Morris and Repatriation Commission (Veterans' entitlements) - [2017] AATA 2165

Morris and Repatriation Commission (Veterans' entitlements) [2017] AATA 2165 (14 November 2017)
Division:VETERANS' APPEALS DIVISION
File Number: 2017/1107
Re:David Morris
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Senior Member A C Cotter
Date:14 November 2017
Place:Brisbane

The Tribunal sets aside the decision under review, and in place of that decision, determines that the Applicant is entitled to pension at the Special Rate provided for in s 24 of the Veterans’ Entitlements Act 1986 (Cth), with effect from 1 August 2015.
....................................[Sgd]....................................
Senior Member A C Cotter
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – disability pension – application for increase in pension – whether Applicant is entitled to payment of disability pension at the Special or Intermediate Rate – PTSD – whether satisfies the “alone test” – other factors – alcohol dependence – back condition – shoulder condition – domestic circumstances – whether contributed to preventative effect- “alone test” satisfied – Applicant entitled to payment at the Special Rate - decision under review set aside and substituted
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 14, 15, 19, 23, 24, 25, 28, 73, 120
CASES
Cavell v Repatriation Commission [1988] FCA 464
Hall v Repatriation Commission [1994] FCA 458
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Richmond [2014] FCAFC 124
Repatriation Commission v Sharp [2017] FCA 350
Smith v Repatriation Commission (2014) 142 ALD 410
REASONS FOR DECISION
Senior Member A C Cotter
14 November 2017
BACKGROUND

Mr David Morris is 60 years of age.[1]
[1] Exhibit 4, Statement of David Morris dated 14 July 2017, [1].
In March 1975, at the age of 18, he joined the Australian Regular Army. He continued to serve until his discharge in October 1985.[2] As such, he engaged in eligible service as a member of the Defence Forces for the duration of his service.
[2] Ibid, [4] and [6].
Following his discharge from the Army, Mr Morris worked largely in the capacity of a hardware salesman/storeman until he ceased work on 31 July 2015.[3]
[3] Ibid, [27]-[42] and Exhibit 7, Mr Morris’ Statement of Facts and Contentions dated 31 July 2017, [11].
The Repatriation Commission (“Commission”) has accepted the following conditions as related to Mr Morris’ service under the Veterans’ Entitlements Act 1986 (Cth) (“Act”):
(a)Ingrown toenails of the left and right feet;
(b)Sensorineural hearing loss;
(c)Tinnitus;
(d)Post-traumatic Stress Disorder (“PTSD”);
(e)Non-melanotic malignant neoplasm of the skin; and
(f)Solar keratosis.[4]
[4] Exhibit 3, Commission’s Statement of Facts, Issues and Contentions dated 23 August 2017, [4].
The following conditions have not been accepted by the Commission as related to

Mr Morris’ service:
(a)Lumbar spondylosis; and
(b)Alcohol dependence.[5]
[5] Ibid, [5].
On 9 July 2015, Mr Morris lodged an Application for an Increase in Disability Pension.[6]
[6] Exhibit 1, T Documents, T 109, pages 269-279.
In support of that application, Mr Morris also lodged a statement dated 29 June 2015, which read in part:
I am having to leave work because I am experiencing many different situations in my employment that leave me feeling aggravated and frustrated and my PTSD has gotten worse some of which are outlined below:-
1Shortness of temper,…
4Loss of patience with others and myself,
5Having to relate to and deal with retail customers,…
22.I have been drinking more alcohol and feel that I am not copying (sic.) very well due to these problems[7]
[7] Exhibit 1, T Documents, T 107, pages 265-266, Mr Morris’ statement in support of application for
Mr Morris also provided a copy of his letter to his then employer, The Landscaping Yard, giving notice of his resignation as Hardware Manager effective 31 July 2015. It relevantly read:
As you are aware, I have been having increasing difficulty in carrying out my duties since my last evaluation. It has become increasingly hard for me to continue in my job. My Specialist has advised that I am unfit to continue in my job and should think about retiring.[8]
[8] Exhibit 1, T Documents, T 108, page 267, letter, Mr Morris to The Landscaping Yard dated
In a Separation Certificate, The Landscaping Yard noted that it was regrettable that

Mr Morris was leaving its employment “due to ongoing health issues”.[9]
[9] Exhibit 1, T Documents, T 110, page 280, The Landscaping Yard Separation Certificate dated
In November 2015, the Commission issued a decision, continuing Mr Morris’ disability pension at 100 percent of the General Rate. [10] In the process, it decided that Mr Morris was not eligible for pension at either the Special or Intermediate Rate. Mr Morris unsuccessfully sought a review of the decision by the Veterans’ Review Board (“VRB”), which affirmed the Commission’s decision. [11]
[10] Exhibit 1, T Documents, T 122, pages 387-395, Commission’s decision and reasons for decision dated
[11] Exhibit 1, T Documents, T 134, pages 423-430, Veterans’ Review Board decision and reasons for
Dissatisfied with the VRB’s decision, Mr Morris has sought a review of it by the Tribunal.
THE LEGISLATIVE PROVISIONS
Division 4 of Part II of the Act deals with rates of pensions payable for war-caused injuries and war-caused diseases. By virtue of s 73(1) of the Act, that division applies to pensions payable in accordance with Part IV of the Act (dealing with defence-caused injuries and defence-caused diseases). For the purpose of applying the provisions of Division 4 of Part II, a reference to a war-caused injury or war-caused disease shall be read as a reference to a defence-caused injury or defence-caused disease, and a reference to a veteran shall be read as a reference to a member of the forces.[12]
[12] See Veterans’ Entitlements Act 1986 (Cth), s 73(2).
Sections 23 and 24 of the Act are found within Division 4 of Part II of the Act and concern the Intermediate and Special Rates of pension respectively. By reason of s 73 of the Act, the criteria set out in those sections apply to Mr Morris as a member of the Defence Forces in respect to his pension entitlements for his defence-caused injuries and diseases. Having made that point, I will, in the interests of consistency and to avoid unnecessary confusion, continue to adopt in these reasons the language used in ss 23 and 24.
For present purposes, s 24 is the key legislative provision. It relevantly provides:
(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 has not yet turned 65 when the claim or application was made; and
(a)either:
(i)    the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)   …; and
(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; and
(d)section 25 does not apply to the veteran.
(2) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i)    the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii)   the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
Section 28 of the Act is also relevant, in that it cross-refers to s 24(1)(b). It 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, 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).
Section 23, setting out the criteria for the Intermediate rate of pension, is in substantially the same terms as s 24, except that the incapacity must render the veteran incapable of working otherwise than on a part-time basis or intermittently. As that section applies only when s 24 or s 25 (which is not relevant here) does not apply to the veteran, it is logical to consider the application of s 24 first.[13]
[13] See Veterans’ Entitlements Act 1986 (Cth), s 23(1)(d).
ISSUES FOR THE TRIBUNAL
The issue which falls for the Tribunal’s determination is whether Mr Morris is entitled to payment of his disability pension at the Special or Intermediate Rate, as opposed to the General Rate.
Several of the requirements in s 24 are clearly satisfied in the present case. I deal briefly with them below.
Pension threshold questions
There is no doubt that Mr Morris made an application under s 15 of the Act for an increase in the rate of pension he was receiving. At the time of making the claim, he was under the age of 65. Therefore, the requirements of s 24(1)(aa) and s 24 (1)(aab) are satisfied.
As Mr Morris has been found to be entitled to payment of his disability pension at 100 percent of the General Rate, the requirement in s 24 (1)(a) is also satisfied.
The requirement in s 24(1)(b)
It is common ground that the requirement in s 24(1)(b) is satisfied. That subsection requires Mr Morris to show that his incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week. For that purpose, the only matters that are to be considered are those listed in s 28 of the Act.
It was submitted on behalf of Mr Morris that the medical evidence supports the conclusion that he was prevented from working for eight hours or more per week by reason of his accepted conditions. In that regard, I was referred to the medical report of his psychiatrist, Dr Ashim Majumdar, dated 13 August 2015, and the “Capacity to Work” form completed by his general practitioner, Dr John O’Sullivan, dated 27 August 2015.[14] The former expressed the opinion that Mr Morris was not fit to return to work due to his PTSD.[15]

The latter stated that Mr Morris could not work at all, and that he ceased employment because his PTSD became “overwhelming”.[16] Based on that evidence, it was submitted that the criterion in s 24 (1)(b) was satisfied.[17]
[14]     Exhibit 7, Mr Morris’ Statement of Facts and Contentions dated 31 July 2017, [6].
[15]     Exhibit 1, T Documents, T 111, page 281, medical report of Dr Ashim Majumdar dated 13 August 2015.
[16]     Exhibit 1, T Documents, T 113, page 287, Medical Report – Ability to Work by Dr John O’Sullivan dated
[17]     Exhibit 7, Mr Morris’ Statement of Facts and Contentions dated 31 July 2017, [7].
The Commission likewise accepted that, during the relevant period, the weight of medical evidence supported a finding that Mr Morris was prevented from working eight hours or more per week by reason of the disability arising from his accepted conditions, particularly his accepted PTSD.[18] Accordingly, the Commission accepted that Mr Morris satisfied the requirement of s 24 (1)(b) of the Act.[19]
[18] Exhibit 3, Commission’s Statement of Facts, Issues and Contentions dated 23 August 2017, [12].
[19] Ibid, [15].
Based on the evidence before the Tribunal, there is no doubt that Mr Morris had the skills, qualifications and experience to allow him to undertake civilian employment as a storeman, and that he worked fulltime in that role prior to the relevant assessment period. Given that and the weight of the medical evidence, I accept the parties’ submissions that the requirements of s 24(1)(b) are satisfied by Mr Morris.
Having regard to the medical evidence, s 25 of the Act (dealing with temporary payment at the Special Rate) is not applicable, as Mr Morris could not be said to be “temporarily” incapacitated by war-caused injury or war-caused disease, or both. The requirement in

s 24(1)(d) is therefore satisfied.
The remaining “live” issue
In light of the foregoing, the issue which remains “live” for the Tribunal’s consideration is whether the requirements of s 24(1)(c) are satisfied. I deal with that issue below.
THE LEGAL PRINCIPLES
In order to be eligible for a pension at the Special Rate, Mr Morris needs to satisfy the criteria set out in s 24(1)(c) of the Act. Those criteria must be satisfied at some time during the “assessment period”, which commences on the day the application for increase in the pension rate was received by the Commission (in this case, 9 July 2015) and ends when the application is determined by the Tribunal.[20] In Smith v Repatriation Commission, Buchanan J summarised the practical effect of the legislative scheme as follows:
The effect of these statutory directions in the present case was that an assessment was required as to whether at any time during the “assessment period” a pension was payable in accordance with s 23 (intermediate rate) or s 24 (special rate). If so, the most recent such entitlement was to be determined as the rate of pension payable. 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. Because this arrangement applies to applications for increase in pension, it commences from the premise that some level of pension at the general rate is already being paid.[21]
[20] See Veterans’ Entitlements Act 1986 (Cth), s 19(5C) and s 19(9).
[21] (2014) 142 ALD 410, 420, [40].
The standard of proof is that required by s 120(4) of the Act, namely “reasonable satisfaction”.
Section 24(1)(c) has two main limbs, which may be informed by ss 24(2)(a) and (b). The first limb is 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. It may be ameliorated by s 24(2)(b).[22]
[22] See Repatriation Commission v Richmond [2014] FCAFC 124, [21] (Middleton, Murphy and Rangiah JJ).
The second limb is that the veteran 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. The operation of that limb is amplified by

s 24(2)(a).[23]
[23] Ibid, [22].
As to the first limb, the Full Court observed in Repatriation Commission v Richmond:
The first limb of s 24(1)(c) requires the decision-maker to decide whether the veteran’s war-caused injury or disease (or both) alone prevented him or her from continuing to undertake the remunerative work the veteran was engaged in. The alone element of the test is concerned with whether or not there is more than one cause of the preventative effect that the veteran claims has resulted from his or her war-caused incapacity.
The first limb provides that to qualify for the special rate, the preventative effect must arise from the veteran’s war-caused incapacity alone, and not from other non war-caused preventative factors as well. If other non war-caused factors contribute to the preventative effect, even if they are only of secondary importance and not of themselves sufficient to prevent the veteran from engaging in remunerative work, their presence will deny the veteran eligibility for the special rate.[24]
Later, their Honours cited with approval a number of authorities, including the following passage from the decision of the Full Court in Repatriation Commission v Hendy[25]:
…The language of s 24 (1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the veteran from working. The decision-maker is required to take into account any factor that plays a part or contributes to a veteran’s being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period. So long as the tribunal performs this exercise, the conclusions drawn from the assignment of the relative impact [of] the various factors on the ability of the veteran to continue in remunerative work is not reviewable, except in exceptional circumstances. Moreover, having considered any or all of the factors which may have contributed to the veteran’s incapacity, the tribunal is then required to determine whether it is the veteran’s war-caused injury or war-caused disease, or both, alone which prevent the veteran from continuing to undertake remunerative work. (Emphasis added).[26]
[24] Ibid, [57]-[58].Emphasis added.
[25] (2002) 76 ALD 47, [37] (Whitlam Emmett and Stone JJ).
[26] Repatriation Commission v Richmond [2014] FCAFC 124, [63] (Middleton, Murphy and Rangiah JJ).

The test of whether the war-caused injury or war-caused disease, or both, alone brought about the veteran’s situation of being unable to engage in work is “a question of fact, informed by commonsense.”[27] It is a decision that should not be made “upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide”.[28]
[27] Smith v Repatriation Commission (2014) 142 ALD 410, [16] (Rares J).
[28] Cavell v Repatriation Commission [1988] FCA 464, [12] (Burchett J).
THE PARTIES’ CONTENTIONS
The following is a broad overview of the parties’ contentions.
Mr Morris’ case
Counsel for Mr Morris noted that it was uncontroversial that Mr Morris had an accepted condition of PTSD and that he was unable to work in any capacity as a result of that condition.[29] That was supported by the medical opinions of Dr Majumdar, the psychiatrist, and Dr O’Sullivan, Mr Morris’ general practitioner, to which I referred earlier.[30]
[29] Transcript of proceedings dated 21 September 2017, page 58, lines 20-25.
[30] Exhibit 7, Mr Morris’ Statement of Facts and Contentions dated 31 July 2017, [6] and [12]. See also
It was submitted that other non-accepted conditions and factors referred to during the hearing (being a back condition, alcohol dependence, a shoulder condition, and his domestic circumstances) played no part in preventing Mr Morris from continuing to undertake remunerative work.[31] Consequently, the first limb of s 24(1)(c) was said to be satisfied.
[31] Transcript of proceedings dated 21 September 2017, page 59, lines 30-33, and Exhibit 7, Mr Morris’
It was further said that were it not for Mr Morris’ accepted disabilities, he would have continued to be in gainful employment to this day. He was therefore said to have suffered a loss of salary and earnings under the second limb of s 24 (1)(c).[32]
[32] Transcript of proceedings dated 21 September 2017, page 66, lines 13-29, and Exhibit 7, Mr Morris’
The Commission’s contentions
The Commission submitted that Mr Morris’ non-accepted disabilities, in addition to his more recent domestic circumstances, are factors that ought to be found to preclude his satisfying the “alone test” in s 24(1)(c).[33]
[33] Commission’s Submissions dated 21 September 2017, page 3.
In particular, it was said that the medical evidence, especially that of Dr O’Sullivan, supports a finding that Mr Morris was, at least, suffering from significant alcohol dependence issues at the time he gave notice of his resignation on 30 June 2015 and moreover, from the commencement of the assessment period on 9 July 2015. Even if his condition had since improved, it was said that the evidence nevertheless supported a finding that his non-accepted disability was an issue in the context of satisfying the “alone test” from the commencement of the assessment period until that time. [34]
[34] Ibid, pages 3-4.
The Commission also contended that Mr Morris’ other non-accepted disabilities, including, but not limited to, his lumbar spine and upper limb and shoulder tendonitis conditions, are factors relevant to his satisfying s 24(1)(c) of the Act.[35]
[35] Ibid, page 4.
Further, Mr Morris’ domestic circumstances (that is, providing care and assistance to his partner and his grandchildren) were also said to be relevant to his satisfying the “alone test” under s 24(1)(c).[36]
[36] Ibid.
Accordingly, it was said that Mr Morris had failed to satisfy the requirements relevant to his application for an increase of his pension to the Special Rate.
CONSIDERATION
The first limb of s 24(1)(c)
As mentioned earlier, it is not controversial that Mr Morris suffers from an accepted PTSD condition which prevented him from undertaking work in any capacity.
Where the parties disagree is whether other non war-caused factors have contributed to the preventative effect. That calls for a consideration of the evidence relating to each of those other factors.
The back condition
It is not in dispute that Mr Morris had a longstanding back condition. His Claim for Disability Pension in June 2011 stated that he suffered from lower back pain, describing the signs and symptoms as “always painful”.[37] An x-ray requested by Dr O’Sullivan at the time recorded that “(m)ild lower lumbar degenerative facet joint disease is present most pronounced at L5/S1 level”.[38] A report following a CT scan in February 2014 concluded:
Broadbased disc protrusion at the left paracentral region of L5/S1 with probable impingement of the left S1 descending nerve root…
Mild multilevel lumbar vertebral osteophytosis and early facet joint OA (osteoarthritis).[39]
[37]     Exhibit 3, Mr Morris’ Claim for Disability Pension dated 20 June 2011, page 7.
[38]     Exhibit 1, T Documents, T 10, page 33, medical report of Dr Giovanni (John) Salanitri dated
[39]     Exhibit 10, clinical notes of Dr John O’Sullivan, page 8, radiologist’s report of Dr Winston Erng dated
In a letter dated 15 August 2013, Mr Ian Rowe, the then proprietor of The Landscaping Yard, noted :
(Mr Morris) is employed as a Permanent Storeman carrying out light duties and clerical duties and is at times assisted by other staff in lifting some items sold by us which are to (sic.) heavy for him to lift.
He has had Time Off on various occasions, due to his Back Problems which began PRIOR TO HIS EMPLOYMENT BY (The Landscaping Yard).[40]
[40] Exhibit 1, T Documents, T 74, page 196, letter from The Landscaping Yard Pty Ltd and Hardware dated
While acknowledging that he had suffered from a back condition for many years,

Mr Morris said that he had not sought treatment for it until 2014. Prior to that, he had put up with it and continued to work, notwithstanding that he had some back pain.[41]
[41] Transcript of proceedings dated 21 September 2017, page 14, lines 25-42.
Mr Morris said that he sought treatment when his back seemed to get worse. He spoke with Dr O’Sullivan, who referred him to a clinic for cortisone injections. After the first injection, Mr Morris felt noticeable relief. However, as time went by, he started to stiffen up. He saw Dr O’Sullivan again, who referred him for another injection. That injection was in a different site, and made no difference. For the third injection, in November 2014, Mr Morris was injected in the original site. Since that day, he has not had a problem. He kept working until his resignation in July 2015.[42]
[42] Ibid, page 14, lines 32-35 and page 15, lines 1-15.
Ms Nola Buckett, Mr Morris’ partner, gave evidence at the hearing. She said that Mr Morris’ back condition had never stopped him from working. While it caused him some problems, they ceased after his series of injections; he has not had back problems since.[43]
[43] Exhibit 5, statement of Ms Nola Ann Buckett dated 14 July 2017, [12].
Dr O’Sullivan confirmed that Mr Morris had a total of three cortisone injections and that he last reviewed Mr Morris regarding the treatment on 4 November 2014. At that time,

Mr Morris reported that the injection gave him instant and ongoing relief; he said that he was managing his job, sleeping well and coping well at work. Dr O’Sullivan did not certify Mr Morris unfit for work on any of the three occasions on which he reviewed his back condition following the injections. Nor was he aware that Mr Morris had absented himself from work. He said that he had not seen Mr Morris with regard to any back pain or disorder since November 2014. Apart from the consultations in 2014 (namely concerning the CT scan and the three injections), Dr O’Sullivan said that the only other time that he had seen Mr Morris regarding his back pain was in June 2011 when he arranged the earlier lumbar spine x-ray.[44]
[44] Exhibit 8(a), medical report of Dr John O’Sullivan dated 5 September 2017.
A medical certificate was also prepared by Dr O’Sullivan following his examination of

Mr Morris on 11 September 2017. On that occasion, Mr Morris displayed lumbar flexion to six inches from the toes; full lateral flexion to the knees; and full lumbar extension.[45] At the hearing before me, Dr O’Sullivan agreed with Mr Morris’ counsel that there was nothing in those findings to indicate any significant functional restriction in respect of Mr Morris’ back.[46]
[45] Exhibit 8(b), medical certificate of Dr John O’Sullivan dated 11 September 2017.
[46] Transcript of proceedings dated 21 September 2017, page 43, lines 37-39.
Asked to explain the diagnosis of any back problem Mr Morris currently has, Dr O’Sullivan responded:
Well, at the moment I would say it’s not an active problem is the way I’d say it. He’s had some back pain and of course you saw that from the CAT scans there were prolapsed discs which were symptomatic and since the last injection he has had, I’ve not seen him at all about any back pain or back condition and when I was asked to examine him I didn’t give a diagnosis, I just examined his back because I was just trying to present facts, so I don’t have a current diagnosis on his back. If you don’t have symptoms, well it’s pretty hard to come up with a diagnosis.[47]
[47] Transcript of proceedings dated 21 September 2017, page 50, lines 22-29.
Mr Morris said that he had no problems performing his duties in the period between the completion of his course of injections in November 2014 and his ceasing work the following July, adding that he worked strictly to workplace health and safety guidelines. He was told by the clinic that he still had to take care of his back and that he should be fine if he followed all the work guidelines. In particular, if something was too heavy, he would get either another person to help lift it, or forklift it.[48] At the hearing, Mr Rowe agreed with that approach. He said that all staff could be accommodated if they needed assistance in lifting; all that a staff member had to do was ask for help, and it would be forthcoming.[49]
[48] Ibid, page 15, lines 17-29.
[49] Ibid, page 34, lines 37-41.
Mr Rowe described Mr Morris as having a very strong work ethic; he rarely took time off.[50] For his part, Mr Morris said that he would never take time off unless he was quite ill, in which case he would get a doctor’s certificate.[51]
[50] Exhibit 6, statement of Mr Ian Rowe dated 24 July 2017, [5].
[51] Transcript of proceedings dated 21 September 2017, page 13, lines 33-39.
As to Mr Morris’ reason for leaving work, Mr Rowe said that he could tell in the months before Mr Morris ceased work that he was not coping at all with the stress of managing the business; he was convinced, from what he was told and from what he observed, that it was a psychological, not a physical, problem.[52]
[52] Exhibit 6, statement of Mr Ian Rowe dated 24 July 2017 and transcript of proceedings dated
At the hearing, Mr Morris was also questioned about certain comments contained in the clinical notes of an occupational therapy practice, Able Therapy, which had been

obtained by summons. In particular, Ms Natasha Nawrocki observed after a visit on

10 August 2017:
Limitations: Lifting arms above shoulders, cleaning above shoulders, lifting in general due to LBP (lower back pain).[53]
Mr Morris denied having reported to the therapist in those terms, saying that he does not “do those things if it’s going to affect me”.[54]
[53] Exhibit 11, summons records from Able Therapy, page 3 of 3, clinical note of Ms Natasha Nawrocki
[54] Transcript of proceedings dated 21 September 2017, page 27, lines 4-7.
Having regard to the evidence outlined above, I am not satisfied that the back condition played a part in Mr Morris being prevented from continuing to undertake remunerative work. I say that for several reasons.
First, it is clear from Dr O’Sullivan’s evidence that the condition was not active during the assessment period. While there is a history of back problems, Dr O’Sullivan has not seen Mr Morris about his back since November 2014, some three years ago. His physical examination of September this year revealed nothing to indicate any significant functional restriction in respect of Mr Morris’ back.
Second, apart from the reference in Mr Rowe’s August 2013 letter to Mr Morris having had time off for his back problems, there is nothing to suggest that the condition had ever been a significant issue for Mr Morris as regards his employment. It was not until 2014 that

Mr Morris sought treatment from Dr O’Sullivan. Prior to that, he continued to work. Following the course of injections, he did not experience any problems and continued to work, conscious of not doing anything which would compromise his back or aggravate his condition. Mr Rowe stated that Mr Morris could obtain assistance with respect to lifting; he described the culture of the business as one where anyone could get assistance if required. Further, despite Mr Rowe’s letter, there is no other evidence that Mr Morris took time off work because of his back condition. In particular, there is no evidence in

Dr O’Sullivan’s clinical notes of his having issued medical certificates in respect of time off work due to the back condition. Ms Buckett confirmed that Mr Morris’ back condition had never stopped him from working.
In any event, even if Mr Rowe’s August 2013 letter was correct and (against the weight of evidence) Mr Morris had taken time off work due to his back problem, that changed significantly following the course of injections he received during 2014. After that treatment, he did not take any time off for his back condition and continued to work for a further nine months, until ceasing work in July 2015. During that time, Mr Rowe witnessed no physical problems that Mr Morris was experiencing at work. In short, even if there had been a back problem affecting Mr Morris’ work, that pre-dated the assessment period.
Finally, with respect to Ms Nawrocki’s comments in the Able Therapy clinical notes, I am satisfied with Mr Morris’ explanation of the reference to the “limitations” he might have experienced as a result of his back condition. That explanation was consistent with the approach he adopted at work, and with the culture described by Mr Rowe.
Alcohol dependence
Mr Morris has a long history of alcohol dependence.
In his letter to the Department of Veterans’ Affairs (“Department”) of 11 July 2012,

Mr Morris’ psychiatrist, Dr Majumdar, confirmed a diagnosis of PTSD.[55] That diagnosis was repeated in Dr Majumdar’s further report of 1 August 2013.[56] In that later report, the doctor noted that following two major traumatic experiences, Mr Morris developed psychiatric symptoms of PTSD “and he started to drink heavily”.[57] At the time of that report, Dr Majumdar noted that Mr Morris was drinking four or five cans of beer and a quarter of a bottle of gin every night.[58]
[55]     Exhibit 1, T Documents, T 58, page 152, letter, Dr Ashim Majumdar to Department of Veterans’ Affairs
[56]     Exhibit 1, T Documents, T 72, pages 184-189, medical report of Dr Ashim Majumdar dated
[57]     Ibid, page 189.
[58]     Ibid, page 186.
Shortly after Mr Morris resigned, Dr Majumdar provided a further short report, confirming that Mr Morris was depressed and suffering from PTSD, which seemed to have exacerbated. The doctor noted that Mr Morris had decreased his consumption of alcohol, mainly because he did not have enough money to buy it.[59]
[59] Exhibit 1, T Documents, T 111, page 281, letter, Dr Ashim Majumdar to Dr John O’Sullivan dated
In a letter to Mr Morris’ then Advocate in March 2016, Dr Majumdar stated:
David suffers from Post Traumatic Stress Disorder. He was drinking quite heavily but he was able to function quite adequately at his job where he worked for about five to six years. He was functioning well at work, did not have any alcohol during his working hours nor did he have any absenteeism due to alcohol but as his PTSD became worse he was unable to deal with his work pressure and I do think that is the main reason why he had to quit his job...
David has cut down his drinking quite considerably. He has a number of alcohol free days; he only drinks six pack in a week and he is quite happy that he is able to continue few alcohol free days and drink only socially however his PTSD symptoms remain almost unchanged. He is hypervigilant, has repeated flashback and nightmares and he avoids people or situations that reminds (sic.) him of the trauma.[60]
[60] Exhibit 1, T Documents, T 131, page 416, letter, Dr Ashim Majumdar to Ms Karin Liggins dated
Dr O’Sullivan completed an “Ability to Work – Ceased or Ceasing Work” form on 27 August 2015.[61] When asked what Mr Morris’ last occupation was and his reason for ceasing employment, Dr O’Sullivan stated “store salesman – PTSD became overwhelming”.[62] He listed PTSD as the medical condition that prevented or restricted Mr Morris’ capacity to work.[63] Asked to provide details of any rehabilitation undertaken, he answered “nil”, adding that he recommended that Mr Morris seek admission for detoxification and counselling.[64] In response to the question whether he was aware of conditions other than those known to the Department, Mr Morris noted “alcohol dependence”. He indicated that was temporary and assigned it a functional rating of 4, signifying “(s)evere or disabling effect on many functions”.[65] After being taken to that answer by the Commission’s solicitor, Dr O’Sullivan agreed that alcohol dependence had to have had some impact on Mr Morris’ work.[66]
[61]     Exhibit 1, T Documents, T 113, pages 283-289, “Ability to Work- Ceased or Ceasing to Work” form by Dr
[62]     Ibid, page 287.
[63]     Ibid, page 288.
[64]     Ibid, page 289.
[65]     Ibid, page 286.
[66]     Transcript of proceedings dated 21 September 2017, page 53, lines 23-35.
Dr O’Sullivan provided a further report dated 4 April 2016. It relevantly read:
On reviewing (Mr Morris’) file there was no evidence to support that he retired due to alcoholism and I would have regarded him as a functioning alcoholic. It was noted that he had pretty severe alcohol dependence and I did advise him to have detoxification at the time. He was able to modify his drinking at the time and he was unable to cope with inpatient care due to his PTSD. His work record would support a low absenteeism over his career. He was never counselled in any negative sense by his work superiors over his alcohol intake whatsoever. I would regard his drinking at the end of his work career was the result of his worsening Post Traumatic Stress Disorder and not the other way around. He is now a light drinker [of beer only] – viz a six pack/week maximum.
This is a remarkable improvement in his… alcohol intake since continued treatment and advice from Dr Majumba (sic.) and Adrian Bosch of his Post Traumatic Stress Disorder.[67]
[67] Exhibit 1, T Documents, T 132, page 417, medical report of Dr John O’Sullivan dated 4 April 2016.
At the hearing, Dr O’Sullivan agreed with Mr Morris’ counsel that in in the field of psychiatry and diagnosis (or no diagnosis) of psychiatric conditions such as PTSD and alcohol dependence, he would defer to the opinion of a specialist, such as Dr Majumdar.[68]
[68] Transcript of proceedings dated 21 September 2017, page 43, lines 41-47, to page 44, lines 1-19.
After being requested to review his clinical notes during 2016, Dr O’Sullivan was asked whether there was anything to indicate that there was an ongoing issue in respect of

Mr Morris’ alcohol consumption. He replied no, saying that it was quite the contrary. He said that he recalled quite a few occasions when he had urged Mr Morris to be admitted for detoxification, but that became a “non-issue” over time.[69]
[69] Ibid, page 45, lines 32-39.
In relation to the question of whether he drank at work, Mr Morris told the hearing that there were occasions when the staff would have a few drinks after work. He never took them up on the offer to join them. Apart from the Christmas party, he did not accept alcohol from anyone at work. Rather, his habit was to purchase beer on the way home and drink at home.[70] Mr Rowe said that alcohol was never an issue with Mr Morris’ employment; he considered him to be a social drinker.[71]
[70] Ibid, page 13, lines 17-25.
[71] Exhibit 6, statement of Mr Ian Rowe dated 24 July 2017, [5].

The Commission contended that the medical evidence, especially that of Dr O’Sullivan, supports a finding that Mr Morris was, at least, suffering from significant alcohol dependence issues at the time he gave notice of his intention to resign, and from the commencement of the assessment period. In particular, it relied on the functional rating of 4 that Dr O’Sullivan assigned to Mr Morris in his “Ability to Work - Ceased or Ceasing to Work” form, and his recommendation that Mr Morris be admitted for detoxification and counselling. Reliance was also placed on Dr O’Sullivan’s clinical notes between August and December 2015 to show that extensive treatment was required.[72] The Commission pointed to the level of alcohol Mr Morris was consuming preceding his resignation, noting that it largely coincided with the commencement of the assessment period.[73]
[72] Commission’s Submissions dated 21 September 2017, pages 3-4.
[73] Transcript of proceedings dated 21 September 2017, page 68, lines 19-24.
Counsel for Mr Morris referred me to the decision of the Federal Court in Repatriation Commission v Sharp (“Sharp”),[74] in which a similar issue arose concerning the inappropriate consumption of alcohol as a factor preventing, or contributing to, the veteran being unable to continue to undertake remunerative work. In that case, the veteran, Mr Sharp, was found by the Tribunal to have used alcohol to self-medicate and as a coping strategy for dealing with his anxiety disorder. That led it to conclude that the alcohol consumption was not a separate condition which was a disentitling factor. It was submitted that the present case is not dissimilar.[75]
[74] [2017] FCA 350 (Perry J).
[75] Transcript of proceedings dated 21 September 2017, page 61 (line 15) to page 62 (line 20).
It was said that in the present case, there is no diagnosis of alcohol dependence.

Mr Morris self-medicated with, and used, alcohol to cope with his PTSD, but no longer does so. However, what continues unchanged is the preventative effect of the PTSD; alcohol, it was said, plays no part in preventing Mr Morris from being unable to continue in remunerative work.[76]
[76] Transcript of proceedings dated 21 September 2017, page 62 (line 22) to page 63 (line 29).
It was submitted by counsel that even if it were found that Mr Morris had an alcoholic condition, he was a functioning alcoholic; there was no suggestion at all that it impacted on him performing his workplace duties.[77]
[77] Ibid, page 63, lines 31-41.
Finally, it was said that even if there were a time in the assessment period where

Mr Morris did not qualify, that did not necessarily prevent him from qualifying later in the assessment period.[78]
[78] Ibid, page 68 (lines 4) to page 69 (line 12).
I am not satisfied that Mr Morris’ alcohol dependence played a part in preventing him from continuing to undertake remunerative work. My reasons follow.
It is clear from Mr Morris’ evidence that he used alcohol to self-medicate and cope with his PTSD. He said that he drank alcohol to “alleviate the symptoms”:
I would play the scenes over and over in my head and if I had alcohol that seemed to relieve that.[79]
Asked whether the scenes to which he referred were matters which had occurred at work, he said:
Not – not so much at work; mainly the – the reason for my PTSD. That was something that played on my mind all the time, even at work also, which distracted me a lot, but it affected my work.[80]
Later, he said:
I would probably drink to excess, to the point where it cleared my mind when I didn’t dwell on things.[81]
[79]     Ibid, page 12, lines 42-44.
[80]     Ibid, page 13, lines 1-5.
[81]     Ibid, page 13, lines 27-29.
Adopting a similar approach to that in Sharp, I do not think that Mr Morris’ alcohol dependence can be disassociated from his PTSD as a separate non war-caused injury or disease. As Perry J observed in Sharp:
In conceptual terms, a symptom, complication or consequence of a disorder cannot constitute a separate factor from the disorder itself for the purposes of determining what factor or factors are operating to prevent an applicant from working.[82]
[82] [2017] FCA 350 [54] (Perry J).
Significantly, no separate diagnosis of alcohol dependence or abuse has been made by Dr Majumdar. As mentioned earlier, he first made his diagnosis of Mr Morris’ PTSD in July 2012. That diagnosis has remained unchanged over time. Although he was well aware of Mr Morris’ levels of alcohol consumption over the years, he at no time made a separate diagnosis in that regard.
Dr Majumdar attributed Mr Morris’ inability to work to his PTSD. At no stage did he say that Mr Morris was prevented from continuing his remunerative work because of his alcohol dependence or consumption.
For several months following Mr Morris’ ceasing work, Dr O’Sullivan discussed with him the need to reduce his drinking. According to Dr O’Sullivan’s clinical notes, various treatment options were discussed, including detoxification, rehabilitation and counselling. By March/April 2016, both Dr O’Sullivan and Dr Majumdar were noting that Mr Morris had reduced his drinking considerably; he had a number of alcohol free days and only drank a six pack in a week. His drinking had become a “non-issue”. Nevertheless, according to

Dr Majumdar, his PTSD symptoms remained almost unchanged.
Having regard to that medical evidence, I do not believe that alcohol dependence played a part in preventing Mr Morris from being able to continue in remunerative work.
In any event, as Mr Morris’ counsel submitted, there is no evidence to suggest that

Mr Morris’ alcoholic dependence had any impact at all on his performing his workplace duties. Apart from the Christmas party, he did not drink at work, even when alcohol was on offer after customers left it for the staff. His employer of seven or eight years, Mr Rowe, considered him a social drinker; it was never suggested to him in cross-examination that alcohol was a factor in the lead up to Mr Morris ceasing work. Mr Morris’ long standing general practitioner, Dr O’Sullivan, regarded him as a “functioning alcoholic”. Dr Majumdar observed that despite his heavy drinking, Mr Morris was able to function quite adequately in his job.
The Commission’s solicitor placed emphasis on Dr O’Sullivan’s “Ability to Work – Ceased or Ceasing to Work” form, in which he rated Mr Morris’ alcohol dependence as having a severe or disabling effect on many functions, and his concession at the hearing that, in light of that rating, alcohol dependence had to have some impact on Mr Morris’ work (which I together call the “Statements”). I do not attach the same weight or significance to those Statements. No explanation is provided for how Dr O’Sullivan reached the views he expressed in the Statements. Nor do the Statements seek to explain how the assessment stands with Dr O’Sullivan’s more extensively expressed opinion, that Mr Morris was a functioning alcoholic whose work history would disclose low absenteeism and the fact that he was never counselled in a negative sense by his superiors over his alcohol intake. Further, the Statements need to be viewed in the context of an earlier question asked of Dr O’Sullivan, as to whether he accepted that a patient presenting to him requiring detoxification and with a significant drinking problem would have some impact on his or her ability to work; Dr O’Sullivan responded that it was not his place to make such conclusions.[83] The Statements also need to be viewed against Dr O’Sullivan’s concession, that in the area of psychiatry and the diagnosis of psychiatric conditions, he would defer to the opinion of a specialist, such as Dr Majumdar. As I have said earlier,

Dr Majumdar made no diagnosis of alcohol dependence and at no stage said that

Mr Morris was prevented from continuing his remunerative work because of alcohol dependence or consumption. Moreover, Dr O’Sullivan’s Statements are at odds with the evidence of those best placed to express a view on the matter, namely Mr Morris himself and his former employer, Mr Rowe. For those reasons, I attach little weight to the Statements.
[83] Transcript of proceedings dated 21 September 2017, page 52, lines 31-35.
Finally, it was submitted by the solicitor for the Commission that particular attention should be paid to the evidence obtained from Dr O’Sullivan concerning the period largely coinciding with the commencement of the assessment period. That related to Mr Morris’ increase in his consumption of alcohol preceding his resignation and Dr O’Sullivan’s agreement with the proposition that, given the functional rating of 4 that he assigned, alcohol dependence had some impact on Mr Morris’ work. In response, counsel for

Mr Morris referred me to the decision in Hall v Repatriation Commission,[84] in which Spender J emphasised that it is necessary to consider the applicant’s entitlement at any time up until the date of the Tribunal’s decision. I agree with, and accept, that submission. It is clear from the evidence that even if (contrary to my view) Mr Morris had an alcohol condition that affected his ability to work, that issue was largely resolved by March/April 2016. However, his PTSD remained unchanged. At the very least, at that stage it was the condition which alone prevented Mr Morris from continuing in remunerative work.
[84][1994] FCA 458. See also Smith v Repatriation Commission (2014) 142 ALD 410,420, [40] (BuchananJ), quoted at paragraph 27 above.
The shoulder condition
Mr Morris testified that he had problems with his shoulders in about 2000, in that he was unable to lift his arms above his head. He recalled that he had treatment on each shoulder, which initially involved cortisone injections pending his being scheduled for surgery to remove calcium from each shoulder. He had surgery first on his right shoulder, before having surgery on his left shoulder the following year. Following the operations and physiotherapy, he did not have a problem; it was 100 percent on what it was before. His shoulders did not prevent him from doing any physical duties at work.[85] He demonstrated to me that he could still raise his arms above his head without any apparent difficulty.
[85] Transcript of proceedings dated 21 September 2017, page 15, lines 36-47 and page 16, lines 1-36.
Dr O’Sullivan’s clinical notes confirm that Mr Morris underwent a right open acromioplasty in June 2000 and a left acromioplasty in November the same year.[86] Notwithstanding the numerous subsequent consultations recorded in the notes, there is no further reference to problems with Mr Morris’ shoulders.
[86] Exhibit 10, Dr O’Sullivan’s clinical notes, page 1.
The only other reference to shoulder problems appears in a hand written notation by

Dr O’Sullivan on a referral to the occupational therapy practice, Able Therapy, on

20 June 2016.[87] Under the heading “clinical details of condition treated and services required”, there is a typed response, “Many thanks for seeing David, aged 59 yrs”. Next to that, Dr O’Sullivan has added in hand,” calcific shoulder tendonitis”. Questioned as to why he made that notation, Dr O’Sullivan had no particular recollection. His note of a consultation on 20 June indicated that he completed the form, but did not make any reference to the reason he was asked to provide it; there was no reference to calcific shoulder on that date, or in the notes of other consultations about that time.[88]
[87] Exhibit 11, summons documents from Able Therapy, referral form by Dr John O’Sullivan dated
[88] Transcript of proceedings dated 21 September 2017, page 46, line 24 to page 50, line 2.
Nor was there any reference at all to the shoulder condition in the clinical note of the occupational therapist, Ms Stephanie Jordan, who saw Mr Morris on 28 June 2016.[89]
[89] Exhibit 11, summons documents from Able Therapy, page 1 of 3, clinical note of Ms Stephanie Jordan
The note of a visit earlier this year by another occupational therapist, Ms Natasha Nawrocki, described Mr Morris’ limitations as “(l)ifting arms above shoulders, cleaning above shoulders, lifting in general due to LBP (lower back pain)”.[90] As I mentioned earlier, Mr Morris denied having reported to Ms Nawrocki in those words, saying that he does not “do those things if it’s going to affect me”.[91]
[90] Exhibit 11, summons documents from Able Therapy, page 3 of 3, clinical note of Ms Natasha Nawrocki
[91] Transcript of proceedings dated 21 September 2017, page 27, lines 4-7.
Having regard to the foregoing, the only inference I can draw is that the shoulder condition is not an active condition.
Mr Morris has had no problems with his shoulders since his operations some 16 or more years ago. Not unlike his back condition, he deals with his condition by avoiding tasks that might aggravate it. There is nothing to suggest that this condition played any part in preventing him from being able to undertake remunerative work. In particular, there is no functional assessment or medical evidence to support such a contention.
Domestic circumstances
The Commission contended that Mr Morris’ domestic circumstances, namely the current care and assistance he provides to his partner, Ms Buckett, and his grandchildren, are other non-war related factors relevant to the test under s 24(1)(c).[92]
[92] Commission’s submissions dated 21 September 2017, page 4.
Counsel for Mr Morris submitted that they were not matters which prevented Mr Morris from undertaking remunerative work. They were simply matters that he attended to because he was at home; there was no suggestion that if he were not home, they would not be done by Ms Buckett or someone else. There was no evidence that he could not keep working because of the household arrangements, or that they prevented him from returning to work.[93]
[93] Transcript of proceedings dated 21 September 2017, pages 65 (line 40) to page 66 (line 11) and page
I agree with, and accept, the submissions on behalf of Mr Morris. I am not satisfied that the domestic circumstances were matters that prevented Mr Morris from undertaking remunerative work.
Summary – the first limb of s 24(1)(c)
To summarise, I am not satisfied that the non war-caused injuries or diseases highlighted during the hearing played any part in preventing Mr Morris from being able to undertake remunerative work.
I am satisfied that Mr Morris’ war-caused PTSD alone prevented him from continuing to undertake remunerative work.
Accordingly, I believe that the first limb of s 24(1)(c) is satisfied.
The second limb of s 24(1)(c)
The second limb of s 24(1)(c) is that the war-caused incapacity must have led to a “loss of salary or wages, or of earnings on ( the veteran’s) own account”.
It follows from what I have said in relation to the first limb that Mr Morris did not cease work for any reason other than his PTSD.
The decision to leave work permanently was a very important decision for the family.

Mr Morris liked his work and had intended to work until retirement age. He and Ms Buckett were worried about finance and how they would cope. Notwithstanding that, the decision to stop work was taken. Ms Buckett could see how distressed Mr Morris was, and that he could not cope at work.[94]
[94] Transcript of proceedings dated 21 September 2017, page 35 (line 43) to page 36 (line 30).
In light of that evidence, I am satisfied that Mr Morris’ incapacity has led him to suffer a loss of salary or wages or earnings that he otherwise would not have suffered but for his war-caused condition. As such, I consider that the second limb of s 24(1)(c) is satisfied.
CONCLUSION
I am reasonably satisfied that Mr Morris meets all the criteria for the Special Rate of pension from 1 August 2015 (being the day immediately following the day on which he ceased work).
Accordingly, the Tribunal sets aside the decision under review, and in place of that decision, determines that Mr Morris is entitled to pension at the Special Rate provided for in s 24 of the Act, with effect from 1 August 2015.

I certify that the preceding 103 (one hundred and three) paragraphs are a true copy of the reasons
for the decision herein of
Senior Member A C Cotter

................................[Sgd].......................................
Associate
Dated: 14 November 2017

Date of hearing: 21 September 2017

Solicitors for the Applicant:

Counsel for the Applicant:

Mr Terence O'Connor
Terence O'Connor Solicitors

Mr Anthony Harding

Solicitors for the Respondent: Mr Peter Crethary and Ms Rachel Blake
Moray & Agnew Lawyers

increase dated 29 June 2015.

30 June 2015.

22 July 2015.

4 November 2015.

decision dated 1 February 2017.

27 August 2015.dated 13 August 2015.

paragraph 22 above.

Statement of Facts and Contentions dated 31 July 2017, [19]-[22].

Statement of Facts and Contentions dated 31 July 2017, [23].

20 June 2011.

24 February 2014.

15 August 2013.

21 September 2017, page 34, lines 1-19.

dated 10 August 2017.

dated 11 July 2012.

1 August 2013.

13 August 2015.

18 March 2016.

John O’Sullivan dated 27 August 2015.

20 June 2016.

dated 28 June 2016.

dated 10 August 2017.

69, lines 23-34.