GARY DESMOND VULICH and REPATRIATION COMMISSION - [2012] AATA 547

[2012] AATA 547

Division	VETERANS' APPEALS DIVISION
File Number(s)	2011/2409
Re	GARY DESMOND VULICH
APPLICANT
And	REPATRIATION COMMISSION
RESPONDENT

DECISION

Tribunal	Brigadier Conrad Ermert (Retd), Member
Date	23 August 2012
Place	Hobart

The Tribunal affirms the decision under review.

...................[sgd]....................................................

Brigadier Conrad Ermert (Retd), Member

CATCHWORDS

VETERANS' AFFAIRS - ceased full-time work - casual work - sustained injury - relocated away from home area - inability to obtain work - diagnosed alcohol abuse - diagnosed chronic depression - accepted war-caused disabilities - seeking work - whether accepted disabilities the substantial cause of inability to obtain remunerative work - whether accepted disabilities alone prevent remunerative work

LEGISLATION

Veterans' Entitlements Act 1986 section 24

CASES

Repatriation Commission v Hendy (2002) 76 ALD 47

Oakes v Repatriation Commission [2012] AATA 279

Fox v Repatriation Commission (1997) 45 ALD 317

REASONS FOR DECISION

Brigadier Conrad Ermert (Retd), Member

23 August 2012

INTRODUCTION

The applicant, Gary Desmond Vulich, served in the Australian Regular Army between November 1967 and November 1973. He rendered operational service in Vietnam from 2 September 1970 to 9 March 1972. He also rendered eligible service as a member of the Defence Forces from 7 December 1972 to 13 November 1973. Mr Vulich has a number of disabilities, which the Repatriation Commission accepted as being war-caused. Relevantly, these include injuries to both shoulders, alcohol abuse and depressive disorder. The Commission rejected Mr Vulich’s hearing disability, cervical spondylosis and localised oesteoarthrosis of the right knee as being war-caused.
Mr Vulich continued to seek work until 2005, by which time his alcohol abuse had been diagnosed and accepted as a war-caused disability. In August 2009, Centrelink determined that Mr Vulich should be paid an Invalidity Benefit.
In January 2010 Mr Vulich lodged a claim to have depression accepted as a war-caused disability. In April 2010, the respondent accepted that his depressive disorder was war-caused and continued his disability pension at 100% of the General Rate. In May 2010 Mr Vulich lodged an application for a review of this decision, seeking pension at the Special Rate. On 30 May 2011 the Veterans’ Review Board (VRB) decided to affirm the decision of the Repatriation Commission, leaving Mr Vulich’s pension at 100% of the General Rate. Mr Vulich now seeks a review of the VRB decision.

THE HEARING

At the hearing Mr Vulich was represented by Mr Brian Warren of the Naval Association of Australia. Mr Ken Rudge, an advocate for the Department of Veterans’ Affairs, represented the respondent. Mr Vulich appeared in person and gave evidence under affirmation. The Tribunal also took evidence from Dr Eric Vaughan Ralph Ratcliff, consultant psychiatrist, and Dr Andreas Ernst, occupational and musculoskeletal medicine physician.
The Tribunal had before it the documents the respondent submitted pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T-Documents). For the applicant the Tribunal took into evidence Mr Vulich’s affidavit dated 5 March 2012 (Exhibit A1), the report by Dr Ernst dated 2 February 2012 (Exhibit A2), and the report by Dr Ratcliff dated 20 December 2011 (Exhibit A3). For the respondent the Tribunal took into evidence a letter from the Shell Company of Australia dated 23 March 2012, with attachments (Exhibit R1), a 98-page bundle of Centrelink documents (Exhibit R2) and the clinical notes of Dr Cyril Latt, which comprised 309 pages (Exhibit R3).

THE ISSUE

The issue before me is whether Mr Vulich is entitled to be paid a disability pension at the Special Rate.

THE LEGISLATION

The eligibility criteria for the Special Rate of pension are contained in section 24 of the Veterans’ Entitlements Act 1986 (the Act):
(1)   This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) ...
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
...
(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; and
(b)     where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
...

THE EVIDENCE

Mr Vulich

Mr Vulich stated he left school at the age of 15, with his Junior Certificate. He started an apprenticeship as a fitter and turner but stopped after three months and obtained a job with a newspaper as a copy runner and trainee journalist. At the age of 17 Mr Vulich joined the Army. He performed clerical functions. In 1973, Mr Vulich left the Army with the rank of Sergeant. His Army service included one and a half years of operational service in Vietnam.
After leaving the Army, Mr Vulich had a job as a door-to-door salesman for two weeks and then obtained a position with Shell. He worked at Shell for 18 years, in the auditing and clerical areas. When he left Shell, he was a Development Manager. Mr Vulich said it was a demanding and stressful position which involved work with computers. Because of the demands of the job, Mr Vulich resigned from Shell. He moved to Margaret River where he and his wife-to-be bought and ran a cafe. Mr Vulich worked at the front counter while his wife was the chef and caterer. Mr Vulich found that he could not deal with people and so he bought a woodworking machine and started working as a self-employed craftsman.
In 1993 Mr Vulich and his wife moved to Augusta where he worked as an inspector of power poles on a casual basis, until he suffered a workplace accident. He injured a shoulder, which he had previously injured in the Army. Mr Vulich had surgery to his shoulder and completed a vocational rehabilitation and return to work program. He sought employment, with the assistance of the Department of Social Security, and then its successor, Centrelink. He also sought work advertised in the newspapers and by word-of-mouth. He was unable to find permanent work but occasionally found some casual jobs. Mr Vulich said that in early 1997 he took part in the Centrelink Job Search program. The program required him to notify Centrelink of two potential employers per fortnight but did not succeed in placing him in a job. Mr Vulich said that the pain in his shoulder constrained the sort of physical labour he could undertake.
In late 1997, a neighbour advised him of better prospects in Tasmania. So Mr Vulich and his wife moved to St Mary’s. Mr Vulich stated that this move was made with the approval of Centrelink and that he remained on the Job Search program in Tasmania. In 1998, his shoulder became frozen and his doctor certified him as unfit for work. Mr Vulich testified that this did not stop him from continuing to apply for work.
In 1999, Centrelink changed his benefits from an unemployment benefit to a carer benefit. Mr Vulich said that Centrelink made this change of its own volition because it was a more appropriate benefit for him. The carer benefit required Mr Vulich to spend 20 hours a week looking after his wife who had suffered a workplace injury and was disabled. Mr Vulich stated that the care requirement did not prevent him continuing to seek work daily through the classified advertisements in the newspapers, on the internet and through the Job Search program. Mr Vulich testified that between 1997 and 2003 or 2004, he applied for between 30 and 50 jobs without success. He said there were vacancies, but I didn’t get any jobs.
Mr Vulich said that he was finding the process of looking for work increasingly difficult, that he was drinking earlier in the day and that he could see that he had problems. In 2005, his wife suggested he seek advice from her doctor, who referred him to the Vietnam Veterans’ Counselling Service. Mr Vulich submitted a claim to the Department of Veterans’ Affairs (DVA) to have his alcohol abuse accepted as war-caused. In August 2005, DVA accepted that Mr Vulich’s alcohol abuse was war-caused. Mr Vulich said that he could not continue to look for work at this time.
Mr Vulich said that his condition worsened after 2005. His doctor referred him to Dr Johl, a psychiatrist in Launceston, who diagnosed chronic depression. In 2009, Mr Vulich successfully claimed an invalidity benefit from Centrelink. In April 2010, DVA accepted liability for his depressive disorder.
In response to a series of questions from Mr Warren, Mr Vulich stated that he actively continued to look for work in the 14 years from his rehabilitation to his invalidity benefit. He said that it was important to him to find a job. When asked what he would be doing if he did not have his psychiatric conditions, Mr Vulich said that he would probably be doing some woodwork or other form of self-employment. Mr Vulich made the following responses to questions posed to him:
(what would be your response if I suggest to you that the main reason you can’t work is because there are no jobs available?)‑‑‑ No, there’s plenty of jobs available; I just can’t get one ...There’s forestry, fishing, state government, local government, the coal mining industry ...
(What types of industry are there?)‑‑‑There’s forestry, fishing, state government, local government, the coal mining industry.
(Do you believe that there has always been work available to you?)‑‑‑It has been available but I can’t seem to get a job.
(Do you think the period of time that you’ve been out of work would make it difficult for you to get back into a job?)‑‑‑No, not really. I’m computer literate. I’m not a stupid person. I don’t think it would take much to train me.
(And do you believe that your age would make it difficult for you get work?)‑‑‑No. To me, age is experience. I would have to get an age-appropriate job, but I don’t think age is a problem at all. I could always go back to the woodwork if I was able to. I mean, the only reason I’ve stopped seeking employment is because of my shoulders and my mental health.
When asked if any of his non-accepted conditions would stop him from working Mr Vulich said No. The only thing that stops me working, basically, are my shoulders and my alcohol and depressive disorder.

Dr Ratcliff

Dr Ratcliff recounted his specialist psychiatric qualifications and confirmed that the contents of his report dated 20 December 2011 (Exhibit A3) accurately reflected his opinions about Mr Vulich’s psychiatric conditions.
Dr Ratcliff stated that he first saw Mr Vulich on 3 November 2006 and diagnosed a condition of alcohol abuse, which appeared to him to have been continuous from Mr Vulich’s time in Saigon. On that occasion, Dr Ratcliff did not diagnose depression.
He saw Mr Vulich again on 18 December 2011 and on this occasion, he diagnosed depressive symptoms of dysthemic depth, but the mood disturbance characteristic of this is masked by the effects of alcohol abuse (Exhibit A3, page 5). Dr Ratcliff also opined that Mr Vulich’s overall psychiatric condition effectively prevents him from undertaking remunerative work.
Mr Warren referred to section 4 of the report, where Dr Ratcliff recorded At the time of examination it is possible that he could undertake eight hours per week of sedentary activity. However employment of that kind is not available locally. Dr Ratcliff agreed that he meant that, as there was no sedentary work available, Mr Vulich was unable to undertake any work.
In his report, Dr Ratcliff stated that Mr Vulich’s employability is limited by his spinal condition and related symptoms, and his shoulder condition. In his oral evidence Dr Ratcliff agreed that his understanding of Mr Vulich’s physical conditions came from the reports of Drs Erasmus and Edis. He also agreed that he was unaware of another report from a musculoskeletal and occupational specialist who stated that from a physical perspective Mr Vulich can work full time.
Dr Ratcliff was asked about the following statement on page 7 of his report The early occupations are precluded by age and passage of time. He agreed with Mr Warren that he was not able to identify any relevant qualifications or skills that Mr Vulich had lost or did not possess because of his age. He also agreed that Mr Vulich’s age would not prevent him from being self-employed.
When questioned about his use of the phrase passage of time, Dr Ratcliff agreed that he had discovered no specific skills or ability which Mr Vulich may have lost as a result of being unemployed, or out of managerial positions for the period of time. Dr Ratcliff also agreed that Mr Vulich’s time out of employment would not prevent him from undertaking an induction program, on-the-job training or continuing education to undertake another line of work.
Dr Ratcliff agreed with the following propositions put by Mr Warren: that Mr Vulich’s psychiatric conditions gradually intensified over the period 1995 up until the time which he was placed on a disability pension in 2009; that it was a reasonable inference that Mr Vulich’s mental state may have affected his efficiency and motivation to continue looking for work over the period 1995 to 2009; and that the length of time that Mr Vulich has been out of the work force became increasingly a function of his worsening mental state. Dr Ratcliff opined that Mr Vulich’s accepted psychiatric condition was the predominant cause of his inability to obtain work. In answer to a question from Mr Rudge, Dr Ratcliff clarified his answer by agreeing that it was the predominant cause amongst the psychiatric and physical causes.
In regard to Mr Vulich’s reason for resigning his employment from Shell, Dr Ratcliff quoted from his notes: He left Shell for two reasons. Firstly, he was feeling pressured there, and secondly, he and his wife went on a trip to Margaret River. She was a qualified chef, and they bought a café.
In response to my questions regarding the sedentary nature of Mr Vulich’s work, Dr Ratcliff said what coloured my opinion was the impression of a move away from intellectual activity to more physical activity, which is commonly associated with increasing difficulties in encompassing the former. Dr Ratcliff also agreed that his opinions on the effect for Mr Vulich of his time out of work were based on the history he obtained only in the most general sense. He said his opinion of local clerical employment not being available to Mr Vulich was based on his knowledge of the district. Dr Ratcliff admitted that he did not closely question Mr Vulich on the issue.

Dr Ernst

Dr Ernst affirmed that he is an occupational physician and recounted his specialist qualifications in musculoskeletal medicine. He confirmed that his report dated 2 February 2012 (Exhibit A2) accurately reflected his opinions.
Dr Ernst elaborated on his report with regard to Mr Vulich’s physical conditions. He provided detailed explanations of his findings on each of Mr Vulich’s accepted and non-accepted physical conditions. Dr Ernst concluded by stating that Mr Vulich was employable within nationally and internationally accepted employment guidelines.
Dr Ernst stated that Mr Vulich could work despite his shoulder condition but needed to take the precaution of keeping his arms close to his body. He agreed with Mr Warren that Mr Vulich’s shoulder condition would affect the type of work he could undertake and apply for. Dr Ernst confirmed his assessment that Mr Vulich’s spine condition constituted no disability and no work restrictions, provided he worked within the guidelines for safe manual handling. Dr Ernst agreed that, as far as his physical health was concerned, Mr Vulich could work full-time albeit with some precautions.
Dr Ernst did not question Mr Vulich about his computer skills. He said there was no impediment to Mr Vulich going back to craft work. Dr Ernst also said that Mr Vulich’s time out of work would not prevent him engaging in a return to work program. Dr Ernst confirmed the statement in his report that Statistics have shown that the chances of successful return to work decrease with prolonged unemployment. He agreed with Mr Warren’s proposition of that some people will experience no problems in returning to work after a period out of work but some people may experience severe problems. Dr Ernst also agreed that Mr Vulich’s time out of work would not prevent him from engaging in a return to work program or on-the-job training.
Dr Ernst was questioned about the effect of Mr Vulich’s time out of work with regard to the type of work he was doing with computers while at Shell. Dr Ernst said that in some areas technology changes had made the work easier and more mundane.

CONSIDERATION

The parties agree that Mr Vulich meets the provisions of sections 24(1)(aa), 24(1)(aab) and 24(1)(a) of the Act, and I find accordingly. The respondent also conceded that Mr Vulich satisfies the provisions of section 24(1)(b), in that he is totally and permanently incapacitated from his war-caused injuries. I find accordingly.
Section 24(1)(c) of the Act contains two separate issues: whether Mr Vulich is prevented, by his war-caused injuries alone, from continuing to undertake the remunerative work he was undertaking; and whether, as a result, he is suffering a loss of earnings. However, the application of this section is subject to the provisions of section 24(2) of the Act. Therefore, I will first consider the issues raised by the provisions of this section.
The relevant provisions are:
· The veteran shall not be taken to be suffering a loss of earnings if he ceased work or is prevented from working for reasons other than his war-caused incapacity, (section 24 (2)(a)), and
· Where a veteran who has not been in work satisfies the decision maker that he has been genuinely seeking work, or would be seeking work but for his war-caused incapacity, and that the incapacity is the substantial cause of his inability to obtain work, then the veteran shall be treated as having been prevented by that incapacity from continuing to undertake the remunerative work he was undertaking (section 24 (2)(b)).
I will consider the latter provisions first.

Mr Vulich gave evidence, which was not contested, that he actively sought work until 2005 but he stopped at that time. It is clear that, at the time of the assessment period, Mr Vulich was not engaged in remunerative work and was no longer seeking work. That leads to the next issue - whether Mr Vulich would have been seeking work but for his war-caused incapacity.
Mr Warren contended that Mr Vulich has demonstrated a high work ethic and a commitment to being employed or being self-employed. He contended that Mr Vulich’s psychiatric conditions prevent him from seeking employment and were he free of these disabilities he would be continuing to seek work. Mr Warren described Mr Vulich’s search for work as remorseless. Mr Warren referred to the evidence of Dr Ratcliff in which it was agreed that it was a reasonable inference that Mr Vulich’s mental state may have affected his efficiency and motivation to continue looking for work between 1995 and 2009.
Mr Rudge made no submissions on the reasons for Mr Vulich ceasing to seek remunerative work.
I am satisfied from the evidence, particularly that of Dr Ratcliff, that Mr Vulich would be continuing to seek remunerative work but for the effects of his psychiatric conditions of alcohol abuse and chronic depression.
The next issue is to determine whether Mr Vulich’s accepted disabilities are the substantial cause of his inability to obtain remunerative work.
In his submissions, Mr Warren again referred to the evidence of Dr Ratcliff that Mr Vulich’s psychiatric condition effectively prevents him from undertaking remunerative work. Mr Warren also referred to a report by Dr Surinder Johl, consultant psychiatrist, dated 28 October 2010. Dr Johl stated In the two years I have seen him it is my impression that the alcohol abuse and chronic depression and anxiety are of sufficient severity to prevent him from undertaking any employment that might be considered reasonable for him, for more than eight hours a week.
In regard to the question of whether the accepted disabilities were the substantial cause of Mr Vulich’s inability to obtain work, Mr Warren referred to the above report of Dr Johl, in which he said It is my opinion that the above conditions are the primary reason for his incapacity to be employed. Mr Warren referred also to Dr Ratcliff’s oral evidence that the accepted psychiatric conditions are the predominant cause of the situation.
Mr Warren then spoke of Mr Vulich’s medical conditions, which the respondent had not accepted as war-caused: cervical spondylosis, localised osteoarthrosis of the right knee, lower back pain, gastroesophageal reflux disease and chronic obstructive pulmonary disease. He submitted that the evidence of Dr Ernst was quite clear in that, other than taking normal precautions in terms of safe work procedures, Mr Vulich’s physical conditions do not prevent him from undertaking work.
Mr Warren submitted that for Mr Vulich’s age to be considered a factor, his age must have a direct impact on his ability to obtain work. Although Dr Ratcliff suggested in his report that Mr Vulich may be prevented from his early occupations because of his age, he gave no indication of how that might be the case. Nor was he able to demonstrate how he reached that conclusion based on a clinical assessment during his examination. Mr Warren contended that there was no medical or other evidence to suggest that Mr Vulich’s age lead to any psychological, physiological or mental defect, which could affect his capacity to obtain work. His age does not prevent him from working through any legislative, industrial, trade, professional, or licensing requirement.
Mr Warren contended that, given Mr Vulich’s employment history and professional success when he was employed, it followed that were he free of his disabilities, his age would not prevent him from continuing in work. Mr Vulich’s age would also not prevent him from being self-employed. Mr Warren further contended that neither Dr Johl nor Dr Ernst share Dr Ratcliff’s opinion in relation to age. He submitted that Mr Vulich’s age could only be a factor in his employability in a discriminatory manner, contrary to state and federal law. In such a case, Mr Vulich’s age could not be considered a disentitling factor under the Act.
Mr Warren then referred to the effect of Mr Vulich’s time out of work. He submitted that there must be some probative evidence to support the issue. Mr Warren referred to Dr Ernst’s statement in his report that Statistics have shown that the chances of successful return to work decreases with prolonged unemployment” (Exhibit A2). Mr Warren contended that while this statement may be statistically true it cannot be established that this applied to the case of Mr Vulich.
Mr Warren referred also to Dr Ratcliff’s statement that Mr Vulich’s early occupations are precluded by age and the passage of time (Exhibit A3). Mr Warren submitted that Dr Ratcliff presented no evidence to suggest how this nexus operates, nor how changes in technology, work practices or loss of skills would make re-entry into the workforce more difficult. Mr Warren stated there was no evidence of a direct impact on Mr Vulich’s work capacity, particularly as a self-employed craftsman or labourer. Mr Warren submitted that, with suitable induction and on-the-job training, Mr Vulich could, except for his accepted disabilities, re-enter the workforce.
Mr Warren also contended that Mr Vulich’s time out of the workforce was a function of the effects of his accepted disabilities. First his shoulder problems limited the range of employment open to him and then, increasingly, his psychiatric problems. Mr Warren submitted that where an extended absence from the workplace was, even in part, beyond a veteran’s control, and resulted from the veteran’s accepted disabilities, that absence should not become a disentitling factor under the legislation.
Addressing the issue of the labour market, Mr Warren referred to Mr Vulich’s evidence of employment opportunities within a reasonable commuting distance including mining, fishing and aquaculture, local and state governments, service industries, agriculture, viticulture, silviculture, construction, and timber and forestry. Mr Warren contended that each of these potential employers offered professional and unskilled work opportunities that were within Mr Vulich’s range of professional vocational skills, qualifications, and experience.
Mr Warren referred to Mr Vulich’s affidavit dated 5 March 2012 (Exhibit A1), in which Mr Vulich stated that in January 2012 the Commonwealth’s Job Network advertised 16 casual and part-time vacancies in Mr Vulich’s region. Mr Warren submitted that if he was not disabled, Mr Vulich also had the option of returning to woodworking to produce items for sale, through tourist and other outlets. He submitted that lack of opportunity was not a factor preventing Mr Vulich from obtaining work.
Addressing other factors which might affect a search for work, Mr Warren submitted that Mr Vulich had no plans to retire and that, psychologically, it was important to Mr Vulich to work. He said there was no evidence to suggest that any other factor such as career direction, personal planning, financial considerations, or family circumstances played a part in preventing Mr Vulich from obtaining work. Mr Warren summarised the position by saying that Mr Vulich’s accepted disabilities are the substantial reason that he is not able to be in work, or search for work; and that as a result he meets section 24(2)(b) of the Act.
On the other hand, Mr Rudge submitted that other factors, including the availability of work, his time out of the workforce, his lack of recent work experience, his age, the change in technology, the need for retraining, and his back condition, affected Mr Vulich’s chances of obtaining employment.
Addressing the issue of the work available, Mr Rudge submitted that the evidence was that from 1995 to 1997, after Mr Vulich completed the retraining program, he sought work in mining, real estate, and hospitality but he received no responses to numerous job applications. Then in Tasmania, from 1997 to 2003 and beyond, Mr Vulich estimated that he made at least 30 to 40 job applications and again received no responses. Mr Rudge contended that the accepted disabilities, albeit present, could have played no part in that because there were no responses to all to these applications for employment. Mr Rudge said Mr Vulich’s evidence was that there were jobs out there but he could not get one; that none of his applications drew responses and consequently none were successful. Mr Rudge submitted that there was just no work available for Mr Vulich. Mr Rudge further submitted that, on that evidence, Mr Vulich’s accepted disabilities did not play a part in his inability to find work.
Mr Rudge contended that the lack of available work was increasingly compounded by Mr Vulich’s time out of work. Mr Rudge submitted that employers look at applications from people with more recent work experience who require less retraining. In support of this contention, Mr Rudge cited the decisions of the Full Federal Court in Repatriation Commission v Hendy (2002) 76 ALD 47 and of the Administrative Appeals Tribunal in Oakes v Repatriation Commission [2012] AATA 279.
Mr Rudge also contended that Mr Vulich’s age (59 years) by the start of the assessment period, should be taken into consideration with his time out of the workforce and lack of recent experience. He contended further that Mr Vulich’s back condition is a factor in his attractiveness to employers.
In summarising his submissions, Mr Rudge cited Fox v Repatriation Commission (1997) 45 ALD 317. In that case, Kiefel J made the point that the legislation refers to the substantial cause, which was a result of an amendment to the Act in 1985, which introduced the definitive “the”. Kiefel J said this requires a stronger and more direct causal connection between the incapacity and the inability to obtain remunerative work. There might be a number of causes and there might be a number of substantial causes but for section 24(2)(b) the war-caused incapacity must be the substantial cause. Mr Rudge submitted that in this case the inability to elicit responses to work applications over a long period of time and then Mr Vulich’s time out of the workforce, his lack of recent work experience, his age, and the difficulty of seeking employment with the need for ongoing physiotherapy, were the substantial causes.
In considering first Mr Vulich’s psychiatric conditions, I note the opinion of Dr Johl, that Mr Vulich’s chronic depression and alcohol abuse are the predominant reason for his incapacity to be employed. Dr Ratcliff used the term primary reason. However, section 24(2)(b) of the Act is concerned with the cause of the veteran to obtain remunerative work in which to engage. It is clear that in order to engage in work one must first obtain work. In this case, the evidence is that Mr Vulich could not obtain work in which to engage, despite many applications. While living in Augusta, Mr Vulich unsuccessfully applied for a number of full time positions but was only able to find occasional casual work. In 1997 Mr Vulich moved to Tasmania. In spite of submitting 30 to 40 applications for work as well as submitting the names of two potential employers per fortnight to the Centrelink Job Search program, Mr Vulich received no responses. His accepted psychiatric conditions did not act to prevent Mr Vulich from seeking work. In the words of Mr Warren, Mr Vulich was remorseless in his search for work, until he ceased looking in 2005.
There is no evidence that Mr Vulich referred to his alcohol abuse in his job applications. Indeed, it would be quite unrealistic to do so. Further, Mr Vulich was successful in some applications for work while living in Augusta, even though the evidence indicates that he was already suffering from alcohol abuse at that time. I do not accept that his alcohol abuse was a factor in Mr Vulich’s inability to obtain a response to his numerous job applications between 1997 and 2005.
Mr Vulich’s depression had not been diagnosed in 2005; although, in the opinion of Dr Ratcliff it was reasonable to infer that it was already in effect by 1995. However, there is no reason to think that the depression was evident to prospective employers in Mr Vulich’s job applications. Accordingly, I do not accept that Mr Vulich’s depression was a factor in his inability to obtain work during the period he was seeking work.
The respondent does not dispute that Mr Vulich’s shoulder condition limited the availability of manual labour positions for which he could apply. Notwithstanding, there were 30 to 40 positions for which Mr Vulich considered himself suited, regardless of his shoulder condition. Accordingly, I am satisfied that Mr Vulich’s accepted shoulder condition had some impact on his inability to obtain work, albeit a minor impact.
Addressing Mr Vulich’s non-accepted conditions, the evidence of Dr Ernst was clear that they do not prevent him from undertaking remunerative work. These conditions would also not be apparent to a prospective employer and therefore would not be a factor in Mr Vulich’s ability to obtain work in which to engage. I am satisfied that Mr Vulich’s non-accepted physical conditions were not a cause of his inability to obtain work.
Addressing Mr Vulich’s age and time out of work, Mr Warren contended that there is no direct evidence to show that they are a factor in his employability. He submitted that the opinions of Drs Ratcliff and Ernst, that time out of work was a factor in finding work, were based on statistics. He submitted there was no evidence that time out of work was a factor in Mr Vulich’s situation. Mr Warren submitted further that Mr Vulich could have undertaken induction training to overcome any effect of time out of the workforce.
Mr Rudge included Mr Vulich’s age and time out of work as factors in his inability to obtain work. Mr Rudge cited Hendy and Oakes in support of his contention.
In Hendy the Full Federal Court said:
The language of s 24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the Veteran from working. The decision-maker is required to take into account any factor that plays a part or contributes to a veteran’s being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act.
Although this finding was made in relation to section 24(1)(c) of the Act, I accept the same reasoning applies to section 24(2)(b) in considering the substantial cause of a veteran’s inability to obtain work.
In Oakes the Tribunal said:
There must be no other factor apart from Mr Oakes’ accepted disabilities which would impact upon his capacity to undertake the relevant remunerative work at the start of or during the assessment period. Such a factor may be associated with a wide variety of considerations, such as incapacity from a non-service-related medical condition, the effects of age, relocation to a locality distant from work opportunities or the impact of the length of time out of the workforce. Such factors individually or in combination with each other or with accepted disabilities may serve to prevent a person from continuing to undertake relevant remunerative work. By the start of the assessment period Mr Oakes had been out of remunerative work for more than six years. I am satisfied that this is a factor that would impact on his capacity to obtain work.
Applying these decisions to the present case, I am satisfied that Mr Vulich’s age and his time out of paid work were factors in his inability to obtain work. Although the evidence on this point from Drs Ratcliff and Johl was based on general statistics, there was no evidence that Mr Vulich would in any way be an exception to the general case. I accept also that the effect of age and time out of work increases with time. Mr Vulich, by the start of the assessment period, Mr Vulich was 59 years old and had been out of full-time work for 15 years. His age and his time out of work would have caused Mr Vulich to be increasingly less attractive to prospective employers. I am satisfied that age and time out of work were factors in Mr Vulich’s inability to obtain remunerative work.
Mr Warren contends that Mr Vulich’s time out of the workforce was a function of his accepted disabilities and this should not disentitle him to the benefits of the legislation. I am satisfied that Mr Vulich’s time out of the workforce from 1997 to 2005 was not affected significantly by his accepted disabilities. His shoulder injury limited the positions available to him but not sufficiently to preclude him from submitting a considerable number of job applications. Any effects of his alcohol abuse and depression were also insufficient to prevent his job searching. Those conditions would not be apparent to potential employers from the applications and would not affect the employers’ response, and therefore Mr Vulich’s lack of success and time out of work.
I accept the evidence of Dr Ratcliff, that after 2005 Mr Vulich’s alcohol abuse and depression may have affected his motivation and efficiency in seeking employment. However, by then Mr Vulich was 55 years old and had been out of the workforce for 10 years. He would be looking increasingly less attractive as an employment prospect. Accordingly, I do not accept that Mr Vulich’s time out of work was, to any great extent, a function of his accepted disabilities. Therefore, I do not accept Mr Warren’s contention to this effect.
Addressing the issue of the labour market, Mr Warren referred to the evidence of the many employment opportunities in the region within Mr Vulich’s range of qualifications, skills and experience. He contended that lack of opportunity was not a factor preventing Mr Vulich from obtaining work.
Mr Rudge contended that there were no jobs available for Mr Vulich. He referred to the evidence of Mr Vulich in which he said there were jobs out there but he could not get one, none of his applications drew responses and consequently none were successful. Mr Rudge submitted that Mr Vulich had no success because there was just no work available to him; and that was not affected by his accepted disabilities.
From the uncontested evidence of the number of Mr Vulich’s job applications, which were unsuccessful, and the amount of industry in the region, I conclude that employment generally was available in the region. However, Mr Vulich was not attractive enough a candidate to be selected by the employers. As his accepted psychiatric disabilities would not be apparent in a job application, I am not satisfied that they were a factor. I accept that Mr Vulich’s accepted shoulder injuries reduced to some extent the number of possible jobs available to him. However, the effect was not such that he was prevented from making a significant number of job applications.
I accept Mr Warren’s contention that, apart from those considered above, there were no other factors that played a part in Mr Vulich’s inability to obtain work.
After considering all of the evidence, I find that the most significant causes of Mr Vulich’s inability to obtain remunerative work were the lack of jobs suited to Mr Vulich in the St Mary’s region of Tasmania, together with the negative effect, increasing over time, of his age and time out of the workforce. Mr Vulich’s shoulder injury was at all times a minor cause, acting only as a restriction on a proportion of the available work but not sufficient to prevent Mr Vulich from submitting a considerable number of job applications. In 2005 Mr Vulich ceased applying for jobs as a result of his accepted alcohol abuse. However, by then Mr Vulich’s age and time out of work were already significant factors in his inability to obtain work. As a consequence, I am not satisfied that Mr Vulich’s accepted disabilities were the substantial cause of his inability to obtain remunerative work.

Accordingly, I am not satisfied that Mr Vulich meets the provisions of section 24(2)(b) and I find accordingly.
I have found that Mr Vulich’s age, time out of work, and the labour market in his region are the substantial causes for his inability to obtain work. It follows that Mr Vulich is prevented from engaging in remunerative work for some reason other than his accepted disabilities. Accordingly, I find that Mr Vulich also does not satisfy the provisions of section 24(2)(a)(ii). As a consequence, I find that Mr Vulich is not suffering a loss of salary or wages (or of earnings on his own account) by reason of his accepted incapacity. Mr Vulich is also not prevented from continuing to undertake remunerative work by reason of his accepted disabilities alone. I find that Mr Vulich does not meet the provisions of section 24(1)(c) of the Act and as a result he is not entitled to the Special Rate of pension.
Mr Vulich’s application is unsuccessful.

DECISION

The Tribunal affirms the decision under review.

I certify that the preceding 77 (seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Brigadier Conrad Ermert (Retd), Member.

...........[sgd].....................................................

Associate

Dated 23 August 2012

Date(s) of hearing	14 and 15 June 2012
Advocate for the Applicant	Mr Brian Warren, Naval Association of Australia
Advocate for the Respondent	Mr Ken Rudge, Advocacy Section, Department of Veterans’ Affairs