Conway and Repatriation Commission
[2002] AATA 1201
•22 November 2002
DECISION AND REASONS FOR DECISION [2002] AATA 1201
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q1999/113
VETERANS' APPEALS DIVISION )
Re RONALD CONWAY
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr IR Way, Member
Date22 November 2002
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
(Sgd) IR Way
Member
CATCHWORDS
VETERANS' AFFAIRS – pension – entitlement – whether applicant's pension has been correctly assessed – whether applicant entitled to pension at the special rate
Veterans' Entitlements Act 1986 ss 24, 28, 120(4)
Repatriation Commission v Smith (1987) 74 ALR 537
Banovich v Repatriation Commission (1986) 69 ALR 395
Magill v Repatriation Commission [2002] FCA 744
Chambers v Repatriation Commission (1995) 129 ALR 219
Hall v Repatriation Commission (1994) 33 ALD 454
Re Hornery and Repatriation Commission (1998) 52 ALD 317
Re Campain and Repatriation Commission [1999] AATA 829
Cavill v Repatriation Commission (1988) 9 AAR 539
REASONS FOR DECISION
22 November 2002 Mr IR Way, Member
This is an application by Ronald Conway (the applicant) for review of that part of a decision of the Repatriation Commission (the respondent) dated 8 January 1998 which assessed the applicant's pension at 70% of the General Rate with effect from 16 March 1997.
The Veterans' Review Board (VRB), on review, on 5 October 1998 affirmed the respondent's assessment of 70%.
The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T6) and other documentary evidence as follows:
Exhibit A1 Statement of Ronald Conway dated 15 September 2000
Exhibit A2 Statement of Joy Balderson (undated)
Exhibit R1 Clinical notes of Dr B Harvey
Mr G Mylne of Cass Legal Group, Lawyers, appeared for the applicant and Mr J Stoner, Departmental Advocate, represented the respondent. The applicant and Joy Balderson, the applicant's sister, gave oral evidence.
The issue before the Tribunal is whether the applicant's disability pension is correctly assessed at 70% of the General Rate and in particular whether the applicant's pension should be assessed at the Special Rate.
The applicant was born on 20 November 1947 and lodged his claim for disability pension and medical treatment on 16 June 1997 at which time he was 49 years old.
The applicant served in the Royal Australian Air Force from 28 May 1966 to 29 May 1978. He rendered operational service in Vietnam from 4 March 1969 to 4 December 1969 and defence service from 7 December 1972 to 29 May 1978.
This matter is contested by the applicant on the basis of his operational service only and the Tribunal has accepted that this course of action is appropriate.
The applicant's service-related accepted disabilities are:
Bilateral sensori-neural hearing loss
Gastro-oesophageal reflux disease
Psychoactive substance abuse or dependence
Post Traumatic Stress Disorder
The applicant's non-service related disability is Psoriasis. Both parties stated that the application before the Tribunal was not in respect of the respondent's refusal to accept this condition as service related. There being no objection from the applicant, the Tribunal accepts the respondent's submission that the decision to refuse the applicant's claim for psoriasis should be affirmed.
10.The standard of proof applicable in this matter is provided for in subsection 120(4) of the Veterans' Entitlements Act 1986 and pursuant to the section the matter is to be decided by the Tribunal to its reasonable satisfaction or, in other words, on the balance of probabilities (see Repatriation Commission v Smith (1987) 74 ALR 537).
The assessment period in this matter is from 16 June 1997, the date of the applicant's claim, to the present date (the relevant period).
Legislative FrameworkThe legislative framework in respect of special rate of pension is relevantly provided in the Act as follows:
"24 Special rate of pension
(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a)either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran 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 reasons; 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.
…
28 Capacity to undertake remunerative work
In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:(a)the vocational, trade and professional skills, qualifications and experience of the veteran;
(b)the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c)the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to I paragraph (b)."
Applicant's Evidence
The applicant served for twelve years in the RAAF as an armament fitter working mainly on bombers. On leaving the RAAF the applicant obtained a maintenance fitter's ticket which he said was of little assistance in obtaining civilian employment as he had no qualifications or experience in turning. He said he had tried unsuccessfully to get airport jobs as a maintenance fitter.
It was the applicant's evidence that he worked from 1978 to 1980 as a self-employed oyster farmer in a working partnership with Mr Harrison, using twelve leases on the Tweed River which he and Mr Harrison had worked on a weekend basis during their service in the RAAF. He ceased this employment when the leases were wiped out by pollution and he received a $3,000 payout from Mr Harrison.
15.He then worked as a real estate salesman, on commission, from 1981 to 1983, leaving this job because he was not successful enough and lost all his money. During this period, in 1982, his wife left him with four young children in his care and he went on to supporting parent's pension. He said at this time he was suffering from severe depression and it was his evidence that he finally split up with his wife in 1985 at which time the family home was sold.
16.In 1983 he managed a Sports and Leisure Centre but this business closed because of competition.
17.He then became an insurance representative for MLC, trained in life, death and general insurance, but could not adapt to cold canvassing and only lasted twelve months when he moved back into the seafood industry. In 1984 he went back on supporting parent's pension, still with four children in his care, aged 6 to 17 years.
He then had a succession of seafood-related jobs in different companies all located in the same building. Initially, from 1985 to 1987, he was a general hand and then leading hand in a prawn crumb room where he had control of approximately forty staff and thought he did quite well; when this business was sold he worked for a smoked products company as factory manager from 1988 to 1990. He said he had problems with the management in this job and, when the business was eventually sold, he had a period of unemployment before taking up a job from 1990 to 1991 as production manager for a seafood company where he said he had problems with the owner. When the business went into liquidation he moved, after three to four months of unemployment, to a similar job (1991 to 1992), where he had relationship problems and he was retrenched when the company went into liquidation.
During 1993 to 1995 he had to resort again to supporting parent's pension. It was the applicant's evidence that he looked for local employment during 1992 to 1993 and would have taken any job if he could have found one.
In 1995 he commenced a Queensland CES sponsored TAFE aquaculture course at Grafton (NSW) (freshwater fish), but after five months his funding was stopped because it was considered there were no aquaculture employment opportunities in Queensland.
21.In December 1995 his sole parent pension was cancelled and he then received newstart allowance during which time he applied for a number of jobs but was not successful in gaining employment. He said he fulfilled his newstart obligations and would have taken any paying job not being fussy about the type of employment he would undertake.
During this period he and a friend (Mr Elliott, whom he knew from the local RSL) tried to start a cleaning business but by May 1996 they were not succeeding financially and gave away persevering with this business. He said that Mr Elliott already had a house/doctor's surgery cleaning operation and he came to the business on a loose word of mouth arrangement, providing labour, cleaning equipment and a car to be shared in the business, expecting to receive half of any profits. He said they were unsuccessful in obtaining large cleaning contracts despite applications; that he had personality clashes with Mr Elliott; and he felt he was doing more than his fair half share of the work.
It was the applicant's evidence that he applied for a service pension from the Department of Veterans' Affairs in February 1996 but did not pursue the claim at this time. The Tribunal notes that the Department has no record of this claim being lodged. The Tribunal also notes that there is a record (Exhibit R1), of the applicant seeing his local GP at Currumbin on 26 February 1996 where the doctor notes a referral to Dr Jensen, psychiatrist, for anxiety and depression (and that this referral would appear, on the limited record available, to be related to the applicant's service in Vietnam). The Tribunal was informed subsequently that when the applicant sought to make an appointment with Dr Jensen, the doctor informed him that he no longer dealt with veterans' matters.
The applicant said he continued on the dole until his condition was such that he had to get help and on advice he saw the Currumbin/Palm Beach RSL Advocate and following this saw his GP and submitted his claim for disability pension. It was at this time that he was first diagnosed as suffering from Post Traumatic Stress Disorder (PTSD).
In his written statement dated 15 September 2000 (Exhibit A1) the applicant sets out the efforts he undertook to seek employment.
26.Putting aside his unsuccessful ventures into a cleaning business and aquaculture, the applicant stated that he was last employed in 1992 as a production manager with Queensland Coastal Seafoods Pty Ltd where he had a number of relationship problems which he thought were a result of his lack of self-esteem, alcohol abuse and PTSD. He also thought these personal problems caused his marital breakdown.
27.In Exhibit A1 the applicant sets out the types of employment he sought. In his oral evidence the applicant said that he would have sought some of the jobs after the cleaning venture, some before, and that he was not sure how many of his applications were through the CES, possibly more than six.
28.It was the applicant's evidence that he last applied for a job in May 1997 which was a CES referral for a fitter's job with K & J Radiators, but after interview he was unsuccessful. He said he had difficulties at the interview, being not well, and that he had not looked for work since then, partly because the pension he was on did not allow him to work more than eight hours per week.
The applicant told the Tribunal that he was assisted by his sister and a niece in the preparation of a work resumé which he could use to support applications for employment and that he also used the resumé for cold canvassing for jobs amongst his RSL friends. The Tribunal notes that many of the employments listed in Exhibit A1 are connected with RSL friends and family friends and that in most cases the applicant was not successful in getting an interview or an answer to his resumé. Apart from using the CES and personal approaches he said he also sought employment through newspapers and advertisements in the Yellow Pages.
Evidence of Joy Balderson
Mrs Joy Balderson, the applicant's sister, provided a written statement (Exhibit A2) and gave oral evidence.
In her oral evidence Mrs Balderson confirmed that she had assisted her brother in preparing a resumé to help him seek employment in the mid-1990s and she thought some twenty to thirty copies had been printed, some of which had been posted and some hand-delivered to industrial areas.
32.She said she thought that her brother was very ill, both physically and mentally and not as well-motivated to seek work as he had been previously. She was unclear as to when she first noticed this change as she had been living overseas on and off for many years during the 1970s in South Africa and during the 1990s in Canada, often with periods of three months back and forth between Australia and overseas. Despite this, she said she had ample opportunity to observe her brother on many occasions including when he was based at Amberley and when he moved to the Gold Coast in the late 1980s and subsequently.
33.She said she noticed that her brother got progressively worse to the point where, in her view, he had a serious nervous problem, smoked and drank excessively, lacked conversation and was suicidal. In her written statement she said she remembered January 1995 as a time when her brother's behaviour was such that she spoke to him about his drinking and subsequent behaviour and tried to get him to see a doctor. She said it was not until January 1996 that he eventually went to see Dr Shinn, then Dr Hawney and then sought help from the Veterans' Affairs at Currumbin.
34.With respect to seeking employment following the collapse of his cleaning venture, Mrs Balderson said in her written statement:
"….In January 96 he eventually went to see Dr. Shinn who prescribed Valium.
The cleaning business continued but John, because of personal reasons, dissolved the partnership. Ron tried to do some of the jobs himself but he was not capable due to his health plus, by now, he found it difficult to converse with anyone. Usually a one-word answer to a question would suffice.
I decided to help him write a Resume to try to obtain work where he would have some steady income.
He applied for many jobs but without success. He then scored an interview with K & J Radiators. A second interview was forthcoming and he was elated, as he was sure he had the job. I was worried about him working with machinery, as his nervous state was so apparent and his headaches continual. He was to hear from K & J in about two weeks. During this time he hardly left the phone. His behaviour was very concerning. He could not sit still, smoked continually and lived in hope of the phone call. I bought him new clothes, as he was concerned he had to dress correctly.
The phone call never came and once again he sank into the depths of despair. At this time he was behind in his rent. I tried to explain to Ken he had a nervous condition. Ken could not understand why he didn't get work. I explained he had trouble even speaking at an interview. Ken dropped his rent by $10 per week but under the condition he mowed his ¼ + acre law weekly in return. Ron did this even though he was suffering from a back condition and still suffering severe headaches.
Five days before Xmas 97 Ken's house that Ron was renting was trashed by Ron's eldest son. Ron was not there at the time. Ken evicted Ron from the home four days before Xmas. The following year Ken engaged a Solicitor to recoup any money owing in back rent. As a result Ron is paying Ken fortnightly out of his pension until the debt is paid.
Ron is now living in the garage of his daughter's home. He has been there almost 12 months.
Four weeks after the disappointment of not getting the job, I encouraged him to see Dr Shinn again. Dr Shinn was away so he saw Dr Hawney. They have been our family Drs. for many years. Dr Hawney immediately prescribed medication and said he was unfit for work. His nervous system was so bad Dr Hawney said he was never to work again.
He then sought help from Veterans Affairs, Currumbin and during this time he was assessed by Drs. and Psychiatrists. He is permanently on medication for PTSD and as a result of the medication he has been able to give up smoking and is having success in controlling his dependency on alcohol. …"
Medical Evidence
Dr Hawney, the applicant's local GP in 1997, in a medical impairment assessment for a psychiatric condition provided to the Department of Veterans' Affairs in June 1997, expressed the opinion that the applicant suffered from anxiety, depression, alcohol/drug abuse and insomnia. That his condition impaired his social life completely; and that he was "unable to work". The Tribunal notes that Dr Hawney's clinical notes (Exhibit R1) record a consultation with the applicant on 18 November 1997 where the doctor records:
"1. Psyche happy … should hear from Repat this week
…3 Forms for super – unlikely to work again."
Dr Hawney referred the applicant to Dr Chittenden specialist in psychological medicine, with respect to his psychiatric condition.
Dr Chittenden, first saw the applicant on 31 July 1997 and provided a report dated 4 August 1997 to Dr Hawney (Exhibit R1). In that report Dr Chittenden diagnosed:
"Post Traumatic Stress Disorder.
? Alcoholism.
Marital and family discord."
and gave a prognosis:
"Chronic Post Traumatic Stress Disorder, but he is motivated to improve his lifestyle. Will need prolonged psychological follow-up with medication."
Dr J Boulnois, specialist psychiatrist, saw the applicant on 7 August 1997 (on referral from the Department of Veterans' Affairs) and provided a report dated 12 August 1997 (T4/20-22). In that report Dr Boulnois stated:
"Mr Conway receives no specific benefit at this time from the DVA, he last worked full-time in 1992 (with seafood) and has been on Sickness benefit since the 10th June, 1997 diagnosed as suffering from Post Traumatic Stress Disorder by his family doctor.
… (Mr Conway has only recently come into psychiatric care, and therefore to all intents and purposes attending myself was a 'nearly novel' experience)."
and in summary said:
"It would appear on the basis of the clinical evidence that Mr Conway is currently in the midst of a clinical symptom complex known as PTSD (Post Traumatic Stress Disorder), classified in DSM IV 309.81. I would … commend a review of this man's clinical status in about a years time after therapy has been well established."
Dr Chittenden provided a further report to the Department of Veterans' Affairs dated 17 December 1997. In that report Dr Chittenden noted that she had seen the applicant six times in the second half of 1997. She expressed the opinion that the applicant gives a clear history of continuing emotional difficulties and distress since his service in Vietnam. She diagnosed:
"DIAGNOSIS:
1.Post Traumatic Stress Disorder. DSM IV 309.81. With anxiety and depressive symptoms. Chronic.
2. Substance Abuse. DSM IV 305.00. (Alcohol).
SUMMARY:
Mr Conway has had severe symptoms of psychological illness over a long period of time, dating from his service in Vietnam. He is now on treatment and is improving.TREATMENT:
Antidepressant medication, Moclobemide.
Supervised by Psychiatrist, Dr J M Chittenden.
Regular psychological counselling from Psychologist.PROGNOSIS AND RECOMMENDATIONS:
It is unlikely Mr Conway will be able to take up remunerative regular work in the future. His psychological state will improve up to a point, but not sufficiently for other than a very restricted lifestyle. He will probably require longterm counselling and medication. He will be prone to recurrent depressive episodes when he will need medication and possibly hospitalisation. I would recommend a full pension for this man, whose symptoms are entirely attributable to his war service."
The Tribunal notes that Dr Chittenden reported the applicant was sent home three months early from his tour of duty in Vietnam because of a nervous breakdown and his inability to cope emotionally.
SubmissionsMr Stoner for the respondent, conceded that at all material times the applicant satisfied section 24(1)(a) of the Act.
With respect to section 24(1)(b) it was submitted that the applicant, pursuant to section 28(a) has experience and skills to undertake unskilled work as a labourer, semi-skilled work as a fitter, supervisory/managerial work, cleaning work and oyster farming. As such, pursuant to section 28(b) the respondent contended that a broad view should be taken and on this basis there was a wide range of kinds of remunerative work which the applicant might reasonably undertake. (In this regard the Tribunal was referred to the approach taken by the Full Federal Court in Chambers v Repatriation Commission (1995) 129 ALR 219 at 213).
With respect to the effects of the applicant's accepted disabilities it was submitted that the applicant clearly was not troubled by hearing loss in the proceedings before the Tribunal and that nothing had been put to the Tribunal about any difficulties that might arise from his reflux disease.
In so far as PTSD and psycho-active substance abuse or dependence, it was contended that while these conditions can have an effect on the kinds of work a person could do, such conditions do not necessarily inhibit people from undertaking work. In this case it was submitted that the evidence before the Tribunal was such that it could not be said that the applicant's disabilities prevented him from working if he was so motivated and that the applicant did not meet the criteria of section 24(1)(b).
With respect to section 24(1)(c) it was submitted that unameliorated, this section could not be satisfied by the applicant because at the time of application Mr Conway had been out of the workforce for five years; that he ceased his last employment because of the closure of a company which he last worked for (in 1992); that he had attended to family concerns and responsibilities subsequent to ceasing work; that he had only briefly and inconclusively attempted to return to work; and that he had ceased to actively pursue work because he went on to receive a service pension with a limitation on the time he could work. In summary he had effectively given work away by choice and it would be impossible to conclude that it was because of his accepted disabilities alone that he was prevented from working.
With respect to the ameliorating provisions of section 24(2)(b) it was submitted that on all of the evidence before the Tribunal it could not be said that there were objective signs of the applicant actively pursuing work, rather that he had ordered his life to maximise the pension he was receiving, not to get back to work. The respondent referred the Tribunal to Hall v Repatriation Commission (1994) 33 ALD 454 where his Honour Justice Spender held:
"(iv) The question of whether a veteran had been 'genuinely seeking to engage in remunerative work, [and] that he or she would, but for that incapacity, be continuing to so seek…' in s 24(2), had to be addressed in a realistic way, having regard to the nature and extent of the incapacity. Many veterans were permanently incapacitated by war-caused injury or disease for any form of remunerative work, and the requirement that such persons should be genuinely seeking work seemed to involve something of a charade. While it might be that H was advised to pursue his attempts at seeking employment through the CES, by advice which focused on any realistic prospect that such work might be obtained, the report by the CES did not seem to cast doubt on H's willingness to accept work if any might be found for him. For those reasons, H's appeal against the tribunal's decision, not to increase his pension rate, should be allowed."
The respondent submitted that the circumstances in this case were different to those in Hall. In particular the respondent contended that in Hall there had been indicia of a genuine attempt to seek work through the CES, supported by a report from the CES, and that following the remarks about addressing the question in a realistic way having regard to the nature and extent of incapacity, his Honour was not intending his remarks about "a charade" to have universal application.
The respondent in submitting that there has to be some objective indicia of active pursuit of work, not just a bare contention, referred the Tribunal to the matter of Re Hornery and Repatriation Commission (1998) 52 ALD 317 where in respect of the need for objective signs of active pursuit of work the Tribunal said (at 331-2):
"The wording of the provision … requires that the tribunal must be satisfied that Mr Hornery 'has been genuinely seeking to engage in remunerative work'. The Tribunal agrees with Deputy President McMahon in Re Bonner and Repatriation Commission (1989) 17 ALD 680 as reported at 681 that 'the use of the word 'genuinely' in the paragraph indicated the necessity for some objective signs of active pursuit of remunerative work. Mr Hornery's active pursuit of remunerative work ceased in 1986 when he was granted invalid pension.
…
Section 24(2)(b) refers to a veteran who 'has been genuinely seeking to engage in remunerative work' and in the tribunal's view, this being a special provision to ameliorate s 24(1)(c) in so far as its effect is that the alone test there does not apply, it was intended to apply where the veteran's genuine and active pursuit of work, that is, his or her efforts to obtain work were brought to an end by incapacity from war-caused injury or disease. By saying that, the tribunal does not mean to say that incapacity from war-caused disease or war-caused injury must have supervened at such time as the veteran was seeking on a daily or weekly basis to find work but in the tribunal's view it must supervene at such a time as the veteran can properly be said to have been genuinely seeking to find remunerative work, with there being 'some objective signs of active pursuit of remunerative work': Re Bonner, above."
It was submitted in this case that there were no objective indicia of an active pursuit of work and that after 1997, when the applicant received the service pension, he ceased the pursuit of work and ordered his life so as to maximise his pension. As such it was submitted the applicant did not satisfy section 24(1)(c) or section 24(2)(b) of the Act and therefore the decision under review should be affirmed.
Mr Mylne, for the applicant, submitted that the medical evidence clearly indicated that the applicant had been diagnosed in August 1997 as suffering from PTSD and as a result it was unlikely that the applicant could work again. It was submitted that following the Tribunal's decision in Re Campain and Repatriation Commission [1999] AATA 829, the applicant could rely on Dr Hawney's clinical notes where on 18 November 1997 he expressed the view in relation to forms for superannuation "unlikely to work again". This contention was further supported by Dr Chittenden who expressed the view that the applicant had suffered severe symptoms of a psychiatric nature from the time he served in Vietnam. In Campain, the Tribunal stated:
"28. …we are satisfied that the applicant in [sic] totally unfit for any type of work. It is true that, once armed with a medical certificate that he was "incapable of working eight hours per week in any remunerative employment due to his post traumatic stress disorder", the applicant sat on his hands and did nothing. The question: is it a statutory requirement that he must go through the hollow motion of actively seeking work which he is clearly unfit to perform?…
33. …applied to this case, the question whether the applicant has been "genuinely seeking to engage in remunerative work, [and] that he or she would, but for that incapacity, be continuing to so seek…" must be addressed in a realistic way, having regard to the nature and extent of the incapacity; cf Hall v Repatriation Commission (1994) 33 ALD 454. Applied to this case, to insist that this applicant pay some kind of lip service to a statutory requirement on a finding that he had no residual capacity for any kind of work after he left his cleaning job with Berkeley, goes beyond what we believe Parliament intended."
With respect to the applicant satisfying the criteria in section 24(1)(b), that is whether the applicant's war-caused incapacity, alone, renders the applicant incapable of undertaking remunerative work, Mr Mylne submitted that the applicant was not capable of carrying out managerial work, supervisory work or work as a foreman in charge of other people because of his PTSD and alcohol problem. Furthermore it was submitted that the applicant could not successfully perform unskilled work, such as cleaning, because of his feeling of being powerless and depressed, and therefore taking all things into account, it is probably correct that the applicant satisfies the criteria of section 24(1)(b).
Furthermore, it was submitted that with respect to section 24(1)(c) and the ameliorating provisions of section 24(2)(b) of the Act, the applicant was genuinely seeking work and would have taken up any work but was unsuccessful in obtaining work. It was contended that the applicant had successfully engaged in work as a manager which he though was worthwhile work, however, over time his illness became worse and his aspirations diminished to the point where he would have taken on any sort of work. Mr Mylne submitted that the applicant had demonstrated that he was genuinely seeking work but despite being prepared to do any kind of work he had been unsuccessful in gaining employment.
Mr Mylne contended that the applicant clearly satisfies section 24(2)(b) in that he was genuinely seeking work and his war-caused disabilities were the substantial cause of his inability to obtain remunerative work. With respect to the applicant receiving a service pension in 1997 on the grounds of incapacity and ceasing to look for work after that, Mr Mylne drew the Tribunal's attention to what his Honour Justice Spender said in Hall about the requirement for permanently incapacitated veterans to seek work being "something of a charade".
In summary, Mr Mylne contended that the applicant has had significant difficulties of a psychiatric nature since his service in Vietnam, that he has coped extraordinarily well to get to this stage, but unfortunately he has now fallen over. It was submitted that Mr Conway meets the ameliorating provisions of section 24(2)(b) of the Act, thereby satisfying section 24(1)(c) and he should be paid pension at the Special Rate.
Consideration
55.In considering special rate of pension his Honour Justice Burchett in Cavill v Repatriation Commission (1988) 9 AAR 539 stated:
"To distract the Tribunal from its true task – to make a practical decision whether the veteran's loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon any philosophical distinctions, but with an eye to reality, and as a matter in respect of which commonsense is the proper guide"
56.With respect, the Tribunal adopts this approach in consideration of this matter.
57.It is common ground in this matter that the veteran satisfies subsection 24(1)(a) of the Act and, on the material before it, the Tribunal so finds.
58.With respect to subsection 24(1)(b) and section 28 of the Act, on the material before it, the Tribunal is satisfied that the applicant has a trade qualification as a maintenance fitter and has work experience, apart from his RAAF service, as a armament fitter, as a salesperson, a manager of a store, factory or supplier, a general and leading hand in the seafood industry, home cleaning and oyster farming. The Tribunal is satisfied that it is this type of work that needs to be considered in determining the degree to which the applicant's war-caused impairments reduce his capacity to work (see Banovich v Repatriation Commission (1986) 69 ALR 395 at 402).
59.The Tribunal has also noted the respondent's submissions in regard to subsection 24(1)(b), where in Chambers the Court said (at 231):
"The authorities strongly support the view that a narrow approach is not to be taken to the construction of either s 28(a) or s 28(b)."
60.The Tribunal is mindful that Dr Chittenden, a specialist in psychological medicine, has taken a full history of the applicant's occupation history, has diagnosed the applicant as suffering from PTSD and substance abuse, and provided a prognosis in her written report of 17 December 1997 that it is unlikely that the applicant would be able to take up regular remunerative work in future.
61.After careful consideration of the material before it, and the submissions of both parties, the Tribunal accepts that Dr Chittenden has assessed the applicant within the kinds of remunerative work as already described in paragraph 58 above and the Tribunal accepts Dr Chittenden's assessment that it is unlikely that the applicant will be able to take up remunerative work in the future. In so doing the Tribunal has taken into account all of the other medical opinions that are consistent with this assessment.
62.On balance, the Tribunal finds that the applicant satisfies subsection 24(1)(b) of the Act.
63.Turning then to the critical issue in this matter, that is, whether the applicant satisfies the criteria in subsection 24(1)(c).
64.In the matter of Magill v Repatriation Commission [2002] FCA 744, the Federal Court recently addressed the approach that must be taken in the application of the provisions of section 24(1)(c) of the Act. A summary of what his Honour Justice Drummond said is set out below.
Section 24(1)(c) consists of two limbs, each of which must be satisfied. The first limb of the subsection provides:
"The veteran is, by reasons 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…"
This must be read with subsection 24(2)(b).
The facts in respect of a particular veteran may be such that this first limb is clearly satisfied. However, there may be circumstances where a veteran's war-caused incapacity, while not being the sole cause of his inability to obtain work, nevertheless is the substantial cause and subsection 24(2)(b) provides for these circumstances. It is an ameliorating provision which sets out criteria which, if satisfied, allows a veteran to meet the alone criteria of subsection 24(1)(c).
In summary, subsection 24(2)(b) allows a veteran to meet the alone test if the veteran has been genuinely seeking to engage in remunerative work, that the veteran, but for his war-caused incapacity would be continuing to seek to engage in remunerative work, and the veteran's war-caused incapacity is the substantial cause of his inability to obtain remunerative work in which to engage.
The second limb of subsection 24(1)(c) which must also be satisfied, requires the veteran to suffer a loss of salary or wages or earnings that the veteran would not be suffering if he were free of his war-caused incapacity.
The loss referred to in this section may be caused by a loss of existing employment or by an inability to obtain employment.
This second limb must be considered with subsection 24(2)(a). This subsection, that is subsection 24(2)(a), narrows the second limb in that a veteran will not satisfy that limb if, though suffering a loss of wages, salary or earnings that may be causally related to the veteran's war-caused injury or disease, there are other reasons that are also causally related to the veteran having ceased to engage in work or related to the veteran being prevented from engaging in work.
With respect to section 24(1)(c) in its unameliorated form, the Tribunal accepts the respondent's submission that the applicant does not satisfy the section in its full rigour. The Tribunal has arrived at this view principally because of the applicant ceasing work in 1992 because the company he worked for closed and being out of the workforce for five years at the time of application and as such he can not satisfy the "alone test". Furthermore, the Tribunal notes that the applicant's submission only seeks to bring the applicant within the provisions of section 24(1)(c) through the ameliorating section 24(2)(b).
Turning then to the ameliorating provisions of section 24(2)(b), the Tribunal is mindful that the evidence before it points to the applicant's war-caused PTSD being a significant factor in his inability to obtain work. Before considering whether the applicant's PTSD is the operative and predominate factor in the applicant's inability to obtain work the Tribunal is of the view that it is convenient in the first instance to address the question as to whether the applicant was genuinely seeking work.
In Re Hornery, as indicated above, the Tribunal said (at 332) that the word genuinely indicates the need for some objective signs of active pursuit of remunerative work and furthermore there needs to be consideration of whether or not the applicant's efforts to obtain work were brought to an end by incapacity from war-caused injury or disease.
It is within the context of the authorities set out above, that the Tribunal has carefully considered all of the material before it and the submissions of both parties and has formed the view that at the relevant time the applicant was not genuinely seeking to engage in remunerative work that he would, but for that incapacity, be continuing to seek to engage in remunerative work.
In arriving at this view the Tribunal has taken into account that when the applicant ceased work he initially went onto sole parent benefit for three years and only commenced newstart allowance when he was no longer qualified for sole parent benefit because of the age of his daughter. And that subsequently the majority of his efforts to obtain work could not be seen objectively to be an active pursuit of work. The Tribunal has accepted the respondent's submission that the applicant only made brief and inconclusive attempts to return to work and that at the time of his application for pension on 16 June 1997 he had been out of the workforce for five years, was in receipt of pension from the Department of Veterans' Affairs and had in effect "given work away".
Accordingly the Tribunal is reasonably satisfied that the applicant does not satisfy the requirements of section 24(2)(b) of the Act.
It follows from the above findings that the Tribunal is reasonably satisfied that the applicant does not satisfy section 24(1)(c) of the Act and therefore pension is not payable at the Special Rate. The Tribunal affirms the decision under review.
I certify that the 77 preceding paragraphs are a true copy of the reasons for the decision herein of Mr IR Way, Member
Signed: ............................................................................
S Oliver, AssociateDates of Hearing 24 July 2002 and 27 September 2002
Date of Decision 22 November 2002
Solicitor for the Applicant Mr G Mylne, Cass Legal Group
Solicitor for the Respondent Mr J Stoner, Departmental Advocate
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