Funnell and Repatriation Commission
[2003] AATA 1252
•12 December 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1252
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/242
VETERANS' APPEALS DIVISION )
Re FRANK FUNNELL Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr E K Christie, Member Date12 December 2003
PlaceBrisbane
Decision The decision under review is set aside and in substitution therefor, the Tribunal decides that Mr Funnell is entitled to pension payable at the Special Rate with effect from 22 April 2002.
(Sgd) EK Christie
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements - disability pension – rate of pension payable - whether applicant entitled to special rate – capacity to undertake remunerative work – applicant not prevented from continuing remunerative work by reason of war-caused incapacity alone – ameliorating provisions - accepted service-related conditions are the ‘substantial cause’ of inability to engage in remunerative work – applicant genuinely seeking to engage in remunerative work – decision set aside
Veterans’ Entitlements Act 1986, s 24 and s 120
Forbes v Repatriation Commission (2000) 101 FCR 50
Flentjar v Repatriation Commission (1997) 48 ALD 1
Re Starcevich and Repatriation Commission (1986) 10 ALN 202
Re Doyle and Repatriation Commission (1986) 47 ALD 187
Jackman v Repatriation Commission [1997] FCA 564
Re Hornery and Repatriation Commission [1998] AATA 602
Cavell v Repatriation Commission (1988) 9 AAR 534
Fox v Repatriation Commission (1997) 45 ALD 317
Byrne v Repatriation Commission [2001] FCA 1134
Hendy v Repatriation Commission [2002] FCA 602
Hall v Repatriation Commission (1994) 33 ALD 454
Starcevich v Repatriation Commission (1987) 18 FCR 221
Repatriation Commission v Braund (1991) 23 ALD 591REASONS FOR DECISION
12 December 2003 Dr E K Christie, Member 1. This is an application by Frank Funnell for a review of a decision by the Veterans’ Review Board (the “VRB”) made on 23 January 2001 that Mr Funnell’s “pension be assessed fifty percent (50%) of the General Rate [payable under the Veterans’ Entitlements Act 1986]”.
2. At the hearing, Mr D O’Gorman of Counsel represented Mr Funnell. The respondent was represented by Mr M Smith, a Departmental Advocate.
3. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” documents) and the various documents tendered by the parties.
4. Oral evidence was given by the applicant and Patricia Funnell, the wife of the applicant. The respondent called no witnesses.
Facts
5.Mr Funnell was born on 8 October 1936.
6. Mr Funnell served in the Australian Army with the following periods of operational and eligible service:
(a)Malaya from 17 February 1956 to 2 March 1957;
(b)Brunei/Sabah/Sarawak from 3 September 1964 to 18 January 1965;
(c)Brunei/Sabah/Sarawak from 28 January 1965 to 2 June 1965;
(d)Brunei/Sabah/Sarawak from 7 June 1965 to 19 July 1965;
(e)Vietnam from 19 February 1968 to 4 March 1969; and
(f)rendering eligible defence service from 7 December 1972 to 26 September 1975.
7.Mr Funnell has the following conditions accepted as service related:
(a)Diabetes mellitus (date of decision 7 May 1997);
(b)Diabetic retinopathy;
(c)Bilateral sensori-neural hearing loss (20 June 1997);
(d)Post Traumatic Stress Disorder (20 June 1997);
(e)Alcohol dependence or alcohol abuse (20 June 1997);
(f)Irritable bowel syndrome (20 June 1997);
(g)Chronic solar skin damage (20 June 1997); and
(h)Cerebral ischaemia (9 September 2002).
8.Mr Funnell has the following conditions determined to be non-service related:
(a)Osteoarthrosis of the right ankle;
(b)Chronic airflow limitation (NIF);
(c)Tinea (NIF)
(d)Psoriasis.
9. On 21 March 2001, Mr Funnell filed an Application for Review of Decision with the Administrative Appeals Tribunal.
10. After this Application was filed, Mr Funnell suffered a stroke. On 9 September 2002, the respondent increased his pension to 100% of the General Rate. Mr Funnell was over 65 years of age at this time.
Issues to be Decided
11. At the commencement of the hearing, the parties agreed that the issue for the Tribunal to decide was whether Mr Funnell was entitled to be paid pension at the Special Rate. Specifically, whether section 24(1)(c), or in the alternative, whether the ameliorating provision of section 24(2)(b) was satisfied.
12. There was no dispute between the parties with respect to both section 24(1)(a) and 24(1)(b) being satisfied as from 22 April 2002 – the date effect was given to cerebral ischaemia being accepted as war-caused.
Examination of Evidence
Frank Funnell, Applicant
13. Mr Funnell said that he last sought employment 2 years ago as a “general hand”. He had been interviewed but was unsuccessful. He said that after this time he had “not felt up to work” primarily because of a lack of mobility and also because of difficulty in getting along with people.
14. He said that he had last worked as an upholsterer “12 weeks ago” but did not intend to do any more work of this nature in the future. As a consequence, he had no alternative other than to sell his tools of trade because he could no longer use them.
15. Mr Funnell was taken to a statement contained in the report of Dr J Hargreaves, a psychiatrist, in which Dr Hargreaves stated:
“He feels that his mood has become ‘crankier’ in recent times and that he particularly gets upset and distressed when dealing with Government Departments…” (T12, Folio 57, 45 January 2001).
However, Mr Funnell could offer no answer to this statement.
16. Mr Funnell gave the following responses to questions asked by Mr Smith during cross-examination:
(a)that on leaving the Army in 1975, he had worked as a truck driver for about four years. He had to give this work away when his wife was diagnosed with cancer. He then worked in a home business selling upholstery motor trim and boat covers;
(b)next, he worked as a casual upholsterer for 56 hours per week in Port Macquarie. Port Macquarie was 32km from the small town of Lake Cattai (population 500) where he lived. There were very limited employment opportunities for him in Lake Cattai.
(c)that he combined his employment as a upholsterer during the day with freelance work after his day’s work had ended. His freelance work as a motor trimmer involved making covers for vintage cars as well as tonneau covers;
(d)that he came to Queensland in 1996. His desire to find work was reflected in his applying for 30 jobs from time to time. He was “always looking for work” as he wanted to work;
(e)he acknowledged his statement that he had not kept records of the positions that he had applied for (Exhibit A2, para 12). However, he said that he had three interviews for upholstery and motor trimming jobs;
(f)in addition, he had applied for truck driving jobs but had not been interviewed. He conceded that his lack of mobility associated with his ankles may have prevented him from undertaking this work;
(g)he conceded that he did not generally seek or apply for other lower paid jobs, or jobs in which the mobility problems with his ankles could be a problem. In addition, he did not seek work as a ticket seller because it “was not me”; and
(h)that he had looked for work for four to five years and applied whenever he saw a job “in his sphere”.
17. Mr Funnell gave the following responses in relation to questions asked by the Tribunal:
(a)that the work of a motor trimmer was a specialised job;
(b)that the nature of the work he undertook involved upholstery work associated with vintage cars and making fancy tonneau covers for utes;
(c)that the number of motor trimmer/upholstery shops in northern Brisbane was around 350. In his residential area there were six such shops. This situation could be contrasted with Lake Cattai where there was only one motor upholstery shop; and
(d)because of the large number of motor trimmer/upholsterer shops in Brisbane, that he had continued to apply for specialised work as a motor trimmer/upholsterer.
Evidence of Patricia Funnell
18. Mrs Funnell’s evidence is contained in her statement (Exhibit A4, 26 April 2001). This statement was unchallenged as no cross-examination was undertaken.
Contentions and Submissions of the Parties
19. Mr O’Gorman submitted that the medical and lay evidence before the Tribunal established that the “alone” test prescribed by section 24(1)(c) was satisfied. Mrs Funnell’s evidence made it quite clear that her husband could not work due to his PTSD. His attitude and temper, due to this condition, would prevent him being employed in a workplace situation. Moreover, Mrs Funnell’s unchallenged evidence was consistent with the applicant’s evidence in this regard. Specifically, Mr Funnell’s evidence that he could not get along with people, that he became easily annoyed when told what to do and that he ceased work, in effect, because of his PTSD.
20. Mr O’Gorman referred the Tribunal to the medical opinion evidence [Medical Impairment Assessment, 3 August 2000] that supported the lay evidence that Mr Funnell could not work because of his PTSD:
(a)subjective distress of PTSD causes Mr Funnell “bad moods, short tempered, oriental people upset him” (T5, Folio 24):
(b)the veteran cannot work as a result of his psychiatric disability (T5, Folio 26): and
(c)subjective distress that (multiple) substance abuse makes Mr Funnell “angry and short-tempered” (T5, Folio 30).
21. Mr O’Gorman referred to a further Medical Impairment Assessment by a psychiatrist, Dr J Hargreaves (Exhibit R3, 4 July 2001) where he had noted [at Question 16]: [That Mr Funnell’s PTSD] “affects his capacity to work” and stated:
“3 An employed veteran will have major difficulties at work, which may be manifested by job.”
and had written in the following comments:
“Could work ‘all day’ in his own shed as he would have no one to work alongside, no pressure etc. Attempts at working in an ordinary workplace would be ‘a failure’.. His businesses as an upholsterer failed owing to his incapacity to effectively work with people. (Irritability, interpersonal conflicts etc). In doing some piece work for family /friends in trade for other goods. (currently 24-30 hours/week)”
22. Accordingly, it was Mr O’Gorman’s contention that the evidence of Mr Funnell, the unchallenged evidence of Mrs Funnell and the medical opinion evidence established that Mr Funnell’s accepted psychiatric conditions, alone, prevented him from engaging in remunerative work. Consequently Mr Funnell was entitled to pension payable at the Special Rate.
23. In the event that the Tribunal did not make such a finding, Mr O’Gorman submitted that the ameliorative provisions of section 24(2)(b) would be satisfied.
24. Mr O’Gorman contended that Mr Funnell’s accepted disabilities were the operative factors which more than any other explained his inability to engage in remunerative work. It was his contention that both Medical Impairment Assessment (T5, Exhibit R3) made it quite clear that Mr Funnell’s accepted disabilities would be the “substantial cause” why he could not engage in remunerative work.
25. In terms of Mr Funnell’s circumstances to genuinely seek remunerative work, Mr O’Gorman submitted that Mr Funnell applied for some thirty jobs when he moved to Queensland. Moreover, he last applied for work some two years ago – which took it into 2001. Accordingly, Mr O’Gorman submitted that Mr Funnell satisfied the “genuinely seeking work” test during the assessment period; that is, in the period following his application.
26. Mr O’Gorman submitted that the type of work that must be considered in Mr Funnell’s circumstances was the work that he had been engaged in as an upholsterer. Mr O’Gorman submitted that Mr Funnell could not continue in employment as an upholsterer because of his accepted psychiatric conditions.
27. Mr O’Gorman submitted that Mr Funnell’s move to Queensland was a positive step in his attempts to find paid work as an upholsterer. He had moved from one town where only one upholstery shop existed to northern Brisbane where there were some 350 such shops.
28. Mr O’Gorman dismissed the respondent’s claim that age was a relevant consideration in Mr Funnell’s case given that he was aged about 64 at the time that he lodged his claim on 25 July 2000. Mr O’Gorman submitted that Mr Funnell’s work was a specialised skill in which experience gained over time produced significant benefits for acquired skills hence demand for his work and, in turn, employment opportunities. Consequently, it was his contention that age was not an impediment to employment as a motor trimmer/upholsterer.
29. Mr O’Gorman concluded with the submission that the ameliorative provision (section 24(2)(b)) was therefore satisfied and the earliest date of effect, should Mr Funnell succeed in this application, would be 22 April 2002.
30. Mr Smith submitted that prior to leaving NSW in 1996 and moving to Queensland, Mr Funnell had been working for 56 hours per week. Accordingly, it was his contention that he was capable of working for at least 8 hours per week as an upholsterer at this time.
31. It was Mr Smith’s contention that the “alone” test in section 24(1)(c) was not satisfied. Whilst Mr Smith acknowledged that Mr Funnell’s accepted war-caused disabilities were “heavily implicated” in preventing him from continuing to undertake remunerative work. Other non-accepted disabilities also contributed. Specifically, restricted mobility due to his ankle disorder.
32. Mr Smith contended that Mr Funnell’s age (60 years) on arriving in Brisbane in 1996 would have been a factor limiting him in finding paid work. It was Mr Smith’s contention that Mr Funnell’s lack of success in finding paid work – essentially as a motor trimmer/upholsterer after some 30 job applications in four years, could be attributed to his age. He was competing with younger people and contended that “age is against him”..
33. Mr Smith submitted, that in the circumstances of Mr Funnell’s being interviewed on only three occasions following thirty job applications, this situation could be attributed to:
(a)“something else whom they thought from the resume was better qualified”; or
(b)“perhaps they looked at his application and saw how old he was and thought he won’t be around much longer”.
34. Furthermore, Mr Smith submitted that there was no evidence before the Tribunal as to why Mr Funnell’s accepted disabilities prevented him from getting job interviews or job offers.
35. Mr Smith concluded with the submission that the ameliorating provisions of section 24(2)(b) were not satisfied. Although Mr Funnell made some attempts at seeking work, his age and the state of the labour market were against him. Moreover, there was no evidence that he genuinely sought work during the assessment period itself, at the commencement of which he was almost 64 years old.
Consideration of the Issues
36. The object of the Tribunal is to review administrative decisions, not only on their merits, but in accordance with the law at all times. The relevant legislation is the Veterans’ Entitlements Act 1986.
37. The Tribunal has considered and applied the following case law authorities to the issues to be decided: subsections 24(1)(c) and 24(2)(b) of the Veterans’ Entitlements Act.
Legal Framework
Statutory Requirements and Legal Principles
38. The following approach was used in Forbes v Repatriation Commission (2000) 101 FCR 50 at 52 and 53 by RD Nicholson FCJ, to interpret and to apply the provisions of subsection 24(1)(c):
“That approach [ss 24(1)(c)] is best understood by dividing it into its two limbs and relating those limbs to the relevant portions of what follows in s 24(2).
The first limb of s 24(1)(c) reads:
‘(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…’
That limb must be read subject to the application of s 24(2)(b) which reads:
‘(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.’
The second limb of s 24(1)(c) reads:
‘(c)…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’
This is to be read in conjunction with s 24(2)(a) which provides:
‘(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 reasons of that incapacity if:
(i)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason;…’.” (Tribunal emphasis)
39. With respect to the requirements of subsection 24(1)(c), Nicholson J referred to the decision of the Full Court of the Federal Court in Flentjar v Repatriation Commission (1997) 48 ALD 1 at pages 4-5 where the Court said that the issues before the Tribunal were:
“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?”
40. The above matters must be satisfied to the reasonable satisfaction of the Tribunal in accordance with the standard in subsection 120(4): Re Starcevich and Repatriation Commission (1986) 10 ALN 202; Re Doyle and Repatriation Commission (1986) 47 ALD 187. That meant, as Tamberlin J noted in Jackman v Repatriation Commission [1997] FCA 564:
“The AAT had to determine, to its reasonable satisfaction, whether the applicant’s war-caused disabilities were the only reason for him not being in remunerative employment. Burchett J in Cavell stated that this determination is not to be made upon ‘nice philosophical distinctions’, equally it is not to be made upon complex calculations of the probability that an intervening event may have occurred. The approach is to be guided by commonsense with an ‘eye to reality’..”
41. The question of a combination of war service conditions and non-war caused conditions and undertaking remunerative work, was also considered by Nicholson J in Forbes v Repatriation Commission (supra) at page 57:
“The applicant’s case requires the Tribunal to not have regard to the non war-caused condition where there is a finding that it alone did not stop the applicant from undertaking work. In my view, that course is not open to the Tribunal in the light of the words used in the first limb of s 24(1)(c). The question whether the veteran by reason of the war-caused condition ‘alone’ has been prevented from continuing to undertake remunerative work can only be answered by reference to all the circumstances in which the war-caused condition exists. The fact that a non war-caused condition is not alone causative of such preventative effect does not prevent it having that effect in combination with the war-caused condition. The possibility of combination is recognised in the third conceptional environment identified in the applicant’s case. Furthermore, it is consistent with the application by a Tribunal of a common sense approach ‘with an eye to reality’.
As in the case of the present applicant, it is possible that the war-caused condition will be far and away the more dominant of the causes of the preventative effect where there is also present a non war-caused condition having such effect in combination. The result is that the presence of the latter will deny to a veteran qualification for the special rate of pension. Parliament has sought to ameliorate this position by the provisions in s 24(2)(b), to which reference has been made.. To date, the applicant has been unable to qualify pursuant to that provision. Whether he can qualify pursuant to that provision in the future remains a question for consideration.” (Tribunal’s emphasis)
42. With respect to the third question identified in Flentjar, Burchett J in Cavell v Repatriation Commission (1988) 9 AAR 534 agreed with the following statement by the Tribunal, in terms of it clearly revealing an application of the statutory test, in an unexceptional manner, to the material in evidence before the Tribunal:
“that it followed from the use of the word ‘alone’ in s.24, that any factor having employment consequences which played a part in the applicant’s inability to work or to obtain and hold remunerative employment, is sufficient to displace the applicant’s case for pension at the special rate.”
43. Section 24(2)(b) has long been interpreted as an ameliorative provision, as compliance with this subsection would excuse a veteran from having to meet the “alone” test as provided in subsection 24(1)(c).
44. In Re Hornery and Repatriation Commission [1998] AATA 602 (11 August 1998), the Tribunal stated [at para 41]:
“If a veteran falls within s. 24(2)(b), the veteran is relieved from the ‘alone’ requirement in s. 24(1)(c). In order to fall within s. 24(2)(b) the veteran must satisfy the Commission (and now the Tribunal standing in the shoes of the Commission) that he or she ‘has been genuinely seeking to engage in remunerative work…’ and the Tribunal must also be satisfied that the veteran would, but for the incapacity, be continuing so to seek to engage and that war caused incapacity ‘is the substantial cause of his or her inability to obtain remunerative work’.”
45. In Rendell v Repatriation Commission [2001] FCA 1881 (21 December 2001), at para 37, French J referred to the decision in Hornery, stating that the above reasoning by the Tribunal represented “a relevant point of construction” and was “conveniently set out”. Furthermore, French J made the following observations on the operation of section 24(2)(b):
“…it cannot have been intended that veterans under the age of 65 who have ceased work by reason of incapacity from war-caused injury or war-caused disease, or both, alone, are required to actively pursue remunerative work before they can be entitled to payment of the Special Rate. Section 24(2)(b) is ameliorative of s 24(1)(c) and is to be applied where the Tribunal is satisfied that the veteran has been genuinely and actively pursuing remunerative work in the sense of looking to obtain work and that war-caused incapacity is the substantial cause of his inability to obtain it”.
46. In Byrne v Repatriation Commission [2001] FCA 1134 (17 August 2001) Gyles J made the following observations as to the proper application of section 24(2)(b) [at para 10]:
“The issue is not limited to the question why the incapacitated is in fact unable to obtain employment in the particular place [Kempsey], although that may be relevant. In order to judge the effect of the relevant incapacity, it is necessary to compare the position of the applicant as he is with the position he would be without the relevant incapacity. In the present case, that requires the formation of an assessment of the work prospects of the applicant as a fifty-one year old man with his characteristics and abilities, who had never suffered from PTSD, bilateral sensorineural hearing loss, osteoarthritis of right and left knees or sleep apnoea and who is probably not living in Kempsey. That process enables the true effect of war-caused incapacity upon the ability of the applicant to obtain work to be assessed.”
47. The meaning of the term ”substantial cause” was considered in Fox v Repatriation Commission (1997) 45 ALD 317. Kiefel J noted that this term:
“requires that, if the incapacity is not of itself productive of an 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’...”
48. In Hendy v Repatriation Commission [2002] FCA 602, Madgwick J made the following observations in relation to the application of section 24 (2)(b) by direct reference to the following conclusion in Hall v Repatriation Commission (1994) 33 ALD 454, wherein Spender J said (at 461):
"It seems to me that the question of whether a veteran has been `genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing to so seek' has to be addressed in a realistic way, having regard to the nature and extent of the incapacity. Many veterans are 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 seems to involve something of a charade." [Tribunal emphasis]
49. Furthermore, in Hendy, Madgwick J made the following reference to Hall v Repatriation Commission (1994) 33 ALD 454:
“His Honour [Spender J] also observed that evidence which shows that a veteran who may not be able to seek employment but indicated a willingness to accept work if any could be found, would be enough to satisfy the ‘genuinely seeking’ requirement of section 24(2)(b).”
50. In Hendy v Repatriation Commission [2002] FCA 602, Madgwick J also considered the question of a veteran engaging in remunerative work in relation to factors such as the veteran’s age, time out of the workforce and war service conditions. At para 40, Madgwick J made the following statement:
“It seems clear however that it is not in the intendment of the legislation that decision-makers might resort, under the rubric of labour market factors, to the mere consequences of a veteran’s service-related disability for the purpose of defeating the veteran’s claim. Among other things, if a service-related condition incapacitates a veteran for particular work, it will be more or less true in every case that, as time goes by, the veteran’s ability to re-enter the workforce will tend to be impaired on account of lack of recent experience of that work, absence from the workforce generally and, for older veterans, their increasing age. There would have been little point in providing for a work incapacity pension if the direct consequences of the incapacity could defeat the right to the pension.”
Application of Facts to the Law
51. The central question for the Tribunal to decide, pursuant to section 24 of the Act, is whether the accepted service-related conditions suffered by Mr Funnell are of such a nature in themselves to have caused him to cease work and to continue to prevent him from undertaking “remunerative work” that he was previously undertaking. The parties have agreed at the outset that the only issues for the Tribunal to decide were the application of subsection 24(1)(c) and subsection 24(2)(b) to Mr Funnell’s factual circumstances.
52. Applying the first step in Flentjar’s case the relevant “remunerative work” Mr Funnell had undertaken was truck driving and motor-trimming/upholstery: see Starcevich v Repatriation Commission (1987) 18 FCR 221 per Fox J at 225.
53. In deciding the four issues identified in Flentjar’s case, the Tribunal has applied the “reasonable satisfaction test” in accordance with the standard prescribed by subsection 120(4) and has followed the meaning applied in Jackman’s case.
54. In addition, the Tribunal has considered the issues in relation to the “assessment period” as prescribed in section 19(9), as applied in Repatriation Commission v Braund (1991) 23 ALD 591.
55. The first issue for the Tribunal to consider is whether the requirements of subsection 24(1)(c) are satisfied – whether Mr Funnell’s service related disabilities, alone, prevented him from continuing to resuming remunerative work. With respect to the third question identified in Flentjar’s case, the decisions in Cavell and Forbes make it quite clear that any factor having employment consequences, which may play a part in Mr Funnell’s inability to work, or to obtain and to hold paid employment, would be sufficient to displace the case for pension at the Special Rate.
56. Some of the service-related conditions of Mr Funnell clearly have an impact on his capacity to continue or to resume paid employment. In particular, his PTSD, alcohol dependence/abuse, diabetes (retinopathy) and deafness.
57. However, Mr Funnell also has other non-accepted conditions, in particular osteoarthritis of his ankle, which contributes to his capacity to continue in paid employment. Mr Funnell’s evidence (see para 16) stated mobility problems in his ankles may have been a problem in pursuing work as a truck driver – work that he had undertaken for four years after leaving the Army in 1975 and, in addition, some lower paid jobs.
58. However, the Tribunal finds that the accepted disabilities of Mr Funnell are far and away the more dominant of the causes preventing him from undertaking work relative to the non-accepted disability associated with his ankle.
59. Accordingly, by applying the principles in Cavell’s case and Forbe’s case, the Tribunal is reasonably satisfied from the evidence before it that it was not Mr Funnell’s accepted disabilities which, alone, prevented him from resuming work or continuing in work that he was previously undertaking. A combination of accepted service-related disabilities and non-service related disabilities were involved.
60. The Tribunal concludes that on an assessment of all of the evidence before it, factors other than his accepted service-related conditions, alone - having employment consequences, have combined to play a part in preventing Mr Funnell from continuing work of the kind that he was previously undertaking. Accordingly, the requirements of subsection 24(1)(c) are not satisfied.
61. The Tribunal has already noted that the legislation contains provisions to ameliorate subsection 24(1)(c), namely subsection 24(2)(b) of the Act. In Mr Funnell’s circumstances, given that he was under 65, at the time of his application “substantial cause” may be substituted for the “alone” test – provided that the other pre-conditions of subsection 24(2)(b) are met.
62. The first pre-condition the Tribunal considers is whether Mr Funnell’s accepted service-related conditions are the substantial cause of his inability to obtain paid employment. Furthermore, the Tribunal has applied the meaning of “substantial” in Fox’s case in evaluating the accepted service-related conditions relative to the non-accepted conditions.
63. The Tribunal is reasonably satisfied that Mr Funnell’s accepted service-related conditions are the “operative factors” – more than a combination with non-accepted factors, for his inability to obtain paid employment. In particular, the Tribunal concludes that it is Mr Funnell’s PTSD condition and its symptoms that are the “operative factors” more than any of the “combined factors” that are the substantial cause of his inability to obtain paid work in which to engage for the following reasons:
(a)the Tribunal’s earlier finding of the significance of his accepted disabilities for employment (see para 58);
(b)the expert medical opinion evidence. The first Medical Impairment Assessment (T5, 3 August 2000) states that “the veteran cannot work as a result of his psychiatric [PTSD] disability” and that this conclusion is related to his “inability to concentrate, difficulty working with others – argumentative” (Folio 26);
(c)Mrs Funnell’s unchallenged evidence (Exhibit A4, 26 April 2001) confirms these observations as she has made the following comments about Mr Funnell’s social and emotional behaviour: frequent loss of temper; his great difficulty to interact with people; the need to “keep my mouth shut and avoid him when he is in his moods”; and that Mr Funnell had few friends and did not socialise much;
(d)Mr Funnell’s evidence (Exhibit A2) in relation to his emotional behaviour is also relevant. The Tribunal accepts that he had difficulty getting along with workers and co-workers, that his job was terminated following fights with co-workers (and in one case a fight with a customer) and the difficulty he has controlling his temper because of his PTSD; and
(e)Dr Hargreaves psychiatric opinion evidence which confirmed the correlation between Mr Funnell’s PTSD condition and his major difficulties in the workplace; in particular problems with working with others (see para 21) as well as the following observations or his social and emotional behaviour (Exhibit R3, Folio 39):
“Rarely associated with one other person outside family. His interpersonal aggression is a major problem. He used to be more sociable when he was living in NSW. Quite withdrawn after leaving his families environment (hometown). His condition affected his ability to make new friends.”
64. Next the Tribunal has adopted the approach in Byrnes in order to assess the true effects of his accepted war-caused incapacity on Mr Funnell’s ability to obtain work. Consequently, the Tribunal has considered the work prospects of a 64 year old man with Mr Funnell’s characteristics and abilities who has never suffered PTSD, alcohol dependence or abuse, diabetes mellitus, diabetes retinopathy, bi-lateral sensori-neural hearing loss, irritable bowel syndrome and chronic solar skin damage. The Tribunal’s reasons in relation to Mr Funnell’s PTSD as being the “operative factor” for his inability to obtain paid work (see para 63) are a significant consideration in this regard.
65. The approach in Byrne has also been combined with the reasoning in Rendell “in the sense of [Mr Funnell] looking to obtain work and that war-caused incapacity is the substantial cause of his inability to obtain it”. In this regard, the Tribunal concludes that it is reasonably satisfied that Mr Funnell’s evidence of his problems in the workplace due to his PTSD as well as his dismissal following fights with co-workers and a customer is correlated with evidence of the effects of his PTSD on his emotional and social functioning, as can be adduced from the medical opinion evidence [para 63(b)(e)], together with his wife’s observations on daily living with him.
66. The Tribunal has also adopted the approach as taken by Madgwick J in Hendy in considering the reasoning in Hall: that is, to address the issue in a “realistic way” and to consider any “evidence which shows that a veteran who may not be able to seek employment but indicated a willingness to accept work if any could be found”..
67. The Tribunal concludes:
(a)based on the Tribunal’s earlier findings, that a correlation exists between Mr Funnell’s PTSD condition and his social and emotional functioning in the workplace;
(b)that prospective employers did not like his “attitude” when interviewed [Exhibit A2, para 13];
(c)that Mr Funnell had used a range of means – formal [for example registering with Centrelink at Redcliffe; responses to advertisements] and informal [for example walk up enquiries] to find work in his local area in Queensland over time (Exhibit A2);
(d)that he sought job opportunities frequently [para 16];
(e)his past ethic was towards working; and
(f)that he was “always looking for work” as he wanted to work [para 16(d)].
68. Accordingly, the Tribunal finds that there was a willingness on Mr Funnell’s part to accept work if any could be found.
69. It was not in dispute between the parties that Mr Funnell suffered a loss of salary or wages or of earnings. The Tribunal further concludes, given the above findings in relation to the first limb of sub-section 24(1)(c) and sub-section 24(2)(b) that sub-section 24(2)(a) of the Act is also satisfied.
70. The Tribunal had not considered Mr Funnell’s age as a factor in relation to the question of his engaging in remunerative work as the Tribunal has relied on the reasoning of Madgwick J in Hendy’s case in this regard.
71. For all of the above reasons, the Tribunal sets aside the decision under review and in substitution thereto decides that Mr Funnell is entitled to a pension at the Special Rate. The earliest date of effect is 22 April 2002.
I certify that the 71 preceding paragraphs are a true copy of the reasons for the decision herein of Dr E K Christie, Member
Signed: Sarah Oliver
Associate
Date of Hearing 13 February 2003
Date of Decision 12 December 2003
Counsel for the Applicant Mr D O'Gorman
Solicitor for the Applicant Gilshenan and Luton
For the Respondent Mr M Smith, Departmental Advocate
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