The tribunal's decision
14 As already indicated, Mr Barnes' focus in this Court was on the Tribunal's determination that he was not entitled to an intermediate rate of pension under s 23.
15 The Tribunal's reasons included a detailed account of the evidence, including that of Mr Barnes and of Dr Robyn Horsley, an occupational physician, both of whom gave evidence before it and were subject to cross-examination.
16 The Tribunal also carefully discussed the various medical reports before it about cervical, thoracic and lumbar spondylosis, including: Dr Horsley's reports of 20 October 2016 and 14 July 2016; the 7 September 2016 report of Mr Patrick Lo, neurosurgeon; the 30 June 2015 letter from Dr Fotakis, general practitioner (said to be in part contrary to the specialist opinions of Drs Horsley, Joubert and Poon); the 24 April 2014 report of Mr Vasudeva S Pai, consultant orthopaedic surgeon; and the 17 April 2014 report of Mr David Prestage. The Tribunal also discussed the medical reports so far as they concerned an old fracture of the right malleolus (ankle), including the 14 July 2016 report of Dr Horsley; the 1 June 2015 letter from Philip Spark, podiatrist; the 26 May 2015 report by Dr Robert Piaggio, diagnostic radiologist; the 15 May 2015 x-ray report by Dr Alex Dulimov; and the 24 April 2014 report by Mr Vasudeva S Pai.
17 In addition, the Tribunal considered the expert evidence concerning solar skin damage, sensorineural hearing loss and tinnitus, and deviated nasal septum and held that none of these three conditions had "a significant effect on Mr Barnes' capacity to undertake remunerative work": see Tribunal reasons, [31]-[33].
18 The Tribunal also outlined the evidence relating to foot pain, which in large part concerned two conditions that had not been accepted by the Repatriation Commission and/or the VRB. These were the conditions of Plantar Fasciitis and Sinus Tarsii syndrome (non-accepted conditions). The Tribunal accepted that Mr Barnes had these non-accepted conditions at the time of its decision. As well, the Tribunal considered evidence relating to Mr Barnes' shoulder problems and right knee.
19 The Tribunal recorded, at [42], that it had "placed more weight on the opinion of occupational physician, Dr Horsley, whose education and training is far more applicable to the circumstances of this case" than to the medical reports relied on by Mr Barnes. It added (at [41]-[42]):
Moreover, Dr Horsley's opinion is contained in a comprehensive report that draws on her specialised knowledge and the reports of other physicians, which is then applied to the inter-relationship between Mr Barnes and his capacity for work. I note that orthopaedic consultant Mr Pai defers in his report to the judgement of occupational physicians when it comes to questions of employment capacity.
I therefore prefer Dr Horsley's opinion over that of Dr Prestage and the other physicians, because her clinical assessment was comprehensive, whereas the referral underpinning Dr Prestage's assessment was focussed substantially on Mr Barnes' right ankle. Consistent with the opinion of Dr Horsley, which I note is reflected in Mr Barnes' own assessment of his work capacity, I therefore find that he is able to work up to 20 hours per week in a 'primarily sedentary role,' where he can move around and sit-stand as he could do in his market research role.
20 The Tribunal supported its conclusion, by stating (at [43]) that it was "reasonably satisfied" that:
(a) spondylosis was a substantial factor in Mr Barnes' decision to cease remunerative work and accepted Dr Horsley's opinion that his neck and back condition limited his capacity to work to between eight and 20 hours per week;
(b) sleep apnoea was a factor in his ceasing remunerative work. However, the Tribunal was not reasonably satisfied that it continued to affect Mr Barnes' capacity to undertake remunerative work in a substantial way;
(c) problems with his feet (principally being the non-accepted conditions of Plantar Fasciitis and Sinus Tarsi syndrome (see [53])) were a substantial factor in his incapacity and decision to cease remunerative work; and
(d) Mr Barnes' other "accepted" and "non-accepted" conditions (right ankle, solar skin damage, sensorineural hearing loss and tinnitus, deviated nasal septum, shoulder and knee conditions) were not significant causal factors in his decision to cease remunerative work.
21 The consequence of the Tribunal's finding that Mr Barnes could work between eight and 20 hours per week was that it was unable to find that he was "totally and permanently incapacitated" for the purposes of s 24(1)(b) of the VE Act. He was therefore ineligible for a pension at the special rate, a conclusion that, as already noted, has not been challenged.
22 A question for the Tribunal remained as to whether Mr Barnes was eligible for a pension at the intermediate rate in accordance with s 23 of the VE Act. The Tribunal was, plainly enough, reasonably satisfied that Mr Barnes met the requirements set out in s 23(1)(aa), (aab) and (a)(i). The Tribunal found in substance that Mr Barnes satisfied the requirement in s 23(1)(b) because, by reason of his spondylosis alone, he was incapable of working "otherwise than on a part-time basis or intermittently".
23 Turning to s 23(1)(c) of the VE Act, the Tribunal referred to a relevant passage in Flentjar v Repatriation Commission (1997) 48 ALD 1; 26 AAR 93 (Branson J, Beaumont and Merkel JJ agreeing). Although the Full Court in Flentjar was concerned with the requirements of s 24 of the VE Act, rather than s 23, the terms of ss 23(1)(c) and 24(1)(c) are virtually identical and the passage was therefore relevant to this aspect of its decision. The relevant passage was as follows:
1. What was the relevant "remunerative work that the veteran was undertaking" within the meaning of s 24(1)(c) of the Act?
2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?
24 In substance the Tribunal found, for the purpose of s 23(1)(c), that the remunerative work that Mr Barnes had been undertaking was as a car park attendant at the VRC and as a market researcher principally in homes and shopping centres. In identifying such employment, the Tribunal said (at [49]):
[49] Mr Barnes' work background is predominantly in accounts and clerical roles in the RAAF. The relevant remunerative work he was undertaking at the time he decided to resign in March 2014 had two components:
(a) As a VRC attendant undertaking car park duty, checking passes and roving security for about eight hours per day. Mr Barnes undertook these part time shifts every few weeks, other than during busy periods like the Flemington Racing Carnival, and was required to stand for the majority of his shift; and
(b) As a market researcher with Millward Brown, which had both an interview component at homes and shopping centres comprising approximately 80% of his work time, as well as an office-based role for approximately 20% of work time [.]
25 The next issue addressed by the Tribunal with respect to s 23(1)(c) was whether Mr Barnes had an accepted war-caused injury or war-caused disease that "of itself alone" prevented him continuing to undertake that work so that he suffered a loss of wages that he would not be suffering if he did not have that incapacity. After discussing the relevant medical evidence, the Tribunal held that Mr Barnes' foot problems (Plantar Fasciitis and Sinus Tarsi Syndrome) contributed significantly to his inability to continue working at the VRC and Millward Brown, but that these conditions had not been accepted as a war-caused injury or war-caused disease by the Repatriation Commission or the VRB.
[50] When asked whether in the absence of his accepted conditions, Mr Barnes could have continued in the roles he was undertaking prior to his resignations, Dr Horsley said he could not, because of the 'extensive disability associated with his feet'. Dr Horsley stated that Mr Barnes' Plantar Fasciitis had remained a significant issue over a number of years until resolved with orthotics in 2014. In Mr Edwards letter to Dr Fotakis dated 14 April 2016, he states that Mr Barnes had been off work for the previous two years 'because of a combination of spine and foot pathology. His concerns today are his feet.' Dr Fotakis noted eight years earlier on 8 February 2008, that Mr Barnes experienced 'bilateral foot pain for some time,' due to 'Bilateral Plantar Fasciitis.' Moreover, Mr Barnes' Clinical Records reveal that in the years prior to ceasing work, the predominant issue requiring attendance at his general practitioner related to pain in both feet. By way of contrast during the same period, his presentations relating to accepted conditions of Spondylosis and Sleep Apnoea were scant and mostly related to DVA claims assessments, radiology referrals for 'TPI review' and a consultation on 30 June 2014 regarding an application for a disability parking permit - the latter related to pain in both his back and feet.
[51] Both Mr Edwards and Dr Horsley have diagnosed Mr Barnes with Sinus Tarsi Syndrome, which Dr Horsley believes may be caused by his pes planus, which is age-related and biomechanical. This diagnosis follows prolonged Plantar Fasciitis over many years before it was resolved with orthotics in 2014. I note that neither Plantar Fasciitis nor Sinus Tarsi Syndrome are accepted as defence-caused conditions.
(Emphasis added)
26 The Tribunal concluded (at [53]) that it was "reasonably satisfied that problems with Mr Barnes' feet, namely Plantar Fasciitis and Sinus Tarsi Syndrome … contributed significantly to his inability to continue working at the VRC and Millward Brown". The Tribunal rejected (at [52]) Mr Barnes' submission that there was "a sufficient causal relationship between his accepted foot/ankle conditions and the non-accepted conditions affecting his feet". It held that the decision of the VRB to accept pes planus right foot and left foot sprain did not establish a causal relationship between his accepted conditions and the Plantar Fasciitis/Sinus Tarsi Syndrome. The Tribunal noted (at [53]) that neither the Repatriation Commission nor the VRB had made a determination that Mr Barnes' Plantar Fasciitis or Sinus Tarsi Syndrome was a war-caused injury or a war-caused disease. Relying on Owen v Repatriation Commission (1995) 59 FCR 93 at 100-101, the Tribunal concluded (at [52]-[53]) that "the Tribunal has no role in concluding that an accepted condition has precipitated or contributed to a condition not yet accepted by the Commission or VRB", although it was open to Mr Barnes to seek such a determination from the Commission.
27 The Tribunal's finding that Mr Barnes' Plantar Fasciitis and Sinus Tarsi Syndrome had significantly contributed to his inability to continue working at the VRC and Millward Brown meant that Mr Barnes did not satisfy s 23(1)(c) of the VE Act directly (see further below at [28]) because, as Mr Barnes properly conceded in submissions in this Court, this meant that he was not prevented from working more than 20 hours per week owing to war-caused injury or war-caused disease alone.
28 As indicated at [12] above, however, s 23(3)(b) provided another path by which s 23(1)(c) could be satisfied. Section 23(3)(b) was therefore critical to the Tribunal's decision. In substance, s 23(3)(b) provided that where a veteran, who is less than 65 years of age and has not been engaged in remunerative work, satisfies the Commission that:
(1) the veteran has been genuinely seeking to engage in remunerative work;
(2) but for incapacitating effect of a war-caused injury, the veteran would be continuing so to seek to engage in remunerative work; and
(3) the incapacitating effect of the war-caused injury is the substantial cause of the veteran's inability to obtain remunerative work,
then 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. That is, the effect of this provision was to lessen the stringency created by the word "alone" in s 23(1)(c) of the VE Act: see, in this regard, Smith v Repatriation Commission [2014] FCAFC 53; 220 FCR 452 at [11] (Rares J) and [173] (Forster J) and [39] below.
29 Although the Tribunal held (at [56]) that it was reasonably satisfied that Mr Barnes had genuinely been seeking to engage in remunerative work (see 28 above], it rejected Mr Barnes' case under s 23(3)(b) on the basis that the Tribunal was not reasonably satisfied that the incapacitating effect of his accepted conditions (in substance, his spondylosis) was the substantial cause of his inability to obtain remunerative work (see 28 above). (It did not specifically address 28]: this was unnecessary given its finding with respect to 28].)
30 The Tribunal stated as follows:
[56] Having considered the available evidence, I am reasonably satisfied that Mr Barnes has genuinely sought to engage in remunerative work. But, I am not reasonably satisfied that incapacity from his defence-caused disabilities was the substantial cause of his inability to obtain remunerative work. The Federal Court has previously held in Fox v Repatriation Commission at 319-320:
'The words "the substantial cause" require that, if the incapacity is not of itself productive of the inability to obtain work, it is nevertheless the operative factor which, more than any other, explains it. That something might be a "substantial cause" has regard to the situation where there may be a number of factors operating which are of sufficient causal significance to qualify as "substantial" … The definite article in s 24(2) of the 1986 Act (compare Repatriation Act 1920, Schedule 2, as amended in 1985), requires a stronger and more direct causal connexion between the incapacity and the inability to obtain remunerative work …'
[57] In Mr Barnes' case, the evidence supports a finding that the incapacity resulting from longstanding problems with his feet is undoubtedly a substantial cause, perhaps the substantial cause, impacting his ability to continue working for the VRC and Millward Brown. These problems with his feet are distinct from and are causally unrelated to the accepted conditions relating to his feet and ankles. It therefore follows that the ameliorating provisions in section 23(3)(b) of the Act do not assist Mr Barnes.
[58] Given that Mr Barnes' accepted conditions alone are not the only reason preventing him from continuing to undertake remunerative work, I am not reasonably satisfied that he passes the alone test. I am also therefore not reasonably satisfied that he has suffered a loss of salary or wages he would not otherwise be suffering if he were free from his accepted defence-caused injuries.
[59] The evidence shows that incapacity arising from non-accepted conditions affecting Mr Barnes' feet was a substantial cause of his resigning from work, and remains a substantial cause of his inability to obtain work despite his genuine efforts to do so. Mr Barnes does not satisfy section 24(1)(b) or section 24(1)(c) of the Act relating to the Special Rate of pension. He is also ineligible for the Intermediate Rate of pension because he does not satisfy section 23(1)(c), or the ameliorating provisions of section 23(3)(b) of the Act. He is therefore not eligible to be paid pension at either the Special or Intermediate rates.