Paxton and Repatriation Commission (Veterans' entitlements)

Paxton and Repatriation Commission (Veterans' entitlements) [2019] AATA 1305 (17 June 2019)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2016/3476
Re:Richard Paxton
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Senior Member Linda Kirk
Date:17 June 2019
Place:Sydney

The decision under review is affirmed.
...............................[SGD].........................................
Senior Member Linda Kirk
CATCHWORDS
VETERANS’ AFFAIRS — Veterans’ entitlements — Special rate of pension - Intermediate rate of pension— Whether Applicant's incapacity renders him incapable of undertaking remunerative work for period aggregating more than eight or 20 hours a week - Whether incapacity from war-caused injuries “alone” prevented the veteran from undertaking remunerative work — Whether the veteran genuinely sought to engage in remunerative work - Applicant incapable of undertaking remunerative work for periods aggregating more than eight hours - Applicant had no further work opportunities, suffers from non-service related conditions - Applicant fails 'alone' test - No evidence to show that Applicant sought to genuinely seek alternative remunerative work - reviewable decision affirmed
LEGISLATION
Veterans’ Entitlement Act 1986 (Cth)
CASES
Chambers v Repatriation Commission [1995] FCA 1144
Flentjar v Repatriation Commission [1997] FCA 1200
Forbes v Repatriation Commission [2000] FCA 328
Leane v Repatriation Commission [2004] FCAFC 83
Re Cavell and Repatriation Commission (1986) 10 ALN N233
Repatriation Commission v Buckingham [1996] FCA 1218
Repatriation Commission v Butcher [2007] FCAFC 36
Repatriation Commission v Hendy [2002] FCAFC 424
Repatriation Commission v Richmond [2014] FCAFC 124
Repatriation Commission v Watkins [2015] FCAFC 10
Smith v Repatriation Commission [2014] FCAFC 53
Starcevich v Repatriation Commission [1987] FCA 342
Summers v Repatriation Commission [2015] FCAFC 36
SECONDARY MATERIALS
Robin Creyke and Peter Sutherland, Veterans’ Entitlements and Military Compensation Law
Guide to the Assessment of Rates of Veteran’s Pensions
REASONS FOR DECISION
Senior Member Linda Kirk
17 June 2019
INTRODUCTION

Mr Richard Paxton (‘the Applicant’) was born in 1949. He was conscripted into the Australian Army for National Service from 1 October 1969 to 31 December 1971. He rendered operational service for the purposes of the Veterans’ Entitlement Act 1986 (Cth) (‘the Act’) from 2 December 1970 to 18 November 1971.
On 9 July 2013 the Applicant lodged a claim for ‘Back’ stating it was related to ‘heavy lifting in Vietnam as storeman’.[1]
By Determination dated 30 October 2013, the Repatriation Commission (‘the Respondent’) accepted liability for lumbar spondylosis pursuant to the Act, with effect from 9 April 2013. The Determination increased disability pension to 40% of the General Rate.[2] This was an overall assessment that included incapacity for a previously accepted war-caused condition of bilateral sensorineural hearing loss.
On 11 November 2013 the Applicant lodged an application for review of the Determination dated 30 October 2013 to the Veterans’ Review Board (‘VRB’).[3]
On 12 December 2013 the VRB set aside an earlier decision of the Respondent dated 29 May 2012 and accepted liability for a claim made by the Applicant on 24 October 2011 for PTSD, alcohol dependence, irritable bowel syndrome, gastro-oesophageal reflux disease, lichen simplex chronicus and depressive disorder.
In a decision dated 23 May 2016, the VRB set aside the decision dated 30 October 2013 and substituted its decision that pension continued to be paid at 100% of the General rate from and including 9 April 2013 (‘the Reviewable Decision’).[4]
On 4 July 2016 the Applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the Reviewable Decision.[5]
LEGISLATIVE FRAMEWORK
Section 14 of the Act provides for pension claims. Section 15(1) of the Act enables veterans to apply for an increase in their pension payments on the ground that incapacity has increased since the previous rate of pension assessment.
Section 19 prescribes the way in which, inter alia, applications for an increase in pension are determined. Subsection 19(5B) directs that an assessment of such an application must be made in accordance with whichever of s 22 (General rate of pension), s 23 (Intermediate rate of pension) or s 24 (Special rate of pension) applies. While s 19(5B) also directs attention to ss 25, 27 and 30, these provisions are not relevant to this matter.
In determining eligibility, a veteran’s entitlement is assessed in respect of any circumstance within the ‘assessment period’. This period runs from the date of application for an increase in the pension until the decision of the Tribunal – s 19(9). In this matter, the assessment period commenced on 9 July 2013 and concludes when the Tribunal makes its determination.
The central concept for determining the amount of pension payable is the degree of incapacity. Section 21A of the Act provides for the determination of the degree of incapacity by reference to the relevant provisions of the Guide to the Assessment of Rates of Veteran’s Pensions (GARP).
The general rate of pension and the extreme disablement adjustment are prescribed by s 22. In this matter the Applicant is over 65 years of age, but did not pursue a claim for the extreme disablement adjustment.
There are two other rates of pension apart from the general rate of relevance in this matter: the Intermediate rate and the Special Rate.
Special rate of pension
To be eligible for pension at the Special rate, the requirements of s 24 of the Act must be met. Section 24 provides:
24Special 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)       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)       the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; 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.
…
Accordingly, there are a number of criteria that must be met before a Special rate pension is paid. First, the veteran must not have turned 65 when the claim or application is made – s 24(1)(aab). Second, the veteran’s degree of incapacity from war-caused injury or war-caused disease must have been determined to be at least 70% – s 24(1)(a)(i). Third, the veteran must be totally and permanently incapacitated, that is, the veteran’s incapacity must be of such a nature as, of itself alone, renders the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. – s 24(1)(b). Fourth, the veteran is, by reason of incapacity of war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work that the veteran was undertaking - s24(1)(c).
Intermediate rate
Eligibility for a pension payable at the Intermediate rate is provided for in section 23 of the Act:
23Intermediate 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)       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)       the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(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; and
(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 from that incapacity; and
(d)       section 24 or 25 does not apply to the veteran.
(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.
(3)       For the purpose of paragraph (1)(c):
(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.
…
To qualify for the Intermediate rate, a veteran must be rendered incapable of undertaking remunerative work other than on a part-time or intermittent basis. If the veteran is capable of undertaking work of a particular kind for 50 per cent of the time ordinarily worked by persons engaged in work of that kind on a full-time basis, or for 20 hours or more per week, they do not qualify.
Capacity to Undertake Remunerative Work
In determining, for the purposes of s 23(1)(b) or s 24(1)(b) of the Act, whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, decision-makers must apply s 28 of the Act, which allows regard to be had only to the following factors:
(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).
ISSUES FOR DETERMINATION
The issue to be determined is whether the Applicant is entitled to disability pension at the Special Rate, or the Intermediate Rate, rather than 100 per cent of the General Rate. However, as required by s 23(1)(d), it is necessary first to consider eligibility for the Special Rate under s 24, before turning to the Intermediate Rate. In effect, s 23 only applies if ss 24 or 25 do not apply to the veteran.
There is no dispute that the Applicant’s claim satisfies the requirements of ss 24(1)(aa) and 24(1)(aab) of the Act, because he made a valid application for a pension increase under s 15 of the Act and had not yet turned 65 when making his claim. His degree of service-related incapacity has been assessed at 100% per cent, which means he also satisfies s 24(1)(a)(i) of the Act.
The issues in dispute are whether:
(1)The Applicant’s incapacity from war-caused conditions renders him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week for the Special rate (s 24(1)(b)); or 20 hours a week for the Intermediate rate (s 23(1)(b)).
(2)The Applicant satisfies the ‘alone test’ in s 24(1)(c), or the ‘ameliorating provision’ in s 24(2)(b) of the Act.
There are two limbs to s 24(1)(c) of the Act,[6] which may be informed by ss 24(2)(a)-(b):
(a)The first limb requires that the Applicant is, by reason of incapacity from his accepted conditions alone, prevented from continuing to undertake the remunerative work that he was undertaking. This limb may be ameliorated by s 24(2)(b);[7] and
(b)The second limb is that, as a consequence of the first limb, the Applicant is suffering a loss of salary or wages that he would not be suffering if free of his accepted incapacity. The operation of the second limb is amplified by s 24(2)(a).[8]
The standard of proof to be applied is outlined in s 120(4) of the Act. The Tribunal must determine all relevant issues to its reasonable satisfaction and decide, on the balance of probabilities, the correct rate of pension to which the Applicant is entitled.
MATERIAL BEFORE THE TRIBUNAL
The application was heard at a hearing of the Tribunal in Sydney on 11 and 12 February 2019.
The Tribunal heard evidence from the following witnesses:
·The Applicant;
·Dr Thomas Rosenthal, Occupational Physician, who was called by the Applicant and gave evidence by telephone;
·Dr Robin Chase, Occupational Physician, who was called by the Respondent and gave evidence by telephone;
·Dr Anthony Dinnen, Consultant Psychiatrist, who was called by the Applicant and gave evidence by telephone;
·Dr Selwyn Smith, Consultant Psychiatrist, who was called by the Respondent and gave evidence in person.
The following material was before the Tribunal:
·Applicant’s Statement of Facts, Issues and Contentions dated 27 February 2018;
·Statement of the Applicant dated 18 November 2016 (Exhibit A1);
·Medical Report of Dr Thomas Rosenthal dated 14 November 2016 and briefing letter dated 31 October 2016 with attachments (Exhibit A2);
·Medical Report of Dr Anthony Dinnen dated 13 July 2017 and briefing letter dated 26 June 2017 (Exhibit A3);
·Applicant’s Medication Sheet from Coffs Kidney And Hypertension Clinic as at 30 January 2019 (Exhibit A4)
·Respondent’s Statement of Facts, Issues and Contentions dated 6 June 2018;
·Respondent’s s 37 documents (T1 to T20, pages 1-270) (Exhibit R1);
·Respondent’s Supplementary T documents (T21-T44, pages 271 - 446) (Exhibit R2);
·Medical Report of Dr Selwyn Smith dated 14 March 2017 and briefing letter dated 9 March 2017 (Exhibit R3);
·Medical Report of Dr Robin Chase dated 4 April 2017 and briefing letter dated 9 March 2017 (Exhibit R4);
APPLICANT’S EVIDENCE
Employment before, during and after service
Prior to his conscription into the Army, the Applicant worked as a spare parts salesman with Thomson Ford in Parramatta from 1965 to 1969.
During his 12 months deployment in Vietnam, the Applicant was stationed in Nui Dat and Vung Tung. He worked in warehouses and driving vehicles and had two short periods providing hot water to fire support bases.[9]
Following his discharge from the Army, the Applicant returned to his previous occupation at Ford as a spare parts salesman. From 1971 until 1975, he held a full-time position in this role. He then moved into the field of construction and spent two years building a gas plant, before returning to his previous position with Ford in Canberra for another three years.[10]
Employment with State Railways
The Applicant commenced working with the NSW State Railways in Grafton in 1979, initially as a labourer before becoming Team Leader in maintenance in the mid-1990s,[11] and then a Safety Officer.[12]
During his oral evidence, the Applicant explained that his work as a Safety Officer was to protect the rail corridor, which is three metres either side of the running rail. He had to ensure that blocks were put in place by train control back in Broadmeadow and Newcastle so that no train could enter the section of the track during certain periods of time.[13] He had to fill out forms relying on information conveyed to him over the phone and read it back to confirm its accuracy.[14]
In 2004, Australian Rail Track Corporation (ARTC) took over State Rail. Following this, the Applicant’s role changed to that of a labourer.[15] In May 2005, he was made redundant and he received a redundancy payment of $50-60,000.[16]
Following his redundancy, he did some small roles and then commenced work with Laing O’Rourke in early 2006.[17] He was employed by Laing O’Rourke to work as a casual protection officer on a major job being the concreting of the whole of the North Coast.[18] He worked in this role until November 2008.[19]

In his written statement dated 18 November 2016, the Applicant described his work as a protection officer:
The last job I held was the NSW State Government position as a protection officer doing full time work on the Railways although I was made redundant in 2005. The job was then taken over by "Lang O'Rourke" doing the same job from 2005 to 2008 as a casual essentially ensuring that train lines were clear from maintenance workers and equipment for a safe passage that trains could pass through.
The job was 8 or 9 day fortnight and a 3 or 4 day weekend. As a casual the work was still full time it was just I was not on as a permanent employee. I would have to travel all up the north coast of NSW from Brisbane down to Newcastle and I would talk to train control about whether they could work on the rail corridor. I would have to speak to them and at times clear the train and then confirm that a train could go through.
I would do this by directing the supervisors in charge of the men doing the rail maintenance work to stop pack and clear the area so trains could go through.
I would communicate the clearance via telephone that was a mobile phone in the later years although earlier there were rail phones you would hook into poles or go to s [sic] signal and use a phone on a signal.
Reasons for ceasing employment
In his statement, the Applicant explained the circumstances surrounding his ceasing employment:
Over time, my hearing was failing and by 2008 I could not hear properly as I could not hear clearly around other noise i.e. machinery and other noise so I could not do the job safely so I decided to stop work.
At the hearing, the Applicant explained that he had difficulty hearing what was being said to him over the phone when there was background noise, for example machinery, and he had to move away from the machinery or wait for it to stop to be able to hear.[20] His hearing was identified as a problem in the late 1990s when he underwent medicals for State Rail.[21]
In November 2008, the major job concreting the whole North Coast track ended. When the Applicant had his yearly medical check with Laing O’Rourke, the results of his hearing test showed that his hearing was not up to standard,[22] and he ‘was a bit of a liability’.[23]
Post-employment job-seeking
After ceasing employment with Laing O’Rouke, the Applicant did some work as a casual protection officer for a number of small companies.[24] He explained to the Tribunal that his hearing was not as important to these companies as it was to Laing O’Rourke.[25] During 2009 he probably worked about seven to eight days for Weka and Men at Work, who hire out protection officers.[26] The Applicant told the Tribunal that eventually ‘the calls stopped coming’, and there was no further work available as a protection officer.[27]
In his written statement, the Applicant explained his attempts to find further work:
There was also an opportunity to go and do … work i.e. maintenance of the train lines but as I had a sore back that has been accepted there was little scope to try and do this work.
I have not tried to find other jobs as I realise that with my hearing issues and not being able to hear or communicate clearly, my psychological state that required me to see a psychiatrist, Dr Carter who I continue to see and take medication, there was little scope of being able to work in the areas that I had experience i.e. rail protection and maintenance work.
The only other work the Applicant considered doing was as a service station console operator, but he did not have the experience for this role and it was hard to find work without experience.[28] He was asked why he did not seek any alternative employment, to which he replied, ‘I was in my 60s and you just don’t find jobs.’[29]
Medical conditions
Hearing loss
The Applicant made a claim for disability pension based on his hearing loss in 2001. He had raised the hearing problems he was experiencing at work with his GP, Dr Nigel Bacon, in August 2001 whose clinical notes reference ‘Hard to hear with background noise’.[30] However he does not remember seeking any treatment for this condition.[31] On 20 August 2001 he attended a hearing assessment at Australian Hearing after being requested to do so by Department of Veterans’ Affairs (‘DVA’). The results of the audiogram test were that the Applicant had ‘mild to moderately sensory-neural hearing loss’ in the right ear and ‘mild to moderately severe mixed hearing loss’ in the left ear.[32] In cross-examination, the Applicant agreed that he knew he was having problems with his hearing in 2001, although he was not a protection officer at this time.
The Applicant underwent a further hearing test in August 2009 by Australian Hearing at the request of DVA. The results indicated that he would benefit from amplification from hearing aids in both ears.[33] He underwent another hearing test by Australian Hearing in September 2013. The report of the test noted that the Applicant ‘could potentially benefit from a hearing aid in the right ear’ but that he did ‘not feel he has enough communication difficulties to warrant hearing aids.’[34] Further tests in March 2014 and October 2015 indicated that he would benefit from the use of hearing aids, but he did not wish to be fitted with them.[35]
Psychiatric conditions
The Applicant saw Dr Robert Delaforce, psychiatrist, in August 2001 following the death of his partner.[36] In his report, Dr Delaforce noted that the Applicant received some marriage guidance counselling in the late 1970s, and in 1994-95 he received treatment, including anti-depressant medication, for depressive symptoms associated with the end of his marriage and his gambling. He noted that the Applicant made a full recovery prior to the onset of work-related stress following a workplace accident in 1996. The Applicant confirmed that at this time he saw a counsellor at Grafton Hospital.[37]
The Applicant did not seek psychiatric treatment again until 2011 when he consulted Dr Janis Carter whom he continues to see for his accepted conditions of depressive disorder and PTSD. In her report dated 24 January 2012, Dr Carter provided the following opinion in relation to the Applicant’s capacity to work:
He is totally and permanently incapable of working. Originally he lost his job because of his hearing loss where he was a safety officer, and he also has conditions of lumbosacral spine problems and both his knees are affected, which means he can't do manual labour, and he suffers from post traumatic stress disorder and alcohol dependence and he is not able to work in an office situation. He is not deployable to any job I can think of.[38]
Back condition
The Applicant first had problems with his back in the early 1980s. He received some physiotherapy and had a few days off work over the years. He agreed that his back problem ‘waxed and waned’ but he managed in the role he was doing at work.[39] Where possible he would avoid manual work, which he could largely do when he was a team leader.[40] In 2004 he had an x-ray for back pain and was given some anti-inflammatory medication. He confirmed that when he ceased work in 2008 he was not seeking any treatment for his back other than occasional physiotherapy sessions. He did not see a specialist and he did not have any surgery. It did not prevent him from continuing to perform his role at work.[41]
Knee condition
The Applicant was questioned about his non-accepted knee condition. He told the Tribunal that he had full knee replacements in his right and left knees in 2014 and 2015 respectively. He had no problems with his knees when he ceased work in 2008, but they deteriorated quickly during the next six years until he had the surgery in 2014-15.[42] Following the surgery, his knees are better but they are not perfect.[43] Prior to the operation he had severe pain, whereas now he can walk around and can walk the dog.
MEDICAL EVIDENCE
Dr Thomas Rosenthal, Occupational physician
Dr Rosenthal saw the Applicant at the request of his solicitors on 14 November 2016 and provided a report of the same date.[44] In his report, Dr Rosenthal deferred to the opinion of Dr Carter in relation to the Applicant’s psychiatric condition.
Dr Rosenthal provided the following assessment of the Applicant’s capacity to work:
In his current state Mr Paxton is certainly precluded from working more than 8 hours per week due to his accepted disabilities alone, being his significant psychological injury of post-traumatic stress disorder, depressive disorder and alcohol dependence as well as his physical injuries including his lumbar spondylosis and hearing loss.[45]
Dr Rosenthal noted the absence of independent evidence in relation to the Applicant’s condition at the time he ceased work in November 2008:
There appears to be no medical information in regards to his condition in 2008 at the time he stopped work. This makes it very difficult to determine what his medical condition was at that time. Mr Paxton himself maintains that there was a significant hearing problem causing safety issues within his workplace. There is no clear evidence that his back condition or his psychiatric condition was impacting on him at that time. Without additional medical information it is impossible to comment except that he may well have had symptoms from all his accepted medical conditions at the time he stopped work. It is unclear whether those conditions were actually preventing him from working at that time.[46]
In his oral evidence, Dr Rosenthal confirmed that the Applicant told him he was having hearing problems when he ceased work, but he did not specifically mention his back condition.[47] He confirmed that it was very difficult for him to determine what the Applicant’s medical condition was at the time he ceased work. He relied on what the Applicant told him rather than his own assessment about whether he could safely do the work at the time.[48]
In relation to the impact of the Applicant’s non-accepted conditions on his ability to undertake remunerative employment, Dr Rosenthal stated in his report:
There is no impact from his hypertension or his varicose veins on his fitness for work. The prostate condition is also having no impact on his fitness for work. He has some restriction in his left knee movement following his total knee replacement, and this could impact on his prolonged standing or walking activity, but in all likelihood there would only be a minor impact on this condition and his seeking remunerative employment.[49]
During cross-examination, Dr Rosenthal agreed that in order to have total knee replacements the Applicant would have experienced symptoms in his knees for some time.[50] He also agreed that there would have been some impact from his knees on the Applicant’s ability to work as there would have been some standing and walking involved.[51]
Dr Robin Chase, Occupational Physician
Dr Chase saw the Applicant at the request of the Respondent’s solicitors on 10 March 2017 and provided a report dated 4 April 2017.[52]
In his opinion, the Applicant’s PTSD/depression appeared to be in partial remission and this may result in some partial incapacity for work. He noted that his back pain would prevent him from working in any manual role, and he would require sedentary or administrative work. He considered that the Applicant’s non-accepted knee condition would preclude him from any sort of manual work or work that required prolonged standing or walking.[53] He concluded that the Applicant would be capable of working more than eight but less than 20 hours per week.[54]
During his oral evidence, Dr Chase told the Tribunal that he was unable to perform audiometry at the consultation, but relied on the report of the test conducted in October 2015, which showed the Applicant has 15% hearing loss.[55]
Dr Chase was asked to comment on the Applicant’s bilateral knee replacements, and the period of time over which he would have been likely to have experienced pain prior to the surgery. He said that a person would need to have a fair amount of pain before proceeding with this operation.[56] In relation to the impact of the knee replacements on his capacity to work, Dr Chase said that he would have a great deal of difficulty in doing any of the sort of work he had done in the past. Although the Applicant had reported good results, and some, but not many, people can return to labouring work post surgery.[57]
During cross-examination, Dr Chase elaborated on the effects of bilateral knee replacements:
Well, I mean, a good result doesn’t mean that you don’t have some reduced mobility. If you’ve got bilateral knee replacements you are going to have restrictions. But knee replacements generally are for pain relief. There is some improvement in function, often substantial improvement in function, but nobody with bilateral knee replacements is going to be running marathons in the near future, nor should they be doing a lot of climbing or repetitive kneeling or squatting, so you know, even the best knee replacement will leave you with impairment.[58]
Dr Anthony Dinnen, Consultant Psychiatrist
Dr Dinnen saw the Applicant at the request of his solicitors on 3 July 2017 and provided a report dated 13 July 2017.[59] He provided the following opinion in relation to the Applicant’s capacity to work:
As noted above I find myself in agreement with Dr Carter. I believe that she had properly assessed the situation when she advised the patient was unfit for employment from the time that she examined him. I would consider that his unfitness for work dated from the time of his last employment in 2008 although he advises me that he may have done a couple of casual jobs subsequent to that. Certainly he has been totally and permanently unfit to work more than 8 hours a week from the time that he started seeing Dr Carter in August 2011.[60]
During his oral evidence, Dr Dinnen explained that the Applicant’s reluctance to admit to his service experiences and consequent problems is unusual, but consistent with PTSD.[61] He disagreed with Dr Smith’s diagnosis of gambling disorder,[62] and with Dr Chase’s view that the Applicant’s psychiatric symptoms are in partial remission.[63] In his view, the Applicant’s PTSD is the cause of his incapacity to work more than eight hours, irrespective of any other condition.[64]
Dr Selwyn Smith, Consultant Psychiatrist
Dr Smith saw the Applicant at the request of the Respondent’s solicitors on 9 March 2017 and provided a report dated 14 March 2017.[65] He diagnosed the Applicant as suffering Alcohol Use Disorder and Gambling Disorder.[66] He disagreed with the diagnosis of PTSD by Dr Carter[67] and with Dr Chase’s view that his condition was in ‘partial remission’.[68]
In his opinion, the Applicant’s accepted conditions, namely PTSD, Alcohol Use Disorder and Depressive Disorder, do not significantly intrude into his employment activities.[69] He noted that the Applicant reported that he ceased work because of the impact of his diminished hearing capacity on his ability to undertake the tasks required of him and also because he was limited because of his back pain. The Applicant told him that ‘had further work been available to him he would have liked to continue his work, perhaps in a different work role.’[70] He reported that the Applicant did not state that he relinquished remunerative employment because of any psychiatric disorder.[71] From a psychiatric point of view the Applicant is not incapacitated in regard to undertaking remunerative employment.[72]
In his oral evidence, Dr Smith said that during his consultation with the Applicant he ‘got the distinct impression that the reason why he gave up work was on account of hearing deficits and not psychiatric issues’[73] and, if the Applicant had the opportunity ‘he would have liked to have continued working’.[74] He ‘saw no reason why, if psychological factors [were] relevant, that he would not have disclosed them …’[75]
SUBMISSIONS
Applicant
The contentious aspect of the claim is the ‘alone’ test. The reason the Applicant ceased work in November 2008 was because of his accepted conditions, namely lumbar spondylosis and hearing loss. His hearing difficulties and his role as a protection officer on the railways together with his back condition, which prevented him from accepting alternative employment which involved more physical work, were the reasons why he could not continue to undertake the kind of remunerative work he had been doing.
The evidence to support this contention is the Applicant’s evidence that, following a hearing test, he was advised by his employer that he was not fit for the role of protection officer, and he felt there was a safety consideration involved, and he therefore ceased work. He was offered an alternative role in a more physical capacity, which he was unable to do because of his back condition. The fact that the work had come to an end was a factor in him ceasing work, but the real reason was because of his accepted conditions.
Another reason for the Applicant ceasing work was his PTSD diagnosis by Dr Carter, with which Dr Dinnen agreed.
In relation to the Applicant’s capacity to work, Dr Dinnen, Dr Rosenthal and Dr Carter all state he cannot work in excess of eight hours, and Dr Chase is of the opinion he can work eight hours but he cannot work more than 20 hours.
In relation to the Applicant’s knees (non-accepted condition), if he wished to engage in duties as a protective officer or in a more sedentary role, his knees would not impact on his capacity to work.
The ameliorating provisions in s 24(2)(b) of the Act are applicable in the Applicant’s circumstances. He made genuine attempts to obtain alternative employment in 2009 and this was in a period when he was still under the age of 65 years. Accordingly he need only show that the substantial reason for him ceasing work was from his accepted conditions.
Respondent
The incapacity suffered by the Applicant is not of such a nature of itself alone to render the Applicant incapable of undertaking remunerative work (s 24(1)(b)). The Applicant’s hearing loss was not incapacitating to the degree the Applicant claims. He was able to do his job as a protection officer for some time despite the difficulty he had with his hearing. Furthermore, once he ceased employment with Laing O’Rourke, he obtained work doing the same protection officer role with a number of smaller companies and his hearing was not identified as an impediment to these roles.
The evidence of the impact of the Applicant’s hearing loss on his capacity to work is limited. The only evidence that the Applicant failed an audiometry test conducted by his employer in November 2008 is that provided by him. There is no evidence of the results of this test or how these results compared to those of audiometry tests undertaken during medicals in previous years.
In relation to his back condition, there is no evidence to suggest that it was causing the Applicant problems in a way that prevented him from being able to work in 2008. There is also nothing to suggest that the Applicant’s psychiatric condition or his alcohol use disorder impacted on his capacity to work.
The Applicant does not satisfy the ‘alone’ test in s 24(1)(c). He ceased employment because of the unavailability of work following the end of the major job concreting the North Coast. Had work been available, he would have continued to work as a protection officer, and he did so for seven or eight discrete days after he ceased employment with Laing O’Rourke in November 2008. There is no evidence that his hearing problems impacted on his ability to undertake these subsequent work roles. The Applicant’s age and his lack of alternative qualifications are further reasons why he is prevented from undertaking remunerative work.
In relation to the Applicant’s non-accepted conditions, he had total knee replacements within the assessment period from 2013 to date. He has therefore been prevented from undertaking remunerative work for a reason unrelated to his accepted conditions.

The ameliorating provision does not apply in the Applicant’s circumstances because he has not been genuinely seeking alternative remunerative employment. Further, it does not apply because the evidence does not point to the accepted conditions being a substantial reason for the Applicant’s inability to work.
CONSIDERATION AND REASONS
The Tribunal has considered all of the material before it, as well as the oral submissions of the parties, the evidence of the Applicant and the expert medical evidence. The Tribunal is satisfied that the parties have had an adequate opportunity to present their case and to be heard by the Tribunal.
The legislation requires that the evidence before the Tribunal must satisfy a number of tests; if any one of the criteria is not met, the Applicant will not be eligible for payment of pension at the Special or Intermediate Rate. There is no discretion in this regard.
In Smith v Repatriation Commission [2014] FCAFC 53; (2014) FCR 452 (‘Smith’), Buchanan J elaborated at [47] – [49] upon the legislative requirements under s 24(1)(b) and (c) of the Act:
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 eight 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). The overall effect of s 24(1)(c) may be summarised as one which requires a demonstrated loss of earnings as the direct result of the war-related incapacity, and only for that reason. Section 24(2)(a) supplements the requirements of s 24(1)(c) by identifying specific circumstances which will cause it not to be satisfied. Those circumstances, in effect, state the opposite to the conditions in s 24(1)(c) itself. Thus, there is no established loss of earnings by reason of the incapacity if remunerative work was ceased for other reasons (s 24(2)(a)(i)), or if the veteran is also incapacitated or prevented from doing remunerative work for some other reason (s 24(2)(a)(ii)). In this assessment, of course, it continues to be accepted that the veteran is actually incapacitated in any event (‘a veteran who isincapacitated...’). The purpose of the enquiry is to see whether, nevertheless, there are other explanations for economic loss so that the incapacity is not the only reason for it.
(1) Does the Applicant’s incapacity from service-caused conditions of itself alone render him incapable of incapable of undertaking remunerative work?
For a person aged under 65, s 24(1)(b) and s 23(1)(b) of the Act require that the Applicant's incapacity from service-caused conditions, must be of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for more than 8 hours per week (or 20 hours a week, or, 50% of what is ordinarily worked in a particular kind of work for the Intermediate Rate).
This test requires an examination of the Applicant’s incapacity from his service-caused conditions to determine whether or not that incapacity is such, of itself alone, to render him incapable of undertaking remunerative work for the relevant duration. This does not require an examination of other causes that might render him unable to undertake remunerative work, but merely whether the service-caused disabilities, on their own, are sufficient to render him incapable of undertaking such work.
Subsections 24(1)(b) and 23(1)(b) require an examination of the Applicant’s capacity to undertake remunerative work which he is physically and mentally able to carry out. The test is not limited to the type of work previously undertaken or for which the veteran is qualified by training or experience: Chambers v Repatriation Commission [1995] FCA 1144; (1995) 129 ALR 219, where the Court said at 234:
... A person's skills are not confined to those acquired informal training or by virtue of experience in particular employment. They include innate aptitude for tasks and abilities acquired or developed independently of employment or training. For example, a person may never have used computers at work and have no formal computer training. If that person has self-taught word processing skills, he or she nonetheless has skills that may well enhance opportunities for remunerative work. Similarly "qualifications" means (Oxford Shorter Dictionary and Macquarie Dictionary) "a quality or accomplishment which qualifies or fits a person for some office or function”. The word is not confined to qualifications obtained as the result of formal training or work experience. Again, a person's experience is not necessarily restricted to that acquired in employment or formal training.
Section 28 provides guidance in determining whether a veteran is incapable of undertaking remunerative work by setting out the only matters that regard can be had to in deciding that question. These matters are:
(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 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).
(a) What are the Applicant’s trade and professional skills, qualifications and experience?
The Applicant developed a number of skills during his three decades working on the railways including, as a manual labourer, as a team leader, and as a protection or safety officer. Accordingly, the Tribunal finds that he has the skills and experience to work in a range of manual labour roles, including undertaking maintenance and repairs, as a supervisor overseeing the work of teams, and undertaking work that involves security and safety checks.
(b) What kinds of remunerative work might a person with the Applicant’s skills, qualifications and experience reasonably undertake?
The test requires an examination of all of the different kinds of work that a hypothetical person with the relevant skills and experience of the Applicant might reasonably undertake: Repatriation Commission v Buckingham [1996] FCA 1218. The term "remunerative work" is broadly defined to include "any remunerative activity".
In Repatriation Commission v Butcher [2007] FCAFC 36 at [7], the Full Court said:
It is settled law that the subsection requires consideration of ‘remunerative work’ by having regard not to particular tasks and duties involved in specific jobs, but rather to the type of substantive work undertaken by the veteran considered at a higher level of generality...
A person with the Applicant’s skills, qualifications and experience could reasonably undertake remunerative work in a manual labour role, performing maintenance or repair work, supervising teams of workers, and doing safety or security checks in the construction industry, and not specifically limited to work on the railways.
(c) To what degree do the Applicant’s service-caused conditions reduce his capacity to undertake these kinds of remunerative work?
The Tribunal must decide whether the Applicant’s incapacity from his accepted conditions alone prevent him from working more than 8 hours per week for the Special Rate or, for the Intermediate Rate, 20 hours a week (or 50% of what is ordinarily worked in a particular kind of work), in any kinds of work that a person with his skills, qualifications and experience might reasonably undertake. In considering this question the Tribunal must disregard all of the Applicant’s non-accepted disabilities or any other factors that might have an impact on the Applicant’s capacity to undertake those kinds of remunerative work. The question is whether the Applicant’s accepted conditions of themselves alone render the Applicant incapable of undertaking those kinds of remunerative work for the respective number of hours per week.
The VRB was satisfied, based on the report of Dr Carter dated 24 January 2013, that the Applicant is totally and permanently incapacitated because of his accepted psychiatric conditions and as such is incapable of undertaking remunerative work for periods aggregating more than eight hours a week. Accordingly, it was satisfied that the requirements of s 24(1)(b) were met.
On the basis of the evidence before it, particularly the evidence of the medical experts, the Tribunal is also satisfied that the Applicant’s accepted conditions render him incapable of undertaking remunerative work for periods aggregating more than eight hours a week. Dr Dinnen, Dr Rosenthal and Dr Carter all state he cannot work in excess of eight hours, and Dr Chase is of the opinion he can work eight hours but he cannot work more than 20 hours. The Tribunal is therefore satisfied that the requirements of s 24(1)(b) are satisfied.
(2) Does the Applicant satisfy the ‘alone test’ in s24(1)(c) or the ‘ameliorating provision’ in s24(2)(b)?
In Flentjar v Repatriation Commission [1997] FCA 1200; (1997) 48 ALD 1, Branson J outlined a methodology for the application of s 24(1)(c):
(a)What was the relevant ‘remunerative work that the veteran was undertaking’ within the meaning of s 24(1)(c) of the Act?
(b)Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
(c)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?
(d)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?
Whereas this approach provides guidance for the decision-maker in determining the application of the provisions, the ultimate guide is the words of the legislation. As Middleton, Murphy and Rangiah JJ cautioned in Repatriation Commission v Richmond (‘Richmond’) [2014] FCAFC 124; 226 FCR 21 at [50]/34:
We do not approach the task of interpreting s 24(1)(c) by reference to the Flentjar questions. While the appeal requires close attention to what was said in Flentjar and other authorities the application of s 24(1)(c) is not be ascertained by construing the words in the authorities as if they were the words of the statute...”
(a) What was the veteran’s earlier remunerative work?
The correct approach to determining this first issue was explained by Whitlam, Emmett and Stone JJ in Repatriation Commission v Hendy [2002] FCAFC 424; (2002) 76 ALD 47 (‘Hendy’) at [36] - [37] as follows:
The Tribunal’s task was to assess what the Veteran probably would have done, if he had none of the service disabilities during the assessment period. The requirement to consider “remunerative work that the veteran was undertaking” does not mean a particular job with a particular employer but the substantive remunerative work that the Veteran had undertaken in the past. That is the exercise that the Tribunal undertook. The Tribunal was not bound to limit its consideration to the last employment that the Veteran actually undertook.
The reference to “remunerative work” in s 24(1)(c) includes the main or chosen field of endeavour and not necessarily the last remunerative work undertaken by a veteran – Starcevich v Repatriation Commission [1987] FCA 342; (1987) 18 FCR 221.
In his early career the Applicant was employed as a spare parts salesman before and after his Army service. The vast majority of his working career was with the railways in a range of roles involving manual labour, including maintenance, supervision of teams or gangs, and safety or protection work on the tracks.
(b) Is the veteran, by reason of war-caused injuries, prevented from continuing to undertake that work?
The Applicant’s accepted conditions have prevented him from undertaking his earlier remunerative work.
(c) Are the war-caused injuries the only factors preventing the veteran from continuing to undertake that work?
In Forbes v Repatriation Commission [2000] FCA 328; (2000) 101 FCR 50, RD Nicholson J said at [39]:
The question whether the veteran by reason of the war-caused condition "alone" has been prevented from continuing to undertake remunerative work can only be answered by reference to all the circumstances in which the war-caused condition exists.
The word “alone” as it appears in s 24(1)(c) requires a practical consideration of whether the Applicant’s loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. Any factor having employment consequences which plays a part in his inability to work or to obtain and hold remunerative employment, is sufficient to displace his case for pension at the Special or Intermediate rate: Re Cavell and Repatriation Commission (1986) 10 ALN N233.
In Richmond, the Full Court at [57]-[59] explained the requirements of the first limb of s 24(1)(c):
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.
In our view the authorities on the alone element of the test in the first limb are clear. In Cavell (at 539-540) Burchett J expressly approved the Tribunal’s statement that the use of “alone” in s 24(1)(c) means that any non war-caused factor which plays a part in the applicant’s inability to work or to obtain and hold remunerative employment is sufficient to displace the applicant’s case for a pension at the special rate.
The Full Court noted at [65] that this interpretation of the provision was consistent with the expressed intent of the legislation:
… While this may be seen as a harsh result, it arises from the plain words of the section. The special rate of pension is almost three times higher than the general rate, and the extrinsic materials indicate that the legislature intends the special rate to be reserved for a limited category of veterans.
The reasoning in Richmond was upheld in Repatriation Commission v Watkins [2015] FCAFC 10; (2015) 228 FCR 573. In Summers v Repatriation Commission [2015] FCAFC 36; (2015) 230 FCR 179, the Full Court held at [194]:
In Richmond at [67]-[69] the Full Court reviewed the authorities in relation to the “alone” test and respectfully disagreed with Bromberg J. The Court held that s 24(1)(c) requires that 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 of only secondary weight and insufficient in itself to prevent the veteran from continuing, the “alone” test will not be satisfied. Then, in the appeal from Bromberg J’s judgment in Repatriation Commission v Watkins [2015] FCAFC 10, per Kenny, Barker and Rangiah JJ, the decision at first instance was overturned. The Full Court said (at [61]) that the decision in Richmond was correct and applicable. We also consider Richmond to be correct.
The ‘alone’ test is amplified by s 24(2)(a) which provides that a veteran who is incapacitated by war-caused injury or disease shall not be taken to be suffering a loss of earnings by reason of that incapacity if:
·The veteran has ceased to engage in remunerative work for reasons other than incapacity from that war-caused injury or disease, or both, or
·The veteran is incapacitated, or prevented from engaging in remunerative work for some other reason.
Having regard to the provisions of s 24(1)(c) and s 24(2)(a) and the relevant authorities, for the reasons which follow, the Tribunal is not satisfied that the Applicant’s war-caused injuries were the only factors preventing him from continuing to engage in remunerative work.
The evidence before the Tribunal is that the Applicant ceased working for Laing O’Rourke in November 2008 after the major job on which he had been employed for three years came to an end. He claims that this coincided with an audiometry test conducted by his employer that indicated that his hearing did not meet requisite standards, and he became ‘a bit of a liability’ for his employer. After leaving his employment, the Applicant continued to work as a protection officer during 2009, albeit only for seven or eight discrete days of work, which he was able to obtain through contacts he had in the industry. This work was the same as that he had previously done as a protection officer and there was no suggestion that his hearing was an impediment to him undertaking the roles. Furthermore, although the Applicant himself had concerns about the safety aspects of him working as a protection officer given his diminished hearing, he accepted and performed the work required for these roles. He only ceased working as a protection officer when ‘the calls stopped coming’. The evidence before the Tribunal is that he would have accepted further work as a protection officer if opportunities had been made available. When there were no further opportunities made available to him for remunerative work, the Applicant ceased working at the age of 60, and has now been out of the workforce for 10 years.
The Tribunal accepts the Respondent’s submission that the lack of ongoing opportunities for the Applicant to work as a protection officer, in combination with the time spent by the Applicant out of the workforce, and his age and lack of recent work experience and recognised qualifications were reasons for him ceasing employment, and these preclude him from satisfying the ‘alone’ test in s 24(1)(c).
In addition to these factors, the evidence before the Tribunal is that the Applicant was suffering at the commencement of the assessment period, and continues to suffer, from a number of non-service related conditions. In particular, since 2008 the Applicant has suffered from pain and loss of mobility caused by a bilateral knee condition that resulted in knee replacements in both knees in 2014 and 2015. The medical evidence supports a finding that this surgery would have provided the Applicant with considerable pain relief and improvement in function, however he would still have restricted movement and mobility that would impact on his capacity to work.
The Tribunal accepts the Respondent’s submission that the impact of the Applicant’s bilateral knee condition is a further factor which precludes him from satisfying the ‘alone’ test in s 24(1)(c).
Ameliorating provision
As the Applicant was under 65 years of age at the time of his claim, the ameliorating provisions of s 24(2) of the Act must be considered. Subsection 24(2)(b) creates a beneficial easing of the ‘alone’ test. This provision applies where a veteran has not been engaged in remunerative work and satisfies the decision-maker that he or she:
·has been genuinely seeking remunerative work;
·would, but for the incapacity, be continuing so to seek to engage in remunerative work; and
·the incapacity is the substantial cause of his or her inability to obtain remunerative work.

Where these requirements are satisfied, the applicant is treated as having been prevented, by reason of their war-caused incapacity, from continuing to undertake remunerative work that the applicant was undertaking.
The correct approach to applying s 24(2)(b) was outlined in Smith by Rares J at [21] and Buchannan J at [49]-[51]. Buchannan J explained at [49]:
Section 24(2)(b) provides some relief from the potentially harsh consequences of this arrangement. It applies where remunerative work is not being done. In my view, it accommodates a cessation of earlier remunerative work, as well as a circumstance where a veteran has not worked since injury, or since the development of the incapacity. In all those circumstances, in my view, a veteran may demonstrate genuine efforts to obtain work which are made fruitless by the incapacity. That is, the efforts would continue but for the incapacity and the incapacity is the substantial cause of inability to obtain work. Those circumstances are taken to satisfy the basic test in s 24(1)(c) of being actually prevented by the incapacity from continuing remunerative work. Economic loss (i.e. loss of the opportunity for economic gain by way of income) follows naturally enough from this scenario. The search is for remunerative work. The economic consequence of failure to obtain it is the result of the incapacity.
There is considerable Federal Court jurisprudence and guidance on what is meant by the requirement to genuinely seek remunerative work. In Leane v Repatriation Commission [2004] FCAFC 83; (2004) 81 ALD 625, Emmett, Conti and Selway JJ stated at [29]:
It may be accepted that, in the ordinary course, a person in the position of the Veteran would have difficulty in establishing that he or she was honestly trying to engage in remunerative work unless there were some ‘objective signs of active pursuit of remunerative work’. However, it would be wrong to turn the practical issue of how a person might establish his or her case into some legal pre-condition. Assume, for example, that a claimant satisfied the Tribunal that:
·he or she honestly wished to engage in remunerative work;
·he or she had made a reasonable assessment of his or her disabilities;
·he or she had reasonably concluded that he or she could only be employed in a particular type of work;
·he or she was checking employment advertisements on the look out for such employment; but
·he or she had not yet identified any such employment prospects.
On the evidence before the Tribunal, there is no evidence that the Applicant sought to genuinely seek alternative remunerative employment. The Applicant’s evidence is that he accepted work as a protection officer in 2009 when it was offered to him rather than him actively seeking these opportunities. Once the calls stopped, he did not take any steps to himself contact prospective employers or apply for any advertised jobs. He considered looking for work as a console operator, but thought he did not have the necessary skills, qualifications or experience for this work. There is no evidence that he actively sought or applied for any remunerative work after 2009.
The evidence before the Tribunal demonstrates that the Applicant was not seeking to engage in remunerative work at any time during the assessment period. Accordingly, the Applicant does not satisfy the ameliorating provision in s 24(2)(b).
The Tribunal therefore finds, on the basis of the evidence before it, and on the balance of probabilities, that the Applicant does not satisfy the requirements of s 24(1)(c) or s 23(1)(c) of the Act.
Accordingly, the Applicant does not meet the criteria to be eligible for payment of pension at the Special or Intermediate rate.
DECISION
The decision under review is affirmed.

I certify that the preceding 114 (one hundred and fourteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

.................................[SGD].......................................
Associate
Dated: 17 June 2019

Date(s) of hearing: 11 & 12 February 2019

Counsel for the Applicant: Mr T Saunders

Solicitors for the Applicant: Mr G Isolani, KCI Lawyers

Solicitors for the Respondent: Mr B O'Brien, Moray & Agnew Lawyers

[1] T9.

[2] T16

[3] T17.

[4] T2.

[5] T1.

[6] Robin Creyke and Peter Sutherland, Veterans’ Entitlements and Military Compensation Law, Federation Press, 3rd ed. 2016, 219 [24.06].

[7] Repatriation Commission v Richmond [2014] FCAFC 124; (2014) 226 FCR 21, [21] (Middleton, Murphy and Rangiah JJ).

[8] Ibid [22].

[9] Transcript of proceedings, 11 February 2019 p10.

[10] Applicant’s SOFIC [8].

[11] Applicant’s SOFIC [8]; Transcript of proceedings, 11 February 2019 p26.

[12] Applicant’s SOFIC [8]; Transcript of proceedings, 11 February 2019 p11-12.

[13] Transcript of proceedings, 11 February 2019 p14.

[14] Transcript of proceedings, 11 February 2019 p29.

[15] Transcript of proceedings, 11 February 2019 p26.

[16] Transcript of proceedings, 11 February 2019 p27.

[17] Transcript of proceedings, 11 February 2019 p12, p27-28.

[18] Transcript of proceedings, 11 February 2019 p28.

[19] Applicant’s SOFIC [9]; and Transcript of proceedings, 11 February 2019 p11-12.

[20] Transcript of proceedings, 11 February 2019 p14 and p29-30.

[21] Transcript of proceedings, 11 February 2019 p14.

[22] Transcript of proceedings, 11 February 2019 p13.

[23] Transcript of proceedings, 11 February 2019 p57, line 32.

[24] Transcript of proceedings, 11 February 2019 p17.

[25] Transcript of proceedings, 11 February 2019 p58.

[26] Transcript of proceedings, 11 February 2019 p17.

[27] Transcript of proceedings, 11 February 2019 p31.

[28] Transcript of proceedings, 11 February 2019 p18, p30.

[29] Transcript of proceedings, 11 February 2019 p18, line 10-11.

[30] T28, 294; Transcript of proceedings, 11 February 2019 p34.

[31] Transcript of proceedings, 11 February 2019 p33-34.

[32] T27, 293.

[33] T35, 355, Transcript of proceedings, 11 February 2019 p38-39.

[34] T19, 215.

[35] Transcript of proceedings, 11 February 2019 p36.

[36] T30, 326ff.

[37] Transcript of proceedings, 11 February 2019 p42.

[38] T19, 219-228.

[39] Transcript of proceedings, 11 February 2019 p46.

[40] Transcript of proceedings, 11 February 2019 p46-47.

[41] Transcript of proceedings, 11 February 2019 p48.

[42] Transcript of proceedings, 11 February 2019 p49.

[43] Transcript of proceedings, 11 February 2019 p18.

[44] Exhibit A2.

[45] Exhibit A2, p7.

[46] Exhibit A2, p8.

[47] Transcript of proceedings, 11 February 2019 p71.

[48] Transcript of proceedings, 11 February 2019 p71.

[49] Exhibit A2, p8.

[50] Transcript of proceedings, 11 February 2019 p70.

[51] Transcript of proceedings, 11 February 2019 p70.

[52] Exhibit R4.

[53] Exhibit R4 p9-10.

[54] Exhibit R4 p10.

[55] Transcript of proceedings, 12 February 2019 p77.

[56] Transcript of proceedings, 12 February 2019 p79.

[57] Transcript of proceedings, 12 February 2019 p79.

[58] Transcript of proceedings, 12 February 2019 p82.

[59] Exhibit A3.

[60] Exhibit A3, p6.

[61] Transcript of proceedings, 12 February 2019 p96 and 103-104.

[62] Transcript of proceedings, 12 February 2019 p101.

[63] Transcript of proceedings, 12 February 2019 p102.

[64] Transcript of proceedings, 12 February 2019 p102-103.

[65] Exhibit R3.

[66] Exhibit R3, p8.

[67] Exhibit R3, p10 and Transcript of proceedings, 12 February 2019 p116.

[68] Transcript of proceedings, 12 February 2019 p116-117.

[69] Exhibit R3, p9 see also Transcript of proceedings, 12 February 2019 p115.

[70] Exhibit R3, p9

[71] Exhibit R3, p11.

[72] Exhibit R3, p11.

[73] Transcript of proceedings, 12 February 2019 p109 lines 30-32.

[74] Transcript of proceedings, 12 February 2019 p109, lines 37-38.

[75] Transcript of proceedings, 12 February 2019 p110, lines 43-45; see also p116.

[2019] AATA 1305

17 June 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Standing

Statutory Construction

Natural Justice

Procedural Fairness

Date(s) of hearing:	11 & 12 February 2019
Counsel for the Applicant:	Mr T Saunders
Solicitors for the Applicant:	Mr G Isolani, KCI Lawyers
Solicitors for the Respondent:	Mr B O'Brien, Moray & Agnew Lawyers