DUNSTALL and REPATRIATION COMMISSION
[2010] AATA 806
•20 October 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 806
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/1412
VETERANS' APPEALS DIVISION ) Re PETER DUNSTALL Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr R G Kenny, Senior Member Date20 October 2010
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
...............[Sgd]...............................
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ entitlements – Veteran in receipt of 100% general rate pension – Veteran not able to undertake remunerative work for more than 8 hours per week because of war-caused conditions – Veteran not prevented from undertaking remunerative work that he was undertaking because of war-caused conditions alone – Special rate of pension not payable - Intermediate rate of pension not payable - Decision under review affirmed.
Safety, Compensation and Rehabilitation Act 1988 (Cth)
Veterans’ Entitlements Act 1986 (Cth) ss 5Q, 14, 19, 22, 23, 24, 119, 120
Birtles v Repatriation Commission (1991) 105 ALR 359
Flentjar v Repatriation Commission (1997) 26 AAR 93, (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 101 FCR 50
Jebb v Repatriation Commission (1988) 80 ALR 329
Leane v Repatriation Commission (2004) 81 ALD 625
Magill v Repatriation Commission [2002] FCA 744
Peacock v Repatriation Commission [2004] FCA 1449
Repatriation Commission v Boyle (1997) 47 ALD 637
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Van Heteren (2003) 75 ALD 703
Van Ewijk v Repatriation Commission [2004] FCA 17REASONS FOR DECISION
20 October 2010 Mr R G Kenny, Senior Member BACKGROUND
1. On 23 April 2009, Peter Dunstall lodged a claim, under s 14 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) for a pension. On 21 September 2009, a delegate of the respondent determined that Mr Dunstall suffered from post traumatic stress disorder, lumbar spondylosis and osteoarthritis of the knees and that these were war-caused, in accordance with s 120 of the Act. The delegate increased the rate of disability pension, under s 22 of the Act, to 100% of the general rate with effect from 23 January 2009. On 22 March 2010, the Veterans’ Review Board (“the Board”) affirmed that decision. In so determining, the delegate and the Board were satisfied that Mr Dunstall did not qualify for the intermediate or the special rate of pension under s 23 or s 24 of the Act, respectively.
ISSUES AND LEGISLATION
2. Assessment matters in issue are determined to the Tribunal’s reasonable satisfaction in accordance with substantial justice and the substantial merits of the case[1]. In that process, neither party bears an onus of proof[2]. The procedure, set out in s 19 of the Act, requires the rate of pension to be assessed from time to time during the assessment period[3] which is defined as starting on the application day and ending when the claim or application is determined[4]. It is not disputed that the application day in this case was 23 April 2009 or that the assessment period runs from that day until the matter is determined.
[1] See s 120(4) and s 119(1) of the Act, respectively.
[2] See s 120(6) of the Act.
[3] See s 19(5C) of the Act.
[4] See s 19(9) of the Act.
3. No challenge is made by Mr Dunstall to the general rate of pension paid to him at 100%. The issue raised is whether he meets the criteria for payment of the special rate of pension under s 24 of the Act. It is not in dispute that Mr Dunstall was under 65 years of age at the time of his claim or that he is in receipt of pension at a rate greater than 70% of the general rate. Therefore, he meets the preliminary requirements of s 24(1)(aa), (aab) and (a)(i) of the Act for the special rate. Further, it was conceded by Bruce Williams, for the respondent, that the incapacity component in s 24(1)(b) of the Act has been met at all material times. This is that, at the start of and during the assessment period, Mr Dunstall was totally and permanently incapacitated in that his incapacity from his accepted disabilities was, of itself alone, of such a nature as to render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week.
4. The remaining component of the provision is s 24(1)(c) of the Act. This comprises two limbs which require that Mr Dunstall:
is, by reason of incapacity from his accepted disabilities alone, prevented from continuing to undertake remunerative work that he was undertaking (first limb);
is, by reason thereof, suffering a loss of salary or wages, or of earnings on his own account, that he would not be suffering if he were free of that incapacity (second limb).
5. The first limb is qualified by the terms of s 24(2)(b) of the Act which reads[5]:
(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.
[5] Magill v Repatriation Commission [2002] FCA 744 at [11] and Forbes v Repatriation Commission (2000) 101 FCR 50 at [15].
6. The second limb is qualified by s 24(2)(a) of the Act which reads[6]:
(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;
[6] Ibid.
7. The issue for determination is whether Mr Dunstall’s circumstances meet the requirements in s 24(1)(c) of the Act.
EVIDENCE
8. Mr Dunstall commenced working for the Post Master General’s Department (“PMG”) at age 15 and continued until he was conscripted into the army from February 1966 to February 1968. He then returned to work with the PMG and remained employed there with Telecom. Initially, he worked as a linesman with responsibility for installing and maintaining telephone connections. From 1970, he was based in rural Queensland. From 1973, he was responsible for making assessments of costings for the installation of cables and towers and was based in Maryborough. He was away from home for several days each week as he was required to travel to Brisbane and then to areas in the west of the State, usually travelling by car for long distances while visiting rural properties. In Brisbane, he would usually stay, for a night or two, in a hotel close to Telecom’s city offices. He experienced problems with his back condition and his knees in undertaking the amount of driving he had to do. He also felt uncomfortable in his consultations with property owners about the installation of tele-communication equipment on their land. Mr Dunstall said that he had seen his general practitioner in Maryborough, Dr Costigan, at that time and was told that he may be suffering from depression and he took time off work at Dr Costigan’s suggestion.
9. In 1988, he was offered a position which would have required him to live in Brisbane. He had always lived in close proximity to his work in country towns and the prospect of living in Brisbane was unacceptable to him. Housing was considerably more expensive there and he would need to take premises well out of the city. He said that he could not cope with commuting on public transport or facing crowds of people. Mr Dunstall discussed his employment options with his wife and they agreed that he should accept a redundancy offer from Telecom. Their two children were, by then, independent and they had always aspired to driving around Australia, gaining employment when and where they could. In 1988, at age 43, he accepted the redundancy package.
10. In the result, Mr Dunstall and his wife travelled to fruit growing areas of Australia and engaged in seasonal fruit picking. Initially, this was for up to 10 months each year. In 2000, Mr Dunstall had skin cancers removed from his back. The resultant scarring imposed limits on his ability to engage in forms of fruit picking which required him to carry a collection bag over his shoulders. However, from then on, he and his wife picked apples and oranges in the Stanthorpe and Gayndah areas, respectively, using mechanised “cherry pickers” which alleviated the need for ladders and self-carried collection bags. By 2005, Mr Dunstall was finding that his back and leg problems were limiting his capacity to deal with the foot pedal controls by which the machine was operated. Over the years, Mr Dunstall became proficient in other farm duties and was able to engage in activities such as thinning, unloading tractors, using a fork-lift, irrigation work and weed spraying. In 2005, when he turned 60, he applied for and was granted the service pension on the basis of his age. It was not his intention to cease work at that stage and he and his wife continued to engage in fruit picking for short periods of 5 to 6 weeks.
11. The only remunerative work that Mr Dunstall engaged in since 1988, apart from fruit picking, was a mail delivery run in the Maryborough area. He did this to assist a family friend to finish the last 5 to 6 weeks of his delivery contract. He was paid on an hourly basis and received a total of $1,422. Mr Dunstall described the mail run as involving the collection and delivery of relatively light items. Nevertheless, he felt pain in his back and legs and said that, for that reason, he could not have continued the work after the contract period was finished.
12. Mr Dunstall obtained income support from Centrelink at times from 1993 until 2005 but he said that the agency to which he was allocated, Mission Australia, had not been able to assist him in finding work. He was advised that there was no tele-communications work available in the Maryborough area. All of his fruit picking arrangements were made through private contact by him and his wife with growers or by word of mouth referrals.
13. Mr Dunstall said that he had suffered from carpal tunnel syndrome in 2007 but he described this as a minor problem. In 2006 and 2008, he also suffered from heel spurs which caused him difficulty in placing weight on his feet in the mornings. His general practitioner, Dr Michael Monsour, gave him a cortisone injection and he began to wear inserts in his shoes.
Board proceedings
14. In evidence was the transcript of the proceedings at the Board which both Mr Dunstall and his wife attended. Therein, they agreed that they had stayed for only 6 weeks picking apples at the Stanthorpe Apple Shed in 2006 and that, between them, they were paid $2,400. Mr Dunstall was asked why he only stayed for 6 weeks. His response was that he “had all sorts of problems that year” and referred to his back and his legs. Mrs Dunstall nominated Mr Dunstall’s feet as also causing him problems at that time. Mr Dunstall added that “heel spurs would cause [him] all sorts of problems” and identified the difficulty as standing and walking with them. Mr Dunstall was then asked: “So there was more work there but you both stopped?” To that question, Mr Dunstall replied that “... rather than working, you know, all the time we sort of decided yes, that was it”. He was then asked[7]: “So your legs, your back, your feet, anything else?” To that, Mr Dunstall referred to trouble with his elbows and hands over the years.
[7] The transcript ascribed this question to Mr Dunstall but it was accepted that the question came from a Board member.
15. In his evidence to the Tribunal, Mr Dunstall denied that, in that exchange at the Board hearing, he was referring to problems with his feet during 2006. He said that the reference to his foot problems was related to how they affected him at the time of the Board hearing and not in 2006. He said the reason for ceasing the fruit picking at that time was related to his knees and back problems. He said the heel pain was present only while the spurs were actively growing and that, since then, they have given him no problems.
Donna Dunstall
16. Mrs Dunstall’s evidence was that she began to notice increasing signs of withdrawal in Mr Dunstan in the years shortly after their marriage in 1969. This was reflected in his unwillingness to engage with others in social situations and also tension between them which caused her and her children to move out of their home for short periods. She believed that these were early signs of post traumatic stress disorder. Mrs Dunstall referred to discussions about Mr Dunstall’s move to Brisbane in 1988 and confirmed that he would not have been able to cope with crowded places and commuting to and from work by public transport. She said that they had shared an interest in travelling and working around Australia and had achieved this by engaging in fruit picking on a seasonal basis. She said that there had always been an intention by Mr Dunstall to continue working after he left Telecom and even after he was granted the service pension in 2005. Options that they discussed included driving a school bus, which they did not pursue, or obtaining a mail delivery run, which they did not consider after Mr Dunstall had problems with his back and knees when he assisted with a family friend’s mail run for a few weeks.
17. Mrs Dunstall agreed that, unlike herself, Mr Dunstan was naturally withdrawn. She said that the reason for their cessation of fruit picking was the effect on Mr Dunstall of his BCC scarring, which prevented him from working in the absence of a cherry picker, and his back and knee pain, which prevented him from utilising the foot controls on the cherry picker. She said that, by 2006 and 2007, she was responsible for the major component of their joint fruit-picking efforts. In relation to heel pain, Mrs Dunstall said that this did not impact on his fruit picking and only became a problem for him after the picking season in 2006 had been completed. She said the problem settled and re-emerged in 2008 as a serious problem for which he was treated with cortisone injections and the use of inserts in his shoes. She described the questioning by the members of the Board, in relation to the reasons for ceasing work in 2006, as confusing and that the reference to his feet by Mr Dunstall was to the period after picking was finished.
Dr Monsour
18. In evidence were Dr Monsour’s clinical notes from December 1997 until May 2010. He described these as the full set of notes relating to Mr Dunstall’s consultations at his practice in that period. The notes include reference to painful heels on 14 August 2006, and x-rays of bilateral plantar spurs on 25 August 2006. Tenderness and heel pain are again noted on 25 January 2008 and 5 February 2008. References to Mr Dunstall’s knees appear on 1 July 2003, 9 September 2003, 7 November 2003, 8 and 15 April 2009 and 10 December 2009. Early depression is described on 26 February 2007. Dr Monsour completed a medical certificate, dated 5 June 2000, which referred to the removal of skin cancers from Mr Dunstall’s back and to his inability to work as a fruit picker thereafter because of the irritation caused to the area by carrying a collection bag.
Other evidence
19. In evidence were copies of Mr Dunstall’s taxation notices of assessment for the years ending June 2000 until June 2005. They give his taxable income as $18,505 (to 30 June 2000), $18,267 (to 30 June 2001), $20,715 (to 30 June 2002), $23,840 (to 30 June 2003), $18,952 (to 30 June 2004) and $22,889 (to 30 June 2005). There was no such notice for 2006 or 2007. Mr Dunstall completed a summary of his earnings which referred to the above amounts and also to his 2005-06 earnings as comprising $1,422 from the mail run and fruit picking, and his 2006‑07 earnings as comprising $2,302[8] from fruit picking.
[8] An amount of $4,605 was given and explained by Mr Dunstall as the combined income of himself and his wife.
20. In evidence was a Separation Certificate, dated 1 June 2005 from G and Z Mattiazi Pty Ltd which employed Mr Dunstall on its apple orchard from 7 February 2001 until 24 May 2005. It described the work as terminating because of shortage of work and Mr Dunstall’s evidence to the Board was that this was because the picking season was completed.
21. A Departmental medical officer, Dr Barbara Fitzgibbon, completed a report on 6 July 2009. She described no incapacity in relation to Mr Dunstall’s feet at that time.
SUBMISSIONS
22. Anthony Harding, for the applicant, submitted that there was no evidence of any non-accepted disabilities affecting Mr Dunstall’s capacity to work and that it was the effect of his accepted disabilities alone which increasingly impacted upon his capacity to engage in remunerative work. Mr Harding submitted that the requirements of s 24(1)(c) of the Act were met by Mr Dunstall and that the special rate of pension was payable to him from 23 January 2009. For the respondent, Bruce Williams submitted that Mr Dunstall did not meet the requirements of s 24(1)(c) of the Act as there were factors, apart from his accepted disabilities, which caused him to discontinue his remunerative work. He submitted that these included his age and the length of time he had been out of remunerative work when the assessment period commenced as well as his foot problems and lack of any employment options, of a kind which reflected his employment with Telecom, in the area in which he lived. He also submitted that there had been no attempts by Mr Dunstall to re-engage in remunerative work after his dismissal from the Department and that the ameliorating terms of s 24(2)(b) of the Act were not applicable to him[9].
[9] See Repatriation Commission v Hendy (2002) 76 ALD 47 at 54-55; Repatriation Commission v Boyle (1997) 47 ALD 637 and Van Ewijk v Repatriation Commission [2004] FCA 17.
CONSIDERATION
23. As noted above, Mr Williams conceded that Mr Dunstall meets the requirements of s 24(1)(aa), (aab) and (a)(i) of the Act. The material before me is that a claim under s 14 of the Act has been made; that Mr Dunstall, born in 1945, was aged under 65 at the start of the assessment period; and that his degree of incapacity is in excess of 70%. Mr Williams’ concession that s 24(1)(b) is met as at the start of and during the assessment period is supported by the reports, dated 14 June 2009 and 9 February 2010, from psychiatrist Dr Scott Jenkins. I am satisfied that Mr William’s concessions have been properly made.
24. The Federal Court in Flentjar v Repatriation Commission[10] said that a proper application of s 24(1)(c) of the Act requires consideration of the following questions:
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?
[10](1997) 26 AAR 93.
Step 1:
25. The term remunerative work is defined in the Act to include any remunerative activity[11] and has been interpreted broadly[12]. It is not disputed and I am satisfied that the remunerative work that Mr Dunstall was undertaking, relevant to his application, were as a linesman, cost estimator, farm worker and fruit picker. Mr Harding submitted that work as a mail contractor should also be included. However, Mr Williams submitted that this was insubstantial work undertaken merely as a favour for a family friend and should not be considered as remunerative work.
[11] See s 5Q of the Act.
[12] Birtles v Repatriation Commission (1991) 105 ALR 359 at
26. While Mr Dunstall was engaged in delivering mail for only a few weeks, such work carries with it a reasonable degree of responsibility and he received remuneration for his time, albeit for only an hour or so per day for several weeks. I am satisfied that this work does constitute remunerative work for the purposes of s 24(1)(c) of the Act but should be described as a mail deliverer rather than a mail contractor as, on the evidence, all arrangements in relation to the contract were entered into by the family friend to whom Mr Dunstall was providing short term assistance at the end of the contract period.
Step 2:
27. I am satisfied that, throughout the assessment period, Mr Dunstall’s accepted disabilities have been sufficient to prevent him from continuing to undertake the relevant remunerative work. Accordingly, the second of the Flentjar questions is answered “yes”. This was conceded by Mr Williams.
Step 3:
28. The third of the Flentjar questions in Mr Dunstall’s situation is whether accepted disabilities were the only factors preventing him from continuing to undertake work as at the start of and during the assessment period[13].
[13] Jebb v Repatriation Commission (1988) 80 ALR 329 at [23].
29. Mr Dunstall’s work in functions associated with his former Telecom role as a linesman and a cost estimator ceased in 1988. Since then, he has not been involved in any such work and he was advised by the Centrelink agency that no such work was available to him in the Maryborough area. I am satisfied that the length of time away from that kind of work and its unavailability contributed to Mr Dunstall not continuing in that form of work.
30. Work in mail delivery would require that Mr Dunstall secure a contract to undertake such work or obtain employment from someone who did. Mrs Dunstall described this as something that she and Mr Dunstall had discussed but there is no evidence that this was attempted or, if it were, that Mr Dunstall’s accepted disabilities were responsible in any way for his being unsuccessful. Similarly, there is no evidence of any such delivery work being available to Mr Dunstall.
31. It will be seen below that I have found that Mr Dunstall ceased fruit picking for reasons not solely attributed to his accepted disabilities. In particular, this was because of the effects, at that time, of a foot condition. This condition may have since resolved. Indeed, Dr Fitzgibbon was able to declare no incapacity at the time of her report in July 2009. Nevertheless, the evidence before me is that, at the start of the assessment period, Mr Dunstall was aged 63 years and had not worked as a fruit picker for some three years. He was in receipt of the service pension at that time. These factors would impact negatively on his engaging in the fruit picking work that he was previously undertaking.
32. I am satisfied that Mr Dunstall’s accepted disabilities were not the only factor or factors preventing him from continuing to undertake the relevant types of remunerative work at the start of or during the assessment period.
33. While that points to a negative response for step 3, as identified above, consideration must be given to s 24(2)(b) of the Act. This may ameliorate the operation of s 24(1)(c) of the Act if, during the assessment period, Mr Dunstall was genuinely seeking to engage in remunerative work but was unsuccessful substantially because of his accepted disabilities. It also applies where accepted disabilities have prevented him from genuinely seeking to engage in remunerative work[14]. There is no evidence that Mr Dunstall made any attempts to become engaged in remunerative work in the sense that he was “looking out”[15] for work to be engaged in at any time after he finished fruit picking in 2006. This means that he was not genuinely seeking to engage in remunerative work after that time and, accordingly, not in the assessment period. The third of the Flentjar questions is answered in the negative. Even if that question was answered positively, it will be seen that the Mr Dunstall’s claim fails under the fourth of those questions.
[14] See Magill v Repatriation Commission [2002] FCA 744 at [11].
[15] Leane v Repatriation Commission (2004) 81 ALD 625 at [29].
Step 4:
34. Mr Harding contended that Mr Dunstall suffered a loss of wages after he ceased work in 2006. While I accept that to be the case, I am satisfied that, on the basis of Mr Dunstall’s taxation records, he suffered no such loss following his cessation using the collection bags in picking fruit. As to the period after 2006, consideration must be given to s 24(2)(a) of the Act. This provides that 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 own account, by reason of that incapacity if he has ceased to engage in remunerative work for reasons other than his incapacity from that war‑caused injury or war‑caused disease[16].
[16] Repatriation Commission v Van Heteren (2003) 75 ALD 703 at [25].
35. In relation to Mr Dunstall’s work with Telecom, he had the option in 1988 of taking a redundancy package or a transfer to Brisbane. There is no medical evidence that his decision to accept the redundancy package at that stage was related to his now accepted disabilities. His evidence was that he took the redundancy package because he did not wish to live in Brisbane due to the difficulties he would face in using public transport to commute on a daily basis between the city and an outer suburb where he was likely to reside.
36. There is conflicting material concerning the cessation of Mr Dunstall’s engagement as a farm worker and fruit picker. He advised the Board that it was in 2006[17]. In his Statement of Facts and Contentions, 2007 is nominated. At the hearing, Mr Dunstall was questioned at some length about cessation in 2006 and his health circumstances at that time. As noted above, he completed a summary of his earnings which referred to his 2006-07 earnings as comprising $2,302[18] from fruit picking. I am satisfied that he last worked as a fruit picker for several weeks in 2006 which may well have been in the 2006/2007 financial year.
[17] See T documents at H, I and folio 72; Board transcript at 23 and 27.
[18] An amount of $4,605 was given and explained by Mr Dunstall as the combined income of himself and his wife.
37. Mr Dunstall’s evidence at the hearing was that he ceased picking cherries because of the scar tissue on his back which was related to the accepted disability of basal cell carcinoma and that he ceased picking apples and oranges because of the accepted disabilities relating to his back and his knees. There was some dispute about whether he advised the Board that the cessation was also due to problems with his feet. I do not accept the evidence of Mrs Dunstall that the questioning by Board members was confusing. Nor do I accept the evidence of Mr Dunstall that the Board’s questions admitted of responses to how his feet affected him at the time of the Board hearing in 2009. I am satisfied that the questions asked by the Board members were unambiguous and related directly to the reasons for Mr Dunstall ceasing fruit picking in 2006. To those questions, both Mr and Mrs Dunstall specifically implicated Mr Dunstall’s feet as a reason for his being unable to continue because it interfered with his ability to operate foot controls on the cherry-picker. That he was having problems with his feet in 2006 is confirmed by the references in Dr Monsour’s clinical notes to painful heels on 14 August 2006, and x-rays of bilateral plantar spurs on 25 August 2006. Dr Monsour again noted the problem in 2008. Dr Fitzgibbon was able to declare no incapacity at the time of her report in July 2009 but, regardless of the position in 2009, I am satisfied that this was a factor contributing to his decision to cease fruit picking in 2006.
38. There were also some differences in references to the timing of Mr Dunstall’s involvement in the mail run. One reference is to 2005/2006[19]; another is 2005/2006 as well as 2006/2007[20]. At the hearing, 2005 was given as the year of Mr Dunstall’s involvement and I am satisfied that it was at that time. The mail run was undertaken by Mr Dunstall to assist a friend to complete a delivery contract. Mr Dunstall described difficulties with his back and knees while carrying out that work. However, I am satisfied that he completed the friend’s contractual obligation and that the work was completed at the end of that time. This was unrelated to accepted disabilities.
[19] See T documents at 72.
[20] Mr Dunstall’s statement p 4 (Exhibit 7).
39. On the material before me, I am satisfied that that Mr Dunstall ceased to engage in remunerative work for reasons other than his incapacity from his accepted disabilities and that, as a result, he is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity. This means that the fourth of the Flentjar questions is answered in the negative.
DECISION
40. For the reasons given, s 24(1)(c) of the Act is not met and the special rate of pension is not payable to Mr Dunstall. The intermediate rate of pension is provided for in s 23 of the Act. The terms of s 23(1)(c) of the Act are identical to those of s 24(1)(c) thereof. For the reasons given above, s 23(1)(c) of the Act is not met and the intermediate rate of pension is not payable to the applicant.
41. The decision under review is affirmed.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member
Signed: .....................[Sgd]........................................................
Kate Slack, Research AssociateDate/s of Hearing 8 October 2010
Date of Decision 20 October 2010
Counsel for the Applicant Mr Anthony Harding
Solicitor for the Applicant Mr Terence O'Connor
Solicitor for the Respondent Mr Bruce Williams, departmental advocate
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