Geoffrey Richmond and Repatriation Commission
[2013] AATA 421
[2013] AATA 421
Division VETERANS' APPEALS DIVISION File Number
2011/5116
Re
Geoffrey Richmond
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Regina Perton, Member
Date 20 June 2013 Place Melbourne The Tribunal affirms the decision under review.
............................[sgd]............................................
Regina Perton, Member
VETERANS’ AFFAIRS - pension at special rate – whether war caused conditions alone cause of inability to work – reason why applicant stopped working – decision under review affirmed
Veterans’ Entitlements Act 1986 ss 24(1)(a), (b) and (c), 24(2)(a)
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 101 FCR 50
Repatriation Commission v Alexander (2002) 75 ALD 329
Repatriation Commission v Hendy [2002] 76 ALD 47
REASONS FOR DECISION
Regina Perton, Member
20 June 2013
Geoffrey Robert Richmond, who is now 68 years old, served in the Australian Army for two years from 2 February 1966 to 1 February 1968. This included operational service in Vietnam between April and December 1967. Mr Richmond currently receives a service disability pension at 70 per cent of the general rate. He suffers from multiple medical conditions, of which hyperkeratoses, basal cell carcinoma, bilateral sensorineural hearing loss, bilateral tinnitus, non melanotic malignant neoplasm of the skin, alcohol dependence and generalised anxiety disorder have been accepted by the Repatriation Commission (the Commission) as having been war caused.
On 15 August 2007 Mr Richmond lodged a claim for increase in pension. He was unsuccessful at having a psychiatric condition, which he believed to be post-traumatic stress disorder (PTSD), recognised by the Commission or the Veterans Review Board (VRB) as being a war caused condition. On 30 August 2010 after Mr Richmond had lodged a claim with this Tribunal, he and the Commission settled the dispute with the Commission accepting that Mr Richmond suffered the war-caused conditions of generalised anxiety disorder and alcohol dependency. The agreement submitted and subsequently endorsed by the Tribunal expressly rejected the proposition that Mr Richmond suffered from PTSD. The matter was remitted to the Commission for calculation of the rate of pension to which Mr Richmond was entitled.
On 14 February 2011 the Commission determined that Mr Richmond was entitled to disability pension at 70 per cent of the general rate with effect from 15 August 2007. On 4 April 2011 Mr Richmond applied to the VRB for review of the Commission’s decision. Mr Richmond, who was under 65 years of age when he lodged the claim in 2007, believes he is entitled to a special rate pension, which is a higher rate of pension paid to a working-age recipient who is unable to work due to his accepted disabilities alone.
On 10 November 2011 the VRB affirmed the Commission’s decision that Mr Richmond was not eligible for a pension at a special rate. On 1 December 2011 Mr Richmond lodged the application currently under consideration by the Tribunal.
In deciding whether Mr Richmond is eligible for pension at the special rate, the Tribunal needs to consider:
·Is Mr Richmond unable to undertake remunerative work for more than 8 hours per week?
·When and why did Mr Richmond stop working?
·Do Mr Richmond's accepted war-caused conditions alone prevent him from working?
IS/WAS MR RICHMOND UNABLE TO WORK FOR MORE THAN 8 HOURS PER WEEK?
Based on the medical evidence, the parties agree that Mr Richmond is now unable to undertake remunerative work for more than 8 hours per week. The Tribunal concurs.
WHEN AND WHY DID MR RICHMOND STOP WORKING?
After leaving school, Mr Richmond became qualified as a boilermaker/structural steel tradesman after a five-year apprenticeship. After his two years of national service, he resumed his trade for approximately 11 years, nine of which were spent at Alcoa. He then became a trade teacher. He obtained a Certificate of Technical Teaching in the late 1970s followed by a Diploma in Technical Teaching four years later.
Mr Richmond taught students at technical schools in the Geelong region from 1979 to 1989 and then became Curriculum Development Officer at the Gordon Institute from 1989 to 1994. He was self-employed in 1995-96 as an industry-training consultant. During 1996-97, Mr Richmond left the education sphere and moved to New South Wales where he ran his own business as a cruise boat operator. He then returned to Victoria and worked as a teacher at Goulburn Ovens Institute of TAFE (Goulburn Ovens) in metal fabrication/welding from April 1997 to 21 January 2005. He worked for about three weeks as a casual teacher at Gordon Institute in mid-2005 and has not worked since.
In a statement to the Tribunal dated 1 December 2011 Mr Richmond stated that when he taught at Goulburn Ovens, he had experienced friction with students, management and colleagues.
…
I ceased employment with Goulburn Ovens TAFE because of an inability to cope with my duties due to my emotional state. I ceased work on my 60th birthday. I had tendered my resignation on 19 December 2004 and the TAFE wrote on 24 December 2004 accepting the resignation. I requested to continue working until 21 January 2005 in order to give my employer time to appoint a replacement. I resumed work after the Christmas break on 17 January 2005 and then undertook the tasks of organising administrative matters and generally bringing my employment to an orderly end. Classes were not due to resume until early February 2005.
I signed an application for invalidity service pension on 21 January 2005 and ultimately an age service pension was granted with effect from 23 February 2005.
I was keen to try and resume work and from 26 June 2005 to 9 July 2005 I obtained teaching work at Gordon TAFE on a casual basis. At that time Gordon TAFE offered me as much work as I wish to undertake. During the 3 weeks of the trial resumption period I was uptight and found that I could not cope with the demands of my duties due to my anxiety state. Accordingly, I ceased work on 9 July 2005 because I was simply not coping with my duties due to my psychiatric illness. I have not undertaken remunerative work since 9 July 2005.
In late 2005 I did answer an advertisement for the position of Coxswain, Marine Engineer driver for Melbourne River Cruises. Although I had grave doubts that I would be able to cope with the duties I applied because I was desperate to try to resume remunerative work. I was not offered the position.
In oral evidence, Mr Richmond expanded on the nature of the work he undertook at Goulburn Ovens. After teaching and then undertaking curriculum development, Mr Richmond bought a boat cruise business near Port Macquarie in 1996. However, at the time, his and his wife's parents were unwell and his children were living in Victoria. He also did not like the humidity during summer in his new home. He subsequently took up the Goulburn Ovens job in April 1997. The role involved Mr Richmond teaching metal fabrication and welding to apprentices generally aged 16 to 20 years.
When asked about how he felt about his teaching career, Mr Richmond told the Tribunal:
Before I …left teaching at Geelong and I thought it was good, and then I experienced difficult times with students early in the piece when I started at Goulburn Ovens, so much so I just walked out on a class, probably not the student, but anyway I walked out, I just walked out on the class and left them without telling anyone. You know, of that period of eight years that I was there, I just found it more difficult to get on with students and staff, management. I'm sure, you know, I'm aware that things have to change, but I don't know whether I could adapt.
…
I just seem to have problems with students, dealing with students. I don't know whether it was their attitude or mine. Staff, I had trouble with my own staff. I don't know why I got into trouble with them, and management, I had trouble accepting management's policies and practices. I was just a bit grumpy, I suppose maybe I was a grumpy old bear or something…
Mr Richmond said that he was 100 per cent on tenterhooks, always anxious, uptight, tense while at Goulburn Ovens. He said that he also experienced chest pains that were eventually determined to be related to anxiety. Mr Richmond told the Tribunal that a panic attack he experienced in 2001 while on the pier at Queenscliff resulted in him applying to the Department of Veterans Affairs (DVA) to have anxiety, PTSD or related conditions to be recognised as war-caused. Mr Richmond said that the panic attack led to him being prescribed medication. In 2002 Mr Richmond said he again had palpitations which upon investigation were found to not be heart related.
Mr Richmond said his hand shakes when he is anxious (which happened while he was giving evidence before the Tribunal). Asked when the shaking first started, Mr Richmond could not recall exactly when it started but he said it gradually worsened. Towards the end of his teaching, he was unable to undertake certain welding processes which needed two hands due to the shaking.
Mr Richmond said that for the last 12 months of his teaching he spent half his time producing online test banks. Mr Richmond and his wife lived at properties in Geelong, St Leonards and Queenscliff while he worked at Goulburn Ovens. They drove the approximately 300 kilometres from the Geelong area to Shepparton to enable him to teach during the week and returned to their home on the weekends. Towards the end of his time at Goulburn Ovens, he worked from his Geelong area home some of the time rather than at Shepparton when he was preparing the online assessment documents.
Mr Richmond did not particularly enjoy the online work because of the way that the TAFE wanted it done:
To be quite candid, it was not the way I would do it. It was all too fluffy. They wanted it fluffy, but I was trying to do is the traditional way of doing assessments, but looking at some of the others that were done by other people, it was all kindergarten stuff …
…Yes, and that was one of the problems with this self-paced business. There were students who couldn't do work themselves and they would just copy it off other students. One kid was even getting his mother to fill in the written part at home in pencil and coming during the day and fill it in biro.
Asked when he first considered stopping work, Mr Richmond said he first thought about it in around early 2000.
Mr Richmond said that he sent in his letter of resignation to Goulburn Ovens around 19 December 2004. He returned to Shepparton for a few days in mid-January 2005 and it just so happened... to be my birthday when I finished. Mr Richmond said his initial letter sent in late December 2004 had mentioned the word resignation as the reason for finishing at Goulburn Ovens but on advice from the human resources section of the TAFE, he changed it to retirement so that he could get pro-rata long service leave. He was entitled to pro-rata long service leave even though he was two years short of the usual 10-year requirement.
Mr Richmond said that while he was not getting on very well with students and staff at Goulburn Ovens, he did not write anything about that in his resignation letter. In relation to his difficulties with students and staff, Mr Richmond said that he believed that the students had:
…[a] different work ethic, different attitude to my requirement, to my expectation. With staff, there was a meeting…by our divisional manager one day to say there was a problem in the department and the problem happened to be me and I didn't know what for, and I still don't know what that was for….
Mr Richmond said he had also had concerns about staff that would not pull their weight and who were not obtaining the teaching qualifications that they should have. In his department a number of the teachers had limited teacher training or experience.
Asked about the circumstances leading to his commencement of sessional teaching at the Gordon Institute in mid-2005, Mr Richmond told the Tribunal he had seen an advertisement in the paper, and knowing the head of Department, approached him about the role. Mr Richmond taught for two to three weeks and decided he could not continue despite being offered as much work as he wanted. He was not enjoying the work and getting uptight still.
Mr Richmond said that after he left Goulburn Ovens, he would regularly look in the Geelong Advertiser for work in the local area. Mr Richmond said he had made another attempt to find work after finishing at the Gordon Institute. He saw an advertisement placed by Melbourne River Cruises for a coxswain. He and his wife visited the business’s office in Melbourne and found out more about the position. Mr Richmond realised he was probably unable to do that job and was not offered it. He told the Tribunal that he did not put in a formal application for the position. He maintains that he still looks in the newspapers to see if there are positions available but has not applied for anything else.
Mr Richmond originally told that Tribunal that he does not believe he put in an application for a service pension when he applied for an invalidity pension. Mr Richmond then qualified his comment saying that the only reason he would have put in an application for service pension would be to reinforce his claim for an invalidity service pension. On an application form held by DVA, Mr Richmond had ticked both age and invalidity as the type of pension he was claiming with a notation that the invalidity details form had already been submitted. He conceded that he must have realised he was eligible for a service pension as well as an invalidity pension when lodging the claim.
Mr Richmond said that the advocate at the Geelong RSL from whom he received advice suggested he lodge the invalidity application form before he turned 60. Mr Richmond cannot remember the details of the conversation he had with the advocate which is now more than seven years ago.
A service pension claim work test questionnaire completed by Mr Richmond's then doctor, Dr Hook, was stamped as received by DVA on 22 February 2005. Mr Richmond indicated that his application for an invalidity service pension had been delayed because he had to obtain a report from his regular general practitioner who was based in Shepparton. When he returned to Shepparton in mid-January 2005, his doctor was on holidays so he had to wait to get a report from him in February before lodging the invalidity service pension application.
Mr Norm Dixon provided an e-mail at Mr Richmond's request on 17 January 2012. He stated that he was:
… the Team Leader / Educational manager of the Metal Fabrication Department of the Gordon Institute of TAFE in Geelong from 1999 until 2009, recently retiring in 2011.
In that time I employed Geoff Richmond, who had recently returned to live in the area, to work as a casual teacher from 26/6 to 9/7 2005 to cover for a teacher on leave.
After this time I offered employment to Geoff for the remainder of the year, which he declined…
In oral evidence, Mr Dixon stated that he first met Mr Richmond in 1979 when they both transferred to Geelong East Technical School. Both taught metal fabrication or welding. They worked together until about the late 1980s and then Mr Richmond was promoted to administration and only taught half time. Around 1990 or 1991 both Mr Richmond and Mr Dixon were in the curriculum development unit. Then Mr Dixon returned to teaching and a year or so later Mr Richmond left the Gordon Institute.
Mr Dixon said that Mr Richmond had been a good teacher. They worked in a team environment at Gordon Institute and the team worked well together. They were both keen golfers and played on their days off. After Mr Richmond moved to Goulburn Ovens, they would see each other at TAFE teacher meetings from time to time.
Mr Dixon said he could not recall how he found out that Mr Richmond had moved back to the Geelong area after he left Goulburn Ovens. Mr Dixon recalled contacting Mr Richmond to ask him to become part of their casual teaching pool given his knowledge of Mr Richmond's qualifications. The position was not advertised in the newspaper. He recalled that Mr Richmond replaced one of their teachers who decided to take leave without pay. Mr Dixon confirmed that he had offered Mr Richmond employment for the rest of the year which Mr Richmond declined. Mr Dixon believed that when Mr Richmond declined the offer, he made a comment to the effect that it would be better to leave the position for a younger person.
Although he has now retired from full-time work Mr Dixon is still doing casual work for the Gordon Institute. He retired just before his 55th birthday. Mr Dixon said that of the teachers in the casual pool at Gordon Institute, several are over sixty years of age.
Mr Dixon did not disagree with the proposition put in cross-examination that many TAFE teachers who had taught for a long time were concerned about declining professional standards and standards of conduct and behaviour. There was also a change to the profession by the mid-1990s from a largely full-time teacher situation to part-time and casual. There were also significant changes at that time to the apprenticeship and traineeships system which also changed things.
Mr Dixon was not in contact with Mr Richmond when he decided to give up work at Goulburn Ovens and first became aware of the circumstances surrounding his departure a few days before the hearing. Mr Dixon said that prior to that, he had just presumed that Mr Richmond had stopped full-time work at 60 in teaching which was what had occurred at age 55 or 60 with other teachers he had worked with.
After Mr Dixon gave his evidence, Mr Richmond conceded that he may not have seen the position in the newspaper and that he may have said that he would leave the pool position to a younger person. Mr Richmond could not remember what he said and was prepared to accept Mr Dixon’s recollection.
Mr Richmond was shown a copy of his letter dated 19 December 2004 in which he tendered his resignation effective from COB on Friday 21 January 2005. He was also shown a copy of a letter from the Manager - Organisational Development at Goulburn Ovens dated 24 December 2004:
Goulburn Ovens Institute of TAFE acknowledges receipt of your notice of resignation, effective from 21st January 2005, this being your last day of work.
….
In order to recognise areas for improvement I have enclosed an Exit Survey. Your honest comments would be greatly appreciated and I can assure you that the document will remain strictly confidential and will be held in the Organisational Development…
Mr Richmond said that he could not recall completing the exit survey. Mr Richmond conceded that he had received verbal threats from students and that he was concerned about declining standards and conduct. He said that he had probably not reported the threats or other difficulties to the principal or the head of his section because other staff members seemed to be prepared to accept that sort of activity. Mr Richmond said that he thought he was intolerant of their acceptance of those standards. He conceded that he was not happy with the work at Goulburn Ovens at the time he finished work there.
Mr Richmond said that he could not recall having a conversation with a DVA officer on 23 March 2005. A file note on Mr Richmond’s file stated:
I rang Mr Richmond to find out if he is claiming the Service Pension on AGE or INVALIDITY grounds.
I told him that the pension would be not taxable till he turns 65 if granted under invalidity grounds. He said that even it is taxable, their combined taxable income would be below the tax limit.
Therefore, he wants to claim the Service Pension on AGE grounds.
Mr Richmond was referred to the transcript of the hearing before the VRB on 27 September 2005 and agreed that his comments were probably correctly reported:
MR FAGAN: you sought an age retirement, or took a package, or what was there?
MR RICHMOND: No, there was no package. No, but if I-I just – there’s no job satisfaction. Job satisfaction is the key ingredient to work, I reckon, and I just couldn't handle attitude. Maybe it's me? Maybe it's the kids, but I just couldn't understand how TAFE was functioning now, the attitude of students. There was no job satisfaction, and as we were all told at a meeting, our divisional manager said, “Well, if you can't stand the heat get out of the kitchen,” sort of thing.
MR FAGAN: Yes.
MR RICHMOND: So, yes, so I thought, well, at 60 I could go and I'm going to go. I'd like to go back to work if I could find something that there wasn't the possibility of getting stressed about, but I don't know what that would be at this stage.
MR FAGAN: Right
MR RICHMOND: besides, at this age, who's going to take somebody at 60 anyway…
An employers’ questionnaire completed by Goulburn Ovens received by DVA on 31 May 2007 indicated that Mr Richmond was employed from 28 April 1997 to 21 January 2005. The only time off shown in their records for Mr Richmond was from 22 May 2002 to 31 May 2002 and 3 June 2002 to 18 June 2002. He worked for 38 hours per week. Mr Richmond agreed that these were the periods when he was being assessed to see if he had any heart problems. Mr Richmond did not agree with the proposition put to him that the lack of sick leave was evidence that he was coping well with his work.
There was extensive questioning about health incidents that occurred in Mr Richmond’s later years at Goulburn Ovens. Mr Richmond said he experienced chest pains on a number of occasions and was examined by a cardiologist in 2002 who found he had no heart problems. Mr Richmond was unable to verify exact dates or occasions but clearly recalled having chest pains while on the beach at Point Lonsdale while he was still an employee at Goulburn Ovens.
There were many medical reports tendered written by psychiatrists, psychologists and general practitioners referring to Mr Richmond’s health concerns at particular times. Some were around the time of his ceasing work and lodging the original claim and others more recent. Mr Richmond said that while he had and still has health issues, he tries to stay physically fit and plays golf twice a week and walks along the beach regularly.
The Tribunal had written and oral evidence from Mr Richmond’s doctor in Shepparton, Dr Hook. Dr Hook stated that Mr Richmond had first visited the clinic in February 2001 and that he first saw him on 20 June 2002. The last time Dr Hook saw Mr Richmond was on 22 February 2005. At first visit, Dr Hook’s notes describe issues with Mr Richmond’s hearing, a referral to a dermatologist and a normal coronary angiogram. In 2004 Dr Hook said that he was mainly seeing Mr Richmond regarding back pain. On 2 April 2004, however, he wrote about Mr Richmond's loss of incentive quite anxious and irritable time feels as though could cry, not getting enjoyment out of life. Dr Hook said he felt that Mr Richmond was actually quite depressed at that stage and he prescribed him medication. Various prescriptions were tried during that year as Mr Richmond experienced side effects from some medications. There are a number of notations in Dr Hook’s notes about anxiety. Dr Hook also referred Mr Richmond to a psychiatrist Dr Christopher Percival in April 2004.
Dr Hook said that he believed that Mr Richmond suffered from some form of post-dramatic stress disorder and alcohol dependency, anxiety, including claustrophobia and panic, and related depressive symptoms. In relation to Mr Richmond stopping work, Dr Hook said:
… I concurred with his decision to retire when I saw him February 2005 as I believed at that stage he was medically unfit to continue his occupation, and school teaching is a very - can be very stressful, and high responsibility type job. And with his symptoms, I felt that was totally inappropriate…
Dr Hales, who is Mr Richmond’s current doctor, sees him about four times a year. He described the reasons for his visits as general maintenance, medication, skin checks, reviews of his hearing, anxiety and depression, coughs and colds. He described Mr Richmond’s psychiatric issues as predominantly anxiety and a milder element of depressive symptoms. He had nothing in his medical notes concerning tremors or shaking.
In a report dated 22 August 2012 Dr R Horsley, occupational physician, stated:
[Mr Richmond’s] physical accepted disabilities have no impact upon capacity for work as do his non-accepted disabilities.
The Tribunal asked Dr Hales about Mr Richmond’s capacity for work, he mentioned barriers such as poor concentration, a low tolerance for stress and related symptoms as impeding Mr Richmond’s ability to work.
DO MR RICHMOND’S ACCEPTED WAR-CAUSED CONDITIONS ALONE PREVENT HIM FROM UNDERTAKING RENUMERATIVE WORK?
Section 24 of the Veterans' Entitlements Act 1986 (the Act) makes provision for payment at rates higher than 100 per cent of the general rate of pension:
24(1) This section applies to a veteran if:
…
(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…
(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…
Both parties agree that Mr Richmond meets sections 24(1)(a) and 24(1)(b) of the Act. The Tribunal concurs.
The parties disagree as to whether Mr Richmond meets s 24(1)(c) of the Act. Section 24(1)(c) and its qualifying provision, s 24(2)(a) state:
…
(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…
(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.
In Flentjar v Repatriation Commission (1997) 48 ALD 1, Branson J set out the issues posed by s 24(1)(c) in a series of 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?
In respect of question 1, the Tribunal finds that the remunerative work undertaken by Mr Richmond was as a trade teacher, boilermaker and boat operator.
In respect of question 2, as stated above, there was evidence from several medical practitioners, both general practitioners and psychiatrists that Mr Richmond is unable to work for more than eight hours per week. The Tribunal finds that Mr Richmond is prevented from working more than eight hours per week in any of his previous roles due to his accepted war-caused disabilities. So the answer to question 2 is yes.
There are also other factors to be taken into account in relation to Mr Richmond's employability apart from his accepted war-caused conditions. The Tribunal notes the comments of Nicholson J in Forbes v Repatriation Commission (2000) 101 FCR 50:
[39] …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.
[40] …it is possible that the war-caused condition will be by 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.
In Repatriation Commission v Alexander (2002) 75 ALD 329 at 334, Spender J stated:
[22] The test under s 24(1)(c) is not, "would Mr Alexander's war-caused conditions alone prevent him from undertaking the relevant remunerative work?", as the Tribunal indicated in pars 47 and 48 was the test it applied. As par 48 in particular indicates, the Tribunal concluded that if Mr Alexander did not suffer from war-caused difficulties, "he still would have been working". This is not the test for which s 24(1)(c) calls. It is whether war-caused conditions, alone, prevent the respondent from continuing to undertake remunerative work that he had been undertaking. It seems to me the Tribunal has not addressed the question of causation that s 24(1)(c) calls for, but has, in effect, applied the requirements of s 24(1)(b). The conclusion that "a combination of war service and non-war service related conditions preventing Mr Alexander from working is a non-issue" is simply wrong. If the non-service related conditions were a factor in preventing Mr Alexander from continuing to undertake remunerative work, albeit those conditions were "of secondary importance", the "alone" requirement of s 24(1)(c) would not be satisfied.
In Repatriation Commission v Hendy [2002] 76 ALD 47, the Full Court of the Federal Court stated:
37 The consideration of what a veteran would probably have done, absent the service disabilities, is a hypothetical exercise. 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. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period. So long as the Tribunal performs this exercise, the conclusions drawn from the assignment of the relative impact the various factors on the ability of the veteran to continue in remunerative work is not reviewable, except in exceptional circumstances. Moreover, having considered any or all of the factors which may have contributed to a veteran's incapacity, the Tribunal is then required to determine whether it is the veteran's war-caused injury or war-caused disease, or both, alone which prevent the veteran from continuing to undertake remunerative work. Error on the part of the Tribunal is determining whether the veteran's war-caused injury or war-caused disease is the sole determinant in the prevention of continued remunerative work is, similarly, not open to review.
Mr Purcell, appearing for the Commission, suggested that there were a number of other factors, not only his accepted war caused conditions, which contributed to Mr Richmond’s decision to cease remunerative work he had been previously engaged in. These included: Mr Richmond’s 60th birthday on the day of his resignation from Goulburn Ovens; his dissatisfaction with the conduct of students and management practices in the TAFE system; his tiring of weekly commute between the Geelong area and Shepparton; and his wish and that of his wife to be closer to their children and grandchildren. He also noted reported conversations with doctors in the years preceding his resignation back as far as 2000 that he was considering retirement due to various non-war-caused conditions.
Ms Spencer, appearing for Mr Richmond, emphasized the impact of his accepted war-caused conditions on his inability to work. She emphasised the deterioration in Mr Richmond’s anxiety state, during 2004 in particular.
Both Dr Hales and Dr Hook are of the view that Mr Richmond was unfit for work mainly due to his anxiety condition. Dr Arthur Velakoulis, consultant psychiatrist, maintained the opinion in a report dated 29 January 2011 that Mr Richmond was suffering from PTSD and alcohol dependence and that these psychiatric conditions were the two primary reasons he could no longer work. However, in the settlement of his earlier case, it was agreed between the parties that Mr Richmond did not suffer from PTSD; rather the diagnosis was generalised anxiety disorder and alcohol dependence.
Mr Richmond rejected the suggestion that a reason for ceasing work at Goulburn Ovens on 21 January 2005 was related to his sixtieth birthday. He initially denied being aware that he was entitled to an age pension when he turned sixty but then conceded that he must have known. Mr Richmond could recall little of his conversations with the RSL advocate who assisted him with lodging his claims but he did remember that he was advised to put in an application for an invalidity pension before attaining the age of sixty. He may well have considered that he would be better off with an invalidity pension but he did accept the offer of an age pension when contacted by DVA in March 2005.
The Tribunal is not satisfied that it was merely coincidental that Mr Richmond chose his sixtieth birthday as the relevant date on which to cease employment at Goulburn Ovens. While he may have preferred the invalidity pension, the documentation reveals that he applied for invalidity and age pensions and accepted the age pension on offer.
Mr Richmond worked for two-to-three weeks in mid-2005 at the Gordon Institute at the invitation of his a former colleague, Mr Dixon. Mr Richmond said that he found the work difficult and did not want to continue, this may well have been partly due to his accepted condition of generalised anxiety disorder. However, having become disillusioned and frustrated by staff, students and the learning environment at Goulburn Ovens, he apparently discovered that things were not much different at the Gordon Institute. Mr Richmond was reported as saying that the position should be reserved for someone younger, an indication that the age factor may well have been another reason for ceasing at the Gordon Institute.
Mr Dixon and Mr Richmond gave different explanations of how Mr Richmond was recruited to work at the Gordon Institute after he finished at Goulburn Ovens. The Tribunal notes that Mr Richmond’s recollection of a number of events was poor and that he was prepared to accept Mr Dixon’s account. On the balance of probabilities, the Tribunal finds that Mr Dixon sought out Mr Richmond for the casual teaching position after becoming aware of his permanent return to the Geelong area. The Tribunal is not satisfied that Mr Richmond sought out the position after seeing a newspaper advertisement for the vacancy.
In a similar vein, the Tribunal is not satisfied that Mr Richmond’s visit to the office of Melbourne River Cruises, reportedly in late 2005, was a genuine attempt to seek work as set out in s 24(2)(b) of the Act. Mr Richmond was aware that he did not have the qualifications for the position, it was Melbourne rather than Geelong based and he did not actually apply for the job.
In respect of question 3, Mr Richmond has emphasized the impact of his accepted war-caused conditions on his inability to work. He lodged the application which is the subject of this review in August 2007, more than two and a half years after he had resigned from Goulburn Ovens and more than two years after his short resumption of teaching at the Gordon Institute in mid-2005. He was 62 years old at the start of the assessment period and is now 68 years of age. It is now eight years since he stopped working and he has not undertaken remunerative work since lodging the claim that the Tribunal is reviewing.
The Tribunal is not satisfied that Mr Richmond's accepted war-caused disabilities are the sole factors that have prevented him from working for more than eight hours per week during the assessment period. The Tribunal finds that Mr Richmond’s age and frustration at the teaching environment were two of the additional factors adding to his decision to stop working. His leave records show that he was a conscientious employee. He did not take time off because of his accepted war conditions except during 2002 when his chest pains were under investigation. The Tribunal finds that Mr Richmond ceased work as a trade teacher due to his accepted disabilities but also because of his age.
The answer to the third Flentjar question is no.
There is no evidence that Mr Richmond has sought any work since turning 65 years in January 2010 (during the assessment period). The Tribunal is not satisfied that he meets s 24(2)(b) of the Act.
Mr Richmond fails to meet the criteria in s 24(2)(a) of the Act and therefore fails to meet s 24(1)(c) of the Act. He is therefore not eligible for payment of a pension at a special rate.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 67 (sixty -seven) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member ............................[sgd]............................................
Associate
Dated 20 June 2013
Dates of hearing 29 & 30 October 2012, 17 December 2012 Counsel for the Applicant Ms F Spencer Solicitors for the Applicant Williams Winter Counsel for the Respondent Mr G Purcell Solicitors for the Respondent Advocacy Section, Department of Veterans' Affairs
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