Bridges and Repatriation Commission
[2005] AATA 1266
•20 December 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1266
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2004/428
VETERANS' APPEALS DIVISION ) Re KENNETH JOHN BRIDGES Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Brigadier R D F Lloyd, Member
Dr D Weerasooriya, Member
Brigadier A G Warner, MemberDate20 December 2005
PlacePerth
Decision The Tribunal affirms the decision under review.
................(sgd R Lloyd)..................
Member
CATCHWORDS
VETERANS' AFFAIRS - Veterans' Entitlements - disability pension at 100% of General Rate - claim for Special Rate - ceased work as fireman on medical grounds - whether prevented from continuing to undertake remunerative work due to war-caused incapacity - alone test - ameliorating provision - whether accepted disability (especially PTSD) is substantial cause of inability to obtain remunerative work - not genuinely seeking to engage - not entitled to Special Rate - decision under review affirmed
Veterans' Entitlements Act 1986 (Cth) s 24
Forbes v Repatriation Commission [2000] FCA 328
Repatriation Commission v Hendy [2002] 76 ALD 47
Miller v Repatriation Commission [2005] AATA 972
Leane v Repatriation Commission [2004] FCAFC 83
Vuckovich v Repatriation Commission [1999] AATA 314
Jenkins v Repatriation Commission [2001] AATA 24
Repatriation Commission v Hendy [2002] FCAFC 424
Repatriation Commission v Alexander [2003] FCA 399
Cavell v Repatriation Commission (1998) 9 AAR 534
Flentjar v Repatriation Commission (1998) 48 ALD1
Bunney v Repatriation Commission [2005] AATA 447
Repatriation Commission v Sheehy (1995) 133 ALR 654
Birtles v Repatriation Commission (1991) 24 ALD 545
Easton v Repatriation Commission (1987) 6 AAR 558
Gurney v Repatriation Commission (1989) 18 ALD 760
McCrae v Repatriation Commission (1990) 19 ALD 439
Fry v Repatriation Commission [1997] 771 FCA
Starcevich v Repatriation Commission (1987) 18 FCR 221
Martin v Repatriation Commission (1987) 13 ALD 83
Hall v Repatriation Commission (1994) 33 ALD 454
REASONS FOR DECISION
20 December 2005 Brigadier R D F Lloyd, Member
Dr D Weerasooriya, Member
Brigadier A G Warner, MemberIntroduction
1. This is an application before the Administrative Appeals Tribunal (“the Tribunal”) by Mr Kenneth J Bridges (“the applicant”) for a review of the 17 September 2004 decision of the Veterans’ Review Board (“the VRB”) which affirmed an earlier decision by the Repatriation Commission (“the respondent”) dated 22 January 2003. That decision by the respondent rejected the applicant’s application for an increase in his disability pension, in which he was seeking pension at the Special Rate, and continued it at 100% of the General Rate.
2. It is only the assessment of the applicant’s entitlement for pension at the Special Rate that is in contention in this review by the Tribunal.
3. The applicant attended the hearing and was represented by Mr R Grayden of Hammond Worthington, Solicitors and the respondent by Mr C Ponnuthurai, a departmental advocate.
Documents and Witnesses
4. The Tribunal had before it the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”). In addition the following documents were taken into evidence:
(a)At the request of the applicant:
·Exhibit A1: Statement by the applicant, Mr K J Bridges, dated 13 October 2005
·Exhibit A2: Letter signed by Dr O Kay (Psychiatrist) dated 12 October 2005 addressed to Hammond Worthington, Lawyers.
(b)At the request of the respondent:
·Exhibit R1: Bundle of Documents, being correspondence (unsigned) from Dr G Forward (Orthopaedic Surgeon) regarding the applicant’s knees – over the period September 1998 to January 2005.
5. No respondent witnesses were called to give evidence at the hearing. The only applicant witness was Mr Bridges himself, who gave oral evidence further to that contained in his statement (Exhibit A1). His examination by Mr Grayden was lengthy, as was his cross examination by Mr Ponnuthurai. The applicant was then subjected to an extended period of questioning by Tribunal members, with emphasis on medical aspects. Mr Bridges presented himself throughout without any apparent sign of distress, or need for relief (other than times initiated by and for the benefit of the Tribunal). It was noted that his answers were given in a clear and confident manner, in the main without hesitation. Whilst this is commendable, given the range of questions asked, the time involved and the stated condition of his health, the Tribunal finds this somewhat surprising in the circumstances. Whilst this finding forms part of the Tribunal’s assessment of the reliability of Mr Bridges as a witness, it will be dealt with further in discussing aspects of his/the evidence.
Legislation and Preliminary Matters
6. The entitlement requirements for an earnings related pension, in this instance the Special Rate, are contained in s 24 of the Act. It provides as follows:
“(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 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
(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.”
7. The Act requires that the Tribunal decide this matter to its reasonable satisfaction, ie on the balance of probabilities.
8. Mr Bridges formally lodged his claim for increase in pension on 13 November 2002. He was under 65 years of age when this application was made, his date of birth having been confirmed by the Tribunal as being 23 June 1950. Additionally, based on the evidence provided in the T documents, the Tribunal finds no grounds to disagree with the VRB’s assessment of the degree of war-caused incapacity of the applicant being at least 70% with effect from the commencement of the assessment period. This incapacity, expressed as a percentage of the General Rate of disability pension is in fact 100% and has remained so throughout the period. Hence the Tribunal is reasonably satisfied, and it is common ground for both parties, that the applicant having appropriately claimed under s 15 of the Act meets the requirements of s 24(1)(aa), s 24(1)(aab), and s 24(1)(a).
9. At the hearing Mr Ponnuthurai confirmed that the respondent, based on the opinion evidence of Dr Kay, is prepared to concede that the applicant’s incapacity from war-caused conditions results in Mr Bridges being incapable of working more than 8 hours per week – that is, as prescribed by s 24(1)(b) of the Act. The Tribunal is, of course, not bound to accept that concession. Nevertheless, on the basis of the medical opinion evidence available, it is reasonably satisfied there is sufficient confirmation to find that this requirement is met, (for example T11 page 62 and Exhibit A2 refer), but not before mid/late 2003. It is similarly satisfied that Mr Bridges is suffering a loss of salary or earnings by virtue of this incapacity, again from mid/late 2003 onwards, but only on a ‘substantial cause’ basis if so found.
10. It is agreed that the ‘assessment period’ relevant to the Tribunal’s review commences on 13 November 2002 and covers a period from then until the date of its decision. In terms of the applicant’s claim for Special Rate, the Tribunal needs to be relevantly satisfied that he meets the requirements entitling him to that rate, as specified in the Act, at some time (or times) within this assessment period.
Matter for Determination
11. As a consequence of the above, the final and critical matter to be determined by the Tribunal is the requirement prescribed in s 24(1)(c) of the Act. Expressed in more simple terms, the issue here is whether Mr Bridges, during the assessment period, was prevented by reason of incapacity from war-caused incapacity alone from continuing to undertake remunerative work.
12. Further to that, the applicant in this case being under the age of 65 years, and not having engaged in remunerative work during the relevant period, s24(2)(b) of the Act potentially becomes of particular significance in the Tribunal’s review of this matter. This section is taken to be an ‘ameliorative provision’, in that if its requirements are met, it can help an applicant satisfy the ‘alone test’ of s 24(1)(c). It allows for the applicant’s war-caused incapacity to be instead the substantial cause of his inability to obtain remunerative work – with the added proviso that he has been genuinely seeking to engage in such work.
13. Hence should Mr Bridges otherwise fail to meet the ‘alone test’ criterion of s 24(1)(c), and if the requirements as outlined in paragraph 12 above in relation to s 24(2)(b) of the Act be met to the Tribunal’s satisfaction, then he would be treated as having met that ‘alone test’ provision. (Leane v Repatriation Commission [2004] FCAFC 83 refers).
Evidence and Findings
14. The applicant’s disabilities accepted as war or defence-caused as at the assessment period are:
· Post Traumatic Stress Disorder (PTSD)
· Bilateral Sensorineural Hearing Loss
· Lumbar Spondylosis
· Irritable Bowel Syndrome (IBS).
And his rejected disabilities are:
·Chondromalacia Patellae (Right)
·Osteoarthritis of the Left Knee
15. It is not the intention of the Tribunal to set out the evidence in detail. This is amply accomplished in the T documents and the exhibits formally taken into evidence at the hearing – aided as necessary by the Tribunal Transcript.
16. The Tribunal finds it disappointing that neither party arranged for the only psychiatrist (Dr Kay), who had provided documented opinion evidence on behalf of the applicant, to be made available to respond to questions by the Tribunal – either in person or by telephone. The same applies to other documented medical opinion evidence relied upon by both parties. In the same context, it is the Tribunal’s opinion that inadequate attention was paid in evidence to the changing situation of Mr Bridges’ incapacity and his workability post FESA, during the protracted assessment period. Consequently, it then falls to an excessive degree on the Tribunal to pursue these aspects, within the limits available to it.
17. The applicant ceased work with FESA on 17 October 2002 and, according to his oral evidence, any extra-curricular work he had been doing also ceased by that date. The latter consisted of truck driving and lawn mowing. Up until the commencement of the assessment period on 13 November 2002 (less than one month later), he was unemployed and has remained so throughout the period. Despite this separated start point the applicant’s reason for ceasing work is relevant. It varies in evidence as summarised:
(a)There is the initial 3 October 2002 letter from Dr McComish (Consultant Physician to FESA) stating that Mr Bridges “… was no longer fit to work with FESA because of osteoarthritis affecting both knees. Other factors which compromise his abilities are hearing loss and tinnitus and a history of depression and anxiety” (T3 page 14);
(b)Of note is the applicant’s statement in support of his claim dated 13 November 2002 which featured PTSD, IBS, Lumbar Spondylosis, Tinnitus and Arthritis (T3 page 16). “Arthritis” [both knees] in this letter is incorrectly referred to by Mr Bridges as being an accepted disability. He commences with “… my accepted disabilities [all five] have become worse …” and concludes with “… I wish … the above statement be accepted as my reason for claiming an increase in pension to TPI level”. In this regard, the Tribunal notes from the applicant’s oral evidence that he apparently had mistakenly concluded that all his disabilities had been accepted as being war-caused when he had been issued by DVA with a Gold Card. This of course is not the case and the Tribunal took the opportunity of ensuring the applicant now understood. The impression given in evidence by him is that this misunderstanding was current at the time of his ceasing work at FESA ( and at the commencement of the assessment period ).
(c)There is the follow-up letter from Dr McComish to the applicant dated 21 May 2003, extracts of which are:
· “The report [of the FESA Medical Panel on 1.10.2002 and referred to in the McComish letter of 3 October 2002] recommended retirement on medical grounds because of osteoarthritis affecting both knees. It also mentions other factors including hearing loss and tinnitus and a history of depression and anxiety. Members of the panel determined that Mr Bridges was no longer fit to work as a fire fighter for all these reasons …”.
· “When the medical panel met we were provided with a report from Dr Ralph Sicouri [Occupational Health and Safety Specialist and FESA Consulting Doctor] about Mr Bridges’ health. He was asked whether there was more than one medical condition relating to a possible medical retirement request. He listed the following conditions:
a. Post Traumatic Stress Disorder …
b. Chronic back history
c. Bilateral Knee osteoarthritis
d. Hearing loss and tinnitus”.
·Further, Dr McComish advises that Dr Sicouri stated:
“… in view of his [Mr Bridges] depressive episodes his concentration is poor and he would be incapable of performing alternative duties [within FESA]. Furthermore he feels he could not work in an office-type environment.”
·Finally in this report Dr McComish opines:
“… that all the listed disabilities [as above] contribute to Mr Bridges being unable to work as a fire-fighter, and the post traumatic stress disorder in particular prevents him from other gainful employment.” [emphasis added].
(d)The applicant’s oral evidence is that he did not wish at the time to be medically retired (from FESA) on the grounds of having a psychiatric condition (ie PTSD), because of the possible stigma attached. In his words “… and be regarded as a bludger …”. Thinking that all his disabilities were “accepted” (not with some just covered for medical treatment purposes; eg his knees), he states he was able, at the time, to choose to emphasise the incapacity of knees and down-play the extent of his PTSD.
(e)Also relevant are the two letters to DVA from Mr Horbury – FESA’s Manager Health, Safety and Welfare dated 27 June 2003 and 23 July 2003 (T11 pages 60 and 61 respectively). The contents are rather a repeat of, and are sourced from, the medical opinion reports referred to in 17(c) above. However, they do place emphasis on the importance belatedly given by FESA (or at least by Horbury) to the effects of Mr Bridges’ PTSD – above that of the problems of his knees. The reasons prompting this delayed amending action are not adequately explained.
18. The Tribunal, being not inexperienced in Gold Card matters, finds its assessment of the applicant’s credibility as a witness somewhat stretched by virtue of his stated misconception in this regard. Nonetheless, after careful consideration, the Tribunal is prepared – without the need to raise further specific aspects of supportive evidence – to accept that Mr Bridges chose at the time of ceasing employment with FESA to down-play the effects of his PTSD as described, and to do so by some means not at all clear to the Tribunal. There is however, insufficient evidence available for the Tribunal to determine by how much be altered this balance. The contemporaneous medical opinion evidence of particular relevance to this is deficient and the Tribunal is not appropriately comfortable, without the opportunity to raise questions with the doctors concerned, in accepting the full face value of some of the documented opinions given in hindsight in this regard.
19. However, despite the above limitations and despite the peculiarities of FESA’s method of handling (then re-handling) the applicant’s grounds for medical retirement on 17 October 2002, there remains overwhelming documentary evidence that leads the Tribunal to find that the medical causes preventing Mr Bridges from continuing to work at that time simply cannot preclude the matter of incapacity from his knees. The evidence is, and the Tribunal so finds, that all four conditions applied – PTSD, Lower Back, Knees and Hearing Loss – in varying degree. Furthermore, the evidence also shows, and the Tribunal similarly finds, that the same situation applied some three weeks later at the commencement of the assessment period. The contention that at these times the incapacity from the applicant’s knees was so insignificant as to be now disregarded is not appropriately supported by the evidence before the Tribunal.
20. As this knee incapacity was/is not recognised as being war-caused (in fact has been rejected), the Tribunal does not accept that the applicant meets the requirement of s 24(1)(c) at the time of ceasing with FESA, nor at commencement of the assessment period, in October/November 2002. Hence, for the reasons outlined, and in terms of the Act, the Tribunal is reasonably satisfied that it is not for reason of war or defence-caused injury or disease alone that Mr Bridges was prevented, as at October 2002, from continuing to undertake remunerative work that he was undertaking (ie. as an employee of FESA), nor was he similarly prevented from obtaining remunerative work at the commencement of the assessment period in November 2002.
21. However it was put to the Tribunal that the ameliorating provision of s 24(2)(b) of the Act should apply in this case. It is contended, in that respect, that whilst the applicant’s knee condition may have been there and prevailing in a minor, but lessening degree, the substantial cause of Mr Bridges having to cease work in October 2002, also at the commencement of and throughout the assessment period, is his PTSD.
22. The Tribunal is unable to rely on Dr Kay’s opinion evidence in this regard, at least in the initial part of the assessment period. According to the evidence, he did not see Mr Bridges from January 1995 until April 2003 (Exhibit A2). Furthermore, Dr Kay was not made available for questioning by the Tribunal, as already noted. According to Dr Daly’s letter of 1 September 2003 (T11 page 63) he saw the applicant as part of a Counselling Service in approximately 1996, and then for PTSD treatment apparently until about 2001. Dr Daly’s letter indicates that he didn’t then continue to see Mr Bridges until April 2003. Again there is a gap in contemporaneous medical evidence concerning an important and relevant period for the Tribunal’s deliberations, and with the doctors not being made available to assist. Nevertheless, the Tribunal notes that both doctors, seeing the applicant in April 2003, opine the relative importance of the PTSD condition in his ceasing work and that of osteoarthritis of the knees not being such a significant factor as the other ailments. On face value these two medical sources could be regarded as one confirming the other. The Tribunal accepts this to be so, albeit reluctantly in the circumstances already commented upon.
23. On the other hand there is contemporaneous medical evidence from Dr Forward (Orthopaedic Specialist) as contained in his letters forming Exhibit R1. As at April 2003 the applicant was clearly continuing to have knee problems, sufficient for Dr Forward to be continuing to forecast for Mr Bridges a tibial osteotomy operation in 2004. The Tribunal notes that in the end result this operation apparently was not required and that the knee condition was improving at this time. This of course does not alter the significance of the date(s) involved and the prognosis. Dr Forward’s other letters in Exhibit R1 are also informative, including his end judgement as to the applicant’s capacity for work in late 2002 and now.
24. The Daly/Kay evidence together with other medical reports, including those of McComish, Bath and Andrade are, in the opinion of the Tribunal, inadequate to enable it to be relevantly satisfied that PTSD was the substantial reason preventing Mr Bridges from working in the period late 2002 – mid 2003. It may have been the ‘more important’ in the applicant’s mind among his mixture of medical ailments at the time, but according to his own admission in sworn evidence before the Tribunal he falsely ‘demoted’ this PTSD condition in late 2002 at the expense of his knees. Despite this apparently strange decision and even though he may have regarded in his own mind PTSD as being the most important, this does not equate to it being the substantial cause in terms of the Act.
25. When then did PTSD become the substantial incapacity preventing the applicant from undertaking remunerative work? Allowing the applicant the most beneficial assessment of Dr Kay’s opinion evidence that the Tribunal is prepared to provide under the circumstances, together with the other medical evidence available – including the opinion evidence of Drs Daly, McComish, Bath, Forward and Andrade, as well as the applicant’s own evidence – the Tribunal finds that his PTSD becomes the substantial factor at the earliest in mid 2003. In so finding, based on all the available evidence, the Tribunal is affording the applicant to the fullest extent possible the beneficial nature and intention of the Act.
26. The provisions of s 24(2)(b) of the Act require that the applicant, at the relevant time, satisfy the following requirements:
(a)He not be engaged in remunerative work;
(b)That he be under the age of 65 years;
(c)That he has “… been genuinely seeking to engage in remunerative work …”.
The Tribunal is satisfied that Mr Bridges meets the first two of these requirements. It was put to the Tribunal that, although he did not actively seek work, he also meets the requirement indicated at paragraph 26(c) above, based on the evidence provided and in particular that of Dr Kay in Exhibit A2.
27. In Exhibit A2, Dr Kay was asked documented questions by the applicant’s advocate and responded as follows, in regard to this aspect:
· “4. Whether his [Mr Bridges] PTSD prevents him from actively seeking work;”
“I am of the opinion that Mr Bridges’ PTSD prevents him from seeking alternative [to FESA type] work”.
·“5. Whether his PTSD is a substantial reason why he is unable to engage in remunerative work and/or actively seek remunerative work;”
“I am of the opinion that Mr Bridges PTSD is the substantial reason why he is unable to engage in remunerative work or seek alternative work”.
·“6. Your opinion as to why Mr Bridges PTSD is such that it prevents him from either working or actively seeking work.”
“Mr Bridges suffers unstable sleep patterns, unpredictable tiredness, and impairment to memory and concentration. He suffers from effective lability, which is poor control of his emotions, in particular, irritability. He has unpredictable responses to stimuli that resemble his War Service.”
28. In giving his oral evidence, Mr Bridges was asked in part the following questions by the Tribunal and responded as shown:
Q.“You left FESA in October 2002. Have you attempted to seek any work since that time?”
A.“No I haven’t …”
Q.“Yes, just further answer the question ….”
A.“… I had a perfectly good job for 29 years, 30 years [FESA]. I could see no reason to leave that and seek employment elsewhere.”
Q.“… I hadn’t got the impression until your last statement that you were, on 17 October 2002, stopping work, full stop, and that you never wished to work again. Now, you’d better correct me if I’ve got the wrong impression …”
A.“That I didn’t want to work again? … Well, I – yeah … why would I want to seek work if I’m telling them [DVA] I can’t work. I left work because of my medical grounds …”
Q.“So correct me if I’m wrong – you decided that you were incapable of doing any form of work?”
A.“That’s correct, yes.”
Q.“Nothing [No work] at all?”
A.“No.”
29. The Tribunal in this regard particularly notes the opinion evidence given by Dr Kay (Exhibit A2 and also paragraph 27 above). It is the Tribunal’s opinion, taking into account the relevant Federal Court and Tribunal decisions cited, that the words “genuinely seeking …” do not mean that an applicant/veteran, to meet this requirement, only has to seek work if he is not unwell, or that he doesn’t have to do so if he believes it is probably a waste of time etc. The key word is “genuinely”, not just “seeking”, nor is it “actively” as used in Exhibit A2.
30. It was put to the Tribunal that it would indeed have been a waste of time for Mr Bridges to attempt to gain employment after leaving FESA. It is contended that he would not have been offered remunerative work had he done so, because no potential employer would have offered him work (of any sort) due to his war-caused disabilities and PTSD in particular. In the Tribunal’s opinion this may or may not be so and the evidence, despite the opinion of Dr Kay, is certainly not clear cut in this regard. However, the Tribunal again underlines that such untested unemployability of this kind does not satisfy the Act’s requirements of showing the applicant as genuinely seeking remunerative work. Furthermore, the Tribunal is strongly of the view, based on the evidence available and including that provided by the applicant himself, as indicated at paragraph 28 above, that he had no wish to continue remunerative work or intention to do so after ceasing in October 2002 at FESA. No amount of subsequent oral adjustment to his evidence convinces the Tribunal otherwise.
31. Based on the facts and conclusions as outlined, the Tribunal finds that at no time during the assessment period has the applicant genuinely been seeking to engage in remunerative work. This being a pre-requisite before the ameliorating provisions of s 24(2)(b) of the Act can be applied, the Tribunal is relevantly satisfied that it cannot be used by the applicant to enable his meeting the requirements of s 24(1)(c).
Summary of Tribunal Findings and Conclusions
32. Based on the reasons as outlined above, and having noted the content of all relevant cited cases, the Tribunal’s essential findings are as follows:
(a)Mr Bridges ceased work in October 2002 with FESA for reasons which included a non war-caused medical condition then of significance (arthritic knees).
(b)At that time and up until mid 2003 his PTSD condition accepted as being war-caused was not the substantial cause, in terms of the Act, of his inability to obtain remunerative work.
(c)As at mid 2003 approximately, and thence throughout the remainder of the assessment period, the substantial incapacity affecting his ability to obtain remunerative work was/is that resulting from his accepted war-caused conditions, and in particular PTSD.
(d)From the time of ceasing work with FESA and throughout the assessment period, Mr Bridges made no attempt, genuine or otherwise, in terms of the Act to seek remunerative work.
33. From the findings and reasons as summarised, the Tribunal is reasonably satisfied that the applicant does not meet the requirements of s 24 of the Act. He is therefore not entitled to pension at the Special Rate.
Decision
34. Pursuant to s 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal decides to affirm the VRB decision under review.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Brigadier R D F Lloyd, Member, Dr D Weerasooriya, Member and Brigadier A G Warner, Member
Signed: ......................(sgd D Brodie)..............................
AssociateDate/s of Hearing 18 October 2005
Date of Decision 20 December 2005
Solicitor for the Applicant Mr R Grayden, Hammond Worthington Solicitors
Advocate for the Respondent Mr C Ponnuthurai
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