Walkley and Department of Family and Community Services [1999] AATA 569 (3 August 1999)

Last Updated: 6 August 1999

DECISION AND REASONS FOR DECISION [1999] AATA 569

ADMINISTRATIVE APPEALS TRIBUNAL )

) N1998/642

GENERAL ADMINISTRATIVE DIVISION )

Re BRONWYN WALKLEY

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms S.M. Bullock, Member

Date 3 August 1999

Place Gosford

Decision The Tribunal affirms the decision under review.

(Sgd) S.M. Bullock

..............................................

Member

CATCHWORDS

Social Security - Disability Support Pension - qualification for Disability Support Pension - whether applicant has continuing inability to work.

Social Security Act 1991 ss94(1), 94(2), 94(5)

REASONS FOR DECISION

3 August 1999 Ms S.M. Bullock, Member

1. This is an application by Ms Bronwyn Walkley for review of the decision of the Social Security Appeals Tribunal (SSAT) of 28 April 1998 (T2). That decision affirmed a decision of an Authorised Review Officer (ARO) of the Department of Family and Community Services made on 9 February 1998 (T20) that Ms Walkley was not eligible for payment of a Disability Support Pension. The original decision to refuse Ms Walkley's claim for a Disability Support Pension was made on 14 January 1998 by a delegate of the Department of Family and Community Services (T15).

2. A hearing was held before the Administrative Appeals Tribunal (the Tribunal) on 3 May 1999 at Gosford. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T documents T1-T21). Ms Walkley, the applicant, represented herself and provided oral evidence. The respondent, the Secretary, Department of Family and Community Services (the Department) was represented by Mr G Lozynsky, Departmental Advocate. Oral evidence was also provided by Ms Walkley's General Practitioner, Dr D Spooner of Gosford. The Tribunal also had admitted into evidence the following exhibits:

Exhibit Number Description Date

A1 Letter from Dr D Spooner, General Practitioner. 19 November 1998

R1 Respondent's Statement of Facts and Contentions 21 January 1999

Issues

3. The issue to be determined in this matter is whether or not Ms Walkley has a continuing inability to work pursuant to subsections 94(1)(c) and 94(2) and (5) of the Social Security Act 1991.

4. It has already been accepted by Health Services Australia and Centrelink that Ms Walkley has a 20 per cent impairment rating as calculated by reference to Schedule 1B of the Social Security Act 1991. There is, accordingly, no dispute that Ms Walkley satisfies subsections 94(1)(a) and (b) of the Social Security Act 1991.

Legislation

5. A determination in this appeal requires consideration of the provisions of section 94 of the Social Security Act 1991 (the Act).

6. Section 94 deals with the qualification for Disability Support Pension and as relevant states:

"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;

(ii) the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and

..."

7. It is necessary to consider the definition of "continuing inability to work" and this is found in subsection 94(2) of the Act which states as relevant:

"94.(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

(a) the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years; and

(b) either:

(i) the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or

(ii) if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training--such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years."

8. Subsection 94(5) of the Act deals with the definition of "vocational and educational training" and also "work" and states:

"94.(5) In this section:

"educational or vocational training" does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;

"on-the-job training" does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;

"work" means work:

(a) that is for at least 30 hours per week at award wages or above; and

(b) that exists in Australia, even if not within the person's locally accessible labour market."

Facts not in Dispute

9. The following information is provided by way of background and the information contained herein is not disputed by the parties.

* Ms Walkley was born on 4 March 1958.

* Ms Walkley's husband died on 16 January 1990.

* For approximately 9 years, Ms Walkley has lived at her present address in North Gosford, New South Wales.

* Ms Walkley attained the New South Wales Higher School Certificate at age 17 years.

* From 8 January 1976 until 17 January 1995, Ms Walkley worked as a bank officer with a major bank.

* Following cessation of her work with the bank, Ms Walkley purchased a take-away food business in or about January 1995. Ms Walkley last worked in this business on 7 September 1997 (T4).

* In 1997, a formal diagnosis of osteoarthritis of both Ms Walkley's knees was made.

* Ms Walkley completed a written application for Disability Support Pension on 25 September 1997. Previously, on 18 September 1997, Ms Walkley had made a telephone application (T3).

* On 7 January 1998, a Senior Medical Adviser with Health Services Australia, Dr V Bernotas, determined that Ms Walkley had a 20 per cent impairment rating for osteoarthritis of both knees and nil ratings for migraine headaches and obesity (T10). Dr Bernotas further opined that Ms Walkley was not unfit for work and was not prevented by her impairment from participating in educational or vocational training programs during the next two years.

* Following rejection of her claim for Disability Support Pension on 14 January 1998 by a departmental delegate who considered Ms Walkley was fit for full-time clerical duties, on 27 January 1998 Ms Walkley sought a review of that decision by an ARO (T18). The ARO affirmed the delegate's original decision and Ms Walkley subsequently appealed to the SSAT on 12 February 1998 (T21).

* Ms Walkley appealed to the Tribunal on 27 May 1998 against the decision of the SSAT, which had affirmed the decision to refuse Ms Walkley's claim for a disability support pension (T1).

Evidence of Ms Walkley

10. Ms Walkley stated that she received the first positive diagnosis of osteoarthritis of the knees in 1997. This condition is manifested by extreme pain in her knees and she is unable to stand for long periods of time nor maintain any sitting position for any length of time without movement. Everything Ms Walkley does is painful, she told the Tribunal, and the pain is worse when she is cold. There is also constant aching associated with this condition. Ms Walkley noted that she has had problems with her knees since she was a young child and that there is in fact a family history of this condition.

11. When working for the Commonwealth Bank, Ms Walkley noted that her knees were becoming increasingly painful and travel by train from her Gosford home to the central business district of Sydney was becoming an issue for her.

12. Ms Walkley worked for approximately 20 years in the bank and was a supervisor in Resource Management, supervising six people and reporting to the head of the branch. Ms Walkley was used to working with computers and information technology systems but emphasised that the bank's computer systems were purpose built and that the skills she had acquired were not easily transferable. Towards the end of her period of employment with the bank, Ms Walkley was taking Digesic and other analgesic pain killers for her pain.

13. Following a re-structuring in the bank, Ms Walkley was attached to various positions and told the Tribunal that it became clear that her future career prospects were not good within the bank. Ms Walkley resigned and did not receive any redundancy package.

14. Ms Walkley then purchased a take-away business at Point Claire on the New South Wales Central Coast. Ms Walkley employed a person part-time and four 15 year old employees as casuals who did the "leg work". The take-away business was operated six days per week for 12 hours daily. Ms Walkley explained that when she purchased the business, she did not realise what running such an enterprise entailed and the extreme hard work involved. By the end of 1997, all Ms Walkley could do was to sit in the shop and direct the work. Finally, Ms Walkley realised she could not carry on running this business and it was sold in September 1997. Ms Walkley stated that she had lost $50,000 on the sale. The business had in fact been put on the market 5 to 6 months after she purchased it, but it took some time to actually sell. Ms Walkley found it extremely difficult standing and serving customers, lifting supplies and undertaking the other physical duties associated with running such a business. As Ms Walkley's physical condition deteriorated, she then had to employ more staff to do the work she was unable to undertake herself. This obviously put a financial strain upon the business.

15. Ms Walkley described her health problems for the Tribunal.

16. In relation to osteoarthritis of the knees, Ms Walkley explained that she now has to take very strong medication, Paradex, for the pain she experiences. Ms Walkley stated that she could take up to four Paradex tablets per day. While the medication assists with pain management, the side effects are such that Ms Walkley cannot concentrate, she becomes drowsy, clumsy and is "off with the fairies". Ms Walkley cannot drive when under the effect of the medication, she told the Tribunal. Ms Walkley now uses two walking sticks to assist her mobility. Each night, she straps her knees in order to keep them warm and then, in the morning, it takes her approximately half an hour to become mobile due to the stiffness of her knees.

17. Ms Walkley has had to modify her home to suit her physical condition, for example, the clothes drier is at waist level, there are only two small steps in the house and rails have been installed to assist her mobility.

18. Ms Walkley undertakes her own housework but this has to be done in stages because of the pain she experiences and her lack of mobility. In this regard, Ms Walkley vacuums half the house one day and the remainder is vacuumed the next day. Ms Walkley has a modified clothes line so that she does not have to stretch up and she cleans the shower and oven by sitting on the floor.

19. Ms Walkley was asked by the Tribunal about an operation proposed for her knees which would involve a Fulkerson tibial tubercle osteotomy, lateral release and patella osteophytectomy, as recommended by Orthopaedic Surgeon, Dr J. Morton (T9). Ms Walkley explained that she is unable and unwilling to undertake this procedure for the following reasons. Firstly, Ms Walkley stated that she cannot be guaranteed that the operation will make her condition and pain any better and in fact, it could make it worse. Secondly, the operation is a lengthy procedure and both the operation and the rehabilitation (which includes an intensive physiotherapy program) are prohibitively expensive. Therefore Ms Walkley is unwilling and unable to undertake this procedure at this time, she told the Tribunal.

20. Ms Walkley stated that she also suffers from migraines which occur approximately every fortnight. The migraines can last for a few hours or up to a week. Ms Walkley takes analgesic medication for the headache but while these migraines are debilitating, she does not consider them to be her main health problem.

21. Ms Walkley further noted that she is also overweight though she has lost some weight recently. Dr Morton concluded in a report of 11 December 1997 that Ms Walkley's bilateral patellofemoral osteoarthritis is significantly complicated by her gross obesity, and that her condition will deteriorate but would be helped by a loss of weight (T9). Ms Walkley commented that the osteoarthritis would still be there, irrespective of her being overweight or not.

22. The main health problem for Ms Walkley is her osteoarthritis of the knees, she told the Tribunal. She is in constant pain and experienced aching whether sitting or standing and especially if this occurs over prolonged periods. Ms Walkley stated that she cannot drive for more than an hour and cannot use public transport. Further, Ms Walkley explained that she falls at least once per week and cannot walk for long periods of time or on uneven ground.

23. The main issue for Ms Walkley in relation to her osteoarthritis is that the medication she is required to take to ease her pain, causes her to be significantly impaired in that it makes her confused and drowsy. Ms Walkley stated that because of the side effects of the analgesic Paradex, she is unable to concentrate to undertake training or to be employed either on a part-time or full-time basis. Ms Walkley posed the question for the Tribunal, "Who would employ me when they knew I was likely to be drowsy, not turn up frequently for work or to fall?". Ms Walkley postulated that she would be "sacked" in the first week of employment.

24. Ms Walkley stated that she had applied for 30 positions without success.

25. The Tribunal asked Ms Walkley about the report of the Health Services Australia Senior Medical Adviser, Dr Bernotas, that she could undertake light skilled, light semi-skilled or light lesser-skilled work (T10, p46). Ms Walkley told the Tribunal that she would be unable to undertake any of these types of positions because of the effects of the medication, Paradex.

26. Ms Walkley stated that she was able to make sense at the Tribunal because she had not taken her medication that morning. Ms Walkley reiterated that she simply could not manage without her medication. Ms Walkley stated that the medical reports of the Senior Medical Adviser of Health Services Australia, her former general practitioner, Dr S Perriman, and Dr Morton were old and did not recognise her deteriorating condition, her suffering and her need for and the effects of analgesic medication.

27. In terms of her recreational pursuits, Ms Walkley stated that she has had to curtail her activities significantly. In this regard, Ms Walkley used to play ten pin bowls at Hornsby and used to hold a committee position with the local ten pin bowling association. Currently, Ms Walkley will drive to Hornsby, some 25 to 30 minutes from her home, and watch her friends play ten pin bowls.

28. Ms Walkley also plays bingo once a week from 1pm to 3.30pm and has lunch before this activity. Ms Walkley told the Tribunal that she undertakes needlework on a daily basis involving cross stitch and tapestry. Further, Ms Walkley noted that she makes clothes and sews for all of her extended family. Ms Walkley's interest in sewing and needlecraft has extended to her having needlecraft lessons at Kincumber once a week.

29. Ms Walkley stated that she could sit for a "fair time" but needs to be able to move around and change position.

30. Ms Walkley minds her sisters' children on occasions but transport is provided to and from the site of child minding duties.

31. Ms Walkley has a dog which she exercises by driving it to the park and allowing the dog to have a run while she remains seated either in the car or on a park bench.

Medical Evidence

Dr D. Spooner, General Practitioner

32. Dr D Spooner, Ms Walkley's General Practitioner, wrote on 19 November 1998 that Ms Walkley suffers from osteoarthritis, affecting both knees and with both patella displaced laterally. This is a severe condition, Dr Spooner reported, requiring Ms Walkley to take four Paradex tablets most days in order to alleviate the pain. Dr Spooner reported:

"Due to the arthritis in her knees she is unable to drive and unable to walk for more than about 200m. When she takes Paradex she is unable to concentrate well.

With these factors in mind I feel she is unable to do any work of 30 hours/week and educational or vocational training would only be possible when she could manage without her Paradex. She could not do any physical work and so clerical work would be the only possibility.

...

Even [if] she was able to complete training she would be unlikely to get a job as she would frequently have days when her concentration was impaired by analgesics and she would likely often be late or absent for these reasons." (Exhibit A1)

33. In oral evidence to the Tribunal, Dr Spooner noted that she first saw Ms Walkley on 29 May 1998 and would see her approximately once per month. Dr Spooner stated that Paradex is an extremely strong analgesic and was required by Ms Walkley for pain management. The medication is likely to have possible side effects such as disorientation, confusion and/or drowsiness. Dr Spooner told the Tribunal that she had not seen Ms Walkley under the effects of Paradex. There are 100 tablets in the box of Paradex medication and Dr Spooner informed the Tribunal that she had written scripts for this medication on 25 March 1999, having previously prescribed it on 8 September 1998. The Tribunal noted that the dispensing of this medication on the two occasions reported by Dr Spooner would not support the level of ingestion of the medication at four tablets per day, as claimed by Ms Walkley and reported by Dr Spooner on Ms Walkley's advice. Dr Spooner agreed with this conclusion. However, after discussion, Ms Walkley indicated that she had had another prescription for the medication prescribed on an occasion by another medical centre when Dr Spooner's surgery had been closed on a weekend.

34. Dr Spooner noted that she had reports from Dr S Perriman, Ms Walkley's former General Practitioner, and also reports of Dr Morton of 27 October 1997 and 14 November 1997. Dr Spooner did not have Dr Morton's report of 11 December 1997 and when this was read out to her during the course of the Tribunal hearing, Dr Spooner agreed with its contents and that Dr Morton was a most credible Orthopaedic Surgeon. Dr Spooner further agreed that Ms Walkley's condition might be assisted in terms of the level of pain if she were to lose weight but emphasised that the issue for Ms Walkley was the effect of the analgesics she was required to take in order to manage her pain. While Dr Spooner stated that Ms Walkley could undertake clerical work, this was qualified in her evidence that the effect of medication on Ms Walkley had to be factored into the consideration of her work capabilities. If Ms Walkley was affected by medication, then her ability to work or train was severely diminished.

Dr J. Morton, Orthopaedic Surgeon

35. On 27 October 1997, Dr Morton reported that Ms Walkley had a marked patellofemoral and medial compartment crepitus and bilateral genu valgus complicated by gross obesity (T5).

36. On 11 December 1997, Dr Morton confirmed the diagnosis of Ms Walkley's osteoarthritis noting that she was fit for sedentary clerical type duties on a full-time basis. He did however note that there were issues with regard to travel to and from work because Ms Walkley was not fit to stand on trains or buses or to ascend or descend significant numbers of stairs (T9).

Dr S. Perriman, General Practitioner

37. Ms Walkley's former General Practitioner, Dr Perriman, noted on 8 November 1997, in a medical report supporting Ms Walkley's claim for a Disability Support Pension, that Ms Walkley could work full or part-time within six months of her report (8 November 1997) and that she would benefit from computer training for a sedentary occupation. Dr Perriman also opined that Ms Walkley was unable to work full days (T7).

Dr V. Bernotas, Senior Medical Adviser, Health Services Australia

38. Dr V Bernotas reported on 7 January 1998 that Ms Walkley had a permanent impairment rating of 20 per cent which could be improved in the future. Dr Bernotas further opined that Ms Walkley's obesity was a significant contributing factor to her limitations. Dr Bernotas considered Ms Walkley medically fit for full-time sedentary clerical duties (T10). Dr Bernotas further opined that Ms Walkley has experience in clerical work but could improve and develop her skills through a TAFE course.

Dr D. Gudex, Radiographer

39. Dr D Gudex reported on 5 November 1997 that Ms Walkley had osteoarthritic changes at the medial and lateral compartments of each knee joint. Radiological evidence indicated that there was severe patellofemoral joint and osteoarthritis with lateral patellar shift and moderate severity osteoarthritis at each patellofemoral joint (T6).

Submissions

40. Ms Walkley submitted that her main problem with working either full or part-time or in undertaking re-training was her inability to concentrate because of the medication she was required to take for pain management of her osteoarthritis.

41. Ms Walkley stated that her General Practitioner has been treating her for some time and her opinion should be preferred to other medical opinions, particularly as those other medical opinions are out of date, did not take into consideration her progressively deteriorating condition and also her need for analgesia to manage the pain associated with the condition.

42. Ms Walkley submitted that in light of her medical problems she could not work or train and while later admitting that she may not use Paradex every day, she did use the medication, taking two tablets each night. Ms Walkley submitted that while she may not use Paradex every day she would use other forms of pain management such as heated wheat packs which she would attach to her legs. Ms Walkley indicated that no employer would want her attending work with wheat packs strapped to her legs. Further, Ms Walkley modified her position in relation to the taking of medication by stating that on occasions, she may take weaker analgesics such as Panadol.

43. The issue still remained, Ms Walkley submitted, that medication was the main reason that she was prevented from working or from undertaking training. The doctors' reports, apart from Dr Spooner, did not recognise the effects of the treatment of her condition on her ability to work.

44. Further, Ms Walkley submitted that while she had had a long period of service in the bank, the training and skills she acquired there were not easily transferable because they were related to bank-specific applications.

45. Mr Lozynsky for the Respondent reiterated that there was no dispute that Ms Walkley satisfies subsections 94(1)(a) and (b) of the Act in that she has a physical impairment with a permanent impairment rating of 20 per cent.

46. The respondent contended, however, that the overwhelming weight of evidence, including medical evidence, supports the contention that Ms Walkley does not have a continuing inability to work pursuant to subsections 94(1)(c) and 94(2) of the Act.

47. Mr Lozynsky referred the Tribunal to the report of Dr S Perriman, Ms Walkley's previous General Practitioner, who on 8 November 1997, whilst noting that Ms Walkley could not return to her usual occupation, opined that she could re-train and work either on a part or full-time basis within the next six months (T7). Further, Dr Perriman opined that Ms Walkley would benefit from further training in computers.

48. Mr Lozynsky then referred the Tribunal to reports of Dr J Morton, Orthopaedic Surgeon, who opined on 11 December 1997 that Ms Walkley was able to undertake sedentary clerical duties on a full-time basis and that her condition would be significantly helped by weight loss.

49. The Tribunal was further referred by Mr Lozynsky to the opinion and report of Dr Bernotas, the Senior Medical Adviser of Health Services Australia, who reported on 7 January 1998 that Ms Walkley was fit for full-time sedentary clerical duties and able to undertake light-skilled to lesser-skilled work for 30 hours per week, including positions such as a postal clerk, a telephonist and other clerical positions. Further, Ms Walkley's migraine headaches were not considered by Dr Bernotas to restrict her work ability.

50. Mr Lozynsky submitted that Ms Walkley's current General Practitioner, Dr Spooner, did not rule out the possibility of Ms Walkley undertaking clerical work or re-training, however noting that there was a possibility that Ms Walkley's concentration may be impaired because of her medication, that this may impact upon her holding a job and also affect her punctuality and attendance at work. Mr Lozynsky submitted that it was clear from Dr Spooner's oral evidence, that she did not have all Dr Morton's reports and yet, when Dr Morton's report of December 1997 was read to Dr Spooner, she agreed with its contents and noted that Dr Morton was a very credible Orthopaedic Surgeon.

51. In relation to the issues of market forces and other issues impacting upon Ms Walkley's ability to obtain employment, Mr Lozynsky submitted that unfortunately the Act does not allow for such other factors to be considered. Rather, it must be the impairment itself which prevents work or re-training as provided in subsection 94(2) of the Act.

52. Mr Lozynsky concluded that Ms Walkley is capable of performing selected duties for 30 hours per week and is also capable of being re-trained. This contention was supported, Mr Lozynsky submitted, by the weight of medical evidence. The respondent, therefore, contended that Ms Walkley does not satisfy subsection 94(1)(c) of the Act and is thus not qualified for a Disability Support Pension.

Findings

53. In reaching a decision in this matter, the Tribunal has taken into account all the available evidence, the legislation and relevant case law.

54. Ms Walkley was cooperative in tendering her evidence, although the Tribunal noted some inconsistency in Ms Walkley's evidence in relation to the quantity of medication required by her for pain relief.

55. Dr Spooner provided very useful and unembellished evidence and the Tribunal considered Dr Spooner to be a very credible witness.

56. While there is no dispute between the parties as to the level of physical impairment, the Tribunal considers that from the available evidence, the impairment rating of 20 per cent, as reached using Schedule 1B to the Act, is supported and therefore Ms Walkley satisfies subsections 94(1)(a) and (b) of the Act.

57. The Tribunal now turns to consider whether or not Ms Walkley has a continuing inability to work.

58. All of the medical evidence suggests that Ms Walkley is capable of undertaking either full or part-time sedentary work in the form of clerical employment. Dr Spooner qualified this opinion with her view that Ms Walkley's ability to sustain employment or actually secure employment would depend on the effect of pain relief medication upon Ms Walkley, particularly in relation to her loss of concentration. Further, Dr Spooner opined that Ms Walkley may on occasions be late for work and/or have days absent.

59. Dr Spooner also noted that Ms Walkley could not drive although this was not supported by Ms Walkley's evidence to the Tribunal in that Ms Walkley stated she drove her car every day, although not for longer periods than 50 minutes to an hour.

60. Ms Walkley stated that the main factor preventing her working or re-training was her reliance on Paradex, a strong analgesic which caused her to lose concentration and which, she believed, would prevent her working. There was some discrepancy in Ms Walkley's evidence in relation to the amount of medication she was required to take for pain management. In this regard, initially Ms Walkley indicated that she would take on most days up to four Paradex tablets and this was also the evidence provided by Dr Spooner, on Ms Walkley's advice to the doctor. However, when more detailed questioning was undertaken in relation to the level of medication required by Ms Walkley, and in particular the discrepancy between her claim that she consumed four tablets per day and the actual number of prescriptions of Paradex medication, Ms Walkley qualified her evidence stating that she would definitely take Paradex each night before going to bed but during the day she may take Panadol, a less strong analgesic which did not have the side effects of Paradex. Further, Ms Walkley indicated that when she did not take Paradex for pain management, she used hot wheat packs strapped to her legs in order to try and ease the pain. Ms Walkley's evidence was that the ingestion of Paradex was higher than that noted by Dr Spooner's supply of prescriptions because Ms Walkley had obtained another prescription from a different medical centre which was open on the weekend, whereas Dr Spooner's surgery was not.

61. The Tribunal considered that Ms Walkley undertook quite a deal of activity which seemed not to be affected by her pain medication. In this regard, the Tribunal noted that Ms Walkley attended bingo each week to play the game and also to have lunch. Further, Ms Walkley attended sewing lessons and undertook sewing and craft work, not only for herself but also for the rest of the family. Ms Walkley's evidence was that she sewed every day. Ms Walkley is also able, though slowly and in a graduated manner, to undertake the household cleaning duties. She is able to drive her car every day and drives her car to the park to allow her dog to have a walk. While the Tribunal acknowledges and accepts that Ms Walkley does have a significant physical disability and suffers great pain, the frequency and severity of the pain is not easily estimated given the discrepancies in the evidence. That there is pain is undoubted, but the level of pain seems not to prevent Ms Walkley from undertaking quite a considerable deal of activity both socially and domestically and the level of severe pain medication seems not to be at the high level as was previously submitted. The Tribunal considers that the level of activity undertaken by Ms Walkley, despite her pain, would not prevent her from either undertaking full or part-time light clerical duties, nor would it prevent her from undertaking vocational re-training.

62. Ms Walkley is obviously an intelligent person who has had a great deal of clerical experience. The Tribunal is of the view that it would be a great shame if Ms Walkley did not attempt to build on her abilities and skills and believes that she could become a valuable member of the workforce.

63. Accordingly, the Tribunal is of the view that applying the provisions of subsection 94(2) of the Act, Ms Walkley is capable of undertaking light work duties provided it does not include prolonged periods of sitting, standing, bending or lifting and that she is also capable of undertaking vocational or educational re-training in the next two years. As Ms Walkley does not satisfy subsection 94(2) of the Act, she does not, therefore, satisfy subsection 94(1)(c) of the Act and is, therefore, not qualified for a Disability Support Pension at this time.

64. In all of the circumstances and for the reasons set out above, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review is affirmed.

I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S.M. Bullock, Member.

Signed: .....................................................................................

Personal Assistant

Date/s of Hearing 3 May 1999

Date of Decision 3 August 1999

Representative for the Applicant Self-represented

Representative for the Respondent Mr G Lozynsky, Departmental Advocate