Rubelj and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 42 (22 January 2009)

Last Updated: 22 January 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 42

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/1601

GENERAL ADMINISTRATIVE DIVISION		)
	Re		JOSO RUBELJ

Applicant

And

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

Respondent

DECISION

Tribunal

Dr I Alexander, Member

Date 22 January 2009

Place Sydney

Decision

The Tribunal decides that: (i) The decision under review is set aside, and (ii) In substitution the Tribunal decides that the preferable decision is that at the time of his application for Disability Support Pension (“DSP”) on 26 September 2007 Mr Rubelj satisfied the requirements of s 94(1) of the Social Security Act 1991 and so that he did qualify for DSP.

.................[sgd].............................
Dr I Alexander
Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether conditions fully documented, diagnosed, investigated, treated and stabilised – whether conditions are permanent – impairment rating – functional capacity – continuing inability to work – decision under review set aside

Social Security Act 1991 – s 94

Social Security (Administration) Act 1999 – ss 41, 42, Sch 2 cl 3, cl 4(1)

REASONS FOR DECISION

22 January 2009

Dr I Alexander, Member

INTRODUCTION

1. Mr Rubelj was granted a Disability Support Pension (“DSP”) on 20 March 2000.
2. On 1 July 2003 his DSP was cancelled because the value of his assets was over the allowable threshold.
3. On 24 November 2003, he was regranted DSP under the Pensions Income Test.
4. On 23 December 2004, his DSP was again cancelled because the value of his assets was over the allowable threshold.
5. On 26 September 2007, Mr Rubelj submitted another application for DSP.
6. This application was rejected by Centrelink on 26 September 2007 on the grounds that his impairment rating was less than 20 points. The decision was affirmed by a Centrelink authorised review officer (“ARO”) on 29 November 2007.
7. The current proceeding is an application for review of the Social Security Appeals Tribunal (“SSAT”) decision dated 6 March 2008 affirming the decision of the ARO to reject Mr Rubelj’s application for DSP.
8. At the hearing on 3 December 2008 Mr Rubelj was not represented, but gave oral evidence with the assistance of a Croatian interpreter.
9. After having considered all the available evidence and for the reasons set out below I find that Mr Rubelj satisfied the requirements of s 94(1) of the Social Security Act 1991 (“the Act”) and therefore did qualify for DSP at the time of his application which means that his application for review has been successful.

ISSUES - LEGISLATION

10. Section 94 of the Act sets out the requirements for DSP and for the purpose of this application Mr Rubelj needs to meet the following criteria in order to qualify for DSP:
    • He must have had a physical, intellectual or psychiatric impairment (s 94(1)(a)); and
    • His impairment rating was required to be 20 points or more under the relevant Impairment Tables in Schedule 1B of the Act (s 94(1)(b)); and
    • He must have had a continuing inability to work (s 94(1)(c)(i)).
11. The Social Security (Administration) Act 1999 provides that the impairment ratings must be determined as at the date of the claim or within 13 weeks of lodging the claim (ss 41, 42, Sch 2 cl 3, cl 4(1)).
12. Therefore the “relevant time” for the assessment of Mr Rubelj in respect of his qualification for DSP was between 26 September 2007 and 26 December 2007.

DOCUMENTARY EVIDENCE

13. A Treating Doctor’s Report (“TDR”) provided by Dr Schindler, general practitioner (GP), dated 20 August 2001 listed cervical disc disease and depression as medical conditions suffered by Mr Rubelj which were both long term and stable. There was no treatment noted for the cervical disc disease, but his depression was being treated with antidepressant medication.
14. I note the report of an MRI of the cervical spine dated 27 September 1999 which describes varying degrees of degeneration in all the cervical discs. In particular there were prominent changes at the C5/6 level with “posterior bulging of the disc” and “narrowing of the intervertebral foramina bilaterally”.
15. In a TDR dated 25 August 2003 Dr Schindler lists depression, cervical spondylosis and lumbar spondylosis as medical conditions that had a significant impact on Mr Rubelj’s ability to function.
16. On this occasion, Dr Schindler noted that in respect of the spinal condition Mr Rubelj suffered pain with reduced range of movement and that treatment included physiotherapy and anti-inflammatory medication (NSAID).
17. In respect of depression Mr Rubelj continued to be treated with antidepressant medication.
18. Dr Schindler also listed diabetes, prostatism and vertigo as medical conditions which were generally well managed and caused minimal or limited impact on Mr Rubelj’s ability to function.
19. In a Work Capacity/Participation Assessment Report dated 9 October 2003 a rehabilitation consultant noted that in respect of his cervical spine condition Mr Rubelj suffered from constant pain not relieved with medication and found on examination that there was a loss of half normal range of movement with spasms. An impairment rating of 10 points under Table 5.1 in Schedule 1B of the Act was recommended.
20. In respect of the lumbar spine the rehabilitation consultant noted a loss of quarter normal range of movement as well as back pain with various activities and stated Mr Rubelj was “unable to lean forward, cannot bend or sit lengthy periods.” An impairment rating of 10 points under Table 5.2 was assigned for this condition.
21. The rehabilitation consultant also recommended an impairment rating of 10 points for Mr Rubelj’s prostrate condition, but nil points for depression on the grounds that it may improve over the next two years.
22. In a TDR dated 26 September 2007 Dr Schindler, as he had in the TDR dated 25 August 2003, listed depression, cervical spondylosis and lumbar spondylosis as medical conditions that had a significant impact on Mr Rubelj’s ability to function.
23. Dr Schindler also listed diabetes and irritable bowel syndrome as medical conditions which were generally well managed and caused minimal or limited impact on Mr Rubelj’s ability to function.
24. In respect of depression, Dr Schindler noted that Mr Rubelj had a long history of depression and despite continuing medication continued to suffer symptoms including poor motivation, mood swings, loss of interest and inability to mix with people.
25. In respect of spondylosis, Dr Schindler noted continuing neck and lower back pain associated with restricted movement despite treatment with analgesics, physiotherapy and hydrotherapy.
26. In a job capacity assessment (“JCA”) report dated 27 September 2007 the assessor noted a number of Mr Rubelj’s medical conditions including his depression and spinal conditions, but recommended an impairment rating of nil points for depression and the spinal conditions on the basis that they were not optimally treated and therefore could not be considered to be fully diagnosed, treated and stabilised as required by Schedule 1B of the Act. (Two conditions, diabetes and irritable bowel syndrome (“IBS”), were considered permanent and optimally treated and attracted a nil rating on the basis that the conditions were managed well with minor symptoms.)
27. In my view the assessor did not provide a satisfactory explanation for the expressed conclusions.
28. In a TDR dated 26 October 2007 Dr Schindler noted that Mr Rubelj had suffered chronic depression for about five years and that because of his cervical and lumbar spondylosis had suffered recurrent neck and back pain for 10 years.
29. Dr Schindler also listed diabetes, tinnitus, irritable bowel syndrome and prostatitis as medical conditions that were generally well managed and caused Mr Rubelj minimal or limited impact on his ability to function.
30. In a decision dated (incorrectly) 29 September 2007, but apparently made on 29 November 2007, a Centrelink ARO considered that Mr Rubelj’s cervical spine condition was permanent and fully treated and assigned an impairment rating of 10 points under Table 5.1. The review officer noted that following the results of the cervical spine MRI done in 1999 Mr Rubelj had been advised by a specialist that an operation was not possible and accepted the assessment made in October 2003 by the rehabilitation consultant. In respect of Mr Rubelj’s lumbar spine condition the ARO agreed with the original decision maker that this condition was not fully treated or stabilised and so that an impairment rating could not be assigned. The ARO considered that Mr Rubelj’s depression was permanent and fully treated but did not allocate an impairment rating as the severity of the condition was considered mild based on the available evidence.
31. The SSAT in its decision of 6 March 2008 found that Mr Rubelj’s neck condition was permanent and assigned an impairment rating of five points using Table 5.1. An impairment rating of five points under Table 5.1 requires a “loss of quarter of normal range of movement”.
32. With respect of Mr Rubelj’s lumbar spine condition the SSAT found that the condition was permanent and assigned an impairment rating of five points under Table 5.2. An impairment rating of five points under Table 5.2 requires “loss of one-quarter of normal range of movement”.
33. It was not entirely clear how the SSAT assessed the range of movement of Mr Rubelj’s cervical or lumbar spine.
34. On the question of depression the SSAT found that the condition was permanent but assigned nil points on the basis that the symptoms were well controlled and caused minimal interference with functioning.
35. In a JCA report dated 30 July 2008 the assessor concluded that both Mr Rubelj’s cervical and lumbar spinal conditions were permanent and fully diagnosed, treated and stabilised and assigned an impairment rating of five points for each condition. (Mr Rubelj’s IBS also met the criteria to be rated under the Impairment Tables but attracted a nil rating.)
36. It appears that the assessor based the impairment rating for the cervical and lumbar spinal conditions solely on the findings of the SSAT and made no independent assessment.
37. In a TDR dated 6 February 2008, apparently completed by Dr Schindler and Dr Mayur, psychiatrist, Dr Mayur noted that he first saw Mr Rubelj on 25 January 2008 and diagnosed Dysthymia with Major Depression (chronic depression). Dr Mayur recommended a gradual increase in the dose of antidepressant medication, but provided no additional useful information or functional assessment.
38. In a letter dated 11 June 2008 Dr Gutierrez, psychologist, noted that Mr Rubelj had been referred by his GP in April 2008 and was suffering severe Major Depressive Disorder and Post Traumatic Stress Disorder.
39. He noted that Mr Rubelj had been attending sessions for cognitive behaviour therapy and was making “slow but steady” progress, but required further treatment.
40. In a letter dated 1 July 2008 Dr Schindler listed a number of conditions contributing to Mr Rubelj’s eligibility for DSP including major depressive disorder, cervical disc disease, lumbar disc disease, soft tissue injury to the right knee and degenerative changes in the right and left shoulders.
41. Relevantly, he referred to an MRI of Mr Rubelj’s lumbar spine that “shows nerve root compression and spondylosis”, but did not indicate the date of this investigation.

MR RUBELJ’S EVIDENCE

42. Mr Rubelj’s oral evidence in respect to the various medical conditions he claims to suffer was somewhat limited and not very helpful.
43. After having reviewed the documentary evidence and considered Mr Rubelj’s oral evidence it is clear that the relevant conditions for the purposes of this proceeding are limited to cervical spondylosis, lumbar spondylosis and depression.
44. At the relevant time the other medical conditions were either not fully documented, diagnosed, investigated, treated or stabilised as well as permanent, as required by Schedule 1B of the Act, so that an impairment rating could not be assigned or the conditions were generally well managed and did not cause significant functional impairment so that the allocation of an impairment rating was not warranted.
45. In respect of his depression Mr Rubelj claimed that he began to suffer symptoms about five years ago after his wife had an accident at work. Despite treatment with antidepressant medication he remained symptomatic, but was reasonably stable until early 2008 when his condition got worse.
46. Mr RubeIj said that in April 2008 following a motor vehicle accident and some financial difficulties his depression deteriorated further and he was referred by his GP to Dr Gutierrez for psychological treatment.
47. In respect of his cervical spine condition Mr Rubelj claimed that he had suffered pain and stiffness for about seven years and that although the pain varies in severity from day to day he is never free of pain. He also said that he has restriction of movement in all directions and that both the restriction and the pain have got worse in the last 18 months.
48. Treatment included analgesia with “Panadol” or “Di-gesic”, if the pain is worse NSAID, physiotherapy and hot packs. Mr Rubelj added that in the last 18 months he has been taking NSAID medication on a regular basis.
49. In respect of his lumbar spine condition Mr Rubelj said that he had suffered symptoms for about ten years, in particular lower back pain with various activities including bending and walking. Mr Rubelj stated that sometimes the pain radiates down his left leg. His symptoms have gradually increased, particularly in the last two years, and have responded variably to analgesia and physiotherapy.
50. I note that in his evidence to the SSAT Mr Rubelj indicated that the pain was variable in severity, but “present all the time”, and that he could “walk for 20 minutes and stand in one spot for five to ten minutes.” He also told the SSAT that he “could drive a car for 20 minutes and sit in a car [as a passenger] for two to three hours without needing any major relief.” Mr Rubelj did not say he was pain free during this time.

CONSIDERATION

51. There is no dispute that at the relevant time Mr Rubelj had a “physical, intellectual or psychiatric impairment” as required by s 94(1)(a) of the Act.
52. Therefore, the first issue to be decided is whether, at the relevant time, Mr Rubelj had an impairment rating of 20 points or more as required by s 94(1)(b).
53. As noted above, Schedule 1B of the Act provides various Tables to be used for the assignment of an impairment rating in respect of a medical condition when assessing eligibility for DSP.
54. The Introduction to Schedule 1B states that a rating can only be assigned to conditions that have been fully documented and diagnosed as well as having been investigated, treated and stabilised. A condition is considered fully stabilised “if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.”
55. In addition, the condition must be considered permanent which means “it is more likely than not that it will persist for the foreseeable future”, which is taken as “lasting for more than two years.”
56. The respondent concedes that at the relevant time Mr Rubelj’s cervical and lumbar spine conditions were fully documented, diagnosed, investigated, treated, stabilised and permanent, but contends that the appropriate impairment rating for each of these conditions was five points under Tables 5.1 and 5.2, respectively. The respondent relies on the JCA performed on 30 July 2008.
57. I find the respondent’s contention somewhat problematic in that in October 2003 Centerlink had accepted that Mr Rubelj’s spinal conditions were permanent and that his impairment rating for each condition was 10 points.
58. Furthermore, both these spinal conditions appear to be of a degenerative nature and, in my view, it would not be unreasonable to expect some deterioration over time, a proposition that is consistent with Mr Rubelj’s evidence of worsening symptoms in the last 18 months to two years.
59. The inconsistency of the impairment rating in the more recent assessments I find disturbing and raises the question of the reliability of these assessments.
60. I note that in the JCA report of 30 July 2008, relied on by the respondent, the assessor simply accepted the assessment of the SSAT and made no independent assessment, which in my view significantly limits its value.
61. In respect of the cervical spine in order to assign an impairment rating of 10 points Table 5.1 requires a “loss of half of normal range of movement and frequent/ constant neck pain or loss of three quarters of normal range of movement with infrequent neck pain”.
62. Similarly, in respect of the lumbar spine a criterion in Table 5.2 for a rating of either 5 or 10 points is the “loss of one-quarter of normal range of movement.”
63. In my view, the assessment of impairment with reference to theses two tables clearly requires physical examination by a suitably qualified health professional able to assess the range of movement against an expected normal.
64. On the material before me it appears that the only assessment in which such an examination was performed occurred in October 2003 where a rehabilitation consultant found a loss of half normal range of movement of the cervical spine and quarter normal range of movement of the lumbar spine.
65. There is no convincing evidence before me that Mr Rubelj’s situation in respect of the range of movement of either his cervical or lumbar spine is any less restricted than at October 2003, and perhaps an appropriate current assessment may even have found some deterioration.
66. Therefore, I accept that at the time of his application Mr Rubelj had a loss of half normal range of movement of his cervical spine and I also accept his evidence that he suffers frequent neck pain. This means that he had an impairment rating of 10 points under Table 5.1 of Schedule 1B of the Act.
67. In addition, I accept that at the time of his application Mr Rubelj had a loss of one quarter normal range of movement of the lumbar spine. I also accept his evidence that he suffers back pain most of the time and the pain is often made worse by physical activities. I am satisfied that he suffers pain with prolonged sitting or standing. This means that he had an impairment rating of 10 points under Table 5.2 of Schedule 1B of the Act.
68. Therefore, at the time of the application, Mr Rubelj had an impairment rating of 20 points which means that he had satisfied the requirements of s 94(1)(b) of the Act.
69. Although I have found that Mr Rubelj had the necessary impairment rating required for DSP I consider that, for completeness, it is helpful to consider his functional impairment in respect of his depression.
70. At the time of his application the evidence was that Mr Rubelj had suffered depression for several years and that despite antidepressant medication continued to suffer symptoms.
71. Mr Rubelj said in his oral evidence that his condition had been relatively stable until early 2008 when, because of financial difficulties and a motor vehicle accident in April 2008, his depression got worse so that he was referred to a psychologist for additional treatment.
72. I also note that in January 2008 Mr Rubelj was referred to a psychiatrist who diagnosed Dysthymia with Major Depression and suggested an increase in the dose of medication. The inference I take from this is that in January 2008 Mr Rubelj’s previously chronic, but stable, depression had deteriorated.
73. I am satisfied that the evidence points to a conclusion that at the relevant time Mr Rubelj suffered from depression which was fully documented, diagnosed, investigated and treated. There is no convincing evidence before me that suggests that at that time any further medical treatment was likely to have led to significant functional improvement, and therefore I am satisfied that his chronic depression was stabilised within the meaning of the Act. Further, I accept that the condition was permanent as defined by the Act.
74. The fact that Mr Rubelj required additional treatment when his condition deteriorated in 2008, in my view, does not preclude a conclusion that at the relevant time his depression was stable and permanent and therefore eligible for the assignment of an impairment rating.
75. The difficulty, however, is that at the relevant time Mr Rubelj’s functional impairment in respect of depression had not, in my view, been satisfactorily assessed.
76. In the JCA report of 30 July 2008 the assessor did not consider Mr Rubelj’s depression was stabilised on the basis that Mr Rubelj required further treatment for the deterioration of his previously stable condition and made no functional assessment.
77. Although there has been no satisfactory assessment of the effect of depression on Mr Rubelj’s functional capacity to allow an assignment of an appropriate impairment rating I am satisfied that there is sufficient evidence before me that this condition was likely to have had a significant impact on his work capacity.
78. The final issue to consider is whether at the relevant time Mr Rubelj had a continuing inability to work.
79. In the JCA report of 27 September 2007 the assessor considered that Mr Rubelj’s work capacity was temporarily limited to 0-7 hours per week until 27 September 2008, but that his baseline and future capacity to work in respect of his permanent conditions was 15-22 hours.
80. The JCA report of July 2008 contained the same assessment as to Mr Rubelj’s temporary (until 30 January 2009) and future work capacity despite the assessor having accepted Mr Rubelj had an impairment rating of 10 for his spinal conditions. I find the fact that the assessments of Mr Rubelj’s capacity to work are the same, despite the assessors’ differing conclusions as to the conditions that were fully diagnosed, treated and stabilised, puzzling, notwithstanding they had been undertaken 10 months apart.
81. For the reasons I have noted above it is my view that the assessor in 2008 had underestimated the nature and severity of Mr Rubelj’s permanent impairment both from his cervical and lumbar conditions and had not considered the effects of his depression prior to the deterioration of the condition in 2008.
82. In view of the fact I have found that Mr Rubelj’s functional impairment warrants the assignment of an impairment rating of at least 20 points I think that it is appropriate that his future/baseline work capacity be reduced to a lower level which means less than 15 hours per week.
83. It follows that at the time of his application for DSP Mr Rubelj did have a continuing inability to work and therefore satisfied the requirements of s 94(1)(c)(i) of the Act which means that at the time of his application he did qualify for DSP.

DECISION

84. For reasons set out above:
    • (i) The decision under review is set aside, and
    • (ii) In substitution I find that the preferable decision is that at the time of his application for DSP on 26 September 2007 Mr Rubelj satisfied the requirements of s 94(1) of the Act and so that he did qualify for DSP.
      

I certify that the 84 preceding paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

Signed: ..............[sgd]..................................................................

Associate

Date of Hearing 3 December 2008

Date of Decision 22 January 2009

Appearance for the Applicant Self-represented

Appearance for the Respondent Ms S Mantaring, Centrelink Legal Services and Procurement Branch