Godfrey and Repatriation Commission
[2006] AATA 442
•23 May 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 442
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1133
VETERANS’ AFFAIRS DIVISION ) Re JAMES GODFREY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Professor Ivan Shearer, Senior Member,
Dr John Campbell, MemberDate23 May 2006
PlaceSydney
Decision The Tribunal affirms the decision under review in so far that:
(a) there is no confirmed diagnosis of left knee injury;
(b) there is no basis in the material before it that would indicate that the Applicant’s spondylolisthesis is defence-caused;
But the Tribunal sets aside the decision under review to reject the Applicant’s claim for pension at the special rate and in substitution thereof decides that the Applicant is to receive a disability pension at the Special rate with effect from 5 August 2003.
[Sgd] Professor Ivan Shearer, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – disability pension – special rate of pension - remunerative work - whether war-caused injury alone prevented veteran from continuing to undertake work - loss of salary, wages or earnings – decision set aside
Veterans’ Entitlements Act 1986 section 24
Leane v. Repatriation Commission [2004] FCAFC 83
Flentjar v. Repatriation Commission (1997) 48 ALD 1
Forbes v. Repatriation Commission [2000] FCA 328
Magill v. Repatriation Commission [2002] FCA 744
REASONS FOR DECISION
23 May 2006 DECISION UNDER REVIEW
1. On 5 August 2003 the Applicant lodged a claim with the Repatriation Commission for a disability pension at the special rate based on an injury to his left knee, spondylolisthesis, and an adjustment disorder with mixed anxiety and depressed mood. On 23 November 2003 a delegate of the Repatriation Commission accepted the claim in respect of the adjustment disorder, increasing his general rate of pension to 100%, but rejected the claims in respect of the left knee and spondylolisthesis.
2. While an application to the Veterans’ Review Board (“VRB”) for review of this decision was pending, the Applicant lodged a further claim with the Repatriation Commission for a disability pension in respect of sensorineural hearing loss and chondromalacia patellae of the right knee. On 30 April 2004 a delegate of the Commission accepted that both these conditions existed and were defence-caused. The Applicant’s general rate of pension was continued at 100%.
3. On 2 August 2004 the VRB affirmed each of the decisions of the delegate. The Applicant has applied to this Tribunal for review of both the VRB’s decisions.
ISSUES
4. This application for review concerns whether Mr James Godfrey (“the Applicant”) is entitled to the special rate of disability pension, as provided in section 24 of the Veterans’ Entitlements Act 1986 (“the Act”).
5. In order for the Applicant to be entitled to a pension at the special rate, he must meet all the requirements of section 24(1) of the Act, viz.
“(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
(d) section 25 does not apply to the veteran.”
APPLICANT’S EVIDENCE
6. The Applicant, Mr. James Thomas Godfrey, was born on 8 January 1962. He enlisted in the Royal Australian Navy on 9 January 1984 and was trained as a clearance diver serving as such in the rank of Able Seaman Clearance Diver (ABCD). He has sea-going service in HMA ships but did not serve in operational areas for the purposes of the Act. In the course of his service as a clearance diver he also gained a commercial diver’s certificate.
7. The Applicant injured his right knee in a service rugby game in December 1989. Following the injury, he underwent a number of surgical procedures to remedy the condition, but these were not successful. As a consequence, he was discharged on 30 July 1993 as medically unfit for naval service (MUNS).
8. For the first two years after discharge the Applicant lived in Cairns. He found the warm climate better suited his continuing knee pain. He consulted a pain specialist who gave him injections for temporary relief and tablets.
9. During his time in Cairns he was living on his savings while considering the type of work in which he could engage. Because of his knee condition he could no longer work as a diver. Nor did he feel able to undertake the kind of labouring work he had performed prior to enlistment in the Navy, again because of his knee condition.
10. Following a conviction in Cairns for selling marijuana in 1995 the Applicant moved to Bathurst in New South Wales where he had earlier bought a flat for his mother. It was there that he was first referred to an occupational therapist through the Military Compensation Rehabilitation Service (MCRS). No further action appeared to result from this referral.
11. The Applicant and his wife were divorced in 1995. He has not remarried.
12. Following his divorce, the Applicant said that he fell into despondency at the prospect of ever getting a job. “I didn’t look for jobs like those I’d done before, or other labouring work, because who the hell would employ me? I can’t go back to diving (doctors say so), and I can’t go and be a brickie’s labourer or a shelf packer, because my knee would only last a couple of days before it became too sore. I became so despondent and upset that I never even tried to get any light manual or sedentary work. I just didn’t care – I had lost all my dreams, lost my wife, and all hope. If they’d [the Navy] tried to help me retrain in 1993, this may not have happened.”
13. After living in Bathurst for a year the Applicant moved in with his sister in Sydney, then to Maclean for two years, and then to various places on the Central Coast of New South Wales.
14. The Applicant said that for the past 11 or 12 years “I usually sit in my room all day, locked away from others, to avoid frustration and interaction, and feeling sick and tired of having to explain to people what I have been through. This is still my habit. I am afraid of getting upset with – or into arguments with – other people.”
15. In about 2002 the Applicant resumed use of marijuana in order to calm himself. He states that his usage “is not constant. …Those periods [of use] would last for days, or at most, months.”
16. The Applicant began to suffer from a back condition, spondylolisthesis, from some time in 2000. He also complained of pain in his left knee.
MEDICAL EVIDENCE
17. The medical evidence available to the Tribunal was tendered in written form. No medical witnesses gave oral evidence.
18. On 27 February 2002, Dr B.K. Iyer, Consultant Psychiatrist, reported that since the Applicant’s right knee injury and discharge from the Navy, his mental state has deteriorated. He reported that the Applicant is irritable, anxious and unable to tolerate any stressful situation and that he experiences crying spells. Dr Iyer stated that the Applicant was asked to repay an amount of $34,000 overpaid to him as compensation which has further aggravated his mental condition as he was forced to sell his house in Gosford to repay this amount. Since then he has been experiencing financial hardship which has further affected his mental state.
19. Dr Iyer noted that the Applicant’s general medical practitioner had prescribed 40mg daily of the anti-depressant medication Cipramil. Dr Iyer also noted that the Applicant had been diagnosed with diabetes mellitus in 2000 and was taking oral medication for that condition.
20. Dr Iyer noted that the Applicant’s right knee condition was accompanied by pain in the lumbar spine region. He concluded that his mental disability, secondary to his physical injury to the right knee, has a significant impact on his level of functioning.
21. Dr Iyer’s psychiatric diagnosis was: Adjustment disorder with mixed anxiety and depressed mood (DSM-IV 309.28.).
22. Dr Isbister reported, on 15 January 2003, that:
“In my opinion Mr Godfrey has suffered injury to his right knee whilst playing football in the service of the Navy. He appears to have suffered a diagnosis of prepatellar bursitis and chondromalacia of the patellofemoral joint with possible patellar tendonitis as recorded in his previous history. He is also suffering from chronic back pain which appears to be non-specific, although I am awaiting X-ray results. He is suffering chronic pain in his left knee although there is no specific evidence of arthritis.
“In my opinion the latter two conditions are not related to his service in the Navy and are not related to his right knee condition.”
23. Addressing Mr Godfrey’s ability to work, Dr Isbister reported that the Applicant’s Navy service:
“was a major, substantial and significant cause of his right knee condition. …Work as a clearance diver would put further stress on his knee and would prevent him from returning to this type of work. The condition is permanent. … He may be able to carry out light duties of a sedentary nature or supervisory or training. He is fit to work as a diving teacher or instructor although he may not be able to carry out all the demonstration techniques required.”
24. Specifically in relation to incapacity, Dr Isbister reported that:
“In my opinion his disability and incapacity are primarily related to his right knee condition, his depression and his diabetes, and this is likely to render him incapacitated for employment. Other medical conditions as mentioned may contribute to the incapacity. The degree of such would be better indicated by appropriate specialists. Types of employment are uncertain but regarding his knee I believe that he would be able to carry out a more sedentary occupation. I believe that a vocational program would be appropriate.”
25. Dr. Anthony Dinnen, consultant psychiatrist prefaced his opinion with the following account:
“The patient was impressive in his physical appearance, tall and strong. His aboriginality was an important aspect of his presentation, and he talked openly about matters to do with racism at the interview. The interview was lengthy, lasting for one and a half hours and some of that time had to be taken up by conversation because of his prevailing mood. The mood was one of grievance, anger, bitterness and resentment. Mixed with that was some obvious difficulty with pride and self-esteem, and feelings of injustice. He was intelligent, eager to engage in discussion, and generally helpful and cooperative throughout the interview. He was an impressive individual. The mood of angry depression was for the most part sustained throughout the interview nonetheless.”
26. Dr Dinnen made an assessment under the Guide to Assessment Rates of Veterans’ Pensions (GARP) in the course of which he stated, inter alia, “I don’t believe he is fit for work because of his psychiatric illness alone.” He gave a total GARP score of 50 points (equates with severe impairment).
27. Referring to all the documents relating to the Applicant made available to him by the Repatriation Commission, Dr Dinnen stated:
“Nowhere in these documents is any reference made to the patient’s chronic unemployment for the last 11 years. That fact alone would indicate major and permanent disability. There are undoubtedly many in the work force with a comparable injury, and it seems difficult to explain his long term incapacity on that basis alone. Therefore psychological factors must be considered. His presentation at interview with me was such as to indicate that he has major psychological problems with regard to relationships, adjustment to society, motivation for employment, interests and goals. I believe these difficulties are due to ongoing psychiatric disorder, described by Dr Iyer as adjustment disorder with anxiety and depressed mood.”
28. Dr Dinnen concluded:
“The patient suffers from symptoms of anxiety and depression, causing marked impairment, consequent to his psychiatric disability, adjustment disorder with mixed anxiety and depressed mood. The rating of impairment according to the GARP scale of 50 points reflects the clinical finding of severe impairment. Details are provided above in this Report. The patient’s psychiatric condition would be responsible, in my view, to a large extent for his inability to find work and to become employed since 1993. The reasoning for this opinion is provided above. I do not believe his psychiatric condition would have allowed him in the past 11 years to find employment to which he would be suited by virtue of his past skills, qualifications and experience.”
29. Dr. Robert D. Lewin, consultant psychiatrist had access to the earlier report by Dr. Iyer, and also to the clinical notes of Dr. McCarthy of Gosford, the Applicant’s regular medical general practitioner. Dr Lewin was not aware of Dr Dinnen’s report.
30. Dr Lewin took a history from the Applicant similar to that of Dr Iyer and Dr Dinnen, except in one important respect; the Applicant’s substantial usage of marijuana. His report to the Department of Veterans’ Affairs (“DVA”), dated 24 December 2004, included the following passages:
“Mr Godfrey reported that he had first used marijuana at the age of fourteen. After his discharge from the Navy in August 1993 he used marijuana to help him feel relaxed. He told me that he did not consider himself to be a heavy marijuana user. However, he reported a pattern of almost daily use of marijuana associated with increased suspiciousness and with a tendency to ruminate upon themes of persecution. It appears he has not reported his pattern of substance use to the treating doctor. I note that Dr Iyer was informed that there was no history of illicit drug use….
“A number of the other symptoms reported by Mr Godfrey, including irritability, emotional lability, suspiciousness of others, are symptoms which are explained upon the basis of the reported pattern of the use of marijuana. …
“Mr Godfrey reported some intermittent depressive symptoms but these features are explained on the basis of the physical condition, and the abuse of marijuana. I did not diagnose a separate depressive condition. All the emotional symptoms reported by Mr Godfrey are currently explained on the basis of an underlying personality disposition and his current pattern of daily or almost daily use of marijuana.
31. Dr Lewin then addressed the Applicant’s capacity to work. He stated that:
“You asked whether Mr Godfrey’s psychiatric disability (if any) would be obvious to prospective employers. It is likely that Mr Godfrey will be able to conceal his pattern of use of marijuana, should he choose to do so. I note that Dr Iyer concluded that there was no pattern of abuse of illicit substances. If an employer did not undertake testing (such as urine drug screening) it is unlikely that the reported pattern of the use of marijuana would be evident. If Mr Godfrey chose to withhold information with regard to his pattern of use of marijuana (as it appears he did with Dr Iyer) then this significant problem is unlikely to come to the attention of a prospective employer. Potential safety issues might, therefore, be overlooked. Should Mr Godfrey choose to return to diving, this pattern of substance abuse would be of great significance. If the question of abuse of substances is put to one side, there is no psychiatric condition which would prevent Mr Godfrey from working in any occupation…..
“Mr Godfrey told me that he has not been seeking work since leaving the Navy. He became very angry when I asked him about this. He protested that he had not been offered any help by the RAN. He told me that he would not consider returning to work until the Navy had ‘fixed’ his problems.”
32. In his second report, dated 21 March 2005, Dr Dinnen stated in strong terms his disagreement with the opinion of Dr Lewin:
“I do not believe that Dr Lewin’s opinion as to the patient’s ongoing psychiatric problems is correct. It is important that he has established that the patient does use marijuana, but it is also important not to take this out of proportion and to interpret it out of context. I believe that Dr Lewin has done this. The marijuana use is certainly relevant, but only in so far as it is a co-morbid dependency, relieving symptoms of pain and anxiety. I do not believe that it has caused suspiciousness which could be misinterpreted as ‘paranoia’. The patient does not display suspiciousness; he displays long standing feelings of discrimination and injustice, not irrational feelings of persecution.
“Substance abuse of course is commonly associated with psychiatric illness, whether the substance be alcohol or less commonly marijuana. These dependencies are commonly associated with chronic post traumatic stress disorder in war veterans ….The psychiatric literature clearly reflects the clinical reality that these dependencies are co-morbid in many cases with ongoing psychiatric disorder.
“I enclose three authoritative articles from the British Journal of Psychiatry, published in recent years, which if carefully perused will clearly support my view in this matter. There is indeed a wealth of literature which would establish that chronic marijuana use is uncommonly associated with major psychotic illness but commonly associated with, that is co-morbid with, other psychiatric disorders such as anxiety state, adjustment disorder and so forth.” …
“In my view the patient’s use of marijuana does not in any way explain the variety of symptoms of psychological distress which have been classified as ‘adjustment disorder with mixed anxiety and depressed mood’. Indeed, the ongoing anxiety and depression which have been present for several years, consequent to his chronic unemployment and disability, can be expected to be relieved to some extent by marijuana rather than to be caused by it.”
33. In his report dated 12 May 2005, Professor J. B. Saunders, Professor of Alcohol and Drug Studies concluded:
“In summary, I would judge Mr Godfrey’s cannabis use to be a form of self-medication of his psychiatric symptoms, including those that could be of post-traumatic origin, and to cause, emulate or exacerbate the psychiatric symptoms he has experienced. I conclude from my history and examination and from inspecting the accompanying documentation that Mr Godfrey’s psychiatric conditions stem from his injury and its sequelae, and are not related to his use of cannabis. In this regard I support the conclusions of Dr Anthony Dinnen and disagree with the conclusions of Dr Robert Lewin.”
34. Regarding the Applicant’s ability to work, Dr Tim Anderson reported, on 29 December 2004, that he was “not persuaded” that the Applicant’s adjustment disorder was attributable to his naval service. He did consider, however, that the accepted condition of the right knee, and hearing loss, were present, although the former he described as “relatively mild”. With respect to motivation and attitude Dr Anderson concluded that the Applicant “seems almost to have a persecution complex. He believes that a lot of his colleagues in the Navy were very much against him because of his Aboriginal background….He takes no responsibility for any of his own circumstances and is very quick to blame various government departments for his current situation.” He concluded that the Applicant’s prognosis as “poor. I would not see any significant improvement happening. Mr Godfrey is not fit to do anything at the moment until his current circumstances improve.”
35. Dr Mark Burns, occupational physician, reported on 17 January 2005 that:
“From the information in the documents and the history obtained from Mr Godfrey, I believe that the chondromalacia patella of his right knee would have significantly affected his work capacity from the time he left the Navy in 1993. He would not have been able to do any heavy physical activity. He could not have done significant manual work involving lifting, squatting or bending. He would also have had restricted standing and walking. Additionally, he would not have been able to drive any distance. I believe he would have been significantly restricted to probably less than eight hours per week, if he could have found any suitable work at all. I note that he did not have any restraining or any rehabilitation after leaving the Navy. He would have required such rehabilitation or retraining in order to have the capacity to seek appropriate work. His level of education was not such that he could have done clerical duties. Additionally, he had no typing skills and no computer skills.
“His adjustment disorder is difficult to quantify as to when it affected his work capacity. Certainly from 2002 it would have had a major effect on his ability to work. I believe that it would have made him virtually unemployable since its original diagnosis in 2002. I cannot state what it would have been like, though, from 1993 up until that time.
“Mr Godfrey’s back problem, or his spondylolisthesis, would not have been a major concern up until about four or five years ago, Certainly, it would also restrict him from heavy physical work at the current time….
“I therefore believe that he has been unable to work even eight hours per week due to accepted disabilities since his discharge.”
36. Dr Peter D. Stevenson, consultant physician ordered a X-ray of the right knee, “could find no really satisfactory clinical explanation for the profound alleged disability”. The X-ray report dated, 7 February 2005, reads as follows:
‘RIGHT KNEE. No fracture or dislocation is seen. No significant fluid is seen in the suprapatellar pouch. The joint spaces are generally well maintained. No calcified loss body is seen. Prominent osteophytes are arising from the inferior aspect of the patella. The articular surfaces are intact.’
“I understand you want my view of Mr Godfrey’s ability or otherwise to do the work of labourer, marine engine and boiler operator, and diver. The radiological and clinical evidence provides tenuous basis for incapacity. The reasonable range of possibilities are either small or moderate just. Giving benefit of doubt my conclusion is moderate just for labourer, marine engine and boiler operator, and diver, and moderate overall.”
37. Dr. Seamus E. Dalton, Consultant in Rehabilitation Medicine provided three reports to the Australian Government Solicitor. In the first, dated 4 July 2005, Dr Dalton stated:
“Mr Godfrey’s current condition, namely chronic right anterior knee pain, limits his tolerance of squatting, climbing, crouching, and heavy lifting which would impact on his ability to undertake work as a commercial diver and/or labourer. Unfortunately, objective assessment of his true functional capacity is hampered by superimposed pain and illness behaviour which is likely to be related to an Adjustment Disorder….
“In my opinion this man’s defence-caused disabilities are not of such a nature that they alone render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week….He is physically capable of working in a sedentary job.
“It is not within my sphere of expertise to opine whether or not this man suffers from a psychological or psychiatric disorder which would preclude his ability to work either part-time or full-time….
38. In his second report dated 9 August 2005 Dr. Dalton stated:
“On the assumption that Mr Godfrey’s vocational trade and professional skills, qualifications and experience would enable him to undertake work as a commercial diver and in labouring positions, it is my opinion, given the above injuries in relation to his right knee, that he is able to undertake work of that kind for more than eight hours per week, but less than 20 hours per week. In my opinion the injury to his right knee alone is sufficient to lead to this incapacity to undertake work of the relevant kind. However, in this man’s case the associated Adjustment Disorder and superimposed illness behaviour further restricts his capacity for such work. Given the lack of information regarding this man’s clinical condition and psychological state between 1993 and 2002, it is difficult to assess at what time de developed an Adjustment Disorder sufficient to contribute to his incapacity for work….
“The available medical reports confirm that Mr Godfrey has a Grade I/II L5/S1 spondylolisthesis and associated degenerative narrowing of the L5/S1 disc. This is a developmental and degenerative condition which is commonly found in the general population and often becomes symptomatic in later life without any antecedent trauma. There is no evidence to suggest that Mr Godfrey’s lower back condition is related to his compensable condition or previous employment with the Navy. Given this man’s level of function and normal gait at the time of medical discharge, as noted in the available medical reports, I do not consider that there is any reasonable basis for the claim that his left knee and lower back condition has resulted form the compensable condition affecting his right knee. “
39. In his third report, dated 23 August 2005, Dr Dalton briefly clarified that he did not consider that the Applicant’s left knee or back conditions were sufficient to prevent him from returning to work, although some physical restrictions were applicable. “I believe that with appropriate intervention and modification of any associated pain and illness behaviour his back and knee symptoms have considerable potential to improve, such that his current physical restrictions may not be applicable in the long term.”
EVALUATION OF THE MEDICAL EVIDENCE
40. The medical evidence in this case can be divided into three categories: those that speak of the Applicant’s physical condition, those that address his employment prospects from an occupational or rehabilitation perspective, and those that deal with the Applicant’s psychological condition.
Physical injury/illness
41. So far as the Applicant’s non-accepted conditions of left knee and spondylolisthesis are concerned, Dr Isbister was firm in his opinion that neither condition was service-related, nor were they related to the accepted condition of the right knee. Dr Burns considered that the accepted condition of the right knee would have restricted the Applicant’s ability to work no less than eight hours per week, “if he could have found any suitable work at all”. Dr Dalton, however, considered that the right knee condition would not alone have rendered him incapable of working for more than eight hours per week.
Employment prospects
42. Dr Isbister assessed the Applicant’s employment prospects as “uncertain”, but believed that he would be capable of sedentary work. He recommended a vocational program. Dr Anderson regarded the accepted conditions (except for Adjustment Disorder, which he rejected) as “mild”; nevertheless he regarded the Applicant’s employment prospects as poor because of his motivation and attitude. Dr Burns believed that the Applicant’s accepted disabilities (including adjustment disorder) had prevented him from working even eight hours per week, since discharge from the Navy. Dr Dalton considered that the Applicant’s accepted right knee condition would not prevent him from working eight hours per week in a diving or labouring capacity, but would restrict him to not more than 20 hours per week. As will be noted next, these assessments (except for that of Dr Anderson who rejected it) left open the degree of impact on the Applicant’s employment prospects of his Adjustment Disorder.
Psychiatric disorder
43. The Applicant’s psychological condition may be regarded as central to his claims. Dr. Iyer diagnosed Adjustment Disorder with Mixed Anxiety and Depressed Mood. He regarded this condition to be secondary to his right knee condition and to have a significant impact on his level of functioning. Dr Dinnen confirmed this diagnosis in even stronger terms. He was of the opinion that the Applicant was not fit for work “because of his psychiatric illness alone….He has major psychological problems with regard to relationships, adjustment to society, motivation for employment, interests and goals….I do not believe his psychiatric condition would have allowed him in the past 11 years to find employment to which he would be suited by virtue of his past skills, qualifications and experience.” Dr Lewin’s view that the Applicant’s emotional symptoms were attributable to his use of marijuana was rejected by Dr Dinnen in a subsequent and closely reasoned opinion. Professor Saunders supported Dr Dinnen’s opinion and disagreed with Dr Lewin.
APPLYING THE LAW TO THE EVIDENCE
44. It is clear that the Applicant meets the requirements of section 24(1)(a) of the Act, in that his degree of incapacity has been assessed by the Respondent at 100%.
45. It was agreed between the parties that the Applicant is, in terms of section 24(1)(b), suffering from an incapacity from a war-caused injury “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.” This incapacity derives from the Applicant’s accepted conditions.
46. The parties were in dispute, however, regarding the application of section 24(1)(c) to the Applicant’s circumstances. Section 24(1)(c) requires the decision maker to determine whether the war-caused condition alone prevented the veteran from continuing to undertake the remunerative work that the veteran was undertaking. In the present case this would require a consideration of the Applicant’s spondylolisthesis, which was not war-caused, and whether that condition would alone, or in combination with the accepted war-caused conditions, have caused the Applicant’s loss of earnings on his own account.
47. The approach to a consideration of section 24(1)(c) has been laid down authoritatively at Leane v. Repatriation Commission [2004] FCAFC 83; Flentjar v. Repatriation Commission (1997) 48 ALD 1, at 4-5; 26 AAR 93, at 96 as follows.:
1) What was the relevant “remunerative work that the veteran was undertaking?”
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? “
48. The relevant remunerative work that the Applicant was undertaking was diving, marine engine maintenance, and general labouring. The Applicant had not engaged in any remunerative work since discharge from the Navy. The evidence before the Tribunal from several of the witnesses, and from the Applicant himself, was that he was not qualified to do any other forms of work.
49. The answer to question 2) in this case must be yes, since the Applicant’s accepted right knee condition and adjustment disorder prevent him from continuing to undertake the work of diver, engineer, or labourer.
50. In relation to question 3, we have given careful consideration to the issues raised as to whether spondylolisthesis and the left knee condition prevent or contribute to the Applicant’s inability to work. We note the opinions of the two occupational physicians that these two conditions would not prevent the Applicant from returning to work, albeit with some physical restrictions. (Dr Dalton, Dr Burns). The Tribunal therefore answers question 3 in the affirmative; the Applicant's war caused injuries are the only factors preventing the veteran from undertaking work of the kind for which he is qualified.
51. It necessarily follows that the answer to question 4) must also be yes.
52. Where an Applicant has satisfied the “alone” test in section 24(1)(c) it is unnecessary to consider the ameliorative provisions of section 24(2)(b): Re Hornery and the Repatriation Commission (1998) 28 AAR 193.
DECISION
53. The Tribunal affirms the decision under review in so far that:
1) that there is no confirmed diagnosis of left knee injury;
2) (b) that there is no basis in the material before it that would indicate that the Applicant’s spondylolisthesis is defence-caused;
54. But the Tribunal sets aside the decision under review to reject the Applicant’s claim for pension at the special rate and in substitution thereof decides that the Applicant is to receive a disability pension at the Special rate with effect from 5 August 2003.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: .A. Krilis Associate
Date/s of Hearing 5 December 2005
Date of Decision 23 May 2006
Counsel for the Applicant Mr Mark Vincent
Solicitor for the Applicant Ms Judith Buss
Counsel for the Respondent Mr S Lloyd
Solicitor for the Respondent Ms Angela Nanson
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