Chen and Secretary, Department of Social Services (Social services second review) - [2019] AATA 3607

Chen and Secretary, Department of Social Services (Social services second review) [2019] AATA 3607 (17 September 2019)
Division:GENERAL DIVISION
File Number: 2017/1289
Re:Yan Chen
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member R. Pintos-Lopez
Date:17 September 2019
Place:Melbourne

The Tribunal affirms the decision under review.
......................[sgd]..................................................
Senior Member R. Pintos-Lopez
Catchwords
SOCIAL SECURITY – disability support pension – application of Social Security (International Agreements) Act 1999 - decision under review affirmed
Legislation
Social Security Act 1991
Social Security (Administration) Act 1999
Social Security (International Agreements) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Workplace Injury Rehabilitation and Compensation Act 2013
Cases
Fanning and Secretary, Department of Social Services [2014] AATA 447
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Hamdallah and Secretary, Department of Social Services [2017] AATA 2032
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous [2013] FCAFC 75
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous (No 2) [2012] FCA 1275
Cowan and Secretary, Department of Social Services [2018] AATA 1328
Tamua and Secretary Department of Social Services [2016] AATA 757
Secondary Materials
Social Security Guide Version 1.257
REASONS FOR DECISION
Senior Member R. Pintos-Lopez
17 September 2019

The Applicant seeks review of a decision made by the Social Services and Child Support Division of the Tribunal, dated 1 February 2017, which affirmed a decision of a delegate of the Respondent, dated 1 October 2016, rejecting the Applicant’s claim for a disability support pension lodged on 14 January 2016.
For the reasons that follow the decision is affirmed.
ISSUES
The issue to be decided in this application is whether the Applicant was qualified for a disability support pension at the time of her claim which was on 14 January 2016 or within 13 weeks thereafter by reason of:
(a)s 94 of the Social Security Act 1991 (Cth) (the Act); or
(b)schedule 3 of the Social Security (International Agreements) Act 1999 (Cth) (the New Zealand Agreement).
BACKGROUND PROCEDURE
The Applicant is a New Zealand citizen. She first arrived in Australia in 2003. On 3 July 2003, she obtained a subclass 444 special category visa.
From 27 March 2004 until 3 April 2016, the Applicant travelled outside Australia for short periods. She last returned to Australia on 4 April 2016 under a subclass 444 special category visa.
On 14 January 2016, the Applicant lodged a claim for disability support pension with Centrelink. As discussed below, the Applicant’s qualification period for disability support pension is to be determined during the period 14 January 2016 to 14 April 2016.
On 19 July 2016, a delegate of the Respondent made a decision to reject the Applicant’s claim for the disability support pension.
On 22 July 2016, the decision to reject the Applicant’s claim for the disability support pension was reconsidered and affirmed.
On 1 October 2016, an authorised review officer notified the Applicant of a decision to again affirm the original decision of 19 July 2016.
On 12 October 2016, the Applicant made an application to the Tribunal.
On 1 February 2017, the Social Services and Child Support Division of the Tribunal affirmed the decision.
On 7 March 2017, the Applicant applied to the Tribunal’s General Division seeking a review of the Tribunal’s earlier decision.
THE EVIDENCE
The Applicant gave evidence at the hearing, assisted by a Mandarin interpreter, and provided an affidavit, dated 11 December 2015, which had been prepared for the purposes of a proceeding in the County Court of Victoria. The evidence provided for the purposes of this application included a number of medical reports, some which were provided separately.
It is useful to set out the Applicant’s account as a chronological narrative. Her account corresponds with the medical reports and the procedural account, set out above.
A number of medical reports were provided to the Tribunal. Many of these medical reports were prepared for purposes other than the present application. Many of the medical reports considered below are outside of the Applicant’s qualification period, being the period 14 January 2016 until 14 April 2016 inclusive. Evidence such as medical reports that were prepared after the qualification period, I find are relevant insofar as they may cast light on the Applicant’s medical condition during the qualification period: see Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1], per Gyles J, Fanning and Secretary, Department of Social Services [2014] AATA 447 at [31]; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123.
Period pre-surgery
The Applicant stated that she was born in 1969. She stated that in 1998 she moved from China to New Zealand where she worked on a casual basis in a Chinese restaurant.
In 2003, she migrated to Australia. The Applicant stated that when she arrived in Australia, she was, at that time, single having separated from her former husband and had one son who lived with her.
The Applicant stated that in July 2003 she commenced working for an importing company in a full-time capacity as a picker and packer. She stated that she was in good health when she started working for that company. The Applicant stated that her work as a picker and packer involved lifting, stacking and handling of boxes containing gift items. The weight of the boxes varied, she stated that many weighed more than 10 kg and up to 23 kg. The Applicant stated that when working as a packer she had to stand at a bench and pack boxes for delivery which involved repetitively turning, bending, twisting and lifting boxes onto a bench.
The Applicant stated that in around 2010, she developed soreness in her back, which she alleged was associated with her repetitive lifting and manual handling during the period that she worked as a picker and packer. She stated that on a couple of occasions during 2010 she saw her local doctor, Dr Rouf Mirhom, and was prescribed Brufen.
The Applicant stated that in 2012 her condition became much worse. She stated that she began having pain down her right leg as well as a feeling of “heaviness” in her back. The Applicant stated that in September and October 2012, she saw a doctor who, she stated, thought the problem was being caused by an injury to her right leg and arranged for her to have scans of her pelvis and leg; those scans did not reveal any issues of medical concern.
In November 2012, she stated that she attended with Dr Mirhom. She stated that she told him that she was having pain in her right buttock, thigh and leg from the lifting at work. She stated that he prescribed anti-inflammatory medication. The Applicant stated that she saw that doctor again in 2012 and that he arranged for her to have a CT scan of her back in late December. She stated that she received the results of the scan in January 2013 and that it showed that she had suffered injuries to her discs in her lower back including a prolapse at L4/5 with compression of a nerve root and also a bulge at L3/4.
The Applicant stated that she submitted a WorkCover claim in January 2013. The claim was accepted.
On 25 March 2013, Dr George Koulouris prepared a medical report and stated that in the:
context of the clinical history of L5 radiculopathy, it is likely that the severe central canal stenosis at L4/5 secondary to moderate to severe bilateral facet arthropathy, anterolisthesis of L4 on L5, disc bulge and right paracentral protrusion account for the patient’s presenting complaint with particular mass effect demonstrated upon the emerging right L5 nerve root.
The Applicant stated that Dr Mirhom referred her to Mr Patrick Lo, a neurosurgeon. She stated that she saw the neurosurgeon in early April 2013. She stated that the neurosurgeon told her that she was suffering from a prolapsed disc at L4/5 in her lumbar spine compressing the L5 nerve root, as well as a bulge with spinal canal stenosis at L3/4. She stated that he suggested conservative treatment in the form of physiotherapy and hydrotherapy.
The Applicant stated that later in April 2013, Mr Brendan O’Brien, an orthopaedic surgeon, administered a CT guided cortisone injection into her lower back. She stated that he also arranged for her to have an MRI which confirmed the diagnosis.
She stated that in mid-2013, she travelled to China and received a further opinion about her back from a spinal surgeon in China. She stated that the surgeon in China advised her that she needed to have an operation.
The Applicant stated that she worked on light duties from January 2013 but ceased work to have her operation. She stated that she had not worked since and was terminated in June 2014 on the basis that she was not fit to return to her pre-injury duties.
Surgery and post-surgery
The Applicant stated that in June 2013, upon returning to Australia, she went again to Mr Lo. He arranged for her to have an x-ray and then recommended that she have an operation in the form of a L3-L5, double level fusion. After attending WorkCover, she stated, that approval was granted for a single level fusion and laminectomy at L4-L5.
The Applicant stated that on 14 April 2014, she underwent surgery to her back performed by Mr Lo in the form of a single level fusion and laminectomy. This was followed by hydrotherapy and physiotherapy.
The Applicant stated that in her opinion she did not believe that the operation was successful.
On 14 May 2014, a rehabilitation consultant with an organisation called Work Able Consulting prepared a document entitled “NES Vocational Assessment Report.” The report recommended that the Applicant be referred for an assessment in order to identify the most suitable office administration and retail training to assist her to return to work and that, following that, she be referred to the New Employer Services Program in order to assist her to return to employment.
In the second half of 2014, the Applicant stated that she had further CT and MRI scans which, she stated, showed that the cage had “backed out” and there was ongoing compression of nerve roots in her lumbar spine. She stated that she has also had MRI and CT scans in mid-2015 which confirmed compression of the L5 nerve root.
On 23 October 2014, Mr O’Brien prepared a medical report in which he set out the Applicant’s work history and episodes of low back pain in the course of her employment, and her consultations with various medical professionals. He stated that the Applicant presented with a somewhat flat affect moving slowly, was noted to have a normal gait and could stand on toes and heels. Mr O’Brien noted that there was a full range of movement present in the cervical spine in both shoulders. He referred to the CT scan of 31 December 2012 and the MRI of the lumbar spine on 25 March 2013. Mr O’Brien stated that physical signs:
now involve postural scoliosis within particular quite severe restriction of lateral flexion to the right but without any specific signs of nerve root compromise or radiculopathy. Indeed the signs are not diagnostic of specific pathology and given that multi-level radiological abnormality in the low lumbar spine the definite pathology of underlying pain generation cannot be defined. I would therefore conclude that this patient now suffers from chronic non-specific post-operative back and right leg pain.
Mr O’Brien stated that the Applicant’s current conservative treatment appeared appropriate. He stated that she would require long-term conservative treatment for pain management. Mr O’Brien stated further that he “would consider this patient could continue the activities of daily living without current treatment however she would not have any work capacity.”
The Applicant stated that she was disappointed with the outcome of surgery and attended other neurosurgeons for advice in 2015.
On 12 January 2015, Mr Lo provided a report in relation to the Applicant. He noted that the Applicant’s request to WorkCover for surgery was refused in 2013. She was placed on a waiting list for surgery at a public hospital. Eventually, an approval was given for a single level L4/5 minimally invasive lumbar fusion. He noted that since her surgery that the Applicant had undergone a CT scan as well as an MRI revealing adequate decompression of the L4/5 surgical site although the interbody cage had backed out slightly. At that stage, the Applicant was undergoing hydrotherapy and physical therapy and there was no further plan for surgery but that this would be reviewed in three months. Mr Lo stated that, in his opinion, the Applicant had gradually improved but had yet to reach stabilisation. He stated that the Applicant did not have a current capacity for her usual pre-injury occupation. He stated that he could not determine the Applicant’s long-term prognosis as she had yet to reach stability. He stated that her symptoms would continue to improve but that she may require further intervention both physically and surgically for the un-operated level of her spinal injury.
The Applicant stated that Mr Myron Rogers, one of the neurosurgeons, wrote a letter to Dr Mirhom and explained that the cage inserted into her lumbar spine was not sitting in an ideal position and that she was continuing to suffer from compression of a nerve root. She stated that Mr Rogers told her that she may require a revision operation and that it would be a complicated and risky procedure. She stated that Mr Rogers advised that she return to see Mr Lo for further advice about surgery. She stated that the other surgeons were unwilling to operate. She stated in her 2015 affidavit that after the “poor result from the first operation, I have lost confidence in Mr Lo.”
On 22 June 2015, Mr Rogers prepared a letter in relation to the Applicant. He noted that in February 2014, a neurosurgical colleague had operated on the Applicant in her lumbar spine at the L4 -5 level. Mr Rogers stated that he had reviewed the post-operative imaging of the lumbar spine and made three observations:
1. The pedicle screws and the interbody cage at L4-5 are in suboptimal position.
2. I suspect due to the above there is ongoing compression of the right L5 nerve root
3. There is moderate central canal and lateral recess stenosis present at L3-4.
Mr Rogers stated that “this unfortunate lady presents with persistent right sciatica that I feel is predominantly iatrogenic in nature.” I consider that, by referring to an iatrogenic sciatica, that Mr Rogers was expressing the view that the injury was caused by the medical treatment of Mr Lo.
Mr Rogers stated that the Applicant had two options in relation to the management of her sciatica, first, being referred to a pain management specialist for ongoing treatment and, second:
is further surgery and because it is a re-do surgery in an ‘unhappy’ patient I am uncertain as to what the results would be even if technically a better job was done. The procedure would require removing and resetting the internal fixation, it may or may not be possible to remove the interbody cage.
Mr Rogers noted that one of the issues that the Applicant faced at that time was finding a surgeon who was willing to take on or “inherit” the technical and chronic pain problems noting that:
this issue should be the responsibility of the surgeon who you referred this patient to on the basis that if he elects to perform this procedure he must also deal with all the potential complications.
On 16 July 2015, Mr O’Brien again provided a medical report which was prepared after a medical examination to assist in the consideration of weekly payment entitlements and a work plan. He stated his diagnosis as non-specific post-operative back and leg pain and that further investigation may demonstrate a more specific pathology. Mr O’Brien stated that he believed that the Applicant continued to be totally incapacitated and did not have work capacity.
On 19 October 2015, a medical panel, under the Workplace Injury Rehabilitation and Compensation Act 2013 (Cth), provided a document entitled “Reasons for Opinion” in relation to the Applicant. The panel noted that it was accepted that the Applicant sustained a lumbar spine and surgical scarring injury during the course of her employment with a designated injury date of 6 January 2012.
The medical panel stated that the Applicant said that she was attending a gym for mainly bike riding exercise on a regular basis, went to a pool for exercising once or twice a week and had started doing Tai Chi. The panel stated that it had been told by the Applicant that she completed all the household chores at home and could drive a car for up to 30 minutes. The panel conducted a physical examination and noted that the Applicant walked without a limp was able to stand on heels and toes.
The medical panel concluded that the Applicant was suffering from persisting dysfunction following a back injury treated surgically with referred symptoms to the right leg, but without radiculopathy, relevant to the accepted lumbar spine, surgical scarring injury. The panel opined that her medical condition had stabilised. The panel stated that it acknowledged that the Applicant had some impairment of the spine but considered that the impairment was not severe enough to be regarded as effectively a total impairment of the spine.
On 25 November 2015, Australian Super wrote to the Applicant stating that it had accepted her claim and application for total and permanent disability.
The Applicant stated that, at the time of her December 2015 affidavit, she was not working and that as a result of the injury to her back she had lost the capacity to work in her previous employment or any other similar work.
The qualification period: 14 January 2016 to 14 April 2016
On 16 February 2016, Mr David Brownbill, a consultant neurosurgeon, examined the Applicant. He noted that the Applicant had not returned to work but performed her own housework slowly and with difficulty and that she was able to drive, perform shopping (with the help of her son) and cook. He stated that she no longer gardened or went for beach walks but that she was able to shower and dress on her own. Mr Brownbill noted that his examination had shown slight scoliosis (convex to the left of the thoracic spine) and restriction of thoraco lumbar spinal extension and due to pain of right lateral flexion. In his opinion, the Applicant’s condition was stabilised, and he anticipated that ongoing pain would continue indefinitely together with the activity restrictions. He stated that further surgery with a redo fixation at L4-5 and perhaps further fusion at L5-S1 may be considered but that the outcome of such a procedure could not accurately be predicted.
On 10 March 2016, a document entitled “Job Capacity Assessment Report” was prepared and referred from Centrelink. The report noted the medical report of orthopaedic specialist Dr O’Brien of 23 October 2014. It stated that given that:
there is additional specialist opinion and clear options for considering further treatment, the condition is considered fully diagnosed, but for the purposes of this assessment under the Social Security Act, 1991, it is not considered fully treated and stable.
The assessment summary of the report stated that the Applicant had been assessed as having a partial capacity for work of 15 to 22 hours per week in the next 24 months with intervention.
On 10 March 2016, Mr Thomas Kossmann, prepared a report for the Applicant’s lawyers. Mr Kossmann set out the Applicant’s medical history. He stated that in early 2013, the Applicant was referred to Mr O’Brien who ordered an MRI. On 13 May 2013 the Applicant underwent an L4/5 epidural injection under CT guidance. Mr Kossmann stated that on 12 November 2014 the Applicant underwent an MRI lumbar spine. He stated that the Applicant told him that she had seen for other neurosurgeons in 2015 for advice. He provided a diagnosis stating failed back surgery syndrome:
with central lower back pain radiating into the right buttock and right posterior leg and calf in the setting of surgical intervention with suboptimal position of the spinal implants for severe central canal stenosis at the L4/5 level secondary to moderate to severe bilateral facet arthropathy, anterolisthesis of L4 on L5, disc bulge and right paracentral disc protrusion upon emerging right L5 nerve root.

In terms of prognosis, Mr Kossmann stated that the Applicant’s prognosis was poor and that she would continue to suffer from pain in her lumbar spine for which she would require further treatment in pain medication, anti-inflammatories, physiotherapy, hydrotherapy and possibly acupuncture. He recommended follow-up a CT and MRI of her lumbar spine to make a further assessment of the status of the internal fixation and the definitive assessment of the prognosis. Mr Kossmann stated that he considered that the Applicant was 100% incapacitated in relation to her pre-injury employment as a consequence of the physical injury and impairment of her back, which he considered would continue for the foreseeable future. Mr Kossmann opined that the Applicant would continue to suffer from pain in her lumbar spine, for which she would require further treatment pain medication and other therapies.
On 30 March 2016, Dr Mirhom provided a report in relation to the Applicant. He noted her medical history. Dr Mirhom stated that on 14 February 2014 the Applicant underwent neurosurgery decompression of L4-L5 spinal fusion with cage and stabilisation of the spondylolisthesis by screws. He stated that she recovered well and on 12 March 2014 she was referred to physiotherapy and hydrotherapy. In June 2014, she was given a certificate for light duties with restrictions as advised by the neurosurgeon in April 2014.
Dr Mirhom stated that a CT scan of 20 May 2014 noted that the left upper pedicular screw was located medial to the pedicle. In June 2014 the Applicant lost her job. He noted that an MRI of November 2014 suggested that the disc spacer (the cage) had backed out with its proximal and now sitting on the region of the right lateral recess of L5 nerve root sheath and distal right L4 nerve root sheath.
Dr Mirhom stated that she still had the same right sciatic pain referred to the right gluteal area and right thigh and was continuing to have physiotherapy and hydrotherapy. He stated that on examination she could walk straight with no problem although limited in long distance. Dr Mirhom stated that she could flex to 20 cm from the floor but was not advised to do this repeatedly. He noted that the Applicant had been referred to neurosurgeon Mr Rogers who, he says, advised that she would need further surgery although he was not ready for a redo surgery. He stated that in his opinion the Applicant could be retrained for light duty jobs such as desk jobs or simple computer jobs with flexibility to sit and stand as comfortable on a part-time basis with 20 hours a week being suitable. Dr Mirhom stated that her social, domestic and recreational activities were limited because of her injury. He stated that she could not lift 5 kg and could not do repetitive bending. Dr Mirhom noted that her treatment involved analgesics as required and walking. He stated that in relation to the Applicant’s prognosis that it “will stay stable unless operated again which is difficult to find another surgeon at would step on another surgeons work.”
Post-qualification period
On 19 July 2016, Centrelink prepared a letter for the Applicant stating that her claim for disability support pension had been rejected. The decision stated that she did not satisfy the normal residence rules for the disability support pension and that her claim had been assessed under the Social Security Agreement between Australia and New Zealand. The decision included that the Applicant was not eligible for disability support pension because she was able to work eight or more hours a week within the next two years.
On 29 August 2016, Dr David Middleton prepared a medical report and set out questions and answers including a request for diagnosis and prognosis of the Applicant’s injuries. He stated that the Applicant had suffered from an aggravation of underlying age-related, degenerative lumbar spine disease; likely to include some derangement of the L4/5 intervertebral disc. Dr Middleton stated that the prognosis was poor, and he opined, the suboptimal outcome of surgery is likely to have been contributed to by delays in funding for the treating neurosurgeon’s personal recommendation on request. He stated that there remained the possibility of redo surgery, which would likely involve the L3/4 and L5/S1 discs above and below the level of surgery or whether further conservative management is recommended. Dr Middleton stated that her previous employment had rendered the Applicant permanently incapacitated for her preinjury duties on a full-time or part-time basis. He opined that the Applicant no longer had the safe physical capacity to perform her preinjury duties or any of the work that she performed in the past.
The Tribunal was provided with a document entitled “Health Professional Advisory Unit Opinion”, prepared by an authorised review officer of the Department of Human Services, with a referral dated 8 September 2016, considered the question of an appropriate impairment rating. The opinion stated that it:
should be considered that the customer would be unable to work in a full-time capacity. While the evidence does not support the 20 point criteria, she is clearly impaired as a result the spinal condition and it is likely that employment beyond several hours a day would likely exacerbate her symptoms and result in decreased functioning.
On 1 October 2016, an authorised review officer of the appeals’ branch of Centrelink prepared a letter for the Applicant stating that the author had reviewed the decision made on 19 July 2016 and found that the decision was correct and that her review was unsuccessful.
The reviewer stated that in order to qualify for the disability support pension under the International Agreement between Australia and New Zealand that the Applicant needed to have permanent conditions which could be assigned rating 20 points or more under the Impairment Tables and that she must be severely disabled. The decision included that the Applicant’s spinal condition had been assigned rating of 10 points which precluded a higher rating of 20 points being assigned under the impairment tables and thus the Applicant was not qualified for the disability support pension. The reviewer also found that the Applicant had a capacity to work eight hours a week or more within the next two years.
On 4 October 2016, Mr Paul D’Urso provided a report from a referral from Dr Mirhom. He found that the Applicant was symptomatic of L3-4 degenerative change, as well as possible pseudoarthrosis at the L4-5 level. Mr D’Urso recommended that the Applicant be admitted to hospital for a CT myelogram in order to fully assess her condition and determine what therapeutic options might be then possible.
On 6 September 2017, Dr Middleton provided what he described as a follow-up report. He examined the Applicant on 31 August 2017 and noted information provided by the Applicant.
Dr Middleton noted that on 8 March 2017, the Applicant had further surgery by Mr D’Urso, who performed a redo microdiscectomy at L4/5 extending the procedure to include an L3/L5 spinal fusion, having had preoperative “lumbar spine modelling”. The Applicant was discharged from hospital five days post-operatively and commenced hydrotherapy stating that she still had leg pains and that the surgery did not appear to have been beneficial and that she was complaining about the “pedicle screws that felt uncomfortable.” He noted that the surgeon explained to the Applicant that once the fusion was solid and confirmed by a CT scan around March 2018 that the metal would be removed.
Dr Middleton noted that the Applicant continued to suffer with lower back pain, radiating mainly into the right leg and extending down back of the right calf, where the Applicant described the pain as a sharp pain. The Applicant described suffering a similar but less severe and less frequent pain down the left leg. In addition, the Applicant stated to him that she suffered acute, sudden, severe pains, mainly in the right but occasionally in left leg that lasted a few minutes. The report noted that the Applicant had obtained a real estate agent license in early 2017 and that she had worked with a Chinese real estate agent limited to Chinese speaking clients being paid commission if she sold a house.
Dr Middleton stated that, in the context of his report dated 29 August 2016, that his prognosis and diagnosis is expressed in the report had proved to be correct. He concurred with the opinion of the surgeon that the Applicant’s condition would not be considered stable earlier than in early 2018, usually accepting a 12 month recovery period, by which time the post-operative condition could be considered a stable and that it was his opinion that there will be a permanent incapacity as a result of her work-related injury. He stated further that the Applicant’s prior employment had rendered the Applicant:
permanently incapacitated for her preinjury duties on a full or part-time basis, having required to surgical procedures, the outcome being failed spinal surgery that was undertaken as part of the treatment of a work-related injury.
On 12 October 2017, Mr Kossmann provided a further report to the one dated 10 March 2016. He concluded that the Applicant’s prognosis regarding her lumbar was poor and that, in his opinion, she would continue to suffer from pain in her lumbar spine for which she would require further treatment with pain medication, anti-inflammatories, physiotherapy, hydrotherapy and possibly acupuncture. Mr Kossmann opined that the Applicant had no work capacity to return to her preinjury employment.
On 2 March 2018, Dr Ron Sher provided a medical report finding that there had been a prior L3/4 and L4/5 interior/interbody fusion and posterior fusion intact pedicular screws. He stated that unfortunately:
metallic streak artefact obscures detail at the L3/4 and L4/5 levels, but I note in relation to the right L4/5 foramen which has been surgically widened with partial excision of the adjacent facet joint, there is non-specific soft tissue change in the region.
On 28 March 2018, Dr Middleton provided a further report after a medical re-examination of the Applicant on 20 March 2018. In response to the questions provided to him he stated that in his prior reports:
I also predicted that the diagnosis is failed spinal surgery syndrome, where the question was as to whether the redo surgery would prove successful in reducing levels of pain, which on my recent assessment [the Applicant] indicated that her current symptoms were unchanged…”
Dr Middleton stated that it was clear that the Applicant’s prognosis continued to be poor and that she reported no significant benefit 12 months after her redo surgery in March 2017, with an ongoing potential for further spinal surgery being required in the future. He stated that in his opinion the Applicant:
is permanently incapacitated for any type of employment with minimal physical/manual component. In theory, [the Applicant] does have some capacity to perform sedentary work; however, taking into account her incapacity, age, language, education, place of residence, skills and work experience and, in particular her very limited English reading, writing and spelling capacity, her ability to procure and maintain such employment is likely to be negligible, noting that at best, it is my opinion attendance at work would be limited to alternate days and a maximum of 12 hours per week and that a new employer would be required to support a graduated return to work plan…
On 9 May 2018, Bourke J handed down a decision in the County Court of Victoria in relation to an accident compensation claim brought by the Applicant against the Victorian WorkCover Authority. The Applicant sought leave to bring proceedings for damages in relation to loss of earning capacity. Her Honour granted leave to bring proceedings on the basis that she was satisfied that there was no rehabilitation or retraining that would be appropriate for the Applicant which would alter the situation that she had a permanent loss of earning capacity of 40% or more.
At the hearing of this application, the Applicant confirmed the ongoing medical issues that she raised in her 2015 affidavit. She stated that she continued to suffer from pain on a daily basis in her back and right leg and that she had difficulty with activities such as sitting and standing, bending, twisting or lifting.
The Applicant stated that she had continuous pain of varying severity in her lower back. She stated that she often felt exhausted by pain which was generally worse in the afternoon. She stated that her sleeping is disturbed by the pain that she often wakes up in the night because of pain and has difficulty getting back to sleep. She stated that the level of pain in her back varies with the activity. The Applicant stated that she has increased pain associated with walking more than 200 metres.
The Applicant stated that she had increased pain from sitting or standing for more than an hour. She stated that she has to move around and adjust her posture regularly and is no longer able to lift or carry heavy objects. The Applicant stated that she had been told by her doctors to avoid lifting more than five kilograms. She stated that she had to modify her activity such as shopping because of her inability to lift heavy items and pain associated with walking and standing for long periods. The Applicant stated that she had to make shorter trips to the shops and choose lighter items and that her son sometimes helped her with shopping.
The Applicant stated that she had trouble with a range of household activities. She stated that cooking was difficult for her because of the pain associated with prolonged standing. The Applicant stated that she no longer used a vacuum cleaner and had troubles with more strenuous cleaning tasks or tasks involving bending or stretching overhead.
APPLICATION
The Applicant is taken to have lodged her disability support pension claim on 14 January 2016: s 13 (1) of the Social Security (Administration) Act 1999 (Cth). The Applicant must qualify at the date of the claim, being 14 January 2016, or 13 weeks thereafter: Schedule 2, s 4(1) of Social Security (Administration) Act. Accordingly, the period in which the Applicant’s qualification for the disability support pension is to be determined during the period 14 January 2016 until 14 April 2016.
In order to qualify for the disability support pension, the Applicant must satisfy the requirements under s 94 of the Act. Section 94(1) of the Act provides:
A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person’s impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and
(d) the person has turned 16; and
(da) in a case where the following apply:
(i) the person is under 35 years of age or is a reviewed 2008‑2011 DSP starter;
(ii) the Secretary is satisfied that the person is able to do work that is for at least 8 hours per week on wages at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market;
(iii) if the person has one or more dependent children—the youngest dependent child is 6 years of age or over;
the person meets any participation requirements that apply to the person under section 94A; and
(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; or
(iii) is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A) is not an Australian resident; and
(B) is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident; and
(ea) one of the following applies:
(i) the person is an Australian resident;
(ia) the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);
(ii) the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.
In terms of the requirement for the Applicant to be an Australian resident s 7 of the Act provides:
(2) An Australian resident is 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 holder.
…
(5) 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.
…
(6) A person has a qualifying residence exemption for a social security pension (other than carer payment) or a social security benefit (other than youth allowance, austudy payment, newstart allowance, sickness allowance, special benefit or partner allowance) if, and only if, the person:
(a) resides in Australia; and
(b) is either:
(i) a refugee; or
(ii) a former refugee.
The Applicant first arrived in Australia on 3 July 2003 and obtained a subclass 444 special category visa. The Social Security Guide version 1.257 at instruction 9.2.6.280 provides that the subclass 444 special category visa is not a permanent visa and that those who hold such a visa are generally not residentially qualified for social security payments except for protected SCV holders. The Applicant does not satisfy the residency requirements or exemption as she:
(a)does not satisfy the residency requirements of s 94(1)(e) of the Act as she is not an Australian resident as defined by s 7(2) of the Act because she is not an Australian citizen and does not hold a permanent visa;
(b)is not a protected SCV holder as required under s 7(2)(b)(iii) of the Act as she was not in Australia on 26 February 2001 or for a period of 12 months within two years prior to that date;
(c)does not have a qualifying residence exemption under s 94(1)(e)(ii) and defined by s 7(5) of the Act as she did not have 10 years qualifying Australian residence; and
(d)does not have a qualifying residence exemption under s 7(6) of the Act as she was not a refugee or a former refugee.
The New Zealand Agreement
The New Zealand Agreement provides that the Applicant may be eligible to qualify for the disability support pension notwithstanding that the Applicant does not satisfy the residency requirements under s 94(1)(e) of the Act.
Article 2(2) of the New Zealand Agreement provides:
For the purposes of this Agreement an Australian disability support pension and a New Zealand invalid's benefit 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 of severe disablement; 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.
Article 1(1)(l) of the New Zealand Agreement provides that “severely disabled" means a person who:
(i) has a physical impairment, a psychiatric impairment, an intellectual impairment, or two or ail of such impairments, which makes the person, without taking into account any other factor, totally unable:
(aa) to work for at least the next 2 years; and

(bb) unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program…”

Article 1(2) of the New Zealand Agreement provides that any term not defined in the Article shall, unless the context otherwise requires, have the meaning assigned to it in the social security law of either party.
Article 5(1) of the New Zealand Agreement provides that “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.
Article 12(4) of the New Zealand Agreement provides that no person shall be entitled to claim a disability support pension under the Agreement unless they have accumulated an aggregate of more than 10 years residence in Australia and/or New Zealand.
Section 6 of the Social Security (International Agreements) Act 1999 (Cth) provides that the provisions of a scheduled international social security agreement have effect despite anything in the social security law, only insofar as the provision is in force and affects the operation of the social security law.
A question arises in relation to the operation of the New Zealand Agreement and the Act and the interrelationship between the requirements for qualification under the Agreement and the Act. Section 94(1)(a), (b) and (c) of the Act contain conditions necessary for qualification:
(a)s 94(1)(a) requires the Applicant to have a physical, intellectual or psychiatric impairment;
(b)s 94(1)(b) requires that the Applicant satisfy the Impairment Tables; and
(c)s 94(1)(c) requires, in substance, that the Applicant have a continuing inability to work.
In turn, the New Zealand Agreement contains certain conditions; in Article 2(2) it provides that the Australian disability support pension shall be limited to cases where, apart from the residency requirements, a person is severely disabled. “Severely disabled” is defined, under Article 1(1)(1) of the Agreement, to mean a person who has a physical impairment, a psychiatric impairment, an intellectual impairment or two or all of such impairments which makes the person totally unable to work for at least the next two years and be unable to benefit within the next two years from participation in a program of assistance or rehabilitation.
In Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous (No 2) [2012] FCA 1275 at [32], Logan J considered the proper construal of the Act and Agreement stating that the Agreement:
forms a schedule to an Australian Act. That means...the primary object should be to construe all of the provisions in a way which is consistent with the language and purpose of all of the provisions in the statute.
Earlier decisions have considered whether Article 2(2) of the Agreement substitutes some or all of the requirements contained in ss 94(1)(a), (b) and (c) of the Act: see for example Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous [2013] FCAFC 75: Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous (No 2) [2012] FCA 1275; Tamua and Secretary Department of Social Services [2016] AATA 757; Hamdallah and Secretary, Department of Social Services [2017] AATA 2032; and Cowan and Secretary, Department of Social Services [2018] AATA 1328. .
The Respondent submits that an Applicant must satisfy the requirements under s 94(1)(a) and (b) of the Act and Article 2(2) of the New Zealand Agreement in order to qualify for the disability support pension.
The Respondent, in its Amended Statement of Facts, Issues and Contentions, dated 10 April 2018, considered a number of earlier decisions including Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous (No 2) [2012] FCA 1275 and Tamua and Secretary Department of Social Services [2016] AATA 757. The Tribunal in Tamua determined that Article 2(2) of the Agreement was, in effect, a substitute to the requirements under ss 94(1)(a), (b) and (c) of the Act. The Respondent submitted that the Agreement and the Act ought not be construed in this way, submitting, among other things, that New Zealand citizens under the Tamua interpretation would be treated more favourably or have a lower bar than Australian citizens who apply for disability support pension. In Al-Janabi and Secretary, Department of Social Services [20171 AATA 1541, the Tribunal considered the issue and stated that it was not persuaded that Article 2(2) of the New Zealand Agreement provided an alternative means of qualification for disability support pension. I agree.
The question that arises then is: does an Applicant have to satisfy the requirements under the Act and the Agreement or does Article 2(2) of the Agreement replace at least some of the requirements under the Act?
Article 2(2) of the New Zealand Agreement contains words of qualification provides that the “purposes of this Agreement an Australian disability support pension and a New Zealand invalid's benefit shall be limited to cases where” the residency requirements are satisfied and where a person is severely disabled (emphasis added).
Article 2(2) of the New Zealand Agreement limits entitlement to Applicants who are “severely disabled”, which is defined to mean a person who has an impairment, which makes the person totally unable to work for at least the next two years and unable to benefit in that time from participation in an assistance or rehabilitation program.
Article 2(2) is directed to a person, leaving the question of impairment being a necessary condition, being “totally unable to work” for a two-year period. The degree of impairment is not addressed such that Article 2(2) does not replace the requirement in s 94(1)(b) of the Act in relation to the requirement that the Applicant satisfy the Impairment Tables. It does, however, logically overlap and replace the requirement in s 94(1)(c) of the Act that the Applicant have a continuing inability to work. A continuing inability to work and a total inability to work cover the same ground. Taking into account the restrictive words contained in Article 2(2) of the Agreement, that the disability support pension “shall be limited”, the requirement of total inability to work is both a more onerous requirement than a continuing inability to work and a replacement for s 94(1)(c) of the Act.
In order to qualify for the disability support pension, the Applicant must have, in the qualification period, being the period 14 January 2016 to 14 April 2016 inclusive:
(a)had a physical, intellectual or psychiatric impairment;
(b)satisfied the Impairment Tables; and
(c)been totally unable to work for at least the next two years and be unable to benefit within the next two years from participation in a program of assistance or rehabilitation.
On the evidence before the Tribunal, I find that the Applicant had a physical impairment being an L4-L5 disc injury and right-side sciatica that affected her during the qualification period. Each of those two impairments must be considered against the Impairment Tables and against the requirement under the New Zealand Agreement that the Applicant be totally unable to work during the qualification period.
The Impairment Requirement
The Impairment Tables are in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables Determination).
The Impairment Tables Determination contains instructions and rules for assessing impairment and the assignment of a rating. The impairment scale is from zero to thirty.
An impairment rating can only be assigned to a medical condition that is permanent. Permanent, for the purposes of the Impairment Tables Determination, means a condition that is fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years: s 6(4) of the Impairment Tables Determination.
In order to determine whether a condition is fully diagnosed and fully treated, the Tribunal ought consider:
(a)whether the condition has been fully diagnosed by an appropriately qualified doctor;
(b)what treatment or rehabilitation has occurred; and
(c)whether treatment of the condition is still continuing or is planned in the next two years: s 6(5) of the Impairment Tables Determination.
The requirement that the condition be fully stabilised means that it is unlikely that there will be any significant functional improvement in a condition, with or without reasonable treatment, within the next two years: s 6(6) of the Impairment Tables Determination
On 14 April 2014, the Applicant had surgery to her back performed by Mr Lo being a single level fusion and laminectomy. Treatment post-surgery involved hydrotherapy and physiotherapy.
The Applicant considered that the surgery had not been successful. On 22 June 2015, the Applicant’s view was supported in part by neurosurgeon Mr Rogers who stated that the pedicle screws and the interbody cage at L4-5 were in a suboptimal position. At that point in time, Mr Rogers presented two options, pain management for her sciatica, or further surgery but, he warned, that he was uncertain that surgery, even if a technically better job was done, would be successful.
On 16 July 2015, Mr O’Brien provided a medical report in which he diagnosed non-specific post-operative back and leg pain and stated that further investigation may demonstrate a more specific pathology.
On 19 October 2015, a medical panel considered that the Applicant’s medical condition had stabilised.
Within the qualification period, on 16 February 2016, Mr Brownbill, a consultant neurosurgeon, stated that further surgery with a redo fixation at L4-5 and perhaps further fusion at L5-S1 may be considered but that he could not accurately predict the outcome.
On 10 March 2016, a “Job Capacity Assessment Report”, referred to an additional specialist opinion and options for further treatment. The report stated that the Applicant’s condition was not fully diagnosed but that for the purposes of assessment under the Act, it was not fully treated and stable.
On 10 March 2016, Mr Kossmann recommended a follow-up CT and MRI of the Applicant’s lumbar spine to make a further assessment of the status of the internal fixation and the definitive assessment of prognosis.
On 30 March 2016, Dr Mirhom gave the prognosis that the Applicant’s condition would stay stable unless it was operated on again but that it would be difficult to find another surgeon for the redo.
Various medical reports prepared following the qualification period assist in drawing an inference as to whether the Applicant’s condition was fully diagnosed and fully treated and stabilised. These reports show that the Applicant had had an initial surgery on 14 April 2014, which, at least in the opinion of Mr Rogers, had been unsuccessful in treating the Applicant’s condition and that the option of a further surgery remained.
On 29 August 2016, Dr Middleton stated that there remained the possibility of redo surgery at L3/4 and L5/S1. On 28 March 2018, Dr Middleton provided a further report in which the potential for further spinal surgery was mentioned.
The Applicant had further surgery on 8 March 2017, performed by Mr D’Urso, which appears to not have resolved the Applicant’s condition. In between the end of the qualification period and March 2017, the reports assist in drawing the inference that during the qualification period, that the Applicant was in an interregnum in terms of her treatment and the stability of her condition, notwithstanding the fact that the 2017 surgery was considered unsuccessful.
On the basis of all of the evidence, I find that during the qualification period, relevantly from the period 14 January 2016 until 14 April 2016 inclusive, the Applicant did not satisfy the Impairment Tables because her condition was not permanent that is not fully treated and stabilised. The possibility of further surgery to the Applicant’s back was considered and raised as a prospect for further treatment following Mr Lo’s surgery in April 2014. The medical reports after the qualification period assist in drawing an inference that the Applicant’s condition could be treated by way of further spinal surgery. In March 2017, the Applicant did in fact have surgery.
The finding that the Applicant’s condition was not permanent as it was not fully treated and stabilised during the qualification period extends not only to the L4-5 disc injury but also to the treatment and stabilisation of the Applicant’s right-side sciatica. The medical reports make plain that the Applicant’s right-side sciatica was premised upon and may be able to be treated through further surgery.
Totally unable to work for two years
The Applicant’s application is unsuccessful as she has not satisfied the requirement that the medical condition be permanent meaning fully treated and stabilised during the qualification period. However, for completeness I also consider the question of whether the Applicant satisfies the requirement of being totally unable to work for two years from the qualification period as required by Article 2(2) of the New Zealand Agreement.[1]
[1] Article 2 (2) of the New Zealand Agreement provides a further requirement, which is not considered, in addition to the totally unable to work for two years requirement, that the Applicant be, during the qualification period, unable to benefit within the next two years from participation in a program of assistance or rehabilitation.
On the basis of the evidence, I find that the Applicant did not, during the qualification period, satisfy the requirement of Article 2(2) of the New Zealand Agreement as, during that period, the Applicant was not totally unable to work for two years from that period. Put another way, during the qualification period, the Applicant had some possibility of work up to two years from the qualification period.
On 23 October 2014, Mr O’Brien stated that the Applicant would not have any work capacity. On 16 July 2015, Mr O’Brien stated that the Applicant continued to be totally incapacitated and did not have work capacity.
On 19 October 2015 a medical panel considered that the Applicant’s impairment was not severe enough to be regarded as effectively a total impairment of the spine.
During the qualification period, on 10 March 2016, Mr Kossmann stated that he considered that the Applicant was 100% incapacitated in relation to her pre-injury employment.
However, on 30 March 2016, Dr Mirhom stated that in his opinion, despite the prospect of a further surgery, the Applicant could be retrained for light duty jobs such as desk jobs or simple computer jobs with flexibility to sit and stand as comfortable on a part-time basis with 20 hours a week being suitable.
After the qualification period, on 8 March 2017, Dr Middleton noted that the Applicant had stated to him that she had obtained a real estate agents license in early 2017 and that she had worked with Chinese speaking clients.
Again, on 28 March 2018, Dr Middleton opined that the Applicant was permanently incapacitated for any type of employment with a minimal physical or manual component. He stated that the Applicant did have some capacity to perform sedentary work, however, taking into account all of the Applicant’s circumstances, such employment was likely, at best, to be limited to alternate days and be for a maximum of 12 hours per week.
Although the evidence that postdates the qualification period is not directly relevant to the question of qualification, similarly to the way in which that evidence assists in relation to the question of diagnoses, treatment and stabilisation, the evidence summarised above assists in drawing the inference that during the qualification period, the Applicant had some capacity, albeit significantly attenuated, to work.
The Applicant’s ability to work, however minor, during the qualification period meant that the Applicant did not satisfy the requirement of being totally unable to work for two years as required by Article 2(2) of the New Zealand Agreement.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 126 (one hundred and twenty-six) paragraphs are a true copy of the reasons for the decision herein of the Tribunal

..........................[sgd]............................................
Associate
Dated: 17 September 2019

Date of hearing: 24 May 2018

Representative for the Applicant: Self-represented

Solicitor for the Respondent:
Tim Noonan, Department of Human Services

Date of hearing:	24 May 2018
Representative for the Applicant:	Self-represented
Solicitor for the Respondent:	Tim Noonan, Department of Human Services