Hamence and Repatriation Commission

[2007] AATA 1735

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1735

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  V 200500208

VETERANS’       APPEALS      DIVISION		)
Re		ROBIN DAVID HAMENCE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date6 September 2007

PlaceMelbourne

Decision The decision under review is affirmed.

(Sgd)  John Handley

  

Senior Member

VETERANS’ ENTITLEMENTS – applicant suffers a number of accepted, rejected and other disabilities – ceased work in 1997 when 52 claimed pension in 2002 and is now 61 – currently paid at 100 per cent of general rate – claims special rate – alone test not satisfied – decision affirmed

Veterans’ Entitlements Act 1986 (Cth) s 24(1)(c)

Cavell v Repatriation Commission (1989) 9 AAR 534

Repatriation Commission v Hendy [2002] FCAFC 424

REASONS FOR DECISION

6 September 2007   Mr John Handley, Senior Member

1.      This is an application challenging three decisions made by the Veterans’ Review Board (the VRB) on 6 December 2004.  Within the assessment period the respondent accepted lumbar spondylosis as war‑caused.  The appeal with respect to the previous rejection of that application was therefore withdrawn.  The other decisions concerned the rate of pension payable.  The VRB assessed pension at 100 per cent of the general rate from 22 December 2001, thereby setting aside a decision previously made to pay pension at 60 per cent.  The remaining appeal sought pension beyond 100 per cent of the general rate which had been paid from 30 September 2002.  That appeal was unsuccessful.  By this application, pension is sought to be paid at the special rate.

2.      Mr Hamence is presently 61 years of age and receives pension for the accepted conditions of anxiety/depression, bilateral sensori‑neural hearing loss, post-traumatic stress disorder, lumbar spondylosis, alcohol dependence and cerebral ischaemia.  The respondent has rejected the conditions of osteoarthrosis affecting both hips, spondylolisthesis, tinnitus, non specific arthralgia and cervical spondylosis. 

3.      Mr Hamence was called up for National Service and served in the Australian Army between February 1966 and April 1969.  He was engaged in service in Vietnam between 27 March 1968 and 28 February 1969.

4.      The hearing of this application commenced in Mildura on 14 March 2007 and concluded in Melbourne on 23 July 2007.  Evidence was heard in Mildura from Mr Hamence and his defacto partner, Valerie Kaye Norman.  Dr Gerald Purchase, a psychologist in Mildura, was not called because he was not required for cross‑examination.  Reports written by him and his clinical notes were received into evidence without objection.  The hearing was adjourned for resumption in Melbourne where Doctors Kemp, Silcock and Markov were called.  Mr Moore of Counsel appeared on behalf of Mr Hamence and Mr Douglass appeared on behalf of the respondent.

5.      Mr Hamence was educated until age 13 when he left school and obtained employment as a rouseabout on a number of sheep properties in the Mildura district and as a labourer on fruit blocks.  Employment of that type was undertaken until he commenced National Service in 1966.

6.      Upon being discharged from the Army in 1969, he obtained employment in Waikerie in South Australia for four and a half years as a maintenance employee on a vineyard.  In that employment he was engaged in driving tractors, undertaking irrigation and general vineyard work.  That work was consistent with some of the work that he had undertaken prior to enlistment.  In about 1974 he returned to Mildura and was engaged in similar employment until about 1975 when he commenced domestic house painting as a trainee with Graham McCrae, a local painter.  That work was undertaken for about six years.  He then obtained employment with other painters in the Mildura district and was engaged in self‑employment as a painter.  All of the work involved domestic painting.  He was also engaged in some casual vineyard jobs from time to time and in 1986, he worked casually in a packing shed.

7.      Mr Hamence said that he was drinking alcohol significantly whilst he was engaged as a painter.  He also had some physical difficulties associated with his lower back, his neck, his upper back and his right arm which slowed him in his work but it did not stop him from working.  He said that it made the work awkward.  Those physical symptoms commenced in about 1972.  On occasions and when undertaking jobs in self‑employment, Mr Hamence was assisted by his eldest son Shane.

8.      Mr Hamence was aware that a former employer, Mr Green, being a Director of AL and JL Green Pty Ltd, wrote a letter received by the respondent on 19 September 2003 confirming employment between 1994 and 1997 but also confirming that employment ended because his attitude appeared to be getting worse and could no longer be tolerated either by this firm or his fellow workers.  Mr Green recorded that whilst Mr Hamence was a ‑

good worker, he was moody and very temperamental . . . who unfortunately was prone to fits of depression, anger and abuse.  He was a very heavy drinker and was sent home on many occasions because of this and because of his attitude towards his fellow workers and his outbursts of rage which were on occasions very violent.

9.      Mr Hamence agreed that the contents of that letter written by Mr Green were true.  He said that he was conscious of his behaviour at or about that time and said that he was not accepting things properly – I was stressed.

10.     Mr Hamence said that he did notify Drs Silcock and Markov that problems associated with his back and right arm were the reasons why he ceased work but said that those reasons were not true.  He said that he would not accept that he had a mental problem.  He said that if it were not for his mental problem, he would still be engaged in work as a painter.  He said that he recently painted his own house and whilst it caused him physical pain, it did not stop him from finishing the job.

11.     After he ceased work with Green (in 1997), Mr Hamence said that he obtained a number of other jobs in self‑employment but last worked as a painter when working for a Turkish man known as Sam.  Mr Hamence said that he walked away from the job in anger – I couldn’t get on with him.

12.     Mr Hamence then obtained work with Wingara Wines in Nangiloc for about six or eight weeks in 1997.  He said that he was required to work in a gang of three or four persons training young vines onto a trellis and pruning.  The work involved considerable walking and manual tasks which did cause him physical problems but did not stop him from working.  He said he ceased the job because of arguments that he had with other persons and with the leading hand.  Mr Hamence said that he has not worked since 1998.

13.     In cross‑examination, Mr Hamence was taken to a number of documents which were received into evidence from both Centrelink, Mr Green and Dr Sawyer, his LMO.  Mr Hamence was informed that the Centrelink file (pp12 and 13) contain a copy of an application made by him on 4 June 1998 where Dr Sawyer recorded Painter – not worked for years.  Mr Hamence denied that he ceased working as a painter (in 1994) that is four years before 1998.  He was also acquainted with a note written on 12 June 1998 by a Centrelink officer concerning a telephone discussion with Dr Sawyer.  The note records He is a painter – decorator and has not been fit for work in trade for four years.  Mr Hamence said he had no idea why that note would have been written.  He was then acquainted with a report written by Dr Schenk at pages 18 and 19 of the Centrelink file which record that he Ceased working in 1992 due to progressively worsening osteoarthritis.  He briefly attempted vine training . . .  Mr Hamence said that he could not recall notifying Dr Schenk that he finished in 1992 and denied that the report suggested that the comments were consistent with undertaking the Wingara job at about that time.

14.     Mr Hamence was then notified of two other letters written by Mr Green of 2 October 2006 and 7 November 2006.  In the first of those two letters, Mr Green recorded that Mr Hamence was employed between 1991 and 1993.  Additionally, he recorded that the firm of AL and JL Green Pty Ltd ceased to exist on 30 June 1993.  In the second letter, Mr Green recorded that the firm of AL and JL Green Pty Ltd ceased to exist in 1997.  He recorded the information contained in his letter of 2 October2006 was incorrect, it contained information obtained from his memory however his former accountants confirmed that the business did cease to exist in 1997.

15.     Extracts were also obtained from the Centrelink file which confirmed that unemployment benefit was paid to Mr Hamence between September 1994 and October 1994 and sickness allowance was paid between November 1995 and February 1996 and between July 1997 and June 1998.  Mr Hamence said that he could not recall claiming or receiving those benefits.  He could not explain why those benefits were paid when, on his evidence, he had in fact been working.  He agreed that the disability support pension had been paid to him since 1998 but after he ceased work with Wingara.  He denied that he ceased work in 1992 or 1994 as some of the documents suggested and denied that he was receiving any Centrelink benefits whilst he was working.  He denied that he ceased employment with Green only because the business had ceased to exist.

16.     With respect to his ability to undertake painting work, Mr Hamence was taken to the evidence given to the VRB found in the transcript of those proceedings at page 28.  Mr Hamence acknowledged that he did give evidence that his shoulders and hands affected him as a painter because of a requirement to work above head height.  He also acknowledged that he had loss of strength of grip in his right dominant hand because of a prior right hand and wrist injury.  He also agreed that he gave evidence that his hip affected him climbing ladders and carrying heavy planks and ladders.  He agreed that he did give evidence to the VRB that some heavy work was delegated to apprentices.  But said that his evidence to the VRB was not true.  He said he did not then want to admit to the VRB members that he was struggling mentally.

17.     Mr Hamence was reminded that he consulted with Dr Parkin, a psychiatrist in Melbourne in 1990, who then reported that he exhibited features of anxiety, depressive disorder and had experienced prior episodes of post-traumatic stress disorder.  Mr Hamence said that he could not recall the name of the Doctor but did recall attending him.  Despite that attendance and despite knowing that that report was obtained at the request of the respondent, Mr Hamence said that he did not want to have the stigma of others knowing – including family and people I knew well.  He said that his own Doctors knew of his psychiatric condition but he attended for treatment only of his physical problems because they were real problems.

18.     Mr Hamence acknowledged that Dr Schenk on 9 July 1998 reported that he suffered from osteoarthritis affecting his neck, back, both shoulders, left hip and right wrist.  He agreed that he does have continuous pain, some stiffness and reduced range of movement in those affected joints together with a left sided limp.  He also agreed that his symptoms were aggravated by movement and by immobility.

19.     Mr Hamence again said that he was not truthful in his history to Dr Silcock as evident by her report of 20 October 2005 that he ceased work because of pain between his shoulders (refer pp1 and 2).  He said that he did not want to admit to her that he ceased work because of post-traumatic stress disorder.  When he was reminded that he had been attending Dr Purchase for treatment in Mildura at the time that he saw Dr Silcock, Mr Hamence said that he did not notify her of his psychological injuries because she didn’t ask me.

20.     With respect to the physical injuries from which he suffers and over which Dr Silcock reported, Mr Hamence agreed that he did have arthritis in his right wrist and ankle, that he does have pain particularly in his left leg, that he does have neck pain which has existed for about 10 years and which he believes is slowly becoming worse, that he continues to have treatment for a detached retina and has had the gradual onset of pain in his shoulders and upper back which cause him also to have chiropractic treatment.  However, Mr Hamence said that the shoulders were not the main reason that he gave up work.  He agreed that he did give that history to Dr Silcock but said that he did not want to admit the psychiatric injury was the main reason.

21.     Mr Hamence was then acquainted with a report written by Michelle Elmitt, a physiotherapist, engaged by the Commonwealth Rehabilitation Service (CRS).  Her report is found within the clinical notes of Dr Sawyer.  At page 21, she reported that his arthritic condition became evident in 1972.  She also reported that in 1990 his right wrist and hand were crushed when a car fell off a jack and the distal phalanx of his right forefinger was amputated.  Mr Hamence said that his finger was not then partially amputated.  He said that he lost that part of his finger when he was eight years of age.  He also disagreed that he suffered a crushed right shoulder causing thoracic back pain about 30 years ago.  He agreed that he does have some pain in his right toe but understood that it was because of gout.  He agreed with the history that she recorded of nil alcohol consumption at the time of consultation because at that time he was not drinking.  He also agreed with a note written by Dr Sawyer on 18 July 1997 that he had been off alcohol for seven months but said that he did not stay off alcohol.  He acknowledged that Dr Howard, at the Repatriation Hospital on 15 August 2000, took a history that he was then consuming minimal alcohol but he agreed that he did not give an accurate estimate of his alcohol consumption.  He said after 1997 until 2000, his alcohol consumption was severe but he declined to notify Doctors of his resumption and the quantity consumed because he did not want to be known as a person dependent on alcohol.  He agreed with comments by Dr Silcock at page 3 of her report of 20 October 2005, that he drank minimally prior to service but did drink heavily when he returned to Mildura, that he did lose his motor vehicle licence with a blood alcohol content of 0.06 (in the 1980’s), that he did reduce his drinking in about 1994 but despite her history of drinking one/two drinks daily and never has more than six drinks on any one occasion, he said that he does now drink more than that quantity.  Mr Hamence said that a history taken by Dr Caracatsanis at page 84 of the T‑documents of him consuming one bottle of beer per night in the year 2000 was consistent with the history that had been obtained by Dr Howard.  He said that the quantity of alcohol consumed fluctuates depending on his level of anxiety, his attitude at the time and memories of service.

22.     In re‑examination, Mr Hamence re-affirmed that were it not for his psychological injuries, his physical problems, whilst continuing to give him discomfort and pain and sometimes requiring medical treatment, would not have prevented him from working and would not prevent him from working at the present time.

valerie norman

23.     Ms Norman is the defacto partner of Mr Hamence.  She said in evidence that she first met him in approximately 1994, their friendship developed and they have lived together since 2001.  She said between 1994 and 2001 she saw him on a regular basis because he lived four doors from where she was living.  She recalled that in 1994, Mr Hamence was then working as a painter and she thought that he was then employed by Mr Green.  She said she also visited him on occasions on job sites.  She said that he has physical complaints which he describes as grumbles and he sometimes said If I was a horse, they would shoot me.  She said that he does not make any specific complaint with respect to any particular part of his body.  She recalled that there were many occasions when she felt that Mr Hamence was not able to cope and recalled him saying that there were occasions when he did not want to go to work.

24.     As she saw more of him and became closer to him, she learnt that he also suffered from a number of non‑physical issues – she noticed that he would react to loud noise where he would become instantly angry and would flare up.  She also noted that he was frequently depressed, anxious and manic.  She said that he self‑medicated his depression by alcohol and he sometimes said that he would be better off dead or would use the expression life was no good.  She said that his manic attitude was exhibited by him checking that doors, windows and the petrol cap on his car were locked at night.  She said that he would walk around the yard at home and check that the house was safe.

25.     Ms Norman said that Mr Hamence did not have friends and he offended people because he was frequently angry and he was unable to relate to persons.  She said he was argumentative on a frequent basis and on occasions had been engaged in physical conflict.

26.     In about 1998, Ms Norman recalled that Mr Hamence ceased painting.  She said that he was then completing a job for a customer Sam but the work was not finished.  She recalled that Mr Hamence’s son Shane completed the job.  She recalled that Mr Hamence had difficulty working as a painter because he was angry, anxious and was unable to force himself to work.  She did not know the reasons why Mr Green had terminated his employment.  She was aware that Mr Hamence had worked at Wingara in about 1998 and said that his physical complaints did not prevent him from working but rather because of the relationship he had with other workers.  She said that he initially drove three or four other employees to work but then because of conflict he then started to drive three persons and eventually he would not take passengers at all.  She said that the owners of the Wingara Winery were offering him less work and eventually no further work was offered because he was upsetting other employees.  She said that he did not choose to cease work with Wingara but rather no further work was provided to him.  She recalled that since 1998, Mr Hamence has been engaged in some small painting jobs for other people and had completed painting in their home including ceilings and upper walls.

27.     Presently she said his drinking habit fluctuates.  He now drinks mainly at night and then it is port but not beer.  She said that he has been known to drink a cask of port if he is bad.  She agreed that he is difficult to live with and reacts to noise and has an inability to relate to friends and members of his family.  It was her belief that were it not for his psychological injuries he would now be painting or working on an orchard or fruit block because he does like to work out in the open.

28.     In cross‑examination, Ms Norman said that Mr Hamence has completed some small jobs since 1998 for which he has been paid but not at a commercial rate.  She said that he has undertaken painting work for friends.  She was not sure that he did cease work in 1998.  When she was acquainted with the Centrelink history of being paid benefits between 1994 and 1998, she agreed that he could have ceased work before 1998.  Ms Norman was not aware of the notes taken by Dr Sawyer or the history that he obtained.  She acknowledged that she did attend the VRB with him and recalled that he did give evidence that pain was experienced in his shoulders and in his hands.

29.     In re‑examination, Ms Norman said that Mr Hamence is not willing to admit that he does have mental problems.  She said that he lives in a small town.  She said that she was aware that he had spoken to his family and his three brothers of his psychological injury but thereafter his brothers will not have contact with him because they think that the condition is catching.  She said that Mr Hamence is therefore scared that others will find out about his condition and he will not obtain work.

30.     Ms Norman said that in her experience in Mildura the stigma of mental illness . . . . is huge.  She said that her employer became aware of his psychological problems, will no longer allow him to enter her workplace and has referred to him as a nuff nuff (an expression apparently used to describe persons with a mental illness).

31.     In answer to some questions from me, Ms Norman said that the occasions where she visited him at work sites when he was painting would have been in about 1996 or 1997.  She was confident of that estimate by reference to the date of birth of her youngest child who accompanied her.

cessation of work

32.     Without any disrespect to the applicant, he is a poor historian.  The deficiencies in his memory are probably explained by his cerebral ischaemia, his psychiatric disorder, his alcohol addiction and the passage of time.  The histories given to his doctors reflect his poor memory and, on occasions, were admitted as incorrect.  A finding as to when the applicant ceased work will be made by reference to a number of documents and upon assumptions reasonably able to be drawn.

33.     Mr Hamence had been employed as a painter for many years initially with Graham McCrae and later by A L and J L Green Pty Ltd.  Mr Alf Green wrote three letters each of which had a different date as to the cessation of employment.  The first letter (undated but received by the respondent on 19 September 2003) recorded the termination of employment in November 1997.  The second letter of 2 October 2006 recorded cessation of employment in 1993.  The last letter of 7 November 2006 recorded cessation of employment in 1997.  Mr Green was confident that employment did cease in 1997 because his accountants had advised him that the company A L and J L Green Pty Ltd then ceased to trade.  Additionally, he reported that the date of November 1997 referred to in his first letter was taken from his records.  The third letter of 7 November 2006 does not identify the date in 1997 when the firm A L and J L Green Pty Ltd ceased to exist.  There is nothing which points to the employment ending at the same time that the firm ceased to exist.

34.     Records obtained from Centrelink disclose Mr Hamence qualifying for payment of Newstart allowance on 22 July 1997.  That benefit was paid until 23 June 1998 and from that date he has received disability support pension.  He said in evidence, and I find as a fact, that he did not ever work whilst in receipt of Commonwealth benefits.  It follows therefore that he last worked prior to 22 July 1997.

35.     When he ceased working for Green, Mr Hamence obtained work for a few weeks with Retravision in Mildura as a storeman.  He then obtained work for about six weeks with Wingara Wines.  The cessation of  employment with those two entities therefore must have occurred before July 1997.

36.     I do not find that Mr Hamence ceased work (as opposed to temporary periods of absence from the workforce) in about 1992 or 1993 or 1994 as is suggested from some of the medical records.  For example, Dr Sawyer recorded on 4 June 1998 (refer treatment notes) not worked as painter for four years.  A similar history is given by Dr Sawyer in a questionnaire completed by him and lodged with Centrelink.  However on 4 December 1995, Dr Sawyer has recorded in his treatment notes can’t cope with painting.  On 18 July 1997 and 21 July 1997, Dr Sawyer recorded that Mr Hamence was to apply for a pension.

37.     Ms Norman said she recalled that she used to visit him at lunchtime on job sites where he was working as a painter in 1997.

38.     In all of the circumstances I am satisfied that Mr Hamence ceased work in 1997 either in or shortly before July, thereby giving him an entitlement to payments of Newstart allowance which commenced in the same month.

medical evidence

39.     Dr Kemp a consultant rheumatologist reported on 23 February 2006 (p4) that Mr Hamence ceased work at Wingara because considerable walking then aggravated low back pain which radiated into his hips and legs.  He was also of the opinion that he ceased work because of difficulties arising from his psychiatric problems.  He reaffirmed those opinions in evidence and said that in his experience it was not unusual for persons with a psychiatric illness to deny or minimise that illness and suggest that physical limitations where the cause of incapacity.

40.     Dr Markov a consultant rheumatologist said in evidence that Mr Hamence was unable to work as a painter because of lumbar spondylosis but he was capable of working on a fruit or orchard block undertaking sedentary work without heavy lifting or lifting above shoulder height for up to 20 hours per week.  Dr Markov said that a number of his complaints of muscular and joint pain could not be explained but he did not discount a psychosomatic cause.  He acknowledged that Mr Hamence probably did experience pain and he thought it was significant that he attended Dr Sawyer in 1989 with complaints of pain in his right arm, lower back, neck and left shoulder.

41.     Dr Silcock, an occupational physician disagreed with the opinions expressed by Dr Kemp that Mr Hamence had de‑emphasised his psychiatric illness and was attributing incapacity and pain to physical symptoms.  She said that on the medical notes available to her, Mr Hamence did not attend a psychiatrist for treatment until 2003 and it was her opinion that he ceased work because of the physical pain for which he made complaint.

42.     Drs Kemp, Markov and Silcock all said Mr Hamence probably did experience neck, shoulder and arm pain and discomfort whilst painting because of the requirement to lift, stretch and raise his arms above head height.  They noted that those symptoms settled when he was not undertaking painting and thought that if he returned to that industry those symptoms would return.  All doctors agreed that he did have good grip and strength in his hands which would not contribute to incapacity.

43.     Dr Kemp said in evidence that Mr Hamence suffered radicular pain emerging from his lumbar spine into his legs.  Dr Silcock thought that the complaint of referred pain into the applicant’s left hip was by reason of his lumbar spondylosis.  However these opinions were dismissed by Dr Markov who said that pain would only be referred if there was nerve entrapment in the lumbar spine for which there was no evidence.  He said in the absence of any evidence of injury to the rotator cuffs and in the absence of disease in the shoulder joints the degenerative changes present in the applicant’s neck were responsible for referred pain into his shoulders.

44.     Dr Markov said that there was no evidence of osteoarthritis in the applicant’s hips which, if present, would cause complaint of referred pain into the groins.  He said on examination Mr Hamence had good range of movement in both hips and knees and did not complain of any pain when examined.

45.     Drs Kemp and Silcock said the applicant’s lumbar spondylosis and spondylolisthesis contributed to incapacity.  Dr Markov said that it was not possible to apportion incapacity between lumbar spondylosis and spondylolisthesis.  He said that 60 per cent of the cause of the applicant’s incapacity was by reason of his accepted disabilities.  Dr Silcock said 50 per cent of incapacity was by reason of accepted disabilities.

conclusion and reasons for decision

46. Counsel for both parties agreed at the conclusion of the hearing that the focus of the review should be upon s 24(1)(c) of the Veterans’ Entitlements Act 1986 because the remaining parts of s 24 were satisfied. I respectfully agree. Qualification under s 24(1)(c) will be established if war‑caused injury or disease, alone, prevent a veteran from undertaking remunerative work and, consequently, there is a loss of remuneration.

47.     On the evidence heard from Mr Hamence, his partner and the doctors, I am satisfied that he does significantly suffer from the effects of his accepted disabilities namely, a psychiatric illness, lumbar spondylosis, alcohol dependence, cerebral ischaemia and, to a lesser extent, bilateral sensori‑neural hearing loss.  But I am not satisfied that those conditions, alone prevent him from continuing to undertake remunerative work.

48.     Mr Hamence does also suffer from spondylolisthesis and cervical spondylosis.  Whilst it would appear that he does suffer from pain in his hips and shoulder, there is some disagreement between the doctors as to the cause.  Dr Markov said he found no evidence of the applicant suffering from osteoarthritis in his hips but did not dismiss the applicant’s complaints of pain as being genuinely experienced.  He noted that Mr Hamence had complained to Dr Sawyer in the 1980s of wide spread joint and muscular pain.  He also obtained a history of pain through the entire spine from his neck to his sacrum for which he could find no anatomical cause.  He said in evidence that Mr Hamence had reported that pain in that location was always present but provoked and aggravated by activity and also by sitting and standing.

49.     I am also satisfied that the complaints of Mr Hamence of pain affecting his musculature and his joints, in locations other than those that have been accepted as war‑caused, are genuinely experienced and upon the histories to the doctors and upon perusal of the medical records have been the subject of complaints since the 1980s.  I agree with Dr Markov that those complaints must have been of sufficient severity to cause him to attend Dr Sawyer for treatment.

50.     Drs Kemp and Markov were of the opinion that painting caused a worsening of symptoms in the applicant’s neck, shoulders and arms but would be relieved by rest.  It followed that they were also of the opinion that a return to painting would cause those symptoms to re‑emerge.  Whilst it would appear from the evidence of Mr Hamence and from the letters of Mr Green that he did suffer the effects of his psychiatric illness when at work, the physical pain suffered also contributed to incapacity from work, as a painter.  Most of those physical complaints are not the subject of disabilities which have been accepted by the respondent as war‑caused.

51.     On balance therefore I am not satisfied that the accepted disabilities are of a nature to be so overwhelming that they alone were responsible for incapacity.  I am satisfied that the injuries and other conditions which have either not been accepted or rejected as war‑caused are responsible in part for incapacity.  Whether it be on a 60/40% basis as attested by Dr Markov or a 50/50% basis as attested by Dr Silcock is immaterial.  What emerges from both of those assessments is that neither doctor was of the opinion that the war‑caused disabilities alone were responsible for incapacity.  I agree.  His non accepted disabilities would also materially restrict or incapacitate him from other manual work, no less, pruning and training vines and as a storeman.  His absent trade skills would qualify him for unskilled manual type employment which would require strength, dexterity and mobility.  On the evidence heard and read, work of that type would be beyond him.

52.     Other matters also contributing to Mr Hamence being unable to satisfy the alone test is him ceasing work in July 1997 but making a claim for a pension which was the subject of this review in March 2002.  That is to say the applicant was out of the workforce for almost five years before the commencement of the assessment period.  He was then 52 years of age and lived in a rural community.  He has no formal trade skills or qualifications.  He is now 61 years of age.  It is well known, that persons over the age of 50, often with formal qualifications, experience severe difficulty obtaining employment (refer Repatriation Commission v Hendy [2002] FCAFC 424 at para 37).

53.     In Cavell v Repatriation Commission (1989) 9 AAR 534 Birchall J at 538 and 539 was critical of the Tribunal decision at first instance which decided that the war‑caused disabilities alone must be the sole, unique and absolute cause of incapacity.  His Honour decided that it was preferable to ‑

Make a practical decision whether the veteran’s loss of remunerative work is attributable to his service related incapacities and not the 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 commonsense is the proper guide.

54.     Having regard to His Honour’s comments and to the findings above, I am of the opinion that the reality of the circumstances Mr Hamence is a combination of disabilities and illnesses which are not accepted as war‑caused, his length of time out of the workforce before the commencement of the assessment period, the absence of trade skills and qualifications, his domicile in a rural community with limited job opportunities and his age prevent satisfaction of the alone test under s 24(1)(c). Mr Hamence has qualified for disability support pension but the qualifying criteria is different to qualification for special rate. Incapacity, being part of the qualifying criteria for disability support pension was accepted, in part, because of injuries which were not war‑caused.

55.     In the circumstances the decision under review will be affirmed.

I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr John Handley, Senior Member

Signed:         Grace Carney, Personal Assistant

Dates of Hearing  14 March and 23 July 2007
Date of Decision  6 September 2007
Counsel for the Applicant         Mr Moore
Solicitor for the Applicant          Mr P Liefman
Departmental Advocate            Mr R Douglass