Trzaskowski and Secretary, Department of Social Services (Social services second review) - [2024] AATA 557

Trzaskowski and Secretary, Department of Social Services (Social services second review) [2024] AATA 557 (2 April 2024)
Division:GENERAL DIVISION
File Number(s): 2021/10191
Re:Czeslaw Trzaskowski
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Brigadier A G Warner, AM LVO (Retd), Member
Date:2 April 2024
Place:Perth

The reviewable decision, being the decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal, made on 23 November 2021, to reject the Applicant’s claim for disability support pension, is affirmed.
........................[Sgd]...........................................
Brigadier A G Warner, AM LVO (Retd), Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether Applicant’s conditions were fully diagnosed, treated and stabilised during the qualification period – whether Applicant’s conditions attracted an impairment rating of at least 20 points – NZ Agreement – severe disability – whether Applicant qualifies for DSP under NZ Agreement – reviewable decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) – ss 7(1), 7(2), 7(2)(a), 7(5), 7(6), 7(6AA), 94, 94(1), 94(1)(a), 94(1)(b), 94(1)(c), 94(1)(e), s 94(1)(e)(i), 94(1)(e)(ii), 94(1)(ea)
Social Security (Administration) Act 1999 (Cth) – Sch 2 cl 4(1)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – ss 6(6), 6(7), 8(7), 10, 11, Table 2, Table 4
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
Social Security (International Agreements) Act 1999 – Articles 1(1)(m), 1(2), 2(2), 5(1), 12
ss – 6
CASES
Al-Janabi and Secretary, Department of Social Services [2017] AATA 1541
Chen and Secretary, Department of Social Services [2019] AATA 3607
Gallacher and Secretary, Department of Social Services [2015] FCA 1123
Pickering and Secretary, Department of Social Services [2018] AATA 4223
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Sesalim v Secretary, Department of Social Services [2018] FCA 1159
Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606
SECONDARY MATERIALS
Social Security Guide: Guides to Social Policy Law
REASONS FOR DECISION
INTRODUCTION

The decision under review is a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) dated 23 November 2021, which affirmed a decision of Services Australia (the Agency) to reject the Applicant’s claim for disability support pension (DSP) lodged on 11 January 2021.
The AAT1 found that the Applicant’s medical conditions generated 10 impairment points, less than the required 20 points, and that accordingly he did not qualify for DSP. In view of that finding, the AAT1 did not consider the Applicant’s continuing inability to work (T2/13-14).
The Applicant contends that he qualifies DSP under s 94(1) of the Social Security Act 1991 (Cth) (the Act) as read with Arts 2 and 5 of the Agreement on Social Security Between the Government of Australia and the Government of New Zealand (NZ Agreement). Alternatively, he contends that he qualifies for DSP based entirely upon the terms of the NZ Agreement.
The Tribunal heard the application on 14 February 2024. The Applicant was self-represented and gave evidence on affirmation. Mr Ashley Burgess represented the Respondent.
Mr Thomas Palinski, an interpreter in the Polish language, assisted the Tribunal.
BACKGROUND
The Applicant was born in Poland on 14 June 1956 (now 67 years of age) and obtained New Zealand citizenship on 30 November 1994 (T85/372).
The Applicant first arrived in Australia from New Zealand on a Subclass 444 Special Category Visa granted on 1 February 2014 (Exhibit R2, Annexure A).
On 11 January 2021, the Applicant lodged a claim for DSP in respect of several conditions (T85/391).
On 16 April 2021, a registered occupational therapist, with assistance from a registered psychologist, conducted a face-to-face assessment of the Applicant for the purposes of preparing a Job Capacity Assessment (JCA) report. The assessor found the following:
a)The Applicant’s spinal disorder was fully diagnosed, treated and stabilised and attracted an impairment rating of 10 points under Table 4 (T89/407, 410).
b)The Applicant’s shoulder and upper arm disorder was fully diagnosed, treated and stabilised and attracted an impairment rating of 5 points under Table 2 (T89/408, 411).
c)The Applicant’s psychological disorder was not considered to be fully diagnosed, treated and stabilised and so did not attract any impairment points (T89/408-409).
d)The Applicant had a baseline work capacity of 8-14 hours per week and a capacity for work within 2 years with intervention of 15-22 hours per week (T89/412).
On 17 April 2021, the Applicant’s DSP claim was rejected on the basis that he was not ‘severely disabled’ for the purposes of the NZ Agreement (T90/415-416).
On 11 August 2021, an Authorised Review Officer (ARO) affirmed the original decision to reject the Applicant’s claim for DSP, finding that the Applicant did not have an impairment rating of 20 points and did not qualify for DSP under the Act or the NZ Agreement (T106/448-453).
The Applicant applied to the AAT1 for further review, and on 23 November 2021 the AAT1 affirmed the ARO decision, finding that the Applicant did not qualify for DSP under s 94 of the Act (T2/6-14).
On 24 December 2021, the Applicant sought review of the AAT1 decision in this Tribunal. In his application, the Applicant stated: ‘I disagree with the decision to reject my claim for DSP’(T1/4).
Earlier in the progress of this matter, the Applicant was represented by Ms Catherine Eagle of the Welfare Rights & Advocacy Service (see Exhibit A1). That representation ceased subsequent to the Respondent filing Exhibit R1 on 1 June 2023.
ISSUE
The issue to be decided in this matter is whether the Applicant was qualified for DSP when he lodged his claim on 11 January 2021, or within 13 weeks of that date (the qualification period).
This requires consideration of whether, during the qualification period, the Applicant satisfied the requirements for a grant of DSP under both s 94(1) of the Act, and Schedule 3 of the NZ Agreement.
The Respondent contends that the Applicant must satisfy both Article 2(2) of the NZ Agreement and the criteria in s 94(1)(a) and (b) of the Act in order to qualify for DSP under the NZ Agreement (Exhibit R2, para 4).
LEGISLATION AND POLICY
The relevant legislation is contained in:
a)The Act;
b)The Social Security (Administration) Act 1999 (the Administration Act);
c)The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables/ the Rules);
d)The Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination); and
e)The Social Security (International Agreements) Act 1999 (the Agreement Act), and in particular the NZ Agreement.
Policy advice contained in the Social Security Guide (the Guide) is also relevant. The Tribunal has found that although policy is not binding, it will ordinarily be followed unless there is a cogent reason not to do so (see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 644-645).
EVIDENCE
The Tribunal had before it the following material:
·The T– Documents (T1-T111, pp 1-490);
·Applicant’s Submissions in Response dated 23 January 2023 (Exhibit A1);
·Letter of Support – Dr Quintin Van Rooyen dated 9 June 2022 (Exhibit A2);
·Letter of Support – Mr Aaron Tay dated 31 May 2022 (Exhibit A3);
·Supplementary Submissions of the Respondent Concerning the Correct Interpretation of the NZ Agreement dated1 June 2023 (Exhibit R1);
·Secretary’s Statement of Facts, Issues & Contentions dated 2 December 2022, and including Annexures A-D (Exhibit R2);
·Respondent’s Statement of Issues dated 12 January 2022 (Exhibit R3); and
·The oral evidence of the Applicant.
CONSIDERATION
In this matter, the Respondent contends that during the qualification period (Exhibit R2, para 15):
a)The Applicant was not residentially qualified to receive DSP under the Act;
b)The Applicant must satisfy paragraphs 94(1)(a) and (b) of the Act and Article 2(2) of the NZ Agreement in order to qualify for DSP under the NZ Agreement because the Applicant cannot satisfy paragraphs 94(1)(e) and (ea) of the Act;
c)Paragraph 94(1)(c) is inconsistent with the NZ Agreement and is overridden by the NZ Agreement;
d)Article 2(2) of the NZ Agreement operates to limit an Australian DSP to those who are ‘severely disabled’, as defined in Article 1(1)(m) of the NZ Agreement. This requires the person to satisfy a stricter inability to work test of being ‘totally unable to work’ for at least the next two years, as opposed to the inability to work at least 15 hours per week under section 94 of the Act;
e)The Applicant’s spinal conditions were fully diagnosed, fully treated and fully stabilised during the qualification period and the appropriate impairment rating for the impairment arising from this condition is 10 points under Table 4;
f)The Applicant’s shoulder condition was fully diagnosed, fully treated and fully stabilised during the qualification period and the appropriate impairment rating for the impairment arising from this condition is 5 points under Table 2;
g)The Applicant’s mental health conditions, chronic obstructive pulmonary disorder/emphysema and gastro-oesophageal reflux disorder were not fully diagnosed, fully treated and fully stabilised during the qualification period and do not attract any impairment points under the Impairment Tables;
h)The Applicant did not satisfy section 94(1)(b) of the Act to qualify for DSP, as he did not have an impairment rating of at least 20 points during the qualification period; and
i)The Applicant was not ‘severely disabled’ within the meaning of Article 2(2) and Article 1(1)(m) of the NZ Agreement.
The Respondent submits that there are two ways in which the Applicant can possibly qualify for DSP - under the Act or under the NZ Agreement (Exhibit R2, para 16).
Qualification period
The Applicant’s claim for DSP must be assessed based on his medical conditions as at the date of his claim, or within 13 weeks of that time. As the Applicant lodged his claim for DSP on 11 January 2021, the period for the Tribunal’s consideration is 11 January 2021 to 12 April 2021 (the qualification period) (see Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606 (17 August 2009] at [7] to [8]). This qualification period is not in dispute (see Exhibit A1, para 2).
In the decision of Gallacher and Secretary, Department of Social Services [2015] FCA 1123 (at [25]-[29]), the Federal Court affirmed the principle that medical reports that come into being after the qualification period will only be relevant to the extent that they refer to a person’s condition during the qualification period. It follows that a decision-maker, such as the Tribunal, can only consider the Applicant’s qualification for DSP within the qualification period. If the Applicant’s circumstances have changed subsequently, it may be appropriate for him to lodge a fresh claim for DSP.
Qualification criteria for DSP
The relevant qualification criteria for DSP is set out in s 94 of the Act as follows:
94. Qualification for disability support pension–continuing inability to work
(1) 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…and
(d)the person has turned 16; 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…
(ea)one of the following applies:
(i)     the person is an Australian resident…
Subsection 7(2) of the Act provides the following definition of an ‘Australian resident’:
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.
Subsection 7(1) of the Act provides that a protected special category visa (SCV) holder has the meaning given by subsections (2A) to (2D) of the Act. These sections provide (amongst other things) that a person is a protected SCV holder if they were in Australia on 26 February 2001.
Subsection 7(5) of the Act provides that a person has 10 years qualifying Australian residence if (and only if) the person has at any time been an Australian resident for a continuous period of 10 years, or has been a resident for more than one period and at least one of those periods is 5 years or more and the aggregate of those periods exceeds 10 years.
Subsections 7(6) and 7(6AA) of the Act provide that a person has a qualifying residence exemption for a social security payment if (and only if) the person resides in Australia and is either a refugee, a former refugee, or a family member of a refugee or former refugee.
The Guide at 9.2.6.280 provides that Subclass 444 visas are not permanent visas and holders are generally not residentially qualified for social security payments, save for protected SCV holders.
The Respondent acknowledges that the Applicant physically resides in Australia, and therefore satisfies subs 7(2)(a) of the Act (Exhibit R2, para 31), however, contends that the Applicant did not satisfy the residential qualifications for DSP set out in subs 94(1)(e) of the Act for the following reasons (Exhibit R2, para 32):
a)The Applicant first commenced residing in Australia in 2014 and holds a Subclass 444 temporary visa (Annexure A);
b)The Applicant is not considered an Australian resident as defined in subsection 7(2) of the Act, as he is not an Australian citizen, does not hold a permanent visa, and cannot be considered a protected SCV holder given he was not in Australia on 26 February 2001;
c)The Applicant did not have 10 years qualifying residence as required by subsection 94(1)(e)(ii) and defined by subsection 7(5) of the Act;
d)The Applicant did not have a qualifying residence exemption under subsection 94(1)(e)(ii) and subsection 7(6) of the Act as there is no evidence that he was a refugee, former refugee or a family member of a former refugee.
Having regard to the material before it, the Tribunal agrees that the Applicant did not meet the residency criteria under the Act. Exhibit A1 at [7] states: ‘The Applicant accepts that he cannot satisfy s 94(1)(e)(ii)’.
Qualification for DSP under the New Zealand Agreement
Although the Applicant did not satisfy the residency requirements in subsections 94(1)(e)(i) to qualify for DSP under the Act, as a New Zealand citizen, consideration needs to be given as to whether he qualifies for DSP under the NZ Agreement (see Applicant’s contentions at [3]).
Under the NZ Agreement, Australia and New Zealand share responsibility for paying certain benefits (such as DSP).
For the purposes of DSP, Article 2(2) of the NZ Agreement relevantly provides:
For the purposes of this Agreement an Australian disability support pension and a New Zealand supported living payment 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 the period of not less than one year at any time.
Article 5(1) of the NZ Agreement provides that the following factors must be considered in deciding whether a person is residing in Australia:
(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.
Article 1(1)(m) of the NZ Agreement provides that ‘severely disabled’ means 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; or
(iv)is permanently blind.
Article 1(2) of the NZ 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.
Broadly, such payments are paid according to the period a person has lived in Australia and New Zealand from the age of 20 until pension age.
Article 5(1) of the NZ 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 NZ 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 SCV.
In essence, Article 12 of the NZ Agreement relevantly provides that where a person has accumulated a period as an Australian resident that is less than the period required to qualify that person for an Australian benefit under the legislation of Australia, then the period of Working Age Residence in New Zealand shall be deemed to be a period in which the person was an Australian resident, but only for the purposes of meeting any minimum qualifying periods for that benefit as set out in the legislation of Australia. In the present matter, the Respondent ‘accepts that the Applicant was a New Zealand citizen lawfully residing in Australia during the qualification period’ and ‘that as at the date of claim, the Applicant had an aggregate of more than 10 years Working Age Residence in Australia and/or New Zealand’ (Exhibit R2, para 46).
In terms of the relationship between the Act and the NZ Agreement, s 6 of the Agreement Act 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 social security law.
The Respondent, in Exhibit R2 at [49] to [78] and in Exhibit R1, comprehensively considers the relationship between Article 2(2) of the NZ Agreement and the relevant qualification provisions of s 94(1) of the Act. Having carefully balanced these considerations, the Tribunal accepts the Respondent’s submission that the relationship is as follows (Exhibit R1, para 30):
a)Article 2(2) does not override the criteria set out in ss 94(1)(a) and (b) of the Act. The provisions in those paragraphs of s 94(1)(a) and (b) use different language to what is contained in Article 2(2). They also deal with qualitatively different requirements that do not directly conflict with Article 2(2). They are therefore able to operate without being “affected by” the operation of the NZ Agreement.
b)By contrast, Article 2(2) overlaps squarely with, and thus necessarily overrides, the requirement found in s 94(1)(c) of the Social Security Act, i.e., that in order to qualify for DSP, the person have a continuing inability to work. As referenced above, the NZ Agreement replaces the need to demonstrate a “continuing inability to work” with a requirement that a person must be “severely disabled”, which means totally unable to work for at least the next 2 years.

The Respondent cites Chen and Secretary, Department of Social Services [2019] AATA 3607 in contending that a person must satisfy Article 2(2) of the NZ Agreement and subs 94(1)(a) and (b) of the Act to qualify for DSP (Exhibit R2, para 49). The Tribunal agrees, and notes particularly the comments by Member C Edwardes in Pickering and Secretary, Department of Social Services [2018] AATA 4223:
[36] On the basis of the arguments before it, the Tribunal does not accept that Art 2(2) is to be treated as a separate pathway to access disability support for a New Zealand resident. Rather, the Tribunal finds that to qualify for disability support under the New Zealand Agreement, the Applicant would need to meet the criteria of Art 2(2) and sections 94(1)(a), (b) and (c) of the Act.
[37] The Tribunal agrees with the submission of the Respondent that it would be inconceivable that New Zealand citizens would be assessed more favourably than Australian citizens.
The Tribunal also particularly notes the statement of Deputy President Walsh in the decision of Al-Janabi and Secretary, Department of Social Services [2017] AATA 1541:
[27] Having considered the New Zealand Agreement as a whole, the Tribunal is not persuaded that article 2(2) provides an alternative means of qualification for disability support pension. It seems unlikely this was ever intended. Indeed, the alternative view would lead to a situation where an Australian citizen, born in Australia and who had lived most of their life here, could rely on the New Zealand Agreement to qualify for disability support pension, if they happened to have lived in New Zealand for 12 months or more as a child, for example. It is difficult to discern why such an individual, who would not need to rely on the New Zealand Agreement to meet the necessary residency tests, should be relieved of requirements to have an impairment rating of at least 20 points under the Impairment Tables and a continuing inability to work (including meeting the program of support requirements if they did not achieve an impairment rating of 20 points under a single Table). And, as the Secretary submits, it is difficult to see why it would be intended that a person who relies on the New Zealand Agreement would not have to meet the requirements for any condition/s to be fully diagnosed, fully treated and fully stabilised before impairment might be assessed, these requirements applying to claimants relying on the Act alone. These ordinary requirements derive from the Social Security (Tables for the Assessment of Work- related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables Determination); the relevant determination not being part of the social security law, it is therefore not picked up in the New Zealand Agreement.
…
[29] The Tribunal considers article 2(2) to be a provision of limitation. Whilst it is arguable that its scope “covers” the same territory as paragraph 94(1)(c) of the Act dealing with inability to work, it seems to the Tribunal that it adopts a narrower test generally. This is because it imports a test of total inability to work for the next two years, whereas the Act is concerned with a work test of 15 hours per week. Article 2(2) therefore involves a subset of the field of coverage of paragraph 94(1)(c). On that basis, it can be appropriately construed as a true limitation provision, having effect in addition to the ordinary requirements that a claimant meet paragraphs 94(1)(a), (b) and(c) of the Act.
DID THE APPLICANT SATISFY SUBS 94(1)(A) OF THE ACT?
The Respondent accepts that the Applicant had impairments and therefore satisfies subs 94(1)(a) of the Act (Exhibit R2, para 79). Having regard to the evidence, the Tribunal agrees.
DID THE APPLICANT SATISFY SUBS 94(1)(B) OF THE ACT?
Subsection 26(1) of the Act provides that the Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for DSP.
Section 94(1)(b) of the Act provides that the second qualification for DSP is that the person’s impairments rate 20 or more points under the Impairment Tables. The Impairment Tables and the rules for applying them (the Rules) are found in the Determination. The Impairment Tables are function based rather than diagnosis based and describe functional activities, abilities, symptoms and limitations which are designed to assign ratings to determine the level of functional impact of impairments and not to assess conditions.
‘Impairment’ is defined to mean a loss of functional capacity affecting a person’s ability to work that result from the person’s condition. The Impairment Tables provide that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.
The Impairment Tables may only be applied after the person’s medical history has been considered. An impairment rating can only be assigned to a condition if the condition is permanent for the purposes of DSP, that is, the condition has been fully diagnosed, fully treated and fully stabilised and likely to persist for more than 2 years.
In determining whether a condition has been fully diagnosed and fully treated, the following must be considered:
a)whether there is corroborating evidence of the condition;
b)what treatment or rehabilitation has occurred in relation to the condition; and
c)whether treatment is continuing or planned in the next 2 years.
Under the Act a condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b) the person has not undertaken reasonable treatment for the condition and either:
(i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Reasonable treatment is defined under subs 6(7) of the Rules as treatment that:
(a)is available at a location reasonably accessible to the person;
(b)is at a reasonable cost;
(c)can reliably be expected to result in a substantial improvement in functional capacity;
(d)is regularly undertaken or performed;
(e)has a high success rate; and
(f)carries a low risk to the person.
A condition is fully stabilised, for the purposes of subsection 6(6) of the Rules if:
(a)Either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years; or
(b)The person has not undertaken reasonable treatment for the condition and either:
(i)significant functional improvement is not expected to a level enabling the person to undertake work in the next two years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment (subsections 6(5) and 6(6) of the Rules).
Under section 11 of the Rules, the following need to be considered when assigning an impairment rating:
(a)an impairment rating can only be assigned in accordance with the rating points in each Impairment Table;
(b)a rating cannot be assigned between consecutive impairment ratings (example: A rating of 15 cannot be assigned between 10 and 20);
(c)if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher a rating must not be assigned unless all the descriptors for that level of impairment are satisfied; and
(d)a rating cannot be assigned in excess of the maximum rating specified in each Table.
Section 10 of the Rules states:
Multipleconditions causing a common impairment
(6) Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.
(7) Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 12(6), it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.
The Respondent cites Sesalim v Secretary, Department of Social Services [2018] FCA 1159, in which Bromberg J noted at [21] – [22] that sections 5(3) and 11(2) of the Impairment Tables together set out the requirement that, in assigning an impairment rating, a comparison of all descriptors in the relevant Table is required. The Tribunal has regard to this requirement in its considerations of the Applicant’s conditions which follow.
Before the Tribunal the Applicant declined to make any submissions about his conditions, even declining an opportunity to comment on the impairment points awarded by the AAT1 (Transcript/7).
Spinal condition
The Respondent accepts that, on the available evidence, the Applicant’s spinal condition is fully diagnosed, fully treated, and fully stabilised, and that the functional impairment of this condition attracts, at most, a moderate rating of 10 points under Table 4 (Exhibit R2, paras 92, 93).
The Tribunal relies on the following reports in also finding this condition to be fully diagnosed, treated and stabilised:
a)The JCA report dated 16 April 2021 stated that the Applicant continued to experience pain and degeneration despite optimal specialist review and management (T89/407).
b)On 6 September 2022, Dr Chris Minogue, a Health Professional Advisory Unit (HPAU) assessor, considered the entirety of the available evidence and determined that the Applicant’s spinal disorder was fully diagnosed, fully treated, and fully stabilised (Exhibit R2, Annexure B).
In determining an impairment rating under Table 4 – Spinal Function, the Tribunal relies on the following evidence:
a)The Applicant’s self-reported evidence to the JCA assessor during his face-to-face assessment on 16 April 2021, during which the assessor recorded that (T89/410) he has difficulty driving due to neck pain; he has been unable to fish or garden as these movements aggravate his low back pain; he can sit and drive for 40 minutes and stand for 15 minutes; and he requires assistance with putting on shoes and socks.
b)Dr John Liddell, neurosurgeon, reported on 15 June 2021 that the ‘Applicant experiences difficulty walking more than half a kilometre because of his low back and proximal lower limb discomfort’ (T101/433).
c)The JCA assessor found that criteria 1(b) and 1(c) were met for 10 points under Table 4 (T89/410).
d)The HPAU opinion (Claudio) dated 9 August 2021 recommended that ‘a moderate (10 impairment points) impact under Table 4 – spinal function – would be appropriate…’ (T105/445).
e)In a letter dated 12 November 2021 Dr Paul Czajko, general practitioner, stated that the Applicant ‘is unable to perform any overhead activities and is unable to turn his head without moving his trunk, he is unable to do his shoes and is unable to remain seated for more then (sic) 10 minutes’ (T2/28-29). Dr Czajko’s letter is dated approximately five months after the qualification period and seems to refer to the Applicant’s functional capacity at that date rather than as at the qualification period.
f)In the HPAU report dated 9 September 2022, in which Dr Chris Minogue reviewed the Applicant’s medical conditions and work capacity during the qualification period 7 January 2021 to 8 April 2021, Dr Minogue found that the Applicant’s spinal disorder attracted 10 impairment points under Table 4. The report noted that ‘on current contact with the treating neurosurgeon Dr J Liddell, he does not support a rating of 20 points under Table 4’ (Exhibit R2, Annexure B/17).
The Tribunal gives significant weight to the opinions of the two HPAU assessors (Claudio and Dr Minogue) and the JCA assessor considered above in light of their particular expertise and training related to the application of the Impairment Tables.
The Tribunal is satisfied that the evidence related to the functional impairment caused by the Applicant’s spinal condition supports the assignment of 10 impairment points under Table 4.
Shoulder Condition
The Respondent accepts that the Applicant’s shoulder condition is fully diagnosed, fully treated, and fully stabilised, based on the following evidence (Exhibit R2, para 100):
a)On 16 April 2021, the JCA assessor considered the Applicant’s shoulder condition to be permanent and fully diagnosed, treated and stabilised despite optimal specialist review and treatment (T89/408).
b)On the 6 September 2022 HPAU report, Dr Minogue was satisfied that the Applicant’s shoulder condition was fully diagnosed, treated and stabilised during the qualification period, with only maintenance conservative treatment likely in the next 2 years (Annexure B/14-15).
The Tribunal agrees, based on this evidence, and the HPAU opinion of 9 August 2021 that ‘the shoulder injuries were more than likely fully treated and stabilised during the relevant claim period’ (T105/446) with the Respondent that the Applicant’s shoulder condition is fully diagnosed, fully treated and fully stabilised.
The Respondent contends that the functional impairment of the Applicant’s shoulder condition attracts, at most, a rating of 5 points under Table 2 – Upper Limb Function (Exhibit R2, para 101). In its de novo consideration, the Tribunal has regard to the following evidence:
a)In his face-to-face assessment on 16 April 2021, the Applicant reported to the JCA assessor that he requires assistance with some clothing, such as putting on a jacket, doing up buttons and threading a belt; he has difficulties with full right shoulder movement; he is unable to fish or garden; he can drive for 30 minutes; and he is independent in most activities of daily living and self-care (T89/411).
b)The JCA assessor found that Criteria 1(a)(b) and (c) were met for 5 impairment points under Table 2 – Upper Limb Function (T89/411).
c)In a report dated 1 June 2021, Mr Aaron Tay, orthopaedic surgeon, stated that the Applicant has ‘ongoing pain and restrictions in both shoulders’ and is ‘restricted to lifting 1 to 2 kg below chest height’ (T99/430).
d)In the HPAU report dated 9 August 2021, HPAU the Assessor details a conversation with Dr Czajko and in relation to the Applicant’s shoulder condition notes (T105/446):
Mr Trzaskowski was unable to perform tasks above head height due to restricted shoulder range of movement; was able to pick up a light, bulky object with both hands; was able to write; but intermittently experienced difficulty with picking up heavier objects, and with fine motor tasks, due to the cervical spine degeneration.
e)In the HPAU report dated 6 September 2022, Dr Minogue considered that the Applicant’s shoulder condition is most appropriately assigned 5 impairment points under Table 2 (Exhibit R2, Annexure B/17).
f)On 18 September 2021, Dr Czajko provided a letter in which he states that, as a result of the Applicant’s bilateral shoulder condition, he suffers from stiffness and is unable to elevate above 90 degrees on both sides (T2/31). However, the Respondent correctly notes that a person’s ability to elevate their arms is not considered in the descriptors under Table 2 (Exhibit R2, para 102).
The Tribunal also carefully considered a report by Mr Aaron Tay, orthopaedic surgeon, dated 31 May 2022 (Exhibit R2, Annexure C) in which he assessed the Applicant’s shoulder condition as attracting 10 impairment points under Table 2, noting that the Applicant has difficulties with picking up a 1L carton of liquid, picking up a light but bulky object requiring the use of two hands and holding and using a pencil or pen. Mr Tay’s report is dated more than 13 months after the qualification period and is not referable to the qualification period, rather it speaks to the Applicant’s functional capacity at the time the report was written.
The Tribunal has regard to the Respondent’s observations on Mr Tay’s report (Exhibit R2, para 104) that it ‘is not consistent with the medical evidence obtained during, or relatively shortly after, the qualification period (for example, the 9 August 2021 HPAU report in which the assessor directly obtained evidence from the Applicant’s treating GP). Further, the Secretary observes that Dr Tay did not identify these restrictions in his earlier report of 1 June 2021, where he commented that the Applicant was only restricted to lifting 1-2 kg below chest height’.
In all the circumstances, the Tribunal is unable to afford Mr Tay’s report any significant weight in determining an impairment rating for the Applicant’s shoulder condition.
The Tribunal is satisfied that the evidence related to the functional impairment caused by the Applicant’s shoulder condition supports the assignment of 5 impairment points under Table 2.
Mental health conditions
The Respondent contends that there is insufficient evidence to support a finding that the Applicant’s mental health conditions were fully treated and fully stabilised during the qualification period, and relies on the following in support of this contention (Exhibit R2, para 107):
a)Dr Andrew Fairhurst (Medicolegal Consultant) diagnosed the Applicant with severe anxiety and features of PTSD in a report dated 19 September 2018 (T67/193).
b)On 30 November 2018, Dr Lyn Bennett (Consultant Psychiatrist) diagnosed the Applicant with PTSD, major depressive disorder and generalised anxiety disorder with panic attacks (T28/210-211). Dr Bennett noted that trials of Seroquel and Prazosin may be considered and that she would ‘monitor closely’.
c)In a report dated 15 March 2019, Dr Lawrence Terace (Consultant Forensic Psychiatrist) diagnosed the Applicant with PTSD complicated by a mild major depressive disorder and he recommended a multidisciplinary approach with liaison between experts in physical and psychological medicine (T47/250-251).
d)The JCA report dated 16 April 2021 reviewed the available evidence and determined that the Applicant’s mental health conditions were not fully diagnosed, fully treated and fully stabilised during the qualification period (T89/409).
The Tribunal agrees. Further, the AAT1 decision dated 23 November 2021 records that in relation to the Applicant’s mental health conditions, the Applicant and his representative told the Tribunal (T2/13):
They do not consider these issues relevant to the claim and do not wish to pursue them. Mr Trzaskowski is not currently having any treatment for such issues.
In these circumstances, the Tribunal takes this consideration no further.
Chronic obstructive pulmonary disease (COPD), emphysema and coronary heart disease
The Respondent accepts that the Applicant’s COPD, emphysema and coronary heart disease were fully diagnosed during the qualification period but not fully treated and fully stabilised until after the qualification period (Exhibit R2, para 110). Accordingly, no impairment rating can be assigned to any resulting functional impact.
Relevantly, the AAT1 noted (T2/13):
The Tribunal was aware that Mr Trzaskowski has recently been hospitalised with problems relating to his heart. These issues happened after his claim was lodged and cannot be considered at this time. Mr Trzaskowski and his representative understood this.

In the current consideration, the Tribunal has regard to the following:
a)A CT of the chest dated 4 September 2018 noted ‘[m]ild emphysematous changes’ and ‘[t]hree-vessel coronary artery disease’ (T17/185).
b)A Joondalup Health Campus Emergency Department discharge summary dated 4 December 2018 listed ‘COPD exacerbation’ as a principal diagnosis (T30/214). It recommended GP review, pulmonary function tests and smoking cessation. The Applicant was discharged with new medications.
c)A Joondalup Health Campus Discharge Summary dated 17 May 2019 provided diagnoses of emphysema and infective exacerbation of COPD. The Applicant was given a management plan which relevantly included GP review of pain medications and a CT of the chest in 6 months’ time (T55/287).
d)A Joondalup Health Campus Discharge Summary dated 20 July 2021 recorded a principal diagnosis of unstable angina following his admission the previous day with central chest pain, requiring the insertion of a stent on 19 July 2021 (T104/440).
e)A report of Dr Quintin Van Rooyen, general practitioner, dated 9 June 2022 stated that the Applicant had unstable angina with hypercholesterolemia and significant coronary artery stenosis and COPD, controlled with inhalers. Dr Van Rooyen noted that the Applicant has ‘infrequent episodes of chest pain’ and ‘no symptoms of heart failure’ (Exhibit R2, Annexure D).
f)The HPAU report dated 6 September 2022 which found that the Applicant’s COPD/emphysema and coronary heart disease were not fully diagnosed, fully treated and fully stabilised until after the qualification period. The report notes that ‘in July 2021 Mr Trzaskowski was successfully treated for unstable angina by insertion of a coronary artery stent’ (Exhibit R2, Annexure B/15).
g)These conditions were not considered in the JCA Report dated 16 April 2021 (T89).
The Tribunal notes that the Applicant’s COPD, emphysema and coronary heart disease were only stabilised following the insertion of the stent on 19 July 2021, some three months after the qualification period. The Tribunal is satisfied that as of the qualification period, the Applicant’s COPD, emphysema and coronary heart disease were fully diagnosed, but not fully treated and fully stabilised. It follows that any impairments caused by these conditions cannot be assessed under the Impairment Tables.
Gastro-oesophageal reflux disease (GORD)
The Respondent contends that there is insufficient evidence to support a finding that the Applicant’s GORD was fully diagnosed, fully treated and fully stabilised during the qualification period (Exhibit R2, para 113).
The only evidence relative to this condition is an Osborne Park Gastroenterology endoscopy report dated 25 November 2020 which identified mild erosive reflux oesophagitis and moderate erythematous gastritis, with recommendations of commencing daily PPI for reflux symptoms (T83/365). This report made recommendations of triple therapy if further investigations found evidence of H.Pylori infection.
There is no further evidence of any treatment or prognosis of this condition, and it was not mentioned in the JCA report dated 16 April 2021 (T89) or the AAT1 decision (T2). The Tribunal finds that there is insufficient evidence that the Applicant’s GORD was fully diagnosed, fully treated and fully stabilised during the qualification period, and that accordingly, the condition cannot be assessed under the Impairment Tables.
Overall impairment rating
The Tribunal finds that the Applicant’s spinal disorder and shoulder condition were fully diagnosed, fully treated and fully stabilised during the qualification period and attract impairment ratings of 10 points under Table 4 – Spinal Function and 5 points under Table 2 – Upper Limb Function, respectively. The total of 15 impairment points is less than the 20 points required to satisfy s 94(1)(b) of the Act, and it follows that the Applicant does not qualify for DSP under the Act.
Was the Applicant ‘severely disabled’ as defined under the New Zealand Agreement?
In this matter, the Tribunal has proceeded on the basis that a person must satisfy Article 2(2) of the NZ Agreement and subs 94(1)(a) and 94(1)(b) of the Act to qualify for DSP (see [48] above). Although the Tribunal has found that the Applicant does not satisfy s 94(1)(b) of the Act, for completeness, the Tribunal now considers whether the Applicant was severely disabled for the purposes of the NZ Agreement.
Article 1(1)(m) of the NZ Agreement provides that ‘severely disabled’ means 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; or is permanently blind.
‘Severely disabled’ is defined similarly in clause 1.s.110 of the Guide.
The meaning of ‘totally unable to work’ in Article 1(1)(m) is not expressly defined in the NZ Agreement or the Act. The Tribunal considers it reasonable that it proceeds on the basis that the phrase ‘totally unable to work’ in Article 1(1)(m) of the NZ Agreement requires that a person must be completely unable to perform any work at all in order to be considered ‘severely disabled’.
The Respondent’s preferred position is as follows (Exhibit R2, para 124):
…the phrase ‘totally unable to work’ should be given its ordinary meaning, such that it requires a person to be unable to work at all. However, as a matter of practicality, the work capacity assessment process is only able to provide an assessment of 0-7 hours and cannot identify a person as being unable to work at all. As a matter of policy, the Australian Government is therefore willing to afford the benefit of a person being ‘totally unable to work’ to those with an assessment of 0-7 hours. It is noted that it is not inconsistent with Australia’s treaty obligations to take a more beneficial approach than that provided for under the New Zealand Agreement.
The Respondent submits that the Applicant was not ‘severely disabled’ for the purposes of Article 2(2) of the NZ Agreement. Having regard to the following reports, the Tribunal agrees:
a)The JCA report dated 16 April 2021 which assessed the Applicant as having a baseline work capacity of 8-14 hours per week and a capacity for work within 2 years with intervention of 15-22 hours per week (T89/412).
b)The HPAU report dated 6 September 2022, in which Dr Minogue considered that the Applicant ‘would have been able to sustain suitable work for at least 8 hours per week within 2 years of the DSP qualification period’ (Exhibit R2, Annexure B/18).
In Exhibit R2, the Respondent acknowledges the following:
a)On 1 June 2021, Mr Tay stated that the Applicant’s conditions were ‘severely impacting his ability to work for the foreseeable future (next two years)’ (T99/430).
b)On 31 May 2022, Mr Tay reported that ‘I do not believe [the Applicant] will be able to return to his previous line of work’ (Annexure C).
c)On 9 June 2022, Dr Van Rooyen stated that ‘I do not believe that [the Applicant] will be able to return to work, in particular to his previous line of work’ (Annexure D).
And notes that
‘work’ for the purposes of Article 1(1)(m) of the New Zealand Agreement is not limited to the Applicant’s previous or preferred line of work as a baker. There is no indication from the Applicant’s treating practitioners that the Applicant would not be able to complete 8 hours per week of light duties in a less strenuous role. While Dr Tay considered that the Applicant’s ability to do so would be severely impacted, there is no evidence speaking to the number of hours per week the Applicant would be able to complete.
In response to the Respondent’s closing submissions, the Applicant told the Tribunal (Transcript/9):
In regards of my work capacity at the time, I was not able to lift anything, maybe up to 5 kilograms, I could only lift something up to 5 kilograms. At work in the bakery, the bags of flour are 25 kilograms, or sometimes even 40 kilograms of weight. Even like to pull out the cake from the oven and just to form it on the table, it was too hard for me to do it. I did look for the work, I did ask in a few bakeries, but they all ask me for some letter from the doctor saying that I am able to do the work, and there is no doctor who will be willing to give me some sort of letter.
It was really difficult for me to pull out the tray with the bread from the oven because it’s about 8 to 10 kilograms. No one was willing to employ me because they all saw me – the way I walk, that I had the problem with my back. That’s about it, yes.
In relation to this uncorroborated evidence, the Tribunal notes that the relevant consideration is not whether the Applicant could resume work as a baker, but whether he was unable to work at all. Further, after careful consideration, the Tribunal is satisfied this evidence does not disturb the impairment points determined at [63] and [70] above.
CONCLUSION
The Tribunal finds that as the Applicant did not satisfy subs 94(1)(b) of the Act or Article 2(2) of the NZ Agreement during the qualification period, he does not qualify for DSP.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for the decision herein of Brigadier A G Warner, Member

............[Sgd].............................
Associate
Dated: 2 April 2024

Date of hearing: 14 February 2024

Applicant: Self-represented

Representative for the Respondent: Mr A Burgess, Australian Government Solicitors

Date of hearing:	14 February 2024
Applicant:	Self-represented
Representative for the Respondent:	Mr A Burgess, Australian Government Solicitors