Simmons and Repatriation Commission (Veterans' entitlements)

[2019] AATA 4362

Simmons and Repatriation Commission (Veterans' entitlements) [2019] AATA 4362 (25 October 2019)

Division:VETERANS’ APPEALS DIVISION

File Number(s):      2018/5015

Re:Gregory Simmons

APPLICANT

Repatriation CommissionAnd  

RESPONDENT

DECISION

Tribunal:Deputy President J Sosso

Date:25 October 2019

Place:Brisbane

The decision under review is affirmed.

........................................................................

Deputy President J Sosso

CATCHWORDS

VETERANS’ ENTITLEMENTS — Disability pension — Where the veteran is in receipt of the pension at 100% of the general rate — When the veteran suffers from a number of accepted and non-accepted conditions – Special rate pension – Whether ss 24(1)(c) or 24(2)(b) met – The alone test – War-caused disease or war-caused injury not sole cause of incapacity – Whether “genuinely seeking” work – Whether the accepted conditions are the substantial cause of the veteran’s inability to obtain work – Decision under review affirmed

LEGISLATION

Veterans’ Entitlements Act 1986

Repatriation Act 1920

CASES

Banovich v Repatriation Commission (1986) 6 AAR 113

Birtles v Repatriation Commission (1991) 33 FCR 290
Flentjar v Repatriation Commission (1997) 26 AAR 93
Forbes v Repatriation Commission (2000) 101 FCR 50
Fox v Repatriation Commission (1997) 45 ALD 317
McKenna v Repatriation Commission [1999] FCA 323
Smith v Repatriation Commission (2014) 220 FCR 452
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Richmond (2014) 226 FCR 21
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Watkins (2015) 228 FCR 573
Repatriation Commission v Woodall [2015] FCA 243
Sheehy v Repatriation Commission (1996) 41 ALD 205
Starevich v Repatriation Commission (1987) 18 FCR 221
Watkins v Repatriation Commission (2014) 142 ALD 106

REASONS FOR DECISION

Deputy President J Sosso

25 October 2019

INTRODUCTION

1. Mr Gregory Kenneth Simmons (the veteran) seeks a review of a decision of the Veterans’ Review Board (VRB) of 29 May 2018 which affirmed a decision of the Repatriation Commission (the Commission) continuing the veteran’s disability pension at 100% of the General rate – Exhibit 1 T143 pp. 575 - 581.

2. At the time of the Hearing the veteran was 56 years of age.  He enlisted in the Australian Army on 29 July 1980 and was medically discharged on 30 March 1987 – Exhibit 1 T135 p. 512.

3. The veteran’s period of service constitutes eligible service under the Veterans’ Entitlements Act 1986 (the Act).

4. Subsequent to his discharge, the veteran was engaged in civilian employment.  The veteran outlined the various positions he filled and employers he worked for in an Employment Report dated 22 June 2011 – Exhibit 1 T110 p. 418:

Position	Employer	Duration of Employment	Reason for Ceasing
Carpet cleaner	Aqua Jet	Mid 1988 – Mid 1988	Lifting and movement too painful
Storeman	J. Penny’s	Mid 1988 – Early 1989	Got better job
Storeman	International Fitters	Early 1989 – Mid 1989	Dishonest employer
Storeman	Truckline	Mid 1989 – Late 1990	Got a strain lifting
Bus driver	BCC	Late 1990 – 1995	In pain, too much stress

1. The veteran also claimed that after ceasing employment with the Brisbane City Council he sought employment with P & O Refrigeration and “Engineering Works” as a storeman, but on both occasions he was unsuccessful after informing them of his back injury. In both instances the veteran claimed that the companies stated it would have been too costly to employ him because of insurance and workers’ compensation issues – Exhibit 1 T110 p. 419.

2. The Commission has accepted a number of conditions afflicting the veteran as being service-related:

   (a)lumbar spondylolisthesis (L5 – S1), 25 June 1987 – Exhibit 1 T12 pp. 70 – 75;

   (b)gastro-oesophageal reflux disease, 4 April 2003 – Exhibit 1 T84 pp. 294 – 301;

   (c)constipation, 4 April 2003 – Exhibit 1 T84 pp. 294 – 301;

   (d)adverse effect of medicinal drug (opiate sensitivity), 4 April 2003 – Exhibit 1 T84 pp. 294 – 301; and

   (e)lumbar spondylosis, 7 January 2010 – Exhibit 1 T105 pp. 371 – 378.

3. The Commission did not accept that the following claimed conditions were service-related:

   (a)thoracic spondylosis, 2 April 2002 – Exhibit 1 T61 pp. 227 – 231;

   (b)cervical spondylosis, 2 April 2002 – Exhibit 1 T61 pp. 227 – 231; and

   (c)adjustment disorder with depressed mood, 2 April 2002 – Exhibit 1 T61 pp. 227 – 231.

4. The Commission also submitted (Exhibit 3 para 7) that the summonsed medical records disclose that the veteran has suffered from additional non-accepted conditions, including depression and carpal tunnel syndrome.

5. The evidence before the Tribunal discloses that the veteran’s claim for lumbar spondylolisthesis had its origins in an incident on 22 July 1985 when he was ordered to carry an “excessive” amount of ammunition up a hill and subsequently fell. The veteran claimed he experienced back pain thereafter.  The veteran was examined in April 1987 by Dr D B Leaming, Departmental Medical Examiner, who, in a report dated 16 June 1987, made the following observations – Exhibit 1 T11 pp. 64 – 65:

   “The basic cause of the condition is a congenital defect in the neural arch of the vertebrae – a condition known as spondylolysis.  No symptoms occur until and unless the vertebra slips forward relative to the one below it. If this occurs symptoms of back pain & sciatica may occur.  This slipping forward may occur at any time but usually occurs in adolescence and early adult life. This condition is usually progressive and conservative treatment is usually advised although operation is possibility…

   The veteran had no complaints referrable to his back on enlistment and medical examination at that time showed no abnormality.  He experienced a sensation of something ‘giving’ in his back with severe low back pain when carrying a heavy load of ammunition 22/7/85 during an exercise.  Subsequent investigations revealed spondylosis L5 and S1.  It must be accepted that the veteran had spondylolysis when he joined the army and that the spondylosisthesis occurred during the heavy lifting strain 22/7/85.  It is noted that he was stated to be overweight during his service and this may have contributed to the spondylolisisthesis and it is quite possible the veteran would have developed the condition whether or not he had been in the Army.  However, as the condition does appear to have occurred at the time of the heavy strain imposed on his back, his spondylolisisthesis should be accepted as attributable to his service.”

   (emphasis in the original)

6. When the Commission, on 25 June 1987, found that the veteran’s spondylolisthesis was service-related, it also found that he was eligible for payment of a disability pension at 50% of the General rate, effective from 5 November 1986 – Exhibit 1 T12 pp.70 – 75.

7. On 30 May 1996, the veteran applied for an increase in his rate of pension, and informed the Commission that he had ceased working for the Brisbane City Council that month due to “pain”., and he provided the following explanation – Exhibit 1 T20 p. 87:

   “Over the past six months my condition has deteriorated.

   I am on constant medication.

   I can no longer work.

   I am unable to drive a vehicle.

   I am no longer able to do light house work.

   I can’t do my full share of chores with children, no football with children.”

8. In support of his claim, the veteran provided three Medical Impairment Assessments prepared by Dr Michael Vuocolo.  Dr Vuocolo opined that the veteran was suffering from chronic lower back pain, which never left him, that he was unable to pick up his young son or carry shopping bags, he needed to stop after walking 300 metres, needed a hand rail for support and was unable to drive long distances – Exhibit 1 T16 – 17 pp. 81 – 82.

9. On 19 June 1996 the Commission issued a decision increasing the veteran’s pension to 90% of the General rate, effective from 19 April 1996 – Exhibit 1 T22 pp. 93 – 95.

10. On 4 August 1999 the veteran again applied for an increase in his pension – Exhibit 1 T28 pp. 107 – 116.  In response to Question 20 in the application form, which sought information about how the veteran’s service-related disabilities had become worse, the following statement was made – Exhibit 1 T28 p. 112:

    “Spondylolisthesis

    My condition has now worsened to such an extent that I can no longer work.

    I can no longer take medication.

    This is an application for TPI.”

11. The veteran stated that he “couldn’t cope with driving because of spondylolisthesis” and that he then could “hardly move about. I can & am laid up in bed for days at a time” – Exhibit 1 T28 p. 113.

12. The Commission sought information from the Brisbane City Council, and was informed that the veteran worked as a bus operator during the period 11 July 1994 until 22 May 1995 for approximately 40 hours per week and that he had “voluntarily resigned” – Exhibit 1 T29 pp. 117 – 119.

13. In a Lifestyle Questionnaire dated 31 August 1999, the veteran stated that he had stopped working because he was unable to drive buses and that he had not sought, and did not intend to seek, employment. The veteran claimed that he was unable to work because of the pain he was experiencing and physical limitations – Exhibit 1 T32 p. 132.  In addition, the veteran stated he could only drive for a maximum of 20 – 30 minutes on a good day and that on most occasions he needed his wife to accompany him – Exhibit 1 T32 p. 129.  The veteran summarised the lifestyle impact of his disabilities as follows – Exhibit 1 T32 p. 133:

    “I can’t take pain killers on a regular basis because I now have a reaction to all opium based drugs, because of the methadone I took for the pain.  I do not go out because I feel self-conscious having to explain to people muscle spasm and expression on my face from pain.  I feel I contract flu and other viruses more frequently because I can’t exercise and keep fit any more.  I feel pressured by family because they don’t understand my disability and that it puts limitations on the type of activities and outings I can attend.  It also affects how long I can cope with attending them.  If I need to take pain relief for any reason e.g. headaches, flu or back pain, I feel after symptoms from these medications for several days until it’s left my system.”

14. On 27 October 1999 a Delegate of the Commission decided to continue the veteran’s pension at 90% of the General rate.  In reaching this conclusion, the Delegate noted that the veteran had voluntarily resigned from his Brisbane City Council position and had not taken any sick leave for his back condition.  The Delegate concluded that the veteran was not eligible for the pension at the Special rate because he ceased working for reasons other than his then accepted medical condition - Exhibit 1 T38 pp. 148 – 156.

15. The veteran lodged, on 25 May 2001, a further application for an increase in his pension claiming that his accepted condition of spondylolisthesis had worsened.  The veteran claimed that he was in more pain, was unable to move around as much and he needed his wife to assist him in day to day routines – Exhibit 1 T45 p. 172.

16. In the employment history section of the application form, the veteran stated that he ceased work because he “could not cope with disability and work any longer”, that he was unable to work and that his disabilities resulted in being unable to travel or sit for any period of time – Exhibit 1 T45 p. 173.

17. The veteran was assessed by Dr Ivan Yaksich, a pain specialist, who, in a report dated 25 May 2001, made the following observations – Exhibit 1 T44  pp. 164 – 165:

    “He specifically suffers with low back pain; this also radiates into the thoracic and cervical spine area, and there is a sensation of pins-and-needles in both lower limbs, with some pain radiating to the right knee.

    Previously he had been treated with Methadone medication, but has not used this for the last 3 years.

    On examination tenderness was present over the whole length of the spine, but his was more marked in the lower lumbar region, and muscle spasm was noted here, and also in the neck and shoulder girdle area.  No neurological deficit was found, but his range of lumbar spine movement was severely restricted by back pain, and straight leg raising was also limited by back pain, but clinically there was no evidence of any nerve root involvement or compression.

    The plain x-rays he brought with him confirm the presence of spondylolisthesis, with a slight slip.  He does have a well-marked chronic pain problem directly related to his incident and fall 15 years ago.  At present he has a positive attitude, being receptive to rehabilitation, and he is not on any narcotic medication.

    He would be a good candidate for our full-time rehabilitation program, and we will arrange for his admission.  Initially this would be for 2 weeks, but because of the long-term nature of his problem, he may require further follow up therapy, and we will reassess him while he is in the program.”

18. In reaching this conclusion, Dr Yaksich relied on the following account provided by the veteran – Exhibit 1 T44 p. 164:

    “he gave a history of falling off a mountain about 15 years ago while he was in the Australian Infantry Forces.  He apparently rolled about 90 metres down a hill, striking a tree, and developing back pain…”

19. The veteran was also examined and assessed by Dr Simon Jeaffreson, General Practitioner. In a Medical Examination Form dated 18 July 2001, Dr Jeaffreson opined that the veteran was not capable of performing any work, and provided this explanation for that diagnosis – Exhibit 1 T50 p. 188:

    “L5/S1 spondylolisthesis with subsequent chronic back pain causing inability to stand or sit for prolonged periods, inability to lift, problems with prolonged walking.”

20. Dr Jeaffreson also opined that the veteran’s medical conditions, of themselves alone, prevented him from working and that he was not a suitable candidate for rehabilitation and retraining – Exhibit 1 T50 p. 189:

    “It is hard to imagine any kind of work which involves little sitting, little standing, frequent rests or breaks, no prolonged walking, no lifting or leaning.”

21. Finally, Dr Jeaffreson was of the opinion that the veteran’s overall condition was not likely to improve in the future – Exhibit 1 T50 p. 189.

22. The Commission referred the veteran to Dr Peter Winstanley, Orthopaedic Surgeon, for examination and assessment.  Dr Winstanley examined the veteran on 27 September 2001, and in his report of 28 September 2001 he provided the following assessment – Exhibit 1 T53 p. 194:

    “This patient has proven spondylolisthesis.  He has chronic pain within his lumbar spine. This patient has symptomatology which seems to be of a significant nature but he also has inappropriate signs.  The patient requires a significant degree of medication for control of his symptomatic state.  In my opinion, this patient would benefit from referral to a pain clinic for assessment of his injury complex. The pain clinic would, hopefully, reduce his requirement of significant analgesic medication.  In my opinion, in his present state, he is not fit to return to work activity.  He would not be able to maintain fixed posture and position.  This patient would benefit from a vocational assessment after his pain clinic treatment to try to return him to the workforce.  In my opinion, he would also benefit from a psychological assessment because of his long term pain situation.

    In my opinion, this patient does have a permanent partial disability relating to his lumbar spine secondary to his spondylolisthesis.  This will be of a nature which will preclude him from any heavier type work activity which he has done in the past.  He will require re-education and re-training to allow him to return to the workforce.” 

23. On 24 October 2001, a Delegate of the Commission refused the veteran’s application for increase of pension and determined to continue the pension at 90% of the General rate. In reaching this conclusion, the Delegate rejected the veteran’s self-assessed lifestyle rating.  In addition, the Delegate rejected the veteran’s assertion that he was entitled to the Intermediate or Special rate pension.   The reason given was as follows – Exhibit 1 T56 p. 200:

    “In this case, as explained in previous decisions, you did not cease work in 1995 due to service related disabilities alone, and you have not sought work since that time.  Consequently, you have not suffered a loss of salary, wages or earnings because of your service related disabilities alone.  Therefore pension can not be paid at the Intermediate Rate or the Special Rate.”

24. On 21 January 2002 the veteran lodged a further pension claim. However, in addition to  claiming  spondylolisthesis as a service-related condition, the additional conditions of upper back and neck pain and depression were claimed – Exhibit 1 T57 pp. 202 – 210.

25. The veteran was referred by the Commission to Dr Winstanley for examination and assessment of the claimed condition of upper back and neck pain – Exhibit 1 T58 pp. 211 – 212.

26. Dr Winstanley examined the veteran on 19 February 2002, and in his report of 22 February 2002 provided the following diagnosis – Exhibit 1 T59 p. 214:

    “In my opinion this patient has degenerative disc disease within his thoracic and cervical area.  The degenerative change within this area is the result of natural degenerative change which occurs within the population.  His symptomatic state is complicated by chronic ongoing lumbar problems which does predispose him to the development of cervical and thoracic discomfort.”

27. The veteran was also referred to Dr Quentin Mungomery, Consultant Psychiatrist, in relation to the claimed condition of depression.  Dr Mungomery examined the veteran on 20 March 2002 and provided a detailed report dated 21 March 2002 – Exhibit 1 T60 pp. 215 – 226.

28. The veteran gave Dr Mungomery the following account of his 1985 accident – Exhibit 1 T60 p. 216:

    “In 1985 while on exercise in the Shoalwater Bay area Mr Simmons described being involved in a landslip while climbing a hill and falling approximately 90 metres subsequently coming to rest when his back hit against a tree.”

29. Dr Mungomery then outlined the veteran’s post service employment – Exhibit 1 T60 p. 217:

    “4.1 After leaving the army he described not working for approximately 2 years and during this time caretaking a cattle property.

    4.2 He subsequently moved to Brisbane in 1989 and worked as a carpet cleaner and a storeman before starting with the Brisbane City Council as a bus driver on a full-time basis in 1990.  In 1995 Mr Simmons described ceasing work due to continued worsening of his back pain as well as some stress associated with his work at the Brisbane City Council at the time and has not worked since that time.”

30. After outlining at some length the veteran’s description of his mental state and overall behaviour, and the corroboration of that self-assessment by his wife, Dr Mungomery provided the following diagnosis – Exhibit 1 T60 p. 221:

    “17.2 It is my opinion that Mr Simmons has developed his adjustment disorder with depressed mood secondary to his experience of ongoing chronic pain related to this spondylolisthesis with him having described the experience of psychological symptoms related to his adjustment disorder soon after the development of the pain.”

31. Dr Mungomery opined that the chronic and severe pain experienced by the veteran rendered him unable to work up to eight hours a week in some part-time capacity – Exhibit 1 T60 p. 222:

    “18.1 Mr Simmons prognosis at this time remains guarded with the likelihood of him having some level of chronic depression related to his pain unless meaningful change can occur to his experience of pain on a day to day basis.

    18.2 Mr Simmons is unable to work on a full-time or part-time basis based upon the combined disability related to his pain and adjustment disorder with depressed mood and if an assessment was made of his ability to work based upon the severity of his adjustment disorder with depressed mood alone it would be likely that he would be unable to work up to 8 hours a week in some part-time capacity due to the severity of his depressive symptoms currently.

    18.3…it is likely he will have some form of chronic depressive symptoms unless his pain can be significantly ameliorated.”

1. On 2 April 2002, a Delegate of the Commission decided that the claimed conditions of thoracic spondylosis, cervical spondylosis and adjustment disorder with depressed mood were not related to service – Exhibit 1 T61 pp. 227 – 231.  This decision was affirmed by the VRB on 31 May 2004 – Exhibit 1 T87 pp. 306 – 317.

2. In reaching its decision, the VRB gave detailed consideration to the veteran’s version of what transpired on 24 July 1985 and thereafter.

3. First, the VRB outlined the veteran’s version of events, including that he claimed he was carrying 100 kg of ammunition in a pack on his back and that he fell about 80 metres down a hill.  The VRB noted the lack of reference to such a fall in the contemporaneous medical records and in any records until 1996. Further, the VRB also noted that there were no contemporaneous records of the veteran injuring his upper back.  The veteran informed the VRB that he had always referred to his total back problems and that the Army had not recorded the full extent of his complaints – Exhibit 1 T87 pp. 309 – 310.

4. The VRB rejected the veteran’s version of events, and made the following observations – Exhibit 1 T87 p. 314:

   “26. The applicant told the Board at the hearing that he had constantly told medical personnel that his upper back and neck were also sore but believed that the medical personnel had failed to record those complaints.  He did concede, however, that it was his lower back that caused him most concern following this incident.  Given the extensive records in the applicant’s files relating to this injury, the Board found it unlikely that regular complaints about other concerns of the applicant would not have been recorded.  One or two failures to record other injuries might be put down to an oversight but in five entries over a week no mention is made of upper back or neck problems.

   27. The Board was therefore reasonably satisfied that any injuries to the applicant’s upper back or neck in the Shoalwater Bay incident in July 1985 were so minimal that the definition of ‘trauma’ in the respective SoPs is not met in respect of either his upper back or neck.”

5. The VRB also rejected the veteran’s contention that his adjustment disorder with depressed mood was service-related.  After referring to  McKenna v Repatriation Commission [1999] FCA 323, the VRB made the following observations – Exhibit 1 T87 pp. 316 – 317:

   “35. The applicant’s spondylolisthesis (L5-S1) was accepted as service related in 1986, on the basis of the incident at Shoalwater Bay in July 1985. That was before Statements of Principles were introduced and the decision was based, presumably, on medical evidence alone.  Since that determination, a Statement of Principles concerning spondylolisthesis and spondylolysis has been issued, which is cited above.  For the applicant’s spondylolisthesis (L5-S1) to be found to be related to service under the provisions of this Statement of Principles (and therefore for his adjustment disorder also to be found to be related to service), at least one of the factors in this SoP must be met in the applicant’s circumstances…

   37. The Board accepts that the applicant experienced a significant injury to his lumbar spine when he was lifting the heavy load of ammunition on exercise at Shoalwater Bay in July 1985 He was evacuated from the exercises two days after the incident and required treatment and Xray examination.  However, in the Board’s view, on the account given by the applicant at the hearing, and as supported by the medical records cited above, he did not experience a  ‘a severe, high energy trauma to the lumbar spine’ as defined.  He was able to drag a 100kg load of ammunition up the hill after falling about 80 metres.  On his account of this incident he was not precluded from ‘unaided ambulation for a period of at least two weeks’ after accident.

   38. In view of that finding, the Board found that factor 5(a) in the SoP concerning spondylolisthesis and spondylolysis is not met in the applicant’s circumstances.  When the Board referred to all other factors in that SoP it found also that none was met.

   39. Thus, despite the applicant’s spondylolisthesis (L5-S1) being accepted as service related in 1986, the Board found, following McKenna’s Case, that that causal link cannot now be sustained when reference to the Statement of Principles for spondylolisthesis and spondylolysis is made.  Thus the applicant’s spondylolisthesis (L5-S1) is a not [sic] ‘an injury, disease or occurrence’ upon which to base a finding that the applicant experienced a ‘psychological stressor’ within factor 5(a) in the Statement of Principles concerning adjustment disorder…

   41. The Board was reasonably satisfied, therefore, that there was no connection between the applicant’s adjustment disorder with depressed mood and his defence service. In these circumstances the Board was required to affirm  the decision under review in respect of that condition.”

6. On 2 December 2002, the veteran lodged a pension claim for constipation, opiate sensitivity, heartburn, back pain and impaired great toe flexion as well as a claim for an increase of pension.  The first three conditions were claimed to have resulted from the high doses of pain killers the veteran was taking for his back condition – Exhibit 1 T66 pp. 241 – 256.

7. The veteran was reviewed by Dr S M Hamwood for the claimed conditions of constipation and opiate sensitivity.  In his report of 6 March 2003, Dr Hamwood made the following observations – Exhibit 1 T78 p. 279:

   “The veteran states that he sustained a back injury during his service career.  This has been a continuing problem requiring pain relief on a constant basis…He was previously taking methadone on a regular basis but is not taking this medication at present.  He stated that taking methadone made him feel like he had the ‘flu for a week before the sensation would subside…

   Assessment.  The veteran has chronic constipation which started ten years ago and was related to taking methadone at that time.  The problem is controlled to some degree on Metamucil but still causes some abdominal discomfort intermittently.  He has a reaction to methadone of flu-like symptoms which would have to be described as opiate sensitivity.”

8. On 4 April 2003, a Delegate for the Commission accepted the veteran’s claims for gastro-oesophageal reflux disease, constipation and adverse effect of a medicinal drug (opiate sensitivity).

9. First, the Delegate noted that the veteran had demonstrated a positive smoking history whilst enlisted and the relevant SoP prescribed smoking at the requisite level as a factor contributing to gastro-oesophageal reflux disease. Accordingly, the Delegate decided that the claimed condition was service-related – Exhibit 1 T84 p. 296.

10. Second, the remaining two conditions were assessed on the evidence presented as in neither case had a SoP been prescribed. In both cases the Delegate found that there was a causal linkage between the claimed conditions and service – Exhibit 1 T84 p. 297.

11. Finally, the Delegate decided that pension be continued at 90% of the General rate – Exhibit 1 T84 pp. 294 – 295. In reaching this conclusion the Delegate found that the veteran had an impairment rating of 50 points and a lifestyle rating of 4, combining to give a degree of incapacity of 90% - Exhibit 1 T84 p. 298.

12. The veteran lodged an application with the VRB on 1 April 2004 for a review of this decision. However, this application was rejected as being out of time, with the right to apply for review having expired on 4 July 2003 – Exhibit 1 T86 p. 305.

13. On 8 October 2004 the veteran lodged a further pension claim and for an increase in the rate of pension payable – Exhibit 1 T88 pp. 319 - 327. On this occasion the claimed disability was “chronic back/leg/neck pain” and the following explanation was given as how it was service-related – Exhibit 1 T88 p. 321:

    “After reporting to the regimental medical officer after my fall he cracked & manipulated my spine and kept me in the field for a few days.  When I was ambulanced out, I had to sit up as a sergeant with crutch rash wanted to lie down”

14. For reasons that are not clear there is a gap in the T documents of any records between the time of the 8 October 2004 claim and events in 2009.

15. On 13 October 2009 the veteran lodged a claim for chronic back, leg and neck pain and also for an increase in his disability pension – Exhibit 1 T105 p. 374.

16. Dr Randal Davis, General Practitioner, prepared a number of Medical Impairment Assessment Reports for the veteran, each of which was dated 11 November 2009 – Exhibit 1 T93 – 102 pp. 341 – 354.  In addition, he also completed a Work Ability Report – Exhibit 1 T103 pp. 355 – 362. Dr Davis listed the following medical conditions that he opined the veteran was then suffering from – Exhibit 1 T103 p. 356:

    “Major Diagnosis/es and Duration

    1. Chronic back/neck/leg pain (& upper limb symptoms)    Since age 22

    2. GORD  24 years

    3. Depression  24 years

    Minor diagnosis/es and duration

    1 Constipation  12 years

    2 Hypertension  12 years”

17. In response to a Question seeking information on how the veteran’s disabilities reduced his ability to work, Dr Davis gave the following  answer – Exhibit 1 T103 p. 360:

    “Unable to work due to chronic pain syndrome.

    Unable to perform any manual duties or sustained sitting/standing”.

18. Dr Davis was of the opinion that the veteran was “unsuitable for any position” and that it was unlikely that his condition would improve in the future – Exhibit 1 T103 pp. 360 – 361.

19. On 7 January 2010 a Delegate of the Commission accepted the veteran’s claim for lumbar spondylosis and increased the rate of disability pension to 100% of the General rate. In concluding that the pension should be increased to 100%, the Delegate assigned the veteran an impairment rating of 60 points and a lifestyle rating of 4, which, combined, gave a degree of incapacity of 100%  – Exhibit 1 T105 pp. 371 – 377.

20. The Delegate noted that the veteran had not attained 65 years of age and was therefore not eligible for the Extreme Disablement Adjustment – Exhibit 1 T105 p. 377.

21. Finally, the Delegate considered whether the veteran was eligible to be paid the pension at the Special or Intermediate rates.  In determining that the veteran was not eligible, the Delegate made the following observations – Exhibit 1 T105 p. 377:

    “I note that Mr Simmons resigned voluntarily at work as a BCC bus driver in 1995.

    I have perused the medical report from Dr R Davis dated 7/12/09 which listed Chronic back/neck/leg pain, GORD, Depression as the major conditions impacting on Mr Simmons capacity to work.

    On the basis of the evidence, I am satisfied that Mr Simmons does not meet the criteria under Section 24(1)(c), in that he suffers from a combination of service related and non service related incapacity.

    Mr Simmons is not eligible for pension at either the Special or Intermediate Rate.”

22. The veteran next lodged a claim for increase in the disability pension on 1 May 2011 – Exhibit 1 T107 pp. 380 – 404.  In that part of the application form seeking information on how the accepted disabilities had become worse since the last assessment by the DVA, the veteran provided the following information -  Exhibit 1 T107 p. 388:

    “My ankles and knees are giving way under me.  Last assessment my ankles were only failing me every so often, now my ankles fail me 2 or 3 times a day, also, my knees are failing to support me.

    The pains in me, have gotten a lot worse.  More & more over the past year.  But I’ve reached and passed the amount of Tramadol pain killers I can use, safely.

    The seizures I receive as a side effect of the Tramadol, are quite bad now. Plus the rest of the side effect of my Tramadol.”

23. The veteran attached to the application form a number of hand-written pages of information which deal in considerable detail with the impact of his disabilities on his overall health, capacity to function and the impact on his lifestyle and employment opportunities. The following information was given about the employment ramifications of his disabilities – Exhibit 1 T108 p. 403:

    “The last time I worked was for the Brisbane City Council as a bus driver, a job I would not have gotten if I was open about my condition.  While working there I was in a constant acute pain.  I had to take a lot of pain killers, to keep doing the work.  By the end I was a wreck, I was up to taking 4-6 Coderal [sic] forte tablets every 3-4 hours which I sure the pharmaceutical records would show this.  By the time I had to resign my mental state was greatly effected. Which was greatly caused by the constant large doses of medicine.  These large doses of painkillers were also causing a lot of stomach troubles till I was only left with quitting my job.  Working had put me in a constant pain that stayed long after I had finished working.  My condition was bad enough for me to be put on a long course of methadone, all of which would be in your records, of my treatment.  Till today I’m on Tramadol which is controlled tighter than Methadone.”

24. On 4 July 2011 a Delegate of the Commission issued a decision continuing the veteran’s disability pension at 100% of the General rate – Exhibit 1 T111 pp. 420 – 426.  The Delegate found that the veteran was not eligible to receive the pension at either the Intermediate or Special rate, and made the following findings – Exhibit 1 T111 p. 424:

    “In this case the evidence indicates that the veteran resigned voluntarily from his occupation as a bus driver with Brisbane City Council in May 1995.  There is no information available to suggest that the veteran ever took sick leave regarding his back condition and his employment was not terminated on medical grounds.  It is noted that non-service related disabilities of thoracic spondylosis, cervical spondylosis and adjustment disorder with depressed mood also impacted on the veterans capacity to work.

    Based on the evidence I find that Mr Simmons was not totally and permanently incapacitated nor prevented from continuing work because of accepted disabilities alone.

    Where test 2(a) above is failed, a veteran who has been genuinely seeing work but has been unable to obtain work substantially because of accepted disabilities, shall be regarded as passing that test.

    Efforts to find work must have been genuine and realistic and the veteran must either still be looking for work or would be still looking if not substantially because of accepted disabilities.

    On a recent lifestyle questionnaire, the veteran declared that he had not sought alternative work, nor did he intend to, therefore I am unable to find that he has been prevented from obtaining work due to his accepted disabilities.

    In the circumstances, I am satisfied that the veteran is not eligible for pension at the Intermediate or Special Rate.”

    (emphasis in original)

25. The veteran next lodged an Application for Increase in disability pension on 8 December 2015 – Exhibit 1 T112 pp. 427 – 437.  It is this application that was the subject of the reviewable decision.

26. The stated disability was severe nerve and muscle damage and spinal injury. The signs and symptoms were stated to be severe “pain in upper body everywhere”.  The service contribution was stated as – Exhibit 1 T112 p. 431:

    “Never treated for my injury. Misdiagnosed wrong treatment, put back to work with spinal injury”.

27. In response to the Question, which of the accepted disabilities had worsened and in what way, the veteran gave the following response – Exhibit 1 T112 p. 433:

    “My mobility is much more limited.  I need more help around the home. I’ve needed to take more medicines (painkillers), to do even less, and I’ve had to take more drugs after very light work. I’ve had to take more drugs to sleep.”

28. The veteran stated that he had “nil” employment history for the last ten years or since his last claim and that his disabilities negatively impacted on his ability to seek employment due to the fact that he was in severe pain and was drugged heavily – Exhibit 1 T112 p. 434.

29. The veteran also completed a Lifestyle Questionnaire, which is dated 30 January 2016 – Exhibit 1 T113 pp. 438 – 449.  In the “Employment Activities” section of the Questionnaire the veteran stated that he had ceased working in about 1995 due to ill-health and provided the following explanation – Exhibit 1 T113 p. 447:

    “to much pain, to many painkillers & stress from controlling my pain to work”.

30. The veteran also noted that he had not sought and did not intend to seek employment and then stated – Exhibit 1 T113 p. 448:

    “A long time ago I looked for work but my condition made me a massive workplace liability”.

31. On 27 April 2016 the veteran underwent radiological examinations of his spine.

32. The findings of the cervical spine CT were as follows – Exhibit 1 T117 pp. 454 – 455:

    “There is a slight kyphosis centred around C5 associated with mild rotation of the cervical spine and the upper cervical spine tilts slightly to the right.

    Mild degenerative anterior osteophyte formation is seen arising from the vertebral bodies between C4 and C6 and mild posterior osteophyte formation is also seen on either side of the C4/5 disc space.

    There is slight narrowing of the C4/5 disc ? normal variant or due to degenerative disc disease.

    No disc prolapse is seen at any level throughout the cervical region.

    There is no sign of degenerative change nor subluxation of the apophyseal joints.”

33. The results of the X-ray of the thoracic spine were as follows – Exhibit 1 T117 p. 455:

    “There is a minor thoracic scoliosis concave to the right, slight mid thoracic scoliosis concave to the left and mild lower thoracic scoliosis concave to the right associated with slight rotation of the spine.

    Degenerative osteophyte formation is seen in the mid and lower thoracic spine.

    No wedge crush fractures are seen.

    Metallic clips are seen in the right upper quadrant consistent with previous cholecystectomy.”

34. On 9 June 2016 a Delegate of the Commission decided that the veteran’s claim for an increase in the rate of his disability pension should be rejected – Exhibit 1 T132 pp. 500 – 507. In reaching this conclusion the Delegate gave the following reasons – Exhibit 1 T132 p. 504:

    “In this case the veteran ceased work in 1995.  I note that by his own account that he has not sought work since this time…

    As the veteran has not genuinely sought employment at any time since 1995, and that Dr R Davis (11/11/09) is of the opinion that the veteran’s cervical spondylosis, thoracic spondylosis and adjustment disorder, in part, contributes to his work restrictions, I am satisfied that it is not his accepted disabilities ‘alone’ that have led him to cease employment or preclude him from seeking employment.

    Payment of Special Rate is therefore not warranted in this case.”

35. On 9 June 2018 the VRB affirmed the decision of the Delegate of the Commission – Exhibit 1 T143 pp. 575 – 580.

36. In reaching this conclusion, the VRB, first, rejected the veteran’s contention that he satisfied the “second test” mandated by s 24(1)(b) of the Act.  The VRB noted that there was little documentation as to the type of work for which the veteran was qualified, but went on to conclude that he had the requisite experience to undertake work in the transport industry.  However, the VRB was not satisfied that the veteran was totally and permanently incapacitated  from any of his accepted disabilities - Exhibit 1 T143 p. 578:

    “20… A Work Ability Report dated February 2009 (folio 104) states that Mr Simmons was unfit for work in December 2009, but considers the impact of non-accepted conditions in making this assessment.  Medical impairment assessments for a number of Mr Simmons’ conditions completed in May 2016 are at folios 57-67.  While these assessments reflect Mr Simmons’ incapacity and pain, they do not directly address the question of whether any or all of his accepted conditions alone prevent him from working.  Therefore, in the absence of relevant medical assessments, the Board cannot be reasonably satisfied that Mr Simmons is totally and permanently incapacitated from accepted disabilities, which of themselves alone are of such a nature as to render him incapable of undertaking remunerative work for periods aggregating more than 8 hours a week.”

1. The VRB then considered whether the veteran satisfied the “alone” test prescribed by s 24(1)(c) of the Act and concluded that he did not.  In reaching this conclusion the following reasons were provided – Exhibit 1 T143  p. 579:

   “24. The Work Ability Report from 2009 records Mr Simmons as suffering from depression and chronic back/leg/neck/pain and states that Mr Simmons is unable to work due to chronic pain syndrome.  Mr Simmons has other non-accepted conditions, which include thoracic spondylosis, cervical spondylosis and adjustment disorder with depressed mood.  In the absence of current medical assessments to the contrary the Board cannot be reasonably satisfied that Mr Simmons’ non-accepted conditions do not impact on his work capacity.”

2. The VRB’s attention was then directed to the application of s 24(2)(b) of the Act which aims to ameliorate the otherwise potentially harsh operation of s 24(1)(c).  In concluding that s 24(2)(b) did not operate to assist the veteran, the VRB made the following observations – Exhibit 1 T143 pp. 579 – 580:

   “27. Mr Simmons ceased work in 1995. There is nothing in the material provided to indicate that he has sought remunerative work since that time.  Consequently, the Board cannot be reasonably satisfied that section 24(2)(b) of the Act applies in this case.”

3. The legislative regime governing the Special and Intermediate rates of pension is discussed below.

   LEGISLATIVE OVERVIEW

4. Section 14 of the Act permits a claim for a service pension.  A veteran who is in receipt of a pension can apply for an increase in the rate of pension on the ground that the incapacity has increased since the rate of pension was last assessed – s 15(1).

5. Section 19 prescribes the way in which, inter alia, an application for an increase in the rate of pension is determined.  Subsection 19(5B) directs that an assessment of such an application must be made in accordance with whichever of s 22 (General rate of pension), s 23 (Intermediate rate of pension) or s 24 (Special rate of pension) applies.  Further, s 19(5B) directs attention to ss 25, 27 and 30; which provisions are not relevant to the disposition of this matter.

6. Section 22 makes provision for the Extreme Disablement Adjustment, however, it is only payable when a veteran has attained the age of 65 – s 22(4)(b). The veteran was 56 years of age at the time of the Hearing, and, accordingly, the Extreme Disablement Adjustment is not applicable.

7. In determining eligibility, a veteran’s entitlement is determined in respect of any circumstance within the “assessment period”.  This period starts on the “application day” and ends when the claim or application is determined – s 19(9), definition of “assessment period”.

8. An application is “made” on the day on which the claim or application is received by the DVA – s 19(9), definition of “application day”.

9. The veteran’s Application for Increase in Disability Pension was received by the DVA on 4 February 2016 (Exhibit 1 T112 p. 427) and, accordingly, that is the application day for the assessment period.

10. In Smith v Repatriation Commission (2014) 220 FCR 452 (Smith), Buchanan J made the following observations about the assessment period ([40]/462):

    “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 when 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.”

11. Subsection 120(4) requires that a veteran’s entitlement to an increased pension be decided on the decision-maker’s reasonable satisfaction, which, as explained in Repatriation Commission v Smith (1987) 15 FCR 327, is the civil standard of proof. Subsection 120(6) provides that no onus of proof is imposed on either party.

12. The central concept for determining the amount of pension payable is the degree of incapacity.  Section 21A provides for the determination of the degree of incapacity by reference to the relevant provisions in the Approved Guide to the Assessment of Rates of Veterans’ Pensions (GARP).

13. The degree of incapacity is determined as 10% or a multiple of 10%, not exceeding 100%. In this matter, as previously noted, the veteran’s incapacity has been assessed at 70%.

14. In this matter the question to be determined is whether the veteran is entitled to payment of a service pension at either the Intermediate or Special rate.

15. The Intermediate rate is prescribed by s 23, and, as its nomenclature indicates, is mid-way between the General and Special rates of pension.  It is payable when a veteran, due to service-related causes, is unable to engage in remunerative work except on a part-time basis or intermittently.

16. Consistently with s 23 being focused on veterans who are not totally and permanently incapacitated, but capable of performing part-time or intermittent work, s 23(2) excludes a veteran who is capable of, or is actually undertaking, remunerative work for more than 50% of the ordinary time for that type of work for 20 or more hours per week.

17. Attention, however, must first be focused on the operation of s 24 (Special rate of pension) before turning to s 23.  This follows because s 23(1)(d) provides that s 23(1) applies to a veteran only if s 24 does not – see Rares J in Smith v Repatriation Commission (2014) 220 FCR 452 (Smith) at [8]/455.

18. Subsection 24(1) provides that a veteran is entitled to a pension at the Special rate if:

    (i)a claim has been made under s 14 for a pension, or under s 15 for an increase in the rate of pension being received – s 24(1)(aa);

    (ii)the veteran had not turned 65 when the claim or application was made – s 24(1)(aab);

    (iii)either:

    (a)the  degree of the veteran’s  incapacity from war-caused injury or disease or both, is at least 70% - s 24(1)(a)(i); or

    (b)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 – s 24(1)(a)(ii); and

    (iv)the veteran’s incapacity from war-caused injury or disease, or both, is, of itself alone, of such a nature to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently – s 24(1)(b); and

    (v)the veteran is, by reason of incapacity from war-caused injury or disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of wages, or earnings on his or her own account, that the veteran would not be suffering if the veteran were free from that incapacity – s 24(1)(c); and

    (vi)s 25 does not apply to the veteran – s 24(1)(d).

19. Subsection 24(2) provides that for the purposes of s 24(1)(c):

    (a)a veteran who is incapacitated from a war-caused injury or 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 ceased engaging in remunerative work for reasons other than his or her incapacity from that war-caused injury or 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, who has not attained 65 years of age or more and who has not engaged in remunerative work, satisfies the Respondent that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing to seek remunerative work and that the incapacity is the substantial cause of the inability to obtain remunerative work, the veteran shall be treated as having been prevented by that incapacity from continuing to undertake remunerative work that the veteran was undertaking.

20. Attention needs to be given to the operation of s 28 which provides that when determining for the purposes of s 24(1)(b) (or s 23(1)(b)) whether a veteran, who is incapacitated from a war-caused injury or disease (or both), is incapable of undertaking remunerative work, regard must be had only to the following matters:

    (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 (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 (b).

21. “Remunerative work” is defined in s 5Q to include “any remunerative activity.”

22. The Full Federal Court in Banovich v Repatriation Commission (1986) 6 AAR 113 at 120 held that the phrase “remunerative work which the member was undertaking” in the Repatriation Act 1920 “should be read as a reference to the type of work which the member previously undertook and not to any particular job.”

23. The criteria in ss 24(1)(a)-(c) and 23(1)(a)-(c) are separate and complementary. In order for a veteran to succeed he or she must satisfy each of the mandated criteria.  A failure at any point to satisfy a criteria results in the claim not succeeding – see, for example, Watkins v Repatriation Commission (2014) 142 ALD 106 at [15]/109.

24. These provisions were carefully considered by Buchanan J in Smith.  His Honour made the following observations ([47]-[49]/465-466):

    “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 (ie 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.  Fourthly, 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 (ie 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)

25. His Honour also explained the operation of s 23, which is the “imperfect analogue” of s 24 – see Rares J at [25]/460 in Smith. Buchanan J said ([53]-[54]/467):

    “53 …Although the scheme of s 23 broadly corresponds with the scheme of s 24, there are some important differences which arise from the fact that s 23 deals with incapacities which are not totally disabling.  The principal differences are reflected in the inclusion of s 23(1)(d) (which renders s 23 inapplicable if s 24 applies), s 23(2) (which governs the operation of s 23(1)(b) and s 23(3)(a)(iii) (which accommodates the possibility that a veteran is working less than full-time for reasons other than the relevant incapacity).

    54 Like s 24, s 23 assumes the existence of a disabling incapacity.  Section 23(1)(b) and (c), when read together, also state a composite test containing a series of conditions.  In the case of s 23, s 23(2) states the degree of incapacity which must be established for the purpose of s 23(1)(b).  Accordingly, in the case of s 23 the first condition is that the veteran is rendered incapable of working more than 50% of a full-time work load (or more than 20 hours per week) by the war-related incapacity alone.  The second, third and fourth conditions, which are supplied by s 23(1)(c), are in identical terms to s 24(1)(c), but there are indications elsewhere that those conditions must be applied in the circumstances of lesser incapacity to which s 23(1)(b) is addressed.  The explicit reference in s 23(3)(a) to an incapacity to the extent set out in s 23(1)(b) should be noted in this connection.  So also should the existence and operation of s 23(3)(a)(iii), which is specifically addressed to reasons for engagement in part-time or intermittent work.”

    (emphasis in the original)

    ISSUES

26. It is not contested (Respondent’s Statement of Facts, Issues and Contentions (RSIFC) p. 12) that:

    (a)the veteran made a valid application under s 15 for an increase in the rate of the pension he is receiving – s 24(1)(aa), s 23(1)(aa); and

    (b)the veteran had not yet turned 65 years of age when the application was made – s 24(1)(aab), s 23(1)(aab);

    (c)the veteran is being paid the disability pension at 100% of the General rate, and, therefore, exceeds the 70% of the General rate threshold – s 24(1)(a)(i), s 23(1)(a)(i).

27. The primary issues that call for consideration are as follows:

    (a)is the veteran incapacitated from working more than 8 hours per week from the commencement of the assessment period by virtue of the impairments resulting from his accepted disabilities – s 24(1)(b);

    (b)if a positive response is evinced to the s 24(1)(b) inquiry, is the veteran by reason of incapacity from his service-caused conditions, alone, prevented from continuing to undertake remunerative work that he was undertaking – s 24(1)(c);

    (c)if a negative response is evinced, has the veteran, despite not having engaged in remunerative work, been genuinely seeking to engage in such remunerative work and that incapacity is the substantial cause of the veteran’s inability to obtain remunerative work – s 24(2)(b); and

    (d)if a positive response is evinced at either (b) or (c), is the veteran, by reason of being prevented from continuing to undertake remunerative work, suffering a loss of salary or wages, or earnings, that he would not be suffering if he was free of that incapacity – s 24(1)(c).

28. Neither at the Hearing or in the written submissions was the Tribunal’s attention drawn to the requirements of s 23.  The focus of both the veteran and the Commission was whether the requirements of s 24 were met and no submissions were made with respect to s 23.  This is not surprising as the veteran contends that he is totally and permanently incapacitated.

29. As the parties have not made submissions on s 23 the Tribunal has not addressed s 23 in the reasons below. However, the Tribunal has reached the conclusion that the veteran has not satisfied the first limb of s 24(1)(c). As previously noted, ss 23(1)(c) and 23(3)(b) are drafted identically to ss 24(1)(c) and 24(2)(b). The Tribunal is reasonably satisfied that in the particular circumstances of this matter, the failure to satisfy the requirements of the first limb of s 24(1)(c) would, prima facie, be duplicated by a failure to satisfy the requirements of s 23(1)(c) and, further, the inapplicability of the ameliorating effect of s 24(2)(b) would also flow on to s 23(3)(b). However, in the absence of submissions, the Tribunal makes no findings with respect to s 23.

    HEARING

30. A Hearing was convened in Brisbane on 27 June 2019.

31. The veteran was self-represented and made submissions.  The Commission was represented by Mr P Crethary of Moray & Agnew Lawyers.

32. Neither the veteran, nor Mr Crethary, called any witnesses.

33. At the conclusion of the Hearing, leave was given to the parties to provide written submissions rather than an oral summing-up.  The Tribunal received the veteran’s summing-up in the form of an email dated 18 July 2019.  The Commission provided the Tribunal with a document entitled “Respondent’s Submissions” (RS) dated 5 August 2019.

    CONSIDERATION

    Capacity for work – ss 24(1)(b), 23(1)(b) and 28

34. As Hill J observed in Wright and Repatriation Commission (2005) 144 FCR 302 at [15]/308 ss 24(1)(b) and (c) “pose different hurdles which the veteran must surmount”. His Honour explained that s 24(1)(b) “goes to the nature and level of incapacity by which ability to undertake remunerative work is to be assessed. If the character and effect of the incapacity is such as to render the veteran incapable of undertaking remunerative work for a period aggregating more than eight hours per week then s 24(1)(b) is satisfied.”

35. As was explained by Buchanan J in Smith, the primary difference between ss 24(1)(b) and 23(1)(b) is the amount of remunerative work a veteran is rendered incapable of undertaking.  Rares J observed in Smith (at [8]/455) the evident intention of s 24(1)(b) “is to define when a veteran is totally and permanently incapacitated for the purposes of determining whether he or she can qualify for an increase in the rate of pension.” In contradistinction s 23(1)(b) contemplates that a veteran is capable of working on a part-time basis or intermittently. Consequently s 24(1)(b) contemplates that a veteran is incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. In contradistinction, s 23(1)(b) contemplates a veteran being either able to undertake remunerative work for 50% of the time ordinarily worked by persons in work of that kind on a full-time basis or being capable of undertaking work for more than 20 hours per week – s 23(2).

36. It is important to note that the task of the Tribunal is to make a determination on the veteran’s capacity to engage in remunerative work during the assessment period.

37. The VRB in the reviewable decision was not satisfied that the veteran was totally and permanently incapacitated from his accepted conditions – Exhibit 1 T143 p. 578.

38. This issue was not pressed by the Commission either in its written submissions (RSFIC pp. 14 – 15) or during the Hearing. Instead, the Commission has focused on whether the veteran has satisfied the requirements of s 24(1)(c).

1. In the absence of any submissions on this matter, the Tribunal, in accordance with the beneficial nature of the legislation, will proceed on the assumption that the requirements of s 24(1)(b) are met.

   Prevented from undertaking remunerative work – ss 24(1)(c), s 23(1)(c)

   Introduction

2. The drafting of the provisions relating to veterans’ pensions is opaque and poses numerous difficulties for a decision-maker.  The copious jurisprudence on these provisions highlights the errors that often occur when attempting to apply these provisions.

3. When applying s 24(1)(c) to a particular case recourse is often made to the Flentjar methodology. This “methodology” is simply the answering of four questions which were posed by Branson J in Flentjar v Repatriation Commission (1997) 26 AAR 93 (at 95 – 97) namely:

   (a)what was the relevant remunerative work that the veteran was undertaking within the meaning of s 24(1)(c)?

   (b)is the veteran by reason of a service-caused injury or disease, or both, prevented from continuing to undertake that work?

   (c)If the answer to the second question is in the affirmative, is the service-caused injury or disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?

   (d)If the answers to the second and third questions are in the affirmative, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?

4. The Flentjar methodology provides a helpful tool for a decision-maker, but it does not have the force of law.  Just as with the Deledio methodology, a decision-maker must apply the relevant statutory provision and not be distracted by a mechanistic application of methodologies that are aimed at assisting the application of the law rather than supplanting it – see Repatriation Commission v Richmond (2014) 226 FCR 21 at 34/[50] (Richmond).

5. Before turning to the Flentjar methodology, reference should be made to the clear and very helpful analysis of s 24(1)(c) by the Full Federal Court in Richmond.

6. The Full Court pointed out that s 24(1)(c) has two limbs – 34/[52] – [53]:

   “52…The first limb, which is capable of being informed by s 24(2)(b) requires a causal connection between the veteran’s war-caused incapacity, alone, and the veteran’s inability to undertake the remunerative work he or she previously engaged in.

   53. The second limb, which is amplified by s 24(2)(a) requires a causal connection between that inability to work and the veteran’s suffering of financial loss. The enquiry under this limb relates to whether the veteran’s financial loss is a result of his or her war-caused incapacity.”

   Question 1 – nature of the remunerative work

7. The first question focuses on the requirement that the veteran is prevented from continuing to undertake remunerative work that the veteran was undertaking.

8. The Full Federal Court in Banovich v Repatriation Commission (1986) 69 ALR 395 considered a similar provision in the Repatriation Act 1920. The Full Court provided the following guidance (at 402 – 403):

   “The term ‘remunerative work’ is used in the Schedule in a context which indicates an intention to refer to work generally… Consistently with that use, the phrase ‘remunerative work which the respondent was undertaking’ should be read as a reference to the type of work which the member previously undertook and not to any particular job.  It follows that a member’s loss of particular employment for a reason unrelated to a war disability would never destroy a member’s subsequent entitlement to claim a special rate pension; the question would remain, at the relevant date for determination of a claim whether the member was prevented by his or her war-related incapacity-and by that incapacity alone-from continuing in that field of remunerative activity.”

9. This approach was subsequently adopted by the Full Federal Court in its consideration of s 24 in Repatriation Commission vHendy (2002) 76 ALD 47. The Full Court made the following observations (at 54/[36]):

   “The tribunal’s task was to assess what the veteran probably would have done, if he had none of his service disabilities during the assessment period.  The requirement to consider ‘remunerative work that the veteran was undertaking’ does not mean a particular job with a particular employer but the substantive remunerative work that the veteran had undertaken in the past.  That is the exercise that the tribunal undertook.  The tribunal was not bound to limit its consideration to the last employment that the veteran actually undertook.”

10. The last mentioned point in the quotation above, follows the conclusion reached in Starevich v Repatriation Commission (1987) 18 FCR 221, which also involved a consideration of the Repatriation Act 1920.

11. The Federal Court has also held that, generally, a decision-maker is to exclude from consideration work that was undertaken for only a short period and unsuccessfully.

12. As to the first of the two propositions, Hill J in Birtles v Repatriation Commission (1991) 33 FCR 290 identified the question to be answered as follows (at 299):

    “…has the veteran by reason of his war incapacity been prevented from ‘continuing’ a type of remunerative work which he previously undertook (not being work undertaken only for a short period)?”

13. As to the second point, the Full Federal Court in Sheehy v Repatriation Commission (1996) 41 ALD 205 rejected a submission by Mr Sheehy that the notion of “undertaking” work signified nothing more than undertaking the task of working, not necessarily successfully undertaking it.

14. The Full Court made the following observation (at 210):

    “Although it is perhaps understandable that there have been references in the cases to a ‘short’ or ‘very short’ period of work, we would prefer to say that the ‘remunerative work that the veteran was undertaking’ must have been ‘performed or successfully undertaken’ or ‘effectively undertaken’.”

15. In an Employment Report dated 22 June 2011 the veteran, in response to a Question seeking information on what trade, special skills or other qualifications he had, answered by stating “none” – Exhibit 1 T110 p. 419.

16. The material highlights that after leaving the Army the veteran was primarily engaged as either a storeman or a bus driver, although he was employed for a very short period as a carpet cleaner. It will be seen that the type of work the veteran was engaged in could be classified as manual labour not requiring specific qualifications, with a focus on the transport industry.

    Question 2: prevented from continuing to undertake remunerative work

17. The proper construction of “prevented from” continuing to undertake remunerative work was provided by the Full Federal Court in Richmond.

18. The Full Court, first, broadly approved the findings on this point by the primary judge – 37/[70]:

    “The learned primary judge held that the expression ‘alone, prevented from…work’ in the first limb of s 24(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.”

19. After rejecting the submissions of the Commission, the Full Court then concluded as follows – 88/[77] – [78]:

    “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.”

20. In this matter the veteran voluntarily ceased working for the Brisbane City Council and he has not been in gainful employment since that time. As the above summary of this matter highlights much has been made of the fact that the veteran’s employment was not terminated against his will, and there is scant documentation that he was availing himself of sick leave up to the time his employment ended.

21. A close reading of the Full Court’s reasons in Richmond supports the proposition that a veteran’s decision to voluntarily cease employment, of itself, is no bar to satisfying the “prevention” requirement in s 24(1)(c). The Full Court referred to voluntarily ceasing work “for a reason other than incapacity”. In short, if a veteran determines of his or her own accord to cease employment because the service-caused ailments are of such disabling effect, then that is no bar to satisfying the requirements mandated by s 24(1)(c). In contradistinction, if a veteran voluntarily determines to cease employment for reasons other than the disabling effects of a service-related ailment(s), then, prima facie, the requirements of s 24(1)(c) would not be met.

22. Here, the undisputed evidence before the Tribunal is that the veteran was suffering from his service-related conditions at the time he was employed by the Brisbane City Council, and that his illness was of such magnitude that he felt he could not continue in that employment.  His decision to stop working, therefore, is no bar to satisfying the requirements of s 24(1)(c), and the Tribunal finds accordingly.

23. Reference can be made to the veteran’s closing statement in an email dated 18 July 2019, in which he stated:

    “My spondylothesis caused me more and more pain.  While driving which in turned got me on to more and higher doses of painkillers. Which caused the stress of endangering the public. The stress of not keeping up to timetables as the spondylothesis pain great. More stress of missing work from spondylothesis pain or the drugs that effected. I also could never mentioned my back pain, as a reason for days off as I lied to Brisbane City Council of have no back troubles to get a bus driving job. Which all shows how I finished working solely being caused by my spondylothesis.”

24. The importance of this finding relates to both the first, and, more particularly, the second limb of s 24(1)(c).

25. Further, the Tribunal is required to determine if the prevention requirement is met not at the time the veteran ceased working, but during the assessment period.

26. There is ample medical evidence which has been set out above which demonstrates that the veteran’s service-related conditions have not ameliorated since the time he ceased employment in 1995.  Indeed, the evidence discloses that not only has his over-all medical condition not improved, but the disabling effects of his ailments have progressively worsened.

27. The Tribunal is reasonably satisfied, then, that the medical evidence supports the proposition that the veteran’s service-related conditions met the prevention requirement of s 24(1)(c) during the assessment period.

    Question 3:  alone, prevented from continuing to undertake remunerative work

28. For a number of years there was conflicting Federal Court authority on the “alone” test. Any doubt about the proper construction of s 24(1)(c) was resolved first by the Full Federal Court decision of Richmond, which decision was subsequently endorsed by a differently constituted Full Federal Court in Repatriation Commission v Watkins (2015) 228 FCR 573.

29. In Richmond the Full Federal Court provided the following explanation of the “alone” test (35/[58]):

    “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.”

30. In reaching this conclusion, the Full Federal cited with approval a number of earlier Federal Court decisions. For present purposes reference can be made to the following observations of R D Nicholson J in Forbes v Repatriation Commission (2000) 101 FCR 50 at 57/[40]:

    “As in the case of the present applicant, it is possible that the war-caused condition will be by far and away the more dominant of the causes of the preventative effect where there is also present a non-war caused condition having such effect in combination.  The result is that the presence of the latter will deny to a veteran qualification for the special rate of pension…”

31. The Commission submits (RSFIC p. 16 para 15) that from the commencement of the assessment period the veteran was suffering, and continues to suffer, from a number of non-service related conditions, including cervical spondylosis, thoracic spondylosis, depression and anxiety, hypertension and carpal tunnel syndrome.

32. The Commission further contended (RS para 14(v)) that the historical and continued presence of some or all of these conditions continue to impact on the veteran’s ability to engage in remunerative work, with the consequence that he cannot satisfy the alone test.

33. The veteran provided his response in his email of 18 July 2019. Relevant extracts from that email are set out below:

    “My accepted condition of spondylothesis L5-S1, is the root cause of most conditions listed by Vet Affairs causing me to be unable to work eight and a half hours a week…

    The medical report of Dr Whinstanley [sic] says that all of my other back and muscle pain where secondary to my spondylothesis which, cause my thoracic spondylothesis or the symptom of my spondylothesis…

    The Vet Aff claim of carpal tunnel syndrome, hinder my working hours is another case of no one in the dept looking in to case properly.  My carpal tunnel syndrome, where both quickly operated on and Everything was fixed and pain free of those pains, Which is many years ago.  Why Vet Aff thinks this is debilitating is solely for them to prove.

    The Vet Aff claim of adjustment disorder with depressed mood and depression is another case of no one in Vet Aff looking in to my complaints of case.  The depression etc, was first showing signs I was driving Buses and steadily got worse, till I was treated with higher doses of pain medication.  I was mentally affected by my pain and the grinding down it caused. I gradually got better and in a far better mental place, but Vet Aff would have no way of any of this, no one ever did follow up. The depression mentioned in the last doctor’s reports is solely as a side effect of high doses of tramadol. Another refusal of Vet Aff is high doses of tramadol and my other medicines.  Give me and most people side effects. Also I‘ve very received any treatment or medicine for any mental health.”

34. The Commission issued Summons to Produce Documents to various medical centres and WorkCover Queensland.  The material obtained is contained in Exhibit 2. A perusal of the material obtained from the Channon Street Medical Centre, Gympie, discloses that in 2014 the veteran was suffering from carpal tunnel syndrome of the right hand and was woken up, on average, three times a night by the pain associated with it – Exhibit 2 p. 49.

35. On 29 September 2014 the veteran underwent a carpal tunnel release operation at the Sunshine Coast Day Surgery of Dr T.K. Ho, Orthopaedic Surgeon. Dr Ho gave the following report of the surgery – Exhibit 2 p. 51:

    “The patient is supported in a light bandage for 2 days.  The patient can resume immediate finger motion and start to use the hand for light activities and self-care activities, as tolerated.

    One expects a good prognosis.”

36. On 30 March 2015 the veteran was examined by Dr James Tunggal, Orthopaedic Surgeon, for problems he was experiencing with his right thumb. In the course of examining him for that complaint, Dr Tunggal also opined on the veteran’s carpal tunnel operation – Exhibit 2 p. 54:

    “He has had both his carpal tunnels released previously with good result.  He currently complains of no neurovascular symptoms.”

37. Accordingly, the evidence before the Tribunal is that during the assessment period the veteran was not afflicted with the symptoms of carpal tunnel syndrome.

38. The medical records contained in Exhibit 2, however, disclose that during the assessment period the veteran was receiving treatment for numerous non-accepted conditions that were negatively impacting on his health and lifestyle.

39. The medical records of the Channon Street Medical Centre, Southside Medical Centre and Landsborough Medical Centre are voluminous and disclose that the veteran was seeking medical assistance for multiple ailments on a frequent basis over an extended period of time.

40. The Patient Health Summary for the Channon Street Medical Centre, Gympie, which was printed on 21 November 2018, lists the veteran’s “Active Past History” as including the following ailments – Exhibit 2 p. 22:

    “Previous methadone addition

    Previous sensitivity to Mobic and celebrex
    Constipation
    Depression
    Peyronie’s disease
    Hypertension
    Chronic Pain: back, neck, leg pain since age 22. Shoalwater Bay accident carrying pack landslide struck tree with back spine ‘cracked’ by Dr / chiropractor at scene no Xray or scan
    GORD
    Spondylolisthesis: L5/S1
    DVA medical: white card
    2003 Left Carpal Tunnel release
    06/2006 Gallstones: empyema
    01/2011 Colonoscopy: due again in 2014
    2012 Hypercholesterolaemia
    25/09/2014 Asthma: As per Dr. R. Davis
    11/2014 Right Carpal Tunnel release
    08/12/2014 Back strain
    05/01/2015 Insomnia.”

41. Also as at that date, the veteran was prescribed the following medications: Asmol CFC-Free 100mcg/dose inhaler, Crestor, Diazepam, Lyrica, Metamucil, Motilium, Panadol Osteo, Restavit, Somac, Targin, Tramal capsule and Tramal slow release tablets.

42. The Patient Health Summary of the Southside Medical Centre, Gympie, which was printed on 19 November 2018, lists the veteran’s “Active Past History” as including the following reported ailments – Exhibit 2 p. 66:

    “Previous methadone addiction

    Previous sensitivity to mobic and celebrex
    Insomnia
    Asthma: As per Dr. R. Davis
    Back strain
    Gallstones: empyema
    Constipation
    Depression
    Colonoscopy: due again in 2014
    Hypercholesterolaemia
    Hypertension
    Chronic Pain:  back, neck, leg pain since age 22. Shoalwater Bay accident carrying pack landslide struck tree with back spine ‘cracked’ by Dr / chiropractor at scene no Xray or scan
    GORD
    Spondylolisthesis: L5/S1
    Left Carpal Tunnel release
    Right Carpal Tunnel release
    DVA medical: white card”.

43. The records disclose that whilst some of these ailments had either resolved or been effectively treated by November 2018, others persisted and were causing the veteran ongoing problems.  For example, on 24 May 2016 Dr Davis referred the veteran for a panendoscopy and noted that the veteran “has some persisting GORD symptoms despite PPI and occasional prokinetic agent.  He also is due for screening colonoscopy with a positive family history for bowel carcinoma “ – Exhibit 2 p. 166.

44. Dr Davis prepared very detailed Care Plan Summaries for the veteran in the period 2013 – 2015. The 2015 Plan lists the following extant medical conditions the veteran was being treated/monitored for: hyperlipidaemia, gastro-oesophageal reflux, hypertension, mood disorder, arthritis, sun-related skin disease, cardiovascular disease, asthma, chronic pain, glaucoma risk – Exhibit 2 p. 170.

45. The veteran sought medical assistance from Dr Davis on 16 February 2016 for depression, and a letter was prepared in respect of a Mental Health Plan – Exhibit 2 p. 37.

1. On 19 April 2016 the veteran complained to Dr Davis of back pains from the base of the spine right up to his neck and with referred chest pains – Exhibit 2 pp. 37 – 38.

2. Dr Mattias Faldt examined the veteran on 24 August 2017 in respect of the veteran’s complaints of ongoing constipation – Exhibit 2 p. 40.

3. As previously mentioned, the veteran underwent radiological examinations on 27 April 2016 which disclosed he was suffering from degenerative spinal disease of the cervical and thoracic spine.

4. Absent carpal tunnel syndrome, the Tribunal agrees with the submission of the Commission (RSFIC p.16 para 15) that from the commencement of the assessment period and continuing until the date of this decision, the veteran was and is suffering from a number of non-service related conditions, including cervical spondylosis, thoracic spondylosis, depression and anxiety and hypertension. Indeed, as the medical records referred to above highlight, this is far from being an exhaustive list of the non-service related ailments which the veteran is, unfortunately, afflicted with.

5. Applying Richmond, the Tribunal is reasonably satisfied based on the above medical records, that the veteran is afflicted with non service-related conditions/ailments which play a part in his inability to work or to obtain and hold remunerative employment. Accordingly, the Tribunal is reasonably satisfied that the veteran does not satisfy the alone requirement of s 24(1)(c).

6. This finding does not exhaust the inquiry required of the Tribunal.  The otherwise harsh operation of the alone test is somewhat ameliorated by the operation s 24(2)(b) which provides that where a veteran, who is under 65 years of age,  and has not been engaged in remunerative work satisfies the Commission that:

   (a)he or she has been genuinely seeking to engage in such work; and

   (b)would, but for a service-caused incapacity, be continuing to engage in remunerative work; and

   (c)the service-caused incapacity is the substantial cause of the veteran’s inability to obtain such work;

   the veteran is deemed to have been prevented from continuing to undertake remunerative work by reason of the service caused incapacity.

7. The proper construction of s 24(2)(b) was provided by the Full Federal Court in Smith.  For the purpose of this matter reference can be made to the judgment of Rares J.  His Honour provided the following guidance to the application of s 24(2)(b) (458 – 459):

   “21. Section 24(2)(b) is facultative.  It can apply both to a veteran who has never been engaged in remunerative work and to one who had, but for any reason, subsequently ceased work, and later sought to obtain remunerative work.  Section 24(2)(b) does not connect the loss of income to the veteran’s inability to continue remunerative work under s 24(1)(c). Yet, one way that a veteran could demonstrate that he or she was unable to engage in remunerative work, after a period in which the veteran had not been engaged in such work, would be to show that he or she had been seeking to do so and could not obtain such work (see s 28). A sympathetic or loyal employer who ceased, for any reason, to employ a veteran suffering a war-caused injury, may have been the only person willing to employ someone with such an injury to perform that kind of remunerative work. For example, the employer may no longer be able to afford the cost of employing the veteran or may have ceased business.  Once that source of employment has ceased to be available, the veteran may be able to satisfy s 24(1)(c) merely because no other person would engage him or her in remunerative work by reason only of the incapacity from the war-caused injury.  It may not be necessary to show that the veteran has sought such work because in the particular circumstances of the now former employer make it clear that that person had treated the veteran in an exceptional or unique way.  But, the veteran could also seek to bring himself or herself within s 24(2)(b) by demonstrating attempts to seek remunerative work.

   22. The veteran can make an application under s 15 if he or she has already tried to seek and failed to obtain remunerative work within the meaning of s 24(2)…

   23. The veteran must sincerely or honestly do something to attempt or try to engage in remunerative work: Leane v Repatriation Commission (2004) 81 ALD 625 at [28] per Emmett, Conti and Selway JJ. Their Honours held that the word ‘genuinely’ in s 24(2)(b) referred to the subjective intention of the veteran.  They said that the way in which a veteran might establish his or her case to satisfy the requirement in s 24(2)(b), that ‘he or she has been genuinely seeking to engage in remunerative work’, was a practical issue.  Their Honours held that it was not essential that there be objective signs of active pursuit of remunerative work, although, in the ordinary course, it may be difficult for the veteran to establish the requirement in the absence of such objective material. They gave an example of a veteran who honestly wished to engage in remunerative work, had made a reasonable assessment of his or her disabilities, had reasonably concluded that he or she could only be employed in a particular type of work, was checking employment advertisements on the look-out for such work, but had not yet identified any such employment prospects (at [29]).”

8. There is nothing in the material before the Tribunal which would support the proposition that the veteran was placed in a special position by any of his former employers such that when his employment ceased no other employer would be likely to employ him.

9. The evidence discloses that after the veteran voluntarily terminated his employment with the Brisbane City Council in 1995 he has not engaged in any further remunerative work.  The evidence does not support the proposition that the veteran was incapable of engaging in remunerative work as he sought employment with two companies in 1998 as a storeman, but was not engaged when he informed them about his back injury – Exhibit 1 T110 p. 419.

10. For the past twenty years the veteran has not sought to engage in remunerative employment.  For example, in a Lifestyle Questionnaire dated 21 June 2011 in response to a Question whether he had sought or intended to seek employment, the veteran ticked the “No” box – Exhibit 1 T109  p. 416.  Further in response to the same Question in a Lifestyle Questionnaire dated 30 January 2016, the veteran ticked both the “No” and the “Yes” boxes, and provided the following explanation for ticking the “Yes” box – Exhibit 1 T113 p. 448:

    “A long time ago I looked for work but my condition made me a massive workplace liability.”

11. The evidence discloses that the veteran made a few efforts to seek employment in approximately 1998, but has made no effort since that time to make even cursory enquiries about any form of remunerative work.

12. As Rares J highlighted in Smith, the requirement in s 24(2)(b) to genuinely seek to engage in remunerative work requires the application of a subjective test. However, as his Honour also highlighted, even if there is no objective manifestation of a veteran’s subjective desire to obtain employment, there must be some evidence presented to the decision-maker that the veteran actually wants to work. Further, the decision-maker is required to approach this matter in a practical way, and to weigh up a number of factors. If a veteran wants to work and sensibly evaluates his or her capacities and skills but finds no prospective employment that would, prima facie, meet the requirements of s 24(2)(b).

13. Here, there is no evidence that the veteran has made any effort in the last 20 years to seek work or to ascertain what work may be available.  No doubt, the veteran would say that he is unfit to engage in any remunerative work and it would be a waste of his time and that of any prospective employer to engage in an exercise that would be bound to fail. However, such a point of view necessarily evinces the following responses.  The first is that the veteran did seek employment in 1998 and obviously was of the opinion that he could engage in the workplace.  Second, whilst it is clear that the veteran is a sick man and is afflicted by a plethora of ailments, the evidence before the Tribunal does not suggest that he is incapable of any work.  Certainly, his work capacity is very limited, and with the passage of time and the length of time out of the workplace, his ability to obtain remunerative work decreases year by year. Nonetheless, the veteran has in reality adopted the self-fulfilling prophecy that he can’t work and therefore won’t make any effort to find work.  Finally, the veteran has consistently claimed that his ability to gain employment is the unwillingness of employers to engage him.  In short, the veteran has substantially assigned the cause of his inability to gain remunerative work to unwilling employers, rather than his conscious decision not to seek employment.  In these circumstances, the Tribunal is not satisfied that he has genuinely sought to engage in remunerative work.

14. Having made this finding, it is not necessary to inquire as to whether the accepted service-caused conditions are the “substantial cause” of the veteran’s inability to obtain work.

15. However, for the sake of completeness, reference can be made to the judgment of Kiefel J (as she then was) in Fox v Repatriation Commission (1997) 45 ALD 317 where her Honour made the following observations (at 319 – 320):

    “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’…”

16. Reference can also be made to Repatriation Commission v Woodall [2015] FCA 243 where Tracey J observed that the requirement that a war-caused incapacity must be “the substantial cause” of the veteran’s inability to obtain work “clearly recognises that factors, additional to war-caused injury, may impede a veteran who is seeking to obtain employment.”

17. There is little doubt that the veteran’s service-related conditions play a large role in his state of ill-health.  However, they are by no means the only ailments that afflict the veteran and limit his capacity to find remunerative work. As noted above, Dr Davis opined in 2009 that the veteran was unable to work because of chronic pain syndrome – Exhibit 1 T103 p. 360.

18. During the assessment period the veteran was being treated for a number of non-accepted conditions, including depression.  Further, and perhaps more importantly, the radiological evidence demonstrates that the veteran is suffering not only from lumbar spinal problems, but also degenerative disease of both the thoracic and cervical spine. 

19. In these circumstances, it is not possible to find that the veteran’s accepted conditions are the substantial cause of the veteran’s inability to obtain remunerative work.  The veteran’s lumbar spine condition plays an important part in his overall state of ill-health, but it is only one of a number of ailments that cumulatively have been productive the veteran’s medical state.

20. In these circumstances that Tribunal is reasonably satisfied that the veteran’s service-related conditions are not the substantial cause of his inability to obtain remunerative work.

    Question 4 - suffering a loss of salary, wages or earnings

21. Having not satisfied the first limb of s 24(1)(c) it is not necessary to consider whether the evidence meets the requirements of the second limb.

    DECISION

22. The decision under review is affirmed.

I certify that the preceding 176 (one hundred and seventy-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

.....................................................................

Associate

Dated: 25 October 2019

Date of hearing:	27 June 2019
Date of last submissions:	5 August 2019
Applicant:	Self-Represented
Solicitor for the Respondent:	Mr Peter Crethary
Solicitors for the Respondent:	Moray & Agnew Lawyers