Broun and Secretary, Department of Social Services (Social services second review) - [2020] AATA 868

Broun and Secretary, Department of Social Services (Social services second review) [2020] AATA 868 (17 April 2020)
Division:GENERAL DIVISION
File Number(s): 2019/2863
Re:Josefina Broun
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:17 April 2020
Place:Brisbane

The Tribunal affirms the decision under review.
................[SGD].....................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – application of Social Security (International Agreements) Act 1999 - whether severely disabled - decision under review affirmed
LEGISLATION
Acts Interpretation Act 1901 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (International Agreements) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
CASES
Cowan and Secretary, Department of Social Services [2018] AATA 1328
Hamdallah and Secretary, Department of Social Services [2017] AATA 2032
Mitchell and Secretary of the Department of Social Services [2017] AATA 2562
Secretary, Department of Families, Housing and Indigenous Affairs v Mahrous [2013] FCAFC 75
REASONS FOR DECISION
Member D K Grigg
17 April 2020
INTRODUCTION & CLAIM HISTORY

Ms Broun is a New Zealand citizen.[1]
[1] Exhibit 1, T Documents, T10, page 141, Certificate of New Zealand Citizenship.
On 21 September 2018, Ms Broun lodged a claim for the Disability Support Pension (“DSP”) with Services Australia (formerly known as the Department of Human Services) (“Centrelink”).[2] Attached to her claim were various medical reports which indicate that Ms Broun had the following medical conditions:[3]
·coronary atheroma[4]
·bilateral vitreous detachment[5]
·left ankle condition[6]
·a whiplash neck injury[7]
·hip condition[8]
·lumbar spine pain[9]
[2]           Exhibit 1, T Documents, T10, pages 106 – 139, Centrelink screen capture and DSP application.
[3]Exhibit 1, T Documents, T11, pages 178-194, DSP application dated 20 September 2018; Medical evidence supplied by Ms Broun to Centrelink.
[4]           Exhibit 1, T Documents, T11, pages 179 – 180, CT report dated 6 October 2016.
[5]           Exhibit 1, T Documents, T11, page 181, medical certificate of Dr Srdjan Macanovic dated 10 November 2017.
[6]           Exhibit 1, T Documents, T11, page 182, radiograph report dated 26 March 2018.
[7]           Exhibit 1, T Documents, T11, page 183, medical certificate of Dr Srdjan Macanovic dated 18 April 2018.
[8]           Exhibit 1, T Documents, T11, page 186, ultrasound report dated 22 May 2018.
[9]           Exhibit 1, T Documents, T11, page 187, medical certificate of Dr Srdjan Macanovic dated 14 July 2018; page 188, CT report dated 17            August 2018; and page 189, medical certificate for CTP           Insurance Claims dated 28 August 2018.
On 8 October 2018, Centrelink arranged for Ms Broun to have an appointment with a psychologist to assess the functional impact of her medical conditions.[10] In the psychologist’s opinion Ms Broun was not eligible for the DSP because her conditions were not fully diagnosed, treated and stabilised. The medical evidence indicated that Ms Broun was still awaiting neurological and orthopaedic assessment and physiotherapy treatment. The assessor also noticed that there was no medical evidence to suggest that Ms Broun had undertaken or completed optimal treatment and that with reasonable treatment significant functional improvement in her ability to function was likely to occur within the next two years.[11]
[10] Exhibit 1, T Documents, T12, pages 195 – 196, DSP medical assessment recommendation dated 8 October 2018.
[11] Exhibit 1, T Documents, T12, pages 195 – 196, DSP medical assessment recommendation dated 8 October 2018.
Based on the medical assessment, Centrelink rejected Ms Broun’s claim for DSP on the ground that she did not qualify as “severely disabled” pursuant to the Social Security (International Agreements) Act 1999 (Cth) (“IAA”).[12]
[12] Exhibit 1, T Documents, T13, pages 197-198, Centrelink Notice dated 8 October 2018.
Ms Broun sought a review of Centrelink’s decision by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful.[13]
[13] Exhibit 1, T Documents, T15, pages 202-208, Decision of ARO dated 5 November 2018.
Ms Broun then lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal. The SSCSD rejected Ms Broun’s claim and affirmed the ARO’s decision on 16 April 2019.[14]
[14] Exhibit 1, T Documents, T2, pages 3-22, Decision and Reasons for Decision of SSCSD dated 16 April 2019.
Ms Broun has sought a review of the SSCSD’s decision by this Tribunal.[15]
[15] Exhibit 1, T Documents, T1, pages 1-2, Application for Second Review of Decision dated 22 May 2019.
On 13 June 2019 Centrelink arranged for Ms Broun to have a further appointment to assess the functional impact of her medical conditions.[16] The physiotherapist assessor recommended that Ms Broun have a job capacity assessment (“JCA”) to further assess her medical eligibility for the DSP. As far as the Tribunal is aware no further JCA occurred.[17]
[16] Exhibit 1, T Documents, T36, pages 699-702, DSP medical eligibility assessment recommendation dated 13 June 2019.
[17] Transcript dated 10 March 2020, pages 31-33.
ISSUES FOR DETERMINATION
The issues to be determined by this Tribunal are:
(a)whether Ms Broun is entitled to claim DSP in Australia; and, if yes,
(b)the criteria by which Ms Broun is to be assessed in order to qualify for DSP.
RELEVANT LEGISLATION
The legislation relevant to an application for DSP in Australia is contained in the Social Security Act 1991 (Cth) (the “Act”) and the Social Security (Administration) Act 1999 (Cth) (the “Administration Act”).
Section 29 of the Administration Act identifies, relevantly, that a claim for a social security payment under the Act may only be made by a person who:
(a) is an Australian resident; and

(b) is in Australia.
Section 94(1) of the Act relevantly prescribes that to qualify for DSP under the Act the following requirements must be met (“Section 94 Requirements”):
(a)the person has a physical, intellectual or psychiatric impairment;
(b)the person’s impairment is of 20 points or more under the Impairment Tables [contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”)][18]; and
[18] A legislative instrument made under the Act: see Social Security Act 1991 (Cth), section 26(1).
(c)one of the following applies:
(i)the person has a continuing inability to work;
…
(e) the person either:
(i) is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension;
…
Given that Ms Broun is a citizen of New Zealand, the IAA and the Agreement on Social Security between the Government of Australia and the Government of New Zealand (“NZA”) contained in Schedule 3 to the IAA are also relevant to her DSP application.
IS MS BROUN ENTITLED TO CLAIM DSP IN AUSTRALIA?
Operation of the International Agreements Act (IAA)
This Tribunal discussed the operation of the IAA in Hamdallah and Secretary, Department of Social Services [2017] AATA 2032 (“Hamdallah”) as follows:
[14] The current version of the IAA, in force from July 2017, states that it commenced on 20 March 2000.[19] The long title for the IAA provides that it is an “Act to give effect to international social security agreements, and for related purposes.”
[15] The original Agreement on Social Security between the Government of Australia and the Government of New Zealand contained in Schedule 3 of the IAA, came into force on 1 July 2002 (“2002 NZA”). The 2002 NZA was in effect up until a new NZA was tabled in the Parliament on 7 February 2017, which came into force on 1 July 2017 (“2017 NZA”).[20]
[16] The 2017 NZA has some substantive differences to the 2002 NZA. For example:
(a)       Article 5 has been amended to define New Zealand residents in     Australia on Special Category Visas as Australian residents,       allowing them to claim the benefits covered by the Agreement; and
(b)       Article 12(4), which provided in the 2002 NZA that “No person shall           be entitled to claim a disability support pension under this Agreement unless he or she has accumulated an aggregate of    more than 10 years of residence in Australia and/or New Zealand” has now been deleted.
[19]If an Act or a provision of an Act is expressed to come into operation on a particular day (whether the expression "come into operation" or "commence" is used), it comes into operation at the start of the day: Acts Interpretation Act 1901 (Cth), s 3.
[20]          2017 NZA, art 27.
As Ms Broun lodged her claim for DSP after 1 July 2017, her qualification for DSP is to be determined in accordance with the 2017 NZA.[21]
[21] See art 26(2) of the 2017 NZA and arts 12(4) or 14(2) of the 2002 NZA.
The IAA forms part of the social security law in Australia.[22]
[22] IAA, s 4.
Section 3 of the IAA provides that:
(1) Unless a contrary intention appears, an expression that is used in the Social Security Act 1991 has the same meaning, when used in this Act, as in the Social Security Act 1991.
(2) A reference in this Act (other than the reference in section 4) to the social security law is a reference to this Act, the Social Security Act 1991 and any other Act that is expressed to form part of the social security law.
(3) A reference in this Act to a provision of the social security law is a reference to a provision of this Act, the Social Security Act 1991 or any other Act that is expressed to form part of the social security law.
(emphasis added)
Schedule 3 to the IAA contains the 2017 NZA. The preamble to the 2017 NZA provides that Australia and New Zealand agreed to enter into the agreement:
WISHING to strengthen the existing friendly relations between the two countries, and
DESIRING to coordinate the operation of their respective social security systems and to enhance the equitable access by people covered by this Agreement to specified social security benefits provided for under the laws of both countries…
Article 2(1)(a) of the 2017 NZA establishes that the 2017 NZA applies to legislation, such as the Act, that applies to or affects the DSP.
Section 6 of the IAA states that the provisions of the 2017 NZA have effect “despite anything in the social security law” (which includes the Act), in so far as the provision is in force and affects the operation of the social security law.[23]
Residency Requirement for DSP
[23] IAA, ss 6(1) and (2).
Does Ms Broun satisfy the residency requirements under Section 94(1)(e) of the Act
Was Ms Broun an Australian resident? [s 94(1)(e)(i), Act]
Section 7(2) of the Act provides that a person is an Australian resident if they are a person who:
(a)resides in Australia; and
(b)is one of the following:
(i)an Australian citizen;
(ii)the holder of a permanent visa;
(iii)a special category visa holder who is a protected SCV [Special Category Visa] holder.
To be a SCV holder Ms Broun must have been in Australia on 26 February 2001.[24]
[24] The Act, ss 7(2A)-(2D).
Ms Broun first entered Australia on 21 July 2000 pursuant to a visa subclass 444, which is a temporary visa that allows New Zealand citizens to visit, study, stay and work in Australia.[25] Ms Broun does not hold a permanent visa or a protected SCV. Therefore, Ms Broun does not satisfy the definition of Australian resident under section 7(2)(b) of the Act and is not residentially qualified for DSP under the Act.
Did Ms Broun have 10 years qualifying Australian residence, or have a qualifying residence exemption for a disability support pension? [s 94(1)(e)(ii), Act]
[25] Exhibit 1, T Documents, T37, page 715, Centrelink records.
Section 7(5) of the Act provides that a person has 10 years qualifying Australian residence if and only if:
(a) the person has, at any time, been an Australian resident for a continuous period of not less than 10 years; or
(b) the person has been an Australian resident during more than one period and:
(i) at least one of those periods is 5 years or more; and
(ii) the aggregate of those periods exceeds 10 years.
Ms Broun does not have 10 years qualifying residence in Australia and does not qualify for an exemption because she is not, and was not, a refugee.[26]
[26] Exhibit 1, T Documents, T10, page 173-175, International Movement Records from 1 January 2000 to 1 January 2014. See also sections 7(6) and 7(6AA) of the Act.
Therefore, Ms Broun does not meet the residential requirements for DSP under the Act.
Does Ms Broun satisfy the residency requirements under the 2017 NZA?
The 2017 NZA needs to be considered because it has effect “despite anything in the social security law” which includes the Act.[27]
[27] See 2017 NZA, art 2(1)(a)(ii); and IAA, ss 4 and 6(1) referred to above.
The 2017 NZA applies to persons who are Australian or New Zealand residents.[28]
[28] 2017 NZA, art 3.
Article 5 of the 2017 NZA sets out what is meant by “Australian resident”:
1.         “Australian resident” has the meaning given to that term in the social           security law of Australia but for the purposes of the Agreement also      includes a New Zealand citizen who is not the holder of an Australian     permanent visa but is lawfully residing in Australia on a special category            visa. In deciding whether a person is residing in Australia, regard must be           had to the following factors:
(a)        the nature of the accommodation used by the person in Australia;
(b)       the nature and extent of the family relationships the person has in   Australia;
(c)      the nature and extent of the person’s employment, business or   financial ties with Australia;
(d)      the nature and extent of the person’s assets located in Australia;
(e)     the frequency and duration of the person’s travel outside Australia;   and
(f)      any other matter relevant to determining whether the person intends   to remain permanently in Australia;
and “residence in Australia” has a corresponding meaning.
Pursuant to article 12(1) of the 2017 NZA:
1.         Where a person to whom this Agreement applies has claimed an              Australian benefit under this Agreement and has accumulated:
(a)        a period as an Australian resident that is less than the period   required to qualify that person for that benefit under the legislation   of Australia;
(b)        a period of working age residence in Australia equal to or greater   than the period identified in accordance with paragraph 3; and
(c)        a period of working age residence in New Zealand.
then:
That period of working age residence in New Zealand shall be deemed to be a period in which that person was an Australian resident only for the purposes of meeting any minimum qualifying periods for that benefit set out           in the legislation of Australia.
…
3.         The minimum period of Australian working age residence to be taken into account for the purposes of paragraph 1(b) shall be as follows:
a.   for the purposes of an Australian benefit payable to a person present long term in New Zealand, the minimum period shall be one year of which at least six months must be continuous; but
b.   for the purposes of an Australian benefit payable to a person present long term in Australia there will be no minimum period.
“Working age residence” is defined in article 5(5) of the 2017 NZA as:
“working age residence” means a period of residence in the territory of a Party from the age of 20 until the qualifying age for age pension in Australia or the qualifying age for New Zealand Superannuation, whichever is relevant, (up to a maximum of 45 years). It does not include any period deemed pursuant to Article 8 or Article 12 to be a period in which a person was an Australian resident or a New Zealand resident. For the purposes of Articles 9, 10 and 13, if a person’s period of working age residence would, apart from this point, be a number of whole months, or a number of whole months and a day or days, the period is to be increased so that it is equal to the number of months plus one month.
The Tribunal has found that Ms Broun does not satisfy section 7(2) of the Act and, as a result, does not satisfy section 94(1)(e) of the Act. However, considering the 2017 NZA, it is not in dispute that Ms Broun lawfully resides in Australia and the Secretary accepts that at the time of her DSP claim Ms Broun had an aggregate of more than 10 years Working Age Residence in Australia and/or New Zealand.[29]
[29] Exhibit 3, Secretary’s Statement of Facts, Issues and Contentions dated 22 November 2019, page 11 [5.35].
By virtue of section 6 of the IAA, Articles 5 and 12 have the effect of overriding sections 7(2) and 94(1)(e) of the Act, resulting in Ms Broun satisfying the residency requirement for her DSP claim and entitling her to claim DSP in Australia.[30]
THE CRITERIA BY WHICH MS BROUN IS TO BE ASSESSED TO QUALIFY

[30]This was confirmed by the Full Federal Court in Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous [2013] FCAFC 75, [51]. See also discussion in Hamdallah and Secretary, Department of Social Services [2017] AATA 2032, [32]-[33].
FOR DSP
The Tribunal must consider whether Ms Broun is:
(a)required to satisfy the requirements set out in both section 94 of the the Act and the 2017 NZA; or
(b)only required to satisfy the requirements set out in the 2017 NZA.
Does Article 2(2) of the 2017 NZA override the requirements in sections 94(1)(a)-(c), or just section 94(1)(c) of the Act?
The Secretary contends that Ms Broun must satisfy both Article 2(2) of the 2017 NZA and sections 94(1)(a)-(b) of the Act.[31]
[31] Exhibit 3, Secretary’s Statement of Facts, Issues and Contentions dated 22 November 2019, page 12 [5.38].
Criteria to Qualify for DSP under the Act and the 2017 NZA
As referred to in paragraph 12, section 94(1) of the Act relevantly prescribes that to qualify for DSP under the Act, the following requirements must be met (“Section 94 Requirements”):
(a)the person has a physical, intellectual or psychiatric impairment;
(b)the person’s impairment is of 20 points or more under the Impairment Tables [contained within the Determination;[32]
(c)the person has a continuing inability to work.
[32] A legislative instrument made under the Act: see Social Security Act 1991 (Cth) s 26(1).
Article 2(2) of the 2017 NZA provides that:
For the purposes of this Agreement an Australian disability support pension … shall be limited to cases where:
(a) the person is severely disabled;
(b) the person was a resident of one of the Parties at the date they
became severely disabled; and
(c) the person, prior to the date of severe disablement, was residing in the territory of the other Party for a period of not less than one year at any time.
(emphasis added)
“Severely disabled” is defined, relevantly, in Article 1(m) of the 2017 NZA to mean a person who:
(i)has a physical impairment, a psychiatric impairment, an intellectual impairment, or two or all of such impairments, which makes the person, without taking into account any other factor, totally unable:
(ii) to work for at least the next 2 years; and
(iii)unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program…

“Date of severe disablement” is defined, relevantly, in Article 1(e) of the 2017 NZA to mean:
the date a person who applies for a disability support pension or supported living payment was first assessed as meeting the criteria for a disability support pension or supported living payment under this Agreement or, where evidence supports an earlier date, the competent institutions may agree on an earlier date.
The Secretary contends that a person must satisfy paragraphs 94(1) (a) and (b) of the Act and Article 2(2) of the 2017 NZA in order to qualify for DSP on the basis that Article 2(2) does not override or affect paragraphs 94(1)(a) or (b) of the Act.[33] There are differing opinions in the Tribunal on this issue. This Tribunal has previously decided that Ms Broun only need satisfy Article 2(2) of the 2017 NZA to qualify for the DSP.[34]
[33] Exhibit 3, Secretary’s Statement of Facts & Contentions dated 19 November 2019, page 12 [5.39].
[34] See Hamdallah and Secretary of the Department of Social Services [2017] AATA 2032; Mitchell and Secretary of the Department of Social Services [2017] AATA 2562 and Cowan and Secretary, Department of Social Services [2018] AATA 1328.
Article 2(2) of the 2017 NZA expressly limits the DSP to people who meet the three criteria contained therein. Article 2(2) applies to Ms Broun. It is not in dispute that, at a minimum, Ms Broun must meet the criteria in Article 2(2) to qualify for the DSP.
The Tribunal will focus on the criteria in Article 2(2) of the 2017 NZA at the outset before considering whether Ms Broun also need to satisfy sections 94(1)(a) – 94(1)(c) of the Act.
IS MS BROUN “SEVERELY DISABLED”?
Requirements for Severe Disability
There are 3 requirements to be met under the definition of “severely disabled” in Article 1(m) of the 2017 NZA.
The first requirement is that Ms Broun has a physical impairment, a psychiatric impairment or an intellectual impairment. The second requirement is that Ms Broun’s impairment/s makes her, without taking into account any other factor, totally unable to work for at least the next 2 years. The third requirement is that Ms Broun’s impairment/s makes her, without taking into account any other factor, totally unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program.
Does Ms Broun have an impairment?
“Impairment” has the same meaning in Article 1(m) of the 2017 NZA as it does in section 94(1)(a) of the Act.[35] The Determination defines “impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[36]
Ms Broun’s Medical Conditions
[35] IAA, s 3(1).
[36] Determination, s 3.
Mental Health Condition
In February 2019 Dr Srdjan Macanovic, General Practitioner, reported that Ms Broun was suffering from post-traumatic stress disorder (“PTSD”) and that she had been referred to a psychologist.[37]
[37] Exhibit 1, T Documents, T19, page 248, medical certificate dated 19 February 2019; page 322, letter from Dr Macanovic to Dr Fox dated 19 February 2019.
In April 2019 Dr Macanovic confirmed that Ms Broun was currently attending psychological sessions with psychologist Dr Alan Fox.[38]
[38] Exhibit 1, T Documents, T19, page 408, medical certificate dated 12 April 2019.
During the hearing Ms Broun provided the Tribunal with a letter from Dr Fox dated 5 September 2019. In that letter Dr Fox states:[39]
[39] Exhibit 5, Letter of Dr Alan Fox dated 5 September 2019.
(a)he had seen Ms Broun on 6 occasions;
(b)Ms Broun’s diagnosis is:
(i)PTSD (moderate/ongoing);
(ii)Adjustment disorder with mixed anxiety and depression (chronic/moderate/ongoing);
(iii)Chronic pain issues;
(c)Ms Broun’s “conditions are ongoing and likely to last for more than the next two years”;
(d)In his opinion Ms Broun “is unlikely to get better enough to sustain employment and more likely her condition will worsen”;
(e)Ms Broun’s treatment “is focussed on reducing impacts and improving management”; and
(f)Ms Broun is “severely disabled by her conditions”.
Heart condition
In November 2018 Associate Professor Artifur Rahman reported that Ms Broun was stable from a cardiac viewpoint and that he would follow up with her in 12 months.[40]
[40] Exhibit 1, T Documents, T16, page 333, report of Associate Professor Rahman dated 28 November 2018.
At the hearing Ms Broun informed the Tribunal that her condition was stable and she is on ongoing medication.[41]
[41] Transcript dated 10 March 2020, pages 22, 23, and 26.
Stroke condition
On 4 May 2018 Ms Broun was reviewed in the neurology clinic at the Gold Coast University Hospital. Dr Kee Meng Tan, Director of Neurology, reported that:
(a)Ms Broun had complained of left-sided headache and neck pain associated with sensory disturbance of the left upper and lower limbs;
(b)an MRI of Ms Broun’s brain demonstrated subcortical infarction of the right corona radiate; and
(c)he recommended that Ms Broun try low-dose amitriptyline or pregabalin.[42]
[42] Exhibit 1, T documents, T11, page 184, report of Dr Kee Meng Tan dated 8 May 2018.
Hip condition
In May 2018 an ultrasound of Ms Broun’s pelvis in May 2018 showed no significant abnormality.[43]
[43] Exhibit 1, T documents, T19, page 360, ultrasound report dated 24 May 2018.
An ultrasound of Ms Broun’s left hip in May 2018 showed bursitis.[44]
[44] Exhibit 1, T documents, T11, page 186, ultrasound report dated 22 May 2018.
Foot condition
In November 2017 Dr Macanovic reported that Ms Broun still suffers with a pain in her foot, her left hand and her neck (following a motor vehicle accident) and that she was awaiting neurology and orthopaedic assessment.[45]
[45] Exhibit 1, T documents, T11, page 181, medical certificate of Dr Macanovic dated 10 November 2017.
In March 2018 a radiograph and ultrasound of Ms Broun’s left ankle and foot showed mild spurring at the medial aspect of the tibia joint and at the dorsal midfoot joints and suggested fasciitis.[46]
[46] Exhibit 1, T documents, T11, page 182, radiograph report of 26 March 2018.
A podiatrist reported that Ms Broun had post tibial tendinopathy and plantar fasciitis.[47]
[47] Exhibit 1, T documents, T16, page 379, the Athletes Foot patient footwear recommendation.
In May 2019 an x-ray of Ms Broun’s left foot showed hallux valgas (i.e. a bunion) but no significant degenerative changes.[48]
[48] Exhibit 1, T documents, T31, page 671, x-ray report dated 31 May 2019.
Eye condition
Following a motor vehicle accident Ms Broun suffered from vitreous detachment. In April 2016 she reported an altered sensation to the left side of her face, increasing pain to the eye and left side of the head. Ms Broun was referred to an ophthalmologist for review.[49]
[49] Exhibit 1, T documents, T16, page 396, GCUH emergency department report dated 24 April 2016.
There is no evidence that Ms Broun has been reviewed by an ophthalmologist.
Spinal (Cervical, Thoracic and Lumbar) condition
On 18 April 2018 Dr Macanovic reported that in relation to Ms Broun’s whiplash injury, he had recommended physiotherapy treatment.[50]
[50] Exhibit1, T documents, T11, page 183, medical certificate of Dr Macanovic dated 18 April 2018.
Dr Macanovic reported in July 2018 that Ms Broun had been suffering with chronic lower lumbar spine back pain and that her condition would benefit from physiotherapy treatment.[51]
[51] Exhibit 1, T documents, T11, page 187, medical certificate of Dr Macanovic dated 14 July 2018.
A CT of Ms Broun’s spine in August 2018 showed a disc bulge at the L4/5 and L5/S1 levels and mild impingement on the traversing bilateral L5 nerve roots.[52]
[52] Exhibit 1, T documents, T11, page 188, CT report dated 17 August 2018.
In August 2018 Dr Macanovic reported that Ms Broun was taking painkillers and having physiotherapy for her lumbar spine back pain and bilateral shoulder pain. Additionally, Dr Macanovic reported that Ms Broun’s whiplash injury was reducing her neck movement.[53]
[53] Exhibit 1, T documents, T11, page 189, medical certificate dated 28 August 2018.
In October 2018 Dr Macanovic reported that Ms Broun had a considerable amount of pain in her lower back, that she was currently taking Endep and Panadol Osteo, and awaiting a neurosurgeon’s opinion.[54]
[54] Exhibit 1, T documents, T14, page 201, medical certificate of Dr Macanovic dated 9 October 2018.
In November 2018 an x-ray of Ms Broun’s thoracic spine indicated she had a compression fracture of the T11 vertebral body with 30% loss of anterior height.[55]
[55] Exhibit 1, T documents, T16, page 211, x-ray report dated 15 November 2018.
On 28 November 2018 Dr Macanovic reported that he had referred Ms Broun to a chronic pain clinic.[56]
[56] Exhibit 1, T documents, T16, page 212, medical certificate dated 28 November 2018.
The Interdisciplinary Persistent Pain Centre at the Gold Coast informed Dr Macanovic in November 2018 that Ms Broun had been assessed as a category 2 or 3 client and that the treatment pathway involved, among other things, a focus on encouraging an active, self-management approach to improving quality of life.[57]
[57] Exhibit 1, T documents, T19, page 331, letter from Interdisciplinary Persistent Pain Centre to Dr Macanovic 29 November 2018.
In December 2018 Ms Broun was reviewed by Dr Jonathan Dearness, Neurologist and Clinical Leader, Neurosurgical Screening Clinic. In Dr Dearness’ opinion:[58]
(a)Ms Broun’s reporting of chronic pain feelings and paraesthesia were not linked to any spinal nerve pathology;
(b)the behaviour of symptoms is not predictable;
(c)there was no indication that surgical intervention would be of any benefit and she does not have any functional neurological deficits or any evidence of a serious structural fault in her spine;
(d)given the pain in her body, he had encouraged Ms Broun to attempt to accept the fact that she has pain from a musculoskeletal in injury which is chronic but to get on with living as best she could; and
(e)it would be appropriate for her to be seen by the persistent pain clinic.
[58] Exhibit 1, T documents, T28, page 648, medical report from Dr Dearness to Dr Macanovic dated 30 May 2019.
In February 2019 Mr Dave Cross, physiotherapist, reported that although Ms Broun reported ongoing back pain she did not report any functional issues (emphasis added). Mr Cross encouraged Ms Broun to increase her general physical activities and prescribed stretches. Mr Cross reported that Ms Broun may benefit from pain management as she seemed to be in a chronic pain state although she reported her pain was intermittent in nature and had no clear aggravating factors or patterns.[59]
[59] Exhibit 1, T documents, T16, page 325, letter from Mr Cross to Dr Macanovic dated 19 February 2019.
In May 2019 Dr Macanovic reported that Ms Broun suffers with persistent pain that limits her ability to do any housework and she struggles with daily household chores. He reiterated that Ms Broun had been referred to a pain clinic for further management.[60]
[60] Exhibit 1, T documents, T26, page 629, letter from Dr Macanovic dated 30 May 2019.
In October 2019 Ms Broun attended a PACE Pain Management Program conducted by the Gold Coast Persistent Pain Clinic. Ms Broun told the Tribunal that this program involved attending the clinic twice a week for four weeks to participate in group education sessions where they discussed techniques to manage pain. Ms Broun said the program had not assisted in reducing her pain.[61] Ms Broun completed the program on 31 October 2019.[62]
[61] Transcript dated 10 March 2020, pages 14 and 16.
[62] Exhibit 2, Applicant’s Statement of Facts, Issues and Contentions dated 9 March 2020, page 11.
On 27 November 2019 Dr Macanovic reported that Ms Broun’s PTSD and chronic pain would be “lifelong” and that “no further treatment in regards to chronic pain will be able to cure it”.[63] (emphasis added)
[63] Exhibit 2, Applicant’s Statement of Facts, Issues and Contentions dated 9 March 2020, page 12.
At the hearing Ms Broun told the Tribunal that she treats her pain by taking one Panadol Osteo tablet three times a day.[64]
[64] Transcript dated 10 March 2020, page 29.
Conclusion on impairments
The Secretary accepts that Ms Broun suffered from impairments.[65]
[65] Exhibit 3, Secretary's Statement of Facts and Contentions dated 22 November 2019, page 21 [5.69].
Considering the above medical evidence, the Tribunal concludes that Ms Broun suffers from spinal and psychological impairments.
In relation to the other medical conditions referred to in some of the medical reports (namely, bilateral vitreous detachment, foot condition, hip condition, asthma), there is either insufficient medical evidence before the Tribunal or the evidence indicates that the condition is having minimal or no impact on Ms Broun’s ability to function. Due to the paucity of medical evidence available in relation to what functional impact, if any, these conditions are having, the Tribunal is unable to consider any conditions other than the mental health condition and spinal condition for the purposes of this DSP application.
Does Ms Broun’s impairments make her, without taking into account any other factor, totally unable to work for at least the next 2 years?
The definition of “severely disabled” does not specify that the person concerned must be totally unable to work in any specific role. There is no limitation placed on the meaning of work.
Article 1(m) of the 2017 NZA provides that the person must be “totally unable” to work. There is no dispute raised that “totally unable to work” means unable to do any work at all. The evidence before the Tribunal is limited on this point.
In relation to the mental health condition Dr Fox indicates that Ms Broun may not be able to “sustain” employment. Dr Fox did not give evidence at the hearing. It is unclear what he means by “sustain employment”. Dr Fox did not elaborate or explain why he held that view. Further, this does not mean that Ms Broun is “totally unable” to do any work (which is the requirement in Article 1(m) of the 2017 NZA). While Dr Fox is a registered psychologist, it is not known to what extent, if any, he is qualified to comment on a person’s ability to undertake any form of work and for what period.
In relation to the spinal condition, there is no indication that this condition is having an impact on Ms Broun’s ability to function or that it has made Ms Broun “totally unable” to do any work. The report of Mr Cross states that Ms Broun reported no functional issues. Dr Dearness reported there was no functional neurological deficit and no serious structural fault.
After the hearing Ms Broun provided a Basic Rights Queensland questionnaire completed by Dr Macanovic in January 2020.[66] In the questionnaire Dr Macanovic reports that the spinal condition means Ms Broun cannot work eight hours per week. This does not mean Ms Broun cannot undertake any work. It is also at odds with the physiotherapist’s report and report of the neurologist.
[66] Exhibit 6, Basic Rights Queensland questionnaire completed by Dr Macanovic on 14 January 2020.
The Tribunal finds that this criterion is not satisfied.
Do Ms Broun’s Impairments make her, without taking into account any other factor, unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program?
Dr Macanovic referred to there being “no cure” for Ms Broun’s chronic pain. This does not mean that Ms Broun would be unable to benefit within the next two years from participation in a program of assistance or a rehabilitation program.
There is a distinct lack of evidence from Ms Broun’s treating medical practitioners regarding the extent to which Ms Broun could undertake any form of work or rehabilitating treatment.
The latest medical certificate from Dr Macanovic is silent on this point.[67]
[67] Exhibit 2, Applicant’s Statement of Facts, Issues and Contentions dated 9 March 2020, page 12.
Dr Macanovic reported in the Basic Rights Queensland questionnaire that Ms Broun’s spinal condition is unlikely to significantly improve over the next two years. This does not mean that Ms Broun may not gain some benefit from further pain specialist treatment.[68]
[68] Exhibit 6, Basic Rights Queensland questionnaire completed by Dr Macanovic on 14 January 2020.
Dr Fox reported that Ms Broun was “severely disabled” but again he does not explain why he formed this conclusion or what he means by “severely disabled”. It is also inconsistent with his findings that Ms Broun’s psychological conditions were “moderate”.
Dr Fox did indicate that the treatment provided at that time was to reduce the impacts Ms Broun’s conditions were having. There is no indication that that treatment was to stop. Although Dr Fox suggested Ms Broun’s conditions might worsen, it is not explained why.
As Ms Broun told the Tribunal, if the PACE Program was insufficient for her needs, why was she not referred for further, more invasive, pain management, such as by a medical pain specialist? The Tribunal also notes that her pharmacology treatment is very limited. In addition, Dr Dearness’ examination of Ms Broun showed that her spinal conditions and chronic pain had no impacts on Ms Broun’s mobility, and that her chronic pain was essentially unexplained.
In these circumstances the Tribunal cannot find that Ms Broun would be unable to benefit within the next two years from participation in a program of assistance or a rehabilitation program.
Conclusion on severe disability
There is no persuasive evidence before the Tribunal to indicate that Ms Broun will be unable to work at all within the next two years and that she would be unable to benefit from a program of assistance or a rehabilitation program.
The Tribunal finds that Ms Broun is not “severely disabled” as defined in the 2017 NZA and therefore does not qualify for DSP.
Given this finding, it is unnecessary for the Tribunal to reconsider the position it has held in other matters regarding the interplay of section 94(1)(b) and (c) of the Act and Article 2(2) of the 2017 NZA.
DECISION
Ms Broun’s claim fails because she did not qualify for DSP under the 2017 NZA.
The decision under review is affirmed.

I certify that the preceding 96 (ninety-six)paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

........................[SGD].................................
Associate
Dated: 17 April 2020

Date of hearing: 10 March 2020

Applicant: By telephone

Solicitors for the Respondent: Mr Eskerie

Sparke Helmore Lawyers

Date of hearing:	10 March 2020
Applicant:	By telephone
Solicitors for the Respondent:	Mr Eskerie
Sparke Helmore Lawyers