Grant and Repatriation Commission - [2000] AATA 386

DECISION AND REASONS FOR DECISION [2000] AATA 386

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1469

VETERANS' APPEALS DIVISION       )
           Re      SYDNEY MATTHEW GRANT
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms G Ettinger Senior Member

Date19 May 2000
PlaceSydney

Decision The decision under review is set aside and in substitution therfor the Administrative Appeals Tribunal finds that Mr Matthew Sydney Grant is eligible for disability pension at the Special Rate on and from 19 November 1995.
..............................................

Ms G Ettinger
Senior Member
CATCHWORDS
Veterans' pension - whether special rate of pension payable - whether war-caused disabilities alone prevented applicant from working more than eight hours per week - date of effect - veteran eligible for pension at special rate of pension from 19 November 1995.

Veterans' Entitlements Act 1986 ss 24, 120(4)

Re Davis and Repatriation Commission (1986 – 1987) 12 ALD 483
Re Lawrence and Repatriation Commission (1986 – 1987) 11 ALN N15
Cavell v Repatriation Commission (1988) 9 AAR 534
Starcevich v Repatriation Commission (1987) 18 FCR 221
Banovich v Repatriation Commission (1986) 69 ALR 395
Birtles v Repatriation Commission (1991) 33 FCR 290

REASONS FOR DECISION

19 May 2000 Ms G Ettinger Senior Member

The decision under review before the Administrative Appeals Tribunal ("the Tribunal") was the decision of the Veterans' Review Board dated 3 June 1999 (T2) which set aside the decision of the Repatriation Commission dated 3 March 1997 and the decision of the Repatriation Commission dated 7 August 1997 (T15). The Repatriation Commission decision of 3 March 1997 had assessed the veteran's disability pension at 40 percent of the General Rate on and from 25 August 1996 and the decision of the Repatriation Commission dated 7 August 1997 had assessed the veteran's disability pension at 50 percent of the General Rate with effect from 19 November 1995.
The Veterans' Review Board substituted its decision that the disability pension be assessed at 80 percent of the General Rate with effect from and including 19 November 1995 and 90 percent of the General Rate with effect from and including 25 August 1996.
The veteran, Mr Sydney Matthew Grant was represented by Ms J Buchanan, advocate of the Legal Aid Commission of New South Wales and the respondent by its advocate Ms G Pacey. Mr R Wallis of the Repatriation Commission was also present at the bar table.
ISSUE BEFORE THE TRIBUNAL
The issue before the Tribunal was:
(a)whether the applicant was eligible for a pension at the Special Rate pursuant to section 24 of the Veterans' Entitlements Act 1986 ("the Act"); and
(c)if so, from what date.

LEGISLATION

The relevant legislation in this matter is section 24 of the Act. As relevant the section follows:
"24 Special rate of pension
(1)This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a)either:
(i)    the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
……
(2)For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings of 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.
(2A) This section applies to a veteran if:
(a) the veteran has made a claim under section 14 for a pension, or application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(b)   the veteran had turned 65 before the claim or application was made; and
(c)   paragraphs (1)(a) and (1)(b) apply to the veteran; and
(d)   the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and
(e)   because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and
(f)    the veteran was undertaking his or her last paid work after the veteran had turned 65; and
(g)   when the veteran stopped undertaking his or her last paid work, the veteran:
(i)if he or she was then working as an employee of another    person – had been working for that person, or for that person and any predecessor or predecessors of that person; or
(ii)if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling – had been so working in that profession, trade, vocation or calling;
for a continuous period of at least 10 years that began before the veteran turned 65; and
(h)   section 25 does not apply to the veteran.
……."
The Tribunal notes that the assessment of pensions involves applying section 120(4) of the Act so that the Tribunal must decide all relevant matters to its reasonable satisfaction. Section 120(4) is as follows:
"120 Standard of proof
….
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B."

EVIDENCE BEFORE THE TRIBUNAL

The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, the T-documents (Exhibit R1), and the following other exhibits:
ITEM DATE NAME
Medical report of Dr M Burns 13 February 1999 Exhibit R1
Medical report of Dr M Burns 20 August 1998 Exhibit R2

Oral evidence in person was given by the applicant, Dr M Baz, occupational physician and Dr M Burns, occupational physician.
I noted that the veteran's accepted disabilities were sensori-neural deafness, ischaemic heart disease and acquired cataracts in both eyes.
EVIDENCE OF THE APPLICANT MR SYDNEY MATTHEW GRANT
Mr Grant, whose date of birth was 18 March 1923, gave oral evidence before the Tribunal. He gave details of his background which were accepted by the parties and the Tribunal, as follows: Leaving Certificate, Scots College Melbourne; economics and history studies in first year at Melbourne University and three years of part-time study between 1947 and 1950 in England. Mr Grant said that he was an associate of the Chartered Insurance Institute.
Mr Grant joined the RAAF in 1940, and gave evidence that he had worked with the Vacuum Oil Company before World War II. Between 3 September 1942 and his discharge on 13 March 1946, he had obtained his pilot's wings, worked as an instructor and was then transferred to a fighter squadron where he flew spitfires.
After leaving the RAAF, Mr Grant rejoined the Vacuum Oil Company, and worked in its aviation department for approximately a year and a half. He had married and with a child on the way, decided to return to England in 1947 to secure housing for his family because he was unable to obtain building materials to build on the land he owned in Australia.
Mr Grant said that he joined the Royal Insurance Company in 1948 and remained with the company until his retirement. His work in 1948 after some three to four months of training was as a district inspector, seeking business in general and life insurance. He said that by then he and his wife were expecting a second child, and he was selling as much as possible in order to earn higher commissions. By 1959, he had been transferred to head office and was then charged in 1960 with establishing a life company in Australia for his employer. He believed that this was based on his excellent record of sales. He said that he performed all the tasks necessary for this, and was the manager in charge. Mr Grant said that in 1972, he became operations manager for the Royal Insurance Group for New South Wales, which entailed a move from the life company to the main insurance company. He said that he was responsible for 300 employees, a field force of 50 general inspectors and large clients. Mr Grant gave evidence of enormous growth in the business and changes that took place in approximately 1978, with take-overs, mergers, computerisation, and a culture of cost cutting.
He said that he was subsequently offered a transfer to Melbourne to be manager for the whole of Australia, but declined for family reasons. This led to his taking retirement in 1980 at the age of 57, (retirement at that time being at 62 years).Mr Grant told the Tribunal that when he left the company from a very senior managerial role with an income of approximately $23,000 - $24,000 per annum, he was asked to take over the running of a block of 300 to 350 clients. Commenting on what appeared to be low earnings of $23,000. - $24,000. per annum, he explained that this was in the era before salaries in his industry rose dramatically.
Following retirement in 1980 then, Mr Grant said that he took over a "block of direct business" clients who had previously been serviced by agents. He said that he took responsibility for `approximately 300 of those clients, rejecting a block of 200 others who were geographically much more distant. The work entailed working approximately six hours a day, three days a week and making four to seven personal visits a day advising on sums insured, renewals and other insurance business, and collecting premiums. Mr Grant said that he had no contract with Royal Insurance. It was simply a handshake, and an on-going project he said. Mr Grant said that due to his age (57), on retirement, his superannuation did not provide him with sufficient funds and he needed to work in paid employment.
I had before me at T21/93, a statement of earnings of Mr Grant for the periods 1980 to 1996 dated 12 March 1997. This indicated that reduced commission earnings between 1994 and 1996. Mr Grant said that he had commenced having chest pains in the 1990s, and particularly from 1994, but that he had not wanted to acknowledge the problem. He said that he finally plucked up courage to see his doctor in approximately March 1995, and that he had coronary artery by-pass surgery, (a triple by-pass), in March 1996, complicated by arrhythmia. He said that following the operation, he was in hospital for three weeks. Mr Grant described to the Tribunal his anxiety post operatively and how afraid he was about what was around "the corner next".
Mr Grant emphasised that he had ceased work due to his health problems in March 1995, after having reduced his involvement over the previous year to year and a half. Mr Grant said that at least a third of his clients lived in units which had up to three flights of stairs that he found difficult to negotiate due to his war-caused conditions. He said that Dr Kail had advised him to lead a quiet life due to his heart problems and breathlessness, and to reduce his commitments.
Mr Grant gave evidence of his experiences with regard to his operation, saying that he had made a reasonable recovery but that he suffered anxiety due to his illness, and had had treatment for fibrillation. I noted that both Dr Burns and Dr Baz recognised that the psychological effects of a life threatening medical condition can be quite frightening.
I noted that Mr Grant had also undergone surgery for cataracts and hernia.
When questioned about whether he could have done some work to still service his clients after his operation, Mr Grant said that he would have had to renegotiate the return of the clients that the company had taken over in the meantime. He said that he loved calling on people and building relationships. He said that the nature of the job was such that it was necessary to have face to face contact with the clients, and he could not envisage running the agency entirely from home. Mr Grant said that the insurance field had changed dramatically at such a rapid pace that he would not now have the knowledge to give good insurance advice. He said that he was alert and had the people skills, but no longer had the technical skills necessary. He said that but for his heart disease, he would have continued working in the insurance field of which he "enjoyed every minute". He said that he was "very sad" to have to cease work.
When questioned about doing clerical work in the insurance field, Mr Grant replied that as a manager he had lost touch with clerical duties, and that his skills were in personal relations. His past work experience had not been clerical he said. When questioned about whether age had been a factor in his ceasing work, Mr Grant replied that he loved his work, and that the state of his health, not his age had been the concern. He said that he had constant nagging pain in his upper chest which radiated down his arm, and that this was worse on walking, but improved if he sat down. He said that he had not had a "heart attack". Mr Grant indicated he was able to walk short distances, dry dishes, and operate a light weight battery operated vacuum cleaner occasionally. He said that since his operation he and his wife had employed a cleaner. Mr Grant said that his wife's illness with Parkinson's disease, which she had only contracted in the last three to four years, played no part in his decision to cease paid work.
Mr Grant said he used to be able to assist his wife who produced plays, as a properties person. He could no longer do decoration such as wall papering which he used to do.
The applicant said that he did not consider his hearing loss a major handicap and that whilst a factor, this did not impact on his work from 1980 to 1995 because most of the work was face to face. He also gave evidence about his knees, for which he said no treatment was available. He said that the problems with his lumbar spine caused discomfort but were not a factor in closing the business in 1995.
Mr Grant also told me about his considerable community involvement for which he was acknowledged by the award of an Order of Australia in 1994. His statement at T20 corroborated his evidence that he was no longer able to indulge in social activity.
EVIDENCE OF DR M BAZ , OCCUPATIONAL PHYSICIAN
Dr M Baz gave oral evidence before the Tribunal. She examined the veteran on 12 February 2000 and her report of 18 February 1998 was before the Tribunal at T17.
In her medical report of 18 February 1998 at page 7, Dr Baz stated that in her opinion the veteran was unfit for work of 8 or more hours duration weekly and that his unfitness was as a result of the accepted disabilities alone. Further she stated in regard to the veteran as follows:
"He is also limited by aching in the legs which is due to compromised venous and arterial circulation. The compromised venous circulation is predominantly due to the varicose veins, although there has been significant contribution to the leg aching by the need to obtain donor veins for the bypass surgery. The compromised reduced lower limb circulation causes leg ache and restricts prolonged standing or walking.
In my opinion Mr Grant was symptomatic with ischaemic heart disease prior to his retirement from part time work. I consider that the aching and sense of exhaustion which he describes was a result of ischaemic heart disease which at the time had not been fully diagnosed.
The aching in the legs, backache and difficulty hearing were additional factors causing him difficulty at work. However the clinical information available at this time and the history he gives indicates that these were not significant factors which prevented him from working. They had apparently been with him for some considerable time and he had been able to work for many years despite his symptoms."
In examination-in-chief Dr Baz was asked if the veteran could undertake work in an office. She replied that it would be unfamiliar work for him, and he would have to be retrained. This, she opined, would not be a reasonable request to make of the veteran as the office work he would be performing would be menial and "soul destroying". Further it would result in "qualitative underload". She agreed there were sedentary tasks that the veteran could learn to do but opined that it would be stressful for him to learn new tasks, and that it would not be suitable for him to be instructed about how to work or behave given the fact that he previously worked as a senior manager. Dr Baz also noted that there would be other difficulties related to Mr Grant's capacity to hear adequately in an office environment.
In cross-examination Dr Baz was asked if the veteran could continue working if he were able to work from home or if alternate arrangements could be made. She opined that a critical part of the veteran's work was calling on clients and that he could not perform his work without visiting clients.
EVIDENCE OF DR M BURNS, OCCUPATIONAL PHYSICIAN
Dr M Burns whose reports dated 13 February 1999 (Exhibit R3) and 20 August 1998 (Exhibit R2) were before the Tribunal, gave oral evidence. He had examined the veteran on 19 August 1998.
In his report of 20 August 1998 at page 4, Dr Burns opined that the veteran was not totally incapacitated from returning to some form of insurance work that was of a sedentary nature and office based. Further, he made the following comments about the veteran's capacity to continue working:
"He certainly still has the mental capacity to carry out the majority of the work involved. I accept that he may not be able to travel from one client to another and may have difficulty in the physical aspect of going to client's premises. This would not, though, stop him from being capable of doing insurance work based in an office. Unfortunately, this was not the type of work that he was doing.
…..
I believe that if it had been financially imperative for him to continue at work, then he would be capable of doing do [sic]."

In evidence Dr Burns stated that age was not always a factor in people ceasing work, and at times it came down to a loss of motivation. He opined that the veteran could have continued doing the same amount of work regardless of his age at the time of retirement. He would however have had to modify it in some manner. For example, he would have had to use equipment provided in present day office environments such as telephones and facsimile machines.
Dr Burns conceded that the veteran would not have been able to continue doing his work as he described it if visiting people was an essential aspect to the work. However, he opined that if the veteran had "desired it", he could have modified the manner in which he did his work. Dr Burns conceded that in finding work the veteran faced a number of other problems, including his non-accepted disabilities that would make it difficult for him to find work. He opined that above all, age would not make Mr Grant an attractive proposition to a prospective employer. Dr Burns commented that Mr Grant's health had improved after his heart operation.
In cross-examination Ms Buchanan asked Dr Burns what the impact on the veteran's health would be if he worked in a menial clerical job. Dr Burns replied that the work that the veteran had been doing, that is, agency work, was at the "lower end of the social scale" and it therefore would not be a significant change for him to perform office work. He said that even though the veteran might find it difficult to perform more menial work than he was used to, it would be no different from other people in society who had been retrenched or were unemployed, and feeling stressed. In his opinion, the veteran had been working in "qualitative underload" for 15 years.
SUBMISSIONS AND CONCLUSIONS
I have to take into account all the evidence both written and oral, and the case law, legislation and submissions to make the correct and preferable decision regarding whether Mr Grant should receive pension at the Special Rate, pursuant to section 24 of the Act, noting that there was no disagreement between the parties that the earliest date of effect is 19 November 1995.
The main elements of section 24 of the Act in relation to Mr Grant, were a consideration of whether war-caused disabilities rendered him totally and permanently incapacitated, that is to say that his war-caused conditions alone rendered him incapable of undertaking remunerative work for periods more than eight hours a week. If so, then I had to decide whether by reason of that incapacity Mr Grant was suffering a loss of salary, wages or earnings that he would not be suffering but for the war-caused incapacity.
I found Mr Grant to be an extremely credible witness, and noted that his war-caused disabilities were sensorineural deafness, ischaemic heart disease and acquired cataract in both eyes. He also suffered from varicose veins with thromobophlebitis, otitis externa, pseudo-gout knees and cervical, thoracic and lumbar spondylosis. The history of his background appears in these reasons under the heading of "Evidence of the Applicant..", and as it was undisputed and I accepted it as given, I did not find it necessary to repeat it here. What I should say however is that I accepted that Mr Grant retired from full-time managerial work with the Royal Insurance Company at the age of 57 because he did not want to relocate his family yet again, and that he continued working for the company servicing a "block of direct business."
I was mindful that section 24(2A) of the Act applied to the veteran's situation. He made a claim for a disability pension on 16 February 1996 pursuant to section 14 of the Act, and thus satisfied section 24(2A)(a) of the Act.
Mr Grant was 72 years of age at the time of his application, and thus satisfied section 24(2A)(b) of the Act. He had also had pension assessed at 80% of the General Rate on and from 19 November 1995 and 90% of the General Rate on and from 25 August 1996. This meant he satisfied the requirements of section 24(1)(a) of the Act.
I moved then to consider the veteran in relation to the requirements of section 24(1)(b) and section 24(2A)(d) of the Act. Ms Buchanan submitted that between 1948 and 1995 the veteran worked as a senior manager in the insurance industry. She submitted that when Mr Grant did not accept the position of manager for Australia for family reasons in 1980, his superannuation was inadequate for him to retire due to his length of service. He had to work for financial reasons and took on the arrangement to service a client portfolio. This he did from 1980 to 1995, she submitted, until he ceased because of his heart condition. I accepted the work in that position as described and recorded earlier in these reasons. Ms Buchanan submitted that Mr Grant wanted to work as long as possible and would still be working were it not for his heart disease. She submitted that the records indicated he had reduced his work load in 1993, ceasing by March 1995 and subsequently had a heart surgery in March 1996. Ms Buchanan submitted that Mr Grant had been unable to return to manage his portfolio following the operation and had been advised by his doctor, Dr Kail, to restrict his activities. That extended also to his community activities for which he had been recognised by the award of an Order of Australia in 1994.
Ms Pacey on the other hand, submitted that the veteran had residual work capacity. She stated that he had run a successful insurance agency for 15 years. This indicated he was a capable businessman and administrator with people skills and technical knowledge of the insurance industry. She submitted, relying on the report of Dr Burns, that the veteran was capable of working either from home or in an office-based situation. She conceded that Mr Grant would not have been able to do the travelling he had been doing to visit his clients, and submitted that his knowledge and skills in the insurance industry would require updating given that he had been out of the industry for a number of years.
Ms Buchanan submitted that the evidence of the veteran's working history and his voluntary work for which he was awarded an Order of Australia indicated that he was "not shy of work". I agreed and was mindful of Mr Grant's evidence which I accepted, of how much he loved his work, in particular "building lasting relationships" with people.
I accepted Ms Buchanan's argument that it was both an unrealistic and impractical expectation that the veteran could work in an office environment after his lengthy managerial roles and his subsequent work in the field. I was mindful that at the time of his retirement, the veteran was "working approximately six hours a day, three days a week and making four to six calls a day with regard to renewals and other business" and that it was essential to the job he had been doing to have the ability to call on clients in their homes. I noted that to access at least one third of these premises, he had to climb stairs, and that this caused breathlessness and chest pain.
I noted that Dr Burns conceded that the veteran would not have been able to continue doing work as he described it if visiting people was an essential aspect to the work. Dr Burns also recognised that in finding work the veteran faced a number of other problems including his age and his medical conditions. Dr Burns commented that the agency work which the veteran had been doing was at the "lower end of the social scale" and it therefore would not be a significant change for him to perform office work. I did not agree with the view that performing office work was similar to performing agency work as described by the veteran. As an agent, he managed his own workload, set his own priorities, showed considerable initiative in the performance of tasks and was accountable for outcomes, whereas as a clerical worker he would be subject to the noise of an office environment and direction, often from much younger people. I also accepted the applicant's evidence that the agency work had to be done through visits and personal contact.
I preferred the evidence of Dr Baz, who indicated that the veteran was unfit for work of eight or more hours duration weekly and that his unfitness was as a result of his accepted disabilities alone. I noted Dr Baz opined that the veteran was symptomatic with ischaemic heart disease prior to his retirement from part-time work. She stated:
"I consider that the aching and sense of exhaustion which he describes was as a result of ischaemic heart disease which at that time had not been fully diagnosed".
Even though Dr Baz agreed that there were sedentary tasks the veteran could do, she opined that it would be stressful for him to learn new tasks. She stated that it would not be suitable for him to be instructed about how to work or behave given that he had worked as a senior manager. I also noted that Dr Baz's evidence was that unless the veteran was working in a quiet environment, he would not be able to hear in order to adequately perform tasks.
I accepted the opinion of Dr Baz that if the veteran was performing office work or other similar menial work it would be "soul destroying" and result in further "qualitative underload". Further I accepted the evidence of the veteran that as a manager in the insurance field he had not been required to undertake clerical duties and that he had lost touch with how to perform those tasks.
I accepted that Mr Grant's skills were in the area of personal relations and that Mr Grant could not reasonably be expected to undertake office work without causing a detrimental effect on his health. I did not accept that the field work he had been doing could be done entirely by facsimile, telephone or internet. Neither Mr Grant nor the business and its clientele were set up for that.
I was satisfied that Mr Grant's incapacity from war-caused disabilities was of such a nature as of itself alone to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week. I found from his evidence and the submissions made on his behalf that he could not undertake remunerative work for more than eight hours a week. I did not accept the view of Dr Burns that age was involved in Mr Grant's decision to cease work. As conceded by Dr Burns, the veteran was most alert and able to communicate. I accepted that it was his ischaemic heart disease in particular which prevented him from carrying on his work of servicing his insurance clients, and that he would be unable to carry on insurance work in an office situation. Even if he had undergone retraining for an office situation, with which he had long been out of touch, he would have had difficulty hearing and working in that environment.
Ms Buchanan referred the Tribunal to the cases of Re Davis and Repatriation Commission (1986 - 1987) 12 ALD 483 and Re Lawrence and Repatriation Commission (1986 - 1987) 11 ALN N15. In Davis (supra) it was arguable that the applicant was still capable of doing some form of work, even though it would be more menial than the managerial work that he had been doing before he ceased work. The issue for the Tribunal there was whether it could be said that the applicant was prevented from undertaking remunerative work by reason of his incapacity alone for the purpose of either section 23(1)(b) or section 24(1)(b) of the Act. At page 484 the Tribunal made the following comments:
"In considering what work an applicant 'might reasonably undertake' under section 28, having regard to the applicant's vocational, trade, and professional skills, qualifications and experiences, his position in life prior to his incapacity must be an element. Thus, a veteran doctor rendered voiceless could not reasonably be thought capable of undertaking a job as a window cleaner, or a veteran barrister, rendered voiceless, that of a gatekeeper. Evidence of the possible harmful effects on health and psychological makeup of alternative employment which was not commensurate with the veteran's skills and qualifications was also relevant. Thus, the alternative remunerative work suggested as available to the applicant in this case were not occupations which he might reasonably undertake, nor were other possible alternatives suggested."
I was also mindful that in Cavell v Repatriation Commission (1988) 9 AAR 534 at 539 Burchett J said with regard to the "alone" test:
"The tendency of that is to distract the tribunal from its true task - 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."
I was persuaded by their Honours' at 299 in Birtles (supra) who stated:
"What is involved in each case is ultimately a question of fact, namely, has the veteran by reason of his war incapacity been prevented from 'continuing' a type of remunerative work which he previously undertook (not being work undertaken only for a short period)? The word 'continuing' in this context is used to encompass the case where a veteran may be unable to find a similar kind of work by reason of that incapacity and as a result suffers the loss to which the paragraph refers. If the answer to the question be yes and other subparagraphs apply, then s 24 is applicable to that veteran."
I find that Mr Grant worked servicing his client portfolio from 1980 to March 1995, by which time it was clear that the veteran was incapable of undertaking remunerative work for periods aggregating more than eight hours per week due to his war-caused disabilities, in particular his heart disease, alone. I was aware from his oral evidence and a letter dated 12 March 1997 written by the veteran to his legal representative, Ms Buchanan (T12/44), that the veteran had been reducing his involvement in remunerative work over the previous year to year and a half. For example I noted that in 1992/3 the veteran earned $9,765. in commissions, in 1993/94 he earned $8,346. His commissions continued to reduce so that in 1994/95, he earned only $5,305., and by 1995/96 his commission had dropped to $2,473. I therefore find that Mr Grant satisfied the tests in section 24(1)(b) of the Act. He also satisfies the tests for section 24(2A)(c) of the Act.
I moved then to consider section 24(2A)(d) of the Act in relation to the veteran. I found that due to his war-caused disabilities alone Mr Grant was prevented after March 1995 from continuing to undertake the remunerative work which was servicing his insurance clients which he was last undertaking before he made the claim for Special Rate pension. I noted Dr Baz's opinion that the veteran was unfit for work of 8 or more hours duration weekly. She stated as follows:
"I consider this unfitness is as a result of the accepted disabilities alone. While other disabilities have been aggravated by his work I do not consider they led to his retirement nor that they cause him now to be unfit for work."
I noted from the evidence that Mr Grant's wife had been diagnosed with Parkinson's disease, but was mindful that that diagnosis was made well after Mr Grant had ceased his insurance field work. I accepted that he did not cease work except for his war-caused disabilities, in particular his ischaemic heart disease which caused him to be breathless and tired and unable to personally service his clients from March 1995. I accepted that due to the evidence given regarding the reasons for Mr Grant ceasing work he satisfied the requirements of section 24(2A)(d) of the Act and that he was suffering a loss of earnings in terms of section 24(2A)(e) as a result. Evidence of the loss of the veteran's earnings between 1980 and 1996 was before the Tribunal at T21/106.
I turned then to section 24(2A)(f) and in satisfaction of that section of the Act, noted that Mr Grant was undertaking his last paid work in 1995 at the age of 72.
In satisfaction of section 24(2A)(g)(i), I noted Mr Grant had been working for the same insurance company for a period of over thirty years when he stopped due to his war-caused disability of ischaemic heart disease. In the alternative he was self employed contracting to that insurance company from 1980 until he ceased work for it in 1995, a period of 15 years.
It was undisputed that section 25 did not apply to the veteran.
The decision of the Tribunal is therefore that the veteran is entitled to be paid Special Rate of pension on and from 19 November 1995.
DECISION
The decision under review is set aside and in substitution therefor, the Administrative Tribunal finds that Mr Matthew Sydney Grant is eligible to be paid pension at the Special Rate on and from 19 November 1995.
I certify that the preceding 59 paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  4 April 2000
Date of Decision  19 May 2000
Counsel for the Applicant        N/A
Advocate for the Applicant      Ms J Buchanan
Counsel for the Respondent    N/A
Advocate for the Respondent Ms G Pacey