Hancock and Repatriation Commission
[2000] AATA 998
•14 November 2000
DECISION AND REASONS FOR DECISION [2000] AATA 998
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/903
VETERANS' APPEALS DIVISION )
Re DARRYL HANCOCK
Applicant
And REPATRIATION COMISSION
Respondent
DECISION
Tribunal Mr M J Sassella, Senior Member Dr M E C Thorpe, Member
Date14 November 2000
PlaceSydney
Decision The decision under review is set aside and the matter is remitted to the Respondent to calculate the Applicant's rate of Disability Pension on the basis that he qualifies for payment at the special rate with a date of effect of 28 May 1996.
..............................................
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – disability pension – assessment – skills, qualifications and experience of veteran – capacity to undertake remunerative work – contribution of accepted conditions
Veterans' Entitlements Act 1986 ss 23, 24, 28, 175(3)
Birtles v Repatriation Commission (1991) 105 ALR 359
Chambers v Repatriation Commission (1995) 129 ALR 219
REASONS FOR DECISION
Mr M J Sassella, Senior Member Dr M E C Thorpe, Member
APPLICATION
Mr Hancock ("the Applicant") has been in receipt of a Disability Pension under the Veterans' Entitlements Act 1986 ("the Act") for many years in respect of accepted conditions of solar keratoses and right and left inguinal hernias. On 28 August 1996 the Applicant lodged a claim for an increase in Disability Pension (T4) on the basis of a worsening of his war-caused conditions. He said he could do no heavy lifting. His lifestyle had been reduced. He had lost one testicle because of hernia occurring in Darwin in 1991. This was supplemented by a claim lodged on 2 September 1996 (T8) in respect of "blood pressure, chest problems, ulcers and reflux, post-traumatic stress disorder (PTSD), hearing loss and tinnitus, bowel problems/diarrhoea and liver problems".
On 17 February 1997 the Repatriation Commission ("the Respondent") decided (T13) to accept as war-caused the conditions of gastro-oesophageal reflux and bilateral sensori-neural hearing loss with tinnitus. It decided not to accept as war-caused conditions of adjustment disorder with depression and alcohol dependence, irritable bowel syndrome and chronic airflow limitation. The rate was set at 40 per cent of the general rate effective from 28 May 1996.
On 26 February 1997 Mr Hancock lodged with the Veterans Review Board ("VRB") an application for review of the decision (T15). He challenged in particular the non-acceptance of the conditions of PTSD, "chest problems" and "blood pressure". On 25 February 1999 the VRB affirmed the Respondent's decision (T19) as regards the non-accepted conditions. However it increased the rate of pension to 50 per cent of general rate. This decision was notified to the Applicant in a letter dated 19 May 1999 (T20).
On 16 June 1999 the Applicant lodged with the Tribunal an application for review (T1).
At the commencement of the hearing the tribunal was informed that the Respondent had decided to accept as war-caused a psychoactive substance abuse or dependence condition and had decided that the correct rate of pension should be 80 per cent of the general rate.
Section 175(3) of the Act provides that in a situation such as this the decision under review by the Tribunal is the decision as varied by the Respondent. The Applicant's representative advised the Tribunal that the only issue under dispute between the parties was whether the Applicant qualifies for an earnings related pension under s 23 or s 24 of the Act.
The documents produced pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were admitted as evidence (Exhibit TD1) in addition to the following material:
Exhibit No Description Date
A1 A2 A3 R1 R2 R3 R4 Report of Dr Dinnen Applicant's Amended Statement of Facts and Contentions Report of Dr Baz Historical Research Report of Dr Ducker Report of Dr Schultz Report of Dr Anderson Respondent's Statement of Facts and Contentions 4 November 1999 22 June 2000 3 May 2000 22 November 2000 18 October 1999 22 December 1999 28 June 2000
At the hearing of this matter the Applicant was represented by Mr Dawson of counsel and the Respondent was represented by Mr Modder, an advocate from the Department of Veterans' Affairs.
FACTSThe following facts are drawn from Exhibit TD1.
Mr Hancock was born on 13 August 1947. He enlisted in the army on 27 February 1968 and was discharged on 29 November 1993. He had operational service in Vietnam between 18 June 1969 and 18 June 1970 and between 9 September 1971 and 23 December 1971. He saw eligible defence service from 7 December 1972 until 29 November 1993.
Mr Hancock has not been employed since leaving the army except from October 1995 to May 1996 on a Commonwealth Employment Service ("CES") scheme. He was an assistant clerk doing clerical and sales work (T7).
Material in Exhibit TD1 relevant to the Applicant's possible qualification for payment at the intermediate rate (IR) or special rate (SR) was as follows:
In his alcohol questionnaire completed on 26 August 1996 (T5) Mr Hancock stated that he drank alcohol; that he had started before service in 1966; that he drank beer; that he started out drinking no more than one or two drinks of beer a week and that this changed on active service in Vietnam. He said that in Vietnam he would drink every time he could. He would "get rotten drunk" several times a week. His daily intake in August 1996 was 21 standard drinks or more.
Mr Hancock's employment history questionnaire dated 28 August 1996 (T7) indicates that he retired on 25 May 1996 due to war-caused disabilities. He was "not kept on at the end of the CES job placement scheme for disabled job seekers."
In a Department of Veterans' Affairs ("DVA") lifestyle rating form Mr Hancock assessed the effects of his disabilities on his lifestyle. As regards domestic and employment activities he rated himself at the maximum rating of 5, "unable to work". This rating was accepted and applied by the Respondent in its decision dated 17 February 1997 (T13).
In his claim form at T8 the Applicant said he was not currently employed in August 1996 because of war related conditions. Further he wrote:
"Can not obtain employment due to severe war caused disabilities. Had to leave army as I could no longer cope due to war caused PTSD. Could not get promotion due to my war caused disabilities". (T8, p44)
Dr B J Kelly, physician, in a report dated 31 October 1996 prepared for DVA (T9) wrote, amongst other things, that Mr Hancock smoked 50 cigarettes a day and drank 15 middies a day. He played 18 holes of golf three times a week. He would get slightly dyspnoeic on hills but could keep up with men of his own age.
Dr S Huntsman, psychiatrist, in a report dated 9 December 1996 prepared for DVA (T11) wrote amongst other things, that Mr Hancock told him he had left the army because he was physically unable to cope after he had developed an inguinal hernia (an accepted disability). He drank about 60 grams of alcohol a day in 1996. This was lower than it had been. He smoked 30 cigarettes a day. He had alcohol dependence of long standing which had never been treated. Dr Huntsman felt he was suffering from an adjustment disorder with depressed mood derived from his then current unemployment. He wrote:
"…It is clear that his long career in the army and the social isolation involved has left him ill-equipped for subsequent involvement in the workforce. I feel he would benefit from rehabilitation addressing these particular areas." (T11, p51)
Dr Huntsman reported also on 3 April 1997 (T15) and wrote:
"Concerning his capacity to work, I think it must be acknowledged that Mr Hancock is very limited in the options available to him. His service in the Army has left him ill-prepared and ill-qualified for alternative employment. He has very limited social skills as evidenced by his inability to sustain any significant relationships. When this is combined with his physical disabilities, I think it is unlikely that he will find suitable employment now or in the foreseeable future." (T15, p74A)
Dr C MacDonald, the Applicant's general practitioner, in a DVA form completed on 31 January 1997 (T12) wrote that the Applicant was physically unable to do menial work and that his PTSD affected concentration, ability to converse and mix so that the Applicant was effectively unemployable. He certified the Applicant as unable to work.
In T15, the Applicant's application for review by the VRB lodged on 26 February 1997, he said his pension should have been assessed at the special rate because he could not work at all.
At T17 is a statement by the Applicant dated 26 October 1998 (T17). It addresses conditions of service in Vietnam, Toowoomba. He queries also the assessment that he had an alcohol problem prior to service.
In the VRB's reasons for decision dated 25 February 1999 (T19) it wrote:
"The Board then sought more information from the veteran as to his work history and what his plans had been for employment after leaving the Army. The veteran responded by saying that he had made no plans and although he got out after 25 years, had always intended to serve on until aged 55. That is, until 2002. He had left the Army because there was pressure put upon him as a result of his various illnesses and his drinking. He had applied for and been granted his discharge in 1993 and went back to Ballina, near where his sister lived. Apart from a period working as a clerical assistant, he had had no full-time employment since he left the Army. He had registered with the CES and had been placed on a TAFE training and employment placement sandwich program. At the end of that, he was not engaged for further employment as was supposed to be the idea. Before he went on Service Pension Invalidity, he was receiving New Start Allowance." (T19, p98)
The VRB quoted Dr MacDonald as stating that:
"the combination of low back problems and mild PTSD, plus age and unsuitability for training plus the unavailability of suitable work locally, in my opinion makes this veteran unable to obtain remunerative employment for which he was fitted for the foreseeable future." (T19, p98)
The VRB reached no conclusion on Mr Hancock's satisfaction of s 23 or s 24 of the Act because his degree of incapacity was less than 70 per cent. For that reason alone no IR or SR was payable to him.
Other documents were available to the Tribunal. The relevant material from those documents was the following.
Exhibit A1 is a report by psychiatrist Dr A Dinnen dated 4 November 1999 provided to the Applicant. In that report, amongst other things, the writer noted that Mr Hancock found work on the railways and worked for a second hand car dealer in Casino. He found trouble at age 18 when he missed a signal and an express train ran late. He therefore joined the army. Dr Dinnen noted also that Dr MacDonald had reported in January 1997 that Mr Hancock played golf once a week. Dr Dinnen wrote in assessing the occupational effect of his alcohol dependence, "No work available and poor motivation. Army service records suggest problems due to drinking were serious."
Dr M Baz, occupational physician, in Exhibit A3 dated 3 May 2000 recorded Mr Hancock's employment history as:
"…
Mr Hancock served in the Army for 25 years, achieving the rank of Sergeant. He was in operational signals and his duties involved typing, taking morse and intercepting messages. In later years he was involved with stocktaking and operation of a computer database. He left the Army in 1993 because of his reduced fitness, on his own volition.
He was unsuccessful in obtaining work until he obtained a position, through a new works opportunity scheme, in a boat outboard motor centre, in 1996. This was a 6 month position. He hoped to be kept on after the Government support was withdrawn but it was not the case, he feels because he was unable to do the heavy lifting required of him, although his basic duties were accounting, specifically stocktaking and monitoring of stock and sales. His duties also involved moving and setting up the stock.
He did a Retail Certificate course and a basic, 2 day, MYOB training course. He had some difficulty with his memory while undertaking these courses but was able to complete them successfully.
He has since applied for multiple jobs, in writing. He received 1 interview. He has applied for clerical types of work but has been unsuccessful.
…
Mr Hancock has served in the Army for 25 years on signals. He also has experience in stocktaking and computer operation and administrative experience with his rank of Sergeant.
He left the Army in 1993 and has not found work on the open market since then. He held a 6 months position, supported by a job opportunity scheme.
In my opinion Mr Hancock is unsuited to work which involves heavy lifting or bending, prolonged crouching or stooping because of the bilateral inguinal hernias. He should also avoid further exposure to high level noise to minimise further hearing loss. Sun exposure should also be reduced, or he should use protective clothing to reduce the incidence of new solar skin lesions.
In my opinion Mr Hancock is limited to predominantly light work which allows some posture autonomy because of the combination of currently accepted disabilities. Work in a low level clerical or administrative capacity, for example as a garage console operator, or some light stores positions, would be physically suitable.
In my opinion the alcohol dependence is an additional factor significantly limiting Mr Hancock's work opportunities. The chronic lateness indicates an increased risk of absenteeism and probably lateness in a new work place. The irritability he describes is probably related to his alcohol dependence and his motivation to seek alternative work is further limited by clinically apparent mild depression.
In my opinion his psychiatric disability combines with physical restrictions due to currently accepted disabilities to effectively render him unemployable. In my opinion his combination of disabilities, with the background of 25 years of Army service, has led to his sustained unemployment since discharge from the Army.
Mr Hancock also describes headaches and left shoulder discomfort. No cervical or shoulder condition was evident clinically. I do not consider his complaints would have any significant impact on work capacity, and particularly would not preclude him from the types of work he is now physically limited to by his currently accepted disabilities.
…
In my opinion, Mr Hancock is unable to engage in paid work, of up to 8 hours per week, solely due to his war caused conditions together with his psychiatric disability.
I do not consider the currently accepted disabilities [these do not include psychoactive substance abuse or dependence which has since been accepted] cause him to be unfit for work.
I do not consider the chronic airflow limitation causes any significant limitation additional to that already present due to his currently accepted disabilities.
In my opinion there is no evidence of other, non accepted conditions which preclude him from work."
Exhibit R2 is a report for DVA prepared by Dr N J Schultz, psychiatrist, on 18 October 1999. In that report, amongst other things, Dr Schultz says:
"After discharge in 1993, Mr Hancock has had considerable difficulty finding or maintaining any kind of work. This relates to lack of suitable skills, his frequent episodes of 'sessional drinking' which reduce his ability to be prompt and do a good job, and, his poor ability to relate to others.
…
I believe that Mr Hancock's future is going to be largely affected by the combination of his alcohol problems and his employability.
In my view, he requires a period of drug and alcohol rehabilitation focusing on the use of alcohol. This could then be followed by a period of vocational rehabilitation although it should also be noted that he is approaching an age considered appropriate for retirement and it may be impossible for Mr Hancock to properly be engaged in gainful employment."..
Dr Schultz gave him a rating of 6 for table 4.4 in GARP as it refers to "occupation". This means, "He has not been employed for several years because of his emotional limitations and alcohol abuse."
Dr T Anderson, occupational physician, in a report for DVA prepared on 22 December 1999 commented on Mr Hancock's employment history and fitness for work. He noted that Mr Hancock was discharged from the army at his own request. In Dr Anderson's view the Applicant was capable of continuing with his army work when he retired. He could probably have carried on for a few more years if he had looked after himself more appropriately. He is currently fit for most office-type occupations. With his existing telecommunications knowledge he would have been sought by many telecommunications firms. He could do accountancy work as he has done already. As a one time senior non-commissioned officer in the army he would have quite good middle management skills.
APPLICANT'S EVIDENCEIn his oral evidence Mr Hancock told his counsel, Mr Dawson, that he left the army because of hernia operations and fitness problems.
His work experience job involved book work and labouring. He had been on newstart allowance and at that time applied for jobs without success. He had applied for 50 or 60 jobs in a 12 month or longer period. He succeeded in obtaining one bona fide interview and another that was "not really an interview".
He drinks as much alcohol as he can afford, 10 to 12 middies a day. He drinks only beer and starts at about 11.00 am. He buys a carton of beer each fortnight but drinks mainly at his club. He does not eat as he should and regularly skips lunch.
The Applicant stopped looking for work in 1997. By that time he was in receipt of DVA Disability and Service/Invalidity Pensions.
Mr Modder for the Respondent took Mr Hancock to a number of issues. He fished two days a week up to about six months before the hearing. He does not socialise much with Vietnam veterans. He still plays golf once a week on Thursday or Saturday. He goes to a cricket club and scores for his nephew's team. He helps sell tickets for meat raffles at the club.
The Applicant will receive his superannuation at age 55 and he currently receives rent assistance. The Applicant does not consider he is living comfortably on his current income.
On the question of job search activity the Applicant gave the following information. He has looked for jobs doing office work, sales and as a course ranger at the golf club. He tried for a job in a pet shop. He owns pet birds. He thought he could do a clerical job but that is much less clear now. He is prone to headaches. As regards the job market in Casino (where he lives) he said that there seem to be job advertisements in The Northern Star. He would be prepared to apply for jobs within a 20 kilometre radius. This takes in Lismore, Ballina, Grafton and Kyogle. Mr Hancock agreed he has good computer skills.
He considers that he has tried "pretty hard" to find work. He missed no days when he worked on the CES job in Ballina for six months.
APPLICANT'S SUBMISSIONSMr Dawson made the following arguments on behalf of Mr Hancock:
The decision of Hill J in the Federal Court of Australia in Birtles v Repatriation Commission (1991) 105 ALR 359 relates to the application of ss 23 and 24 of the Act in areas suffering from a depressed labour market. Mr Dawson cited the decision as standing for the proposition that if, as a matter of fact, by reason of his war-caused incapacities, the veteran was unable to work, although otherwise willing and able to do so, his retirement to the coast where it could be difficult to obtain remunerative work of his main or chosen variety was no disqualification under s 23(1)(c) or s 24(1)(c) of the Act.
In the Birtles case (supra) the veteran had worked as an investigator into coronial inquiries and motor vehicle accident and workers compensation claims. He was to retire from different work at age 65 and inquired about returning to investigations work by approaching several workers compensation solicitors. They were not interested. The veteran realised that his injuries, which included myopia and amputation of both legs below the knees, would prevent him from doing worksite inspections, climbing stairs, using public transport and would create difficulties for him in attending hearings. He retired to the NSW south coast because he would not be able to continue working once he retired from his current job.
The veteran sought payment of his disability pension at the IR or SR. This was rejected because factors other than his accepted disabilities contributed to his inability to work. The other factors included age, period out of the work force, general state of the labour market and place of residence. It was also said that he lost his job because he retired from it having reached retiring age. That had nothing to do with an accepted disability.
Hill J held that s 24(1)(c) could be satisfied where a veteran, because of his or her war-caused injury or disease alone is prevented from continuing to undertake remunerative work that the veteran was undertaking and loses income as a result in a situation where that remunerative work is of a kind different for what had been the last job of the veteran. Thus it was that in Mr Birtles' case it was possibly appropriate to take account of his being precluded from insurance investigation work because of war-caused injuries. The problem was that the tribunal had not found sufficient facts to assess the situation. His Honour, however, did state (at page 370) that:
"…
If, as a matter of fact, by virtue of his war-caused incapacities and those alone, he was unable to work, although otherwise willing and able so to do, the fact that he retired to Mollymook (a factor in itself related to the reality of his situation and not to the hypothesis required to be constructed under the subsection) would be no disqualification to his qualifying under s 24(1)(c).
…"Mr Dawson referred also to the full Federal Court decision in Chambers v Repatriation Commission (1995) 129 ALR 219. This case was cited because the majority at page 231 of the decision contemplate that it may be acceptable to take account of factors such as the depressed labour market in applying the test in s 24(1)(c) of the Act whereas it is not appropriate to take these into account under s 24(1)(b).
In the Chambers case (supra) the veteran, who was in receipt of a Disability Pension, was denied the SR. His history was that he left school at age 14 and worked as a clerk. Five years later he joined the army and served for two years. He resumed work in his clerk's position with the same employer. He worked there from 1970 until 1983 when he claimed a Disability Pension. He had a personality disorder with alcohol dependency. His claim was rejected because his diagnosed disabilities were regarded as unrelated to his period of eligible service. He appealed successfully and was granted a pension. Subsequently his pension was increased to 70 per cent of the general rate. Consideration was given to paying at IR or SR. This was rejected because the veteran was considered capable of doing full time work.
Soon after, his employer terminated the veteran's employment on grounds of ill-health (nervous disorder). The veteran was still denied IR or SR. He appealed to the VRB which considered that the appropriate rate was 60 per cent rather than 70 per cent of the general rate. There was therefore no possibility of payment of IR or SR. At the Administrative Appeals Tribunal the decision was that the veteran still had a residual capacity to engage in some low stress manual employment. Section 24(1)(b) was taken to have not been satisfied. The veteran's appeal to the Federal Court did not succeed before either Whitlam J or the full court.
The full court decided that the following principles apply to ss 23 and 24:
The method of assessment of work capacity in s 28 of the Act must be addressed in applying the criteria in ss 23 and 24. Section 28 deals with "capacity to undertake remunerative work", a matter referred to in both of ss 23 and 24, and how this is to be gauged.
Only the three specified matters in s 28 are to be taken into account. These are:
1) The vocational, trade and professional skills, qualifications and experience of the veteran.
The kinds of remunerative work which a person with the skills, qualifications and experience referred to above might reasonably undertake.
3) The degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to above.
The effect of s 28 is to exclude from consideration under ss 23(1)(b) and 24(1)(b) a number of matters that might otherwise have been relevant such as depressed labour market conditions.
The full court considers that the kinds of remunerative work that a person with the skills, qualifications and experience of the veteran might reasonably undertake are categories of employment, not particular occupations. One looks at the range of occupations open to the person described. Section 28(b) does not limit consideration to the employment in which the veteran is engaged in his or her impaired state.
This criterion is to be applied without any assumption that the veteran can or will engage in further training to acquire any special skills, qualifications or experience.
Mr Dawson called the Tribunal's attention to Mr Hancock's medical condition. The Respondent has agreed that Mr Hancock suffers from psychoactive substance abuse or dependence. This receives considerable support from Dr Schultz in Exhibit R2. Dr Baz in Exhibit A3 accepts that Mr Hancock's psychiatric condition is predominantly manifest as alcohol dependence.
The Respondent cannot rely to any great extent on the views of Dr Anderson (Exhibit R3) who found that Mr Hancock had no alcohol addiction, a finding not accepted by the Respondent.
In addition to the substance abuse there is Mr Hancock's bilateral inguinal hernias which prevent him from heavy lifting.
Mr Dawson referred to Mr Hancock's army and work history to suggest that he does not have an exemplary work history. His army records show incidents of absence without leave and fights with others. Such behaviour could well have caused Mr Hancock to be dismissed in other jobs. It had been mentioned that Mr Hancock missed no days of work in his six months of employment in Ballina in 1995-1996. However, Mr Dawson said that this was for only six months and the fact that Mr Hancock came as free labour may have encouraged greater tolerance by the employer.
Mr Dawson argued that Mr Hancock should receive SR, or IR if the Tribunal thinks he might do part time work. He submitted that the Applicant ceased work because of his war-caused disabilities and they now prevent him from undertaking relevant remunerative work under s 24(1)(b) and (c). He cited the high ratings given the applicant by Dr Dinnen (Exhibit A1) in the occupational category in table 4.4 of the DVA Guide to the Assessment of Rates of Veterans' Pensions, fifth edition ("GARP"). He gave a rating of 5 (8 is the maximum). Likewise Dr Baz (Exhibit A3) assessed a 5 rating.
As alternative arguments he pressed the tribunal to find for similar reasons that s 23(1)(b) and (c) had been satisfied. He also suggested that Mr Hancock satisfied the criteria in s 24(2)(b) because of his efforts to find work.
RESPONDENT'S SUBMISSIONSMr Modder sought to distinguish the Birtles case (supra) from the present case. In Birtles (supra) the veteran had investigated remunerative work possibilities in Melbourne where he had been living and where there was a genuine labour market in the period leading up to his retirement. Those inquiries led him to believe that his war-caused disabilities would preclude him from finding remunerative employment in that city. He then moved to Mollymook on the NSW south coast. All that the Birtles decision (supra) stands for in that overall context is that the veteran should not be prejudiced in his claim for SR or IR merely because he moved to an area of depressed employment prospects.
Mr Modder said that in this case the Applicant had not investigated work opportunities in any larger centres before deciding to locate in Casino.
Mr Modder argued that the Applicant was capable of engaging in remunerative employment. He had held his job in Ballina in 1995-1996 for six months without absenteeism.
Mr Modder said that the Applicant has considerable residual earning capacity. He gained many skills in the army.
In considering Dr Baz's opinion, it should be noted that she made no reference to Mr Hancock's good record of attendance during his Ballina job when she suggests that he would be chronically late for work if offered a job. He would be late because of his alcohol dependence. She also fails to refer to the likelihood that Mr Hancock is unmotivated for work, rather than unable to work.
The Applicant might have difficulty finding work because of his age (53) and the labour market in and around Casino, but he could still be looking. His job search efforts appeared to cease when he was granted Service Pension.
Mr Modder addressed s 24 of the Act. He argued that Mr Hancock satisfies s 24(1)(a) in that his degree of incapacity is at least 70 per cent. However, he does not satisfy s 24(1)(b) and (c) of the Act. He could work at least 20 hours a week if a job of the right kind were found. That would be a job utilising his army skills. The real problem is Mr Hancock's lack of motivation.
FINDINGSIn arriving at its findings of fact the tribunal must reach a state of reasonable satisfaction on these matters which all contribute to assessment of Mr Hancock's rate of pension (s 120(4) of the Act).
The matters on which the Tribunal must make findings if Mr Hancock is to be paid a Disability Pension at IR or SR follow. SR will be considered first.
Special Rate
1) He must under s 24(1)(aa) have made a claim under s 15 of the Act for an increase in Disability Pension. Mr Hancock did this (T4, T8).
2) He must not have yet turned 65 when he made the claim (s 24(1)(aaa)). Mr Hancock was only 49 when he made the claim.
3) Mr Hancock's degree of incapacity from war-caused injury or war-caused disease, or both, must be at least 70 per cent (s 24(1)(a)). This is satisfied. It has been determined to be at least 80 per cent.
4) Mr Hancock's incapacity from war-caused injury or disease or war-caused disease, or both, must be of such a nature as, of itself alone to render him incapable of undertaking remunerative work for more than eight hours a week (s 24(1)(b)). This criterion can be understood correctly only by applying the criteria in s 28 of the Act. These dictate whether Mr Hancock has an incapacity to undertake remunerative work. It requires that only three sets of matters be taken into account. These are:
What are Mr Hancock's trade and professional skills, qualifications and experience?
What kinds of remunerative work may a person with Mr Hancock's skills, qualifications and experience reasonably undertake?
To what degree do Mr Hancock's physical or mental impairments as a result of the war-caused injury or disease, or both, reduce his capacity to undertake the kinds of remunerative work referred to in the second of these three bullets?
5) Mr Hancock's incapacity from war-caused injury or disease or war-caused disease, or both, must be of such a nature as, of itself alone, to prevent him from continuing to undertake remunerative work that he was undertaking and he must by reason of that be suffering a loss of income that he would not otherwise be suffering (s 24(1)(c)).
6) Section 25 of the Act must not apply to Mr Hancock. That provision does not apply to Mr Hancock.
The issues that have to be addressed are, therefore:
1) What are Mr Hancock's trade and professional skills, qualifications and experience?
2) What kinds of remunerative work may a person with Mr Hancock's skills, qualifications and experience reasonably undertake?
3) To what degree do Mr Hancock's physical or mental impairments as a result of the war-caused injury or disease, or both, reduce his capacity to undertake the kinds of remunerative work referred to in the second of these three bullets?
4) Do Mr Hancock's accepted conditions of themselves alone render him incapable of undertaking remunerative work for more than eight hours a week?
5) Do Mr Hancock's accepted conditions of themselves alone, to prevent him from continuing to undertake remunerative work that he was undertaking and, if so, is he, by reason of that, suffering a loss of income that he would not otherwise be suffering?
Issue 1 - What are Mr Hancock's trade and professional skills, qualifications and experience?
From the available evidence Mr Hancock's skills, qualifications and experience are:
25 years of army experience culminating in service at rank of sergeant. This would impart good middle management skills (Exhibit R3, Dr Anderson).
Work as a signals operator with duties including typing, taking morse code, intercepting messages (Exhibit A3, Dr Baz; Exhibit R3, Dr Anderson).
Work doing accounting duties, stocktaking and monitoring of stock and sales for six months in Ballina in 1995-1996 (Exhibit A3, Dr Baz; Exhibit R3, Dr Anderson).
Completion of a retail certificate course (Exhibit A3, Dr Baz).
Completion of a two day course in the computer accounts program, MYOB (Exhibit A3, Dr Baz).
Issue 2 - What kinds of remunerative work may a person with Mr Hancock's skills, qualifications and experience reasonably undertake?
As the Chambers case (supra) stresses, this test is to be satisfied not by identifying particular positions or jobs but by referring to "kinds" of work. On the basis of the skills, experience and qualifications referred to in respect of issue 1, the kinds of work that Mr Hancock would be equipped to do are:
Middle management administration.
Financial monitoring.
Stock control.
Operating a console.
Issue 3 - To what degree do Mr Hancock's physical or mental impairments as a result of the war-caused injury or disease, or both, reduce his capacity to undertake the kinds of remunerative work referred to in issue 2?
Mr Hancock's accepted disabilities are solar keratoses, bilateral inguinal hernias, gastro-oesophageal reflux disease, bilateral sensori-neural hearing loss with tinnitus and psychoactive substance abuse or dependence. The question is how these disabilities affect, if at all, Mr Hancock's capacity to work in middle management administration, financial monitoring, stock control or operating a console.
Dr Dinnen wrote in Exhibit A1 that army records suggest problems due to drinking. In his report this would seem to refer to the fact that Mr Hancock went AWOL on many occasions and this appeared related to drinking.
Dr Baz wrote in Exhibit A3 that Mr Hancock would have to avoid jobs requiring heavy lifting or bending, prolonged crouching or stooping (because of the hernias). He would also have to avoid exposure to high level noise because of his hearing problem. He would also have to avoid exposure to the sun because of his solar keratoses. He would be limited to predominantly light work allowing some posture autonomy, eg garage console operator or light stores position. However, Dr Baz foresees chronic lateness and absenteeism as likely by-products of Mr Hancock's substance abuse condition. He also displays irritableness that is probably related to alcohol dependence. She refers to his depression which affects his motivation. The Respondent argued that this opinion was not firmly based because of Mr Hancock's apparently good record as an employee during his six months of work in Ballina in 1995-1996.
Having considered these opinions, the Tribunal finds that the remunerative work that a person in Mr Hancock's position might reasonably undertake is work of the type largely described by Dr Baz, ie office work involving technical skills of accounting and/or stock management and possibly operating a console, with some possible middle management responsibilities. The concern is then whether Dr Baz's reservations about the effect of his disabilities on Mr Hancock's capacity to do such work are well founded. Dr Baz doubted that Mr Hancock would be reliable and punctual. These doubts stem from his substance abuse disability.
The Tribunal is satisfied that Dr Baz's concerns are firmly based. The Tribunal notes the Respondent's argument that Mr Hancock appears to have worked without absentee problems in Ballina five years ago for six months. While it can be argued that a six months trial is a reasonable indication of a person's potential success as an employee, the trial in this instance is thought by the Tribunal not to provide convincing evidence.
The work experience was a good number of years ago. It occurred reasonably soon after Mr Hancock left his permanent position in the army so his familiarity with work discipline was fresher than it would be now. Arguably his alcohol dependence has become more entrenched in the last five years. There is also very little known about how well the applicant worked in that job. There are no referee reports, for example, in evidence from the employer. Of course, it is known that the employer did not retain Mr Hancock's services after the government subsidy that provided his wages ended. This may suggest that his services were unsatisfactory. However, it could just as easily mean that his services were appreciated but could not be afforded relative to other items for which the enterprise had to budget.
It is the Tribunal's view that it is the accepted conditions alone and the incidents such as lack of motivation that render Mr Hancock incapable of undertaking remunerative work for periods aggregating more than eight hours a week. Mr Hancock is below retirement age. This is one indication that age is not a significant factor precluding him from finding paid work. The evidence before the Tribunal was that work does exist within about 20 kilometres of Casino and that Mr Hancock would be prepared to travel to take up such work. This is not, therefore, a case where the cause of the veteran's inability to obtain paid work is the state of the labour market. A veteran's length of time out of the work force can also be a factor, other than an accepted disability, precluding a veteran from finding work. This would be the most likely factor to prevent Mr Hancock from obtaining paid employment apart from his accepted disabilities. However, in Mr Hancock's case he has a set of skills, and some recent training, that would not necessarily be commonplace amongst job seekers. The Tribunal considers that these would neutralise any adverse effect from the period spent outside the work force by Mr Hancock.
For all of these reasons the Tribunal is satisfied that s 24(1)(b) is satisfied in Mr Hancock's case.
Issue 4 - Do Mr Hancock's accepted conditions of themselves alone, to prevent him from continuing to undertake remunerative work that he was undertaking and, if so, is he, by reason of that, suffering a loss of income that he would not otherwise be suffering?
The findings in relation to s 24(1)(b), as they were in favour of Mr Hancock's case, apply equally to s 24(1)(c). The proposition the Tribunal accepts is that, if Mr Hancock's accepted disabilities render him incapable of undertaking remunerative work of any relevant kind, as part of that determination they must also prevent him from continuing to undertake remunerative work that the Applicant was undertaking. He would be suffering a loss of the income he would otherwise be receiving from his work as an army sergeant or managing, etc in an office.
There may be some argument that Mr Hancock would still be in work in the army if he had not retired. The Tribunal rejects this argument because it was, on the evidence of Mr Hancock, but also of Dr Baz (Exhibit A3) and Dr Schultz (Exhibit R2), albeit on the basis of the histories given by Mr Hancock, it was because of his hernia condition in the main that Mr Hancock retired. Clearly the doctors accepted what Mr Hancock told them and that acceptance is considered reasonable by the Tribunal.
The decision in the Birtles case (supra) means that it is easier to find in favour of a veteran under s 24(1)(c) because the range of remunerative work that a veteran may be thought to be able to do is more limited than the range taken into account under s 24(1)(b). It is not surprising that a veteran whose claim survives paragraph (b) finds that paragraph (c) will pose no problem.
CONCLUSIONThe Tribunal is satisfied that Mr Hancock should be paid the SR under s 24 of the Act.
DECISIONThe decision under review is set aside and the matter is remitted to the Respondent to calculate Mr Hancock's rate of Disability Pension on the basis that he qualifies for payment at the special rate with a date of effect of 28 May 1996.
I certify that the 76 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member and Dr M E C Thorpe, Member
Signed: .....................................................................................
AssociateDate of Hearing 30 June 2000
Date of Decision 14 November 2000
Counsel for the Applicant Mr N Dawson
Representative for the Respondent Mr S Modder
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