Joseph Hopwood and Repatriation Commission

[2013] AATA 668

[2013] AATA 668

Division	VETERANS' APPEALS DIVISION
File Number	2012/1221
Re	Joseph Hopwood
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Regina Perton, Member
Date	19 September 2013
Place	Melbourne

The Tribunal affirms the decision under review.

[sgd]........................................................................

Regina Perton, Member

VETERANS’ AFFAIRS - pension at special rate – whether war caused conditions alone cause of inability to work – reason why applicant not working during assessment period – decision under review affirmed

Veterans’ Entitlements Act 1986 sections 24(1)(a), (b) and (c), 24(2)(a) and (b).

Flentjar v Repatriation Commission (1997) 48 ALD 1

Forbes v Repatriation Commission (2000) 101 FCR 50

Repatriation Commission v Alexander (2003) 75 ALD 329

Repatriation Commission v Hendy (2002) 76 ALD 47

REASONS FOR DECISION

Regina Perton, Member

19 September 2013

1. Joseph Lonsdale Hopwood, who is now 66 years old, joined the Australian Army (the Army) as a national serviceman in 1967.   He subsequently joined the regular army on 14 April 1970 serving until 16 October 1987.  His service included operational service in Vietnam.  Mr Hopwood currently receives a service disability pension at 100 per cent of the general rate.  He suffers from multiple medical conditions, of which post‑traumatic stress disorder (PTSD), lumbar spondylosis, sensorineural hearing loss, emphysema, osteoarthrosis affecting both knees, osteoarthrosis affecting both ankles and tinnitus have been accepted by the Repatriation Commission (the Commission) as having been war-caused.  

2. On 25 February 2011 Mr Hopwood lodged a claim for an increase in pension.  He was already in receipt of 100 per cent pension at that time.  Mr Hopwood was seeking a special rate pension, which is a higher rate of pension paid to a working-age recipient who is unable to work due to his accepted disabilities alone.  Mr Hopwood was under 65 years of age when he lodged his claim.

3. On 27 April 2011 the Commission determined that Mr Hopwood was not entitled to a special rate of pension and his disability pension continued at 100 per cent of the general rate. On 10 February 2012 the Veterans’ Review Board (VRB) affirmed the Commission’s decision that Mr Hopwood was not eligible for a pension at the special rate. On 30 March 2012 Mr Hopwood lodged the application currently under consideration by this Tribunal. 

4. In deciding whether Mr Hopwood is eligible for pension at the special rate, the Tribunal needs to consider:

   ·Is Mr Hopwood unable to undertake remunerative work for more than eight hours per week?

   ·When and why did Mr Hopwood stop working?

   ·Do Mr Hopwood's accepted war-caused conditions alone prevent him from working?

   IS/WAS MR HOPWOOD UNABLE TO WORK FOR MORE THAN EIGHT HOURS PER WEEK?

5. The Commission, in its Statement of Facts and Contentions, submitted that Mr Hopwood’s medical conditions did not prevent him from working for more than eight hours per week. 

6. A consultant psychiatrist, Dr Jeffrey Swift, who provided a report dated 28 May 2010 to the Commission , stated that Mr Hopwood would most certainly be unable to work more than eight hours per week and that he would never be able to return to work. 

7. Mr Hopwood’s general practitioner Dr Michael Conos, in a Work Ability Report completed on 7 July 2011, stated that Mr Hopwood would be able to undertake zero hours of work and stated that there is no possible work he could think of that Mr Hopwood could undertake. 

8. The Tribunal is satisfied, based on the medical evidence and evidence of Mr Hopwood given at the hearing, that Mr Hopwood is unable to undertake remunerative work for more than eight hours per week.  

   WHEN AND WHY DID MR HOPWOOD STOP WORKING?

9. Mr Hopwood left school at the age of 16.  His first job was working with a chattel auctioneer.  He was called up for national service in 1967.  Mr Hopwood spent six months of his two years of national service in Vietnam. 

10. Mr Hopwood joined the regular army after completing national service and remained in the Army until October 1987, thereby spending 20 years in the Army in total.  While in the Army, he completed the Services General Certificate of Education.  He also learned Thai and French and spent time working in Thai refugee camps and in Hong Kong as an office-based analyst.

11. After discharge from the Army, Mr Hopwood worked as a defence analyst with the Defence Signals Directorate (DSD) until 1994.  He received promotions while working at DSD.  In July 1992 DSD closed its Melbourne operations where Mr Hopwood was working and moved to Canberra.  Mr Hopwood reluctantly moved to Canberra for a short time but his family remained in Melbourne because of his children's education.  Mr Hopwood requested a return to Melbourne and was transferred to Watsonia where he was employed in the Safety, Rehabilitation, Redeployment and Compensation section of the Department of Defence from 1994 to 1996.  Mr Hopwood accepted a redundancy package in 1996.

12. Mr Hopwood took a position as a caretaker at a Hawthorn office block in 1997.  In the meantime, he undertook an Advanced Certificate in Horticulture at Burnley Horticultural College.  Mr Hopwood then conducted his own gardening business until December 2002.  At some stage Mr Hopwood worked a few days supervising people sitting exams but did not do so for long as he could not physically cope.  Mr Hopwood has not sought work since closing his gardening business in December 2002.

13. In a statement dated 26 March 2012, Mr Hopwood described his reason for closing down his gardening business as follows:

    …

    I operated my gardening business under the registered business name of “Brindabella Gardens Services”.  My duties at Brindabella involve gardening and maintenance tasks.  Many of the duties were physically strenuous.  I work at residential properties for individuals as well as at commercial premises (particularly through Real Estate Agents who were managing them). 

    Both the symptoms from my back and emphysema were gradually worsening and as a consequence I finally ceased work on 31 December 2002.  I gradually wound down my contracts over a period for about 12 months leading up to my cessation.  Initially I hoped that I would be able to cope with lesser duties but it became clear that even with the reduced duties I was not coping because of the symptoms from my back and emphysema.  The symptoms in my knees and ankles did cause me discomfort but were not incapacitating and played no part in my decision to cease work.

    For quite some time I took analgesics and anti-inflammatory medication to ease my back pain and the medications did provide some relief.  My emphysema, on the other hand, was not relieved by medication even though I used a puffer.  The puffer gave me no immediate relief.

    I was suffering nervous symptoms which are now relate to my post traumatic stress disorder.  Those symptoms were interfering with my sleep and the pressures of my work obligations were aggravating my emotional problems.  My psychiatric illness did not, however, contribute to my decision to wind down my business and then cease work.  The psychiatric illness was not diagnosed until after I had ceased work.

    I have suffered neck/shoulder pain for many years.  The symptoms were intermittent and they never interfered with my gardening tasks.

    …

    In addition to the gardening tasks I did undertake some work supervising year 12 examinations for the Education Department.  These duties were for two days over a period of about three weeks.  My lung problems caused me problems with those tasks because I had to leave the students on stairways because of difficulty climbing the stairs due to breathlessness.

    …

    My wife was diagnosed as suffering Alzheimer's disease about two years ago.  Her condition is being successfully treated and I am able to leave her in the house on her own.  Her condition had no impact on my ability to continue to be absent from home and/or work.

    But for the symptoms in my back and the breathing problems it had been my intention to continue working indefinitely.  I enjoyed work and the business was profitable.

14. In his oral evidence Mr Hopwood said that he was very reluctant to give up work at the end of 2002.  However, his back and breathing difficulties led to the decision.  Mr Hopwood said that when he stopped working he did not know he could apply for special rate.  His wife was still working at the time.  Mr Hopwood only found out he could apply for special rate in 2011. 

15. As part of his application for special rate, Mr Hopwood completed an employment questionnaire. In response to question four Why did you cease work? Mr Hopwood responded:

    ILLNESS.  BACK PAIN, STRESS, ANXIETY KNEE PAIN & NECK & SHOULDER PAIN

16. Mr Hopwood stated that he believes that the response above has led to a misunderstanding of his situation and a rejection of his application for special rate.  Mr Hopwood said that the Returned & Services League (RSL) delegate from whom he sought advice in relation to completing his application form asked him about his medical conditions at that time.  Mr Hopwood agreed that he had read the form before signing it. However, Mr Hopwood said he was feeling quite emotional when doing the paperwork for the claim and that this may have contributed to his response as to why he stopped working.  Mr Hopwood conceded that he was experiencing neck pain at the time of his application but that it played no part in his decision to stop working. 

17. Mr Hopwood stated that he is now aware that he had PTSD symptoms at the time he stopped work but at that time did not realise what his problem was.  Mr Hopwood said that he commenced his gardening business when he was 51 years old and thought he would continue to 65 years and beyond.  He said that he could not continue to do the work expected of him at the level he thought his clients should expect.  He described incidents that led him to decide he was no longer capable of operating at a professional level.  When asked if his wife's current medical condition was a factor in him stopping work, Mr Hopwood said it was not.

18. Mr Hopwood said his back condition is now worse than it was in 2002.  He said it is okay first thing in the morning but as the day wears on the pain increases.  He no longer tolerates wearing trousers with a belt for the whole day.  Mr Hopwood prefers to wear overalls as there is no pressure on his waist.  Even wearing socks hurts his feet.  Mr Hopwood has been advised that all of these symptoms arise from his back condition.  His sleep has also been affected.  Some days are worse than others.

19. Asked if he could undertake clerical work if he cannot do gardening, Mr Hopwood said that he can only sit for a relatively short period.  He is okay if he moves around.  Mr Hopwood said he has an exercise regime which he does first thing every morning.  He also attends the  Repatriation Hospital’s gymnasium where he works out under the supervision of an exercise physiotherapist three days a week. 

20. In terms of his language skills, Mr Hopwood said that his knowledge of languages is not current and he would have to do a refresher course to make use of his skills.

21. In his claim form, Mr Hopwood stated that he ceased employment in 2008.  The VRB hearing transcript indicates that Mr Hopwood gave evidence that he had stopped working in 2007.  Mr Hopwood told the Tribunal that he does not know why he would have given 2007 as the year he stopped work because the information is incorrect.  He reiterated that he had stopped working in December 2002. 

22. Mr Hopwood described the level of income he earned from his gardening business.  He was asked whether he had considered employing others to do the work that he was unable to do in his gardening business.  Mr Hopwood said he had not wanted to do so.  It was not his intention to run a profitable business but rather to get satisfaction from doing the gardening himself. 

23. Mr Hopwood was referred to the medical notes provided by Dr Conos and asked why there is no reference to back pain between April 2000 and August 2003.  There are a number of entries at later dates referring to back pain.  Mr Hopwood responded that he tended not to complain about his back or his breathing problems to his doctor.  He said his breathing problems were no worse now than they were when he closed his business.  Headaches were mentioned in the medical notes in February 1998 but Mr Hopwood believed they might have been a reaction to his medication. 

24. Dr Nigel Strauss provided a report dated 15 November 2012 to the Department of Veterans’ Affairs (DVA).  In his report Dr Strauss stated that he had little doubt that Mr Hopwood was suffering from a significant post-traumatic stress disorder caused by his experiences in Vietnam.  Apparently when asked about whether Mr Hopwood's PTSD prevented him from working, Dr Strauss stated:

    …

    You have asked me specifically whether his post traumatic stress disorder prevents him from undertaking remunerative work for more than eight hours per week or for more than twenty hours a week.

    I am not convinced that his post traumatic stress disorder has interfered with this man's work capacity over the years.  I believe that he coped with his employment including his gardening work and he only stopped his gardening work because of his emphysema and his back condition and he confirmed that in his statement and at interview.

    I therefore believe that this man is capable of working more than 20 hours per week from the psychiatric perspective and the reason why he does not work now is because of his wife's needs, his emphysema and his back condition.

    …

25. Dr Robyn Horsley, occupational physician, provided a report dated 31 October 2012 to DVA after examining Mr Hopwood on that day.  She pointed out, amongst other things, that Mr Hopwood's wife continued to work full-time until 2009.  Mrs Hopwood was diagnosed with dementia in 2010.  Dr Horsley stated that Mr Hopwood has been self‑funding cleaning services once a fortnight for five to six years and a gardener once per fortnight for two to three years.  Dr Horsley made comments on Mr Hopwood's various conditions including his non-accepted conditions and how they affected him.  In response to a prompt question asking whether Mr Hopwood’s accepted disabilities prevented him from undertaking remunerative work for more than eight hours per week or more than 20 hours per week, Dr Horsley stated:

    …

    Mr.  Hopwood would find it difficult to undertake the full critical physical demands of his role as a Gardener on the basis of his back condition alone.  His emphysema is a further issue.

26. Asked if there were any other physical disabilities which would prevent Mr Hopwood from undertaking remunerative work for more than eight or 20 hours per week, Dr Horsley stated:

    I do not believe that Mr.Hopwood’s cervical spondylosis or the osteoarthritis of both hands impact upon capacity for work on the basis of the clinical examination today.

    Mr Hopwood's Grave’s disease is under control.  He has not suffered from further migraines and his prostatomegaly has no impact upon capacity for work.

    Therefore I believe that Mr Hopwood's non-accepted conditions do not impact upon his capacity for work.

    I note however, that Mr.  Hopwood is 65 years of age which in itself is a barrier to returning to work, as are his now 10 years out of the work force.

    …  

27. Dr Conos stated that Mr Hopwood had been a patient at the practice since it started in 1995.  Dr Conos said that he had treated Mr Hopwood in 1995 in relation to his breathing difficulties.  He had also helped Mr Hopwood give up smoking.  The first time Dr Conos recorded Mr Hopwood having trouble with his breathing was in July 1997.  There is a specialist report concerning the condition in August 1997.  The medication which Mr Hopwood takes makes it easier to breathe but does not actually improve the condition.

28. In relation to Graves' disease, Dr Conos said the endocrinologist had advised that Mr Hopwood’s thyroid is no longer a problem. 

29. In relation to Mr Hopwood's neck and back problems, Dr Conos said that Mr Hopwood had been seeing a physiotherapist rather than his general practitioner.  He had apparently also used over‑the‑counter medication.  Dr Conos said he was concerned about the over‑the‑counter medication impacting on Mr Hopwood's blood pressure and so he changed his medication. Dr Conos said that Mr Hopwood's back pain is likely to be exacerbated by sitting or standing for a long period.

30. Under cross-examination, Dr Conos ran through the prescriptions and medical notes taken in the period 2001 to 2003.  Dr Conos said Mr Hopwood's breathing problems would have been the major problem at that time.  

    DO MR HOPWOOD'S ACCEPTED WAR-CAUSED CONDITIONS ALONE PREVENT HIM FROM UNDERTAKING RENUMERATIVE WORK? 

31. Section 24 of the Veterans' Entitlements Act 1986 (the Act) makes provision for payment at rates higher than 100 per cent of the general rate of pension:

    24(1)    This section applies to a veteran if:

    …

    (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…

    (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…

32. Both parties and the Tribunal agree that Mr Hopwood meets section 24(1)(a) of the Act.

33. In relation to section 24(1)(b) of the Act, the Tribunal is satisfied, based on the evidence of Dr Horsley, Dr Conos, various psychiatrists and Mr Hopwood himself, that Mr Hopwood is incapable of undertaking remunerative work for more than eight hours per week.

34. The parties disagree as to whether Mr Hopwood meets section 24(1)(c) of the Act. Section 24(1)(c) and its qualifying provision, section 24(2) state:

    24(1)    …

    (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…

    (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; and

    (b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.

35. In Flentjar v Repatriation Commission (1997) 48 ALD 1, Branson J set out the issues posed by section 24(1)(c) in a series of questions:

    1What was the relevant "remunerative work that the veteran was undertaking" within the meaning of s 24(1)(c) of the Act?

    2Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?

    3If 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?

    4If 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?

1. In respect of question 1, the Tribunal finds that the remunerative work undertaken by Mr Hopwood was gardener, caretaker, administrative officer and defence analyst.    

2. In respect of question 2, as stated above, there was evidence from several medical practitioners, including an occupational physician, psychiatrists and a general practitioner that Mr Hopwood is unable to work for more than eight hours per week on account of both his physical and psychiatric accepted disabilities.  The Tribunal finds that Mr Hopwood is prevented from working more than eight hours per week in any of his previous roles due to his accepted war-caused disabilities.  So the answer to question 2 is yes.

3. There are also other factors to be taken into account in relation to Mr Hopwood's employability apart from his accepted war-caused conditions.  The Tribunal notes the comments of Nicholson J in Forbes v Repatriation Commission (2000) 101 FCR 50:

   [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.  The fact that a non war-caused condition is not alone causative of such preventative effect does not prevent it having that effect in combination with the war-caused condition...

   [40] …it is possible that the war-caused condition will be by far and away the more dominant of the causes of the preventative effect where there is also present a non war-caused condition having such effect in combination.  The result is that the presence of the latter will deny to a veteran qualification for the special rate of pension...

4. In Repatriation Commission v Alexander (2003) 75 ALD 329 at 334, Spender J stated:

   [22] The test under s 24(1)(c) is not, "would Mr Alexander's war-caused conditions alone prevent him from undertaking the relevant remunerative work?", as the Tribunal indicated in 47 and 48 was the test it applied. As 48 in particular indicates, the tribunal concluded that if Mr Alexander did not suffer from war-caused difficulties, "he still would have been working". This is not the test for which s 24(1)(c) calls. It is whether war-caused conditions, alone, prevent the respondent from continuing to undertake remunerative work that he had been undertaking. It seems to me the Tribunal has not addressed the question of causation that s 24(1)(c) calls for, but has, in effect, applied the requirements of s 24(1)(b). The conclusion that "a combination of war service and non-war service related conditions preventing Mr Alexander from working is a non-issue" is simply wrong.  If the non-service related conditions were a factor in preventing Mr Alexander from continuing to undertake remunerative work, albeit those conditions were "of secondary importance", the "alone" requirement of s 24(1)(c) would not be satisfied.        

5. In Repatriation Commission v Hendy (2002) 76 ALD 47, the Full Court of the Federal Court stated:

   [37] The consideration of what a veteran would probably have done, absent the service disabilities, is a hypothetical exercise. The language of s 24(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's 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. So long as the tribunal performs this exercise, the conclusions drawn from the assignment of the relative impact the various factors on the ability of the veteran to continue in remunerative work is not reviewable, except in exceptional circumstances. Moreover, having 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. Error on the part of the Tribunal is determining whether the veteran's war-caused injury or war-caused disease is the sole determinant in the prevention of continued remunerative work is, similarly, not open to review.

6. Mr Purcell, appearing for the Commission, suggested that there were a number of other factors, not only Mr Hopwood’s accepted war-caused conditions, which warrant consideration when looking at the situation during the assessment period.  The assessment period commenced more than eight years after Mr Hopwood stated that he had ceased remunerative work.  Mr Hopwood conceded that he has not sought any work since December 2002.   

7. Mr Purcell suggested time out of the workforce and age are relevant factors to take into account as well as Mr Hopwood’s medical conditions.  Mr Purcell submitted that medical reports in the early 2000s referred to Mr Hopwood as retired. 

8. Mr Purcell submitted that there were no apparent financial imperatives for Mr Hopwood to work.  He did not have a young family.  He had also taken a number of overseas trips in recent years.  Mr Hopwood was able to afford business class although Mr Purcell conceded that this may have been for Mr Hopwood’s comfort given his medical conditions.

9. Mr Purcell suggested that in recent times, Mr Hopwood’s wife’s condition may also have deterred him from seeking work.  While Mr Hopwood had given evidence that he was able to leave his wife at home during the day, Mr Purcell argued that it was improbable that he would wish to do so regularly to re-join the workforce. 

10. Mr Purcell also questioned the lack of adequate explanation by Mr Hopwood as to why there was a five year difference in the dates given for ceasing work at earlier stages of the claim.  However Mr Purcell accepted that Mr Hopwood ceased working in December 2002.

11. Mr Larkin, appearing for Mr Hopwood, emphasised that Mr Hopwood was a man of truth who has not exaggerated his situation.  Mr Larkin acknowledged that Mr Hopwood had made errors, such as giving the wrong year for ceasing work.  Mr Larkin submitted that it does not matter if Mr Hopwood stopped in 2002 or 2007 as both were prior to the date of his claim in 2011.  Mr Larkin spoke of Mr Hopwood’s career in the Defence Force and his change of direction in the late 1990s to horticulture.  Mr Hopwood had moved from office work, to being a caretaker, to doing his course and setting up a small gardening business. Mr Larkin commented that, unfortunately, the dream ended unhappily by the end of December 2002.

12. Mr Larkin pointed out that Mr Hopwood had suffered from emphysema for a long period with its diagnosis being in August 1997.  He pointed to reports showing that Mr Hopwood had been wrestling with chronic airflow difficulties from the emphysema for five to six years before he gave up his business.  Mr Larkin also stated that Mr Hopwood was suffering from war-caused lumbar spondylosis but this was not accepted as war-caused until 2010, as Mr Hopwood had only applied to have the condition recognised in that year.  Mr Larkin conceded that back pain was not recorded in Dr Conos’ notes around 2000 and that there was no reference to the condition around 2002.  Mr Larkin pointed to Mr Hopwood’s evidence that he had been receiving physiotherapy treatment from about 1990 for his back condition.  In October 2003 Mr Hopwood had an MRI at his doctor’s request that showed up his back disorder.  Mr Larkin also pointed to Dr Horsley’s comments that Mr Hopwood's neck and hand conditions were not a factor in his stopping work. 

13. Mr Larkin acknowledged that Mr Hopwood had been out of the workforce for a long time.  He pointed out that during the assessment period Mr Hopwood still suffered from emphysema and his back complaint. 

14. In respect of question 3, Mr Hopwood has emphasised the impact of his accepted war‑caused conditions on his inability to work.  Mr Hopwood lodged the application which is the subject of this review in February 2011, more than eight years after he stopped working.  He was 64 years old at the start of the assessment period and is now 66 years of age.  It is now almost 11 years since Mr Hopwood stopped working and he has not undertaken remunerative work since lodging his claim. 

15. The Tribunal is not satisfied that Mr Hopwood's accepted war-caused disabilities are the sole factors that have prevented him from working for more than eight hours per week during the assessment period. The Tribunal is satisfied that Mr Hopwood had considered himself as retired for some years before he lodged the claim under consideration. Mr Hopwood conceded that he has not looked for work since December 2002.

16. The Tribunal is satisfied that Mr Hopwood’s accepted war-caused conditions were relevant factors in his cessation of work in December 2002. However, by the time his claim was lodged, there were other factors that were also relevant.  Dr Horsley pointed to Mr Hopwood’s time out of the workforce and age as being factors that would prevent him from obtaining employment, were he to have actually sought work during the assessment period.  The Tribunal agrees and finds that Mr Hopwood’s age and time out of the workforce have been relevant factors in his inability to continue to work during the assessment period.  Mr Hopwood has not tried to obtain any work since December 2002. 

17. The answer to the third Flentjar question is no. 

18. As indicated above, Mr Hopwood admitted that he had not looked for work since ceasing work in December 2002. Section 24(2)(b) is therefore not applicable in this matter.

19. Mr Hopwood fails to meet the criteria in section 24(2)(a) of the Act and therefore fails to meet section 24(1)(c) of the Act. He is therefore not eligible for payment of a pension at a special rate.

    DECISION

20. The Tribunal affirms the decision under review.

I certify that the preceding 55 (fifty‑five) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member.

[sgd]..............................................

K. Randall, Associate

Dated 19 September 2013

Dates of hearing	9 & 10 May 2013
Counsel for the Applicant	Mr A Larkin
Solicitors for the Applicant	Williams Winter
Counsel for the Respondent	Mr G Purcell
Solicitors for the Respondent	Advocacy Section (Vic) Department of Veterans' Affairs