Graham Abbott and Repatriation Commission
[2012] AATA 895
[2012] AATA 895
Division VETERANS' APPEALS DIVISION File Number
2011/2510
Re
Graham Abbott
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President DG Jarvis and
Lt Col B Ormston (Retd)Date 19 December 2012 Place Adelaide The decision under review is affirmed.
......................[Sgd]..................................................
Deputy President DG Jarvis
CATCHWORDS
VETERANS' ENTITLEMENTS - Disability pension - rate of pension payable - special rate - held that applicant not prevented from continuing to undertake past remunerative work by his war-caused conditions alone - decision under review affirmed.
LEGISLATION
Veterans' Entitlements Act 1986 (Cth), s 24(1)(c)
CASES
Cavell v Repatriation Commission (1988) 9 AAR 534
Chambers v Repatriation Commission (1995) 55 FCR 9
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 101 FCR 50
Jackman v Repatriation Commission [1997] FCA 564
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
McDonald v Director-General of Social Security (1984) 1 FCR 358
Re Banovich and Repatriation Commission (1986) 9 ALN N223
Repatriation Commission v Braund (1991) 23 ALD 591
Repatriation Commission v Butcher [2006] FCA 811
Repatriation Commission v Butcher (2007) 94 ALD 364
Repatriation Commission v Connell (2011) 197 FCR 228
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Van Heteran (2003) 75 ALD 703Starcevich v Repatriation Commission (1987) 18 FCR 221
REASONS FOR DECISION
Deputy President DG Jarvis and
Lt Col B Ormston (Retd)19 December 2012
INTRODUCTION
The applicant, Graham Abbott, served in the Australian Army between March 1957 and April 1987. He had operational service in Vietnam from 18 February 1969 to 4 February 1970. He has a number of disabilities that have been accepted as service related.
On 2 July 2007, he lodged an application for an increase in pension. His application referred to two disabilities, namely pain in both knees and lower back pain, and the supporting details completed by a general practitioner referred to diagnoses of osteoarthritis in both knees and the lower back.[1] We deduce from the documents before us that a delegate of the Commission decided in March 2008 that L5/S1 spondylolisthesis from which Mr Abbott suffers was not related to service, but that his pension should be increased to 100% of the general rate with effect from 2 April 2007. Following an appeal to the Veterans’ Review Board (VRB), the VRB decided in June 2009 to affirm the Commission’s decision that the L5/S1 spondylolisthesis was not related to service, to vary its decision by amending the diagnosis of L5/S1 spondylolisthesis to include lumbar spondylosis, and to set aside the Commission’s decision in relation to lumbar spondylosis and substitute a decision that that condition was war-caused. The VRB then remitted the matter to the Commission for assessment of the rate of pension to be paid.
[1] Exhibit R2, T3, page 13.
It further appears that in September 2009 the Commission decided to maintain its assessment of the rate of pension at 100% of the general rate. That decision was affirmed by the VRB in May 2011, following a further application by Mr Abbott to the VRB to review the Commission’s assessment decision. Mr Abbott has now applied to this tribunal for review of the VRB decision, and seeks pension at the special rate.
Mr Abbott’s entitlement to the pension at the special rate is to be determined under s 24 of the Veterans’ Entitlements Act 1986 (Cth) (VE Act). It was common ground that he satisfies the first criterion under s 24 (namely, a determination of entitlement to a pension at a rate higher than 70% of the general rate), and the second criterion (namely, an incapacity from war-caused conditions of such a nature as, of themselves alone, render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week). These criteria are contained in ss 24(1)(a)(i) and 24(1)(b) respectively of the VE Act.
ISSUES FOR DETERMINATION
The principal issues before the tribunal are:
(a)whether Mr Abbott satisfies s 24(1)(c) of the VE Act, that is whether he is, by reason of incapacity from his war-caused injuries alone, prevented from continuing to undertake remunerative work that he had been undertaking; and
(b)whether he has ceased to engage in remunerative work for reasons other than his incapacity from his war-caused injuries, and so by virtue of s 24(2)(a)(i) of the VE Act is taken not to have suffered a loss of salary or wages, or earnings on his own account, that he would not be suffering if he were free of that incapacity.
BACKGROUND FACTS
The following background facts are based on the evidence of Mr Abbott and on the documentary material before us.
Mr Abbott is aged 62. As at the date of his application to this tribunal he had a number of disabilities which had been accepted as service related, namely non-melanotic malignant neoplasm of the skin, alcohol abuse, post-traumatic stress disorder (PTSD), bilateral tinnitus, osteoarthritis affecting both knees and lumbar spondylosis. He was also suffering a non-accepted condition, namely spondylolisthesis at the L5/S1 level. During the period prior to and for some time after he ceased work he was also suffering from another non-accepted condition, namely a Dupuytren’s contracture of the ring and little fingers of the right hand; his two fingers had gradually been assuming a claw-like position over a period of about four to five years. He had an operation to correct this condition on 22 October 2008.[2]
[2] Exhibit A7, paragraph 2.
He attributed his back problems to an injury which he sustained in 1974 when he was kicked in the back while playing football for the Army, and which resulted in his being hospitalised for seven or 14 days.[3] He has had problems with his back ever since then. He is unable, because of the condition of his knees, to manage stairs without using a handrail, and he finds it difficult to pick himself up off the ground. He has had physiotherapy for his back, and now has an altered gait as a result of his back pain.
[3] Compare the history obtained by Mr A J Munyard in exhibit A4 with Mr Abbott’s oral evidence.
Applicant’s employment after discharge
Mr Abbott gave the following evidence as to his employment after he was discharged from the Army in 1987. He first worked at the Mount Barker Meat Works undertaking general duties until about 1990, and then until 1991 he was employed at Barker Food Processing, also undertaking general duties. From 1991 until about June 2004, except for a period from 1996 to 1997 when he worked as a manual labourer at a quarry, he was employed in hotels as a barman or bar manager at two hotels in Mount Barker and later at a hotel at Stirling North, a town in the mid-north of South Australia. He worked in this last position as a bar manager for a period which he described variously as about six or 12 months,[4] and resided at the hotel on weekdays. He worked from 10 am to 8 pm, five days a week. He left this employment when the hotel changed hands and the new owners employed other managers, and he was no longer required.
[4] Compare Mr Abbott’s witness statement, exhibit A1, paragraph 17, with his oral evidence.
After that he obtained work as a casual cleaner through a lady whom he knew, whose parents had a cleaning contract to clean the office premises occupied by the Satisfac Credit Union in the city of Adelaide. According to his witness statement, he was employed there from mid-2004 until approximately late in 2006, and worked five days a week from 5.30 pm to approximately 10.00 pm.[5] Satisfac’s offices extended over three floors of the building, and his main duties involved emptying approximately 150 small office bins and vacuuming about 2½ floors.
[5] Exhibit A1, paragraph 27.
He said that the main reason he gave up the cleaning work at Satisfac was because he had to bend over to pick up the rubbish bins. This caused a lot of back pain, which gradually got worse. He said that he did not work constantly, and would sit down and have a break if his back was hurting; after he had picked up the bins for a while, his back would ache so much that he had to sit down. He said that the main reason he gave up work in 2006 was his back; he just could not do what his employers wanted him to do. Mr Abbott also said that he had no trouble vacuuming, because he had a back pack and did not have to bend over. He said that his knees locked up every so often, and also that he had to use a handrail to get up and down the stairs, but his knees were not really giving him any problems.
He did not want to retire when he stopped work at Satisfac, and had had no plans to retire at that stage. On the contrary, he wanted to stay in the workforce for as long as he could. He said that he gets bored doing nothing at home.
After he ceased working as a cleaner at Satisfac, a friend with whom he had previously worked told him that there was a vacancy for a barman at the Elephant & Castle Hotel, and suggested that he should apply. He did so, but found that the work would have entailed moving kegs from the hotel’s cellar, and he knew that he would not be able to do this. He also said that when the manager of the hotel heard that he had a bad back, he was not interested in employing him.
One of his friends also told him about a position with a person who was doing concreting work, and suggested that he should work for that person. He tried this for about a day and a half, but found he could not do this work, and left that employment.
He also said that at the suggestion of a friend he applied for a job at a hotel at Nairne, and was engaged as a boots barman, working once a week for two hours, cleaning the lines at the hotel. He gave this up after about six months.
In his witness statement, Mr Abbott said that he spoke to a few other people who ran hotels and bars in the Mount Barker area to see whether they had any work for him, but that those potential employers were unwilling to take him on due to his physical restrictions. He added that he could not recall the names of the hotels and bars that he enquired at.[6] In cross-examination, he said he looked around for work in Mount Barker, but there were only three hotels in the area, and he did not look for work outside Mount Barker. When asked why he had not looked further for work, he said that it was very hard to get to places without a car; his own car had been written off when he was still working at the Stirling North hotel, and he did not have the money to buy another car. He also said that after the age of about 55 prospective employers do not want to employ people, and he knew that because a couple of hotels around Mount Barker had hinted that, and that a lot of places only want younger people for about 15 to 20 hours per week.
[6] Exhibit A2, paragraphs 1 and 2.
Medical evidence
An orthopaedic surgeon, Mr A J Munyard, examined Mr Abbott in January 2009 and provided a report to the RSL dated 27 January 2009.[7] He examined Mr Abbott again at the request of his solicitors in March 2012, and arranged relevantly for an MRI of the lumbar spine. He then reviewed Mr Abbott again in May 2012, and provided a report dated 24 May 2012 to Mr Abbott’s solicitors.[8]
[7] Exhibit A3.
[8] Exhibit A4.
In his first report, Mr Munyard noted that x-rays of the lumbar spine showed Grade 2 L5/S1 spondylolisthesis with bilateral pars into interarticulares defects, apparently reported to be a long-standing feature and present in a lumbar spine x-ray report of 1 February 2003. Mr Munyard also observed narrowing of the L5/S1 disc space indicating disc degeneration. He referred to the history of injury to the back in 1974 and the ongoing problems in the back since then, and thought that the problems were service related.
When requesting the second report from Mr Munyard, Mr Abbott’s solicitors asked him to consider the relevance of the lumbar spondylolisthesis condition to Mr Abbott’s back pain and limitations. In his resulting report, Mr Munyard advised that the radiological investigations revealed a Grade 1 spondylolisthesis, and evidence of disc degeneration at the same level. He continued:
Mr Abbott has spondylolisthesis with degeneration at the same level. I believe this latter is the cause of his ongoing difficulties with his lumbar spine. The lumbar spondylolisthesis is probably having a low impact on his current back symptoms. I feel that it is more his disc degeneration causing the problem at the present moment but it is secondary to the injury sustained in 1974.
Mr Munyard confirmed in evidence that in his opinion, the spondylosis was responsible for the majority of the symptoms and problems, and added that this would be causing more than 90%, or very close to 100%, of Mr Abbott’s problems. He added that the degeneration is gradually increasing and getting worse, and the amount of pain would also be increasing, and that in his opinion, it was the spondylosis that caused Mr Abbott to stop work. He also considered that the presence of the spondylolisthesis would have made that level of the spine more susceptible to injury, and would have increased the likelihood of degenerative change.
Medical reports from a general practitioner at Mount Barker, Dr K Sun, confirmed that Mr Abbott’s Dupuytren’s contracture, affecting the fourth and fifth fingers of the right hand, were operated on by a plastic surgeon on 22 October 2008. In his report dated 15 November 2011, he said that post-operative recovery was satisfactory, that Mr Abbott had full strength of the right hand, that movement of the fourth and fifth fingers was mildly limited, but overall the function of the right hand was very good. Dr Sun added that the right-hand condition was “unlikely to be one of the major contributing factors” that caused Mr Abbott to cease work as a cleaner, and that it was unlikely to prevent him from undertaking remunerative work for more than either eight hours per week or 20 hours per week.[9]
[9] Exhibit A7.
PARTIES’ CONTENTIONS
Counsel for Mr Abbott, Mr N Floreani, contended that Mr Abbott was, by reason of his incapacity from his war-caused injuries alone, prevented from continuing to undertake remunerative work that he had been undertaking. In the alternative, he contended that Mr Abbott had genuinely sought to engage in remunerative work, and would, but for his war-caused incapacity, be continuing to engage in such work, and that his war-caused incapacity was the substantial cause of his inability to obtain work, so that he should be treated, by virtue of s 24(2)(b), as having been prevented from undertaking remunerative work that he had been undertaking.
Mr A Crowe, the advocate for the Commission, contended that other factors, namely the Dupuytren’s contracture, spondylolisthesis, age or redundancy contributed to Mr Abbott’s ceasing or not continuing his remunerative work, and so Mr Abbott did not qualify for pension at the special rate under s 24(1)(c) of the VE Act. He also contended that Mr Abbott did not satisfy the criteria in s 24(2)(b), and so could not rely on the ameliorative provisions of that section.
LEGISLATION
If s 24(1) of the VE Act applies Mr Abbott is entitled under s 24(4) to a pension at the special rate therein provided. Sections 24(1)(c) and 24(2)(a) and (b) of the VE Act provide as follows:
24(1) This section applies to a veteran if:
...
(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
...
(2) For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; 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.
CONSIDERATION
In considering the application of s 24(1)(c) of the VE Act, we refer first to the analysis of Branson J, with whom the other members of the Full Court of the Federal Court agreed, in Flentjar v Repatriation Commission.[10] Her Honour said that a proper consideration of s 24(1)(c) required responses to the following four questions:
1.What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the Act?
2.Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3.If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4.If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?
[10] (1997) 48 ALD 1 at 4-5.
A determination of the responses to these questions entails an examination of the facts relevant to each question. Under s 120(4) of the VE Act, the tribunal must decide these issues to its reasonable satisfaction, a standard which equates with proof on the balance of probabilities.[11] Neither party has an onus of proof (s 120(6) of the VE Act), and the tribunal must act according to substantial justice, and the substantial merits of the case, without regard to legal form and technicalities.[12] We also bear in mind that it nevertheless remains necessary for a party asserting facts to adduce evidence which would support a finding by the tribunal that those facts exist, since as a matter of common sense, if there is no such evidence, the finding cannot be made.[13]
[11] Repatriation Commission v Smith (1987) 15 FCR 327.
[12] s 119(1)(g) of the VE Act.
[13] McDonald v Director-General of Social Security (1984) 1 FCR 354 at 358.
The time at which the assessment under s 24(1)(c) is to be made is not the date when the veteran ceased remunerative work; the veteran’s entitlement should be considered at the time of application to the primary decision-maker, and an assessment must be made of the rate of pension payable from time to time during the assessment period, being the period between the date when the application was lodged and the date when it is determined.[14]
[14] ss 19(5C) and 19(9) of the VE Act; Repatriation Commission v Braund (1991) 23 ALD 591; Jackman v Repatriation Commission [1997] FCA 564.
What was the remunerative work that the applicant was undertaking?
As regards the first question in Flentjar, the reference to “remunerative work which the veteran was undertaking” is to be read as a reference to the type of work which the veteran had previously undertaken, and not to any particular job.[15] As mentioned above, Mr Abbott had previously undertaken general duties in meat works and food processing companies. No details of his duties were provided, but we infer that they involved unskilled manual work. He worked as a manual labourer at a quarry. The other kinds of work in which he was engaged was a barman or bar manager in hotels, and as a casual office cleaner.
[15] Re Banovich and Repatriation Commission (1986) 9 ALN N223.
Characterisation of the remunerative work must be made with an eye to reality using practical common sense. If the characterisation is too narrow, it might lead to a veteran being entitled to a pension at the special rate in circumstances not contemplated by the legislature; alternatively, an unduly wide characterisation might lead to an incorrect refusal of pension at the special rate.[16] The remunerative work does not have to be the last work undertaken by the veteran (unless he or she is over 65 at the time of the claim or application).[17]
[16] Repatriation Commission v Butcher [2006] FCA 811 at [43]; approved, Repatriation Commission v Butcher (2007) 94 ALD 364 at [15].
[17] Starcevich v Repatriation Commission (1987) 18 FCR 221 at [225].
Is the applicant prevented from undertaking that remunerative work?
The second question in Flentjar is whether Mr Abbott, by reason of his war-caused conditions, is prevented from continuing to undertake the type of work which we have found is relevant. As mentioned above, the Commission has conceded that s 24(1)(b) is satisfied.
The remunerative work referred to in s 24(1)(b) has a broad meaning, and is not limited to the type of work previously undertaken; it is to be determined by having regard to the vocational, trade and professional skills, qualifications and experience of the veteran, and the kinds of remunerative work which a person with those skills, qualifications and experience might reasonably undertake (but subject to the degree to which the war-caused injury or disease has reduced the veteran’s capacity to undertake those kinds of work).[18] The Commission’s concession that s 24(1)(b) has been satisfied therefore entails an acknowledgment of the very significant extent to which Mr Abbott’s war-caused conditions have interfered with his capacity to undertake work.
[18] See s 28 of the VE Act, and Chambers v Repatriation Commission (1995) 55 FCR 9 at 19, where Moore and Sackville JJ discuss the broad criteria in s 28, and compare the wide range of employment activity encompassed by s 28 with the kind of remunerative work referred to in s 24(1)(c).
Nevertheless, for the purposes of s 24(1)(c), it is necessary to consider whether the veteran is prevented from continuing to undertake the kind of remunerative work that the veteran had been undertaking. It is relevant in considering this question to have regard to the nature and quality of the work in question. This was made clear in Repatriation Commission v Connell,[19] where the veteran was able to undertake the same occupation as he was undertaking prior to being affected by a war-caused injury or disease, but could only do so on a part-time or restricted basis because of his injury or disease, and it was held that he was prevented from continuing to undertake remunerative work that he had been undertaking within the meaning of s 24(1)(c) of the VE Act.
[19] (2011) 197 FCR 228.
We referred in paragraphs 9 and 10 above to the employment in which Mr Abbott engaged after his discharge from the Army. No information was provided regarding the so-called “general duties” that he undertook at Mount Barker Meat Works and Barker Food Processing. However, we infer that this work was unskilled manual work, and that having regard to the nature and extent of Mr Abbott’s disabilities, including in particular the condition of his knees and lower back, that he would be prevented from carrying out the kind of unskilled manual work he had done when he was working for those two organisations. This finding applies equally to his work at a quarry, which was described as manual labouring work.
The next kind of work in which he engaged was work as a barman or a bar manager at a hotel. In his witness statement, Mr Abbott said that when he was previously working in hotels, he found that the customer service aspect of the job became difficult for him; he became intolerant of customers and quite agitated toward other staff members.[20] He also said in cross-examination that he was not suited to working in a place like the Auchendarroch Hotel at Mount Barker, because he was not very tolerant towards people. However, he also admitted that there were hotels where he did feel comfortable, and that was mainly where he did not have to work with other people. He acknowledged that he was suited to working at the Stirling North hotel behind the bar, and also to work as a boots barman, cleaning the lines. In re-examination, he said that according to his mother, he was a changed person and very intolerant when he came back from Vietnam, and one of his doctors told him that being short tempered was a symptom of PTSD.
[20] Exhibit A1, paragraph 56.
The fact remains that notwithstanding Mr Abbott’s professed concern about not getting on at some hotels, he was employed as a barman at three different hotels over a period of about twelve years, and with the exception of the Auchendarroch Hotel, he did not suggest in his oral evidence that any attitudinal problem was a factor in not inquiring more widely for work as a barman after he ceased work as a cleaner. We are not satisfied that his war-caused conditions prevent him from working as a barman.
The remaining kind of work in which he was engaged was work as a casual cleaner cleaning city offices. On Mr Abbott’s oral evidence, the particular task involved in his work as a cleaner which caused him to have to give up this work was the task of emptying a large number of small bins. However, we note from his witness statement that he was the only person in the cleaning team that had this task.[21] It therefore appears that the work of cleaning the offices included other duties. There is no evidence before us as to what these other duties were apart from vacuuming, to which we refer below, or as to whether Mr Abbott’s service-related conditions would have prevented him from undertaking these other duties. There is also no explanation as to why he did not seek to be relieved from this aspect of his duties at Satisfac. If his cleaning work were to be characterised more broadly as work as a casual cleaner, rather than work as a casual cleaner specifically of city offices, there is no evidence before us as to what such duties would entail, or whether his war-caused conditions would prevent him from doing that kind of work. We note that in his witness statement, Mr Abbott said that he found the vacuuming task difficult for his knees to manage as it involved a lot of walking throughout the offices and manoeuvring in and around desks and chairs,[22] but in his oral evidence, as mentioned above, he said that his knees were not a problem.
[21] Exhibit A1, paragraph 32.
[22] Exhibit A1, paragraph 30.
On the state of the evidence before us, having regard to Mr Abbott’s evidence that vacuuming did not cause him any difficulties, and the absence of any evidence that he would not have been able to do the work of the other persons in the cleaning team at Satisfac who did not empty the rubbish bins, we are not satisfied that Mr Abbott was prevented by his service-related conditions from continuing to work as a casual cleaner, irrespective of whether or not that kind of work is characterised as work as a cleaner of city offices, or as a cleaner involved in general cleaning duties in other kinds of premises.
Is the war-caused condition the only factor preventing Mr Abbott from continuing to undertake the relevant work?
The third question in Flentjar refers to the “alone” test in s 24(1)(c). On the authority of Cavell v Repatriation Commission[23] and the analysis of Burchett J’s judgment in that case in Forbes v Repatriation Commission,[24] the word “alone” should not have substituted for it other words in the absence of ambiguity. The word “alone” as it appears in s 24(1)(c) requires a practical decision on whether the veteran’s loss of remunerative work is attributable to his or her service-related incapacities, and not to something else as well; and any factor having employment consequences which plays a part in the veteran’s inability to work or to obtain and hold remunerative employment, is sufficient to displace the veteran’s case for pension at the special rate.
[23] (1988) 9 AAR 534.
[24] (2000) 101 FCR 50 at [33].
In Cavell, Burchett J said further, using an approach prophetic of the test of causation propounded by Mason CJ in March v E & MH Stramare Pty Ltd,[25] that the true task of the Administrative Appeals Tribunal, in applying the “alone” test in s 24(1)(c) of the VE Act, was “to make a practical decision whether the veteran’s loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide”.[26] In Forbes, RD Nicholson J said: “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”.[27]
[25] (1991) 171 CLR 506 at 515.
[26] (1988) 9 AAR 534 at 539.
[27] (2000) 101 FCR 50 at [39].
In a claim form dated 22 November 2006 in which Mr Abbott sought an increase in his disability pension, he referred to having ceased work on 17 June 2004 and said that his reason for ceasing work was “redundancy”.[28] On the basis of this form, Mr Crowe contended that Mr Abbott had ceased work because he had been made redundant. However, in the same form, Mr Abbott was asked to provide details of his employment history over the preceding 10 years or since the date of his last claim, and to state the commencing and end dates of that employment in years. He referred to having been the manager of the Travellers’ Rest Hotel at Stirling North from “06 (to) 06”. He also said in the form that his claimed disabilities affected his employment “due to (his) disabilities, and unable to work with people”.[29] The form made no reference to Mr Abbott’s work as a contract cleaner, but it appears that it was that work that finished in June 2006, and not his work at the Stirling North hotel. We find that Mr Abbott ceased to engage in remunerative work when he ceased to work as a casual cleaner, and that that did not occur due to redundancy.
[28] Exhibit R2, T15, page 106, paragraph 25.
[29] Exhibit R2, T15, page 106, paragraph 27.
We also reject the contention that Mr Abbott’s spondylolisthesis contributed to his having been prevented from continuing to work. We are satisfied from the evidence of Mr Munyard that as a matter of common sense, and looking at the matter with an eye to reality in accordance with the approach in Cavell, Mr Abbott’s low back pain is caused by his spondylosis, and that his spondylolisthesis has not made a contribution to any inability to work that might flow from his low back problems.
On the basis of Mr Abbott’s evidence before the VRB, it was contended that his Dupuytren’s contracture was the reason why he left his cleaning work. The relevant parts of the transcripts relied upon in support of this contention are as follows:
MR GAUGHWIN (Mr Abbott’s advocate): When did you have your hand operation?
MR ABBOTT: It was when I left the cleaning, that’s why I actually left the cleaning and my back. But it was about - - -
...
MR GAUGHWIN: So you’ve left the cleaning because of your back and your hand, what was the operation that was done on your hand?
...
Mr Abbott proceeded to answer the second part of this question by describing the operation on his hand, and the transcript proceeds relevantly:
MR ABBOTT: I was still working for the people with the cleaning. Then I had the operation and it was taking too long to heal and I just said no, look, I’m not coming back.[30]
[30] Exhibit R1, page 5, line 44 – page 7, line 17.
Mr Abbott was definite in his evidence before us that the condition of his hand had not impeded his ability to do his cleaning work, because the rubbish bins were only light in weight, and in any event, he could have picked them up using his un-affected left hand. He was confused in his evidence before us about the sequence of his work at Stirling North and his cleaning work, and initially said that the cleaning work preceded the work at Stirling North, but then corrected this. The natural interpretation of the last extract from the transcript before the VRB quoted above is that he decided not to go back to his cleaning work because his hand was taking too long to heal after the operation. We are inclined to accept his evidence (which accords with common sense) that his hand condition did not prevent him from doing the cleaning work, but it also appears from his evidence before the VRB that his slow recovery from his operation was a factor in his deciding not to return to this work after his operation. The operation on the hand is therefore relevant to s 24(2)(a)(i) of the VE Act, a matter to which we will refer further below.
Finally, Mr Crowe contended that Mr Abbott’s age was a contributing factor to his inability to return to work as a barman. We referred to the evidence as to this aspect in paragraph 16 above. The evidence to support this contention is slight, but we are inclined to accept this contention, and so the “alone” test would not be satisfied in relation to the past remunerative work as a barman.
Is the applicant suffering a loss of wages or earnings?
The fourth question in Flentjar is whether, if the veteran has been prevented by his war-caused conditions alone from undertaking remunerative work, he has suffered a loss of wages or earnings that he otherwise would not have suffered. This question must be considered by reference to ss 24(2)(a)(i) and (ii), which provide in effect that a veteran is not to be taken as having suffered a loss of wages or earnings, if he has ceased to engage in remunerative work for some reason other than his incapacity from war-caused conditions, or if he is incapacitated, or prevented from engaging in remunerative work for some other reason.
The issue raised by s 24(2)(a)(i) involves determining the date when the veteran ceased to engage in remunerative work, and also an examination of the reasons for that cessation, which will include an examination of the veteran’s own reasons for ceasing work.[31]
[31] Repatriation Commission v Van Heteran (2003) 75 ALD 703 at [25].
We find that Mr Abbott ceased to engage in remunerative work for the purposes of s 24(2)(a)(i) in June 2006. That date accords with his evidence before us, and represented his best recollection of the date he ceased work as a cleaner.
We referred in paragraphs 13 to 16 above to Mr Abbott’s futile attempts to obtain other work after he ceased work as a cleaner. The evidence before us indicates that he made virtually no real attempt to search for or apply for jobs, apart from inquiring for hotel work in the Mount Barker area (and he said that there were only three hotels in Mount Barker) and apart from being referred to two other jobs, namely at the Elephant & Castle Hotel and the concreting work, at the suggestion of friends. Any difficulties in applying for work more widely due to not having his own motor vehicle would constitute a reason other than his war-caused incapacity to undertake work. On the evidence before us, we find that his lack of effort to obtain further work after the cessation of his work as a cleaner was a factor in his ceasing to engage in remunerative work. As this factor was not caused by his incapacity from his war-caused conditions, he is deemed not to have suffered a loss of salary or wages, or of earnings on his own account, by virtue of s 24(2)(a)(i) of the VE Act. He accordingly does not satisfy the loss test in s 24(1)(c).
It also appears, as we said in paragraph 43 above, that he had a further reason not to return to work as a cleaner at Satisfac, namely that he was taking too long to recover from the operation on his right hand. That operation related to a condition which was not war-caused, and so was a further disentitling factor by virtue of s 24(2)(a)(i), and therefore a further reason why he does not satisfy the loss test in s 24(1)(c).
In addition, as mentioned in paragraph 44 above, his age was another reason for his not resuming work as a barman, and was a further disentitling factor by virtue of s 24(1)(a)(i).
For the above reasons, we are not satisfied that Mr Abbott satisfies the criteria in s 24(1)(c) for entitlement to pension at the special rate.
Does the applicant satisfy the ameliorative provisions of s 24(2)(b)?
Section 24(2)(b) enables a veteran to satisfy the requirements of s 24(1)(c) if he or she has been “genuinely seeking” to engage in remunerative work. We have referred above to Mr Abbott’s lack of effort to obtain employment after he ceased to work as a cleaner. We find that Mr Abbott has not been genuinely seeking to engage in remunerative work during the assessment period, and so he does not meet the criteria in s 24(2)(b). We consider that the case relied upon by Mr Floreani in support of this aspect of his argument, Leane v Repatriation Commission,[32] is clearly distinguishable on its facts from the present case.
[32] (2004) 81 ALD 625.
DECISION
The decision under review is affirmed.
I certify that the preceding 53 (fifty -three) paragraphs are a true copy of the reasons for the decision herein of Deputy President DG Jarvis, Lt Col B Ormston (Retd) ..................[Sgd]......................................................
Administrative Assistant
Dated 19 December 2012
Date(s) of hearing 23 October 2012 Applicant In person Counsel for the Applicant Mr N Floreani Solicitors for the Applicant Tindall Gask Bentley Advocate for the Respondent Mr A Crowe LLB Solicitors for the Respondent Rehabilitation and Compensation Group Department of Veterans Affairs
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