Simmons and Repatriation Commission (Veterans' entitlements) - [2023] AATA 2720

Simmons and Repatriation Commission (Veterans' entitlements) [2023] AATA 2720 (25 August 2023)
Division:VETERANS' APPEALS DIVISION
File Number:2019/3211
Re:Malcolm Simmons
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:25 August 2023
Place:Brisbane

The Tribunal sets aside the decision under review and in substitution decides that the Veteran is entitled to be paid the pension at the Special Rate from 27 October 2018.
........................[SGD].............................
Member D Mitchell

CATCHWORDS
VETERANS’ AFFAIRS – special rate pension – incapacity from service-caused conditions – prevented from being able to continue to undertake remunerative work that he was undertaking – alone test – loss of salary or wages – genuinely seeking to engage in remunerative work – substantial cause of inability to obtain work - decision under review set aside and substituted
LEGISLATION
Repatriation Act 1920 (Cth)
Veterans’ Entitlement Act 1986 (Cth)
CASES
Banovich v Repatriation Commission [1986] FCA 397
Cavell v Repatriation Commission (1988) 9 AAR 543
Flentjar v Repatriation Commission (1997) 48 ALD 1
Fox v Repatriation Commission [1997] FCA 176
Leane v Repatriation Commission (2004) 81 ALD 625
Nilant v Macchia (2000) 104 FCR 238
Repatriation Commission v Butcher (2007) 94 ALD 364
Repatriation Commission v Graham [2004] FCA 1287
Repatriation Commission v Hendy [2002] FCAFC 424; (2002) 76 ALD 47
Repatriation Commission v Richmond [2014] FCAFC 124
Repatriation Commission v Van Heteren [2003] FCA 888
Repatriation Commission v Watkins (2015) 228 FCR 573
Richmond v Repatriation Commission[2014] FCA 272
Roberts and Repatriation Commission [1992] AATA 76; (1992) 15 AAR 192; (1992) 26 ALD 611
Sheehy v Repatriation Commission (1996) 66 FCR 569
Smith v Repatriation Commission [2014] FCAFC 53
Starvcevich v Repatriation Commission (1987) 18 FCR 221
Summers v Repatriation Commission [2015] FCAFC 36
Wright and Repatriation Commission (2005) 144 FCR 302
REASONS FOR DECISION
Member D Mitchell
25 August 2023
INTRODUCTION

Mr Malcolm Simmons (the Veteran) made a claim for disability pension for ’osteoarthritis of the right ankle, osteoarthritis of the left knee and diabetes mellitus’ received by the Respondent on 6 June 2016.[1]
[1] Exhibit 1, T Documents, T6, pages 19-28, Claim form.
On 22 August 2016, the Respondent issued a determination accepting the Veteran’s claim for osteoarthritis of the right ankle and osteoarthritis of the left knee, finding that his diabetes mellitus was not related to service and continued his pension at 100% of the General Rate.[2]
[2] Exhibit 1, T Documents, T15, pages 102-108, Determination.
The Veteran’s request for review of that decision was received by the Respondent on
[3] Exhibit 1, T Documents, T16, page 111, VRB Decision.
19 August 2017.[3]
On 26 April 2018, the Veterans’ Review Board (VRB) set aside the determination of
22 August 2016 and accepted the Veteran’s diabetes mellitus as defence-caused from
[4] Exhibit 1, T Documents, T16, pages 109-118, VRB Decision.
19 February 2017 and remitted assessment of pension back to the Respondent.[4]
On 21 September 2018, the Respondent determined that from 19 February 2017, the Veteran’s pension was to be paid at 100% of the General Rate.[5]
[5] Exhibit 1, T Documents, T5, pages 12-18, Determination.
On 26 October 2018, the Veteran sought review of that decision.[6]
[6] Exhibit 1, T Documents, T3. Pages 1-10 VRB Application for Review.
On 1 April 2019, the VRB issued a reviewable decision affirming the Respondent’s determination of 21 September 2018.[7]
[7] Exhibit 1, T Documents, T2, page B2, VRB Decision.
On 5 June 2019, the Veteran made an Application for Review of a Decision to the Tribunal seeking review of the VRB decision.[8]
[8] Exhibit 1, T Documents, T1, pages A-A2, Application for Review.
Since making an application to the Tribunal the Veteran has had osteoarthritis right knee, hypertension, erectile dysfunction, diverticular disease of the colon with colovesicular fistula, duodenitis, diabetic neuropathy, obstructive sleep apnoea and gastro-oesophageal reflux disease accepted as being service-caused from 27 October 2018.[9]
[9] Exhibit 18, List of Accepted Conditions.
From April 2019, the Veteran has been paid the pension at the Extreme Disablement Adjustment Rate.[10]
[10] Exhibit 6, Determination.
BACKGROUND
The Veteran enlisted in the Australian Army on 18 May 1971, serving mainly as a Clerk Admin. He discharged in May 1992 with the rank of Warrant Officer, Class 2. The Veteran served with the Army Reserve from 1992 to 1998.[11]
[11] Exhibit 21, Veteran’s Submission filed on 2 May 2021.
The Veteran turned 65 in April 2019.
The Veteran provided the following details of his employment history post discharge:[12]
[12] Exhibit 12, Employment History Questionnaire.

1992 - 1999

Australia Post Relief Postie

1993 – 1996 (?)

Worker then Manager of the Oakey Roadhouse – cooking, cleaning, refuelling and all managerial duties.

1997 - 1998

Self Employed Stationary Catering Van whilst the Oakey Power station was being constructed.

1999 - 2000

HADEN Facilities Management, Army Base Oakey, clerical duties as well as being on-call.

2000 - 2010

Part time assisted wife with childcare duties.

2001 - 2002

Part time with Quincy Family YMCA (custodial duties) and Home Depot (overnight re-stoker duties).

2002 - 2004

Full time with Home Depot (overnight re-stocker duties).

2004 - 2008

Full time with CHADDOCK (overnight Youth Worker – clerical and custodial duties in a residential care facilities).

2008 – 2009

Had returned to Australia for family reasons and upon return to the USA sought work and was able to secure with the Local School District at first as relief custodian and school bus driver.

2009 - 2012

Local School District as School Bus Driver and as required relief custodian. Returned to Australia Oct 2012 upon marriage breakdown and the next working day upon arrival registered with Centrelink.

The Veteran outlined that he was last employed by the RSL in February or March 2013 and ceased that employment in October or November 2013 when he was granted the Centrelink disability support pension (DSP).[13]
[13] Exhibit 12, Employment History Questionnaire.
The Veteran volunteered as the live-in adult presence and supervisory person with the at-risk Homeless Hostel operated by Community Transition Centre (CTC) in Kingaroy[14] between April 2013 and September 2020.
[14] Exhibit 7, Veteran’s submission in reply to the Respondent’s Statement of Facts, Issues and Contentions.
On 6 January 2022, the Respondent wrote to the South Burnett CTC HQ requesting information in relation to the Veteran’s engagement with CTC. The Respondent provided the following together with a form to complete:[15]
I am assessing a request for review by the Administrative Appeals Tribunal (AAT) of a decision of the Repatriation Commission pursuant the Veterans' Entitlements Act 1986. [The Veteran] lodged the review application.
A specialist medical report notes;
[The Veteran] initiated voluntary work in 2013 at the Community Transition Centre (CTC). This role involves [the Veteran] overseeing young adults. [The Veteran] provides a supervisory role between 5:00pm and 8:30am. In this role he is given accommodation and meals. In this role, [the Veteran] is predominantly responsible for the supervisory role. Should anything happen, [the Veteran] contacts other people for assistance including the police.
To enable me to make a decision in this matter, I require additional information concerning [the Veteran’s] employment, confirming his job title, duties and responsibilities, term of employment and ours worked including a copy of the relevant award or individual contract of employment. I would appreciate your assistance in completing the enclosed employer report.
[15] Exhibit 15, Employment Information request.
The completed form, signed and dated, 28 January 2022, provided the following:[16]
[16] Exhibit 15, Completed Employment Information Form.
1.What is/was [the Veteran’s] period of employment with the employer to whom this letter is addressed?
21/04/13 to 28/09/20
…
4. What is/was [the Veteran’s] trade or profession?
Volunteer Youth Hostel Lead Tenant
5. How would you describe the duties which [the Veteran] performed?
Light/skilled
6. How many hours (on average) did/does [the Veteran] work per week?
Volunteer – 50
7. Is/was [the Veteran’s] employment: Permanent Full-time, Permanent Part-time, Casual Full-time or Casual Part-time?
Not completed.
8. Has the number of working hours been reduced at any time?
No
9. Were there any specific employment provisions made for any disabilities or special needs of [the Veteran]?
We worked with [the Veteran’s] abilities
…
14. What was the reason for the termination of employment?
Voluntary retirement/Redundancy
…
LEGISLATIVE OVERVIEW
Part 2 of the Veterans’ Entitlement Act 1986 (Cth) (the Act) deals with pensions, other than service pensions, for veterans and their dependants. Section 14 of the Act allows a veteran to make a claim for a pension.
Section 19 of the Act sets out the way in which a claim for pension is to be determined. For present purposes section 19(5B) of the Act directs that an assessment of such an application must be made in accordance with whichever of sections 22 (General Rate of pension), section 23 (Intermediate Rate of pension) or section 24 (Special Rate of pension) apply.
The Veteran in this matter made a claim in respect of incapacity caused by the claimed conditions. The Respondent determined the Veteran was entitled to be paid the pension at 100% of the General Rate, up until April 2019 when his entitlement was increased to the Extreme Disablement Adjustment Rate. The Veteran seeks to be paid the pension at the Special Rate.
The Tribunal notes that while there was limited reference to the Intermediate Rate pension pursuant to section 23 of the Act in the submissions of the Respondent, the issue was not expanded upon by the Veteran. It is appropriate to consider the applicability of both the Intermediate and Special Rate of pension when considering a veteran’s rate of pension.[17]
[17] As per the full Federal Court in Smith v Repatriation Commission (2014) 220 FCR 452 at [57] and [71].
However, given the Tribunal’s findings set out below in relation to the Veteran’s work capacity, the Tribunal has not considered section 23 of the Act in detail as it does not apply where section 24 of the Act is found to have applied.[18]
[18] See section 23(1)(d) of the Act.
In determining an application for an increase in the rate of pension, a veteran’s entitlement is determined in respect of any circumstance within the ‘assessment period’. The assessment period starts on the day the application for an increase in the pension was received until the date of the decision of the Tribunal.[19]
[19] See section 19(9) of the Act; Richmond v Repatriation Commission [2014] FCA 272 at [107].
Section 24 of the Act deals with entitlement to the special rate pension and relevantly sets out:
Special rate of pension
(1)      This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a)      either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war-caused injury or war-causeddisease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d)       section 25 does not apply to the veteran.
(2)   For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
…
Section 28 of the Act provides that in determining for the purposes of section 24(1)(b) of the Act, whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work regard must be had to the following matters only:
(a)     the vocational, trade and professional skills, qualifications and experience of     the veteran;
(b)     the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c)      the degree to which the physical or mental impairment of the veteran as a    result of the injury or disease, or both, has reduced his or her capacity to     undertake the kinds of remunerative work referred to in paragraph (b).
Section 5Q of the Act defines ‘remunerative work’ to include ‘any remunerative activity’.
The Full Federal Court in Banovich v Repatriation Commission[20] held that the phrase ’remunerative work which the member was undertaking’ in the Repatriation Act 1920 (Cth) ’should be read as a reference to the type of work which the member previously undertook and not to any particular job’.
[20] Banovich v Repatriation Commission [1986] FCA 397 at [23]
In Smith v Repatriation Commission (Smith), Buchanan J summarised the legislative scheme:[21]
The effect of these statutory directions in the present case was that an assessment was required as to whether at any time during the “assessment period” a pension was payable in accordance with s 23 (intermediate rate) or s 24 (special rate). If so, the most recent such entitlement was to be determined as the rate of pension payable. 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 must be assessed by reference to any relevant circumstance which occurs up to the time of decision. The entitlement may increase or decrease during that period, but provided that a pension was payable at some time during the assessment period a veteran will receive either the intermediate rate or the special rate, whichever is applicable, or in the case that both are applicable, whichever is the most recently applicable. Because this arrangement applies to applications for increase in pension, it commences from the premise that some level of pension at the general rate is already being paid.
[Emphasis added]
[21] Smith v Repatriation Commission [2014] FCAFC 53 at [40].
Further in Smith, Buchanan J considered section 24 of the Act carefully, providing the following observations:[22]
47 Section 24(1)(b) and (c), when read together, state a composite test containing a series of conditions. First, s 24(1)(b) requires that a veteran be rendered, by the war-related incapacity alone, incapable of working more than eight hours per week. Secondly, s 24(1)(c) requires that the veteran be prevented, by that incapacity alone (i.e. not for other reasons) from continuing earlier remunerative work. Thirdly, s 24(1)(c) requires that prevention for that reason from continuing that work be the cause of the loss of earnings. Fourth, s 24(1)(c) requires that the loss of earnings would not be suffered but for the incapacity.
48 The operation of s 24(1)(c) is capable of being informed by the provisions of s 24(2). The overall effect of s 24(1)(c) may be summarised as one which requires a demonstrated loss of earnings as the direct result of the war-related incapacity, and only for that reason. Section 24(2)(a) supplements the requirements of s 24(1)(c) by identifying specific circumstances which will cause it not to be satisfied. Those circumstances, in effect, state the opposite to the conditions in s 24(1)(c) itself. Thus, there is no established loss of earnings by reason of the incapacity if remunerative work was ceased for other reasons (s 24(2)(a)(i)), or if the veteran is also incapacitated or prevented from doing remunerative work for some other reason (s 24(2)(a)(ii)). In this assessment, of course, it continues to be accepted that the veteran is actually incapacitated in any event (“a veteran who is incapacitated…”). The purpose of the enquiry is to see whether, nevertheless, there are other explanations for economic loss so that the incapacity is not the only reason for it.
49 Section 24(2)(b) provides some relief from the potentially harsh consequences of this arrangement. It applies where remunerative work is not being done. In my view, it accommodates a cessation of earlier remunerative work, as well as a circumstance where a veteran has not worked since injury, or since the development of the incapacity. In all those circumstances, in my view, a veteran may demonstrate genuine efforts to obtain work which are made fruitless by the incapacity. That is, the efforts would continue but for the incapacity and the incapacity is the substantial cause of the inability to obtain work. Those circumstances are taken to satisfy the basic test in s 24(1)(c) of being actually prevented by the incapacity from continuing remunerative work. Economic loss (i.e. loss of the opportunity for economic gain by way of income) follows naturally enough from this scenario. The search is for remunerative work. The economic consequence of failure to obtain it is the result of the incapacity.
(Emphasis in the original)
[22] Smith v Repatriation Commission [2014] FCAFC 53 at [47]-[49].
The Full Federal Court, in Repatriation Commission v Hendy[23] said:
The language of s 24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the Veteran from working. The decision-maker is required to take into account any factor that plays a part or contributes to a veteran’s being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period. So long as the Tribunal performs this exercise, the conclusions drawn from the assignment of the relative impact the various factors on the ability of the veteran to continue in remunerative work is not reviewable, except in exceptional circumstances. Moreover, having considered any or all of the factors which may have contributed to a veteran's incapacity, the Tribunal is then required to determine whether it is the veteran's war-caused injury or war-caused disease, or both, alone which prevent the veteran from continuing to undertake remunerative work. …
[23] Repatriation Commission v Hendy [2002] FCAFC 424 at [37]; (2002) 76 ALD 47, 54 at [36].

Section 120 of the Act deals with the standard of proof required. Section 120(4) of the Act requires that a veteran’s entitlement to an increased pension be decided on the decision-maker’s reasonable satisfaction.[24] Section 120(6) of the Act provides that no onus of proof is imposed on either party.
[24] Repatriation Commission v Smith (1987) 15 FCR 327 at [161].
Section 177 of the Act sets out the dates of effect of decisions made by the Tribunal.
ISSUES
The issue before the Tribunal is whether the Veteran is eligible for payment of the pension at the Special Rate. This requires determining:
(a)What is the assessment period?
(b)Whether the Veteran:
(i)made a valid application under section 14 of the Act for an increase in the rate of pension that he was receiving (section 24(1)(aa) of the Act);
(ii)had not yet turned 65 when the application was made (section 24(1)(aab) of the Act); and
(iii)was being paid the disability pension at a rate equal to or greater than 70% of the General Rate of pension (section 24(1)(a)(i) of the Act).
(c)If the answer to (b) is yes, whether the Veteran is totally and permanently incapacitated, that is unable to work more than eight hours a week, due to service-caused incapacity alone (section 24(1)(b) of the Act); and
(d)If the answer to (c) is yes, whether the Veteran by reason of incapacity from his service-caused conditions, alone, is prevented from continuing to undertake remunerative work that he was undertaking and by reason of being prevented from continuing to undertake remunerative work, suffered a loss of salary or wages, or of earnings, that he would not be suffering if he was free of that incapacity (section 24(1)(c) of the Act); and
(e)If the answer to (d) is no, whether the Veteran had not been engaged in remunerative work, had been genuinely seeking to engage in remunerative work that he would, but or the service-caused incapacity, be continuing so to seek to engage in remunerative work and that, that incapacity is the substantial cause of his inability to obtain remunerative work in which to engage (section 24(2) of the Act); and
(f)If the answer to (d) or (e) is yes, from what date should the Veteran be paid the pension at the Special Rate?
MEDICAL EVIDENCE
The Veteran has the following conditions accepted as being service-caused under the Act:[25]
[25] Exhibit 18, List of Veteran’s Accepted Conditions and Exhibit 22, Respondent’s Submissions on Special Rate, pages 4-5, paragraph 16.
(a)Lumbar spondylosis.
(b)Cervical spondylosis.
(c)Chondromalacia patellae.
(d)Osteoarthritis of the right knee.
(e)Osteoarthritis of the left knee.
(f)Osteoarthritis of the right ankle.
(g)Dysthymic disorder.
(h)Diabetes mellitus.
(i)Diabetic neuropathy.
(j)Obstructive sleep apnoea.
(k)Duodenitis.
(l)Diverticular disease of the colon with colovescicular fistula.
(m)Erectile dysfunction.
(n)Solar keratosis.
(o)Bilateral carpal tunnel syndrome.
(p)Gastro-oesophageal reflux disease.
(q)Hypertension.
(r)Tinnitus.
The Veteran’s following conditions were not accepted as being service-caused under the Act:[26]
(a)Aquagenic urticaria.
(b)Nasal fracture.
(c)Haemorrhoids.
(d)Sensorineural Hearing Loss.
(e)Peripheral neuropathy both hands.
(f)Cubital tunnel syndrome left arm.
(g)Adjustment Disorder with Mixed Anxiety and Depressed Mood.
[26] Exhibit 18, List of Veteran’s Rejected Conditions. The Tribunal notes that the corresponding list found at Exhibit 22, Respondent’s Submissions on Special Rate, page 5, paragraph 17 is not consistent with that provided in Exhibit 18.
There is a large volume of material before the Tribunal in relation to the Veteran’s medical history. That material supports the Veteran’s claims with regards to the conditions listed above. The Tribunal noted at the Hearing that the material before it was overall quite dated. The Respondent referred to COVID and delays that had occurred in the progression of the matter due to the Veteran’s ill health as being the reason for the state of the medical evidence before the Tribunal.
Other than the Veteran’s My HealtheVet records[27] (his US medical documents) and the 2020 specialist reports[28] he provided, the report of Dr Kalesh Seevnarain, consultant occupational physician dated 22 October 2019[29] submitted by the Respondent is the most contemporaneous documentary medical evidence before the Tribunal.
[27]    Exhibit 8, My HealtheVet records.
[28]    Exhibit 9, Bundle of Specialist Reports provided by the Veteran.
[29]    Exhibit 4, Report od Dr Seevnarain.
The Tribunal notes the historical medical records provided from the Veteran’s Centrelink record.[30] Of relevance are the records that relate to the timeframe surrounding the Veteran’s claim for the DSP and the assessment of that claim.[31] Having reviewed that material the Tribunal does not consider that it in any way contradicts the opinion given by

Dr Seevnarain.
[30] Exhibit 1, T Documents, T20, pages 161-165, Employment Services Assessment Report dated 4 April 2013 and pages 168-174, Job Capacity Assessment Report dated 1 October 2013 and Exhibit 20, Centrelink Records.
[31] Exhibit 1, T Documents, T20, pages 161-165, Employment Services Assessment Report dated 4 April 2013 and pages 168-174, Job Capacity Assessment Report dated 1 October 2013; and Exhibit 20, Centrelink Records, in particular: Medical Report Disability Support Pension Form completed by Dr John Lamb dated 20 November 2012 and Centrelink Medical Certificate completed by Dr Murray Pietsh dated 20 March 2013.
The Centrelink records provide that the Veteran was in receipt of Newstart Allowance from 15 October 2007[32] to 16 July 2013 and that from 17 July 2013 he had been granted the DSP.[33]
[32] It is unclear whether this was the case as Centrelink payments are not generally payable when a recipient no longer resides in Australia. It is more likely that the Veteran was only in receipt of New Start Allowance during the periods he had returned to Australia.
[33] Exhibit 20, Centrelink Records, Cover Email.
To be granted the DSP a person must because of the functional impairments resulting from their fully diagnosed, fully treated and fully stabilised conditions be unable to undertake work for at least 15 hours per week independently of a program of support.[34]
[34] Section 94(1) of the Social Security Act 1991 (Cth).
The medical reports provided in the Centrelink records supporting the Veteran’s claim for the DSP referred to the medical conditions which significantly impacted his capacity to work to include:[35]
·insulin dependent diabetes with associated neuropathy;
·lower back pain;
·obstructive sleep apnoea; and
·diverticular disease.
[35]
In granting the Veteran the DSP, the Centrelink Job Capacity Assessor found, as set out in the report dated 1 October 2013, that the impacts of the Veteran’s diabetes, spinal function and sleep apnoea meant he met the DSP qualification requirements. The Job Assessor found that the Veteran was “having significant trouble with basic domestic tasks due to his physical limitations and endurance issues. His baseline ability is 0-7hr/wk. No referral is recommended, conditions are not likely to significantly improve over time.”[36]
[36] Exhibit 1, T Documents, T20, page 172, Job Capacity Assessment Report dated 1 October 2013.
The Respondent sought to primarily rely on the opinion provided by Dr Seevnarain. As such having reviewed the material before it in totality, the Tribunal does not consider it necessary to set out the medical evidence in full. The Tribunal accepts the evidence of Dr Seevnarain and does not consider on balance that his evidence is displaced by the other medical evidence before it. The Tribunal considers that the evidence provided by Dr Seevnarain was consistent with the findings made by Centrelink and by the doctors who completed the relevant forms in support of the Veteran’s claim for the DSP. The Tribunal notes that

Dr Seevnarain undertook an independent medical examination of the Veteran, reviewed the complete medical records from the Veteran’s general practitioner, provided a detailed report and gave affirmed evidence at the Hearing.
Evidence of Dr Seevnarain
On 2 October 2019, the Respondent sought an independent medical examination and report from Dr Seevnarain.[37] Together with the briefing letter, Dr Seevnarain stated he had the following records available to him:[38]
1.[The Veteran’s] complete medical record from the Bunya Pines Family Practice dated 25 July 2019.
2.In addition, [the Veteran] provided me with a medication sheet, dated 8 October 2019 from his general practitioner.
[37] Exhibit 5, Letter of Request to Dr Seevnarain.
[38] Exhibit 4, Report of Dr Seevnarain, page 2.
On 10 October 2019, Dr Seevnarain examined the Veteran and provided a report dated

22 October 2019 in which he provided the following summary:[39]
[39] Exhibit 4, Report of Dr Seevnarain pages 2-4 and 6-7.
HISTORY:
Past Occupational and Educational History:
[The Veteran] completed Year 10 in 1970. He thereafter went on to a college where he studied predominantly languages i.e. [the Veteran] studied English and Russian. During his career, [the Veteran] was able to receive Recognition of Prior Learning with regards to Business Administration.
In May 1971, [the Veteran] joined the Army. Initially [the Veteran] worked as a clerk administrator. He was also responsible for ensuring the payroll was appropriate as well as functioned as a driver. [The Veteran] worked predominantly in the clerk administrator-type setting until he was discharged from the Army. On discharge [the Veteran] had a rank of Warrant Officer Class 2. [The Veteran] was discharged from the Regular Army on 22 May 1992. [The Veteran] thereafter joined the Reserves where he functioned from 1992 to approximately 1997 /1998.
After leaving the Army in 1997/1998, [the Veteran] functioned predominantly as an administrative clerk. Around July 2000, [the Veteran] moved to the US. On initially moving to the US, [the Veteran] was not allowed to work for a period of time. In 2001, [the Veteran] began working again. He worked at the YMCA, the Chaddock Home Depot. This was both in part-time and full-time capacities between 2001 to 2004.
In 2009 [the Veteran] returned to Australia. He took up a role as a school custodian and was subsequently made a school bus driver until 2012.
In 2012, [the Veteran] applied to Centrelink through the Commonwealth Rehabilitation Services and began work on a part-time basis at the local RSL. [The Veteran] subsequently had to stop work at the RSL due to his legs becoming unsteady with him frequently dropping items and becoming at increased risk for falls and trips.
[The Veteran] initiated voluntary work in 2013 at the Community Transition Centre (CTC). This role involves [the Veteran] overseeing young adults. [The Veteran] provides a supervisory role between 5:00 pm to 8:30 am. In this role he is given accommodation and meals. In this role, [the Veteran] is predominantly responsible for the supervisory role. Should anything happen, [the Veteran] contacts other people for assistance including the police.
…
Current Symptoms:
[The Veteran] complained of a painful right ankle. He said that the ankle is painful all the time with him hearing cracks occasionally. He also stated that his right ankle is prone to swelling unexpectedly. He does not know of any aggravating or precipitating factors for the right ankle swelling. He stated that the pain in the right ankle is made worse by walking on uneven ground and made better by analgesia, rest and elevation of the right foot.
[The Veteran] also complained of pain in the right knee. He said that this pain is constant in nature and is associated with the right ankle pain. However, he stated that the right knee pain is not as bad when he clicks his ankle into a place. He also said that he hears cracking noises from the right knee. [The Veteran] stated that he has had numbness around the right knee which began in 1970 and has persisted.
[The Veteran] also complained of back pain. He said that this back pain is consistent and it may fluctuate in levels of intensity. He said sometimes the pain is so severe that he collapses with pain. He described this as an ongoing pain that is cyclical in nature. He stated that he is not aware of any precipitating, aggravating or protective factors when it comes to the back pain. He said that when he has severe back pain, he is aided by a walking stick and occasionally when he has to do tasks like shopping, he would use the shopping trolley as support.
[The Veteran] also stated that he has had previous surgery to his hands. He is still recovering from surgery to the left hand. Due to weakness of the left hand he has noted that he cannot write anymore. He also has to use an electric toothbrush to help him maintain his dental hygiene. He has not noticed any obvious weakness of the left hand but more loss in function due to the trigger fingers that he had diagnosed.
…
Present Work Status:
Currently [The Veteran] is not actively employed. He functions as a volunteer with the CTC. [The Veteran] said that this benefits him as due to him being required to provide overnight supervision he is furnished with a place to sleep as well as meals.
Present Activities:
[The Veteran] stated that while he has lost the ability to grip things within his daily life, he is able to manage the task of driving. He stated that he is able to do chores like cooking, cleaning and laundry but finds these very difficult. He stated that he currently lives in a onebedroom and cleaning the one-bedroom takes him approximately three hours per week. This is due to his inability to mobilise and grip properly.
[The Veteran] does not do laundry. [The Veteran] is responsible for his own shopping; however, he stated that he does not lift more than 4 kg. Mr Simmons stated that while shopping he is aided in mobilising by using a trolley. [The Veteran] does not do any gardening or outside work due to his present circumstances.
When asked about the activities of his previous day, [the Veteran] stated that he went to the shop. He also tried to organise some of his paperwork for his upcoming medical appointment. [The Veteran] stated that he napped two to three hours during the day.
Review of File Records:
1. Medical report submitted for Disability Support Pensions in 2013 and 2016. These forms indicated that [the Veteran] had diabetes with diabetic neuropathies that affected both his hands and legs. He was also diagnosed with gastro-oesophageal reflux, hypercholesterolaemia, hypertension and obstructive sleep apnoea. In the later disability assessment, [the Veteran] was noted to have an adjustment disorder with mixed anxiety and depressed mood. It was also noted that he had a dysthymic disorder which was accepted by the DV A.
2. MRI report from August 2006 shows congenitally narrowed canal with diffuse disc bulging at L4/5 and L 1/3 exacerbating this already somewhat narrowed canal as described. Some encroachment is seen on the inferior aspect of the neural foramen at L4/5 and L3/4 to a lesser extent.
4. MRI of cervical spine taken on November 2006. This MRI showed no evidence of central canal stenosis, neuroforaminal narrowing or focal disc disease identified in any way. Minimal diffuse disc bulging is noted at the C5/6 and C6/7 levels.
5. Correspondence from Associate Professor Phillip Braslins dated 29 March 2019. In this report Professor Braslins outlines Mr Simmons' medical conditions and states that he has been adequately managed for the diabetes, obesity, dyslipidaemia, hypertension and vascular disease. It was suggested that he have a follow-up appointment in approximately three months.
6. Correspondence from urologist, Dr Yap dated 23 March 2019. In this correspondence,
Dr Yap states that [the Veteran] had check cystoscopy on 23 March in which there were prominent recurrences noted in the low grade bladder tumour. These were located just inside the bladder neck. These recurrences were resected and fulgurated. Review cystoscopy was planned for three months' time.
7. Correspondence from Dr Mark Tadros, Consultant in Rehabilitation and Pain Medicine.
Dr Tadros noted in this correspondence that Mr Simmons' pain had deteriorated and he had been booked for cervical and lumbar facet blocks and an epidural steroid injection.
8. Correspondence, 19 September 2019 from Dr Bernard Tamba-Lebbie. Dr TambaLebbie states that [the Veteran] has had nerve conduction studies which suggest carpal tunnel syndrome in the background of diabetic neuropathy. It is stated that [the Veteran] also had triggering of the middle and ring fingers although the hand is not specified, which he would require surgery to release them.
9. Correspondence from Dr Grant Kleinschmidt, dated 25 October 2018. The correspondence notes that [the Veteran] underwent carpal tunnel release and trigger finger surgery.
10. CT scan of the cervical spine dated, 14 February 2019. This CT scan showed that there were advanced cervical spondylitic changes with marked bilateral facet joint degenerative changes. There is mild-to-moderate narrowing of the right exit foramina at C3/4 and C5/6 and at the left exit foramen at C5/6. There is also moderate narrowing at both the exit foramina at the C6/7 level.
11. Correspondence from Dr Mark Tadros, dated 6 June 2019. In this correspondence Dr Tadros notes that [the Veteran’s] cervical pain has settled following radiofrequency neurotomy. He stated that there was a potential for a trial of a neurostimulator. This option was presented to [the Veteran] and Dr Tadros would review [the Veteran] in three to six months.
In relation to questions put to him, Dr Seevnarain reported:[40]
[40]    Exhibit 4, Report of Dr Seevnarain, pages 8-9.
1. List the conditions which limit (prevents or contributes to preventing) the veteran's capacity for remunerative work previously undertaken?
1. Diabetes mellitus with peripheral neuropathy.
2. Degenerative disease of both the cervical and lumbar spine.
3. Ankle osteoarthritis.
4. Obstructive sleep apnoea.
In addition to the above conditions which may add to [the Veteran’s] limited capacity but does not prevent him working include diverticular disease and previous fistula of the colon, gastro-oesophageal reflux, increased body mass index, hypertension and mood disorder.
2. How does each condition affect capacity to work, and in which particular areas?
1.The diabetes mellitus with peripheral neuropathy makes him prone to episodes of hypoglycaemia. In addition, the sensory deficits on both the hands and feet predispose him to injury.
2.The chronic degenerative diseases of the cervical and lumbar spine predispose him to pain. He may also have restrictions with regards to lifting, bending, twisting and having awkward postures.
3.Osteoarthritis of the right ankle decreases mobility and has increased pain associated with it. It limits mobility.
4.     Obstructive sleep apnoea leads to symptoms of fatigue.
3. Apportion the extent each condition limits the capacity for remunerative work.
·     Diabetic mellitus with neuropathy 30%.
·     Chronic degenerative spinal changes 30%.
·     Osteoarthritis of right ankle 20%.
·     Obstructive sleep apnoea 10%.
·     Other conditions 10%.
4. If a limitation exists, describe how each condition limits the capacity for remunerative work to less than 20 hours per week on aggregate?
[The Veteran] is predominantly limited in his mobility. The end stages or the effects of the diabetes mellitus on his nerves have resulted in him having decreased sensation of both his hands and legs. This predisposes him to injury due to lack of sensation. In addition, the weakness of the right ankle potentially predisposes him to trips and falls.
5. Do these conditions alone limit the capacity for remunerative work for less than 20 hours per week on aggregate?
Yes.
6. Do these conditions alone limit the capacity for remunerative work for less than 8 hours per week on aggregate?
Yes.
7. Is the incapacity temporary or permanent?
Permanent.
8. If temporary, when is it likely to improve?
Not applicable.
9. Is the situation likely to improve with treatment or rehabilitation?
To a certain degree there may be some improvement with treatment or rehabilitation. This is particularly true to the pain symptoms of the lower back which may be addressed by a nerve stimulator implanting. However overall [the Veteran’s] functioning would remain fairly similar due to the number of conditions and complexity thereof.

Dr Seevnarain gave evidence at the Hearing by telephone under affirmation.[41] In response to questions asked by the Respondent, Dr Seevnarain:[42]
[41]    Transcript, 22 June 2022, page 36.
[42]    Transcript, 22 June 2022, pages 36-41.
·When asked about the scars on the Veteran’s hands discussed his examination and the difference between the scars for carpal tunnel and trigger fingers. Said that the strength of the Veteran’s left hand itself was not the issue it was the fine like or pinch grip use of his fingers that he thought were weaker.
·Said that the Veteran had reported to him that he could no longer write.
·When asked if whether the following sentence in his report related to ongoing loss of function:[43]
[43]    Transcript, 22 June 2022, page 38.
He has not noticed any obvious weakness of the left hand, but more loss of function due to the trigger fingers he had diagnosed.
Said:
Yes. And essentially it was – so what I was trying to perhaps get across there was that because of the trigger fingers, he felt as though his fingers (indistinct) were not giving him adequate function. But the strength of his hand itself – so if I could liken it to the difference between a power grip and a pinch grip. So a power grip would be where you use your whole hand with the wrist being the more prominent part of connecting, you know, or holding it. So imagine you’re holding a can of (indistinct). So that would be sustained in that – you know, that would be more sustainable for him. Whereas if he was to do something fine like a pinch grip, because of his surgeries or because of the trigger fingers in his hands, he felt that that was weaker.
·Said he did not have evidence of pancreatitis being noted in the Veteran’s material or at examination, however that it may have occurred after this assessment.
·When asked if the Veteran’s bladder cancer raised any issues in terms of the ultimate question of capacity for work, said he had not mentioned it in that regard and provided it was not giving him any obstructive symptoms, or it was not impacting on his renal function or anything like that, then it would not have changed his opinion.
·When asked to explain his response to question 1 (as set out above) and to comment on whether the other conditions would play a contributory role in limiting the Veteran’s capacity for work, said:[44]
[44]    Transcript, 22 June 2022, pages 39-40.
Yes and no. You know, to elaborate on that answer, it requires – you know, like a mood disorder. If it was an acute or – and obviously I’m not a psychiatrist, so it’s outside of my area of expertise – but like a mood disorder, if there were any particular ongoing or chronic issues or even an acute major depressive episode, it would affect his ability to undertake his work. With regards to the diverticular disease, diverticular disease is typically associated with bowel abnormality or change in bowel patterns. If it is significant, you know, that may have impacted on some of his ability to work in the short term. Again, even with the mood disorder, it can be treated. So, it’s not a longstanding – unless of course it’s a chronic, persistent mood major depressive disorder or something like that. So I would say based on my evaluation of him at the time, I didn’t think that there was anything that could have, you know, added to the degree of incapacity. However, there is the potential for it. And you know, I’d require – I suppose you’d require more information such as a psychiatric review, as well as more information about the severity of the diverticular disease and stuff like that.
·When asked if the Veteran’s increased body mass index would contribute to his incapacity or would limit his ability for work options, said:
o   That in relation to the voluntary services he was providing at the time, it would have no impact.
o   That in relation to bus driving, it may have an impact together with sleep apnoea if he had symptoms which would impact on his inability to drive.
o   That in relation to a role as a janitor, that obesity in isolation would not prevent him from doing the role.
·Said if the Veteran was driving a bus for an hour and a half in the morning and again in the afternoon, he did not believe his obesity in isolation would cause any specific problem.
·Said that if the Veteran was driving the bus for longer periods, that the obesity by itself would not have been an indicative factor and drew an analogy to obese truck drivers who make long distance journeys essentially unencumbered or without any deficit. If his weight was coupled with sleep apnoea and the Veteran was driving a bus for eight hours, 5 days a week then he would probably be at an increased risk of more significant fatigue.
In response to questions asked by the Tribunal, Dr Seevnarain:[45]
[45]    Transcript, 22 June 2022, pages 41-46.
·Clarified his evidence set out above in relation to his response to question 1 in his report regarding the other conditions stating:[46]
[46]    Transcript, 22 June 2022, page 42.
Yes, I think my response to the question raised was, you know, did I believe that any of those conditions could impact on his capacity to perform work? And I said, well it depends on the severity of what those conditions, what those symptoms associated with those conditions were. And you know, based on that there could be the potential in the future for those conditions to have an impact on his capacity for working. However, based on my assessment which was cross-sectional in nature at the time, I thought that they didn’t.
·When asked to expand why if that was his opinion, that in his response to question 3 in his report (as set out above), he apportioned the extent that the Veteran’s other conditions limited his capacity for remunerative work as 10%, said:[47]
[47]    Transcript, 22 June 2022, pages 42-43.
Yes, so – yes, I’ve put 10 per cent for other conditions. But yes, I think I must apologise. There were some conditions that maybe were not in – like the bladder cancer. I see also not included in carpel tunnel syndrome or trigger finger, you know, in that other discussion. I’ve also said that there was major depressive disorder with possible dysthymia and anxiety. So that’s why I thought that, you know, it might have been – there might have been some symptomatology in those other conditions. So, and I stand – I’d qualify that with the statement that in addition to the above conditions, which may add to his limited capacity but does not prevent him from working. So, I thought that they added to some degree of incapacity but were not the sole cause of him not being able to perform his duties. I hope that makes sense.
…
… – if I may use an example?
… So, let’s just say you have a piano player, and a piano player has an amputation of his index finger. He probably wouldn’t be able to work again as a piano player, and you know, he wouldn’t have functionality as a piano player. But he could work as a janitor or a bus driver quite easily. So, you know, there is a decreased – so there is an anatomical incapacity, an impairment, that you – but it might not translate into a functional restriction or a functional deficit.
·In the context of whether other conditions outside of the four listed would impact the Veteran’s work capacity, said that if he revisited his answer in relation to the types of work the Veteran could undertake:[48]
[48]    Transcript, 22 June 2022, page 44.
I would say he would have some difficulty in performing tasks like the clerical administrator work, noting that he’d be involved in high motor movement like typing or writing or similar. But then he would be able to do tasks like the voluntary work or the bus driving or the work he has as a school custodian.
·Confirmed that his evidence was that when it came to the kinds of work that the Veteran could do, being his voluntary work, bus driving or janitor roles at the school, that outside of the four conditions he listed at his response to question 1 in his report, that none of the other mentioned conditions would have contributed to or prevented him from doing those three jobs.
·Said that based on his evidence that his answer to question 3 in this report as far as it related to 10% being attributed to other conditions was incorrect.
·Said that in relation to the Veteran’s voluntary work at CTC said that he thought that it may have been inappropriate. He provided the following explanation:[49]
[49]    Transcript, 22 June 2022, page 45.
And I’ll explain. So, the first one was that the diabetes mellitus with the peripheral neuropathy; I thought that the diabetes made him prone to episodes of hypoglycaemia or would have made him prone to episodes of hypoglycaemia, depending on how well his condition was managed and how compliant he was with treatment. So, you know, if he was looking after youths and then subsequently had a hypoglycemics attack, it might not – you know, it wouldn’t be safe for him or the youths. I also indicated that he had the peripheral neuropathy of both his lower feet. So, I thought that, you know, if he was chasing youths or engaging in similar types of activities where he could stub his toe or develop a secondary infection or something like that, then that would be – that would predispose him to further conditions. He was also thought as having restriction or restrictions with lifting, bending, twisting and having awkward postures. Depending on what types of tasks, if he had to assist some of these youths, that may have been possible. Decreased mobility again, you know, especially when dealing with youths. And the sleep apnoea, this is a little bit borderline I would say, noting that the times he worked was from 5.30 until I think it was 8 am. If he was required to have stayed awake through that time, then definitely it would have affected him. If he needed to respond to any type of emergency through that time, then it may have affected him. But if he was, you know, as he described it, if he was given the bed and he was allowed to sleep through that time then it may not have been such a big factor in that role.
Respondent: Yes, thank you. You’ve mentioned in terms of the lower feet the peripheral neuropathy scenario of – was that chasing youths?
Dr: Yes, chasing youths or - - -
Respondent: And also, your example of lifting, bending, twisting, posture. Is that in terms of having to actively control or restrain youths?
Dr: Yes, yes. Or assist them with tasks like bending – you know, anything that would involve him bending or – you know, I – yes.
Respondent: Okay. Yes, look, it’s probably asking too much of him to physically restrain or challenge youths. But if that wasn’t his role, what significance would your opinion have that he wasn’t actively involved in controlling or restraining the physical aspect? Would that be an impediment? So, if not having to do those duties?
Dr: ---Yes. He would still be restricted in terms of the – so the restrictions of lifting, bending, twisting and holding awkward postures would still remain. I would need to see a task analysis or a job description of what exactly that role would be to be able to fully answer your question as in what, you know – what exactly, how it would have exactly impacted on that role.
·Said that in his view the Veteran’s four outlined conditions alone limited his capacity for remunerative work for an aggregate of less than 20 hours a week or an aggregate of 8 hours a week.
·Said that he did not think it was appropriate for the Veteran to be doing the volunteer work.
·Said:[50]
I didn’t, you know, I didn’t think it was completely appropriate to be doing that task. But I do note in the report, I think my – ‘in this role he is given accommodation and meals’. So, I thought that that was more, you know, a social factor or, you know, that might have had him continue with that role.
·Confirmed that the report that was discussed was his report of 22 October 2019.
[50]    Transcript, 22 June 2022, page 46.
VETERAN’S SUBMISSIONS AND EVIDENCE
On 8 September 2021, the Veteran provided a response to the Respondent’s Statement of Facts, Issues and Contentions filed on 30 July 2021.[51] Relevantly the Veteran submitted:[52]
Facts 2.2 - Volunteered for the live-in (adult presence and supervisory) position with the at-risk Homeless Hostel operated by CTC in Kingaroy QLD (which is a not-for-profit organization). This position enabled me to maintain a relatively stable mental health perspective along with not being left alone in case of medical issues, if anything untoward occurred at the hostel I just called for the necessary assistance to deal with the situation. I was also totally unaware of the remunerative activity provision until just recently being advised by the respondent.
…
The answer is "no", I have not undertaken any remunerative work since the grant of the disability support pension from Centrelink. I personally could not find on the DVA website a definition of "remunerative activity".
…
5.1and 5.3 - If I read correctly Dr Kalesh answered the questions posed to him in a positive manner. The presumption is made that Ameliorating Provisions could possibly also be applied given that I was actively seeking work (contrary to one determination appeal - VRB18/0334 heard on 01 Apr 2019 which contained the following - "It is said that he had been seeking actively work but there is no evidence before the Board of what efforts were made and what if any job recruitment people he enlisted." the evidence provided was that I complied with Centrelink provisions).   And if those are correct is not section 24(1)(c) met.
5.4 - There are errors (major I consider) contained in the History section of Dr Kalesh's report. It was in Oct 2012 that I returned to Australia where I immediately applied for and fully complied with Centrelink requirements until being granted the Disability Support Pension in late 2013.
The 2009 section that Dr Kalesh referred to was also wrong in that was when I returned to Australia for approx four months (Oct to Feb 2008/2009) to my family due to a serious accident and upon my return to the US was when I took up the role of relief school custodian/bus driver and this led to a
"permanent" bus driver the hours of which were two hours twice per day (am & pm) during the school year.
[51]    Exhibit 7, Veteran’s submission in reply to the Respondent’s Statement of Facts, Issues and Contentions.
[52]    Exhibit 7, Veteran’s submission in reply to the Respondent’s Statement of Facts, Issues and Contentions.
At the Hearing, the Veteran gave evidence under affirmation.[53] The Tribunal found the Veteran to be a creditable witness, he was open, honest and frank in response to the questions put to him.
[53] Transcript, 22 June 2022, page 10 and Transcript, 1 March 2023, page 61.
At the Hearing the Veteran told the Tribunal:[54]
[54] Transcript, 22 June 2022, pages 22-24.
·He was doing volunteer work for a not-for-profit organisation and was not earning anything.
·That:[55]
“All I was being provided with was, in my capacity as a supervisory role – and that involved – basically what that involved was if something went wrong, I called the duty officer and said you need to get your butt here. I didn’t get involved in anything other than doing that. Going through and showing basic clients – because we were talking about clients that were at risk of being homeless. And some of those kids didn’t even know how to shower. We actually had to show them – well I didn’t, the full-time staff had to actually show them how to shower, what they had to do. So, in that context, of course, I had to supervise any form of cooking or bed making or, no, this is the wrong way of doing it, we need to tuck that in down there, and this, that and the other. So that was basically that part.”
·He thinks the test that was done in 2018 for fatty liver related to an episode of pancreatitis where he was medevacked out of Kingaroy down to Toowoomba General Hospital.
·When he returned to Australia in 2008 it was at the request of his brother. He came over in the October and returned to the US in February 2009. He had to resign from his full-time position with Chaddock because he did not know how long he would be gone for.
·Chaddock was a live-in facility for neglected, abused, wayward kids. In his capacity he worked as an overnight attendant which meant he did bed checks and supervised their nightly activities.
·When he returned to the US in February 2009, he tried to return to work with Chaddock but was unable to, so he went back to assisting his wife with her day-care and then an opportunity came up for him to work at the school as a custodian. In that role he was sweeping the floors, emptying wastepaper bins and the like. They said they could work within his abilities.
·That lead to the school bus driving, work which consisted of an hour and half each school day in the morning and afternoon, they were the hours even when he was just filling in and when he was permanent.
[55] Transcript, 22 June 2022, page 23.
In response to questions asked by the Tribunal, the Veteran:[56]
[56]    Transcript, 22 June 2022, pages 24-32 and 48-50.
·Said that in his role with CTC he did not get involved in any of the incidents, he just called a manager and told them to get there.
·When asked if he was required to be awake, walking around and checking on the residents between 5 pm and 8 am, said no, if there was something that required emergency services to be called, he called them first and then the on-call person, the duty officer. Come 10 pm at night, the doors were locked, the alarm was turned on and that was really his only duty per say, to turn the alarm on and make sure the switch was switched.
·Confirmed that from 10 pm everyone had to be back inside the facility and were effectively not allowed to leave.
·Said that nothing else was required of him other than locking the door, turning the alarm on and if a situation occurred that was brought to his attention escalate it.
·Said that an incident would come to his attention because someone would bang on the door or wall, he would hear the commotion, or someone would go out the door and the alarm would go off.
·When referred to the reference of him showing the young people how to cut up a carrot or other kitchen skills, said that was not part of his role, it was just him helping them to know what to do, some of the people could not even boil water.
·Said that the 50 hours a week referred to by CTC would have been worked out by going across the evenings.
·Said at CTC he had a bedroom, bathroom and living room that basically consisted of a TV, a couch and a desk with the computer and camera system on it, the kitchen and laundry was shared with everyone. The food was shared with everyone, he ate what the residents ate.
·Said that food was prepared by the residents who were supervised by the staff. It was done on a roster basis.
·When asked if other than the night-time period whether there were paid staff members that were responsible for looking after the residents, said:[57]
[57]    Transcript, 22 June 2022, page 26.
Not at the hostel per se. There was always paid staff located down in the family services area, and when they had activities like cleaning activities or physical training activities, that sort of thing, that’s when the page staff would be there at the hostel.
·When asked about who did the shopping and helped the residents with their meal preparation and whether there was a team of volunteers, said:[58]
[58]    Transcript, 22 June 2022, page 27.
At times there was. At other times I assisted them and said, okay, this is what you guys said you were going to cook for dinner tonight. Here’s the copy of the menu plan that you chose. This is what you need to lay out first to get done first. And I’d just guide them in that sort of thing. Food purchasing was done either by purchase order or by credit card. I used to go every day to – the local mall was just around the corner from the hostel. So, I used to go around there and walk around that every day with my – I’d take a shopping trolley, and that became my exercise every day, was to walk around the mall and walk into Woolies and walk every aisle in Woolies. And if there was stuff that required to be picked up, I would pick it up and then call for one of the staff to come down, pick us up and take us back to the hostel.
·Confirmed that during his time at CTC he was receiving the DSP from Centrelink and that he told them his room and board were part of him living at the hostel.
·Said that he was not aware that his arrangements affected the amount of DSP he received.
·Said that up until he was on the DSP, he was still doing everything that was required of him from Centrelink as far as job search went.
·Said he still has his drivers licence and that he has to stop every so often now when he drives, he is more comfortable on his motorbike because he can move around more often and sit in different positions.
·Said he can drive, he just needs regular breaks.
·When asked what he would say his loss was from having to cease work, said:[59]
[59]    Transcript, 22 June 2022, page 28.
I suppose that hinges on what is determined to be my main employment would be. Do I consider my main employment as being an administrator, or do I consider my main employment as being a custodian or school bus driver? Neither of those were what I would consider – you know, the latter were not substantive by any means. Or was it the amount that I got paid when I was working at Chaddock? Because when I returned back to Australia in 2012, I actively sought work from then on. And it was only for a very brief period that I got some part-time work with the Oakey RSL. And that had to cease due to difficulties walking and holding things. And in the interests of public safety, it was agreed between the two of us that I should resign from that position.
·Said when he worked at Chaddock, he was earning approximately $20 an hour for 40 hours and when he was driving the school bus, he was earning somewhere around $12 to $15 per hour.
·Said that the basic wage in the US is abysmal.
·Said he was paid award wages at the RSL in 2012, but he only did three or four shifts over a month or two-month period.
·When asked if he had any idea what rent would have been at the time he was at CTC for accommodation with one bedroom and one bathroom in Kingaroy, said he was not aware if that kind of accommodation was even available, he said that the RSL use to have units, he was not sure what the cost was but he would guess they would have been around $250 a week plus utilities.
·Said that being at CTC was helpful for him, it helped his mental health and kept him busy.
·Said that being at CTC saved his life at least three times, if it had not been for the other staff on hand, they may have found him gone.
·Said there was the pancreatitis thing, then another issue where he had completely passed out on the floor and was knocked unconscious when he fell, because he was really sick and another episode where his blood sugars had gone so low that he passed out and if someone had not seen him, he would have been in a diabetic coma.
·Said he had not reapplied to DVA for acceptance of his adjustment disorder with anxiety and depressed mood since 2019 as his advocate told him there was no point because he had been granted a gold card.
·Said that as part of his pain management treatment he has seen a physical therapist and psychiatrist.
·When asked how his depression was affecting him, said that some days were fine, other days he just wants to throw his hands up in the air, he loses his temper at himself and tends not to interact with others.
·
When asked how his depression was now as compared to when he saw

Dr Barkla and Dr DeLacey, said he saw Dr Barkla before he saw Dr DeLacey, but around the same time and Dr DeLacey seemed to think it was worse and after that he was seeing Professor Lawford at the Keith Payne Unit.
·When asked if he thought that his depression would affect the way that he would be able to do a job, said that he could not drive kids to school anymore because he becomes angry and agitated very easily over small things.
·When asked if he thought he would still be able to do his volunteer work at CTC, said:[60]
[60]    Transcript, 22 June 2022, page 32.
The things I did there, I was pretty much left to my own devices as far as being able to isolate myself. Because when I was inside my little section, my door into that area always had to remain locked. It could never be unlocked. It was basically one of the safe rooms in the house, and it was that way for a reason because some of the clients were unsafe. But also, because it was a mixed clientele in there, it stopped he did, she did, they did – you know, those sorts of accusations. So yes, but – so in that regard, if something was going on, I could seclude myself away. I could sit down, I could lay down, I could - and during the day, that wasn’t an issue because I could isolate myself during the day. And if things got really bad, I would get on my bike, and I’d go round to my mate’s place who also suffered from PTSD and the like. He was part of the RSL. And I’d talk to him, and vice versa. He’d talk to me, so.
·Said that in relation to CTC they made a great deal of adjustments to allow him to work or be there in relation to his abilities and disabilities.
·When asked why he left CTC, said that he left to go back to the US to be with his wife, they got married in 2018, however because of COVID-19 and everything else it was not until September 2020 that he was able to leave the country and return to the US.
·Said that when he returned to the US he did not try and get work as he was still on the DSP and he is now on the age pension, that gets paid through DVA.
·When asked if he saw being at CTC as a job said:[61]
It was a mental lifesaver as a start. I didn’t so much see it as a job as – how can I put that? More so a giving back if that makes sense. I felt like even though I was receiving something that benefitted me, I was also giving something that benefited the clientele. And that was – but I did not see it as a job. You know, I often referred to it - people would say to me, what do you do? I would say I work at CTC. It was a lot easier just to say I work at CTC rather than go through the whole story, so.
·When asked what the main difference was between what he did at CTC and what he did at Chaddocks, said that the big difference was he worked the night shift and did bed checks and that sort of thing, but at CTC he did not do bed checks. At Chaddocks he did not prepare food but did light household cleaning. At Chaddock he had to take notes, record how someone was sleeping or whether they were upset over something or issue, they used to have to knock on their door to come out to use the bathroom, whereas at CTC they were supposed to be adults and able to do that all by themselves.
·Clarified his evidence in the following exchange:[62]
MEMBER: Yes, yes. Yes. Okay, all right. So now, I think I understand. So, at Chaddock, it was – you were responsible for all of that and what went on in your shift and making sure that they were safe. Whereas if I’m understanding it, at CTC effectively once you’d locked that door and put on the alarm, you then went back to your area of which you said was always locked. And it was only then if you were needed to do something that you would do it. Otherwise, the resident just did what they pleased. Is that right?
WITNESS: Yes, yes. Yes, correct. Pretty much. So, we had a camera system in the hostel. And if I heard a strange noise – if I heard it – I could get up, I could go back, I could check the camera and say that boy’s sneaking up into the girls end of the building. What’s he doing up there? Or that, you know, that sort of thing. Or why’s that person out in the kitchen? He’s not supposed to be out in the kitchen after 9.30 at night, you know? So, they had rules imposed on them, and I basically noted if there was any sort of breach of those types of things. Not that they occurred very often, but sometimes those occurrences occurred, like any other workplace. Or I shouldn’t say workplace. There I go using that term again.
·Confirmed that he was not expected to sit and watch the camera all night.
[61]    Transcript, 22 June 2022, page 49.
[62]    Transcript, 22 June 2022, page 50.

On cross-examination, the Veteran:[63]
·Confirmed that he had been attending at a psychiatrist as part of his heath treatment plan.
·Said that since he had been back in the US, he has been back to see the psychiatrist every three months since October 2020.
·When asked if the doctor had raised a diagnosis with him, he said he did not think so, other than PTSD which was in his US file, but to be sure he would have to review the file.
·Said that the only medication he is taking from the psychiatrist is Bupropion which is Zyban.
·Confirmed he is left-handed.
[63] Transcript, 22 June 2022, pages 33-35.
By email dated 30 September 2022, the Veteran submitted that up until approximately mid-2017 he was not the only ’supervisor’ at CTC, there were two. He also clarified that he did not walk around and check on clients, any checking on them would have been via the cameras when required to do so because of a strange noise or the like.[64]
[64] Exhibit 22, Veteran’s email of 30 September 2022.
At the resumed Hearing, the Veteran, again under affirmation, in response to questions asked by the Tribunal:[65]
[65]    Transcript, 1 March 2023, pages 63-75.
·In relation to the use of his fingers and what limitation his trigger fingers cause, said:
o   That he can still drive however constantly changes hands.
o   It is his fingers and carpal tunnel combined that impact.
o   He has difficulty writing, some days his writing is clear and neat looking and other times it is not.
o   He can type a document and send an email, but his hands and fingers do go numb, this started after his diabetes and progressed from there.
o   When he was driving the school bus the good thing was that it was only a couple of hours driving and he was constantly stopping, which together with the big steering wheel helped.
o   He was experiencing the same level of impairment from his fingers and hands back while he was driving the bus and it has not really changed.
·Confirmed that when he returned to Australia in 2012, he engaged straight away with Newstart Allowance and the associated participation requirements through Centrelink which required him to look for work.
·Said he was steered towards the job at the RSL by his job provider and he was not fired from the RSL, they came to a mutual agreement for him to leave because it was not in their best interest or his for him to continue in the role and carry glasses and things like that. This was because his back, legs and hands would give out.
·Confirmed that he was granted the DSP later in 2013, perhaps in October.
·Confirmed he started at CTC in April 2013 and that at that time he was still engaging with his job provider and had two or three interviews after that time.
·Confirmed that Centrelink were aware that his residential address was CTC and that he was living there as a volunteer, was not paying rent and was provided with food.
·Said Centrelink was only a block away from the hostel, so they knew where it was and that he lived there.
·Confirmed that Centrelink were aware of his arrangements with CTC from when he moved in there, so they were aware whilst his claim for the DSP was being assessed.
·Said that when he was receiving the DSP, he was also receiving DVA and DFRDB payments that affected the rate of the DSP he received.
·When asked how he ended up at CTC, said:
oHe thinks that there was a flyer floating around on the table at the job provider office and he thought that if all he had to do was just be an adult present, he was not working so he could do that.
oSo that is why he moved from Toowoomba to Kingaroy.
oHe went for an interview to meet CTC and check the place out.
·When asked about the arrangements at CTC as they had indicated in response to a request for information that he worked 50 hours a week, confirmed that he thinks that they said that because he was the adult present from 5pm to 8.30 am, but that he was not the only adult there.
·Said that other adult volunteers were there for the full night as well unless they took the night off.
·Said that when he was there, he was the only one with access to the security system set up, however if he went out to the movies or was not there the other person stayed over and had access to the room and to the cameras.
·Said he was the person responsible for locking the door at 10 pm and that the switch was above the cameras, so it was just a matter of flicking the switch to lock the door.
·Said the front door was always locked, the switch locked the back door which had the alarm on it. So, by flicking the switch if someone came in that door the alarm would go off, he would see who it was and if it was someone the police had to be called about, the police were called, and/or the duty officer was called and that was the end of his involvement.
·Said he was not required to sit and watch the screen all night.
·Said he would not have been able to stay up all that time and watch the screen anyway.
·When asked if he was responsible for flicking the switch for the security system 7 days a week, said, other people could do it, they had a key to come into his area.
·Said he really did not have a private room at all, the bathroom connected to his room was used by the full-time staff, it was secure from the residents but not from the other volunteers or staff.
·Said that while anyone could turn the alarm on, he generally did it if he was there, 10 pm was usually when he headed to bed or laid down on the couch.
·Said that it was the full-time staff’s role to supervise and help the residents cook and clean up and that he and the other volunteer might if they were there, remind them to do things or provide guidance.
·Said that the staff were there every night between 4 pm and 6 pm for dinner and preparation.
·When asked if providing guidance to the residents was something expected from him and the other volunteers, said no they did it because they were there and wanted to, they did not have to.
·Said ’we didn’t have to do anything other than call for assistance’.
·When asked what CTC expected from him in return for providing him with board and meals, said:[66]
[66]    Transcript, 1 March 2023, page 69.
Just the expectation was, you know, that I would keep the clients safe both from internal and external issues. So that, like, you know, if we had a fire, make sure the building was evacuated. If we had somebody pounding on the front door wanting to get in that shouldn’t be in, calling the police to come and deal with the matter. They would be what I would consider to be expectations. Other things were just normal – you know, somebody would arrive at 2 pm in the afternoon, be brought up by one of the staff members from the youth services, and just how them around the building, show them where their room was, show them where the shower room was, that sort of thing. But that was only because I was there. It wasn’t – I didn’t have to do that.
·When asked about what the expectations were in relation to his previous evidence about doing shopping, said that he was going to the Kingaroy Mall to get some exercise and would pick up some things while he was there and that sometime, one, two or a group would go and he would try and point out practical things like checking prices. The full-time staff were responsible for the shopping so if he did not go to the shops, it would not matter because they would have done it.
·Said he did not know where CTC came up with him doing 50 hours of volunteering a week, unless they were thinking about the time that he was supposed to be present.
·Said the paid staff came back to the hostel around 8 am each morning, unless something was going on and they might come in anytime from 7 am.
·Said that he did not think he engaged in more than an hour a day of doing things other than being present.
·Confirmed his earlier evidence, that being at CTC, being around young people and people was good for his health and mental health.
·When asked what he did during his days when he lived at the CTC, said that on nice days he would go for a ride on his motorbike, he belonged to the Ulysses Club and they sometimes had breakfast, pottered around, had started a veggie garden and sometimes he would take part in exercise classes.
·When asked if when he moved into CTC if there was a contract or paperwork, said that there was a book of instructions, and he thinks he signed something to do with confidentiality. Said that other than that it was just here is a list of things that need to happen when something goes wrong, it was all just common sense, it was not rocket science for him.
·When asked what happened when he decided he was leaving CTC, said he had given them two years notice, they had to advertise for a new volunteer, which is also what they did when he had previously gone on vacation.
·Said he had previously gone away for eight weeks to go back to the States each year they would get a new volunteer, or the staff would take turns covering.
·When asked what happened with his things when he went on holidays, said that he did not have that much stuff in the room, most was still in the garage packed up, what he had was mostly his clothes and toiletries that he would take with him.
·Said that it was not really his room, the other volunteer and staff would stay in the room while he was gone.
·He married his wife in the States in 2018 and she was meant to come out to the hostel and finish her vacation and then they were going back to the States, however COVID hit and that did not happen.
·There was up until the last three years always another volunteer on overnight with him.
RESPONDENT’S SUBMISSIONS
Prior to the first day of Hearing in this matter it was unclear on what basis the Respondent was contending that the Veteran was not entitled to be paid the pension at the Intermediate or Special Rate.
In the Respondent’s filed Statement of Facts and Contentions filed on 30 July 2021, it contended:[67]
(a)that the Veteran did not satisfy section 24(1)(b) of the Act;
(b)that remunerative work is defined in section 5Q of the Act to include any remunerative activity and the Veteran receives accommodation and meals in exchange for performing a supervisory role at his residential address;
(c)that the Veteran did not satisfy section 24(1)(c) of the Act as he suffers incapacity from non-accepted disabilities;
(d)it relies on the report of Dr Seevnarain dated 22 October 2019;
(e)it relies on the documents lodged in respect of a claim for the DSP disclosing diagnoses which impact on the Veteran’s capacity for work or study as including obstructive sleep apnoea and adjustment disorder with depressed mood;
(f)that the Veteran had not ceased his remunerative work due to war-caused injury or war-caused disease alone; and
(g)that the Veteran had not suffered a loss of income or wages as a result of incapacity from war-caused injury or war-caused disease alone.
[67] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, pages 2-5, paragraphs 5.1-5.6.
The Respondent further provided a list of cases it relied upon with no analysis.[68]
[68] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, pages 5-6, paragraph 8.1.
On the first day of the Hearing, it was evident that the Respondent’s advocate had not fully engaged with the evidence before the Tribunal and was not able to make clear submissions in relation to the Veteran’s application for an increase in his rate of pension. This in conjunction with further evidence that was presented at the Hearing resulted in a need to seek written submissions from the Respondent and for the Hearing to be adjourned to a later date.
At the first day of the Hearing, the Respondent:[69]
[69]    Transcript, 22 June 2022, pages 12-15 and 50-57.
·agreed that the Veteran met sections 24(1)(aa), 24(1)(aab) and 24(1)(a)(i) of the Act;
·in response to being asked why it contends that the Veteran did not meet section 24(1)(b) of the Act:
o   Made references to the Veteran’s hands and previous surgery and stated that they intended to go through those with Dr Seevnarain.
o   Made references to the Veteran having suffered from oesophageal varices that can be an indicator for liver disease and stated that they wanted to go through that with Dr Seevnarain.
o   Referred to the Veteran having been treated for obesity in 2015 with the doctor exploring the contribution of that to back pain and any benefit that weight loss would have to management of his blood sugar levels and said Dr Seevnarain had commented on the difficulty the Veteran had dressing and undressing during the examination.
o   Referred to the Veteran’s current bladder tumour.
o   Referred to concerns of an examining doctor in the US of the Veteran’s multiple narcotic drug use to manage his pain and they intended to take that point up with the Veteran.
o   Confirmed that those were the only unaccepted conditions coming out of the medical records that it was attributing to why it contends that the Veteran did not meet section 24(1)(b) of the Act.
o
Was unable to clarify its position in relation to the Veteran’s mental health condition and said it would rely on the opinion of

Dr Seevnarain.
o   Was unable to explain its contentions with regards to date of effect set out in the filed Statement of Facts, Issues and Contentions.
o   Sought to provide written submissions once the transcript had been received and further instructions had been sought.
On 25 July 2022, the Respondent filed Submissions on Special Rate.[70] The Respondent outlined its submissions as follows:[71]
[70]    Exhibit 21, Respondent’s Submission on Special Rate.
[71]    Exhibit 21, Respondent’s Submissions on Special Rate, pages 34-36, paragraphs 52-70.
SUBMISSIONS
52.The Respondent submits the Applicant was engaged in remunerative work at CTC within the meaning of the Act. The Respondent relies on the case law and tribunal decisions outlined above.
53.The oral evidence of Dr Seevnarain at hearing.
54.The Applicant, on residing in Kingaroy from 2013 to 2020 took up a voluntary position at a CTC hostel for minors, the position was unpaid but as a live-in supervisor was provided accommodation within the hostel, utilities and food. The Applicant has provided an estimate of equivalent rental accommodation.   The hostel also had the services of paid staff during the day hours. The Respondent understands it is a statutory requirement for adult supervision of minors.
55.The Respondent relies on similar cases determined by Tribunals to submits the Applicant’s activities at the hostel and the amount and period of the benefit satisfies the definition of remunerative work under the Act.
56.The Applicant ceased his remunerative work at CTC on 28 September 2020 (exhibit 15). The Applicant was engaged in remunerative work for 50 hours per week on the basis of the employer statement. In evidence the Applicant stated he worked a roster from 5:00pm to 8:30am. The Applicant duties included assisting in meal preparation (dinner) and supervised until 10:00pm where upon he would secure the doors and alarm of the hostel. The Applicant undertook grocery selection and purchasing on a daily basis. This would be over a 7 day cycle. Otherwise, he would note any disturbance occurring during the night. It is reasonable to find the Applicant was working for more than 20 hours per week, either, on a 5 or 7 day week.
57.The Applicant in evidence described his attendance at the hostel was of emotional, mental and health aspects. The Applicant gained some satisfaction from interacting with the clients and benefitted when he had treatable but urgent health needs. It is clear from his evidence the Applicant enjoyed this work. The Applicant ceased this remunerative work in September 2020 for personal and private reasons.
58.The Respondent submits the accommodation benefit represents substantial financial assistance to the quality of living enjoyed by the Applicant whilst he was undertaking that activity per Ridyard.
59.The Respondent submits the medical opinion of Dr Seevnrain, whilst not supporting the CTC activity, was directed to the Applicant’s evidence with respect his interactions with clients as not being to restrain or confront. Dr Seevnarain reflected he would need to perform an occupational assessment of the workplace. The Respondent submits this admission diminishes the weight of this findings.
60.The Respondent notes the work previously undertaken as clerical/administrative with a freight depot, overnight youth worker at Chaddock, school custodian, overnight part time bus driver.
61.The Respondent notes the ongoing incapacity from the non accepted trigger fingers both hands affecting fine motor and finger grip strength. Dr Seevnarain advises that clerical/administration work involving dexterity such as writing or typing would preclude or contribute to preventing these work activities.
62.The Applicant’s school bus driving work hours were limited to 15 hours per week. Dr Seevnarain supports incapacity for this work.
63.The Respondent submits the work previously undertaken in the US has not been performed since 2009, the Applicant would not be competitive in those occupations taking into account the time since so employed and his age in 2018. Noting the difficulty in obtaining, in the first instance, part-time work as a custodian at QUINCY YMCA in 2002/03 and overnight youth worker and school bus driver (roster relief role) at Chaddock 2004 and subsequently full time work until 2008. On his return in 2009, the Applicant was not offered the overnight work at Chaddock but offered custodian (janitor duties) on a part-time basis. On the Applicant’s own assessment, only the overnight work at Chaddock would be substantial. The Respondent submits the RSL work undertaken in 2012 for 2-3 shifts over 2 months would not be substantial work per Banovich.
64.The Respondent submits there is no evidence of the Applicant seeking work in the US. As an Australian married to a US citizen he would be granted work and residence status under the Green card system.
65.The Respondent notes the Applicant applied for and was granted a licence extension to operate a heavy rigid (HR) vehicle by the Bunya Pines Medical Practice prior to leaving Australia.
66.It is open to the Tribunal to find the Applicant does not satisfy, either, sections 23(1)(b) or 24 (1)(b) of the Act. The respondent notes the findings in Jebb.
67.The Respondent submits the Applicant does not satisfy section 24(1)(c), he is not prevented 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.
68.The Respondent submits the substantial work pursuant section 23(1)(c) and 24(1)(c) is administrative, bus driving (part time), school custodian (janitor) and hostel youth supervisor.
69.The respondent submits that there is reasonable medical opinion advising that the Applicant suffers reduced dexterity of both hands due to multiple surgeries to his hands for (release of) trigger fingers on both hands. The condition results in difficulty with finger grip and especially, to the left hand, reduced capacity for writing and manipulation. The medical opinion is that this incapacity would contribute to preventing the Applicant from undertaking administrative or clerical work.
70.Should the tribunal find for the applicant, either intermediate rate (school bus driver) pursuant section 23 or special rate pursuant section 24, the earliest date of effect is 27 October 2018 being the date of acceptance of obstructive sleep apnoea (Exhibit 18) and all relevant conditions outlined by Dr Seevnarain at question 1 of his report (Exhibit 4).

Federal Court authority has established that remunerative work referred to in section 24(1)(c) of the Act means substantive work that the veteran has undertaken.[89]
[89] Repatriation Commission v Van Heteren [2003] FCA 888, Repatriation Commission v Graham [2004] FCA 1287, Repatriation Commission v Butcher (2007) 94 ALD 364, Banovish previously is [1986] FCA 397 and Starvcevich v Repatriation Commission (1987) 18 FCR 221.
Based on the evidence before the Tribunal, as set out above, which was unchallenged, the Veteran has engaged in remunerative work of the type that includes administrative, bus driving (part time), school custodian (janitor) and hostel youth supervisory roles. As such the Tribunal accepts the Respondent’s contention that those roles constitute the substantial remunerative work that the Veteran was undertaking for the purposes of section 24(1)(c) of the Act.
The Tribunal does not consider the Veteran’s work at the RSL to have been effectively undertaken and given its short duration does not form ‘remunerative work that the Veteran was undertaking’.
The Tribunal is reasonably satisfied that the work undertaken by the Veteran at CTC cannot be considered to be substantial work. The Veteran was unable to undertake an aggregate of more than eight hours a week. The value of his remuneration was in turn compensable, as set out in the Tribunal’s findings regarding section 24(1)(b) of the Act above.
Consistently with the Tribunal’s findings in relation to section 24(1)(b) of the Act above, the Tribunal is reasonably satisfied that the Veteran’s incapacity resulting from his service-caused conditions prevented him from undertaking remunerative work he had been undertaking.
The reasons as to why the Veteran ceased work needs to be considered with reference to section 24(2)(a)(i) of the Act. Section 24(2)(a)(i) of the Act prevents a Veteran from satisfying the requirements of section 24(1)(c) of the Act in circumstances where they have ceased to engage in remunerative work for reason other than their incapacity from their service-caused injury or disease.
The concept of ‘prevented from’ continuing to undertake remunerative work was addressed by the Full Federal Court in Repatriation Commission v Richmond[90] (Richmond). The Full Court, firstly, broadly approved the findings on this point by the primary judge:[91]
The learned primary judge held that the expression “alone, prevented from...work” in the first limb of s24(1)(c) excluded from consideration a factor acting as an incentive or influencing a decision by a veteran to voluntarily cease the relevant remunerative work. In her Honour’s view the prevented element of the alone prevented test could only be satisfied by factors which “prohibit, disable or restrain” the veteran from continuing to engage in the remunerative work and not by factors which induce or provide the veteran an incentive to cease that work.
[90] Repatriation Commission v Richmond [2014] FCAFC 124.
[91] Repatriation Commission v Richmond [2014] FCAFC 124 [70].
The Full Federal Court, after rejecting the submissions of the Respondent concluded as follows:[92]
77. The enquiry under the first limb is therefore whether the veteran’s war-caused incapacity alone, prevented, the veteran from continuing to undertake the remunerative work he or she previously engaged in. It is factors that prevent the veteran from engaging in remunerative work that are relevant to the enquiry under the first limb of s 24(1)(c).
78. On a plain English approach to the provision we do not consider that a veteran is ‘prevented from’ engaging in remunerative work by the veteran’s voluntary or elective decision to cease work for a reason other than incapacity. The ordinary meaning of “prevented from” does not include such voluntary or elective choices, and acceptance of the Commission’s argument would mean that ‘prevented from’ includes “chooses not to”. In our view this would give the expression an unjustifiable extended meaning.
[92] Repatriation Commission v Richmond [2014] FCAFC 124 [77]-[78].
The evidence before the Tribunal as provided by the Veteran shows that since discharging from full time service in the Army he had worked in several different roles. The Veteran last undertook full time work between 2002 and 2008 where he worked with Home Depot as an overnight re-stocker and with Chaddock as an overnight Youth Worker undertaking clerical (albeit such duties were limited as set out in the Veteran’s evidence) and custodial duties in residential care facilities. Having returned to Australia for a short time at the end of 2008 when he returned to the US in 2009, he told the Tribunal that he was unable to secure full-time work. The Veteran was subsequently able to secure part-time work as a school custodian and school bus driver as he stated that they worked with his limitations.
The Veteran’s cessation of full-time work or part-time work in the US were on both occasions due to his personal choice to return to Australia, they were not caused by his service-caused incapacity. The Tribunal notes that the Federal Court authorities make it clear that the ordinary meaning of ‘prevented from’ does not include voluntary or elective choices.
As such based on the evidence before it, the Tribunal is reasonably satisfied that the Veteran did not cease remunerative work he was previously engaged in due to his incapacity from his service-caused injury or diseases alone. Rather the Veteran voluntarily ceased that work due to his personal choice to return to Australia.
The Tribunal must also consider whether the Veteran was so prevented from continuing to undertake remunerative work he had been undertaking by virtue of his service-caused conditions alone. Such considerations must be undertaken with reference to section 24(2)(a)(ii) of the Act which prevents a veteran from meeting the requirements of section 24(1)(c) of the Act in circumstances where they are incapacitated or prevented from engaging in remunerative work for some reason other than the incapacity arising from their service-caused injury or disease.
The ‘alone’ test had been the source of conflicting Federal Court authority, until any doubts underlying the proper construction of section 24(1)(c) of the Act were resolved firstly, by the Full Federal Court in Richmond, and secondly by the endorsement of that decision by a differently constituted Full Federal Court in Repatriation Commission v Watkins (2015) 228 FCR 573.
In Richmond, the Full Federal Court provided the following explanation of the ‘alone’ test:[93]
The first limb provides that to qualify for the special rate, the preventative effect must arise from the veteran’s war-caused incapacity alone, and not from other non war-caused preventative factors as well. If other non war-caused factors contribute to the preventative effect, even if they are only of secondary importance and not of themselves sufficient to prevent the veteran from engaging in remunerative work, their presence will deny the veteran eligibility for the special rate.
[93] Repatriation Commission v Richmond [2014] FCAFC 124 at [58].
In undertaking such consideration, the Tribunal is mindful of the principle set out by Buchanan J in Smith that the entitlement of a veteran to be paid the pension at the Intermediate or Special Rate is not to be judged only at the time that the application was made but must be assessed by reference to any relevant circumstances which occur up to the time of decision. Buchanan J at [40] said that:
The entitlement may increase or decrease during that period, but provided that a pension was payable at some time during the assessment period a veteran will receive either the intermediate rate or the special rate, whichever is applicable, or in the case that both are applicable, whichever is the most recently applicable.
Federal Court authorities make it clear that any contribution that a non-service-caused factor has to preventing or contributing to prevent a veteran from continuing to undertake the relevant remunerative work will mean the alone test will not be satisfied. Those factors may be of only secondary weight and insufficient to in themselves to prevent a veteran from continuing to undertake the relevant remunerative work.
As such the Tribunal must consider any factor that plays a part or contributes to the Veteran being prevented from continuing to engage in remunerative work throughout the assessment period.
The Tribunal notes that such factors that may contribute to a veteran being prevented from continuing to undertake remunerative work they were undertaking may include medical conditions not accepted as being service-caused, age, availability of work and time out of the workforce. The Respondent’s contentions regarding non-medical related factors (as set out at paragraph 63 of the Respondent’s contentions reproduced at paragraph 61 above) were unclear.
The evidence before the Tribunal shows that up until the Veteran was granted the DSP he had sought and, in most cases, (that is up until late 2012) was able to secure work of some kind in the US. At the time of making the application to which this matter relates the Veteran was 62 years of age, in 2018 he was 64 years of age.
In circumstances where there are no submissions or evidence to the contrary the Tribunal is reasonably satisfied that these non-medical factors did not contribute to the Veteran being prevented from undertaking remunerative work that he had been undertaking. In Australia a person born between 1 January 1954 and 30 June 1955 is not eligible to receive the Age Pension until they turn 66.[94] Noting that people are now working well into their 70’s and the types of roles that the Veteran was undertaking, respectfully, are not of a type that are age restrictive or require ongoing upgrading of qualifications.
[94] Who can get Age Pension - Age Pension - Services Australia
As such the Tribunal is reasonably satisfied that there are no factors other than medical related factors that contributed to preventing the Veteran from continuing to engage in remunerative work he had been undertaking.
The medical evidence before the Tribunal refers to numerous medical conditions. Those conditions include both conditions accepted as being service-caused and those that are not.
The evidence of Dr Seevnarain was that the Veteran was prevented from undertaking remunerative work he was previously undertaking due predominately to his diabetic mellitus with neuropathy, chronic degenerative spinal changes, osteoarthritis of right ankle and obstructive sleep apnoea. The Tribunal notes that those conditions were not all accepted until October 2018 when obstructive sleep apnoea was accepted as being caused by service. Dr Seevnarain’s evidence was that in his opinion it was these conditions alone that impacted the Veteran’s ability to undertake his voluntary work, bus driving or janitor roles.

Dr Seevnarain also gave evidence that in his opinion the Veteran’s trigger finger condition would have impacted his ability to undertake clerical administrator work.
The Respondent contended that the Veteran was not from his service-caused conditions alone prevented from continuing to undertake remunerative work in administration, bus driving (part time), school custodian (janitor) and hostel youth supervisor. The Respondent contended that there:
… is reasonable medical opinion advising that the Applicant suffers reduced dexterity of both hands due to multiple surgeries to his hands for (release of) trigger fingers on both hands. The condition results in difficulty with finger grip and especially, to the left hand, reduced capacity for writing and manipulation. The medical opinion is that this incapacity would contribute to preventing the Applicant from undertaking administrative or clerical work.
The Tribunal notes that in opining that the Veteran would be unable to undertake clerical work because of his trigger finger condition Dr Seevnarain did not appear to have considered available technology. There is an argument that the Veteran may have bene able to undertake clerical work despite his trigger finger condition. Microsoft Word, which is near standard on all computers has its own voice dictation ability which would allow for some administrative tasks to be completed without the need for intensive typing on a keyboard.
This observation is not a criticism of Dr Seevnarain. He provided evidence at Hearing in relation to the material put to him. The Respondent did not take steps between the production of Dr Seevnarain’s report and the Hearing to put further material to him or to seek a further examination of the Veteran to occur.
The Tribunal is limited by the evidence before it, and as such accepts the evidence of

Dr Seevnarain. On that basis the Tribunal is reasonably satisfied that the Veteran’s trigger finger condition of which was not accepted as being service-caused, contributed to the incapacity that prevent him from continuing to be engaged in administrative/clerical roles being remunerative work he was undertaking.
The Tribunal notes other medical conditions were mentioned throughout the evidence before it. The Respondent submitted that it accepted the evidence provided by

Dr Seevnarain with regards to the status of the Veteran’s other health conditions and their contributions to preventing him from being engaged with the remunerative work he was undertaking. Having reviewed the totality of the evidence before it, the Tribunal is reasonably satisfied that during the assessment period the only condition not accepted as being service-caused that contributed to the Veteran being prevented from continuing to undertake remunerative work that he was undertaking, was his trigger finger condition.
Although the Tribunal has found that section 24(2)(a) of the Act applies as such preventing the Veteran from being taken to be suffering a loss of salary or wages or of earnings on his own account due to his service-caused incapacity, it is still relevant to consider whether such a loss has been suffered by the Veteran.
The evidence before the Tribunal in relation to the loss of salary, wages or earnings the Veteran suffered is limited to that which he provided at the Hearing.
The Veteran outlined the wages he received in the US to the best of his recollection. The Tribunal considers that the working and pay conditions in the US are different to those in Australia and as such the hourly rate provided is much lower.
The Veteran’s evidence was that if he was not unable to be engaged in his usual remunerative employment due to his incapacity resulting from his service-caused conditions he would have continued to be gainfully employed. The Veteran’s evidence is supported by his past conduct of continuously seeking work and taking the work he could get.[95]
[95] See paragraph 13 above.
It flows that an incapacity to engage in remunerative work is likely to result in the suffering of a loss of salary or wages, or of earning on his or her own account, that a person would not be suffering if they were free of the incapacity.
The Respondent did not contend that the Veteran did not experience a loss of salary, wages or earnings. There is no evidence to suggest that he did not suffer a loss due to his inability to engage in remunerative work. As such, given the beneficial nature of the Act, the Tribunal on balance is reasonably satisfied that the Veteran’s incapacity which prevents him from continuing to undertake remunerative work causes such a loss that he would not suffering that loss if he was not incapacitated.
Ameliorating considerations provided by section 24(2)(b) of the Act
Based on the findings outlined regarding section 24(1)(c) of the Act when considered together with section 24(2)(a) of the Act, the Tribunal is led to a finding that the Veteran did not meet the alone test. The Tribunal has found that the Veteran was not prevented from continuing to undertaken remunerative work that he was undertaking by reason of incapacity from his service-caused conditions alone and as such could not be taken to be suffering a loss of salary or wages, or of earnings on his own account by reasons of that incapacity.
Having made such a finding, the Tribunal must consider the ameliorating requirements of section 24(2)(b) of the Act which provides that for the purpose of section 24(1)(c) of the Act:
(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.
In Smith, Buchanan J stated:[96]
49 Section 24(2)(b) provides some relief from the potentially harsh consequences of this arrangement. It applies where remunerative work is not being done. In my view, it accommodates a cessation of earlier remunerative work, as well as a circumstance where a veteran has not worked since injury, or since the development of the incapacity. In all those circumstances, in my view, a veteran may demonstrate genuine efforts to obtain work which are made fruitless by the incapacity. That is, the efforts would continue but for the incapacity and the incapacity is the substantial cause of the inability to obtain work. Those circumstances are taken to satisfy the basic test in s 24(1)(c) of being actually prevented by the incapacity from continuing remunerative work. Economic loss (i.e. loss of the opportunity for economic gain by way of income) follows naturally enough from this scenario. The search is for remunerative work. The economic consequence of failure to obtain it is the result of the incapacity.
(Emphasis in the original)
[96] Smith v Repatriation Commission [2014] FCAFC 53 at [49]. Confirmed by a differently constituted Full Federal Court in Repatriation Commission v Richmond [2014] FCAFC 124 at [66].
As a result of the decision in Smith, there are three key elements of section 24(2)(b) of the Act that must be met for the ameliorating provisions to apply:
(1)the Veteran has been genuinely seeking to engage in remunerative work; and
(2)the Veteran would be continuing to seek to engage in remunerative employment but for their service-caused incapacity; and
(3)the service-caused incapacity is the substantial cause of the inability to obtain remunerative work.
The Tribunal notes that the Veteran did not turn 65 until April 2019 and as such was under 65 at the time of making his application for pension.
In considering what should be taken into consideration with regards to the Veteran’s efforts to obtain work, Buchanan J, in Smith stated:[97]
… It follows from the scheme of the Act set out earlier that it must be possible to assess the merits of a claim at the date that an application is lodged, on which date the assessment period commences. That is because there is a requirement to assess whether any entitlement arises at any time during the assessment period. That means that it must be open to a veteran to rely upon genuine efforts to find work before the application is made. That would not be possible if the question is to be tested only after the date of the application.
… I see no reason why a veteran would be disentitled to make an application for an increase in pension if he or she had ceased to work for particular reasons at one point in time, then commenced genuine efforts to find work and was then prevented only by a war-caused injury or disease from obtaining such work. Ceasing 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. Nor is it necessary to make efforts during an assessment period which might be futile and humiliating if there is adequate evidence before an application is made that genuine efforts have been made to obtain employment, those efforts have been without success, and the lack of success is due to the war-caused injury or incapacity. That is accommodated in terms by s 24(2)(b).
[97] Smith v Repatriation Commission [2014] FCAFC 53 at [69]-[70]

At this point the Tribunal notes that the Veteran’s evidence is that he did not look for work after July 2013 when he was granted the DSP. This predates his claim for pension that was received by the Respondent on 6 June 2016.
As outlined above, the Tribunal considers the Veteran ceased work in 2008 when he returned to Australia, re-engaged in work from 2009 when he returned to the US and ceased work permanently in October 2012 when he returned to Australia. From that date the Veteran has not engaged in substantive work. As set out above, the Tribunal does not consider the work undertaken by the Veteran at the RSL or CTC constitutes remunerative work for the purposes of sections 24(1)(c) or 24(2) of the Act.
In line with the decision in Smith, the Tribunal considers that in such circumstances it is necessary to consider whether the Veteran made genuine efforts to find work before making the claim.
In Leane v Repatriation Commission[98] the Full Federal Court said:
The primary judge interpreted the word “seeking” to mean “attempting to” or “trying to”. This may be accepted. Such a meaning involves something more than a mere wish or hope. It requires that a claimant “do” something. On the other hand the word “genuinely” is used in the sense of “sincerely” or “honestly”. It involves an assessment of the subjective intention or purpose of a claimant. What is required is that the claimant honestly be trying to engage in remunerative work.
It may be accepted that, in the ordinary course, a person in the position of the veteran would have difficulty in establishing that he or she was honestly trying to engage in remunerative work unless there were some “objective signs of active pursuit of remunerative work”.
[98] Leane v Repatriation Commission (2004) 81 ALD 625 at [28]-[29].
In Summers v Repatriation Commission[99] (Summers), the Full Federal Court said:
In Leane at [28] the Full Court explained that:
(a)   the word “seeking” means “attempting to” or “trying to”; and
(b)   the word “genuinely” means “sincerely” or honestly”, and it involves an assessment of the veteran’s subjective intention or purpose.
The Court emphasised that the requirement in s24(2)(b) does not mean a veteran must be genuinely seeking remunerative work at all times throughout the assessment period. It was enough if the veteran could satisfy the requirement at a particular point in time during the assessment period, and it did not matter if the veteran was not subsequently genuinely seeking remunerative work.
[99]    Summers v Repatriation Commission [2015] FCAFC 36 at [198].
The Full Federal Court in Summers further stated:[100]
…we respectfully agree with the primary judge’s view (at [83]) that the Tribunal did not misapply s 24(2)(b) and that its approach was consistent with Leane. The primary judge considered, and we respectfully agree, that the Tribunal:
(a) did not look for evidence of Mr Summers genuinely seeking to engage in remunerative work at all times; and
(b) understood that it was looking at the evidence to ascertain what Mr Summers “did” and what his intention or purpose was.
We also agree with her Honour’s view (at [84]) that, by the use of the present continuous tense in s 24(2)(b) through the use of the words “genuinely seeking to engage in remunerative work”. Parliament intended to convey an activity that may be ongoing or incomplete rather than a reference to an activity which is satisfied by a single attempt such as a phone call. Her Honour considered that the phrase contemplates at least a course of conduct by the veteran. Like the primary judge, we do not accept that a decision-maker is obliged to find that a veteran satisfied s 24(2)(b) if there is a single piece of evidence about a single attempt to seek work during the assessment period (no matter how long), and no evidence that the attempt was dishonest or disingenuous.
[100] Summers v Repatriation Commission [2015] FCAFC 36 at [201]-[202].
The evidence provided by the Veteran in both his written and oral submissions in relation to his efforts in seeking to engage in remunerative work were not disputed by the Respondent, in that they did not engage with this point in cross-examination of the Veteran.
There is no independent evidence before the Tribunal corroborating the Veteran’s evidence in relation to his job seeking. There is however ample evidence before the Tribunal of the consistency of the Veteran’s evidence in that regard.
In an Employment Questionnaire completed by the Veteran dated 28 June 2018 he confirmed that in 2012 to 2013 he was actively seeking work.[101]
[101] Exhibit 1, T Documents, T17, page 123, Employment Questionnaire.
In a statement from the Veteran provided to the Tribunal on 6 December 2021 he outlined that when he returned to the US in 2009 it was difficult to obtain work, so whilst looking he assisted his wife as an assistance with her home day-care. The Veteran outlined that:[102]
I cannot recall actual dates but the local school district contacted me asking if I would consider doing some relief custodial work and after explaining to them my limitations an agreement was reached, this then also led to relief school bus driver position both of which were on an as required basis. The bus driver position became a permanent route which consisted of 1.5hrs in the am and pm (total 3hrs) per school day and stayed in this role until September 2012 when I returned to Australia arriving in October 2012.
Upon return to Australia, I immediately registered with CENTRELINK and complied with all of their requirements until granted Disability Support Pension in October 2013 (backdated till then).
[102] Exhibit 11, Veteran’s reply to Respondent’s Statement of Facts, Issues and Contentions.
In an Employment Report completed by the Veteran dated 1 November 2019 he outlined that when he returned to the US in 2009, he sought work and was able to secure work with the local school district at first as relief custodian and school bus driver and that when he returned to Australia in 2012, he registered with Centrelink.[103]
[103] Exhibit 12, Employment Report.
In a submission from the Veteran received by the Tribunal on 3 May 2021, the Veteran outlined that in October 2012, he:[104]
Returned to Australia and actively began looking for work. Was sent by Centrelink to CRS Toowoomba, where I attended all things required of me. …
[In October 2013] Granted Disability Support pension by Centrelink due to being unable to work 8 or more hours per week due to my back, legs and hands not functioning correctly and causing severe pain due to cervical spondylosis and spinal spondylosis.
[104] Exhibit 21, Veteran’s Statement.
In submissions provided by the Veteran dated 8 September 2021, the Veteran further provided that the evidence in relation to the efforts he made to look for work is that he complied with the Centrelink requirements.[105]
[105] Exhibit 7, Veteran’s submissions in reply to the Respondent’s Statement of Facts, Issues and Contentions.
The Respondent contended that there is no evidence that the Veteran sought work in the US. The Tribunal does not understand such a contention in circumstances where the Veteran’s evidence is that he was employed in multiple positions in the US and that following his return in 2009 sought employment and was able to secure part-time school custodian and then school bus driving work. The Respondent did not dispute the Veteran’s evidence in that regard. As such the Tribunal accepts the Veteran’s evidence that he actively and genuinely sought work while living in the US prior to his return to Australia in 2012. The Tribunal accepts that the Veteran has not sought work in the US since his return there in 2021, however based on the case authorities outlined above, the Veteran was not required to have been seeking remunerative work throughout the assessment period.
The Veteran returned to Australia in late 2012 and immediately engaged with Centrelink. The Veteran’s evidence of which is unchallenged is that he engaged with all job seeking requirements, which included registering and attending appointments with a job provider. There is no evidence before the Tribunal to suggest that any issues were raised between the Veteran’s return to Australia and him being granted the DSP in July 2013 with his participation requirements.
The Veteran’s evidence was that through his job provider he did undertake short term work with the RSL in 2013 however was unable to continue with that work due to his mobility issues, of which resulted from his service-caused conditions.
The Veteran’s evidence was that he found his role at CTC through his job provider and continued to attend interviews for jobs right up until he was granted the DSP.
Based on the evidence before it, the Tribunal is reasonably satisfied that the Veteran genuinely sought remunerative work after he ceased employment in the US in both 2009 and 2012. This is evidenced by his securing new work in 2009 upon his return to the US and his engagement with the Centrelink unemployment participation requirements. Prior to being granted the DSP the Veteran had secured work with the RSL and then CTC, albeit neither role was a substantive role, it demonstrates that he was genuinely seeking remunerative work.
The Tribunal does not consider that the Veteran should be penalised for not having sought work after July 2013 when he was granted the DSP, as at that time by virtue of the DSP requirements he was found to have been unable to work 7 hours or more a week due to the functional impairments caused by his diabetes, spinal function and sleep apnoea.[106]
[106] Exhibit 1, T Documents, T20, pages 168-174, Job Capacity Assessment Report dated 1 October 2013.
Given the Veteran’s propensity prior to being granted the DSP to seek and engage in remunerative employment, and his statement that he would have continued in such employment but for his service-caused incapacity, the Tribunal accepts that he would have continued to seek to engage in such employment if he was not incapacitated by his service-caused conditions.
In considering whether the Veteran’s war-caused incapacity is the substantial cause of his inability to obtain remunerative work, the Tribunal notes that in Fox v Repatriation Commission[107], Kiefel J (as she then was) stated:
The words “the substantial cause” require that, if the incapacity is not of itself productive of the inability to obtain work, it is nevertheless the operative factor which, more than any other, explains it. That something might be “a substantial cause” has regard to the situation where there may be a number of factors operating which are of sufficient causal significance to qualify as “substantial” (the phrase which was contained in the legislation dealt with in University of Tasmania v Cane [1994] TASSC 73; (1994) 4 Tas R 156, 163, to which I was referred in argument). The definite article in s 24(2) of the 1986 Act (compare Repatriation Act 1920, Schedule 2, as amended in 1985), requires a stronger and more direct causal connexion between the incapacity and the inability to obtain remunerative work. The Tribunal here was clearly of the view that whilst the applicant’s incapacity could be described as “substantial” the other factors, which it listed, were also of importance with respect to the applicant’s inability to obtain work. Since their effect was considered of such significant to deny his incapacity status as “the substantial cause”, one infers the Tribunal considered that they might also be described as a substantial cause or causes. It seems to me, therefore, that the Tribunal did not suffer from any misapprehension as to the meaning to be given to the words “the substantial cause” in the subsection.
[107] Fox v Repatriation Commission [1997] FCA 176.
The Tribunal considers that the finding outlined above in considering whether the Veteran’s service-caused conditions alone prevented him from continuing to undertake remunerative work equally apply when considering whether his service-caused conditions were the substantial cause of his inability to obtain remunerative work.
Having found that the only factor contributing to the Veteran’s work capacity in relation to the remunerative work he had been engaged in, was his trigger finger condition of which is not accepted as being service-caused, the Tribunal must have regard to the actual impact that condition had on the Veteran’s work capacity when considering that condition together with his diabetic mellitus with neuropathy, chronic degenerative spinal changes, osteoarthritis of right ankle and obstructive sleep apnoea conditions.
The medical documents provided in the Centrelink records before the Tribunal that were relevant to the Veteran’s claim for the DSP referred to the medical conditions which significantly impacted his capacity to work to include:[108]
1.insulin dependent diabetes with associated neuropathy;
2.lower back pain;
3.obstructive sleep apnoea; and
4.diverticular disease.
[108]
Each of these conditions has subsequently been accepted as a service-caused injury or disease under the Act.
In granting the Veteran the DSP, the Centrelink Job Capacity Assessor found, as set out in the report dated 1 October 2013, that the impacts of the Veteran’s diabetes, spinal function and sleep apnoea meant he met the DSP qualification requirements. The Job Assessor found that the Veteran was ‘having significant trouble with basic domestic tasks due to his physical limitations and endurance issues. His baseline ability is 0-7hr/wk. No referral is recommended, conditions are not likely to significantly improve over time’.[109]
[109] Exhibit 1, T Documents, T20, page 172, Job Capacity Assessment Report dated 1 October 2013.
The evidence of Dr Seevnarain supports the proposition that those conditions continue to prevent the Veteran from undertaking work.
The Tribunal notes that there was no mention in the Centrelink related material of the Veteran’s trigger finger condition, let alone them causing him a functional impairment. The Veteran’s evidence at Hearing was that the condition was no worse than when he was driving the bus.
Dr Seevnarain’s evidence was that the Veteran’s trigger finger condition would only have an impact on his ability to undertake clerical or administrative work, he did not note them as a significant contributor to his incapacity for work.
The Tribunal is satisfied that at the time of his claim for pension the Veteran:
(a)had ceased remunerative work;
(b)had not attained the age of 65 years;
(c)had been genuinely seeking to engage in remunerative work;
(d)but for his service-caused incapacity, he would be continuing to seek to engage in remunerative work; and
(e)inability to obtain remunerative work in which to engage was substantially caused by his service-caused incapacity.
Based on the evidence before it the Tribunal is reasonably satisfied that the Veteran met the requirements of section 24(2)(b) of the Act and is, therefore, treated as having been prevented by reason of his service-caused incapacity alone from continuing to undertake remunerative work that he was undertaking.
The Tribunal consistently with the findings of Buchanan J in Smith considers that that economic loss, being the loss of the opportunity for economic gain by way of income, follows naturally enough from the circumstances found to exist in the Tribunal’s finding regarding section 24(2)(b) of the Act. The search is for remunerative work and the economic consequence of failure to obtain it is the result of the incapacity.
Consequently, based on the evidence before it, the Tribunal finds that by virtue of section 24(2) of the Act, the Veteran is taken to have met the requirements of section 24(1)(c) of the Act.
The Tribunal is satisfied that the Veteran met the requirements of section 24(1)(c) of the Act from 27 October 2018 being the first date upon which all the conditions affecting the Veteran’s incapacity to undertake remunerative work he was undertaking were all accepted as being service-caused),
Conclusion in relation to section 24 of the Act
Based on the evidence before it and as outlined in the above consideration the Tribunal finds that the Veteran:
(a)Met the requirements of section 24(1)(aa) of the Act from 6 June 2016.
(b)Met the requirements of section 24(1)(aab) of the Act from 6 June 2016.
(c)Met the requirements of section 24(1)(a) of the Act from 12 June 2013.
(d)Met the requirements of section 24(1)(b) of the Act from 27 October 2018 (being the first date upon which all the conditions affecting the Veteran’s incapacity to undertake remunerative work he was undertaking were all accepted as being service-caused).
(e)Met the requirements of section 24(1)(c) of the Act (by virtue of section 24(2)(b) of the Act) from 27 October 2018 (being the first date upon which all the conditions affecting the Veteran’s incapacity to undertake remunerative work he was undertaking were all accepted as being service-caused).
Consistently with the decision in Smith and section 19 of the Act the Tribunal finds that the Veteran is eligible to be paid the pension at the Special Rate pursuant to section 24 of the Act from 27 October 2018, being the date on which the Tribunal found that he first met all requirements of section 24(1) of the Act.
DECISION
The Tribunal sets aside the decision under review and in substitution decides that the Veteran is entitled to be paid the pension at the Special Rate from 27 October 2018.

I certify that the preceding 177 (one hundred and seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

.........................[SGD]............................
Associate
Dated: 25 August 2023

Dates of Hearing:

22 June 2022
1 March 2023

Applicant: By MS Teams

Advocate for the Respondent:
Mr Bruce Williams

Department of Veterans’ Affairs

Exhibit 20, Centrelink Records, Medical Report Disability Support Pension Form completed by Dr John Lamb dated 20 November 2012 and Centrelink Medical Certificate completed by Dr Murray Pietsh dated

20 March 2013.

Exhibit 20, Centrelink Records, Medical Report Disability Support Pension Form completed by Dr John Lamb dated 20 November 2012 and Centrelink Medical Certificate completed by Dr Murray Pietsh dated

20 March 2012.

1992 - 1999	Australia Post Relief Postie
1993 – 1996 (?)	Worker then Manager of the Oakey Roadhouse – cooking, cleaning, refuelling and all managerial duties.
1997 - 1998	Self Employed Stationary Catering Van whilst the Oakey Power station was being constructed.
1999 - 2000	HADEN Facilities Management, Army Base Oakey, clerical duties as well as being on-call.
2000 - 2010	Part time assisted wife with childcare duties.
2001 - 2002	Part time with Quincy Family YMCA (custodial duties) and Home Depot (overnight re-stoker duties).
2002 - 2004	Full time with Home Depot (overnight re-stocker duties).
2004 - 2008	Full time with CHADDOCK (overnight Youth Worker – clerical and custodial duties in a residential care facilities).
2008 – 2009	Had returned to Australia for family reasons and upon return to the USA sought work and was able to secure with the Local School District at first as relief custodian and school bus driver.
2009 - 2012	Local School District as School Bus Driver and as required relief custodian. Returned to Australia Oct 2012 upon marriage breakdown and the next working day upon arrival registered with Centrelink.

Dates of Hearing:	22 June 2022 1 March 2023
Applicant:	By MS Teams
Advocate for the Respondent:	Mr Bruce Williams
Department of Veterans’ Affairs