Austin and Repatriation Commission
[2004] AATA 288
•19 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 288
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/792
VETERANS' APPEALS DIVISION ) Re COLIN AUSTIN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr O Rinaudo, Member Date19 March 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
.........(Sgd) O Rinaudo ........
Member
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/792
VETERANS’ APPEALS DIVISION
)
Re COLIN AUSTIN Applicant
And
REPATRIATION COMMISSION
Respondent
ORDER TO AMEND DECISION
Tribunal Mr O Rinaudo, Member Date19 March 2004
PlaceBrisbane
WHEREAS the Tribunal made a decision in this matter on 19 March 2004, and it has come to the Tribunal’s attention that there were errors in that;
AND WHEREAS the Tribunal wishes to amend the decision so as to rectify the errors with the least cost and inconvenience to the parties;
THE TRIBUNAL ORDERS, pursuant to section 43AA of the Administrative Appeals Tribunal Act 1975, that:
1.in paragraph 15 of the Reasons for Decision the word “Anderson” be deleted and the word “Austin” be inserted;
2.paragraph 46 of the Reasons for Decision be deleted and in its stead the following paragraph 46 be inserted:
“As at the date of application for review of the decision of the Veterans’ Review Board, the applicant had not yet reached the age of 65 years. Therefore, the more onerous criteria that must be met upon ascertaining that age are not required to be satisfied.”
…………(Sgd).……………
MEMBER
CATCHWORDS
VETERANS ENTITLEMENT – intermediate rate pension –applicant genuinely sought to engage in remunerative work - cessation of employment not due to war-caused injuries alone – loss of salary or wage or earnings not due to war-caused injury alone – application for increased pension denied – decision affirmed.
Veterans’ Entitlements Act 1986 s 23, 24
Re Banovitch and Repatriation Commission (1986) 69 ALR 195
Repatriation Commission v Strickland (1990) 22 ALD 10
Re Hales and Repatriation Commission (1986) 11 ALN 282
Re Hanrahan and Repatriation Commission (1992) 26 ALD 766
Hall v Repatriation Commission (1994) 33 ALD 453
Cavell v Repatriation Commission (1988) 9 AAR 534
Repatriation Commission v Smith (1987) 15 FCR 337
Forbes v Repatriation Commission (2000) 101 FCR 50
Moorcroft v Repatriation Commission (1999) 58 ALD 143REASONS FOR DECISION
19 March 2004 Mr O Rinaudo, Member Decision Under Review
1. The applicant seeks review of a decision made by the respondent dated 23 January 2002 which continued pension at 100% of the General Rate. This decision was affirmed by the Veterans’ Review Board on 1 August 2002.
History
2. The applicant was born on 25 September 1954. He served in the Australian Army for 27 years from 25 January 1972 to 28 June 1998 and held the position of infantry man, storeman and front line combat logistics within the Infantry Corps. The applicant also served in Butterworth in Malaysia and in 1976 went on exchange to Canada.
3. The applicant’s original application was lodged on 18 January 2002.
4. The applicant has the following accepted defence caused conditions:
§ Lumbar spondylosis
§ Bilateral sensori-neural hearing loss
§ Fracture of the finger of the right hand
§ Acquired cataracts in both eyes
5.The following conditions have not been accepted as defence caused:
§ Wagner’s vitreoretinal degeneration (bilateral)
§ Macular branch vein occlusion of retina (left)
6. The applicant was last employed in the clerical/administrative area of the Australian Army. He was discharged on 28 June 1998. After a nine to ten months lay off the applicant made attempts to seek employment. The applicant contends that the combination of his accepted disabilities of lumbar spondylosis combined with his bilateral sensori-neural hearing loss makes him unemployable.
7. The applicant originally sought special rate pension under section 24 of the Veterans’ Entitlements Act 1986 (the Act). However, at the hearing the applicant changed his application to an application for payment at the intermediate rate of pension pursuant to section 23 of the Act.
Issues
8. The issue for the Tribunal in this application is whether the applicant is entitled to intermediate rate of pension pursuant to section 23 of the Act.
9. The factors which the Tribunal must consider are as follows:
(a)what is the remunerative work usually undertaken by the applicant;
(b)whether the applicant ceased employment due to war-caused incapacity alone;
(c)if not has the applicant been genuinely seeking to engage in remunerative work;
(d)other factors such as the applicant’s non-accepted conditions such as age, and/or time spent out of the workforce affect the applicant’s ability to continue to undertake remunerative work;
(e)whether the applicant is capable of undertaking work of twenty hours or more per week; and
(f)whether the applicant is suffering a loss of salary or wages or of earnings on his own account that would not be suffered if the applicant was free from the incapacity.
10. The applicant has made an application pursuant to section 15 for an increase in the rate of pension that he is receiving.
Hearing
11. The applicant gave evidence at the hearing of this application and the following documents were tendered in evidence:
§ Exhibit 1 documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
§ Exhibit 2 Statement of applicant dated 17 January 2003
§ Exhibit 3 Report of Dr Keith Adam dated 18 December 2002
§ Exhibit 4 Report of Dr George Georgas dated 18 March 2003
§ Exhibit 5 Job applications
§ Exhibit 6 Reports of Army Medical Boards
§ Exhibit 7 Transcript of Veterans’ Review Board
§ Exhibit 8 Optometrist’s report dated 7 February 2003
12.Oral evidence was also given by telephone by Dr Manning.
13. Mr Austin confirmed his statement and noted that his eye condition had been diagnosed in 1975 and referred the Tribunal to Exhibit 6 where this is noted.
14. The applicant said that he had a classification of CZE which meant that communication zones everywhere which had been down degraded to BMS being Below Medical Standards. He stated that he had requested discharge from the Army purely for financial reasons. He said that he could see the writing on the wall. There was no job advancement for him and he was suffering from back problems.
15. Mr Anderson confirmed that he was proficient in common use computer programs. He said because of his back condition he could only work for twenty to thirty minutes at a time and then he would need fifteen to twenty minutes to rest, get up, walk around. He said that he had a driver’s licence.
16. He referred the Tribunal to Exhibit 5 which set out the job applications he had applied for.
17. He said his back condition had deteriorated.
18. He said there were a number of jobs he could do in Brisbane but he would be restricted because of his back. He said he had concerns with sitting, standing walking long distances and long distance driving.
19. Mr Austin said his hearing loss had been a problem at times with his employment. He said that he had passed his last driving test in 1996.
20. He confirmed to the Tribunal that having been discharged at his own request meant that he received money “up front”. If he had been discharged medically he would have had to wait for his payment to be determined.
21. Mr Austin said that his discharge was imminent. He said it could have been six months or five years but that the “writing was on the wall”.
22. Mr Austin said that he never received an interview and therefore never got a reason why he was never offered a job. In cross-examination Mr Austin acknowledged the comment of Dr Manning at page 95 of Exhibit 1 that “in my opinion both eyes should now remain stable in the long term, and he should be fit to undertake any duties”. Mr Austin confirmed that he coped adequately with most things but not with fine detail things. He said that he wore glasses. Mr Austin did not agree with the comments of Dr Adam that:
“However, if these results represented Mr Austin’s current visual acuity, then Mr Adams would not be able to hold a driver’s licence and it would have a significant impact on his ability to work in a variety of jobs”. (Dr Adam’s report, Exhibit 3 page 2)
Legislative Framework
23. The legislation relevant to this application is contained in section 23 of the Act. In particular sections 23(1)(aa), (ab), (a), (b), (c) and 23(2)(b) and 23(3)(a) and (b) are relevant to this application. Those sections state as follows:
“23 Intermediate rate of pension
(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)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’s incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and
(c)the veteran is, by reason of incapacity from war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free from that incapacity; and
(2) Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:
(a)if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or
(b)in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking—if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.
(3) For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1)(b) shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity:
(i)if the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both;
(ii)if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or
(iii)if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; and
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, 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.
24. The standard of proof relevant to this application is on the basis of reasonable satisfaction.
Submissions
25. The counsel for the applicant submitted that the applicant satisfied section 23(1)(a) of the Act in that the applicant had an impairment rating of at least 70% and satisfies the first criterion for payment of an earnings related rate of pension for an intermediate rate.
26. The applicant further submitted that the respondent had accepted that the applicant satisfied section 23(1)(b). Reliance was placed on the report of Dr Keith Adam which stated that the applicant, because of his back condition, maybe able to perform work on a limited part-time basis of up to 15 hours per week. The applicant’s counsel also submitted that the respondent accepts the applicant “has been genuinely seeking to engage in remunerative work” as set out in section 23(3)(b) of the Act.
27. The applicant’s counsel therefore submitted that the issues were as follows:
§ Whether the applicant is by reason of incapacity from accepted injury, alone, prevented from continuing to undertake remunerative work that the applicant was undertaking.
§ Whether the non-accepted conditions Wagner’s vitreoretinal degeneration (bilateral) and/or muscular branch vein occlusion of retina (left) affects the applicant’s ability to continue to undertake remunerative work; and
§ Whether the applicant has ceased to engage in remunerative work for reasons other than his incapacity for work caused in jury or disease or both. For example, age, time spent out of the work force or labour market conditions affect the applicant’s ability to continue to undertake remunerative work.
28. The applicant’s counsel referred the Tribunal to the medical evidence of Dr Adam, Dr Georgas, Dr Licina and Dr Manning with respect to the alone test.
29. It was submitted that Dr Adam stated that the applicant suffered from two conditions, each of which separately may restrict his employment. It was noted that Dr Adam confirmed Dr Manning’s conclusion after testing the applicant that the applicant’s eye disease would not impact on his employability. The Tribunal was referred to Dr Adam’s conclusion that:
“Mr Austin is suffering from degenerative disease in the lower back, accounting for his lower back and left leg pain, and the limitations on walking and sitting… Mr Austin’s back condition word (sic) prevent Mr Austin from performing clerical or other similar activities on a full time basis, because of his inability to sit for an extended period. He may be able to perform such work on a limited, part time basis of up to say, fifteen hours per week.”
30. The applicant’s counsel referred the Tribunal to Dr George Georgas’ comments noted on 18 March 2003 that:
“Mr Colin Austin has chronic lower back pain. He presents frequently with flare-ups of lower back pain, sciatica, and instability symptoms ie falls from legs giving way. On examination, he has markedly reduced range of movement in his lumbar spine and walks with an abnormal gait”..
31. Mr Paul Licina (orthopaedic spinal specialist) agrees with the diagnosis of an unstable type picture of back pain probably relating to degenerative lumbar spine and believes Mr Austin is unable to work in any capacity because of his chronic back condition.
32. It was further submitted that in Dr Georgas’ view as reported on 16 February 2002 that the applicant’s back condition and symptoms were the only reason he was unable to work. It was further submitted that Dr Georgas considered that the back condition will not improve and will probably deteriorate with time.
33. The applicant noted the comments of Dr Licina (orthopaedic surgeon), that this gentleman has reported in a letter to Dr Georgas on 25 January 2002 (T4, page 93) that:
“This gentleman has an instability type picture of back pain probably relating to a degenerate L4-5 level. His reported activity level is limited and he appears to have tried all sorts of therapies with no avail. I have told him the only option would be a fusion but I would not be keen to offer this to him at all because of the multi-level disc problems that he appears to have on his x-rays. Unfortunately there is nothing else I can offer him.”
34.Counsel submitted that :
“The medical evidence demonstrates that the medical problem which is preventing Mr Austin from full time work is his back problem, which is the accepted spondylosis. The applicant’s non-accepted Wagner’s vitreoretinal degeneration (bi-lateral) and/or macular branch vein occlusion of retina (left) does not impact on his employability because of the operations he has had to correct his visions. In fact, he is able to use a computer and does at home but needs to get up regularly because of his back problems.”
35. Factors commonly considered as militating against the alone test are age, length of time out of the workforce and the state of the labour market in the area in which the veteran resides. Counsel for the applicant noted that the applicant is forty-eight years of age. Counsel for the applicant referred to the cases of Re Banovitch and Repatriation Commission (1986) 69 ALR 195 and Repatriation Commission v Strickland (1990) 22 ALD 10 with respect to the issue of age. In both of those cases the applicant was or was about to turn sixty five. In this case the applicant’s counsel says:
“This case is distinguishable to Banovitch and Strickland because of the applicant’s age is forty-eight which is a common age for a managerial position in purchasing. The applicant’s vocational skills and qualifications when he left the Army were of a managerial position in purchasing equipment. It is quite common for a person in their mid to late forties to hold such a position and because of the responsibility of this position and the training, it is unlikely that a person would hold such a position when first starting work.”
36. The applicant’s counsel also referred to the period out of the workforce after the applicant left the Army in 1998. Counsel submitted that the applicant had taken a break before seeking employment as he had accumulated long service leave. It was noted that the applicant had commenced seeking employment approximately ten months after leaving the Army. The applicant’s counsel referred to the decision of Re Hales and Repatriation Commission (1986) 11 CAN 282 where it was found that:
“A very lengthy period elapsed between H’s last employment, in 1967 and the relevant date in 1983. It was doubtful that a prospective employer would share H’s view that he could cope with the new work techniques and practices which had evolved in that period.”
37. The applicant’s counsel noted that the present case was distinguishable from that case because in Re Hales the applicant had been out of the workforce for four years at the time of making the application and there had been many advances in technology since 1998.
38. In this case it was submitted the applicant has stayed up to date using his own home computer to apply for jobs and use of the Internet. The applicant’s counsel discounted the militating factor of moving to an area of high or low unemployment.
39. In this case the applicant resides in Brisbane which is a high employment area. The applicant’s counsel considered that this case was distinguishable from the decision in Re Hanrahan and Repatriation Commission (1992) 26 ALD 766 where the applicant was prevented from working as a bricklayer because of other factors such as his living in an area of low employment rather than his war-caused disabilities. Accordingly, counsel for the applicant submitted that none of the debilitating factors applied in this case.
40. The applicant’s counsel further submitted that the applicant had been genuinely seeking remunerative work as evidenced by the many job applications made by the applicant and set out in exhibit 5. The applicant’s counsel submitted as follows:
“Mr Austin sought an administrative discharge from the Army. From his medical board examination records the abnormal items are his eyes and back. The lower back pain appears to be getting worse from 1994 to discharge. On discharge his lower back pain was noted. He needed medical waivers to remain in the Army. On his medical board dated 23 September 1996, he is rated Below Medical Standard, which is a change from Communications Zone Everywhere. This is a downgrading in his medical standard. His eyes improved on his Pulheems from 1994 from a rating of eight to a rating of six and seven. The applicant’s final notification of medical assessment state not fit for impact work/sport. In a totally different writing on this form, there is waiver eligible. This shows that the Army recognised that he had medical problems.
The Applicant saw that the Army was shedding people especially in the higher ranks and he could see ‘the writing was on the wall’ as he had been judged below medical standard in 1996 and on a number of occasions required medical waivers to remain in the Army. The people that they were medically discharging at the time were ones that had required medical waivers on a number of occasions. In 1998 the armed services were offering redundancies because of a white paper recommendation to reduce the operational strength of the armed services at the time. There are advantages financially to being administratively discharged over being medically discharged. When someone is administratively discharged they can receive their DFRDB pension immediately (this is certain when someone has completed over 20 years service when you get a set percentage of your retirement salary prior to 20 years you only get your own contribution back) whereas if one is medically discharged it can take up to a year without income to receive a pension. Many ex servicemen find it very difficult to survive whilst the armed services determine the appropriate pension for medical discharge. This has lead to a number of servicemen who would be medically discharged to opt for the administrative discharge because of the immediate financial advantage.
It is submitted that Mr Austin has satisfied all tests for an intermediate pension. There is medical support that he can only work up to 15 hours per week because of his accepted back condition and that the non-accepted eye injury does not impact on his employability. His age, time out of the workforce and location where he is applying for jobs are not limiting factors on receiving work. He was rated Below Medical Standard in the Army and although he was not medically discharged, he had all the indicia of someone who could be medically discharged.”
41. The respondent accepted that the applicant’s eye sight does not have a large impact on his inability to work. The respondent’s advocate submitted that whilst it was accepted that the applicant had sought work, his accepted disabilities are not the reason for not getting work. He said that the applicant had not been to a interview. He said that in most cases he did not give reasons for his not receiving an interview.
42. The respondent’s advocate submitted that the applicant could not get compensation for something he was never going to get. The respondent’s advocate referred the Tribunal to the decision of Hall v Repatriation Commission (1994) 33 ALD 453 in which Spender J, discussed whether the veteran was “genuinely seeking to engage in remunerative work”. Spender J stated that when considering whether the applicant had been “genuinely seeking to engage in remunerative work”, one must address the circumstances in a realistic way, having regard to the nature and extent of the incapacity. Spender J said many veterans are permanently incapacitated by war-caused injury or disease for any form of remunerative work, and the requirement that such a person be genuinely seeking work seemed to involve something of a charade and noted that the substantial reason the applicant had not received employment was not his accepted disability.
43. The respondent’s advocate also referred to the decision of Cavell v Repatriation Commission (1988) 9 AAR 534 and urged the Tribunal to look at the circumstances of the applicant’s unemployment.
Discussion and Decision
44. In this discussion reference may be made to Section 24 of the Act. Whilst section 23 refers to a claim for intermediate rate of pension, Section 24 refers to special rate. For all intents and purpose of this application the concepts are the same and a reference to section 24 in a cited authority applies equally to section 23 unless otherwise stated.
45. In determining eligibility for the special rate pension, known in the Act as the Totally and Permanently Incapacitated (TPI) pension, the Minister in his Second Reading Speech in May 1985 sought to clarify the criteria:
“To qualify for a TPI pension a veteran must be eligible for the 100 per cent general rate pension. In addition, the TPI rate pension can become payable only when a veteran is totally and permanently disabled by accepted disabilities and is thereby precluded from continuing to engage in remunerative work. If a person has the usual span of a working life or has retired voluntarily or has left employment for reasons other than accepted disabilities, a TPI pension is not payable”.
46. Although the Applicant had reached 65 years at the date of the hearing, the more onerous criteria that must be met upon ascertaining this age are not required to be satisfied. As at the date of the application for review of the decision of the Veteran’s Review Board, the Applicant had not yet reached the age of 65 years, the further criteria is not applicable.
47. To succeed in his application, the Applicant must establish that war-caused injuries alone caused a loss of salary, wages or earnings under section 23(1)(c) of the Act. It is important to consider whether the loss of employment is a direct result of the war-caused injuries and not related to any other factors. As Beaumont J indicated in Repatriation Commission v Smith (1987) 15 FCR 337:
“The Tribunal must attempt an assessment of what the Respondent probably would have done if he had none of his service disabilities.”
48. The importance of attributing the loss of employment solely to the war-caused injuries was again emphasised by RD Nicholson J in Forbes v Repatriation Commission (2000) 101 FCR 50 when he declined to follow the tests as outlined by Dowsett J in Moorcroft v Repatriation Commission (1999) 58 ALD 143. Instead RD Nicholson J affirmed the view in Cavell v Repatriation Commission (1988) 9 AAR 534 and restated (at 33):
“…any factor having employment consequences which played a part in the Applicant’s inability to work or to obtain and hold remunerative employment, is sufficient to displace the Applicant’s case for pension at the special rate.”
49. Having made this comment however, RD Nicholson J highlighted the difficulty veterans incurred in attempting to determine their injuries alone were the cause of their unemployment. He also acknowledged the further difficulty incurred under section 24(2) and concurred with Burchett J of the need to apply a common sense approach “with an eye to reality” when considering veteran applications under this section. Burchett J’s view expressed in Cavell is often cited as the preferred approach to be utilised in ascertaining whether an Applicant has satisfied the ‘alone test’. Burchett J stated that to characterise the test as the “sole, unique and absolute cause” of the cessation of remunerative work was incorrect because it has the tendency to:
“…distract the tribunal from its true task... It is a decision that should be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide.”
50. Bearing this in mind, the Tribunal must, to its reasonable satisfaction, determine in accordance with section 23(1)(c) whether the applicant is prevented from continuing remunerative employment to the extent necessary because of war-caused injury or disease alone.
51. It is accepted that the applicant has made an application under section 15 of the Act and therefore satisfies section 23(1)(aa).
52. The applicant is not sixty-five and therefore satisfies the provisions of section 23(1)(aab). The applicant also satisfies the provisions of section 23(1)(a)(i) in that the applicant is presently being paid 100% (which is greater than 70%) of the pension rate. The veteran also satisfies the provisions of section 23(1)(b) of the Act in that the veterans’ incapacity from war-caused injury is of itself alone of such a nature as to render the veteran incapable of undertaking remunerative work, otherwise than on a part time basis or intermittently. However, the Tribunal must also consider the effect of section 23(2) as it applies to section 23(1)(b). Section 23(2)(a) does not apply in this case. However, section 23(2)(b) does, which requires that for paragraph 23(1)(b) to be fulfilled the veteran must not be capable of undertaking work for twenty hours or more per week.
53. On the basis of Dr Adam’s report this requirement is satisfied.
54. The Tribunal must then consider the effect of section 23(1)(c) of the Act which provides that the veteran by reason of incapacity of war-caused injury alone, must be 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 earnings on his own account that the veteran would not be suffering if the veteran were free from that incapacity. However, before considering this the Tribunal must consider section 23(3) which requires that the applicant shall not be taken to be suffering a loss of salary, wages or earnings if:
(1)the veteran has ceased remunerative work for reasons other than his incapacity from war-caused injury, or
(2) the applicant has been engaged in remunerative work on a part time basis or intermittently for reasons other than his or her incapacity from war-caused injury.
55. In this case the applicant did cease work voluntarily. The applicant’s evidence is that he could “see the writing on the wall”. However, there is no evidence which reasonably satisfies the Tribunal that the applicant ceased work having regard to the applicant’s war-caused injuries alone.
56. Accordingly, the Tribunal is satisfied in this case that the applicant does not fulfil the provisions of section 23(3)(a). The Tribunal must now consider the ameliorating provisions of section 23(3)(b), which require that the applicant have been genuinely seeking to engage in remunerative work and that the applicant would be continuing to seek to engage in remunerative work but for the incapacity. Such incapacity must be a substantial cause of the applicant’s inability to obtain remunerative work in which to engage.
57. In this regard the respondent submitted that although the applicant could be regarded as having genuinely sought to engage in remunerative work, his defence caused incapacity is not the substantial reason for his inability to obtain work. The respondent points to both the applicant’s qualifications and the state of the job market as the substantial reasons for the applicant’s unemployment. He did not consider the applicant’s defence caused incapacity as substantial in this regard.
58. The Tribunal finds that the applicant has been genuinely seeking work.
59. Exhibit 5 sets out a number of applications.
60. The applicant says:
“These two accepted disabilities lumbar spondylosis and sensori-neural hearing loss restrict my ability to gain employment. My other disabilities, both accepted or non-accepted, do not preclude me from gaining employment, in fact there has been some minor deterioration in the past and I have remained gainfully employed. It would appear that the medical evidence compiled indicates that my accepted disabilities ALONE prevent me from gaining meaningful employment.”
61. However, in respect of the job applications applied for by the applicant, the applicant did not receive an interview and therefore can not say why the applications were rejected. The applicant did undertake a period of self employment in early 2000. While the applicant acknowledged this period of self employment was a good learning experience, it had to be abandoned because of a lack of technical and mentor support.
62. Accordingly the Tribunal cannot be satisfied that the substantial cause of the applicant’s inability to obtain a job is because of his accepted disabilities alone.
63. The Tribunal has had regard to the comments of RD Nicholson J in the decision of Forbes v Repatriation Commission (2000) 101 FCR 50 in which RD Nicholson J said (at 39):
“39. The applicant’s case requires the Tribunal to not have regard to the non war-caused condition where there is a finding that it alone did not stop the applicant from undertaking work. In my view, that course is not open to the Tribunal in the light of the words used in the first limb of section 24(1)(c). The question whether the veteran by reason of the war-caused condition “alone” has been prevented from continuing to undertake remunerative work can only be answered by reference to all the circumstances in which the war-caused condition exists. The factor that a non war-caused condition is not alone is not causative of such preventative effect does not prevent it having that effect in combination with the war-caused condition. …Furthermore it is consistent with the application by a Tribunal on a commonsense approach “with a eye to reality”.
40. As in the case of the present applicant it is possible that the war-caused condition will be by far and away the more dominant of the causes of the preventative effect where there is also present a non war-caused condition having such effect in combination. The result is that the presence of the latter will deny to a veteran qualification for the special rate of pension. Parliament has sought to ameliorate this position by the provision in section 24(2)(b). … To date the applicant has been unable to qualify pursuant to that provision. Whether he can qualify pursuant to that provision in the future remains a question for consideration.”
64. The applicant has provided the Tribunal with a copy of his curriculum vitae which makes no reference to his incapacity. His letters of application do not make reference to his incapacity either. Therefore, potential employers were presumably unaware the applicant suffered any incapacity.
65. Accordingly, the Tribunal must find the applicant did not get a job interview and or receive employment because of other factors, rather than his war-caused injuries. These factors must include his age, his experience and qualifications and the state of the job market.
66. Accordingly, the Tribunal finds the applicant does not satisfy section 23(3)(b) of the Act. Section 23 (1)(c) is not met, and accordingly, the application must be unsuccessful. The Tribunal affirms the decision under review.
I certify that the 66 preceding paragraphs are a true copy of the reasons for the decision herein of Mr O Rinaudo, Member
Signed: Nicca Grant
Associate
Date/s of Hearing 19 June 2003
Date of Decision 19 March 2004For the Applicant Ms B Carter-Nicoll, of Counsel
For the Respondent Mr M Smith, Departmental Advocate
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