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

Kochergen and Secretary, Department of Social Services (Social services second review) [2019] AATA 2213 (25 July 2019)
Division:GENERAL DIVISION
File Number(s): 2017/6469
Re:Secretary, Department of Social Services
APPLICANT

AndDavid Kochergen
RESPONDENT

DECISION
Tribunal:Member I F Thompson and G Hallwood
Date:25 July 2019
Place:Adelaide

The Tribunal sets aside the decision under review and in substitution decides that the respondent is not qualified to receive the disability support pension from 15 August 2016 or within 13 weeks of that date.
...........................[sgnd]......................................
Member I F Thompson
…………………...[sgnd]……………………………
Member G Hallwood
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether respondent’s medical conditions were fully diagnosed, fully treated and fully stabilised during the assessment period – whether the respondent has a severe impairment – decision under review set aside and substituted that respondent is not qualified for disability support pension
LEGISLATION
Administrative Appeals Tribunal Act 1975
Social Security Act 1991
Social Security (Administration) Act 1999
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Re Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Re Fanning and Secretary, Department of Social Services [2014] AATA 447
Secretary, Department of Social Services and Seyfang [2016] AATA 243
SECONDARY MATERIALS
Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Member I F Thompson and G Hallwood
25 July 2019
INTRODUCTION

The respondent, David Kochergen, lodged a claim for disability support pension (DSP) on 15 August 2016. Centrelink rejected the claim in the first instance and Mr Kochergen requested a review of that decision. An authorised review officer (ARO) of Centrelink subsequently affirmed the decision.
Mr Kochergen requested a review by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1). The decision under review was set aside. The AAT1 ordered that Mr Kochergen’s DSP claim be reassessed by Centrelink on the basis that he satisfies s 94(1)(a),(b) and (c) of the Social Security Act 1991 (the Act) and has done so since the date of the claim.
The Secretary, Department of Social Services applied to the General Division of the Tribunal (AAT2) for a second review. The hearing took place on 6 May 2019. Mr Kochergen attended the hearing and was represented by Ms. Lewis, from the Legal Services Commission. The Tribunal was assisted by an interpreter in the Russian language as Mr Kochergen's preferred spoken and written language is Russian. Mr Visser represented the applicant, the Secretary, Department of Social Services.
Mr Kochergen did not give evidence at the hearing. He had given evidence at the hearing before the AAT1. The Secretary called one witness, Dr Tabart. She is a medical adviser engaged by the Commonwealth Health Professional Advisory Unit and gave evidence by telephone. The Tribunal received in evidence the documents lodged in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 together with various medical reports and other documents.
Mr Kochergen is now 58 years old. He suffers from a number of medical conditions which include type 2 diabetes and diabetic peripheral neuropathy, depression and anxiety, glaucoma, hypertension, hearing loss, spinal disorder, upper limb problems, a torn right vastus lateralis muscle, and chronic obstructive airways disease.
LEGISLATION AND ISSUES
Section 94(1) of the Act provides that a person is qualified for DSP if they have a physical, intellectual or psychiatric impairment and that impairment attracts a rating of 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).
The impairment must be present at the time of the claim or within the following 13 weeks, as specified by the Social Security (Administration) Act 1999 (the Administration Act). The assessment period in this case is 15 August 2016 to 14 November 2016.
Further, s 94 of the Act requires that a person has a continuing inability to work which will be satisfied if:
(a)They have an inability to work due to their accepted impairments for 15 hours or more a week; and
(b)They have actively participated in a ‘program of support’.
The second requirement is not necessary if a person has a severe impairment of 20 points or more under a single Impairment Table.
Mr Kochergen will qualify for the DSP if the Tribunal is satisfied that he has one or more physical, intellectual or psychiatric impairments, secondly that the impairment is rated at least 20 points under the Impairment Tables and, finally, that he has a continuing inability to work. In the absence of a severe impairment, one of the requirements for a continuing inability to work is an active participation in a program of support. The Tribunal’s responsibility is to assess Mr Kochergen’s eligibility for the DSP and decide the matter afresh, as opposed to reviewing the AAT1’s decision for error.[1]
[1] Re Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 68.
The Secretary accepted that Mr Kochergen suffers from an impairment and therefore satisfied s 94(1)(a) of the Act. The Secretary, however, contended that Mr Kochergen’s overall impairment rating for impairments arising from fully diagnosed, treated and stabilised conditions is zero points and that he does not satisfy s 94(1)(b) of the Act. And further, the Secretary argued that Mr Kochergen did not have a continuing inability to work and was not qualified for the DSP during the assessment period.
Mr Kochergen contended that the AAT1 made the correct decision when it found that he qualified for the DSP during the assessment period. He sought an order affirming the decision under review.
The main issue for determination is whether Mr Kochergen’s impairments could be assigned 20 points or more under the Impairment Tables during the assessment period and, if so, whether he had a continuing inability to work. As discussed below, because Mr Kochergen did not satisfy the ‘program of support requirement’ during the assessment period, and this point was conceded by him, his qualification for DSP turns on whether any of his impairments can be rated as ‘severe’ under a single Impairment Table.
BACKGROUND
Mr Kochergen’s claim for DSP listed his disabilities, illnesses and injuries as permanent physical impairment of the arm below the elbow, axonal sensory polyneuropathy of the lower limbs, type 2 diabetes mellitus, depression and glaucoma.[2] His claim form provided details of treatment that he was receiving, including physiotherapy, psychotherapy and a range of medication, together with a comment:[3] ‘I need considerable medical attention and am unwell, in particular my diabetic condition, neuropathy and other complications are likely to reduce my life expectancy.’
[2] T9/138.
[3] T9/139.
A Job Capacity Assessment (JCA) Report[4] was submitted on 26 September 2016 following Mr Kochergen’s participation in a face to face interview with an assessor.[5] The JCA report provided details of Mr Kochergen's daily activities and restrictions.
[4] T32.
[5] Assisted by an interpreter in the Russian language.
Mr Kochergen was diagnosed with type 2 diabetes mellitus in mid-2014 and a medical certificate in August 2016 provided a diagnosis of diabetic neuropathy. Symptoms included decreased sensation in both legs and hands and numbness. The JCA Report noted that Mr Kochergen was prescribed diabetic medication and was taking pain relief.
The JCA report noted that Mr Kochergen spoke of numerous impacts and restrictions that arise out of his medical conditions. For example, the JCA report recorded that he suffered from pain in his feet, interference with sleep because of pain in hands and feet, occasional numbness in his fingers, weakness in hands and feet, and pain on raising his arms to shoulder height. Mr Kochergen reported interference with activities of daily living including domestic tasks such as cooking, hanging out the washing, and cleaning.
The JCA report noted that Mr Kochergen felt pain when sitting down with a ‘pulling feeling in his back and down his legs into his feet.’[6] He confirmed that he had been diagnosed with glaucoma which was treated with eye drops under the care of a medical specialist at the Royal Adelaide Hospital.
[6] T32/218.
According to the JCA report, Mr Kochergen stated that he was receiving professional care for anxiety and depression. Treatment included anti-depressants and also counselling by a psychologist. Physical pain and insomnia were contributing factors in his mental health condition which included negative impacts on his memory, concentration and motivation.[7] Mr Kochergen wears hearing aids because of bilateral hearing loss.
[7] T32/219.
Prior to his DSP claim Mr Kochergen had a history of employment initially as a welder and subsequently as a taxi driver. According to the JCA Report he ceased working because of the impact of his medical conditions.[8] He had completed the equivalent of year 11 schooling in Russia. He can speak only basic English and he was linked into services through a disability management service provider.
[8] T32/223.
By letter dated 27 September 2016, Centrelink advised Mr Kochergen that it rejected his DSP claim as he was ‘assessed as not having an impairment rating of 20 points or more ‘.[9] Following review by an ARO of that decision, Centrelink wrote a detailed letter to Mr Kochergen dated 2 December 2016 in which it was explained that his medical conditions were not accepted as permanent and they were not fully treated and stabilised.[10] Accordingly no impairment rating could be assigned and he did not qualify for the DSP.
[9] T10/146.
[10] T13.
The AAT1 reviewed Centrelink’s decision on 19 September 2017. The AAT1 found that Mr Kochergen’s upper limb impairment attracted 20 points under Impairment table 2, that his lower limb impairment attracted 10 points under Impairment Table 3, and that his low back pain rated 5 points under Impairment Table 4. Each of the other medical conditions did not attract an impairment rating.
Accordingly the AAT1 found a total impairment rating of 35 points and concluded that Mr Kochergen satisfied s 94(1) of the Act and qualifies for the DSP subject to all other applicable requirements of the Act being met.
In applying to the AAT2 for review, the Secretary’s reasons for application stated that the AAT1 erred in finding that Mr Kochergen satisfied paragraphs 91(1)(a), (b), and (c) of the Act. Specifically the Secretary asserted that the AAT1 erred in allocating 20 impairment points under Impairment Table 2 and 10 points under Impairment Table 3 for Mr Kochergen’s diabetes/peripheral neuropathy and that the AAT1 erred in finding that he had a continuing inability to work.
CONSIDERATION
The Tribunal notes the comments of Deputy President Bean in Secretary, Department of Social Services and Seyfang:[11]
I am required to have regard to the state of affairs during the assessment period, and without regard to later developments. Whilst I may have regard to evidence which came into existence after the assessment period, this is relevant only in so far as it assists in establishing the true state of affairs during the assessment period.
[11] [2016] AATA 243 [23].
The rationale for that approach is highlighted in the comments of the Tribunal in Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs:[12]
In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.
[12] [2012] AATA 922 [34].
In fact, the way in which the Tribunal must assess evidence of treatment after the assessment period has been discussed in a number of decisions. In Re Fanning and Secretary, Department of Social Services, Deputy President Handley stated that:[13]
The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether ‘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’ (emphasis added). While hindsight may suggest that treatment did not result in improvement within two years that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision.
[13] [2014] AATA 447, 33.
Those comments are particularly relevant to the present case given the significant and unfortunate lapse of time between lodging the DSP claim on 15 August 2016 and the hearing before this Tribunal on 7 May 2019. This is a period is approaching three years. The general effect of the medical evidence is that Mr Kochergen’s medical conditions have deteriorated over the last two and a half years. However, the task for the Tribunal is to assess his condition at the time of the DSP claim and during the assessment period.
IMPAIRMENT TABLES
The Impairment Tables provide the mechanism to assign ratings for the level of functional impact of impairment. They are based on function rather than diagnosis and they describe functional activities, abilities, symptoms and limitations. First, however, consideration must be given to whether each condition was fully diagnosed, fully treated and fully stabilised during the assessment period before determining an assessment rating. This is because the Impairment Tables provide this as a prerequisite for the allocation of an impairment rating.
Section 6 of the Impairment Tables states that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent, and that the impairment results from a condition that is more likely than not to persist for more than two years. A condition is permanent if it has been fully diagnosed, fully treated and fully stabilised.
Section 6(5) of the Impairment Tables provides that a decision of whether a condition is fully diagnosed and fully treated requires consideration of corroborating evidence of the condition, the treatment or rehabilitation that the person has had for the condition, and, whether treatment is continuing or is planned in the next two years.
Section 6(6) of the Impairment Tables states, in part, that a condition is fully stabilised where a person has undertaken reasonable treatment and any further reasonable treatment is unlikely to result in significant functional improvement to a level which would enable the person to undertake work in the next two years.
Type 2 diabetes and diabetic peripheral neuropathy
Mr Kochergen was diagnosed with Type 2 diabetes mellitus in 2014. Following that diagnosis, diabetic peripheral neuropathy was clinically evident.
Dr Tabart wrote in her report dated 13 February 2018 that diabetic peripheral neuropathy is:[14]
…damage to the nerves that supply the lower and upper limbs resulting from elevated blood glucose levels. Feet and legs are typically affected before hands and arms, with symptoms progressing distally to proximally, that is, from toes/fingers and up each limb. The distribution of affected body parts is described as ‘stocking and glove.’ Symptoms can include numbness, pain, impaired balance and, when and if muscles are affected (usually later in the course of the disease), weakness.
[14] Ex 11/7.
The AAT1, which comprised medical member Dr Swanson, described Mr Kochergen's peripheral neuropathy as a complication of diabetes and observed that:
…There is no likelihood of it improving in future. Good management of Mr Kochergen’s diabetes may well contribute to lessening or preventing progression but the Tribunal’s understanding of diabetic neuropathy is that significant improvement is extremely unlikely.
A general medical practitioner, Dr Myo Tun, provided a written report on 2 October 2014[15] to Centrelink in regard to Mr Kochergen’s DSP claim. Dr Tun wrote that a diagnosis of type 2 diabetes was made on 4 June 2014. Treatment by medication commenced on 1 July 2014 which is approximately two years and one month prior to the DSP claim, in addition to a referral to a hospital endocrinology clinic in relation to diabetes neuropathy. Reported symptoms included tingling and numbness of feet.
[15] T21/192.
Dr Tun also completed a number of medical certificates between 29 November 2014 and 30 July 2015. [16] Another general medial practitioner, Dr Khasanov completed medical certificates between 27 November 2015 and 25 August 2017. In all, a total of 15 medical certificates were compiled and each one of them included a diagnosis of diabetes and neuropathy as a primary condition which was variously described as permanent, stabilised, with uncertain prognosis.
[16] T40.
The medical certificate from Dr Khasanov immediately prior to the DSP claim listed diabetic neuropathy, shoulder pain and spondylosis as diagnosed, primary, and permanent with symptoms noted as decreased sensation in both legs and hands, numbness and limited range of movement in the left shoulder.[17] Anxiety and depression were noted as secondary and related to the primary issues.
[17] T40/253.
In a report dated 27 August 2016, which is during the assessment period, Dr Khasanov wrote that Mr Kochergen has:[18]
…multiple medical conditions – Type 2 Diabetes Mellitus, Glaucoma, Diabetic Neuropathy in both hands and feet, torn vastus laterlais, muscle in the right leg ….compression of the right ulnar nerve requiring surgical release with partial effect. He is wearing hearing aids due to bilateral hearing loss. He suffers from chronic depression and anxiety requiring him regularly see psychologist. He currently continue to see multiple specialists at RAH and LMH.
[18] T40/257.
In medical certificates subsequent to the assessment period, Dr Khasanov noted the prognosis in relation to the primary medical conditions was poor. Past treatment had included diabetic medications and eye drops while specialist review was planned.

About three months after the assessment period, Dr Khasanov provided a report dated, 11 February 2017, in which he wrote that Mr Kochergen:[19]
…has been suffering from diabetes for years and developed diabetic neuropathy and gastroparesis for the last 2 years at least….He has chronic debilitation conditions and their complications. He is not going to improve but most likely further deteriorate. He is seeing multiple specialists re his diabetes, diabetic neuropathy, frozen shoulder, glaucoma. He is on polypharmacy which in the future can only extend.
[19] T34/226.
Associate Professor Lee conducted a nerve conduction study on 24 February 2016, which provided a clinical diagnosis of axonal sensory polyneuropathy of the lower limbs which was seemingly due to diabetes. The treatment strategy was described thus: ‘All that can be offered is to ensure optimal glycaemic control.’ [20]
[20] T28/208.
Mr Kochergen had been referred to the Royal Adelaide Hospital orthopaedic outpatient service. The consultant in spinal services in that department, Mr Yau, wrote a report dated 17 March 2016 in which he noted the results of the nerve conduction study. He confirmed his advice regarding treatment for Mr Kochergen, namely: ‘…optimal glycaemic control and perhaps he could be trialled on a variety of neuropathic medications.’ [21]
[21] Ex 15.
Dr Tabart examined the medical reports and associated material. She has not spoken with Mr Kochergen. After reading and analysing the reports, she concluded that Mr Kochergen’s diabetic peripheral neuropathy was fully diagnosed but not yet fully treated and stabilised as at the relevant claim period. She recorded that conclusion in two reports, the first dated 8 February 2018[22] and the second report dated 3 April 2019 which was compiled after receipt of more recent medical evidence.[23] She gave oral evidence to the Tribunal and expanded upon and confirmed the conclusions which she had drawn in her two reports.
[22] Ex 11.
[23] Ex 3.
In her initial report, Dr Tabart formed the view about the condition not being fully treated and stabilised because, as she explained:[24]
The result from 15 November 2016, representing the blood glucose control over the preceding 6-8 weeks, i.e. during the relevant claim period was high, indicating less than satisfactory control of diabetes mellitus. As such, diabetic medication was changed, which has resulted in better control of the diabetes.
I would suggest new information obtained confirms that, as at the claim period, diabetes mellitus was not satisfactorily controlled and therefore not fully treated or stabilised for DSP purposes.
With respect to the painful diabetic peripheral neuropathy, new information obtained confirms that, appropriately, further treatment options have been undertaken since the claim period with some medications still yet to be trialled. There has only recently been a referral made to a pain specialist, with first appointment pending.
I would suggest new information obtained confirms that, as at the claim period, the painful diabetic peripheral neuropathy was not yet fully treated or stabilised for DSP purposes.
[24] Ex 11.
The ARO considered that the type 2 diabetes mellitus and diabetic neuropathy constituted a condition that could not be considered to be fully treated and stabilised. In correspondence to Mr Kochergen, the ARO wrote to Mr Kochergen by letter dated 2 December 2016 that:[25]
There are some cases where satisfactory control cannot be achieved in spite of specialist management and vigorous treatment. In the absence of evidence illustrating that you have exhausted reasonable treatment, I agree that this condition cannot be considered to be fully treated and stabilised. It was correct not to assign an impairment rating.
[25] T 13/151.
In the absence of evidence from Mr Kochergen himself, the Tribunal takes into account the history which he gave for the JCA report which was presented on 26 September 2016. The contents of that report were not challenged during the hearing.
The JCA report noted that Mr Kochergen outlined various restrictions and difficulties arising out of the diabetic neuropathy.[26] For example, Mr Kochergen told the assessor of his inability to put socks on due to pain in his feet, an inability to sleep due to pain in his hands and feet, weakness in his hands and feet, numbness ‘on and off’, indicating that he is able to do up buttons and unscrew bottle lids and if numb is unable to do so. He said he could hold a pen, depending on the day; he could lift his right arm above shoulder height and his left to shoulder height, though it was painful. He said that he did not hang out the washing, that he could manage about 15 – 20 minutes of walking; he can hold three – five kilograms, although his hand might open in reaction to hot and cold. He struggled to manage the cooking and cleaning. Getting mobile in the morning was difficult ‘as everything hurts.’ The JCA report noted that Mr Kochergen felt pain when sitting down with a ‘pulling feeling in his back and down his legs into his feet.’ He told the assessor that he was taking pain relief including Lyrica and Endone and was consulting his local doctor. He said that he checked his sugar levels every day, and was consulting an endocrinologist every three – four months, and had also seen a diabetes educator and dietician.
[26] T32/216.
The AAT1 summarised Mr Kochergen’s evidence which he gave at that hearing. The decision was delivered on 19 September 2017, some 10 months after the assessment period. He told the AAT1 that he has lost most of the sensitivity in his fingers as well as his feet, together with a loss of strength in his hands. He has a frozen left shoulder and cannot lift it far. Maximum lifting capacity was three kilograms, he could not hold a pen for long, he has difficulty using a computer, and difficulty holding cutlery. Dressing is difficult and he could not do up buttons and shoe laces. He could lift a carton of milk with his left hand. He could drive short distances and used his left arm to control the steering wheel. Numbness in the feet was a problem, he gets low back pain when he walked and could only walk short distances. Wearing shoes was problematic because of nerve pain.
The Tribunal also takes into account the details which Mr Kochergen provided in the DSP claim form concerning the effects of his medical conditions which he describes as having adverse impact on his physical, emotional and mental state.[27] He listed severe restrictions in carrying out ‘all but the basic activities of daily living and wrote: ‘I need considerable medical attention and unwell, in particular my diabetic condition, neuropathy and other complications are likely to reduce my life expectancy.’ He wrote that he was unable to continue work as a welder due to work related injuries, in particular injuries to the right forearm and hand, left shoulder and elbow pain and referred to a report from a neurosurgeon, Dr Molloy.
[27] T9/139.
Dr Molloy is a neurosurgeon and she wrote a report on 10 January 2006 which confirmed a right ulnar neuritis and right sided bursitis.[28] Dr Molloy had treated Mr Kochergen initially in October 2002 when he was working as a welder and last saw him three years later in October 2005. Dr Molloy wrote that Mr Kochergen had a permanent physical impairment of the arm below the elbow and the condition had not resolved despite two operations and extensive rehabilitation programs.
[28] T19.
The Tribunal is satisfied that Mr Kochergen’s type 2 diabetes mellitus and the associated diabetic peripheral neuropathy were fully diagnosed in the assessment period.
The Secretary contended that the diabetes was not satisfactorily controlled at the time of the assessment period and was therefore not fully treated and stabilised. The Secretary also contended that the diabetic peripheral neuropathy was not fully treated and stabilised as a number of reasonable treatments had not been trialled. Both of those assertions follow from Dr Tabart’s reports and evidence.
There may be situations when a condition should be regarded as fully treated even if the treatment is still going to continue or is planned to take place sometime into the future. This could occur, for example, in situations where it is clear that the person’s functional capacity will not improve during the next two years even though the person is likely to continue to access and receive reasonable and appropriate treatment.
The reports from the general medical practitioners, as summarised above, demonstrate that Mr Kochergen had been receiving regular and appropriate treatment for slightly more than two years prior to the DSP claim.
The Tribunal considers that Mr Kochergen had undertaken sustained, reasonable treatment for the conditions of type 2 diabetes and associated diabetic peripheral neuropathy. The Tribunal also considers that further, reasonable treatment would be ‘unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years’.[29] There was ample medical evidence available to draw that conclusion at the time of the DSP claim and in the assessment period. That evidence is provided through the medical certificates and reports from Dr Tun and Dr Khasnasov.
[29] Section 6(a) Impairment Tables.
In addition, Dr Tabart appeared to acknowledge that the treatment program in 2014 and 2015 was suitable both in relation to the medication regime and the fact that regular reviews were occurring ‘with the suite of allied health practitioner usually engaged to support management of diabetes mellitus’.[30] Furthermore, Dr Tabart acknowledged that by April 2015 specialist and multi-disciplinary treatment was occurring, including specialist endocrinologist input. In that regard, it is important to note that the Impairment Tables do not specify that the treatment must be optimal treatment. On the contrary, the requirement is that the treatment is reasonable and the criteria for assessing the reasonableness of the treatment are set out in r 6(7).[31]
[30] Ex11/9.
[31] T5/27.
Upper Limb
Impairment Table 2 concerns upper limb function and is used where the person has a permanent condition resulting in functional impairment when performing activities that require the use of hands or arms. The diagnosis of the condition must be made by a qualified medical practitioner and self-report of symptoms alone is not sufficient.
For a moderate functional impact Impairment Table 2 states:

Points

Descriptors

10

There is a moderate functional impact on activities using hands or arms.

(1)       The person has difficulty with most of the following:

           (a)       picking up a 1 litre carton full of liquid;

           (b)       picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);

           (c)       holding and using a pen or pencil;

           (d)       doing up buttons or tying shoelaces;

           (e)       using a standard computer keyboard;

           (f)        unscrewing a lid on a soft-drink bottle.

For a severe functional impact, Impairment Table 2 states:

Points

Descriptors

20

There is a severe functional impact on activities using hands or arms.

(1)       Most of the following apply to the person:

           (a)       the person has limited movement or co-ordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional;

           (b)       the person has severe difficulty handling , moving or carrying most objects even when using or wearing any prosthesis or assistive device that they have and usually);

           (c)       the person has difficulty using a computer keyboard despite appropriate adaptations;

           (d)       the person has sever difficulty using a pen or pencil;

           (e)       the person has sever difficulty turning the pages of a book without assistance;

Taking into account the evidence, as previously summarised, about Mr Kochergen’s condition, the Tribunal is satisfied that his diabetes and diabetic peripheral neuropathy were fully diagnosed during the assessment period and fully treated and stabilised. The Tribunal considers that the effects of these conditions on Mr Kochergen’s upper limb function attracts a rating of 10 points under the Impairment Tables for a moderate functional impact, in particular in meeting the descriptors in (1)(b), (c), (d) and (e).
Lower Limb
Impairment Table 3 relates to lower limb function. It provides the descriptors relating to the use of the lower limbs. It is used where a person has a permanent condition which leads to functional impairment performing activities that require the use of legs or feet.
For a moderate functional impact Impairment Table 3 states:

Points

Descriptors

10

There is a moderate functional impact on activities using lower limbs.

(1)       At least one of the following applies:

(a)       the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or

(b)       the person is unable to use stairs or steps without assistance; or

(c)       the person is unable to stand for more than 5 minutes; and

(2)       The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.

(3)       This impairment rating level includes a person who can:

(a)       move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or

(b)       move around independently using walking aids (e.g. quad stick, crutches or walking frame).

Note: The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.

Taking into account the evidence, as summarised previously, about Mr Kochergen’s condition, the Tribunal considers that the effects of his diabetes and diabetic peripheral neuropathy conditions on his lower limb function attracts a rating of 10 points under the Impairment Tables for a moderate functional impact, in particular in meeting the descriptors in (1)(a), and (2).
Spinal disorder
Impairment Table 4 – Spinal function, is used where a person has a permanent condition which has a functional impairment in the performance of activities involving spinal function, namely, bending or turning the back, trunk or neck. The diagnosis must be made by an appropriately qualified medical practitioner.
A radiology report dated 23 June 2015 indicated disc degeneration at L5-S1 and L304 levels.[32]
[32] T24/204.
An X-ray of Mr Kochergen’s cervical spine reported on 14 September 2015 there was narrowing of the C5-6 and C6-7 intervertebral disc space.[33]
[33] T25/205.
Dr Khasanov’s certificate dated 27 August 2016 recorded a diagnosis of spondylosis.
In the JCA report, Mr Kochergen was reported to have pain when sitting down with a pulling feeling in his back and down his legs into his feet. According to the report Mr Kochergen said he could lift a light object with both hands and can turn his head both ways and look up. He said that he takes pain medication and had previously seen a neurologist. Mr Kochergen told the AAT1 that he had suffered low back pain for about two years, which would date back to 2015. He said he could not sit or stand for long and cannot bend far.
Medical certificates signed by Dr Khasanov between 25 February 2016 and 30 November 2016 refer to a diagnosis of spondylosis.[34] The medical certificate dated 27 February 2017 refers to a permanent condition of advanced spondylosis, while the medical certificate dated 2 May 2017 mentions ongoing chronic pain and restricted movement in the low back. Treatment apparently included physiotherapy.
[34] T40/252; T 40/253; T 40/256; T40/259.
The JCA Report determined that the spinal condition was not fully diagnosed, treated and stabilised and it was not contended otherwise by counsel for Mr Kochergen at the hearing.
The Tribunal is satisfied that there is sufficient medical evidence to conclude that the spinal disorder was diagnosed at the assessment period. However, the evidence about treatment and outcomes is sparse and therefore it cannot be concluded that the spinal condition was fully treated and fully stabilised as at the assessment period. Accordingly no impairment rating can be made.
Depression and anxiety
Impairment Table 5 provides the descriptors relating to functional impairment due to a mental health condition, which includes recurrent episodes of mental health impairment. The introduction to Table 5 also indicates that the signs and symptoms of mental health impairment can vary over time and for mental health conditions that are episodic, the rating that best reflects the persons overall functional ability is appropriate. It is necessary to have regard to the severity, duration and frequency of the episodes or fluctuations
According to the JCA report, Mr Kochergen reported that he was receiving treatment for anxiety and depression. At that time he was consulting a psychologist once per month, for about one year. Treatment included anti-depressants and also counselling by a psychologist. It also included counselling and cognitive behavioural interventions for pain and insomnia.[35]
[35] T32/219.
The JCA report commented that Mr Kochergen:[36]
…reports that his concentration is impacted as well as his memory, indicating that his son-in-law reminds him to take his medication, ringing him every day to do so. ….the psychologist has assisted him with how to breathe and when feeling like how to self-harm, how to avert this. …reports low motivation and is not always able to follow through on plans made, indicating that sometimes he just does nothing even though he should do things…he is able to leave the house on his own…he is unable to sleep due to pain and is able to watch television, but his thoughts are elsewhere.
[36] Ibid.
Mr Kochegren told the AAT1 that he had suffered from depression for over three years that he does not go out, he lives on his own and has only one friend, and that his son-in-law ‘helps him out’.
The introduction to Impairment Table 5, Mental Health Function, states that a diagnosis is required from an appropriately qualified medical practitioner (including a psychiatrist) with evidence from a clinical psychologist when the diagnosis has not been made by a psychiatrist.

The JCA report noted that there was a medical report from the general medical practitioner, Dr Khasanov dated 27 August 2016 which indicated a diagnosis of anxiety and chronic depression, while a report dated 30 April 2016 from a psychologist, Mr Kozlow, suggested anxiety and depression. The JCA report concluded that a mental health disorder was not fully diagnosed, treated and stabilised for the purposes of the assessment, because of the absence of corroborating evidence.
Dr Khasanov provided medical certificates dated 27 November 2015, 25 February 2016 and 26 May 2016, 27 August 2016 in which he recorded a condition of anxiety and depression, with past and present treatment recorded as antidepressants, and psychotherapy.[37]
[37] T40/251-256.
Mr Kozlow is a registered psychologist, not a clinical psychologist. In a report dated 30 April 2016, about three and a half months before the DSP claim, Mr Kozlow wrote that Mr Kochergen had been referred to him under the mental health care plan for treatment for anxiety and depression. He also required ongoing counselling and behavioural interventions for pain and insomnia. Mr Kozlow concluded that Mr Kochergen was suffering from medical and psychological conditions which ‘seriously affect his ability to perform the basic activities of daily living.’[38]
[38] T30/211.
In a later report which is quite some time subsequent to the assessment period, Mr Kozlow wrote on 28 July 2017 that Mr Kochergen had been attending cognitive behavioural therapy sessions at his local medical, family practice. Mr Kozlow considered that Mr Kochergen was ‘clinically depressed (major depressive disorder), anxious, socially restricted, irritable and demoralised (social anxiety)’.[39] He concluded that Mr Kochergen is ‘a fragile and vulnerable person who will continue to require constant medical care and psychological support for his multiple medical and psychological conditions.’
[39] T 38/235.

A psychiatrist, Dr Tai, assessed Mr Kochergen’s mental health condition on 14 July 2017 with a view to providing some suggestions to his general medical practitioner regarding management of the condition. Dr Tai reported that subject to what he described as limitations of his assessment, that Mr Kochergen is moderately affected by a major depressive disorder and social anxiety, which had been present for at least the last two to three years. In relation to current and future treatment, Dr Tai wrote:[40]
Mr Kochergen is taking Duloxetine 60 mg daily/oral. I have suggested to his GP that this medication can be increased to potentially double the dose that he is currently on. Mr Kochergen states that he initially had some improvement with the Duloxetine so I am hopeful that there will be some future improvement with this, however this may be difficult to quantify. The change of medication is also unlikely to change his social situation and therefore may be somewhat limited in its effect. Mr Kochergen is also receiving psychological support at the moment which I have encouraged.
[40] T 37/233.
In her review of the reports regarding treatment of Mr Kochergens mental health condition, inclusive of a major depressive disorder and a social anxiety disorder, Dr Tabart analysed the recognised treatment regimes.[41] In particular, she was satisfied that neither medication treatment had been fully implemented nor psychiatric assessment and management were in place in the claim period. She was concerned that the presence of two comorbidities, an anxiety disorder and chronic pain, could reduce the effectiveness of anti-depressant medication used to treat the depressive disorder. The medication was still being reviewed and changed in 2017, with a recommendation from Dr Tai in July 2017 for a potential doubling of the dose of one of the medications. Dr Tabart considered that there were still a number of ‘first-line’ treatment options available for both aspects of Mr Kochergen’s mental health condition during the assessment period. It is clear on the evidence that treatment was still underway at that time for a condition that was still under review and not stabilised. One of the complicating factors was the inter-connection between the treatment of the mental health problems and the treatment for the chronic, physical pain.
[41] Ex 11.
The evidence available to the Tribunal does not include either contemporaneous or subsequent evidence from a psychiatrist or clinical psychologist regarding diagnosis of Mr Kochergen’s condition prior to and during the assessment period. This is problematic in regards to the analysis required by the introductory criteria in Table 5.
Dr Tabart’s observations in her two reports and in her oral evidence at the hearing highlight the importance of having information from a psychiatrist or from a clinical psychologist about a DSP respondent’s mental health condition during the assessment period. In her report written on 13 February 2018 Dr Tabart questioned whether the diagnosis of Dr Tai could be regarded as ‘legislatively acceptable ‘as evidence of a diagnosis in the assessment period.’[42]
[42] Ex 11,12.
The requirements were acknowledged, and the reasons for them were highlighted, in the comments of Senior Member Dunne and Professor Reilly in Yazdari and Secretary Department of Social Services:[43]
(a) the Impairment Tables are for assessing the degree of psychiatric impairment, not to assess the severity of psychiatric conditions;
(b)       an impairment rating can only be assigned to a psychiatric impairment if the condition causing that impairment is ‘permanent’;
(c)       a psychiatric condition is only ‘permanent’ if it has been fully diagnosed by an appropriately qualified medical practitioner such as a psychiatrist or, failing that, a general practitioner with input from a clinical psychologist;
(d)       while psychiatric conditions are diagnosed by reference to psychiatric symptoms, an appropriately qualified medical practitioner would usually differentiate between a diagnosed condition and the symptoms on which their diagnosis is based; and
(e)       it is not possible to assess whether a psychiatric condition has been fully treated and stabilised without a proper diagnosis, which is essential for the development of a fully informed treatment plan.
[43] [2014] AATA 34, [30].
The Tribunal is not satisfied that Mr Kochergen’s mental health condition can be said to have been fully diagnosed, treated and stabilised during the assessment period. Therefore no points can be assigned under Table 5 of the Impairment Tables.
Even if it could be concluded that Mr Kochergen suffered from a fully diagnosed, treated and stabilised mental health condition, no more than 10 points could be assigned under Table 5, having regard to the reports received in evidence.
Other conditions
Mr Kochergen’s other conditions included chronic obstructive airways disease, a torn right vastus lateralis muscle, hearing loss, glaucoma and hypertension. It was conceded by Mr Kochergen in his statement of issues facts and contentions prior to the hearing that these were non-qualifying conditions for the purposes of his DSP claim. This position did not alter at the hearing. And on the evidence before the Tribunal, it is clear that none of these conditions would attract a rating under the Impairment tables.
Program of Support
The next step for the Tribunal is to consider whether Mr Kochergen had actively engaged in a program of support for 18 months out of a period of 36 months preceding his DSP application, as required by Part 2 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination).[44] The relevant period for consideration is 15 August 2013 to 15 August 2016.
[44] Ex1, T7, 101.
While Mr Kochergen has a total rating of 20 points across the Impairment Tables, he does not have an assessment of 20 points or more under one Table and therefore does not meet the definition of having a severe impairment. Therefore he needs to have a continuing inability to work, as defined in s 94(2) of the Act. And accordingly, he must have actively participated in a program of support and his impairment must be sufficient from preventing him from doing any work or training activity independently of a program of support within the next two years.
A program of support is designed to assist persons to prepare for, find and maintain employment. Subsections 7(1) and (2) of the POS Determination require a person to participate in a program of support and comply with it for a period of at least 18 months during the period of 36 months ending immediately before the date of the DSP claim.
The Secretary contended that Mr Kochergen had not participated in a program of support for at least 18 months during the three years leading up to the date of the DSP claim. Mr Kochergen did not dispute this contention. It appears that he had participated in a program of support for 207 days in the relevant period which is considerably less than the required period of 18 months (547 days) required by the POS Determination.
Further, it was not contended that ss 7(3), 7(4) and 7(5) of the POS Determination apply to Mr Kochergen’s circumstances. Those subsections provide an alternative pathway to compliance with the requirements of the program of support. There is no evidence which indicates that the exceptions could be applicable .On the contrary, the general medical practitioner, Dr Ulanov, reported that Mr Kochergen was able to actively participate in a program of support.[45]
[45] Ex 9.
The Tribunal finds the program of support requirement has not been met.
SUMMARY
The Tribunal finds that s 94(1)(a) of the Act regarding impairment is satisfied.
As outlined, the Tribunal finds that Mr Kochergen’s mental health condition was not fully diagnosed, fully treated and fully stabilised during the assessment period. Accordingly a rating cannot be given under the Impairment Tables for any impairment from the mental health condition.
Mr Kochergen’s lower limb condition was fully diagnosed, treated and stabilised during the assessment period and the applicable impairment rating is 10 points.
Mr Kochergen’s upper limb condition was fully diagnosed, treated and stabilised during the assessment period and the applicable impairment rating is 10 points
Mr Kochergen’s spinal condition was diagnosed during the assessment period, however it was not fully treated and fully stabilised. Accordingly, an impairment rating cannot be given.
With a total of 20 impairment points, s 94(1)(b) of the Act is satisfied.
Mr Kochergen does not have a severe impairment within the meaning of s 94(2)(aa) of the Act as he does not have an impairment rating of 20 points or more under a single Impairment Table. Accordingly, there is a requirement for him to have actively participated in a program of support within the meaning of s 94(3C). However, as previously explained, Mr Kochergen does not meet the requirements for active participation in a program of support and does not satisfy the criteria for continuing inability to work within the meaning of s 94(1)(c) of the Act.
Accordingly, Mr Kochergen has not qualified for DSP at the time he made his claim and during the assessment period.
DECISION
For the reasons set out above the Tribunal sets aside the decision under review and in substitution decides that Mr Kochergen is not qualified to receive the disability support pension from 15 August 2016 or within 13 weeks of that date.

I certify that the preceding paragraphs one hundred and eight (108) are a true copy of the reasons for the decision herein of I F Thompson and Member G Hallwood

........................[sgnd].........................................
Associate

Dated: 25 July 2019

Date(s) of hearing: 6 May 2019

Advocate for the Applicant: Mr Visser, Department of Social of Services

Advocate for the Respondent: Ms. Lewis, Legal Services Commission

[2019] AATA 2213

25 July 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Dated:	25 July 2019
Date(s) of hearing:	6 May 2019
Advocate for the Applicant:	Mr Visser, Department of Social of Services
Advocate for the Respondent:	Ms. Lewis, Legal Services Commission