qualifying period on this application, as will become apparent presently, it is clearly relevant to her condition during the qualifying period.
Her mental condition should be assessed under Table 5 dealing with mental health function. The introduction to that Table states that diagnosis of the condition must be made by an appropriately qualified medical practitioner, including a psychiatrist, with evidence from a clinical psychologist if the diagnosis has not been made by psychiatrist. In this case, Mr Rigby satisfies that requirement even if Dr Andrianakis does not.
Mr Rigby’s report of 15 July 2015 is detailed and particularly helpful. It involved no fewer than five consultations with Ms Ljubicic. Mr Rigby did not have any other medical documents before him. At the outset, he explained that in preparing his report, he was not engaging in advocacy of any kind. He also indicated it was not his practice to undertake assessments or prepare reports except for bona fide patients under continued treatment by him.
Mr Rigby took a very detailed history. It included the following relevant points:
·Ms Ljubicic did not appear to be aware that the steroid drugs which she was taking to prevent organ rejection could cause substantial psychiatric illness including depression, paranoid states and psychosis;
·Systemic Lupus Erythematosus is an extremely serious auto-immune disease that has effects on almost all of the body including the kidney and psychiatric conditions appear to be common in people with this disorder, either due to the condition itself or to the treatment or both;
·Ms Ljubicic was clearly depressed and agitated but showed and described no psychotic symptoms. She disclosed the following symptoms: initial insomnia, early waking, rumination, poor concentration, impaired memory, sadness, anxiety, anger, crying, inability to cry, exhaustion, low motivation, low self-esteem, self-blame, diurnal mood shift, impaired appetite, weight loss, constipation, hopelessness and suicidal ideation;
·the pattern of symptoms indicated Major Depression of a severe degree with virtually all symptoms present and substantial;
·in addition to regular psychiatric consultations, Ms Ljubicic had been allocated a Credentialed Mental Health nurse to provide intensive ongoing support as there was significant suicide risk;
·in the most recent contact, Ms Ljubicic said she had been crying for the last three or four days and at the moment, everything was shit;
·Ms Ljubicic reported that her mood had been 1/10 last week and she was also experiencing intense suicidal ideation. However, the doubling of her antidepressants, an unexpected visit from her sister and an improved relationship with her eldest son resulted in her mood improving to 5/10 this week;
·there was no evidence of auditory hallucinations;
·she had visual hallucinations, reporting she saw faces in the curtains and other items at home;
·Ms Ljubicic presented currently with a high risk of suicide with a semi formed plan of “taking a handful of medication”;
·she reported that her renal specialist was not concerned about her reported insomnia;
·Ms Ljubicic presented as someone who had hidden her depression from friends and family for many years due to her perceived exclusion from the Croatian community following her relationship breakdown with her former husband and it appeared this had increased the level of depression she had felt due to isolation from her supports;
·she presented as a somewhat poor historian, for example, when asked for her medical history she initially failed to recall her very recent diagnosis of glaucoma;
·Ms Ljubicic also failed initially to mention her restless legs and only mentioned that in passing much later in the session despite the very real impact it was having on her sleep;
·it was difficult to know how much of Ms Ljubicic’s depression and use of English as a second language impacted on her ability to provide the relevant information in sufficient detail although it was noted that at no time was she hesitant or reluctant to provide information; and
·it was entirely evident Ms Ljubicic did not have current work capacity.
Mr Rigby concluded that Ms Ljubicic’s overall physical health, the derailment of her life and family relationships and the entrenched nature of her depressive symptoms strongly indicated that treatment would be difficult and recovery within the next two years unlikely. He also said:
I would estimate that Ms Ljubicic will remain incapable of gainful employment indefinitely.
The first JCA report assessed this condition to be temporary. However, the JCA did not have the benefit of Mr Rigby’s report. Once again, when completing the second Job Capacity Assessment Report, the JCA did not have the benefit of Mr Rigby’s report. Her report was based solely on the comments made by Dr Gradisic in her 25 February 2013 report and the remarks made by Dr Andrianakis in his report of 29 January 2014. Nevertheless, the JCA said that Ms Ljubicic would benefit from specialist intervention, counselling and treatment support.
Given what Mr Rigby said in his report, which was not contradicted by any other evidence, I must find that Ms Ljubicic’s mental health condition has been fully diagnosed, treated and stabilised. I of course assume that use of the word stabilised in this context means that the condition will not improve. It does not mean that it may not continue to deteriorate. According to Mr Rigby, treatment will be difficult and recovery within 24 months unlikely. There is corroborating evidence from Dr Andrianakis. Furthermore, prior to writing his report, Mr Rigby had five consultations with Ms Ljubicic. His assessment plainly is not based simply on the presentation of Ms Ljubicic on a single day. She should be given an impairment rating under Table 5.
Mr Rigby reported that Ms Ljubicic was not really doing home chores and that she showered every three to four days. Plainly, she has serious problems with self-care and independent living. Furthermore, Mr Rigby reported that Ms Ljubicic had been allocated a Credentialed Mental Health nurse to provide intensive ongoing support because there was significant suicide risk. Her interpersonal relationships have obviously been difficult as she described to Mr Rigby that everyone in the Croatian community blamed her for her marriage breakdown. She also had difficulties with her oldest son although that appears to have improved recently. She described her brain as being all over the place. That plainly indicates problems with concentration and task completion. She also has behavioural, planning and decision-making problems. She described sitting and staring at one spot on the walls for possibly two hours. She also reported experiencing visual hallucinations. Plainly, her behaviour and thoughts are frequently disturbed. Mr Rigby also estimated that Ms Ljubicic would remain incapable of gainful employment indefinitely. For those reasons, I find that Ms Ljubicic’s mental health functioning is severely impaired. She has severe difficulties with most of the items set out on Table 5 of the Impairment Tables. I find this condition should attract 20 points.
Spinal condition
The Secretary accepted that Ms Ljubicic’s spinal condition was fully diagnosed, treated and stabilised on the information obtained from her general practitioners. In his report dated 13 July 2015 Dr Andrianakis said that Ms Ljubicic had suffered a work injury in 2005 which was the subject of a work care claim. She was seen by a neurosurgeon who wanted to perform spinal surgery but she refused because of possible complications and effects post-surgery. In both of her assessments, the JCA recommended that Ms Ljubicic receive 5 points on the ground that there was some mild functional impact on her activities involving spinal function.
I had no evidence before me on the hearing of this matter which would dispute the spinal function assessment. Accordingly, I find that the allocation of 5 points on Table 4 was correct.
GORD
This condition seems to have ceased to be significant following her kidney transplant. According to the JCA in her second report, this condition was resolved and it was being caused by her kidney condition. Apparently Ms Ljubicic reported that she had taken medication for this condition for 2 years and that it helped control the symptoms. If she did experience some reflux, there were no functional aspects.
Glaucoma
This condition, a reasonably common long-term side-effect caused by taking prednisolone, appears to have only been recently diagnosed. Ms Ljubicic does not appear to have been treated at this stage. While it is obvious that this condition cannot be considered as far as functional impairment in the qualifying period is concerned, I merely note that it raises the potential for further incapacity in the future.
CONCLUSION
I have found that the evidence discloses that Ms Ljubicic suffers from serious impairments as a result of her renal disease/transplant/lupus. In particular, those impairments arise from adverse side-effects of the many drugs she is required to take in order to avoid organ rejection. Functional impairment resulting from these conditions is serious and, with respect to the JCA who conducted the previous two assessments, I have found that her impairments attract 20 points on Table 1 of the Impairment tables.
Until Mr Rigby conducted a thorough examination of Ms Ljubicic’s mental state, there was no medical report which comprehensively dealt with her mental condition. Although
Mr Rigby’s report postdates the qualifying period in respect of Ms Ljubicic’s claim, it not only reported on her state over five consultations but dealt with her mental condition during the qualifying period. There was no evidence which contradicted Mr Rigby’s findings. Mr Rigby’s report is very clear. Ms Ljubicic’s mental state has a severe functional impact on activities involving mental health function. Accordingly, I have found that this condition attracts 20 points on Table 5.

I did not have any additional medical reports in respect of her spinal condition. The Secretary accepted that this condition attracted 5 points on Table 4. I have no reason to alter that finding.
On the evidence given by Ms Ljubicic to the JCA, her GORD condition no longer causes any functional impairment. For the sake of completeness, I have also mentioned that
Ms Ljubicic has now been diagnosed with glaucoma. While that plays no part in her assessment for the DSP on this application, it is possible that it will impact on her functional capacity in the future.
On the evidence before me on the hearing of this matter, I find that Ms Ljubicic satisfies the qualifying criteria in s. 94 (1)(a), (b) and (c)(i) of the Social Security Act. In addition, given that she has a severe impairment as that expression is defined in s. 94(3B), she is not required to participate in a program of support. I have found that the impairment of itself is sufficient to prevent Ms Ljubicic from doing any work independently of a program of support within the next 2 years and that her impairment is of itself sufficient to prevent her from undertaking a training activity during the next 2 years.
It necessarily follows that I find the decision made by the SSAT as it then was on
22 April 2015 was not the correct decision. I set aside that decision and in substitution determine that Ms Ljubicic satisfies the qualifying criteria for payment of the DSP from the date of lodgement of her claim, that is, 20 January 2014.

I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member
................................[sgd]........................................
Associate
Dated 22 December 2015

Date of hearing 20 October 2015

Applicant In person

Advocate for the Respondent Ms A Short

Solicitors for the Respondent Sparke Helmore

[2015] AATA 1003

22 December 2015

Key Legal Topics

Areas of Law

Social Security Law

Legal Concepts

Disability Support Pension

Impairment Assessment

Functional Impairment

Constitutional Validity

Division	GENERAL DIVISION
File Number	2015/2372
Re	Kristina Ljubicic
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Egon Fice, Senior Member
Date	22 December 2015
Place	Melbourne

Date of hearing	20 October 2015
Applicant	In person
Advocate for the Respondent	Ms A Short
Solicitors for the Respondent	Sparke Helmore