Ganley and Repatriation Commission
[2005] AATA 427
•12 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 427
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2004/115
VETERANS' APPEALS DIVISION ) Re BARRIE JOHN GANLEY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr JG Short (Member) Date12 May 2005
PlaceAdelaide
Decision The Tribunal sets aside the decision under review, and in substitution therefore determines that Mr Ganley is eligible for a pension at the special rate on a temporary basis pursuant to s 25 of the Veterans’ Entitlements Act 1986, with effect from, and including, 28 July 2003 until 18 January 2006.
(Signed)
JG SHORT
(Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – Disability Pension – special rate – type of remunerative work previously undertaken – applicant is prevented from continuing to undertake remunerative work for war-caused reasons alone – work often performed on short-term contracts – here incapacity temporary – applicant entitled to temporary special rate – decision set aside
Veterans’ Entitlements Act 1986 ss 19, 24, 25, 120
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Smith (1987) 15 FCR 327
Banovich v Repatriation Commission (1986) 69 ALR 395
Doig v Repatriation Commission, Federal Court, 18 December 1996, 1106/96
Cavell v Repatriation Commission (1988) 9 AAR 534
Forbes v Repatriation Commission (2000) 101 FCR 50REASONS FOR DECISION
12 May 2005 Mr JG Short (Member) 1. Mr Barrie Ganley served with the Royal Australian Army (the Army) between 1 July 1965 and 30 June 1967. Mr Ganley has a number of conditions which have been accepted as war-caused disabilities by the respondent (the Commission). Those accepted disabilities are burns to face, arms and body (healed); left colles fracture (healed); bilateral pterygia; chronic bronchitis and emphysema; bilateral sensorineural hearing loss; tinnitus; and post-traumatic stress disorder (PTSD).
2. On 30 June 2003 Mr Ganley lodged an application with the Commission for an increase in his rate of pension. By decision dated 18 July 2003 the Commission refused the application and determined that Mr Ganley’s entitlement to Disability Pension be continued at 100 percent of the General Rate. On 2 February 2004 the Veterans’ Review Board (VRB) affirmed the decision. On 20 April 2004 Mr Ganley applied to this Tribunal for a review of the decision of the Commission, as affirmed by the VRB.
3. Mr Ganley and his wife gave oral evidence to the Tribunal. The Commission tendered the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents). The Commission also tendered a typed transcription, accepted by both parties as accurate, of an undated written statement from Mr Ganley addressed to Mr Chris Munzer, and “to whom so ever it may concern”. No oral evidence was called by the Commission.
issue for determination
4. The issue for determination is whether Mr Ganley satisfies s 24(1)(c) of the Veterans’ Entitlements Act 1986 (the Act), that is:
· whether he is, by reason of incapacity from his war-caused injuries alone, prevented from continuing to undertake remunerative work that he had been undertaking; and
· whether in consequence he is suffering a loss of wages or earnings on his own account which he would not be suffering if he were free from that incapacity.
5. It is common ground that Mr Ganley satisfies the first criterion under s 24, that is, Mr Ganley’s degree of incapacity from war-caused injury or war-caused disease, or both, has been determined to be at least 70 percent. The Commission has also conceded that Mr Ganley satisfies the second criterion of s 24, that is that Mr Ganley has an incapacity from war-caused conditions which are of such a nature as, of themselves alone, to render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. These criteria are contained in ss 24(1)(a)(i) and 24(1)(b) respectively of the Act.
6. It is also common ground that Mr Ganley’s last relevant period of employment ended in or about March 2002. Mr Ganley told me that he had, of more recent times, secured a position directing horse trainers with their floats into the Port Lincoln Race Course. He said that in this position he works for approximately 3-4 hours on a race day, which he suggests would occur on ten or twelve occasions each year. Advocates for both Mr Ganley and the Commission submitted that this employment was irrelevant to the application.
7. I have reached the conclusion that Mr Ganley has satisfied the requirements of s 24(1)(c) of the Act with effect from 28 July 2003, and that his incapacity is temporary. Consequently he satisfies s 25(1) of that same Act. I am satisfied that he is likely to remain totally but temporarily, incapacitated for work until 18 January 2006.
legislation
8. Sections 24(1)(c) and 24(2)(a) of the Act provide as follows:
"24(1)This section applies to a veteran if
...(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
...
(2) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; ..."
If s 24(1) of the Act applies to Mr Ganley, he will be entitled to a pension at the special rate provided for in s 24(4) of the Act.
9. Section 24(2)(b) of the Act provides as follows:
"(2) For the purpose of paragraph (1)(c):
...(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."
background and evidence
10. I found both Mr and Mrs Ganley to be frank, reliable and co-operative witnesses. I accept the evidence of Mr Ganley, and have also accepted the medical opinion evidence of psychiatrist, Dr M Ewer, contained in reports dated 25 March 2003 and 29 July 2003. I make the following findings based primarily upon that evidence, and upon the information contained in the exhibits.
11. Mr Ganley turned 60 years of age on 9 January 2005. On the application day 30 June 2003, also the start of the assessment period, Mr Ganley was 58 years of age. Mr Ganley was raised from the age of 4 years until approximately 16 years at Hawker in the north of South Australia. Mr Ganley explained that prior to his conscription to the Army when he was about 20 years of age, he had worked at a grocery store, and for a time with the Post-Master General’s Office. He also worked for an irrigation supply firm in Queensland. I note that this work experience is now at least 40 years ago, and I consider it of little relevance. During his Army service Mr Ganley primarily undertook catering duties. Mr Ganley said that after leaving the Army he worked as a cook for an American camp in an outback location near Innamincka for about 6 months, and subsequently continued to work as a cook/catering manager for employers on fixed term contracts. Mr Ganley said that he would go from position to position, and stay as long as either his contract, or his principal’s contract, remained in effect.
12. Mr Ganley married Mrs Ganley approximately 36 years ago. Mrs Ganley had previously worked in a fashion shop, and had some book-keeping experience. She had commenced a dress-making apprenticeship but ended that apprenticeship on Mr Ganley’s return from South Vietnam. She helped Mr Ganley manage the Whyalla Working Men’s Club for 10 years until about 1989. She said that marital problems contributed to a decision for herself and Mr Ganley to “head bush”.
13. Mr Jolly led evidence from Mr Ganley particularly concerning three relevant periods of employment, the first of which extended for a period of approximately 9 years until about April 2001 at Mount Ebenezer Community. Mr Ganley was appointed the manager of the local Aboriginal communities’ roadhouse complex. That business had been experiencing some financial and other difficulties arising out of the abuse of alcohol by some members of the community, and one of the reasons Mr Ganley had been attractive to his employers was the fact that he had served in the Army and appeared to be a strong manager.
14. Mr Ganley had difficulty establishing a rapport with assistant managers, and eventually Mrs Ganley was formally appointed as assistant manager. This appointment commenced in about 1993, about 2 years after Mr and Mrs Ganley moved to Mount Ebenezer.
15. Other staff found Mr Ganley’s manner and volatile reactions difficult to accept, and Mr and Mrs Ganley’s roles evolved to include Mrs Ganley liaising between Mr Ganley and the other staff members.
16. In about 1996 the local Aboriginal community appointed Mr Glendell Schrader to manage their community, along with two other communities he was already managing. Mr and Mrs Ganley perceived difficulties from the time of Mr Schrader’s appointment. They understood that Mr Schrader was encouraging them to sign a fixed term contract, as a means of dispensing with their services. Mrs Ganley said that at this time Mr Ganley was so upset that he would consume large volumes of alcohol in order to help him deal with Mr Schrader. Mr and Mrs Ganley said they resisted signing the contract for approximately 9 months, but eventually felt that they had no choice. They signed a 2 year contract with effect from the date the contract was first presented to them. In effect, the remaining period under the contract was about 15 months. Mr Ganley continued to display anger and aggression in his dealings with people (other than the elders of the Aboriginal community) during his remaining time at Mount Ebenezer. Mr Ganley further increased his rate of alcohol consumption over the remaining contract period. Towards the end of the contract period, Mr Schrader told Mr Ganley that the contract would not be renewed and handed him a letter to that effect.
17. After leaving Mount Ebenezer, Mr and Mrs Ganley eventually returned to Port Lincoln where they owned a residential property. Mr Ganley continued to be anxious and aggressive, and fights frequently occurred between himself and Mrs Ganley. Both considered that the best course of action was to return to “the bush”. Mr and Mrs Ganley next secured a fixed term contract of about 8 weeks from October to December 2001, managing a roadhouse at Regans Ford in Western Australia. Mr Ganley again encountered difficulties. He found it particularly difficult to learn to operate a fuel console and a credit card machine. He displayed symptoms of nervousness, anxiety and stress. Mr Ganley was initially assigned front counter duties however it soon became clear that he could not cope with these duties and he took up a position in the kitchen. Mrs Ganley took care of the front counter. Mr Ganley said that the kitchen was very small, and that he found that he could not tolerate people standing in close proximity to himself. Mr Ganley said that this was the first time he had really noticed that it made him very nervous and uncomfortable to have people stand behind him, or in close proximity. Mr Ganley said that he still has problems, even at home, with people standing near him. He said that he and Mrs Ganley cannot be in the kitchen at the same time.
18. During the 8 week period of this fixed term contract, Mr Ganley continued to look for other work. He applied for a number of jobs. He was eventually successful in responding to an advertisement for management positions at the Gin Gin Roadhouse. The positions at the Gin Gin Roadhouse were created in anticipation of the roadhouse proprietors securing a substantial catering contract. Mr Ganley’s Army experience in catering was initially attractive to the proprietors. A probationary period of 3 months was agreed, and Mr and Mrs Ganley went to work. Mr Ganley said that he again experienced problems in being required to work in a small kitchen. He said it was a little better than at Regans Ford, as there was another room into which he could “escape”. He explained that his role was not as a supervisor. Nevertheless he experienced conflict, particularly with the female proprietor. Mr Ganley and the female proprietor had frequent arguments. Mrs Ganley said that she could not, at that time, understand why Mr Ganley was so anxious and why he had such difficulty dealing with others, including the female proprietor. She described Mr Ganley’s interactions with others as short, sharp and shiny, abrupt and aggressive. Mrs Ganley tried to speak with the female proprietor on Mr Ganley’s behalf, to explain his difficulties and to see if they could discover a way in which they could communicate better. This intervention was unsuccessful, and a meeting was called between the Ganleys and the proprietors of the roadhouse. Mrs Ganley said that during the meeting “it evolved from the conversation” that they would leave. Other problems experienced by the Ganleys at the Gin Gin Roadhouse were late payment of wages, and a lack of confidence in the proprietor’s ability to secure and fulfil the anticipated large catering contract.
19. After their experience at the Gin Gin Roadhouse, Mr and Mrs Ganley again returned to their home in Port Lincoln. Their home had been let, and they experienced difficulties in recovering the property from the tenants. Mrs Ganley said that initially Mr Ganley seemed stable, and she undertook a computer course. Mrs Ganley said that Mr Ganley attended employment agencies, but was upset that the agencies required him to apply for jobs through the agency rather than applying directly to prospective employers. Eventually Mr Ganley drafted his own letter of introduction and application for employment supported by a curriculum vitae, and approached all businesses in and around Port Lincoln in an attempt to secure employment. He was unsuccessful.
20. After the difficulties recovering their property lasting about 5 months, and Mr Ganley’s inability to find work, Mrs Ganley said Mr Ganley became “very sick”. This was in about September 2002, and approximated the time when Mrs Ganley was able to secure employment. Mrs Ganley prevailed upon Mr Ganley to attend a local doctor in Port Lincoln. He was prescribed anti-depressants. Mrs Ganley said that she did not want to believe that Mr Ganley suffered from depression, and consequently encouraged him not to have the prescription filled. Mrs Ganley said that eventually it became obvious that Mr Ganley was extremely unwell, and consequently she and Mr Ganley’s sister convinced Mr Ganley to attend the “Men’s Shed” in Port Lincoln, an organisation associated with the Vietnam Veterans’ Association. Mrs Ganley said that it was at this time she began to fully understand and appreciate the extent to which Mr Ganley’s experiences in South Vietnam had affected him. Mrs Ganley described Mr Ganley at this stage as “not being able to get out of his own road”.
21. Mr Ganley attended the Men’s Shed and contacted the Vietnam Veterans’ Counselling Service. He currently undertakes counselling once every month, and takes anti-depressant medication prescribed by psychiatrist, Dr M Ewer.
22. Mr Ganley’s mental state prevented him from continuing to lodge the number of job applications he had previously. As mentioned at paragraph 6, Mr Ganley has of recent times secured some casual employment, although it is only for about 3 or 4 hours a day, approximately ten days a year.
23. I questioned Mr Ganley about his current ability to undertake employment. Mr Ganley said that he felt that his accepted disability of chronic bronchitis and emphysema would prevent some types of strenuous work. He was uncertain whether he could perform catering or managerial type duties. He said that he would need to be able to treat his PTSD by maintaining his regime of medication and monthly counselling. Mrs Ganley said that she considers that the medication taken by Mr Ganley in relation to his PTSD may now affect him to the degree where he would have insufficient energy to perform necessary tasks of employment.
medical evidence
24. Neither party called expert medical witnesses to give oral evidence; however medical reports of psychiatrist, Dr M Ewer, were provided as part of the T documents. Dr M Ewer’s first report dated 25 March 2003 diagnosed Mr Ganley as suffering chronic PTSD; alcohol dependence and nicotine dependence, in addition to his other already accepted disabilities. Dr Ewer described Mr Ganley’s symptoms as interfering with his ability to work in that it reduced his ability to cope with pressure. He showed irritability and poor concentration. He provided an impairment rating of 3 on Table 4.4 “Occupation” of the Guide to the Assessment of Rates of Veterans’ Pensions (GARP). Dr Ewer at that time suggested that Mr Ganley could work for 20 hours a week when taking into account his psychiatric problems. He said that he would regard Mr Ganley’s then current symptoms as temporary in that Mr Ganley had not, at that time, had the benefit of psychiatric treatment. Dr Ewer’s report was addressed to the Department of Veterans’ Affairs.
25. Dr Ewer’s second report, dated 29 July 2003, followed his review of Mr Ganley conducted on 28 July 2003. This report was addressed to Mr Ron Coxon of the Vietnam Veterans’ Association. The report indicates, amongst other things, that Mr Ganley’s PTSD had been exacerbated during the preceding month. On this occasion Dr Ewer suggested that Mr Ganley’s symptoms would now prevent work for at least 8 hours a week. He referred to Mr Ganley as being of labile mood; over rigid and controlling; tending to be in conflict with other people; and experiencing difficulties getting on with other people; poor memory and concentration; lethargy and insomnia. Dr Ewer suggested an impairment rating of 8 points on Table 4.4 “Occupation”. (This is an increase from the 3 impairment points provided in Dr Ewer’s earlier report). Similarly Dr Ewer significantly increased Mr Ganley’s rating on the “subjective distress” Table from 10 to 15, and on “functional effects” from 2 to 3. As mentioned, Dr Ewer indicated that Mr Ganley was now unfit for paid employment, in that Mr Ganley could not work for 8 hours per week, taking into account his psychiatric problems. Dr Ewer did however, go on to say “… Given that Mr. Ganley has yet to receive appropriate psychiatric treatment and given that his medication is about to change and given that there are a number of interventions for his excessive alcohol intake which have yet to be tried I would consider his psychiatric state to be ‘temporary’. …” [T19/99]
commission’s submissions
26. Mr Crowe submitted that although s 24(1)(a) and s 24(1)(b) of the Act are established, Mr Ganley did not satisfy s 24(1)(c), in that his incapacity from war-caused injury or disease or both alone, did not prevent him from continuing to undertake remunerative work, that he was undertaking and is not, by reasons thereof, suffering a loss of salary or wages on his own account that he would not be suffering if he were free from that incapacity. Mr Crowe conceded that both Mr and Mrs Ganley had provided their evidence honestly. He suggested however that Mr Ganley’s evidence may be of limited value due to his memory problems, and Mr and Mrs Ganley’s lack of understanding of the requirements of s 24 of the Act. Mr Crowe submitted that the assessment period commenced on 30 June 2003, and consequently, if Mr Ganley had ceased work before that date due to his accepted disabilities, this did not necessarily qualify him for a special rate of pension. He said however that if Mr Ganley’s accepted disabilities had prevented him from working after 30 June 2003, then s 24(1)(c) of the Act was made out, and Mr Ganley’s claim should be accepted. Mr Crowe further suggested that as Mr Ganley had genuinely sought employment after 30 June 2003, if his accepted disabilities were considered to be the substantial cause of his inability to find work, then again the case would be made out.
27. Mr Crowe said that the relevance of the evidence provided in relation to the three particular periods of employment described in the evidence was limited to throwing light on the reasons why Mr Ganley failed to work after 30 June 2003. Mr Crowe said that there were reasons other than the effects of Mr Ganley’s accepted disabilities, why Mr Ganley has ceased the three specific periods of employment canvassed in the evidence. In relation to Mount Ebenezer, he referred to the intervention of Mr Glendell Schrader. He suggested however that Mr Ganley’s time at Mount Ebenezer had been generally successful. Similarly, he said that at Regans Ford, Mr Ganley may have been unhappy because he worked as a cook and the kitchen was too small. He conceded however that the size of the kitchen may have impacted upon Mr Ganley’s symptoms of PTSD as well as representing a practical problem.
28. In relation to the Gin Gin Roadhouse, Mr Crowe submitted that again, matters unrelated to Mr Ganley’s accepted disabilities contributed to the cessation of that employment. He again referred to the size of the kitchen and the fact that Mr Ganley was working as a cook, whereas in the past he had been used to more independence as a manager. He also referred to delays in payment of wages which meant that Mr and Mrs Ganley lost some confidence in the proprietor’s ability to secure and maintain a large catering contract.
29. Mr Crowe said that the trial period at Gin Gin Roadhouse had not been completed, and that although Mr Ganley’s PTSD may have been a substantial cause of the cessation of that employment, the question remained unanswered as to whether Mr and Mrs Ganley would have left in any event, particularly whether the position would have lasted until the commencement of the assessment period.
30. Mr Crowe also submitted that from about July 2002, there were a number of reasons why Mr Ganley failed to find employment. He referred to family conflict in that Mr Ganley wanted to return to the bush, whereas Mrs Ganley had secured employment and wanted to remain in Port Lincoln. Mr Crowe referred to the fact that Mr Ganley had looked for many jobs in Port Lincoln. He said that the Tribunal was left to speculate as to why these applications had been unsuccessful. He noted that the employment agencies had advised Mr Ganley to delete reference to his military service from his curriculum vitae. Mr Crowe suggested that perhaps Mr Ganley had a “militant manner”, which may have contributed towards his lack of success in finding employment. This suggestion begs the question whether Mr Ganley’s presentation had been materially affected by his military experience and/or by his PTSD. Mr Crowe also referred to a medical report dated 7 March 2003 from Dr PA du Toit, which indicated that Mr Ganley’s respiratory conditions did not prevent him from undertaking activities, but that he did become short of breath.
31. Mr Crowe concluded his submissions by saying that s 24(2)(b) of the Act may be of some relevance in that he agreed that Mr Ganley had been genuinely seeking employment. However, he contended that Mr Ganley’s accepted disabilities were not the substantial cause of his inability to find work. Instead he referred to Mr Ganley’s choice to remain in Port Lincoln, his preference for jobs which allowed him a significant degree of independence, and Mr Ganley’s experience of anxiety, which he said may have arisen from Mrs Ganley’s success in finding employment.
32. Mr Jolly submitted that Mr Ganley did satisfy s 24(1)(c) of the Act, particularly, if necessary, in the light of s 24(2)(b) of the Act.
consideration
33. In reaching my decision, I had regard to the assessment period as defined in s 19(9) of the Act. The assessment period commences on the date of Mr Ganley’s claim (in this case lodged on 30 June 2003) and continues until the date of this decision.
34. In considering the application of s 24(1)(c) of the Act, I first refer to the analysis of Branson J in the Full Court of the Federal Court in Flentjar v Repatriation Commission (1997) 48 ALD 1 at pages 4-5. Her Honour said that a proper consideration of s 24(1)(c) required responses to the following four questions:
“1.What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the Act?
2.Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work.
3.If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4.If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?”
35. Under s 120(4) of the Act, I must decide relevant issues to my reasonable satisfaction, a standard which equates with proof on the balance of probabilities: see Repatriation Commission v Smith (1987) 15 FCR 327. Neither party has an onus of proof (s 124(6) of the Act), and I must act according to substantial justice, and the substantial merits of the case without regard to legal form and technicalities. The first question in Flentjar (supra) requires a consideration of the remunerative work which Mr Ganley was undertaking. According to Banovich v Repatriation Commission (1986) 69 ALR 395, this is to be read as a reference to the type of work which the veteran had previously undertaken and not to any particular job. In these circumstances the loss of a particular job for reasons unrelated to a veteran’s accepted disabilities is immaterial to this particular issue. See also Lindgren J in Doig v Repatriation Commission, Federal Court, 18 December 1996 1106/96. Where a veteran is under the age of 65 years, the remunerative work does not have to be the last work undertaken by the veteran. In Banovich (supra) it was stated that “the loss referred to in s 24(1)(c) may be caused either by a loss of existing employment, or by an inability to obtain new employment”. For example, a veteran whose remunerative work involved short-term contracts for different employers, may have stopped working in his or her last job because that contract came to an end. In this case, Mr Ganley may not have ceased work in his last job because of a service-related incapacity, but for some other reason. However that would not mean that Mr Ganley would be unable to satisfy s 24(1)(c) if, for example, before he was about to commence the next contract, the service-related incapacity prevented him from working.
36. In relation to the first question in Flentjar, I must consider the type of work which Mr Ganley had previously undertaken. Mr Ganley’s work prior to his conscription into the Army at age 20 is of little significance. His work during his Army service and subsequently can be categorised as catering and management of catering businesses. There was no submission to the contrary, and I find that the work which Mr Ganley had undertaken was remunerative work.
37. The second question in Flentjar, requires a factual decision. If s 24(1)(b) of the Act is satisfied (and this is conceded by the Commission in this case) then it will be unlikely that the second question in Flentjar will be an issue. In this case I find that Mr Ganley has, by reason of his war-caused conditions, been prevented from continuing to undertake the type of work referred to in paragraph 36. I make this finding notwithstanding Mr Ganley’s indication that he receives a benefit from his medication, and from the counselling he is receiving from the Vietnam Veterans’ Association.
38. The next issue (the third question in Flentjar) is the “alone test” in s 24(1)(c) of the Act. On the authority of Cavellv Repatriation Commission (1998) 9 AAR 534, the word “alone” in the absence of ambiguity should not have substituted for it other words.
39. Any factor having employment consequences which plays a part in Mr Ganley’s inability to work may be sufficient to displace his case for pension at the special rate. This third question in Flentjar reflects the first limb of s 24(1)(c) of the Act. I must determine whether there are other factors impacting upon Mr Ganley’s inability to work. In this case I have reached the view that it was not until about the date of Dr Ewer’s second examination of Mr Ganley on 28 July 2003 that Mr Ganley relevantly ceased employment. While it is true that previous contracts of employment had, as they do, come to an end, nevertheless Mr Ganley had always found further contracts. When he returned to Port Lincoln he continued to look for such contracts, and indeed for any work at all. In or about July 2003 however, Mr Ganley’s psychiatric condition deteriorated to a point where Dr Ewer considered that he was unable to work. Dr Ewer said that Mr Ganley’s condition had significantly deteriorated over the last month. Dr Ewer’s first report in March 2003 indicated that at that time Mr Ganley was able to work for at least 20 hours per week. I have considered Dr Ewer’s reports, along with Mr Crowe’s submissions. As mentioned, Mr Crowe suggested that the fact that Mrs Ganley was able to find employment in circumstances where Mr Ganley was not, may have affected Mr Ganley’s psychiatric state. This is purely speculative. I am not persuaded that Mrs Ganley’s ability to find work was a factor contributing to Mr Ganley’s declining mental state. Mr Crowe also suggested that Mrs Ganley’s decision to remain in Port Lincoln prevented Mr Ganley from continuing to undertake remunerative work. Work such as catering work, is likely to have been available in Port Lincoln, and I am not persuaded that Mrs Ganley’s decision to remain in Port Lincoln was a factor which impacted upon Mr Ganley’s inability to undertake work. In these circumstances, and particularly having noted the medical report of Dr Ewer dated 29 July 2003, I answer question 3 of Flentjar in the affirmative, that is, I am satisfied that Mr Ganley’s war-caused disabilities were the only factors which prevented him from continuing to undertake work which he had previously undertaken.
40. The fourth question in Flentjar involves the “loss” issue. This is the second limb of s 24(1)(c) of the Act, and entails consideration of whether Mr Ganley is suffering a loss of income which he would not have been suffering if not affected by war-caused disabilities. I am also mindful of the deeming provision in s 24(2)(a) of the Act, which requires an assessment of the reason or reasons a veteran is incapacitated or prevented from engaging in remunerative work, and the reason or reasons the veteran ceased to engage in that work. I have however, already found that there were no other reasons which prevented Mr Ganley from engaging in remunerative work. I repeat that ceasing to engage in remunerative work is a wider concept than ceasing to perform a particular job. According to Dr Ewer, Mr Ganley was able to work in March 2003 but suffered a significant decline at or about the time of his examination of Mr Ganley on 28 July 2003. He considered that on 28 July 2003 Mr Ganley’s psychiatric condition prevented work. The assessment period had started on 30 June 2003 and in the light of the circumstances of this case, I consider that Mr Ganley has been prevented by his accepted disabilities alone from continuing to undertake remunerative work, and as a consequence is suffering a loss of salary or wages that he would not be suffering if he were free from that incapacity.
41. In the light of the abovementioned findings, it was not necessary to consider what has been termed the “ameliorating provisions” of s 24(2)(b) of the Act. If it had been necessary to consider that sub-section, I would have found, for perhaps stronger reasons, that Mr Ganley satisfies the requirements of s 24(1) of the Act.
42. As mentioned, Dr Ewer indicated in both of his reports that he regarded Mr Ganley’s psychiatric condition (and I consider that this, of all of Mr Ganley’s accepted disabilities, is the main contributor to his inability to work), is a temporary condition. In these circumstances I am unable to find that Mr Ganley is permanently incapacitated for work. Sections 25(1), (2) and (3) of the Act read as follows:
“(1) Where the Commission is satisfied that:
(a)a veteran is temporarily incapacitated from war-caused injury or war-caused disease, or both; and
(b)if the veteran were so incapacitated permanently, the veteran would be a veteran to whom section 24 applies;
the Commission shall determine the period during which, in its opinion, that incapacity is likely to continue and this section applies to the veteran in respect of that period.
(2)Where this section applies to a veteran in respect of a period, the rate at which pension is payable to the veteran in respect of that period is the rate applicable under subsection 24(4), (5) or (6).
(3) The Commission may, under this section:
(a)determine a period that commenced before the date on which the determination is made; and
(b)determine a period in respect of a veteran that commenced or commences upon the expiration of a period previously determined by the Commission under subsection (1) in respect of the veteran.”
43. I find that Mr Ganley is temporarily incapacitated for work, and that if he were permanently incapacitated, then he would be a person to whom s 24 of the Act applies. In these circumstances s 25 of the Act applies. Mr Ganley consequently satisfies the requirements for a special rate of pension on a temporary basis.
decision
44. For the reasons above, the Tribunal sets aside the decision under review, and in substitution therefore determines that Mr Ganley is eligible for a pension at the special rate on a temporary basis pursuant to s 25 of the Veterans’ Entitlements Act 1986, with effect from, and including, 28 July 2003 until 18 January 2006.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Short (Member)
Signed: .....................................................................................
AssociateDates of Hearing 17/18 January 2005
Date of Decision 12 May 2005
Counsel for the Applicant Mr E Jolly
Solicitor for the Applicant Tindall Gask Bentley
Counsel for the Respondent Mr A Crowe
Solicitor for the Respondent DVA
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