Thompson and Repatriation Commission (Veterans' entitlements)

The applicant sought review of a decision by the Veterans Review Board, which affirmed a Repatriation Commission decision denying eligibility for a disability pension at the intermediate or special rates under the *Veterans Entitlements Act 1986* (Cth). The applicant had been receiving a pension at 100% of the general rate for accepted medical conditions. The dispute centred on whether the applicant's incapacity, solely due to war-caused injury or disease, prevented her from continuing remunerative work and caused a loss of earnings, as required for the intermediate and special rates.

The court was required to determine whether the applicant's accepted medical conditions, specifically cervical spondylosis and rotator cuff syndrome, alone caused her incapacity for remunerative work. This involved assessing whether her inability to work more than eight hours per week (for the special rate) or twenty hours per week (for the intermediate rate) was solely attributable to war-caused conditions, and if so, whether this resulted in a loss of salary or wages that she would not otherwise suffer. The respondent conceded the applicant's degree of incapacity and her inability to work the requisite hours, but contested that these limitations were solely due to war-caused conditions.

The court reasoned that while the applicant had experienced neck pain, her treating orthopaedic surgeon, Dr Ghabrial, reported that her cervical spondylosis had no impact on her work and had settled down. Dr Ghabrial's reports indicated that the applicant's severe pain and inability to work were primarily due to her back, shoulders, knees, and ankles, not her neck condition. The court concluded that the applicant's cervical spondylosis was not a factor causing her incapacity for work. Consequently, the applicant was found to be suffering a loss of salary or wages because of her accepted medical conditions alone, thereby satisfying the requirements of section 24(1)(c) of the Act.

The reviewable decision of 20 June 2017 was set aside. In substitution, the court decided that the applicant qualified for the intermediate rate of pension from 24 December 2012 and the special rate of pension from 9 June 2017.