Michael Lee and Repatriation Commission

[2015] AATA 371

[2015] AATA 371  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/5889; 2013/5890
Re	Michael Lee
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Deputy President J W Constance
Date	28 May 2015
Place	Sydney

The decision of the Veterans’ Review Board, dated 30 July 2013, that Mr Lee is not entitled to payment of the pension at either the special rate or the intermediate rate, is affirmed.

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

Deputy President J W Constance

Catchwords

VETERANS’ ENTITLEMENTS – pension – special rate of pension – lumbar spondylosis - whether condition of itself alone renders applicant totally or permanently incapacitated 

VETERANS’ ENTITLEMENTS – pension – intermediate rate of pension - lumbar spondylosis – whether condition of itself alone renders applicant incapable of working part-time or intermittently – non-accepted condition of obesity – whether accepted conditions alone prevent from continuing to undertake remunerative work

Legislation

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

Cases

Chambers v Repatriation Commission (1995) 55 FCR 9

Flentjar v Repatriation Commission (1997) 48 ALD 1

Repatriation Commission v Richmond [2014] FCAFC 124

Richmond v Repatriation Commission [2014] FCA 272

Smith v Repatriation Commission [2014] FCAFC 53

REASONS FOR DECISION

Deputy President J W Constance

INTRODUCTION

1. Mr Lee served in the Royal Australian Air Force from 1971 until 1994. He worked primarily in aircraft maintenance.

2. The Repatriation Commission has accepted that Mr Lee suffers from a number of medical conditions arising from his military service. As a result, Mr Lee is currently in receipt of a disability pension at 100 per cent of the general rate.  This pension is payable in accordance with the provisions of the Veterans’ Entitlements Act 1986 (Cth).

3. On 14 November 2011, Mr Lee lodged an application for an increase in his rate of disability pension. The Repatriation Commission refused this application on 3 January 2012.

4. On 22 March 2012, Mr Lee lodged a claim for acceptance of his condition of diabetes as related to service. This was accepted by the Repatriation Commission in a determination dated 30 March 2012, however, Mr Lee’s rate of pension was continued at the general rate rather than at the special rate.

5. Both decisions were appealed by Mr Lee to the Veterans’ Review Board. The Board affirmed the decisions and so Mr Lee’s rate of pension remains at 100 per cent of the general rate.

6. Mr Lee has applied to the Tribunal for a review of the decision of the Veterans’ Review Board. For the reasons which follow, the decision under review will be affirmed.

   BACKGROUND

7. Mr Lee enlisted in the Royal Australian Air Force in 1971. After completing training as an airframe fitter in 1973, he was posted to the Richmond Air Base where he engaged in what he describes as “deeper level maintenance on multi-engine aircraft”.[1]

   [1] Exhibit A1.

8. His work in aircraft maintenance involved heavy lifting. He and others would prop up on their shoulders long objects of over 250kg in order for other aircraft fitters to fit these to the aeroplane. Later in his career, he was engaged in the installation and removal of aeroplane wings. It was during this time that Mr Lee first experienced back pain and consequent difficulty with tasks including climbing and manoeuvring himself into confined spaces in and around aircraft.

9. After leaving the RAAF in 1994, Mr Lee worked as a contractor for the Royal Australian Navy, supervising engineering work on ships. He continued this work until about December 1999. Mr Lee states that his back problems caused him difficulty in moving in confined spaces throughout the ships on which he worked.

10. From 2000, Mr Lee worked in engineering management roles for the RAAF.

11. Mr Lee states that his back condition grew worse from about 2000 onwards. He found it more difficult to perform household tasks, and gave up mowing his lawn in about 2005 on account of the pain.

12. He terminated his employment on 14 September 2011. In a Lifestyle Questionnaire completed in support of his application for an increase in the rate of pension, Mr Lee stated that this was “due to increased pain and restrictive [sic] mobility”.[2]

    [2] Exhibit R1, p 42.

    LEGISLATION

13. Part II of the Veterans’ Entitlements Act 1986, which includes sections 12 to 34 inclusive, provides for “Pensions, other than service pensions, for veterans and their dependants”.  The pension which is being paid to Mr Lee is payable in accordance with this Part.

14. Section 15 permits a veteran who is in receipt of a pension under Part II to apply for an increase in the rate of the pension on the ground that his/her incapacity has increased since the pension was last assessed.

15. In determining whether a veteran is eligible for an increase in the rate of pension, section 19 of the Act provides that the veteran’s entitlement is to be assessed with respect to any circumstance that occurs within the assessment period. The assessment period runs from the date of the application for an increase in the pension (in this case 14 November 2011) up to the decision of this Tribunal.[3] As stated by Buchanan J in Smith v Repatriation Commission:[4]

    The assessment period commences on the date an application is made and concludes when the decision is made. This means that the entitlement of the veteran is not to be judged only at the time that the application is made. The position must be assessed by reference to any relevant circumstance which occurs up to the time of decision. The entitlement may increase or decrease during that period, but provided that a pension was payable at some time during the assessment period a veteran will receive either the intermediate rate or the special rate, whichever is applicable, or in the case that both are applicable, whichever is the most recently applicable.

    [3] Subsection 19(9).

    [4] [2014] FCAFC 53, [40].

16. Section 19 sets out the manner in which applications are to be dealt with. In particular, subsection 19(5B) requires applications to be assessed in accordance with the relevant sections, which include:

    ·Section 22       General rate of pension and extreme disablement adjustment;

    ·Section 23 Intermediate rate of pension

    ·Section 24 Special rate of pension.

17. As Mr Lee is seeking an increase in his pension from the general rate to the special rate, it is necessary to determine whether he meets the requirements of section 24. If he does not, it will be necessary to decide whether he is entitled to an increase to the intermediate rate in accordance with section 23.

18. I will set out the relevant provisions of sections 23 and 24 when I come to consider the application of each section.

    
    

    PART A

    IS MR LEE ENTITLED TO PAYMENT OF THE PENSION AT THE SPECIAL RATE (s.24)?

19. Subsections 24(1)(aa), (aab) and (a) set out some of the requirements which Mr Lee has to meet to be entitled to an increase to the special rate of pension. These include:

    ·that the veteran has made an application under section 15 for an increase in the rate of pension he or she is receiving;

    ·the veteran had not turned 65 when the application for an increase was made; and

    ·the degree of incapacity of the veteran from war caused injury or war caused disease has been determined to be at least 70%.

20. The Commission concedes that Mr Lee meets the above requirements. I am satisfied that this is correct.

21. Further requirements for eligibility for payment at the special rate are set out in subsection 24(1)(b) and subsection 24(1)(c).  The Commission denies that Mr Lee meets the requirements of either of these paragraphs.

    DOES MR LEE MEET THE REQUIREMENTS OF SUBSECTION 24(1)(B)?

22. Subsection 24(1)(b) provides:

    (1)   This section applies to a veteran if:

    ……

    (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.

23. Mr Lee  has suffered, or has, the following war-caused injuries and diseases:

    (a)bilateral tinnitus;

    (b)bilateral sensorineural hearing loss;

    (c)sprain right ankle;

    (d)sprain left ankle;

    (e)rotator cuff syndrome;

    (f)lumbar spondylosis;

    (g)non-melanotic malignant neoplasm of the skin;

    (h)solar keratosis;

    (i)diabetes mellitus.

24. Mr Lee submits that, of these accepted conditions, lumbar spondylosis renders him incapable of working more than eight hours per week. He does not suggest that any of the remaining conditions are relevant to this claim.

    The evidence of Mr Lee

25. Mr Lee provided a statement dated 6 March 2014[5] and gave evidence. The following evidence was in addition to the facts set out in paragraphs seven to twelve above.

    [5] Exhibit A1.

26. Mr Lee retired from the RAAF in July 1994.  He then worked as a contractor supervising work on Navy ships until December 1999.  Following this he was appointed to a public service position of Standing Instructions Manager at 81 Wing Headquarters RAAF.  Approximately 11 months later, he was appointed to the position of Maintenance Quality Manager.  In this role he was required to develop and write a quality management system in relation to the technical airworthiness system in all the flying units throughout the Defence Department. By the time he took this position, Mr Lee had been diagnosed as suffering lumbar spondylosis.

27. His work as Maintenance Quality Manager involved long periods of sitting and typing and later, in the developmental and teaching phase, “standing, walking around tarmacs, on flight lines, ... hangers, places like that….”.[6]  His work also involved the conduct of audits at various bases throughout Australia. This required long periods of travel and extended periods of standing, followed by periods of typing at night to record findings and produce reports.

    [6] Transcript 26/02/15 p-6.

28. Mr Lee stated in evidence that, as the years went by, the pain in his back steadily became worse. By the end of his period of employment, he was taking one or two days sick leave per month by reason of his back condition.

29. Mr Lee acknowledged that he was overweight during the time he was employed as Maintenance Quality Manager. However, he said that this did not impact on his employment in any way. He was always able to carry out his duties, no matter what his weight. He strongly disagreed with the opinions of medical practitioners that his being overweight affected his ability to work.

30. By the time he ceased work in November 2011, Mr Lee said that:

    …… I just couldn’t keep going. … I’d reached a point where I was spending more time on my back than I was vertical and … I was in constant pain all the time and the pain never ... went away. And I was taking more and more time off work as a result of it and… I felt that I probably stayed at work a year longer than I should have.[7]

    [7] Transcript 26/02/15 p-9.

31. When asked about his ability to work in a general administrative, managerial or clerical role, Mr Lee said that he could not sit long enough at a desk to give any prospective employer a fair day’s work. He said that he would have to stand up from his desk after periods of between half an hour and an hour and a half to move around. It would then take one or two hours for him to be able to return to his role.

32. Mr Lee decided to leave his employment on his own volition, but only because he could not keep working. He discussed his position with his supervisor and decided that, as he was causing the problems with his back to worsen, he would leave his employment.

    Evidence of Professor Ghabrial, Orthopaedic and Spinal Surgeon

33. Professor Ghabrial examined Mr Lee on 19 June 2014 on referral by Mr Lee’s general practitioner.  He provided reports dated 19 June 2014[8] and 1 December 2014[9] and gave evidence.

    [8] Exhibit A2.

    [9] Exhibit A3.

34. In his report of 19 June 2014, Professor Ghabrial stated:

    I believe his clinical features are severe enough to warrant the advice to lead a sedentary life and avoid lifting, bending, twisting as well sitting or standing for lengthy periods as well as activities involving any running, climbing ladders, going up and down stairs excessively, walking on uneven grounds, standing lengthy periods or walking for long distances.

    From the history given to me by Mr Lee, I believe his present clinical features and disabilities are the result of his injuries sustained during his service in the Royal Australian Air Force in the late 1970’s and early 1980’s.

    In his later report, Professor Ghabrial elaborated on the above statement and expressed the opinion that Mr Lee was not fit to undertake any remunerative employment for more than 8 hours per week; this was totally related to his condition of spondylosis.

35. When asked to comment on the view that Mr Lee appears to be fit for sedentary work, Professor Ghabrial said that, in his opinion, Mr Lee was not fit to sit or stand for lengthy periods and his ability to work would also be affected by the medication he may take for pain relief. He is of the view that Mr Lee’s spondylosis is “quite severe” and likely to cause a lot of pain. In turn, this was likely to cause a greater intake of medication which would impair his manner of thinking. On this basis, Professor Ghabrial formed the view that Mr Lee was not fit for any type of work.

36. In his report of 19 June 2014, Professor Ghabrial also referred to his review of the x-rays performed on 17 June 2011. He reported that these x-rays:

    … showed an old trauma to the T8 vertebra with a mild wedge fracture. There is also, what appears to be, thoraco-lumbar spondylosis with some degenerative spondylolisthesis of the L3/4 vertebra without any stress fracture of the pars indicating that it is related to the spondylosis.

    When he gave evidence, Professor Ghabrial explained that there are 5 types of spondylolisthesis, one of which is degenerative spondylolisthesis which is part of spondylosis. In his view, Mr Lee suffers from degenerative spondylolisthesis.

    Evidence of Dr Chase, Occupational Physician

37. Dr Chase assessed Mr Lee on 3 April 2014 at the request of the Department of Veterans’ Affairs. He provided a report dated 12 May 2014,[10] and gave evidence.

    [10] Exhibit R2.

38. Dr Chase expressed the view that a combination of Mr Lee’s low back pain and his morbid obesity would impact on his capacity to engage in full-time or unrestricted work.

39. It is the opinion of Dr Chase that Mr Lee is able to work in an administrative or managerial role for a period between eight and twenty hours per week. This could be up to four hours per day five days per week or alternatively five hours per day four days per week. Dr Chase advises various patterns of work in establishing rehabilitation programs for his patients. In his experience, it is reasonable to expect a person with degenerative changes in the back, and mechanical back pain, to work between eight and twenty hours per week. In this situation, pain management medication could be used to reduce pain in such a way that would not involve drowsiness or loss of concentration.

    Section 28 of the Act – capacity to undertake remunerative work

40. This section sets out the matters to be taken into account in applying the provisions of subsection 24(1)(b).  The section provides:

    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 …… 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).

41. The effect of s 28 is to exclude all other factors from consideration in determining whether the Applicant satisfies subsection 24(1)(b).[11]

    [11] Chambers v Repatriation Commission (1995) 55 FCR 9 at [39].

    Consideration

42. On the basis of the evidence of Mr Lee, I am satisfied that he has the vocational, trade and professional skills, qualifications and experience of an airframe fitter, aircraft maintenance officer, supervisor of engineering work on aircraft and ships, and of a clerical and administrative worker.

43. Further, I am satisfied that a person with the skills, qualifications and experience referred to above might reasonably undertake the kind of remunerative work which Mr Lee has undertaken and, in addition, remunerative work of a general clerical and/or administrative nature in commercial enterprises and in the Public Service.

44. In considering the degree to which Mr Lee’s physical impairment arising from his back condition has reduced his capacity to undertake the remunerative work referred to above, I have taken into account his evidence together with that of Professor Ghabrial and Dr Chase. In doing this, I have given careful consideration to Mr Lee’s statement that in 2011, after experiencing increasing back pain for several years, he reached the conclusion that he could no longer continue to work. I accept that Mr Lee was an honest witness and genuinely held this view at the time he ceased working and has continued to hold the same view.

45. The view held by Mr Lee is supported by Professor Ghabrial who is of the opinion that Mr Lee is not fit for any type of work. However, having considered the competing views of Professor Ghabrial and Dr Chase, I prefer the opinion of Dr Chase that Mr Lee is capable of working between 8 and 20 hours per week in a job that does not require heavy physical work and permits him to alternate standing and sitting.

46. I prefer the evidence of Dr Chase by reason of his qualifications and experience in occupational medicine involving the rehabilitation of patients and the development of suitable programs for their return to work. Whilst Professor Ghabrial has vast experience in treating and repairing spinal conditions, he did not provide the overall view of possible rehabilitation and return to work provided by Dr Chase. Whereas Professor Ghabrial considered that the need for Mr Lee to take drugs for pain relief may affect his ability to work, Dr Chase’s experience enabled him to put forward proposals for pain relief which were consistent with Mr Lee being able to engage in employment.

47. On this basis, I am not satisfied that Mr Lee’s incapacity from his lumbar spondylosis is of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week.  Mr Lee does not satisfy the requirements of subsection 24(1)(b) of the Act and is therefore not entitled to payment of the pension at the special rate.

    PART B

    IS MR LEE ENTITLED TO PAYMENT OF THE PENSION AT THE INTERMEDIATE RATE (s.23)?

48. Subsections 23(1)(aa), 23(1)(aab) and 23(1)(a) are identical to the corresponding provisions of section 24. As stated in relation to section 24 (see paragraphs 19 to 20 of these reasons), there is no dispute that Mr Lee meets these requirements.

49. The issues for determination in relation to eligibility for the intermediate rate are:

    (1)   Does Mr Lee satisfy the requirements of subsection 23(1)(b)?

    (2)   If so, does he meet the requirements of subsection 23(1)(c)?

    DOES MR LEE MEET THE REQUIREMENTS OF SUBSECTION 23(1)(B)?

50. Subsection 23(1)(b) provides:

    (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; …

1. Section 28, to which I have already referred, is relevant also to the application of subsection 23(1)(b).

2. On the basis of the evidence of Dr Chase, I am satisfied that Mr Lee’s incapacity from lumbar spondylosis is, of itself alone, of such a nature as to render him incapable of undertaking remunerative work otherwise than on a part-time basis. Although Dr Chase suggested that Mr Lee may have capacity to work full time, or near full time, in a suitable position, his opinion was that he was able to work in an administrative or managerial role for a period between 8 and 20 hours per week.

3. Although Dr Chase is of the view that Mr Lee’s obesity contributes to the restrictions on his ability to work, I am satisfied that his lumbar spondylosis alone is sufficient to prevent his working full time.

4. Section 23(2) of the Act provides that subsection 23(1)(b) will not be satisfied in the following circumstances:

   (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.

5. On the evidence before me, I cannot be satisfied that either of the subparagraphs of subsection 23(2) apply in this matter.

   DOES MR LEE MEET THE REQUIREMENT OF SUBSECTION 23(1)(C)?

6. Subsection 23(1)(c) provides:

   (1)   This section applies to a veteran if:

   ……

   (c)  the veteran is, 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 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…

7. In Smith v Repatriation Commission,[12] the Full Court said in relation to section 24 that:

   Section 24(1)(b) and (c), when read together, state a composite test containing a series of conditions. First, s 24(1)(b) requires that a veteran be rendered, by the war-related incapacity alone, incapable of working more than 8 hours per week. Secondly, s 24(1)(c) requires that the veteran be prevented, by that incapacity alone (i.e. not for other reasons) from continuing earlier remunerative work. Thirdly, s 24(1)(c) requires that prevention for that reason from continuing that work be the cause of a loss of earnings. Fourthly, s 24(1)(c) requires that the loss of earnings would not be suffered but for the incapacity.

   The operation of s 24(1)(c) is capable of being informed by the provisions of s 24(2)… (emphasis added).

   [12] [2014] FCAFC 53, paras 47-48.

8. As noted by the Federal Court in Smith v Repatriation Commission,[13] the test in subsection 23(1)(c) is couched in identical terms to that contained within subsection 24(1)(c) concerning the special rate of pension. The incapacity which subsection 23(1)(c) deals with, however, is incapacity to work other than on a part-time basis or intermittently. Bearing this in mind, and in the circumstances of the present application, the analysis of section 24 in the passage above is equally applicable to the interpretation of subsection 23(1)(c).

   [13] [2014] FCAFC 53, paras 14, 56.

9. Subsection 23(3) provides:

   (a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1)(b) 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:

   (i) if 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;

   (ii) if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or

   (iii) if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; 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.

10. The Full Federal Court in Flentjar v Repatriation Commission[14] stated that subsection 24(1)(c)  requires consideration of four issues:

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

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

    3.   If 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?

    4.    If 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?

    In the present application, this approach is equally relevant to the application of subsection 23(1)(c).

    [14] (1997) 48 ALD 1, at 4-5.

    The evidence of Mr Lee

11. Mr Lee was very clear in giving evidence that, in his opinion, although he had been overweight during all of his working life, his weight had never affected his ability to work. He acknowledged, however, that his size prevented his being able to get into small spaces on an aircraft when working as an aircraft fitter.[15]

    Report of Dr Smith, General Practitioner, 10 December 2002 [16]

    [15] Exhibit R4 pp.28-29.

    [16] Exhibit R3 p.150.

12. Dr Smith was Mr Lee’s general practitioner for several years.  On 10 December 2002 he reported:

    [Mr Lee] has a number of general health conditions which may affect his future such as obesity……

    Report of Dr Avery, Rehabilitation Physician, 17 August 2011[17]

    [17] Exhibit R3 p.197

13. In mid-2011, Mr Lee was referred to Dr Avery by his general practitioner, Dr Smith.  He was referred for review and recommendation.  At the time, Mr Lee was working as a Maintenance Quality Manager for the RAAF.

14. In her report to Dr Smith, Dr Avery stated:

    This gentleman indicates that he is not coping well with the demands of his current job, attributing this to his chronic back pain. How much of it is related to his work as opposed to his body habitus is difficult to ascertain.

    ……

    This man is physically unfit and deconditioned, and I cannot attribute all his back problems to his work or the travel associated with work. He may be unfit to travel, but still appears to be fit for secondary work. One also has to note that his considerable weight would be exacerbating his underlying lumbar arthropathy and the discomfort from commercial chairs in planes etc.

    This gentleman’s obesity and its complications is a potentially reversible component of his presentation. Obesity is lifestyle related. A large degree of responsibility for this status, and the degree of deconditioning, lies with Michael. One cannot attribute all his medical discomfort to his workplace.

    I would suggest a review of the travel component of his work role, and an increase in activity level would be the best approach to this gentleman’s current predicament. Current evidence shows that maintaining a good fitness associated with sensible weight loss reduces pain and increases functionality with chronic back problems. I would support this and suggest look [sic] at a more sedentary job will allow ongoing employment.

    Report of Dr Streeter – Smith, General Practitioner, dated 17 January 2012[18]

    [18] Exhibit R3 p.201.

15. In a report to Centrelink in support of Mr Lee’s application for a Disability Support Pension, Dr Streeter-Smith referred to Mr Lee’s current symptoms as “struggles to do many tasks due to weight”.

    Consideration

16. I now turn to consider the steps set out by the Full Federal Court in Flentjar v Repatriation Commission, to which I have already referred.

    What was the relevant remunerative work that Mr Lee was undertaking?

17. “Remunerative work” means any remunerative activity.[19]

    [19] Veterans’ Entitlements Act 1986 (Cth) subsection 5Q(1).

18. On the basis of the evidence of Mr Lee I am satisfied that the remunerative work that was being undertaken by him was that of an airframe fitter, an aircraft maintenance worker or a supervisor/manager of aircraft or ship maintenance work.

    Is Mr Lee by reason of war-caused injury prevented from undertaking the work?

19. On the basis of the evidence of Mr Lee, Professor Ghabriel and Dr Chase, I am satisfied that Mr Lee is prevented from undertaking his previous remunerative work at least in part by his war-caused injury. For the reasons already stated when considering Mr Lee’s eligibility for payment at the special rate, I am satisfied that his capacity to undertake these kinds of remunerative work has been reduced to between eight and 20 hours per week.

    Is the war-caused injury the only factor preventing Mr Lee from continuing to undertake the work?

20. Mr Lee must be prevented by his war-caused incapacity alone from continuing remunerative work. With regard to the alone test, the Federal Court stated in Richmond v Repatriation Commission,[20] in an interpretation approved on appeal by the Full Court:

    ... if there is a non war-caused factor which prevents, or contributes to preventing, the veteran from continuing to undertake the relevant remunerative work, even if it is only of secondary weight and insufficient in itself to prevent the veteran from continuing, the “alone” test will not be satisfied.

    [20] [2014] FCA 272, at para 108; see also Repatriation Commission v Richmond [2014] FCAFC 124, at para 65.

21. Although Mr Lee is adamant that his weight did not affect his ability to work, I do not accept his evidence in light of the medical evidence before me. The medical evidence establishes that Mr Lee’s obesity contributed to him being prevented from continuing remunerative work throughout the assessment period (ie. from 14 November 2011 to the present). Dr Avery’s report, dated 17 August 2011, suggests that Mr Lee’s obesity, in and of itself and in its interaction with his back condition, was a contributing factor to the difficulties faced by Mr Lee in coping with work. Mr Lee’s general practitioner, Dr Streeter-Smith, also indicated in a report, dated 17 January 2012, that Mr Lee’s obesity had a significant impact on his ability to function.

22. These opinions are consistent with the report of Dr Chase, dated 12 May 2014. Noting that Mr Lee suffered from morbid obesity, Dr Chase stated that:

    It significantly reduces his mobility, endurance and ability to perform. It is in fact a significant contributor to many of his conditions, particularly his... low back pain. It does have some impact on his capacity for work in the sense that it amplifies/interacts with his accepted disabilities.

23. Dr Avery, Dr Streeter-Smith and Dr Chase each assessed Mr Lee immediately prior to or during the assessment period. In the case of Dr Streeter-Smith, he has treated Mr Lee since November 2011. On the basis of their evidence, I am satisfied that Mr Lee’s lumbar spondylosis was not the only factor preventing him from continuing to undertake the remunerative work he had previously undertaken. I accept the evidence that Mr Lee’s obesity was a factor in his being unable to continue to undertake the remunerative work he was undertaking prior to 14 September 2011.

24. Mr Lee does not meet the requirements of subsection 23(1)(c) and therefore does not qualify for payment of the pension at the intermediate rate.

    PART C

    CONCLUSION

25. For the reasons stated the decision of the Veterans’ Review Board, dated 30 July 2013, that Mr Lee is not entitled to payment of the pension at either the special rate or the intermediate rate, will be affirmed.

I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

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

Associate

Dated 28 May 2015

Date(s) of hearing	26 February 2015
Date final submissions received	26 February 2015
Solicitors for the Applicant	G Kolomeitz; Glenn Kolomeitz Lawyers
Advocate for the Respondent	T O'Reilly; Department of Veterans' Affairs