Sypher and Repatriation Commission (Veterans’ entitlements)

[2016] AATA 14

Sypher and Repatriation Commission (Veterans’ entitlements) [2016] AATA 14 (20 January 2016)

Division	VETERANS' APPEALS DIVISION
File Number(s)	2014/5549
Re	Allister Sypher
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Ms N Isenberg, Senior Member
Date	20 January 2016
Place	Sydney

The decision under review is affirmed.

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

Ms N Isenberg, Senior Member

CATCHWORDS

VETERANS AFFAIRS — disability pension — application for increase in pension –intermediate rate of pension – whether veteran’s war-caused incapacity renders the Applicant incapable of undertaking remunerative work other than on a part-time basis or intermittently – whether veteran capable of undertaking work for 20 or more hours per week – decision under review affirmed

LEGISLATION

Veterans’ Entitlement Act 1986 (Cth) ss 23, 28

CASES

Chambers v Repatriation Commission (1995) 129 ALR 219
McVilly and Repatriation Commission [1987] AATA 560
Repatriation Commission v Buckingham [1996] FCA 1218
Repatriation Commission v Butcher [2007] FCAFC 36

REASONS FOR DECISION

Ms N Isenberg, Senior Member

20 January 2016

1. The Applicant, Allister (‘Allan’) Sypher, served for 20 years in the Australian Army as an engineer.  He has a number of medical conditions that have been accepted as related to his service:

   ·L4-5 and L5-S1 disc lesions;  

   ·Chondromalacia patellae of the left knee;

   ·Cervical spondylosis;

   ·Bilateral sensorineural hearing loss;

   ·Lumbar spondylosis; and

   ·Osteoarthritis of the left knee.

2. Pension for his conditions was initially assessed pension at 70% of general rate, but, on internal review, was increased to 80%.  The Applicant sought an increase in his pension in respect of those conditions beyond 80% of the General Rate; in particular, he sought the Intermediate Rate of pension.  His application for review was refused by the Veterans’ Review Board.  He now seeks review by this Tribunal.  The parties did not dispute that the appropriate General Rate of pension was 80%.  There was no contention that the Applicant qualified for the Special Rate.

   LEGISLATION

   Criteria for the Intermediate Rate

3. The Intermediate Rate criteria are set out in s 23 of the Veterans’ Entitlement Act 1986 (Cth)  (VEA)  That section provides, in part:

   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) …; 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) ….

   (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

   …

4. Section 28 of the VEA , which sets out the matters to which regard must be had in considering whether s 23(1)(b) applies, states:

   Capacity to undertake remunerative work

   In determining, for the purposes of paragraph 23(1)(b) … whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable 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).

   EVIDENCE

   Employment history

5. The Applicant gave evidence that following his retirement from the Army in 1996 he worked in the facilities management (‘FM’) industry. 

6. After some short contract work he commenced work in 1998 with Transfield.  He was Operations Manager for the Telstra Maintenance, first in NSW and then nationally.  His role, he said, involved a 60 hour minimum working week.  He then worked Transfield as manager of the NSW Department of Housing maintenance contract which required him to be available on-call for emergencies 24 hours per day seven days per week, and a minimum of 60 working hours each week.  In 2004-5 he was the national manager of FM for Eastern Australia. 

7. He took two  years off and then returned to work – as Property Manager for NSW Police.  In 2008-9 he worked for BAT as a senior contract manager.

8. In September 2009 he commenced what was to be his last full time employment – as National Facilities Manager for the Immigration Detention sites around the country (and Australian Territories), which were managed by his employer, Serco.  The role required normal working weeks of 60 to 70 hours.  As the geographic spread of these sites was quite broad the contact hours would be quite long – e.g. there is a four  hour time difference between Christmas Island and Villawood.  He would be contacted day and night.  He would arrive at the office very early in the morning.  The number of centres dramatically increased from four in 2009 to over 21 in 2011, and the workload correspondingly increased.  He normally worked 12 to 14 hours per day at the work site.  60 to 70 hour weeks were the norm, with many occasions of seven  days a week being required.  Nonetheless, he enjoyed the challenge presented by the role, and at no time sought alternative employment. 

9. Mr McKinnon, who was the Applicant’s manager at Serco, confirmed that the Applicant had consistently worked 60-70 hours a week.

10. The Applicant said that although the normal working hours may seem high, these are typical in the FM industry. 

11. He had to use public transport because Serco did not provide company vehicles.  He avoided catching buses due to the consistent sharp braking in traffic, and the jarring of his back which caused immediate back pain and resulting in reduced mobility.  In his statement he wrote that he needed time off work to recuperate.  Rail transport is not as harsh an impact on his back, but the steps in the carriage were steep and he had fallen down them more than once in the last year of his employment.  After using public transport to get to work for many years, he had to drive, or risk another fall.

12. He said he had to avoid all work gatherings because he was unable to stand for any period of time and would need to take time off to recover.  Similarly, if he could find a seat, it needed to have a straight back to provide support to his lumbar region or he would have the same outcome as standing.

13. While he could walk short distances, he was frequently embarrassed when walking with others because he could not keep up with a normal walking pace, and he frequently tripped over as his left leg causing him to stumble, even due to minor unevenness in the surface.  This was not conducive to conducting dignitaries around a work site or accompanying management on an inspection.

14. He could not do any heavy lifting.  This made travel to remote sites quite difficult, he said, and meant that when relocating offices, he could not do so alone.

15. His evidence was that in 2012 he became unable to continue working the hours he had, he said, because of his service-caused orthopaedic conditions.  He said he could feel that his body, and his back in particular, was not allowing him to remain at his work site for 12 to 14 hours a day.  He found it difficult to stay in a seat at the office desk, and traveling to various remote sites was most unpleasant.  He also had difficulty when at a site in inspecting buildings and maintenance issues due to his reduced mobility.  Building inspections require a lot of walking around premises and up and down stairs, which he find difficult

16. He began leaving the work site at about 2 pm after starting early in the morning.  He would work from home for the rest of the day.  His manager at the time was aware of this, and he was obliging for this practice to continue although this degree of flexibility is most unusual in the industry.  Mr McKinnon said he understood the Applicant to have preferred to work those hours to reduce travel time.  He acknowledged the Applicant had some mobility problems.  He knew him to work at home into the evenings.

17. By late 2012 he could tell that his back condition was worsening, so he considered it appropriate to submit a claim to increase his disability pension with the  Department of Veterans’ Affairs’ (DVA).  In early 2013 he submitted a claim for increase to DVA.

    Redundancy from Serco

18. In mid-2012 there was a management change in the company, and he reported to a new manager, whose work practices were to start late (around 9 or 10 am) and to stay at the office to about 7 pm, whereas the Applicant started work early (6 - 6:30 am), and left at 2 pm.  His evidence was that, at least since his time with the NSW Police, he had always been an early starter.  Another manager told the Applicant the new manager did not find this to be a satisfactory arrangement.  At no time previously had his performance ever been questioned, and his annual performance reviews had always been ‘glowing’. 

19. In early 2013 there was a restructure and a position of Director of FM was created.  The Applicant applied for the role but was unsuccessful. In July 2013 he was made redundant.  He surmised that it was due to his perceived reduced office contact hours, which he said, was a direct result of his accepted service-related conditions.

20. Mr McKinnon said he was a very good employee with an “encyclopaedic knowledge” and was able to meet the requirements of his job, notwithstanding his mobility problems.

21. Prior to his redundancy at Serco, the Applicant was earning approximately $140,000 gross per annum.

    The Applicant’s search for a job

22. The Applicant said he searched for jobs through contacts he had made in the FM industry and through recruiters but remained unemployed for approximately two years.  He said that when he informed prospective employers about his injuries, he was not hired.

23. In about September 2014, he was engaged as an expert witness to assist his former employer, Serco, in its litigation with another FM provider.  He worked for a total of 35 hours, performing the work intermittently over a number of weeks. 

    Employment by Australia Facilities Management (‘AFM’)

24. In about April 2015, he obtained employment on a casual basis, doing project work, with AFM as a FM Consultant.  AFM is owned by Paul Micallef, who had worked for the Applicant at Serco.  Mr Micallef said he had previously identified another project for the Applicant but the company’s contract with the client had not proceeded. 

25. The Applicant said he was paid $45 per hour and initially worked between 9 to 15 hours per week, which he felt he could physically manage.  His duties were to inspect buildings for maintenance and to write-up his findings, among other things.  The time required to inspect the building varied according to its size.  However, more than 95% of his working hours were spent writing his reports, which were based on his building inspections.

26. In June 2015 he learned that his claim for Intermediate Rate was likely to be refused after the Respondent received the report of Dr Chase, Occupational Physician, who was of the opinion he could work full-time with albeit with some restrictions.  He therefore increased his hours to around 27 hours per week.  Initially, he was able to cope with the increased hours as most of his time was spent writing up reports.

27. At the end of June, he increased his hours to approximately 50 hours per week. Again, most of his hours were spent writing reports based upon one or two inspections.  He maintained this level for two weeks until the middle of July 2015, by which time he felt very fatigued and physically distressed.  He said he found that working such hours, even though most were performed at home, exacerbated his back, neck and left knee and he subsequently reduced his hours to around six  hours per week over the following fortnight in order to recuperate.

28. At the end of July 2015 he agreed to assist with a project that required a lot of data entry.  He said he had agreed to assist as he was feeling physically incapable of inspecting buildings at that time, which is an inherent requirement of his usual role.  The data entry work required him to list all maintainable items such as air conditioning units, fire extinguishers, and electrical fittings, in approximately 400 buildings belonging to the University of Sydney and enter them into an Asset Register, which is essentially a spreadsheet.  He worked for around 160 hours over two weeks until the middle of August 2015.  He was only able to work such hours, he said, because he worked from home on his computer and took breaks whenever it suited him.  The work was very administrative in nature and was not something he normally did.  He only agreed to do perform this work because he was physically exhausted and in pain and needed the money.  It would not be reasonable for him to perform this type of work on a regular basis given his skills and experience.

29. From mid to late August 2015, he inspected another building and prepared a report in respect of the maintenance required.  The inspection took about three hours.  He worked approximately 100 hours over two weeks; and again the vast majority of the work was performed at home preparing his report after the inspection.  Mr Micallef said the Applicant did not appear having any difficulty in working those hours, which were necessary because the client was demanding. 

30. On 28 August 2015, he inspected, with Mr Micallef, Bathurst TAFE.  However, after a couple of hours of walking around the building and taking notes, he found that he was suddenly unable to move his legs.  Mr Micallef observed how exhausted the Applicant appeared by the end of the inspection. 

31. The Applicant said he was able to drive home, he said, albeit in severe pain and discomfort.  As it was Friday evening, he went straight to bed.  The following morning, he called his GP, Dr Martyn Baker, at Coogee Medical Centre whom he consults only with respect to his accepted disabilities.  He arranged an appointment for the first available opportunity, which was 2 September 2015.  Dr Baker prescribed Diclofenac 50mg 1 tablet twice daily and referred him for a MRI scan of his lumbar spine, which he underwent on 10 September 2015.  Dr Baker, referred him to the Lifestyle Clinic at the University of New South Wales' Faculty of Medicine, where he was assessed by Ms Kelly McLeod, Accredited Exercise Physiologist on 30 September 2015.  The Applicant said he did not find her to be of great assistance.

32. He said it took him a long time to complete his report for the Bathurst inspection, he said, because he was in a lot of pain. 

33. From September 2015 onward, he did not inspect buildings as he was physically incapable of doing so.  His hours from then on were spent preparing his reports and performing other data entry.  By the end of September he was in too much pain and physical distress and was struggling to perform his duties, even from home.  He has been incapacitated for work, he said, since the beginning of October 2015.

34. Mr Micallef gave evidence that the Applicant was taking too long to do his reports.  The Applicant agreed.  On the Applicant’s evidence this was because of pain and having to work at his own pace.  On Mr Micallef’s evidence it was not the delay in completing the reports, but that the Applicant effectively priced himself out of the market by charging double (or more) to complete them.  Mr Micallef said he had spoken to the Applicant and told him he was taking too long to write the reports and he was therefore unable to continue giving him work.  In any event, his company is not doing well. 

35. Mr Micallef said he was sympathetic to the Applicant, who he regarded as an “elder statesman” in the FM industry.

36. Both Mr McKinnon and Mr Micallef confirmed that in the FM industry 12 hour days and seven day weeks are not uncommon; there was no role in the FM industry for part time work.  As to the report-writing role the Applicant had undertaken for him, he said that “not much of a report” can be done in four hours a day.

    Medical evidence

37. The reports and evidence of Drs Rosenthal and Chase, Occupational Physicians, are referred to below.

    CONSIDERATION

38. The legislation requires that the material before the Tribunal must satisfy a number of tests.

39. Firstly, the Applicant's degree of incapacity from war-caused conditions must be at least 70% of the General Rate: s 23(1)(a) of the VEA.  There was no dispute that the Applicant met this test.

40. Next, s 23(1)(b) of the VEA requires that an Applicant's incapacity from service-caused conditions, must be of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for more than 20 hours a week, or, 50% of what is ordinarily worked in a particular kind of work.   This test requires an examination of the veteran’s incapacity from his service-caused conditions to determine whether or not that incapacity is such, of itself alone, to render him incapable of undertaking remunerative work for the relevant duration.  This does not require an examination of other causes that might render him unable to undertake remunerative work, but merely whether the service-caused disabilities, on their own, are sufficient to render him incapable of undertaking such work.

41. Section 28 provides assistance in determining whether a veteran is incapable of undertaking remunerative work by setting out the only matters that regard can be had to in deciding that question.

    What are the Applicant’s trade and professional skills, qualifications and experience?

1. Section 23(1)(b) requires an examination of the Applicant’s capacity to undertake remunerative work which he is physically and mentally able to carry out; the test is not limited to the type of work previously undertaken or for which the veteran is qualified by training or experience: Chambers v Repatriation Commission (1995) 129 ALR 219, where the Court said at 235:

   … A person's skills are not confined to those acquired informal training or by virtue of experience in particular employment. They include innate aptitude for tasks and abilities acquired or developed independently of employment or training. For example, a person may never have used computers at work and have no formal computer training. If that person has self-taught word processing skills, he or she nonetheless has skills that may well enhance opportunities for remunerative work. Similarly "qualifications" means (Oxford Shorter Dictionary and Macquarie Dictionary) "a quality or accomplishment which qualifies or fits a person for some office or function”. The word is not confined to qualifications obtained as the result of formal training or work experience. Again, a person's experience is not necessarily restricted to that acquired in employment or formal training.

2. From Dr Chase’s report, the evidence was that the Applicant retired from the Army with the rank of Major.  He holds a Bachelor’s degree in Mechanical Engineering and an associate diploma of maintenance engineering.  The Applicant’s history was of a successful career as an Army officer, with an emphasis on electrical and mechanical engineering and logistics.  At his rank, it can readily be assumed he also had management skills.  Since leaving the Army he has worked exclusively in FM, although for a short, intense period earlier this year, he worked in a data entry role. 

   What kinds of remunerative work might a person with the Applicant’s skills, qualifications and experience reasonably undertake?

3. The test requires an examination of all of the different kinds of work that a hypothetical person with the relevant skills and experience of the Applicant might reasonably undertake: Repatriation Commission v Buckingham [1996] FCA 1218. The remunerative work referred to in s 23(1)(b) accordingly has a broad meaning. Further, the term "remunerative work" is broadly defined to include "any remunerative activity": s 5Q(1) VEA.

4. Further, in Repatriation Commission v Butcher [2007] FCAFC 36 at [7] the Full Court said:

   It is settled law that the subsection requires consideration of ‘remunerative work’ by having regard not to particular tasks and duties involved in specific jobs, but rather to the type of substantive work undertaken by the veteran considered at a higher level of generality… 

5. Because remunerative work is to be construed broadly, I do not accept that it should be limited to senior management in FM, as the Applicant’s representative contended.  With his skills, qualifications and experience, the Applicant could reasonably undertake a number roles associated with electrical and mechanical engineering and logistics, although I acknowledge that since leaving the Army he has worked exclusively in FM.  His roles there were as a senior executive, ultimately supervising other facility managers.  More recently, he has been a consultant in FM doing safety audits. 

6. For a short, intense period earlier this year, he also worked in a data entry role associated with FM.  It was contended on the Applicant’s behalf that this work should be disregarded.  I was referred to Re McVilly and Repatriation Commission [1987] AATA 560 where the Tribunal held that, although the Applicant in that case was capable of doing some minor clerical part-time work, it was not reasonable to expect him to undertake work at such a level, bearing in mind his vocational skills, qualifications and experience. Such roles were ‘beneath’ the Applicant in that case. The Applicant is clearly overqualified for roles which are exclusively of data entry nature and I would not include such roles as being among the kinds of remunerative work a person with the Applicant’s skills, qualifications and experience might reasonably undertake. On the other hand, he was prepared to undertake that type of work, so it is not so readily excluded. He clearly could, by virtue of his skills, qualifications and experience, reasonably undertake roles that are computer-based.

7. Dr Rosenthal broadly agreed with Dr Burns that the Applicant could work 25 hours per week in a role that he “has been doing in maintenance as a mechanical engineer”.  He noted however that he thought that 4-5 hours was his likely work fitness rather than the 5-6 hours suggested by Dr Burns who had examined the Applicant in 2014,  He wrote:

   So his skills and capacity would be in supervisory aspect of maintenance that he has been doing most of his working life since leaving the Army.

8. To me it appeared that Dr Rosenthal, in conflating skills and capacity, did not properly address the scope of what work the Applicant might undertake given his skills and qualifications, referring only the last type of work he had undertaken.  His approach, in my view, was too narrow. 

9. Dr Chase considered that the Applicant could work as a teacher or lecturer.  While this may the case, I do not accept that the Applicant could undertake such a role without further vocational training.  To require him to do so would be unreasonable: per Chambers at 237.

10. I consider that with the Applicant’s skills and qualifications he could undertake a role in electrical and mechanical engineering and logistics.  He has fine organisational skills given his successful Army career and his senior executive positions.  He is very skilled in FM work.  He has demonstrated that, by virtue of his skills, qualifications and experience, he could reasonably undertake project roles that were computer-based. 

    To what degree do the Applicant’s service-caused conditions reduce his capacity to undertake the kinds of remunerative work referred to above?

11. In considering this question the Tribunal must disregard all of an Applicant’s non-accepted disabilities or any other factors that might have an impact on his capacity to undertake those kinds of remunerative work.  In this case though, the Applicant has no non-accepted disabilities.  I must decide whether the Applicant’s incapacity from his service-caused conditions alone prevent him from working more than 20 hours a week (or 50%of what is ordinarily worked in a particular kind of work) in any kinds of work that a person with his skills, qualifications and experience might reasonably undertake.

12. The Respondent contended that the Applicant is capable of working full time.  The Respondent relied on the evidence of Dr Chase.  In fairness to the Applicant, Dr Chase had observed that the Applicant was unable to work in an “unrestricted” capacity; he was unable to work in a role that required heavy lifting, bending or trunk twisting.  These workplace ‘restrictions’ do not assist the Applicant because, as I have found, the Applicant’s skills and qualifications would permit him to work in a variety of roles, none of which required heavy lifting, bending or trunk twisting. 

13. While there was evidence from the Applicant and Mr Micallef that he would have difficulty undertaking site visits, which are an essential part of FM, Dr Chase did not find the Applicant to be unable to undertake site visits; these were not in the nature of manual labour.  There would be times when he could, and other times when he would find it difficult.  Dr Rosenthal thought the Applicant would be capable of some site visits, depending on the site.  Dr Chase did not regard the x-rays of the Applicant’s back as demonstrating the level of restriction the Applicant claimed.  He said his claimed limitations were on the basis of “self-report”, and that his problems are very common.  He did not regard the Applicant as having been well-managed.  For example, he considered a simple analgesic may alleviate the Applicant’s complaints.  Other roles, which did not require site visits, could be undertaken on a full time basis.

14. The Respondent pointed to the Applicant, on his own evidence, actually having worked for two fortnight periods averaging 50 and then 80 hours per week in June 2015 and in July/August 2015. 

15. The Applicant’s evidence was that, when he learnt he was unlikely to receive the Intermediate Rate, he increased his hours to around 27 hours per week which he was able to manage as most of his time was spent writing reports.  While he had increased his hours to approximately 50 hours per week at the end of June, he could only sustain that level of work for a fortnight, because, by that time, he felt very fatigued and physically distressed.  He reduced his work to around six hours per week over the following fortnight in order to recuperate.  In the next fortnight he was able to work an average of 80 hours per fortnight.  In fact, he worked an average of between 25 and 80 hours a week for six out of eight fortnights in the period 1 June – 23 August 2015.   

16. Dr Rosenthal said that he was surprised to learn that the Applicant had been able to find work, and that he had been able to work the hours he had.  He observed that the Applicant had been unable to sustain those hours on a long term basis.  On examination Dr Rosenthal considered the Applicant to have been able to sustain 25 hours work a week although pain would affect his ability to concentrate.  He observed that the Applicant would be greatly assisted by being able to work at his own pace, taking breaks and having a good chair.  Being self-employed would provide greater flexibility.  He did not agree with Dr Chase about the Applicant’s ability to work full time, albeit with restrictions.

17. The Applicant’s representative contended that the evidence showed the Applicant’s service-caused conditions reduced his capacity to sustain the level of work undertaken in June – August 2015.  He could point me to no authority that this was a requirement in the criteria. 

18. Even if I were to accept the Applicant’s contention, that it is only if an Applicant is able to sustain the level of work that a claim for Intermediate Rate would fail at this point, I find that the Applicant had in fact sustained that level of activity for over six out of eight fortnights in the period 1 June – 23 August 2015, a period of over two and a half months.  Further, while the Applicant said he was unable to continue with site visits, other than his self-report, there was no objective evidence that he was unable to continue with home-based project work.  In any event, I have found that he has the skills to undertake roles which do not in fact require site visits at all.

19. In addition, all the submissions overlooked that, in considering s 23(1)(b), an Applicant’s service-caused conditions must render him incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently.  It is clear the Applicant is able to work significant hours, at least intermittently.

20. I also note Mr Micallef’s evidence of what seemed to me to be reluctant dissatisfaction with the Applicant’s overcharging, especially in circumstances where his company was not performing well. 

21. The Applicant’s representative referred to the number of hours the Applicant had worked in his FM roles and submitted that it was against that benchmark that I should assess his work ability.  No authorities were referred to in support of this contention.  I do not agree with the Applicant’s contention.  Even if he were unable to undertake the role of a facility manager or supervisor of other facility managers, which requires very long hours, that it not to say the other roles the Applicant is able to undertake also require that level of attention.  The test therefore is whether he is, by virtue of his accepted disabilities alone render him incapable of undertaking remunerative work for more than 20 hours a week.  I do not find that to be the case.

22. Having come to that view, it was not necessary for me to consider the remaining criteria for the Intermediate Rate.

    DECISION

23. The decision under review is affirmed.

I certify that the preceding 64 (sixty -four) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

..............................[sgd]..........................................

Associate

Dated 20 January 2016

Date(s) of hearing	23 - 25 November 2015
Solicitors for the Applicant	Legal Aid New South Wales
Advocate for the Respondent	Repatriation Commission