Tems and Repatriation Commission (Veterans' entitlements)

Tems and Repatriation Commission (Veterans' entitlements) [2017] AATA 781 (31 May 2017)
Division:VETERANS' APPEALS DIVISION
File Number: 2016/0967
Re:Leonard Tems
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Miss E A Shanahan, Member
Date:31 May 2017
Place:Melbourne

The Tribunal affirms the decision under review.
[sgd].............................................................
Miss E A Shanahan, Member
REPATRIATION – disability pension – claim for special rate – conditions of lumbar spondylosis, a secondary depressive disorder and alcohol dependence – defence service – no operational service – alone test not satisfied – decision affirmed
Legislation
Veterans’ Entitlement Act 1986
Cases
Richmond and the Repatriation Commission [2014] FCAFC 124
Repatriation Commission v Hendy [2002] FCAFC 424
Forbes the Repatriation Commission [2000] FCA 328
Summers v Repatriation Commission (2015) FCAFC 36
REASONS FOR DECISION
Miss E A Shanahan, Member
31 May 2017

Mr Tems was receiving a disability pension at 60 per cent of the general rate. He submitted an application to the Veterans’ Review Board (VRB) on 5 April 2013 for an increase in pension to the special rate; and for the acceptance of a depressive disorder and alcohol dependence as being service related. On 16 October 2013, the VRB accepted these conditions as being service related and increased his pension to 100 per cent of the general rate. His claim for special rate was denied on the basis that he did not satisfy the alone test as defined in s 24(1)(c) of the Veterans’ Entitlement Act 1986 (the Act). The condition of lumbar spondylosis had been accepted as a defence-caused condition on 1 January 1992.
On 24 February 2016, Mr Tems applied to the Administrative Appeals Tribunal for review of the VRB decision refusing the special rate. At the hearing Mr Tems was represented by Mr Michael Quinn, an advocate. The Repatriation Commission (the respondent) was represented by Mr Ken Rudge, a solicitor with the Advocacy Section of the Department of Veterans’ Affairs (DVA). The respondent provided the Tribunal with the s 37 documents in accordance with the Administrative Appeals Tribunal Act 1975 (the T-documents, Exhibit R1). The parties tendered additional medical reports. A list of the documents tendered is appended to this decision.
BACKGROUND TO THE APPLICATION
Mr Tems enlisted in the Australian Regular Army (the army) on 26 June 1973 at the age of 18. He was employed in the catering division during the 20 years he spent in the army. In 1981 he was said to have injured his back during a physical training session involving circuit training. This involved running from one side of the room to the other, picking up a five kilogram weight at each turn and putting it back on the floor. During this exercise he heard a click in his back and noted the immediate onset of back pain. He was taken to the Townsville Hospital and observed overnight. He then spent two weeks at home before returning to work. Throughout this period he had physiotherapy and took analgesics. After his return to work he had physiotherapy sessions on a monthly basis.
He was medically downgraded three months after this injury. He was promoted to the rank of Sergeant in 1979 and Warrant Officer Class II in 1991.
Following his discharge from the army in 1993, Mr Tems obtained employment with Sodexo, a company which had been contracted to provide army catering. He was employed by Sodexo from 1993 to 1999. He gave evidence that his work experience during this period was good, his back pain was relieved by regular movement and it was his normal practice to have up to four or more breaks per day for a cigarette which he claims improved his mobility.
In 1999 Sodexo was replaced by Spotless as the army’s catering contractor. Mr Tems worked for Spotless for a period of two years during which time the company sought to reduce his hours of employment. He returned to work with Sodexo in approximately 2001. Sodexo was then providing catering to the Ford motor company. Mr Tems was an administrative payroll manager. He coped well with this position until a new site manager commenced working for Sodexo in 2006. He still experienced back pain which was relieved by frequent movement.
Until the appointment of the new manager, Mr Tems worked 30 hours per week (he had only worked full time on his return to Sodexo for the initial six months). Despite the reduction in his working hours to 30 hours, he coped with exactly the same workload as he had as a full time employee. In June 2006 his hours of work were further reduced to four days per week, six hours per day. This continued until June 2007. Despite the further reduction to 24 hours per week he said he was doing the same amount of work and extra paper work. He continued to have the same break periods during the day. He estimated that over the last five years with Sodexo he had five days off on sick leave. When challenged with data from Sodexo that he had had 238 hours (39.66 days) of sick leave, he had difficulty accepting that figure.
The new site manager was strongly opposed to smoking in the workplace and smoking in general. This was a source of friction as Mr Tems continued to have at least four cigarette-smoking breaks per day. From 2006 to 2007 he coped but kept receiving increasing volumes of work. This led him to resign from Sodexo.
Over the next 18 months he searched for part-time employment of 15 to 20 hours per week, as he felt this was all he could cope with. Mr Tems estimated that he had made 50 job applications and had received 20 acknowledgements, none of which were satisfactory. During the period he was searching for work Australia was experiencing what is termed the Global Financial Crisis (GFC). Mr Tems said Sodexo had been cutting costs in all areas of their activities during 2007.
Shortly after he ceased work Mr Tems’ daughter noticed a change in his mood and suggested he see his doctor. According to Mr Tems, his general practitioner suggested that he receive psychological assistance. However, Mr Tems did not agree to attend a psychiatrist until more than three years after he ceased work.
Mr Tems first saw Dr Jerome Gelb, psychiatrist, in November 2011. Based on the history he provided to Dr Gelb, the administration of the Zung Self-Rating Depression Scale and the Beck Depression Inventory, Dr Gelb found Mr Tems to have mild to moderate depression, which was considered to be secondary to his chronic back pain. Dr Gelb attributed some of the depression to Mr Tems’ inability to obtain further work. Based on the history given by Mr Tems, and in particular his daughter’s evidence, Dr Gelb made a diagnosis of alcohol dependence. Dr Gelb did not consider Mr Tems fit for any work after that diagnosis.
Mr Tems gave evidence that he continues to see Dr Gelb every two to three months, for counselling. He had recently commenced medication, with Sertraline (50 mg daily) prescribed by his general practitioner, on the advice of Dr Robyn Horsley, occupational physician.
As a result of Dr Gelb’s assessment and opinion, Mr Tems qualified for disability pension at 100 per cent of the general rate as from 16 October 2013.
EVIDENCE BEFORE THE TRIBUNAL
Mr Tems’ evidence has been summarised under BACKGROUND TO THE APPLICATION.
Dr Robyn Horsley, occupational physician
Dr Horsley provided two reports - the first dated 30 June 2016 (Exhibit R2) and the second dated 5 October 2016 (Exhibit R3). In the earlier report, Dr Horsley considered all of Mr Tems accepted conditions. She recorded that he was no longer having any psychiatric treatment from a psychiatrist or psychologist; that his back pain had progressed; and that on examination he had a positive straight leg raising test on the left and a tingling sensation in the lateral three toes and the sole of his left foot. She considered this to possibly be indicative of progression of his discal lesion.
In terms of Mr Tems’ claimed depression, Dr Horsley performed various tests for this condition and concluded that he had moderate depression with mild suicidal ideation. She recommended that he be referred to a psychologist for counselling. She also opined that antidepressant medication would be to his advantage. In terms of his ongoing treatment, Dr Horsley advised that the passive osteopathy he had received monthly since 2002 had reached a plateau of effectiveness and a supervised gym program or hydrotherapy would be much more beneficial. Dr Horsley recorded a sitting tolerance of 30 minutes, a standing tolerance of 5 minutes, a walking tolerance of 20 to 30 minutes and a driving tolerance of up to one hour in an automatic vehicle with power steering.
Dr Horsley considered Mr Tems unfit for his previous role in hospitality, although he had good computer skills and experience in the pay-roll area which might enable him to undertake computer-based, part-time work but probably not up to eight hours per week. However, as she was seeing Mr Tems some nine years after his cessation of work, Dr Horsley relied on a report from Mr Ronald Haig, orthopaedic surgeon, dated 30 September 2013 (T7) regarding Mr Tems’ low back pain. She also noted that Mr Tems had ceased work because of an interpersonal issue with his site manager relating to his smoking and excessive time breaks. Based on the history given to her and the accompanying medical records, Dr Horsley concluded that Mr Tems did not cease work because of his back condition. She also concluded that his age (of 61 years), his absence from the workforce for nine years and his general deconditioning were contributing factors to his inability to undertake remunerative work for more than 8 or 20 hours per week.
Dr Horsley’s second report was generated by a request from the Department to consider additional medical reports. These medical reports were from Dr Grant, psychiatrist, who had diagnosed a mild adjustment disorder with some features of alcohol dependence; and the general practitioner’s notes indicating that Mr Tems’ employment had ceased because of interpersonal conflict with his manager and the necessity for major surgery in July 2008. Dr Horsley did not consider that these reports impacted on her original opinion.
In her evidence before the Tribunal, Dr Horsley confirmed the contents of her written reports. She said that, in her opinion, Mr Tems was employable between 2007 and 2009 but this was not the case in 2016 when she had seen him. She confirmed that she considered his time out of the workforce was a major factor impacting on his employment opportunities.
DOCUMENTARY EVIDENCE
Mr Ronald Haig, orthopaedic surgeon
Mr Haig saw Mr Tems at the request of the DVA and provided a report dated 30 September 2013 (T7). Mr Haig recorded that Mr Tems had suffered from low back pain over many years commencing after an acute episode in 1981 when performing physical training exercises as part of his army duties. Mr Tems had bent to pick up an article and experienced immediate acute severe pain in his back. He was taken to the Townsville Hospital by ambulance, observed overnight and released the following morning. He remained off work for two weeks and then resumed his normal duties. Three months later his medical rating had been downgraded.
In 2013 Mr Tems gave Mr Haig a history of constant back pain radiating to both buttocks. On examination Mr Haig noted a 25 per cent reduction in the range of movement of Mr Tems’ spine but no evidence of sciatica or any neurological abnormality. Mr Haig’s report states that Mr Tems weighed 170 kilograms and had been advised on urgent measures to decrease his weight. (The Tribunal doubts this is the correct weight as the general practitioner’s records suggest it might have been 107 kilograms, although this is still at an obese level.)
Mr Haig only had a plain x-ray available to him. It showed wide spread degenerative changes involving the lumbar spine, including loss of disc height at L4/5. Mr Haig concluded that Mr Tems was capable of working full time provided such work did not involve more than a minor degree of physical effort. Mr Haig completed a medical impairment assessment, confirmed the diagnosis of lumbar spondylosis and attributed all Mr Tems symptomatology to that diagnosis.
Dr Ian Rossiter’s Report
Dr Rossiter completed a combined impairment rating for Mr Tems, assigning a rating of 70 points, corrected for age.
General Practice Medical Records relating to Mr Tems
These records cover a period from 1999 to the present. In 1999 Mr Tems’ ongoing low back pain was recorded and he was prescribed the non-steroidal anti-inflammatory drug Mobilis which he continues to take. In 2002 an x-ray of his lumbosacral spine was said to show L5/S1 disc degeneration. The entry dated 29 March 2005 recorded an increase in his back pain after lifting boxes at work. The last entry that records Mr Tems complaining of back pain is dated 19 April 2010. References to his back are made thereafter but only in relation to the production of medical reports to the DVA.
Mr Tems’ weight was last recorded on 28 April 2016 at 101.8 kilograms. His BMI was estimated at 33, which is close to the morbid obesity range and his major reasons for seeing his general practitioner have been for control of diabetes (diagnosed in May 2015) and for medication to assist him to cease smoking. There is an entry dated 8 October 2015 that an MRI of his lumbar spine was to be performed but there is no record of this having been done.
Mr Tems’ general practitioner ordered a CT scan of his lumbar spine in 2010 and this showed disc space narrowing at all levels, a diffuse disc herniation at L3/4 stating this was causing compromise of the Dural sac, degenerative facet joint changes, vertebral lipping but no disc herniation at L4/5 or L5/S1 levels. The degree of compromise of the Dural sac is not estimated. (The Tribunal notes that with disc herniation there is frequently indentation of the Dura but no significant stenosis.)
Mr Tems underwent several surgical procedures for abdominal hernias. The first of these was a repair of an umbilical hernia in 2001, followed by a repair of an epigastric hernia in 2005. In the latter repair a mesh was inserted to prevent re-herniation. This mesh became infected and resulted in a longstanding discharging sinus. In July of 2008 Mr Tems presented acutely with abdominal pain and was diagnosed as having small bowel incarcerated in a recurrent umbilical hernia. The small bowel loop was in fact ischaemic and required resection. He again developed discharging sinus and on 5 November 2008 the wound was surgically explored and the mesh removed. Further surgery has been required more recently.
Northern Health Records relating to Mr Tems
These records outline the repair of the hernia and small bowel resection, necessitated by its strangulation in July 2008. Mr Tems has had several colonoscopies performed for removal and checking of his colonic polyp status.
Dr Chris Grant, consultant psychiatrist
Dr Grant saw Mr Tems on 24 May 2016 (Exhibit R5). Dr Grant obtained a detailed history including Mr Tems’ disagreement with his site manager arising from his smoking and his workload. He told Dr Grant that he had been undertaking casual work for a friend who ran a hotel, and for which he was being paid cash in hand. Mr Tems said he had been doing pay roll and book-keeping work until late 2013. He continued to help friends prepare spreadsheets and assist them in managing investment properties. Mr Tems denied any radiation of his low back pain consistent with sciatica and no peripheral neuropathy or claudication, which is relevant given that he has diabetes.
Dr Grant elicited from Mr Tems symptoms of lack of interest, except in activities with his grandsons, but good concentration and attention span with an intact memory. Mr Tems displayed some anger relating to his army service and his work with Sodexo. He could cope well with the activities of daily living but a friend mowed his lawns and his friend’s wife occasionally helped with heavy cleaning. Mr Tems attended his local RSL Branch every three months.
Dr Grant obtained the history that Mr Tems drank alcohol on four or five days weekly. He usually had three to four pots of low-carb beer when he was drinking at home with a friend; but if he attended the local pub he could drink up to 14 pots of beer. He had a drink driving conviction in 1971 and another in June 2015 when he lost his licence for six months. Mr Tems reported that he had undergone further surgery to his abdominal wound in 2015 because of a persisting sinus. The wound had not been re-sutured but allowed to heal by secondary intention, which took four months.
From his mental state examination, Dr Grant determined that Mr Tems was of average intelligence, his cognition was intact and his affect was of good range, well‑modulated with no loss of control.
Dr Grant made a diagnosis of chronic adjustment disorder with depressed mood, which at the time he saw Mr Tems was of mild severity. Dr Grant also diagnosed some features of alcohol dependence but neither psychiatric condition was considered to be of such a severity as to affect his work capacity for greater than eight hours per week. Based on the psychiatric condition alone, Dr Grant concluded that Mr Tems could work for more than 20 hours per week.
Sodexo Report
Mr Tems had worked for Sodexo four and a half years. His employer’s statement is that he resigned of his own volition, having been employed part time for most of the four and a half years. During that time he had had 238 hours of sick leave which equated to 39.66 days. Mr Tems’ earnings for 118 hours of overtime between 19 December 2002 and 22 June 2007 were also provided.
Following the hearing Sodexo provided a copy of Mr Tem’s letter of resignation dated 18 May 2007 and his leave report. These had been provided to the Repatriation Commission pursuant to the Tribunal’s request for supporting documentation. Mr Tems was given the opportunity to respond to these documents but advised that he accepted their content as being correct. The letter of resignation does not make any referral to health issues.
RELEVANT LEGISLATION
Mr Tems’ claim was for the special rate of payment. The VRB found that Mr Tems qualified for the DSP at 100 per cent of the general rate, but affirmed the determination (by a delegate of the Repatriation Commission) that he did not meet the requirements for the special rate or intermediate rate.
The relevant legislation is contained in s 24 of the Veterans’ Entitlement Act 1986 (the Act) which states:
24 Special rate of pension
(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a)either:
(i)the degree of incapacity of the veteran from war caused injury or war caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war caused injury or war caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war caused injury or war 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 ...

As Mr Tems does not have operational service, but defence service, the standard of proof in determining this matter is that provided by s 120(4) of the Act:
120 Standard of proof
...
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B. ...
SUBMISSIONS
Mr Quinn for the Applicant
Mr Quinn stressed Mr Tems’ strong work ethic as exhibited by his resumption of work after his injury in 1981. He submitted that Mr Tems had ceased work because of persistent chronic low back pain and not for any other reason. He had spent 12 to 18 months seeking part-time lighter work but was unsuccessful and as a result developed secondary depression and increased his alcohol intake to a level of alcohol dependence. Mr Quinn contended that Mr Tems was now totally and permanently disabled and unable to perform any type of work and that he met all of the criteria for special rate of pension.
Mr Rudge for the Respondent
Mr Rudge agreed that Mr Tems satisfied s 24(1)(a) of the Act, as he had an impairment rating of 70 points, as estimated in 2013 by Dr Ian Rossiter. He agreed that Mr Tems was now totally and permanent incapacitated for work given Dr Horsley’s report of 2016 that he was not capable of performing at the very most, eight hours per week in a sedentary type occupation. However, he said this was not the case in 2013 when he had been assessed by Mr Haig and found to be fit for full time work; and certainly, on Dr Horsley’s reading of Mr Haig’s report, was fit for 20 hours or more of work per week.
Mr Rudge contended that Mr Tems did not meet the requirements of s 24(1)(c), given that when he ceased work he was coping with 24 hours work per week. He maintained that Mr Tems had ceased work because of Sodexo’s attitude to cost-cutting and his disagreement with the site manager regarding his smoking, his frequent breaks for smoking and his overall work performance.
Mr Rudge submitted that Mr Tems did not meet the alone test of s 24(1)(c), as it was not his defence-caused injury or disease or both which alone prevented him from continuing the work he had undertaken for many years as an administrator and pay clerk for the catering firms Sodexo and Spotless. The other factors that were relevant in a preventative manner were his six years out of the workforce at the time of his application (now 10 years), his increasing age and his lack of any recent work experience.
Mr Rudge maintained, that as a result Mr Tems could not be considered to be suffering a loss of salary or wages or earnings on his own account, given he did not satisfy the alone test. Similar arguments related to consideration of the intermediate rate (s 23 of the Act). As a corollary to this, Mr Rudge submitted that Mr Tems did not satisfy s 23(3)(a)(i) or s 24(2)(a)(i) and thus did not qualify for the intermediate or special rate of pension.
In support of his submissions, Mr Rudge relied upon the Full Federal Court decision in Repatriation Commission v Hendy [2002] FCAFC 424. At paragraph 37 the Court addressed the situation in relation to a veteran who ceased remunerative work and did so before commencement of the assessment period and determined that the lack of recent work experience, time out of the workforce and increasing age were relevant considerations under s 24(1)(c) of the Act. These factors were also addressed in Richmond v Repatriation Commission [2014] FCAFC 124 where the Full Court said, at paragraph 58:
... 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.
The Full Court in Richmond had adopted the finding of Nicholson J, in Forbes v Repatriation Commission [2000] FCA 328, at paragraph 39 and that of the Full Court in Hendy at paragraph 37.
In Forbes at Paragraph 39, Nicholson J said:
The fact that a non-war-caused condition is not alone of such preventative effect does not prevent it having that effect in combination with the war-caused condition.
The other preventative factors operative in Mr Tems case were identified by Mr Rudge as:
·ceasing work for other reasons;
·being out of the workforce but for 6 years at the time of his application and now for 10 years; and
·his lack of recent work experience, plus his increasing age.
And that at the time he resigned his job the labour market was depressed as a result of the GFC.
Mr Rudge did not address the ameliorating provision of s 24(2)(b) except to the extent that Mr Tems had engaged in seeking work but was unsuccessful because of the economic climate at the time. This argument was based on Mr Haig’s findings that Mr Tems was in fact fit for full time employment in an appropriate sedentary occupation when assessed in 2013, some six years after he had ceased work for other reasons.
TRIBUNAL’S DELIBERATIONS
Mr Tems has the accepted conditions of lumbar spondylosis, secondary depression or (probably more accurately) an adjustment disorder relating to his physical condition, and some evidence of alcohol dependence sufficient to apparently satisfy the relevant Statements of Principle. His description of events in 1981 certainly sound more severe than those entries that have been made by persons to whom he has given a medical history. There is no dispute that after he sustained an injury he was observed at the Townsville Hospital for one night and discharged the following day and resumed work on a full time basis two weeks later, after treatment with bed rest, analgesics and some physiotherapy. Mr Tems claims to have suffered from chronic, almost continual back pain since 1981. This resulted in him being medically downgraded while in the army; and he claims this was the reason that he resigned from his job with Sodexo in June 2007.
The clinical notes of his treating general practitioner record the presence of low back pain from 1999 onwards but do not address the severity of this pain. The Tribunal notes that the GP has not altered Mr Tems’ treatment, which when he first attended the clinic was the non-steroidal anti-inflammatory drug Mobilis which he continues to take. In the clinical records of the Andrew Place Clinic in Bundoora there is no mention of back pain; only an entry stating that a diagnosis of L5/S1 disc degeneration was the reason for prescribing Mobilis and Panadeine-Forte tablets.
It was not until April 2010 that Mr Tems complained of back pain with some radiation to the right thigh posteriorly, and had signs of reduced straight leg raising on the right. On this occasion, CT scanning of the lumbar spine was ordered and the findings of this scan have been referred to under BACKGROUND TO THE APPLICATION. Since approximately September 2014, Mr Tems’ visits to his general practitioner have been for treatment to help him stop smoking and for the treatment and control of his diabetes. There has been no mention of back pain since November 2012, except for the entry that an MRI of his spine was to be performed.
Similarly, there are no entries in the GP’s clinical notes of symptoms indicative of depression and no comment regarding alcohol intake, let alone alcohol dependence.
Dr Gelb has diagnosed major depression, secondary to Mr Tems’ physical pain and as part of a chronic pain syndrome. He attributed 40 per cent of Mr Tems’ work capacity reduction to the psychiatric disorder including the alcohol dependence. Dr Grant, has accessed Mr Tems’ psychiatric status as being an adjustment disorder of mild degree. In 2013 Mr Haig assessed Mr Tems’ lumbar spinal condition as widespread degenerative disease consistent with the diagnosis of spondylosis but considered Mr Tems fit for full time duties in a sedentary job, such as he had been performing up until 2007.
Dr Haig had in his 2013 report excluded any diagnosis of sciatica i.e. a radiculopathy relating to nerve root compression. Dr Giarrusso (the GP) had done the same, except for one entry when he thought there was some left sided sciatica; as had Dr Rossiter, based on the reports provided to him by Dr Giarrusso. Mr Haig estimated the reduction in the range of Mr Tems’ spinal movement to be 25 per cent.
Dr Giarrusso in his completion of the medical impairment assessment forms on 6 May 2013 had stated that the diagnosis was lumbosacral spondylosis of 32 years duration and depression of 12 months duration. The depression had been diagnosed by Dr Gelb, not by himself.
Dr Horsley assessed Mr Tems in relation to his physical condition and was of the opinion that between 2013 and 2016 his lumbar spondylosis had deteriorated in that he had a positive straight leg raising test on the left and also tingling in his left lateral three toes and the sole of his foot. She estimated his sitting tolerance to be up to 30 minutes along with other static and active movements. She concluded that in 2016 he had some capacity to work on a part-time basis, probably up to eight hours per week in a voluntary role. However, she adopted the opinion of Mr Haig provided in 2013 when the VRB decision was made.
At the hearing on 20 March 2017, Mr Tems sat in the witness box for a period of just over one hour without any obvious discomfort. He had been advised that he could get up and move around, stand and walk but did not avail himself of the opportunity.
His employer has completed a form relating to Mr Tems’ cessation of employment which states the sole reason was that he resigned from his part-time work with Sodexo. Mr Tems has given this as the reason to several doctors including Dr Horsley (para 17), to his GP as recorded (para 18) and to Dr Grant (para 29) but now claims he resigned because of his back pain.
Mr Tems has given evidence of his efforts to obtain alternative employment following his resignation in June 2007, and said that he did not tell any potential employers of his back problems. He was unsuccessful in obtaining any further employment. However, the Tribunal notes that in July 2008, approximately 12 months after he resigned from his job at Sodexo, Mr Tems was admitted to the Northern Health Hospital via the Emergency Department with strangulated small bowel in his umbilical hernia. This hernia had been repaired previously and had been the source of a discharging sinus for some years. He recovered well and was discharged home five days later. Thereafter, he has continued to have problems with this repair and in 2008 and again in 2015 underwent further surgery to remove the infected mesh.
In 2016 Dr Grant considered Mr Tems’ adjustment disorder levels of depression to be mild and did not prevent him from undertaking remunerative work of more than 20 hours per week. Dr Grant recorded that Mr Tems was working on a cash-in-hand basis, doing pay‑roll accounting until the end of 2013 and continued to perform some similar work for friends.
In the past two years Mr Tems’ diabetes has become a major problem. He has a long family history of diabetes. He is treated with oral hypo-glycaemic medication. After seeing Dr Horsley in 2016 he has been prescribed, on her recommendation, an anti‑depressant in the form of Sertraline. He has not seen Dr Gelb since 2014 and was never prescribed any anti‑depressants by Dr Gelb.
The Tribunal finds that Mr Tems satisfies s 24(1)(a) of the Act in relation to qualification for the special rate in that he has an impairment rating of 70 per cent.
At the time of his application for special rate and based on his physical condition alone, Mr Haig considered Mr Tems was capable of working full time. However, as of 2016, Dr Horsley has opined that he is now unable to work eight hours per week. As a result the Tribunal accepts that he currently satisfies s 24(1)(b) of the Act.
Section 24(1)(c), commonly referred to as the alone test, is the most relevant consideration in this matter. While Mr Tems claims that he ceased work in June 2007 because of his longstanding chronic back pain there is evidence from his employer and the history he has given to medical consultants that he ceased work because of conflict with his site manager regarding his smoking and his work performance. The Tribunal acknowledges his work hours had been reduced progressively over a period of some years; and at the time he ceased work he was effectively working not six hours per day for four days a week but five hours a day, as he readily admitted to having four cigarette breaks of 15 minutes each outside of his normal approved breaks. Mr Tems claimed that the cigarette-smoking eased his back pain.
Mr Tems depressive disorder, whether it is a major depressive disorder or an adjustment disorder, was not diagnosed until late 2013; and according to his general practitioner became manifest in 2010. During the period when Mr Tems was said to be searching for work, the employment market was depressed as a result of the global financial crisis.
There are therefore many preventative factors present in Mr Tems’ medical and employment history which impact on his capacity for work and these are unrelated to his defence-caused diseases. The Tribunal agrees with the respondent’s quoted authorities Forbes, Hendy and Richmond in relation to the interpretation of s 24(1)(c) of the Act and also to 23(1)(c). Mr Tems does not meet the alone test required for the special (or intermediate) rate payment. And as he ceased work for reasons other than his defence-caused diseases, he cannot be said to have suffered a loss of earnings due to defence-caused disabilities; and he does not satisfy the ameliorating provision of section 24(2)(a)(i).
The Tribunal affirms the decision under review.

I certify that the preceding 65 (sixty‑five) paragraphs are a true copy of the reasons for the decision herein of:

Miss E A Shanahan, Member

........................................................................
Associate
Dated: 31 May 2017

Date of hearing: 20 March 2017

Advocate for the Applicant: Mr Michael Quinn, Peacekeeper and Peacemaker Veterans' Association

Advocate for the Respondent: Mr Ken Rudge, Department of Veterans' Affairs
APPENDIX
Applicant’s Exhibits
A1Applicants statement dated 29 August 2016
A2Dr Giarusso's Clinical Notes p 7-103

Respondent’s Exhibits
R1Section 37 T-Documents 29/3/2016
R2Report of Dr R Horsley dated 30//6/2016
R3Report of Dr R Horsley dated 5/10/2016
R4Employer's Questionnaire dated 1/11/2013
R5Report of Dr Chris Grant, Consultant Psychiatrist dated 6/6/2016
R6Northern Health Clinical Notes p 1-78

[2017] AATA 781

31 May 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Natural Justice

Date of hearing:	20 March 2017
Advocate for the Applicant:	Mr Michael Quinn, Peacekeeper and Peacemaker Veterans' Association
Advocate for the Respondent:	Mr Ken Rudge, Department of Veterans' Affairs