Shane Loughrey and Repatriation Commission

[2014] AATA 88

[2014] AATA 88 

Division	VETERANS' APPEALS DIVISION
File Number	2013/0796
Re	Shane Loughrey
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Mr R G Kenny, Senior Member
Date	24 February 2014
Place	Brisbane

The Tribunal affirms the decision under review.

........................Sgd.............................................

Mr R G Kenny, Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Benefits and entitlements – Disability pension payable at 100% of the general rate – Eligibility for special rate of pension – Incapacity from war-caused conditions sufficient to prevent the applicant from undertaking remunerative work for more than 8 hours per week – Accepted disabilities alone not responsible for inability to undertake remunerative work - Decision under review affirmed

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) ss 5Q, 19, 22, 24, 120

CASES

Banovich r Repatriation Commission (1986) 69 ALR 395

Flentjar v Repatriation Commission (1997) 26 AAR 93; (1997) 48 ALD 1
Repatriation Commission v Alexander (2003) 75 ALD 329
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Smith (1987) 15 FCR 327

Willis v Repatriation Commission [2012] FCA 399

REASONS FOR DECISION

Mr R G Kenny, Senior Member

24 February 2014

BACKGROUND

1. On 19 February 2010, Shane Loughrey (“the applicant”) applied, under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), to the Repatriation Commission (“the respondent”) for acceptance of certain conditions as being related to his service with the Royal Australian Navy (“the RAN”). On 13 August 2010, the respondent accepted liability under the Act in relation to conditions diagnosed as: depressive disorder, internal derangement of the right knee, alcohol dependence, lumbar spondylosis, telangiectasia and osteoarthritis of the right knee. The applicant’s claim in respect of rotator cuff syndrome of the right shoulder was rejected by the respondent.

   
   

   His left acromio‑clavicular osteoarthritis was previously accepted under the Act.

   
   

   The assessment of the applicant’s rate of pension was deferred until 11 March 2011 at which time this was assessed at 100% of the general rate with effect from 19 November 2009. The respondent’s assessment decision was reviewed and affirmed by the Veterans’ Review Board on 27 November 2012.

   ISSUES AND LEGISLATION

2. The standard of proof applicable to the assessment of pension is set out in s 120(4) of the Act, which requires that matters be determined to the decision-maker’s reasonable satisfaction.

   This imports the civil standard of proof so that matters must be determined on the balance of probabilities.[1] The procedure to be followed is set out in s 19 of the Act. It requires the rate of pension to be determined during the “assessment period” which is defined as meaning the period starting on the application day, in this case

   
   

   19 February 2010, and ending when the claim or application is determined.[2]

   [1] Repatriation Commission v Smith (1987) 15 FCR 327, 335.

   [2] Veterans’ Entitlements Act 1986 (Cth) ss 19(5C)(a), 19(9).

3. It is not disputed that the general rate of pension payable to the veteran was correctly assessed at 100% of the general rate. The issue raised for the applicant is whether he meets the criteria for payment of an earnings-related rate of pension under s 24 of the Act (the special rate) and, if so, the date from which that higher rate of pension is payable.

4. For the special rate of pension, the matters that need to be determined are whether or not the veteran meets the requirements of ss 24(1)(a)(i), (b) and (c) of the Act. These read:

   (1) This section applies to a veteran if:

   …

   (a) …

   (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

   …

   (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

   …

5. For the applicant, Mr Matt Black of counsel and, for the respondent, Mr Gerald Purcell of counsel agreed that the earliest date from which the special rate of pension was payable was 23 September 2010. This was the day following the applicant’s discharge from RAN service. Mr Purcell also conceded that the veteran met the requirements of s 24(1)(a)(i) and s 24(1)(b) of the Act. Accordingly, the issue for determination is whether the terms of s 24(1)(c) of the Act are met in the applicant’s case

6. Mr Black advised that the applicant, who was aged under 65 years at the application date, had not sought remunerative work after his RAN discharge and that, accordingly, no reliance was placed by him on s 24(2)(b) of the Act. Mr Black contended that all aspects of s 24(1)(c) of the Act were met by the applicant on the basis that it was the applicant’s accepted disabilities alone which had prevented him from continuing in his RAN service and from being able to undertake any further remunerative work after his RAN discharge. Mr Purcell submitted that the applicant was discharged from the RAN and has remained out of remunerative work since that time because of the effects of a range of disabilities, not all of which were accepted as service-related under the Act.

   THE APPLICANT’S EVIDENCE

7. The applicant served full-time in the RAN from 1975 until 1995 and, after a period in the RAN Reserve, served full-time again from 2001 until 22 September 2010 when he was medically discharged. While he was remunerated until his discharge date, he had not actually undertaken work after February 2010. In his first period of service, he was trained for and became a paramedic. In that capacity, he was responsible for both administrative and clinical functions and, at the time of his first discharge, he was the RAN’s senior paramedic.

8. From 1995 until 2001, the applicant was in civilian employment at a senior management level with successive organisations. These were National Foods, where he was involved with occupational health and safety matters, and Integrated Work Force, a labour hire company, where he administered rehabilitation and return-to-work programs. While in the RAN, he had completed an occupation, health and safety diploma course, of
   six weeks duration, and also an accident investigation course. These provided the basis for his civilian work in which he was employed by the companies to complete tasks such as the preparation of safety audits in various factories and introducing programs to reduce time lost through workplace injuries. The applicant left National Foods because the work there was no longer a challenge to him. He left Integrated Work Force because he was offered a return to RAN employment.

9. During the period of civilian work, the applicant was not interested in returning to full-time RAN service. However, in 2001, he was persuaded to accept a short term position. This suited him greatly and he extended his full-time RAN service, having achieved the rank of Warrant Officer, until 2010. His RAN work was medical in nature, both in an administrative sense and clinically. He oversaw treatment of military patients in civilian hospitals in Sydney, where he was based for most of the time, and eventually this extended to all RAN members in any hospital in Australia. He was required to visit hospitals and liaise with medical professionals, work with rehabilitation consultants and arrange medical evacuations. He also served in the Gulf War and assisted in arranging psychological assessments of RAN personnel returning to Australia. The applicant would have been able to remain in this second period of RAN service until he reached age
   

   [3] This was accepted by the respondent.

   65 years[3] and his intention was to serve until then. The applicant has not sought to be employed since his RAN discharge.

10. From 2004 until he left the RAN, the applicant underwent a series of surgical procedures. In 2004, he injured his right shoulder with a tear in the rotator cuff for which, after surgery, he was incapacitated for some months but returned to full duties after about
    6 months. In 2007, he experienced numbness and tingling sensations in his neck. He underwent cervical spine surgery which was followed by a lengthy period of recuperation but he was back to full-time duty after about 5 months. In February 2009, sciatic pains in his legs resulted in a spinal laminectomy. This surgical procedure was not successful in that it left him with a legacy of severe cramping in the calf muscles which, despite various medical regimens, he continues to experience. For this problem, he underwent a second procedure in June 2010 but this was also unsuccessful. He has been unable to return to full-time work with the RAN and was discharged from the RAN as medically unfit in September 2010.

11. The applicant described the limitations imposed upon him by his lumbar spine condition. He is unable to drive a car and cannot sit for longer than 10 minutes without having to change position. He gets muscle cramps in the calves in almost any activity, even when he is lying down. He said that, apart from his depression and his right knee condition, his lower back condition is the only factor that prevents him from being able to work. He denied that he had any continuing difficulties with his neck or with his right shoulder. He also described other conditions from which he had previously been troubled including his left knee, plantar fasciitis and epycondylitis in each elbow and said that these were no longer limiting his activities. He agreed that he had claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRA Act”) for his elbows and rotator cuff syndrome in the right shoulder.

12. In his claim on 10 February 2010, the applicant was asked the reason for his application for an increase in his pension and he identified the following conditions as having worsened since a previous assessment: lower back - increased pain and reduction in movement; right shoulder - reduced range of movement; and left knee – pain reduced movement. In the claim form, dated 21 June 2010, concerning his muscle cramps in his calves and which also led to acceptance of his right knee condition, the applicant referred to his left knee in the following terms: left knee increased pain, loss of mobility, loss of flexibility. He also agreed that he has a current claim under the Act with the respondent in relation to his cervical spine.

    MEDICAL EVIDENCE

    Dr Noel Dan 

13. Dr Dan, neurosurgeon, gave evidence. He carried out the surgery on the applicant’s cervical spine in 2007 and the L4/5 laminectomy on the applicant’s spine in 2009. He saw him on several occasions thereafter and completed a series of reports from 2008 to 2010 in which his concern was with the applicant’s lumbar spine and associated leg muscle cramping. On 18 December 2008, he described the applicant’s epycondylitis as not improving and as requiring the use of splints. On 27 April 2010, Dr Dan noted a focal spot of intensity in the spinal cord at C3/4 which he suspected would continue permanently. MRIs on the applicant’s lumbar and cervical spine, requested by Dr Dan, were completed and reported on by Dr Michael Houang on 30 June 2009. In relation to the cervical spine, Dr Houang noted spondylitic changes throughout from C3 to C7 with prominent osteophytes; focal cystic change on the right side of the cord at the C3/4 level; a moderate broad based protrusion narrowing the foramen mainly on the left side compressing the C4 nerve root; and a narrowing of the C5/6 and C6/7 foramina on the left side.

14. In his final report, dated 23 March 2012, Dr Dan wrote that the applicant’s lumbar spine condition renders him completely unfit for work. He noted the references to his cervical spine and concluded that the level of impairment from the cervical spine was not such that it would interfere with his capacity to work. Dr Dan also noted that the applicant had undergone a right shoulder repair but wrote that, on examination, he displayed a range of movement which was “close to full range”, which was normal for the applicant’s age and which would not significantly interfere with his capacity to work. Dr Dan also wrote that he was not qualified to comment on the applicant’s left knee osteoarthritis but considered that it was trivial in comparison with the lumbar problem.

15. In his evidence, Dr Dan agreed that there were abnormalities in the applicant’s cervical spine. He described this as osteoarthritis which was significant and likely to cause pain. He said that this was irreversible and agreed that the level of discomfort from the condition would fluctuate in its severity and was likely to progress over time. Dr Dan agreed that the reports he relied upon were more than three years old and that a reassessment would be needed in order to measure the current incapacity from the applicant’s spinal conditions.

    Dr William Sears

16. Dr Sears, spinal neurosurgeon, completed further surgery on the applicant’s lumbar spine in June 2010. He completed reports on 13 May 2010 and 21 July 2010. He described the procedure as “decompression and fusion of his L4-S1 segments”. Dr Sears noted that the applicant continued to be troubled by various pains in his back and legs but his opinion was that these would settle down.

    Dr Nicholas Burke

17. Dr Burke, occupational physician, gave evidence. He saw the applicant on one occasion and provided a report on 14 June 2013. He provided a history of procedures and treatment which the applicant has undergone in relation to his spine, left AC joint, right rotator cuff, knees, elbows and depression. He conducted a physical examination on his cervical and lumbar spine, his upper limbs and his legs. It was unclear what material

    
    

    Dr Burke had before him in preparing his report though he stated that he had some reports from Dr Dan. However, he did not have recent scans or imaging available to him. He agreed that these would have assisted him in his examination of the applicant. Indeed, he also agreed with a proposition put to him by Mr Purcell that he “would not have a clue about the level of impairment without them”.

18. Dr Burke concluded that “the principal impact” on the applicant’s ability to work related to his lower back and depressive disorder. He referred to the applicant telling him that he had no significant difficulty or pain with non-accepted conditions and excellent results from injections for his epicondylitis as well as good results from a repair to his right rotator cuff. Dr Burke’s examination of the applicant revealed a reduction of range of motion in the right shoulder. He said that he had noted some restrictions in the range of movement in the cervical spine but that the applicant had described no associated pain. No reference was made by Dr Burke to a left knee problem. He reported that the applicant had advised that he had “no major disability” with respect to impairments other than for the conditions accepted under the Act as being related to his RAN service, in particular, his lower back problem and depression. In his summary, Dr Burke conceded that there are other significant conditions including bilateral shoulder problems, a right knee problem and a cervical spine problem. He referred to these as having “impacts” on the applicant but his opinion, based on what he was told by the applicant, was that the level of symptoms and disability associated with these conditions appeared to be relatively minor.

    Dr Lee Hardwick

19. Dr Hardwick, psychiatrist, practised at the medical centre at HMAS Penguin. As part of the applicant’s claim under the Act, he completed an assessment in respect of psychiatric matters on 11 February 2010. He also provided a detailed report on 11 June 2010. He treated the applicant from September 2009. He diagnosed major depression which was secondary to the applicant’s back pain and alcohol dependence which was secondary to his depression. He also completed a report on 21 June 2010 after Dr Sears’ procedure and noted that the “early signs were good”.

    Dr Paul Davison

20. Dr Davison, who also practised at the HMAS Penguin medical centre, completed, on

    
    

    12 February 2010, parts of the applicant’s claim form under the Act in relation to telangiectasia, osteoarthritis of the right knee and a rotator cuff tear in the right shoulder. He described telangiectasia as a reddening of facial skin and noted pain and swelling with associated difficulties in walking and sitting in respect of the right knee condition. He identified a lack of range of movement in the right shoulder.

    Dr Graham Marshall

21. The applicant’s treating medical practitioner, Dr Marshall, completed a Medical Impairment Assessment Form (“the Form”) on 8 February 2011. He described continuing difficulties with the applicant’s lumbar spine. He noted restrictions in sitting, standing and in walking more than 30 meters because of back pain and leg cramping as well as a 50% loss of range of thoracolumbar movement.

22. In Part 2 of the Form, Dr Marshall listed the Incapacity Details for accepted and non-accepted disabilities in the following way:

Conditions known by DVA[4]	Year of onset	Temporary or Permanent	Functional Rating
L5/S1 intervertebral disc prolapse	unknown	Perm	4
Left acromio-clavicular osteoarthritis		Perm	3
Depressive disorder		Perm	4
Internal derangement of right knee		Perm	3
Alcohol dependence		Temp	3
Lumbar spondylosis		Perm	4
Telangiectasia		Perm	2
Osteoarthritis right knee		Perm	3
Plantar fasciitis		Temp	3
Rotator cuff syndrome right shoulder		Perm	4
Osteoarthritis left knee		Perm	3
Cervical spondylosis		Perm	3
Left elbow lateral epicondylitis		Perm	3
Right elbow lateral epicondylitis		Perm	3

[4] Department of Veterans’ Affairs

1. The functional rating scale as used in that Table is set out in the Form as follows:

   0.          no functional effect

   1.          minor effect on certain functions only

   2.          moderate effect on certain functions only

   3.          severe effect on certain functions only

   4.          severe or disabling effect on many functions

   5.          overwhelming effect on all relevant system functions

2. In the Form, Dr Marshall responded to a question concerning the medical conditions which prevent or restrict the applicant’s capacity to work. In addition to low back pain, sciatica and depression, he wrote “chronic neck pain” and “O/A both knees”. For the left knee, he noted that there was a loss of ¼ normal range of movement and described his neck and both knees as “markedly impaired”. He also wrote that those conditions, alone, affected his capacity to work because they caused “markedly restricted movement” and prevented him from staying in one position. He also expressed the opinion that the applicant’s overall condition was unlikely to improve in the future.

3. Subsequently, Dr Marshall completed a report, dated 25 August 2011. Therein, he referred to the applicant’s low back pain, weakness and pain in his legs and recurrent cramps in both legs. He noted that the applicant is restricted to walking 50 to 100 metres without resting or sitting for extended periods without severe discomfort.  He wrote:

   He does have a number of other health issues that have been accepted as service related, but it seems very likely that the sole reason for his inability to work is his constant low back pain and associated leg weakness and cramping.

   Dr Rhys Gray

1. Dr Gray, orthopaedic surgeon, completed a report on 4 May 2010. He noted that the applicant suffered continuing pain after his right shoulder rotator cuff repair in 2006. He also described lower limb symptoms which were mainly related to his lower back but he noted that, while the left knee appeared stable and provided no irritability of movement, the applicant had tenderness over the lateral joint line in the left knee with a slight reduction in range of movement. Dr Gray referred to CT scans which showed mild loss of joint space in the medial compartment of the right knee and moderate such loss in the left knee.

   Dr G Blackwood

2. Dr Blackwood completed a medical assessment on 21 June 2010 for the Department of Veterans’ Affairs. In his report, he commented on the conditions that are accepted under the Act. He also reported on the applicant’s right rotator cuff syndrome[5]. He noted that the condition causes pain which was often present at rest but which improves after several hours’ rest; that the applicant can use the right limb reasonably well in a few circumstances only; that the applicant has not lost digital dexterity in his hands but had reduced grip strength in the right hand causing difficulty in in manipulation of larger objects; that he experiences excessive fatigue in the right upper limb within half an hour; and that he has lost about ¼ normal range of movement in the right shoulder.

   RAN Documents

   [5] The report deals with symptoms in both shoulders but the descriptions given are referable to each shoulder.

3. In evidence was a Separation Medical Statement (“Statement”) completed on

   
   

   23 June 2010. It comprises a series of questions and responses to be completed by a person on leaving the Australian Defence Service. It is in the applicant’s name and has been signed by him. In Part 1, it asked if the applicant had suffered or is suffering from any medical conditions which may have been caused by his defence service. The response is “yes”. In Part 2, it asked if the applicant was having medical treatment at the time of completing the form.  The response is “yes”.

4. Where the response in the Statement is “yes”, the applicant was asked to provide an outline of his current medical status. In addition to the conditions accepted under the Act as being related to the applicant’s service, the Statement included the following:

Illness or injury	Current treatment	Is the illness or injury currently causing you any problems? If so, please describe.
plantar fasciitis	physio/orthotics	yes-pain/discomfort, physio as required and orthotics
left knee injury	analgesia/ physio prn	pain, restricted movement, change in gait
right and left epicondylitis	physio, strapping prn	restricted rom[6], unable to lift heavy weights, pain on movement
right shoulder rotator cuff	surgical repair, physio, analgesia	muscle fatigue, limited rom, limited lifting ability
c spine, thoracic, lumbar injury	surgery	continued back pain, limited rom

[6] Range of movement.

1. In Part 3 of the Statement, the applicant was asked if he had any significant injuries or illnesses during his Australian Defence Service. The response is “yes” and the information provided included, along with information about accepted disabilities, the following:

   
   
   

Date of onset of illness or injury	Illness or injury	Is the illness or injury currently causing you any problems? If so, please describe.
1 October 2002	plantar fasciitis	pain/discomfort
1 August 1990	left knee injury	pain, restricted movement, change in gait
1 August 2007	right and left epicondylitis	restricted rom, unable to lift heavy weights, pain on movement
1 July 2009	right shoulder rotator cuff	muscle fatigue, limited rom, limited lifting ability
1974/2006	c spine, thoracic, lumbar injury	continued back pain, limited rom

1. On 16 September 2009, the Medical Employment Classification Review Board (“MECRB”) completed a report in which it recommended that the applicant’s RAN service should be terminated. That recommendation was based on a record completed on 26 August 2009 in which the following conditions were noted: low back pain, cervical spine pain, right shoulder rotator cuff tear, bilateral knee arthritis, bilateral plantar fasciitis and bilateral lateral epicondylitis. The prognosis in that record was:

   He has a number of conditions but all of them are relatively stable apart from his low back pain. He has been unable to work since February 2009 and is still significantly disabled despite surgery and rehabilitation. His long term prognosis is unknown.

2. In evidence was a Program Case Manager report, dated 26 November 2009, from

   
   

   Vicky Lee, physiotherapist. Therein, reference is made to the applicant’s lower back and leg cramp conditions. In addition the report included the following:

   Cervical spine:

   ·Work-related jarring of spine in 2005/6.

   ·Professor Dan performed a laminectomy and decompression from C3-5 in October 2008.

   ·Range of motion is now limited in all directions.

   ·Neck pain is frequent but intermittent.

   ·Occasional short duration numbness and tingling in the arms and fingers, left side worse than right.

   Knees:

   ·4 year history of work related meniscal knee conditions greater on the right side.

   ·     He has had bilateral menisectomies.

   ·Symptoms worsen with prolonged standing and going up and down stairs.

   Elbows:

   ·Chronic tennis elbow type symptoms which are present in both elbows.

   ·He has not had surgery on these.

   ·He has trialled cortisone injections.

   ·     He has occasional problems with grip.

   Shoulder:

   ·     Right shoulder rotator cuff repair in 2003 after he injured this lifting a bag.

   ·     Range of motion is limited and he has pain if he attempts to push beyond this range.

   ·     He has problems with some carrying activities.

   Feet:

   ·     Bilateral plantar fasciitis.

   ·     He wears orthotics.

   ·     He has not had surgery.

   ·     He can not walk barefoot.

3. Also in evidence were several RAN documents obtained by the applicant’s lawyers under the Freedom of Information Act 1982. They include the following notes:

   Right shoulder condition:

   11 February 2009: a gradual mild worsening of the right shoulder condition; slightly decreased range of motion; fatigues quickly with overhead work.

   Knees:

   24 September 2007: occasional medial joint line pain.
   11 February 2009: stable.

   Bilateral plantar fasciitis:

   2 July 2009: no effect on day-to-day tasks. Stable.

   Cervical stenosis:

   2 July 2009: occasional transient paraesthesia in the scapulae region; decreased range of motion of the cervical spine in all directions (30 degrees); no neck pain or neurological deficit.

   Bilateral epicondylitis:

   2009: periodic mild exacerbations with good result from injections.
   26 March 2009: lateral collateral ligament strain/partial tear.

   Obstructive sleep apnoea:

   17 September 2009: needs referral to sleep physician.

   CONSIDERATION

4. I am reasonably satisfied that the concessions by Mr Purcell in respect of s 24(1)(a)(i) and s 24(1)(b) of the Act have been properly made. I am also reasonably satisfied that such is the case in relation to s 24(2)(b) of the Act as conceded by Mr Black.

   Section 24(1)(c) of the Act

5. This provision involves a consideration of what the applicant would probably have done in the assessment period in the absence of his accepted disabilities.[7] The Federal Court has said that a proper consideration of paragraph 24(1)(c) of the Act requires responses to the following questions:[8]

   1. “What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(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?”

   Question 1:

   [7] See Repatriation Commission v Hendy (2002) 76 ALD 47 at 54.

   [8] See Flentjar v Repatriation Commission (1997) 26 AAR 93; (1997) 48 ALD 1 at 2.

6. Mr Purcell submitted that the relevant work in this matter was in a management role but he considered that this should be limited to the context of the RAN. I do not accept that the reference to remunerative work in s 24(1)(c) of the Act should be so limited. Rather, it is to “the type of work which the member previously undertook and not to any particular job”.[9] I accept Mr Black’s contention that the relevant remunerative work in this matter was that of management in fields associated with medical administration or occupational health and safety.

   Question 2:

   [9] See Banovich r Repatriation Commission (1986) 69 ALR 395 at 402.

7. It is not contested that, by reason of the applicant’s conditions which have been accepted under the Act, he has been prevented from continuing to undertake that work. This was throughout the assessment period. In particular, the conditions which have so prevented him are those relating to his lumbar spine and associated cramping in his legs as well as his depression.

   Question 3:

8. The third of the questions noted above raises in issue the first part of s 24(1)(c) of the Act through what is referred to as the “alone test”. In Willis v Repatriation Commission,[10] Bromberg J said:

   [23]     The question raised by the “alone test” is not whether, on its own, the war-caused incapacity prevents the veteran’s continued employment.  The question is whether apart from the war-caused incapacity, there is another factor or factors which prevent employment.  The existence of other factors which prevent the veteran from working has a disqualifying result for an application for a pension at the special rate.  The war-related incapacity must be the lone factor which prevents continued employment.  That is what is meant by “alone”.

   [24] Another way of re-stating that proposition, which more closely focuses upon the language of s 24(1)(c), is that the alone test requires that the war-caused incapacity is the reason, rather than merely a reason, for the veteran’s inability to engage in the remunerative work which the veteran had previously done.  If there is another reason which, independently of the war-caused reason, is preventing the veteran from working, the inability of the veteran to engage in remunerative work is not “by reason” of the war-caused incapacity “alone”.

   [10] [2012] FCA 399 (emphasis in original).

9. There must be no factor, apart from the conditions accepted under the Act, which would impact upon his capacity to undertake the relevant remunerative work at the start of, or during, the assessment period. Such a factor may be associated with a wide variety of considerations, such as incapacity from a non-service-related medical condition, the effects of age, relocation to a locality distant from work opportunities or the impact of the length of time out of the workforce. Such factors, individually or in combination with each other or with accepted disabilities, may serve to prevent a person from continuing to undertake relevant remunerative work.[11] In the event that they would have contributed to preventing the applicant from doing so in the assessment period, s 24(1)(c) of the Act will not be satisfied.

   [11] See Repatriation Commission v Hendy (2002) 76 ALD 47, 54-55; Repatriation Commission v Alexander (2003) 75 ALD 329, 334.

10. Mr Purcell submitted that other factors were relevant in this matter in the form of various disabilities which have not been accepted under the Act. To that end, he identified the applicant’s cervical spine condition, his left knee condition, his right rotator cuff condition, his plantar fasciitis and bilateral epicondylitis. Mr Black accepted that the applicant has experienced symptoms from those conditions in the past but he submitted that they were not of a severity sufficient to contribute to the prevention of the applicant undertaking remunerative work.

11. There is conflicting evidence concerning the effects of the applicant’s non-accepted disabilities. The most striking inconsistency is in the opinions of Dr Marshall expressed, respectively, in his reports of 8 February 2011 and 25 August 2011. The first of those reports described the applicant’s rotator cuff syndrome in the right shoulder at a functional rating of 4 which equates to “severe or disabling effect on many functions”. This was the same rating he allocated to the applicant’s lower back condition and his depression. A functional rating of 3 was allocated by Dr Marshall to the applicant’s bilateral epicondylitis, to his cervical spondylitis, to his osteoarthritis of the left knee and to his plantar fasciitis. That rating equates with “severe effect on certain functions” and is the same rating he gave for left acromio-clavicular osteoarthritis, for his alcohol dependence and for his osteoarthritis right knee. In that first report, Dr Marshall also declared that “chronic neck pain” and “O/A both knees” impacted on his capacity to work. Further, he described all his non-accepted conditions except plantar fasciitis as “permanent” and he expressed the opinion that the applicant’s overall condition was unlikely to improve in the future.

12. That report was prepared in February 2011, some 12 months after the commencement of the assessment period. Despite his first report Dr Marshall wrote, six months later, that it seemed very likely that the sole reason for the applicant’s inability to work is his constant low back pain and associated leg weakness and cramping. Indeed, his second report does not refer to any of the non-accepted conditions and which, earlier, were assessed by

    
    

    Dr Marshall at functional levels 3 or 4 as described above[12]. It completely contradicts his first report which, on any reading, would point to the applicant’s non-accepted disabilities as having a very significant impact on the applicant’s ability to work. In specific terms, he declared that to be the case with the applicant’s neck and both knees, the left of which is not accepted under the Act. The decision, dated 11 March 2011, of the respondent concerning the assessment of the applicant’s pension under the Act, relied on that report of Dr Marshall.[13] Indeed, Dr Marshall’s notes concerning the applicant’s left knee incapacity was declared by the respondent’s delegate as the reason for reducing by one-third the compensable incapacity associated with the applicant’s lower limbs[14].

    [12] See paragraph 22 (above).

    [13] See page 1 of the decision (T documents p168).

    [14] See page 7 of the Combined Assessment Report (T documents p 178).

13. Dr Marshall’s first report extended over 15 pages. It is very detailed. It includes many questions with responses which, I am reasonably satisfied, could only be completed in conjunction with input from the applicant or through access to Dr Marshall’s treatment history with the applicant. Also, I am reasonably satisfied that the conclusions of the appropriate functional ratings could only be reached after a careful consideration of the various responses included in the report. Dr Marshall’s second report comprises eight lines. His opinion in the second report is not expressed in unequivocal terms. Rather,

    
    

    Dr Marshall merely states that it “seems very likely” that his incapacity for work flows from his back pain and associated leg cramping. As noted above, he makes no reference to the applicant’s non-accepted conditions.

14. The Statement completed on 23 June 2010 is set out above.[15] It lists the problems associated with the applicant’s plantar fasciitis, right and left epicondylitis, left knee injury, right shoulder rotator cuff and spine, including the cervical spine. The descriptions there given are consistent with those given by Dr Marshall in his first report. Mr Black submitted that little regard should be had to the Statement. This was on the basis that the applicant could not recall providing the information set out in the Statement. I do not accept the applicant’s evidence in that regard. The content is in typed form and probably was not entered directly by the applicant. However, the information typed into the form must have been provided by the applicant. In any event, the applicant agreed that he signed the Statement and I am satisfied that he accepted the content of it.

    [15] See paragraphs 28-30 (above).

15. The references by Dr Marshall in his first report to the applicant’s right shoulder are consistent with those of Dr Blackwood in relation to that condition in June 2010.[16] There is also broad consistency between the first report of Dr Marshall and the Statement. It accords with the list of conditions identified by the MECRB when recommending the termination of the applicant’s RAN service on medical grounds. There is also consistency between Dr Marshall’s first report and the Program Case Manager’s report on

    
    

    26 November 2009,[17] the report of Dr Gray on 4 May 2010[18] and the applicant’s own description of his left knee symptoms in his claim documents on 10 February 2010 and 21 June 2010.[19] Those documents date from shortly before or during the assessment period which commenced on 19 February 2010. As noted above, Dr Marshall’s first report was dated 12 months into the assessment period. On the basis of its consistency with other documentation, I am reasonably satisfied that the first report of Dr Marshall accurately reflects the levels of impairment experienced by the applicant from his non-accepted conditions at that time.

    [16] See paragraph 27 (above)

    [17] See paragraph 32 (above).

    [18] See paragraph 26 (above).

    [19] See paragraph 12 (above).

16. Dr Burke concluded that “the principal impact” on the applicant’s ability to work related to his lower back and depressive disorder. He conceded that there are other non-accepted conditions which have “impacts” on the applicant. These included the cervical spine and bilateral shoulder problems. The applicant’s neck condition and right rotator cuff condition have not been accepted under the Act. However, he reported that the level of symptoms and disability associated with these non-accepted conditions appeared to be relatively minor.

17. I have some concerns with Dr Burke’s evidence. One of these was his concession that he had not seen recent imaging reports. In his evidence, he confirmed that such material would have been of assistance to him and agreed that he “would not have a clue” of impairment levels without them. I am also concerned that much of his report was based on what he was told by the applicant whom he saw on only one occasion. He referred to the applicant telling him that he had no significant difficulty or pain with non-accepted conditions and excellent results from injections for his epicondylitis as well as good results from a repair to his right rotator cuff. Dr Burke’s examination of the applicant revealed a reduction of range of motion in the right shoulder. He said that he had noted some restrictions in the range of movement in the cervical spine but that the applicant had described no associated pain. No reference was made by Dr Burke to a left knee problem. As I understand Dr Burke’s evidence, the applicant’s lower back condition and depression have the principal but not the sole impact on his ability to work.

18. Dr Dan confirmed that the applicant continues to experience incapacity from his lumbar spine condition such that he is unable to work. Clearly, the improvement hoped for by Dr Sears after the surgery in June 2010 did not eventuate. In his report, Dr Dan wrote that impairment from the applicant’s cervical spine would not interfere with his capacity to work and that his right shoulder would not do so “significantly”. However, his oral evidence was that significant irreversible osteoarthritis was present in the applicant’s cervical spine, that this was likely to cause pain and that the level of discomfort from the condition would fluctuate in its severity and was likely to progress over time. He stated that he was not qualified to assess the applicant’s left knee condition and he made no reference to the applicant’s plantar fasciitis or bilateral epicondylitis.

1. Given the extent of the impairment described by Dr Marshall in his first report and the other references consistent with it, I am satisfied that the applicant’s non-accepted disabilities contributed to the decision of the RAN to terminate the applicant’s employment and that they would continue to have some impact on his inability to undertake relevant remunerative work in management in fields associated with medical administration or occupational health and safety. In so determining, I accept the evidence of Dr Burke and Dr Dan that the main reason for that inability is the applicant’s lower back and associated muscle cramping. However, while that may have been the main cause, I am satisfied that they do not constitute the only cause.

2. Accordingly, the third of the questions noted above is answered in the negative.

   Question 4

3. As the third question was answered in the negative, it is unnecessary to consider the fourth question.

4. I am satisfied that the applicant does not meet the requirements for the payment of the special rate of pension because he fails to satisfy the terms of s 24(1)(c) of the Act.

   DECISION

5. The Tribunal affirms the decision under review.

I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member

.......................Sgd............................................

Associate

Dated 24 February 2014

Date of hearing	28 January 2014
Counsel for the Applicant	Matt Black
Solicitors for the Applicant	Greg Isolani, KCI Lawyers
Counsel for the Respondent	Gerald Purcell
Solicitors for the Respondent	Department of Veteran Affairs, Melbourne