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

Sahbegovic and Secretary, Department of Social Services (Social services second review) [2017] AATA 464 (11 April 2017)
Division:GENERAL DIVISION
File Number: 2015/6875
Re:Mrs Mensura Sahbegovic
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Mr Conrad Ermert, Member
Date: 11 April 2017
Place:Melbourne

The Tribunal affirms the decision under review.
[sgd]…..........................................................
Mr Conrad Ermert, Member
SOCIAL SECURITY - Disability Support Pension - physical, intellectual or psychiatric impairments - whether conditions fully diagnosed, fully treated and fully stabilised - whether impairments attract 20 impairment points - decision affirmed
LEGISLATION
Social Security Act 1991
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mr Conrad Ermert, Member
INTRODUCTION

On 1 April 2015, Mrs Mensura Sahbegovic, the Applicant, lodged with Centrelink a claim for Disability Support Pension (DSP). Centrelink is the service provider for the Secretary, Department of Social Services, the Respondent. In her claim Mrs Sahbegovic listed as her disabilities and illnesses:
·high blood pressure;
·prolapsed disc (bulged);
·nervous and mental system; and
·psychological disorders.
On 12 August 2015 an officer of Centrelink rejected the claim as Mrs Sahbegovic had been assessed as not having an impairment rating of 20 points or more. Mrs Sahbegovic sought a review of the decision. On 15 September 2015 an Authorised Review Officer (ARO) of Centrelink found that Mrs Sahbegovic’s impairments attracted only 15 impairment points, that she did not meet the program of support requirements and she had a work capacity, within two years, with appropriate intervention of 15 to 22 hours per week.
Mrs Sahbegovic sought a review of the ARO decision. On 24 November 2015 the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) affirmed the ARO Decision.
On 29 December 2015 Mrs Sahbegovic lodged an application for a Second Review of the AAT1 decision stating as her reasons “I believe a different decision should be made as my condition is deteriorating and I’m feeling worse every day”.
This matter is the review of the AAT1 decision.
HEARING
Mrs Sahbegovic represented herself at the hearing with the assistance of an interpreter in the Bosnian language. She gave her evidence under affirmation. Mr Cameron Munro of the Department of Human Services represented the Respondent.
I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-Documents). In addition I had the following Supplementary T-Documents:
·ST1 – report of Dr Chris Gorgioski dated 26 March 2015 (possible 26 March 2016);
·ST2 – email request for Job Capacity Assessment report dated15 May 2016;
·ST3 – Additional Medical Evidence for Disability Support Pension Record form completed by Dr George Wahr dated 8 September 2016;
·ST4 – Job Capacity Assessment Report dated 16 September 2016;
·ST5 – email from Job Capacity Assessor dated 20 September 2016; and
·ST6 – computer screens – Program of Support.
For Mrs Sahbegovic I took into evidence:
·Exhibit A1 – report of Dr George Wahr dated 6 April 2016; and
·Exhibit A2 – report of Dr George Wahr dated 26 October 2016.
For the Respondent, I took in for consideration the Secretary’s Statement of Facts and Contentions dated 24 January 2017.
LEGISLATION
The relevant legislation is contained in the:
·Social Security Act 1991 (the Act),
·Social Security (Administration) Act 1999 (the Administration Act), and
·Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).
Section 94(1) of the Act details the requirements for qualification for DSP as follows:
(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…
Relevant Period
Section 4(1) of Schedule 2 of the Administration Act requires Mrs Sahbegovic’s qualification for DSP to be determined from the date of her claim to a date 13 weeks thereafter. In this case the relevant period is 1 April 2015, the date of the claim, to 1 July 2015, that being a period of 13 weeks.
ISSUES
The issues I must determine are whether, at the relevant period:
·Mrs Sahbegovic had physical, intellectual or psychiatric impairments; and if so
·the impairments attract a rating of at least 20 points under the Impairment Tables; and if so
·Mrs Sahbegovic has a continuing inability to work.
EVIDENCE
In her evidence, Mrs Sahbegovic said that she suffered a traumatic time during the wars in Bosnia in 1992. She left Bosnia and came to Australia via Germany. Mrs Sahbegovic said she suffered an injury at her work place. The injury brought back all the traumatic times from Bosnia. She received compensation for the injury but her physical and psychological conditions have deteriorated.
Mrs Sahbegovic said her husband works. Her daughter provides help for her. She has memories and flashbacks from the past. She can’t sleep properly. She is aggressive during the day. She has headaches and cannot work. Mrs Sahbegovic said she has nightmares and things are “very dark in me”.
In answer to questions relating to her back condition Mrs Sahbegovic said she suffered her back injury in 2004. She saw Mr Brian Barrett, orthopaedic surgeon, in 2006. Her next review by a specialist was in 2016. Mrs Sahbegovic agreed that Mr Barrett reported that she was fit for light duties in 2006 but that her condition has worsened since then.
Mrs Sahbegovic agreed with her evidence to the AAT1 hearing that she does not have pain every day but suffers pain if she walks, sits or lies down for a long time. Mrs Sahbegovic added that her pain is constant and gets worse is he sits for a long time. Asked if her back pain is worse since July 2015 Mrs Sahbegovic said the condition is not the same, it is gradually getting worse. She said that at times the pain is so bad she has to lie on the floor.
Mrs Sahbegovic also agreed with her evidence to the AAT1 hearing that she:
·has difficulty bending to pick up a light item at knee height;
·is able to walk, sit and drive for 30 minutes but says she has to change her body position in that time;
·is able to complete light household tasks; and
·is able to shower and dress herself.
In response to questions about her mental health condition Mrs Sahbegovic said:
·she first went to see Dr Wahr in 2005 or 2006;
·she is able to go shopping by herself, adding that the shops are very close;
·the record of her regular overseas travel is accurate, adding that she always goes with family;
·when overseas she visits her parents, some relatives, some of her husband’s relatives and some friends;
·she lives with her husband and daughter;
·she gets on “OK” with her husband and daughter when she is well but otherwise she is aggressive;
·she goes for local walks with her husband;
·she goes for family outings with her husband and daughter but not very often.
Mr Munro referred Mrs Sahbegovic to paragraph 21 of the reasons for the AAT1 decision which records “Mrs Sahbegovic told the tribunal she has trouble concentrating for long periods although the tribunal noted she was able to participate fully in the hearing, which exceeded 50 minutes in length”. Mrs Sahbegovic responded saying that she was in so much fear at the hearing it was like being a different person.
Mrs Sahbegovic agreed that she had not participated in a Program of Support.
TRIBUNAL CONSIDERATIONS
Impairments (section 94(1)(a) of the Act)
The Respondent accepts that Mrs Sahbegovic suffers a number of impairments and that she satisfies the provisions of section 94(1)(a) of the Act. I am satisfied that the medical evidence supports this concession and I find accordingly.
Impairment Rating (section 94(1)(b) of the Act)
I will now consider each condition and determine whether Mrs Sahbegovic’s impairments attract an impairment rating of 20 or more points in order to satisfy section 94(1)(b) of the Act.
Section 6(3)(a) of the Impairment Tables states that an impairment rating can only be assigned an impairment if the impairment is permanent. Section 6(4) provides that a condition is permanent if the condition:
(a)has been fully diagnosed by an appropriately qualified medical practitioner, and
(b)has been fully treated, and
(c)has been fully stabilised.
Spinal Disorder
In considering this condition I note the following reports relating to the relevant period:
·Mr B Barrett, orthopaedic surgeon, dated 12 October 2006 which records:
Following these clinical orthopaedic and radiological examinations of Mrs. Sahbegovic I consider she has sustained painful ruptures involving her two lower lumbar intervertebral discs at the L4-5 and L5-S1 levels, producing her increasing lower back pain and left sciatica. …
In my opinion to avoid further increase of her lumbar spinal injury, I consider she should be involved either in work that does not include any prolonged stooping or heavy lifting situations or she should go off work altogether if this type of work is not available.
·Dr C Gorgioski dated 13 December 2012 which records:
Diagnosis: Lumbar spine disc prolapse … Current treatment: analgesics, physio … Future/planned treatment: physio … Current symptoms: Sciatica, Chronic pain …Impact on ability to function: Can’t do physical work, Can’t stand up too long, Can’t walk too long …
·Dr C Gorgioski dated 8 May 2015 which records:
Diagnosis: Chronic back pain, Prolapse L4/5, L5/S1 discs, sciatica … Current treatment: Analgesics, Past treatments: Physiotherapy, Analgesics, Hydrotherapy … Future/planned treatment: The same – conservative … Current symptoms: Lower back pain, sciatica … Impact on ability to function: Can’t stand for too long, no lifting, no bending … Within the next 2 years the effect of this condition on the patient’s ability to function is expected to: Will deteriorate, no treatment will improve it.
·Job Capacity Assessment Report dated 9 July 2015 which records:
Spinal Disorder … Fully Diagnosed, Fully Treated, Fully Stabilised … The client is able to walk for approx. 30 minutes before requiring a short rest and continuing, is able to set and drive for 30 mins, is able to undertake grocery shopping tasks (can carry light bags, but would receive assistance with heavier tasks), is able to cook and perform light household tasks (however daughter would undertake vacuuming), no difficulties with showering/dressing, able to stand from a seated position independently, able to pick up an item on the ground. In relation to impact of spinal condition – client maintains independence and community access; use of medication intermittently when required. Treating doctors report note: can’t stand for long and no lifting.
The Respondent accepts that the spinal disorder is fully diagnosed in the relevant period but contends that the condition was not fully treated nor fully stabilised.
The condition was diagnosed by Dr Barrett, an orthopaedic surgeon, in 2006. The continuing presence of the condition has been verified by Dr Gorgioski in 2012 and 2015. I am satisfied that the condition is fully diagnosed.
In his 2015 report Dr Gorgioski notes the past treatment for the condition and prescribes the same treatment for the future. There is no medical evidence at the time of the relevant period of recommended treatment other than a continuation of analgesics and physiotherapy. There is no evidence that further reasonable treatment is likely to result in a significant functional improvement enabling Mrs Sahbegovic to undertake work in the next two years. I am satisfied that, in the relevant period, the condition was fully treated and fully stabilised and find accordingly.
As the spinal condition is fully diagnosed, fully treated and fully stabilised I am able to assess the impairment from the condition by reference to the Impairment Tables. In the report of 9 July 2015 the Job Capacity Assessor recommends a rating of five points should be assigned to the condition. The AAT1 found that the condition attracted a rating of five points. The Respondent contends that a rating of no more than five points should be applied.
For an Impairment Rating of 10 points Table 4 – Spinal Function requires the following descriptors to be satisfied:
The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a)the person is unable to sustain overhead activities (e.g. accessing items over head height); or
(b)the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c)the person is unable to bend forward to pick up a light object placed at knee height; or
(d)the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
I have no evidence that Mrs Sahbegovic is unable to sustain overhead activities. Mrs Sahbegovic testified that she is able to shower and dress herself. Also I note that in the Review Outcome dated 15 September 2015 the ARO recorded:
During our discussion you told me you are able to manage above the shoulder activities such as washing your hair …
I accept there is evidence that Mrs Sahbegovic can reach over her head but the evidence does not indicate that she is able to sustain overhead activities. However there is no evidence that she can not sustain overhead activities. I am not satisfied that her condition satisfies subsection (a) of the descriptors necessary for a rating of 10 points.
There is no direct evidence regarding Mrs Sahbegovic’s ability to move her head in all directions. However her own evidence is that she can drive for 30 minutes. The ARO recorded that she can drive the car around the local area without difficulty. I am satisfied that driving a car requires a driver to turn their heads in order to watch for and be alert to traffic conditions. Accordingly, I am not satisfied that her condition satisfies subsection (b) of the descriptors necessary for a rating of 10 points.
Mrs Sahbegovic testified that she has difficulty bending forward to pick up a light object placed at knee height but demonstrated how she can manage that task. There is no evidence that Mrs Sahbegovic needs assistance to get up out of a chair. Accordingly, I am not satisfied that her condition satisfies subsections (c) and (d) of the descriptors necessary for a rating of 10 points.
I have no evidence that requires me to upset the finding of the AAT1 for this condition. Accordingly I find that Mrs Sahbegovic’s spinal condition does not attract an impairment rating of 10 points. I find that the condition attracts an impairment rating of five points.
Post Traumatic Stress Disorder (PTSD)
The Respondent accepts that the condition is fully diagnosed, fully treated and fully stabilised. This concession is supported by the reports of Dr George Wahr, a psychiatrist who has been treating Mrs Sahbegovic since 2009. I find accordingly.
The AAT1 hearing assigned a rating of 10 points to this condition. The Respondent contends that the impairment from this condition should be assigned no more than 10 points.
The appropriate Impairment Table for the consideration of this condition is Table 5 – Mental Health Condition. To attract an impairment rating of 20 points the person must have severe difficulties with most of the following:
(a)Self care and independent living;
(b)Social/recreational activities and travel;
(c)Interpersonal relationships;
(d)Concentration and task completion;
(e)Behaviour, planning and decision-making;
(f)Work/training capacity.
In considering the impairment from this condition I note the following reports relating to the relevant period:
·Dr Wahr Report dated 17 May 2015 which records:
Current Symptoms: Flashback to War, Depression, Hair pulling … Impact on ability to function: Cannot focus on tasks
·Job Capacity Assessment Report dated 9 July 2015 which records:
(1) The person has moderate difficulties with most of the following:
(a)self care and independent living;
Client neglects showering and will only shower every 3 days. Client is able to stay home by herself for majority of day however; and is able to maintain clothes washing tasks once per week. Does receive some support from daughter and husband whom she lives with particularly during period when struggles to motivate self to complete tasks.
(b)social/recreational activities and travel;
Example 1: The person goes out alone infrequently and is not actively involved in social events;
Client reports seeing friends only 2-3 times per year and that she generally avoids them. Is able to go for local walks with husband and attend familiar shopping centre.
(d)concentration and task completion;
Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).
The person is able to focus on light entertainment programs or books only and reports that she is generally able to maintain bill payments and household affairs as they are familiar to her. Would likely struggle with more complex tasks such as following assembly instructions. Constant headache and difficulties concentrating noted by client and doctor.
(e)behaviour, planning and decision-making;
Example 3: The person’s activity levels are noticeably increased or reduced. Has difficulties motivating self to shower on daily basis; spends most of time at home.
(f)work/training capacity.
Likely to have difficulties maintaining work/training due to impact of mental health condition.
I note also the report of Dr Wahr dated 6 April 2016 even though it was prepared 10 months after the end of the relevant period. The condition is long standing and I accept that the impairments resulting from the condition would not have altered significantly in that time. Dr Wahr’s report records:
Mrs Mensura Sahbegovic is a patient of mine suffering from an agitated depression of significant severity and aspects of a post-traumatic stress disorder from experiences in the War in Bosnia.
Mrs Sahbegovic has trouble with interpersonal relationships and her concentration is reduced and task completion is reduced.
Mrs Sahbegovic has difficulties planning and decision making.
Mrs Sahbegovic cannot work in any capacity and is never likely to do so.
Self Care and Independent Living
Mrs Sahbegovic testified that she lives with her husband and daughter who provide some support. She said she showers and dresses herself. She also stated that she is able to go shopping by herself to a local shopping centre. The JCA report records difficulties with motivating herself. However the evidence does not support a description of severe difficulties with self care and independent living as required for a rating of 20 points.
Social/recreational Activities and Travel
The evidence of the JCA is that Mrs Sahbegovic sees friends only two to three times per year. However Mrs Sahbegovic said that she regularly travels overseas with her family, visiting family and friends. I am not satisfied that this level of impairment satisfies the description of severe difficulty required for a rating of 20 points.
Interpersonal Relationships

Mrs Sahbegovic said that she gets on OK with her husband and daughter when she is well, otherwise she is aggressive. She agreed that she went for walks with her husband and occasionally went on outings with her husband and daughter. On her overseas travels she visits her family and friends and also her husband’s relatives. Dr Wahr records that she has trouble with interpersonal relationships.
I am not satisfied that Mrs Sahbegovic’s impairment satisfies the description of severe difficulty required for a rating of 20 points.
Concentration and Task Completion
Example 1 in Table 5 for a severe difficulty for this characteristic states “The person has difficulty concentrating on any task or conversation for more than 10 minutes”. When it was put to Mrs Sahbegovic that she managed to concentrate at the AAT1 hearing for over 50 minutes she responded that it was because of the level of fear she felt under the circumstances. Nevertheless, she was clearly able to focus and concentrate for a period considerably in excess of 10 minutes.
I note the report of Dr Wahr who records that Mrs Sahbegovic “Cannot focus on tasks” and “her concentration is reduced”.
On balance I am not satisfied that the evidence supports an impairment level of severe difficulty as required for a rating of 20 points.
Behaviour, Planning and Decision Making
I note the evidence of Dr Wahr who records that Mrs Sahbegovic has difficulties planning and decision making. I am not satisfied that the evidence equates to an impairment level of severe difficulty as required for a rating of 20 points.
Work/training Capacity
I note the evidence of Dr Wahr that Mrs Sahbegovic cannot work in any capacity. I accept this evidence meets the descriptor of severe difficulty required for a rating of 20 points.
Requirements for a Severe Functional Impact
In considering the individual requirements for a severe functional impact I find that the evidence supports only one of the descriptors required by the Table. I find that Mrs Sahbegovic does not have severe difficulties with most of the descriptors and she does not satisfy the requirements for a rating of 20 points.
I am satisfied that Mrs Sahbegovic satisfies the requirements for an impairment rating of 10 points and find accordingly.
Hypertension
The Respondent accepts that the condition was fully diagnosed, fully treated and fully stabilised during the relevant period. The report of Dr Gorgioski dated 8 May 2015 supports this concession and I find accordingly.
Dr Gorgioski records the condition as being generally well managed, causing minimal or limited impact. I find that the condition attracts a rating of zero impairment point.
Vertigo
In his report dated 8 May 2015 Dr Gorgioski records vertigo as a condition suffered by Mrs Sahbegovic which is generally well managed and causes minimal or limited impact. I accept that the listing indicates that the condition is fully diagnosed, fully treated and fully stabilised. I find that the condition attracts a rating of zero impairment points.
Headaches / Tinnitus / Dizziness
I have no evidence that the conditions have been fully diagnosed, fully treated and fully stabilised. I find that the conditions are not permanent in the terms of the Impairment Tables and as a consequence I am unable to assign an impairment rating to the conditions.
Gastritis / Stomach Pain / Reflux
In his report dated 8 May 2015 Dr Gogioski includes gastritis as a condition suffered by Mrs Sahbegovic. In his report of 10 June 2015 Dr Tin Nguyen, a Gastroenterologist, confirms the diagnosis and recommends “chase histology, eradicate Helicobacter if positive – also consider upper abdo ultrasound”. There is no evidence that the recommendations were pursued.
I find that the condition was fully diagnosed but not fully treated and not fully stabilised. Accordingly the condition is not permanent in the terms of the Impairment Tables and as a consequence I am unable to assign an impairment rating to the condition.
Arthritis of the Hips
In his report dated 13 December 2012 Dr Gorgioski records arthritis as a condition suffered by Mrs Sahbegovic which is generally well managed and causes minimal or limited impact. I accept that the listing indicates that the condition is fully diagnosed, fully treated and fully stabilised. I find that the condition attracts a rating of zero impairment points.
Right Shoulder Condition
I have no evidence that the condition was fully diagnosed, fully treated and fully stabilised. I find that the condition is not permanent in the terms of the Impairment Tables and as a consequence I am unable to assign an impairment rating to the condition.
Total Impairment Rating
I have found that in the relevant period Mrs Sahbegovic’s conditions attracted the following assessments:
·Spinal Disorder – five impairment points;
·PTSD – 10 impairment points;
·Hypertension – zero impairment points;
·Vertigo – zero impairment points;
·Headaches / Tinnitus / Dizziness – not permanent, unable to assign impairment points;
·Gastritis / Stomach Pains / Reflux – not permanent, unable to assign impairment points;
·Arthritis of the Hips – zero impairment points; and
·Right Shoulder Condition – not permanent, unable to assign impairment points.
The total impairment rating in the relevant period is 15 points. This is not sufficient to satisfy the requirements of subsection 94(1)(b) of the Act.
CONCLUSION
As Mrs Sahbegovic impairments do not satisfy subsection 94(1)(b) of the Act, she can not meet all the requirements of section 94(1) of the Act. As she can not meet all the requirements of section 94(1) I have no need to consider the provisions of subsection 94(1)(c) of the Act.
I find that, during the relevant period, Mrs Sahbegovic is not qualified for the receipt of DSP. This means that the decision of the AAT1 is the correct and preferable decision.
DECISION
I affirm the decision under review.

I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of
Mr Conrad Ermert

[sgd]......................................................
Associate
Dated: 11 April 2017

Date of hearing: 20 February 2017

Applicant: In person

Advocate for the Respondent:
Mr Cameron Munro

Department of Human Services

[2017] AATA 464

11 April 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal