Shabo and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 299 (16 April 2010)

Last Updated: 28 April 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 299

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/4765

GENERAL ADMINISTRATIVE DIVISION		)
	Re		Zayya Shabo

Applicant

And

Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs

Respondent

DECISION

Tribunal

Jill Toohey, Senior Member Dr Maxwell Thorpe, Member Dr Hadia Haikal-Mukhtar, Member

Date of Written Reasons 27 April 2010

Date of Decision 16 April 2010

Place Sydney

Decision

The Tribunal sets aside the decision of the Social Security Appeals Tribunal and finds instead that the applicant qualified for disability support pension from 13 June 2008.

...................[sgd]...........................
Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension - whether applicant had impairment rating of 20 points under Impairment Tables – whether the applicant’s conditions were fully diagnosed, treated and stabilised - whether applicant had continuing inability to work - combined effect of applicant’s back and psychiatric conditions mean that he had a continuing inability to work – decision of the Social Security Appeals Tribunal is set aside – applicant eligible for disability support pension from the date of claim

Administrative Appeals Tribunal Act 1975

Social Security Act 1991 – s.94

REASONS FOR DECISION

27 April 2010

Jill Toohey, Senior Member Dr Maxwell Thorpe, Member Dr Hadia Haikal-Mukhtar, Member

1. These written reasons are based on the transcript of the hearing with the addition of relevant background and legislation, and minor amendments for clarity of expression. The reasons for the decision have not been changed from those delivered orally at the conclusion of the hearing.
2. Mr Zayya Shabo seeks review of a decision made by Centrelink on 27 January 2008 and affirmed by the Social Security Appeals Tribunal (SSAT) on 22 September 2008 to refuse his application for disability support pension. On 9 October 2008, Mr Shabo asked this tribunal to review that decision.
3. Mr Shabo suffers from three conditions. First, a lower back problem that causes him pain and difficulty in walking; secondly, abdominal problems following surgery which he underwent after being shot in the stomach in 2005; and thirdly, depression. There is no dispute that Mr Shabo suffers from each of these conditions. The question is whether he qualified for disability support pension as at 13 June 2008, when he lodged his application with Centrelink, and for 13 weeks after that date, to 12 September 2008.
4. To qualify for a disability support pension, Mr Shabo must meet each of the requirements in section 94(1) of the Social Security Act 1991 (the Act). Section 94(1) relevantly provides that a person is qualified for DSP if she or he has:

(a) a physical, intellectual or psychiatric impairment of 20 points or more under the Impairment Tables in Schedule 1B of the Act: s 94(1)(a) and (b); and

(b) a continuing inability to work, meaning he is unable to work for at least 15 hours each week: ss 94(2)(c) and 94(5).

5. To be given an impairment rating, a condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. It must be considered permanent, meaning that once it has been diagnosed, treated and stabilised, it will more likely than not persist for more than two years. A condition is considered fully stabilised if significant functional improvement with our without reasonable within the next two years in unlikely (see: Introduction to the Impairment Tables).
6. The evidence before us about each of Mr Shabo’s conditions are: his oral evidence; a report and oral evidence of Dr Dwight Dowda, occupational physician; medical reports from Mr Shabo’s general practitioner, Dr Emil Guirguis, from consultant orthopaedic surgeon, Dr Medhat Guirgis, and from Dr Max Ellis; job capacity assessments and, most recently, a report from Dr Samir Benjamin, consultant psychiatrist. We also have the documents provided by the respondent under s 37 of the Administrative Appeals Tribunal Act 1975 (“T documents”).
7. Dealing with each of Mr Shabo’s conditions in turn, and firstly with the abdominal condition which, as the respondent has conceded, is largely uncontroversial.
8. Mr Shabo was shot in the stomach in Fairfield in 2005. His injury required two operations, the first to remove the bullet, the second to perform a splenectomy and distal pancreatectomy. There is no dispute, and we are satisfied, that this condition is fully treated, diagnosed and stabilised. We rely for that finding on the medical reports and the assessments of the job capacity assessors in July 2008 and June 2009. The evidence of Mr Shabo’s general practitioner, Dr Guirguis, is that this condition is generally well managed and has minimal functional impact. We accept the submissions of the respondent that all of the medical opinion supports a nil rating for this condition.
9. Turning to the lower back condition, the respondent concedes that, if we are satisfied this condition is fully diagnosed, treated and stabilised, then it is properly rated 10 points on the assessment tables. We agree with that rating. Dr Guirgis, orthopaedic specialist, on 11 August 2009 rated this condition 20 points but we prefer the evidence of Dr Dowda, who has assessed it at 10 points. Dr Dowda has described the back condition in detail, including showing us the instrument he used to measure the range of Mr Shabo’s movement, and we have had the benefit of hearing Dr Dowda’s oral evidence. We find that Mr Shabo’s back condition is appropriately rated 10 points on the tables.
10. The contentious issue in respect of Mr Shabo’s back is whether it was fully treated, diagnosed and stabilised at the claim period. An MRI in May 2008 showed degenerative disc change and it seems largely uncontentious that the back condition existed at that point. The issue really is whether the condition was fully treated at the relevant time. Mr Shabo’s general practitioner, Dr Guirgis, reported on 10 June 2008 that Mr Shabo may need injections or an operation in the future. The SSAT found that Mr Shabo had not received local injections or an operation, that they might be required, depending on his response to physiotherapy, and that his back condition was therefore not fully diagnosed, treated and stabilised.
11. Mr Shabo told the SSAT he was still having physiotherapy. He told this tribunal in January this year that he had undergone physiotherapy. For reasons which are not clear, Mr Shabo has declined to provide details of the physiotherapist so that the dates of his treatment can be confirmed. This certainly seems odd to us but we do not draw any particular or adverse conclusion from Mr Shabo’s refusal; it has simply left us without any evidence about the physiotherapy.
12. We place greatest weight on the report of Dr Dowda, called by the respondent, who states clearly in his report of 29 January 2009 that Mr Shabo’s lumbar spondylosis was fully diagnosed and treated as at the date of claim and within 13 weeks.
13. We note that Dr Dowda confirmed in oral evidence that little would have changed in the nine months between the claim period and when he saw Mr Shabo in January 2009. We accept that the evidence about the treatment is perhaps at least open to argument as to whether the back condition was fully treated at the claim date but we are satisfied on balance that a fair reading of the evidence, and relying on Dr Dowda, leads to the conclusion that Mr Shabo’s back condition was fully treated, diagnosed and stabilised at the claim period.
14. Turning to the depression, Mr Shabo has a depressive disorder that was subsequent to the shooting incident and appears to be also related to his back condition. He had some sessions with a psychologist after having been in hospital and, more recently, he had some sessions with a psychologist at the request of Centrelink. The respondent says that this condition was not fully treated, diagnosed and stabilised at the claim period and cannot be rated.
15. Dr Guirgis, the general practitioner, reported in June 2008 that Mr Shabo was being treated with counselling and antidepressants and that a psychiatric review was planned. The evidence is that Mr Shabo had had three counselling sessions by the time of the claim period. The SSAT noted that Mr Shabo was not under any plan, that he had not been formally assessed, that a future psychiatric was planned and therefore that his condition was not fully treated and stabilised and could not be rated.
16. Dr Dowda appropriately did not rate the depressive condition because it is not a matter within his expertise. Dr Benjamin, who is a psychiatrist, first saw Mr Shabo in 2006 in relation to his victim’s compensation claim arising out of the shooting. Dr Benjamin did not see Mr Shabo for treatment until June 2009 when his general practitioner referred him for treatment. Dr Benjamin has now seen Mr Shabo six times, seven times if you count the first occasion in 2006. He has diagnosed residual post traumatic stress disorder with evidence of adjustment disorder with depressed mood from back pain. Dr Benjamin has reported that Mr Shabo’s condition has stabilised and been fully treated and that it was unlikely there would be significant improvement in the foreseeable future, with or without further psychiatric intervention.
17. In answer to whether Mr Shabo has a continuing inability work, Dr Benjamin stated in his report “Yes, his psychiatric condition has remained unchanged for two years”.
18. The respondent submits that Mr Shabo had had only three counselling sessions at the time of the claim period and that this condition could therefore not be said to be fully treated, diagnosed and stabilised. We understand that submission but we do not agree. Dr Benjamin says Mr Shabo has had persistent but fluctuating psychiatric symptoms for the previous four years, that is, back to early 2006. There is no other psychiatric evidence before the Tribunal contrary to Dr Benjamin’s opinion. We are satisfied that a fair reading of his report supports the conclusion that Mr Shabo’s psychiatric condition was fully treated at the claim period.
19. It seems to us to be in the nature of a psychiatric condition that it may fluctuate and that it may need treatment for many years, and that may well be the case with Mr Shabo. It is very difficult to draw a line at any particular point in time as to when a condition could be said to be fully treated. It seems to us that it is fair to find that Mr Shabo’s psychiatric or psychological condition was fully treated at the claim period.
20. We accept Dr Benjamin’s uncontradicted assessment that Mr Shabo’s depression should be rated 10 points. This means that we find that Mr Shabo meets the rating of 20 points required by the Act.
21. Mr Shabo must also have a continuing inability to work to qualify for disability support pension. Work, in the context of qualification for DSP 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.

22. The impairment must itself be sufficient to prevent the person from doing any work independently of a program of support within the next two years, and either is sufficient to prevent the person from undertaking a training activity within the next two years, or 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 two years.
23. Mr Shabo tried to work at a friend’s service station briefly but told us that he fell down on the second day when he bent down to wipe something from the floor. He says he can work for three hours a day and the respondent does not take issue with this. Mr Shabo has told us that at the relevant time (the claim period), he would have about three good days and week and three to four bad days. I should say at this point that we have no reason not to accept the evidence that Mr Shabo has given us about his conditions and about how they affect him.
24. Dr Guirguis, the orthopaedic surgeon, assessed Mr Shabo as being unable to do any work that would stress his lower back, but Dr Guirguis does not specify anything in terms of hours; he does not say anything about what Mr Shabo could do or not. We do not think that this report assists us either way.
25. We note that the first job capacity assessment in July 2008 was that Mr Shabo could do less than 15 hours per week at that time and more with intervention, and the assessment in June 2009 was that he could 15 to 22 hours, increasing with intervention. The important report to us is Dr Dowda, who has given a detailed report and oral evidence. His evidence is that he can find no reason that Mr Shabo could not do 15 hours per week by reason of his back condition, and within the limitations of his disability. It seems to us that Dr Dowda did not minimise the limitations that Mr Shabo suffers.
26. We asked Dr Dowda about the three to four bad days each week that Mr Shabo said he experienced at the claim period but Dr Dowda still believes Mr Shabo could work even on those days within the limitations of his back condition. We have some doubts about that assessment but we do not need to reach a conclusive finding about it. The reason for that is that Dr Dowda stated in his report, and confirmed in oral evidence that whether or not Mr Shabo’s psychological status would impact on his capacity remains to be decided by psychiatric assessment, that being an area outside his expertise. Dr Benjamin says that Mr Shabo had a continuing inability to work at the claim period and that was based on his psychiatric assessment.
27. There is no evidence contrary to Dr Benjamin’s opinion about this and we have no reason not to accept it. We are satisfied that the combined effect of Mr Shabo’s back and psychiatric conditions is such that he has a continuing inability to work within the meaning of the Act.
28. The Tribunal set asides the decision of the SSAT and finds instead that Mr Shabo qualified for disability support pension from 13 June 2008.

I certify that the 28 preceding paragraphs are a

true copy of the reasons for the decision

herein of Senior Member Jill Toohey, Dr Maxwell Thorpe and Dr Hadia Haikal-Mukhtar

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

Diana Weston Associate

Date of Hearing 15 January and 16 April 2010
Date of Decision 16 April 2010
Date of Written Reasons 27 April 2010

Applicant Self-represented

Representative for the Respondent: Ms Glenda Heggen, Centrelink Advocacy Branch