Stark and Repatriation Commission (Veterans' entitlements) - [2017] AATA 2583

Stark and Repatriation Commission (Veterans' entitlements) [2017] AATA 2583 (11 December 2017)
Division:VETERANS' APPEALS DIVISION
File Number: 2016/3192
Re:Wesley Stark
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Senior Member A C Cotter
Date:11 December 2017
Place:Brisbane

The Tribunal sets aside the decision under review, and in place of that decision, determines that Mr Stark is entitled to pension at the Special rate provided for in s 24 of the Veterans’ Entitlements Act 1986 (Cth), with effect from 14 January 2015.
.......................................................................
Senior Member A C Cotter
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – disability pension – PTSD – alcohol dependence – tinea - application for increase in pension – whether Applicant is entitled to payment of disability pension at the Special or Intermediate rate – whether satisfies the “alone test” – decision under review set aside
LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) 19, 23, 24, 25, 28, 120
CASES

Cavell v Repatriation Commission [1988] FCA 464
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Richmond [2014] FCAFC 124
Smith v Repatriation Commission (2014) 142 ALD 410
REASONS FOR DECISION
Senior Member A C Cotter
11 December 2017
BACKGROUND

Mr Wesley Stark is 40 years of age.[1]
[1] Exhibit 12, statement of Wesley Stark dated 23 May 2017, [2].
He enlisted in the Australian Army Reserves in December 1997 and transferred to the Australian Regular Army in 1999. He continued to serve until his discharge from the Army in May 2006. During his service, he served on two deployments to East Timor, the first in 2000, and the second in 2003-2004.[2]
[2] Ibid, [4]-[6] and [11].
Following his discharge from the Army, Mr Stark found employment as a painter with Programed Property Services (“PPS”), a large Australia wide company providing a variety of services, including maintenance and painting services. He worked for PPS for eight years, first in Melbourne and then again in Brisbane, following his relocation there in 2007. After he left PPS, he worked for a few months for Amalgamated Painting Service (“Amalgamated”).[3]
[3] Ibid, [12]-[13] and [15].
Mr Stark has the following conditions which the Repatriation Commission (“Commission”) has accepted as related to his service under the Veterans’ Entitlements Act 1986 (Cth) (“Act”):
(a)Sensorineural hearing loss;
(b)Tinnitus;
(c)Post Traumatic Stress Disorder (“PTSD”); and
(d)Alcohol use disorder.
The Commission has not accepted Mr Stark’s claimed condition of tinea of the skin as being service related for the purposes of the Act.[4]
[4] Exhibit 1, T Documents, page (iii).
On 14 January 2015, Mr Stark lodged an application for an increase in his Disability Pension.[5] In it, he advised that he had ceased work in November 2014 due to his PTSD which had worsened.[6]
[5] Exhibit 1, T Documents, T 4, pages 43-53, Application for increase in Disability Pension dated
[6] Ibid, pages 47 and 48.
His last employer, Amalgamated, confirmed that Mr Stark had been employed as a casual painter from 16 June 2014 to 2 November 2014, when he ceased employment. It stated that Mr Stark had resigned, citing “health issues i.e. he could not work a 40 hour week”. However, at no time had he volunteered information about his health issues and the condition was unknown to Amalgamated.[7] A summary of the dates worked by Mr Stark and the hours worked each week was also attached.[8]
[7] Exhibit 1, T Documents, T 5, pages 54-55, letter from Amalgamated Painting Service to the
[8] Exhibit 1, T Documents, T 5, page 56.
Mr Stark’s general practitioner, Dr Seemeen Parvez, completed a “Work Ability Report” in support of his application.[9] She gave the following brief summary of his medical history:
[9]           Exhibit 1, T Documents, T 6, pages 57-60, Work Ability Report by Dr Seemeen Parvez dated
Patient has been suffering from chronic depression and anxiety, PTSD and chronic alcohal (sic.) dependence.
He has been seeing psychologist on regular bases, every fortnightly (sic.) for a long long time.
He has severe problems in dealing and communicating with his work colleague and bosses It alway (sic.) ends up in a conflict. He has difficulty expressing himself and controlling his temper. He also suffers from chronic service related taenia paedis, which cause him embarrassment, particularly when he works and has to wear shoes.[10]
Asked what Mr Stark’s last occupation was and his reason for leaving, Dr Parvez answered:
Wesley’s last occupation was painter and decorator and he has ongoing disputes with his boss, which was fuelling his anger and he was threatening to harm him. Therefore he decided to quit.[11]
Dr Parvez considered that Mr Stark was able to work less than eight hours a week, adding that she was not sure if he was fit to work.[12] She said that she did not think that Mr Stark would be able to carry out any other type of work, explaining:
Unfit to work where he needs to communicate with other.
Perhaps working in isolation can be considered.[13]
[10]          Ibid, page 57.
[11]          Ibid, page 59.
[12]          Ibid.
[13]          Ibid, page 60.
Dr Parvez was also asked to list all the conditions which contributed to Mr Stark’s incapacity. She listed each of PTSD, depression and anxiety, alcohol dependence and taenia paedic as permanent and major conditions, with poor prognosis.[14]
[14] Ibid.
In a Lifestyle Questionnaire completed by him, Mr Stark stated that he believed that his PTSD had taken over his life; he had become withdrawn and moody.[15]
[15] Exhibit 1, T Documents, T 7, page 71, Lifestyle Questionnaire completed by Mr Stark date stamped
Mr Stark’s psychiatrist, Dr Janis Carter, undertook an impairment assessment on

5 February 2015. She noted:
Wesley continues to be troubled by feelings of anxiety. His flashbacks continue. He has intrusive thoughts, poor concentration and nightmares. His symptoms continue to be persistent and they cause him considerable distress. Relief from that is difficult to achieve even with a high level of support and reassurance...[16]
Currently Wesley is totally and temporarily incapacitated for work and cannot work even 8 hours per week. He is a painter who works on high rise on pulleys and is being stabilised on psychotropic medication. It is unsafe for him to work at the moment. I estimate this should be reassessed by end of May 2015.[17]
[16] Exhibit 1, T Documents, T 8, page 74, Emotional and Behavioural Medical Impairment Worksheet by
[17] Ibid, page 75.
Mr Stark’s application for an increase in his pension was unsuccessful, with the Commission deciding to continue his Disability Pension at 80 percent of the General rate.[18]
[18] Exhibit 1, T Documents, T 11, pages 81-84, Commission’s decision and reasons for decision dated
Dissatisfied with that decision, Mr Stark sought a review of it by the Veterans‘ Review Board (“VRB”). In its decision of 5 May 2016, the VRB set aside the Commission’s determination and substituted its decision, that the pension be continued at 80 percent of the General rate until 7 March 2016 and then the pension be assessed at 90 percent of the General rate from and including 8 March 2016 (being the date of the then most recent medical impairment assessment by Dr Carter). The VRB decided that Mr Stark did not qualify for an earnings based pension above the General rate. That was because it considered that other non-accepted conditions (such as the tinea condition) played a part in his decision to quit work. [19]
[19] Exhibit 1, T Documents, T 2, pages 5-12, decision and reasons for decision of the Veterans’ Review
Mr Stark now seeks a review of the VRB’s decision by the Tribunal.
THE LEGISLATIVE PROVISIONS
For present purposes, s 24 of the Act is the key legislative provision. It relevantly provides:
(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 has 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)   …; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d)section 25 does not apply to the veteran.
(2)    For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i)    the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii)   the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
Section 28 of the Act is also relevant, in that it cross-refers to s 24(1)(b). It provides:
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).
Section 23, setting out the criteria for the Intermediate rate of pension, is in substantially the same terms as s 24, except that the incapacity must render the veteran incapable of working otherwise than on a part-time basis or intermittently. As that section applies only when s 24 or s 25 (which is not relevant here) does not apply to the veteran,[20] it is logical to consider the application of s 24 first.
[20] See Veterans’ Entitlements Act 1986 (Cth), s 23(1)(d).
ISSUES FOR THE TRIBUNAL
The issue for the Tribunal to decide is whether Mr Stark is entitled to receive payment of his pension at the Intermediate or Special rate, as opposed to the General rate. That involves a consideration, firstly, of the criteria in s 24 of the Act and then, if necessary, the criteria in s 23.
For reasons which will become apparent, the primary focus is on the question of whether Mr Stark in particular satisfies the criteria prescribed by s 24(1)(c) of the Act. I deal with that further below.
THE LEGAL PRINCIPLES
In order to be eligible for a pension at the Special rate, Mr Stark needs to satisfy the criteria set out in s 24(1)(c) of the Act. Those criteria must be satisfied at some time during the “assessment period”, which commences on the day the application for increase in the pension rate was received by the Commission (in this case, 14 January 2015) and ends when the application is determined by the Tribunal.[21]
[21] See Veterans’ Entitlements Act 1986 (Cth), s 19(5C) and s 19(9).
The standard of proof is that required by s 120(4) of the Act, namely “reasonable satisfaction”.
Section 24(1)(c) has two main limbs, which may be informed by ss 24(2)(a) and (b). The first limb is that 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. It may be ameliorated by s 24(2)(b).[22]
[22] See Repatriation Commission v Richmond [2014] FCAFC 124, [21] (Middleton, Murphy and
The second limb is that the veteran 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. The operation of that limb is amplified by

s 24(2)(a).[23]
[23] Ibid, [22].
As to the first limb, the Full Court observed in Repatriation Commission v Richmond:
The first limb of s 24(1)(c) requires the decision-maker to decide whether the veteran’s war-caused injury or disease (or both) alone prevented him or her from continuing to undertake the remunerative work the veteran was engaged in. The alone element of the test is concerned with whether or not there is more than one cause of the preventative effect that the veteran claims has resulted from his or her war-caused incapacity.
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.[24]
Later, their Honours cited with approval a number of authorities, including the following passage from the decision of the Full Court in Repatriation Commission v Hendy[25]:
…The language of s 24 (1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the veteran from working. The decision-maker is required to take into account any factor that plays a part or contributes to a veteran’s being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period. So long as the tribunal performs this exercise, the conclusions drawn from the assignment of the relative impact [of] the various factors on the ability of the veteran to continue in remunerative work is not reviewable, except in exceptional circumstances. Moreover, having considered any or all of the factors which may have contributed to the veteran’s incapacity, the tribunal is then required to determine whether it is the veteran’s war-caused injury or war-caused disease, or both, alone which prevent the veteran from continuing to undertake remunerative work. (Emphasis added).[26]
[24] Ibid, [57]-[58]. Emphasis added.
[25] (2002) 76 ALD 47, 37] (Whitlam Emmett and Stone JJ).
[26] Repatriation Commission v Richmond [2014] FCAFC 124, [63] (Middleton, Murphy and Rangiah JJ).
The test of whether the war-caused injury or war-caused disease, or both, alone brought about the veteran’s situation of being unable to engage in work is “a question of fact, informed by common sense.”[27] It is a decision that should not be made “upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide”.[28]
[27] Smith v Repatriation Commission (2014) 142 ALD 410, [16] (Rares J).
[28] Cavell v Repatriation Commission [1988] FCA 464, [12] (Burchett J).
THE EVIDENCE
It is useful to summarise the evidence in some detail.
Dr Carter
In addition to the impairment assessment report referred to earlier,[29] Dr Carter produced several other reports, which went unchallenged.
[29] See paragraph 10 above.
In a report furnished to the Department of Veterans’ Affairs (“Department”) in August 2014, Dr Carter noted that Mr Stark suffered major stressors during his first deployment to East Timor. His second tour consolidated the difficulties that he was experiencing from his first tour.[30] She diagnosed him as suffering from PTSD (which she rated as moderately severe) and alcohol dependence (rated as severe). She said that he suffered symptoms daily. Dr Carter said that, in the preceding two months, there had been a change in Mr Stark’s ability to handle pressure, and that he had given up his permanent job for less demanding casual work (presumably referring to the change from PPS to Amalgamated).[31]
[30] Exhibit 1, T Documents, T 3, page 16, medical report of Dr Janis Carter dated 5 August 2014.
[31] Ibid, pages 17-18.
A year later, in August 2015, Dr Carter produced a medical certificate, certifying that Mr Stark was totally and permanently incapacitated for work due to his PTSD. She considered that he was unable to work even eight hours per week due to his PTSD (which she classed as permanent), and that the likelihood of his rehabilitation to return to the workforce was remote.[32]
[32] Exhibit 1, T Documents, T 15, page 94, medical certificate of Dr Janis Carter dated 26 August 2015.
In a medical impairment assessment report completed in March 2016, Dr Carter described Mr Stark as totally and permanently incapacitated for work, “even for a sheltered workshop”. He could not cope with groups; his employability had gone beyond being able to work part of the time.[33] In another certificate later that year, she confirmed that she had recommended that Mr Stark stop work since he was unfit for work because of his PTSD alone.[34]
[33] Exhibit 1, T Documents, page 117, Emotional and Behavioural Medical Impairment Worksheet by Dr Janis Carter dated 8 March 2016.
[34] Exhibit 4, medical certificate of Dr Janis Carter dated 9 August 2016.
The tinea condition – the lay evidence
Mr Stark gave evidence at the hearing, affirming the truth and accuracy of his earlier statement.[35] In that statement, he said that his first serious experience of tinea occurred during a training exercise at Wide Bay in Queensland prior to his first deployment to East Timor. It rained for seven days and nights during the exercise and he was drenched most of the time. Mr Stark noticed that he was suffering from problems with his feet and sought medical attention. He spent two or three days at a mobile Military Hospital where he received treatment. He again suffered from tinea on his first deployment to East Timor where it rained frequently.[36]
[35] Exhibit 12, statement of Wesley Stark dated 23 May 2017.
[36] Ibid, [7]-[8] and [10].

He confirmed that his discharge from the Army was due to personal reasons concerning his eldest daughter and issues with her mother. His foot condition was not a factor in his discharge.[37]
[37] Transcript of proceedings dated 2 November 2017, page 6, lines 13-26.
Following his discharge from the Army, Mr Stark suffered from his tinea condition at irregular intervals. From time to time while employed by PPS, he was required to wash down buildings before undertaking painting work. The washing down involved the use of heavy duty water apparatus and in the process of undertaking the work, his boots, socks and feet would get wet. It was after those episodes, of his feet and footwear becoming thoroughly wet, that he suffered a recurrence of the tinea condition. Both feet would be affected. When wet, they would become smelly, as would his boots.[38]
[38] Exhibit 12, statement of Wesley Stark dated 23 May 2017, [13], [14] and (second) [14].
Mr Stark told me that he would not really call his condition tinea, describing it as “more like a pitting” to his feet. His feet would hurt while they were drying out.[39] He said that while he was working, his feet were fine, but that he suffered discomfort once he removed his boots to air. He would go barefoot for an hour or two, with his feet elevated. Once his feet dried out, they “came good again” and he was okay again that night or the next morning. In about 2013, he was prescribed a medication but after that, he ceased taking it.[40]
[39] Transcript of proceedings dated 2 November 2017, page 7, lines 13-16.
[40] Ibid, page 8, line 42 to page 9, line 8; page 9, line 42 to page 10, line 18; and page11, line 46 to
Describing his work as a painter, Mr Stark said that he was on his feet eight hours a day. He told me that he was physically able to work those hours and that his tinea condition did not force him to sit down and rest; at no time did it cause him any difficulties in performing his duties with PPS. Nor, apart from when he got home, did it affect his activities of daily living, such as walking, sitting and standing.[41] He said that throughout his eight years with PPS, he never lost a day’s work due to his tinea condition.[42]
[41] Ibid, page 7, lines 18-24 and page 9, lines 10-14
[42] Exhibit 12, statement of Wesley Stark dated 23 May 2017, [13].
Mr Stark was asked about the footwear he wore at work. He said that he wore steel capped safety boots, which were required issue, and paid for by PPS. He was aware that other painters wore gumboots when washing down buildings, but he never tried them; he said that he had no reason to buy them.[43]
[43] Transcript of proceedings dated 2 November 2017, page 7, line 32 to page 8, line 7.
After Mr Stark left PPS, he joined Amalgamated. He said that he never experienced a problem with tinea when working for Amalgamated, as his duties did not include washing down houses. His feet were therefore always dry.[44]
[44] Exhibit 12, statement of Wesley Stark dated 23 May 2017, [15].
Mr Stark said that he ceased employment completely in 2014 because of his PTSD and alcohol misuse condition; the tinea condition played no role whatsoever in his decision to cease employment.[45]
[45] Ibid, [16].
Mr Stark’s wife, Mrs Karen Stark, also have evidence at the hearing. She described how her husband’s personality changed over time. That was prior to his being diagnosed with PTSD.[46]
[46] Exhibit 11, statement of Karen Stark dated 5 May 2017, [7].
Mrs Stark said that the first indication that her husband was suffering from tinea was the smell from his feet, particularly his boots. The boots only smelt if they had become wet during the course of the day. That would usually depend on whether Mr Stark had been washing down buildings; it occurred perhaps two to three days per month. When his boots were dry, they did not smell and Mr Stark did not suffer from tinea.[47]
[47] Ibid, [8].
She described how her husband’s feet would pit. There would be holes in the skin and marks on the soles of his feet when the condition occurred.[48] Mrs Stark said that her husband never complained of any significant pain from the tinea and that it did not appear to inconvenience him. He was working six days a week. He never lost a day’s work because of the tinea; the condition did not affect his capacity to work as a painter in any way.[49]
[48] Transcript of proceedings dated 2 November 2017, page 6, lines 35-41.
[49] Exhibit 11, statement of Karen Stark dated 5 May 2017, [8]-[9] and (second)[9]-[10].
Although her husband’s boots would normally dry overnight, she noted that he had two pairs of boots and could rotate them when necessary.[50]
[50] Ibid, (first) [10].
Mrs Stark told me that her husband used to come home cranky. Initially, she attributed it to his foot condition. However, he continued to be cranky, even when his feet were fine. She started to look for other reasons, and pressed him to see a doctor, hoping that would fix his crankiness.[51]
[51] Transcript of proceedings dated 2 November 2017, page 17, line 13 to page 18, line 8.
After a few months, she finally persuaded her husband to see a doctor, who prescribed medication. Mr Stark, however, continued to be cranky. Mrs Stark said that it all “unravelled” after that. She discovered that what they were confronting was PTSD, about which she had no idea; she had no idea of the symptoms or what was actually happening to her husband.[52]
[52] Ibid, page 18, lines 10-14.
Mrs Stark said that after her husband commenced working with Amalgamated, he did not experience problems with his feet. However, she recalled that he could not work with people; he was impatient, especially with the newer people. The situation hit “rock bottom”, to the point where he was unable to handle it anymore. Dr Carter recommended that that it was best that he not be around anyone in case someone got hurt; he was angry and irritated and he could not talk to his bosses or anyone.[53]
[53] Ibid, page 20, line 34 to page 21, line 16.
Mrs Stark confirmed that her husband finally ceased work because of the effects of his PTSD.[54]
[54] Exhibit 11, statement of Karen Stark dated 5 May 2017, [11].
Two former workmates of Mr Stark, Mr Darren Barton and Mr Alf Toki, provided statements.
Mr Barton worked for PPS alongside Mr Stark for about six years. He described Mr Stark as very reliable and someone who rarely took time off work. Apart from one occasion when Mr Stark suffered a pinched nerve in his neck, Mr Barton could not recall any occasion when he lost work because of some physical condition. He said that he was not aware that Mr Stark had any medical problems with his feet. While Mr Stark occasionally mentioned that his feet smelt, he never complained to Mr Barton of pain or discomfort with his feet; he never mentioned that he suffered from tinea. As far as Mr Barton was aware, Mr Stark never missed work because of a problem with his feet.[55]
[55] Exhibit 14A, statement of Darren James Barton dated 21 June 2017, [4]-[5].
Mr Toki worked with Mr Stark for PPS for about two to three years. He never knew Mr Stark to take much time off work unless he was genuinely unwell, which was not often. He was not aware that Mr Stark suffered from tinea; Mr Stark never complained of suffering from tinea or having anything wrong with his feet that might affect his ability to work as a painter.
Mr Toki said that on the occasions on which he washed down a building, he would wear gumboots. From his experience, they would keep feet perfectly dry.[56]
[56] Exhibit 17, statement of Alf Toki dated 13 October 2017, [6]-[8].
In June 2013, Mr Stark lodged a claim with the Commission for “foot rot” and hearing loss and tinnitus.[57] As mentioned earlier, the claim for sensorineural hearing loss and tinnitus was accepted, but the claim for tinea of the skin was considered not to be related to service.[58]
[57] Exhibit 16A, Mr Stark’s claim for Disability Pension dated 3 June 2013.
[58] Exhibit 2A, Commission’s decision and reasons for decision dated 16 January 2014.
Of present interest is the claim form as it related to the feet condition. The form described the relevant disability as “foot rot”, listing the signs and symptoms as “skin flaking and vile aroma from feet”. It was said to be “due to tropical climate”. Mr Stark’s then general practitioner, Dr Alex Ha of Redcliffe Parade Family Medical Practice, confirmed a diagnosis of tropical foot rot, based on “skin maceration and recurrent infection”.[59]
[59] Exhibit 16A, Mr Stark’s Claim for Disability Pension dated June 2013, page 8.
Later in the form, in Question 30, Mr Stark was asked whether the disabilities claimed for affected his employment or ability to seek employment at any time, to which the answer was given: “unable to stand for any length of time”.[60] Asked at the hearing about that answer, Mr Stark said that at work he did not believe that he ever stood still long enough to stand. He would not say that it was an accurate account, but was not sure; he assumed it was.[61] Questioned further at the hearing, Mr Stark said that the answer was not in his handwriting, saying that the form was completed by his then advocate. He conceded, however, that his advocate completed the form in his presence, and that he signed the completed form, explaining that he had trouble with paperwork because his handwriting and spelling is not good.[62]
[60]          Ibid, page 11.
[61]          Transcript of proceedings dated 2 November 2017, page 12, line 29 to page 13, line 6.
[62]          Ibid, page 13, line 14 to page 14, line 1.
For completeness, I also refer to the Medical Impairment Assessment form completed by Dr Ha in relation to the feet condition.[63] In that form, Dr Ha described the condition as “severe” and said that antibiotics were used to treat the condition. In relation to the restrictions placed on Mr Stark by the condition, Dr Ha indicated that walking could become painful; that there was discomfort in wearing boots; and in terms of hygiene, there was a high risk for infection.
[63] Exhibit 18, extract of documents summonsed from Redcliffe Parade Family Medical Practice,
Dr Parvez
Dr Parvez practises from the same clinic as Dr Ha, the Redcliffe Parade Family Medical Practice. According to the clinical notes obtained by summons, she first saw Mr Stark on 11 February 2014. He told her that he had a bad week at work and that he had seen the human resources lady at work. It noted that he was suffering stress and was experiencing anger outbursts. He was seeing a psychiatrist. He was to be reviewed in a week’s time, with issues to be addressed listed as alcohol dependence and psychological issues.[64]
[64] Exhibit 18, extract of summonsed clinical notes of Redcliffe Parade Family Medical Practice, page 9.
Further consultations with Dr Parvez followed, on 18 and 25 February 2014. At neither consultation did Mr Stark’s tinea condition appear to be discussed. However, his alcohol dependence and psychological issues were.[65]
[65] Ibid, page 10.
At the next consultation, on 19 May 2014, Mr Stark reported that he had gone off his Zoloft (an antidepressant) and that he needed to go back on it. The reason for the visit was described as: acute stress and anxiety; counselling and support; and the need to take medication. Again, there was no reference to his tinea condition having been discussed.[66]
[66] Ibid, page 11.
The note of the next consultation, on 15 October 2014, has particular significance. It relevantly reads:
1. HAVENT (sic.) TAKEN HIS ZOLFT (sic.) FOR SOMETIME – WANTS TO GO BACK ON IT--
The note records that a prescription for Zoloft was printed, and continues:
2. PROBLEMS WITH HIS FEET – DVA TO HELP –
LEFT ARMY 8 YEARS AGO –
…
JOINED THE ARMY IN 1997 AND LEFT IN 2006 – NEVER HAD THE PROBLEM BEFORE - AND ONLY STARTED BECAUSE HIS FEET USE (sic) TO BE IN WATER FOR UP TO 7 DAYS
DR ALEX HA HAS DONE THE REPORT IN AUG 2013 FOR DVA – DVA HAS LOST IT – PATIENT HAPPY TO HAVE A COPY – GIVEN-
BUT PARTNER NOT HAPPY – WANTS TO HAVE A REASSESSMENT /SECOND OPINION –
CLINICALLY – VERY OFFENSIVE ODOUR – CANT (sic) KEEP THE DOOR CLOSE – I AM WEARING A MASK – I AM HAPPY TO EXAMINE THE FEET ONCE THEY ARE WASHED AND CLEANED – (PARTNER KEEPS TELLING ME THAT HE IS COMING FROM WORK – WELL I NEEDS (sic) TO TOUCH FEEL AND ASSESS, IF YOU WANT MY OPINION – ADV TO COME AGAIN SO I CAN EXAMINE THE FEET).
PAIN AT THE END OF THE DAY IS WORSE – I NEED TO PALPATE CHECK AND MOVE – I CAN BARELY BREATH (sic) –
ALSO SAYS SOME HOLES IN HIS FEET?
DIAGNOSIS BY DR HA IS TROPICAL FEET - -[67]
[67] Ibid, pages 11-12. Emphasis added.
Questioned at the hearing about that consultation, Dr Parvez confirmed that she looked at Mr Stark’s feet, but did not want to touch them. She told him that if he wanted her opinion, he would have to come again so that she could examine the feet properly.[68] Dr Parvez stated that she did not take a history from Mr Stark to determine how often the condition flared up. Nor did she take a history to work out what his work duties were.[69]
[68] Transcript of proceedings dated 2 November 2017, page 29, lines 6-29.
[69] Ibid, page 29, line 31 to page 30, line 12.
The notes disclose that Dr Parvez saw Mr Stark on various occasions over the following almost 22 months. However, at no time does there appear to have been any further discussion about his feet condition, let alone a reference to a physical examination of them. That was accepted by Dr Parvez at the hearing.[70]
[70] Ibid, page 36, lines 29-37; and page 37, lines 26-36.
Over the course of the years, Dr Parvez has provided various medical reports and certificates concerning Mr Stark’s feet condition. I summarise them below.
The first relevant report was the Work Ability Report of 3 February 2015, referred to already in paragraph 7 above.[71] It is apparent from that report and from the clinical notes[72] that Dr Parvez saw Mr Stark that day and physically examined him. It will be recalled that in the report, the doctor stated that Mr Stark suffered from chronic service-related tinea which caused him embarrassment when he worked and had to wear shoes. Later, it listed tinea as one of the conditions contributing to Mr Stark’s incapacity, describing the condition as both permanent and major, and rating the prognosis as poor. Part B of the report dealt with the medical history and examination of Mr Stark. Dr Parvez completed that part, recording the results of her physical examination of Mr Stark by reference to specified parts of the body (which did not include the feet), and detailing the relevant conditions affecting those parts. Later in that section of the report, she was asked about other conditions that had not been specifically mentioned earlier. Significantly, she left that section blank, notwithstanding her views recorded elsewhere as to the contribution played by tinea. When addressing later in the report Mr Stark’s reasons for leaving his last occupation, she made no reference to the tinea condition.[73]
[71]          Exhibit 1, T Documents, T 6, pages 57-60, Work Ability Report by Dr Seemeen Parvez dated
[72]          Exhibit 18, extract of summonsed clinical notes of Redcliffe Parade Family Medical Practice,
[73]          Exhibit 1, T Documents, T 6, page 59, Work Ability Report by Dr Seemeen Parvez dated
At the hearing, Dr Parvez agreed that she did not examine Mr Stark’s feet on that occasion.[74] Asked why she did not mention Mr Stark’s feet as “another condition”, she replied that “it looks like it has slipped my mind”. As to her failing to mention Mr Stark’s feet condition as a reason for his ceasing work, she responded that was correct “because that’s exactly what the patient was telling me at that point.”[75]Dr Parvez was also asked how she determined that Mr Stark had a poor prognosis for his tinea when she had not examined his feet and had not asked questions about them. She replied that she was unable to explain. She was also asked whether she had looked at prescribing any treatment, to which she answered that she was not treating Mr Stark at that point, but rather, doing a report.[76]
[74]          Transcript of proceedings dated 2 November 2017, page 31, lines 8-10.
[75]          Ibid, page 31, lines 12-16; and lines 24-27.
[76]          Ibid, page 32, lines 12-44.
In October 2015, Dr Parvez was asked to complete a “Capacity to Work – Ceased or Ceasing to Work” report.[77] Again, it is apparent that Mr Stark personally attended Dr Parvez, and was physically examined, for the purposes of that report.[78] Dr Parvez listed tinea of the skin amongst the conditions known to the Department, describing it as a permanent condition which “comes and goes avoids wearing closed shoes”.[79] When asked the reason why Mr Stark ceased his last employment, she responded that he had to quit work “as a result of his bad temper and lack of communication skills.”[80] Elsewhere in the report, she nominated PTSD and anger issues as the conditions preventing or restricting Mr Stark’s capacity to work. In response to the request that she list any other factors that prevented him from obtaining or performing the type of work for which he was qualified and experienced, Dr Parvez wrote that wearing closed shoes would result in the return of his tinea “which is offensive”.[81]
[77]          Exhibit 1, T Documents, T 17, pages 104-109, Capacity to Work- Ceased or Ceasing to Work report          by Dr Seemeen Parvez dated 26 October 2015.
[78]          Exhibit 18, extract of summonsed clinical notes of Redcliffe Parade Family Medical Practice,
[79]          Exhibit 1, T Documents, T 17, pages 106, Capacity to Work- Ceased or Ceasing to Work report by Dr        Seemeen Parvez dated 26 October 2015
[80]          Ibid.
[81]          Ibid, page 108.
In response to the Department’s request for more information about the tinea condition,

Dr Parvez provided a medical report dated 2 November 2015. It relevantly read:
The most unpleasant consultation I had with Wesley was 15/10/14. He wanted me to do a second report for DVA at that point. He had just finished work that day, and he came down to see me. The putrid smell from his feet was so severe that I had to leave the consultation room door open, and I did put a mask on, and I refused to do his assessment on that day and advised him to come again once washed and cleaned, so I am able to examine his feet. He was trying to make a point that’s how his feet smell at the end of the day, when he takes his shoes off.
…He was working as a painter decorator in his last job which he had to leave due to combination of things, his anger and PTSD issues and of course that was the time when he also presented with his very smelly feet.
He stopped working late last year and since then he only wears thongs.
Taenia (sic) is a chronic recurrent medical condition and some times hard to get rid of as people cant (sic.) follow the prevention, as every body needs to wear close shoes to work, (prevention or management is pretty much wearing open shoes all the times). Otherwise the (tinea) reoccurs.
Therefore, In my opinion, his severe macerated (tinea) did contributed (sic.) in him quitting his work and is still preventing him from returning to work.[82]
[82] Exhibit 1, T Documents, T 17, pages 102-103, medical report of Dr Seemeen Parvez dated
In July 2016, Dr Parvez issued a medical certificate, in which she said that Mr Stark left the Army in May 2006 “due to his ongoing mental health issues (PTSD) and severe taenia (sic.) affecting his both feet”. She went on to say that his feet were then better as they not in wet boots anymore, although he still had ongoing mental health issues and alcohol dependence.[83]
[83] Exhibit 3, medical certificate of Dr Seemeen Parvez dated 28 July 2016.

Counsel for Mr Stark questioned Dr Parvez about the certificate, pointing out that on different occasions Mr Stark had told Dr Carter and the Tribunal that he left the Army for family issues related to his daughter and her mother, and suggesting that she had made a mistake in the certificate. The exchange went as follows:
Where you’ve recorded, he had to leave the army in May 2006 due to - including severe tinea affecting his both feet, you didn’t get that information from Mr Stark, did you?‑‑‑I think I did because if I’m doing a medical certificate he’s sitting in front of me.
But where do you record that, that you’ve ever taken that information from him?‑‑‑I don’t know, but this is how it seems to be, that I’m writing a medical certificate and he’s sitting in front of me and we’re talking about it.
It’s just that Mr Stark told Dr Carter that he left the army, requesting a discharge because of family issues. He told the tribunal today that he left the army because of family issues. He had a daughter with a partner that they were not - he was not together with that lady. That’s why he left the army, and I’m trying to work out where it is ‑ ‑ ‑?‑‑‑Look, all I - all I remember him telling me is he developed this problem when he was in the army and he still has it, and that’s what my memory ‑ ‑ ‑
That’s all you remember. He told you he developed a problem in the army and I suggest that you have made a mistake when you wrote on 28 July 2016 that he had to leave the army due to severe tinea affecting his both feet?‑‑‑I think that’s what he was trying to tell me that was one of the reasons he did that.
You think that’s what he was trying to tell you, but the only place you could that information, looking at your notes, is 15 October 2014 consultation, because that’s the only consultation where you ever talked to him at all about his feet?‑‑‑I don’t know how to respond to that
Well, isn’t that true, that that’s the only time that you ever spoke with Mr Stark about his feet?‑‑‑That is probably correct and the next time I’m talking about it in this medical certificate.
That’s two years later almost and you’re talking about it in the medical certificate?‑‑‑Can I please say something?
…I’m trying to get to the bottom of where you got this information about why he left the army in May 2006, and I think you’ve said that your evidence is that you think that’s what he was trying to tell you on 15 October 2014?‑‑‑I’m sure he was trying to tell that to me, I’m really confidently sure, more sure than not sure.
You’re very confident about that?‑‑‑More sure that he was trying to tell me that.
He was trying to tell you that his feet were so bad that they were actually a cause of him leaving the army?‑‑‑That’s what it seems to me, yes.
And that’s, I suggest, informed your opinion of how significant this problem is for Mr Stark?‑‑‑Yes, that’s what he was trying to stress on, that it’s significant for him.
But you never actually investigated whether it was tinea, whether it was footrot, whether it was any other medical condition, did you?‑‑‑On my clinical judgment on the day when I saw him first it was quite clear, I had no confusion.
That was the day that you didn’t actually examine his foot?‑‑‑He took the shoe off and I had a look at the feet with my eyes.
But whenever you saw him again you’ve said that he told you on one occasion that it wasn’t present. You never saw it in a clinical state‑?‑‑‑No, apart from that I have not seen his feet, I’m really clear about that, yes.[84]
[84] Ibid, page 37, lines 3- 16 and page 37, line 45 to page 38, line 29.
The Commission’s lawyers wrote to Dr Parvez late last year, seeking a supplementary medical report and in particular, her response to a number of questions. As to her report of 2 November 2015, Dr Parvez confirmed that her diagnosis was severe macerated tinea, and that Mr Stark “had to quit work in 2014” due to that condition. That was because wearing shoes and sweating was making his tinea worse and he could not work without shoes (due to workplace health and safety requirements).The condition also prevented him from returning to work. With respect to her report of 28 July 2016, Dr Parvez said that Mr Stark no longer suffered from the condition; as he was off work and wearing thongs, she presumed that he has no symptoms. Asked if Mr Stark’s tinea condition would cause him problems if he were to resume wearing closed in footwear, Dr Parvez responded that it would, saying that “wearing closed in footwear will lead to recurrent (tinea), in a susceptible individual, if he resumes work”.[85]
[85] See Exhibit 6, letter Moray & Agnew to Dr Seemeen Parvez dated 13 December 2016; and Exhibit 7,
Before leaving Dr Parvez’s evidence, it is worthwhile comparing the approach which her colleague, Dr Ha, adopted to Mr Stark’s foot condition. It appears that that he saw Mr Stark on three occasions concerning his foot condition and examined the feet. He also requested a swab from the pathologists, Sullivan Nicolaides. He concluded that while Mr Stark had a skin condition of the feet, that was not the reason why he was not able to work.[86] Counsel put those matters to Dr Parvez, which culminated in the following exchange:
I’m just putting it to you, Doctor, that Dr Ha had investigated it in the sort of way that I’d suggest you’d agree with me is what you’d say is a more comprehensive way to actually formulate an opinion as to whether this foot condition was or wasn’t a problem with work?‑‑‑If you say to me that he was working and he has this condition, it was a problem with work.
But if he didn’t take any time off because of the condition and he worked for eight years as a painter without taking any time off with this condition, wouldn’t you agree with me that in terms of his capacity to work that it wasn’t impacting his capacity to work as a painter?‑‑‑Yes, that is correct.
That’s not something you ever explored with Mr Stark by speaking with him about it?‑‑‑No. No.[87]
[86] Transcript of proceedings dated 2 November 2017, page 39, lines 1-21.
[87] Ibid, page 39, lines 23-35.
Dr Gina Liefman
Dr Gina Liefman was also called to give evidence at the hearing. She confirmed that she examined Mr Stark’s feet once, on 3 May 2017. She found no evidence of fungal infection and at that stage was unable to establish a diagnosis of tinea. She described the standard treatment for a fungal infection as keeping the feet dry and not damp, ensuring that the socks worn have been cleansed and applying topical antifungal creams. If there is recurrence, a course of oral antifungals could be considered.[88]
THE PARTIES’ CONTENTIONS
[88] Exhibit 14B, medical report of Dr Gina Liefman dated 4 May 2017.
Mr Stark’s case
It was contended on behalf of Mr Stark that, having regard to the evidence contained in the medical reports of Dr Parvez and Dr Carter referred to earlier,[89] the Tribunal should find that Mr Stark satisfies the criterion in s 24(1)(b).[90]
[89] See paragraphs 7, 8 and 10 above.
[90] Exhibit 13, Applicant’s Amended Statement of Facts and Contentions dated 24 July 2017, [6]-[7].
As to the first limb of s 24(1)(c), it was said that Mr Stark’s tinea condition is not a factor which plays any part in his inability to work.[91]
[91] Ibid, [19]-[22].
The second limb was said to have been satisfied in that if it were not for Mr Stark’s accepted disabilities, he would still be in gainful employment. He has suffered a loss of salary and earnings accordingly.[92]
[92] Ibid, [23].
The Commission’s contentions
The Commission accepted that Mr Stark satisfies the requirements of s 24(1)(b) of the Act.[93]
[93] Exhibit 15, Respondent’s Amended Statement of Facts, Issues and Contentions dated
As to the first limb of s 24(1)(c), the Commission contended that other factors existed relevant to Mr Stark’s employability as at the commencement of the assessment period that preclude the satisfaction of the “alone test”.[94] At the commencement of the hearing, I was informed that the parties were in agreement that the “other factors” were limited to the tinea condition affecting Mr Stark’s feet; the hearing proceeded on that basis.
[94] Ibid, [23].
The Commission relied in particular on Dr Parvez’s evidence, saying that it clearly supports a finding that Mr Stark’s non-accepted severe tinea condition was a significant factor in his ceasing work in November 2014, when he resigned from Amalgamated.[95]
[95] Ibid, [24].
Further, it was said that notwithstanding any incapacity that Mr Stark might have as a result of his accepted psychiatric condition, Dr Parvez’s evidence supports a finding that the tinea condition would be an obstacle to his returning to work as a painter; Mr Stark would suffer from symptomatology associated with his tinea condition in circumstances where he was required to wear closed in footwear, such as the protective boots worn by painters.[96]
[96] Ibid, [25].
CONSIDERATION
It is not in dispute that a number of the criteria prescribed by s 24 are satisfied. I address those matters first before proceeding to consider the application of s 24(1)(c).
Pension threshold questions
There is no doubt that Mr Stark made an application under s 15 of the Act for an increase in the rate of pension he was receiving. At the time of making the claim, he was under the age of 65. Therefore, the requirements of s 24(1)(aa) and s 24(1)(aab) are satisfied.
As Mr Stark has been found to be entitled to payment of his Disability Pension at 90 percent of the General rate, the requirement in s 24(1)(a) is also satisfied.
Further, s 25 of the Act, dealing with temporary payment at the Special Rate, is not applicable. There is no suggestion that Mr Stark is or was “temporarily” incapacitated by a war-caused injury or war-caused disease, or both. I therefore consider that the requirement in s 24(1)(d) is also satisfied.
The requirement in s 24(1)(b)
It is common ground that the requirement in s 24(1)(b) is satisfied. That paragraph requires Mr Stark to show that his incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week. For that purpose, the only matters that are to be considered are those listed in s 28 of the Act.
For Mr Stark, it was submitted that, based on the evidence before it, the Tribunal should reasonably find that he satisfies the s 24(1)(b) criterion. In particular, I was referred to the report of Dr Carter of 26 August 2015 and the “Capacity to Work” report completed by Dr Parvez in October 2015.[97] Dr Carter expressed the view that Mr Stark was totally and permanently incapacitated for work due to his PTSD. He could not work even eight hours per week due to this condition and the likelihood of his rehabilitation to return to the workforce was remote.[98] Dr Parvez considered that Mr Stark could work part-time, but less than eight hours per week. She said that Mr Stark’s PTSD and anger were the conditions that prevented or restricted his capacity to work.[99]
[97] Exhibit 13, Applicant’s Amended Statement of Facts and Contentions dated 24 July 2017, [5]-[7].
[98] Exhibit 1, T Documents, T 15, page 94, medical report of Dr Janis Carter dated 26 August 2015.
[99] Exhibit 1, T Documents, T 17, pages 107-108, “Capacity to Work- Ceased or Ceasing Work” report by Dr Seemeen Parvez dated 26 October 2015.
The Commission acknowledged that Mr Stark has the necessary skills, qualifications and work experience to engage in civilian employment as a painter/decorator, and that prior to the assessment period, he had engaged in remunerative employment. In particular, the summary produced by Amalgamated demonstrated that he was working an average of 36 hours per week as an employed painter.[100]
[100] Exhibit 15, Commission’s Amended Statement of Facts, Issues and Contentions dated
As I mentioned earlier, it was also accepted by the Commission that during the assessment period, the weight of the medical evidence, specifically the reports of Dr Carter, supports a finding that Mr Stark is prevented from working for eight hours or more per week by reason of the disability arising from his accepted conditions.[101]
[101] Ibid, [12].
Further, relevant to the consideration of his entitlement to be paid at the Intermediate rate under s 23, the Commission said that there is no evidence to suggest that Mr Stark is capable of working between eight and 20 hours per week.[102]
[102] Ibid, [13].
Based on the medical evidence before the Tribunal, I believe that the Commission’s concession, that the requirements of s 24(1)(b) are satisfied, is both reasonable and appropriate. I therefore agree with, and accept, the parties’ submissions that the relevant requirements of that subsection have been met. Further, I agree that there is no evidence to support a finding under s 23 that Mr Stark was capable of working between eight and 20 hours per week.
The requirements under s 24 (1)(c)
It is not controversial that Mr Stark suffers from PTSD and an alcohol dependence disorder which prevent him from continuing to undertake his work as a painter.
Where the parties disagree is whether a non war-caused condition, namely his tinea condition, has contributed to the preventative effect.
As mentioned earlier, Mr Stark contended that his tinea played no part in preventing him from undertaking remunerative work. Relying in particular on the evidence of Dr Parvez, the Commission contended that Mr Stark’s tinea was a significant factor in his ceasing work in November 2014 and remained an obstacle to his returning to work as a painter.
Having regard to the evidence, I am reasonably satisfied that Mr Stark’s tinea condition played no part in preventing him from undertaking remunerative work or from returning to work as a painter. My reasons follow.
The lay evidence
Adopting a practical, common sense approach to the evidence, there is nothing to suggest that the tinea condition played an active role in preventing Mr Stark from working.
Mr Stark said that at no time did his tinea affect his work duties or his activities of daily living. During his eight years with PPS, he worked six days per week and never once took a day off work due to his tinea. On the days he was affected by his tinea condition, he experienced some discomfort but was able to dry, elevate and rest his feet at the end of the day, and would be able to work the next morning. He had two pairs of work issued boots and was able to rotate them if one pair was wet. His wife confirmed that he never lost a day’s work because of his tinea condition, adding that he never complained of any significant pain from the tinea and that it did not appear to inconvenience him. She said that the tinea would occur intermittently, when he had been washing down houses, perhaps two or three times a month.
Likewise, neither of his former workmates, Mr Barton and Mr Toki, were aware of Mr Stark having medical problems with his feet over the substantial periods of time they worked with him (six and two to three years respectively). Both spoke of Mr Stark taking few days off work. Mr Stark occasionally mentioned to Mr Barton that his feet smelt, but never complained of pain or discomfort with them; he never mentioned that he suffered from tinea. Similarly, Mr Toki was unaware that Mr Stark suffered from tinea. He said that Mr Stark never complained of having anything wrong with his feet that might have affected his ability to work as a painter.
In a practical sense, Mr Stark’s work history, as recounted by him and his wife, and the evidence of his workmates over a substantial period, points to a finding that his tinea condition was not playing an active part in his being prevented from working as a painter.
That conclusion is reinforced by two other matters.
First, Mr Toki told of wearing gumboots to protect his feet when buildings were being washed down. Mr Stark said that while he was aware that other painters wore gumboots, he never tried them; in fact, he said that he had no purpose to buy them. That suggests that his tinea condition was not a sufficient problem to warrant him doing so. Indeed, he had worked out his own way of dealing with the condition, by drying, elevating and resting his feet after work and allowing his boots to dry overnight. If necessary, he would rotate his pairs of boots. Put simply, it was not a major issue as regards his ability to work as a painter. Even if it was an issue, there was a ready solution to be found in wearing gumboots. That itself calls into question whether the tinea condition constituted an operative factor.
Second, it is evident from the clinical notes of Dr Parvez’s practice that Mr Stark first consulted Dr Parvez about his foot condition on 15 October 2014. Prior to that, he saw her four times in the preceding eight months, but made no mention of any problems he was experiencing with his feet. One would have thought that if he had been having such problems, particularly at work, he would have raised them with her; he had ample opportunity to do so. The fact that he failed to raise the issue with Dr Parvez also suggests that the condition was not significant so far as his capacity to work was concerned.
That leads to a consideration of Dr Parvez’s evidence.
Dr Parvez’s evidence
With due respect to Dr Parvez, I am unable to accept her evidence. I say that for several reasons.
First, and most importantly, it is clear that the opinion she formulated was based on patently inadequate investigation and inquiry. From a perusal of her practice’s clinical notes, it became apparent that she had only seen Mr Stark’s feet on one occasion,

15 October 2014, which coincidentally was about two weeks before he ceased employment. On that occasion, Mr Stark’s feet had a very offensive odour, so much so that she could barely breathe and had to wear a mask and keep her surgery door open. She refused to examine his feet, saying that if he wanted her advice, they would have to be washed and cleaned before she could examine them. She recorded in her notes that she needed to touch and feel his feet. Despite Dr Parvez continuing to see Mr Stark for another 22 months or so, during which time she was asked to complete several reports and certificates, that physical examination was not undertaken. Nor did she take on the

15 October consultation, or at any time later, a history to determine how often the condition flared up, whether certain work duties were causing the condition, and whether it was causing Mr Stark an incapacity at work. As a consequence, her “too quickly reached opinion” (to use Mr Stark’s counsel’s words) was formulated without the benefit of a detailed history or a physical examination (which Dr Parvez herself thought necessary before an opinion could be expressed).
It also seems to me that Dr Parvez is an unreliable reporter. As the preceding paragraph illustrates, she has a tendency to conflate issues and draw assumptions which are not necessarily supported by the facts. In the absence of both a detailed history of Mr Stark’s condition and a physical examination of his feet, their malodour effectively became the basis for Dr Parvez’s opinion. While the odour from his feet was undoubtedly offensive, that does not necessarily equate to a determination of functional incapacity.
To take another example, Dr Parvez’s medical certificate of 28 July 2016 stated that

Mr Stark had to leave the Army in May 2006 due to his ongoing mental health issues, PTSD and severe tinea affecting both feet. Mr Stark denied that any of those factors were the reason for his leaving the Army. In particular, he denied having told Dr Parvez that.[103] For her part, Dr Parvez struggled at the hearing to identify what precisely she was told, and when. This is yet another example of Dr Parvez’s tendency to conflate issues and make assumptions.
[103] Transcript of proceedings dated 2 November 2017, page 6, lines 13-31.

Finally, even if (contrary to my view) Dr Parvez’s evidence were accepted, I would attach limited weight to it. Admittedly, there is a temporal connection, with the 15 October 2014 consultation coming two weeks prior to Mr Stark quitting his employment with Amalgamated. But more than a temporal connection, by itself, is required. What is required is a close examination of the evidence to determine whether, as a matter of fact, the condition played a part in preventing Mr Stark from undertaking remunerative work. What is telling is that, when asked to assume that Mr Stark took no time off work because of the condition, and that he worked for eight years without taking time off with his condition, Dr Parvez conceded that, in terms of his capacity to work, the condition was not impacting his capacity to work as a painter. Without her having asked Mr Stark the relevant questions, I consider that Dr Parvez’s evidence carries little weight.
Other matters
Before concluding my consideration of whether the requirements of s 24(1)(c) are satisfied, there are a few additional matters that I should address.
The first matter concerns Mr Stark’s Claim for Disability Pension form dated 3 June 2013. Question 30 of that form asked whether the disabilities that were being claimed (relevantly foot rot) affected Mr Stark’s employment or his ability to seek employment at any time. In response, it was stated, “unable to stand for any length of time”. While Mr Stark signed the form, it was completed in his presence by his then advocate.
Notwithstanding Mr Stark’s explanation, the Commission’s solicitor pointed out that the form contained a declaration by Mr Stark that the details provided in it were complete and correct. She also added that the question did not simply require a tick, but sought quite specific details of how the disability affected Mr Stark’s ability to engage in employment.
Mr Stark’s counsel submitted that I should treat that answer as an “outlier” that is not reconcilable with the balance of the evidence, particularly as to Mr Stark’s work history. It was said that if Mr Stark were unable to stand for any length of time, one would expect evidence, particularly medical evidence, to support it. There is no such evidence.
Having regard to the evidence of Mr Stark’s work history and in the absence of any evidence as at June 2013 concerning his inability to stand, I agree with, and accept, the submission of Mr Stark’s counsel that the answer should be discounted accordingly.
The second matter I wish to address is the apparent inconsistency in the timing of Mr Stark’s consultation with Dr Parvez on 15 October 2014. At the time, Mr Stark was employed by Amalgamated, which did not require him to undertake the washing down of buildings. As Mr Stark was clearly suffering from his foot condition, the question arose as to whether his condition flared at other times as well. At the hearing, Mr Stark confirmed that he had not been involved in house washing on the day in question. Rather, he explained that he was riding his motorcycle that day and it was wet. He was wearing his same work boots, which presumably got wet in the wet weather.[104]
[104] Transcript of proceedings dated 2 November 2017, page 15, lines 22-30.
The final matter that I wish to address arises from a comment made by Dr Parvez in her report of 26 October 2015. In response to the question whether there were other factors which prevented Mr Stark from performing the type of work for which he was suitably qualified and experienced, Dr Parvez stated: “Wearing closed shoes will result in the return of his (tinea), which is offensive.”[105] Based on those observations, the Commission contended that Mr Stark would suffer from symptomatology associated with his tinea condition in circumstances where he was required to wear closed in footwear, such as the protective boots required to be worn by painters.[106] At the hearing, Dr Parvez was asked about the possible outcomes of the failure to follow preventative measures. She said that prevention involved avoiding the wearing of closed in shoes; going into wet areas while wearing shoes would make the situation worse. If tinea was left untreated, it could lead to infection and even septicaemia.[107]
[105]         Exhibit 1, T Documents, T 17, page 108, Capacity to Work- Ceased or Ceasing Work form by Dr    Seemeen Parvez dated 26 October 2015.
[106]         Exhibit 15, Respondent’s Amended Statement of Facts, Issues and Contentions dated
[107]         Transcript of proceedings dated 2 November 2017, page 23, lines 19-29.
Mr Stark’s counsel was critical of Dr Parvez’s comments, again noting that at no stage had she relevantly investigated the matter. For the reasons I have expressed earlier, I share that criticism. Counsel also submitted that while the boots and feet might be offensive in the close confines of Dr Parvez’s surgery, that does not equate to functional incapacity. Again, I agree with that submission for the reasons already outlined. Finally, the possible complications to which Dr Parvez alluded were discounted by counsel on the basis that in all Mr Stark’s years as a painter, such complications had never eventuated. Simply because there is a risk of developing an infection or septicaemia does not equate to it being a functional problem. I agree with, and accept, those submissions.
Summary – the first limb of s 24(1)(c)
For the reasons outlined above, I am not satisfied that the non war-caused tinea condition played any part in preventing Mr Stark from being unable to undertake remunerative work.
I am reasonably satisfied that Mr Stark’s war-caused PTSD alone prevented him from continuing to undertake remunerative work.
I therefore believe that the first limb of s 24(1)(c) of the Act is satisfied.
The second limb of s 24(1)(c)
There is no doubt that the war-caused incapacity has led Mr Stark to suffer a loss of salary, wages or earnings that he otherwise would not have suffered but for his war-caused condition. As such, I consider that the second limb of s 24(1)(c) is satisfied.
CONCLUSION
I am reasonably satisfied that Mr Stark meets all the criteria for the Special rate of pension from 14 January 2015.
Accordingly, the Tribunal sets aside the decision under review, and in place of that decision, determines that Mr Stark is entitled to pension at the Special rate provided for in s 24 of the Act, with effect from 14 January 2015.

I certify that the preceding 117 (one hundred and seventeen) paragraphs are a true copy of the reasons for the decision herein of
Senior Member A C Cotter

.....................................................................
Associate
Dated: 11 December 2017

Date of hearing: 2 November 2017

Counsel for the Applicant: Mr Anthony Harding

Solicitors for the Applicant: Mr Terence O’Connor
Terence O’Connor Solicitors

Solicitors for the Respondent

Ms Rachel Blake
Moray & Agnew Lawyers

12 January 2015.

Department of Veterans’ Affairs dated 28 January 2015, and Staff in Confidence form dated
28 January 2015.

3 February 2015.

Dr Janis Carter dated 5 February 2015.

17 April 2015.

Board dated 5 May 2016, [30] and [31].

Rangiah JJ).

page 12, line 7.

pages 28-29, Non- malignant Skin Condition Medical Impairment Assessment form by Dr Alex Ha
dated 1 August 2013.

3 February 2015.

page 12.

3 February 2015.

page 15.

2 November 2015.

supplementary medical report of Dr Seemeen Parvez dated 4 January 2017.

21 August 2017, [15].

21 August 2017, [10]-[11].

21 August 2017, [25].

Date of hearing:	2 November 2017
Counsel for the Applicant:	Mr Anthony Harding
Solicitors for the Applicant:	Mr Terence O’Connor Terence O’Connor Solicitors
Solicitors for the Respondent	Ms Rachel Blake Moray & Agnew Lawyers