Barry Schwind and Repatriation Commission
[2014] AATA 503
[2014] AATA 503
Division VETERANS' APPEALS DIVISION File Number
2013/3007
Re
Barry Schwind
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 23 July 2014 Place Brisbane The Tribunal affirms the decisions under review.
...............................Sgd.........................................
Mr R G Kenny, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Benefits and entitlements - Disability pension – Operational service with Australian Regular Army – Claim for bilateral hip pain - Diagnoses of trochanteric bursitis and abductor tendonitis both hips – Concession by applicant that hip conditions not attributable to Army service – Entitlement decision under review affirmed
Disability pension payable at 100% of general rate – Eligibility for intermediate or special rate of pension – Accepted disabilities sufficient to prevent applicant from working eight hours per week - Incapacity from war-caused conditions not sufficient, alone, to prevent undertaking remunerative work for more 8 hours per week – Neither intermediate nor special rate payable – Assessment decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 14, 15, 19, 21A, 23, 24, 120(4)
CASES
Banovich v Repatriation Commission (1986) 69 ALR 408
Flentjar v Repatriation Commission (1997) 26 AAR 93; (1997) 48 ALD 1
Fogarty v Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363
Repatriation Commission v Alexander (2003) 75 ALD 329
Repatriation Commission v Butcher (2007) 94 ALD 364
Repatriation Commission v Hendy (2002) 76 ALD 47
Richmond v Repatriation Commission [2014] FCA 272
Van Ewijk v Repatriation Commission [2004] FCA 17
Willis v Repatriation Commission [2012] FCA 399; (2002) 202 FCR 323
REASONS FOR DECISION
Mr R G Kenny, Senior Member
23 July 2014
BACKGROUND
On 21 December 2010, Barry Schwind (“the applicant”) who was aged 64 at that time, lodged with the Repatriation Commission (“the respondent”), in accordance with s 14 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), a claim for a disability pension in respect of osteoarthritis of the ankles and knees, lumbar spondylosis, sensorineural hearing loss, tinnitus, chronic bronchitis and emphysema and bilateral hip pain, which was subsequently diagnosed as trochanteric bursitis and abductor tendonitis of both hips. In his claim form, the applicant contended that these conditions were related to circumstances of his service with the Australian Regular Army (“the army”).
On 27 May 2011, the applicant was assessed by the respondent at 100% of the general rate, with effect from 21 September 2011, in relation to osteoarthritis of the ankles and knees, lumbar spondylosis, sensorineural hearing loss, tinnitus and chronic bronchitis and emphysema. In that same decision, the respondent determined that the trochanteric bursitis and abductor tendonitis were not related to his service. On 27 February 2013, the Veterans’ Review Board affirmed the decision of 27 May 2011. The applicant sought review of the decision by this Tribunal. However, Mr Matt Black, for the applicant, conceded that the applicant’s trochanteric bursitis and abductor tendonitis of both hips were not related to his service and requested that the decision in that regard be affirmed.
SERVICE, LEGISLATION AND ISSUES
The
procedure to be followed in assessment matters is set out in s 19 of the Act. It requires the rate of pension to be determined during the “assessment period” which is defined as meaning the period starting on the application day, in this case
21 December 2010, and ending when the claim or application is determined.[1]
The standard of proof to be used in determining assessment matters under the Act is provided for in s 120(4) thereof. This requires that such matters be determined on the balance of probabilities.[2]
[1] Veterans’ Entitlements Act 1986 (Cth) ss 19(5C)(a), 19(9).
[2] Fogarty v Repatriation Commission [2003] FCAFC 136, [34]-[35]; (2003) 37 AAR 363 at 373.
It is not disputed that the general rate of pension payable to the veteran was correctly assessed at 100% of the general rate with an impairment of 60 points and a lifestyle rating of 4 or 5. The issue raised by the applicant is whether he meets the criteria for payment of an earnings-related rate of pension under s 24 of the Act (the special rate) or under s 23 of the Act (the intermediate rate).
For the special rate of pension, the matters that need to be determined are whether or not the veteran meets the requirements of s 24(1) of the Act. These read:
(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
…
(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
The requirements for the intermediate rate are identical except for paragraph (b). To that end, s 23(1)(b) and s 23(2) of the Act, read:
Section 23 Intermediate rate of pension
(1) This section applies to a veteran if:
…
(b) the veteran’s incapacity from war‑caused injury or war‑caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part‑time basis or intermittently.
…
(2) Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:
(a) if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full‑time basis; or
(b) in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking—if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.
EVIDENCE
The applicant
After his army service, the applicant worked as a bricklayer for about 15 years. Initially, this was in an employed capacity but, after a few years, he formed a company and then engaged various teams of bricklayers in undertaking contract work. He and his wife were the sole directors and shareholders of the company and they continued business in a company structure until the end of the applicant’s work in 2010. From 1984 until 1989, this was as a wholesale confectionary supplier and, from 1989 until 1991, as a wholesale gift supplier. He was employed in selling real estate in 1992 and, after short time, he operated a realty consultancy business under a company structure specialising in the marketing of large Gold Coast developments, in particular, with the Raptis Group Limited. He described this as involving a lot of travel to South East Asia and the
Middle East with long hours of standing in conducting exhibitions that would often run from 10 am to 10 pm. The applicant described difficulty in standing and general mobility because of pain in his ankles, knees, back and hips as well as from burning pain in his feet and legs which he experiences even when he is sitting. When asked whether his hip pain contributes to his mobility problems he responded that it does “Absolutely!” He also referred to his emphysema as causing major problems and said that recent lung function tests have revealed a lung capacity of 50%. The applicant has variously described the time of onset of his hip pain as the early 1990s,[3] 20 to 30 years ago[4] and five years ago.[5]
[3] See exhibit 1 at page 14.
[4] See exhibit 6 at page 4.
[5] See exhibit 1 at page 203.
The applicant said that his company ceased trading in mid-2010 although he did some consultancy work without payment for his brother in late 2010. He has not applied for any work since then. He agreed that his company was not deregistered until July 2013. He explained that he was not able to deregister the company before this because a creditor had been placed in receivership and he was awaiting a payment. This happened in 2013 when he received the sum of $42,000 for work completed before mid-2010.
Medical evidence
The applicant’s treating doctor from the 1990s is Dr John Buckley, whose clinical records of the applicant were in evidence. Dr Buckley’s notes reveal many references to burning pain in the applicant’s lower limbs. On 16 February 2011, Dr Buckley wrote that the applicant was unable to perform any remunerative work at all and that the applicant was prevented from working by emphysema, lumbar spondylosis and osteoarthritis of his hips, knees and ankles.
Orthopaedic surgeon, Dr H J P Khursandi, completed a report on 7 April 2011. He noted that the applicant had described a history of several years of pain on the lateral aspects of both hips which was not precipitated by any trauma or incident. He noted X-rays taken on 24 March 2011 which revealed no abnormality in the hips and his opinion was that the applicant suffered from trochanteric bursitis and abductor tendonitis of the trochanters. Dr Khursandi also considered that the applicant’s back, ankle, knee and hip conditions would not prevent him from working for more than 20 hours per week.
Orthopaedic surgeon, Dr Peter Sharwood, completed a report on 6 December 2013. He had seen the reports of Dr Khursandi and Dr Buckley as well as a magnetic resonance image (“MRI”) report from December 2013. Dr Sharwood noted that the applicant claimed to have had hip pain “for the last 20-30 years”, that it was mainly on the outer aspects of the hips and that he could not recall any specific injury to the hips during his army service. Dr Sharwood also noted that the applicant rated his hip pain at 8/10, that his hip pain is made worse by walking and that he has a walking limit of 200 to
250 metres after which he needs to sit down for five to ten minutes. He observed that the applicant had a 20% reduction in the range of movement in the hips because of pain but said that this was “about normal” for a man of the applicant’s age. Dr Sharwood diagnosed trochanteric bursitis in both hips and he said that he was able to do this by pressing on the applicant’s hip and noting the applicant’s painful reaction. Despite that, in his evidence, Dr Sharwood referred to the subjective nature of the reporting of pain. He said that he did not believe that the applicant experienced any pain in his hip and that “classic hip pain” is not experienced in the hip but in the groin and knee. He could not detect any evidence of abductor tendonitis or osteoarthritis in the applicant’s hips.
Dr Sharwood considered that it was significant that the applicant felt the need to sit when his pain was brought on by walking. He described this as typical for spondylosis and associated referred pain to the legs. He contrasted that with vascular leg pain which, he said, is relieved by standing.
Dr Sharwood concluded that the applicant was unable to work eight hours per week and that this was due to his back condition. In his evidence, he described L3 nerve root impingement from the applicant’s spondylosis which has resulted in consequential pain in his thigh, knees and feet and was also responsible for the burning sensations described by the applicant in his legs and feet. In his report, Dr Sharwood wrote that a large degree of his hip pain, particularly on the right side, relates to the back condition. Dr Sharwood apportioned the extent of contribution from the applicant’s musculoskeletal conditions to work incapacity as:
condition % lumbar spondylosis with disc protrusions and spinal stenosis 80 osteoarthritis left ankle 5 osteoarthritis right ankle 5 osteoarthritis left knee 5 osteoarthritis [right][6] knee 5 trochanteric bursitis 0 abductor tendonitis both hips 0 [6] Dr Sharwood identified the left ankle twice.
The MRI report of December 2013, attached to Dr Sharwood’s report, was that of
Dr Sanjay Dhupelia. He wrote that the MRI report revealed no significant hip joint effusions, no significant gluteal tendonopathy and no trochanteric bursitis. Dr Sharwood said that the trochanteric bursitis varies in its presentation as the condition comes and goes but that he had noted it with the applicant’s pain reaction on examination.
Dr Shane Thompson conducted an ultrasound of the applicant’s lower limbs.
His opinion, in his report dated 26 September 2013, was that the applicant had multiple bilateral focal stenosis and occlusion.
In evidence was a report, dated 5 June 2013, from radiologist, Dr Robert Mason, who examined the applicant’s feet and reported that it was likely that he suffered from plantar fasciitis.
Dr Ellison Stephenson, neurosurgeon and spine surgeon,[7] provided several reports which were included in Dr Buckley’s clinical records. In the report, dated 5 September 2011, she described the applicant’s presenting complaint as “atypical heat in the backs of his thighs, calves and dorsum of his feet”. She continued:
[7] See Exhibit 8 at p 37.
This heat has been increasing in the last 3-4 years although he says it has been present prior to that. He describes the heat as though his blood is boiling. He says it is constant and sitting down exaggerates the discomfort which is relieved somewhat by standing.
In that report, Dr Stephenson referred to a CT scan of the applicant’s lumbosacral spine and wrote that it suggested some stenosis. In relation to the applicant’s legs, she thought that there was a degree of peripheral vascular disease present. In her report of
21 October 2011, she noted that, while the applicant has “wear and tear changes” in his spine, he doesn’t have obvious significant stenosis and opined that peripheral neuropathy was “a more likely cause for the burning pain in his legs.” In that report, she advised that she would prescribe Gabapentin for the burning in his legs. In her report of
21 December 2011, Dr Stephenson wrote that the applicant’s burning pain had probably been helped by the Gabapentin as it had worsened after he ran out of the medication about a week before she saw him. In that report she also wondered if some of that burning pain was due to vascular insufficiency and also wrote that it was unrealistic to expect the applicant to work for 10 to 15 hours per week. In his clinical notes,
Dr Buckley advised that, as at 3 February 2014, Gabapentin remained a current medication for the applicant.
Compensation Medical Adviser, Dr A Casperson, completed a report on 18 April 2011. She entered the diagnoses of trochanteric bursitis and abductor tendonitis in response to the applicant’s claim and her opinion was that these conditions were not related to the applicant’s service.
OTHER EVIDENCE
James Raptis, the general manager of the Raptis Group Limited provided a statement, dated 29 October 2013. He wrote that the applicant acted as a consultant for the company for approximately 15 years until 2006. He continued:
This marketing involved extensive market research into foreign countries, the task of sourcing potential investors, the setting up of exhibitions and in general the task of promoting our company into these new markets.
Most of this work involved long hours of standing and talking to potential investors at these exhibitions followed by days of follow up meetings to further garner interest into possible inspections and possible purchase.
Mr Raptis described the applicant as having deteriorating health in the final years of their relationship, in particular with his hearing and breathing difficulties.
SUBMISSIONS
Mr Black submitted that the applicant ceased remunerative work and has since been prevented from engaging in remunerative work as the result of his accepted disabilities such that he should be paid an earnings-related rate of pension. He accepted that pain in the applicant’s hips contributed to his inability to work but relied on the opinion of
Dr Sharwood that the hip pain was a referred pain from his lumbar spondylosis. He submitted that, because lumbar spondylosis was an accepted condition under the Act, the hip pain should be treated as being service-related. He noted the evidence of burning sensations in the applicant’s feet and legs but submitted that, as no diagnoses had been made in relation to those symptoms, it was not appropriate to take them into consideration. Mr Black conceded that, although the applicant was under 65 years of age at the time of his claim, he was not placing reliance on the ameliorating terms of
s 24(2)(b)[8] of the Act because the applicant had not sought remunerative work since he ceased work in 2010.
[8] Or the equivalent provision in s 23(3)(b) of the Act.
For the respondent, Mr Purcell conceded that ss 24(1)(aa), (aab), (a) and (b) were met by the applicant. He submitted that the applicant did not meet the terms of s 24(1)(c) thereof. In that regard, he submitted that it was not only the applicant’s accepted disabilities which prevented him from working. In particular, he submitted, there was contribution from his hip conditions which have not been accepted as being related to his service as well as the burning sensation described by the applicant as impacting on his mobility and his capacity to stand and sit. Mr Purcell submitted that there were internal inconsistencies in Dr Sharwood’s report in the manner he described the hip pain and the way in which he assessed the impact on the applicant of his hip conditions.
CONSIDERATION
Having considered the material in evidence, particularly the reports of Dr Casperson, dated 18 April 2011, and of orthopaedic surgeons Dr Khursandi, Dr Sharwood and
Dr Peter Dodd, dated 7 April 2011, 6 December 2013 and 9 May 2012, respectively, I am satisfied beyond reasonable doubt that Mr Black’s concession that trochanteric bursitis and abductor tendonitis both hips do not arise out of and are not attributable to the applicant’s army service was properly made. The decision in relation to those conditions is affirmed.
I am also satisfied that the concessions by Mr Purcell in relation to ss 24(1)(aa), (aab), and (a) of the Act are properly made. Accordingly, I am satisfied that the applicant made a claim under s 14 of the Act; that he had not turned 65 at the date of that claim; and that the degree of his incapacity has been assessed at least as 70% in accordance with
s 21A of the Act. In relation to s 24(1)(b) of the Act, there are differing opinions about the applicant’s work capacity. Dr Khursandi considered that he could work for more than 20 hours per week. However, he qualified that opinion significantly by adding:
provided he is not called upon to bend, lift, push, pull, carry heavy loads, walk on rough terrain, or maintain the back and lower limbs in certain postures for long periods of time.
That opinion is in contrast to the opinion of Dr Sharwood that the applicant could not work for more than eight hours per week. While Dr Khursandi’s report is 20 months earlier than that of Dr Sharwood, it is contemporaneous with those of Dr Buckley and
Dr Stephenson. Dr Buckley’s opinion was that the applicant is unable to work for more than 8 hours per week. Dr Stephenson said it was unrealistic to expect him to work for
10 to 15 hours per week. Their evidence is consistent with the applicant’s evidence concerning his breathing and mobility difficulties and his problems with sitting or standing in one place for even quite short periods. On the question of s 24(1)(b) of the Act, I prefer the opinions of Dr Buckley and Dr Sharwood to that of Dr Khursandi. Accordingly, I am reasonably satisfied that the applicant meets the requirements of
s 24(1)(b) of the Act.[9]
[9] He also satisfies s 23(1)(b) of the Act.
There is conflict in the evidence concerning the appropriate diagnosis of the applicant’s hip conditions. Dr Buckley referred to osteoarthritis of the hips but that is not supported by the MRI report from Dr Dhupelia. Also, Dr Khursandi noted that an X-ray report, dated 24 March 2011, revealed no abnormality in the hip joints. His opinion was that the applicant had chronic hip pain which was caused by trochanteric bursitis and abductor tendonitis. That diagnosis was adopted by Dr Casperson for the purposes of the applicant’s claim. Dr Dodd described bilateral trochanteric bursitis only. Dr Sharwood’s opinion was that the applicant’s symptoms were consistent with trochanteric bursitis but he was unable to detect evidence of abductor tendonitis. Dr Dhupelia, in his report which was attached by Dr Sharwood to his own report, found no significant gluteal tendonopathy and no trochanteric bursitis.
Dr Sharwood’s oral evidence was that the applicant does not suffer from hip pain. I do not accept that to be the case. Dr Sharwood made no such assertion in his report and, indeed, made several references to the applicant’s hip pain and its limitations on him. Further, he educed a painful reaction in the applicant’s hips when he pressed them and this enabled him to enter the diagnosis of trochanteric bursitis. The presence of hip pain was acknowledged by Dr Buckley, Dr Khursandi, Dr Casperson, Dr Dodd and, significantly, by the applicant himself. I am satisfied, on that evidence, that the applicant does suffer hip pain, the diagnosis of which is unclear. I am satisfied that this generic term of “hip pain” should be adopted for this assessment matter.
Dr Buckley implicated osteoarthritis of the hips as a factor which contributed to the applicant’s incapacity for work. Mr Black submitted that no regard should be had to that opinion because the applicant does not have osteoarthritis of the hips. While I accept that the later material demonstrates that the applicant does not have osteoarthritis of the hips, I am also satisfied that the phenomenon that Dr Buckley was referring to was the set of symptoms described by the applicant and which I have called “hip pain”.
I accept as correct Mr Purcell’s reference to a degree of inconsistency in some parts of
Dr Sharwood’s evidence. While declaring the applicant does not suffer from hip pain,
Dr Sharwood referred, in his report, to the hip pain worsening on walking and limiting the distance walked before rest is needed and he acknowledged the existence of hip pain when he wrote that a “large degree” of the applicant’s hip pain relates to his lumbar spondylosis. In his oral evidence, he said that it was mainly the applicant’s back pain and associated referred pain to the legs which imposes limitations on him. That was not the evidence of the applicant which was that pain in his back and his legs from the hips down is responsible for him having to limit sitting and standing and for limiting his mobility. In doing so, he specifically implicated his hips and the burning sensation in his legs and feet.
Dr Sharwood rejected the opinion of Dr Stephenson that the applicant’s “atypical heat in the backs of his thighs, calves and dorsum of his feet” may be due to peripheral neuropathy or vascular insufficiency. Dr Sharwood saw the applicant on one occasion for the purposes of his report. Dr Stephenson is a neurosurgeon and spine surgeon who saw the applicant on several occasions and completed several reports. She provided the applicant with treatment which included the prescription of Gabapentin. She made several references to the applicant’s spine but did not implicate that in the difficulties the applicant has in his legs and feet. The medication she prescribed is still on the list of his current medications in Dr Buckley’s clinical notes and Dr Stephenson reported a positive outcome from its use by the applicant. Dr Stephenson noted that the applicant gained relief from his burning sensations by standing. Dr Sharwood’s evidence was that such relief by standing reflects a vascular source rather than one related to the spine. I do not accept that Dr Stephenson’s evidence should be rejected.
While the applicant’s back condition may be a serious one, I am reasonably satisfied that it is not the sole musculoskeletal contributor to his incapacity for work. There is contribution from his accepted disabilities in his ankles and knees. There is also contribution from his hips as well as from a recognised but undiagnosed[10] condition in his legs and feet which he described as a burning sensation.
[10] Dr Robert Mason reported that it was likely that the applicant suffered from plantar fasciitis (see paragraph 17 above).
The analysis under s 24(1)(c) of the Act involves a consideration of what the applicant would probably have done in the assessment period in the absence of his accepted disabilities.[11] The Federal Court has said that a proper consideration requires responses to the following questions:[12]
1. “What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the Act?”
2. Is the veteran, “by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?”
3. If the answer to question 2 is yes, is “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 the answers to questions 2 and 3 are, in each case, yes, is the veteran, “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?”
[11] See Repatriation Commission v Hendy (2002) 76 ALD 47 at 54.
[12] See Flentjar v Repatriation Commission (1997) 26 AAR 93; (1997) 48 ALD 1 at 2. In Van Ewijk v Repatriation Commission [2004] FCA 17 at [14], the questions were described as a “helpful guide” in the consideration of s 24(1)(c) of the Act].
For the first of those questions, Mr Black submitted that the relevant remunerative work in this matter is as a real estate marketing consultant. The relevant work is the type of work which the member previously undertook and not “any particular job”.[13] Given the applicant’s expertise prior to his work in real estate I am satisfied that the relevant work is as a marketing consultant.
[13] See Banovich v Repatriation Commission (1986) 69 ALR 395 at 402 and Repatriation Commission v Butcher (2007) 94 ALD 364 at 366.
For the second question, it is not contested that, by reason of the applicant’s conditions which have been accepted under the Act, he has been prevented from continuing to undertake that work.
The third of the questions noted above raises in issue the first part of s 24(1)(c)[14] of the Act through what is referred to as the “alone test”. In Willis v Repatriation Commission,[15] Bromberg J said:
[23] The question raised by the “alone test” is not whether, on its own, the war- caused incapacity prevents the veteran’s continued employment. The question is whether apart from the war-caused incapacity, there is another factor or factors which prevent employment. The existence of other factors which prevent the veteran from working has a disqualifying result for an application for a pension at the special rate. The war-related incapacity must be the lone factor which prevents continued employment. That is what is meant by “alone”.
[24] Another way of re-stating that proposition, which more closely focuses upon the language of s 24(1)(c), is that the alone test requires that the war-caused incapacity is the reason, rather than merely a reason, for the veteran’s inability to engage in the remunerative work which the veteran had previously done. If there is another reason which, independently of the war-caused reason, is preventing the veteran from working, the inability of the veteran to engage in remunerative work is not “by reason” of the war-caused incapacity “alone”.
[14] As well as its s 23(1)(c) equivalent.
[15] [2012] FCA 399; (2002) 202 FCR 323.
In Richmond v Repatriation Commission,[16] Dodds-Streeton J said:
The first limb of s 24(1)(c) refers to, an incapacity (from war-caused conditions) which “prevents”. That language indicates a factor which imposes an involuntary barrier to the relevant activity. Whether such an incapacity alone prevents an activity, in my view, necessarily requires consideration of whether there are any other factors which impose an involuntary barrier.
[16] [2014] FCA 272 at [118] per Dodds-Streeton J.
There must be no factor, apart from the conditions accepted under the Act, which would impact upon the applicant’s capacity to undertake the relevant remunerative work at the start of, or during, the assessment period. Such a factor may be associated with a wide variety of considerations, such as incapacity from a non-service-related medical condition, the effects of age, relocation to a locality distant from work opportunities or the impact of the length of time out of the workforce. Such factors, individually or in combination with each other or with accepted disabilities, may serve to prevent a person from continuing to undertake relevant remunerative work.[17] In the event that they would have contributed to preventing the applicant from doing so in the assessment period,
s 24(1)(c)[18] of the Act will not be satisfied.
[17] See Repatriation Commission v Hendy (2002) 76 ALD 47 at 54-55; Repatriation Commission v Alexander (2003) 75 ALD 329 at 334 per Spender J.
[18] As well as its s 23(1)(c) equivalent.
It is common ground that the applicant’s emphysema greatly affected his capacity to continue working in 2010. His musculoskeletal conditions also impacted on that capacity. They limited his ability to sit, stand and walk in a manner consistent with carrying out his consultancy work. As I have set out above, the applicant’s musculoskeletal conditions include his hip pain and the undiagnosed problem of the burning sensation in his legs and feet. In relation to the hip pain, Dr Sharwood reported that a “large degree” of the applicant’s hip pain relates to his lumbar spondylosis. In his evidence, he said that his hip pain was mainly related to his back condition. However,
Dr Sharwood does not conclude that all of the hip pain emanates from that source and, in any event, he qualified his opinion by particularising the right hip. Even taking
Dr Sharwood’s opinion into account, the applicant suffers a degree of hip pain which is not a disability accepted as directly related to his service or indirectly related to his service as a sequela to his lumbar spondylosis. I am also satisfied that the burning sensations in his legs and feet also contribute to his mobility and I accept
Dr Stephenson’s evidence that at least some component of this is related to peripheral vascular disease or peripheral neuropathy for which she treated the applicant.
I am satisfied that the applicant ceased work and has been prevented from undertaking remunerative work throughout the assessment period by a combination of health conditions not all of which are war-caused injuries or diseases under the Act. The third question listed above[19] is answered in the negative and it is unnecessary to consider the fourth of those questions.
[19] See paragraph 32 (above).
It follows that s 24(1)(c)[20] of the Act is not met in this case. On the material before me, I am reasonably satisfied that pension is not payable to the applicant at the intermediate or special rate under s 23 or s 24, respectively, of the Act and the decision under review in respect of assessment is affirmed.
[20] As well as its s 23(1)(c) equivalent.
DECISION
The Tribunal affirms the decisions under review.
I certify that the preceding 41 (forty one) paragraphs are a true copy of the reasons for the decision herein of
Mr R G Kenny, Senior Member............................Sgd............................................
Associate
Dated 23 July 2014
Date of hearing 31 March 2014 and 3 July 2014 Counsel for the Applicant Mr Matt Black Solicitors for the Applicant KCI Lawyers Counsel for the Respondent Mr Gerard Purcell Solicitors for the Respondent Department of Veterans' Affairs
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