Sisley and Repatriation Commission (Veterans' entitlements)

[2018] AATA 4078

Sisley and Repatriation Commission (Veterans' entitlements) [2018] AATA 4078 (31 October 2018)

Division:VETERANS' APPEALS DIVISION

File Number(s):      2015/4878

Re:Alan Sisley

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Deputy President Dr P McDermott RFD

Date:31 October 2018

Place:Brisbane

The decision under review is affirmed.

..........................[SGD].......................................

Deputy President Dr P McDermott RFD

CATCHWORDS

VETERANS’ AFFAIRS – application for special rate of pension – conditions accepted as war-caused – whether applicant is entitled to intermediate or special rate of pension – whether the applicant prevented from undertaking remunerative work – whether alone test in s 24(1)(c) of the Veterans’ Entitlements Act 1986 (Cth) is met – whether ameliorating provisions of the Act apply – alone test is not met – ameliorating provisions are not met – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Veterans’ Entitlement Act 1986 (Cth)

CASES
Repatriation Commission v Richmond (2014) 226 FCR 21
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Watkins (2015) 144 ALD 17

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

31 October 2018

INTRODUCTION

1. The applicant, Mr Alan Sisley, is currently in receipt of the disability pension from the respondent at a rate of 80%. He is now seeking for his rate of pension to be increased to the special rate. The applicant was under 65 years of age at the time of his application.

2. The applicant served in the Australian Army (“the Army”) from approximately 11 June 1968 to 10 September 1969. He was a member of the Army Reserve (“the Reserves”) until November 2014 and was discharged on an invalidity basis.[1] He has not worked since this time.

   [1] Exhibit F, Service medical records, p. 32.

3. The applicant has the following conditions accepted as war-caused by the respondent:

   a)Post-traumatic stress disorder (“PTSD”)

   b)Sensorineural hearing loss

   c)Localised osteoarthrosis of left shoulder

   d)Localised osteoarthrosis of both knees

   BACKGROUND

4. On 1 September 2011 the applicant lodged an informal claim for the acceptance of his PTSD and an increase to his disability pension.

5. On 24 July 2013 the respondent accepted the applicant’s condition of PTSD as service-related with effect from 1 June 2011. The applicant’s disability pension was increased to 80% of the general rate, and to 90% of the general rate from 24 July 2011. In a subsequent decision of the respondent dated 4 December 2013, it was confirmed that the disability pension would be continued at 90% of the general rate with effect from 24 July 2011.

6. On 2 January 2014 the applicant requested a review of this decision which refused payment of the pension at either the intermediate rate or special rate of pension.

7. On 30 June 2015 the Veterans’ Review Board (“VRB”) affirmed the decision under review.

8. On 18 September 2015 the applicant lodged an application for review with this Tribunal.

9. This application originally went to a hearing on 5 December 2016. By the consent of the parties, the decision under review was remitted back to the respondent for reconsideration under s 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”)

10. On 14 February 2017 the respondent made a decision to reduce the applicant’s disability pension to 80% of the general rate with effect from 28 February 2017. By the operation of s 42D(3)(a) of the AAT Act, the application before the Tribunal is now taken to be the application for review of the decision of 14 February 2017.

    LEGISLATIVE FRAMEWORK

11. The applicant’s service in the Army from 11 June 1968 to 28 February 1969 and from 12 April 1969 to 10 September 1969 is taken to be ‘operational service’ for the purposes of s 6A of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). There has been some contention regarding the specific dates the applicant served in Vietnam: however, it is sufficient for the purposes of this provision that he performed operational service.

12. The standard of proof to be applied in this matter is outlined in s 120(4) of the Act. I must determine all relevant issues to my reasonable satisfaction.

13. To be eligible for pension at the special rate, the requirements of s 24 of the Act must be met. Section 24 provides:

    24 Special rate of pension

    (1)  This section applies to a veteran if:

    (aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and

    (aab) the veteran had not yet turned 65 when the claim or application was made; and

    (a) …

    (i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; …

    (b) the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and

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

    (2)  For the purpose of paragraph (1)(c):

    (a)  a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:

    (i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or

    (ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and

    (b)       where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.

14. Section 28 of the Act provides:

    28 Capacity to undertake remunerative work

    In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:

    (a)the vocational, trade and professional skills, qualifications and experience of the veteran;

    (b) the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and

    (c) the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).

15. Section 23 of the Act outlines the eligibility requirements for payment of the pension at the intermediate rate:

    23 Intermediate rate of pension

    (1)  This section applies to a veteran if:

    (aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and

    (aab)  the veteran had not yet turned 65 when the claim or application was made; and

    (a)  either:

    (i)  the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or

    (ii)  the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and

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

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

    (d) section 24 or 25 does not apply to the veteran.

    (2)  Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:

    (a)  if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or

    (b)  in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking--if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.

    (3)  For the purpose of paragraph (1)(c):

    (a)  a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1)(b) 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:

    (i)  if the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both;

    (ii)  if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or

    (iii)  if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; and

    (b)  where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented, by reason of that incapacity, from continuing to undertake remunerative work that the veteran was undertaking.

    EVIDENCE

    The applicant

16. During the VRB hearing the applicant went into detail about his history with the Army. He stated that he was an air traffic controller with the Department of Civil Aviation when he was called up for National Service with the Army. He served as a rifleman in Vietnam for a period of time, and when he returned he signed on for another few years. He transferred to the Reserves in 1972, and returned to civilian employment with Department of Civil Aviation. When the applicant was made redundant from his civilian job in 1994 he accepted any Reserve work offered to him. Over the years he completed periods of continuous full-time service with the Reserves, including a 3 year period around 2009 at Shoalwater Bay. It was during this period that he developed throat and bowel cancer, and he received treatment for these conditions by the Army. The applicant continued to work at Shoalwater Bay as there were issues getting regular Army staff for that particular job, and he was asked to extend his service past the normal compulsory retirement age of 65.

17. In an undated statement filed on 2 March 2016, the applicant stated that he was forced to work until his PTSD was accepted by the respondent because they had failed to accept his condition at an earlier stage.[2] He stated that he only worked because his present rate of pension was an insufficient source of income. He also believes that the respondent should have accepted his condition as early as 1995 or 2000.[3]

    [2] Exhibit C, Statement of concerns filed on 2 March 2016, p. 3.

    [3] Exhibit C, Statement of concerns filed on 2 March 2016, p. 3.

18. In an earlier letter dated 22 December 2013, the applicant commented again on the necessity for him to continue working while he was waiting for his condition to be accepted. He stated that he worked because he had to provide for himself and his family, and he knew his “prospects were not bright once [he] reached 65 years of age and unemployable”.[4] He was of the belief that he would never be granted an increase to his pension due to the length of time that he had been arguing with the respondent. Under cross-examination at the hearing the applicant confirmed that he believed he would be unemployable when he reached 65 years of age.

    [4] Exhibit A, T-Documents, T31, p. 162.

19. During cross-examination the applicant was referred to a note in his medical records dated 31 January 2014 which indicated that he intended to retire the next year.[5] This note also recommended a reclassification to J23 given the successful treatment of the applicant’s cancers. The applicant responded to this by clarifying that this intention was due to the fact that his contract only went until that time.

    [5] Exhibit F, Service medical records, p. 8.

20. The applicant has spoken about how his other medical conditions prevented him from fulfilling the ongoing requirements of his role with the Army. At the time, in 2012, his medical classification was J42 due to his cancers. In order to allow his separation, the Army needed to reclassify him to a higher medical standard.[6] At the hearing, the applicant stated that until this was done, he had to keep working.

    [6] Exhibit C, Statement of concerns filed on 2 March 2016, p. 4.

21. In July 2013 when he received the first decision from the respondent that his PTSD had been accepted, the applicant requested to begin the separation process from the Army.

22. In relation to why he ultimately made the decision to leave the Army, the applicant has stated that it was based on medical advice from Dr Clark and Dr Flanagan, his mental and physical health concerns, and the acceptance of his PTSD by the respondent which meant that his rate of pension was sufficient as a source of income.[7] At the hearing, the applicant confirmed that a combination of factors led to him leaving the Army: he was over 65 years of age, the required job standard caused damage to his knees and ankles, his PTSD condition, the medical advice of his doctors, that his PTSD condition was accepted, and that he could not continue dealing with a particular officer at Shoalwater Bay.

    [7] Exhibit C, Statement of concerns filed on 2 March 2016, p. 4.

23. The applicant stated that at the time of the respondent’s decision in 2013, he was 66 years of age (i.e. over the retirement age), physically incapable of manual work and not qualified for any other work.[8] He stated that this is why he was not seeking paid work at this time. He also gave evidence at the hearing that after he was made redundant from his position with the Civil Aviation Authority, he applied for several other jobs but was unsuccessful; and he believes this was due to his age.

    [8] Exhibit C, Statement of concerns filed on 2 March 2016, p. 3.

    Dr John Flanagan, psychiatrist

24. Dr Flanagan has provided several reports in respect of the applicant’s PTSD condition, and he also gave evidence at the hearing. At the hearing Dr Flanagan confirmed that he has treated the applicant since 2004 and is still seeing him now. In his first report dated 12 December 2011, Dr Flanagan stated that he considered the applicant met the criteria for chronic PTSD in 2004.[9]

    [9] Exhibit A, T-Documents, T10, p. 27.

25. In 2011, Dr Flanagan reported that at that time the applicant was capable of his part-time reservist work around 2-3 days per week.[10] He calculated an impairment rating of 32 for the applicant’s PTSD.[11]

    [10] Exhibit A, T-Documents, T10, p. 36.

    [11] Exhibit A, T-Documents, T10, p. 38.

26. Dr Flanagan provided a further report dated 24 October 2013.[12] In this report Dr Flanagan noted that the applicant was presently a member of the Reserves, as a Warrant Officer, and was employed part-time at Shoalwater Bay. The applicant had reported that he was angry and tense about incidents happening at his work, and he no longer wanted to go to work.[13] He also felt bitter about the fact that his claim for PTSD had taken thirteen years to get resolved.

    [12] Exhibit A, T-Documents, T27.

    [13] Exhibit A, T-Documents, T27, p. 139.

27. Dr Flanagan reported that the applicant could work for several weeks at a time.[14] However, given the stress he was experiencing at work, Dr Flanagan reported that he recommended the applicant consider ceasing work on medical grounds to avoid further exacerbation of his PTSD. It was Dr Flanagan’s opinion that the applicant’s PTSD now rendered him incapable of working eight hours or more a week.[15] An impairment rating of 34 was given.

    [14] Exhibit A, T-Documents, T27, p. 140.

    [15] Exhibit A, T-Documents, T27, p. 143.

28. In his latest report dated 2 July 2014, Dr Flanagan noted that when he saw the applicant on 11 December 2013, the applicant was very angry and “on the point of resigning” due to serious incidents at his workplace.[16] It was reported that the applicant was going to try and get his medical condition reclassified so that he could leave the Army.[17]

    [16] Exhibit H, Report of Dr Flanagan dated 2 July 2014, p. 2.

    [17] Exhibit H, Report of Dr Flanagan dated 2 July 2014, p. 3.

29. After seeing the applicant on 23 June 2014 Dr Flanagan reported that the applicant had retired on medical advice. Dr Flanagan opined that the applicant was still not capable of working eight hours or more a week.

30. In a medical impairment assessment of Dr Flanagan dated 20 July 2016, he indicated that the applicant was not able to work due to his psychiatric condition.[18] He noted, “he stopped work because of his symptoms and my advice”.

    [18] Exhibit E, Medical impairment assessment of Dr Flanagan.

31. When giving evidence at the hearing Dr Flanagan confirmed his opinion that the applicant cannot work 8 hours or more per week. He elaborated that this would apply to both a military and non-military environment, for two main reasons: dealing with the ordinary stresses of administrative work, and dealing with colleagues or superiors. Dr Flanagan stated that because of the applicant’s PTSD, it is expected that he would have an overly cautious approach to risks, and be more intolerant towards people. When dealing with the applicant he struck Dr Flanagan as a “tense, anxious and irritable man”, which Dr Flanagan stated is just the nature of PTSD and is unlikely to be changed by treatment or counselling.

    Defence service medical records

32. Dr Jeffrey Clark, the applicant’s general practitioner, completed a Medical Examination Form on 6 August 2013. In this form he noted his opinion that the applicant was capable of working 15 hours per week. He also stated that the applicant’s capacity to work is affected by his medical conditions of PTSD, osteoarthrosis of the left shoulder and both knees, a hearing impairment and lumbar spine osteoarthritis.

1. The applicant completed a Member’s Health Statement on 11 December 2013. In this statement the applicant stated that he had had no problems in carrying out his duties in his present work environment. He noted his wish to remain active in the Reserves until June 2014.

2. A Medical Employment Classification completed on 31 January 2014 noted the applicant’s classification of J42. The notes of the medical officer who conducted this assessment commented that the applicant intended “to retire next year”.[19] He also stated that it had been requested that the applicant be upgraded to a J23 classification depending on the progression of his medical conditions. He concluded that he would reclassify the applicant as a J23 given the successful treatment of his cancers.

   [19] Exhibit F, Service medical records, p. 8.

3. On 22 September 2014 the applicant signed a Defence Force Medical Information form regarding his invalidity retirement from the Army.[20] This form noted that the applicant’s classification at the time was J42. It also stated that the medical conditions which led to the applicant’s retirement were likely to be his history of bilateral knee arthritis and his cancers.

   [20] Exhibit F, Service medical records, p. 25.

4. On 24 July 2014 a separation notice confirming the applicant’s discharge from the Army was signed by the applicant.[21] The reason for the discharge was noted as the applicant being “medically unfit”. The notice stated that the applicant could no longer meet the employment requirements of the Army.

   [21] Exhibit F, Service medical records, p. 32.

5. Dr Bordujenko provided a medical opinion dated 26 April 2017 regarding the applicant’s impairment assessment.[22] She noted that the reports of Dr Flanagan highlighted an improvement in the impairment assessment of the applicant’s PTSD over the years; a rating of 32 was given in December 2011 and a rating of 21 was given in February 2017. The ratings for the applicant’s other medical conditions remained unchanged.

   [22] Exhibit G, Minute of Dr Alex Bordujenko dated 26 April 2017.

6. Dr Bordujenko agreed with the impairment assessments which provided for a total impairment rating of 50 points from 24 July 2011 and 45 points from 1 June 2011.

   Decision of the respondent dated 14 February 2017

7. Following the remittal of this matter to the respondent for further consideration under s 42D of the AAT Act, the respondent made a decision to change the reviewable decision.[23] The respondent reduced the applicant’s pension to 80% of the general rate with effect from 28 February 2017.

   [23] Exhibit E, Decision of the delegate dated14 February 2017.

8. In this decision the delegate stated that they considered that a medial impairment rating of 45 was appropriate, as well as a lifestyle rating of 3. Together these ratings combined to give a degree of incapacity of 80%.

9. In making this decision the delegate considered recent evidence, including a hearing assessment of 18 July 2016, Dr Clark’s report of 26 July 2016 and Dr Flanagan’s psychiatric assessment of 3 February 2017.

10. The decision considered that the applicant suffers from significant non-accepted disabilities which contributed to the ceasing of his employment, including oral squamous cell cancer, adenocarcinoma of the colon, hypertension and cardiac issues. It was on this basis that the delegate determined that the applicant was not eligible to receive the pension at either the special or intermediate rate.

    SUBMISSIONS

    Applicant submissions

11. It is the applicant’s contention that he should have been paid the disability pension at the intermediate rate from 3 months before his claim for PTSD was lodged with DVA, on 1 June 2011; and that he should have been paid at the special rate of pension from 4 December 2013, the date the respondent denied him payment at the special or intermediate rate.

12. The applicant submits that he meets the criteria for the special rate of pension outlined in s 24 as he is in receipt of the pension at 80% of the general rate, he is unable to work, and he has experienced a loss of salary as a result of his inability to work.

13. The applicant also submits that he meets the requirement in s 28 of the Act, as he has experienced a loss of wages.

14. The applicant submits that he is unable to undertake remunerative work due solely to his accepted conditions. He has referred to his ankle condition in particular, submitting that he has endured that condition for a long time and continued working, so that is not a contributing factor.

    Respondent submissions

15. The respondent submits that the applicant is not eligible to receive the disability pension at either the intermediate or special rate because the applicant does not meet the ‘alone test’ criterion outlined in s 24(1)(c).

16. During oral submissions presented at the hearing, the respondent conceded that the applicant meets the criteria outlined in s 24(1)(b) – that is, that he is unable to work for more than 8 hours or more due to his PTSD, as verified by Dr Flanagan.

17. The respondent submits that the ameliorating provisions outlined in s 24(2) of the Act do not apply as the applicant has not been actively seeking work since his employment with the Reserves ceased.

18. With respect to the ‘alone’ test outlined in s 24(1)(c), the respondent has highlighted two key issues. The first is that the applicant has not suffered a loss of salary, as he voluntarily exited the workforce, and the second is that his inability to undertake remunerative work is not solely caused by his accepted conditions.

19. The respondent contends that the applicant had always intended to retire in 2014. They note that the applicant committed to working until June 2014, as per his contract. They refer to the Medical Employment Classification form completed on 31 January 2014, in which it was noted that the applicant intended “to retire next year”. The respondent considered that this intention could suggest that the applicant was voluntarily planning to retire, or, around that time there was a change to the health assessment requirements which caused him to reconsider his continued employment and to seek discharge based on an acceptable health standard.

20. The respondent submits that several other factors contributed to the applicant’s inability to work. This includes several non-accepted medical conditions, specifically his ankle condition, hypertension, and throat and bowel cancers. The applicant was ultimately discharged on an invalidity basis. The respondent also considers that the applicant was experiencing major issues with his workplace and the behaviour of superior officers, which contributed to his decision to request a discharge.

21. The respondent relies on Repatriation Commission v Richmond (2014) 226 FCR 21.

22. The respondent accepts that the applicant satisfies the criteria pursuant to subsections 24(1)(a) and (b) of the Act. During the hearing the respondent quite properly conceded that the applicant satisfies s 24(1)(b) of the Act having regard to the evidence of Dr Flanagan that the applicant is unable to work for more than 8 hours by reason of the PTSD condition.

    The ‘alone test’ – s 24(1)(c) of the Act

23. In contention is whether the applicant satisfies the requirements of s 24(1)(c), also known as the ‘alone test’.

24. In Repatriation Commission v Richmond (2014) 226 FCR 21, the Full Court remarked in respect of s 24(1)(c) of the Act:

    “… 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”. [para 58]

    “While this may be seen as a harsh result, it arises from the plain words of the section. The special rate of pension is almost three times higher than the general rate, and the extrinsic materials indicate that the legislature intends the special rate to be reserved for a limited category of veterans”. [para 65]

25. The Full Court in Repatriation Commission v Richmond also referred to Repatriation Commission v Hendy (2002) 76 ALD 47:

    “The decision-maker is required to take into account any factor that plays a part or contributes to a veteran’s being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under section 24(1)(c) of the Act”. [para 63]

    (emphasis in original)

26. The decision of Repatriation Commission v Richmond has been followed in several other recent cases, and was approved in Repatriation Commission v Watkins (2015) 144 ALD 17:

    “It cannot be said that the decision in Richmond is ‘plainly wrong’. Indeed, we considered it to be correct and applicable in this appeal. As a consequence, we decided that the appeal must be allowed”. [para 61]

27. There is cogent evidence before me in the form of the Medical Employment Classification form dated 31 January 2014 that the applicant had intended “to retire next year”. In these circumstances I am not reasonably satisfied that the applicant was by reason of an accepted condition “prevented from continuing to undertake remunerative work”.

28. The applicant in giving evidence made it clear that there was a combination of factors that led to him leaving the Army including the ankle injuries which are now an accepted condition. The decision of the respondent dated 17 February 2017 also refers to a number of other significant non-accepted conditions which contributed to the ceasing of the applicant’s employment: oral squamous cell cancer, adenocarcinoma of the colon, hypertension and cardiac issues. This is a case, such as was adverted to by the Full Court in Repatriation Commission v Richmond (para [53]), where the presence of “non war-caused factors contribute to the preventative effect”.   

29. The fact that the applicant had indicated that his retirement was planned precludes a finding that s 24(1)(c) of the Act is satisfied. I have also concluded that s 24(1)(c) of the Act is not met as the applicant’s non-accepted medical conditions which are the ankle condition, hypertension, and the throat and bowel cancers would have influenced the decision of the applicant to retire.

30. As the applicant has also made a claim for payment of pension at the intermediate rate of pension, I am also not reasonably satisfied that he meets the requirements of the “alone” test in s 23 of the Act as his decision to retire was planned.

    Ameliorating provisions

31. As the applicant was under 65 years of age at the time of his claim, the ameliorating provisions of s 23(3) and s 24(2) of the Act are relevant. At the commencement of the assessment period at the time of claim the applicant was not engaged in remunerative employment and had not been in work since his retirement in 2006.

32. The ameliorating provisions of s 23(3) and s 24(2) of the Act apply where an applicant “who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work”. On the state of the evidence before me there is no probative evidence of the applicant actually seeking to engage in remunerative work. There is, for example, no evidence of any job application.

33. For the ameliorating provisions to apply, the requirements in s 23(3)(b) and s 24(2)(b) of the Act need to be satisfied; the accepted incapacity must be the substantial cause of the applicant’s inability to obtain remunerative work. The evidence of the applicant was that he was able to work until his PTSD condition was accepted. It was only after the PTSD condition was accepted in 2013 that he requested his separation from the Army.

34. On the evidence before me I am unable to be reasonably satisfied that the ameliorating provisions apply in this case. I have had regard to the factors in s 28 of the Act in coming to this conclusion. In particular the fact that the applicant was able to work until the acceptance of the PTSD condition is important in my consideration of this application.

35. I have considered the decision of the delegate dated 14 February 2017 as well as the report of Dr Bordujenko. The applicant did not place any medical evidence before the Tribunal which challenges the assessment of the delegate or Dr Bordujenko. 

    CONCLUSION

36. The applicant has rendered distinguished service to the Army having risen to the rank of Warrant Officer. However, having regard to the requirements of the Act, the applicant is not eligible for the payment of the pension at either the intermediate or special rate. The applicant is always at liberty to place evidence before the respondent if he seeks an alteration of his present rate of pension.

    DECISION

37. I affirm the decision of the respondent dated 14 February 2017.  

I certify that the preceding 69 (sixty nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

......................[SGD]..............................

Associate

Dated: 31 October 2018

Dates of hearing:

5 December 2016

20 April 2017

30 June 2017

29 August 2017

Date final submissions received:

14 September 2017

The Applicant:

In person

Applicant’s Representative: 

Respondent’s Representative:

Ms Helena Smith

Mr Bruce Williams