Barnes and Repatriation Commission (Veterans' entitlements)
[2017] AATA 1385
•29 August 2017
Barnes and Repatriation Commission (Veterans' entitlements) [2017] AATA 1385 (29 August 2017)
Division:VETERANS' APPEALS DIVISION
File Number: 2016/1426
Re:Phillip Barnes
APPLICANT
Repatriation CommissionAnd
RESPONDENT
DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:29 August 2017
Place:Melbourne
The Tribunal affirms the decision under review.
[sgd]........................................................................
Senior Member A. Nikolic AM CSC
VETERANS’ ENTITLEMENTS — application for Special Rate of pension – where Applicant was assessed as entitled to disability pension at 100% of the General Rate – where Applicant had a number of accepted and non-accepted conditions – whether Applicant satisfied the alone test – whether ameliorating provisions applied to Applicant – whether Applicant eligible for pension at the Intermediate Rate – decision under review affirmed
Legislation
Veterans' Entitlements Act 1986
Cases
Owen v Repatriation Commission (Owen) (1995) 59 FCR 93
Repatriation Commission v Smith (1987) FCA 260Repatriation Commission v Hendy (2002) 76 ALD 47
Secondary Materials
Guide to the Assessment of Rates of Veterans' Pensions 2016
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
29 August 2017
INTRODUCTION
Mr Phillip Barnes is 64 years of age and served with the Royal Australian Air Force (RAAF) from 26 April 1971 until 31 December 1992 as a Clerk / Auditor, achieving the rank of Sergeant. He suffers from a number of accepted medical conditions for which he receives a Full Treatment Disability Pension at 100% of the General Rate.
On 20 March 2014 Mr Barnes applied for an increase in his disability pension in accordance with section 15 of the Veterans’ Entitlements Act 1986 (the Act).[1] He contended that his previously-accepted disabilities had worsened and concurrently claimed a new disability, namely a ‘right ankle problem.’
[1] T-documents dated 19 April 2016 and hereafter referred to as Exhibit R1, pp.1-21.
On 20 May 2014 a delegate of the Repatriation Commission accepted Mr Barnes’ claim for his right ankle problem, determining that the appropriate diagnosis was ‘Old Fracture of Right Malleolus (Ankle).’[2] The delegate refused his application for an increase in pension to either the Special or Intermediate Rate, finding that Mr Barnes had ceased work due to reasons other than his accepted disabilities, and had non-accepted disabilities impacting upon his ability to undertake remunerative employment.[3] The delegate also determined that because Mr Barnes was under 65 years of age, he was not eligible for the Extreme Disablement Adjustment. The effect of the delegate’s decision was that Mr Barnes’ disability pension was continued at 100% of the General rate.
[2] Exhibit R1, p.77.
[3] Exhibit R1, p.82.
Mr Barnes’ application was reviewed by the Veterans’ Review Board (VRB), which affirmed the Commission’s decision on 18 November 2015.[4] Mr Barnes has asked the Administrative Appeals Tribunal to review the VRB decision. The only issue in dispute before the VRB and before this Tribunal on review is whether Mr Barnes is entitled to receive pension at the Intermediate or Special rate.
[4] Exhibit R1, pp.B2-B7.
For the reasons that follow, the decision under review is affirmed.
LEGISLATIVE FRAMEWORK
The following provisions in the Act are pertinent to Mr Barnes’ case:
(a)Assessment Period. In accordance with section 19(9) of the Act, the assessment period for Mr Barnes’ eligibility commenced on 20 March 2014, which is the date he lodged his application for an increase in pension, and continues until determination of this matter by the Tribunal. At the hearing, the Commission submitted that in light of a recent decision by the VRB[5] relating to a separate application by Mr Barnes, a second assessment period had commenced on 1 September 2016.
[5] Exhibit R5.
(b)Standard of Proof. Mr Barnes’ application relates to the assessment of the rate of a pension granted under Part II of the Act, so the standard of proof to be applied under section 120(4) of the Act is ‘reasonable satisfaction.’
(c)Extreme Disablement Adjustment. Section 22(4) of the Act provides for the payment of Extreme Disablement Adjustment (EDA) as follows:
22 General rate of pension and extreme disablement adjustment
…
(1)Where:
(a)either:
(i) the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be 100% or has been so determined by a determination that is in force;
….
(b)the veteran has attained the age of 65;
(c)the veteran has an impairment rating of at least 70 points and a lifestyle rating of at least 6 points, each determined in accordance with the approved Guide to the Assessment of Rates of Veterans’ Pensions; and
(d)the veteran is not receiving a pension at a rate provided for by section 23, 24 or 25.
(d)Special Rate. The relevant legislation is contained in section 24 of the Act, which states:
24 Special rate of pension
(1)This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a)either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d)section 25 does not apply to the veteran.
(2)For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
(e)Intermediate Rate. Eligibility for a pension payable at the Intermediate Rate is provided for at section 23 of the Act, which has the same eligibility criteria as section 24, except that the veteran has a capacity for more than eight but no more than 20 hours work per week. As required by section 23(1)(d), however, it is necessary to consider eligibility for the Special Rate first, before turning to the Intermediate Rate. In effect, Section 23 only applies if sections 24 or 25 do not apply to the veteran.
(f)To qualify for the Intermediate Rate, a veteran must be rendered incapable of undertaking remunerative work other than on a part-time or intermittent basis. If the veteran is capable of undertaking work of a particular kind for 50 per cent of the time ordinarily worked by persons engaged in work of that kind on a full-time basis, or for 20 hours or more per week, they do not qualify.
ISSUES BEFORE THE TRIBUNAL
Mr Barnes made a valid application for a pension increase under section 15 of the Act and had not yet turned 65 when making his claim. His degree of service-related incapacity has been assessed at 100%. I therefore find that in relation to the Special Rate of Pension, Mr Barnes satisfies sections 24(1)(aa), 24(1)(aab) and 24(1)(a) of the Act.
The key issue before me, therefore, is whether Mr Barnes satisfies the requirements of section 24(1)(b) and 24(1)(c) of the Act. If it is found that Mr Barnes’ work capacity is more than eight hours per week, he would not be eligible for the Special Rate of pension, and I must then consider his eligibility for the Intermediate Rate.
Given Mr Barnes is under 65 years of age and has not been engaged in remunerative work, I must also consider whether the ameliorating provisions of section 24(2)(b) for Special Rate, or 23(3)(b) for Intermediate Rate apply, such that he satisfies the alone test. If so, the additional questions arising are:
(a)Has Mr Barnes been genuinely seeking to engage in remunerative work that he would be continuing to seek, but for the incapacity caused by his accepted conditions?; and
(b)Is his defence-caused incapacity the substantial cause of his inability to obtain remunerative work?
Mr Barnes contends that he satisfies the criteria for the Special Rate of pension, because he has been unable to ‘perform his old work’ since March 2014, ‘owing only to accepted service-caused disabilities and his extended unsuccessful effort to locate a job.’[6] In the alternative, Mr Barnes contends that if his work capacity is assessed to be ‘between 8 and 20 hours per week,’ then he is ‘eligible for the intermediate rate of pension.’[7]
[6] Applicant’s Statement of Facts and Contentions dated 17 March 2017, p.5.
[7] ibid.
The Respondent contends that Mr Barnes is not qualified for either the Special or Intermediate rates of pension, because he does not satisfy the alone test under section 24(1)(c) or section 23(1)(c) of the Act.
Mr Barnes’ accepted and non-accepted disabilities
Mr Barnes’ pension is currently paid at 100% of the General Rate for the following accepted disabilities:
(a)Spondylosis – Cervical, Thoracic, and Lumbar;
(b)Sleep Apnoea;
(c)Old Fracture of the Right Malleolus (Ankle);
(d)Solar Skin Damage;
(e)Sensorineural Hearing Loss;
(f)Tinnitus; and
(g)Deviated Nasal Septum.
In the week prior to the hearing of this matter, I was advised of the VRB’s decision dated 16 July 2017, regarding a separate application by Mr Barnes to have pes planus (flat feet) accepted as a defence-caused condition. In that matter, the VRB set aside the decision of the Commission, substituting its decision that ‘pes planus right foot and left foot sprain’ were defence-caused disabilities.[8] I have included these newly-accepted disabilities in my consideration of Mr Barnes’ application.
[8] Exhibit A5.
EVIDENCE
This matter was heard in Melbourne on 7 August 2017. The Applicant was represented by Mr Dino De Marchi, a solicitor of De Marchi and Associates. The Respondent was represented by Mr Ken Rudge, a solicitor of the Department of Veterans’ Affairs Review Branch. The documents admitted into evidence at the hearing were:
APPLICANT RESPONDENT A1 Statement by Mr Barnes dated 24 June 2016. R1 T-documents numbering 102 pages - dated 19 April 2016. A2 Supplementary Statement by Mr Barnes dated 3 August 2017, with attachments relating to job applications. R2 Clinical Notes from Westgate Medical Centre numbering 432 pages. A3 Report of Dr Indika Jayathilake dated 9 August 2016. R3 Transcript of VRB hearing dated 18 November 2015 A4 Admission Record, Epworth Hospital and pamphlet titled ‘Radio Frequency Neurotomy.’ R4 Medical Reports of Dr Robyn Horsley dated 5 August 2016 and 14 November 2016. A5
Decisions and Reasons of the VRB, heard in Sydney 16 July 2016.
A6
Five job applications made by Mr Barnes and responses received.
Evidence of Mr Barnes
Mr Barnes gave oral evidence and was cross-examined. He stated that during his RAAF career he had performed accounts and clerical roles, before deciding to accept a redundancy offer following an amalgamation of the clerk-supply categories. His work history after leaving the RAAF encompassed roles as a clerk with O’Brien Glass, as a factory hand at a glass factory, as a tipstaff with the County Court, and lengthier roles as a part-time attendant with the Victorian Racing Commission (VRC), and in a casual market research role with Millward Brown. His duties at Millward Brown included door-to-door visits, shopping centre surveys, and office-based functions as a team leader with responsibility for 3-4 staff. His duties as a part-time course attendant at Flemington Racecourse involved management of patron movement in the car parks and within the course itself.
Mr Barnes submits that from 2006 onwards his back pain worsened and ‘progressed down [his] legs and feet.’ He contends that when sitting down during breaks he would fall asleep from fatigue, which was subsequently diagnosed as Sleep Apnoea. He states that by 2012, the issues he was having ‘with sleep apnoea, [his] feet, shoulder, pain in [his] back’ were requiring frequent visits to the doctor ‘every few weeks,’[9] and his ability to stand for longer periods of time was increasingly compromised. Mr Barnes contends that he stopped working in March 2014 because of his accepted disabilities alone, as recommended by his general practitioner. He was 61 years old when he resigned from his roles at the VRC and Millward Brown.
[9] Exhibit A1.
Mr Barnes submits that his doctor considered him ‘not fit for any employment.’[10] In that regard I note correspondence dated 18 February 2014 from Dr John Fotakis, Mr Barnes’ general practitioner for over ten years, in which he states that Mr Barnes’ condition is ‘permanent’ and he had advised him to ‘consider ceasing work.’ I also note the medical report by consultant orthopaedic surgeon Mr Vasudeva S. Pai dated 24 April 2014, which states that ‘presently [Mr Barnes] has no plans to return to work.’
[10] Exhibit R1, p.19.
At the hearing Mr Barnes agreed that notwithstanding the advice from Dr Fotakis, the decision to cease remunerative work was his alone and was predicated on his application for increased pension being approved. Mr Barnes agreed that he lodged his application for an increased pension after resigning from the VRC and Millward Brown, but had been thinking about it for some time and had discussed it with his general practitioner. When his application for increased pension was rejected, Mr Barnes submits he had no choice but to resume his search for work. He contends that were it not for his accepted conditions, he would ‘still be working’ at the VRC, in market research, security and/or forklift driver roles. Mr Barnes said he had considered hundreds of jobs, but applied for approximately 22-23 that he felt able to perform. He said only three ‘thanks for applying’ responses had been received from those job applications. He said that because of his accepted disabilities, he had not bothered to renew his security licence, which cost approximately $500 for three years. He contended that was because he could not tolerate the standing/patrolling requirement because of his feet and back, and would not be able to respond appropriately to dangerous situations. During cross-examination, Mr Barnes said he had applied for clerical type jobs and stated that if able to sit/stand/stretch periodically, he felt able to do ‘3 or 4 hours’ of work per day.
In relation to lifestyle effects, Mr Barnes submits that all of his accepted disabilities ‘have deteriorated,’ with a ‘lack of sleep and pain’ causing him to be ‘moody [and] irritable’ and ‘snappy with wife and children.’[11] In relation to his mobility, Mr Barnes states he has problems ‘all of the time’ with ‘walking, pain and loss of balance.’[12] He claims it is difficult to use all forms of public transport because of problems with ramps, the requirement to stand if no seats are available, and a tendency to fall asleep.[13]
[11] Exhibit R1, pp.11-12.
[12] Exhibit R1, p.13.
[13] Exhibit R1, p.14.
In relation to recreation and community activities, Mr Barnes submits that he rarely has visitors, is ‘unable to take part in any’ recreational activities, having given up activities like football, ten pin bowling and golf because of his accepted disabilities.[14] He claims to have ‘ceased going to clubs, for meals, movies etc,’ and does not engage in hobbies. Mr Barnes lists his main mode of daily relaxation as watching television, but submits that he tends to fall asleep while doing so.
[14] Exhibit R1, p.15.
In relation to domestic and employment activities,[15] Mr Barnes submits that he has difficulty with every domestic activity and has had to stop lawn mowing, gardening, washing the car and lifting because of his accepted disabilities. He contends that he can only do the grocery shopping, house cleaning, minor house repairs and cooking ‘with difficulty.’
[15] Exhibit R1, p.16.
On 3 August 2017, Mr Barnes’ solicitor, Mr De Marchi, lodged a supplementary statement from Mr Barnes,[16] containing: emails relating to a number of jobs applied for since June 2016; a list of jobs Mr Barnes claims to have considered; two notices of rejection dated 28 April 2017 and 21 April 2017; and details of a job application dated 28 July 2017. Mr Barnes contends that his accepted disabilities are ‘the most restrictive factor as they tightly limit the number of hours and days [he] is capable of working and prevent [him] from working in any job that has a physical component. During the hearing, Mr Barnes’ solicitor also tendered five job applications submitted since June 2016 and the responses Mr Barnes had received.[17]
[16] Exhibit A2.
[17] Exhibit A6.
During cross-examination, Mr Barnes was taken through a range of medical investigations of his feet, agreeing that his clinical notes recorded his general practitioner performing multiple injections of ‘depo Medrol 40 / xylocaine 2%’ to treat Plantar Fasciitis in both feet.[18] Mr Barnes said these injections had not helped and he had continued to experience persistent problems. In response to the observation that problems with his feet seemed to be the major issue ahead of his ceasing remunerative work in March 2014, Mr Barnes stated that his ‘feet have been part of the problem,’ but that his back and neck were also problems.
[18] Exhibit R2, pp.19-21.
Mr Barnes agreed that he had discussed applying for a Total and Permanent Impairment pension (the Special Rate of pension) with his general practitioner on 22 October 2013, ‘due to chronic neck, back, feet problems.’ Mr Rudge for the Commission noted from Mr Barnes’ clinical records that there were no consultations with his general practitioner in the five months leading up to his resignations relating to his back or neck, but there were a number dealing with the persistent pain in his feet. Mr Barnes agreed that his ‘feet have been a problem for a long time,’ but pain from his ankles and the other accepted conditions affected him. By way of example, he referred to a hospital admission in May 2017 to treat his back condition with Radio Frequency Neurotomy.[19]
[19] Exhibit A4.
In relation to his sleep apnoea, Mr Barnes was taken through his consultations with sleep disorder physicians in 2015, which stated ‘patient did well with CPAP’ and was ‘going along really well’ with CPAP therapy.[20] Mr Barnes said despite those positive reports, no one could explain the reasons for his tendency to constantly ‘nod off.’ In relation to the shoulder problems in his clinical notes, Mr Barnes said his shoulder ‘still aches in winter months,’ but he had not made a claim for it. In relation to his right ankle condition, Mr Barnes said he had injured it ‘playing football for the RAAF’ and had been ‘free of pain for a number of years,’ but for the last 15-20 years it had become increasingly problematic.
[20] Exhibit R2, p. 216; p.277.
Evidence of Dr Horsley
Occupational physician, Dr Robyn Horsley, gave evidence at the hearing and was cross-examined. She said the annular tears in Mr Barnes’ back, as revealed by MRI, were ‘pain generators.’ Dr Horsley considered that Mr Barnes would ‘find it hard to return to work with these foot problems,’ and ideally, should be working in a primarily sedentary role, for example, a clerical role ‘below 20 hours’ per week. Dr Horsley did not believe that Mr Barnes could continue in his VRC role, due to the requirement for prolonged standing. In relation to Mr Barnes’ right ankle condition, Dr Horsely said his medical records showed it was an undisplaced fracture from 1976 and multiple x-rays, most recently on 26 May 2015, had only noted some degenerative change in his big toe, but no degenerative change in his ankle. She said initial concerns Mr Barnes might have peripheral neuropathy had been excluded, and that any pain he might be experiencing in his feet was definitely not coming from his back. That was because only an MRI showing a neural compressive lesion in the back could prove that connection and Mr Barnes’ MRI and nerve conduction studies were normal. In response to further questions about a potential connection between Mr Barnes’ back condition and problems with his feet, Dr Horsley was adamant in stating ‘it’s not coming from his back.’
During cross-examination, Dr Horsley responded that the right ankle fracture suffered by Mr Barnes in 1976 was not causally-linked to his pes planus. She said that might follow if radiology had identified degenerative change in his ankle, which was not the case here. She said Mr Barnes had been suffering bilateral foot pain for the last 10-12 years, initially from Plantar Fasciitis, which had been resolved in 2014 with orthotics. She relied on the opinion of Mr W.H.B Edwards, foot and ankle surgeon, in concluding that Mr Barnes now suffers from Sinus Tarsi Syndrome in both feet, which she believed could have been caused by his pes planus. However, Dr Horsley said unlike Sinus Tarsi Syndrome, pes planus was not painful and was age-related. When asked by Mr De Marchi whether Mr Barnes’ work capacity would be enhanced if he were free of his accepted conditions, Dr Horsley replied: ‘I don’t think so, he has extensive disability associated with his feet.’
Medical Evidence
Spondylosis – Cervical, Thoracic, and Lumbar
Medical evidence relating to Mr Barnes’ accepted back condition includes:
(a)Reports by occupational physician, Dr Robyn Horsley, dated 20 October 2016 and 14 July 2016 state in part:
20 October 2016: ‘He has radiological evidence on MRI in July 2016 of “an annular tear at L5/S1,” which is likely to be an ongoing pain generator. He has no clinical peripheral neurological signs. He has normal nerve conduction studies. He has been assessed by two neurologists, Dr Joubert and Dr Poon, both of whom agree that there is no evidence of a peripheral neuropathy.’
14 July 2016: ‘Mr Barnes has evidence of annular tears within three lumbar discs on MRI, which are the likely ongoing pain generators affecting his lumbar spine. He also has evidence of impingement of the C7 nerve root radiologically on the left, on cervical MRI… On the basis of his cervical and lumbar spine only, in a sedentary role, where there is ability to move around and do sit-stand as he could do in his market research role. I believe on the basis of his neck and back condition alone that Mr Barnes probably has capacity to work between eight and 20 hours per week. I do not believe that he would be able to work full-time. I believe that he would have found it difficult to continue in his role as course attendant, if he was required to stand on a chronic basis without being able to change posture, as he could with the market research role.
(b)A report by neurosurgeon, Mr Patrick Lo, dated 7 September 2016 states in part:
‘In terms of his lumbar spine, there was evidence of a mild disc bulge and a L5/S1 annular tear without significant canal stenosis or nerve compression. In the cervical spine, there was degenerative C6/7 spinal disease with bilateral C7 nerve compression. He was referred to a multidisciplinary pain management service for ongoing pain control, but he did not require spinal surgery at the time of his discharge from my care.’
(c)A letter by general practitioner Dr Fotakis dated 30 June 2015, states that Mr Barnes’ health has ‘slowly declined especially over the last couple of years,’ to the point where he could no longer undertake ‘more active work’ like maintaining his home and motor vehicles. He states that Mr Barnes took regular analgesics for his back, neck and feet, but that the analgesia ‘no longer seem to work very well,’ resulting in Mr Barnes being in ‘constant pain,’ whether ‘standing, sitting or lying down for extended periods of time.’ He submits that Mr Barnes attends physiotherapy twice weekly and hydrotherapy weekly. Dr Fotakis contends that numbness and burning in Mr Barnes feet is ‘likely to be coming from his lower back,’ contributing to unsteadiness and ‘making long walks a chore.’ Dr Fotakis contention, however, is not supported by the available medical evidence, most notably the opinions of specialists Dr Horsley, Dr Joubert and Dr Poon.
(d)A report by consultant orthopaedic surgeon Mr Vasudeva S. Pai dated 24 April 2014 states in part:[21]
‘… [Mr Barnes] stated he has had some orthopaedic assessment but has not had any orthopaedic surgeons treatment. According to him his low backache is stable since 1992 and has not improved since then.
(e)A report by consultant occupational physician, Dr David Prestage, dated 17 April 2014 notes Mr Barnes experienced persistent neck and low back pain.[22]
[21] Exhibit R1, pp.45-67.
[22] Exhibit 1, p.41.
Sleep Apnoea
Medical evidence relating to Mr Barnes’ sleep apnoea includes:
(a)A report by consultant occupational physician, Dr Robyn Horsley, dated 14 July 2016 notes that Mr Barnes was diagnosed with severe obstructive sleep apnoea approximately eight years ago, was prescribed a CPAP machine, and consults with a respiratory physician six-monthly. She noted Mr Barnes’ contention about suffering from daytime somnolence.
(a)A report by consultant orthopaedic surgeon Mr Vasudeva S. Pai dated 24 April 2014 states:[23] ‘in my opinion, his employment capability is related also to sleep apnoea in addition to musculoskeletal symptoms.’
(b)A letter by respiratory and sleep disorders physician Dr Neil R. Smith dated 15 April 2015, states that Mr Barnes had responded ‘really well’ to CPAP therapy and he didn’t need to review him for 12 months.[24]
[23] Exhibit R1, p.54.
[24] Exhibit R2, p.215.
Old Fracture of the Right Malleolus (Ankle)
Medical evidence relating to Mr Barnes’ right ankle includes:
(a)A report by occupational physician, Dr Robyn Horsley dated 14 July 2016 states: ‘On the basis of recent radiology in 2014 and 2015 there is no degenerative change in the right ankle subtalar joint region.’
(b)A letter from podiatrist Philip Spark dated 1 June 2015, states: ‘Recent x-rays show mild degeneration of the left and right ankle but nothing of significance and certainly nothing explaining the symptoms experienced.’
(c)A report by diagnostic radiologist Dr Robert Piaggio dated 26 May 2015 states: ‘No abnormality of the ankle joint. Possibly minimal calcaneal spur formation.’
(d)An x-ray report by Dr Alex Dulimov dated 15 May 2015 states: ‘No trauma. Bone and joint alignment is normal. The joint spaces are maintained. No focal osseous lesion.’
(e)A report by consultant orthopaedic surgeon Mr Vasudeva S. Pai dated 24 April 2014 states in part:[25]
‘… He has had a fracture of the posterior malleolus but according to him ankle…is relatively fine except for occasional discomfort. He can manage well with his ankle. The ankle does not swell up or gives out on him and he has a good range of movement... He had full range of ankle movement…There was no evidence of any peroneal tendinosis or tibialis posterior tendinosis or Achilles tendinosis. He had normal power in his ankle and toes… Clinically there is no evidence of arthritis of the right ankle. Radiological his ankle looks quite good for his age of 61. In my opinion, no treatment is required for the ankle and ankle is clinically stable for the ligaments and he has a full range of movement.’
(f)Mr Vasudeva refers to an x-ray of Mr Barnes’ right ankle dated 25 March 2014, which showed: ‘…no evidence of osteoarthritis…normal ankle joint and there is no abnormal soft tissue swelling.’ He attributes 0% impairment to Mr Barnes’ right ankle.
[25] Exhibit R1, pp.45-67.
Other Accepted Conditions
Solar Skin Damage. In a report dated 14 July 2016, Dr Robyn Horsley states that she does not believe this condition impacts on Mr Barnes capacity for work. I accept the evidence of Dr Horsley and find this condition does not have a significant effect on Mr Barnes’ capacity to undertake remunerative work.
Sensorineural Hearing Loss and Tinnitus. In her report dated 14 July 2016, Dr Horsley states that Mr Barnes does not wear a hearing aid and has never been offered one. She notes that no audiogram is available and records Mr Barnes’ contention that he turns up the television and his phone, reports bilateral tinnitus two to three times per week, lasting for half an hour or so. Her opinion is that these conditions do not specifically impact on Mr Barnes capacity for work. I accept the evidence of Dr Horsley and find this condition does not have a significant effect on Mr Barnes’ capacity to undertake remunerative work.
Deviated Nasal Septum. In a report dated 14 July 2016, Dr Horsley records Mr Barnes’ contention that he fractured his nose while playing touch rugby in 1981 and that ‘he states he still experiences rhinitis and a feeling of sinusitis.’ Dr Horsley does not believe this condition impacts on Mr Barnes’ capacity for work. A report by consultant occupational physician, Dr David Prestage, dated 17 April 2014 notes that the only symptoms Mr Barnes experiences from this condition was sneezing and sniffling, but that he did not use any treatment, nor had there been any side-effects or complications. I accept the evidence of Dr Horsley and Dr Prestage and find this condition does not have a significant effect on Mr Barnes’ capacity to undertake remunerative work.
Non-Accepted Conditions
Foot Pain. The medical evidence shows Mr Barnes has suffered bilateral pain in his feet, requiring regular medical treatment for over a decade.
(a)Dr Horsley’s report dated 20 October 2016 states in part:
‘… Mr Barnes stated that he had had issues with his bilateral feet for 10 to 12 years, the right worse than the left. He had been diagnosed with pes planus and had worn orthotics for 5 to 6 years.
Over recent times, after being assessed by Mr Elton Edwards, he was referred to an alternate podiatrist and was provided with wedges…He still does suffer however, from chronic foot pain.
…
I note that he also had x-rays of his left and right ankle, dated the 1st June 2015, which showed nothing of significance.
I note that Mr Barnes consulted Mr Edwards. I note his correspondence dated the 14th April 2016. At that stage, ‘he presented with bilateral severe pain with a burning quality over the plantar aspect of the foot and aching throbbing pain through the hind foot medially and laterally.’ His impression was that ‘he had sinus tarsi impingement and perhaps subtalar pathology.
…
Mr Barnes bilateral foot pain impacts upon work capacity and functional tolerances. He has bilateral pes planus which can produce biomechanical issues. He has gained benefit from wedges. Mr Elton Edwards, an expert orthopaedic surgeon dealing with feet, has suggested that he has sinus tarsi impingement and perhaps subtalar pathology. He suggests that if the hind foot continues to cause severe problems, then a subtalar fusion could be suggested.
I believe that his bilateral foot problem is likely to prevent him from pursuing his previous roles as course attendant or market researcher. On the basis of his feet alone, he should ideally be working in a primarily sedentary role.’
(b)A report by Dr Horlsey dated 14 July 2016 states that Mr Barnes had a lengthy period of Plantar Fasciitis which was resolved in 2014 with orthotics. At the time of her clinical examination, however, she considered that he had bilateral Sinus Tarsi Syndrome, assessing it has been caused by:
‘abnormal foot biomechanics with over pronation or flat feet. The altered foot position increases the pressure on the sinus tarsi region. Mr Barnes has pes planus bilaterally which is the likely cause.’
(c)A letter from consultant foot and ankle surgeon Mr W.H.B Edwards dated 14 April 2016 states:[26]
[26] Exhibit R2, pp.233-234.
‘[Mr Barnes] tells me he has been off work for the last two years or so because of a combination of spine and foot pathology. His concerns today are his feet.
He describes moderate to severe pain. There is burning pain on the plantar aspect of the feet. There is aching, throbbing pain through the hindfoot medially and laterally. The right side is probably worse than the left…The aching hindfoot pain is worse with activity. It is worse with walking, it is worse with stairs. His walking time is five minutes…
…
My impression is this man has sinus tarsi impingement and perhaps subtalar pathology. I believe he has peripheral neuropathy…I have suggested insoles…analgesics and anti-inflammatories. If the hindfoot continues to cause very severe troubles, consideration could be given to subtalar fusion. I have explained this is a destructive surgery…recovery from such surgery is immensely slow.’ Mr Barnes has symptoms consistent with neuropathy despite normal nerve conduction tests. He most probably has subtalar impingement. I have suggested conservative management at this stage.’
(d)A letter from consultant Neurologist Dr Jacques Joubert dated 1 February 2016 reports on his review of persistent symptoms in the plantar areas of Mr Barnes’ feet.[27] Mr Joubert states ‘my feeling is that he has a problem with his feet’ and suggests Mr Barnes be referred to Mr Will Edwards, an orthopaedic foot specialist. In a subsequent letter dated 9 May 2016, Dr Joubert opines that Mr Barnes had no clinical evidence of neuropathy in his feet.
(e)A report by consultant orthopaedic surgeon Mr Vasudeva S. Pai dated 24 April 2014 attributes 20% impairment to Mr Barnes’ Plantar Fasciitis (10% to each of his left and right heels). [28] Mr Pai’s report states in part:
‘For the last 15 years he has had an insidious onset of plantar fasciitis in both heels and had three cortisone injections to each side and had physio and Achilles stretching exercises. He states that although his symptoms are much better but when he is required to stand for five to six hours as when he is doing security work at the racecourse, at the end of the day he gets pain over the heel…Both heels are equally affected. He uses arch support at the moment and soft cushion and does some home-based exercises, which appears to be gastroc-soleus stretching…He was tender over medial calcaneal tuberosity on both sides suggesting he still had ongoing plantar fasciitis… If this heel pain increases and is waking him up in the night, then there is a role for endoscopic release with extracorporeal shock wave therapy…Symptoms of plantar fasciitis affect his ability to stand or walk longer time.’
(f)A report by consultant occupational physician, Dr David Prestage, dated 17 April 2014 states in part:[29]
‘Mr Barnes said he has been experiencing pain in both feet and ankles with a diagnosis of plantar fasciitis on the left side. An injection to the plantar fascia seemed to improve things but injections to the right ankle did not make any difference…Mr Barnes said his walking tolerance varies from day to day but if his feet are playing up he can only manage 100 m or so…Mr Barnes had pes planus (flat feet) bilaterally. The origin of the left plantar fascia was tender…Mr Barnes is affected by his right foot pain, left plantar fascia’s and back pain…Mr Barnes is unable to be on his feet for any significant length of time due to his back pain and bilateral foot pain.’
(g)Dr Prestage considered that Mr Barnes’ ability to return to his previous roles would depend on ‘appropriate treatment for his feet,’ but ‘there is no reason why he could not undertake a clerical role on a full-time basis provided he was able to get up from time to time to move around.’ He estimated that 30% of Mr Barnes’ dysfunction was related to the pain in his feet.[30]
(h)A letter from Mr Barnes’ general practitioner, Dr Fotakis, dated 18 February 2014 refers to ‘persistent chronic bilateral plantar fasciitis…[that has been]…resistant to repeated injections of cortisone.’
[27] Exhibit R2, p.229.
[28] Exhibit R1, p.53.
[29] Exhibit 1, pp.31-39.
[30] Exhibit 1, p.36.
Shoulders. Mr Barnes submits in his statement dated 24 June 2016 that by 2012, problems with his shoulder were amongst those requiring frequent visits to the doctor ‘every few weeks.’ In her report dated 14 July 2016, Dr Horsley states:
Mr Barnes has sustained two injuries to his bilateral shoulders. He came to surgery in May 2011 for a partial width full thickness tear of the supraspinatus. He has clinical evidence suggestive of AC joint disruption on the right side. He does have some reduction in right shoulder function.
At the hearing, Dr Horsley stated that Mr Barnes’ shoulder problems are unrelated to the problems in his neck. She also considered that Mr Barnes’ shoulder problems did not have a significant effect in relation to the type of work he was undertaking at the VRC and Millward Brown, and did not impact her assessment regarding his ability to undertake clerical type work for under 20 hours per week. I accept Dr Horsley’s evidence in this regard.
Right Knee. At the hearing Dr Horsley stated that in her consultation with Mr Barnes, she noted he had clinical evidence of ‘mild to moderate wear and tear’ in his right knee, crepitus, and that he experienced discomfort intermittently. She said that the problems with his back and feet, however, were the major issues affecting Mr Barnes. I accept Dr Horsley’s evidence that Mr Barnes’ right knee problem did not have a significant effect in relation to the type of work he was undertaking at the VRC and Millward Brown, and does not impact her assessment regarding his ability to undertake clerical type work for under 20 hours per week.
CONSIDERATION
Extreme Disablement Adjustment
Because Mr Barnes has not attained 65 years of age, I find he is ineligible for EDA in accordance with section 22(4)(b) of the Act.
Is Mr Barnes entitled to pension at either the Special or Intermediate Rate?
Section 24(1)(b) and 24(1)(c) of the Act are the two key provisions in contention:
(a)Section 24(1)(b). For this section to be satisfied, Mr Barnes must be totally and permanently incapacitated, meaning that his defence-caused incapacity, of itself alone, renders him incapable of undertaking remunerative work for periods aggregating more than eight hours per week. This section is amplified by section 28 of the Act, which provides that the only factors a decision-maker shall have regard to in determining the kind of remunerative work Mr Barnes could reasonably undertake, are:
(a)the vocational, trade and professional skills, qualifications and experience of the veteran;
(b)the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c)the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).
(b)Section 24(1)(c). This section of the Act is often referred to as the ‘alone test.’ Under section 24(2) of the Act, Mr Barnes would not satisfy the alone test if he ceased to engage in remunerative work for reasons other than his service-caused incapacity, or was incapacitated or prevented from engaging in remunerative work for some other reason.
Mr Barnes’ Work Capacity and Findings From the Medical Evidence
I consider the contemporaneous medical evidence more influential, given that it reflects the views of specialists with a comprehensive case history to draw on. In relation to Mr Barnes’ capacity for work, I have considered the competing views in this regard:
(a)Mr Barnes’ oral evidence was that providing he could sit/stand/stretch in his work place, he assesses that he could do ‘no more than 3 or 4 hours’ of work per day, which equates to approximately 15-20 hours per week.
(b)Dr Prestage assesses that Mr Barnes ‘is capable of fulltime work in a clerical role that allows him to get up from time to time.’
(c)Dr Horsley considers that Mr Barnes is not able to work fulltime, but ‘probably has capacity to work between eight and 20 hours per week.’
(d)Dr Fotakis is of the opinion that due to his accepted disabilities Mr Barnes is unable to work more than eight hours per week.
After careful consideration of the medical evidence, I have placed more weight on the opinion of occupational physician Dr Horsley, whose education and training is far more applicable to the circumstances of this case. Moreover, Dr Horsley’s opinion is contained in a comprehensive report that draws on her specialised knowledge and the reports of other physicians, which is then applied to the inter-relationship between Mr Barnes and his capacity for work. I note that orthopaedic consultant Mr Pai defers in his report to the judgement of occupational physicians when it comes to questions of employment capacity.
I therefore prefer Dr Horsley’s opinion over that of Dr Prestage and the other physicians, because her clinical assessment was comprehensive, whereas the referral underpinning Dr Prestage’s assessment was focussed substantially on Mr Barnes’ right ankle. Consistent with the opinion of Dr Horsley, which I note is reflected in Mr Barnes’ own assessment of his work capacity, I therefore find that he is able to work up to 20 hours per week in a ‘primarily sedentary role,’ where he can move around and sit-stand as he could do in his market research role.
I am reasonably satisfied in finding that:
(a)Spondylosis was a substantial factor in Mr Barnes’ decision to cease remunerative work, with Dr Horsley stating that ‘on the basis of his neck and back condition alone, Mr Barnes probably has capacity to work between eight and 20 hours per week,’ but did ‘not believe that he would be able to work full-time.’ I also note Mr Pai’s report that Mr Barnes’ ‘low backache had been stable since 1992 and has not improved since then.’ Moreover Mr Barnes’ clinical records show scant attendances to his general practitioner for the accepted condition of Spondylosis in the year prior to his ceasing work, compared to numerous attendances relating to pain in his feet;
(b)Mr Barnes sleep apnoea was a factor in his ceasing remunerative work as noted in Mr Pai’s report. I am not reasonably satisfied, however, that it continues to affect his capacity to undertake remunerative work based on the evidence of respiratory and sleep disorders physician Dr Neil R. Smith, who stated on 15 April 2015 that Mr Barnes had responded ‘really well’ to CPAP therapy, and only required 12-monthly review. Although I have noted Mr Barnes’ evidence about continuing daytime somnolence, the objective medical evidence does not support a finding that this condition continues to affect his capacity to undertake remunerative work in a substantial way.
(c)Problems with Mr Barnes’ feet were undoubtedly a substantial factor in his incapacity and decision to cease remunerative work. He has required regular treatment for over a decade because of increasingly severe pain in both feet. This has included orthotics, cortisone injections, podiatrist care and physiotherapy. This treatment was prescribed to address worsening symptoms of Plantar Fasciitis, which Dr Horsley states was resolved in 2014 with orthotics. More recently he has been diagnosed with Sinus Tarsi Syndrome, which continues to affect his ability to stand or walk for long periods or distances. I rely in particular on the opinions of Dr Horsley, Mr Edwards, Dr Prestage and Mr Pai. Dr Horsley refers to the problems with Mr Barnes’ feet as an ‘extensive disability,’ stating that ‘on the basis of his feet alone, he should ideally be working in a primarily sedentary role.’ Dr Prestage states that ‘Mr Barnes is unable to be on his feet for any significant length of time due to his back pain and bilateral foot pain.’ Dr Pai states that Mr Barnes experienced pain in his feet, noting in particular ‘when he is required to stand for five to six hours as when he is doing security work at the racecourse,’ and that ‘symptoms of plantar fasciitis affect his ability to stand or walk longer time.’
(d)Mr Barnes’ other accepted and non-accepted conditions (right ankle, solar skin damage, sensorineural hearing loss and tinnitus, deviated nasal septum, shoulder, and knee conditions) were not significant causal factors affecting his decision to cease remunerative work. In making this finding I have had regard to Mr Barnes’ evidence and the opinions of Dr Horsley, Mr Pai, Mr Spark, Dr Piaggio, and Dr Dulimov.
Does Mr Barnes’ defence-caused incapacity alone render him incapable of undertaking remunerative work for the periods necessary to qualify for either rate of pension?
To satisfy section 24(1)(b) of the Act, Mr Barnes must be ‘totally and permanently incapacitated’ by his accepted conditions, which alone prevent him from continuing to undertake remunerative work for periods aggregating more than eight hours per week. The consequence of my earlier finding that Mr Barnes has a capacity to work between 8-20 hours per week in suitable employment, means that he does not satisfy section 24(1)(b) of the Act and is therefore ineligible for the Special Rate of pension.
As provided for by section 23(1)(d) of the Act, I will now consider Mr Barnes’ eligibility for the Intermediate Rate of pension. I find he does satisfy the part-time or intermittent remunerative work test at section 23(1)(b) of the Act. It therefore remains to consider whether Mr Barnes satisfies the ‘alone test’ at section 23(1)(c) of the Act.
Does Mr Barnes’ defence-caused incapacity of itself alone prevent him from continuing to undertake remunerative work that he was undertaking and is he thereby suffering a loss of income that he would otherwise not be suffering?
There is a nexus between sections 23(1)(b) and section 23(1)(c) of the Act, which requires that Mr Barnes’ loss of employment results from his accepted defence-caused disabilities alone, and that his subsequent inability to engage in remunerative employment does not result from other non defence-caused incapacity.
The Full Court of the Federal Court of Australia in Flentjar v Repatriation Commission (1997) 48 ALD 1 (Flentjar), identified four issues to inform a proper consideration of whether the alone test had been satisfied:
1.What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(l)(c) of the Act?
2.Was F, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3.If so, was the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4.If so, was F by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?
The Court in Flentjar considered that a finding needs to be made about what type of remunerative employment a veteran would have performed were it not for their accepted conditions, and that no factors other than the veteran’s defence-caused injury or disease could be identified as preventing them from engaging in remunerative work. As held in Hendy:[31]
The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors...[32]
[31] Repatriation Commission v Hendy (2002) 76 ALD 47 (“Hendy”) at [37].
[32] Ibid.
Mr Barnes’ work background is predominantly in accounts and clerical roles in the RAAF. The relevant remunerative work he was undertaking at the time he decided to resign in March 2014 had two components:
(a)As a VRC attendant undertaking car park duty, checking passes and roving security for about eight hours per day. Mr Barnes undertook these part time shifts every few weeks, other than during busier periods like the Flemington Racing Carnival, and was required to stand for the majority of his shift; and
(b)As a market researcher with Millward Brown, which had both an interview component at homes and shopping centres comprising approximately 80% of his work time, as well as an office-based role for approximately 20% of work time?[33]
[33] Exhibit R1, p.54.
When asked whether in the absence of his accepted conditions, Mr Barnes could have continued in the roles he was undertaking prior to his resignations, Dr Horsley said he could not, because of the ‘extensive disability associated with his feet.’ Dr Horsley stated that Mr Barnes’ Plantar Fasciitis had remained a significant issue over a number of years until resolved with orthotics in 2014. In Mr Edwards letter to Dr Fotakis dated 14 April 2016,[34] he states that Mr Barnes had been off work for the previous two years ‘because of a combination of spine and foot pathology. His concerns today are his feet.’ Dr Fotakis noted eight years earlier on 8 February 2008, that Mr Barnes experienced ‘bilateral foot pain for some time,’ due to ‘Bilateral Plantar Fasciitis.’ Moreover, Mr Barnes’ Clinical Records reveal that in the years prior to ceasing work, the predominant issue requiring attendance at his general practitioner related to pain in both feet. By way of contrast during the same period, his presentations relating to accepted conditions of Spondylosis and Sleep Apnoea were scant and mostly related to DVA claims assessments, radiology referrals for ‘TPI review’ and a consultation on 30 June 2014 regarding an application for a disability parking permit – the latter related to pain in both his back and feet.
[34] Exhibit R2, p.233.
Both Mr Edwards and Dr Horsley have diagnosed Mr Barnes with Sinus Tarsi Syndrome, which Dr Horsley believes may be caused by his pes planus, which is age-related and biomechanical. This diagnosis follows prolonged Plantar Fasciitis over many years before it was resolved with orthotics in 2014. I note that neither Plantar Fasciitis nor Sinus Tarsi Syndrome are accepted as defence-caused conditions.
Mr Barnes submits that there is a sufficient causal relationship between his accepted foot / ankle conditions and the non-accepted conditions affecting his feet for over a decade. I do not accept that submission. The VRB’s recent decision to accept pes planus right foot and left foot sprain as defence-caused,[35] does not establish a causal relationship between Mr Barnes’ accepted conditions and the Plantar Fasciitis / Sinus Tarsi Syndrome he has suffered for over a decade. In any event, it is for the Commission to determine whether medical conditions are defence-caused. Absent such a finding, or application for review of such a finding before the Tribunal, the Tribunal has no role in concluding that an accepted condition has precipitated or contributed to a condition not yet accepted by the Commission or VRB. Finn J has elaborated on this issue in Owen v Repatriation Commission at 100-101:[36]
[35] Exhibit A5.
[36] Owen v Repatriation Commission (Owen) (1995) 59 FCR 93.
1. Section 24 presupposes that a determination has been made that an injury has been war-caused. Its concern in subsection (1)(c) is with an effect of the incapacity
resulting from that injury. The section does not permit a new determination to be made for its purposes that an injury is war-caused…
2. Where it is suggested a new injury is war-caused because it is causally related to, or has been contributed to by, an already determined war-caused injury, it is open to a veteran to make a claim under the Act for a determination that that new injury is in fact war-caused with the terms of the Act, s 9. In other words the legislative scheme itself allows for an injury causally related to a war-caused
injury to be found to be a war-caused injury…In this way the Act permits a veteran to add to the available war-caused injuries of which account may be taken under s 24.
3. The wording of s 24(1)(c) in its reference to the veteran being prevented from continuing to undertake remunerative work "by reason of incapacity from that war-caused injury ... alone" likewise precludes a converse form of reasoning which would allow the effects of an injury which was not determined to be war-caused to be attributed wholly to an injury that was so determined merely because the two
injuries could be shown to be causally related. For the purposes of s 24(1)(c) the relevant incapacity is that of the injury determined to be war-caused alone and not that as well of any causally related but not war-caused determined injury. But as I have noted in 2 above it is open to a veteran to change the character of the relevant incapacity for the purposes of the subsection by securing a distinct
determination that the causally related injury as well is war-caused.
Consistent with the reasoning in Owen, this hearing relates to Mr Barnes’ application for reassessment of the appropriate rate of pension by reference to several disabilities, which were accepted as attributable to his defence service. There is no Commission or VRB determination regarding Plantar Fasciitis or Sinus Tarsi Syndrome capable of being incorporated into my consideration of Mr Barnes’ pension entitlements. It is open to Mr Barnes to seek a determination from the Commission about any other conditions he believes are defence-caused. I am therefore reasonably satisfied that problems with Mr Barnes’ feet, namely Plantar Fasciitis and Sinus Tarsi Syndrome, which are not accepted under the Act, contributed significantly to his inability to continue working at the VRC and Millward Brown.
Mr Barnes’ solicitor relies on the ameliorating provisions at section 23(3)(b) of the Act, submitting that Mr Barnes ‘has made genuine efforts at seeking remunerative work, but is unable to find work appropriate for a man with his disabilities.’ These ameliorating provisions apply to veterans under the age of 65 and constitute exclusionary provisions or an alternative method for satisfying the alone test.
Mr Barnes submitted that his intention to cease work at the VRC and Millward Brown was predicated on approval of his application for increased pension. When that application was rejected, he says there was little choice but to resume his search for work. Although he was not engaged in remunerative employment at the commencement of the assessment period, the ameliorating provisions can be found to apply in circumstances where three specific matters are satisfied:
(a)The veteran has been genuinely seeking to engage in remunerative work;
(b)But for their defence-caused incapacity, the veteran would be continuing to seek to engage in remunerative work; and
(c)The veteran’s incapacity is the substantial cause of their inability to obtain remunerative work.
Having considered the available evidence, I am reasonably satisfied that Mr Barnes has genuinely sought to engage in remunerative work. But, I am not reasonably satisfied that incapacity from his defence-caused disabilities was the substantial cause of his inability to obtain remunerative work. The Federal Court has previously held in Fox v Repatriation Commission at 319-320:[37]
‘The words "the substantial cause" require that, if the incapacity is not of itself productive of the inability to obtain work, it is nevertheless the operative factor which, more than any other, explains it. That something might be "a substantial cause" has regard to the situation where there may be a number of factors operating which are of sufficient causal significance to qualify as "substantial"… The definite article in s 24(2) of the 1986 Act (compare Repatriation Act 1920, Schedule 2, as amended in 1985), requires a stronger and more direct causal connexion between the incapacity and the inability to obtain remunerative work…’
[37] Fox v Repatriation Commission (1997) 45 ALD 317.
In Mr Barnes’ case, the evidence supports a finding that the incapacity resulting from longstanding problems with his feet is undoubtedly a substantial cause, perhaps the substantial cause, impacting his ability to continue working for the VRC and Millward Brown. These problems with his feet are distinct from and are causally unrelated to the accepted conditions relating to his feet and ankles. It therefore follows that the ameliorating provisions in section 23(3)(b) of the Act do not assist Mr Barnes.
Given that Mr Barnes’ accepted conditions alone are not the only reason preventing him from continuing to undertake remunerative work, I am not reasonably satisfied that he passes the alone test. I am also therefore not reasonably satisfied that he has suffered a loss of salary or wages he would not otherwise be suffering if he were free from his accepted defence-caused injuries.
CONCLUSION
The evidence shows that incapacity arising from non-accepted conditions affecting Mr Barnes’ feet was a substantial cause of his resigning from work, and remains a substantial cause of his inability to obtain work despite his genuine efforts to do so. Mr Barnes does not satisfy section 24(1)(b) or section 24(1)(c) of the Act relating to the Special Rate of pension. He is also ineligible for the Intermediate Rate of pension because he does not satisfy section 23(1)(c), or the ameliorating provisions of section 23(3)(b) of the Act. He is therefore not eligible to be paid pension at either the Special or Intermediate rates.
DECISION
It therefore follows that the decision under review is affirmed.
I certify that the preceding 60 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC
[sgd]............................................................
Associate
Dated: 29 August 2017
Date of hearing: 23 June 2017 Applicant: In person Advocate for the Applicant: Mr Dino De Marchi Solicitors for the Applicant: De Marchi and Associates Advocate for the Respondent: Mr Ken Rudge Solicitors for the Respondent: Department of Veterans’ Affairs, Review Branch
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