Clarke and Repatriation Commission
[2005] AATA 524
•6 June 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 524
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/604
VETERANS' APPEALS DIVISION )
Re CHARLES CLARKE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr R G Kenny, Member Date6 June 2005
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ..........[Sgd].........
R G Kenny
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – special rate of pension – incapacity from war-caused conditions sufficient to prevent veteran from undertaking remunerative work for more than 8 hours per week - veteran not prevented by reason of incapacity from war-caused conditions, alone or substantially, from continuing to undertake remunerative work that he was undertaking – veteran not suffering a loss of salary or wages, or of earnings on his own account, that he would not be suffering if he were free of incapacity from war-caused conditions - pension payable at 100% of the general rate – decision affirmed
Veterans’ Entitlements Act 1986 ss 5Q, 14, 19, 22, 23, 24, 28
Repatriation Commission v Hendy (2002) 76 ALD 47
Flentjar v Repatriation Commission (1997) 26 AAR 93; (1997) 48 ALD 1
Repatriation Commission v Alexander (2003) 75 ALD 329Fox v Repatriation Commission (1997) 45 ALD 317
Leane v Repatriation Commission [2004] FCAFC 83; (2004) 81 ALD 625REASONS FOR DECISION
6 June 2005 Mr RG Kenny, Member Background
1. On 4 July 2003, Charles Clarke (the applicant) lodged a claim for acceptance of liability for hearing loss and depressive disorder in accordance with section 14 of the Veterans’ Entitlements Act 1986 (the Act). On 9 October 2003, a delegate of the Repatriation Commission (the respondent) determined that those conditions were causally related to Mr Clarke’s service in the Australian army and that pension for associated incapacity was payable to him from and including 4 April 2003. The delegate assessed the degree of Mr Clarke’s incapacity from all of his service-related conditions at 100%. He then determined that, in accordance with section 22 of the Act, pension was payable to Mr Clarke at 100% of the general rate and that it was not payable at an earnings-related rate under sections 23 or 24 of the Act.
2. On 30 March 2004, the decision of the respondent was affirmed by the Veterans’ Review Board and, on 30 July 2004, Mr Clarke sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).
3. Mr Clarke attended the hearing and was represented by Mr J Harper of counsel. The respondent was represented by Mr B Williams. In evidence were the documents (the T documents) prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975; statements, dated 12 October 2004 and 1 December 2004, by the applicant; documentation relating to attempts by the applicant to obtain employment; a medical report, dated 2 August 2004, by orthopaedic surgeon Dr Peter Winstanley; a medical report, dated 29 August 2004, by psychiatrist Dr Robert Athey; and a medical report, completed on 2 June 1999, shortly before Mr Clarke was discharged from the army.
Issues and Legislation
4. The standard of proof applicable in this matter is set out in subsection 120(4) of the Act. It requires that matters be determined to the decision-maker’s reasonable satisfaction. The procedure to be followed is set out in section 19 of the Act. Paragraph 19(5C)(a) thereof requires the rate of pension to be determined during the assessment period and that term is defined in subsection 19(9) of the Act as meaning the period starting on the application day and ending when the claim or application is determined. The application day in this case was 4 July 2003 and the assessment period runs from that day until the matter is determined by the Tribunal. Mr Clarke was born on 6 July 1951 and, on the application day, was 51 years of age.
5. It is not disputed that the general rate of pension payable to Mr Clarke was correctly assessed by the respondent at 100%. This was in relation to his accepted disabilities of osteoarthrosis of his knees and ankles, lumbar spondylosis, deviated nasal septum, hearing loss and depression. The issue raised by Mr Clarke is whether he meets the criteria for payment of an earnings-related rate of pension under section 23 or section 24 of the Act. These relate, respectively, to the intermediate rate and special rate of pension. Mr Harper submitted that the special rate of pension was payable in this case.
6. The matters that need to be determined in relation to the special rate of pension are whether or not Mr Clarke meets the requirements of paragraphs 24(1)(a), (b) and (c) of the Act. These read:
“24(1) This section applies to a veteran if:
(a) …..
(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; ..”
Evidence
7. Oral evidence was heard in this matter from both the applicant and his wife, Mrs Robyn Clarke.
8. Prior to his army service, Mr Clarke worked as a panel beater and had conducted his own panel beating business. He was in the army from June 1978 until 4 July 1999 and served within Australia. During that time, he was posted to an air dispatch squadron where he undertook parachuting exercises which caused him to suffer injuries to his knees and ankles. This resulted in his having to undergo knee surgery in 1998 and the incapacity associated with his condition prevented him from being able to undertake the army’s basic fitness tests (BFTs) or combat fitness tests (CFTs). The former required him to complete a 2.4 kilometre run in a specified time-frame as well as various physical exercises such as sit-ups and push-ups. The CFT involved those exercises as well as a route-march while fitted with full equipment pack.
9. Mr Clarke said that, usually, all personnel had to complete these BFTs and CFTs in order to maintain the prescribed level of fitness required by serving soldiers. After his knee operation, he was off duty recuperating for some five months and had not been required to complete the fitness tests. He said that a soldier who was not able to demonstrate fitness by completing the tests would be served with an administrative warning and then, if there were a further failure to complete the tests, the soldier would be discharged on medical grounds. While he had not received any such administrative warning, he believed he would have eventually been warned if he had not been able to complete the tests after his period of recuperation.
10. Mr Clarke and his family moved from Canberra, where he had been based, to Brisbane in January 1998. In part, this was due to health problems suffered by his wife who had been injured in a work-related accident in May 1995. Because of his wife’s condition, Mr Clarke was given a special category in the army which enabled him to take time off to provide her with assistance. He described this category as “family special needs”. This enabled him to go home during the day and assist his wife in matters associated with her condition such as administering morphine injections. The move to Brisbane had been recommended because of the warmer climatic conditions which would be suitable to his wife’s recovery. After moving to Brisbane, Mr Clarke was based at Wacol where he lived in the married quarters and served for a period of eighteen months before he resigned from the army.
11. Whilst at Wacol, Mr Clarke worked as a training development officer and was responsible for monitoring training programs offered by the army. He had previously done this in Canberra and his role was to attend training courses, to assess their progress and to report on the effectiveness of the programs. This meant that it was not entirely a desk job but, rather, one where he was required to be working away from the office from time to time. He was capable with a computer and used this in his work and also in his previous role as a finance officer where he maintained financial records for a range of army projects. Mr Clarke said that, in 1998 and 1999 whilst in the Army, he had continuing trouble with his knees which would swell up after some four or five hours at work. He was not advised to give up work by any medical practitioners but felt that the time would come when he would not be able to maintain the standards and would be given an administrative warning.
12. In February 1999, while he was still serving, Mr Clarke and his wife purchased a property at Kandanga which is approximately 28 kilometres from Gympie. They have lived there since his discharge and he described it as being five acres in area with a few fruit trees growing on it. He said that he purchased it “as an investment”, to “tidy it up” and to “prepare for retirement”.
13. When leaving the army, Mr Clarke was offered re-settlement training and was given a range of options from which to choose. Although those options included clerical and computer work, he said that he already had these skills and opted to undertake training in areas where he had not previously been engaged. He took a course in plant operation and successfully qualified in the operation of heavy equipment such as bulldozers, front-end loaders, and bobcats. Mr Clarke said that he had not experienced great difficulty in operating the equipment because much of it was done by hand controls rather than by foot controls. He said that, after leaving the army, he had intended to obtain full-time employment in whatever field that he could and this included plant operation work. He said that he knew that he would not be able to carry out work as a panel beater because of changes in the modes of operation since he last worked in that field. After leaving the army, Mr Clarke became a carer for his wife and received the carer payment and carer allowance from Centrelink. He said that his role as a carer occupied him on a full-time basis.
14. Mr Clarke said that he had a fall in August 2001 and this made it difficult for him to carry out his duties as a carer for his wife and, at around that time, her condition also improved because she had undergone a successful program at the pain clinic at Royal Brisbane Hospital. For those reasons, he contacted Centrelink and the carer payment ceased in February 2002. He said there was a distinction between the carer payment and the carer allowance. It was the former of these which he surrendered although he continued to receive the carer allowance which was not means tested.
15. Mr Clarke said that, when the carer payment finished, he then received the disability support pension from Centrelink although he thought there may have been one or two week’s gap between the cessation of one and the commencement of the other payment. As part of Centrelink’s investigations in respect of the disability support pension, Mr Clarke was sent to Dr G Springhall, a medical practitioner with Health Services Australia (HSA) in Gympie. In his report, dated 9 May 2002, Dr Springhall described Mr Clarke’s usual employment as being that of a “panel beater” and a “soldier”. In his evidence, Mr Clarke said that he was not sure whether he had advised Dr Springhall that his soldiering involved his being employed in administrative or clerical work.
16. Mr Clarke said that, from 2001, he had registered with CHR Employment Agency (CHR). However, that organisation contacted him on only one occasion with available work and this was as a panel beater. He advised them that he was not able to undertake that work because he had not been engaged in that form of work for over twenty years. Mr Clarke said that he sought placement in the Commonwealth Rehabilitation Scheme through CRS Australia and, in that regard, had seen Jane Collings, a rehabilitation consultant. He said that he had not been accepted for rehabilitation purposes because of his physical limitations.
17. Mr Clarke’s re-settlement training on various forms of equipment lasted about three weeks. He said that he tried to get work based upon the training that he received. In that, he was unsuccessful. He said that he believed this was because he had no experience in working with plant equipment??? even though he had the qualifications to do so. He offered his services to the local shire council on a volunteer basis so that he could obtain experience but was advised that this was not acceptable to the council.
18. Mr Clarke said that, initially, he was provided with the names of potential employers by CHR and he would send off his resumè to them. All of these attempts to obtain work were unsuccessful. He also sent email messages to various employers based on web-site information about job vacancies. All of these had been rejected. When sending applications to addresses obtained from web-sites, he did not send a resumè to the employers in advance but waited until he was contacted. He then advised them of his history with the army and his age. He has been rejected for all positions and said that he was often told that the employer did not want “mature” people.
19. Mrs Clarke, in her evidence, said that she underwent a spinal fusion in May 1995 after a work-related injury and was bed-ridden for some five or six years. She said that she underwent a successful pain clinic at Royal Brisbane Hospital in 2000 which relieved her symptoms significantly. She said that Mr Clarke did much of the housekeeping work from 1995 onwards and was able to do this because of the special status he was given in the army. She confirmed that they arrived in Brisbane in January 1998. She said her husband still helps her with some household tasks but described herself as feeling much better than she was, although still a little unsteady on her feet. She said that she continues to take various medications including morphine in capsule form.
Submissions
20. Mr Harper submitted that the only remunerative work that was relevant in this matter was that which Mr Clarke undertook while serving in the army. He said there was no contention that the role as a carer constituted remunerative work for the purposes of the Act. Further, he submitted that Mr Clarke left the army only due to his disabilities because the effect of these was such that he believed that he would not be able to maintain the fitness levels required by the army and, as he was in an administrative position at the rank of warrant officer, he was aware that an administrative warning would eventually be given to him. Mr Harper acknowledged that, at the time, Mr Clarke provided assistance to his wife but submitted that the real reason for leaving the army was, in fact, the effect of his own disabilities.
21. Mr Harper submitted that Mr Clarke’s willingness to undertake a re-training program in plant operation indicated his desire to work and that it was reasonable for him not to undertake re-training in any form of clerical work because he already possessed the clerical and computer skills which would be imparted in such a program. He submitted that Mr Clarke wanted to get as wide a base of qualifications as he could. Mr Harper conceded that, after leaving the army, he was involved full-time in caring for Mrs Clarke. He also submitted that, after the carer payment ceased, there had been a period in 2003 when he actively sought work. Mr Harper submitted that the lack of success in gaining work had been due solely to his disabilities. Mr Harper referred to a further knee operation that Mr Clarke had undergone in the last twelve months and submitted that this had further reduced his capacity for employment.
22. In the alternative, Mr Harper submitted that the ameliorating terms of paragraph 24(2)(b) of the Act were applicable because Mr Clarke was under 65 years of age, had been genuinely seeking work and was unsuccessful because of his accepted disabilities.
23. For the respondent, Mr Williams said that there really was no evidence before the Tribunal which answered the requirements of paragraph 24(1)(b) of the Act and that, although Mr Clarke was now in receipt of disability support pension, the criteria for payment of that form of income support was not the same as that in section 24 of the Act. He submitted that the medical evidence did not demonstrate that it was Mr Clarke’s accepted disabilities which caused him to leave the army. He referred to the medical report completed shortly before his discharge in June 1999 and noted that, while it referred to osteoarthritis of the knees and also degenerative disease in the ankles, it did not describe him as being medically unfit. The report noted that he was restricted from having to undertake basic fitness and combat fitness assessments. Mr Williams submitted that this did not support the contention of Mr Clarke that his injuries were so bad that he needed to leave the army. He submitted that, because Mr Clarke had not received any administrative warning of the kind he described in his evidence as a precursor to being discharged on that ground, he chose to leave the army of his own free will. Mr Williams noted that, some months prior to taking his discharge, Mr Clarke had already purchased the property near Gympie. He also noted that he had been in a special category of family support which enabled him to take time off from work if necessary to assist his wife.
24. Another submission by Mr Williams was that the nature of the re-settlement training that Mr Clarke undertook was not consistent with the extent of the incapacity that Mr Clarke claimed he had at the time of his discharge. He submitted that plant operation was a physically demanding activity. Mr Williams also noted that Mr Clarke had not made attempts to obtain employment in the types of administrative fields in which he had been trained whilst in the army.
25. Mr Williams referred to an earlier decision of the Veterans’ Review Board in 2002 which rejected Mr Clarke’s claim for an earnings-related pension. At that stage, Mr Clarke had relied upon his role as a carer for his wife as being the remunerative work which he was required to surrender in February 2002 because of his deteriorating conditions. That argument was rejected on that occasion and Mr Williams noted that, since that time, Mr Clarke had abandoned this as a basis for obtaining the increased rate of pension and had relied upon his army service as being his last remunerative work. He also said there had been no attempts to obtain work prior to the hearing of the Veterans’ Review Board on that occasion and submitted that subsequent attempts to find work were not genuine. Rather, he submitted, they were precipitated by the need to demonstrate attempts to find work when previous arguments had failed. In any event, Mr Williams submitted that there was no evidence that subsequent failures to gain work had been due solely or even substantially to his disabilities.
Consideration
26. It is not disputed that Mr Clarke was in receipt of pension at more than 70% of the general rate at the commencement of the assessment period. Accordingly, I am satisfied that the requirements of paragraph 24(1)(a) of the Act are met.
27. Paragraph 24(1)(b) of the Act requires that the incapacity from Mr Clarke’s war-caused diseases be such that it, in itself alone, renders him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. In evidence was a report, dated 16 August 2003, from Dr Quentin Mungomery, psychiatrist, in which he addressed the criteria in paragraph 24(1)(b) of the Act. He wrote:
Based upon the severity of his psychiatric conditions alone related to his major depressive disorder Mr Clarke would be not anticipated to be able to work on either a full-time or part-time basis work more than 8 hours a week in a position that he is otherwise employable based upon his training and experience. [sic]
28. Also In evidence were reports prepared for the purposes of assessing Mr Clarke’s impairment under tables appropriate to the Safety, Rehabilitation and Compensation Act 1988. Dr Robert Athey, psychiatrist, reported on 29 August 2004 that Mr Clarke was severely depressed. He wrote that he “would not be able to perform the duties of his pre-injury employment on psychiatric grounds alone.” In a report, dated 2 August 2004, orthopaedic surgeon Dr Peter Winstanley described Mr Clarke as being incapacitated for work because of the orthopaedic problems associated with his left ankle. The assessment criteria for incapacity under that legislative scheme vary significantly from those under the Act and the reports of Dr Winstanley and Dr Athey do not assist in assessing Mr Clarke’s circumstances for the purposes of paragraph 24(1)(b) of the Act. The report of Dr Mungomery was the only one which considered the requirements under the Act and, on the basis of that evidence, I am satisfied that Mr Clarke meets the requirements of paragraph 24(1)(b) of the Act during the assessment period on the basis of the psychiatric incapacity associated with his accepted disability of depression.
29. The application of paragraph 24(1)(c) involves a consideration of what Mr Clarke would probably have done in the assessment period in the absence of his accepted disabilities: see Repatriation Commission v Hendy (2002) 76 ALD 47 at 54. As noted above, this period commenced on 4 July 2003. The matter will be resolved against Mr Clarke if there is a factor other than his accepted disabilities which also would have prevented him from continuing to undertake relevant remunerative work in the assessment period.
30. The Federal Court in Flentjar v Repatriation Commission (1997) 26 AAR 93; (1997) 48 ALD 1 said that a proper consideration of paragraph 24(1)(c) of the Act requires responses to the following 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?”
31. Consideration must also be given to paragraph 24(2)(a) of the Act which operates in conjunction with the fourth of those questions and paragraph 24(2)(b) of the Act which operates, in the case of a veteran under 65 years of age, in conjunction with the third of those questions.
32. The term remunerative work is broadly defined in subsection 5Q(1) of the Act as including any remunerative activity. I accept Mr Harper’s submission that the remunerative work in this matter, for the purposes of paragraph 24(1)(c) of the Act, comprises the various clerical and administrative functions performed by Mr Clarke while he was in the army. Although Mr Clarke completed a course in plant operation, he has not been employed in that capacity and, therefore, this does not constitute remunerative work for the purposes of that provision. It may well have had significance in considering paragraph 24(1)(b) of the Act because of the terms of section 28 thereof. However, section 28 does not apply to paragraph 24(1)(c) of the Act: see Fox v RepatriationCommission (1997) 45 ALD 317.
33. I also accept as correct the submission by Mr Harper, on the second of the Flentjar questions, that, in the assessment period, Mr Clarke’s accepted disabilities were such that, by then, they would have prevented him from continuing to undertake remunerative work. However, for the third Flentjar question which raises the first part of paragraph 24(1)(c) of the Act, it must also be the case that there is no other factor, apart from his accepted disabilities, which would impact upon Mr Clarke’s capacity to undertake such remunerative work at the start of or during the assessment period. Such a factor may be associated with a wide variety of considerations such as incapacity from a non-service-related medical condition, the effects of age, the impact of the length of time out of the workforce or removal to a locality distant from work opportunities. These, individually or in combination with each other or with accepted disabilities, may serve to prevent a person from continuing to undertake relevant remunerative work. In the event that they would have prevented Mr Clarke from doing so in the assessment period, section 24 would not be satisfied. In Repatriation Commission v Hendy (2002) 76 ALD 47, the Full Federal Court said:
“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.”
34. In Repatriation Commission v Alexander (2003) 75 ALD 329, 334 Spender J put the matter thus (at 334):
If the non-service related conditions were a factor in preventing Mr Alexander from continuing to undertake remunerative work, albeit those conditions were ’of secondary importance’, the ’alone’ requirement of s 24(1)(c) would not be satisfied.
35. At the commencement of the assessment period, Mr Clarke had been out of remunerative work for 4 years. He was living, some 28 kilometres from Gympie, with his wife on a rural property which he described in his evidence as having been purchased with a view to retirement. He was in receipt of the disability support pension which carries with it no obligation to find work. He was, by then, 52 years of age which, in itself, may not necessarily preclude employment. However, in this case, it was Mr Clarke’s evidence that subsequent attempts to obtain work were met with the response that his age was a reason given by potential employers for not engaging his services. Age was also a factor considered relevant to Mr Clarke’s employment prospects by Jane Collings, the rehabilitation consultant who saw Mr Clarke at CRS Australia and who prepared a report on 17 June 2003. I am satisfied that each of these factors played some role in Mr Clarke’s being no longer engaged in remunerative work in July 2003 and thereafter.
36. As I am satisfied that the incapacity associated with Mr Clarke’s war-caused disabilities was not the only factor which, in the assessment period, would have prevented him from continuing to be engaged in remunerative work of the kind that he undertook in the army, this means that the third question in Flentjar’s case is, at this stage of the analysis, answered in the negative. However, consideration must now be given to paragraph 24(2)(b) of the Act which operates, in the case of a veteran under 65 years of age, in conjunction with that question. It reads:
“(2) For the purpose of paragraph (1)(c):
(a) ……….
(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.”
37. As Mr Clarke is under the age of 65 years, it will be sufficient, to obtain an affirmative response to the third Flentjar question, if his war-caused disabilities are the substantial cause of his inability to obtain remunerative work. In Fox v RepatriationCommission (1997) 45 ALD 317, this was referred to as being met if the war-caused conditions would constitute the operative cause for that inability (at 319).
38. A pre-condition to the application of paragraph 24(2)(b) of the Act is that Mr Clarke must have been genuinely seeking to engage in remunerative work. In Leane v Repatriation Commission [2004] FCAFC 83; (2004) 81 ALD 625, the Full Federal Court referred to this requirement in the following way:
“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.”
39. Mr Clarke did not seek work in the period immediately after leaving the army because he was his wife’s carer. His evidence to the Veterans’ Review Board in November 2002 was that he had not sought work to that date and was in receipt, from the Department of Social Security, of the disability support pension which does not impose an obligation on him to look for work. Nevertheless, in 2003, he began to contact job agencies and employers. I have noted the submission of Mr Williams that the efforts by Mr Clarke to get work in 2003 were not genuine and merely constituted an attempt to give the appearance of complying with the terms of the Act. There may well be merit in that contention. Of course, the timing of the attempts to get work, coming as they did after that hearing, would not, in itself, mean that the attempts were not genuine. The attempts would need to be considered on their merits.
40. The material referred to by Mr Clarke in relation to his endeavours to find work included diary entries for the period from 27 February 2003 until 26 June 2003 which describe searches in his local newspaper and the Gympie Times. These included the frequent notation that there was “nothing suitable” for him. The diary also describes contact with a website and, again, the diary notation is to the effect that there was either “nothing suitable” or “no response received” in relation to particular requests. Mr Clarke also provided copies of email messages he had sent in attempts to get work. These read:
22 April 2003
“I’m looking for employment. I spent 22 years in the Army and I’m experienced in weapon handling although I do not have a civilian gun licence”
23 April 2003
“I have tickets for Bobcat, backhoe, bulldozer, forklift and excavator. Unfortunately I have had little experience using these machines. Do you have any job vacancies?”
23 April 2003
“I am a qualified panel beater. I have not been in the trade for quite some time as I was in the Army for 22 years. I was wondering if you have any positions vacant?”
41. Mr Clarke received no responses to these requests. Perhaps that is not surprising as, in each case, the letters suggest negative aspects of Mr Clarke’s capacity to undertake the forms of employment referred to. Those negative aspects do not include any reference to his accepted disabilities but, rather note the absence of a relevant licence, experience or recent involvement in a particular trade. Mr Clarke also provided copies of responses that he received in relation to four other applications for the positions of a personal assistant, an administrative assistant and a human resources assistant. These responses offered thanks to Mr Clarke for the application, described the high quality of the applicants who had responded, referred to the large number of applications and expressed regret that there was no position suited to him at that time. No reference is made here to any aspect of his physical incapacity.
42. In summary, in respect of the attempts described by Mr Clarke to get work, he did not follow up on a range of advertised positions because he felt unsuited to them; some of the requests he made brought no response; and others which were answered referred to the large number of high quality applicants and merely advised that Mr Clarke was not successful. Significantly, for the purposes of the Act, none of the employers made reference to Mr Clarke’s incapacity from accepted disabilities as being a disqualifying factor in his failure to obtain remunerative work. Accordingly, even if Mr Clarke can be described as a person who was genuinely seeking employment, there is no evidence that the incapacity from his accepted disabilities was substantially the reason or, indeed, any reason at all, for his lack of success in gaining employment.
43. I am reasonably satisfied that Mr Clarke’s defence-caused conditions were not the substantial cause of his inability to obtain remunerative work in which to engage in the assessment period. Accordingly, I am reasonably satisfied that the third of the Flentjar questions is answered in the negative.
44. The fourth question postulated in Flentjar’s case raises the second part of paragraph 24(1)(c) of the Act. This is whether Mr Clarke is, by reason of incapacity from his war-caused conditions, suffering a loss of salary or wages, or of earnings on his own account, that he would not be suffering if he were free of that incapacity. This must be read in conjunction with paragraph 24(2)(a) of the Act which reads:
“(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;”
45. The remunerative work in Mr Clarke’s case was that in which he engaged during his military service. The medical reports, particularly those prepared in June 1999, do not indicate that his lower limb problems were sufficient to force him out of the army at that time. While I note Mr Clarke’s evidence that plant operation is a task which relies to an extent on hand controls, I am also satisfied that engaging in that form of work would place significant physical demands upon him. Yet, he was clearly able to carry out this operation and to do so at a level which enabled him to become a qualified plant operator. Indeed, he indicated that he would be willing to undertake that sort of work for remuneration. This is supportive of a finding that his lower limb problems were not of a sufficient degree to bring his army career to an end. Mr Clarke was not advised by any medical practitioner to cease his army service and I am satisfied that his discharge was a voluntary one rather than one based on medical grounds. In a Lifestyle Questionnaire completed by him on 5 October 2001, he wrote that he retired from the army because of his concern about meeting medical standards but he also added that he did so in order to look after his wife. In an Employment Report completed by him on 27 November 2001, Mr Clarke was asked why he ceased work. His response was that he did so, in July 1999, to look after his wife. That was also his evidence to the Veterans’ Review Board in 2002. By July 1999, Mr Clarke had served for more than 20 years in the army and was in a position to access financial benefits. In a statement completed by him on 30 January 2003, he wrote:
“There were advantages in receiving a lump sum payment under the Military Superannuation Scheme to meet the domestic needs of my wife and to procure a home for us. This would not have been available if I was medically discharged.
The army knew that I was to care for my wife ’full- time’.”
46. In evidence, there are reports which describe the inability of Mr Clarke to return to his work and, in each case, the reports are based on an understanding that he was forced to leave the army because of his lower limb conditions. On 17 June 2003, Jane Collings, the rehabilitation consultant who saw Mr Clarke at CRS Australia, wrote:
“Given the complex nature of his medical problem, his age and the amount of medication he is on, I do not feel that Mr Clarke has any capacity to either obtain or sustain work at present. The variability of his symptoms from one day to another mean that even if he did find a suitable job there would be several days a week when he would be calling in sick and unable to perform the work.
Mr Clarke left the Army because he could no longer continue to work because of the injuries he sustained while serving in the Defence Force. In my Assessment interview Mr Clarke presented as being keen to find work but his disabilities preclude him from working at present & I cannot envisage any improvement in the future. Since the injuries were a direct result of his military service & he had to cease work because of those injuries, perhaps DVA could review his situation & application for a TPI Pension. I am therefore not accepting him for a CRS Vocational Rehabilitation program because I do not envisage any substantial gain emanating from a CRS program. At this stage I feel Mr Clarke has no capacity to work.”
47. Clearly, Ms Collings completed her report on the basis of her observations of and what she was told by Mr Clarke. In giving Mr Clarke’s employment history, she stated that he ceased work with the army because of the injuries he sustained while serving in the Defence Force and she recommended an earnings-related pension because of that. However, while there may have been some role played by his disabilities in his decision to leave the army, I am satisfied that this was not the reason for his doing so. Similarly, Dr Athey relied on a history given by Mr Clarke that he left the army because of his accepted disabilities. He wrote that Mr Clarke “was declared non-operational as a result of his left knee and was discharged from the army”. That does not reflect the evidence before the Tribunal. While he was excused from certain training operations, there was no declaration that Mr Clarke was non-operational..
48. At the time of his army discharge, Mr Clarke had already purchased a residence in a rural setting near Gympie where he and his wife have lived since he left the army. In his evidence, he said that he purchased that property “as an investment”, to “tidy it up” and to “prepare for retirement”. The obligation that he felt to care for his wife was the reason for his decision to leave the army in 1999. Indeed, this is what occupied Mr Clarke on a full-time basis for almost 3 years. I am satisfied that it was not Mr Clarke’s accepted disabilities which caused him to cease remunerative work. He ceased to engage in that work in order to care for his wife. In that situation, he did not suffer a loss of salary or wages because of the incapacity associated with his accepted disabilities. Accordingly, I am reasonably satisfied that the fourth question in Flentjaris answered in the negative.
49. I am satisfied that Mr Clarke does not meet the requirements for the payment of the special rate of pension because he fails to satisfy the terms of paragraph 24(1)(c) of the Act. Though the intermediate rate of pension, for which provision is made in section 23 of the Act, was not raised on his behalf in this case, I am also satisfied that the requirements for payment of pension at that rate are not met because of paragraph 23(1)(c) of the Act which operates in the same manner as paragraph 24(1)(c) thereof.
Decision
50. The Tribunal affirms the decision under review.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: Camille Banks
Associate
Dates of Hearing 29 April 2005
Date of Decision 6 June 2005
Counsel for the Applicant Mr J Harper
Solicitor for the Applicant Noel Woodall and Associates
For the Respondent Mr B Williams, Departmental Advocate
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