McCool and Repatriation Commission (Veterans' entitlements)

[2017] AATA 1071

McCool and Repatriation Commission (Veterans' entitlements) [2017] AATA 1071 (10 July 2017)

Division:VETERANS' APPEALS DIVISION

File Number(s):      2015/2058

Re:James McCool

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Deputy President Dr P McDermott RFD

Dr Graham Maynard, Member

Date:10 July 2017

Place:Brisbane

We affirm the decision under review.

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Deputy President Dr P McDermott RFD and Dr Graham Maynard

CATCHWORDS

VETERAN’S ENTITLEMENTS – Rate of pension – Whether Applicant eligible for special rate – Whether Applicant eligible for intermediate rate – Consideration of “Alone test” in ss 23 and 24 – Medical evidence insufficient to satisfy alone test – Applicant not entitled to payment at the special rate or intermediate rate – Decision under review affirmed

LEGISLATION

Veterans’ Entitlement Act 1986 (Cth) ss 19, 23, 24, 28, 120

CASES

Repatriation Commission v Watkins [2015] FCAFC 10

Repatriation Commission v Richmond (2014) 226 FCR 21

Repatriation Commission v Hendy (2002) 76 ALD 47

Repatriation Commission v Butcher (2007) 94 ALD 364

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

10 July 2017

INTRODUCTION

1. On 28 August 2013, the applicant lodged a claim for an earnings-related rate of pension.

2. On 15 October 2013, a delegate of the respondent made a decision to increase the disability pension of the applicant to 100% of the general rate with effect from 28 August 2013.[1] On 11 March 2015, the Veterans’ Review Board (“VRB”) affirmed this decision.[2]

   [1] Ex A T19, p. 138-142

   [2] Ex A. T2

3. On 27 April 2015, the applicant made an application to this Tribunal for a review of that decision.[3]

   [3] Ex A, T1

   BACKGROUND

4. The applicant injured his back in 1969 while serving as a cook in the Royal Australian Air Force (“RAAF”).[4] Until his discharge from the RAAF in 1974 the applicant continued his duties as a cook.

   [4] T22 p. 152-153

5. The applicant has two medical conditions that have been accepted as attributable to his service in the RAAF, namely: bilateral sensorineural hearing loss and lumbar spondylosis.[5]

   [5] T19 p. 140-141

6. The applicant worked as a taxi driver from 1997 to 2010 and then from 2011 to on or about 22 February 2013 he worked 15 to 35 hours per week as a traffic controller.  On 21 March 2013 he resigned from his position and has not worked since his resignation.[6]

   [6] T24 at p. 206

   MEDICAL EVIDENCE

   Wesley Hospital Back Rehabilitation Program

7. The applicant attended at a Back Rehabilitation Program at the Wesley Hospital from 7 January to 18 January 2013.[7] The report of his attendance contains recommendations from Dr William Ryan, Orthopaedic Surgeon/Rehabilitation Physician, Marty Kelly, Physiotherapist, Robert Isaac, Accredited Exercise Physiologist and Julie-Anne Brennan, Occupational Therapist. Each physical health professional recommended the continuation by the applicant of flexibility and stretching exercises.

   [7] Exhibit D, Back Rehabilitation Program Comprehensive Report dated 18 January 2013 pp. 1-7

8. Dr Ryan signed off on the recommendations on the front page of the report from the Back Rehabilitation Program that the applicant maintain a self-management exercise regime incorporating stretching, stability training, strength training and cardiovascular exercise aimed at continuing to improve flexibility, postural stability, strength and fitness. It was also recommended that the applicant continue to have his exercise program monitored by an exercise physiologist to ensure exercise adherence and continued functional progression.

9. Mr Isaac recommended that an exercise physiologist continue to monitor the exercise program to ensure exercise adherence to the program and continued functional progression. Mr Issac recommended that the applicant continue with the home exercise program he was issued on discharge and that he should aim to perform his strength training 2-3 times per week, stretch and stability exercises every day and walk (cardio) at least 3-5 times per week.

10. Ms Brennan recorded the results of the “The Brief Pain Inventory” and the “Oswestry Low Back Pain Disability Questionnaire” conducted on admission and discharge from the program.  Ms Brennan remarked that the applicant’s “performance on the program, his physical tolerances and manual handling capacity indicate that his current functional tolerances meet the physical demands of his job as a traffic controller”.[8] Ms Brennan recorded that the applicant stated that “he will be resuming his usual work duties following completion of the Back Program” and that the applicant stated that “he was motivated to return to work”. Ms Brennan recommended that there be a regular exercise program to “increase his functional tolerances for work and his activities of daily living” and there be a “return to work on usual duties following completion of the Back Program”. Ms Brennan recorded that the applicant was a traffic controller who was working for 25 hours per week.

    [8] Ibid at p. 5

11. The report contains a number of conclusions based on the achievement of a reduced percentage in back pain disability:

    ·“The decrease in percentage indicates Mr McCool feels less limited with daily living tasks since attending the program.”

    ·“Mr McCool reported a decrease in the impact of pain in his daily life.”

    ·“On discharge Mr McCool felt he was capable of Sedentary work.”

12. These reports were completed some two months before the applicant resigned from work and in none of the reports was there any suggestion that the applicant was unfit for work. Under cross-examination, the applicant disagreed with the findings and recommendations of the health professionals contained in the report from the Back Rehabilitation Program.

    Dr Martin Wood, Neurosurgeon

13. On 22 July 2013 Dr Wood reported to Dr Amanda Reilly, Reilly Orthopaedic Surgery, as follows:-

    “Stewart has a markedly reduced range of movement in the lumbar spine but no abnormal neurological findings.  He is unable to have an MRI scan on account of some metallic implants in his middle ear but a CT scan doesn’t show too much about which to be concerned.  He has some minor facet joint disease at L3/4 and L4/5 but spinal alignment is normal.  Disc height is well preserved and there are no significant disc bulges or evidence of neural entrapment.

    I am not sure what is causing back [sic] to the severity that Stewart reports, but there is not a surgical solution to it. I have suggested that he remains under the care of Dr Rowan for appropriate pain management and that he steers clear of any spine surgery.”[9]

    [9] Exhibit D, Letter of Dr Martin Wood to Dr Amanda Reilly dated 22 July 2013

14. Dr Wood in his report that was received by the Department on 12 August 2013 made the following observation: “CT- lumbar spine - no significant abnormality to account for symptoms. No MRI possible due to metallic implants.”[10]

    Dr Christian Rowan

    [10] Exhibit A, T-documents, T16 at p. 117

15. Dr Rowan was called to give evidence. Dr Rowan is a Fellow of the Chapter of Addiction Medicine of the Royal Australasian College of Physicians. Dr Rowan in his reports dated 19 February 2016 and 25 June 2016 has stated that the applicant suffered from two spinal conditions namely lumbar spondylosis and intervertebral disk prolapse. In both reports Dr Rowan he stated that the applicant was unable to do any work because of the pain in his back and his restrictions on mobility.[11]

    [11] Exhibit C

16. During cross-examination Dr Rowan stated that he had no qualifications in orthopaedic medicine and did not appreciate that disc prolapse may be part of the pathology of lumbar spondylosis. Dr Rowan also stated that he had no formal qualifications in pain management.

17. Dr Rowan was asked to comment on Associate Professor Outerbridge’s report in which Professor Outerbridge made reference to “abnormal illness behaviour” of the applicant. Dr Rowan did not agree with Professor Outerbridge’s comments as he had not witnessed this from the applicant himself. Dr Rowan also made reference to the essential tremor of the applicant in his report dated 25 June 2016 only to say that the tremor did not prevent him from working in any significant manner.

    Associate Professor Outerbridge, Orthopaedic Surgeon

18. Professor Outerbridge performed a comprehensive examination of the applicant including a history examination and review of CT Scans.  He answered a number of specific questions asked of him as an independent examiner. His report dated 23 October 2014 was admitted into evidence.[12]

    [12] Exhibit A, T-documents, T24 at pp. 209-221

19. In his report Professor Outerbridge gave his opinion that the applicant most likely sustained a musculoligamentous strain to the lower back at the time of the described injuries whilst serving in the RAAF and that it was unlikely that these injuries contributed significantly to the development of lumbar spondylosis.

20. Professor Outerbridge recorded an extensive work history and recorded in detail the then current symptoms[13]:

    Mr McCool gets around using a cane in his right hand

    Mr McCool describes constant pain throughout the whole of the lumbar spine.  This pain is centred in the midline and radiates laterally into the flanks. Intermittently the pain will extend downwards into both buttocks but not beyond.

    Mr McCool does not experience increased pain in his back whilst coughing or straining.

    …he underwent an image-guided injection of local anaesthetic and cortisone into the facet joints of L5/S1 [in March 2012] and … into the facet joints at L4/L5 [in July 2012]. Neither of these… provided any relief.

    [13] Ibid at p. 211-212

21. Professor Outerbridge further outlined that the applicant “has been an avid bowler for many years”[14] but now is “unable to bowl”[15]. The report states the current situation as follows:

    He is… able to do the washing, do the dishes [and]… the ironing as long as he is able to sit…. to sweep, mop and clean… aggravate his back.

    He can drive his car for an hour.  He does the grocery shopping.  Climbing more than one flight of stairs aggravates his back symptoms.  At his home there are fourteen steps to get up and down.  He finds he is able to manage these stairs with only minimal discomfort to his back.

    [14] Ibid at p. 211

    [15] Ibid at p. 212

22. Professor Outerbridge examined the applicant’s gait, posture, calf lifts, range of neck movement, shoulders, spinal tenderness and flexibility but was unable to test for power in the lower extremities because of complaints of pain in the back when attempts were made to stress the joints of the lower limb. In Professor Outerbridge’s opinion most recent CT Scans show evidence of mild degenerative changes consistent with age.

23. In response to specific questions Professor Outerbridge gave his opinion in the report that the applicant suffered mild spondylosis at all levels of the lumbar spine. Professor Outerbridge reported that the recent CT Scans do not show any evidence of herniation of any disc in the lumbar spine and that there is no extrusion of the vertebral disc into the vertebral canal. Professor Outerbridge considered that the applicant does not suffer any condition in his spine other than lumbar spondylosis.

24. Professor Outerbridge in giving evidence reiterated the opinion that he expressed in his report that from examination of then recent CT scans that the applicant has evidence of mild degenerative spondylosis which is consistent with the applicant’s age. In the report he states that these radiological changes would not lead to significant restrictions of his capacity to carry out his normal working duties. Professor Outerbridge stated that he was not aware of any other condition that would restrict his capacity to work. Professor Outerbridge remarked that the applicant’s symptoms appear to be far in excess of what one would expect considering the mild degenerative changes seen on his CT scan.

25. Professor Outerbridge further discussed “abnormal illness behaviour” to which he referred in his report. Professor Outerbridge explained that he referred to a technique used by some doctors to apply tests which actually do not stress those parts of the spine from which one might expect pain to arise; usually patients do not respond with pain to these tests. Professor Outerbridge referred to two of these tests in his evidence:

    “He had very little core inflexion, couldn’t core reflect [sic] to his feet, just touch the thigh.  The same thing with his lateral bending.  While lying supine on the examining table be was only able to straight leg raise to about ten degrees, and there was no evidence of (indistinct), despite being able to flex his hips - and he was only able to reflect his hips 60 degrees.  Now that would be unusual, because usually once you flex at the knee the tension on the nerve is markedly diminished, and you’re able to flex the hips fully, and then he was able to sit - also sit in the chair quite comfortably with his hips flexed to 90 degrees.  So in other words, he was able to sit comfortably with his hips and knees flexed at 90 degrees, but on the examining table, when I was examining for his back condition, he was only able to flex his hips, and with the knee fully flexed he was only able to flex his hips to about 60 degrees, which I felt was quite unusual…

    He also had to do a rotation test, where you get them to rotate the dorsal and you hold the pelvis rigid, and they rotate their torso, and they rotate 20 degrees to both the right and left side, so then when you put - when you clasped his hands against his thighs and you rotate his (indistinct), you know, where he’s not got any rotation to the torso, he once again complained of pain if he rotate more than 20 degrees.  In other words, you take the rotation of the spine out of the equation, he’d still have pain…

    So that’s another unusual finding?‑‑‑That’s another unusual finding, yes.”

26. Professor Outerbridge was asked about the reliability of CT scans in re-examination and he explained that CT scans give good images of hard tissue, like bone, but not soft tissues, like discs, which show themselves as shadows.  Professor Outerbridge remarked that MRIs gave very good images of soft tissues but the applicant was unable to have an MRI because of the metal implants in his ears. Professor Outerbridge was asked if CT scans could miss something and he again remarked that they could not pick up soft tissues so something may be missed. Professor Outerbridge remarked that the vertebral bodies and discs which are the source of lumbar spondylosis can be seen and the two scans were consistent. Professor Outerbridge indicated that CT scans cannot diagnose pain and cannot help in assessing the severity of pain.

    DrPaul Sandstrom, Neurologist

27. Dr Sandstrom was called by the respondent. He gave evidence about his report dated 11 October 2014 in which he expressed the opinion that the applicant’s essential tremor condition does impair his capacity to perform any employment as a courier driver, cab driver and as a traffic controller.[16] Dr Sandstrom had been Mr McCool’s neurologist for about six years and he was questioned on a number of letters he had written in 2010, 2011, 2012 and 2014. 

    [16] Exhibit A, T-documents, T24 at p. 208

28. It was put to Dr Sandstrom in cross-examination that in none of his letters was there any suggestion that the tremor in the left arm was getting worse. Dr Sandstrom stated that he had not seen the applicant when he wrote the letter dated 11 October 2014.  It was written on the basis of information which was two years old and on the assumption that the condition had worsened. Dr Sandstrom in his letter of 11 October 2014 had stated that the applicant could not drive a car. However, it was also put to Dr Sandstrom in cross-examination that the applicant still had a licence and regularly drove; Dr Sandstrom remarked that he was unaware of this. Dr Sandstrom also stated that he had not performed any tests to examine any work capability of the applicant

    LEGISLATION

29. To be eligible for pension at the special rate, the requirements of section 24 of the Veterans’ Entitlement Act 1986 (Cth) (“the Act”) must be met, the section provides: 

    24 Special rate of pension

    (1)  This section applies to a veteran if:

    (aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and

    (aab) the veteran had not yet turned 65 when the claim or application was made; and

    (a) …

    (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

    (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; …

30. To be eligible for pension at the intermediate rate, the requirements of section 23 of the Act must be met. Subsections 23(1)(b) and s 23(2) of the Act provide:

    23 Intermediate rate of pension

    (1) This section applies to a veteran if:

    …

    (b)   the veteran’s incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; ...

    (2) Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:

    (a)   if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or

    (b)   in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking — if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.

31. I mention that the reference in sections 23 and 24 of the Act to a “war-caused” injury or a “war-caused” disease is, by reason of the application of section 73 of the Act, to be read as a reference to a “defence-caused” injury or a “defence-caused” disease. The defence service of the applicant commenced on 7 December 1972 and concluded on 16 April 1974.

32. Section 28 of the Act provides:

    28 Capacity to undertake remunerative work

    In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:

    (a)the vocational, trade and professional skills, qualifications and experience of the veteran;

    (b) the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and

    (c) the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).

33. Section 19(5C)(a) of the Act provides that the rate of pension payable to the applicant must be determined during the “assessment period”. Section 19(9) defines the assessment period, in relation to a claim or application relating to a pension, as the period starting on the application day and ending when the claim or application is determined.

1. Therefore the assessment period in relation to this matter commenced on 21 August 2015 when the applicant made his claim and ends on the date when the claim is finally determined.

2. The standard of proof required is that outlined in section 120(4) of the Act whereby we must determine any issues to our reasonable satisfaction.

   CONSIDERATION

3. To be eligible for pension at the special rate, certain criteria in section 24 of the Act must be met.

   Pension

4. The applicant is now in receipt of pension at 100% of the general rate.

5. This meets the requirements of section 24(1)(aa) of the Act because the applicant has a pension which is at least 70% of the general rate.

   Whether the applicant is prevented from working for eight hours a week by reason of his accepted conditions

6. We next must consider whether section 24(1)(b) of the Act is satisfied.

7. There is conflicting medical evidence as to whether the applicant is prevented from working for eight hours a week by reason of his accepted conditions. Dr Rowan in his reports of 19 February 2016 and 25 June 2016 has given his opinion that the applicant was unable to do any work because of the pain in his back and his restrictions on mobility. Professor Outerbridge in his report of 23 October 2014 has given his opinion that what he regards as mild spondylosis “would not lead to significant restriction of his capacity to carry out his normal working duties”.[17]

   [17] Exhibit A, T-documents, T24 at p. 215

8. Having considered these conflicting opinions, we cannot be reasonably satisfied that the applicant is prevented from working for eight hours a week by reason of his accepted conditions. Dr Rowan has quite properly acknowledged that he has no qualifications in orthopaedic medicine. There is also no evidence that Dr Rowan had objectively examined the work capacity of the applicant. The report of Dr Rowan dated 19 February 2016 refers to the reported symptomatology of the applicant. The report of Dr Rowan dated 25 June 2015 assumes that lumbar spondylosis and intervertebaral disc prolapse are separate conditions and acknowledges that it is impossible to identify the symptomology of each condition.

9. Professor Outerbridge had undertaken a detailed physical examination of the applicant which is recorded in his report. In his report he gave his opinion that the symptoms of the applicant appear to be in excess of what one would expect considering his mild degenerative changes seen on the CT scan. Professor Outerbridge in his report referred to examples of what could be regarded as abnormal illness behaviour. Professor Outerbridge has reported that despite only being able to flex the hips to 60 degrees while supine, the applicant was able to sit at hips flexed at 90 degrees with no discomfort or pain.[18]

   [18] Ibid at p. 214

10. We rely upon the opinion of Professor Outerbridge who considered that the mild spondylosis of the applicant would not lead to a significant restriction of his capacity to carry out his normal working duties. Professor Outerbridge is an orthopaedic surgeon of some seniority in his profession. After having reviewed his report we consider that he approached his examination in a fair and comprehensive manner. Professor Outerbridge answered the questions put to him by the respondent directly and clearly and based his opinion on the findings of the CT scans which showed only mild lumbar spondylosis. Professor Outerbridge employed techniques that detect “abnormal illness behaviour” that are used especially in the examination of backs.

11. We accept that it was not safe to use the diagnostic capacity of an MRI to identify soft tissue injury as the cause of the back pain of the applicant. Professor Outerbridge acknowledged that MRIs gave very good images of soft tissues and was conscious that because of metallic implants the applicant was unable to have an MRI. Professor Outerbridge appreciated that CT scans could miss something but he mentioned that the two CT scans were consistent.

12. We consider that the opinion of Professor Outerbridge is consistent with the opinion of Dr Wood who considered that the applicant did not have any significant abnormality to account for his symptoms.

13. We do not place any reliance on the 2014 report of Dr Sandstrom in which he gave his opinion on the inability of the applicant to work because of essential tremor. His opinion was based on an assumption that the condition would worsen over time. Additionally, Dr Sandstrom had not seen the applicant for two years when he wrote the 2014 report and he was unaware that the condition had barely progressed. The applicant was capable of performing tasks, such as driving, that Dr Sandstrom said he could not do.

14. The applicant has tendered a report from Dr Flegg dated 15 February 2016 in which she has given her opinion that the applicant has not overstated his symptoms.[19] We do not accept her assessment for a number of reasons. Her assessment does not accord with the reports of two senior specialists Dr Wood and Professor Outerbridge who have not found any basis for the symptoms claimed by the applicant.

    [19] Exhibit F

15. We also mention an inconsistency in the statements made by the applicant. On 6 August 2014 the applicant informed the VRB that since 2012 he was unable to play bowls anymore.[20]  In his latest statement dated 8 March 2017 the applicant again stated that in 2012 he had to stop playing lawn bowls.[21] However, in January 2016 he advised Ms Brennan at the Wesley Hospital that he “had been restricted with lawn bowls and is eager to return to it as soon as he can”.[22] A fair reading of the transcript before the VRB indicates that it is unclear if the restrictions that the applicant asserts are the difficulties that he has in umpiring because of the essential tremor in one hand or because of his back.[23]

    [20] Exhibit A, T-documents, T23 at p. 159

    [21] Exhibit B

    [22] Exhibit D, Back Rehabilitation Program Comprehensive Report dated 18 January 2013 at p. 4

    [23] Exhibit E at pp. 24 and 25

16. We cannot be reasonably satisfied that section 24(1)(b) of the Act is met, as we have not concluded that the applicant is unable to work because of his lumbar spondylosis or his other accepted condition of bilateral sensorineural hearing loss.
    

    “Alone” test

17. We next consider whether section 24(1)(c) of the Act is met. This one criterion in contention is often referred to as the “alone” test and requires that "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…".

18. In Repatriation Commission v Watkins [2015] FCAFC 10, the Full Court of the Federal Court of Australia referred to the decisions of Repatriation Commission v Richmond (2014) 226 FCR 21, Repatriation Commission v Hendy (2002) 76 ALD 47 and Repatriation Commission v Butcher (2007) 94 ALD 364 and reaffirmed the settled principle that:

    …if non war-caused factors play a part in or contribute to preventing a veteran from engaging in remunerative work, even if those preventative factors are of secondary importance and not of themselves sufficient to prevent remunerative work, the “alone” requirement will not be satisfied. (at [41])

19. We have previously mentioned that we do not place any reliance on the 2014 report of Dr Sandstrom in which he gave his opinion on the inability of the applicant to work because of essential tremor.

20. We have had regard to the reports of the health professionals of the Back Rehabilitation Program at the Wesley Hospital. These reports were completed some six weeks before the applicant ceased employment.

21. We must determine whether the applicant was prevented by his back condition from continuing to undertake remunerative work that the veteran was undertaking.  Certainly there is cogent evidence from the health professionals at the Wesley Hospital who considered that the applicant was able to work; their assessment was completed some six weeks before the applicant ceased work. There is no evidence from the applicant’s former employer that supports the contention of the applicant that he ceased his former employment on the basis of his accepted conditions.[24] Dr Flegg, the general practitioner of the applicant, reported on 19 July 2013 that the applicant was “unable to work since 22 February 2013” because of “severe chronic back pain”.[25] However, the contemporaneous report of Dr Wood dated 22 July 2013 as well as the report of Professor Outerbridge dated 23 October 2014 upon which we rely do not accord with this assessment.

    Intermediate Rate

    [24] Cf., Respondent’s SFIC, 16 August 2016, para 2.8

    [25] Exhibit A, T-documents, T13 at pp. 71-72

22. While the applicant has not made a claim for payment of pension at the intermediate rate of pension, in our view he is not entitled to pension at that rate as we are not reasonably satisfied that he satisfies the requirements of the “alone” test in section 24(1)(c) of the Act which requires that a veteran was, by reason of incapacity from war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking.

    CONCLUSION

23. The applicant is not eligible for the payment of the pension at either the special rate or the intermediate rate.

24. As the applicant was over 65 years at the time of his claim, the ameliorating provisions of sections 23(3) and 24(2) of the Act are not relevant. There is no evidence before the Tribunal that the applicant satisfies the requirements for the extreme disablement adjustment.

    DECISION

25. We affirm the decision under review.

I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

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Associate

Dated: 10 July 2017

Date(s) of hearing:	8 March 2017
Counsel for the Applicant:	Mr S Mackie
Solicitors for the Applicant:	Cockburn Legal
Respondent:	Mr K Rudge