DAVID MARSHALL and REPATRIATION COMMISSION

[2009] AATA 751

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 751

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   2008/3453

VETERANS'      APPEALS        DIVISION		)
Re		DAVID MARSHALL

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Mr John Handley, Senior Member

Dr Roderick McRae, Member

Date30 September 2009

PlaceMelbourne

Decision The decision under review is affirmed.

(sgd) John Handley
  Senior Member

VETERANS' ENTITLEMENTS – Application for special rate pension – applicant retrenched in 1999 aged 51 – paid disability support pension from 2001 – claimed veterans' pension in 2007 – war-caused injuries alone did not prevent continuing to undertake remunerative work – applicant had not been genuinely seeking to engage in remunerative work – decision affirmed

Veterans’ Entitlements Act 1986 (Cth) s 24(1)(a) and s 24(1)(b), s 24(1)(c) and s 24(2)(a)(i) and s 24(2)(b)

Social Security Act 1991(Cth) s 94

Cavell v Repatriation Commission (1989) 9 AAR 534

Flentjar v Repatriation Commission [1997] FCA 1200 (10 October 1997)

Forbes v Repatriation Commission (2000) 58 ALD 401

Fox v Repatriation Commission (1997) 45 ALD 317

Leane v Repatriation Commission [2004] FCAFC 83

Repatriation Commission v Hendy [2002] FCAFC 424

REASONS FOR DECISION

30 September 2009 Mr John Handley, Senior Member
Dr Roderick McRae, Member       

1.      Mr Marshall (the applicant) is presently 61 years of age.  He was a Vietnam Veteran and a member of the Australian Army.  At 4 October 2007 he was receiving pension at 100 percent of the General Rate for the accepted conditions of Anxiety Disorder, Alcohol Dependence or Alcohol Abuse, Gastro Oesophageal Reflux Disease, Impotence and Bilateral Tinnitus.  His application seeks an award of Special Rate Pension.  The respondent rejected that application and the Veterans' Review Board (the VRB) affirmed that decision on 6 June 2008.  The applicant applies to review that decision.

2. The hearing commenced on 6 August 2009. The respondent conceded that the applicant has suffered a loss of salary or wages and both parties agreed that the focus of the review should be upon s 24(1)(c) of the Veterans’ Entitlements Act 1986 (the Act).  The respondent also asserted that the focus should be extended to s 24(2)(a)(i) of the Act.  That is to say, the applicant did not seek to engage in remunerative work by reason of his war-caused injuries alone (s 24(1)(c)) and the cessation of engagement in remunerative work were for reasons other than incapacity by war-caused injury (s 24(2)(a)(i)).

3.      The applicant was educated to Year 10 and obtained employment prior to his enlistment in the Army in 1968.  Following discharge in 1970 he held a number of positions but principally as a storeman with Foodland between 1976 and 1986, as a storeman with Ellis Supermarkets between 1987 and 1988 and subsequently by the State Electricity Commission of Victoria (SECV) until electricity distribution in Victoria was privatised and he became an employee of United Energy.  His employment with that entity ended on 20 October 1999 when he accepted a redundancy offer.  He has not subsequently worked.

4.      The applicant also suffers the rejected disabilities of Osteoarthrosis of his right knee and Arthritis in both knees.  It was learnt during the hearing that he has a lower back injury and suffers from Chronic Obstructive Airways Disease.

5.      The applicant said that the SECV was downsizing for a number of years before it was taken over by United Energy.  The new employer operated two stores at Dandenong and Moorabbin.  It eventually closed the Dandenong store by transferring a number of persons to the Moorabbin store.  United Energy decided to have subcontractors manage and staff its Moorabbin store and thereafter approximately 90 percent of the Moorabbin employees became employees of the subcontractor over a 12 month period until October 1999.  Other employees were transferred to other United Energy installations.  The applicant said that he was offered work by United Energy in an office where he would be required to undertake computer work and answer telephones.  Two other persons were offered transfers and the remaining fourth person was not made a job offer.  Rather than accept the offered work, the applicant accepted a redundancy payment.  The applicant said that he did not commence or attempt work in an office because he knew that he would not be able to cope with a computer nor would he be able to cope with answering a telephone.

6.      Whilst the applicant has a history as working as a storeman, he said the facility at both Dandenong and Moorabbin contained large heavy materials, for example, electrical transformers which were used for maintenance and construction of electrical installations.  One to two hours of each day would be occupied by him driving a forklift or driving a crane where he would be in a seated position.  Three or four hours per day would require him to be on his feet.  Despite his apparent leg and back injuries, the applicant said in evidence that were it not for his alcohol dependence and his anxiety, he would be employed at the present time.  He said that he would be able to undertake work involving the assembly of orders, loading of trucks and occasional stocktaking which were the duties being undertaken by him prior to redundancy.  He said the effect upon him by his anxiety and his alcohol dependence was a state of frequent agitation and irritability.  He said he tolerated other employees in the workplace and it was known by his employer that he preferred to work alone.

7.      Prior to redundancy the applicant was heavily consuming alcohol.  From the 1970's he was drinking between 10 and 15 cans of beer per day and said consumption at that level did not affect his employment but it didn't do a lot for relationships.  When working prior to redundancy he would often be affected by alcohol at the beginning of the work day and would be driven to work by his partner.  He would drink three pots of beer at lunchtime daily, he attended a local hotel on the way home after work and was then driven home by his partner.  He then consumed alcohol at home at night.  The applicant said that he understood that his employer was aware that he consumed alcohol at lunchtime and he was not cautioned.  He said he drank alcohol at lunchtime with his supervisor.

8.      The applicant thought that his employer intended to get rid of him.  He said he was forced into an office position which the employer knew that he would be unable to undertake.  He later acknowledged that the offer of employment may have been pursuant to an obligation by the employer under a Workplace Agreement.  Nonetheless he said that he was virtually computer illiterate and attempts by his partner to teach him computer skills were unsuccessful.  He said he was unable to concentrate and could not grasp the concepts necessary to use a computer.

9.      When his employment ended, the applicant said that his partner assisted him to seek employment by preparing a number of letters, on average two or three per week, to employers who advertised job vacancies in newspapers and on a notice board at a local Centrelink office.  He said the letters included a reference to him being alcohol dependent and being diagnosed with anxiety.  He said he did not ever receive a response from any of the letters that were forwarded seeking employment.

10.     In cross-examination the applicant said he had suffered problems with his knees for in excess of 20 years.  He said from time to time his knees lock, he has aching and pain and at the end of each day he applies heat and his knees are massaged by his partner.  He said he was able to work, despite knee pain, by consumption of painkilling medication and by alcohol.  Back pain has also been present for about 20 years and he regarded it as a nuisance.  It was also treated by painkilling medication and the consumption of alcohol.

11.     The applicant said that he did not ever commence or attempt work in the office of the employer when it was offered to him prior to redundancy because he believed the work would be complex and would cause him difficulty.  He said it was way out of my league.

12.     He said the work as a storeman required him to climb into and out of forklifts and cranes, having to squat and bend to reach lower shelving and having to spend considerable time on his feet.  He agreed that the store work involved 90 percent of manual picking.

13.     Mr Rudge took the applicant to an employment questionnaire completed by him on 13 December 2000 found at pages 12 and 13 of the T‑documents.  He was then asked to record the reasons for him being prevented from being employed and he recorded age and arthrosis.  He said that his reference to age meant that he would be competing on the open job market with younger persons.  He said the word arthrosis was a reference to his knee injuries.

14.     The applicant was then taken to a number of medical reports which had been lodged in the proceedings, specifically reports of Dr John Rogers, Dr Barry Kenny and Dr Jim Rowe, all of whom were of the opinion that anxiety and alcohol were not factors preventing him from working between 2000 and 2002 being the period of time that those practitioners examined and provided their reports.  The applicant agreed that their conclusions were sort of correct.  He said he subsequently looked for work after retrenchment because he thought he would be able to work and later said it was because he hoped that he would be able to work.

15.     In response to a number of questions from us, the applicant agreed that from time to time he uses a walking stick and confirmed that he recorded this in his lifestyle assessment found at page 76 of the T‑documents.  He said he was advised to use a walking stick by his doctors if he has to walk distances.  He said he did not use it on the day he attended the hearing because he was familiar with the landscape between the railway station and the Tribunal precinct and knew that he would have access to handrails.  He said if he has pain in his legs he does not leave home and he last used it when he walked around the block for exercise and because he was bored.

16.     The applicant also agreed from our observations of the T‑documents that he referred at pages 67, 75 and 76 to the condition of COAD in his application for pension and in his lifestyle assessment.  He said he understood that expression to refer to a respiratory disorder and said that he does become short of breath which commenced after he returned from service in South Vietnam and first noticed in the 1970's when he was playing football.  He associated the shortness of breath with cigarette smoking which he ceased in approximately 1990.  He said his breathing has improved since he stopped smoking.

janice woodyard

17.     Ms Woodyard is the partner of the applicant.  They have lived together for 17 years.

18.     She said within 12 months of them commencing to live together it was apparent that the applicant had an alcohol dependence which frequently caused him to behave in an agitated, aggressive and sometimes violent manner.  They slept in separate beds because he was often restless and he would thrash his arms during his sleep.

19.     Ms Woodyard said that he was frequently unable to drive himself to work, because of the effects of alcohol consumed on the previous evening and she would often collect him from a hotel after work because he was incapable of driving home.

20.     Ms Woodyard learnt that the applicant was facing redundancy, despite him knowing about it for some time, because he eventually broke down at home and told her.  Thereafter – and prior to the date of redundancy – she typed job applications for him from vacancies which became known by newspaper advertisements and by a facility in a local Centrelink office.  The letters seeking employment included a reference to him being anxious and having an alcohol dependence.  She said that she would have preferred any reference to those conditions being omitted from the letters but the applicant insisted and would not sign the letters if they had been deleted.  She said that two or three written job applications were made weekly over a period of about two years.  There was never a response to any of the letters.  She said the applicant did not ever ring up and make enquiries about employment because he was incapable of talking to persons on the telephone.

21.     Ms Woodyard said that the job offered by United Energy to the applicant was not real.  She said that he had no computer skills and would not know how to turn it on.  She said attempts by her to teach him computer literacy failed because of his frustration.

22.     Ms Woodyard recalled that the applicant worked in the presence of knee and back problems.  She said that she would have to take his shoes off at the end of each day because he was incapable of bending and because of pain.  She also rubbed his back and gave him painkilling tablets.  Nonetheless he did work in the presence of his back and knee injuries and she understood that he felt comfortable in the workplace.  However when he learnt that he was to become redundant he was lost.  It was her belief that his anxiety state and his alcohol dependence has prevented him from working.

amanda sillcock

23.     Dr Sillcock is an occupational physician who assessed the applicant on 11 December 2008 and provided a report at the same date (Exhibit A2).  She concluded that the applicant's accepted disabilities alone prevent him from working more than eight hours per week.  In her report she recorded that the applicant had internal derangement of the right knee and osteoarthrosis of the right knee was a war‑caused disability.  (She acknowledged in evidence that was a mistaken belief.)

24.     Dr Sillcock said that she obtained a history of the applicant ceasing to work in 1999 which was 10 years before she examined him.  She also had a history of the gradual onset of knee pain but she could not obtain a history of when that pain commenced.  She understood that the predominant cause of the applicant being retrenched was his inability to take up a job offer of working in an office where he would be required to operate a computer.  She regarded that as an unsuitable position for him, because he was not qualified to operate a computer and being required to do so would cause him to suffer from stress and the effect of change, which would impact upon his anxiety state and panic attacks that he was then suffering.  She also obtained a history of the applicant being alcohol dependent.  It therefore followed on the history that she obtained that the only option then available to the applicant was to accept an offer of redundancy.

25.     Dr Sillcock said that there was no way of being able to assess, in 2008 when she saw him, whether he would have been able to work in 1999 by reason of his knee and back injuries.  She said that she did not have any history of back injury or back pain however she noticed X-rays taken in 2007 had the appearance of age related degeneration.  She thought that in the absence of the anxiety state and alcohol dependence, the applicant probably could work in the presence of his knee and back injuries.

26.     Dr Sillcock was asked to accept that the applicant was a truthful employee by his notification to potential employers in written job applications that he was anxious and alcohol dependent  She said that he may have had a motivation to work when those applications were being made (which were nine years before she first saw him) but thought that notification of the anxiety and alcohol dependence would considerably reduce the prospect of obtaining employment.

robyn horsley

27.     Dr Horsley is an occupational physician who examined the applicant at the request of the respondent on 5 February 2009.  She provided a report of the same date which was received as Exhibit R2.

28.     Dr Horsley took a history from the applicant of him having previously been employed by the SECV and later by United Energy until he became redundant in 1999.  She understood that he had been offered work in an office which she regarded as beyond his skill level.  She understood that redundancies had been rumoured for four years before 1999 which caused uncertainty in the workplace.  She also understood that the employer was moving towards a computerised warehouse and consequently the office job involving use of a computer was offered to the applicant.  She said that the applicant had literacy and computer difficulties which would have caused him to be disadvantaged in 1999 and subsequently.  She thought that computers in recent years had become less complex and skills are more easily learnt but by regard to the applicant's age, his absence of computer experience and his poor literacy, he remained disadvantaged.

29.     On examination she was aware that the applicant had bilateral knee problems (the right worse than the left) and an MRI assessment in September 2003 demonstrated a lateral meniscus tear without significant derangement and with the cartilage intact.   X-rays of February 2007 showed good preservation of joint knee spaces with minor spurring in both knees.  She found the applicant to be uncomfortable when his knees were examined and she was unclear whether the applicant did have degeneration at the time of her assessment or whether he was manifesting fear avoidance behaviour because he had previously experienced pain.  She obtained a history of the applicant being pain free at rest but activity caused discomfort.  She said that he had a walking tolerance of one kilometre on a good day and about three to four blocks on a bad day.  He avoids static standing, has difficulty squatting and kneeling and rarely drives a car.

30.     Dr Horsley was also aware of the applicant having a back injury which was demonstrated by CT scan in January 2003 of an L4/5 disc herniation causing compression on the right S1 nerve root.  There was a mild degree of broad based annular bulge also at L4/5.  Apparently an epidural injection has given the applicant considerable relief.

31.     The capacity of the applicant to engage in employment was thought by Dr Horsley to be limited by reason of his back and knee injuries but they did not incapacitate him from employment.  She thought he was fit to work as a forklift driver on an intermittent basis and any employment would be limited to store work.  In her experience there are many forklift jobs involving driving and or picking and packing items, that is to say, a manual component is required in work of that type.  Whilst acknowledging that he has an inability to squat, she thought that he would have to be cautious when using a forklift.

32.     Dr Horsley thought that the applicant would be able to do audit work essentially involving stocktaking but most warehouses now are computerised and the applicant may have difficulty coping with technology of that type.  She thought that the work that he would be able to undertake in a warehouse would be non repetitive, involving light items and being able to stand and walk.

33.     Dr Horsley said at the time of redundancy the applicant would have had a capacity for employment had he been able to reduce his alcohol consumption.  She noted that there had been a considerable reduction in alcohol consumed in recent years.  At the present time it was her belief that the applicant remained out of the workforce by reason of his anxiety disorder, his lack of retraining, education to Year 10 level only, poor literacy and computer skills, being out of the workforce for 10 years and his knee, back and other physical restrictions.

colin seabridge

34.     Dr Seabridge is a psychiatrist who has been treating the applicant since first consultation in February 2001.  He has attended the applicant on 22 subsequent occasions, each for one hour appointments.  In a report of 20 September 2007 (T‑documents, p81 – 82), Dr Seabridge concluded that subsequent to first consultation and having regard to the accepted conditions of anxiety and alcohol abuse, the applicant is barely capable of coping with daily living, and he is totally incapacitated for any form of remunerative employment.  It is a matter of some wonder that he was able to remain in his last job as long as he did.

35.     When Dr Seabridge was asked to consider the applicant's capacity for work at the date of his redundancy, he referred to his first report found at pages 1‑3 of the T‑documents where he recorded that the employment ended due to a combination of ill health, and retrenchment.  Dr Seabridge acknowledged that he first saw the applicant 18 months after retrenchment and his symptoms then – which he said continue to exist – were of anxiety, anger, hyperarousal, alcoholism, impaired concentration, poor self esteem and disorganisation.  He said the applicant struggles to get through everyday living.  He noted that the applicant rarely goes out, he has experienced road rage when driving a vehicle, he is security conscious, he trusts no one and he avoids crowds.

36.     Dr Seabridge was aware that the applicant previously worked for between 60 to 70 hours per week with Foodland being the last employer prior to the SECV and United Energy but said that in his experience, having treated many veterans, they are workaholics because employment provides a distraction from anxiety and other related illnesses.  He thought the applicant had experienced some improvement in recent years but he remains significantly handicapped by the conditions.

37.     Following his first report, Dr Seabridge completed an Emotional and Behavioural Medical Impairment Worksheet, the authority of which is found at Chapter IV to the Guide to the Assessment of Repatriation Pension (GARP).  With respect to Table 4.4 which concerns Occupation, Dr Seabridge recorded Has not worked for 18 months – seeking work without success.  His disability adversely affects his employability (T3, p4).  It was noted that he offered a rating of 5 which he explained was a rating that he thought appropriate because the applicant was then looking for work.  He said that if he were to fill out the questionnaire at the present time he would provide a score of 8 because the criteria applicable to that rating is the veteran cannot work.

38.     Dr Seabridge was taken to his clinical notes and on 22 November 2006 he recorded that the applicant was obsessive, rigid, intolerant and hyper aroused – everywhere!  He also noted that the applicant had verbal warnings at work and was recognised as a problem with anger, disputes, self righteous, couldn't be told, close to violence.  On 21 August 2007 he recorded 4 years of uncertainty at work before he was retrenched, on a knife edge, drinking ++.  He said those notes portray the applicant prior to retrenchment and the manner in which he was functioning.  He said with that type of background there was no incentive on the part of the employer to offer him other employment or locate him elsewhere at or about the time he was retrenched.

39.     In cross-examination Dr Seabridge acknowledged in his first report he recorded that the applicant was referred to him for treatment of anxiety and / or depression.  He also noted that at first consultation his clinical notes record the applicant suffered ill health and his first report also recorded that employment was discontinued due to a combination of ill health and retrenchment.  He said he did not ever obtain a history of the applicant suffering any other illnesses or injuries throughout the time that he has been treating.  He acknowledged that Doctors Kenny, Rogers and Rowe all obtained a history of the applicant suffering knee injuries.  He said it was not his practise to ask patients whether they have other problems unless they were obvious.  He said, for example, if a person walked into his consulting room with a limp he would then make an enquiry about the cause of it.  He said he learnt of the applicant's alcohol dependence because the applicant's partner had told him.

40.     Dr Seabridge concluded that the applicant remained employed prior to retrenchment because the employer kept him on and because he had been consuming medication as maintenance.  He noted that the employer had previously given him warnings and it was his opinion that were it not for retrenchment the applicant would have continued to receive oral warnings which would have become written warnings and which ultimately would have caused termination of his employment.  He said the applicant's anxiety disorder preceded the retrenchment and on the history that he had taken over the years of treatment he did not detect any change in the levels of anxiety pre and post employment.  He said it was his experience with other veterans that discontinuing employment causes some improvement in the ability to function and he noticed those features in the applicant.  Nonetheless he remained of the opinion that the applicant was unable to work and had been unable to undertake the work offered to him in an office environment.

conclusion and reasons for decision

41. The respondent properly conceded that s 24(1)(a) and (b) of the Act have been satisfied. The focus of this review is on s 24(1)(c) of the Act (with regard also being given to s 24(2)(a)) and upon s 24(2)(b) of the Act.

42. In so far as s 24(1)(c) is concerned the issue of primary focus is whether the applicant, by reason of his war‑caused injuries or diseases, alone, is prevented from continuing to undertake remunerative work.

43.     In Cavell v Repatriation Commission (1989) 9 AAR 534 Burchett J at 539 decided that the true task of the Tribunal was 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.  In Repatriation Commission v Hendy [2002] FCAFC 424 at [37] a full Federal Court decided that any consideration of what a veteran would have done but for the service injuries was a hypothetical exercise, that the language of s 24(1)(c) of the Act caused attention to be directed to whether incapacity from the service injuries, alone, prevented the veteran from continuing to undertake remunerative work and a decision-maker was required to take account of any factor which contributed to a veteran being prevented from continuing to engage in remunerative work.

44.     In Flentjar v Repatriation Commission [1997] FCA 1200 (10 October 1997), Branson J who delivered the Judgement on behalf of a Full Court also comprising Beaumont and Merkell JJ decided that there were four relevant questions which should be asked and answered in order to decide whether a veteran satisfied s 24(1)(c) of the Act, those questions being:

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?

45.     For reasons which follow we are satisfied that the answer to question number two is yes and the answer to question three above is No.  That is to say, we are not satisfied that the war‑caused injuries alone prevent the applicant from continuing to undertake remunerative work.

46.     There is no controversy concerning the reasons why the applicant ceased employment.  He was retrenched.  The cessation of his employment was not then by reason of his war‑caused injuries.  The employer was rationalising its workforce and many persons were denied continuing employment by reason of a policy of retrenchment initiated by the employer.

47.     But there are a number of other factors which have affected the capacity of the applicant to undertake remunerative work.  He was retrenched on 20 October 1999 when aged 51 years.  He claimed pension on 4 October 2007 some eight years later.  The applicant was therefore out of the workforce for a period of eight years before the assessment period commenced.  He did not work elsewhere within that period and accordingly the absence of recent employment, his time out of the workforce and his increased age are all factors which contributed to his incapacity.  None of those factors are war‑caused.  It is worthy to note that the applicant also recorded that age was a factor in his unemployment in a questionnaire found at pages 12 and 13 of the T‑documents.

48.     The applicant also suffers from some injuries or illnesses which have either been rejected or which have not been claimed, predominantly being bilateral knee injuries.  The applicant disputed that those injuries would have interfered with his capacity to undertake employment, however, he recorded in a lifestyle assessment at page 76 of the T‑documents that he used a walking stick.  On the day of the hearing the applicant said he did not use it walking from Flinders Street Station to the Tribunal premises (approximately 400 metres) because he had access to a handrail across a footbridge spanning the Yarra River.  That answer suggests to us, that were it not for the handrail, he would have been using a walking stick.  It is unlikely that the applicant would have been able to undertake employment at least from the commencement of the assessment period unless he was permitted to largely remain seated which would probably involve employment requiring skills or experience which he does not have.

49. In concluding this part, and by regard to s 24(2)(a)(i) of the Act, we are satisfied that the applicant did cease to be engaged in remunerative work for reasons other than incapacity from war‑caused injury or disease. He is accordingly unable to satisfy s 24(1)(c) of the Act.

50.     The remaining matter which we will consider is the ameliorating provisions of s 24(2)(b) of the Act (refer Forbes v Repatriation Commission (2000) 58 ALD 401 at 40).

51.     The applicant will be able to draw comfort from this provision, being a veteran not having attained the age of 65 years, if he can satisfy us that he has genuinely been seeking to engage in remunerative work that he would have been undertaking but for incapacity and the incapacity is the substantial cause of his inability to obtain the remunerative work.

52.     We heard evidence of the applicant's partner preparing a number of letters for him seeking employment by way of response to advertisements from potential employers.  The applicant insisted that those letters recorded that he suffered from anxiety and alcohol dependence despite the advice of his partner that that information should not be disclosed.  It is no surprise that the applicant did not ever receive a response to any of the letters that were written which, on the evidence, were completed and posted over a period of two years following retrenchment.  Including that type of information in the letters in our view, would almost certainly cause the application for employment either to be rejected or not be given any serious consideration.  We think those sorts of comments permit a finding that the applicant was not genuinely seeking to engage in remunerative work.  That the applications for employment also ceased after two years with an intervening period of six years before the commencement of the assessment period fortifies the conclusions that we have reached on this issue.  By way of conclusion on this issue, there is no evidence that throughout the assessment period the applicant made any attempt, genuine or otherwise, to obtain employment (refer Leane v Repatriation Commission [2004] FCAFC 83 at [32]. It was submitted that upon the applicant qualifying for disability support pension there was no point in the applicant seeking employment because he had been found to be totally and permanently incapacitated. We think that submission has no merit. The applicant qualified for disability support pension pursuant to the provisions of s 94 of the Social Security Act 1991.  That scheme of entitlement is vastly different to the qualifying provisions under the Veterans' Entitlements legislation.

53.     The remaining issue under s 24(2)(b) of the Act is whether the incapacity by war‑caused injury or disease is the substantial cause of the applicant's inability to obtain remunerative work.

54.     In Fox v Repatriation Commission (1997) 45 ALD 317 at 319 and 320, Keifel J discussed the phrase the substantial cause and found that the language of the sub-section requires a stronger and more direct causal connection between the incapacity and the inability to obtain remunerative work.  For reasons discussed above we are satisfied that the war‑caused and accepted injuries of the applicant were not the substantial cause of the veteran's inability to obtain remunerative work but rather the factors of age, period out of the workforce, absence of recent work experience and other non-accepted injuries all contributed to the inability to obtain employment.  From the date that the applicant was granted disability support pension (4 September 2001 – refer Ex R7) he did not seek any employment.  From that date he could not demonstrate an inability to obtain remunerative work, rather, there was a conscious decision not to seek to obtain remunerative work.  That decision was made six years before the assessment period commenced.

55.     In all of the circumstances we are satisfied that the decision under review should be affirmed.

I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Mr John Handley, Senior Member

Signed:         Grace Carney Personal Assistant

Date of Hearing  6 and 7 August 2009
Date of Decision  30 September 2009
Solicitor for the Applicant          Mr D De Marchi
Departmental Advocate            Mr K Rudge