Buhagiar and Repatriation Commission
[2007] AATA 1406
•6 June 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1406
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V200500221
VETERANS' AFFAIRS DIVISION ) Re MARIO CARMEL BUHAGIAR Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Regina Perton Date6 June 2007
PlaceMelbourne
Decision The Tribunal affirms the decision under review. (sgd) Regina Perton
Member
VETERANS’ AFFAIRS ‑ pension at Special Rate – whether war‑caused conditions alone cause of inability to work – decision affirmed
Veterans’ Entitlements Act 1986 ss 24(1), 24(2)
Banovich v Repatriation Commission (1986) 69 ALR 395
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 101 FCR 50Leane v Repatriation Commission (2004) 81 ALD 625
Repatriation Commission v Hendy (2002) 76 ALD 47
REASONS FOR DECISION
6 June 2007 Regina Perton 1. Mario Carmel Buhagiar, who is now 58 years old, served in the Royal Australian Navy (the navy) from 6 January 1965 to 5 January 1985. He undertook operational service in Vietnam from 22 April 1966 to 18 May 1966; 25 May 1966 to 11 June 1966; 17 January 1968 to 16 February 1968 and 27 March 1968 to 26 April 1968. He undertook eligible service from 7 December 1972 to 5 January 1985. Mr Buhagiar is receiving a disability pension payable at 100 per cent of the General Rate. Mr Buhagiar is seeking a Special Rate pension. This is a higher rate of pension, paid to a working-age recipient who is unable to work due to his war-caused disabilities alone.
2. After his navy service, Mr Buhagiar worked in a variety of positions, mainly in the management of stores and logistics-related areas, between 1985 and 2000. He resigned from several of these positions due to conflict with management. After being sacked from his last job in October 2000, he applied for and was paid workers’ compensation payments, for injuries to his neck and arms, until 2 May 2001. Except for a few hours, he has not worked since.
3. Mr Buhagiar suffers from a variety of medical conditions. The Repatriation Commission (the Commission) accepted several conditions as war-caused disabilities, namely lumbar spondylosis, sensorineural hearing loss right ear, sensorineural hearing loss left ear, bilateral tinnitus, chronic solar skin damage, ischaemic heart disease and atherosclerotic peripheral vascular disease affecting both legs. The Commission did not accept that the Mr Buhagiar’s remaining conditions as war‑caused disabilities, namely anxiety disorder and alcohol abuse, hypertension, tobacco use disorder and breathing difficulty.
4. Mr Buhagiar applied for increases in his rate of disability pension on 29 October 2003 and 12 February 2004. The Veterans’ Review Board (VRB) decided on 7 February 2005 that Mr Buhagiar should continue on a disability pension at 100% of the General Rate. He lodged an application for review of the VRB decision with the Tribunal on 15 March 2005.
5. The issues before the Tribunal are whether Mr Buhagiar’s inability to work is due to his accepted war‑caused disabilities alone; and whether he is therefore eligible for pension at the Special Rate.
EVIDENCE
Mr Buhagiar’s work history
6. Mr Buhagiar, who was born in Malta and migrated with his family to Australia as a child, joined the navy straight from school when he was 16 years old. He had achieved the rank of warrant officer by the end of his 20 years in the navy. In the navy his work involved logistics in stores areas. He then had about 15 years of civilian employment. Mr Buhagiar cited some 15 to17 positions he had occupied. His positions included inventory controller, warehouse manager, distribution manager, spare parts/warehouse manager, warehouse supervisor, driver, factory manager and other related positions. The industries involved were varied including bathroom products, timber products, footwear and engineering. Mr Buhagiar also operated a car detailing business in the mid-1990s. He resigned or was sacked from a number of his jobs because of conflict with management or other employees. He last worked in 2000 as a storeman/driver for the canteen facility at HMAS Cerberus. After being sacked, he made a Workcover claim for injuries to his shoulder and arms sustained while pushing a trolley loaded with soft drinks. He remained on workers compensation payments until early May 2001.
Mr Buhagiar’s medical conditions
7. There was no disagreement between the parties as to the medical conditions from which Mr Buhagiar suffered. The Tribunal was presented with many medical reports describing his health status at various points of time, some of which are recounted below. None of the doctors was called to give oral evidence.
8. In a report dated 28 February 2001, Dr Colin Seabridge, consultant psychiatrist, described a pattern of heavy drinking and anxiety. He classified Mr Buhagiar’s conditions as anxiety disorder not otherwise specified and substance abuse – alcohol.
9. In a report dated 1 December 2001, Dr Vito Spina, who had been Mr Buhagiar’s general practitioner since May 1995, stated that his patient’s current disabilities included anxiety disorder, substance abuse disorder, degenerative disease lumbosacral spine, hypertension, gout, bilateral very mild sensorineural loss and hyperlipidaemia.
10. In a report dated 28 January 2004, Dr Seabridge stated that Mr Buhagiar had seen him 13 times in the previous two years. He stated that Mr Buhagiar’s heavy alcohol intake combined with gambling and other disturbed behaviour had resulted in a separation from his wife some time earlier. Dr Seabridge stated that in October 2003, Mr Buhagiar had revealed that as a child, he had been sexually abused by a scout master affiliated with his local church. Dr Seabridge stated that while Mr Buhagiar had not received acknowledgement of responsibility from church authorities, he obtained considerable relief from closure of something he had kept repressed for much of his life. As a consequence, Mr Buhagiar had managed to have a sustained period without drinking and now drank only occasionally. He and his wife had reconciled. Dr Seabridge could see no evidence of depressive or anxious mood. He stated that Mr Buhagiar was trying to become more active.
11. On 9 June 2004, Mr Buhagiar’s condition of atherosclerotic peripheral vascular disease affecting both legs was accepted as war-caused. However, this did not change his rate of pension.
12. Dr Lester Walton, consultant psychiatrist, provided a report dated 10 October 2005. He had examined Mr Buhagiar on 8 April 2002 and again on 13 September 2005. He stated that Mr Buhagiar had remained under the care of Dr Seabridge until November 2002. Dr Walton observed that Mr Buhagiar appeared relaxed and there certainly was no pathological mood disturbance. Dr Walton expressed the opinion that the anxiety disorder he had diagnosed previously appeared to have resolved. He also indicated that there is no longer a pattern of alcohol abuse or dependency.
13. Dr Seabridge, in a report dated 24 February 2006, provided a description of the changes he had observed in Mr Buhagiar since 2002. He stated that in July 2002 Mr Buhagiar had attended with his wife and the interview largely focused on excessive alcohol consumption. Mr Buhagiar was prescribed Naltrexone and a treatment program. Two weeks later, he was not drinking and feeling better. Two months later, he did not drink at all, had lost weight and his wife was pleased at the overall change of behaviour. However, things deteriorated towards the end of 2002 and early 2003. In January 2003, Mr Buhagiar had stopped taking Naltrexone and was drinking to excess. His wife left him for several months due to his unacceptable behaviour. Dr Seabridge saw him in March 2003 when things were still bad. Mr Buhagiar chose not to see Dr Seabridge again until October 2003. At that time, Mr Buhagiar was gambling heavily, drinking regularly and to excess, and his wife was leaving him. In late 2003, there was an improvement in Mr Buhagiar’s attitude. It was at a consultation on 29 October 2003 that Mr Buhagiar told Dr Seabridge about his childhood abuse. On 24 November 2003, Mr Buhagiar was abstinent, his wife had come back and he was more positive. Dr Seabridge’s clinical notes in early 2004 recorded Mr Buhagiar’s physical problems. Dr Seabridge stated that he had last reviewed Mr Buhagiar on 7 February 2006. He indicated that Mr Buhagiar had told him that he still drank but could now control his drinking, that he was no longer gambling, that his house was on the market and that he and his wife were planning to move to Queensland where they had bought land.
14. Dr Seabridge said that he agreed with the report of Dr Walton dated 10 October 2005 that Mr Buhagiar no longer demonstrates any symptoms of anxiety or depressive disorder nor of alcohol abuse. Dr Seabridge said that he could not confidently state why that had happened and speculated on the possible reasons for his improvement. He indicated that Mr Buhagiar did not appear to fulfil the diagnostic criteria for any psychiatric disorder since late 2003. He noted that on 6 October 2003, Mr Buhagiar had told him that he was pursuing his veteran’s claims on a physical basis only since ischaemic heart disease had been accepted as war‑caused. Dr Seabridge concluded by stating:
In my opinion, it would appear that the shift of focus in the nature of his claim has resulted in a complementary symptom change, which is not in any way to imply that this is consciously determined or that his previous psychiatric symptomatology was not genuinely experienced at the time.
15. In a report dated 16 March 2006, Dr Warren A. Kemp, consultant rheumatologist, indicated that he had undertaken a second medical examination of Mr Buhagiar. He stated that on examination, Mr Buhagiar did not appear anxious, tense or depressed. Dr Kemp stated that Mr Buhagiar’s physical condition had deteriorated but that his nervous anxiety had improved considerably with treatment of a long-standing problem since childhood. Dr Kemp stated that Mr Buhagiar had reduced his dependence upon alcohol ingestion but that he still suffers from insomnia.
16. In his oral evidence, Mr Buhagiar stated that he still suffers from angina and that the level of chest pain had increased in recent years. He still suffers from pain in his legs and does not exert himself. He said that his back condition had also worsened. Mr Buhagiar said that he now drank very little alcohol. He confirmed that he no longer suffered from anxiety and believed that dealing with the child abuse issue had been the catalyst.
What prevents Mr Buhagiar from working?
17. The reasons for Mr Buhagiar’s inability to work and his reasons for giving up work have varied depending on the time and the context.
18. AXA Australia paid $73,896.19 to Mr Buhagiar on 28 February 2002 on his policy on account of total and permanent disablement. The evidence upon which AXA determined that Mr Buhagiar was eligible to be paid included reports from Doctors Seabridge and Spina and a statutory declaration by Mr Buhagiar .
19. On 24 July 2001, Dr Seabridge responded to a request from AXA giving the opinion that Mr Buhagiar was not …capable of working in a structured and formal work setting, now or in the future. Dr Seabridge stated in his letter that on 29 January 2001, Mr Buhagiar had told him:
…that he had not worked for over three months, that he was unable to resume work, and he believed he would never work again. He advised me that some three years earlier he had seen a psychiatrist as a result of a stress-related Workcover claim. He told me that in the 15 or more years since he left the navy, he had some 17 jobs and that he had been dismissed on occasions for “defensive hostility” and that he had lost a job recently for hostile behaviour and abusive language.
20. In a letter to AXA dated 1 December 2001, Dr Vito Spina stated:
….
It is my opinion that the greatest limiting factor to this patient returning to work is his anxiety disorder and substance abuse disorder. His back condition would restrict his ability to work but no [sic] impair him completely. The other medical conditions do not restrict his ability to work.
I do not believe he is currently fit or will be fit in the future to attempt any work because of his anxiety disorder and substance abuse disorder. I believe he has minimal prospects of rehabilitation. I believe response to treatment so far has been poor and I feel he is minimally motivated to improve.
21. In a report dated 8 January 2002, prepared at AXA’s request, Dr Victor Botvinik, consultant psychiatrist, provided a history that is consistent with those prepared by the other medical practitioners. Dr Botvinik diagnosed Mr Buhagiar as suffering from chronic anxiety disorder, alcohol dependence and significant personality changes with a low frustration tolerance. He concluded that Mr Buhagiar…is definitely not fit to perform any pre-injury duties and he is not fit to work in any other suitable employment.
22. On 15 February 2002, Mr Buhagiar signed a statutory declaration seeking a payout of the AXA policy. The declaration contains the following clause:
I have no intention of returning to the workforce either as an Employee or Selfemployed and wish to apply for the release of benefits in respect of the above numbered policy/ies on the grounds of early retirement due to Permanent Ill Health.
23. In an application for a service pension signed on 10 May 2000, Mr Buhagiar and his doctors described both physical and psychological reasons for his ceasing work. In a claim form lodged with the Department of Veterans’ Affairs (DVA) in May 2000, Mr Buhagiar stated that he had stopped work in May 2000 due to illness. He stated that the disabilities that were affecting his employment included stress, back pains, hearing, the psychological approach to things. His doctor, Dr Spina, confirmed that Mr Buhagiar’s ability to work had been reduced by his back condition and PTSD but at that time was of the view that Mr Buhagiar could continue to work full time as long as it did not involve repeated bending or lifting and if he was not in a management role. Mr Buhagiar ‘s claim that the anxiety disorder and alcohol abuse was war-caused was rejected by the Commission. The VRB affirmed the refusal on 30 August 2001.
24. In a DVA form seeking Invalidity Details completed on 15 August 2002, Mr Buhagiar stated that he was prevented from working due to anxiety disorder, alcohol abuse, hypertension and lumbar spondylosis. Dr Spina concurred.
25. In his claim for an increase in disability pension lodged on 6 May 2003, Mr Buhagiar stated that he had stopped working in May 2000 due to illness. In a Lifestyle Questionnaire completed on 2 June 2003 in relation to the claim, Mr Buhagiar stated that he had problems walking because he ran out of breath, his wife had left him, and he no longer had a driver’s licence and had difficulty using all forms of transport. He stated that he was no longer able to do gardening or house repairs and had professionals do such tasks for him. He stated that his disabilities stopped him from working due to his physical limitations. Mr Buhagiar indicated that he was always weak and out of breath.
26. In an Employment Questionnaire, completed on 2 July 2003 at the Commission’s request, Mr Buhagiar stated that he ceased employment on 5 May 2000. He indicated that his usual employment, since 1985, had been as a storeman. He stated that he was not experienced in any other kind of work. He stated that he was prevented from being employed because of his accepted war‑caused disability of lumbar spondylosis and shortness of breath following heart surgery.
27. Dr Paul Grinwald, consultant physician, provided a report dated 14 July 2003. Dr Grinwald indicated that Mr Buhagiar’s lumbar spondylosis rendered him unfit for work involving prolonged sitting, standing or walking, repeated bending or turning movements of the trunk or repeated lifting of heavy weights. His hearing loss resulted in him having difficulty understanding conversation in a noisy environment. His solar skin damage meant that he should not work outdoors without protective clothing and creams. Dr Grinwald believed that after successful surgery, Mr Buhagiar’s ischaemic heart disease did not stop him from working. He stated that Mr Buhagiar’s conditions of tobacco-use disorder, hypertension, alcohol abuse and general anxiety should not reduce his employability. Dr Grinwald stated that Mr Buhagiar had been diagnosed with obstructive sleep apnoea and that this condition would interfere with his ability to carry out work requiring good concentration. Dr Grinwald believed that Mr Buhagiar’s war-caused conditions would allow him to work between 8 and 20 hours per week having regard to his education, vocational skills and experience.
28. In a letter dated 1 October 2003, Dr Spina was of the opinion that Mr Buhagiar was not capable of working more than 8 hours a week as a result of his ischaemic heart disease and lumbar spondylosis alone.
29. In his application to the Commission dated 27 October 2003, Mr Buhagiar stated that his accepted war-caused ischaemic heart disease and lumbar spondylosis had deteriorated and that he felt short of breath, chest pains and general physical weakness. He stated that he was unable to walk far. He indicated that he could not lift anything as a result of his lumbar spondylosis.
30. In a report dated 28 January 2004, Dr Seabridge stated that Mr Buhagiar had attempted some light work such as mowing a neighbour’s lawn or helping a friend with renovations but could only sustain two or three hours of light work before having to stop. This was despite the improvements in Mr Buhagiar’s psychological state at that time and his anxiety and substance abuse no longer being in evidence. Dr Seabridge stated that from the psychological point of view, Mr Buhagiar could be regarded as capable of employment, although he was totally precluded from this by his cardiac state.
31. In a report dated 13 December 2004, Dr Kemp stated that Mr Buhagiar had stopped work in 2000 due to the combination of his physical and nervous symptoms. He noted Dr Seabridge’s report dated 28 January 2004, stating that Mr Buhagiar’s psychological symptoms no longer precluded him from working. Dr Kemp stated that in his opinion, Mr Buhagiar …has severe incapacity from his accepted conditions alone. Dr Kemp stated that Mr Buhagiar’s ischaemic heart disease which, despite surgery still caused him chest pain and breathlessness, his lumbar spondylosis and the atherosclerotic vascular disease affecting both legs rendered him unfit for eight or more hours of work per week.
32. Dr Grinwald examined Mr Buhagiar on 13 September 2005 and provided a further report dated 21 September 2005. He noted a change in the nature of Mr Buhagiar’s condition in that some conditions had been successfully treated or no longer existed including sleep apnoea, alcohol abuse and anxiety disorder. Dr Grinwald stated that Mr Buhagiar is prevented from undertaking any remunerative work for more than eight hours per week principally because of ischaemic heart disease, peripheral vascular disease and lumbar spondylosis. He indicated that there are no other medical conditions which prevent him from working for more than 8 or 20 hours per week.
33. Dr Walton, in his report dated 10 October 2005 cited above, stated that Mr Buhagiar was no longer prevented from undertaking more than 20 hours of work per week on psychiatric grounds. He expressed the view that there were other factors preventing Mr Buhagiar from working but that it was outside his area of expertise to comment on those factors.
34. Dr Grinwald, in a report dated 17 November 2005, indicated that he had read medical reports concerning the treatment Mr Buhagiar had received for his obstructive sleep apnoea. He determined that this condition would now not prevent him from undertaking work for more than 8 hours or 20 hours per week.
35. Dr Kemp, in his report dated 16 March 2006, concluded :
Mr Buhagiar stated to me that he is unable to carry out any physical labour due to low back pain and shortness of breath, sometimes with associated chest pain. This was the reason that he stopped work in 2000, due to his accepted conditions alone.
In my opinion he is unfit to work eight hours or more each week due to the accepted lumbar spondylosis, ischaemic heart disease and atherosclerotic peripheral vascular disease affecting both legs and his other conditions do not constitute any significant disability for work.
36. Dr Walton, in a report dated 12 April 2006, concluded that Dr Botvinik’s observations of 8 January 2002 were out of date given the improvements documented in Mr Buhagiar’s psychological state. He concurred with Dr Seabridge’s analysis that psychiatric conditions were no longer the cause of Mr Buhagiar’s inability to work.
Is Mr Buhagiar still looking for work?
37. Mr Buhagiar provided a letter from Williams and Burns Contracting of Archies Creek dated 13 May 2004. The letterhead indicates that the business undertakes air-conditioning mechanical services. The text of the letter stated:
Thank you for your recent enquiry regarding work at our company. You do have some skills which would be of benefit to our organization. Unfortunately at this point in time we are unable to offer you a position. However we have placed your details on file and should a vacancy become available we will contact you.
38. In his oral evidence Mr Buhagiar stated that he had not had any further contact with the contractor. He said that the company was located a few kilometres from his home and he canvassed them for work.
39. Mr Buhagiar provided a letter from Mr David Mildenhall of Grantville dated 30 April 2004, in which Mr Mildenhall stated:
I employed Mario Buhagiar as a handyman for some renovation work on a bungalow on my property in Grantville.
He attempted this work on two occasions, but was not able to continue because of exhaustion and back pain.
Even though he limited his hours and only worked two days per week for 2 – 3 hours, he was unable to cope and had to ring his wife to pick him up.
He always required assistance and was unable to complete most tasks.
Accordingly, I thought it was best that he did not continue.
40. Asked how he had obtained the position with Mr Mildenhall, Mr Buhagiar stated that Mr Mildenhall was a limousine driver who sometimes took Mr Buhagiar to his specialist appointments. Mr Buhagiar said that both Mr Mildenhall and his wife were working and needed some painting done so he had offered to help him out without pay. He conceded that he was not able to do the work despite having done much painting in the past. He could not even climb the ladder.
41. Asked by his counsel about his efforts to find work in the area surrounding the small town in which he lived, Mr Buhagiar said that he had wanted an easy job. He had considered sending out resumes and letters but did not do so, as he did not know how to list his disabilities. He said that he did not get any offers of work based on his approaches. He said that he had called into a couple of businesses in Archies Creek, including that of Mr Williams, hoping they might have required some cleaning or something similar. No one had anything available. Mr Buhagiar said that local people knew that he had been able to do renovations and had asked him to do work for them for cash in hand. However, he had been unable to do this due to his back and other pain. He said that he had started two jobs, one in Grantville and one in Tenby Point, but had not finished either. He was not sure exactly when he had started them, but thought they were probably after his heart surgery. He provided no evidence as to who he did the work for, or when.
42. Mr Buhagiar said that he and his wife had now moved to Queensland. He said that he was not working, nor has he looked for work there given his health. He stated that there was a high demand for workers where he is now living, particularly in the building and similar trades, but unfortunately his health prevented him from taking up any opportunity.
43. Under cross-examination Mr Buhagiar said that the painting and odd jobs he had referred to were not declared to DVA or other authorities. He conceded that he was aware of the need to provide details of any income. He said that he had not done so as he thought the amount earned was insignificant. He also stated that the odd jobs he did were not consistent enough for him to make a declaration.
Other evidence
44. Mr Buhagiar provided a statement dated 16 March 2006 concerning the sequence of events in reporting child abuse to the Catholic Church. He stated that he needed to face that issue that had been repressed for so long after his mother’s funeral in August 2003. He described the compassion he received from all he dealt with in relation to the issue and the spiritual strength he had obtained as a result. He also expressed the view that his reconciliation with his wife was another outcome of revealing his experiences to church representatives and Dr Seabridge. A copy of a letter sent by a Catholic Bishop to Mr Buhagiar dated 21 November 2003 was tendered in evidence. It expresses the sadness of the Bishop and that he will keep Mr Buhagiar in his prayers and offer a Mass for his healing.
45. Mr Buhagiar’s wife gave evidence to the Tribunal. She described the circumstances that led to their temporary separation, of which Mr Buhagiar’s drinking played a large part. She said that her husband was a changed man after he dealt with the child abuse issue. She said that her husband had been a home handyman but was no longer able to be so. She said that he gets frustrated by his inability to help with building their new house, or helping others with renovations.
46. Mr Bradley Dunne gave evidence by telephone. He indicated that he now lived in Queensland and had left the navy. In 2000, he was a leading seaman based at HMAS Cerberus. He said that he met Mr Buhagiar in 2000 through Mr Buhagiar’s son, Shane, who was also in the navy. They met socially at Mr Buhagiar’s home rather than professionally. He did not see Mr Buhagiar in the workplace but was aware that he had a sore back. He expressed surprise that Mr Buhagiar could be described as belligerent.
CONSIDERATION OF THE ISSUES
47. Section 24 of the Veterans’ Entitlements Act 1986 (the Act) makes provision for payment at rates higher than 100 per cent of the General Rate of pension:
24(1) This section applies to a veteran if:
…
(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…
(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…
(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.
…
48. Mr Buhagiar receives a pension at 100 per cent of the General Rate. There is abundant medical evidence from general medical practitioners and specialists that Mr Buhagiar is now unable to work for more than eight hours per week due to his accepted war-caused conditions. The Tribunal finds that Mr Buhagiar meets sections 24(1)(a) and s 24(1)(b) of the Act.
49. While there is no dispute between the parties that Mr Buhagiar meets sections 24(1)(a) and s 24(1)(b) of the Act, there is disagreement in relation to s 24(1)(c).
50. In Flentjar v Repatriation Commission (1997) 48 ALD 1, Branson J set out the issues posed by s 24(1)(c) in a series of questions:
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?
51. In answering question 1, the Tribunal finds that the remunerative work undertaken by Mr Buhagiar through most of his working life was both physical and management work. It was primarily in stores and logistics with varying degrees of strenuousness. He has undertaken some handyman work but little of this was paid work.
52. In answering question 2, the Tribunal accepts the medical evidence that Mr Buhagiar is prevented from working due to his accepted war-caused disabilities including ischaemic heart disease, lumbar spondylosis and atherosclerotic peripheral vascular disease affecting both legs. The reasons why he originally stopped work are numerous and include psychiatric and behavioural issues not accepted as war-caused disabilities, which no longer affect Mr Buhagiar. However, as set out in Banovich v Repatriation Commission (1986) 69 ALR 395 and other pertinent cases, the Tribunal needs to consider the situation when the application for Special Rate was made, rather than only considering the situation at the time the person actually stopped working. So the answer to question 2 is yes.
53. In answering question 3, Mr Buhagiar now asserts that it is his war-caused conditions alone that prevent him from working. However, in the six plus years since Mr Buhagiar stopped working, there have been other medical conditions he and his doctors have cited as disabilities which prevented him from working. These included alcohol abuse, anxiety disorder, sleep apnoea and other conditions. Fortunately, his psychiatric conditions and alcohol abuse are no longer conditions from which he appears to be suffering.
54. The Tribunal notes that in Repatriation Commission v Hendy (2002) 76 ALD 47, the Full Federal Court said (at para 37):
…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. So long as the Tribunal performs this exercise, the conclusions drawn from the assignment of the relative impact the various factors on the ability of the veteran to continue in remunerative work is not reviewable, except in exceptional circumstances. Moreover, having considered any or all of the factors which may have contributed to a veteran's incapacity, the Tribunal is then required to determine whether it is the veteran's war-caused injury or war‑caused disease, or both, alone which prevent the veteran from continuing to undertake remunerative
55. In Forbes v Repatriation Commission (2000) 101 FCR 50, Nicholson J stated (at para 40)
… it is possible that the war-caused condition will be 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 the qualification for the special rate pension. …
56. Mr Buhagiar has a chequered work history, involving disputes with management and relatively short periods with most employers. It is now more than six years since he was employed and he is nearing retirement age. Mr Buhagiar received a substantial payout from AXA Insurance in February 2002. He stated in a statutory declaration before receipt of the payout that he had no intention to returning to the workforce.
57. The Tribunal is not satisfied that the war-caused conditions are the only factor preventing Mr Buhagiar from working in the fields in which he had previously. Therefore, the answer to question 3 in Flentjar is no. Question 4 is therefore irrelevant.
58. There is no evidence of anything but a cursory attempt to obtain work as a handyman or cleaner since Mr Buhagiar made his claims. Mr Buhagiar himself admitted that the amount of work he had undertaken as a handyman was too insignificant to even declare to authorities. Mr Buhagiar produced two documents concerning attempts at obtaining work, but one was a letter of rejection in 2004 as the result of calling into a small business and the other letter described an unsuccessful attempt to do a favour for a person he knew.
59. In Leane v Repatriation Commission (2004)81 ALD 625, the Full Federal Court considered s 24(2)(b) in relation to whether a person is genuinely seeking work. The applicant in that case, like Mr Buhagiar, was prevented by his war-caused disabilities from working more than eight hours per week. The Court stated:
27. The policy of s 24(2)(b) of the Act was explained in the speech on the second reading of the Bill for the insertion of that provision (see per Sackville J in Repatriation Commission v Sheehy (1995) 133 ALR 654 at 660-661). In that speech the relevant Minister made the point that ‘special provision is made by the bill to cover veterans who are under 65 years of age, are unemployed, and are genuinely seeking to engage in remunerative work.’
28 The primary judge interpreted the word ‘seeking’ to mean ‘attempting to’ or ‘trying to’. This may be accepted. Such a meaning involves something more than a mere wish or hope. It requires that a claimant ‘do’ something. On the other hand the word ‘genuinely’ is used in the sense of ‘sincerely’ or ‘honestly’. It involves an assessment of the subjective intention or purpose of a claimant. What is required is that the claimant honestly be trying to engage in remunerative work.
….
37 We remind ourselves that the ‘satisfaction’ required in s 24(2)(b) of the Entitlements Act is the satisfaction of the Tribunal, not of this Court. Nevertheless, it seems to us that the limited evidence before the Tribunal was so inadequate that it was not capable of satisfying the Tribunal that the Veteran was genuinely seeking to engage in remunerative employment. This is not to suggest that there was any onus cast upon the Veteran – merely that the material before the Tribunal was not capable of satisfying it of matters upon which it had to be satisfied if it was to determine that the Veteran was entitled to a pension at the special rate.
60. The Tribunal is not satisfied from the evidence before it that Mr Buhagiar has been genuinely attempting to obtain work. Therefore, the Tribunal is not satisfied that Mr Buhagiar is able to access the ameliorative provisions of s 24(2)(b) to obtain a Special Rate pension
61. The Tribunal finds that Mr Buhagiar does not meet the very onerous requirements of s 24(1)(c) of the Act. He is therefore not entitled to the Special Rate of pension.
DECISION
62. The Tribunal affirms the decision under review.
I certify that the sixty-two (62) preceding paragraphs are a true copy of the reasons for the decision of:
Regina Perton, Member
(sgd) Dianne Eva
Clerk
Date of hearing: 13 October 2006
Date of decision: 6 June 2007
Counsel for applicant: Mr C. Thompson
Solicitor for applicant: Mr Peter J Liefman
Counsel for respondent: Mr K. RudgeSolicitor for respondent: Advocacy Section, Department of Veterans’ Affairs
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