RAYMOND KEMP and REPATRIATION COMMISSION
[2012] AATA 207
•12 April 2012
[2012] AATA 207
Division VETERANS' APPEALS DIVISION File Number
2010/5314
Re
RAYMOND KEMP
APPLICANT
And
REPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal Senior Member K Bean
Lt Col R Ormston (Rtd) (Member)Date 12 April 2012 Place Adelaide The decision under review is varied so as to provide that Mr Kemp is entitled to receive 100% of the general rate of disability pension from 11 June 2006.
........................[sgd]................................................
Senior Member K Bean
CATCHWORDS
VETERANS' ENTITLEMENTS – Rate of disability pension – Special rate – Whether factors other than accepted disability contributed to veteran's cessation of remunerative work – Prior decision to resign and reluctance to request alternative duties contributed to veteran's cessation of work – Alone test not satisfied but entitlement to 100% of general rate of pension established – Decision under review varied.
LEGISLATION
Veterans' Entitlements Act 1986 (Cth) ss 19(a), 24(1) & (2)
CASES
Repatriation Commission v Connell [2011] 197 FCR 228
Cavell v Repatriation Commission (1988) 9 AAR 534
Forbes v Repatriation Commission (2000) 101 FCR 50REASONS FOR DECISION
Senior Member K Bean
Lt Col R Ormston (Rtd) (Member)12 April 2012
INTRODUCTION
The applicant, Mr Kemp, served in the Royal Australian Navy (the Navy) for twenty years between 1973 and 1993. During his time in the Navy he served mainly in submarines as an electrician, rising to the rank of Chief Petty Officer.
During his service, Mr Kemp experienced a number of extremely traumatic events, including one in which the main vents on a submarine he was in were not closed properly, resulting in the vessel taking on water and diving uncontrollably. As a consequence of these experiences, Mr Kemp suffers the condition of post-traumatic stress disorder (PTSD) which has been accepted as war-caused. He also suffers from a number of other war-caused conditions, including hypertension and sleep apnoea, and has been in receipt of a service disability pension for a number of years.
In March 2010 the Repatriation Commission increased his pension to 90% of the general rate with effect from 11 June 2006 but declined to increase it further, and the Veterans’ Review Board (VRB) subsequently affirmed that decision.
However on 8 December 2010, Mr Kemp applied to this Tribunal seeking review of the decision of the Commission, as affirmed by the VRB, and giving rise to these proceedings. Mr Kemp contends that he is entitled to the special rate of pension or, in the alternative, that he should receive 100% of the general rate of pension.
LEGISLATION AND ISSUES
In broad terms therefore, the issues before us are as follows:
(a)whether Mr Kemp should receive 100% of the general rate of pension; and
(b)whether Mr Kemp is entitled to the special rate of pension pursuant to s 24 of the Veterans’ Entitlements Act 1986 (the VE Act).
Prior to the hearing, it was conceded by the respondent that with effect from 11 June 2006, Mr Kemp was entitled to the general rate of pension. As we also accept that he is entitled to 100% of the general rate of pension from that date, we accordingly propose to vary the decision under review at least to that extent.
As to whether Mr Kemp is entitled to be paid disability pension at the special rate, in order to establish such an entitlement, Mr Kemp must demonstrate that he satisfied all of the requirements of s 24 of the VE Act at some point during the assessment period. For the purposes of this matter, the assessment period is the period between the date when Mr Kemp first lodged his application, being 11 September 2006[1] and the date of this Tribunal’s decision.[2]
[1] T3A/11.
[2] s19(9), VE Act.
Section 24 of the VE Act relevantly provides as follows:
“24 Special rate of pension
(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a)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.”
There was no dispute between the parties that the conditions suffered by Mr Kemp and which have been accepted as being war-caused relevantly include:
(a)PTSD;
(b)Alcohol abuse;
(c)Hypertension;
(d)Allergic rhinitis;
(e)Chronic sinusitis; and
(f)Sleep apnoea.
There was also no dispute between the parties that Mr Kemp satisfies ss 24(1)(aa), 24(1)(aab), 24(1)(a) and 24(1)(d), and we also accept that he satisfies those provisions. The respondent also conceded, and we also accept that Mr Kemp has satisfied s 24(1)(b) since 9 March 2011, based on a report of his treating psychiatrist, Dr Flynn, dated 25 March 2011.[3]
[3] Exhibit 7.
However, Mr Crowe, who appeared as advocate for the respondent, contended that Mr Kemp did not satisfy the “alone” test prescribed by s 24(1)(c). To be more specific, while he accepted that Mr Kemp satisfied the “loss” component of that test, he contended that Mr Kemp had not ceased remunerative work by reason of his accepted disabilities “alone”.
It follows that the issue for our determination is:
(a)Whether pursuant to s 24(1)(c), by reason of his war-caused incapacity alone, Mr Kemp has been prevented from continuing to undertake the remunerative work that he was undertaking.
WAS MR KEMP PREVENTED, BY HIS ACCEPTED DISABILITIES ALONE, FROM CONTINUING TO UNDERTAKE THE REMUNERATIVE WORK THAT HE WAS UNDERTAKING?
We propose to first discuss the most salient aspects of the evidence before us, before turning to our analysis of this issue.
The Evidence
There was no factual dispute between the parties as to the employment undertaken by Mr Kemp and the circumstances in which that employment ended.
As we have alluded to above, Mr Kemp gave evidence that he had enlisted in the Navy in January 1973, when he was eighteen years of age, and served in the Navy until January 1993. He said that from approximately May 1992 he was on long leave from the Navy prior to his discharge, and in May 1992 he commenced work with the Australian Submarine Corporation (ASC).
Mr Kemp said that throughout his Navy career he worked in submarines as an electrician, rising to the rank of Chief Petty Officer. As we have also referred to above, in the course of his Naval service he experienced a number of traumatic and life threatening events whilst on board submarines, resulting in him contracting PTSD. He said that one of the effects of this condition was that he would suffer symptoms of PTSD when required to enter submarines, including compartments of submarines known as “tanks”, whilst the submarines were under construction or undergoing maintenance.
Mr Kemp said that when he commenced working with the ASC in May 1992 he was working as a Trials Officer in the Trials Group writing “Set to Work” and “Harbour Release Test” documents. He said this work essentially involved paperwork in an office working from plans, drawings and manuals. In his statement he said he had no significant problems with any of his accepted disabilities during this period of time[4].
[4] Exhibit 2.
However in May 1994 he was moved to the more responsible position of Electrical Supervisor in the “Set to Work Group” because of his previous submarine experience. This position involved working on various submarine systems including battery systems, domestic services, sewerage, combat systems and internal and external communications. He had a crew of approximately ten to twenty people working for him and he said this position involved some actual work on submarines. In his statement he estimated that approximately 40% of this job involved doing work in and around submarines.
Mr Kemp explained that while he was carrying out this job he began to have some problems which he now associates with his accepted condition of PTSD. He said:
“I was required on some occasions to get into tanks (component areas of submarines of varying sizes).
This caused me some difficulty on occasions.
I felt anxious and worried about confined spaces.
The size of the tanks varied.
A ballast tank for example was approximately the size of a small room.
Some smaller tanks were the size of a toilet cubicle.
The various tanks had a variety of functions including fuel tanks, battery compartments and sullage tanks. The smaller tanks in particular caused my distress and anxiety.”[5]
[5] Exhibit 2.
Mr Kemp also explained that he had problems with some of the other work on the submarines, including the requirement to perform vacuum tests. He said this required the atmosphere in the submarine to be reduced to create a vacuum and he explained:
“Being in a submarine during this test causes me great stress if the temperature rises and reminds me of the two incidents on HMAS Orion during my RAN service where a vacuum was created and people collapsed due to lack of oxygen.”[6]
[6] Exhibit 2.
Mr Kemp went on to explain that from about 2003, he started to avoid doing actual work on submarines, in particular in tanks if he could avoid doing so, in order to avoid precipitating his PTSD symptoms. He said that “up until 2006 I only had to go into tanks a few times per year” and “if I was required to go into tanks I generally managed to avoid it by calling in sick on the day the work was scheduled.”[7] He said he was also required to participate in some sea trials on board submarines and said “I did not have any significant problems with these trips initially as they were for short periods”. However he said “in later years, during my job when I was required to go on sea trials, this caused me problems with bad memories of the incident during sea trials on HMAS Ovens in 1982.”[8]
[7] Exhibit 2.
[8] Exhibit 2.
Mr Kemp said that from November 2006 he was promoted to Electrical Front Line Supervisor (a position also known as Boat Superintendent). He said this role involved co-ordinating electrical work on the submarines and also required him to fill in on weekends as Tank Supervisor. He said this position only involved working within tanks approximately ten per cent of the time. However the role did require him to spend about thirty per cent of his time on submarines and from November 2006 he “was starting to have increasing problems with panic attacks and other symptoms of my post-traumatic stress disorder”.
In March 2007, Mr Kemp was medically assessed as being unable to continue undertaking sea trials[9] and in July 2008 he had a further change of position in that he was promoted to Acting Boat Manager on a temporary basis. He said that in this position he had overall responsibility for the schedule of work on the submarines. The position was primarily office based and involved spending only about five per cent of his total work time on submarines[10]. However despite the fact he was spending less time on submarines, he still had increasing symptoms of PTSD and “had difficulty about meetings as they were often held in hot stuffy offices which caused me great anxiety”.[11] He said during this period he did no work in tanks.
[9] T17/247.
[10] Exhibit 2.
[11] Exhibit 2.
Mr Kemp also said that, partly as a result of his increasing problems with PTSD, toward the end of his employment with the ASC he applied for a number of other positions which did not involve working on submarines, albeit all were more senior positions than his current employment. He said “I was hoping to move away from submarines and the confined spaces that were causing me problems at the time”.[12] However he was unsuccessful in securing any of the other positions that he applied for.
[12] Exhibit 2.
Mr Kemp said that between August 2009 and October 2009 he took ten weeks of long service leave. Prior to this leave he had been performing the role of Acting Boat Manager and had been expecting to return to the position of Boat Superintendent after his leave. However on his return from leave he was informed that he was to carry out the role of Front Line Supervisor/Tank IC. He said:
“This new job incorporated all Front Line Supervisor work I had been doing previously but my new additional role also included verifying tanks that they were clean and ready for blasting/painting. I was required to be responsible for all work conducted in the submarine tanks, approximately 50 or so.
This required me to enter many small tanks to inspect in preparation for blasting and painting and the final inspection of tanks on completion of work.
Most tanks are small, poorly lit, poorly ventilated, hot, dark and stuffy.
The tanks can be difficult to enter and exit due to the small opening size and location of man holes behind equipment.
They are very claustrophobic.
Entering the tanks caused me great anxiety and stress and flashbacks to the incidents of HMAS Ovens in October 1982 and HMAS Orion in 1986 and 87.”[13]
[13] Exhibit 2.
Mr Kemp went on to explain in his statement that he handed in his resignation from the ASC shortly after returning from long service leave. He said:
“It was in this position that I handed in my resignation.
I resigned on 13 October 2009 effective 28 January 2010.
I therefore provided 3 months notice of my resignation as required in the HR manual.
I had previously promised to do a job for someone over Christmas as Acting Boat Manager.
I remained to do that during my notice period.
From October 2009 I had great anxiety, sleepless nights, headaches, panic attacks and increase in alcohol consumption.
In the last week of October 2009 my blood pressure became so high that I had to take 5 days off work on advice from my doctor.
Over the next 3 months I was required to continually monitor my blood pressure.
My doctor increased my medication over this period.
Between October and mid December I was generally taking about 1 ½ days of [sic] per week due to ill health and anxiety.
After consultation and on the advice of my GP Dr Gill and psychiatrist Dr Flynn, I decided that my health was suffering from trying to continue my employment and I resigned effective 28 January 2010.”[14]
[14] Exhibit 2.
He went on to add:
“Although my psychological problems were particularly exacerbated by taking on the additional job of Tank IC with that of Front Line Supervisor, I do not believe that I could have continued to keep on doing the work of Front Line Supervisor in any event.
This role of Front Line Supervisor had some tank work in it which was causing me problems in any event. The previous position that I had held of Acting Boat Manager I also do not believe I could continue to have performed had it been available.”[15]
[15] Exhibit 2.
As to the precise circumstances surrounding his resignation, Mr Kemp elaborated upon these in his oral evidence. He said that during the first part of his long service leave he had been able to “de-stress” and relax. However during the two to three weeks before he was due to return to work, he began to become extremely anxious. He said during that period he spoke to his wife and said to her that he thought that he was going to have to retire. He said that when he returned to work and discovered that he was going to have to do the job of Front Line Supervisor and Tank IC, he went home early and discussed the situation with his wife. He decided he would resign and handed in his resignation the next day, 13 October 2009, effective from 28 January 2010.[16] As mentioned in his statement, he explained that he had previously arranged to fill in for another employee as an Acting Boat Manager during that person’s leave from mid-December to the end of January and his retirement date was set partly with a view to honouring that commitment.
[16] Exhibit 5.
Mr Kemp confirmed in his oral evidence that he worked for that remaining period as intended, although his health suffered greatly and he took an average of a day and a half off each week during that period. As indicated in his statement, he confirmed that he took that amount of time off due to a combination of anxiety problems and difficulties controlling his blood pressure. He also stated that he was only able to carry out this job over that December to January period because it was an extremely quiet period and there were also a number of public holidays.
Under cross examination, Mr Kemp acknowledged that he had not discussed the problems he was having with his employer, or explored with the ASC the possibility of doing work which did not involve physically being on submarines prior to deciding to resign. He explained that part of the reason for this was that he would have had to admit to having psychological problems and that he could not do his job. The effect of his evidence was that he would have found this embarrassing and humiliating. He also said he had not enquired about the possibility of undertaking similar work in civilian life, i.e. outside the ASC. When he was recalled to give some further evidence, Mr Kemp further explained that so far as he was aware, all of the jobs he could do at the ASC, certainly at his pay level, involved working on submarines.
Mr Kemp also acknowledged in his evidence that he had a long standing back problem resulting from a fracture of the L4 vertebrae. However he stated that he had managed this for forty years and it had not caused him any significant difficulties with his work and had never caused him to take a day off work. He said that if his back was too uncomfortable he would take some Panadol, but this only occurred once every couple of months. He said he did get back pain if he was required to bend over and particularly if required to remain in a bent position. He also acknowledged that inspecting tanks sometimes involved crawling into or around a tank and/or sliding along platforms or scaffolding planks. However he maintained that his back had not caused him any significant difficulty in doing this as these activities did not actually require him to bend from his back.
Mr Kemp also acknowledged that he had gained weight whilst he was working for the ASC and said that he weighed ninety kilos when he joined the ASC and a hundred and four kilos when he stopped working in January 2010. However he also maintained that his weight had not caused any particular difficulties in carrying out his duties with the ASC.
Mr Kemp’s treating general practitioner, Dr Gill, also gave evidence at the hearing and has provided a number of reports.
Dr Gill completed a “Medical Report – Ability to work” dated 23 March 2011. In relation to Mr Kemp’s capacity for remunerative work by reference to his accepted disabilities, he stated in that report:
“Extensive complex medical problems which were exacerbated by the nature if his work in Submarine Corp. His accepted psychological disability being exacerbated by the physical surroundings which also affected tinnitus, rhinitis, sinusitis and as a consequence of his stress proved extremely difficult to control his blood pressure.”[17]
As to how his other disabilities affected Mr Kemp’s ability to work, Dr Gill stated:
“As stated the low back problem has resulted in chronic pain and limitation of back function. Obesity of course has led to general deconditioning and impinges on the control of his diabetes which at present requires constant dietary supervision”.[18]
[17] Exhibit 3.
[18] Exhibit 3.
In his oral evidence, Dr Gill indicated that he had no specific note of Mr Kemp finishing work. He also indicated that he had no notes of any specific treatment for Mr Kemp’s back condition and stated that he considered Mr Kemp had been able to work successfully with his back condition. He said Mr Kemp’s back condition would cause him problems with heavy lifting, bending, squatting and climbing. As for climbing in to tanks, he thought this could give Mr Kemp some discomfort but that this would be manageable, noting that he had worked for a long time with this problem.
Dr Shepherd, Occupational Physician, has also provided a report dated 11 May 2011[19] and gave some brief oral evidence at the hearing. Dr Shepherd carries out some work for the ASC and assessed Mr Kemp whilst he was working for the ASC. He also examined Mr Kemp after he had left the ASC, at the request of Mr Kemp’s solicitors. In his report of 11 May 2011 he stated:
“In my review in December I did not find any specific contraindication to Mr Kemp returning to the workforce but he would need to avoid situations which would exacerbate his pre-existing conditions as well as his accepted disabilities under the Act, which of particular relevance are his Post Traumatic Stress Disorder, his chronic rhinitis/sinusitis[sic], sleep apnoea and his back complaint.”[20]
As to the circumstances surrounding Mr Kemp’s resignation, Dr Shepherd stated as follows:
“I understand immediately prior to Mr Kemp retiring he was expected to move to a role that required him to spend more time within the submarine and he felt his anxiety levels related to his PTSD would not tolerate him returning to more work inside the submarine and this prompted his retirement.”
Later in his report he stated:
“I am aware Mr Kemp describes his resignation was as a result of his role changing to being back inside the submarine much more than he had been. I do not recall Mr Kemp having any specific discussions about his ongoing employment and his accepted disabilities specifically. I have checked my notes held at ASC and I have made no notes in his file on this.”[21]
[19] Exhibit 8.
[20] Exhibit 8.
[21] Exhibit 8.
In his oral evidence, Dr Shepherd also indicated that he had found ASC to be a very flexible and accommodating employer who would generally make every effort to find suitable duties for injured employees. Having said that, he did not feel in a position to comment on whether alternative duties suitable for Mr Kemp would or would not have been available if he had asked for them. In relation to work outside the ASC, he stated that he thought it would be difficult for Mr Kemp to find work outside the ASC, given his medical conditions. He thought employers would be reluctant to take him on having regard to those conditions and the nature of them.
Analysis
Mr Miller, who appeared as counsel for Mr Kemp, contended that Mr Kemp had been prevented from continuing with his work at the ASC solely by reason of his accepted disabilities, in particular his PTSD and related hypertension. He submitted that at the point Mr Kemp resigned in October 2009, he was not in a position to continue with any work which was available to him at the ASC. Whilst acknowledging that Mr Kemp had worked for a further three months after handing in his resignation, Mr Miller submitted that he had done so with great difficulty and had only managed to do this by taking time off and because he had the advantage of it being a quieter period with a number of public holidays.
However there appear to us to be a number of difficulties with these submissions. One of those difficulties is that, as Mr Crowe pointed out, Mr Kemp tendered his resignation on 13 October 2009, effective from 28 January 2010. However as at that point in time, he clearly was not prevented from carrying out the remunerative work he had been undertaking by reason of his accepted disabilities. That is clear because he continued to carry out remunerative work of the kind he had been undertaking for the ensuing three and a half months.
Whilst we accept Mr Kemp’s evidence that he took sick leave during this period and also had the benefit of some public holidays, there is nothing before us to suggest that, for example he could only perform the duties on a part time or more restricted basis. In other words, at the point at which Mr Kemp tendered his resignation, he demonstrated his capacity for work by continuing to work for three and a half months.
Furthermore, at the point at which he actually ceased working, that is 28 January 2010, Mr Kemp did so because of his prior decision to resign from that day and not because of a reduction in his capacity for work at that time. On the material before us, it is difficult to conclude for example that on 30 January 2010 his capacity for work was less than it had been on 28 January 2010.
It accordingly appears to us that Mr Kemp ceased working as at 28 January 2010 at least partly because he had decided in October 2009 that he would do so. In other words, he did not cease working on 28 January 2010 by reason of his accepted disabilities “alone”.
In addition, it is apparent on the evidence that whilst it would have been open to him to do so, Mr Kemp did not explain his medical difficulties to the ASC or explore with them the possibility of being given duties which did not involve physically going on to submarines. Mr Kemp said in his evidence that he did not believe such duties were available, or at least not at his pay level. However we note that his work as a Trials Officer did not involve going on to submarines. Further Dr Begg, an Occupational Physician who works with the ASC, gave evidence that the ASC are a flexible and accommodating employer.
We are not satisfied in light of this evidence that if Mr Kemp had raised his difficulties with the ASC, they would not have found duties for him which accommodated his accepted disabilities. In fact, on the very limited material available to us, we consider it more likely than not that, if Mr Kemp had raised the issue with the ASC, this would have resulted in him being offered duties that were less stressful for him than the duties of Frontline Supervisor and Tank IC.
There is clearly insufficient material before us to allow us to draw conclusions as to precisely what duties may have been offered to Mr Kemp by the ASC or the extent to which he may have been able to cope with such duties. However we are satisfied on balance that if Mr Kemp had raised his medical difficulties with the ASC it is likely that steps would have been taken which allowed him to continue working beyond January 2010, if only in the context of trialling alternative duties.
It therefore follows that one of the factors contributing to Mr Kemp ceasing work when he did was his own decision to cease work at that time rather than to first explore with the ASC whether any alternative duties could be found, and see how he coped with any alternative duties that were found.
We note that the “alone” test prescribed by s 24 is a stringent one and any factor having employment consequences which plays a part in a veteran’s inability to work or to obtain and hold remunerative employment is sufficient to prevent a veteran from satisfying the “alone” test.[22]
[22] See Cavell v Repatriation Commission (1988) 9 AAR 534, Forbes v Repatriation Commission (2000) 101 FCR 50.
In view of our factual conclusions on the evidence which we have outlined above, we have concluded that Mr Kemp’s decision to retire at a point at which he was not actually prevented from working by his accepted disabilities contributed to his cessation of work in January 2010. We have also concluded that his decision to resign rather than first explore the possibility of being allocated duties which did not involve work on submarines also contributed to him ceasing work when he did. In our view each of these factors individually would be sufficient to prevent him from satisfying the “alone” test prescribed by s 24(1)(c).
For completeness, we should indicate that we are not satisfied on the evidence that either Mr Kemp’s back condition or his obesity contributed to his cessation of work. However, as we have indicated above, the other factors we have referred to prevent him from satisfying the “alone” test.
Before leaving the matter, we should also mention that we have considered the possible implications of the decision of the Full Federal Court in Repatriation Commission v Connell (2011) 123 ALD 440 for this matter. We note that in their decision in that matter the Court concluded that in order for a veteran to have been “prevented from continuing to undertake remunerative work” it is sufficient if the veteran has been prevented from carrying out some of the work they were previously carrying out, i.e. it is sufficient to satisfy the test if a veteran has reduced the number of hours they can work by reason of their accepted disabilities alone.[23] However we have concluded that that decision does not assist Mr Kemp because he did not reduce the hours he was working by reason of his accepted disabilities but rather continued to work full time until his retirement. Accordingly, we do not consider that the reasoning of the Court in Connell assists him in satisfying the “alone” test.
[23] At [28].
CONCLUSION
As we have concluded that Mr Kemp did not satisfy the “alone” test at any time during the assessment period, it follows that we are not satisfied that he is qualified to receive disability pension at the special rate. For the reasons we have indicated above however, we have decided that the decision under review should be altered such that he is entitled to receive 100% of the general rate of pension from 11 June 2006.
DECISION
The decision under review is varied so as to provide that Mr Kemp is entitled to receive 100% of the general rate of disability pension from 11 June 2006.
I certify that the preceding 52 (fifty two) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean and Lt Col R Ormston (Rtd)(Member).
......................[Sgd]..................................................
Administrative Assistant
Dated 12 April 2012
Date(s) of hearing 14 & 15 February 2012 Counsel for the Applicant Mr Jonathan Miller Advocate for the Applicant Ms Catherine Hokin Solicitors for the Applicant Lempriere Abbott McLeod Counsel for the Respondent Mr Adrian Crowe Solicitors for the Respondent Department of Veterans' Affairs
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