Blackwell and Repatriation Commission
[2007] AATA 1042
•2 February 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1042
ADMINISTRATIVE APPEALS TRIBUNAL № V2005/780
VETERANS’ APPEALS DIVISION Re: JOHN WILLIAM BLACKWELL Applicant
And:
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal:Mr C. Ermert, Member
Date:2 February 2007
Place:Melbourne
Decision:The decision under review is affirmed.
(sgd) Mr C. Ermert
Member
VETERANS’ AFFAIRS ‑ veterans’ entitlements – operational service – accepted war‑caused injuries – inability to meet physical demands of army – retirement from army – establishment of own business – cessation of business - cessation of remunerative work – what is the remunerative work – cessation due to war-caused injuries – satisfaction of ‘alone test’ - application of the ameliorating provisions
Veterans’ Entitlements Act 1986 ss 23, 24
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Hendy (2002) 76 ALD 47
Forbes v Repatriation Commission (2000) 101 FCR 50
REASONS FOR DECISION
2 February 2007 Mr C. Ermert, Member
INTRODUCTION
1. Mr John William Blackwell (the applicant) was born on 8 July 1945. He served in the Australian Army from 9 January 1962 to 9 January 1985. He had operational service in South Vietnam during which he was extensively injured when the armoured personnel carrier in which he was travelling was blown up by a land mine. He was evacuated to Australia for treatment and rehabilitation, after which he continued with his army career. He was a qualified vehicle mechanic and rose in rank and qualifications to become, in his final posting, the Artificer Sergeant Major (ASM) of the 1st Armoured Regiment Light Aid Detachment at Puckapunyal. The position of ASM is the senior technician position in the unit, responsible for the technical maintenance of all the vehicles in the regiment. At the time Mr Blackwell was in charge of a number of tradesmen.
2. He retired from the army in January 1985 because he was finding difficulty in meeting the physical demands of the army, such as the cross-country runs and being on parade. He formed a partnership with another ex-army colleague in a light vehicle repair business in Seymour. In June 1993, after a disagreement with his partner, Mr Blackwell ended the partnership by buying out his partner’s share of the business and continuing the business as the sole owner. In 2001 his two employees expressed their discontent with Mr Blackwell’s work demands and essentially gave him an ultimatum: either he got out of the business or they would. Mr Blackwell made arrangements to sell the Seymour business to the employees and to set up another business in a large shed at his home. He took with him the machinery with which to perform brake disc and drum machining and fuel injection cleaning and servicing. Shortly after setting up his home business, Mr Blackwell and his wife went on a caravanning holiday to Western Australia. He was also involved with the preparation of a historic touring car for various competition events including the Australian Grand Prix in 2004.
3. Mr Blackwell was having physical difficulties in doing his work and was also suffering psychiatric difficulties in relating to customers. His home business declined; and in 2003 the business effectively ceased to operate. Mr Blackwell applied for a pension and was assessed by the Repatriation Commission (Commission) for a pension at 90% of the General Rate. He applied to the Veterans’ Review Board (VRB) for a review of that decision. On 24 May 2005 the VRB set aside the decision of the Commission and substituted a decision that Mr Blackwell’s pension be assessed at 100% of the General Rate to operate from 29 October 2003. Mr Blackwell applied to this Tribunal for a review of the VRB decision. Mr Blackwell is essentially seeking the Special or Intermediate Rate of pension.
THE HEARING
4. At the hearing Mr Blackwell was represented by Mr Peter Liefman, solicitor, and the respondent was represented by Mr Ken Rudge, an advocate with the Department of Veterans’ Affairs. I had before me the documents lodged by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents). Additional material from both parties was taken into evidence.
5. For the applicant I heard evidence from:
· the applicant himself;
· Dr Arthur Velakoulis, a consultant psychiatrist in the Post-Traumatic Stress Disorder Unit at Heidelberg;
· Mr Richard Anthony McArthur, an orthopaedic surgeon, who interviewed the applicant on two occasions and provided two reports dated 4 January 2005 (T14) and 11 August 2006 (Exhibit A1); and
· Mrs Mary Elizabeth Blackwell, the applicant’s wife since 1967.
6. For the respondent I heard evidence from:
· Dr Lester Alan Walton, a psychiatrist, who saw Mr Blackwell twice and provided three reports dated 2 October 2002 (Exhibit R1), 8 November 2002 (T4) and 12 April 2006 (Exhibit R5); and
· Dr Grant Dickenson Ramage, an occupational physician, who saw Mr Blackwell twice and provided two reports dated 29 November 2003 (T8), and 5 April 2006 (Exhibit R4).
THE ISSUES
7. The purpose of this review is to determine whether Mr Blackwell is qualified for a rate of pension greater than 100% of the General Rate; specifically whether he qualifies for the Special Rate or the Intermediate Rate of pension.
8. In regard to the Special Rate of pension s 24 of the Veterans’ Entitlement Act 1986 (the Act) relevantly states:
(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)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
(d)section 25 does not apply to the veteran.
(2)For the purpose of paragraph(1)(c):
(a)a veteran who is incapacitated from war‑caused injury or war‑caused disease, or both, 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 if:
(i)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; or
(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; 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.
9. Section 23 of the Act, which deals with the Intermediate Rate of pension, contains essentially the same provisions as s 24 pertaining to the Special Rate of pension. The differences relate to the extent of remunerative work capable of being undertaken by the veteran which, for the Intermediate Rate, is 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 20 or more hours per week. The provisions relating to the cessation of remunerative work for reasons other than his or her incapacity from the war-caused injury or disease are identical for both the Intermediate Rate and the Special Rate of pension. For convenience and clarity, I will refer only to the provisions of s 24 of the Act except where the s 23 provisions specifically apply.
10. It was agreed by the parties that Mr Blackwell’s circumstances complied with the provisions of s 24(1)(aa), s 24(1)(aab) and s 24(1)(a). Mr Rudge accepted that the loss of earnings is not in dispute. He also accepted that Mr Blackwell was not capable of remunerative work for more than 20 hours per week and therefore the provisions of s 23(2)(b) are not in dispute.
11. The first issue remaining to be determined is whether Mr Blackwell ceased to engage in remunerative work for reasons other than his incapacity from war-caused injuries or diseases or both; that is whether he ceased work because of his war-caused incapacities alone. This provision is often referred to as the alone test and is contained in s 23(1)(c) and s 24(1)(c) of the Act.
12. If Mr Blackwell satisfies the alone test, the next issue is whether he is capable of remunerative work for periods aggregating more than eight hours per week. If he is not capable of remunerative work for more than eight hours per week, he is entitled to the Special Rate of pension (s 24(1)(b) of the Act). If he is capable of more than eight hours per week but not more than 20 hours per week he is entitled to the Intermediate Rate of pension. As noted above, the respondent has already conceded that Mr Blackwell is not capable of working more than 20 hours per week (s 23(1)(b) and s 23(2)(b) of the Act).
Does Mr Blackwell satisfy the alone test of section 24(1)(c) of the Act?
13. The process to be followed in applying the decision under review is set out in the decision of the full Federal Court in Flentjar v Repatriation Commission (1997) 48 ALD 1 in which Branson J., with whom Beaumont and Merkel JJ. agreed, posed the relevant questions arising from s 24(1)(c) of the Act. The questions are at 4-5:
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?
What is the remunerative work that Mr Blackwell was undertaking?
14. The first issue I need to resolve is the remunerative work that was being undertaken by Mr Blackwell. Mr Liefman submitted that Mr Blackwell’s employment history is that of a motor mechanic. Further, as Mr Blackwell has really only been self-employed after leaving the army, it would not be reasonable to contemplate work for him in any environment other than as a self-employed motor mechanic. Mr Liefman submitted further that, as the applicant did not undertake any work of a substantial nature after leaving the workshop in Seymour, the work that the veteran was undertaking should be accepted as being his work in Seymour. Mr Rudge made no specific submissions on this issue but referred in his submissions to Mr Blackwell setting up a business at home which he subsequently wound down.
15. Mr Blackwell’s evidence was that, in about September 2001, his two employees at his Seymour workshop gave him an ultimatum that either he leaves the business or they would leave. At that point Mr Blackwell clearly had an option of ceasing remunerative work. Instead he decided to set up a business in the shed at his home. He retained some of his workshop equipment from the Seymour business and
… took it home with the intention of being able to do things like fuel injector cleaning, disc brake machining and stuff like that that didn’t require a lot of physical, or what I thought was a lot of physical work at the time. I just set the shop up at home slowly over the next six months or so to, with the intention of being able to – hoping that there would be enough of that sort of work around to keep me going (Transcript, pp27-28).
In answer to questions about the seriousness of the home set-up, Mr Blackwell said:
Pretty serious … I have got a 40 by 20 by 10 foot high ceiling workshop at home … I have got a two-post hoisting, I have got a brake lathe that does brake discs and brake drums and flywheels and stuff like that. I have got an ordinary smallish lathe and I have got a belt grinding equipment. I have got my fuel injection – electronic fuel injection cleaning that cleans the injectors on late model cars and just a lot of other – you know all my own personal tools and what have you, that amounts to some fairly significant amount.
Mr Blackwell was asked Apart from the scales, say at work, how would it compare with the set-up at work at a professional level say. Is it comparable?
He answered:
… Comparable, yes…I let people know what I was going to do … I sort of had a little sign made up … John Blackwell Automotive Services, fuel injector cleaning, disc drum machining” (Transcript, p28).
Mr Blackwell also gave evidence that he commenced the business and was;
… probably doing I think probably, one maybe two sets of injectors a week and, you know, a couple of sets of discs… (Transcript, p41).
16. From the evidence I consider that Mr Blackwell made a deliberate decision to establish a professional business in his home shed and that he did in fact establish such a business. Therefore, I find that the remunerative work that Mr Blackwell was undertaking was the business that he established in his home workshop, not the Seymour workshop business as submitted by Mr Liefman.
Is Mr Blackwell by reason of his war-caused injuries prevented from continuing to undertake that work?
17. The second question posed by Flentjar is whether Mr Blackwell is prevented by reason of his war-caused injuries from continuing to undertake that work, in this case being the work in Mr Blackwell’s home workshop.
18. Mr Blackwell’s evidence was that:
certain jobs have become very difficult from a physical point of view … even with the two-post hoist I’ve got at home … it takes me a lot longer to do it than it ever used to and I’ve got to have fairly regular breaks … you’ve sort of, got to do a lot of bending and moving your neck around and all that so it just starts to hurt too much.
- So how many hours, do you say – do you believe you could do now, in the light of that? -
I don’t know, probably four or five hours a week if I was lucky (Transcript, p32).
19. Mr Liefman submitted that the evidence of Dr Velakoulis was that Mr Blackwell’s degree of psychiatric disability alone was sufficient to satisfy that test. Mr Liefman also submitted that Mr McArthur felt that Mr Blackwell passed the test on the basis of a combination of his psychiatric and his physical disabilities.
20. In his evidence, given by telephone, Dr Velakoulis said
… I did get the sense that him managing beyond eight hours in the longer term, as a result of difficulty with frustration, tolerance, irritability, relatively high level of anxiety, recurring – let us say, day to day re-experiencing symptoms. They would be the sort of major factors in him not being able to work beyond eight hours a day in a sustained fashion (Transcript, p51).
21. Mr McArthur’s evidence was;
...his back pain would have got progressively worse and would have interfered with his ability to work as a mechanic in civilian life. …His spine has become progressively stiff and his ability to walk and stand for any period or distance has been impaired. … The neck pain also would be aggravated by his work. Bending, lifting, twisting, looking into and up into motors etcetera …In the left knee … he experiences discomfort, mainly at the back of the patella and the patella fibular joint on squatting, traversing stairs and inclines. He has difficulty kneeling and bending. … I think the major issue is his lumbar spine and his cervical spine. … And in his particular case, I think he had the added physical complaints of his back, his neck, his jaw and his knees. I think it is a combination of all these factors…. (Transcript, pp79-82).
22. In her evidence Mrs Blackwell said;
He thought he would be able to, but he just couldn’t - he couldn’t do it. I mean, he couldn’t bend over. He could hardly get his neck to move. His knees were giving him curry. He couldn’t even kneel down. Where something would probably just take him an hour to do, it was taking him all day to do one thing. And even then, he was having breaks right through the day (Transcript, p70).
23. When asked for his opinion as to the effect of Mr Blackwell’s psychiatric condition on his work capacity Dr Walton said;
… can someone do 8 or more, or 20 or more. It is an imprecise science, at best. I probably would put him down towards the lower end of the spectrum, but I did conclude that he could work more than 8 hours per week (Transcript, p74).
24. In regards to the effect of Mr Blackwell’s war-caused physical disabilities Dr Ramage gave evidence that he believed that Mr Blackwell;
could undertake work between eight and 20 hours per week as a motor mechanic, and maybe up to 30 hours per week with appropriate restrictions placed upon him in relation to bending forward from the neck or waist (Transcript, p88).
25. I am satisfied that there is sufficient evidence to show that Mr Blackwell’s war-caused injuries prevent him from continuing to undertake the remunerative work he was undertaking at his home workshop. There are differences of opinion over the amount of work that could be undertaken by Mr Blackwell. However, I will come back to that issue later, if necessary. It is sufficient at this stage to find that Mr Blackwell is prevented from continuing to undertake the remunerative work he was undertaking by reason of his war-caused injuries.
Are the war-caused injuries the only factors preventing Mr Blackwell from continuing to undertake that work?
26. The third of the Flentjar questions asks whether the war-caused injuries are the only factors preventing the veteran from continuing to undertake the remunerative work. In his submissions on this issue Mr Liefman referred to the evidence regarding the condition of Mr Blackwell’s right knee. He submitted that the opinion of Dr Ramage, an occupational physician, expressed in his reports, was that Mr Blackwell’s right knee condition made no significant contribution to his incapacity to work.
27. Mr Liefman submitted further:
And … Mr McArthur was asked about the right knee. He said that he felt that it was certainly a lot less severe a condition than the left knee, the accepted disability notwithstanding it would contribute to his incapacity for work. The veteran’s evidence himself today was that he could not believe the right knee would stop him working, and in terms of the relevant section, the question in our submission is whether that right knee would not prevent him continuing to undertake remunerative work and on the basis of the evidence it would be our submission that he is not prevented from continuing to undertake it because of that right knee, and that is to be contrasted with whether it might contribute. There are certainly some other conditions mentioned today that are not accepted in the same context, and our submission would be that they are much less important in terms of the contribution, and therefore would also not prevent him continuing to undertake emanative (sic.) work (Transcript, p93).
28. Mr Rudge submitted that there were a number of business issues and some non-accepted physical factors that contributed to Mr Blackwell’s inability to continue remunerative work. On the business issues Mr Rudge said:
Then he set up a business at home in his shed, which we learned was a lot larger shed, 40 feet by 20 feet, and he had a sign made up which advertised that he was doing machining of brake discs and the cleaning of fuel injection systems and he put the word around Seymour that he was doing this work, but a number of things happened to interfere with that work and he did say that he started the business and it was operating and that was his intention work in that business but a number of unfortunate things happened.
Shortly after he started, he went on a caravan holiday to Western Australia for seven or eight weeks, and he said when he came back he noted people thought he had stopped the business and therefore he lost a number of customers. The other thing that happened to that business was change in the mechanical industry. People were not seeking to have machining done any longer; they merely changed the discs over. So that part of the business went by the way. And also the introduction of unleaded petrol meant that there was no longer a need for the cleaning of fuel injection systems.
The other factor he mentioned was, in this situation, the costs of maintaining a company … was costing him more than the revenue from his disc machining and fuel injection, so he, for that reason decided that it was best to close it down.
… but it were these other factors that led him to make a number of decisions about winding down the business …
So he was making decisions about his business that were based on reasonable grounds. … They seemed reasonable decisions to make, to wind down the business. They are all reasons that, in our submissions, prevent the satisfaction of the alone test. They are decisions he has made in his life, and they are not related to the war-caused disabilities (Transcript, pp95-96).
29. In regard to Mr Blackwell’s physical disabilities Mr Rudge submitted that disabilities other than his accepted disabilities contributed to Mr Blackwell’s inability to undertake remunerative work. Mr Rudge referred to Mr Blackwell’s right knee problems which, according to Mr McArthur’s evidence, contribute to Mr Blackwell’s inability to undertake remunerative work. Mr McArthur also gave evidence regarding a compression fracture of the fourth vertebra, which is not an accepted disability, but accounts for some of the back pain suffered by Mr Blackwell. Mr McArthur also gave evidence regarding problems with Mr Blackwell’s left heel and the left ankle; although the contribution made by these conditions is unclear.
30. Mr Rudge then referred me to the decision of the Full Federal Court in Repatriation Commission v Hendy (2002) 76 ALD 47, and the decision of Nicholson J of the Federal Court in Forbes v Repatriation Commission (2000) 101 FCR 50. Mr Rudge submitted that;
Hendy makes the point that every factor contributing to a person’s inability to undertake remunerative work, or decision not to take and undertake remunerative work, should be taken into account by a decision-maker.
Mr Rudge submitted further that;
Nicholson J, in Forbes makes the point that, even if a non-accepted condition does not, itself, prevent the undertaking of remunerative work for more than eight hours per week, if in concert with other disabilities the combination prevents him from undertaking remunerative work, then the alone test is not satisfied.
Mr Rudge continued:
… our submission is just that, that there are these factors which caused the business to be wound down, Mr Blackwell to move on, and there is the presence of the right knee, and to a lesser extent left heel and ankle, and the compression fracture of the fourth vertebra, which, in combination with the accepted disabilities, prevent the undertaking of remunerative work (Transcript, p96).
Consideration of the ‘alone’ issue
31. In Hendy their Honours Whitlam, Emmett and Stone JJ said; at para 37:
The consideration of what a veteran would probably have done, absent the service disabilities, is a hypothetical exercise. The language of s 24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the Veteran from working. The decision-maker is required to take into account any factor that plays a part or contributes to a veteran’s being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period. …
32. This decision obliges me to take into account any factor that plays a part or contributes to Mr Blackwell being prevented from continuing to engage in remunerative work. Therefore, I must take into account the business issues and any non-accepted injuries arising from the evidence.
33. The business issues were covered by Mr Blackwell’s own evidence. He said that it turned out that there was not enough work to keep the business viable - there was never enough of that sort of work. Mr and Mrs Blackwell went away for a seven to eight week holiday and on his return he attempted to get back into it again and I think because a bloke went on holidays people thought you had ceased.
Mr Blackwell said that the business slowly wound down to the point where he said to his accountant;
I think this is costing me more money to keep the business going … than what I am making in the money – income so he suggested I close it down which I did.
In regard to the work available Mr Blackwell said;
The amount of that sort of work that is around has now become more limited because, for instance, you know fuel injectors used to clog up fairly significantly when they were on leaded petrol … And modern petrol doesn’t block up injectors like it used to and … whereas we used to do a lot of disc brake machining for instance, there is more replacement going on now than there is machining because of the aggressive nature of brake pads they are using (Transcript, pp28-30).
34. On the issue of non-accepted injuries I note the evidence of Mr McArthur in his report (Exhibit A1);
Mr Blackwell has osteoarthrosis involving the right patello-femoral joint which give rise to similar symptoms as occurs in the left knee. The osteoarthrosis in the right knee has not been accepted by the Department of Veterans’ Affairs. The osteoarthrosis in the right knee does contribute to Mr Blackwell’s disability in that his knee aches after standing, walking and in particular when squatting, kneeling and traversing stairs and inclines.
When asked whether those activities could be difficult when working as a mechanic, Mr McArthur responded;
Would it contribute to his inability to work as a mechanic, the answer is yes, but as I said before it is not a big contribution. It is a relatively minor contribution. But it would contribute to his inability to work (Transcript, p84).
Mr McArthur’s evidence also included his opinion of the conditions that affect Mr Blackwell’s ability to work, amongst which he included the effects of the compression fracture of the fourth lumbar vertebral body.
35. From the evidence I accept that there are a number of non war-caused conditions, namely the business environment and non-accepted disabilities, that must be taken into account in the consideration of the causes of Mr Blackwell’s inability to continue to undertake remunerative work.
36. In taking these conditions into account I find from the evidence that these non war-caused conditions do contribute to some degree to Mr Blackwell’s inability to continue to undertake remunerative work. The evidence as to the degree of contribution varies. However, there is sufficient evidence to satisfy me that there is some degree of contribution.
37. I turn now to the decision of the Federal Court in Forbes in which Nicholson J said:
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 s 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 fact that a non war-caused condition is not alone causative of such preventative effect does not prevent it having that effect in combination with the war-caused condition. The possibility of combination is recognised in the third conceptual environment identified in the applicant’s case. Furthermore it is consistent with the application by a Tribunal of a common sense approach “with an 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. …
38. I have already accepted that that there a number of non war-caused conditions that make some contribution to Mr Blackwell’s cessation of remunerative work. Applying the above reasoning of Nicholson J the presence of any non war-caused condition would deny Mr Blackwell the qualification to the Special Rate pension and also the Intermediate Rate pension.
The ameliorating provision
39. In his decision in Forbes Nicolson J added the following statement at the end of para 40:
Parliament has sought to ameliorate this position by the provisions in s 24(2)(b), to which reference has been made.
40. Therefore, before making a determination on the provisions of s 24(1)(c) of the Act I need to consider the ameliorating provisions of s 24(2)(b) as they apply in this case.
41. Section 24(2) provides:
(2)For the purpose of paragraph(1)(c):
(a)a veteran who is incapacitated from war‑caused injury or war‑caused disease, or both, 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 if:
(i)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; or
(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; 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.
42. Mr Liefman submitted that under this section the inability to undertake remunerative work would change to one of substantial cause instead of being the alone cause and the test of qualification for the benefits is whether the veteran has been genuinely seeking to obtain work. Mr Liefman submitted that Mr Blackwell’s attempts to set up the work at home and the work he did for others in relation to the racing cars show the intention and demonstrate Mr Blackwell’s genuineness in this regard, notwithstanding that none of them have come to any fruition.
43. Mr Rudge’s submission on this issue is that the Tribunal must determine the substantial cause not just a substantial cause, and in this case the substantial cause:
…was the various decisions that were made in the business: the problem with the partner; the problem with the two employees not happy with the amount of work they were required to do; starting a business in the home and then shortly after commencing, going away for seven or eight weeks; the changes in technology that affected the business; and the costs of continuing to operate a company. In our submission, those matters, together with the compression fracture and the right knee, are the substantial cause (Transcript, pp96-97).
Mr Rudge also submitted that if the Tribunal found that the business problems caused Mr Blackwell to cease work;
…then he wouldn’t be suffering a loss for the purposes of the Act and it would not matter that he satisfied the ameliorating provision of 24(2)(b) and whatever the counterpart is in 23, because they are mutually exclusive.
If one can satisfy the ameliorating provision, however, if the Tribunal finds that the applicant ceased work for reasons other than war-caused disability, then he cannot be said to suffer a loss for 23(1)(c) and 24(1)(c) and, therefore, does not satisfy the provisions for special rate (Transcript, p97).
44. For the ameliorating provision to take affect the veteran must satisfy the Commission, or in this case, the Tribunal, that he has been genuinely seeking to engage in remunerative work. Mr Blackwell’s evidence related to this issue was that when he set up his home business he had a little sign made up and let people in the town within the trade know what he was doing. His evidence was that he did not do advertising or promotions other than by letting people know by word of mouth, which is how most of his business used to come to him. At about that time Mr and Mrs Blackwell went on a caravanning holiday to Western Australia and the work dropped off. Mr Blackwell gave no consideration to alternative work at the time saying Well, I couldn’t see any alternate work for the style I want to be doing (Transcript, p30). For about 18 months Mr Blackwell was involved with preparing an historic touring car for racing. Although this could have been seen as advertising for the business Mr Blackwell said I considered that as a hobby (Transcript, p30) and he agreed that he had no expectations beyond it being a hobby.
45. From the evidence I am not satisfied that Mr Blackwell was genuinely seeking to engage in remunerative work as required by s 24(2)(b) of the Act for the ameliorating provision to come into effect. As a consequence the ameliorating provisions do not act, in this case, to alter the effect of my finding in regard to the alone test of s 24(1)(c): that Mr Blackwell was prevented from continuing to undertake remunerative work for reasons in addition to his war-caused injuries and, as a consequence, he does not meet the alone test.
Hours of remunerative work
46. Section 24(1)(b) and its counterpart in s 23 define the amount of work able to be undertaken in order to qualify for the Special Rate of Intermediate Rate of pension. These sub-sections are joined to the alone test sub-sections by the word and; with the result that if the veteran fails to satisfy the alone test then the amount of work able to undertaken by the veteran is immaterial. That is the case in this matter. As I have found that Mr Blackwell was not prevented from undertaking remunerative work by his war-caused injuries alone, the amount of work he is capable of undertaking is not an issue for consideration.
CONCLUSION
47. I have found that Mr Blackwell ceased to undertake remunerative work for conditions that are in addition to his war-caused injuries, namely business reasons and the affects of his non-war-caused injuries. Therefore, he does not satisfy s 24(1)(c) and s 23(1)(c) of the Act which require the cessation due to war-caused injuries alone. In addition, I have found that the ameliorating provisions of s 24(2) and s 23(2) of the Act are not effective in this case as I am not satisfied that Mr Blackwell has been genuinely seeking to engage in remunerative work. As a consequence, Mr Blackwell is not qualified for either the Special or the Intermediate Rate of pension.
DECISION
48. The Tribunal affirms the decision under review.
I certify that the forty-eight [48] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr C. Ermert, Member
(sgd) Ursula Noyé
Clerk
Dates of Hearing: 14 November 2006
Date of Decision: 2 February 2007
Solicitor for the applicant: Mr P.J. Liefman, Barrister & Solicitor
Solicitor for the respondent: Mr K. Rudge, Department of Veterans’ Affairs
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