Roll and Repatriation Commission (Veterans' entitlements)
[2020] AATA 1649
•9 June 2020
Roll and Repatriation Commission (Veterans' entitlements) [2020] AATA 1649 (9 June 2020)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2018/0641
Re:Keith Roll
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Senior Member Katter
Date:9 June 2020
Place:Brisbane
The decision dated 22 January 2018 is varied with the Applicant to additionally receive the special rate pursuant to section 24 of the Veterans' Entitlements Act 1986 (Cth).
..................[SGD]......................
Senior Member Katter
Catchwords
VETERANS’ AFFAIRS – special rate – section 24(1)(c) – decision under review varied
Legislation
Veterans’ Entitlements Act 1986 (Cth)
Cases
Cavell v Repatriation Commission (1988) 9 AAR 534
John Joseph Flentjar v Repatriation Commission [1997] FCA 1200
Re Smith and Repatriation Commission [2004] AATA 1223
Richmond v Repatriation Commission [2014] FCA 272REASONS FOR DECISION
Senior Member Katter
9 June 2020
APPLICATION
The Applicant seeks a review of the decision of the Veteran’s Review Board dated
22 January 2018 as to the refusal of the special rate pursuant to section 24 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”).
BACKGROUND
The Applicant served in the Royal Australian Navy from 6 January 1971 to
5 January 1995.
The Applicant has had the following conditions accepted in accordance with the Act:
07/08/1994 MALARIA
05/05/2003 BILATERAL SENSORINEURAL HEARING LOSS
07/08/1994 MENISCAL LESION OF THE LEFT KNEE
07/08/1994 OTHER DERMATITIS DUE TO SOLAR RADIATION
05/05/2003 BILATERAL TINNITUS
05/05/2003 OSTEOARTHROSIS OF THE RIGHT KNEE
19/11/2015 OSTEOARTHRITIS OF THE LEFT KNEE
01/01/2016 ADJUSTMENT DISORDER WITH DEPRESSED MOOD.
The Applicant has not had the following conditions accepted in accordance with the Act:
21/01/2004 HIATUS HERNIA
25/10/1995 HEADACHES
25/10/1995 FRACTURE OF UNSPECIFIED PART OF THE RIGHT UPPER LEG
21/01/2004 ASTHMA
21/01/2004 MENIERE’S DISEASE
21/01/2004 GASTRO-OESOPHAGEAL REFLUX DISEASE.
Relevantly, on 18 December 2007 the Applicant made a claim for disability pension and/or application for increase in disability pension, stating as to ‘which of the accepted disabilities have become worse since they were last assessed by the Department and in what way’:
I had my left knee operated on when they did an arthroscope they found the inner knee was … [g]one. The joint was not smooth. The surgeon scalloped out sections of the … joint so it is now like a golf ball to try and extend the life of the knee.
Since the operation I have severe pain in the knee even with the slightest of movement my mobility is restricted. I have to take care [and] require two hands for stairs and standing up from a chair.
My right knee has also been causing considerable pain through normal use. The surgeon is keen to do an arthroscope on it in the new year when he sees my left knee has ‘settled down’. I am constantly awakened during the right because of knee pain which is then aggravated when I try to move my legs. Pain is persistent with both knees at the rest as well as increased pain when moving the limb.
On 1 April 2016 the Applicant made a claim for disability pension and/or application for increase in disability pension. At Part E of that claim as to the details of the new disabilities now claimed as war or defence caused, the Applicant stated:
Disability 1 Anxiety Disorder
Signs and symptoms
Poor concentration
Low self esteem
Fatigue
Feeling of hopelessness.
How do you believe your service caused, contributed to, or aggravated this injury?
Due to the constant pain that I experience …
Disability 2 Depressive Disorder
Signs and symptoms
Fatigue
Irritability
Poor sleep.
How do you believe your service caused, contributed to, or aggravated this injury?
Due to the chronic pain that I experience …
Disability 3 Alcohol Use
Signs and symptoms
Constant desire to use alcohol
Use alcohol to recover from its effects.
How do you believe your service caused, contributed to, or aggravated this injury?
I use alcohol to help me over come [sic] the pain and depression that I experience.
On 19 July 2016 the Respondent decided as to the claim lodged on 1 April 2016:
I have accepted your claim for Adjustment Disorder with depressed mood. My decision takes effect from 1 January 2016. I find that no medical condition is present to answer your claim for ‘Anxiety Disorder’, ‘Depressive Disorder’ and ‘Alcohol Use’. This part of your claim is therefore unsuccessful. Disability pension is increased to 100% of the General Rate with effect from 1 January 2016.
On 14 October 2016 the Applicant made an application for review to the Veterans’ Review Board (“VRB”):
I wish to seek a second opinion regarding the conditions “Anxiety Disorder”, “Depressive Disorder” and “Alcohol Use” with regards to the findings that “no medical conditions” were found. Doctor Carter my treating psychiatrist has diagnosed me with the above conditions.
On 22 January 2018 the VRB decided as follows:
Vary the decision under review by finding the conditions present to adjustment disorder with both anxiety and depressed mood and alcohol abuse disorder;
AFFIRM the decision under review as varied in relation to adjustment disorder with both anxiety and depressed mood;
AFFIRM the decision under review as varied in relation to alcohol abuse disorder;
AFFIRM the decision under review in that pension is payable at 100% of the general rate.
EVIDENCE
Keith Roll
The Applicant gave oral evidence at the hearing[1].
[1] Transcript, 19 February 2020, P-11.
The Applicant referred to his role as a marine engineer with the Navy, including particularising the role, as to working with pumps and ballast systems, fuel systems, air-conditioning, refrigeration, engines and generators[2].
[2] Transcript, 19 February 2020, P-12, lines 35-41.
The Applicant referred to the period in 2014, when he was doing his last paid work[3] as a chief engineer[4]. At that time the Applicant went to a medical examination in Townsville, with medicals being required yearly, as the Applicant was over 55 years of age at that time[5]. The Applicant stated that the medical in 2014 declared him to be unfit by reason of his knees[6]. The Applicant stated that his knees had become more of a problem and in the previous year he had ‘scraped through the medical’[7]. The Applicant stated that he was hoping to get through the medical again, but due to the knee pain identified by the practitioner, the Applicant was declared unfit[8]. The Applicant stated that he informed the employer as to his unfitness for work[9], with the employer sending the Applicant for another medical and to see an orthopedic specialist[10], Dr Paul Miniter[11].
[3] Transcript, 19 February 2020, P-12, lines 46 and 47.
[4] Transcript, 19 February 2020, P-14, line 6.
[5] Transcript, 19 February 2020, P-13, lines 1-9.
[6] Transcript, 19 February 2020, P-13, lines 15-16.
[7] Transcript, 19 February 2020, P-13, lines 22-25.
[8] Transcript, 19 February 2020, P-13, lines 25-27.
[9] Transcript, 19 February 2020, P-13, lines 40-42.
[10] Transcript, 19 February 2020, P-13, lines 44-46.
[11] Transcript, 19 February 2020, P-14, line 1.
The Applicant then had a further medical with Dr Edmunds, who placed restrictions on the Applicant[12]. The Applicant stated that Dr Miniter referred to the Applicant’s ‘continual decline’[13]. The Applicant stated that his then company, ‘then said’, that they can’t employ him as ‘going up and down stairs and ladders is an integral part of a ship and therefore material to his role as a marine engineer’[14].
[12] Transcript, 19 February 2020, P-14, lines 15-18.
[13] Transcript, 19 February 2020, P-14, lines 19 and 20.
[14] Transcript, 19 February 2020, P-14, lines 20-24.
The Applicant stated that in 2014 he owned a house which was being ‘paid-off’[15]. The Applicant also had an investment property which was ‘heavily mortgaged’ and a marina-berth investment in Darwin[16]. The Applicant stated that he had some half-a-million dollars of debt and intended to keep working[17]. The Applicant also stated that he had a yacht in Malaysia, which he intended to bring back to Australia, but ‘with his knees getting worse he may have to sell it’[18]. The Applicant stated that the last time he sailed on the yacht was in 2015 and it has been in Malaysia since, having originally been acquired
some 15 years ago[19].[15] Transcript, 19 February 2020, P-13, lines 29-38.
[16] Transcript, 19 February 2020, P-13, lines 29-38.
[17] Transcript, 19 February 2020, P-13, lines 29-38.
[18] Transcript, 19 February 2020, P-18, lines 1-6.
[19] Transcript, 19 February 2020, P-18, lines 8-15.
The Applicant stated that it was in the context, referred to above, of the loss of his employment and his financial commitments that he made application for further pension assessment to the Respondent[20]. The Applicant stated that in the period May to September 2014 he and his wife commenced living on ‘the boat’, as their savings were deteriorating, with no income and continuing mortgage payments[21].
[20] Transcript, 19 February 2020, P-14, lines 25-28.
[21] Transcript, 19 February 2020, P-14, lines 30-34.
The Applicant referred to his engineering certificate being for a five-year period which expired in early 2019[22], having been last renewed in February 2014[23]. The Applicant stated that to obtain this engineering ‘ticket’ that there was a requirement to have been at sea for a period of 12 months in the previous five years[24]. The Applicant stated that he had not been at sea in the five-year period leading into the renewal, therefore requiring attendance, in the alternative, at the Maritime College[25]. The Applicant stated that that attendance at the Maritime College would be a ‘refresher’ process, by reason of his marine engineering experience[26]. The Applicant stated that there were three requirements for the ‘ticket’: the medical, the sea-time or the course at the Maritime College and a first aid certificate, with the Applicant letting his first aid certificate lapse[27].
[22] Transcript, 19 February 2020, P-15, lines 8-10.
[23] Transcript, 19 February 2020, P-17, lines 1-2.
[24] Transcript, 19 February 2020, P-16, lines 42-45.
[25] Transcript, 19 February 2020, P-17, lines 11-17.
[26] Transcript, 19 February 2020, P-17, lines 20-25.
[27] Transcript, 19 February 2020, P-17, lines 30-35.
The Applicant was taken to a document completed by his then general practitioner, Dr Munez on 27 April 2016, which stated that his right and left wrists had lost about three-quarters of the normal range, with the Applicant agreeing with that assessment before the operations on his wrists[28]. The Applicant stated that in the period 2016 to 2019 he was able to undertake remunerative work, but ‘there was pain there’[29]. Through the same period of 2016 to 2019 the Applicant stated that he had severe pain in the joints which was present at rest and which regularly interfered with his sleep, referring to a document prepared by Dr Munez[30]. The Applicant stated that his knees prevented him working, not his wrists, and that the knees were the reason for failing the medical[31]. The Applicant was further taken to a medical articulation as to the Applicant having poor digital co-ordination, problems with dressing, feeding or writing, but the Applicant stated that he didn’t have any ‘tool’ issues as a marine engineer and stated that he wasn’t able to work because of his knees[32].
[28] Transcript, 19 February 2020, P-18, lines 35-39.
[29] Transcript, 19 February 2020, P-19, lines 40-45.
[30] Transcript, 19 February 2020, P-20, lines 1-20.
[31] Transcript, 19 February 2020, P-20, lines 22-28.
[32] Transcript, 19 February 2020, P-20, lines 32-47 and P-21, lines 1-6.
The Applicant stated that he had operations performed by Dr Couzens on his wrists[33], respectively in late 2018 and early 2019[34]. The Applicant stated that a ‘ceramic piece’ was inserted in his wrists and they are now ‘back to normal again’[35]. The Applicant indicated that he was now able to do tasks using his hands, such as overhauling the drive section on a ride-on mower and putting new shock absorbers in a vehicle[36]. The Applicant stated that his hands were normal again, but because of his knees he ‘can’t bend over and squat or anything’[37].
[33] Transcript, 19 February 2020, P-15, lines 20-24.
[34] Transcript, 19 February 2020, P-15, line 36.
[35] Transcript, 19 February 2020, P-15, lines 34-36.
[36] Transcript, 19 February 2020, P-15, lines 44-46 and P-16, lines 1-2.
[37] Transcript, 19 February 2020, P-16, lines 9-11.
The Applicant was also taken to a report of Professor McLeod in 2016, a psychiatrist, who identified that the alcohol consumption of the Applicant had ‘been problematic over the last two or three years’[38]. The Applicant stated that his alcohol consumption was due to his frustration in being out of work and his debt[39]. The Applicant stated that from 1988 onwards he was consuming 70 standard drinks a week until about 1996, but that was only in the periods when he was not on ‘dry’ ships, with that consumption increasing again in 2016 until 2018[40]. The Applicant stated that the report from Dr Carter of 30 August 2017 was correct when it stated that the Applicant was consuming eight units of alcohol a day, seven days a week[41]. The Applicant stated that by 14 March 2019 the alcohol was ‘under control’[42].
[38] Transcript, 19 February 2020, P-21, lines 25-33.
[39] Transcript, 19 February 2020, P-21, lines 43-45.
[40] Transcript, 19 February 2020, P-22, lines 23-30. See also P-24, lines 1-5.
[41] Transcript, 19 February 2020, P-23, lines 42-46.
[42] Transcript, 19 February 2020, P-24, lines 23-25.
The Applicant stated that there is ‘no shortage of available work for him now as a marine engineer, in that there are a limited number of marine engineers and that he has over 40-years experience’[43].
[43] Transcript, 19 February 2020, P-14, lines 39-45 and P-15, lines 1-5.
Mrs Lianne Roll
Mrs Lianne Roll, the wife of the Applicant, gave oral evidence[44].
[44] Transcript, 19 February 2020, P-25.
Mrs Roll stated that the Applicant had considerably reduced his alcohol intake, having at the time of the hearing four alcohol-free days a week[45].
[45] Transcript, 19 February 2020, P-25, lines 40-42.
Mrs Roll stated that they (the Applicant and Mrs Roll) were on the yacht overseas for a few years, because they couldn’t afford to live in a house and it was cheaper to live on the yacht overseas than in Australia[46]. Mrs Roll stated that it had been ‘their intention to go travel over there so they can save up a bit of money and see the countryside’[47]. Mrs Roll stated that the yacht had been in Malaysia since about 2017[48], with the last time they sailed on the yacht being in 2015[49].
[46] Transcript, 19 February 2020, P-26, lines 12-26.
[47] Transcript, 19 February 2020, P-26, lines 30-34.
[48] Transcript, 19 February 2020, P-26, line 40.
[49] Transcript, 19 February 2020, P-27, line 6.
Dr Greg Apel
Dr Greg Apel, psychiatrist, gave oral evidence[50].
[50] Transcript, 19 February 2020, P-28, line 30.
Dr Apel stated that, as to the Applicant in 2016, his drinking would be classified as a ‘significant problem’[51]. As to the ability of the Applicant to undertake work, having regard to that level of alcohol consumption, the Doctor stated that it was something the Applicant ‘built his life around and was not an autonomous phenomenon, therefore being something he could fit into his life without it disrupting too much’[52]. That is, that the Applicant had to perform quite highly in a safety-critical role and when he was a non-working person, the drinking increased[53]. When the Applicant was working, the Doctor stated, that the Applicant didn’t have a drinking problem[54].
[51] Transcript, 19 February 2020, P-29, line 34.
[52] Transcript, 19 February 2020, P-29, lines 42-47 and P-30, line 1.
[53] Transcript, 19 February 2020, P-30, lines 20-22.
[54] Transcript, 19 February 2020, P-31, lines 30-33.
CONSIDERATION
It is not in contention between the parties that the Applicant has eligible defence service for the purposes of the Act[55].
[55] Exhibit 17, Respondent’s post-hearing Outline of Submissions, paragraph 2.1.
At the hearing, the Applicant further particularised the application as being only a claim for assessment above the general rate[56]. As to the special rate, section 24 of the Act relevantly states:
[56] See Transcript, 19 February 2020, P-5, line 40.
Special rate of pension
1This 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.
2For 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.…
The Respondent states that the Applicant satisfies section 24(1)(a) of the Act, in that the degree of incapacity has been determined to be 100%[57].
[57] Exhibit 17, Respondent’s post-hearing Outline of Submissions, paragraph 50. =
The Respondent further states that the Applicant satisfies section 24(1)(b) of the Act[58].
[58] Exhibit 17, Respondent’s post-hearing Outline of Submissions, paragraph 51..
It was not in contention between the parties that the dominant issue was whether or not the Applicant accorded with section 24(1)(c) of the Act[59]. Section 24(1)(c) of the Act has two parts: first, 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 second, by reason thereof, is 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[60]. Both limbs of section 24(1)(c) have to be satisfied[61]. As stated in John Joseph Flentjar v Repatriation Commission [1997] FCA 1200 at per Branson J:
In my view the issues before the AAT in this case were as follows:
1What was the relevant "remunerative work that the veteran was undertaking" within the meaning of s 24(1)(c) of the Act?
2Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3If 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?
4If 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?
[59] Exhibit 17, Respondent’s post-hearing Outline of Submissions, paragraph 52
[60] Exhibit 4, Respondent’s Statement of Facts, Issues and Contentions dated 19 November 2019,
Paragraph 25.
[61] Exhibit 5, Applicant’s Statement of Facts, Issues and Contentions dated 22 October 2019, Paragraph
30.
The relevant remunerative work that the Applicant was undertaking within the meaning of section 24(1)(c) of the Act was as a marine engineer[62], as referred to above.
[62] Transcript, 19 February 2020, P-14, line 6.
The parties submit that the assessment period commenced on 1 April 2016[63]. The Applicant’s entitlement is assessed in respect of any circumstance within the assessment period, which is from the date of application until the decision of the Tribunal[64]. In Smith v Repatriation Commission (2014) 220 FCR 452 at [40] and [70] per Buchanan J, it was stated:
[40] The assessment period commences on the date an application is made and concludes when the decision is made. This means that the entitlement of the veteran is not to be judged only at the time that the application is made. The position is assessed by reference to any relevant circumstance which occurs up to the time of decision. …
[70] … [C]easing to work at a particular time for reasons other than war-caused injury or disease, including for reasons which might be entirely beyond the control of a veteran (such as redundancy for example), is not a permanently disentitling circumstance ….
[63]Transcript, 19 February 2020, P-6, lines 2-3. Exhibit 4, Respondent’s Statement of Facts, Issues and Contentions dated 19 November 2019, Paragraph 5. Section 19(9) and see also Richmond v Repatriation Commission [2014] FCA 272 at [107] per Dodds-Streeton J.
[64] The Act, s 19(9). See also Richmond v Repatriation Commission [2014] FCA 272 at [107] per Dodds-Streeton J.
The Respondent submits that the Applicant’s bilateral wrist osteoarthritis and alcohol use disorder have had ‘a preventative effect on the Applicant’s ability to continue in the remunerative work he was undertaking’; that is that the Applicant’s accepted disabilities alone are not the only factors preventing him from continuing to undertake work from the commencement of the assessment period. Further, the Respondent submits that other factors preclude satisfaction of the alone test requirement, including the Applicant’s age and the length of time out of the workforce.
The Applicant submits that even if there are some non-accepted conditions which have played a part at that time in the assessment period, they no longer play a part and the Applicant is therefore able to satisfy section 24(1)(c) of the Act[65]. The Applicant submits that the bilateral wrist osteoarthritis was operated on and the wrists are no longer ‘operative factors’[66]. The Applicant submits that even if the bilateral wrist osteoarthritis was a disentitling factor, at a particular point in time in the assessment period, the wrists are no longer operative, allowing the Applicant to satisfy section 24(1)(c) of the Act[67].
[65] Transcript, 19 February 2020, P-7, lines 27-34.
[66] Transcript, 19 February 2020, P-7, lines 38-45.
[67] Transcript, 19 February 2020, P-7, lines 38-45.
The test in section 24(1)(c) is not would the conditions alone prevent the Applicant from working but whether the conditions, alone, prevented the Applicant doing so: see Re Smith and Repatriation Commission[68]. As stated in Cavell v Repatriation Commission[69]: ‘anything that plays a part in excluding [the Applicant] from work is sufficient to prevent applicability of s 24(1)(c)’. Length of time out of the workforce has been held to be an incapacitating factor: see Cavell and Repatriation Commission[70].
[68] [2004] AATA 1223.
[69] (1988) 9 AAR 534.
[70] (1988) 9 AAR 534.
Within the assessment period[71] the evidence, as referred to above, is that the Applicant’s bilateral wrist osteoarthritis changed, significantly, further to and by reason of the operations on the wrists[72].
[71] the Act, s19.
[72]Exhibit 9, Dr Couzens report dated 1 March 2019 and Supplementary Statement of the Applicant dated 4 June 2019.
The evidence was also that the alcohol use disorder of the Applicant did not impact upon the Applicant’s capacity to work, in that it was an “autonomous phenomenon”, therefore being something the Applicant could ‘fit into his life without it disrupting too much’[73]. The Applicant states, which was also confirmed by Mrs Roll’s evidence[74], that he has significantly reduced his alcohol consumption and Dr Carter, his treating psychiatrist, classified the Applicant as being in remission in respect of the alcohol use disorder[75]. That evidence as to alcohol was confirmed, as referred to above, by the Applicant’s spouse in oral evidence[76].
[73] Transcript, 19 February 2020, P-29, lines 42-47 and P-30, line 1.
[74] Transcript, 19 February 2020, P-25, lines 40-42.
[75] See paragraph 40 of the Applicant’s statement.
[76] Transcript, 19 February 2020, P-25, lines 40-42.
It is therefore found, having regard to the evidence, that the Applicant during the assessment period was, by reason of incapacity from the war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake the remunerative work that the Applicant was undertaking when he last worked in September 2014[77]. It is found on the evidence that the conditions that the Applicant has had accepted in accordance with the Act, including his knees, alone, prevented the Applicant from continuing to undertake work as a marine engineer during the assessment period.
[77] Transcript, 19 February 2020, P-6, lines 26-27.
As to the second limb of section 24(1)(c), it is to be read with section 24(2)(a) of the Act. The Applicant submitted that if it were not for the issues with his knees, he would have continued in employment as a marine engineer, thereby causing a loss of salary and earnings. The Applicant, as referred to above, was declared to be unfit in the medical in 2014 by reason of his knees[78], with the going up and down of stairs and ladders being an integral part of a ship and therefore of his role as a marine engineer[79]. By reason of the accepted conditions preventing the Applicant from continuing to undertake work as a marine engineer during the assessment period, the Applicant has been suffering a loss of salary or wages or of earnings on his own account, that the Applicant would not be suffering if the Applicant were free of that incapacity. The Applicant did not cease to engage in remunerative work for reasons other than his incapacity relating specifically to his knees[80].
[78] Transcript, 19 February 2020, P-13, lines 15-16.
[79] Transcript, 19 February 2020, P-14, lines 20-24.
[80] the Act, s24(2)(a)(i).
Section 24 of the Act therefore applies, in that the Applicant is, by reason of incapacity from war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the Applicant was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his own account, that the Applicant would not be suffering if the Applicant were free of that incapacity[81].
[81] The Act, s24(1)(c).
DECISION
The decision dated 22 January 2018 is varied with the Applicant to additionally receive the special rate pursuant to section 24 of the Veterans’ Entitlements Act 1986 (Cth).
I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Katter
…..........[SGD].................
Associate
Dated: 9 June 2020
Dates of hearing: 19 February 2020 Date final submissions received: 01 May 2020 Counsel for the Applicant: A. Harding Solicitors for the Applicant: Terrence O'Connor Solicitors Solicitors for the Respondent: Moray and Agnew Lawyers
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