KEVIN JORDAN and REPATRIATION COMMISSION

[2009] AATA 331

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 331

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/5029;

VETERANS' APPEALS DIVISION		)               2008/5031
Re		KEVIN JORDAN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr KS Levy RFD, Senior Member

Date12 May 2009

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

.................[Sgd].......................

Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Disability pension – Meaning of “remunerative work” – Main or chosen work, not last work, is relevant – War-caused disease not the only factor preventing veteran from continuing to undertake remunerative work – Special rate of pension not payable – Decision under review affirmed.

Evidence Act 1995 (Cth), ss 79, 135, 136

Veterans’ Entitlements Act 1986 (Cth), ss 5Q(1), 18, 19(9), 24

Banovich v Repatriation Commission (1986) 69 ALR 395

Birtles v Repatriation Commission (1991) 33 FCR 290

Cavell v Repatriation Commission (1988) 9 AAR 534

Flentjar v Repatriation Commission (1997) 48 ALD 1

Forbes v Repatriation Commission (2000) 101 FCR 50

Hill v Repatriation Commission [2000] FCA 929

Jackman v Repatriation Commission (FCA, unreported, No NG521 of 1996, 30 June 1997)

Leane v Repatriation Commission [2003] FCA 889

Magill v Repatriation Commission [2002] FCA 744

Milirrpum v Nabalco Pty Ltd (Gove Island Land Rights case) (1971) 17 FLR 141

Re Howieson and Repatriation Commission (2002) 72 ALD 272

Re Laugher and Repatriation Commission (1986) 5 AAR 382

Repatriation Commission v Hendy (2002) 76 ALD 47

Repatriation Commission v Van Heteren (2003) 75 ALD 703

Starcevich v Repatriation Commission (1987) 18 FCR 221

White v Repatriation Commission (2001) 114 FCR 494

REASONS FOR DECISION

12 May 2009 Dr KS Levy RFD, Senior Member            

INTRODUCTION

1.      Kevin Thomas Jordan, the applicant, applied for disability pension and compensation for medical treatment for a number of conditions on 28 September 2005.  Pension was assessed at 90% from 28 June 2005 in a decision dated 23 March 2006.  Subsequently, the Veterans’ Review Board decided that pension should be increased to 100% from 19 December 2006 in a decision dated 29 September 2008.  The applicant seeks review of that decision on the basis he should be entitled to the special rate of pension.

ISSUES

2.      An issue relating to the loss of teeth has been withdrawn.  The only issue now before the Tribunal is as follows:

·Is Mr Jordan entitled to pension at the special rate under s 24 of the Veterans’ Entitlements Act 1986 (“the Act”)?

EVIDENCE

3.      Mr Jordan gave oral evidence in support of his claim and his written statements, one of which was received by the Department of Veterans’ Affairs on 22 June 2006 and the other by this Tribunal on 20 January 2009.  He is currently 64 years of age and was 60 years of age when he made the application relevant to this matter.  He served with the Australian Army as a national serviceman from 30 June 1965 to 29 June 1967.  He served on operational service with 5RAR in South Vietnam from 6 May 1966 to 12 May 1967. 

4.      Prior to national service, Mr Jordan worked as a storeman for a large store in Melbourne and returned to that employment on discharge from the Army in 1967.  In 1968, he commenced employment as a telegraphist in training with the Postmaster General’s Department (“PMG”), later renamed Telecom, and subsequently obtained an administrative position there in 1975.  He remained in the clerical stream with that organisation until he accepted a redundancy in 1996.  Following his redundancy, he moved to Hervey Bay in Queensland and stayed there until 2000, at which time he moved temporarily to the Philippines.  He returned to Hervey Bay in 2004.

5.      His evidence was that following his return from national service, in 1967, he drank a lot and went to “girlie” bars in Asia as often as he could.  Indeed, from 1974 to 1975, he had 12 months leave, which he took on half pay so that the period of leave was longer.  He took the balance of that 12 month period as leave without pay.  He said he felt as though he needed a break at the time as he felt stressed.  He had adopted a pattern of taking his annual leave (and sometimes long service leave) in two or three smaller periods each year.  He almost invariably went to Asian destinations in these periods.

6.      While he worked at PMG/Telecom, he fell in with a drinking crowd.  His was a 24 hour a day job and the Post Office Hotel was just across the road.  It was a convenient place to have a drink and he could always find someone from his work in there drinking.

7.      Mr Jordan gave evidence that he had a long-term pattern of drinking at the time of his redundancy in 1996, and that he was agitated and would go to the hotel at lunch-time and not return to work on some days.  He would also drink at nights. In cross-examination, he told Mr Kelly for the respondent that his redundancy occurred just before Telecom became Telstra.  He and a number of other staff were offered redundancies during a time of organisational restructure.  In this process, he was offered a position in another work area, but he chose the offer of redundancy as he did not want to be “stressed”.  He moved from Melbourne to Hervey Bay.  There, he would spend time at home watching TV and drinking “home brew”.  He said he “didn’t do a lot really” during that period.

8.      Mr Jordan told the Tribunal he did not look for work after being made redundant and moving to Hervey Bay because he made his own beer and enjoyed trips to Asia a couple of times a year.  He had a payout and a small pension to maintain his lifestyle.

9.      Some four years after his redundancy, he moved to the Philippines and resided there for almost four years, from 2000 to 2004.  He drank regularly in a number of bars including “Shanos Bar”, which was in a “red light area”.  The night manager there offered him the role of being a “meeter and greeter”.  This was initiated by the bar manager and the purpose of this was to enable the bar manager to have some time off.  Mr Jordan said he accepted this role, which was to introduce patrons to girls in the bar.  He would work up to 12 hours a day, three days a week.  He was not remunerated in cash but was permitted to have free drinks during those periods.  His behaviour was objectionable at times and following complaints about him, he was ultimately told to leave and that this role was no longer available to him. He conceded that he did not have a work permit to work officially in the Philippines.

10.     While in the Philippines, in 2003, he met a lady whom he has since married.  She and her two children have now emigrated to Australia and live with Mr Jordan.  In the Philippines, they lived together for a time but she told him she did not want to live in a “red light area”.  She was a nurse and warned him about his level of drinking and its effect on his health.  He was still working as a “meeter and greeter” in June 2003 but knew he would lose his job shortly.  In relation to that period, Mr Jordan said he was dependent on his wife for his dress and meals and that his alcohol consumption was very excessive.  He has not looked for work since returning to Australia.

11.     Mrs Jordan gave corroborating evidence of Mr Jordan’s drinking behaviour in the Philippines.  She stated that her evidence was given truthfully and that she had not been influenced or pressured by the applicant in any way to give evidence of convenience for him.

12.     A written statement by Frank Herbstreit was in evidence[1].  He observed Mr Jordan’s drinking in the earlier part of Mr Jordan’s government service.  He later left Telecom but continued contact with Mr Jordan and “had a drink” with him in his later years of service.  He noted that Mr Jordan was often difficult after he had been drinking.  Also in evidence was a statement by Mr Stephen Nicoll, a former supervisor of Mr Jordan, who observed a similar pattern of behaviour caused by drinking[2].

[1] T-4, folio 263.

[2] Exhibit 4.

13.     Medical evidence was also available to the Tribunal.  Mr Jordan said that while in the Philippines, an American he met there suggested that Mr Jordan might have “shellshock”.  He saw Dr De Los Santos in the Philippines, who prescribed Prozac.  Mr Jordan said this gave him a dry mouth and so he discontinued that medication.

14.     He returned to Australia in 2004.  In 2005, he went to the Vietnam Veterans’ Association of Australia.  He then approached the Department of Veterans’ Affairs and was sent to see Dr Eldridge, psychiatrist.  He later saw a doctor in Bundaberg (Dr Denton) and then consulted him every two months.  He now sees Dr Jenkins, psychiatrist, and gets regular prescriptions from his general practitioner, Dr Potter.

15.     A report by Dr Oelrichs, psychiatrist, of 27 February 2005 was in evidence[3].  That report provides an account of the applicant’s description of his service in South Vietnam and of a car accident 18 months after returning from South Vietnam caused by his drink driving.  He spent some 14 weeks in hospital as a result of this accident and was charged by the police, but the matter was “dismissed” because of a legal technicality.  According to the report, he did not have flashbacks (except around ANZAC Day).  He did not drive a car for 30 years but had just started driving again.  His appetite and weight were described as stable and he exercised by walking in the mornings.

[3] T‑4, folio 53.

16.     Dr Oelrichs also said that Mr Jordan described himself as lacking “significant social skills”.  She noted that his mood was depressed, there was no suicidal ideation, “[h]is thought possession and form were normal” and “there were no perceptual abnormalities”.  His memory was “intact”.

17.     Dr Jenkins also provided a report of Mr Jordan’s disability rating, dated 16 January 2006[4].  He updated that report in a report dated 16 May 2008 in which he states his opinion that Mr Jordan could not work eight hours a week due to his accepted conditions[5].

[4] T-4, folio 103.

[5] T-4, folio 262.

CONSIDERATION

18. I have taken into account all of the evidence, statutory law and case authorities relevant to deciding this matter. Section 18 of the Act imposes a duty on the Tribunal to be satisfied about all matters relevant to making a determination.

19. Section 24 of the Act is of central importance to determining the issue here. Sections 24(1)(aa), (1)(aab), (1)(a), (1)(b) and (1)(d) of the Act are all satisfied, and the respondent does not contest those provisions. The main statutory provision in contention is s 24(1)(c) of the Act.

20. Section 24(1)(c) of the Act requires that the applicant must:

1be prevented from continuing to undertake remunerative work that he was undertaking, because of his war-caused disease (alone); and

2“by reason thereof” (ie of point 1, above), be suffering a loss of salary or wages which he would not have incurred if he was “free of that incapacity”.

21. Those two requirements of s 24(1)(c) are amplified in s 24(2)(a) of the Act. The applicant will not satisfy the two requirements if either of the following two provisions of the Act are made out:

·Section 24(2)(a)(i) – he ceased to engage in remunerative work for reasons other than his incapacity from war-caused disease; or

·Section 24(2)(a)(ii) – if he is “incapacitated, or prevented, from engaging in remunerative work for some other reason” (this is relevant to point 1 of paragraph 20, above).

22. In respect of the requirements of s 24(2) of the Act, the applicant says he is unable to undertake remunerative work for more than eight hours per week. There is medical evidence to support this.

23. The approach to analysing the two requirements of s 24(1)(c) of the Act was set out by the full Federal Court in Flentjar v Repatriation Commission[6], where it was said that the war-caused disabilities must be the only factors which prevent a veteran from continuing to undertake remunerative work.  The Court then set out four questions (“the Flentjar questions”) to be assessed as follows:

“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 question 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?”

[6] (1997) 48 ALD 1 at 4-5.

24.     In relation to the first Flentjar question, s 5Q(1) of the Act defines “remunerative work”. The definition says it “includes any remunerative activity”. This implies it is not an exhaustive definition. Consequently, “remunerative work that the veteran was undertaking” is intended to refer to the type of work the veteran undertook, not necessarily the last remunerative work the veteran had undertaken[7].

[7] Magill v Repatriation Commission [2002] FCA 744.

25.      The respondent argues that the unpaid work in the Philippines as a “meeter and greeter” in a bar was not remunerative work.  He says if it was, there is no evidence that the applicant could not continue drinking and talking for in excess of eight hours per week.  The applicant’s counsel pointed to the applicant’s estimate that he would have drunk up to the equivalent of $300 per week in alcohol while working in the bar and stated this consumption should be regarded as income.

26.     Mr Kelly referred me to White v Repatriation Commission[8], where it was held that work could be “remunerative” if payment was made in “goods and services”.  In that case, Conti J said a professionally qualified accountant who provided professional taxation services “in return for the provision without monetary charge, of goods and services in specie” could be regarded as undertaking “remunerative work”.  That was a case of an accountant who ceased professional work because of war-caused ill health and started a goat farm.  He later had to cease that farming and returned to his professional occupation by completing clients’ taxation returns.

[8] (2001) 114 FCR 494 at 504-505 [28].

27.     That case is distinguishable from the present one, in which the applicant has 28 years of clerical work in a government organisation and a demonstrated pattern of drinking in working hours and no other experience or formal qualifications.  The respondent argues that the applicant could continue to “meet and greet” (or talk and drink) for more than eight hours per week.  However if that is to be regarded as remunerative work, regard must be had to the fact that, by 2004, the applicant was dysfunctional and relied on his wife to some degree for certain aspects of life management, particularly dress and meals.

28. However, the critical assessment period is that “starting on the application day and ending when the claim or application is determined”: s 19(9) of the Act. In that period, remunerative work must be that which is the “main or chosen” work and not the “last” remunerative work: Banovich v Repatriation Commission[9]. This assessment must not be viewed in a sense which is too narrow. Because the Act is beneficial in nature, it should be given a literal interpretation subject to the construction of words in the statute. Generally speaking, the Act is concerned with war-caused incapacity preventing an applicant from “continuing” to undertake a form of remunerative work in which the person had been previously engaged (and which was not short-term work): Birtles v Repatriation Commission[10].

[9] (1986) 69 ALR 395.

[10] (1991) 33 FCR 290.

29. Section 24(1) of the Act was not intended by Parliament to encompass a situation where a veteran ceases work and then raises a claim for special payment 10 years later: Starcevich v Repatriation Commission[11]. Yet, such is the situation here.  The present matter differs from cases such as White v Repatriation Commission[12] in that the work alleged to be remunerative work was largely to obtain free alcohol, rather then “continuing” to engage in remunerative work that Mr Jordan had previously undertaken.  Therefore, I would regard the “remunerative work” for Mr Jordan as being administrative work.  I reject the contention that work in the bar in the Philippines was remunerative work.

[11] (1987) 18 FCR 221.

[12] (2001) 114 FCR 494.

30.     In relation to the second Flentjar question, the issue is whether Mr Jordan is prevented from continuing to undertake remunerative work because of a war-caused injury or war-caused disease, or both of these.  The applicant argues that his war‑caused disease prevents him from continuing to undertake remunerative work.  The respondent has not demurred in relation to this aspect and acknowledges evidence that Mr Jordan was a heavy drinker.  I accept that the applicant satisfies the requirements of this question.  I therefore answer question 2 as “yes”.

31.     The third Flentjar question establishes the “alone test”.  It does so by looking to whether the war-caused injury and/or disease is the only factor preventing Mr Jordan from continuing to undertake the type of remunerative work determined in the first Flentjar question.

32.     To show that the war-caused injury or disease is the only factor preventing such remunerative work, the veteran must have been genuinely seeking such work and been unsuccessful because of war-caused injury or disease “alone”.  The true task of the Tribunal is “to make a practical decision whether the veteran’s loss of remunerative work is attributable to his service-related incapacities and not to something else as well”: Cavell v Repatriation Commission[13].  There, Burchett J also referred to the decision being one which should be made “with an eye to reality, and as a matter in respect of which common sense is the proper guide”.

[13] (1988) 9 AAR 534 at 539.

33.     It is clear, however, that where a non war-caused condition is also a contributing factor in preventing a veteran from continuing to undertake work that he had previously undertaken (in this case administrative work, as determined in the consideration of the first Flentjar question, above), the veteran cannot satisfy the legislative test in s 24(1)(c) of the Act[14].  That position was affirmed by the Full Court of the Federal Court in Repatriation Commission v Hendy[15], and has been followed in Leane v Repatriation Commission[16].

[14] Forbes v Repatriation Commission (2000) 101 FCR 50.

[15] (2002) 76 ALD 47.

[16] [2003] FCA 889.

34.     Ms Frizelle, for the applicant, referred me to the reports of Dr Oelrichs and Dr Jenkins.  Dr Jenkins’ report of 16 May 2008 was to the effect that Mr Jordan does not have the capacity to work more than eight hours per week.  Mr Kelly argues that the applicant was offered the alternatives of another position or a redundancy at the time of significant organisational changes at Telecom in the 1990s.  While the statements of Mr Nicoll and Mr Herbstreit described Mr Jordan’s excessive drinking and workplace inefficiency, Mr Kelly argues there was no suggestion that his job was “in jeopardy”.

35.     The assessment of this question must be undertaken at the date of the application, not the date of retirement[17].  This is because there is no presumption that the reason for cessation of work (at the date of cessation), for war-caused injuries alone, will remain extant at the date of application[18].

[17] Banovich v Repatriation Commission (1986) 69 ALR 395.

[18] Jackman v Repatriation Commission (FCA, unreported, No NG521 of 1996, 30 June 1997).

36.     There may be clinical treatments which, if availed of, might remedy some or all of the war-caused disability which prevents a veteran from continuing to work.  However, there is no evidence of such treatments here.  Dr Oelrichs in her report of 27 February 2005 refers to the cessation of work in 1996.  She says that “[a]t this time from his description it appears he had suffered from panic attacks.  These have been investigated and he has been diagnosed as having hypertension.  He has not received any ongoing psychological follow up following this”[19].

[19] T-4, folio 59.

37.     But the substantive issue in question 3 is concerned with whether the applicant satisfies the “alone test”.  In Hill v Repatriation Commission[20], a case to which both counsel referred me, the Court outlined the Tribunal’s task in a case of a public servant made redundant in similar circumstances to the instant case.  Similarly to Mr Jordan’s position, there was evidence of an applicant asserting the inability to cope with his position.  Wilcox J said:

“The Tribunal was not bound to accept this statement at face value.  It was entitled to consider for itself whether this was, indeed, the reason why Mr Hill accepted the redundancy package.  If it did … the Tribunal was required to consider whether it was probable that Mr Hill, absent the war-caused disabilities, would still have been engaged in this type of work at the date of his Special Rate pension application seven years later”. 

[20] [2000] FCA 929 at [38].

38.     I have considered cases referred to me by the parties’ legal representatives[21].  The evidence in the present case shows a pattern of work life from the mid-1970s when Mr Jordan was approximately 30 years of age, and of frequent travel to Asian destinations and visiting “girlie” bars.  Mr Herbstreit’s statement corroborates Mr Jordan’s drinking in earlier years of service with PMG/Telecom and again later in his service (after Mr Herbstreit was no longer employed there but gave the applicant advice and also “had a drink” with him).  Mr Nicoll provides a similar statement regarding the latter part of Mr Jordan’s service.  He was Mr Jordan’s supervisor and explained that Mr Jordan was difficult; he implied, rather than directly stated, that Mr Jordan was inefficient on days he went drinking in the lunch hour.  Whether he was inefficient overall is not known but either Mr Nicoll’s management style was not effective (as suggested by Ms Frizelle’s submissions on the basis that Mr Jordan admitted “sneaking out” in working hours) or it was a cultural norm. There is no evidence that Mr Jordan’s performance was sufficiently inefficient to warrant dismissal.  Neither Mr Herbstreit nor Mr Nicoll were called to give evidence in chief or to be cross-examined.

[21] ReLaugher and Repatriation Commission (1986) 5 AAR 382; Re Howieson and Repatriation Commission (2002) 72 ALD 272.

39.     Mr Jordan acknowledged he was offered another position in lieu of redundancy.  He accepted the redundancy because the nature of the proposed position was such that he would not be able to “sneak out” to drink.  This decision was clearly due to a preference of Mr Jordan and not a clinical assessment by a doctor.

40.     It is apparent that Mr Jordan’s drinking after he left Telecom became even more frequent.  He moved to Hervey Bay and did not seek work.  He sat at home and drank “home brew”.  After approximately five years, he moved to the Philippines for about three years where his only real interest was being in bars in “red light areas” and drinking alcohol.  He undertook a role in “Shanos Bar” relieving the manager, and was to “meet and greet” visitors to the bar and hopefully introduce them to girls working there.  He was not paid and did not have a working visa but was allowed free alcohol while performing those tasks.

41.     In 2005 Dr Oelrichs believed, on the basis of the medical evidence, that Mr Jordan then satisfied the criteria for posttraumatic stress disorder (“PTSD”) and that he had alcohol dependence secondary to that condition.  Dr Oelrichs described a “potential diagnosis of a social phobia which may be associated with his war service or it may be separate from his war service, however this is very difficult to attribute to either”[22].  At the time of her report in 2005, Dr Oelrichs thought it was unlikely his rehabilitation could lead him to be able to return to work.  Dr Oelrichs’ report provides some insight as to Mr Jordan’s clinical condition at the time of cessation of work.  He suffered from “panic attacks” about the time he left Telecom.  Depression seems to have occurred since leaving work: Dr Oelrichs said “Mr Jordan appears to have suffered from a depressive episode since leaving his government service in approximately 1996”[23].  His psychiatric condition has clearly deteriorated significantly since his cessation of work.

[22] T-4, folio 59.

[23] T-4, folio 59.

42.     Dr Jenkins provided a later report of 16 May 2008 attributing, in his opinion, the cessation of employment to increasing symptoms of the condition of PTSD and alcohol abuse, which have since been accepted by the Department.  He also stated in that report that Mr Jordan could not work eight hours per week.  Expert opinion is of course admissible[24] but it may be excluded or of limited use if its probative value is substantially outweighed by a risk of it being unfairly prejudicial to a matter[25].  I find Dr Jenkins’ opinion less informative than that of Dr Oelrichs’.  Dr Jenkins’ evidence is admissible but I have attributed less weight[26] to it, relative to the evidence of Dr Oelrichs.  Dr Oelrichs evidence was much more comprehensive and allowed the Tribunal to understand the reasoning for her conclusions.  I might add neither doctor was called to give evidence or to be cross-examined at the hearing. 

[24] Section 79 of the Evidence Act1995.

[25] Sections 135 and 136 of the Evidence Act1995.

[26] Milirrpum v Nabalco Pty Ltd (the Gove Island Land Rights case) (1971) 17 FLR 141.

43.     I have considered carefully and at length the fact that Mr Jordan experienced operational service as an infantryman and has had long-term difficulties in managing his addiction to alcohol.  But is his present condition due to his war-caused disabilities alone?  The difficulty in cases such as this is the necessity to attribute, retrospectively, causality for a present condition.  This difficulty is heightened by Mr Jordan having had some coping problems but being able to work for over 30 years.  I note that although he told Dr Oelrichs in 2005 that he “could not communicate with women properly”[27], he had difficulty when women first were integrated into PMG.  This would have been in his mid 20s to early 30s.  Dr Oelrichs also posited a potential diagnosis of social phobia to describe some of the history Mr Jordan provided, but said it was difficult to attribute social phobia to his war service or to a reason separate from his war service[28].  There is no dispute that Mr Jordan cannot now work based on the standard of proof of “reasonable satisfaction”. 

[27] T-4, folio 55.

[28] T-4, folio 59.

44.     Despite being a heavy drinker, often during work hours, there is evidence that Mr Jordan had an alternative position made available to him at the time of his redundancy from Telecom.  That he did not accept that position is not, on the evidence, explicable for reasons that he was incapable of “continuing” to undertake remunerative work.  Apart from his pattern of drinking and his disruptive behaviour at work after he had been drinking, there is no evidence of not coping at work when sober, excessive sick leave or any other similar indicia.  What, on the evidence, appears to be Mr Jordan’s preference for drinking, often alone, and his discomfort in communicating in female company over the majority of his career were, in my opinion, relevant to and had a significant impact on his decision to cease work and to not seek work again. That is consistent with my observations of his demeanour in giving evidence, and with the evidence as a whole.

45.     In the final analysis, including consideration of the test set out by Wilcox J in Hill v Repatriation Commission[29], I am not convinced that the “alone” test is satisfied.  But even if it was, the applicant’s work routine, the classification attained over a lengthy career and his preference when on leave to go to bars in Asia does not indicate that, absent his war-caused disabilities, he would have been motivated to still be engaged in remunerative work of an administrative nature almost a decade after he accepted a redundancy.  Although Mr Jordan’s condition over the passage of the past 12 years or so has been aggravated by his lifestyle and excessive drinking and may now be sufficient to prevent him from “continuing” to engage in his previous remunerative work of an administrative nature, I determine on the evidence that this inability is not caused by his war-caused condition “alone”, which is the statutory test[30].  The answer to the third Flentjar question is therefore “no”.

[29] [2000] FCA 929.

[30] Repatriation Commission v Van Heteren (2003) 75 ALD 703; Leane v Repatriation Commission [2003] FCA 889.

46.     Question 4 of the Flentjar hierarchy need not be addressed given that question 3 is answered in the negative.

47.     In the circumstances, as the “alone test” is not satisfied, the applicant cannot succeed in the application for the special rate of pension.

48.     The decision under review is affirmed.

certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy RFD, Senior Member.

Signed: ..............................[Sgd]..............................................
  Mátyás Kochárdy, Research Associate

Date of Hearing  15 April 2009
Date of Decision  12 May 2009
Counsel for the Applicant         Ms A Frizelle   
Solicitor for the Applicant          G Couper Solicitors
Solicitor for the Respondent     Mr J Kelly, Departmental Advocate