Gibson and Repatriation Commission - [2001] AATA 113

DECISION AND REASONS FOR DECISION [2001] AATA 113

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. N1999/648

VETERAN'S APPEALS DIVISION       )
           Re      Noel Leslie GIBSON
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date16 February 2001
PlaceSydney

Decision      The Tribunal varies the decision of a delegate of the Repatriation Commission dated 3 May 1997 that increased disability pension paid to Noel Leslie Gibson to 100 percent of the General Rate with effect on and from 17 February 1997, by adding "and at the Special (Totally and Permanently Incapacitated) Rate pursuant to s24 of the Veterans' Entitlements Act 1986, on and from 19 May 1997.
  ..............................................
  M T Lewis
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – special rate pension – whether veteran prevented from continuing work by reason of war-caused incapacity alone – whether suffering a loss of earnings – whether genuinely seeking work

Veteran's Entitlements Act 1986 – ss 24(1)(c), 24(2)(a) and (b)

Banovich v Repatriation Commission (1986) 69 ALR 395
Berry v Repatriation Commission (1992) 27 ALD 330
Birtles v Repatriation Commission (1991) 33 FCR 290
Flentjar v Repatriation Commission (1997) 26 AAR 93
Fry v Repatriation Commission (1997) 47 ALD 776
Re Harris and Repatriation Commission (1998) 51 ALD 789
Re Hornery and Repatriation Commission (1998) 52 ALD 317
Re Martin (KF) and Repatriation Commission (1987) 13 ALD 83
Moorcroft v Repatriation Commission (1999) 29 AAR 482
Repatriation Commission v Sheehy (1995) 39 ALD 286
Repatriation Commission v Boyle (1997) 47 ALD 637
Repatriation Commission v Smith (1987) 15 FCR 327
Ridyard v Repatriation Commission, Federal Court, 30 November 1990, GR 508 of 1990
Re Sanfead and Repatriation Commission (1986) 11 ALN 77
Servos v Repatriation Commission (1995) 56 FCR 377
Turnbull v Repatriation Commission, Federal Court, 21 May 1997, VG7 of 1996

REASONS FOR DECISION

Mrs M T Lewis, Senior Member

This is a review of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 3 May 1997 that refused an application for increase of pension lodged by Noel Leslie Gibson ("the Applicant") beyond 100 percent of the General Rate. That decision was affirmed by the Veteran's Review Board ("the VRB") on 18 March 1999. The Applicant lodged an application for review by this Tribunal on 28 April 1999.
The Applicant is seeking payment of pension at the Special (Totally and Permanently Incapacitated) Rate, pursuant to s24 of the Veterans' Entitlements Act 1986 ("the Act"). It has been conceded for the Respondent that the Applicant meets the requirements of s24(1)(a) and (b), and the parties agreed that subs.24(1)(c), 24(2)(a) and (b) are at issue. These subsections provide –
24(1)(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 parties agreed that the Tribunal should undertake its review "on the papers" and that no hearing was necessary for the purpose of taking further evidence. The parties provided written submissions to the Tribunal. The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The Applicant tendered the following documentary evidence –

Copy of Applicant's Consent to Application for Commutation/Redemption and Short Minutes of Order, filed in the Compensation Court and dated 9 March 2000 (exhibit A)
Facsimile from Commercial Union Workers' Insurance Union to Applicant's advocate dated 15 March 2000 (exhibit B)
Facsimile inquiry from Applicant's advocate to Rutter Morgan, Solicitors, dated 21 March 2000 (exhibit C)
Letter from Rutter Morgan, Solicitors, dated 22 March 2000 (exhibit D).

The Respondent tendered the following documentary evidence –

report of Dr M Burns, occupational physician, dated 28 October 1999 (exhibit 1)
Advice from Respondent's solicitor dated 1 June 2000 giving of agreement between parties on date of effect (exhibit 2)

background

The Applicant was born on 20 September 1946. He served in the Australian Army in Vietnam in 1968 and 1969, having been conscripted. When he returned to Australia he served in the Military Police for some five years. He has the following conditions accepted as due to his war service –

Post Traumatic Stress Disorder ("PTSD")
Bilateral Sensorineural Hearing Loss with Tinnitus
Solar Skin Damage
Irritable Bowel Syndrome
Gastro-Oesophageal Reflux Disease.

The Applicant relied on the following of the s37 documents in addition to the documentary evidence tendered on behalf of the Applicant –

Reports of Dr M Baz, occupational physician, dated 9 September 1997 (T15, p43) and 9 December 1998 (T15, p56)
Report of Ms Trish Chauncy, consultant psychologist, dated 21 January 1998 (T15, p49)
Report of Dr A S Murray, consultant psychiatrist, dated 26 February 1997, (T8)
Psychiatric Condition, Medical Impairment Assessment, made by Dr J E Chandler, dated 26 March 1997 (T9).

The Applicant lodged an application for increase in disability pension on 17 February 1997 (T5), in which he stated that his PTSD was so severe that he was unable to cope with work. He noted that he was being treated for this condition by Ms Chauncey, psychologist, and Dr A Murray, psychiatrist. In a lifestyle questionnaire dated 10 March 1997(T6), the Applicant advised that he was not able to talk about "matters" and this made him very anxious and he started to panic. He said his children would not speak to him, and he had not slept with his wife for a year or more. He said that he and his wife "have lived at opposite ends of the house" for more than a year. (His evidence to the VRB on 18 March 1999 was that he and his wife had by then separated, and divorce was being pursued). He could not tolerate crowds. He had a tendency to "want to fight" and he was drinking more. He had given up his involvement as a volunteer with the Bush Fire Brigade, as a motor racing official, and his interest in radio controlled model cars. He was unable to interact with his fellow workers. He said he ceased work in February 1997 because of ill health.
The Applicant's treating psychiatrist, Dr Murray, provided a brief report on 26 February 1997 (T8) to the effect that the Applicant's PTSD has rendered him permanently incapable of full-time or part-time employment.
Dr Baz, occupational physician, opined in her report dated 9 September 1997 (T15, p43 at 48) that the Applicant was unfit for work of eight or more hours per week because of his PTSD. She noted that his work fitness was also limited by a non-war-caused low back injury, but in the absence of PTSD he would be fit for alternative work in areas commensurate with his skills and experience. However, because of deterioration in his PTSD he was unable to return to alternative work that would be within his physical capacity to cope. She noted that his PTSD was much more severe than his low back condition, and she considered that his PTSD was the substantial reason for his unfitness for work.
Dr M Burns, occupational physician, provided a report dated 28 October 1999 (exhibit 1) at the request of the Respondent. His opinion was in essence the same as that provided by Dr Baz. Dr Burns concluded –
With respect to his back problems, I believe they would limit his work capacity but would not have kept him out of the workforce completely. He certainly does have some ongoing back restrictions, but he would have been capable or (sic) working in either a management or administrative position. I believe that he is unable to work in these positions now or to obtain work in these areas due to his psychological problems.
In conclusion, I believe that Mr Gibson is currently unemployable for even eight hours per week substantially due to his post traumatic stress disorder…(Tribunal's emphasis)
In a statement dated 25 February 1998 (T15, p51) the Applicant noted that he incurred a lower back injury in March/April 1995 lifting/moving drums at work. As he could not take time off from work at that stage he attended physiotherapy on a regular basis and his back responded to this treatment and the exercises he undertook. His back injury was "severely aggravated" early in September 1995 in another lifting incident at work, causing intense pain in his lower back and left leg. His local doctor referred him again for physiotherapy and ordered light duties. However, after four or five days he was forced to take time off as he could not walk and was in intense and constant pain. Subsequently he was admitted to hospital for two weeks for traction, and on discharge from hospital he received workers' compensation and commenced "an intense rehabilitation programme of exercises and physiotherapy". Because there was no light duty work available for him through his employer, in consultation with the workers' compensation Provider he resigned in December 1995 and received weekly compensation payments.
Dr Murray noted that since the Applicant left the Army at the age of 26 years he has had "over a dozen jobs in sales and working as a mechanic". He is qualified as a motor mechanic.
A letter dated 8 October 1998 from the Managing Director of Powerdown Aust. Pty Ltd (T15, p54), a previous employer of the Applicant, carefully illustrates the difficulties experienced by the Applicant (and the employer) during the first period of his employment there from 1989 to 1991, and again in 1994. He worked for this company as their Sales Manager in the first instance, and then as a Service Manager of a subsidiary company, Newcastle Truck & Bus Wheel Alignment Pty Ltd. It was noted that when he commenced his second period of employment he was in a more stable and balanced frame of mind than when he left in 1991. However, ultimately both periods of employment were seriously marred by the Applicant's inability to interact with his subordinates and his peers, and negative relationships that developed with customers. Because of this his employment was eventually terminated on both occasions. It is not clear from this report when the Applicant left that employment.
The Applicant had noted that he last worked in December 1995 for Environmental Recovery Services (T5, p12), and that he ceased work because of his PTSD. However, at another point in the same form he said he stopped working in February 1997 (p19). At T11 (p32) the Applicant specified that he ceased work on 25 February 1997. That form was a claim for service pension and was dated 5 May 1997. He noted (at T5) that he has been a manager/service adviser/sales, and he also had experience in selling – wholesale/retail. The discrepancy in the date of cessation of employment was raised with the Applicant by his advocate. His conclusion about the discrepancy was that the February 1997 date probably refers to the date on which workers' compensation payments ceased, as he had regarded himself as an "employee" of the provider, that is, after his employment with his employer was terminated because light work could not be provided.
The Commercial Union Workers' Insurance advised by facsimile dated 15 March 2000 (exhibit B) that they "paid wages to Noel Gibson from 8.9.95 to 18.5.97 totalling $49,778.29 (gross)". In a letter from Rutter Morgan, Solicitors, dated 22 March 2000 (exhibit D), who handled the settlement of the Applicant's workers' compensation claim on 9 March 2000, it was noted that the settlement was only in relation to the Applicant's back injury, and that it related to his employment with ERS Australia Pty Ltd. It would appear that the Applicant obtained employment with ERS after his employment with Newcastle Truck & Bus Wheel Alignment Pty Ltd was terminated.
The Applicant said in his statement (T16, p51) that from December 1995 to February 1997 he was constantly searching for work that did not involve lifting or too much sitting. He said he applied for at least two jobs each week, and was looking for work both in the Newcastle area and in Sydney. He was unsuccessful in obtaining any work. He said he confined his search to work in the motor industry and related areas, and he also applied for clerical and telephone salesman positions.
In 1996, in consultation with the compensation Provider, the Applicant sought assistance from the Commonwealth Rehabilitation Service ("CRS"). Through that programme it was established that he could not cope with work involving driving or lifting because of his back. However, during that programme it was also established that the Applicant's PTSD was such that CRS was unprepared to refer him to any employer.
The Applicant noted that at this stage he contemplated suicide but instead he contacted his counsellor, his psychologist and Dr Murray his psychiatrist. This led to his undertaking a PTSD inpatient programme in February 1997. As a result of that programme he decided that although his back was still a problem he "could live with it". However he decided that "the only way I was going to stay reasonably happy with my life was to leave the workforce, and concentrate on practising the things learnt on the Programme".
A letter from Ms Helen Bell, occupational therapist from CRS, dated 16 September 1996 (T16, p41) advised the Applicant's local doctor, Dr Chandler, that the rehabilitation program with CRS had ceased following the disclosure that the Applicant was suffering from PTSD and depression in addition to his back injury. Ms Bell understood that the Applicant "will not be seeking employment and plans to pursue a Veterans' Affairs pension".
The Applicant advised the VRB at the hearing on 18 March 1999 that he had commenced a computer course at TAFE for 4 hours a day, two days a week, which was to last for six months. He thought that this course might help him and it would improve his resume.
submissions, consideration of evidence and findings of fact
Date of effect
Although the application date in this matter was 17 February 1997, the parties agreed that the Applicant last received compensation payment in respect of his back injury, in lieu of wages, on 18 May 1997. Therefore on and from 19 May 1997 he was no longer in receipt of "salary wages or earnings…" (exhibit 2). The Tribunal accepts this submission, and therefore it will become the date from which the Tribunal considers whether the Applicant meets all the provisions of s24 of the Act. Thus, 19 May 1997, rather than the application date, becomes "the relevant date".
The Respondent made the following submissions on the facts in this case:

The Applicant has had a vocational background in work of a non-managerial nature both in the Army and following discharge. It was submitted that the work that the Applicant has undertaken in the past was all related to his expertise in "motor mechanics".

The Tribunal considers that it is not correct to classify the Applicant's work as a sales manager and service manager as "non-managerial". Although the Applicant's work has been exclusively in the motor industry, within that sector he has undertaken many managerial and non-managerial jobs.

Notwithstanding the Applicant's alleged problems arising from his PTSD in relation to his past employment, he was able to pursue full-time employment for many years following his discharge, and until the time he ceased employment in 1995 because of the effects of his back condition.
Despite apparent problems in the Applicant's performance in his work at Powerdown Pty Ltd especially in 1991, that Company subsequently offered him a position as a Service Manager in a related Company. In offering him the second position, it was noted that he had "reasonable employment since leaving Powerdown.." .

The Tribunal notes the content of the report from Powerdown (T16, p54) that highlights the difficulty experienced in sustaining his two periods of employment there. The Tribunal is reasonably satisfied that a history of 15 jobs in 21 years reflects an unstable employment history. When the difficulties regarding part of this period are as described in the report from Powerdown, the Tribunal is reasonably satisfied, on all the evidence, that the Applicant has had long-standing problems with his employment, arising from his PTSD. One cannot assume that because the Applicant was working full-time throughout this period that he was not having problems arising from his PTSD.

The Applicant sustained a back injury in March/April 1995 and an aggravation of his back injury in September 1995 that required traction in hospital for two weeks. He received Workers' Compensation payments and "became involved in an intense rehabilitation programme of exercises and physiotherapy".
The Applicant did not disclose that he had sustained a work-related injury in his claim for service pension lodged on 5 May 1997.
The Applicant sustained the lifting injuries in the course of "hands on" employment. He resigned from his employment after consultation with the Workers' Compensation Insurer and was then dependent on compensation payments.
On the Applicant's evidence, from December 1995 until February 1997 he was constantly searching for work that did not involve lifting or too much sitting, but was not successful. Most of the work he sought was in the motor industry. However he did not receive a "clearance certificate" from his physiotherapist until an undisclosed date in 1996 (T15, p52). Even at that time he was not fit for work involving driving or lifting.
In February 1997 the Applicant undertook a PTSD programme, and at that time decided that he could not cope with his life unless he left the workforce.
Dr A S Murray (T4), the Applicant's treating psychiatrist, noted that the Applicant "retired secondary to a back injury last October" (ie. October 1995). Ms Bell, occupational therapist, in a document dated 16 September 1996 (T16) stated –
I understand he will not be seeking employment and plans to pursue a Veterans' Affairs pension.
Dr Baz (T16, p44) noted that when she examined the Applicant on 4 September 1997 he continued to have lower back pain and avoided activities that were likely to make it worse. She also noted that the Applicant became increasingly frustrated when he was unable to obtain employment. He became quite depressed and increased his consumption of alcohol. Indeed, he "started to fall apart". He became more irritable and argumentative, and was angry and irritable during job interviews. He was frustrated by his inability to do the physical work that he had done previously. Dr Baz opined that the Applicant could no longer undertake work with a significant component of manual handling, because of his low back injury. The job he occupied when he injured his back was that of a warehouse manager, which required him to handle 44 gallon drums. However, but for his PTSD he could undertake more supervisory and administrative work.

Dr Baz noted –
In the absence of his low back condition it is probable he would have continued in the workforce despite the post-traumatic stress disorder. However, there was a deterioration in the psychiatric condition and he was unable to return to physically suitable alternative work because of the Post Traumatic Stress Disorder.
… It is my conclusion that the post-traumatic stress disorder is the substantial reason for his unfitness for work.
In contrast, Dr Burns (exhibit 1) noted that the Applicant ceased work in December 1995 because of his back problems. Dr Burns noted that the Applicant later applied for other jobs, but that he undertook only "very short term casual work". He tried to work as a sales representative "but couldn't put up with his customers". He had attended a number of interviews "but has walked out on them" because he disliked the questions he was asked. At the time of the examination on 28 October 1999 the Applicant was not looking for work because he did not believe he could work even if he found work. Dr Burns opined that the Applicant was unemployable, and noted that he had "significant psychological problems and a great deal of aggression and frustration". Dr Burns opined that the Applicant's back problems would limit his work capacity but would not have kept him out of the workforce completely. Dr Burns, like Dr Baz, considered that the Applicant could work in a management or administrative position, but for his PTSD.

The Tribunal notes that these selected facts appear to have influenced the way the Respondent has interpreted this matter. The Respondent's focus appears to be on the Applicant's last paid work and the fact that he left that after he sustained a back injury. While there is no doubt about those facts, the Tribunal is required to apply the legislation as at the relevant date. The Tribunal takes official notice that the Applicant's psychological problems of aggression and frustration, and increased alcohol consumption, arising in relation to his most recent attempts to seek work, must be seen in the context of his PTSD. They are symptoms of his PTSD, and because of that condition he is more vulnerable and less able to cope with the increased stresses arising from his back injury.
The role of s24(2)

It was submitted for the Applicant that s24(1)(c) must be read in conjunction with s24(2)(a). In essence, the combination of these provisions means that for a veteran under the age of 65 years –

He must be, at the application date or thereafter, out of the workforce because of his accepted disabilities; and
Provided he has been genuinely seeking to rejoin the workforce, if his accepted disabilities are, at the application date or thereafter, "the substantial cause" of his inability to find work, he will be regarded as being unable to rejoin the workforce because of those disabilities.

The Respondent disagreed with the Applicant's submissions. It was submitted that paragraphs 24(1)(c) and 24(2)(b) are not to be read the same but instead are to be read as "thresholds" within the legislation. For the purposes of s24(1)(c) the Tribunal must firstly examine the provisions of s24(2)(a) in order to consider whether the Applicant can satisfy the section as a whole.
The Tribunal notes the decision of the Federal Court in Moorcroft v Repatriation Commission (1999) 29 AAR 482. In that decision Dowsett J noted that (at 488):
… the two paragraphs of s24(2) are quite independent and relate to different aspects of s24(1)(c). Section 24(2)(a) relates to the circumstances in which a person will be taken to be suffering a loss of salary, wages or earnings, for the purposes of the second aspect of s24(1)(c). Section 24(2)(b) deems a person to be incapacitated from continuing to undertake remunerative work which he has previously undertaken in certain circumstances, despite the fact that he has not actually undertaken such work. This relates to the first aspect of s24(1)(c).

While the issue of whether s24(2) is a "threshold test" was not raised in Moorcroft it is reasonable to conclude that s24(2) is certainly not seen by His Honour as a "threshold" test, but rather one that is applied, as submitted for the Applicant, in conjunction with s24(1)(c). Moreover, his Honour makes it clear that paragraphs (a) and (b) have very different jobs to do. His Honour then identifies the following questions that have to be addressed –

1.        ….
2.        Was the applicant prevented by his war-caused condition, alone, from continuing to undertake remunerative work which he had previously undertaken? (s24(1)(c))
3.        Was the applicant suffering a loss of salary, wages or earnings because of his being unable to undertake that work? (s24(1)(c))
4.        Had the applicant ceased to engage in remunerative work for reasons other than his war-caused condition? (s24(2)(a)(i))
5.        Was there some other reason (apart from his war-caused condition) incapacitating or preventing the applicant from engaging in remunerative work? (s24(2)(a)(ii))

The Tribunal does not accept the Respondent's submissions that the tests in s24(2) are threshold tests. There is no support in the case law for the Respondent's submissions. The test in s24(2) is to be applied in conjunction with s24(1)(c), and this is the meaning that the Tribunal gives to the phrase "For the purpose of paragraph (1)(c)" which introduces s24(2). Put another way, the Tribunal interprets that phrase to mean "when considering paragraph (1)(c) the following provides the context in which paragraph (1)(c) is to be determined …". Section 24(2) is used in considering various issues relevant to s24(1)(c). With respect, the Tribunal has some difficulty in understanding the implications of the Respondent's concerns, in practical terms.
The Tribunal considers that the "ameliorating provisions" of s24(2)(b) may assist a veteran who is under the age of 65 years if he has not been working prior to lodging his claim and if he has been genuinely seeking work. It is not a mandatory test to apply to all veterans under the age of 65 years. However, where it is applied, and that is optional, in the words of Dowsett J in Moorcroft (supra) it "deems a person to be incapacitated from continuing to undertake remunerative work which he has previously undertaken … despite the fact that he has not actually undertaken such work". The Tribunal notes that in this matter the Applicant has sought to rely on s24(2)(b), although as noted later in these reasons, the Tribunal is of the view that the Applicant did not need to rely on the "ameliorating provisions" in order to succeed.
Was the Applicant prevented from continuing to undertake the remunerative work that he was undertaking because of his PTSD alone?
It was submitted for the Applicant that the phrase "prevented from continuing to undertake remunerative work that [he] was undertaking" in s24(1)(c) is the same as "prevented … from continuing to undertake remunerative work that [he] was undertaking" as it appears in s24(2)(b). It was submitted that the same word or phrase, appearing in the same legislation, must be given the same interpretation unless the contrary intention is indicated. The phrase does not refer to a particular job. It requires only that the veteran have ceased (to be able) to engage in the workforce primarily because of his accepted disabilities: Banovich v Repatriation Commission (1986) 69 ALR 395 at 402. In Banovich the Full Federal Court said, in respect of para [1](b)(iii) of the Repatriation Act 1920, as amended, which was the precursor of s24(1)(c) of the present Act –
… [T]he loss referred to in par [1](b)(iii) may be caused either by a loss of existing employment or by an inability to obtain new employment … [T]he phrase "remunerative work which the respondent (sic) was undertaking" should be read as a reference to the type of work which the member previously undertook and not to any particular job. It follows that a member's loss of particular employment for a reason unrelated to war disability would never destroy a member's subsequent entitlement to claim a special rate pension; the question would remain, at the relevant date for determination of a claim, whether the member was prevented by his … war-related incapacity – and by that incapacity alone – from continuing in that field of remunerative activity.

It was noted that Banovich dealt with a veteran over the age of 65 years. It was submitted for the Applicant that the phrase "ceased to engage in remunerative work" can only be interpreted, relying on Banovich, to mean "ceased to be in the paid workforce".

The Tribunal notes that Spender J said in Fry v Repatriation Commission (1997) 47 ALD 776 at 777 –
The phrase "remunerative work that the veteran was undertaking" in s 24 of the Act does not refer to any particular job that the veteran had, but to the type of work that the veteran previously undertook. It need not be the last remunerative work that the veteran was undertaking, but it must be remunerative work that the veteran would have been undertaking at the relevant time in the assessment period had the veteran not been incapacitated by his war-caused disabilities.
It was submitted for the Respondent that whilst the Applicant has a significant PTSD condition, this was not the reason he ceased work in December 1995. The Applicant was prevented from continuing to work in areas for which he had relevant vocational skills and ability, at least up to 1997, because he was not fully fit for work due to his back injury. It was only during consultations with the Commonwealth Rehabilitation Service that the Applicant turned his attention to problems associated with his PTSD. Dr Baz noted that the Applicant experienced frustration because of his inability to pursue physical work. The Applicant admitted that his back was "not 100%" (T16, p52) when he enrolled in the PTSD programme, and at the end of that programme he decided not to pursue further employment.
It was submitted therefore that s24(1)(c) was not satisfied as the Applicant was not, because of his war-caused disabilities "alone", prevented from continuing to undertake remunerative work that he was undertaking. The Respondent considered that "but for" the Applicant's back condition it is more probable than not that he would have continued in his employment. It was submitted that, pursuant to s24(2)(a), he was prevented from pursuing remunerative work for which he was physically capable, and ceased to engage in remunerative work for reasons other than his war-caused incapacities.
The Respondent relied on the decision of the Federal Court in Turnbull v Repatriation Commission, Federal Court, 21 May 1997, VG7 of 1996 that stated –
If the veteran has ceased to engage in remunerative work for reasons other than the incapacity from the war-caused injury or disease, or is incapacitated or prevented from engaging in remunerative work for some other reason, the veteran shall be taken not to have met the requirements of s.24(1)(c).

Relying on Turnbull it was submitted that the Applicant's back condition, and its continuing effect on him being unable to pursue work which involved more than sedentary tasks, was the substantial cause of his inability to obtain remunerative work.

The Tribunal suggests that the Respondent's quotation taken from the decision of Merkel J in Turnbull (supra) must be read in the context in which it was written, that is, s24(1)(c) must be applied in the context of the relevant assessment period. In the matter now before the Tribunal the assessment period commenced on 17 February 1997. The parties have already agreed that the earliest date from which the Applicant may be entitled to payment of pension at the Special Rate is 19 May 1997, as he was in receipt of weekly compensation payments until that date. However, the Respondent appears to be focussing the test on the time that the Applicant last worked in 1995 when he had his back injury. That is not the test that is required pursuant to s24(1)(c) of the Act.
As noted already, the Applicant's remunerative work that he was undertaking was work of various sorts, including physically demanding work as well as work as a sales representative, sales manager, and service manager. While he had confined his employment to work in the motor industry since he had left the Army, his 15 jobs in the following 21 years were varied in their nature. Therefore, applying Banovich (supra) and Fry (supra) the remunerative work that the Applicant was undertaking was a variety of work in the motor industry, including work of a managerial and sales nature.
By September 1997, only four months after the relevant date, Dr Baz was clearly of the view that in relation to the Applicant's back condition he could have worked in an administrative or supervisory position. The Tribunal has already found that such work of a non-physical nature is included in the description of his "remunerative work". While at the relevant date he was no longer fit for his last job (which ceased in December 1995) involving moving 44 gallon drums, that specific job is not the "remunerative work" that needs to be taken into account in considering s24(1)(c).
It was submitted for the Respondent that the "suffering a loss of salary or wages" test in s24(1)(c) is in addition to the "prevented from continuing to undertake remunerative work" test: Repatriation Commission v Boyle (1997) 47 ALD 637. While the Tribunal does not dispute this, it is apparent that Boyle was a matter that related to the adequacy of the tribunal's reasons, although the issue before the tribunal related to s24(1)(c). In Boyle the Federal Court referred to the decision of the Full Court in Flentjar v Repatriation Commission (1997) 26 AAR 93 and cited with approval the explication of the questions to be asked in coming to a proper consideration of s24(1)(c) outlined by Branson J at 96. Those four questions are –
1. What was the relevant "remunerative work that the veteran was undertaking" within the meaning of s24(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? [emphasis added].

The Tribunal notes that those four questions also have to be applied in this case. However, before dealing with this, the issue of the ameliorating provisions of s24(2)(b) have been raised by both parties, and therefore they must be considered.
The "ameliorating provisions" of s24(2)(b)

The Tribunal notes that the thrust of the submissions by both parties relies on a dependence on the ameliorating provisions of s24(2)(b) and in particular whether the Applicant "has been genuinely seeking to engage in remunerative work, that he .. would, but for [his war caused] incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his … inability to obtain remunerative work in which to engage…". The Respondent's argument is that this is a threshold test, while the Applicant argues that it must be read in conjunction with s24(1)(c).
The Tribunal does not consider that any of the case law on which the Respondent relied supports the argument that it is a threshold test. When considering the context in which Sackville J discussed the role of s24(2)(b) in Repatriation Commission v Sheehy (1995) 39 ALD 286, it is reasonable to infer that His Honour considered that in fact this was an "ameliorating" provision for those veterans under the age of 65 years who were not working but who were genuinely seeking work. Indeed, over time it has become known as the "ameliorating provision" on which a veteran under the age of 65 may seek to rely. In Re Sanfead and Repatriation Commission (1986) 11 ALN 77 the Tribunal held that the provisions do not provide a further hurdle. It held that they are intended to be "ameliorating", and designed to cover a case of a veteran who was unemployed but genuinely seeking to engage in remunerative work when his incapacity from war-caused conditions became such as to prevent him from continuing to work.
In arguing now that the test in s24(2)(b) is a threshold test, the Respondent appears to be inferring that it is mandatory in this case that the Applicant relies on this provision. Clearly this is not the intention of the legislation, and that is the position that has been held by the Tribunal in a number of decisions (including in those listed above). It is an optional "ameliorating" provision, that is, for those who are under the age of 65 years, if they have been genuinely seeking to engage in remunerative work and their war-caused incapacity is the substantial cause of their inability to obtain remunerative work in which to engage, then that is sufficient for the relevant parts of the provisions of s24(1)(c) to be met.
Because this matter was conducted as a hearing on the papers, the Tribunal did not have the opportunity to question the parties on the Applicant's reliance on s24(2)(b). The Tribunal also notes that the evidence as to the details of the Applicant's search for work, his employment history and the precise circumstances and time of his ceasing to look for work provide some difficulty for the Tribunal being confident that it has the best evidence to consider the application of s24(2)(b).
It was submitted for the Respondent that the Applicant is not able to avail himself of the "'ameliorating provisions' under s24(1)(c)" (sic) as he has already failed to satisfy the requirements of s24(1)(c) because of the operation of s24(2)(a). In this regard the Respondent relied on the Federal Court decision in Fry (supra). What Spender J said in Fry (not reported on this point) is –
As to the final ground of appeal, the AAT in my view did not err in its application of s24(2B) [sic] of the Act. In paragraph 51 of the reasons for decision set out above, the AAT indicated that even if the ameliorating provision of s24(2)(b) is applied to s24(1)(c), the applicant was not entitled to the Special Rate of pension because of the effect of s24(2)(a)(i), which provides that a veteran shall not be taken to be suffering the loss of salary or wages if the veteran ceased to engage in remunerative work for reasons other than his incapacity from war-caused injury or disease, or both. …
It was also submitted for the Respondent, in the alternative, that the Applicant would fail in any event to satisfy the requirements of s24(2)(b) as he did not genuinely avail himself of all possible opportunities open to him, in continuing to seek remunerative work. He did not register himself with Centrelink (T7) but relied on answering newspaper advertisements which, the Respondent submitted, would have only limited success in the context of the Applicant genuinely seeking employment.
It was submitted for the Respondent that the Applicant also ceased to be genuinely seeking remunerative work by concentrating on his claim for pension for PTSD in lieu of seeking employment. This, it was stated, was when he was in the midst of a rehabilitation programme with the Commonwealth Rehabilitation Service due to his back condition. It was also submitted that he could have attended both the PTSD programme and made genuine efforts to seek employment.
It was submitted for the Applicant that s24(2)(b) does not necessarily require that the seeking of work post-dates the cessation of engagement in remunerative work. It was submitted for the Applicant that it is unexceptional that a person with a work-limiting incapacity may, after seeking new or other work, give up fruitless attempts and consequently "cease to engage in" and cease to "seek" remunerative work, because of the negative impact of his accepted disabilities. The Respondent disagreed with the Applicant's submission on this issue, and submitted that if the Applicant's submission was accepted it would render otiose the requirement of s24(2)(b). It was submitted that at the one time within the assessment period it is necessary that all the requirements of s24 are satisfied concurrently in order to qualify for special rate pension: Ridyard v Repatriation Commission, Federal Court, 30 November 1990, GR 508 of 1990; Servos v Repatriation Commission (1995) 56 FCR 377; Birtles v Repatriation Commission (1991) 33 FCR 290. It was also submitted that the Applicant's failure to seek work was not because of his PTSD but because of his back condition.

The Tribunal does not agree that the Applicant failed to seek work, nor that he failed to seek work because of his back condition. That is contrary to the facts and the medical evidence. It was submitted for the Applicant, and the Tribunal agrees, that he was out of work for 14 months before he finally ceased to look for work in February 1997. Notwithstanding that, even in 1999 he was still trying to improve his resume by attending a computer course.
The Tribunal does agree with the Respondent's submissions that all the requirements of s24 must be satisfied concurrently, at the relevant date. If the Applicant is relying on the ameliorating provisions of s24(2)(b) then at the relevant date he must demonstrate that he has been genuinely seeking remunerative work.
The evidence as to when the Applicant ceased seeking remunerative work is less than clear. The Tribunal does not accept the Respondent's submissions that he was not genuinely seeking work because he was not registered with Centrelink. There is absolutely no requirement under the Act or the case law for the Applicant to register with Centrelink for employment, and indeed the Tribunal takes official notice that although Centrelink is the location for any application for Jobsearch Allowance it does not itself provide an employment agency function. There is no requirement that the Applicant be registered as an unemployed person or registered with an employment agency. There are other ways of genuinely seeking work, including answering newspaper advertisements, which, on the Applicant's evidence, he did systematically. Furthermore, it is absurd to suggest that the Applicant could have been seeking work while he was attending the PTSD programme, which the Tribunal understands to be an intensive in-patient programme over a number of weeks.
The Tribunal finds, on the evidence before it, that the Applicant has attempted to obtain work. He has done this not only by his own apparently regular search for work, but also by his persistence with his rehabilitation program and by his reasonably recent attempt in 1999 (T17) to undertake a computer course "in order to improve his resume". There is no doubt that the Applicant's search for work since December 1995 has been hampered by the adverse effects of his PTSD, both in terms of the way he presented at interviews and ultimately by his frustration. However, that frustration has arisen from his vulnerability as a result of his PTSD, just as his PTSD has caused him to present to prospective employers in an aggressive and angry manner. These are symptoms of his accepted disability.
The evidence in respect of the Applicant's specific search for work during the relevant period is unlikely to be the best evidence available. Presumably that has been marred by the parties' preference for this matter being heard "on the papers" without seeking a further statement from the Applicant specifically on this issue. Doing the best one can with the available evidence (T16, p51-53) the Tribunal is reasonably satisfied that the Applicant was genuinely seeking work until he undertook the PTSD course, by which time he had accepted that his PTSD was preventing him from continuing to work. Apart from the period of the PTSD course when the Applicant could not be seeking work because he was in hospital, the Tribunal is reasonably satisfied that the provisions of s24(2)(b) have been met. However, in case the Tribunal is wrong on this issue, it is appropriate to proceed to consider whether the Applicant meets s24(1)(c) without the advantage of the ameliorating provision.
Before leaving this point, and in case there is any concern to the contrary, the Tribunal notes the following decisions of the Tribunal in support of its decision that it is not essential for the Applicant to rely on the ameliorating provisions when he is under 65 years of age. It was explained Re Martin (KF) and Repatriation Commission (1987) 13 ALD 83 at 94 that –
Section 24(2)(b) cannot apply to every veteran under 65 years who has a period of not being engaged in remunerative work after a retirement due to incapacity from war-caused injury or disease. That would have the effect that a veteran who retired because he was too ill to work would still need to look for work in any short intervening period between his retirement and the lodging of his application for special rate of pension. That would be an absurd result and in our view is not required by the legislation.

In Re Hornery and Repatriation Commission (1998) 52 ALD 317 the Tribunal said (at 332) –

The tribunal does not agree with the respondent's submission that Mr Hornery must meet the requirements of s 24(2)(b). For s 24(2)(b) to be read in such a way, it would amount to a hurdle over which virtually all veterans under the age of 65 would need to drag themselves in order to obtain entitlement. The tribunal does not consider that this was parliament's intention and considers its view is supported by the second reading speech. "Special provision" is made by s 24(2)(b) to cover unemployed veterans who have been genuinely seeking to engage in remunerative work. It cannot have been intended that veterans under the age of 65 who have ceased work by reason of incapacity from war-caused injury or war-caused disease, or both, alone are required to actively pursue remunerative work before they can be entitled to payment at the special rate.

In Re Harris and Repatriation Commission (1998) 51 ALD 789, the Tribunal said (at 790-791) –

… the fact that the applicant has not been genuinely seeking to engage in remunerative work does not, of itself, make him ineligible for the special rate of pension under s24 of the Veterans' Entitlements Act 1986 (Cth) (the Act) … It merely means that the applicant cannot rely on the ameliorating provisions of s 24(2)(b).

Section 24(1)(c)

The Tribunal will now consider whether the Applicant meets the requirements of s24(1)(c) without reliance on the ameliorating provisions. It was submitted for the Respondent that the fact that the Applicant had been out of the workforce since 1995, in tandem with his back condition, is a relevant consideration: Berry v Repatriation Commission (1992) 27 ALD 330. The Tribunal notes that in Berry the Court was considering the primary issue of extension of time for an appeal. In doing so, the merits of the matter were observed by the Court, and it was noted that Mr Berry's inability to work was due not only to his war-caused disabilities but, also to his cyclothymic personality disorder that was not war-caused and the fact that he had been out of the workforce for 18 years. The Tribunal considers that the matter now before the Tribunal can be distinguished from Berry on the facts. Fourteen months in the Applicant's case is a far cry from 18 years in Berry. Additionally the Applicant was actively involved in a rehabilitation programme during his period out of the workforce. The Tribunal does not consider the Applicant's time out of the workforce to be a relevant negative factor in this case.
It was submitted for the Respondent that "common sense" should be the guide in considering the "alone" test, and that by applying "common sense" it is apparent that the break in the pattern of the Applicant's employment history arose following his back injury and aggravation in 1995. It was submitted that even if it is accepted that the Applicant's PTSD worsened following his back injury and aggravation, it is the back injury in tandem with the frustration in his efforts at finding employment for which he was suitable, that prevented him from undertaking remunerative work.
The Tribunal does not accept the Respondent's submission on this issue. The medical evidence from Dr Burns and Dr Baz is that in relation to his back condition the Applicant could undertake work of a non-physical nature. However, he could not undertake any work because of his PTSD. While both these doctors then referred to the Applicant's PTSD being the substantial cause of his inability to work, in looking at their evidence PTSD appears to be the exclusive medical cause. The doctors do not provide any other medical cause for the Applicant's inability to work. Any worsening of his PTSD as a result of his back injury must arise from his PTSD. But for his war-caused PTSD, his back injury could not have worsened it. The Tribunal finds, in the absence of any evidence to the contrary and on the facts before it, but for his PTSD the Applicant would have returned to his work in the motor industry, albeit to work of a non-physical nature for which he is experienced.
Moreover, because the Applicant was actively pursuing a rehabilitation programme focussed on return to work following his back injury, and because in the past he appears to have found employment in the motor industry on numerous occasions, the Tribunal accepts the probability of the Applicant returning to work after his back injury, but for his PTSD and the consequential effect the back injury had on it. The Full Federal Court in Repatriation Commission v Smith (1987) 15 FCR 327 at 337 (Beaumont J) identified that :
The question posed by s24(1)(c) is one of hypothetical fact. The tribunal must attempt an assessment of what the respondent probably would have done if he had none of his service disabilities. The starting point is an examination of the prospects of employment …
The Tribunal does not accept that, taking a common sense approach to the matter, as encouraged by the Respondent, it was the Applicant's back injury in tandem with his PTSD, that prevented him from continuing to undertake remunerative work. The Tribunal finds that the back injury had no role in this: it is not a cause in tandem with the Applicant's PTSD, nor is it the substantial reason.
Focusing on ss24(1)(c) and (2)(a), the Tribunal is reasonably satisfied that the Applicant did not cease to engage in remunerative work for reasons other than his war-caused PTSD. His incapacity from PTSD was such that by the time payment of compensation ceased, the Applicant was so severely affected by his PTSD that he was unable to engage in work for eight or more hours per week, or indeed at all. The medical evidence supports this finding.
Loss of earnings
The Tribunal notes that s24(1)(c) makes a distinction between the Applicant being prevented from his war-caused conditions alone to undertake remunerative employment, and suffering a loss of salary or wages. The Tribunal finds that by reason of his war-caused PTSD the Applicant has suffered a loss of salary or wages on and from the date when his weekly compensation payments ceased (19 May 1997), that he would not be suffering if he was free from his PTSD. The Tribunal is reasonably satisfied that but for his PTSD the Applicant would have returned to remunerative employment in the motor industry following the completion of his rehabilitation program relating to his back injury and therefore would not have suffered a loss of salary or wages.
It was submitted for the Applicant that in respect of the lump sum commutation of $65,000, this was paid only in respect of his back injury and did not include any component relevant to weekly wages (exhibit D). In the alternative, even if the lump sum amount of $65,000 is considered by the Tribunal to be totally related to the Applicant's wages, when apportioned over the period to his 65th birthday (in the year 2011) this represents an income substantially less, per annum, than his original salary of about $30,000 per annum (T17, p64). No submissions were made by the Respondent in respect of the lump sum compensation paid to the Applicant.
The Tribunal finds that the lump sum payment to the Applicant of $65,000 did not have any identifiable loss of wages component. The Tribunal accepts the Applicant's submissions on the alternative described above and therefore even in those circumstances there is a clear loss of earnings demonstrated. One important factor that goes against the payment including a loss of earnings component is that at the time it was made it was clear that the Applicant was unable to work because of his PTSD, which was not a compensable condition. Also, the payment was made at a time after the Applicant's rehabilitation programme was terminated because his PTSD was in effect aborting his return to work.
Conclusion
The Tribunal is reasonably satisfied that the Applicant was not prevented from engaging in remunerative work for some other reason, other than his war caused PTSD [s24(2)(a)(ii)], and that he is prevented by his PTSD alone from continuing to undertake remunerative work in the motor industry, and because of this, on and from 19 May 1997, he has suffered a loss of salary or wages that he would not have been suffering if he were free of his PTSD [s24(1)(c)]. In the alternative, the Tribunal finds, having found that the Applicant's PTSD was the substantial cause of his inability to obtain remunerative work in which to engage [s24(2)(b)], that he meets the provisions of s24(1)(c) of the Act.
The Tribunal therefore varies the decision under review which increased the Applicant's pension to 100 percent of the General Rate with effect on and from 17 February 1997, by adding the words "and on and from 19 May 1997 the Applicant is entitled to payment of pension at the Special Rate".
I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Lewis
Signed:         .....................................................................................
  Associate
Date/s of Hearing  No hearing conducted
Date of Decision  16 February 2001
Representative for the Applicant              Ms J Buss, Legal Aid Commission of New South Wales
Solicitor for the Respondent  Mr G Wright, Department of Veterans' Affairs