Dear and Repatriation Commission - [2000] AATA 1006

DECISION AND REASONS FOR DECISION [2000] AATA 1006

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2000/340

VETERANS APPEALS DIVISION           )
           Re      MICHAEL DEAR
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member Dr C. Re, Member Mr I. Campbell, Member

Date6 November 2000
PlaceMelbourne

Decision      The decision under review is affirmed.
  …....…………………..….....
  Senior Member
CATCHWORDS
Veteran's Affairs – Veteran employed to age 59 & retrenched – applied for special rate pension when 62 – s.24(1)(c) & 2 (b) factors – whether substantial cause of incapacity was war-caused injuries – 'alone' test not satisfied – decision affirmed.
Re Fox v Repatriation Commission 1997 45 ALD 317
Veterans Entitlements Act s.24(1)(c); s.24(2)(b)

REASONS FOR DECISION

6 November 2000 Mr J. Handley, Senior Member

The applicant applies to review a decision of the Veterans Review Board ("VRB") made on 14 December 1999. The VRB then decided to set aside a decision previously made by the respondent and substitute a decision that pension be paid at 100% of the General Rate with effect from 13 February 1998. Mr Dear claims special rate. This review concerns whether he has an entitlement to that pension.
The applicant is presently 64 years of age having been born on 17 March 1936. He was one month short of his 62nd birthday at the date of primary claim.
Mr Dear has the conditions of post traumatic stress disorder and generalised anxiety disorder, callosities of left foot, peptic ulcer disease, bilateral sensori neural hearing loss, generalised dermatitis and gunshot wound of left thigh accepted as war-caused. A condition of lumbar disc disease has been rejected as war-caused. At the hearing Mr Tobin appeared on behalf of Mr Dear and Mr Herman appeared on behalf of the respondent. A medical report of Dr Gelb, a treating psychiatrist, was received into evidence. Mr Herman indicated that he was not required for cross-examination. Reports of Dr Kenny a consultant psychiatrist and Dr W. Cooper a consultant occupational and rehabilitation physician were received into evidence and both were called to give evidence. Both were engaged at the request of the respondent. A number of other documents were received into evidence and will be referred to later in these reasons.
The Applicant
Mr Dear was born in the United Kingdom and arrived in Australia when he was 14 years of age. He had had little formal education but did undergo some studies when he eventually joined the Australian Army. Initially he obtained employment for two years as a dairy farm labourer in Warrnambool in Western Victoria. He then moved to Melbourne where he worked for 12 months and then travelled to Queensland where he worked in mines in Cloncurry for 18 months. He returned to Melbourne and eventually was called up for national service and at the duration of that service he enlisted as a member of the regular army. After 20 years of service he was discharged at the rank of sergeant.
Most of his time in the Army was in the catering corps. He was engaged in a tour in Vietnam for approximately 8 months in 1966 which was ended after he was shot in the left thigh and was evacuated to Heidelberg hospital in Melbourne for treatment.
After an incapacity of between five and six months Mr Dear returned to service in the catering corps. He recalled "a lot of trouble" with his hearing loss and with leg pain and weakness. He also recalled that he was becoming "cranky". Mr Dear was then drinking heavily and had a recently diagnosed peptic ulcer. His marriage was at risk because of alcohol consumption, yet he and his wife reconciled (after she separated) following counselling.
Between 1976 and 1977 Mr Dear was stationed at the WRAAC Barracks in Queensland where he was responsible for ordering supplies, creating menus and arranging shifts. He recalled he "got on well" at these barracks because all the staff were women. He said that "women take orders better than men". He was eventually transferred to Melbourne in a post originating from Victoria Barracks working at different locations around Victoria, cooking and supervising. Mr Dear said that his war-caused disabilities had affected his opportunity for promotion and he was unhappy with the work in which he was engaged in the last 12 months in Melbourne. At or about this time he concluded 20 years of service and obtained a voluntary discharge.
The applicant recalled that his work in the catering corps exposed him to heavy physical and rigorous labour, which significantly affected his left leg by reason of the ongoing effect of the gunshot wounds to his left thigh. He recalled he needed assistance with heavy lifting and his hearing loss affected him to the extent that he found it difficult to communicate in noisy kitchens. This in turn caused him to be "nervous because (he) couldn't hear".
After discharge Mr Dear successfully tendered for the position as catering manager at the Carlton Lawn Bowling Club in Melbourne. He was responsible for the kitchen and dining room and in effect was self employed. He recalled however that he "didn't cope well". He had had no prior experience in business management. Mr Dear recalled that he was also "nervous" and was eventually forced to give up the tender because of debts. He said at the end of a days work his left leg and left foot were painful and his peptic ulcer was "upset". (The left foot calluses apparently emerged by reason of altered gait as a result of the left leg injury).
When he left the bowling club Mr Dear entered into an arrangement with creditors to repay debts over a period of time and eventually found work with the Royal Agricultural Society (RAS) at the Melbourne Showgrounds. The applicant's wife was then employed at the Showgrounds and had learnt of a job vacancy. By this time Mr Dear was having regular treatment from a podiatrist for the calluses on his feet which were causing considerable pain. He was also suffering a great deal of pain in his left leg extending beyond the thigh and involved pins and needles, aching and tingling sensation. Initially the work at the Showgrounds was as a casual during the Royal Show in September. He was engaged in a clean up gang but was asked to stay on permanently. He was then employed as a labourer cleaning up after events, undertaking general labouring work and maintenance. He was also engaged in heavy manual labour, repairing and maintaining bitumen roadways and driving machinery. Mr Dear was engaged in this work for about four or five years but found that he was not working well with other persons and was argumentative. This was observed by a foreman who spoke to him about his "attitude" which resulted in obtaining a job working alone in the gardens within the Showgrounds complex.
Initially Mr Dear could complete gardening work, which mainly involved mowing using a hand operated, and drive on mower. It was not heavy work but he recalled that his left leg ached after periods of standing and walking. In about 1990 Mr Dear also noticed that he was having back pain, which was also affecting his left leg and left foot and was unable to walk without discomfort. He was eventually diagnosed with a lower lumbar disc injury for which he underwent surgery involving laminectomy and discectomy which was accepted under the Victorian Workcover compensation scheme.
Mr Dear returned to work with the assistance of a rehabilitation consultant engaged by Workcover and a new position was found for him by the RAS. He was employed as a storeman, which exposed him to little contact with other persons and did not expose him to any lifting. Mr Dear enjoyed this job but after 6 or 7 months he was transferred to the position as bar manager where he would work in different locations throughout the RAS Complex. When he was not engaged in bar work he was responsible for cleaning toilet blocks throughout the RAS complex by "hosing them out" and driving to each location by van. He worked alone, was not exposed to other persons and was not engaged in any lifting. He also regarded this as being a good job.
In about 1995 rumours began to spread that the RAS were to engage an outside contractor to be the employer of all labour. Mr Dear said he felt very uneasy and uncomfortable with the prospect of losing his job but said that he was relieved to eventually learn that all staff would be interviewed by the new contractor. Eventually the RAS engaged a company known as "Cleanevent" however Mr Dear was unsuccessful at interview. He said he disclosed his injuries of ulcer, loss of hearing, prior back injury and compensation claim and left thigh and left foot injury, yet said he was able to continue to work and enjoyed employment at the RAS. Whilst he was aware that the potential employment would involve longer hours and lesser salary Mr Dear said he would have preferred to have remained employed and was anxious to be employed. Nonetheless at interview he was told that his injuries and his prior compensation claim would prohibit the employer engaging him. Mr Dear has not worked since that time.
Since 1995 he has regularly attended the Commonwealth Employment Service and looked in Newspapers for employment. He also attended an institution known as "JOFFA" being an organisation concerned with locating employment for persons over the age of 40 years. Mr Dear said he attended the CES for 18 months but was unable to secure any employment. He had a number of interviews with companies, which had sought employment through the CES. Upon disclosing his prior injuries and his compensation claim he was told that he would not be engaged. He said he would have "taken anything" if it was offered to him and he was anxious to work. He said it was the first time he had not worked since the age of 14. Despite his wish to work Mr Dear said that his left leg was from time to time "giving way" and he was experiencing spasms in his left leg. His ulcer at that stage was causing considerable pain which was "so bad (I) have to lie down" yet his back was causing minimal discomfort and it appears that he had a good outcome from his prior surgery.
Eventually Mr Dear was referred to Dr Gelb a psychiatrist at the recommendation of an RSL welfare officer. Mr Dear continues to attend Dr Gelb on a regular basis.
In cross-examination Mr Dear agreed that his sick leave record (produced into evidence) recorded an average of three days per annum absence from 1982. The absences were described as being for coughs and colds and "general sickness". Mr Dear said that he "needed to work" and had debts. He said he attended work on occasions where he was in severe pain and probably should not have worked. He agreed that the disabilities probably did not put him off work but rather it was the retrenchment. He agreed that he was a loner and "couldn't stand people". He said he became uncomfortable and irritable when working with or mixing with other persons. He said these feelings were "getting worse, and it was building up". He agreed that there would be occasions where it was inevitable that there would be crowds at the Showgrounds during events, however he said he "just had to get on with it". Despite working from time to time in a bar at the Showgrounds, he said he was mainly confined to the RAS council room where VIP's were present and the work was comfortably undertaken. He said he obtained work in the VIP bar because he was supported by his supervisor Mr Martin who was aware of his disabilities and ensured that he was not exposed to undue stress.
The records of the applicant's general practitioner Dr Chong were received into evidence. These records showed minimal consultations. Again Mr Dear explained that he would only attend his doctor "if he was really sick" and then usually only for a repeat prescription. Despite references after 1990 in the records to attending Dr Chong for back pain, Mr Dear explained that discomfort was usually associated with an unusual activity, for example an occasion where he was painting at home or another occasion where he twisted some back muscles when alighting from his car. Mr Dear said that he is provided with an ointment which keeps his varicose eczema (war-caused accepted disability of dermatitis) under control. This condition is usually manifested by an itch from time to time. Mr Dear said that he had not ever been referred to a PTSD clinic and this condition does not incapacitate him from day to day activities of showering dressing and shopping although he is nervous and uncomfortable in large shopping centres.
In re-examination Mr Dear explained a reference in the notes of Dr Chong of October 1996 relating to his back. The attendance on Dr Chong then followed the applicant driving to Queensland and back and having lifted a heavy table at home. This was put forward to explain that the back pain then occurred by reason of unusual activity and would not otherwise have incapacitated Mr Dear. In fact on closer analysis the records disclose that Mr Dear did not attend Dr Chong for treatment of his back between October 1996 and October 1999. (Mr Dear said that Dr Chong always made notes on every attendance).
Mr Dear said that he did claim Workcare benefits following the back injury at the Showgrounds in 1990. He recovered weekly compensation and medical expenses. He did not claim any lump sum for impairment. He said that he had not ever heard of a repatriation pension called 'special rate' until some years after his unemployment commenced. He learnt of it following discussions with a welfare officer at the Keilor RSL.
Mr Dear said that the main reason why he is presently unable to work is because of his left leg, his foot and his ulcer. He agreed that he continues to suffer from "stress" but consumes medication and he is under "control".
Lynette Thelma Dear
Mrs Dear is the wife of Mr Dear, the applicant in these proceedings. She said she first met him in 1957 and they were married in 1960. She said that he was a changed person after his return from Vietnam. She recalled that when he returned he was irritable and not sleeping. He was drinking heavily, was non-communicative and apparently in pain. She and Mr Dear were engaged in marital counselling and at one stage she left him but they later reconciled.
Prior to Vietnam she said that her husband coped well, had no injuries or illnesses and drank only moderately.
She recalled the experience her husband endured whilst managing the Carlton Bowling Club and the cessation of that business because of mounting debts. She described him as being a person very loyal to both the Army and the Showgrounds. There were occasions she said where he was "too sick to go to work" yet he would refuse to stay at home. She described him as having a strong work ethic and "gives the best in everything he does".
Mrs Dear recalled that following retrenchment Mr Dear found it difficult to accept unemployment and actively looked for and sought work through the CES, newspapers and through JOFFA.
Dr Cooper & Dr Kenny
We have not specifically referred to the evidence of Dr Cooper and Dr Kenny because it may be briefly summarised (relevantly) as follows.
Dr Cooper thought that the applicant was capable of working up to 20 hours per week in work where he was not required to bend or repetitively lift or lift in excess of 5 kilos. He thought the applicant was capable of continuing to work in the RAS job because it was "rotational and he could pace himself". In his opinion the applicant was not working because of his retrenchment from the showgrounds. Dr Cooper said that his experience currently with the Toyota Motor Company suggested that subject to the work experience of a candidate for employment at Toyota there is no discrimination because of age. Dr Cooper thought that the applicant's hearing loss of 18.2% would not affect him in employment because generally he would not need to communicate. He said "nervous problems" would not cause Mr Dear to be unattractive to a potential employer because problems of this sort would not interfere with unskilled work to which, in his opinion, the applicant was suited.
In his reports filed prior to the hearing Dr Cooper said that were it not for the applicant's back injury Mr Dear would be able to work 8 hours per week, yet in his evidence he said that Mr Dear did not complain about his back injury and did not refer to his back injury when asked to complete a "pain chart". It was his experience however that persons who have had a laminectomy and a disectomy have an "unstable back" and that subsequent aggravation would be expected.
Dr Kenny said that the absence of the applicant from the workforce was demoralising and depressing. He agreed that the applicant was strongly motivated and had looked for work but in realistic terms he was unemployable. In his opinion the applicant is not working because of a combination of his age, his time out of the workforce, his injuries and his lack of skills.
He agreed that the applicant's hearing loss would socially isolate him and interfere with his communication. He agreed that it would also present as a problem in obtaining or maintaining employment. He also agreed that the applicant's PTSD would cause the applicant to have difficulty working with other persons.
Submissions
Mr Herman submitted on the balance of probabilities that s.24(1)(b) and or s.23(1)(b) were not satisfied. He said the applicant was on the evidence capable of working 20 hours per week and that the accepted disabilities alone were not responsible for incapacity.
He submitted that the applicant was unemployed because he was retrenched and not because of his accepted disabilities. He submitted that were it not for retrenchment the applicant would have remained employed by the RAS.
He submitted that the applicant's subsequent attempts to obtain employment were unsuccessful because of a combination of his age and his period out of the workforce. Substantially he said the applicant's back injury and his prior Workcare claim discouraged potential employers from engaging him. He also submitted that the early to mid 1990's in Australia exposed the applicant and other persons to a reduced labour market and economic recession. He said the applicant would have had to compete against younger persons who did not have disabilities and he would have been discriminated against in the labour market.
It was submitted that on the balance of probabilities the Tribunal cannot be satisfied that the applicant is incapable of working either 8 or 20 hours per week by his war-caused disabilities alone.
In terms of s.24(2)(b) Mr Herman submitted that the accepted disabilities in part contributed to unemployment but they were not the substantive reason.
Mr Tobin submitted that the applicant was a conscientious, dedicated and stoic person. He said his client attended work despite illness and occasions when he should have rested. He said the evidence heard from Mr Dear and Mrs Dear was consistent with a reference provided by Mr Martin, the RAS grounds manager (21 April 1995) who in part said "personally I have found Mr Dear to be totally reliable, honest and courteous. I believe Mr Dear would be an asset to any organisation that may employ him.
Mr Tobin submitted that the applicant had had a modest sick leave record and 5 years after spinal surgery when he was retrenched there was nothing to indicate that the back injury interfered at all with his capacity for work.
It was submitted that the opinions of Dr Cooper should be discounted and regarded as being unrealistic. Mr Tobin submitted that the only impediments to the applicant securing employment were his war-caused disabilities.
Conclusion & Reasons For Decision

Sub-section 2 of section 24 has considerable relevance to this application. It says-
"(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 engaged in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfied 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 undertaken remunerative work that the veteran was undertaking".
As we understand (2)(a) above a veteran cannot be deemed to be suffering loss of salary or wages or earnings by reason of incapacity from war-caused injuries or diseases if the veteran ceased to be engaged in remunerative work by reason other than incapacity from injury or disease or the veteran is incapacitated or preventing from engaging in remunerative work for some other reason.
So far as (2)(b) is concerned we understand it to mean that a veteran is deemed to have been prevented from undertaking remunerative work by reason of war-caused incapacity if that incapacity is the substantial cause of the inability to obtain remunerative work where there has been a genuine attempt to engage in remunerative work and the inability to engage in remunerative work is by reason of incapacity.
We found the applicant to be a witness of truth who was hardworking and diligent. We are satisfied that he has suffered from a number of war-caused disabilities which in combination probably would have caused many other persons to have either been incapacitated or have taken extended periods of sick leave far beyond that which the applicant did take. We accept his evidence and that of Mrs Dear that there were many occasions when Mr Dear was ill and should not have attended work but chose to do so. We are satisfied also that he did impress the management of the RAS to the extent that he was given jobs which accommodated his disabilities. We doubt that this would have occurred in many other employment environments.
But what cannot be overlooked is that the applicant's unemployment commenced because of the retrenchment from the RAS. Until that time Mr Dear was engaged in full-time employment and was earning remunerative income. His unemployment and the absence of remuneration since that date has been largely because of his age, his period out of the workforce his back injury and the prior Workcover claim for the back injury. We are disappointed that the merits of Mr Dear as a potential employee have been largely overlooked or ignored by subsequent potential employers and it would appear that there has been some discrimination against him because – on his own evidence – he has been rejected from employment because he disclosed his prior Workcover claim for the back injury. In our experience, having heard many applications for special rate and having heard many applications in the Compensation Division of this Tribunal, we are aware that Mr Dear would have found difficulty in obtaining employment by reason of his age and his limited job skills (although we would acknowledge that he has demonstrated in the past a preparedness to adapt to many different jobs).
In assessing entitlement to special rate pension, we are satisfied on the evidence heard and the documents read that Mr Dear has ceased to engage in remunerative work for reasons other than his incapacity from his war-caused disabilities and/or has become prevented from engaging in remunerative work because of the above factors namely his age, his period out of the workforce, his Workcare claim, his back injury and his absence of workskills.
Insofar as s.24(2)(b) is concerned we are satisfied that Mr Dear is a veteran who has not obtained the age of 65 years and who has not been engaged in remunerative work. We are satisfied that he has been genuinely seeking to engage in remunerative work but we are not satisfied on the balance of probabilities that the substantial cause of his inability to obtain remunerative work is his incapacity from war-caused injuries or diseases but rather it is the above mentioned factors.
A similar application was considered by the Tribunal in Re Fox & Repatriation Commission (Decision No. 10994 delivered 7 June (1996)). In an appeal against that decision, Kiefel J in Fox v Repatriation Commission 1997 45 ALD 317, recited a passage from the AAT decision at page 319 namely-
"After leaving the army, the applicant worked in a mine for a little over 20 years. One of his reasons for giving up that employment was that he had a disability affecting his knees. He then moved to Devonport and obtained work as a sales assistant in a hardware store. He was retrenched when that business closed down some three years later, and has been unemployed ever since. He has been unable to find work since his retrenchment because of his post traumatic stress disorder, his knee condition, the fact that he has no work skills except as a soldier and a miner, the state of the labour market, and his age. He is now 52 years old. It therefore cannot be said that he is prevented from continuing to undertake remunerative work that he was undertaking by reason of incapacity from his war-caused post traumatic stress disorder alone".
Deputy President Blow, having made the above findings, said (page 7 para 15).
"However I do not think it can be said that the applicant's post traumatic stress disorder is 'the substantial cause of his … inability to obtain remunerative work in which to engage'. It is a significant factor, but the other factors that I have referred to are so significant that it is not, in my view, the substantial cause.
I therefore conclude that the applicant is ineligible for the special rate of pension because he does not satisfy s.24(1)(c). He is not eligible for the intermediate rate of pension either because he does not satisfy s.23(1)(c), which is worded in the same way as s.24(1)(c)."
Her Honour concluded, at page 319-320-
"The words "the substantial cause" require that, if the incapacity is not of itself productive of the inability to obtain work, it is nevertheless the operative factor which, more than any other, explains it. That something might be "a substantial cause" has regard to the situation where there may be a number of factors operating which are of sufficient causal significance to qualify as "substantial" (the phrase which was contained in the legislation dealt with in University of Tasmania v Cane (1994) 4 Tas R 156, 163, to which I was referred in argument). The definite article in s.24(2) of the 1986 Act (compare Repatriation Act 1920, Schedule 2, as amended in 1985), requires a stronger and more direct causal connexion between the incapacity and the inability to obtain remunerative work. The Tribunal here was clearly of the view that whilst the applicant's incapacity could be described as "substantial" the other factors, which it listed, were also of importance with respect to the applicant's inability to obtain work. Since their effect was considered of such significance to deny his incapacity status as "the substantial cause", one infers the Tribunal considered that they might also be described as a substantial cause or causes. It seems to me, therefore, that the Tribunal did not suffer from any misapprehension as to the meaning to be given to the words "the substantial cause" in the subsection."
We agree with and adopt these conclusions. The applicant cannot therefore satisfy s.24(1)(c) or s.23(1)(c). We have no alternative in the circumstances but to affirm the decision under review.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member
Signed:         ...Carolyn Irons..............................................
  Secretary
Date/s of Hearing  11 October 2000
Date of Decision
Counsel for the Applicant        Mr Geoff Tobin
Solicitor for the Applicant
Counsel for the Respondent    Mr Kevin Herman, Departmental Representative
Solicitor for the Respondent