Richwood and Repatriation Commission (Veterans’ entitlements)

Richwood and Repatriation Commission (Veterans’ entitlements) [2016] AATA 900 (14 November 2016)

Division

GENERAL DIVISION

File Number

2014/4445

Re

Paul Richwood

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Deputy President Dr Christopher Kendall

Date 14 November 2016

Place Perth
The decision under review is affirmed.
.........................[sgd]..................................
Deputy President Dr Christopher Kendall
CATCHWORDS
VETERANS ENTITLEMENT – special rate – intermediate rate – whether veteran incapable of undertaking remunerative work for eight or more hours per week – whether veteran incapable of undertaking remunerative work for twenty or more hours per week – the “alone” test - accepted and non-accepted medical conditions – decision under review affirmed
LEGISLATION
Veterans Entitlements Act (1988) – sections 23, 24 and 120
CASES
Berry v Repatriation Commission (1992) 26 ALD 798
Dodd and Repatriation Commission [2015] AATA 1004
Repatriation Commission v Hendy [2002] FCAFC 424
Repatriation Commission v Richmond [2014] FCAFC 124
Repatriation Commission v Smith (1987) FCR 327
Re Hanrahan and Repatriation Commission (1992) 26 ALD 766
Re Morgan and Repatriation Commission [1987] AATA 610
Re Polich and Repatriation Commission (1992) 26 ALD 770
Re Tudor and Repatriation Commission (1988) 14 ALD 29
SECONDARY MATERIALS
Robin Creyke and Peter Sutherland, Veterans’ Entitlements and Military Compensation Law (Federation Press, 2016)
REASONS FOR DECISION
Deputy President Dr Christopher Kendall
14 November 2016
INTRODUCTION

Paul Richwood is aged 67. He is a former SAS soldier who describes himself as having chronic low back and bilateral hip discomfort. He attributes his pain to “night jumps” while serving with the SAS.
Mr Richwood currently receives a 100% DVA Gold Card pension. He seeks the Special Rate of Pension available pursuant to section 24 of the Veterans’ Entitlement Act 1986 (the “Act”) or, in the alternative, the Intermediate Rate of Pension available pursuant to section 23 of the Act.
These proceedings arise from a decision of the Veterans’ Review Board (the “VRB”) on 17 July 2014 which affirmed a decision of the Repatriation Commission (“the Commission”) made on 24 September 2013 that Mr Richwood’s pension should continue at 100% of the General Rate.
It was agreed by the parties that at the commencement of the relevant assessment period for this matter Mr Richwood was 64 years of age.
Mr Richwood’s medical and personal history is best described as tragic. Raised in Fiji, Mr Richwood was awarded a sporting scholarship and moved to New Zealand in 1968. He lived there for approximately 9 years. During that time he was selected for the 1974 Commonwealth Games and made the finals of the 400 metres hurdles. He was selected for the 1976 Olympic Games in Montreal but withdrew so that he could move to Melbourne. In Melbourne, he played rugby professionally for 3 years until 1979.
Mr Richwood joined the Australian army in 1979. He served with the SAS from 1981 to 1989.
It is not in dispute that Mr Richwood’s army service is “defence service” for the purposes of the Act.
In 1984, Mr Richwood was hit by “a drunk driver”. As a result of this accident he underwent a left above knee amputation. He and his wife separated shortly after this accident and he has remained single since that time.
Following the accident and leg amputation (which, it was agreed, is not a service-related accepted disability) Mr Richwood remained with the SAS on desk duties until 1989. He left the army at that time and has since worked in a variety of jobs, including as a security guard, taxi driver, truck driver, front end loader driver and train driver.
In 1995, Mr Richwood began working as a bus driver. On 13 September 2013 Transdev WA Ltd, Mr Richwood’s former employer, advised that he had reduced his hours to part time from 26 May 2013 and had resigned from his position as a bus driver from 12 September 2013.
It is not disputed that Mr Richwood suffers from the following accepted disabilities:
·Bi-lateral sensory neural hearing loss;
·Bilateral tinnitus;
·Carpal Tunnel Syndrome of the right wrist;
·Fracture of the right clavicle;
·Osteoarthritis of the right knee;
·Rotator cuff syndrome of the right shoulder;
·Lumbar Spondylosis;
·Osteoarthritis affecting both hips; and
·Osteoarthritis of the right ankle.
Further, it is not disputed that Mr Richwood suffers from the following non-service-related conditions:
·Amputation of the left leg;
·Acute bronchitis;
·Otitis externa of both ears; and
·Depressive disorder.
On 14 August 2013, Mr Richwood applied for an increase in his rate of disability support pension beyond 100% of the General Rate.
On 24 September 2013, a delegate of the Commission determined that Mr Richwood’s disability support pension is appropriately assessed at 100% of the General Rate.
On 21 November 2013, Mr Richwood applied for a review of the delegate’s decision by the VRB.
On 17 July 2014, the VRB affirmed the decision of the Commission.
On 26 August 2014, Mr Richwood applied to this Tribunal for a review of the VRB’s decision of 17 July 2014.
ISSUES
It was agreed by the parties before this Tribunal that in order for the decision of the VRB to be set aside (such that Mr Richwood is found to be entitled to a “Special Rate of Pension”), the Tribunal needs to be reasonably satisfied pursuant to section 24 of the Act that:
a)Mr Richwood’s incapacity from service-related-injury or service-related disease, or both, is of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week; and
b)Mr Richwood is, by reason of incapacity from that service-related injury or service-related disease, or both, alone, prevented from continuing to undertake remunerative work that he was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his own account, that he would not be suffering if he were free of that incapacity.
In written closing submissions, counsel for Mr Richwood also contended that if, on the evidence, the decision of the VRB cannot be set aside, the Tribunal should find Mr Richwood is entitled to the “Intermediate Rate of Pension” as provided for in section 23 of the Act. Accordingly, this issue is also before the Tribunal.
LEGISLATION
To be eligible for pension at the Special Rate, Mr Richwood must satisfy the requirements of s 24 of the Veterans’ Entitlement Act 1986 (Cth) (“the Act”) which relevantly provides:
(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran 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.
Section 28 of the Act further provides:
Capacity to undertake remunerative work
In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(a)the vocational, trade and professional skills, qualifications and experience of the veteran;
(b)the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c)the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).
Subsection 120(4) of the Act requires the Tribunal to decide all matters to its reasonable satisfaction. What is meant by the expression “reasonable satisfaction” in this context has been explained by Beaumont J, with whom Northrop and Spender JJ agreed, in Repatriation Commission v Smith (1987) FCR 327. Relevantly, His Honour said that the Tribunal:
... should have asked itself whether on the facts of the case, it was persuaded on the civil standard. There is, in this connection, a distinction of substance to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other (see: Re Repatriation Commission and Delkou (No 2) (1986) 9 ALD 358; Re Easton and Repatriation Commission (1987) 12 ALD 777; Re Repatriation Commission and Falkner (1987) 12 ALD 87.
To be eligible for pension at the Intermediate Rate, Mr Richwood must satisfy the requirements of s 23 of the Act. Relevantly, subsections 23(1)(b) and s 23(2) of the Act provide:
Intermediate rate of pension
(1) This section applies to a veteran if:
...
(b)the veteran’s incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; ...
(2)Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:
(a) if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or
(b) in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking - if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week
The criteria for the Intermediate rate of Pension are essentially the same as the criteria for the Special Rate of Pension except that Mr Richwood must be found to be restricted to working less than 20 hours per week as a result of his service related injuries and those alone. The “alone” requirement is central to any claim under either section 23 or 24 and is discussed further below.
EVIDENCE
This matter was heard over two days in Perth on 21 and 22 September 2016.
Mr Richwood was represented at the hearing by Mr Graydon. The Commission was represented by Mr Wallace. The Tribunal thanks both counsel for their assistance with a jurisprudential area that is best described as complex. The Tribunal also notes the respect Mr Graydon and Mr Wallace showed each other and the witnesses who appeared throughout the hearing of this matter. This particular style of advocacy is well suited to tribunals of this sort and much appreciated.
The Tribunal was provided with medical material spanning a considerable period of time. This comprised:
·A 121 page set of T-documents - T1 to T13. Unfortunately, the T-documents prepared for this matter omitted relevant medical information, were not particularly well organised and were unnecessarily confusing because of the way they were referenced and ordered. The Tribunal thanks Mr Wallace and Mr Graydon for their assisting with the organisation of this set of documents during the hearing of this matter;
·Various clinical notes, particularly from Dr Edward Fethers in relation to Mr Richwood’s various medical conditions (A2 and R2);
·Report of Dr John Suthers dated 29 October 2014 (A3);
·Report of Dr Rene Lim dated 8 April 2016 (A4);
·Report of Dr Rene Lim dated 1 September 2016 (A5);
·List of Medications currently prescribed for Mr Richwood (A6);
·Briefing letter to Dr John Suthers dated 16 January 2015 (R3);
·Report of Dr John Suthers dated 12 February 2015 (R4);
·Report of Occupational Therapist Kate Coghlan dated 24 January 2014; and
·Report of Dr Megan Gilbert dated 24 May 2011 (R5).
The Tribunal received a Statement of Facts, Issues and Contentions from the Commission dated 2 April 2015 and a Statement of Facts, Issues and Contentions from Mr Richwood dated June 2015. Following a directions hearing prior to the hearing of this matter, it was agreed that both Statements were lacking in detail and legal analysis. Subsequently, the Tribunal received a Fresh Statement of Facts, Issues and Contentions from Mr Richwood dated 23 August 2016 and a Fresh Statement of Facts, Issues and Contentions from the Commission dated 1 September 2016.
Mr Richwood prepared a detailed written statement dated 20 May 2015 (A1). Mr Richwood also appeared at the hearing of this matter and was cross examined.
Consultant Psychiatrist Dr Megan Gilbert also appeared as a witness at the hearing and was examined, cross examined and re-examined at length.
Following the hearing of this matter, Written Closing Submissions were received from counsel for Mr Richwood (dated 7 October 2016). Written Submissions were then received from counsel for the Commission (dated 14 October 2016).
The Tribunal has reviewed all of the above and highlights the following materials as particularly relevant.
Statement of Paul Richwood dated 20 May 2015 (A1)
Mr Richwood provided a detailed written statement to the Tribunal, as follows:
1.I was born in Fiji on … 1948.
2.I was one of six children.
3.I completed Year 10 at school in Fiji.
4.In 1968 I moved to New Zealand under a sporting scholarship and lived there for about 9 years.
5.During that time I was selected for the 1974 Commonwealth Games and made the finals of the 400 metres hurdles.
6.I was selected for the 1976 Olympic Games in Montreal however, I withdrew from the Olympics.
7.I then moved to Melbourne where I played rugby professionally for 3 years.
8.While in Melbourne I was recruited for the Special Air Service (‘SAS’).
9.I did my initial training at Kapooka in 1979 before moving to Western Australia with the SAS.
10.I served with the SAS from 1981 to 1989.
11.The SAS was physically demanding and we were required to perform heavy repetitive physical activities including pack marching and parachute jumps.
12.In 1984, during my SAS service I was involved in a hit and run motor vehicle accident while I was walking on a footpath.
13.I woke up 2 days later in Royal Perth Hospital but couldn’t remember anything that had happened. I was told that I had an above knee amputation.
14.Since that time, my life obviously changed dramatically.
15.Following the accident, I worked as a pay clerk administrator and in other desk jobs.
16.I left the Army in 1989 and commenced working for Armaguard as a security guard.
17.I didn’t like working with guns so I didn’t stay with Armaguard.
18.For the next 6 years or so until 1995, I worked in various jobs including as a taxi driver, a truck driver, a front end loader driver and a crane driver on the mines.
19.In 1995 I was recruited as a bus driver and continued in that role until 12 July 2013 when I stopped work on the advice of my doctor.
20.Throughout my career as a bus driver I worked with a degree of pain.
21.Generally, while driving a bus, I was reasonably comfortable and sitting down and I would work through any pain.
22.Prior to ceasing work driving and sitting for long periods caused severe pain in my lower back, hips and right knee with the pain increasing steadily from the start of the shift to the end of the shift. By the end of the shift I would be in severe pain.
23.The reason that I was unable to continue as a bus driver was solely due to the severe pain I was suffering.
24.Prior to being advised by my doctor to cease work, I had always put up with the pain that I was suffering while I was working.
25.Although the pain was bad, I had been able to manage it while working.
26.I would take pain killers, I exercised regularly and while he lived at home my son would give me massages.
27.From the time that I had my leg amputated in 1984 I have experienced phantom pains.
28.Phantom pain comes and goes but it never prevented me from working.
29.Usually I am able to ignore it - it is like a very short electrical shock which can wake me up when I am sleeping.
30.If I give my stump a rub it usually helps.
31.I am able to take nerve pain tablets if it causes me any problems.
32.I go for periods of 2 to 3 weeks without having any phantom pain at all.
33.I have been working since 1984 with the phantom pain and it has never stopped me from working.
34.The pain from my back, hips and knees does stop me from working.
35.Sometimes the pain is so bad that all I can do is lie in bed and take pain killers every four hours.
36.In 2013 after getting some scans on my back, knees and hips, my doctor advised me to stop working and I took his advice.
37.My back problems started while we were doing night jumps in the SAS.
38.I recall one night when we were doing parachute jumps in the Katanning area and I landed on the sealed road.
39.I was knocked out.
40.I was dressed in camouflage gear and my chute dragged me across the road.
41.I was dressed in camouflage gear and the truck didn’t see me and almost hit me.
42.That night jump started off problems with my back.
43.My weight has never impacted on my ability to work. I am no bigger now than I was when I was working full time. I have been much the same weight for a long time now.
44.I do not have significant problems with my memory.
45.Sometimes I have a little bit of difficulty with my short term memory, forgetting where I put my keys and things like that.
46.I do make more of an issue of it because I am concerned about dementia.
47.My ex-wife however, is a nurse and she has told me that it has nothing to do with dementia.
48.My memory has never stopped me working or caused any problems at work.
49.I sometimes get concerned, however, because I have very little to do at home and spend my time watching TV which does not keep my brain as active as it should.
50.The pain stopped me from doing activities like swimming and going to the gym that I used to do and that makes me feel low at times.
51.I used to swim morning and night.
52.Recently I’ve since started trying to get back to swimming and at the end of April, I tried swimming in the ocean.
53.I also made up my mind to go back to the gym to increase the social contact that I have with other people.
54.This exercise does exacerbate the pain.
55.I don’t believe I am depressed but I do sometimes feel low through a lack of involvement with people and limitations that I experience physically.
56.I saw Dr Gilbert in 2011 who diagnosed depression.
57.At that time I was working full time and continued to work full time after I saw Dr Gilbert.
58.I was prescribed anti-depressants but I don’t take them and don’t believe I need to take them.
59.I have not seen Dr Gilbert since then and do not receive treatment from any psychiatrist or psychologist.
60.I have had low periods ever since my amputation because of the changes it caused to my life.
61.I have never let it stop me from working.
62.I have always suffered from pain but in 2013 it became more difficult to deal [sic].
63.My shoulder injury has responded well to surgery and now does not cause me any problem.
64.Although my amputated leg has always caused some problems, it has never stopped me from working and would not stop me from working now.
65.The main problem I suffer is insomnia that is insomnia due to the pain that I’m suffering in my back and hips which stop me from sleeping.
66.While I was bus driving, I did night shift for almost 7 years.
67.I would work from 2.00pm till after midnight.
68.This suited me at the time because my son was still at school.
69.My shifts were 8-9 hours.
70.I changed from full time work to part time in May 2013, but I was still able to work full shifts.
71.In July 2013 my Doctor advised me to cease work.
72.None of the conditions that I am currently suffering from are recently developed.
73.Although my hearing loss and tinnitus have deteriorated over time, they have never stopped me from working.
74.I do not wear hearing aids.
75.My carpal tunnel syndrome has gradually improved although when I was using crutches for a prolonged period it caused me to develop pins and needles.
76.The fractured right clavicle that I suffered while playing rugby in the Army aches occasionally with the change in the weather, but it does not have any bearing on my working or not.
77.I take pain relief for the osteoarthritis in my right knee.
78.My right shoulder has not caused me any concerns at this time.
79.My back and neck do cause me significant difficulty.
80.I am trying to manage the pain by returning to regular exercise and I have started seeing a physiotherapist.
81.My hips also cause me significant problems and I use pain relief as required.
82.Although there is a constant ache and a feeling that it might give way, I have managed that problem for many years.
83.My amputated leg does not cause me any difficulties other than the fact that I have to use a prosthetic limb and at times crutches.
84.I did suffer from bronchitis and for a period had a chronic cough however, I am receiving no treatment for that condition.
85.The otitis externa in my ears does not require any treatment.
86.I did have some problems with sleep apnoea however, I was provided with a mandibular advancement device and this has improved my condition.
87.I do suffer from insomnia but that is caused by the pain that I am suffering which interferes with my sleep and causes my mood to suffer.
88.I play music which helps my mood improve.
89.My left shoulder has been repaired through surgery and no longer causes me any problems.
90.I take medication for my hypertension and that also does not cause me any difficulties and did not while I was working.
91.The cardiac stent I had inserted in 2012 did not prevent me from working and still would not.
92.The main problems that I suffer are with my back, hip, knee and ankle and I suffer a constant ache in all of those areas.
93.Were it not for the pain that I suffer from those conditions, I would still be at work.
94.I have regular contact with my supervisor at the bus depot and he constantly asks when I am coming back to work.
95.The only physical conditions preventing me from working are those that cause me to suffer severe pain.
Prior Determinations

Counsel for the Commission provided the following chronology of Mr Richwood’s request for an increase in the rate of pension:
09/10/10         Application for increase in rate of pension above 100% General Rate
18/02/11         Commission decision declining to increase rate of pension beyond 100%
12/12/11         VRB decision and reasons affirming Commission decision of 18/02/11
26/05/13         Applicant reduces hours of work to part-time
14/08/13         Application for increase in rate of pension above 100% General Rate
12/09/13         Applicant ceases work
24/09/13         Commission decision declining to increase rate of pension beyond 100%
20/11/13         Application to VRB
25/03/14         VRB hearing adjourned (s. 152 VEA)
17/07/14         VRB hearing and decision
23/07/14         VRB letter to Applicant enclosing decision and reasons
28/08/14         Application to AAT
The Tribunal notes all of the above dates and hearings and highlights, relevantly, the following evidence and determinations.
Reasons for Decision of Veterans’ Review Board dated 12 December 2011 (T4 at 21)
Mr Richwood first applied for an increased rate of pension in October 2010. In February 2011, the Commission refused to increase the pension beyond 100% of the General Rate. A copy of that decision was not provided to the Tribunal.
In December 2011, the VRB affirmed that decision, relevantly as follows:
HISTORY OF APPLICATION
1.Mr Paul Lee Richwood (the applicant) has applied for review of a Repatriation Commission decision dated 18 February 2011 in which the Commission refused to increase pension beyond 100% per cent of the General rate.
2.That decision answered an application received on 9 December 2010 for an increase in pension payable in respect of the following conditions:
·bilateral sensorineural hearing loss;
·bilateral tinnitus;
·carpal tunnel syndrome of the right wrist;
·fracture of the right clavicle:
·osteoarthrosis of the right knee;
·rotator cuff syndrome of the right shoulder;
·lumbar spondylosis;
·osteoarthritis affecting both hips;
·osteoarthritis of the right ankle.
…
APPLICANT’S CASE
12.Mr Boland told the Board that the applicant was seeking a pension at the Special rate, and the applicant would discuss the basis of the application.
13.The applicant told the Board that he disputed that part of the report from Dr Megan Gilbert, consultant psychiatrist, dated 24 May 2011, that referred to him suffering constant “pain in both legs, in his left leg it is phantom pain from the amputation ... (folio 47).” The applicant said that he had not discussed his left leg amputation with Dr Gilbert until she noticed him having difficulty sitting and standing, as he had to ensure that the left leg was in the socket of the prosthesis. Then he simply told her that the left leg had been amputated as the result of an incident in which he was run down by a car. The applicant said that he had never told Dr Gilbert that he suffered pain in the left leg, and indeed it did not inconvenience him other than standing or sitting.
14.The applicant told the Board that he did not have any problem with the left leg prosthesis when driving the buses in his former employment. The buses were automatic and he did not need to use his left leg. The main problem was with his back as he had to sit for long periods when bus driving. When he could he would stand up and walk around to alleviate the back pain.
15.The applicant said that he believed the main cause of his depressive disorder was lack of sleep. Due to pain from his right ankle, knee, back and shoulder he found it hard to find a position where he would not suffer discomfort. As a result he found it hard to sleep. The only time he could get to sleep quickly was after he had been drinking alcohol, but when bus driving he had to have a zero blood-alcohol level so he could not drink when working.
16.After the applicant ceased all work at Southern Coast Transit he looked for work but there was nothing for him. He told the Board that his work experience was largely with physical work and his musculo-skeletal problems prevented him working. He could not use computers. When in the Army, after he lost his leg he had worked in office administration as a pay clerk and administration clerk, but felt he was not cut out for this type of work.
17.Mr Boland, after hearing the applicant’s evidence, suggested to the Board that in the light of the evidence regarding Dr Gilbert’s report, the Board could consider an adjournment to obtain a supplementary report from her. The Board pointed out that the report may affect the entitlement claim for depressive disorder, but this claim under review related to assessment.
BOARD’S DETERMINATION
Degree of Incapacity
18.The Board noted that the applicant had been at an impairment level giving rise to a pension at 100% of the General rate since 27 January 2003. There was nothing before the Board that indicated that the applicant’s impairment ratings or lifestyle rating were incorrect. The Board therefore is reasonably satisfied that the degree of incapacity remains at 100 percent.
Earnings-related rate of pension
Criteria
19.As the Board was satisfied that the degree of incapacity was at least 70 percent, it was necessary to consider whether an earnings-related pension was payable. The criteria for the payment of those rates (the Intermediate and Special rate) are set out in sections 23 and 24 of the Act.
20.Section 24 of the Act dealing with Special rate contains several tests and there are two important points to note about them. Firstly, each test is very specific. Secondly, all the tests must be complied with before the veteran (in this case read applicant) can qualify for payment of pension at that rate. Generally speaking, if any one test is not met then the veteran would not be eligible for payment of pension at that rate.
21.Broadly, there are three tests that must be met before the veteran is entitled to the Special rate:
•    incapacity from war-caused injury or disease, or both, is assessed to be at least 70 percent [s24(1)(a)]
•    the veteran must be totally and permanently incapacitated (i.e., the incapacity from war-caused injury or disease, or both, must itself alone render the veteran incapable of undertaking remunerative work i.e., paid work for periods aggregating more than eight hours per week) [s24(1 )(b)]
•    the veteran must be prevented from his war-caused injury or disease, or both, (i.e., his accepted disabilities), alone from continuing to undertake remunerative work that he was undertaking and is thereby suffering a loss of earnings on his own account that he would not otherwise be suffering [s24(1)(c)]
22.The third test is qualified by s24(2)(a) which stipulates that a veteran who is incapacitated by war-caused injury or disease, or both, shall not be taken to be suffering a loss of earnings by reason of that incapacity if:
•    the veteran had ceased to engage in remunerative work for reasons other than incapacity from war-caused injury or disease, or both [s24(2)(i)]; or
•    the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason [s24(a)(ii)];
23.In appropriate circumstances, the so-called “ameliorating provisions may apply in determining eligibility for Special rate. [sic] These are the provisions contained in section 24(2)(b) of the Act. The ameliorating provisions only apply to a veteran under the age of 65 years who has not been engaged in paid work. The requirements are that:
•    the veteran must have been genuinely seeking to engage in paid work;
•    but for the veteran’s incapacity arising from his accepted disabilities, he would be continuing to seek to engage in paid work; and
•    that incapacity is the substantial cause of the veteran’s inability to obtain paid work.
24.Section 23 of the Act contains broadly similar criteria as regards the payment of pension at the Intermediate rate. The major difference is that the relevant inability to work is other than on a part-time basis or intermittently - i.e., generally speaking, for not more than 20 hours per week.
Board’s deliberations
First Test - s24(1)(a) or s23(1)(a)
25.On the basis of the material available, the Board is reasonably satisfied that the applicant’s incapacity from defence-caused injury or disease, or both, is assessed to be 100 percent. The Board is therefore satisfied that the first test [s24(1)(a)] or s23(1)(a) is met.
Second Test - s24(1)(b) or s23(1)(b)
26.The second test requires an examination of the applicant’s incapacity from defence-caused injury or disease, or both, to determine whether or not that incapacity is such, of itself alone, to render him incapable of undertaking remunerative work for more than eight hours per week or for not more than 20 hours per week in the case of the intermediate rate. This does not require an examination of other causes that might render the applicant unable to undertake remunerative work, but merely whether the war-caused disabilities, on their own, are sufficient to render him incapable of undertaking such work.
27.The evidence before the Board is that the applicant finally ceased remunerative work on 25 March 2011. At that time the applicant had claims lodged with the Repatriation Commission, but not decided, for lumbar spondylosis, osteoarthritis affecting both hips, osteoarthritis of the right ankle and depressive disorder. The musculo-skeletal claims were accepted by the Delegate in a decision dated 31 May 2011, but depressive disorder was not accepted as defence caused.
28.There is evidence before the Board in terms of a Supervisor-Employment Report, completed by the applicant’s former employer (folio 13) which stated that the applicant had issues with prosthetic leg; difficulty walking to/from buses and getting around depot; concerns have been raised regarding his general health and ability to stay focussed on customer service; and Paul hasn’t seemed as happy and content as usual and struggling moving around before even trying to drive and complete a shift.
29.In a Medical Report - Ability to Work, the applicant’s local medical officer (LMO) Dr E Fethers, stated that the applicant was unable to carry out heavy work (which includes transport driving) for more than 1-2 hours a day due to degenerative lumbar spine and knees (folio 21). However he did not assess the applicant’s capacity to carry out other lighter duties work. In his report Dr Fethers also referred to the applicant having phantom pain from the above knee amputation (folio 19).
30.Dr Gilbert in her report diagnosed the applicant as suffering from a major depressive illness. She opined that he was unable to work as a direct consequence of his physical and emotional disabilities. She commented that prior to leaving work the veteran was absenting himself on a fairly regular basis because he was not sleeping and could not function driving buses and because the pain was increasing in his legs. Furthermore he had no motivational energy to get up and go to work (folio 48). However while the medical evidence is that the depressive disorder played a role in the applicant’s inability to continue working, the condition was not accepted by the Repatriation Commission as being defence caused.
31.Dr Gilbert referred to the applicant suffering constant pain in both legs with the pain in the left leg being phantom pain from the amputation. While the applicant denies having told Dr Gilbert this, the Board notes that Dr Fethers has also referred to the applicant suffering phantom pain in the amputated leg. The medical material, together with the reports from the applicant’s former employer point to the applicant suffering difficulties with his amputated left leg that affected his work capacity, and caused him to cease work. These conditions continue to prevent him from undertaking remunerative employment.
32.While the pain suffered by the veteran from his accepted conditions of fracture right clavicle, osteoarthritis of the right knee, rotator cuff syndrome of the right shoulder, lumbar spondylosis, osteoarthritis affecting both hips and osteoarthritis of the right ankle all play a part in preventing the applicant for [sic] working, the evidence is that these conditions do not of themselves alone prevent him from working more than eight hours a week.
33.There is material before the Board pointing to the applicant having ceased work due to his depressive disorder and pain connected with his amputated left leg and those conditions continue to prevent him undertaking remunerative work. That being the case the Board cannot be reasonably satisfied that the applicant is unable to work due to accepted conditions alone and he therefore does not meet the requirements of the second test.
Third Test - s24(1)(c) or s23(1)(c)
34.While it is not necessary to consider the third test in this case, the Board notes for completeness that the applicant would also fail to meet the strict requirements of this test due to his work capacity being affected by the non-accepted disabilities of the amputated left leg and depressive disorder.
Board’s decision
35.Having considered all of the material available to it, and for the reasons given above, the Board is reasonably satisfied that 100% of the General rate has been the appropriate assessment since the application day. The Board accordingly affirms the decision under review.
Decision of the Repatriation Commission dated 24 September 2013 (T7 at 71)
In August 2013, Mr Richwood again applied to the Commission for increased disability pension.
The Commission declined this request, finding relevantly as follows:
...
The Special Rate can be paid to a veteran who is totally and permanently incapacitated for paid work of more than 8 hours per week because of war or defence caused incapacity alone. In addition, he or she must be prevented from continuing paid work solely because of accepted disabilities, and as a consequence be suffering a loss of earnings.
A veteran who is under 65 years of age and is not working, but has been genuinely seeking work, will be considered to have been “prevented from continuing paid work solely because of accepted disabilities” if accepted disabilities are the substantial cause for remaining out of the workforce.
Special Rate, Intermediate Rate & the Extreme Disablement Adjustment
Section 24 of the Veterans’ Entitlements Act (the Act) states that the Special Rate is payable to a veteran who meets all of the following tests on or after the lodgement date of a claim or application:
1)The incapacity due to accepted disabilities must be sufficient to render the veteran incapable of paid work of more than 8 hours per week.
It does not matter that suitable work of these hours may be unavailable or whether or not the veteran can attract an employer. If the veteran is physically and/or mentally capable of working more than a total of 8 hours per week in a suitable job, the Special Rate pension cannot apply.
Any reasonable types of work must be considered for this test. These include any types of work that the veteran could reasonably be expected to undertake, with his skills, experience and abilities, if he did not have the disabilities. The ability to re-train for other work is a “skill”.
2(a)The veteran must be prevented from continuing the paid work that he was doing because of incapacity due to accepted disabilities alone.
This is a practical test which requires an examination of the actual factors that led to the cessation of work and which currently prevent a veteran from doing the kind of work he was doing. If any of those factors was significant and was not due to an accepted disability, this test is failed.
Non service related factors may include advancing age, labour market considerations, time out of the workforce, personal choice (including voluntary resignation), incapacity arising from non war-caused disabilities etc.
2(b)Where test 2(a) above is failed, a veteran who has been genuinely seeking work but has been unable to obtain work substantially because of accepted disabilities, shall be regarded as passing that test.
Efforts to find work must have been genuine and realistic and the veteran must either still be looking for work or would be still looking if not substantially because of accepted disabilities.
Substantially in this context means mainly, or more than 50% of the reason.
3)Solely as a consequence of 2(a) or 2(b), the veteran must be suffering a loss of earnings.
The loss must be significant and (for self-employed veterans) the loss must be on the veteran’s own account, that is a personal loss of earnings as opposed to a business loss.
This test is generally met as a natural consequence of test 2 being met, however self-employed veterans who continue to receive the same income after ceasing work may have difficulty satisfying this requirement.
The criteria for the Intermediate Rate, as specified in Section 23 of the Act, are the same as for the Special Rate, except that the veteran need only be restricted to part-time work (less than half the normal hours of the position, or less than 20 hours per week).
In this case the evidence indicates that the veteran reduced his working hours from full time to part time from 26 May 2013 then ceased working altogether on 12 September 2013. The reason provided by the veteran for the reduction and cessation of employment was due to his service related back and hip problems. I acknowledge that these disabilities did impact on the veteran’s capacity to work and this has been supported by Dr Fethers, however in the ‘medical report - ability to work’ Dr Fethers has indicated that not only service related conditions impacted, but non-service related disabilities of amputation of the left leg, depressive disorder, phantom limb pain and sleep apnoea also contributed to his capacity to work.
Based on the evidence I therefore find that Mr Richwood was not totally and permanently incapacitated nor prevented from continuing work because of accepted disabilities alone.
In the circumstances, I am satisfied that the veteran is not eligible for pension at the Intermediate or Special Rate. ...
Reasons for Decision of the VRB dated 25 March 2014 (T10 at 80)
Mr Richwood appealed the Commission’s decision to the VRB on 10 November 2013. The initial hearing before the VRB (March 2014) was subsequently adjourned until July 2014. Nonetheless, the VRB’s preliminary assessment of March 2014 provides a useful summary of the main issues and the evidence relevant to Mr Richwood’s medical history. These reasons provide as follows:
APPLICANT’S CASE
11.Mr Young acknowledged that Mr Richwood had appeared before the Board in 2011 for consideration of a similar claim for special rate where he had been unsuccessful. He noted the previous Board may have been unduly influenced by the opinion of Dr Fethers when it made its decision. Mr Young had gone to see Dr Fethers when he became involved in this case and they discussed the reasons why the applicant’s earlier application had been ‘knocked back’. He indicated that Mr Richwood had not told Dr Fethers that he had ‘phantom’ pains in his amputated leg. He highlighted that Dr Fethers, as an amputee himself, was firmly of the view that if he could work as a doctor with a disability, then it should not be an impediment to anyone else either. Consequently the Board should view it in this light too.
12.Mr Young made the observation that Mr Richwood was an ex-serviceman who had lost a leg at a relatively young age, but had remained in the Army for some years before going on to have a long working life until last year when he was no longer able to continue working. Mr Richwood first had to reduce his work from full-time to part-time on 26 May 2013 and ceased work completely on 12 September 2013, not because of his amputation, but because of the pain in his hips, lower back and his right ankle, all of which are accepted conditions.
13.Mr Young contended that the applicant was not able to work more than eight hours per week because of his numerous accepted conditions and that any non-accepted conditions were insignificant in considering his ability to work. In responding to a question from the Board Mr Richwood stated his left shoulder condition did not stop him working as it only caused him pain when he lay on it at night. Mr Young supported the applicant’s assessment and stated that there was no evidence that any of the non-accepted conditions played a part in Mr Richwood ceasing work or now being incapable of working more than eight hours a week.
BOARD’S CONSIDERATION
16.As the Board is satisfied the degree of incapacity in this case is at least 70% the Board is required to determine whether an earnings-related rate of pension is payable. The submission is for the special rate of pension.
17.With a degree of incapacity of 100% and as Mr Richwood was aged less than 65 years at the date of application, the first criteria for payment of the special rate of pension as provided for in subsection 24(1 )(a) have [sic] been met.
18.At the outset the Board observed that the key issues in this case are whether the applicant is incapable of working more than eight hours per week in a job which he could reasonably be expected to undertake and, if so, what is the cause of that inability. The applicant’s contention is that he is so incapacitated and that it his [sic] accepted conditions alone which are the cause of this incapacity. However the Board notes this is ultimately a medical matter and the crucial evidence must be medical evidence and the expert opinion of a person suitably qualified to make such assessments.
19.The Board noted the representative had provided a report from an occupational therapist, Ms Kate Coghlan, dated 24 January 2014, however the copy of the report provided to the Board was unsigned and did not disclose Ms Coghlan’s medical or other qualifications. Further the Board notes Ms Coghlan was not advised of the applicant’s non-accepted conditions and it observed the questions posed were leading and suggestive of the anticipated response.
20.The Board notes the report is quite detailed and otherwise satisfactory as an opinion on the applicant’s capacity for work as a result of his accepted conditions. However, in the absence of any indication of Ms Coghlan’s medical qualifications to make such assessments and thus be considered expert in her field, the Board finds that her report is of little assistance to it and is unable to place much weight on her opinion. Consequently the report is of little benefit to the applicant’s case.
21.Mr Richwood had applied previously to the Board for review of a Repatriation Commission decision dated 18 February 2011 not to increase pension beyond 100% of the general rate. The previous Board considered the matter on 12 December 2011 when the applicant told the Board he had ceased remunerative work on 25 March 2011, although he had subsequently attempted to find other work but there was nothing for him. At that time, the Board was not reasonably satisfied that Mr Richwood was unable to work due to accepted conditions alone.
22.In a letter dated 13 September 2013 Ms Janelle Bourke, Transdev Payroll Officer, advised that Mr Richwood had been employed with Transdev WA Pty Ltd since 21 January 2003 and that he reduced to part-time work on 26 May 2013 and ceased work completely on 12 September 2013 (folio 32). The Board was unable to reconcile the advice that Mr Richwood had been employed by Transdev since 2003 with his evidence to the previous Board that he had finally ceased remunerative work on 25 March 2011 (folio 26).
23.Under subsection 24(1 )(b) for the special rate of pension the requirement is that a veteran is unable to work for more than eight hours per week as a result of accepted conditions alone. The Board notes the opinion of Dr Rene Lim of the Fremantle Family Doctors in a report dated 14 February 2014 where he notes the applicant’s chronic low back pain and hip pain, and knee and ankle issues and says:
‘I think given his pain in various areas due to degenerative disease, which is unlikely to improve, I feel I would support Paul not working anymore and being made permanently impaired’ (submission dated 15 March 2014).
24.The Board notes Dr Lim’s statement is supportive of the applicant ‘not working anymore’, however he has not stated Mr Richwood is incapable of working more than eight hours per week as a result of accepted conditions alone. However the Board chose not to make a decision on this second test and turned to consider the third test. It identified the following material in particular:
·     An Ability to Work report dated 11 September 2013, by Dr Ed Fethers, General Practitioner, which identified hypertension and sleep apnoea as additional disabilities of the applicant (folio 33-35).
·     A report by Dr Philip Finch, Pain Specialist, dated 5 December 2011 which states ‘Paul is experiencing phantom sensations in the limb radiating as far as the ankle. This is especially severe at night time. He reports throbbing sensations and electric paraesthesia ... Recently, Paul underwent insertion of a cardiac stent for angina and takes Astrix. He is otherwise well’ (folio 48).
·     A report from St John of God Hospital dated 27 December 2011 which notes a history of ‘IHD, stent, chol, HTN (hypertension)’ (folio 50).
·     A report by Dr Sonia Dale, SKG Radiology, of an ultrasound of the applicant’s left shoulder conducted on 10 December 2012 which notes ‘There is complete tearing of the biceps tendon ... Extensive rotator cuff pathology with complete full-thickness tearing and retraction of the supraspinatus and biceps tendon and high grade partial-thickness tearing of the subscapularis insertion’ (folio 55).
·     A report by Dr Peter Hales, Orthopaedic Surgeon, dated 12 February 2013 which notes the applicant ‘relates and [sic] increasing problem in his left shoulder to driving a bus with poorly functioning power steering which wrenched the shoulder in recent times’ (folio 56).
·     A report by Dr Michael Prichard, Respiratory and Sleep Physician, dated 26 February 2013 which notes problems including sleep apnoea, insomnia, probable restless leg syndrome, probable REM sleep behaviour disorder, depression, asthma, hypertension and left leg amputation (folio 58).
·     A report by John Roberts, Manipulative Physiotherapist, dated 26 August 2013 which notes ‘Paul ... is winding back his hours in anticipation of a TPI pension’ (folio 70).
25.Under the circumstances the Board could not be reasonably satisfied that the applicant’s symptoms, level of impairment and incapacity for work are due solely to his accepted conditions, or to any other non-accepted conditions he might have. It was therefore not able to resolve this matter on the material currently available to it. Accordingly, the Board considers further medical evidence is required to establish the conditions which render the applicant incapable of undertaking remunerative work for periods aggregating more than eight hours per week.
BOARD’S DECISION
26.Consequently the Board decided to adjourn the hearing of the application under section 152 of the Veterans’ Entitlements Act 1986 pending further investigation in the terms of the letter to the Secretary, Department of Veterans’ Affairs, which is attached. In this the Board requests specialist medical opinion from a suitably qualified occupational physician. When the requested specialist report is available the hearing may resume. In the meantime it is adjourned under section 152 of the Act.
Reasons for Decision of Veterans’ Review Board dated 17 July 2014 (T2 at vi)

Mr Richwood’s hearing before the VRB resumed on 17 July 2014. Relevantly, the VRB, in rejecting Mr Richwood’s request for an increase in his pension rate, found as follows:
…
BOARD’S DETERMINATION
…
33.As noted in the Board’s previous reasons, at folio 85, the applicant has a number of non-accepted conditions including depression and difficulty with phantom limb pain. Dr Meyerkort has addressed both these conditions at folios 113 and 114.
34.As regards the applicant’s amputation of the left leg, Dr Meyerkort records the applicant as telling him that he does have difficulty with phantom limb pain. The doctor goes on to say:
Mr Richwood stated that over the past four months he has had increasing difficulty with mobility
35. As regards depression, the doctor states:
Mr Richwood stated that over the past several months he has felt “sad all the time”. He stated that he has lost motivation to perform activities and is required to force himself to perform activities (such as attending swimming).
36.The first limb of the test in Section 24(1)(c) requires that it be war-caused incapacity “alone” preventing the veteran from undertaking remunerative work that the veteran was undertaking. The Courts have interpreted “alone” to mean exactly that, which is reinforced by the comment by Nicholson, J in Forbes v Repatriation Commission (2000)171 ALR 131, that:
“As in the case of the present applicant, it is possible that the war-caused condition will be by far and away the more dominant of the causes of the preventative effect where there is also present a non war-caused condition having such effect in combination. The result is that the presence of the latter will deny to a veteran qualification for the special rate of pension. ...”
37.While the Board does sympathise with the applicant’s situation, it must apply the law to the facts as they are found to be. The Board is unable to be reasonably satisfied that the applicant does meet the third test.
38.Consequently, having considered all of the material before it, and for the reasons given above, the Board is reasonably satisfied that 100% of the General Rate has been the appropriate assessment since the application day. The Board accordingly affirms the decision under review.
Medical report of Dr Megan Gilbert, Consultant Psychiatrist, dated 24 May 2011 (R5)
Dr Megan Gilbert examined Mr Richwood on 9, 16 and 23 May 2011 on behalf of DVA medical officer, Dr Johan Yin. Dr Gilbert has more than 27 years of experience as a practicing psychiatrist and appeared as witness before this Tribunal. Her report reads as follows:
This is a report on Mr Paul Richwood a sixty two year old divorced man currently not working. Mr Richwood already has a gold card and 100% disability with DVA for hearing and problems related to his artificial leg. Information in this report is based on three consultations done with Mr Richwood on the 9th May, 16th May and 23rd May 2011.
Presenting Complaint
Mr Richwood says that he was involved in a hit and run motor vehicle accident in 1984 when he was walking on a footpath whilst in service. He woke up two days later in Royal Perth Hospital, couldn’t remember anything that had happened but was told that he had had an above knee amputation.
Since that time Mr Richwood says that his life has changed dramatically. He was transferred out of the SAS (where he was at the time of the accident) and was put into the regular army and sent to Melbourne. He said he found this transition difficult and couldn’t cope. Mr Richwood said he was angry and down and that this affected his marriage at the time because there was constant fighting between them. Ultimately this lead to his wife leaving him a year later and him leaving the army. Since the [sic] time the situation has deteriorated further. He left the army in 1989 and after a number of short term jobs including working for Armaguard and working in the mines, driving cranes and driving taxis he ultimately started work as a bus driver which he did for the last eleven years. Mr Richwood said he continued in this work despite constant pain in his legs because he was trying to put his daughter through medicine in Germany. In December of last year he reached a point where he had no energy or motivation to get out of bed to go to work, and said that sitting in buses driving was causing him increasing pain in both his legs such that he couldn’t continue with the job any longer. Mr Richwood said he felt a failure and disappointed in himself because he promised his daughter he would support her through her university degree but said he couldn’t cope any longer.
Mr Richwood’s current symptoms in addition to the above include poor sleep with initial, middle and terminal insomnia. In addition, he suffers constant pain in both legs. In his left leg this is phantom pain from the amputation and in his right leg it is in his knees and ankles as a consequence of him putting increased stress on them due to the prosthesis. Mr Richwood also suffers poor memory, poor appetite and despite this has gained weight. He says he has no motivation to do anything and gets little enjoyment from anything in life. He says his life has changed completely in that previously he had been a very active, driven person where sport had been a priority in his life. Specifically prior to joining the army he had been an Olympic and Commonwealth game hurdler and had represented both Melbourne and New Zealand in rugby. He says now he can’t do any sport because of his physical disabilities but also because he has no motivation to do anything.
Service History
Mr Richwood joined the army at the age of thirty one and went straight from recruiting to the selection course for the SAS. He remained in the SAS for four years until he had his accident at which point he was transferred into the regular army and was based in Melbourne. He said he couldn’t cope with this and left soon after. Mr Richwood was in the army for a total of eleven years.
Background
Mr Richwood comes from an unremarkable background. He is the fourth of six and spent his early years until he was sixteen in Fiji. He then went to New Zealand through a sports sponsorship and lived there until 1977. Mr Richwood then came to Australia and joined the army soon after. He describes his early childhood as normal and there is no family psychiatric history of any note.
Premorbid Personality
Mr Richwood is an obsessive person who prides himself on his ability to succeed and is stoic in his approach to his current situation. There is no past psychiatric history of any note nor has he sought any help previously for this current problem.
Mental State Examination
On mental state examination Mr Richwood arrived late for his appointment and was quietly spoken. He described his mood as down and his affect was congruent. There was no evidence of cognitive thought disorder.
Other Tests
1.        DSM IV for Major Depressive Illness. Mr Richwood satisfies the criteria.
2.        Beck Depression Inventory Long Form: 54 Extreme Clinical Depression
3.        Spielberger State Anxiety Inventory: 46 Mild Levels of Anxiety
4.        Spielberger Trait Anxiety Inventory: 48 Mild Levels of Anxiety
5.        The following GARP V criteria apply:

Table 4.1

Subjective Distress

15

Persistent symptoms causing considerable distress from which the veteran is often unable to distract himself.

Table 4.2

Manifest Distress

6

The distress is apparent to those familiar with the veteran.

Table 4.3

Functional Effects

2

Moderate interference with function in some everyday situations.

Table 4.4

Occupation

8

The veteran cannot work as a direct consequence of his physical and emotional disabilities. Prior to leaving work he was absenting himself on a fairly regular basis because he was not sleeping and could not function driving buses and because the pain was increasing in his legs. Furthermore he had no motivational energy to get up and go to work.

Table 4.5

Domestic Situation

5

Continual conflict with family members. Currently he lives alone and has a relationship with his daughter who is in Germany and is probably only able to maintain this because of the distance.

Table 4.6

Social Interaction

8

Negligible social contact.

Table 4.7

Leisure Activities

8

Virtually all recreational activities are banned.

Table 4.8

Current Therapy

5

Need for intensive specialist treatment on an outpatient basis including medication.

Impairment Rating = 45 points 15+6+8+8+8

Assessment
Mr Richwood is a sixty two year old man who has a major depressive illness of severe intensity. This has occurred as a direct consequence of the problems that have original [sic] from his leg amputation which occurred as a result of a hit and run motor vehicle accident while he was in service. Because of this he has lost all of the things in his life which defined his self esteem and this, together with constant unremitting pain have resulted in the emergence of a major depressive illness. This is of such a severity where he is going to require regular psychotherapy and medication.

Report of Dr Andrew Liu dated 20 June 2011 (R2)

This follow up report reads as follows:
I saw Paul in my rooms for follow-up on 20 June, 2011. Paul has been well since his angiogram and not had any further problems with angina or shortness of breath. His groins have healed satisfactorily following his angioplasty.
He recently returned from a trip to Cairns without incident. He did however leave most of his medications behind as his luggage was lost.
Paul’s main problem at present is that of phantom limb pain and I understand that he has been referred to Dr Phil Finch for management of this. His appointment to see Dr Finch is not until November.
Clinical examination today revealed that his heart rate was 50bpm and regular while his blood pressure was 145/80mmHg. His central venous pressures were not elevated and he had normal heart sounds. His lung fields were clear.
This gentleman’s 12 lead ECG performed today demonstrated normal sinus rhythm without any significant ST segment changes.
In summary, Paul is stable from a cardiac point of view but continues to have severe problems with phantom limb pain.
In order to improve his compliance with medication, I have stopped his metoprolol and commenced him on atenolol 25mg nocte. I have also written him an authority prescription for gabapentin to try for his phantom limb pain.
Thus his current medications should consist of CoPIavix 1 tablet daily, atenolol 25mg nocte, Ramipril 10mg nocte and gabapentin 300mg tds.
Report of Dr Philip Finch dated 5 December 2011 (A2 at 4)
This report reads as follows:
Thank you for referring Paul Richwood aged 62. Paul gives a history of losing his left lower limb above the knee in a motor vehicle accident in 1984. Prior to that he was extremely fit and served in the SAS. Paul is experiencing phantom sensations in the limb radiating as far the ankle. This is especially severe at night time. He reports throbbing sensations and electric paraesthesia.
Recently, Paul underwent insertion of a cardiac stent for angina and takes Astrix. He is otherwise well.
On examination there was a well healed left, above knee, amputation stump. There was possibly a neuroma point corresponding to the position of the sciatic nerve in the thigh. Palpation of this structure replicated some of his sensations.
I have previously successfully implanted a sciatic nerve stimulating electrode for this condition. It would be simple to trial an insertion under ultrasound control. First of all I will see if I can visualise the sciatic nerves under ultrasound before perhaps trying a temporary electrode.
Report of Dr Gavin Watson dated 7 February 2012 (T6 at 53)
This report reads as follows:
MRI LEFT LOWER LIMB
Clinical History: Above knee amputation 1994. Phantom pain. Hypoechoic area related to the sciatic nerve on ultrasound. ? Neuroma, ? bursa, ? Schwannoma.
Technique: Axial T1, STIR and post contrast T1 (fat sat). Coronal and sagittal STIR.
Findings: There has been an above knee amputation. Within the thigh distally there is bulbous expansion of the sciatic nerve with is mildly hyperintense on the T2 weighted images but does not enhance (distal axial images 12/23). The sciatic nerve is abnormal over a length of 90 mm and in maximal cross sectional measurements measures 23 x 19 mm in size. Distally the superficial femoral artery and vein lie immediately anterior to the expanded sciatic nerve. There is atrophy of the hamstring muscles distally.
On the large field of view coronal STIR images, there is a right knee joint effusion.
Comment: Bulbous swelling of the sciatic nerve distally. The appearance would be most consistent with a posttraumatic neuroma.
Report of Dr Philip Finch dated 14 March 2012 (R2)
This report reads as follows:
Paul Richwood has had his MRI and I enclose a copy of the report. This shows a posttraumatic neuroma and confirms the ultrasound findings.
Paul reports some improvement in his pain if he takes a small amount of Lyrica at night. I think he should continue this on a regular basis. I have also injected the neuroma with a small amount of steroid as this can damp down neuroma irritability. If the phantom sensations are central in origin then injection in the neuroma may not have much effect.
Report of Dr Michael Prichard dated 26 February 2013 (T6 at 58)
This report reads as follows:
Problems:
1.        Moderate supine-dependent obstructive sleep apnoea/hypopnoea.
1.1.     Habitual loud snoring.
1.2.     Morning tiredness.
1.3.     Excessive daytime sleepiness.
2.        Insomnia.
2.1.     Phantom pain induced sleep disturbance.
2.2.     Psychological factors.
2.3.     Probable restless leg syndrome.
3.        Probable REM sleep behaviour disorder.
4.        Depression - treated.
5.        Asthma.
6.        Hypertension.
7.        Left leg amputation.
Thank you for referring Paul Richwood back for review today 26 February 2013, about seven years after I last saw him. He continues to drive buses for Southern Transit (Veolia), often in split shifts. He has not had any motor vehicle accidents, nor near miss accidents, due to falling asleep while driving.
He continues to snore according to observers (issue has a house with friends [sic]), wakes three or four times per night, has pain induced sleep disturbance at sleep onset about twice per week but generally his phantom pains are controlled by Pregabalin at night. He says that he wakes feeling reasonably refreshed between five and 5:30 AM, swims five days per week in the morning although not in the past month because of shoulder pain. As a result his weight has increased. He has moderate daytime sleepiness: Epworth sleepiness score = 15/24. He is not on any treatment for sleep disordered breathing.
On examination he had mild nasal obstruction, reduced pharyngeal volume with moderate uvular oedema.
An overnight sleep study recently demonstrated moderate obstructive sleep apnoea/hypopnoea, worse in supine sleep, with interval worsening since 2006, possibly related to weight gain. I have recommended treatment of his obstructive sleep apnoea/hypopnoea with a mandibular advancement splint, and referred him to a specialist dentist for that purpose. I have completed a fitness for commercial driving medical certificate, subject to using a dental splint.
Report of John Roberts, Physiotherapist, dated 28 June 2013 (T6 at 68)
This report reads as follows:
Paul presented with:
§Right sided low lumbar pain
§Gradual onset and 6 month duration
§Aggravated by both sitting and standing
§Discomfort at night when rolling over
Objectively:
§Mild lumbar pain in all movements early in range
§Moderate tenderness at L4 & L5
§Nil else of note
I am sure Paul’s walking pattern with the leg orthotic contributes to his lumbar irritation along with his short term inability to use crutches due to the shoulder surgery. Paul’s soreness is now intermittent and continuing to improve. I expect I will need to follow him up over the next 2-3 weeks.
Report of Kate Coghlan, Occupational Therapist, dated 24 January 2014 (T12 at 96)
This report reads as follows:
Background
Mr. Richwood is 65 years of age and lives with a friend in Warnbro. He is an Ex Special Air Service soldier.
Mr. Richwood’s DVA accepted disabilities are:
Sensorineural Hearing Loss
Bilateral Tinnitus
Carpal Tunnel Syndrome - Right wrist
Fracture - Right Clavicle
Osteoarthritis - Right Knee
Rotator Cuff Syndrome - Right Shoulder
Lumbar Spondylosis
Osteoarthritis of both hips.
Osteoarthritis of Right Ankle
Employment History
Mr. Richwood reported that he completed year 10 at school in Fiji. He stated that he joined the army in 1979 as a Special Air Service soldier and left in 1989. Mr. Richwood reported that he worked as a pay clerk/administrator for 2 years in the army following his left above knee amputation in 1984. Since that date, Mr. Richwood reported that he worked as an Armaguard, a taxi driver, a train driver and a crane driver on the mines. For the past 15 years Mr. Richwood reported that he worked as a bus driver but ceased on the 12th of September 2013. He reported that he was unable to work because he found the job too physically demanding and it exacerbated his pain levels. Mr. Richwood reported that prolonged driving and sitting caused severe pain in his lower back, hips and right knee with his pain score increasing from 6/10 at the start of his shift to 10/10 at the end of his shift. He stated that he was unable to complete his job roles such as assisting disabled people onto the bus and completing duties required when the bus had broken down due to the severe pain.
Current Functional Capacity
Mr. Richwood reported that reduced activity and bed rest is his current method of pain management, along with analgesia (Panadol Osteo) and physiotherapy. He reported that on the days when he does not have medical appointments, he gets out of bed at approximately 2pm and prepares himself a light meal. He then often goes back to bed as lying horizontally helps to alleviate his pain and keep his pain score around 3-4/10.
Mr. Richwood is independent with his personal care activities and showers independently using assistive devices. A rail has been installed in the shower to facilitate his safe and independent negotiation of the shower hob (200mm) and to steady himself within the recess when his prosthesis has been removed. Mr. Richwood requires a walking aid (his elbow crutches or walking frame) to assist with getting out of the shower. He sits to shower on a shower stool and uses a hand help [sic] shower hose. Mr. Richwood has an over toilet seat with arms which helps him to transfer safely on and off the toilet. This equipment was installed in May 2013 following left shoulder decompression surgery.
Mr. Richwood reported that he attends a physiotherapist twice a week in Fremantle. This involves Mr. Richwood driving for 45 - 60 minutes and then attending the appointment for 30 minutes. When accessing the community, Mr. Richwood uses his elbow crutches, which he reported helps to alleviate the pain in his right ankle. Mr. Richwood reported that his pain in his back, hips and right knee escalates to 10/10 by the time he gets home from the appointments and he has to have a shower and go straight to bed to try and alleviate it.
Mr. Richwood reported ambulating independently around the house without a walking aid but stated he uses his elbow crutches when going into the yard or walking to the mailbox.
Mr. Richwood reports difficulties with hearing and reports a constant ringing in his ears. This occasionally impacts on his ability to make and receive phone calls and participate in conversations in noisy environments.
Mr. Richwood reported experiencing pins and needles and ‘numbness’ in both hands 2- 3 times per day. He has noticed that he drops cutlery a lot due to reduced grip and needs to ask his friend to open jars and bottles, as he does not have the strength in his hands.
Mr. Richwood reported to this occupational therapist in May 2013 that his memory was ‘going’. At the time education was provided on memory strategies, which would help him including diary use/using a shopping list etc. Mr. Richwood has implemented these strategies but continues to find that he has difficulties with attention, concentration and memory.
Mr. Richwood reported that he takes anti-depressants. He reported ‘zero’ social activity at the moment and reported ‘I don’t feel like socialising’, which is a change for him since last year. Mr. Richwood reported that he prefers his own company at the moment and declines all social invitations.
Mr. Richwood reported difficulty with cleaning the house and is unable to vacuum due to the pain in his back, hips and knee. He is unable to hang out his laundry for the same reason and uses the dryer. He reported doing small amounts of shopping but finds it difficult with his elbow crutches. He has been in contact with Homecare services for assistance with domestic duties.
Mr. Richwood reports that when he is out of bed, his pain is a constant 6/10. He finds it difficult to get comfortable when lying down and often needs to change his body position. He reports that he wakes 6+ times per night due to the pain, particularly in his back and hips. He reports that he often ‘dozes off during the day’.
His advocate has requested that I provide my professional opinion and answer the following questions:
1.What is the impact of the veteran’s accepted disabilities on his ability to undertake paid work of a kind, which having regard to his qualifications, skills and experience, he could reasonably be expected to undertake?
It is my opinion that Mr. Richwood’s functional capacity is severely limited by the pain he experiences in his back, hips, right knee and ankle. I do not believe he would be able to undertake any form of paid work.
2.What is the impact, if any, of the amputation of his left leg on his ability to perform his duties up until the present?
It is my opinion that Mr. Richwood’s amputation has had a minimal impact on his ability to perform his duties up until the present. He sustained his amputation in 1984 and has demonstrated since that time that he is capable of working in a full time capacity.
3.Paul is claiming that his accepted disabilities alone, mainly his Lumbar Spondylosis is the reason for his inability to work. Would you agree with this claim?
I agree with this claim and am of the opinion that his limited work capacity is due to his documented Lumbar Spondylosis, Advanced Osteoarthritis in his right ankle and severe degenerative changes in his facet joints, lumbar discs, bilateral hips and right knee. His Carpel Tunnel Syndrome also impacts on his functional ability, as does his bilateral Tinnitus.
4.In each case (i.e. Paragraph 1-3 above) is that impact permanent or temporary?
It is my opinion that the impact is permanent.
5.Is the ex soldier incapacitated by reason of his accepted disabilities alone from undertaking paid work (of the kind referred above) for period aggregating no more than 8 hours per week?
I believe that he is incapacitated by reason of his accepted disabilities alone from undertaking paid work aggregating to no more than 8 hours per week.
Report of Dr Rene Lim dated 14 February 2014 (T12 at 102)

This report reads as follows:
This is to confirm that Paul has an ongoing history of chronic low back, and hip pain. He also suffers from knee and ankle issues. His symptoms have been progressing to the point whereby he has had to cease working in September 2013.
These symptoms are mostly due to degenerative disease in these areas. He has seen Neurosurgeon Dr John Liddell recently and has had a few imaging investigations. Surgery was considered but not decided to be his best choice at this stage. He may well need to resort to this in the future.
I think given his pain in various areas due to degenerative disease, which is unlikely to improve, I feel I would support Paul not working anymore and being made permanently impaired.
Report of Dr John Liddell, Neurologist, dated 25 February 2014 (T11 at 90)
This report read as follows:
I saw Mr Richwood - at the request of Dr Rene Lim on 16 January 2014, and noted that he was a 65 year old right handed former SAS soldier with chronic low back, and bilateral (right>left) hip discomfort, which he attributed to “night jumps”.
HISTORY
l understood that he came to Australia (via New Zealand) from Fiji in 1978. I also noted that his original career was playing rugby.
He told me that he was hit by a “drunk driver” in 1984 - as a result of which he ended up with a left above knee amputation.
He remained in the SAS as a “desk jockey” until 1989. He then began driving trucks, cranes, and buses etc. until approximately four months prior to my seeing him, when his pain progressed to the point where he began using crutches.
He has had some discomfort in his right knee and ankle, along with some paraesthesias and numbness. However, his knee and ankle pain was not obviously emanating from his back.
EXAMINATION
I examined him briefly, and noted that he appeared generally well. Nevertheless, he was not able to extend his fingers much beyond his knees, whilst attempting to touch his toes.
The examination of his cranial nerves was unremarkable. He was generally hyporeflexic. However, the remainder of his neurological examination was unremarkable.
PROGRESS
In the circumstances, I arranged to investigate him further with a lumbo-sacral MRI scan and a bone scan.
I saw Mr Richwood again on 10 February 2014, and noted that his lumbosacral MRI scan was somewhat degraded by motion artefact.
Nevertheless, that study revealed evidence of mild to moderate degenerative changes at a number of levels - in particular at L5/S1, associated with a mild (minimal) degree of degenerative spondylolisthesis of L4 on 5, where he had radiological evidence of severe facet joint arthropathy bilaterally.
Furthermore, that study revealed evidence that Dr Mike Fallon reported as a ‘33 cm diameter infer-renal aortic aneurysm’.
His bone scan revealed evidence of ‘bilateral L4/5 facet arthropathy being metabolically active’ but was otherwise, unremarkable.
I arranged to investigate Mr Richwood further with some functional views of his lumbosacral spine. They revealed evidence of a previously noted mild (minimal) degree anterolisthesis of L4 on 5, without any definite evidence of instability.
In the circumstances, I advised Mr Richwood that there would be a good chance of improving the situation for him by performing a decompressive micro herni-laminectomy (right L4/5) although at his age, I told him that I would probably suggest an interbody fusion procedure - as being a more reliable means of providing long term relief from his discomfort.
He was not particularly interested in having surgery. Consequently, I left him to discuss the situation with Dr Lim.
OPINION
Mr Richwood has chronic low back, and in particular, bilateral (right>left) hip discomfort, which he attributes to “night jumps’.
He has radiological evidence of mild to moderate degenerative changes at a number of levels - in particular, at L5/S1, associated with a mild (minimal) degree of degenerative spondylolisthesis of L4 on 5.
In answer to your specific questions:
1.What is the impact of the veteran’s accepted disabilities on his ability to undertake paid work of a kind, which having regard to his qualifications, skills and experience, he could reasonably be expected to undertake?
As l understand it, Mr Richwood has been unable to continue his former duties - driving trucks, cranes and buses, etc, for approximately four months - as a consequence of his ongoing discomfort, as described above.
2.What is the impact, if any, of the amputation of his left leg had on his ability to perform his duties up until the present?
Given that Mr Richwood was able to perform those duties for approximately 30 years following his left above knee amputation, I am unclear as to what impact, if any, the amputation of his left leg has had on his ability to perform his duties up until the present.
3.Paul is claiming that it is his accepted disabilities, mainly his lumbar spondylosis, is [sic] the reason for his inability to work. Would you agree with his claim?
On the basis of the available information, I believe that it would not be unreasonable to attribute Mr Richwood’s inability to work to his ‘lumbar spondylosis’ - a situation that is unlikely to change significantly in the near to intermediate future, without further treatment.
4.In each case (i.e. para 1 to 3 above), is that impact permanent or temporary?
As noted above, on the basis of the available information, I believe that it would not be unreasonable to attribute Mr Richwood’s inability to work to his ‘lumbar spondylosis’ - a situation that is unlikely to change significantly in the near to intermediate future, without further treatment.
5.Is the ex soldier incapacitated by reason of his accepted disabilities alone from undertaking paid work (of the kind referred above) for period aggregating no more than 8 hours per week?
As I understand it, Mr Richwood has been unable to perform ‘paid work (of the kind referred above) for period aggregating no more than 8 hours per week’.
Report of Dr Phillip Meyerkort, Consultant Occupational Physician, dated 15 May 2014 (T13 at 109)
This report reads as follows:
... Mr Richwood stated that he then held a role as a bus driver with Southern Coast Transit for approximately 15 years. He stated that he was mainly based in the Perth metropolitan area working in a full time capacity. Mr Richwood stated that he left his role in September 2013. He said that he was advised to leave his role by his treating doctor. Mr Richwood stated that he had had difficulty with assisting passengers on to and out of his bus. He stated that due to these difficulties he left his role and has not held paid employment since September 2013.
Clinical History:
Your correspondence has outlined multiple conditions, both accepted and non-accepted, that have the potential to impact Mr Richwood’s ability to attend paid employment. I will outline each of these in turn.
(i)        Bilateral hearing loss:
Mr Richwood stated that he has noticed difficulty with hearing the telephone and hearing the television. He stated that this has deteriorated in the past several years. Mr Richwood stated that this has been attributed to exposure to loud noise and weapons firing noise whilst in the Army. Mr Richwood stated that he has not been provided with hearing aids as yet.
(ii)       Tinnitus:
Mr Richwood stated that he has developed worsening tinnitus over the past several years. He stated that he has a constant ringing noise in both ears. Mr Richwood stated that he has been reviewed for this condition and recommended conservative management.
(iii)       Carpal tunnel syndrome right wrist:
Mr Richwood stated that he developed carpal tunnel syndrome whilst in the Army. He stated that he was recommended a conservative management program. Mr Richwood stated that his condition gradually improved. He stated that his condition has been recently exacerbated due to his increasing use of crutches to mobilise. He stated that he will develop pins and needles in his right hand with prolonged use of his crutches. He stated that he has been able to self-manage his condition despite this. Mr Richwood stated that there are no plans for further investigation or intervention for his right wrist condition at this time.
(iv)      Fracture right clavicle:
Mr Richwood stated that he fractured his right clavicle whilst playing Rugby in the Army. He stated that he received conservative management and his condition improved. Mr Richwood stated that he does notice an ache with the change in weather. He stated there were no plans for further investigation or intervention for his right clavicle condition at this time.
(v)       Osteoarthritis right knee:
Mr Richwood stated that he initially developed discomfort in his left knee from playing Rugby in the Army (this leg then underwent amputation in 1984). Mr Richwood stated that he developed difficulty with his right knee, which he attributed to parachute jumps, in particular night based jumps. Mr Richwood stated that he has not required any intervention for his condition. He stated that he experiences a constant ache that will improve with movement. Mr Richwood stated that he will occasionally take Panadol Osteo for his condition. He stated that there are no plans for further investigation or intervention for his condition at this time.
(vi)      Right shoulder:
Mr Richwood stated that his right shoulder condition is related to his right clavicle condition and does not cause him any concerns at this time.
(vii)     Back and neck:
Mr Richwood stated that he has had difficulty with his back for many years. He stated that he experiences a constant burning/aching/tightness in his back and neck. Mr Richwood stated that he has been reviewed by a neurosurgeon for his condition. He stated that surgery has been considered, however not pursued.
Mr Richwood stated that he continues to self-manage his condition with regular exercise, such as swimming, and over-the-counter analgesia including Panadol Osteo. Mr Richwood stated that he will attend a physio on an as needed basis for exacerbations of his condition. He stated that he recently commenced under the care of a physiotherapist due to an exacerbation of his condition. He stated that he continues to receive treatment.
Mr Richwood stated that he has similar symptoms affecting his neck. He stated that his neck condition is often worse at night and interferes with his ability to sleep. Mr Richwood stated that he has not undergone any further review for his neck condition and stated that he will receive treatment from the physiotherapist for his neck condition. He stated there are no plans for further investigation or intervention for his neck at this time.
(viii)     Osteoarthritis both hips:
Mr Richwood stated that he has developed osteoarthritis in both hips. He was unsure if this is secondary to his left leg amputation and use of prosthesis or time in the Army. Mr Richwood stated that he can have ache that is worse in his right leg that will radiate down his leg. He stated that he will use Panadol Osteo as required. Mr Richwood stated that there are no plans for further investigation or intervention for his condition at this time.
(ix)      Osteoarthritis right ankle:
Mr Richwood attributes the development of osteoarthritis in his right ankle to recurrent parachute jumps, in particular nocturnal jumps. He stated that he has not required any intervention for his condition. Mr Richwood stated that he experiences a constant ache and episodes of his right ankle giving way. He stated that there are no plans for further investigation or intervention for his condition at this time.
(x)       Amputation left leg:
Mr Richwood stated that he was involved in a motor vehicle accident in 1984. He stated that as a result he underwent above-knee amputation of his left leg. Mr Richwood stated that he then underwent placement of a prosthesis.
Mr Richwood stated that he has not required any further surgery since his initial amputation performed in 1984. He did not report any significant problems with his stump.
Mr Richwood stated that he does have difficulty with phantom limb pain. He stated that he has previously been prescribed Lyrica for this condition. Mr Richwood stated that due to side effects, he has ceased taking this medication regularly and will currently only take Lyrica as needed. Mr Richwood stated that he is provided with a new lower limb prosthesis every four years. He stated that his prosthesis can cause skin irritation.
Mr Richwood stated that over the past four months he has had increasing difficulty with mobility. He stated that as a result he has recommenced using crutches to assist with mobilising. Mr Richwood has also been provided with a new lower limb prosthesis during this time and awaits further adjustment of this.
(xi)      Acute bronchitis:
Mr Richwood stated that he has had recent difficulty with upper respiratory tract infection. He stated that for the past several months he has had chronic cough. Mr Richwood stated that he has been prescribed antibiotics by his general practitioner. Mr Richwood stated that despite these, he continues to have a productive cough. Mr Richwood stated that he is not being reviewed by any medical specialists for this condition at this time.
(xii)     Otitis externa both ears:
Mr Richwood stated that he initially suffered difficulty with both ears when participating in diving exercises during the Army [sic]. He stated that he continues to experience episodes of itching in both ears. Mr Richwood stated that this generally occurs when he participates in swimming. Mr Richwood stated that he is currently swimming on most days. Mr Richwood stated that he has not required any treatment for this condition.
(xiii)     Depression:
Mr Richwood stated that over the past several months he has felt “sad all the time”. He stated that he has lost motivation to perform activities and is required to force himself to perform activities (such as attending swimming). Mr Richwood stated that he has been prescribed antidepressant medication by his general practitioner. He stated that he took a short course, however found minimal benefit and subsequently ceased this medication. Mr Richwood stated that he has not attended any psychologists or counsellors for review.
(xiv)     Sleep apnoea:
Mr Richwood stated that he was diagnosed with sleep apnoea approximately five years ago. He stated that he has been provided with a mandibular advancement device. He reported that this has improved his condition.
(xv)     Insomnia:
Mr Richwood reported recent difficulty with getting to sleep. He stated that this has been worse with his recent depressive symptoms. Mr Richwood stated that he can also have difficulty with his neck that can interfere with him getting to sleep.
(xvi)     REM sleep behaviour disorder:
Mr Richwood was unclear regarding the diagnosis of this condition. I note correspondence from Dr Michael Pritchard (Respiratory Physician) listed a probable diagnosis of REM sleep behaviour disorder. Unfortunately no further information was provided as to how this diagnosis has been made.
(xvii)    Left shoulder:
Mr Richwood stated that he sustained injury to his left shoulder that he attributed to his duties as a bus driver. Mr Richwood stated that as a result of his condition he underwent surgical repair of his left shoulder in 2013. Mr Richwood stated that his condition has improved since surgery. He stated that he continues to perform swimming to assist with his shoulder condition. He stated that there are no further plans for intervention or investigation of his shoulder condition at this time.
(xviii)    Hypertension:
Mr Richwood stated that he was diagnosed with high blood pressure approximately two years ago. He continues on medication including Atenolol and Ramipril.
(xix)     Cardiac stent:
Mr Richwood stated that he had a single cardiac stent placed in 2012. Mr Richwood stated that he had developed a non-specific episode of chest pain. He stated that he attended for further review and subsequently underwent placement of the cardiac stent. Mr Richwood stated that he was previously prescribed Plavix following placement of the stent. He stated that this has recently been changed to aspirin. Mr Richwood stated that he was also commenced on Lipitor to assist in controlling his cholesterol. Mr Richwood stated that he has regular review with a cardiologist. He stated that he currently awaits further investigation of his heart condition in the coming week.
(xx)     Left hand:
Mr Richwood did not report any difficulty with his left hand, however confirmed that he had prior left shoulder pathology.
Current Status:
Mr Richwood stated that his main concern is in regard to his back, hip, knee and ankle. As such it is likely that his current concern relates to osteoarthritis affecting these areas. He reports that he has a constant ache in all of these areas. Mr Richwood stated that he can have difficulty with walking as a result, in particular getting up from sitting causes pain. Mr Richwood stated that he is limited in his ability to sit and stand as a result of his condition.
Present Work Status:
Mr Richwood is not currently at work.
Present Activities:
Mr Richwood is independent of [sic] his activities of daily living. Mr Richwood stated that he is able to drive his private automatic vehicle. Mr Richwood stated that over the past four weeks he has developed difficulty performing duties around the home including cooking, cleaning, washing and hanging out of clothes. He stated that he currently awaits external assistance with these activities. Mr Richwood stated that he is able to perform shopping duties, however can have difficulty carrying items. Mr Richwood stated that he does not typically perform home maintenance tasks. Mr Richwood stated that he has been able to continue with his hobbies including regular swimming.
Present Treatment:
Mr Richwood attends his general practitioner for review on an as needed basis. He continues to take the following prescribed medication:
•          Atenolol
•          Ramipril
•          Aspirin
•          Lipitor
•          Lyrica
•          Panadol Osteo
Mr Richwood stated that he currently attends a physiotherapist once per week and on an as needed basis. Mr Richwood stated that he currently awaits his periodic review of his heart condition.
Past Medical History:
Mr Richwood did not disclose any other relevant past medical history.
Family History:
Mr Richwood stated that he has a family history of diabetes.
Personal/Social History:
Mr Richwood stated that he currently lives alone. He has two adult children who no longer live at home. He does not keep any pets.
He is a non-smoker and drinks minimal alcohol.
PHYSICAL EXAMINATION:
Mr Richwood was pleasant and interactive for the duration of the review. His height was 177cm and weight 100kg. Mr Richwood had a left above-knee prosthesis. Mr Richwood mobilised with crutches and had an antalgic gait. He had flattening of his normal spinal curvatures. Mr Richwood was able to undress and redress with ease. He had difficulty climbing up on to and down from the examination couch.
The following areas were examined as they relate to my field of expertise:
Head/Neck:
Mr Richwood had multiple areas of muscle tightness in his neck. He had a decreased range of movement in all directions in his neck to above half normal range.
Upper Limbs/Shoulder Girdles:
Mr Richwood had scars over his left shoulder consistent with his reported surgery. He did not have any obvious muscle wasting or deformity. He maintained a full range of movement through both shoulders, elbows, wrists, hands and all his fingers. Mr Richwood had normal muscle power in all upper limb muscle groups. He had intact biceps, triceps and brachioradialis reflexes bilaterally. Mr Richwood had intact light touch and pinprick sensation in all upper limb dermatomes. Mr Richwood had a grip strength of 35kg on the right and 25kg on the left (assessed using a Jamar dynamometer). Mr Richwood had negative tests for impingement bilaterally.
Back/Spine:
Mr Richwood had multiple areas of muscle tightness in his back. He had a decreased range of movement in all directions in his back to above half normal range.
Lower Limbs:
Mr Richwood had an above-knee prosthesis on his left leg. Mr Richwood maintained a sitting and supine straight leg raise of 90° in his right leg. He had normal muscle power in all muscle groups in his right leg. He had intact light touch and pinprick sensation in all areas in his right leg. Mr Richwood had intact knee and ankle and downward going plantar in his right leg. Mr Richwood maintained a full range of movement through his right hip, right knee, right ankle and feet and all his toes. Mr Richwood was not assessed for walking on his heels or toes and not assessed for performing a squat.
INVESTIGATIONS:
Localised Bone Scan with SPECT from Perth Radiological Clinic from 5 February 2014, reported by Dr Michael McCarthy:
“1.       Bilateral L4/5 facet arthropathy being moderate metabolic activity
2.Some sacroiliac asymmetry increased on the right of moderate intensity. In the absence of hyperaemia, this likely represents osteoarthritic change
3.No prominent or asymmetric hip joint arthropathy, with normal appearance of proximal femora.”
MRI Lumbosacral spine, from Perth Radiological Clinic, from 5 February 2014, reported by Dr Michael Fallon:
“1.Mild to moderate multilevel degenerative lumbar spondylosis. There is a minimal degenerative spondylolisthesis at the L4/5 level. Severe facet joint hypertrophic degenerative change is present at this level with small face joint effusions and bilateral facet joint gapping. This suggests the presence of segmental instability. There is mild central canal stenosis at L4/5 with the patient lying supine. This would be expected to become more severe with the patient adopting the erect posture.
2.Shallow 3mm right posterolateral protrusion at L2/3 with only mild thecal sac indentation.
3.33mm diameter infrarenal abdominal aortic aneurysm.”
SUMMARY AND ASSESSMENT:
Mr Richwood is a 65 year old ex-SAS officer who has reported multiple conditions that he attributes to his time with the Army. Mr Richwood stated that he voluntarily discharged from the Army in 1989. He stated that on leaving the Army he has been able to maintain multiple civilian roles including as a security officer, as a crane driver, as a taxi driver and as a bus driver. Mr Richwood stated that he ceased his most recent role as a bus driver in September 2013 due to his reported conditions.
Diagnosis:
Mr Richwood has osteoarthritis affecting his neck, back, both hips, right knee and right ankle. He has bilateral hearing loss with tinnitus. He has had prior above-knee amputation of the left leg and placement of a prosthesis. He reported having treatment for sleep apnoea. He has reported recent depressive symptoms. Mr Richwood has undergone surgery for left shoulder and rotator cuff tear. Mr Richwood has undergone placement of a cardiac stent for ischaemic heart disease and continues on appropriate treatment (including treatment for cholesterol and high blood pressure).
Assessment:
Mr Richwood has reported multiple conditions that he attributes to his time in the Army. Mr Richwood reported that he was part of the SAS in a period from 1979 to 1984 (five years).
Mr Richwood stated that prior to this time he was involved in athletics and playing Rugby, representing his country at international sporting events from 1968 to 1977 (nine years). Mr Richwood stated that he sustained significant injury and subsequent above-knee amputation of his left leg in 1984 and has had placement of a prosthesis since. This has resulted in abnormality of his normal gait pattern. In considering the relatively short time in which Mr Richwood was part of the SAS (five years) compared to the time that he has had left above knee amputation (since 1984) and participation in international sporting events (nine years), I am not of the opinion that his time with the role with the Service has played a significant role in the development of his osteoarthritis affecting his multiple joints.
The most recent significant factor causing deterioration in Mr Richwood’s back, hips, right knee and right ankle relates to his left above-knee amputation and the derangement of gait this has caused. It is known that individuals with limb amputation are at increased risk of developing accelerated degenerative changes in the contralateral limb. This is the case for Mr Richwood.
Mr Richwood has reported depressive symptoms in the past several months and a deterioration in his general condition. I am of the opinion that this is a result of his cessation of work. Mr Richwood’s prior role provided him with adequate social interaction and regular physical activity. This would have maintained Mr Richwood’s physical abilities and avoided his current development of depressive symptoms.
It is unclear to me why Mr Richwood was encouraged to cease employment instead of seeking alternative employment to permit him to obtain benefit from attending work for both physical exercise and social interaction.
Medical Management:
Mr Richwood does not require any further investigation in regard to his conditions (apart from the current plans for further investigation of his heart condition). I am not of the opinion that he requires any further intervention for his conditions at this time. Mr Richwood should continue with a regular exercise program. He should be referred to a psychologist to assist with his current depressive symptoms.
Fitness For Work:
I am of the opinion that Mr Richwood maintains an ability to attend work. Given his reported difficulty with mobility and recent deterioration in symptoms, it is appropriate that a reduction in hours is pursued to assist in Mr Richwood’s transition to retirement. At this stage I would anticipate that he could reasonably perform 20 to 24 hours per week either as three full days (of eight hour shifts) or performing five days of four to five hour shifts.
Mr Richwood would be able to return to a role as a taxi driver. He may have difficulty performing a bus driver role due to the requirement to assist passengers. If he was not required to assist passengers he would be able to return to the bus driving role.
Mr Richwood is currently unable to return to his role with the Armed Services. He is currently unable to return to his previous security role and is unable to return to a role as a crane driver.
Prognosis:
It is likely that Mr Richwood’s condition will deteriorate with time due to the degenerative nature.
To address your specific questions:
1.Is the applicant’s incapacity due to accepted conditions alone sufficient to render him incapable of working more than eight hours per week in a job which he could reasonably be expected to undertake?
I note the accepted conditions to include:
•          Bilateral sensorineural hearing loss
•          Bilateral tinnitus
•          Carpal tunnel syndrome right wrist
•          Fracture of the right clavicle
•.         Osteoarthritis of the right knee
•          Rotator cuff syndrome of the right shoulder
•          Lumbar spondylosis
•          Osteoarthritis affecting both hips
•          Osteoarthritis of the right ankle
I am not of the opinion that it is these accepted conditions that are causing the main limitation in regard to his ability to attend paid employment. I am of the opinion that his left leg amputation is having a significant impact on his ability to maintain employment, as this is having a profound effect on other aspects of his physical wellbeing. Mr Richwood maintains a capacity to continue at work in a part time capacity. Please refer to “Fitness for Work” section.
2.If the answer to Question 1 above is “Yes”, is this capacity likely to be permanent?
Not applicable.
3.If the answer to Question 1 above is “No”, is the applicant’s incapacity due to accepted disabilities sufficient to render him incapable of working more than 20 hours per week in a job which he could reasonably be expected to undertake?
I am of the opinion that Mr Richwood could reasonably work 20 to 24 hours per week in a role that he is reasonably experienced in and educated to perform. This is despite his accepted and non-accepted disabilities.
4.Please describe in detail if and to what extent non-service related disabilities affect the applicant’s ability to work. Non-service related disabilities are listed on the first page of this letter. If any other disabilities are identified at your examination, these should be regarded as non-service related disabilities.
Please refer to “Assessment” section.
5.Considering all types of work that could be undertaken, and not restricting consideration only to work that the applicant has been performing, do you consider the applicant fit for work? If so, how many hours per week?
Please refer to “Fitness for Work” section. Mr Richwood could also explore other sedentary type roles either in a logistics capacity, in particular for transport. Similarly Mr Richwood could explore roles in customer service.
6.Is there any other factor, apart from any non-service related disability detailed above, which impacts on the applicant’s capacity to work?
I have not been made aware of any other factors impacting on Mr Richwood’s capacity to work. I am of the opinion that continuing at work is an essential part of Mr Richwood’s ongoing management of his conditions. He has reported significant deterioration in all of his conditions since cessation of work in September 2013. It is unclear to me why he was recommended to cease work at this time. I am of the opinion that returning to some form of regular activity such as paid employment or voluntary employment is an essential part of Mr Richwood’s ongoing management plan for all of his medical conditions.
Report of Dr John Suthers dated 17 September 2014 (A3)

In the circumstances, the Tribunal finds that Mr Richwood satisfies the requirements of sections 24(1)(aa), 24(aab) and 24(1)(a)(I).
Subsection 24(1)(c) must be read in conjunction with subsection 24(2) which contains ameliorating provisions for applicants aged under the age of 65. That subsection provides that a person will be treated as having been prevented from continuing to undertake work if the person has not been engaged in remunerative work but has been genuinely seeking to engage in work, and would, but for that incapacity, be continuing to seek to engage in remunerative work and the person's service-related incapacity is the substantial cause of his inability to obtain work. It was not argued, nor does the evidence show, that this section applies to Mr Richwood because there was no evidence that he was genuinely seeking work during the relevant period.
Mr Richwood stopped working as a bus driver in July 2013 on the advice of his doctor. As agreed by the parties, in relation to section 24(1)(b) the Tribunal must first determine whether Mr Richwood is capable of working more than 8 hours per week as a bus driver. The Tribunal must then determine whether his accepted disabilities alone render him incapable of working in excess of 8 hours per week in that capacity.
Mr Richwood has been diagnosed with a wide range of quite serious disabilities. Some are accepted disabilities for the purpose of the Act. Others are not. In relation to his non-service related disabilities, the pain from his leg amputation and the effects of his diagnosed depression featured most prominently in evidence before the Tribunal.
Mr Richwood appeared before the Tribunal on crutches and was clearly suffering memory loss. On his own evidence he suffers a great deal of discomfort. That is not disputed. Mr Richwood claims that he cannot work more than 8 hours per week because of his pain and discomfort. For the reasons outlined below, the Tribunal agrees.
In an extensive report dated On 24 May 2011, Dr Megan Gilbert, consultant psychiatrist, diagnosed Mr Richwood as suffering from a major depressive illness of severe intensity. Dr Gilbert was of the opinion that Mr Richwood could not work because of his physical and emotional problems, including lack of motivation. Dr Gilbert was cross examined and did not alter her conclusions in that regard. On the contrary, Dr Gilbert, having been provided with the relevant history of Mr Richwood’s medical and work situation, informed the Tribunal that the period of time for which a person can suffer from depression is highly variable, but it is usually in the order of years rather than a week or month. Her expectation was that Mr Richwood would have remained depressed for a considerable period of time after she first diagnosed him with severe depression in 2011.
In cross-examination, Dr Gilbert accepted that it was possible for a person to continue to work with a depressive condition. However, she advised that when examined in 2011, Mr Richwood told her that the reason he was working was that he was trying to earn money to put his daughter through medicine in Germany, this was the driver that was getting him through work but that it an increasingly difficult thing to do.
Nothing in cross examination provided any evidence that would allow the Tribunal to conclude that Dr Gilbert had altered her overall 2001 conclusions about Mr Richwood’s inability to work.
On 15 September 2013, Mr Richwood’s General Practitioner, Dr Fethers, reported that Mr Richwood’s work capacity was limited to 0-1 hours per day (T6 at 35). In January 2014, Occupational Therapist Kate Coghlan reported that Mr Richwood could not work more than 8 hours per week (T12 at 96). On 17 September 2014, Dr John Suthers reported that Mr Richwood was totally and permanently incapacitated for gainful employment (A3 at 6). Further, in his report of 1 September 2016, Dr Lim advised that Mr Richwood was not fit to work 8 hours or more per week due to his chronic health and pain issues (A5).
The only medical expert who concludes that Mr Richwood retains a capacity to work is Dr Meyercourt who concludes that Mr Richwood retains an unrestricted ability to work.
In relation to work capacity, the Tribunal prefers the evidence of Dr Gilbert, Dr Lim, Dr Suthers and Kate Coghlan to that of Dr Meyercourt. The clear consensus of these specialists is that Mr Richwood cannot continue to work more than 8 hours per week. It is also not entirely clear from Dr Meyercourt’s report why, precisely, he concludes that Mr Richwood has no work capacity restrictions. Dr Meyercourt notes that Mr Richwood suffers from some 20 quite serious medical conditions, has a decreased range of movement in both his neck and back and like many who undergo a limb amputation is more likely to have suffered accelerated degenerative changes in the contralateral limb. Despite this, he then seems to conclude that Mr Richwood should work because he would benefit from the physical exercise and social interaction. While this is undoubtedly the case, this does not mean that Mr Richwood is actually capable of working.
On the evidence, the Tribunal concludes that Mr Richwood is not capable of working more than 8 hours per week. The next question, however, is whether that inability relates to his various accepted conditions alone. This inquiry is relevant to both section 24(1)(b) and section (24)(1)(c).
In relation to this issue, the Tribunal notes the very useful summary provided by Professors Robin Creyke and Peter Sutherland, Veterans’ Entitlements and Military Compensation Law (Federation Press, 2016) at 219, as follows:
Whether the person can meet the “alone” test in s 24(1)(c) is frequently the sole issue in an application or appeal under s 24. The person must be able to establish that:
•it is “by reason of incapacity from that war-caused injury or war-caused disease, or both, alone” that the veteran is “prevented from continuing to undertake remunerative work that the veteran was undertaking”; and
•this has led to a “loss of salary or wages, or of earnings on his or her own account”: s 24(l)(c).
Section 24(1)(b) and (c) are linked and are cumulative. The tests require that the person’s loss of employment flows from the effects of the person’s accepted disabilities as found under s 24(1)(b), and that the inability to work is not due to other matters: Re Easton and Repatriation Commission (1987). See also Smith v Repatriation Commission (2014) per Rares J at [8].
In Flentjar v Repatriation Commission (1997), Branson J, for the Full Federal Court, said that a proper consideration of s 24(l)(c) required responses to four questions:
1.What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(l)(c) of the Act?
2.Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3.If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4.If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity? (at 4).
The question this Tribunal needs to address then is whether, during the relevant assessment period, Mr Richwood was prevented from continuing in his role as a bus driver by reason of his accepted disabilities alone or whether some other factor or factors prevented him from continuing to work in that capacity.
The Tribunal notes that in Repatriation Commission v Hendy [2002] FCAFC 424, the court stressed that any factor that contributes to the preventative effect is to be taken into account and weighs against the “alone test”. Further, in Repatriation Commission v Richmond [2014] FCAFC 124, the Full Court endorsed authorities to the effect that the “alone test” will not be satisfied:
… if there is a non war-caused factor which prevents, or contributes to preventing, the veteran from continuing to undertake the relevant remunerative work, even if it is only of secondary weight and insufficient in itself to prevent the veteran from continuing: Richmond citing Forbes v Repatriation Commission [2000] FCA 328; (2000) 101 FCR 50; Repatriation Commission v Alexander [2003] FCA 399; (2003) 75 ALD 329 and Repatriation Commission v Hendy [2002] FCAFC 424.
As explained by Senior Member Toohey in Dodd and Repatriation Commission [2015] AATA 1004, in considering the “alone” element, the Full Court in Richmond made it clear that a decision maker is required to determine whether there is more than one cause of the preventative effect the veteran claims has resulted from his war-caused incapacity. If any non-war-caused factors contribute to the preventative effect, their presence will weigh in favour of denying the veteran eligibility for the special rate. The words “prevented from” are to be given their ordinary meaning in that context.
In relation to Mr Richwood, the Tribunal does not doubt his testimony that he suffers from considerable pain from his service related/accepted injuries. Unfortunately for Mr Richwood, the clear evidence shows that he also suffers from a range of other quite serious non accepted disabilities and physical ailments that cause him considerable pain. The Commission submits that Mr Richwood does not satisfy the “alone” test because factors other than his accepted conditions play a part in him not undertaking his last paid work as a bus driver.
This is not an infrequent argument before this Tribunal. The Tribunal notes, for example, that in Re Hanrahan and Repatriation Commission (1992) 26 ALD 766, the applicant was prevented from working as a bricklayer because of, amongst other things, his non-accepted disability of bilateral Dupuytren’s contractures and other factors, rather than his war-caused disabilities. In Re Polich and Repatriation Commission (1992) 26 ALD 770, Polich was crippled from osteoarthritis, a non-accepted disability. That was one of the several other causes, rather than his service-related disabilities, which was the reason that he was not able to work. Further, in Berry v Repatriation Commission (1992) 26 ALD 798, the veteran’s inability to work was due also to his cyclothymic personality disorder which was not a war-caused disease. Hence, he was denied eligibility for pension at the intermediate rate (Creyke and Sutherland, above, at page 227).
The question here is whether the Tribunal is reasonably satisfied that Mr Richwood’s inability to work more than 8 hours per week is due to his accepted injuries alone and this alone has led to a loss of salary or wages or of earnings.
The Tribunal feels a great deal of sympathy for Mr Richwood. He is clearly in a great deal of pain and that makes it near impossible for him to work in any capacity and earn an income. Unfortunately, on the extensive evidence before it, the Tribunal cannot be reasonably satisfied that this inability is due to his accepted conditions alone.
The Tribunal notes in particular the following evidence.
Dr Megan Gilbert examined Mr Richwood on 9, 16 and 23 May 2011. Dr Gilbert has more than 27 years of experience as a practicing psychiatrist.
Dr Gilbert diagnosed Mr Richwood as suffering from a major depressive illness of severe intensity. Dr Gilbert concluded that Mr Richwood suffered from numerous physical and emotional problems, including lack of motivation. As accurately summarised by counsel for the Commission in Written Submissions:
52.Dr Gilbert concluded that the Applicant suffered from a “Major Depressive Illness” with mild levels of anxiety. Subjectively, she notes that the Applicant had persistent symptoms causing considerable distress from which the Applicant is often unable to distract himself. There was a moderate interference with function in everyday situations and within his occupation and he could not work as a direct consequence of his physical or emotional disabilities. Importantly she noted: “prior to leaving work he was absenting himself on a fairly regular basis because he was not sleeping and could not function driving buses and because the pain was increasing in his legs. Furthermore, he had no motivational energy to get up and go to work.”
53.Dr Gilbert, on assessing the Applicant for the purposes of determining an impairment rating found that he had an impairment of 45 points. She considered that his condition of major depressive illness was of a severe intensity and that this has occurred as a direct consequence of the problems that have originated from the amputation of his left leg. She considered that because he had lost all of the things in life which went to his self-esteem and this, together with constant unremitting pain, have resulted in the emergence of a major depressive illness. This was of such a severity, she thought that he was going to require regular psychotherapy and medication.
Under cross examination, Dr Gilbert struck the Tribunal as highly credible, entirely objective and eminently qualified in her practice area. She did not detract from her written conclusions when cross examined and the Tribunal attaches considerable weight to the evidence she provided.
Dr Gilbert’s conclusions are also supported by other evidence before the Tribunal. As accurately summarised by counsel for the Commission (para 54 of the Commission’s Closing Submissions), Mr Richwood himself accepted in cross examination that he had suffered from depression in 2004 and that this led to him having to take time off work. Whilst he could not recall whether or not he was prescribed Zoloft he thought that he probably did take it.
Dr L.E Fethers, Mr Richwood’s general practitioner also provided a report dated 11 September 2013 in which he described Mr Richwood as suffering anxiety and depression (T6). Dr Meyerkort further concludes in 2014 (T13) that Mr Richwood was depressed, as does Dr Suthers, who writes that Mr Richwood was suffering from depression with poor recall when he saw him in 2015 (R4).
On the evidence, the Tribunal finds that Mr Richwood’s depression, which is not an accepted condition for the purposes of the Act, is severe and has a significant impact on his day to day activities and his ability to work.
The Tribunal also notes the significant impact Mr Richwood’s leg amputation and phantom leg pain have had on his day to day activities. In that regard, the Tribunal notes Dr Gilbert’s summary as follows:
Mr Richwood said he continued in this work despite constant pain in his legs because he was trying to put his daughter through medicine in Germany. In December of last year he reached a point where he had no energy or motivation to get out of bed to go to work, and said that sitting in buses driving was causing him increasing pain in both his legs such that he couldn’t continue with the job any longer. …
Mr Richwood’s current symptoms in addition to the above include poor sleep with initial, middle and terminal insomnia. In addition, he suffers constant pain in both legs. In his left leg this is phantom pain from the amputation and in his right leg it is in his knees and ankles as a consequence of him putting increased stress on them due to the prosthesis….
The Tribunal also notes comments made by Dr Meyerkort in his report of 15 May 2014 (T13) wherein he writes that people with limb amputation are at increased risk of developing accelerated degenerative changes in the contralateral limb. Dr Meyerkort considered that this was the situation in relation to Mr Richwood. Having then outlined and commented on Mr Richwood’s extensive list of medical conditions (both accepted and not accepted for the purposes of the Act), Dr Meyerkort describes Mr Richwood’s difficulties with movement generally. He then explains as follows in relation to the effects of Mr Richwood’s leg amputation:
Mr Richwood stated that he does have difficulty with phantom limb pain. He stated that he has previously been prescribed Lyrica for this condition. Mr Richwood stated that due to side effects, he has ceased taking this medication regularly and will currently only take Lyrica as needed. Mr Richwood stated that he is provided with a new lower limb prosthesis every four years. He stated that his prosthesis can cause skin irritation.
Mr Richwood stated that over the past four months he has had increasing difficulty with mobility. He stated that as a result he has recommenced using crutches to assist with mobilising. Mr Richwood has also been provided with a new lower limb prosthesis during this time and awaits further adjustment of this.
…
Current Status:
Mr Richwood stated that his main concern is in regard to his back, hip, knee and ankle. As such it is likely that his current concern relates to osteoarthritis affecting these areas. He reports that he has a constant ache in all of these areas. Mr Richwood stated that he can have difficulty with walking as a result, in particular getting up from sitting causes pain. Mr Richwood stated that he is limited in his ability to sit and stand as a result of his condition.
Present Activities:
Mr Richwood is independent of [sic] his activities of daily living. Mr Richwood stated that he is able to drive his private automatic vehicle. Mr Richwood stated that over the past four weeks he has developed difficulty performing duties around the home including cooking, cleaning, washing and hanging out of clothes. He stated that he currently awaits external assistance with these activities. Mr Richwood stated that he is able to perform shopping duties, however can have difficulty carrying items. Mr Richwood stated that he does not typically perform home maintenance tasks. Mr Richwood stated that he has been able to continue with his hobbies including regular swimming.
PHYSICAL EXAMINATION:
Mr Richwood was pleasant and interactive for the duration of the review. His height was 177cm and weight 100kg. Mr Richwood had a left above-knee prosthesis. Mr Richwood mobilised with crutches and had an antalgic gait. He had flattening of his normal spinal curvatures. Mr Richwood was able to undress and redress with ease. He had difficulty climbing up on to and down from the examination couch.
The following areas were examined as they relate to my field of expertise:
Back/Spine:
Mr Richwood had multiple areas of muscle tightness in his back. He had a decreased range of movement in all directions in his back to above half normal range.
…
Diagnosis:
Mr Richwood has osteoarthritis affecting his neck, back, both hips, right knee and right ankle. He has bilateral hearing loss with tinnitus. He has had prior above-knee amputation of the left leg and placement of a prosthesis. He reported having treatment for sleep apnoea. He has reported recent depressive symptoms. Mr Richwood has undergone surgery for left shoulder and rotator cuff tear. Mr Richwood has undergone placement of a cardiac stent for ischaemic heart disease and continues on appropriate treatment (including treatment for cholesterol and high blood pressure).
Assessment:
Mr Richwood has reported multiple conditions that he attributes to his time in the Army. Mr Richwood reported that he was part of the SAS in a period from 1979 to 1984 (five years).
…
Mr Richwood stated that prior to this time he was involved in athletics and playing Rugby, representing his country at international sporting events from 1968 to 1977 (nine years). Mr Richwood stated that he sustained significant injury and subsequent above-knee amputation of his left leg in 1984 and has had placement of a prosthesis since. This has resulted in abnormality of his normal gait pattern. In considering the relatively short time in which Mr Richwood was part of the SAS (five years) compared to the time that he has had left above knee amputation (since 1984) and participation in international sporting events (nine years), I am not of the opinion that his time with the role with the Service has played a significant role in the development of his osteoarthritis affecting his multiple joints.
The most recent significant factor causing deterioration in Mr Richwood’s back, hips, right knee and right ankle relates to his left above-knee amputation and the derangement of gait this has caused. It is known that individuals with limb amputation are at increased risk of developing accelerated degenerative changes in the contralateral limb. This is the case for Mr Richwood.
…
I am not of the opinion that it is [Mr Richwood’s] these accepted conditions that are causing the main limitation … I am of the opinion that his left leg amputation is having a significant impact on his ability to maintain employment, as this is having a profound effect on other aspects of his physical wellbeing. …

The Tribunal also notes the conclusions drawn by Dr Suthers (R4), who writes:
... I would expect that the current problems that he is having with the arthritis in the right lower limb and the spine are due to the secondary impact of the amputation causing an abnormal gait and variable load on his right lower limb and spine.
...
Secondary effects therefore of the left knee amputation on the right lower limb and spine would appear to be having an adverse affect on his current status.
The Tribunal also notes that Dr Fethers (T6), Mr Richwood’s general practitioner, states that Mr Richwood’s inability to work is due, in part, to phantom limb pain. Further, Dr Lim in his report of 1 September 2016 (A5) writes that Mr Richwood:
… is also an above-knee amputee on the left, and suffers from phantom limb pain. He is on multiple pain and other medications, and is under the care of a Pain Specialist.
In relation to this issue, the Tribunal notes Written Submissions from counsel for the Commission as follows:
35.The Applicant was cross-examined on a range of non-service related conditions concerning: coronary problems, respiratory and sleep difficulties, Phantom left leg pain, cervical spinal degeneration, and I left shoulder injury.
37.The Applicant accepted that he suffered from “phantom” leg pain in respect of the loss of his left leg in a running down accident that was not in the course of his military service. However, he stated that such pain did not affect his ability to sleep because: “I know how to deal with it now.”
38.Paradoxically, the Applicant further indicated that when the phantom pain comes on in the night he stated: “I rubbed my stump to ease the pain and when it eases off I doze off to sleep” [emphasis added]. Moreover, he accepted that he had benefit in relation to the alleviation of phantom leg pain from taking “Lyrica”.
39.The Applicant did not accept one of the consequences of him suffering phantom leg pain, was his sleep was disturbed and that was affecting his ability to drive a bus, because of lack of concentration and that he was feeling as if he needed to take a nap in the middle of the day. However, references are regularly made in the clinical records of the Applicant’s then general practitioner, Dr Fethers, of the Applicant suffering from phantom leg pain and that he continues to suffer from severe problems with such pain.
47.Further, in cross examination the proposition was put to the Applicant that it was a culmination of a range of nonservice related events and medical conditions, leading up to him leaving his employment in July 2013, that were greater than the effects of his service related injuries and medical conditions alone that stop him from working. It was a proposition that he readily agreed with (transcript: P-19; 16-240).
This is an accurate summary of the evidence before the Tribunal.
In contrast, the Tribunal notes the written report of Dr Lidell (T11), who responds as follows to the following questions:
2.What is the impact, if any, of the amputation of his left leg had on his ability to perform his duties up until the present?
Given that Mr Richwood was able to perform those duties for approximately 30 years following his left above knee amputation, I am unclear as to what impact, if any, the amputation of his left leg has had on his ability to perform his duties up until the present.
3.Paul is claiming that it is his accepted disabilities, mainly his lumbar spondylosis, is [sic] the reason for his inability to work. Would you agree with his claim?
On the basis of the available information, I believe that it would not be unreasonable to attribute Mr Richwood’s inability to work to his ‘lumbar spondylosis’ - a situation that is unlikely to change significantly in the near to intermediate future, without further treatment.
Unfortunately, Dr Lidell was not called as a witness. This is unfortunate. Without more, it is unclear from the contents of his report why, precisely, he draws the conclusions he draws. It appears that his report (which is quite brief) is based to a large degree on the historical information provided by Mr Richwood himself and not after a thorough review of all of the other considerable medical evidence in relation to Mr Richwood’s leg amputation. On the evidence, Mr Richwood has issues with memory and recall (which he himself recognises as problematic). Further, there is considerable other evidence before the Tribunal that rejects the conclusions drawn by Dr Lidell and some of this evidence was the subject of extensive cross examination. In the circumstances, the Tribunal attaches less weight to Dr Lidell’s evidence.
Further, in relation to the written report from Occupational Therapist Kate Coghlan dated 24 January 2014 (T12 at 96), it is noted that Ms Coghlan has no medical qualifications. While Ms Coghlan is certainly qualified as a therapist to determine whether her clients are able to move without pain and ultimately function at work, she does not have the required medical training to conclude, as she does, that Mr Richwood “is incapacitated by reason of his accepted disabilities alone ...” In relation to this issue, the Tribunal is unable to attach much weight to Ms Coghlan’s evidence.
In the circumstances and on all of the evidence before it, the Tribunal cannot be reasonably satisfied that Mr Richwood’s accepted disabilities alone render him incapable of working the required 8 hours per week as per section 24(1)(b) of the Act or undertaking remunerative work to the extent necessary required by section 24(1)(c) of the Act. Mr Richwood does not therefore qualify for the Special Rate of Pension.
Nor, on the evidence, does Mr Richwood qualify for the Intermediate Rate of Pension pursuant to section 23 of the Act. Section 23 applies to a person who is incapable, due to war-caused injuries or diseases, of working more than part-time or intermittently. As with section 24, the incapacity must be due to the war-caused injuries or diseases alone and not as a result of other causes. Hence, as with section 24, where incapacity “is brought about by several causally relevant factors, some war-related, others not, without any need to attribute dominance to one or the other” the claim may fail (Creyke and Sutherland, above, at page 204, citing Re Morgan and Repatriation Commission [1987] AATA 60; Re Tudor and Repatriation Commission (1988) 14 ALD 29).
Regrettably, for the same reasons outlined in relation to section 24 of the Act, particularly as the evidence relates to his clinical depression and the effects of his leg amputation, the Tribunal is unable to find that Mr Richwood’s inability to work part time arises from his accepted disabilities alone.
CONCLUSION
For the reasons provided above, the Tribunal is not satisfied that Mr Richwood’s accepted conditions alone render him incapable of undertaking remunerative work to the extent necessary to qualify for either the Special or Intermediate Rate of Pension.
The decision under review is affirmed. Further, the Tribunal finds that Mr Richwood is not entitled to the Intermediate rate of Pension.

I certify that the preceding 104 (one hundred and four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr C Kendall.

................[sgd].....................................
Administrative Assistant
Dated 14 November 2016

Dates of hearing 21 and 22 September 2016

Date final submissions received 14 October 2016

Counsel for the Applicant Mr R Graydon

Solicitors for the Applicant Hammond Legal

Counsel for the Respondent Mr J R Wallace

Representative of the Respondent: Ms N Nicolaou

[2016] AATA 900

14 November 2016

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Standing

Division	GENERAL DIVISION
File Number	2014/4445
Re	Paul Richwood
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Deputy President Dr Christopher Kendall
Date	14 November 2016
Place	Perth

*Table 4.1*	*Subjective Distress*	15	Persistent symptoms causing considerable distress from which the veteran is often unable to distract himself.
*Table 4.2*	*Manifest Distress*	6	The distress is apparent to those familiar with the veteran.
*Table 4.3*	*Functional Effects*	2	Moderate interference with function in some everyday situations.
*Table 4.4*	*Occupation*	8	The veteran cannot work as a direct consequence of his physical and emotional disabilities. Prior to leaving work he was absenting himself on a fairly regular basis because he was not sleeping and could not function driving buses and because the pain was increasing in his legs. Furthermore he had no motivational energy to get up and go to work.
*Table 4.5*	*Domestic Situation*	5	Continual conflict with family members. Currently he lives alone and has a relationship with his daughter who is in Germany and is probably only able to maintain this because of the distance.
*Table 4.6*	*Social Interaction*	8	Negligible social contact.
*Table 4.7*	*Leisure Activities*	8	Virtually all recreational activities are banned.
*Table 4.8*	*Current Therapy*	5	Need for intensive specialist treatment on an outpatient basis including medication.
Impairment Rating = 45 points 15+6+8+8+8

Dates of hearing	21 and 22 September 2016
Date final submissions received	14 October 2016
Counsel for the Applicant	Mr R Graydon
Solicitors for the Applicant	Hammond Legal
Counsel for the Respondent	Mr J R Wallace
Representative of the Respondent:	Ms N Nicolaou