Bellamy and Repatriation Commission [2009] AATA 639 (27 August 2009)

Last Updated: 28 August 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 639

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/1837

VETERANS' APPEALS DIVISION		)
	Re		MICHAEL JOHN BELLAMY

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Brigadier C Ermert (Retd), Member

Date 27 August 2009

Place Melbourne

Decision

The decision under review is affirmed.

(sgd) C Ermert
Member

VETERANS’ AFFAIRS - operational service – accepted impairment rating of 90% - accepted war-caused disabilities of plantar fasciitis – whether qualified for special rate - four Flentjar questions – type of remunerative work – whether prevented from continuing work by war-caused conditions –ss 24(1)(b), 23 and 24 of the Act not satisfied– not entitled to disability pension at the Intermediate or Special Rate – decision affirmed.

Veterans’ Entitlements Act 1986 ss 23, 24, 120

Flentjar v Repatriation Commission [1997] FCA 1200; (1997) 48 ALD 1

Chambers v Repatriation Commission [1995] FCA 1144; (1995) 36 ALD 207

Repatriation Commission v Buckingham, Federal Court, 7 February 1996, 153/1994

REASONS FOR DECISION

27 August 2009

Brigadier C Ermert (Retd), Member

INTRODUCTION

1. Mr Michael John Bellamy, the applicant, was born in 1945 and he is 64 years old. He left secondary school in Malta at the age of 17½ and moved to Australia in 1962. Mr Bellamy worked for approximately four months as a storeman in a warehouse and then worked in the real estate sales industry until he enlisted in the Australian Army. Mr Bellamy served in the Army from 1965 to 1967, including a period in the Far East Strategic Reserve (Malaya), which the respondent has accepted as meeting the requirements of operational service as defined in the Veterans’ Entitlements Act 1986 (the Act).
2. Since his discharge from the Army Mr Bellamy has worked as a sales representative in a number of industries, involving sales to markets in Australia and overseas. He has also run an import and export business in furniture and pottery, established a business importing and selling hosiery wholesale, and, with his daughter, established a business providing internet web design services. Mr Bellamy has also driven hire cars and limousines.
3. Mr Bellamy’s last paid employment was as a sales representative in the carpet industry. On 22 March 2004 he commenced full time employment with Drills Swan Street (Auctions) & Sales (Drills). Mr Bellamy was initially working an average of 45 hours per week. He moved to casual employment for eight and a half hours per week on 16 March 2005 and he resigned from Drills on 15 March 2006. Mr Bellamy then undertook part-time work of eight hours a week spread over three days at AAA Simon Carpets (Simon). Mr Bellamy ceased work with Simon on 19 January 2007 and has not worked since.
4. Mr Bellamy was granted a service pension in February 2005.
5. Mr Bellamy has a number of medical conditions which the Repatriation Commission (the respondent) accepted were war-caused. On 4 May 2006 the respondent accepted that his plantar fasciitis and gastro-oesophageal reflux disease were war-caused and increased his disability pension to 50% of the General Rate. On 11 May 2006 the respondent accepted that his sensorineural hearing loss of the left ear was war-caused and continued his pension at 50% of the General Rate. On 16 August 2007 the respondent accepted that his erectile dysfunction was war-caused and increased his pension to 90% of the General Rate.
6. Mr Bellamy applied for a review of these decisions by the Veterans’ Review Board (VRB). On 12 March 2008 the VRB affirmed the decision assessing Mr Bellamy’s pension at 90% of the General Rate, with effect from 19 March 2007. This matter is an application for review of the VRB decision.

THE HEARING

7. At the hearing Mr Bellamy was represented by Mr Andrew Larkin of Counsel, instructed by Williams Winter, Solicitors. The respondent was represented by Ms Jean McCulloch of the Advocacy Section of the Department of Veterans’ Affairs. The Tribunal heard evidence from Mr Bellamy, his daughter Ms S Bellamy, Dr R Horsley, occupational physician, and Mr R Westh, orthopaedic surgeon. During the hearing the Tribunal took into evidence documents tendered by the applicant and marked as Exhibits A1 to A7, and documents tendered by the respondent and marked as Exhibits R1 to R8.

THE ISSUE

8. The issue to be determined is whether Mr Bellamy is entitled to be paid a pension at a rate greater than the 100 per cent of the General Rate, as provided for in section 24 of the Act.
9. The matter is to be decided on the balance of probabilities, as provided by section 120(4) of the Act.

HIGHER RATE OF PENSION

10. The provisions for the payment of pension at rates greater than 100 per cent of the General Rate are contained in section 23 of the Act (in regard to the Intermediate Rate of pension) and section 24 of the Act (in regard to the Special Rate of pension). The provisions for entitlement are the same for both rates, except for the capacity of the veteran to undertake remunerative work. For the Intermediate Rate, section 23 provides that a veteran must be not capable of working more than 20 hours per week. For the Special Rate, section 24 provides a limit of 8 hours per week. For simplicity, these reasons for decision will consider only the provisions of section 24, unless or until there is a need to consider section 23.

SPECIAL RATE OF PENSION

11. Section 24 of the Act provides for the entitlement to payment of a Special Rate of pension. The relevant sections are:

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 ... is determined under section 21A to be at least 70% ... ; 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
...

12. There is no dispute between the parties that sections 24(1)(aa) and 24(1)(aab) are satisfied. The respondent has already found that Mr Bellamy’s degree of incapacity from war-caused injuries is 90 per cent. Hence, the Tribunal finds that sections 24(1)(aa), (aab) and (a) are satisfied.
13. In considering Mr Bellamy’s capacity to undertake remunerative work the Tribunal notes the four questions to be determined, as set out in Flentjar v Repatriation Commission [1997] FCA 1200; (1997) 48 ALD 1 at 4, 5:
    1. What was the relevant “remunerative work that the veteran was undertaking” within ... s 24(1)(c) of the Act?
    2. Is the veteran, by reason of the war-caused injury or ... 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 ... 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?

REMUNERATIVE WORK

14. The first issue to be determined is the type of remunerative work that Mr Bellamy was undertaking.
15. Mr Bellamy’s written statement (Exhibit A1) shows that, following his arrival in Australia and prior to being called up for National Service, he was employed as a storeman in a warehouse and then a real estate salesman. After his discharge from the Army Mr Bellamy resumed work with the real estate agency. He resigned after three to six months and thereafter was employed as a sales representative for a wholesale company, selling hardware in rural New South Wales and Victoria, for approximately six years. Mr Bellamy was then employed as a counter salesman for a retail outlet for about five years. He then worked as a sales representative for various companies until he obtained employment with Drills as a floor salesman.
16. In 2004 Mr Bellamy submitted a resume with his application for employment with Drills (Exhibit R6). It shows more detail of his work history:

1962-1980 ...representative for a gift wholesaler. ... manager of a National Paint and Wallpaper Company... operated my own Paint and Wallpaper shops. ...ran a profitable Import and Export business importing cane furniture and pottery for 4 years.

1980-1985 McMahon International Foods Pty Ltd

Manufacturers, distributors and exporters of dairy products.

Export Sales Manager

...sold products such as honey, canned fruit, fresh vegetables and fruit... and dairy lines, to markets in Europe, the Middle East and South East Asia.

1986-1993 La Signorina Pty Ltd (La Signorina)

Importers and wholesalers of up-market ranges of hosiery from Italy

Managing Director

Responsible for the general running of the business, from the buying to the selling of goods, and administration.

1993-1995 Candle Distribution Company

Manufacturers, Importers and Wholesalers of gift lines, candles and fragrant oils

Territory Manager

... call on established accounts and look for new business.

1995-1997 Berkeley International Victoria Pty Ltd

Importers and Distributors of toiletries and gift items.

Sales Representative

... responsible for an area ... that had been lacking representation ... opening new accounts and winning back accounts...

1997-1999 Allen Calendars

Manufacturers of a wide range of calendars, used for the marketing of Company Names

Marketing Consultant

...calling on Businesses and Corporate Houses offering a wide variety of calendars suitable for different facets of commerce.

1999 – Belle Ami Web Based Solutions (Belle Ami)

current Web page design and virtual hosting

(in 2004) Owner / Operator

June 2002 Astins Limousines, Southern Cross VHA Hire Cars

to Present Chauffer

17. The details of Mr Bellamy’s functions in Belle Ami and La Signorina were the subject of considerable cross-examination, discussed in later paragraphs. However, Mr Bellamy accepted his work history as outlined above in his oral evidence.
18. Mr Bellamy’s evidence was that he commenced work at Drills in March 2004 as a floor salesman. He ceased full-time work at Drills in February 2005. He continued to work on a part-time basis until March 2006, after which he commenced part-time employment as a carpet estimator/salesman at Simon. Mr Bellamy ceased work at Simon in January 2007. This was Mr Bellamy’s last paid employment.
19. Mr Bellamy also gave evidence of undertaking a National Industry Extension Service (NIES) course. He said the course entailed preparing a business plan that can start off a business. Mr Bellamy said that he completed the course and, with help from his daughter, submitted a business plan for the Belle Ami business. When asked if she assisted her father with the business plan submitted for the course Ms S Bellamy said Not so much with putting together the business plan, although we had discussed it because he’d asked for my help with the technical side of what he was looking at providing. (Transcript page 78). As a result of his completing the course satisfactorily, Mr Bellamy received a NIES supplement of about $7,000 or $8,000 and was guaranteed twelve months of unemployment benefits which were not means-tested.
20. In 1998 Mr Bellamy undertook a Netware Administration course at Northern Metropolitan College, designed to teach students how to set up computer systems within a business. Mr Bellamy said Unfortunately, I failed miserably. It was all the old - before Windows was introduced and I just didn’t pass it (Transcript page 17).
21. Mr Bellamy also completed two years of a four-year Nautical and Wireless Telegraphy College course, designed to train officers as radio operators for the Merchant Navy. Mr Bellamy said that the course did not contribute to typing skills as it taught Morse code. In addition, Mr Bellamy has commenced an Associate Diploma course in Business Marketing and Advanced Sales Management at the Northern Metropolitan College of TAFE, Preston.
22. When asked about the skills and attributes listed on his resume Mr Bellamy responded as follows (in italics) (Transcript pages 30-32):
    • Great customer service attributes – That’s true.
    • Vast experience in the retail industry – True.
    • Conducted business in both Australia and overseas – True.
    • Excel in both team and autonomous roles – I’ve worked in both, yes.
    • React quickly and positively to changing situations and circumstances – Which you have to do as a salesperson, yes.
    • (Possess) High professional standards – I’d like to think so, yes.
    • Developed exceptional marketing skills at all levels – ...I’ve got marketing skills, I will not call them exceptional.
    • Demonstrated excellent communication skills, both written and verbal – ...Yes, I can read and write ... I can talk.
    • Recognised for my ability to train, supervise and motivate others - ...I suppose, when you’re out selling and you’ve got somebody with you, you are training them without knowing you’re training them. Supervisory skills, yes, I suppose I’ve supervised my daughter. And I can motivate people.
    • Possess excellent organisational skills, including management skills and the ability to set priorities – I wouldn’t say I’ve got management skills ... yes, I can set priorities ... I’ve got organisational skills, I’ve been able to organise myself.
    • Demonstrated the ability to build and maintain excellent rapport and ongoing relationships with management, colleagues and clients – Yes.
    • Have successfully developed two businesses from a zero base to having a large account and product base – That is true. I developed them but they weren’t successful ... La Signorina ... selling to Myers ... that makes it a large account base because they’ve so many stores. ... Same with David Jones and a number of other boutiques, that had more than one shop.
    • I am computer literate with strong working knowledge of Microsoft Windows 98 and 2000, Word, Excel, Access, Macromedia Development Suite (resume specifies UltraDev 4, Fireworks 4, Flash 5) and other applications - I’ve got working knowledge of them, yes ... (Strong working knowledge) ... Right.
23. Referring to Belle Ami, Mr Bellamy said in his written statement dated 27 March 2009 (Exhibit A2):

My daughter, Seona, was near the end of her Secondary Schooling at the time that I ceased work with Allen Calendars. She was demonstrating aptitude in the area of IT ... between us we agreed to set up a web design business. She agreed to undertake the coding of the websites and my role was a sales one to potential customers. I would effectively obtain a brief from a customer and then Seona would code the site.... I was the proprietor of the business. ... The main part of my duties at Belle Ami was sales work (ie. trying to find new customers). I did not have the skills to set up a website for a new customer.

Mr Bellamy confirmed this statement in his oral evidence.

24. Mr Bellamy’s resume describes Belle Ami as:

A small business providing web design services to other small businesses, along with virtual server services. Maintenance contracts are also handled, both for the updating of existing pages and the regular submission of a site to major search engines.
This business has allowed me to make use of and develop my skills in coding HTML and creating web graphics (buttons, banners, etc). The use of third-party software such as Macromedia’s Dreamweaver, Fireworks and Flash has enabled me to also provide pages coded in ASP along with quality animations and graphical elements.

25. In his oral evidence, Mr Bellamy said that this description of his capabilities was not true. He said that he learnt to use Macromedia Dreamweaver to ... enable me to maintain the web pages that my daughter developed (Transcript page 33). Mr Bellamy stated that his function was to find out what businesses wanted and offer them a service. He then presented to them what his daughter had designed. Mr Bellamy stated that he had not, at any time, designed a web page himself. He said that his daughter designed the web pages in such a way that he could maintain them.
26. Mr Bellamy gave evidence that he was the Managing Director of La Signorina for seven years and was responsible for the general running of the business. He agreed that his duties involved ordering and distribution, buying and selling, but said that he had an accountant to manage the accounts and a bookkeeper who kept the books. He said that his partner in the business was the financier and kept an eye on the company’s finances. He said We imported ladies hosiery and it was my job to seek the product from overseas and it was my job to sell the product into the retail market. I had a partner, we had an accountant and we have a - had a secretary. They ran the office side of things. I ran the sales side of things (Transcript page 15). Mr Bellamy said that the business was liquidated after seven years because of an inability to obtain credit.
27. Ms Bellamy gave evidence about Belle Ami. She said that it was her job to design the web pages and that her father would find the clients, interview them and collect their requirements.
28. Dr Horsley recorded in her report dated 26 November 2008 (Exhibit R1) that:

He stated that he has a natural aptitude with computers. He get [sic] around the Internet and Email. He is a two finger typist. He has some basic skills in the area of Word, and Excel.

29. After reading the Mr Bellamy’s resume, in her oral evidence Dr Horsley said:

... clearly, his computer based skills were greater than I had been given the impression, and therefore, his opportunities for redeployment were certainly improved. And also the fact that he had successfully built two businesses from a zero base to a large account and product base according to his resume also meant that he clearly had other skills in terms of marketing and administration (Transcript page 94).

30. Dr Horsley also stated that Mr Bellamy clearly had a capacity to work in a customer service role which involved some data entry.
31. In his submissions Mr Larkin referred the Tribunal to section 28 of the Act, which provides:

In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran ... 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 ... has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).

32. Mr Larkin then referred the Tribunal to the decision of the Full Court of the Federal Court in Chambers v Repatriation Commission [1995] FCA 1144; (1995) 36 ALD 207, where the court defined the terms skills, qualifications and vocational:

(skills means) “practical knowledge in combination with ability” or “the ability that comes from knowledge, practice, aptitude to do something well.” A person’s skills were not confined to those acquired in formal training or by virtue of experience in particular employment. They included innate aptitude for tasks...
(qualifications means) a quality or accomplishment which qualified or fitted a person for some office or function....
(vocational means) “of or pertaining to a vocation or occupation.”...

33. Mr Larkin submitted that Mr Bellamy’s vocational and professional skills, qualifications, and experience were almost entirely in sales, closely associated with some aptitude for computers. Mr Larkin pointed out that Mr Bellamy said repeatedly, in his evidence-in-chief and when cross-examined, that he did not have the capacity to work in IT.
34. Mr Larkin referred also referred the Tribunal to the unreported Federal Court decision of Repatriation Commission v Buckingham (7 February 1996), in which the Federal Court considered what kinds of remunerative work was reasonably available to the veteran. Ryan J said:

Rather, it appears that the Tribunal used the phrase as part of its consideration of the kinds of remunerative work which a person of Mr Buckingham’s skills, qualifications, and experience might reasonably undertake, as required by s. 28(b). That consideration (of what he might reasonably undertake) cannot be undertaken in a vacuum. In order to decide what kinds of remunerative work the postulated hypothetical person might reasonably undertake, the Tribunal has to ask itself what kinds of remunerative work are reasonably available to a person in the position hypothesised.

35. Mr Larkin went on to submit that Mr Bellamy has skills and abilities in sales and he has some knowledge in computers but not enough to be employed in that area. He contended that the only work that Mr Bellamy might reasonably undertake is that of a salesman and not computer work in a sedentary occupation.
36. Ms McCulloch submitted that the test on this issue is not whether Mr Bellamy could work in IT. The test is whether he has transferable skills to obtain employment in other than sales. Ms McCulloch contended that Mr Bellamy was more than just a salesman.
37. Ms McCulloch submitted that by operating his own Paint and Wallpaper shops Mr Bellamy had experience in managing a retail store, managing people, and managing stock, orders and sales. Ms McCulloch contended that by running his cane furniture and pottery importing and exporting business Mr Bellamy acquired considerable administrative skills in dealing with Customs, at import and export, and ordering, managing, housing and on selling product. Ms McCulloch contended that Mr Bellamy utilised his skills from importing and exporting furniture and pottery while at McMahons International Foods, selling product to markets in Europe, the Middle East and South-East Asia. Ms McCulloch also submitted that Mr Bellamy acquired business experience from his role as Managing Director of La Signorina.
38. Ms McCulloch submitted further that Mr Bellamy’s ability to use Word 1998, Word 2000, Access, Excel, Macromedia Dreamweaver and the associated programs is indicative of considerable skills in the use of computers. She said that these computer skills, combined with his administrative skills in importing and exporting would enable Mr Bellamy to work in an administrative capacity.
39. After considering all of the material before me, I am satisfied that Mr Bellamy does in fact have a wide variety of skills, qualifications and experience. His skills as a salesman are obvious from his own evidence and supported by his record of successful work in a number of businesses. I also accept that he has administrative skills acquired and exercised in his years of employment in the retail industry, as a manager of a paint store and from running his own importing and exporting businesses. I also accept that he has acquired a reasonable level of business skills from running his cane furniture and pottery business, from managing his paint store and from his seven years as Managing Director of La Signorina. I note Mr Bellamy’s evidence that La Signorina was not a successful business. The evidence is, however, that the business was deliberately closed down because the financial partner did not pursue the additional finance needed for an expanding market. It was not closed because of any shortcomings in Mr Bellamy’s business or marketing skills.
40. I note Mr Bellamy’s successful completion of the NIES course, which resulted in the receipt of allowance benefits. I accept Mr Bellamy’s evidence that he failed the Netware Administration Course.
41. I consider that Mr Bellamy has had a wide variety of experience in importing and exporting products, managing businesses, and in performing the duties of a company director, in addition to his experience as a salesman. I accept also that the management of a retail outlet necessarily involved staff supervision, adding to Mr Bellamy’s experience in managing people. I note Mr Bellamy’s experience as a taxi driver and chauffer but consider that to be short term employment in between his main career activities in sales- related businesses.
42. I accept Mr Larkin’s contention that Mr Bellamy does not have sufficient skills to be employed in the IT industry. On the other hand, Mr Bellamy clearly possesses skills and capability in the use of a range of commonly-used software products. While not sufficient to work in the IT industry, Mr Bellamy’s computer skills would be a useful adjunct for any administrative work and would not act as a constraint in obtaining employment in areas outside the IT industry. As an example, I accept Dr Horsley’s opinion that Mr Bellamy would have the capacity to work in a customer service role involving some data entry.
43. As a result of these considerations, I find that Mr Bellamy has sufficient skills, qualifications, and experience to undertake a wide variety of employment opportunities and that he is not limited to employment as a salesman. I am also satisfied that the variety of opportunities, particularly in business management and administration, is such that Mr Bellamy would not be constrained to employment requiring him to spend much time on his feet. I am further satisfied that employment in management and administration is typically a mix of sedentary duties, interspersed with movement around an office for a range of purposes.
44. I am satisfied that Mr Bellamy’s remunerative work is employment involving management and administration in a sales or marketing organisation in a predominantly office environment.

IS THE VETERAN PREVENTED BY HIS WAR-CAUSED INJURIES FROM CONTINUING THAT WORK?

45. The second Flentjar question requires the Tribunal to determine whether Mr Bellamy’s war-caused injuries prevent him from continuing his remunerative work. Mr Bellamy’s suffers from a number of medical conditions which have been accepted as war-caused. The war-caused condition relevant to this case is plantar fasciitis.
46. In his written statement dated 23 April 2008 (Exhibit A1) Mr Bellamy said:

I was employed by JB Drill as a floor sales person ... until February 2005 ... My plantar fasciitis was becoming increasingly troublesome so that I was suffering constant pain in both feet. My duties as a sales person required me to be on my feet ... such duties were aggravating my foot pain. ... I came to suffer extreme pain in the feet so that I could no longer cope with my duties at work. I discussed the problem with Mr Walker and Dr Walsh and both suggested that it was in the best interests of my health to cease work. Accordingly, in January 2005 I gave notice of termination and ceased work in February 2005. ... approximately 3 weeks after ceasing work, my former boss, Barry Drill, offered me a part time position ... 1 day per week for a total of 8.5 hours. I undertook those duties for approximately 12 months. I was still suffering painful symptoms in both feet ... For practical reasons it was not possible to sit down for any adequate length of time whilst at work with Drill. I was not coping with my duties because of the worsening symptoms in my feet ... The position at AAA Simon Carpets was initially for 8 hours work on 1 day in the week. I thought that I would be better able to cope with the duties at AAA Simon Carpets because the duties as an estimator would allow me to sit down. ... After about 2 to 3 months work at AAA Simon Carpets I found that I was not coping. Whilst I was able to sit down for longer periods ... and the amount of heavy lifting was significantly less that at Drills, the symptoms in my feet nonetheless continued to worsen. ... By March (changed to December when giving his oral evidence) 2006 I was simply unable to cope with my duties with AAA Simon Carpets further because of the symptoms in my feet. Dr Walsh advised me to cease work. ... I took Dr. Walsh’s advice and ceased work on 19 January 2007. The only reason for ceasing work was because I simply could not cope any longer from the symptoms from the plantar fasciitis. I have not worked since ....

Mr Bellamy confirmed these statements in his oral evidence.

47. In Exhibit A2 Mr Bellamy describes his employment as a taxi driver and chauffer. He stated I do not believe that I could continue to undertake driving duties because of the pain in my feet. In his oral evidence Mr Bellamy said that he can only drive for short distances. He said If I am behind the wheel for any extended periods, I have to stop, get out and stretch. ... (and when asked where the pain was) Primarily in my heel and my instep (Transcript page 22).
48. Mr Bellamy also gave evidence that he could not walk for more than 100 metres without stopping to have a rest because his feet got very sore. He told Dr Horsley that he had a sitting tolerance of 45 minutes, after which he needs to get up and stretch himself and get the feet sort of warmed up again... (Transcript page 22). When asked what his working life would be without plantar fasciitis, Mr Bellamy said that he would still be selling.
49. Mr Bellamy agreed that at the time of his retirement he was playing lawn bowls. His evidence was that it did not involve squatting but a bending of the knee and that there was nothing wrong with his knees.
50. In his clinical notes (Exhibit R3) Dr Walsh records an entry on 9 January 2007 that shows ... not working ... of feet ... says he can’t go on – but needs 70% to get TPI see JR. There are no other entries relating to the impact of Mr Bellamy’s plantar fasciitis on the continuation or cessation of his work.
51. Mr Rush, an orthopaedic surgeon who examined Mr Bellamy, provided his opinions in a letter dated 4 May 2007, addressed to Mr Finnerty, an advocate acting for Mr Bellamy (Exhibit R4, pages 24-27). Mr Rush said that Mr Bellamy is significantly disabled and is now unfit for work that involves any walking or prolonged standing and I believe this situation is permanent. It is his bilateral foot pain that has caused him to cease work. This opinion is formed in the context of Mr Bellamy’s work history which Mr Rush describes as:

... eight and a half hours per week on a part-time casual basis as a salesperson selling carpets but he was on the floor all the time and found it quite difficult. He was then offered a position as an estimator for a carpet retail outlet which was a little easier as he was not on the floor all day long but he still had problems as his work involved a lot of squatting, measuring and going up and down stairs...

52. In her report dated 26 November 2008 (Exhibit R1) Dr Horsley states He clearly ceased work on the basis of his Bilateral Plantar Fasciitis. This condition does impact upon his capacity to work as a sales person in a role that involves prolonged standing and walking, however it has little impact on his capacity to work in a more sedentary role. Dr Horsley’s oral evidence was that Mr Bellamy ... didn’t have the capacity to work in his original sales role, which involves standing, walking, and demonstrating, either greater than eight hours or greater than 20 hours. However, I thought in sedentary work, he did have the capacity to work greater than eight hours and greater than 20 hours (Transcript page 94). Dr Horsley accepted Mr Bellamy’s history that the pain in his feet limited his walking tolerance to 50 to 100 metres, his static standing limit to five to ten minutes and his sitting tolerance to about 45 minutes. When asked if Mr Bellamy would have any limitations on his capacity to work in a customer service role Dr Horsley said Seated work – I don’t think there is any limitation, no (Transcript page 101).
53. In his evidence Mr Westh, an orthopaedic surgeon, agreed with Dr Horsley’s opinion that Mr Bellamy ceased work because of his plantar fasciitis and that the condition impacted upon his work as a salesman in a role involving prolonged standing and walking. Mr Westh said that Mr Bellamy had told him that he could only sit at a computer for 45 minutes because of the aching in his feet. Mr Westh was asked whether his opinion, that Mr Bellamy was incapable of working, was based on Mr Bellamy’s employment as a salesman standing on his feet selling carpets. Mr Westh responded Yes, I am saying that he has got a chronic foot condition which would prevent him from doing that work he had previously performed... (Transcript page 108). When asked about Mr Bellamy’s ability to undertake more sedentary work, Mr Westh said that it was reasonable to assume that his foot condition would restrict him as he could not sit for more than 45 minutes at a time. Mr Westh said also Well if he hadn’t told me that he couldn’t sit for 45 minutes I would have said that he could work ... more than eight up to... 20 (Because he can’t sit for more than 45 minutes?) That’s - then I have dropped back more on the eight rather than the 20 (Transcript pages 110-111).
54. Mr Larkin submitted that Mr Bellamy’s problems with his feet manifested from 2002 onwards. When Mr Bellamy could no longer work as a driver he went back to selling and worked for a carpet company. Mr Larkin submitted that Mr Bellamy resigned from full-time work because of the problems with his feet and that even eight hours of part-time work over a three-day period became too much for Mr Bellamy. Mr Larkin submitted that Dr Horsley and Mr Westh agreed that Mr Bellamy’s plantar fasciitis prevented him from working in his previous role as a salesman. Mr Larkin also submitted that Mr Westh gave his opinion that Mr Bellamy does not have the capacity to work more than eight hours because he can only sit for 45 minutes. Mr Larkin contended that Mr Bellamy has significant impediments to going to work, including the pain in his feet which does not stop, his inability to walk no more than 50 to 100 metres without taking a rest and his difficulty with driving a car. Mr Larkin submitted that Mr Bellamy is clearly physically handicapped and cannot work in any sales job for more than eight hours and can- not work in a part-time sedentary position for more than eight hours.
55. Mr Larkin submitted that Mr Bellamy and Ms Bellamy gave evidence that Mr Bellamy does not have the knowledge or ability to get a job in computers. Mr Larkin contended that while Mr Bellamy has some knowledge in computers it has not been put to the test and he does not have enough knowledge to be employed in that area. He submitted that the only work Mr Bellamy might reasonably undertake is that of a salesman; and not computer work in a sedentary occupation, the sort of work suggested by Dr Horsley.
56. Ms McCulloch submitted that Mr Bellamy moved from full-time work to casual employment for eight and half hours a week as soon as he was granted a service pension. Ms McCulloch contended that Dr Walsh did not advise Mr Bellamy to leave work and that Dr Walsh recorded only that Mr Bellamy had left work because of his feet. Ms McCulloch submitted that the applicant did not resign because of his feet based on medical advice. He resigned as a consequence of the acceptance of the plantar fasciitis and this fact that he had reached 70 per cent to enable him to get all the whole of 24(1)(a) (Transcript page 139).
57. Ms McCulloch referred to the evidence of Mr Bellamy that he commenced bowling when he moved to Hurstbridge in his retirement and was still bowling in 2008. Ms McCulloch contended that this goes against everything Mr Bellamy has been saying about his symptomatology as bowling involves standing, walking and bending.
58. Ms McCulloch referred to the transcript of the hearing at the VRB (Exhibit R5) on page 16 of which,, Mr Bellamy is recorded as saying Well, if I sit down for too long my back hurts and starts playing up ... I don’t think I could cope just sitting in one position all day. Ms McCulloch contended that this is clearly not true, as Mr Bellamy successfully operated Belle Ami sitting at a computer.

CONSIDERATION OF THE EVIDENCE

59. In considering the evidence from Mr Bellamy and the submissions made on his behalf, I note that it refers principally to only two employment scenarios, his work as a retail salesman and the possibility of sedentary work in computing. The evidence from Dr Horsley and Mr Westh is clear that Mr Bellamy’s plantar fasciitis prevents him from working more than eight hours per week as a retail salesman and I accept that evidence. I also accept the evidence that Mr Bellamy’s computer skills are not sufficient to enable him to secure employment in computing. The relevant issue, however, is whether Mr Bellamy’s war-caused plantar fasciitis prevents him from continuing his remunerative employment.
60. In this case I have already found that Mr Bellamy’s remunerative employment, based on his skills, qualifications and experience, is employment involving management and administration in a sales or marketing organisation in a predominantly office environment. Mr Bellamy and Mr Westh gave evidence, which I accept, that Mr Bellamy cannot sit for longer than 45 minutes without getting up to stretch his feet and relieve the pain. There is no evidence that employment in a predominantly office environment prevents one from standing up and stretching after 45 minutes. Indeed, I accept as common knowledge that a normal office environment provides ample opportunities to sit, stand, and move around periodically as required.
61. Mr Bellamy gave evidence of his inability to walk more than 50 to 100 metres without pause. Mr Rush also opined that Mr Bellamy is unfit for work that involves any walking or prolonged standing. Dr Horsley accepted Mr Bellamy’s history that the pain in his feet limited his walking tolerance to 50 to 100 metres, his static standing limit to five to ten minutes and his sitting tolerance to about 45 minutes. Nevertheless, Dr Horsley gave her opinion that there was no limitation to Mr Bellamy undertaking seated work.
62. Ms McCulloch’s contention that Mr Bellamy gave up work essentially to meet the requirements of his service pension was refuted by Mr Bellamy. I see no need to find on this issue. Nor do I see a need to find on the inference that, because Mr Bellamy was playing bowls, the condition of his feet was not sufficient to prevent him from continuing employment. That inference was not supported by the medical evidence.
63. After considering all the evidence available to me, I am satisfied that Mr Bellamy is not prevented by his war-caused injury of plantar fasciitis from continuing his remunerative employment. I find accordingly. This finding precludes Mr Bellamy’s situation from meeting the requirements of the second Flentjar question. Specifically, the finding precludes Mr Bellamy’s situation from satisfying the provisions of section 24(1)(b) of the Act, in that his war-caused disability is not of such a nature as to render, by itself, Mr Bellamy incapable of undertaking remunerative work for periods aggregating more than 8 hours per week.
64. As section 24(1)(b) is not satisfied, the provisions of section 24(1)(c) cannot be satisfied and the provisions of section 24(2) do not come into effect. Mr Bellamy does not meet the provisions of section 24 of the Act. Therefore, Mr Bellamy is not entitled to payment of his pension at the Special Rate. As the relevant requirements for an Intermediate Rate of pension, set out in section 23 of the Act, are identical to those for the Special Rate, Mr Bellamy is also not entitled to payment of his pension at the Intermediate Rate.

DECISION

65. The decision under review is affirmed.

I certify that the sixty-five [65] preceding paragraphs are a true copy of the reasons for the decision herein of

Brigadier C Ermert (Retd), Member

Signed:...Dianne Eva

Clerk

Dates of Hearing: 22 June 2009 and 11 August 2009

Date of Decision: 27 August 2009

Counsel for the applicant: Mr Andrew Larkin

Solicitor for the applicant: Williams Winter

Representative for the respondent: Ms Jean McCulloch, Advocacy Section, Department of Veterans’ Affairs