Gerischer and Department of Family and Community Services [2002] AATA 60 (18 January 2002)

Last Updated: 13 February 2002

DECISION AND REASONS FOR DECISION [2002] AATA 60

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2001/1284

GENERAL ADMINISTRATIVE DIVISION )

Re REGINA GERISCHER

Applicant

And SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date 18 January 2002

Place Melbourne

Decision The decision under review is affirmed.

..........Sgd. Mr J. Handley..................

Senior Member

CATCHWORDS

Social Security - Application for Disability Support Pension - whether applicant has 20 impairment points or greater - whether applicant has a continuing inability to work - decision affirmed.

REASONS FOR DECISION

18 January 2002 Mr J. Handley, Senior Member

1. Mrs Gerischer applied for Disability Support Pension ("DSP") on 17 February 2000. On 3 May 2000 an officer of Centrelink rejected the application. A request was later made for review and on 21 June 2001 an Authorised Review Officer ("ARO") affirmed the primary decision. The applicant then lodged an application for review with the Social Security Appeals Tribunal ("SSAT") which on 15 August 2001 affirmed the decision made by the ARO. The applicant appeals to this Tribunal against the decision of the SSAT.

2. The ARO decided that that the applicant had a 10% impairment under the impairment tables annexed to the Social Security Act 1991 ('the Act') and (additionally) decided that the applicant did not have a continuing inability to work.

3. The hearing of this appeal was heard at Geelong on 20 December 2001. Mrs Gerischer appeared without representation. Ms Cunningham appeared on behalf of the respondent.

4. Mrs Gerischer is presently 60 years of age having been born on 14 February 1940. She currently receives widows allowance of $394.30 per fortnight. On 15 February 2002 she will qualify for age pension which will pay a rate equivalent to DSP.

5. The applicant has gross abnormalities of both feet which have been diagnosed by Mr Richard McArthur an orthopaedic surgeon of Geelong who has treated Mrs Gerischer for 17 years. He reported she suffers "severe hallux valgus deformity with bunion formation". Mrs Gerischer produced photographs of her feet at the hearing and it was obvious she has gross deformities of both feet.

6. At the hearing the applicant said that she walks an average of 6 kilometres daily within a period of approximately 1 hour over uneven ground either at a local beach or on a walking track adjacent to a local river. She also attends a local gymnasium on three occasions per week where for ½ an hour on each occasion she undertakes weighlifting and she also engages in aerobics accompanied by music.

7. Mrs Gerischer says that she walks quickly and participates in aerobics to "fast music". She said "the quicker I move my feet the less painful they are".

8. The applicant was unhappy that Doctor Hunt, a medical practitioner engaged by the respondent to assess her disability reported on 29 March 2000 (T-5) that she was able "to walk normally".

9. I am satisfied having observed the photographs produced by Mrs Gerischer and having read a report of Mr W. Edwards an orthopaedic surgeon (T-9) and a report of Mr McArthur, that the applicant cannot walk normally. I am satisfied that she largely walks on the outside of her feet with discomfort.

10. Qualification for DSP is found at s.94 of the Act. The two qualifying criteria in issue in this application under s.94 are whether the applicant has an impairment of 20 points or greater under the impairment tables and whether she has a continuing inability to work.

11. The ARO found that the applicant had 10 impairment points under the applicable impairment tables.

12. Relevantly, Table 4 provides the following criteria against an impairment rating of 10 -

"Demonstrable loss of strength, mobility, stability, balance, co-ordination and/or sensation such as to cause moderate interference with walking and one or more of the following; climbing, squatting, sitting or kneeling or

pain or claudication restricts walking to 250-500M or less at a slow to moderate pace (4km/h). Can walk further after resting."

13. The criteria against a rating of NIL under Table 4 is-

"walks without difficulty on a variety of different terrains and at varying speeds for distances of more than 500m."

14. Having heard the applicant and read the reports of the Doctors filed within the T-documents, I am not satisfied that the applicant has an impairment of 20 points or greater under the impairment tables. Indeed were it not for the fact that the applicant does have difficulty walking (as may be constituted by the pain she experiences) I would be inclined to find a rating of NIL. That the applicant is capable of walking 6 kilometres daily within a period of approximately 1 hour and then attending a gymnasium on three occasions per week and being engaged in aerobics, the applicant is incapable of achieving any greater rating than 10. By way of example, the qualifying criteria against a rating of 20 impairment points under Table 4 provides.

"demonstrable loss of strength, mobility, stability, balance, co-ordination and/or sensation, such as to cause major interference with walking and one or more of the following:

climbing, squatting, sitting or kneeling ...."

15. The applicant does not have an impairment anywhere near the loss of function referable against an impairment rating of 20.

16. Mrs Gerischer cannot therefore qualify for DSP. All of the qualifying criteria found within s.94 must be satisfied. The construction of the section is conjunctive.

17. Even if an impairment of 20 points was reached, I could not be satisfied that the applicant has a 'continuing inability to work'. I note Mrs Gerischer worked as a records clerk at the Geelong Hospital for 18 months until 1996. I can see no reason why she could not work in a position where she can be seated or where she can sit and stand at will. I am therefore satisfied she has this capacity and it follows there is no 'continuing inability to work'. This view appears to be held also by Mr McArthur (p.37) and Dr Hunt (p.50).

18. In all of the circumstances the decision under review must be affirmed.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member.

Signed: ......C. Irons ......................................

Secretary

Date/s of Hearing 20 December 2001

Date of Decision 18 January 2002

Counsel for the Applicant self represented

Solicitor for the Applicant

Counsel for the Respondent Ms K. Cunningham

Solicitor for the Respondent