May and Repatriation Commission (Veterans' entitlements)

This matter came before the Tribunal concerning Mr May's application for the Special Rate of pension under the *Veterans' Entitlements Act 1986* (VEA). The core of the dispute revolved around whether Mr May was prevented from engaging in remunerative work due to war-caused conditions, as required for the Special Rate. The Tribunal considered evidence regarding Mr May's extensive career in the Royal Australian Navy and subsequently in the merchant navy, where he served until 2002. He presented evidence of various health conditions, including sleep apnoea, neck pain, headaches, and a right shoulder condition.

The legal issue before the Tribunal was to determine if Mr May's incapacity to engage in remunerative work was solely attributable to war-caused conditions. This required the Tribunal to assess whether any other factors contributed to his inability to return to work, and if so, whether those factors, even if secondary, would preclude him from receiving the Special Rate. The Tribunal also had regard to the principle that "seeking" remunerative work, as referred to in section 24(2)(b) of the VEA, necessitates an honest attempt to engage in such work.

The Tribunal reasoned that while Mr May had experienced a shoulder injury, the evidence indicated it had healed after surgery and physiotherapy, and he did not believe it would prevent him from performing minor lifting or cleaning duties. His sleep apnoea was considered well-managed with a CPAP machine. Crucially, the Tribunal found that age and time out of the workforce were not preventative factors, citing expert evidence that the merchant navy industry did not discriminate based on age and that Mr May's qualifications and reputation remained in demand. The Tribunal also noted that Mr May and his wife had explored purchasing a motel but decided against it due to financial risk, a factor given equal weight to medical conditions by Mrs May.

Ultimately, the Tribunal was not satisfied that Mr May was prevented from returning to work solely due to war-caused conditions. However, after considering the specific circumstances, the Tribunal affirmed the reviewable decision of 12 April 2016, which maintained Mr May's pension at 100 per cent of the General Rate with the Extreme Disablement Adjustment from 3 February 2014.