SHAUN MATHESON and REPATRIATION COMMISSION
[2012] AATA 668
•3 October 2012
[2012] AATA 668
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/0976
Re
SHAUN MATHESON
APPLICANT
And
REPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Dr G J Maynard, Brigadier (Rtd), MemberDate 3 October 2012 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 90% of the general rate – Eligibility for special rate of pension – Incapacity from war-caused conditions sufficient to prevent applicant undertaking remunerative work for more than 8 hours per week – Applicant not prevented by reason of incapacity from war-caused conditions, alone or substantially, from continuing to undertake remunerative work – No loss of salary, wages or earnings that would not be suffered if free from incapacity – Decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 5Q, 15, 19, 22, 23, 24, 28
CASES
Flentjar v Repatriation Commission (1997) 26 AAR 93; (1997) 48 ALD 1
Leane v Repatriation Commission (2004) 81 ALD 625; [2004] FCAFC 83
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) 202 FCR 323; [2012] FCA 399
REASONS FOR DECISION
Mr R G Kenny, Senior Member and Dr G Maynard, Member
3 October 2012
BACKGROUND
On 15 October 2009, Shaun Matheson lodged a claim under s 15 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) for an increase in the disability pension paid to him in respect of conditions previously accepted by the Repatriation Commission (“the respondent”) in relation to his service in the Australian Army (“the Army”). Those conditions are acromioclavicular joint injury left shoulder, cervical spondylosis, lumbar spondylosis, chondromalacia patellae both knees, recurrent sprains and instability both ankles, chip fracture right olecranon (excised) and rupture of radial collateral ligament of right thumb. On 10 February 2010, a delegate of the respondent determined that, in accordance with s 22 of the Act, pension should be paid to Mr Matheson at 70% of the general rate and not at an earnings-related rate under ss 23 or 24 of the Act. On 9 December 2011, that decision was set aside by the Veterans’ Review Board (“the Board”) which assessed Mr Matheson at 90% of the general rate with effect from 18 October 2010.
ISSUES AND LEGISLATION
The standard of proof applicable in this matter is set out in s 120(4) of the Act. This requires that issues be determined to the decision-maker’s reasonable satisfaction. The provision 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 15 October 2009, and ending when the claim or application is determined.[2]
[1] Repatriation Commission v Smith (1987) 15 FCR 327 at 335 per Beaumont J.
[2] Veterans’ Entitlements Act 1986 (Cth) ss 19(5C)(a) and 19(9).
It was not disputed by Ms Helena Smith, for Mr Matheson, that the general rate of pension payable to Mr Matheson was correctly assessed at 90%. The issue raised by her was whether Mr Matheson meets the criteria for payment of an earnings-related rate of pension under ss 23 or 24 of the Act. These relate, respectively, to the intermediate rate and special rate of pension. Ms Smith submitted that the special rate of pension was payable to Mr Matheson from the application day. The matter that needs to be determined is whether or not Mr Matheson 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
…
Ms Smith submitted that the only reason for Mr Matheson ceasing remunerative work was the effects upon him of his accepted disabilities and that he met all of the requirements for payment of the special rate of pension.
Mr Jeff Kelly, for the respondent, conceded that Mr Matheson meets the requirements of s 24(1)(a)(i) of the Act. However, he submitted that there was real doubt about whether he satisfied s 24(1)(b) of the Act and that he does not satisfy the terms of s 24(1)(c) thereof. He also submitted that s 24(2)(b) of the Act was not satisfied in this matter. Accordingly, he submitted that a rate under s 24 of the Act was not payable to Mr Matheson.
EVIDENCE
Mr Matheson
Mr Matheson served in the Army from 1977 until 1988 where he was involved in physical fitness training. After leaving the Army, he was a café proprietor in Cairns for a short period but was forced to close the business following a decline in tourism. He moved to Victoria and worked with a TAFE College, setting up and working in a camp for children. He described a psychological downturn in 1992 when his “wheels fell off” and he became associated with drugs and alcohol to an extent that he was asked to leave his camp position. He moved to Charleville where he was in receipt of unemployment benefits and worked with a church group, assuming responsibility for conducting sporting activities for aboriginal children. There, he designed and managed the construction of a gymnasium. In 1993, he travelled to England where he obtained work with a Christian Life Centre and was responsible for designing and managing the construction of gymnasiums for use by children. He operated the gym and retained the profits as his remuneration. He travelled to Bosnia in 1995 where he carried out similar activities before returning to Australia in 1996.
Mr Matheson undertook Bible studies at the Gold Coast and completed a Diploma in Church Management. In 1998, he worked with the Helensvale Baptist Church where, again, he was responsible for the needs of disadvantaged children and the organisation of touch football in community based competitions. He estimated his income at that time at approximately $50,000 per year. Since 1998, Mr Matheson has been involved in a wide range of activities but, mainly, as a pastor in the Integrity Christian Fellowship. He said that this was associated with the Assembly of God Church. He worked with the Baptist Church in Brisbane from 2003, where he designed and supervised the construction of a fitness centre. In 2005, Mr Matheson became the proprietor of Integrity Health and Fitness and worked with the Integrity Community Christian Church (“the Church”) as the senior pastor until he was injured in a motor cycle accident (“the accident”) in 2008.
His duties involved pastoral care for, and oversight of, the Community of Palm Beach and the Church congregation of up to 70 people.
Mr Matheson was involved in the accident on 25 January 2008. He suffered serious injuries including fractures to the skull, right tibia and fibula, left humerus, thoracic spine and ribs. After recuperating in hospital, Mr Matheson was on sickness benefits from Centrelink from 4 April 2008 until 20 October 2009. He was not working in that period because of the injuries from the accident. Mr Matheson attended sessions with Acquired Brain Injury Outreach Services (ABIOS) and, as a result, developed coping mechanisms to assist him in coping with the effects of his injury.
In November 2009, Mr Matheson purchased a Timbercrete franchise for the making of concrete building bricks. It was registered as Timbercrete Gold Coast in November 2011 but he commenced operations in 2009. Initially, he undertook the physical work himself but soon realised he was not capable of it. He then engaged others to do the work and he acted in a supervisory capacity. In 2010, Mr Matheson eventually ceased trading because of the downfall in the building trade due to the global financial crisis and the effects of flooding in Queensland. He described truckloads of bricks that he was unable to sell.
He said that the franchisor, Peter Collier, granted him a licence to continue to make bricks, that he gifted the business and the licence to the charity At Risk Kids and that the business continues to trade.
Because of difficulties he was having in the workplace, Mr Matheson went to his treating doctor, Dr Windley, who completed a medical report on 9 December 2010 to assist
Mr Matheson with a claim for an increase in disability support pension. Mr Matheson has been in receipt of the disability support pension from Centrelink since 15 October 2009. Mr Matheson said that he not sought any employment since working with Timbercrete. He agreed that he suffers from hip pain but said that he believed that this was a referred pain from his lumbar spine. He had x-rays taken of his hips in the late 1990s as he was having trouble with them when running.
Mr Matheson completed a statutory declaration on 6 June 2011 in which he listed the disabilities accepted by the respondent as being related to his service. He set out the limitations which they imposed on him. He also described depression which made him angry with his then situation and wrote that this changed his personality and affected his relationships with friends and family. Mr Matheson completed a statement, dated 8 December 2011, in which he advised that he no longer experienced difficulties associated with his traumatic brain injury and that he was not prevented from working because of that condition.
Medical evidence
Dr Donna Spooner, clinical neuropsychologist, saw Mr Matheson for an assessment on 16 May 2008. In a detailed report, Dr Spooner concluded that Mr Matheson reported a number of cognitive and behavioural issues since the accident, including reduced ability to multi-task and to quickly retrieve facts from memory, and reduced frustration tolerance. She continued:
The results of the current assessment indicate moderate to severe deficits in processing speed and many of his executive functions (namely rapid dividing of attention, planning, problem-solving, development of strategy and mental flexibility). Milder deficits were also noted in his working memory, dual-tasking ability, and recall of complex verbal communication following interference.
Dr Spooner described as well preserved Mr Matheson’s general intellectual functions, verbal learning, recall of non-complex verbal material, visual memory, immediate attention span, visuospatial functions and object naming abilities. Dr Spooner noted that Mr Matheson had reported depression, anxiety and stress and that one of his significant concerns was his reduced frustration tolerance.
Neurologist, Dr Richard Adams, completed a report on 19 October 2009. He referred to Mr Matheson’s orthopaedic conditions and noted that he had been in the accident which resulted in a fracture of the skull and right leg. The main scans of relevance to him were those in relation to Mr Matheson’s spine and he wrote that he detected no abnormalities on neurological examination.
On 18 October 2010, Dr Phillip Vecchio, rheumatologist with specialty with musculoskeletal conditions, completed a medical report after seeing Mr Matheson on the previous day. He concluded that Mr Matheson would be able to work in business though he would be thwarted by the ability to contribute to manual performance by his musculoskeletal conditions. He noted that Mr Matheson advised him that he had short term memory loss as a consequence of the accident. Dr Vecchio’s opinion was that Mr Matheson was capable of working less than full time but in excess of 20 hours per week. In addition to orthopaedic conditions, he nominated the memory loss as a factor restricting work capacity. On 19 July 2011, Dr Vecchio completed a further report in which he referred to Mr Matheson’s musculoskeletal conditions but did not express an opinion of his work capacity; however Dr Vecchio noted that Mr Matheson was having difficulty procuring suitable employment.
Mr Matheson said that the Job Capacity Assessment (JCA) completed in December 2010 was an accurate reflection of his health problems at that time but he said that he no longer suffered any residual impact from the effects of the injuries sustained in the accident.
The JCA report was in evidence. It was completed by psychologist, Kelly Monaghan, and lists the assessable conditions in Mr Matheson as including “traumatic brain injury”. She noted problems with memory and problem solving, with compensation by
Mr Matheson through use of “written notes, schedules, checklists and colleagues”.
She wrote:
Reduced cognitive functioning (ie impaired concentration, memory, endurance). Client relies on diaries, schedules and frequent reminders from family members to maintain day-to-day activities. Client requires additional support at work to maintain daily tasks.
A rating of 10 points was allocated to the condition from Table 8 in the Social Security Act 1991 (Cth) which deals with Neurological Function: memory, problem solving.[3]
The criteria for 10 points in that Table read:Can understand movies, radio programs or group discussions, but with some difficulty. Comprehension is good in most situations, but understanding is difficult in large groups, or when tired and upset. Has difficulty coping with rapid changes of topic or
Mild impairment of problem solving and ability to concentrate: appropriate use is made of accumulated knowledge, and reasonable judgement is shown in routine daily activities most of the time. Difficulties are apparent in new circumstances or
Mild impairment of memory. Can learn, although at a slower rate than previously. Impairment has little impact on everyday activity because of compensation through reliance on written notes, schedules, checklists and colleagues.
Ms Monaghan’s opinion was that Mr Matheson had, with intervention, a work capacity within 2 years of 8 to 14 hours per week. Ms Monaghan concluded that Mr Matheson was unlikely to be able to sustain more than 8 hours work per week because of his physical and cognitive functions. She consulted a medical report from
Dr Stephen Windley, Mr Matheson’s treating doctor, dated 9 December 2010, in giving her opinion on the effects of that brain injury.[3] See Schedule 1B, Table 8.
In his report of 9 December 2010, Dr Windley identified the traumatic brain injury for which he described “grossly impaired memory and concentration”, a personality disorder and “grossly reduced cognitive function, concentration, endurance”. In a later report, dated 23 June 2011, Dr Windley described an “acquired brain injury” which was “permanent” and which warranted a rating of 1 in a scale where that score equated with “minor effect on certain functions only”. In that later report, Dr Windley’s opinion was that Mr Matheson’s orthopaedic conditions and associated pain were the reason for his being unable to work.
Dr Neil Cleaver, orthopaedic surgeon, completed a report on 16 May 2012. His opinion was that Mr Matheson was totally and permanently incapacitated for any form of employment because of his orthopaedic conditions. Orthopaedic surgeon, Dr Hugh Won, completed a report on 22 May 2012. He described Mr Matheson as being unable to work because of his physical limitations from chronic pain in his limbs and spine.
He supported Dr Cleaver’s opinion on Mr Matheson’s work capacity.
Ms Judith Cockerton, the Administrative Manager of the Integrity Community Christian Church, described, in a letter dated 15 September 2011, Mr Matheson’s functions in the organisation as overseeing community based activities as well as providing for the homeless, the hungry and the disadvantaged. He engaged in projects to develop skills in young people in such fields as motor vehicle restoration; to provide practical care for the homeless; and to assist unemployed youth to re-enter the working community. Often,
he was not in receipt of payment in the normal sense of a wage but received payments from the Church from the sale of any items produced in the help programs.
Ms Cockerton wrote that Mr Matheson was advised by the Church leadership in
May 2010 that he could no longer continue with his Church work and was advised, because of his failing physical health, that he should consult Dr Windley.
Ms Cockerton wrote that the Church closed down in December 2010 and Mr Matheson discontinued his involvement with Timbercrete at about that time as well.CONSIDERATION
Mr Matheson was in receipt of pension at more than 70% of the general rate at the commencement of the assessment period and meets the requirements of s 24(1)(a)(i)
of the Act. There is evidence in the JCA report and from Dr Vecchio that Mr Matheson has a capacity for employment. However, there is also evidence from Dr Won,
Dr Cleaver and Dr Windley that Mr Matheson’s accepted disabilities, by themselves, render him incapable of undertaking remunerative work[4] for periods aggregating more than 8 hours per week. Accordingly, we are satisfied that the requirements of s 24(1)(b) of the Act have been met during the assessment period.
[4] As provided for in s 28 of the Act.
The application of s 24(1)(c) of the Act involves a consideration of what Mr Matheson would probably have done in the assessment period in the absence of his accepted disabilities.[5] The Federal Court has said that a proper consideration of paragraph 24(1)(c) of the Act requires responses to the following questions (“the Flentjar questions”):[6]
“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?”
[5] See Repatriation Commission v Hendy (2002) 76 ALD 47 at 54.
[6] See Flentjar v Repatriation Commission (1997) 26 AAR 93; (1997) 48 ALD 1 at 4-5.
Consideration must also be given to s 24(2)(a) of the Act, which operates in conjunction with the fourth of those questions, and s 24(2)(b) of the Act which operates, in the case of a person under 65 years of age, in conjunction with the third of those questions.
For the first of those questions, the term remunerative work is broadly defined in s 5Q(1) of the Act as including “any remunerative activity”.[7] Mr Matheson was a physical education teacher in the Army and it is not in dispute that Mr Matheson was engaged in a wide variety of work after leaving the Army. Some of this work was in management of various designing and building projects and supervising young people in sporting and rehabilitation programs. He also undertook a degree of manual work in the context of projects or businesses he was managing and, in addition, he worked as a pastor in his Church. Both Ms Smith and Mr Kelly accepted, and we are satisfied, that each of those forms of activity constitutes remunerative work in Mr Matheson’s case. For the purposes of the second of the questions noted above, we are satisfied that the evidence of Dr Won, Dr Cleaver and Dr Windley supports Ms Smith’s submission that the incapacity associated with Mr Matheson’s accepted disabilities is such that, in the assessment period, they would have prevented him from continuing to undertake that remunerative work.
[7] See also s 28 of the Act.
The third of the questions noted above raises what is referred to as the “alone test” in the first part of s 24(1)(c) of the Act. In Willis v Repatriation Commission,[8]
Bromberg J said:[9]
[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”.
[8] (2012) 202 FCR 323.
[9] (2012) 202 FCR 323 at 329.
There must be no other factor, apart from Mr Matheson’s accepted disabilities, 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.[10] In the event that they would have contributed to preventing Mr Matheson from doing so in the assessment period, s 24 of the Act will not be satisfied.
[10] See Repatriation Commission v Hendy (2002) 76 ALD 47 at 54 – 55; and Repatriation Commission v Alexander (2003) 75 ALD 329 at 334 per Spender J.
Dr Spooner’s opinion, in May 2008, was that Mr Matheson displayed moderate to severe deficits in various functions because of his brain injury from the accident. That was some 17 months prior to the assessment period. In October 2009, Dr Adams, whose main focus was on Mr Matheson’s spinal conditions, reported that there were no abnormalities on his neurological examination of Mr Matheson at that time. In October 2010, Dr Vecchio noted short term memory loss from the brain injury. Dr Windley, in December 2010, described significant effects from the brain injury including grossly impaired memory and concentration and grossly reduced cognitive function, concentration and endurance. It was that report which provided the basis for the JCA report by Ms Monaghan.
In his later report, dated 23 June 2011, Dr Windley described the brain injury as “permanent” but which had only a minor effect on certain of Mr Matheson’s functions. He did not implicate the consequences of the brain injury in Mr Matheson’s inability to work.In his evidence, Mr Matheson agreed that the JCA report was an accurate reflection of his situation at the time of its compilation. However, he described the injuries from the accident as no longer being of concern to him. That improvement in functioning is reflected in a comparison of the two reports from Dr Windley as well as in a comparison of the report from Dr Spooner in 2008 with that of Dr Windley in 2011. We are satisfied that the effects of Mr Matheson brain injury impacted on him as described by Dr Spooner as at the start of the assessment period and until Dr Windley reported in December 2010. However, we are also satisfied that the effects of the condition had decreased by the time of Dr Windley’s report on 23 June 2011. His report implicates only the orthopaedic conditions which are accepted disabilities under the Act as being relevant to Mr Matheson’s inability to work from 23 June 2011. The second of the
Flentjar questions is answered “yes” from that date.From April 2008 until October 2009, Mr Matheson was in receipt of sickness benefits from Centrelink because of the injuries he suffered in the accident. That period was immediately before the assessment period, and during that time he was not engaged in remunerative work as the senior pastor with the Church. Mr Matheson was not working in that period because of the injuries from the accident.
The most recent remunerative work undertaken by Mr Matheson was in relation to the making of concrete building bricks through his Timbercrete franchise. Mr Matheson’s unchallenged evidence was that he purchased the franchise in November 2009 and ceased his involvement in the business towards the end of 2010 when he gifted the business and the licence to the charity At Risk Kids. His evidence was that factors which contributed to the demise of his franchise included a downturn in the construction industry and the effects of flooding in south-east Queensland. We are also satisfied that detrimental effects of his traumatic brain injury played a role in his incapacity to continue his work as a pastor. In that regard, his evidence was that the JCA report completed in December 2010 accurately reported on his health problems at that time. As noted above, this was based on the report of Dr Windley of 9 December 2010. At that stage, Dr Windley described significant effects from the brain injury including grossly impaired memory and concentration as well as grossly reduced cognitive function, concentration and endurance. We are satisfied that factors other than Mr Matheson’s accepted disabilities contributed to his cessation of remunerative work as a pastor and as a franchisee. Further to that, we note the terms of s 24(2)(a) of the Act which reads:
(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; …
We are satisfied that Mr Matheson’s remunerative work, which ended in 2010, did not cease solely because of his accepted disabilities. This means that the third question listed above is, at this stage of the analysis, answered in the negative. However, consideration must be given to s 24(2)(b) of the Act, which operates, in the case of a person under 65 years of age, in conjunction with that question. It reads:
(2) For the purpose of paragraph (1)(c):
…
(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.
Though it was not submitted by Ms Smith that that provision was applicable, we have considered its application to Mr Matheson’s circumstances as, at the commencement of the assessment period, he was under 65 years of age.[11] A pre-condition to the application of s 24(2)(b) of the Act is that Mr Matheson must have been genuinely seeking to engage in remunerative work. Mr Matheson’s health had improved by the time of Dr Windley’s report in June 2011 but, by then, he had not been engaged in remunerative work for some months and he has not sought to re-engage in any remunerative work since that time. However, he became a franchisee in Timbercrete in November 2009, which was during the assessment period. In 2010, he had a clear capacity to continue manufacturing the product because he described truckloads of bricks that he was unable to sell.
We are satisfied that his decision to cease trading was due in the main to the non-viability of his role in the industry at that time because of the serious downturn in construction. Accordingly, we are satisfied that it was not his accepted disabilities which were the substantial cause of his ceasing that form of remunerative work.
[11] Mr Matheson was born in 1958.
The fourth of the questions listed above is whether Mr Matheson is, by reason of being prevented from continuing to undertake the remunerative 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. That requirement is qualified by the terms of s 24(2)(a) of the Act which is set out above. Mr Matheson is not to be taken as suffering such a loss as he ceased to engage in remunerative work for reasons other than his incapacity from his accepted disabilities.
We are satisfied that Mr Matheson 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. The intermediate rate of pension, for which provision is made in s 23 of the Act, was referred to by Ms Smith in her submissions. However, we are also satisfied that the requirements for payment of pension at that rate are not met because of s 23(1)(c) of the Act which operates in the same manner as s 24(1)(c) thereof.
DECISION
The Tribunal affirms the decision under review that disability support pension is payable at 90% of the general rate.
I certify that the preceding 33 (thirty three) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member and Dr G J Maynard, Brigadier (Rtd), Member.
........................[sgd].............................Associate
Dated 3 October 2012
Date of hearing 6 September 2012 Advocate for the Applicant Helena Smith Advocate for the Respondent Bruce Williams
0
6
0