Samorukoff and Secretary, Department of Social Services (Social services second review) - [2019] AATA 5030

Samorukoff and Secretary, Department of Social Services (Social services second review) [2019] AATA 5030 (29 November 2019)
Division:GENERAL DIVISION
File Number(s): 2018/7324
Re:Vasily Samorukoff
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Mark Hyman, Member
Date:29 November 2019
Place:Canberra

The decision under review is affirmed.
........................................................................
Mark Hyman, Member
Catchwords
SOCIAL SECURITY – disability support pension – genetic disorder requiring a kidney transplant – effects of the transplant – effects of immunosuppressive drugs – cardiomyopathy arising from arteriovenous fistula – gout – osteopaenia and osteoporosis – carpal tunnel syndrome – whether each condition fully diagnosed, treated and stabilised – continuing inability to work – decision affirmed
Legislation
Legislation
Administrative Appeals Tribunal Act 1975, s 37
Social Security Act 1991, ss 26, 27, 94
Social Security (Administration) Act 1999, ss 37, 42, Schedule 2
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Active Participation for Disability Support Pension) Determination 2014
Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
O’Cass and Secretary, Department of Social Services [2016] AATA 876
Rekic and Secretary, Department of Social Services [2014] AATA 369
Secondary Materials
Audiology Australia, Australian College of Audiology and Hearing Aid Audiometrist Society of Australia, Scope of Practice for Audiologists and Audiometrists, 20 September 2016
REASONS FOR DECISION
Mark Hyman, Member
29 November 2019

This decision is about whether the applicant, Mr Vasily Samorukoff, qualifies for disability support pension (DSP). Mr Samorukoff lodged a claim for DSP on 10 November 2017; on 20 December 2017 the Department of Human Services – Centrelink (the Department) rejected the claim on the basis that Mr Samorukoff’s impairments did not meet the relevant criteria under the Social Security Act 1991 (the Act). Mr Samorukoff applied for review of the Department’s decision on 13 March 2018, and his claim was rejected again twice on review, first by an authorised review officer of the Department, and then most recently by the Social Services and Child Support Division of this tribunal. On 12 December 2018 Mr Samorukoff applied to this tribunal for further review.
The tribunal held a hearing on 31 October 2019. Mr Samorukoff appeared by telephone and gave evidence. Mr Kelvin Defranciscis, a departmental advocate, represented the Secretary, Department of Social Services, the respondent in this matter. Mr Samorukoff called his wife, Mrs Irene Samorukoff, as a witness in support of his case; Mrs Samorukoff also appeared by telephone.
The documentary evidence before the tribunal comprised documents submitted under section 37 of the Administrative Appeals Tribunal Act 1975 (the “T-documents”); a letter from Professor Jeremy Chapman AC, Clinical director of Medicine and Cancer at Westmead Hospital, dated 26 February 2019 (Exhibit A1); and a statement dated 16 April 2019 by Mrs Samorukoff (Exhibit A2). The Secretary tendered a job capacity assessment dated 31 May 2019 (Exhibit R1).
LEGISLATION
The grant of DSP is governed by section 94 of the Social Security Act 1991 (the Act). Section 94 reads in part as follows:
94(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;
…
The conjunctive drafting of the above provision means that a person must meet all of paragraphs 94(1)(a), (b) and (c) in order to qualify for DSP.
The “Impairment Tables” referred to in paragraph 94(1)(b) are contained in a legislative instrument authorised by subsection 26(1) of the Act: Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 and made a mandatory consideration in the decision process under paragraph 94(1)(b) by section 27 of the Act. The Impairment Tables set out tests of permanence and severity of impairment. In order to rate a person’s impairment under the Impairment Tables a decision-maker must first determine that the impairment in question is permanent. The Impairment Tables are preceded by some preliminary material, including in Part 2 of the Determination a set of Rules for Applying the Impairment Tables (the Rules). Subsection 6(4) of the Rules provides that an impairment is permanent if it has been fully diagnosed, fully treated and fully stabilised, and is likely to persist for more than two years. Further subsections elaborate in particular on the meaning of ‘fully treated’ and ‘fully stabilised’.
The specific Impairment Tables that follow the Rules each relate to an area of impairment (e.g. Table 4 – Spinal Function or Table 10 – Digestive and Reproductive Function) and each table is preceded by additional Rules governing how the table is to be used. The tables themselves rate impairments not according to diagnosis of a particular condition, but according to functional impact, that is, according to the degree to which the impairment being assessed affects the kinds of things a person might be expected to do in the workplace.
Assessing whether a particular person qualifies for DSP therefore requires first, establishing that each impairment is fully diagnosed, fully treated and fully stabilised. Once the person satisfies that test, each permanent impairment can be rated for severity under the Impairment Tables.

Subsection 37(1), section 42 and clauses 3 and 4 of Schedule 2 to the Social Security (Administration) Act 1999 (the Administration Act) together require the tribunal to determine the applicant’s qualification for the pension at the time of the claim or in the 13 weeks that follow. That means that to succeed in his claim Mr Samorukoff must have been qualified in the period from 10 November 2017 to 10 February 2018. The qualification period prevents developments in Mr Samorukoff’s conditions occurring after 10 February 2018 from being taken into account. This was explained by Member Breen in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, at [34]:
… 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.
ISSUES
The issues before the tribunal in this matter are:
·whether Mr Samorukoff has one or more physical, intellectual or psychiatric impairments;
·if so, whether those impairments together are of at least 20 points under the Impairment Tables; and
·if so, whether he has a continuing inability to work.
THE EVIDENCE
Whether Mr Samorukoff meets the criteria required to qualify for DSP depends in particular on the medical evidence. Mr Samorukoff suffers from a genetic condition called Alport syndrome, which has its effects especially on the kidneys. He had a kidney transplant at a comparatively early age, in 1989, and has been taking immunosuppressive drugs ever since. His claim to qualify for DSP rests on the effects of the Alport syndrome itself (e.g. sensorineural deafness); the consequences of his kidney transplant (chronic tiredness, gout); the effects of long term use of medication (e.g. skin conditions); and musculo-skeletal conditions (osteopaenia, disc degeneration in the cervical spine, carpal tunnel syndrome).
Mr Samorukoff suffered from cataracts but gave evidence at the hearing that he has now had lenses replaced in both eyes, and no longer has any functional impairment.
Mr Samorukoff’s evidence
Mr Samorukoff said that he had worked as a plasterer, frequently travelling from his home in Bermagui to Sydney to undertake work on contract. But the effects of his kidney transplant had become more apparent and had affected him more acutely in recent years and from about two years ago, shortly before he had claimed DSP, he had been obliged to give up working, as he was no longer physically capable. His work as a plasterer was very physical, involving lifting and carrying heavy loads, working on ladders, using his hands a great deal, and generally being physically active. This had gradually become more difficult and a time had come when he had been unable to complete a contract and had to bring in another plasterer to complete the work. He had stopped this work in about September 2017.
His kidney is now only working at about 40% of normal functioning, and he is also affected by his medication, including medication intended to control the side effects of other medication. Mr Samorukoff said his main symptoms comprise aching in his bones and muscles, shortness of breath, an elevated heart rate (he has an arteriovenous fistula that gives him a heart rate 20% higher than normal) and irregular sleep. He has frequent attacks of gout, which causes acute pain in the affected joint, whether in the toe, the ankle, the foot, the knee, the wrist or the shoulder; an attack might last a few days, but some go on longer, sometimes for weeks. He might have these attacks two or three times a month. His most recent attack was in his wrist, which essentially disabled him from undertaking much at all; it lasted five days.
Mr Samorukoff said he has hearing loss in both ears, and has had this problem since he was ten years old. He has special hearing aids, and even with them in use would have difficulty hearing a normal conversation in an environment with mild background noise.
Mr Samorukoff acknowledged that when he had been working he would drive from Bermagui to Sydney, which might take five to six hours, then put in a day’s work, and, if the work was for a single day, he would then return to Bermagui. His condition now, in 2019, is noticeably worse than it was in 2017. But his work had required him to lift a sheet of gyprock, weighing perhaps 20-30 kg, and position it, sometimes over his head. His stamina had been affected sufficiently by September 2017 that he had no longer been able to undertake such physical work.
Mrs Samorukoff’s evidence
Mrs Samorukoff said that her husband had worked for many years after his transplant, but at times had been unable to do so, especially because of the effect of his medication and attacks of gout. His health had deteriorated, and from mid-2017 he had been unable to continue working. In his present condition no-one would employ him.
The medical evidence
In a number of documents included among the papers, Mr Samorukoff’s medical practitioners, including his specialists, testify to the effect of his Alport syndrome. In an open letter dated 6 September 2017 (T8) Dr Gudrun Muller-Grotjan, his general practitioner, notes that his medication includes immunosuppressive drugs; that these drugs leave him prone to infections; that his reduced kidney function limits what medication he is able to take; that he suffers from chronic tiredness as a result; and that he has frequent gout attacks, which were increased in frequency and intensity by his physical work. Dr Muller-Grotjan repeated these remarks in a second letter dated 11 February 2018 (T17).
In an open letter dated 19 September 2017 (T9), Dr Giles Walters, a senior staff specialist at the Canberra Hospital Department of Renal Medicine, states that Mr Samorukoff is unlikely to be able to continue working; that his symptoms are the result of “end stage renal failure and kidney transplant”; that the symptoms include an elevated heart rate deriving from his arteriovenous fistula; that he is short of breath and has a continuous dry cough; that he also suffers from gastro-oesophageal reflux, intermittent but acute attacks of gout, pruritus and headaches; that he bruises easily and gets cramping and locking of his hands; and that he has slow healing from wounds and bone pain (it is not clear whether all these symptoms are attributed to the Alport syndrome). These comments are repeated in a second letter from Dr Walters, dated 8 November 2017 (T12), and apparently a third letter dated 20 February 2018 (T18 - the letter is from Canberra Hospital Renal Medicine and is very similar to the other letters, but the second page, containing presumably the signature block and signature, are omitted from the T-documents).
Dr Jeremy Chapman AC, Director of the Renal Unit at Westmead Hospital has also provided an open letter, dated 8 March 2018 (T19), confirming the diagnosis of Alport syndrome, noting Mr Samorukoff’s susceptibility to gout, which is difficult to treat because of drug interactions, setting out the impairment of his renal function (his glomerular filtration rate is around 40 ml/min where the normal adult rate is around 90, and he is hyperproteinaemic, hyperuricaemic and proteinuric). Dr Chapman wrote further to Dr Muller-Grotjan on 6 August 2018 (T22) providing a detailed listing of Mr Samorukoff’s health issues, noting his chronic kidney disease (estimated GFR on that occasion of 50 ml/min, mild anaemia, hyperuricaemia) and gout suffered intermittently, with attacks leaving him “debilitated for periods of time”. Dr Chapman wrote a further letter dated 26 February 2019 (Exhibit A1). This provides some helpful explanations for how the Alport syndrome has led to such a wide range of symptoms. The renal failure itself and the deafness are the direct effects of the genetic disorder; immunosuppression following the transplant has led to multiple viral warts, which have worsened in the past two years and are unlikely to resolve; the problem with cardiomyopathy derives from the arteriovenous fistula, which was deliberately created (I assume surgically) to facilitate dialysis treatment but has now stressed the heart. That is the origin of the shortness of breath. Longstanding corticosteroid treatment has caused osteopaenia/osteoporosis, and one of his immunosuppressive drugs gives him chronic diarrhoea.
Dr Muller-Grotjan wrote a further open letter dated 26 August 2018 (T23), in which she provided some further information on Mr Samorukoff’s gout and added hypertensive cardiomyopathy as an additional complication arising from chronic kidney dysfunction.
The record also includes details of Mr Samorukoff‘s bilateral sensorineural deafness, which, Dr Muller-Grotjan explains (T23), is caused by Alport syndrome. A report by an audiometrist, Mr Graeme Smith, dated 3 January 2017 (T7) notes a longstanding sensorineural hearing loss in both ears. One of his hearing aids had stopped working at the time and replacement of both with new and more advanced aids was recommended. The same document includes an audiogram dated 31 August 2018, although the report embedded with that audiogram is very similar to that of the January 2017 report – it states that one hearing aid had failed but was not able to be repaired (the document at T7 gives the appearance of an audiogram and report from a single occasion, although the dates are different by about 20 months). There is an audiogram from an earlier date, 25 October 2013 (T6), but no report is attached and it is not clear who prepared the audiogram. Mr Smith notes that Mr Samorukoff had obtained his existing hearing aids in 2013 and it appears likely that the earlier audiogram was prepared in the context of Mr Samorukoff’s consultations for those aids. A number of the other medical reports mention Mr Samorukoff ‘s hearing loss (T9, T12, T18, T19, T22, Exhibit A1).
Other medical conditions covered in the documents include back pain and pain in the left arm. An x-ray of the cervical spine was taken on 16 October 2017 (T10) to clarify whether left-sided arm pain was the result of foraminal stenosis in the cervical spine (where the nerves to the arm leave the spinal cord). The report noted reduction in disc height in the cervical spine, most prominently at C5/6 and C6/7; there were small uncovertebral joint osteophytes but no compromise of the neural foramen at any level and little indication of facet joint problems. Back pain is mentioned as an issue for Mr Samorukoff in some of the other reports, namely at T8, T17, T19 and T22. The x-ray was taken because of arm rather than back pain, and Dr Muller-Grotjan hypothesised (T8) that the arm pain arose from nerve irritation, and later associated the arm pain with the x-ray results (T17). Somewhat later Dr Chapman (T22) and Dr Muller-Grotjan (T23) decided that Mr Samorukoff suffered from carpal tunnel syndrome in the right arm and hand, deriving from years of work as a plasterer.
CONSIDERATION
It is common ground that Mr Samorukoff suffers from impairments that meet the requirements of paragraph 94(1)(a) of the Act.
Most of Mr Samorukoff’s medical issues derive from his Alport syndrome and its various sequelae, and from its treatment. His Alport syndrome is associated with the kidney transplant; the arteriovenous fistula and the cardiomyopathy that resulted; attacks of gout; bilateral deafness; long-term use of immunosuppressive drugs; pruritis, viral warts and skin cancers made more likely and more severe because of the immunosuppressive drugs; osteopaenia/osteoporosis; and chronic diarrhoea (from one of the immunosuppressive drugs, mycophenolate mofetil). These are considered below in turn, followed by Mr Samorukoff’s musculoskeletal issues which, apart from the osteopaenia/osteoporosis, appear to have arisen from his work rather than from his genetic condition.
Alport syndrome and its sequelae
It is again common ground that Mr Samorukoff’s Alport syndrome is fully diagnosed (it is referred to by Dr Muller-Grotjan, Dr Walter and Dr Chapman at T9, T12, T17, T22, T23 and Exhibit A1) and there is also ample mention of the kidney transplant. The picture is a little more mixed, however, with regard to the consequences of the syndrome and the transplant, especially because the kidney transplant took place some 30 years ago, and some degenerative changes are now becoming apparent. Each separate condition therefore needs to be assessed against the permanence criteria, and if permanent, rated separately for severity, according to the kind of impairment that results.
Cardiomyopathy
It appears that Mr Samorukoff has cardiomyopathy as a combined result of the kidney transplant itself and the arteriovenous fistula originally created to manage his dialysis requirements. That conclusion follows from reports by Dr Chapman, in particular. In his report of 6 August 2018 (T22), a progress report to Dr Muller-Grotjan, Dr Chapman attributed Mr Samorukoff’s progressive dyspnoea over the previous two years to his inability to exercise, but considered that the fistula might also be making a contribution. In his letter of 26 February 2019 (Exhibit A1) Dr Chapman said that the cardiomyopathy resulted entirely from the fistula and was not amenable to treatment. It is common ground that this condition is fully diagnosed, fully treated and fully stabilised, and will persist for at least the next two years. I find that it meets the tests of permanence in the Impairment Tables.
Cardiomyopathy has its functional impact mainly on a person’s ability to undertake exertion; its functional impacts are assessed under Table 1 – Functions requiring Physical Exertion and Stamina. The Table assigns a 5 point rating to a person who has “occasional difficulty” when performing physically demanding activity such as walking to local facilities or climbing a flight of stairs; assigns 10 points where a person experiences “frequent symptoms” of shortness of breath or the like when undertaking day-to-day activities and is unable to walk far outside the home or has difficulty undertaking normal household duties; and assigns 20 points where a person “usually” experiences symptoms when performing light duties and is unable to walk around a shopping centre or supermarket unassisted, or walk from a carpark to a shopping centre unassisted or use public transport unassisted.

Dr Chapman in his letter of 26 February 2019 (Exhibit A1) provides the clearest and most detailed assessment of the functional impact of Mr Samorukoff’s cardiomyopathy. Applying the descriptors in Table 1 he states that Mr Samorukoff has fatigue on exercise with a maximum tolerable distance of 200-300 metres and dyspnoea on exercise with the same maximum tolerable distance. He also notes that gout also limits what Mr Samorukoff can do, depending on its state at the time, preventing him from rising from a chair at its worst, and limiting him again to 200-300 metres walking at best. Dr Chapman continued that the severity of Mr Samorukoff‘s limitations “are rated as between moderate and severe with occasional episodes of extreme impact with extreme limitation occurring during attacks of acute gout”. This statement is from about a year after the qualification period, which ended at 10 February 2018, but the estimate is corroborated by evidence from earlier dates: Mr Samorukoff reported to a job capacity assessment in January 2017 (T16) of the difficulty he had in climbing stairs in his house, and Dr Muller-Grotjans reported on his limited physical capacity to work in February 2018 (T17).
I am satisfied that Mr Samorukoff, during the qualification period, was sufficiently constrained in his ability to undertake physical activity that he met the requirements for a moderate rating under Table 1. I assign him 10 points under that Table. I note Dr Chapman’s assessment that gout takes Samorukoff’s condition to the extreme level from time to time, but for reasons explained below, I do not regard it as appropriate to assign Mr Samorukoff’s gout a rating under Table 1.
Gout
It is not in dispute that Mr Samorukoff suffers from gout and that the condition is fully diagnosed, fully treated and fully stabilised, and is likely to persist for at least the next two years. There is ample medical evidence regarding the condition, and Dr Chapman, in particular, explains the difficulties associated with the trade-offs between immunosuppressive medication and that needed to treat Mr Samorukoff’s hyperuricaemia. But other decision-makers have assessed the gout under Table 1, treating the functional impacts as akin to those of the cardiomyopathy, and thus required to be assessed under the same table to avoid the double counting that is discouraged by subsections 10(4) and (5) of the Rules for applying the Impairment Tables. Those subsections require that if multiple conditions cause a common or combined impairment, that impairment must be given a single rating. That approach by earlier decision-makers was urged on me at the hearing by Mr Defranciscis. But subsections 10(3) and (4) of the Rules consider the position where a single condition causes multiple impairments; under those circumstances, each impairment must be rated under the appropriate table, provided the same impairment is not rated more than once.
In this instance, it appears to me that gout has functional impacts other than on stamina. The account of the acute gout attacks by Mr Samorukoff‘s doctors suggests acute episodes of debilitating joint pain which are of the kind that limit activities using the affected part of the body, rather than chronic pain that might affect a person’s stamina and would be taken into account under Table 1. Thus if the joints of the feet, ankles, toes or knees were affected, it would be Table 3 – Lower Limb Function that would seem relevant; and if it were the wrist or shoulder, the appropriate table would appear to be Table 2 – Upper Limb Function. The papers make it clear that this is an intermittent condition (T8, T9, T17, T18, T22, T23, Exhibit A1), but that the acute attacks are very debilitating.
Subsection 11(4) of the Rules provides that where a condition is episodic or fluctuating a rating must be assigned that reflects the overall functional impact, taking into account the frequency, severity and duration of attacks. No guidance is offered to deal with the particular pattern exhibited here, where episodes might have their impact under one table on one occasion and under another on the next occasion. But extrapolating from subsection 11(4), an overall rating is presumably to be assigned under the Table that represents the most frequent part of the body affected (assigning a rating under two tables is prohibited by subsection 10(4) of the Rules). Subsection 11(4) clearly implies a significant element of approximation and estimation involved in assigning such a rating, even with excellent and detailed information.
In this case Mr Samorukoff’s doctors are united in describing his attacks of gout in terms that leave no doubt that they are significant and debilitating, but they do not provide a great deal of detail about frequency or duration, and in particular they provide little information about their detailed effects on the functionality of the upper or lower limbs. Dr Chapman states that the impacts would prevent Mr Samorukoff from rising from a chair when episodes are acute. That would suggest perhaps a severe level of impairment under Table 3 – Lower Limb Function, where a 20-point rating is assigned to a person who cannot rise from a chair without assistance, or walk around a shopping centre without assistance, or walk from a carpark into a shopping centre without assistance. That level of functional impairment might apply when episodes are at their most acute, with lower levels of impairment as episodes arise and ease. Mr Samorukoff suggested that these episodes occur perhaps two or three times a month and that their duration is very irregular, with some lasting for two days and others for a month or more.
Taking all of the above into account, and bearing in mind the limited information regarding frequency and duration, I assign a rating of 5 points for gout, assigning that rating under Table 2.
Deafness
The assessment of Mr Samorukoff’s deafness presents some problems. There is no doubt that he is affected by deafness, and it is readily recognised in the medical evidence that deafness is one of the consequences, especially in males, of Alport syndrome (T23). As noted above, all of Mr Samorukoff’s doctors recognise and accept this condition as part of his medical picture. It therefore seems counterintuitive if not absurd to question whether his deafness is fully diagnosed. But the Impairment Tables impose particular requirements on some diagnostic findings. Table 11 - Hearing and other Functions of the Ear requires that the diagnosis of a condition under that Table must be made by a medical practitioner with supporting evidence from an audiologist or ear, nose and throat specialist. Mr Samorukoff has a report from an audiometrist, and at the hearing some discussion arose regarding the distinction between an audiologist (as required by the Table) and an audiometrist. Mr Defranciscis noted the strict construction normally applied to the Impairment Tables and suggested that the distinction was therefore important, but advised that the Secretary would not press that point.
The Australian College of Audiology, together with allied professional associations, has issued a “Scope of Practice for Audiometrists and Audiologists” which throws some light on this question.[1] Audiologists are required to have at least a masters level degree or equivalent in clinical audiology; audiometrists are required to have at least a diploma level technical and further education vocational qualification in audiometry or a bachelors degree in audiometry. It seems therefore that an audiometrist is, as the name suggests, qualified to measure the extent of a person’s hearing loss, but not to provide an opinion on the cause, or to deal in possible treatments other than hearing aids. On the basis of that information, I accept Mr Defranciscis’ point that the requirements of the Table are not met in the present case; plainly an audiologist is placed to advise a medical practitioner about causation (which may go to diagnosis) and about treatment options, whereas an audiometrist can only advise about the extent of hearing loss.
[1] viewed 8 November 2019.
Nevertheless, it remains something of an absurdity that a condition well understood and accepted by all Mr Samorukoff’s doctors cannot be accepted as permanent, and for reasons that are irrelevant in his particular circumstances. Mr Samorukoff’s renal specialists have explained conclusively the origin of his hearing condition, and that is sufficient to establish the diagnosis to my satisfaction, despite the absence of input from an audiologist. But even excluding the requirement for an audiologist’s input to the diagnosis as an unnecessarily “black letter” application of the law, I would be unable to assign a rating to Mr Samorukoff under Table 11. The only document that contains any information that I could use to assess the severity of his hearing loss refers to the effect of his having only one of his hearing aids in an operating state. In that situation, the audiometrist, Mr Smith, notes, he is “at a considerable disadvantage” in ordinary communication, whether in the quiet or when there is background noise. Mr Samorukoff was able to participate in the hearing, by telephone, without apparent difficulty, which might set an upper limit on the rating that could be assigned. But, taken as a whole, the available information is too incomplete to allow me to make any assessment of the functional impact of Mr Samorukoff’s hearing loss.
Skin conditions
It is accepted that long term use of immunosuppressive drugs has led Mr Samorukoff to develop a number of skin problems: pruritus, viral warts and frequent skin cancers. As products of a 30-year history of immunosuppressive drug use, there is no challenge to these conditions being accepted as fully diagnosed, fully treated and fully stabilised, and likely to persist for at least the next two years. Such conditions are assessed under Table 14 – Functions of the Skin. In that Table 5 points are assigned where a person has minor difficulties performing activities with the hands because of one or more skin conditions (descriptor (1)(a)) or minor difficulties with activities involving exposure to sunlight (descriptor (1)(c)). It is common ground that Mr Samorukoff’s tendency to bruise easily, his slowness in healing from wounds, his viral warts, and his sensitivity to sun exposure and consequent need to undertake appropriate protective action, mean that he meets descriptors (1)(a) and (c) in the 5-point part of Table 14, indicating a mild functional impact. I assign him 5 points under Table 14.
Musculo-skeletal conditions
Mr Samorukoff has problems with his back and arms. He has some degree of osteopaenia in his lower back and Dr Chapman also uses the term osteoporosis, although no bone scan data is presently available (Mr Samorukoff reported that he had had a bone scan after the qualification period was finished). The x-ray that is in evidence is limited to the cervical spine and appears fairly unremarkable, with the only abnormality a loss of disc height at two points, with no foraminal stenosis. There is no evidence of lumbar imaging, no specialist review and no indication that any treatment of any kind has been undertaken. Dr Chapman believed in August 2018 (T22) that Mr Samorukoff’s osteopaenia would improve with treatment. There is no mention of osteopaenia before August 2018. Dr Muller-Grotjans stated in February 2018 (T17) that Mr Samorukoff was unable to lift, bend, twist or pull, because of his back, but offered no diagnosis or explanation; nor did she suggest any specific treatment.
Similarly, the first mention of carpal tunnel syndrome is in August 2018 (T22), well after the end of the qualification period. This is on the right side, whereas earlier arm pain was in the left arm. No nerve conduction or other studies appear to have been done to confirm the diagnosis.
The information relating to these musculo-skeletal conditions is too incomplete and dates from too long after the qualification period. There is not enough information for me to reach any conclusion regarding permanence, and certainly not enough for me to consider a severity rating under the relevant tables.
Overall rating
I find that Mr Samorukoff’s overall rating under the Impairment Tables is 20 points. He meets paragraph 94(1)(b) of the Act.
Continuing inability to work
Subsection 94(2) of the Act contains detailed provisions governing decision-making under paragraph 94(1)(c), dealing with a continuing inability to work, as follows:
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008‑2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a) in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) in all cases—either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Under subsection 94(3B), a severe impairment is one that receives a rating of 20 points or more under a single table of the Impairment Tables. Subsection 94(3C) provides for the Minister to make a legislative instrument governing active participation in a program of support. Subsection 94(5) defines “work” to mean work of at least 15 hours a week at award wages or above. For the purposes of subsection (3C), the Minister has made the Social Security (Active Participation for Disability Support Pension) Determination 2014 (“the POS Determination”); a person must meet the requirements of the Determination in order to have actively participated in a program of support under paragraph 94(2)(aa).
Section 7(1) of the POS Determination provides that a person has actively participated in a program of support if the person has complied with the requirements of such a program and participated during the three years leading up to the lodging of a claim; has met one of subsections (2), (3), (4), or (5) that follow; and has met subsection (6). Subsections (2) to (5) set out different ways in which the period of participation can be met: subsection (2) covers participation for 18 months; subsection (3) is where a person completes the program in less than 18 months; subsection (4) covers where the person starts the program but it is terminated because the person’s impairments prevent completion; and subsection (5) covers where the person was participating at the time of lodging a claim for DSP but the person’s impairments prevented continued participation.
Mr Samorukoff does not have a severe impairment, as defined by subsection 94(3B) of the Act; he therefore does not escape the requirement to complete a program of support under paragraph 94(2)(aa). At the time of lodging his DSP claim, and indeed for the entire qualification period, Mr Samorukoff had not begun participation in a program of support. Given his impairments, participation in such a program might have been difficult for him. Had he begun a program, it is entirely possible that he might have met one of the exceptions, such as those in subsections (4) or (5). But subsection 7(5) requires that “at the end of the relevant period, the person is participating in a program of support”, where “relevant period” is defined in subsection 5(1) of the POS Determination as the three years ending immediately before the day on which the claim for DSP was made. Similarly, subsection 7(4) deals with cases where the program of support is terminated before the end of the relevant period, that is, before the DSP claim was made.
As Mr Defranciscis contends, the requirements of subsection 7(1) of the POS Determination are strictly construed: see Rekic and Secretary, Department of Social Services [2014] AATA 369; O’Cass and Secretary, Department of Social Services [2016] AATA 876. At the time he lodged his claim Mr Samorukoff was not participating, and had not participated, in a program of support. He does not meet the requirements of subsection 7(1) of the POS Determination, and therefore does not satisfy paragraph 94(1)(c) of the Act. He is not qualified for DSP.
It is frequently difficult for a person to qualify for DSP if the person has been working, but is prevented from continuing to work by a disability that appears or increases in severity. In those circumstances the disabled worker is never going to have an easy pathway to meeting the requirements of the POS Determination unless affected by a severe impairment: the person will not have completed a program lasting 18 months, and will be required to demonstrate that their disabilities prevent them from doing so if they are to satisfy subsection 7(5) of the POS Determination. That is the position that Mr Samorukoff now finds himself.
CONCLUSION
Mr Samorukoff meets paragraphs 94(1)(a) and (b) of the Act but fails to meet paragraph 94(1)(c). He therefore does not qualify for DSP.

I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Member Mark Hyman.

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Associate
Dated: 29 November 2019

Date(s) of hearing:  31 October 2019

Counsel for Mr Samorukoff:  In person

Advocate for the Secretary:  K Defranciscis

Date(s) of hearing: 31 October 2019
Counsel for Mr Samorukoff: In person
Advocate for the Secretary: K Defranciscis