Fisher and Repatriation Commission
[2010] AATA 895
•15 November 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 895
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/0604
VETERANS' APPEALS DIVISION ) Re Gary Fisher Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date15 November 2010
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
D G Jarvis
[Signed]
Deputy President
CATCHWORDS
VETERANS' ENTITLEMENTS – disability pension – rate of pension payable – special rate –applicant not prevented from undertaking remunerative work by cannabis dependence and chronic adjustment disorder alone – applicant ceased remunerative work for reasons other than his incapacity from war-caused conditions – decision under review affirmed.
Veterans’ Entitlements Act1986 (Cth), s 24
Re Banovich and Repatriation Commission (1986) 9 ALN N223
Cavell v Repatriation Commission (1988) 9 AAR 534
Chambers v Repatriation Commission (1995) 55 FCR 9
Doig v Repatriation Commission, Federal Court, 18 December 1996, 1106/1996
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 101 FCR 50
Jackman v Repatriation Commission, Federal Court, 30 June 1997, 521/1996
Repatriation Commission v Braund (1991) 23 ALD 591
Repatriation Commission v Buckingham, Federal Court, 7 February 1996, 37/1996
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Smith (1987) 15 FCR 327
Sheehy v Repatriation Commission (1996) 66 FCR 569
Starcevich v Repatriation Commission (1987) 18 FCR 221
REASONS FOR DECISION
15 November 2010 Deputy President D G Jarvis Introduction
1. The applicant, Gary Fisher, is a Vietnam veteran. He currently has accepted disabilities of cannabis dependence and chronic adjustment disorder. He also suffers from a back condition and a hernia, which are non-war caused disabilities.
2. On 9 June 2005, Mr Fisher lodged a claim with the respondent for pension at the special rate provided for in s 24 of the Veterans’ Entitlements Act 1986 (Cth) (the “VE Act”). A delegate of the Repatriation Commission decided to grant disability pension at 30% of the general rate with effect from 9 March 2005 and increased it to 70% with effect from 27 November 2008. The decision-maker also decided that Mr Fisher is not entitled to either the Special Rate or Intermediate Rate of pension because of his non-accepted conditions and their contribution to his inability to work.
3. This decision was subsequently affirmed on review by the Veterans’ Review Board (“VRB”). Mr Fisher has applied to this Tribunal for review of the Commission’s decision.
4. Mr Fisher’s entitlement to pension at the special rate is to be determined under s 24 of the VE Act. The Commission acknowledges that he satisfies the first criterion under s 24 (namely, a determination of entitlement to a pension at a rate higher than 70 per cent of the general rate), and the second criterion (namely, an incapacity from war-caused conditions of such a nature as to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week). These criteria are contained in ss 24(1)(a)(i) and 24(1)(b) respectively of the VE Act.
Issue for Determination
5. The issue before the Tribunal is whether Mr Fisher satisfies s 24(1)(c) of the VE Act, that is:
·whether he is, by reason of incapacity from his war-caused injuries alone, prevented from continuing to undertake remunerative work that he had been undertaking; and
·whether in consequence he is suffering a loss of wages or earnings on his own account which he would not be suffering if he were free of that incapacity.
It was common ground that Mr Fisher had not sought to engage in remunerative work, and so the ameliorating provisions of s 24(2)(b) are not applicable.
6. I have reached the conclusion that Mr Fisher has not satisfied the requirements of s 24(1)(c) of the VE Act and so is not entitled to a pension at the special rate, for the reasons referred to below.
Background and Evidence
7. Mr Fisher is 57 years of age. He joined the Navy in January 1969, when he was 15, and had operational service between 16 February and 5 March 1970. He was discharged from the Navy in May 1970 at his own request.
8. On his discharge, Mr Fisher worked in Perth as a storeman for about six months for a group of plumbers. His duties included deliveries and filling cars with fuel. He then moved to Geraldton and served an apprenticeship as a painter from 1972 to 1976. He finished his apprenticeship and worked as a painter for about two years. After that he worked as a plant operator at a mineral sands plant. This entailed some physical work, but it mostly involved pushing buttons. He did not experience any back problems during these periods of employment.
9. In about 1980, Mr Fisher moved to South Australia and then did fruit picking and block work near Waikerie from time to time, depending on the seasons. This work involved a variety of tasks, including picking fruit and pruning. Mr Fisher said that it was “pretty casual” work, and there were no set times, and he could choose when he worked. During that period he also worked for himself as a painter and decorator. In cross-examination, Mr Fisher said that although it was easier than block work and earned him a lot more money, he never really liked painting. He said that he didn’t have the drive to work all day, and did not enjoy being at work by himself.
10. Mr Fisher then grew organic strawberries and tomatoes for 12-18 months from about 1990 to 1991 on a property at Springton owned by a friend. He decided to give up this work because they were not getting a premium price for the fruit and it was not really worth doing. He said that in addition he had “had enough”, and “it was all too hard”. He decided to stop work altogether. He then received Centrelink benefits from this time until 1996 when he first applied to the Department of Veterans’ Affairs for a pension.
11. In the meantime there was one last period when he worked. This was a painting and decorating job, which he described as a “love job” for someone he knew. However, he did not finish the job because the man ran out of money.
12. Mr Fisher has smoked cannabis for many years, and he moved to the Riverland area of South Australia from Geralton because he thought that cannabis would be more readily available, and he said that he has grown it “on the odd occasion”. He gave evidence that since he commenced receiving his pension from the Department of Veterans’ Affairs, he has not done any work, and that this was because he has not really felt like working. He feels very lethargic and does not feel like getting up in the mornings. He said that he could not see himself going back to work. He said that even if he got rid of his cannabis addiction he did not think he could now work because it has been “too long”. He said that he could not see himself working, and does not have the inclination to work, but that if he did not have a cannabis addiction, he would “not mind” working.
13. Mr Fisher’s maintained that it was his accepted conditions alone which caused him to cease work. He also stated that he previously told people his back problem prevents him from working because he lives in a small town, and it was more acceptable for him to have “a crook back", rather than “a drug problem”. In describing the extent of his cannabis dependence, he said that he smokes between 15 and 20 joints a day, at a rate of approximately one an hour. He said that smoking cannabis does not have any real effect on him now, but it means that he does not get agitated and does not dream at night; he said it was a calming thing, but it saps his energy. He denied using cannabis to mask pain.
14. Mr Fisher is separated from his second wife, and has custody of his two sons, aged 16 and 13. He said that he stays up late, sitting around and smoking cannabis. He gets up at 7:00 am to make sure that his two sons get ready for school and leave in time to catch the school bus, and then goes back to bed. He owns and drives a car, and does not believe that his cannabis use affects his driving, but is concerned that with the advent of drug testing by the police he soon will not be able to drive.
15. Mr Fisher said that he significantly reduced the amount that he smoked in 2008 because he was getting in trouble with the law. He found that during that period he dreamed more, and these dreams woke him up during the night. He agreed that he had more energy during this period but did not think he was “off” cannabis for long enough to think about starting work.
16. Mr Fisher said that he would be unable to keep a job because of his smoking. When he was working he would smoke a joint on the way to and from work and would also smoke at lunch-time. He also said that he would not be able to work now because many employers conduct drug testing on their workers.
Back condition
17. Mr Fisher injured his back in 1981, when he was picking pumpkins and watermelons. He said that it happened because he worked too long and too hard and that he was “pretty crook for a while”. He was off work for a few months because of the injury.
18. He said that the injury is not a problem and that he does not think his back is any worse than the “average Joe’s”. As examples of physical tasks he is able to undertake, he said that he can chop wood and goes go-karting with his sons on weekends. He now goes to the chiropractor about once every 12 months, although it might be two years between appointments. His last visit to the chiropractor was approximately two weeks before the hearing, because he had a sore neck.
19. He was cross-examined about a Work Test Questionnaire filled out by Dr Munyard on 24 August 2000. Mr Fisher said that at the time he did have some problems with his back, although it was not “too bad” when he saw Dr Munyard. He agreed that in 2000 he suffered the symptoms recorded by Dr Munyard, including sciatica. He said that this condition first started at the time when he hurt his back, but that it has gradually improved since then, and has not troubled him for a long time.
20. He was also cross-examined about a letter he wrote in 2001 where he stated that “[m]ost days I have a sore back that keeps me home”. Mr Fisher said that this was true at that time because he had to pay to have chiropractic treatment and therefore would not go to have it done, but now his treatment is free and he is able to have regular sessions. He also said that he thought that in 1990 or 1991 his back would have posed more of a problem, but that it would not have stopped him working. He said that his back had continually improved since he first injured it. He said that in the end it was not his back or his foot but his cannabis addiction which stopped him from working.
Foot injury
21. Mr Fisher gave evidence that he broke his foot years ago in Geraldton. He said that it took about six weeks to heal and after that periodically caused him trouble. He said that it has not troubled him for years.
22. Mr Fisher agreed that he has a lump on the top of his foot which shoes rub against. He said that 90% of the time he wears thongs but that this is more of a comfort thing because it is easy just to slip them on. He sometimes wears shoes for up to eight hours when he comes down to the city for a day. He said he thought he could keep that up for days or weeks if he had to. He has had lace-up shoes in the past and found them quite comfortable.
23. Mr Fisher agreed that in 2000 he told Dr Munyard that he could only walk a mile without rest because of his foot. He said that he did not think his foot would have troubled him in 2000, but that what he told Dr Munyard would have been true to a degree. He thought his foot might have prevented him from wearing shoes at that time, and agreed that he had problems with his foot from time to time. He said that his foot does not trouble him now.
Hernia
24. Mr Fisher said that he has a hernia in the groin which resulted from eating opium. He said that the hernia does not bother him, since it is just a small lump and never gives him any pain, even when he undertakes heavy lifting. He gave the example of being able to lift a go-kart without experiencing any pain.
Current situation
25. Mr Fisher said that he would not be able to work now because he does not have the energy. He said that any sort of work would be problematic for him now, and that he is “too stoned half the time”. He would not be capable of doing the work and he would not have the energy to want to do it. He disagreed that he had got out of the habit of working, and blamed his inability to work on his cannabis dependence.
26. He also said that he would not pick oranges, for example, because it is “pretty physical work”, and although he probably could probably do this work if his life depended on it, he does not have the inclination or energy to do it. He disagreed that it was merely inclination that was preventing him from working, and said that he would suffer fatigue if he had to work. He added that age is a problem for anyone doing the type of work he had been doing, and that it is mainly young people who do it. He also said that he could not grow tomatoes or strawberries now because the work is “too physical”.
27. Mr Fisher denied that his back posed him any difficulties now. He agreed that if he now did the work that caused the injury in 1981 that his back would become a problem very quickly. He said, however, that he should not have been doing that type of work in the first place and that he had never had any back problems in any of his other types of employment (for example, as a painter and decorator or as a plant operator).
Legislation
28. Sections 24(1)(c) and s 24(2)(a) of the VE Act relevantly provide as follows:
“24(1) This section applies to a veteran if:
…
(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
…
(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; …”
If s 24(1) of the VE Act applies to Mr Fisher, he will be entitled under s 24(4) to a pension at the special rate therein provided.
Consideration
29. In considering the application of s 24(1)(c) of the VE Act, I refer first to the analysis of Branson J, with whom the other members of the Full Court of the Federal Court agreed, in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4.9. Her Honour said that a proper consideration of s 24(1)(c) required responses to the following four 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 account that he would not be suffering if he were free of that incapacity?”
30. A determination of the responses to these questions entails an examination of the facts relevant to each question. Under s 120(4) of the VE Act, the Tribunal must decide these issues to its reasonable satisfaction, a standard which equates with proof on the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327. Neither party has an onus of proof (s 124(6) of the VE Act), and the Tribunal must act according to substantial justice, and the substantial merits of the case, without regard to legal form and technicalities (s 119(1)(g)).
31. The time at which the assessment under s 24(1)(c) is to be made is not the date when the veteran gave up work; the veteran’s entitlement should be considered at the time of application to the primary decision-maker, and an assessment must be made of the rate of pension payable from time to time during the assessment period, being the period between the date when the application was lodged and the date when it is determined: ss 19(5C) and 19(9) of the VE Act; Repatriation Commission v Braund (1991) 23 ALD 591; Jackman v Repatriation Commission, Federal Court, 30 June 1997, 521/1996. As to this issue, in Jackman, Tamberlin J said:
“A presumption of continuance is not appropriate to the determination the AAT has to make under s 24(1)(c). It is well accepted that the relevant date of assessment is the date of application, not retirement: Banovich v Repatriation Commission (1986) 69 ALR 395. The AAT must make its determination as at the time of application, taking into account all considerations relevant to the specific case in question. Where the application date is close to the retirement date the weight to be given to the applicant’s circumstances at the time of retirement will be greater than in cases, such as the present, where there is a lengthy period of time between the dates. In such cases other significant factors such as age and time out of the workforce can become important and relevant considerations: Repatriation Commission v Wilson (1996) 43 ALD 77; Repatriation Commission v Braund (1991) 23 ALD 591. It is not sufficient for the AAT to be satisfied that at the date of retirement the applicant satisfied s 24(1)(c): Braund at 595. This is not the question before the AAT.”
32. As regards the first question in Flentjar, the reference to “remunerative work which the veteran was undertaking” is to be read as a reference to the type of work which the veteran had previously undertaken, and not to any particular job: Re Banovich and Repatriation Commission (1986) 9 ALN N223. Accordingly, the loss of a particular job for reasons unrelated to the war-caused condition is immaterial: Doig v Repatriation Commission, Federal Court, 18 December 1996, 1106/1996. The remunerative work does not have to be the last work undertaken by the veteran (unless the veteran is over 65 at the time of a claim or application): Starcevich v Repatriation Commission (1987) 18 FCR 221 at 225 per Fox J. Finally, the remunerative work must be substantial remunerative work which the veteran has effectively performed: Starcevich (supra) at 225; Sheehy v Repatriation Commission (1996) 66 FCR 569.
33. I find that the remunerative work that Mr Fisher was undertaking was work as a painter and decorator, a plant operator, a market gardener. and labouring work on fruit blocks, including picking fruit and pruning. This type of work includes manual labour, and work that would require him to be on his feet all day.
34. The second question in Flentjar is whether the applicant, by reason of his war-caused conditions, is prevented from continuing to undertake the type of work which I have found is relevant. As mentioned above, the Commission has conceded that s 24(1)(b) is satisfied. This paragraph of s 24(1) requires an examination of the veteran’s capacity to undertake any remunerative work which the veteran is physically and mentally able to carry out; the test is not limited to the type of work previously undertaken or for which the veteran is qualified by training or experience: s 28 of the VE Act; Chambers v Repatriation Commission (1995) 55 FCR 9 at 19, per Moore and Sackville JJ. Further, the test requires an examination of all of the different kinds of work that a hypothetical person with the relevant skills and experience of the veteran might reasonably undertake: s 28(b) of the VE Act; Repatriation Commission v Buckingham, Federal Court, 7 February 1996, 37/1996.
35. The remunerative work referred to in s 24(1)(b) accordingly has a broad meaning, and the Commission’s concession that s 24(1)(b) has been satisfied therefore entails an acknowledgment of the very significant extent to which Mr Fisher’s war-caused conditions have interfered with his capacity to undertake the type of work which he had been previously undertaking. I am satisfied from the evidence before me that by reason of his war-caused conditions, Mr Fisher has, at least since the date of his application for pension, been prevented from continuing to undertake the type of remunerative work which he had previously undertaken.
36. The third question in Flentjar refers to the “alone” test in s 24(1)(c). On the authority of Cavell v Repatriation Commission (1988) 9 AAR 534, and the analysis of Burchett J’s judgment in that case in Forbes v Repatriation Commission (2000) 101 FCR 50 at [33], the word “alone” should not have substituted for it other words in the absence of ambiguity. The word “alone” as it appears in s 24(1)(c) requires a practical decision on whether the veteran’s loss of remunerative work is attributable to his or her service-related incapacities, and not to something else as well; and any factor having employment consequences which plays a part in the veteran’s inability to work or to obtain and hold remunerative employment, is sufficient to displace the veteran’s case for pension at the special rate.
37. In Cavell, Burchett J said further, at [539], that the true task of the Administrative Appeals Tribunal, in applying the “alone” test in s 24(1)(c) of the VE Act, was “to make a practical decision whether the veteran’s loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide”. In Forbes, RD Nicholson J said at [39]: “The question whether the veteran by reason of the war-caused condition ‘alone’ has been prevented from continuing to undertake remunerative work can only be answered by reference to all the circumstances in which the war-caused condition exists”.
38. The correct approach to the “alone” test, and the potential relevance of other factors which might prevent a veteran from continuing to undertake the relevant remunerative work, was further explained in Repatriation Commission v Hendy (2002) 76 ALD 47 at [36] - [37] as follows:
“[36]The tribunal’s task was to assess what the veteran probably would have done, if he had none of the service disabilities during the assessment period. The requirement to consider ‘remunerative work that the veteran was undertaking’ does not mean a particular job with a particular employer but the substantive remunerative work that the Veteran had undertaken in the past. That is the exercise that the tribunal undertook. The tribunal was not bound to limit its consideration to the last employment that the veteran actually undertook.
[37]The consideration of what the veteran probably would have done, absent the service disabilities, is a hypothetical exercise. The language of s24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the Veteran from working. The decision-maker is required to take into account any factor that plays a part or contributes to a veteran being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period. … (H)aving considered any or all of the factors which may have contributed to a veteran’s incapacity, the tribunal is then required to determine whether it is the veteran’s war-caused injury or war-caused disease, or both, alone which prevent the veteran from continuing to undertake remunerative work.”
39. The evidence before the Tribunal indicates that in the past Mr Fisher’s non-accepted conditions, especially his back condition, were symptomatic and contributed to his inability to undertake remunerative work. For example, in a letter written to the Veterans’ Review Board in 2001, he wrote:
“I have not worked for nearly 10 years now and receive a pension from centrelink (sic). Most day I have a sore back that keeps me home (sic). I am always tired and suffer from headaches that can last for days at a time.” (exhibit R1, T13 at page 60)
40. In August 2000, Dr A Munyard assessed Mr Fisher and reported that he experienced back symptoms when standing if he had to stand for a long time and mild pain in the joints of the cervical spine that was often present at rest. He also reported that Mr Fisher had some back symptoms when lying down, and that the distance Mr Fisher could walk without needing to rest was one mile, although this varied, and that his foot worried him (exhibit R1, T11, page 46).
41. I accept that Mr Fisher’s level of motivation to work is an issue, and that he is prevented from undertaking remunerative work as a result of his accepted conditions. I also accept Mr Fisher’s submissions that, while he might previously have had “trouble” with his back and foot at different times, in the past he has embellished how much pain they gave him. However, I am not satisfied that his accepted conditions alone prevent him from undertaking the remunerative work that he was undertaking. I referred above to Mr Fisher’s evidence as to his current situation. I find that during the assessment period, which commenced on 9 June 2005 (the date of his claim for Disability Pension), his age, his back condition, and the fact that he has been out of the workforce for many years have contributed to his inability to undertake remunerative work. Mr Fisher’s accepted conditions are therefore not the sole reason for him being prevented from undertaking remunerative work; there is a contribution made by other factors, and that contribution is not de minimis.
42. In view of this conclusion, it is not necessary for me to consider whether he has suffered a loss of wages or earnings. However, I consider that he also does not satisfy the further requirement of s 24(1)(c) that he has suffered a loss of wages or earnings on his own account by reason of his war-caused conditions alone. Under s 24(2)(a)(i), a veteran is taken not to have suffered a loss of wages or earnings if he or she has ceased to engage in remunerative work for reasons other than incapacity from a war-caused condition. I find that Mr Fisher’s reason for ceasing work in 1991 was his physical condition, and also his dissatisfaction with the return he was receiving from growing organic strawberries and tomatoes. If his last work, being his “love job” could be regarded as remunerative work (which I find unnecessary to decide), he gave this work up because his friend ran out of money. I accordingly find that Mr Fisher also does not satisfy the loss test in s 24(1)(c), being the second requirement of s 24(1)(c).
Degree of Incapacity
43. The material before me includes a medical report from Dr Paul Davis dated 27 November 2008 (exhibit R1, T24, page 30). This produced a medical impairment rating of 38 points, which is rounded to 40 points pursuant to the Guide to the Assessment of Rates of Veterans’ Pensions (5th Ed.) (the Guide) prepared pursuant to s 29(1) of the VE Act.
44. Mr Fisher elected to have an average lifestyle allocated under the Guide based on the level of his medical impairment. This is converted to a degree of incapacity of 70% under Table 23.1 of the Guide.
45. During the hearing I also explored whether this resulting degree of incapacity is consistent with the evidence before me (bearing in mind, however, that Mr Fisher has never completed a Lifestyle Rating Self Assessment Form).
46. In relation to personal relationships (Table 22.1 of the Guide), Mr Fisher described difficulties with social interaction. He said that he prefers to conduct meetings by telephone rather than in person, although such meetings are usually worse in anticipation than reality. He does weekly grocery shopping in town and he is able to interact with shop assistants. Although he does not seek people out to socialise and does not have many close friends, he is able to talk to the man who repairs his go-karts. This description demonstrates an ability to relate to casual acquaintances, and I find that Mr Fisher’s impairment rating should be assessed at 2.
47. In relation to mobility, Mr Fisher said he is periodically affected if tired or feeling lethargic, but that he does not usually have a problem. However, his mobility is restricted, because he is not legally able to drive a car (due to his cannabis use) for a majority of the time. I would therefore assess his impairment rating under Table 22.2 of the Guide at 3.
48. In relation to recreational and community activities, Mr Fisher said that his only recreational activities is go-karting with his sons. I think that the appropriate impairment rating under Table 22.3 of the Guide would be 1 or 2. In relation to domestic activities, Mr Fisher said that his ability to undertake tasks varies from day to day, but on his evidence a rating of 3 under Table 22.4 is appropriate. In relation to employment activities it is reasonable to assess his impairment rating at 5 under respect of Table 22.5.
49. The above ratings result in a lifestyle assessment of 3. This assessment, combined with an impairment rating of 40, results in a degree of incapacity of 70%. I therefore find that the Repatriation Commission’s assessment is appropriate at the present time, on the state of the evidence before me.
Summary and Conclusion
50. For the above reasons I find in summary that factors other than Mr Fisher’s accepted conditions contribute to his inability to work to a degree that is not de minimis, and that Mr Fisher does not satisfy the loss test by virtue of s 24(2)(a)(i). I further find that the Repatriation Commission’s assessment of 70% impairment is appropriate.
Decision
51. The Tribunal affirms the decision under review.
I certify that the 51 preceding paragraphs are a true
copy of the reasons for the decision herein
of Deputy President D G Jarvis….. [ Signed] …..
AssociateDate/s of Hearing 16 September 2010
Date of Decision 15 November 2010
Applicant In person
Advocate for the Respondent Mr A Crowe
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