Hetherington and Repatriation Commission - [2002] AATA 850

DECISION AND REASONS FOR DECISION [2002] AATA 850

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/649

VETERANS' APPEALS DIVISION          )
           Re      RONALD HETHERINGTON
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Dr E K Christie, Member

Date27 September 2002
PlaceBrisbane

Decision      The Tribunal sets aside the decision under review and in substitution thereto decides that the applicant is entitled to pension payable to him at the Special Rate. The earliest date of effect is 29 January 2001.
  ..................(Sgd).......................
  Dr E K Christie
  Member
CATCHWORDS
VETERANS' AFFAIRS – disability pension – veteran assessed at 100% of the General Rate – whether entitled to Special Rate – meaning of remunerative work in s 24(1)(c) of Veterans' Entitlement Act – reason for ceasing work

Veterans' Entitlement Act 1986 s 23, 24

Cavell v Repatriation Commission (1988) 9 AAR 534
Flentjar v Repatriation Commission (1997) 48 ALD 1
Re Forrester and Repatriation Commission (AAT No 12510, 22 December 1997)
Gauntlett v Repatriation Commission (1991) 32 FLR 73
Hendy v Repatriation Commission [2002] FCA 602
Magill v Repatriation Commission [2002] FCA 744
Repatriation Commission v Braund (1991) 23 ALD 591
Sheehy v Repatriation Commission (1988) 41 ALD 205
Starcevich v Repatriation Commission (1987) 18 FCR 221

REASONS FOR DECISION

27 September 2002 Dr E K Christie, Member

This is an application by Ronald Hetherington to review the decision of the Veterans' Review Board made on 2 July 2002 in which the Board decided to affirm the decision of the Repatriation Commission. That is, Mr Hetherington's rate of pension remained at 100% of the General Rate. The Department has offered Mr Hetherington terms at the Extreme Disablement Rate from 19 September 2001.
In reaching this decision, the Board concluded that:
"…the Board's view was that the applicant is now prevented from undertaking remunerative work for a number of reasons, including reasons
(1)other than incapacity from his accepted disabilities;
(2)the long time out of the full time work force; and
(3)his age
are now factors that must be taken into account. Furthermore, in the Board's view, the part time work with DJ Meats did not amount to the applicant 'genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in". Thus, even if his accepted disabilities were a substantial reason for the applicant's leaving work in 1991, s 24(2)(b) would be of no assistance to him. The Board found, and was reasonably satisfied, that the applicant left work in 1991 for 'reasons other than his incapacity' from accepted disabilities and that he is now not suffering a loss of income as a result of his accepted disabilities alone, or substantially (paragraph 34)."
At the hearing Mr D O'Gorman of Counsel represented Mr Hetherington. The respondent was represented by Mr M Smith, a Departmental Advocate.
The Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) – (the "T" documents) [Exhibit 1] and the various documents tendered by the parties.
Mr Hetherington gave oral evidence on his own behalf. During the proceedings, the Tribunal raised with Mr Smith, given that Dr Paul Stenberg (T4, Folio 18-19) was not called, whether the evidence in his medical report would be challenged. Mr Smith's response was that this report was not in dispute.
Issues to be Decided
The only issue for the Tribunal to decide was whether Mr Hetherington was entitled to pension payable to him at the Special Rate. It was common ground between the parties that only the application of subsection 24(1)(c) of the Veterans' Entitlements Act 1986 was in dispute together with the ameliorating provisions of subsection 24(2)(b).
Accepted Disabilities
Mr Hetherington has the following conditions accepted as war-caused:
·     bilateral perceptive deafness; right conductive deafness (27 May 1965)
·     depressive disorder (19 August 1999)
·     Post-Traumatic Stress Disorder ["PTSD"] (19 August 1999)
·     Ischaemic heart disease (20 May 2000)
·     Cerebral ischaemia (29 October 2000)
·     Diabetes mellitus (29 October 2000)

Facts

The general facts were not in dispute and may be stated briefly.
Mr Hetherington was born on 19 September 1936. At the date that he lodged a formal claim with the Repatriation Commission on 29 January 2001 for a pension at the Special Rate, he was aged 64.
Mr Hetherington served with the Army for many years including operational service in Malaya from October 1955 to August 1957.
Mr Hetherington was a butcher by profession.
Following his marriage breakdown in 1991, Mr Hetherington ceased work in 1991 in order to care for his dependent children as he had sole custody of them. He received sole parent allowance up until 16 April 1999 at which time his youngest child turned 16.
Mr Hetherington was diagnosed with PTSD in July 1997.
On 6 May 1999, he received a service pension as he had turned 62.
Mr Hetherington had a heart attack and cerebral stroke on 5 March 2000.
Work History
Mr Hetherington was dismissed whilst working full-time as the manager of Gloucester Butchery in 1991 as a result of his inability to communicate with other employees. He asserts that he became agitated by other people leading him to the point of depression. His PTSD was undiagnosed at this time.
Mr Hetherington's efforts to find work in other butcher's shops in the Port Macquarie area from this time were unsuccessful. He then moved to Brisbane in 1996 and found casual work as a butcher with Woolworths. However, he asserts that he became unemployed after two days because of his mental condition making him unable to be as productive as other employees – as well as being unable to effectively interact with them.
Over the period August 1996 to January 2001, Mr Hetherington was employed casually by "DJ Meats". Mr Hetherington worked seven to eight hours per week as a delivery driver; his average gross weekly wage did not exceed $50.
Oral Evidence of Ronald Hetherington
Mr Hetherington said that he had a heart attack and stroke on March 2000 that left him incapable of working.
Mr Hetherington said that he had worked up to 18 January 2000. The limitations to his employment over time were related, not only to problems with his physical capability, but also inter-personal skill problems, for example, incompatibility with fellow workers because of his psychiatric conditions. Mr Hetherington said that he required antidepressant medication daily.
During cross-examination by Mr Smith, Mr Hetherington stated that the reason for his actual employment circumstances over the period 1991-2000 were "the culmination of a lot of things": that he had been left with his children, that he had been diagnosed with PTSD in 1997, and after 25 April 1997 when he no longer had any dependent children his attempts to find employment were unsuccessful because of his "inability to communicate" because of his PTSD condition.
Contentions and Submissions of the Parties
Mr O'Gorman acknowledged that Mr Hetherington's need to care for his children prevented him from engaging in remunerative work for more than eight hours per week applied in 1991. However, he contended that the focus for this application for review must be on events in 2001, when Mr Hetherington applied for pension at the Special Rate some ten years later.
Mr O'Gorman submitted that there should be no dispute that Mr Hetherington ceased all remunerative work on 17 January 2001 because of his heart attack, stroke and PTSD – all accepted service disabilities.
Mr O'Gorman challenged the respondent's contention that the work undertaken by Mr Hetherington was "de minimus" contending that the statutory scheme did not provide a requirement for 40 hours employment per week to be satisfied. It was Mr O'Gorman's contention that the accepted service disabilities of Mr Hetherington were such that he was no longer able to work eight hours per week after January 2001.
Mr O'Gorman contended that the work undertaken by Mr Hetherington with DJ Meats from August 1996 to January 2001 constituted "remunerative work", notwithstanding that it was only eight hours employment per week. Because of his accepted service-related disabilities, Mr Hetherington was no longer able to engage in this or any other work. Moreover, it was these service-related disabilities alone, that resulted in Mr Hetherington losing employment in January 2001 as well as being unable to find alternative employment beyond this date.
Mr O'Gorman concluded with the submission that any suggestion that Mr Hetherington's earnings were related to the amount that would not affect his service pension were speculative as there was no evidence before the Tribunal to support such an assertion.
Mr Smith submitted that Mr Hetherington had "effectively dropped out" of the workforce in 1991 for family reasons and this was a choice forced upon him. Mr Smith contended that Mr Hetherington had elected to do a "very minor" [de minimus] amount of work and that his earnings did not affect his pension in any way.
It was Mr Smith's submission that by electing to work seven to eight hours per week, any earnings received by Mr Hetherington for this limited time of employment could not be considered to represent a "substantial" loss of remuneration which could be attributed to his incapacities alone. His earnings from casual work could only be regarded as "de minimus".
Furthermore, Mr Smith submitted that Mr Hetherington's circumstances were such that he continued to undertake a limited amount of work prior to ceasing work altogether.
Mr Smith contended that in 1999, when Mr Hetherington was aged 62 and no longer had any dependent children, he had "been effectively out of the workforce, except for a very minor amount of work for so long". He contended that in these circumstances Mr Hetherington could not really expect to get much in the way of work. The time out of the workforce and his age were factors that prevented Mr Hetherington from undertaking remunerative work.
Legal Framework

Applicable Legislation: Veterans' Entitlement Act 1986

Attention at the hearing was passed upon the provisions of s 24. That section, so far as is relevant here, provides as follows:
"Special rate of pension
24(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
(d)     section 25 does not apply to the veteran.

(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. …"

It is clear that Mr Hetherington fulfils the requirements of paras (aa) and (aab) of subsection (1). It was common ground between the parties that s 24(1)(a) and s 24(1)(b) were both satisfied. Accordingly, based on the contentions of the parties, Mr Hetherington's casual work from August 1996 to January 2001 provides the only gateway through which he could succeed in establishing the primary requirements of s 24(1)(c) and avoid the disability provision of s 24(2)(a)(i).
The Tribunal next considers the relevant case law central to the operation of s 24, with particular reference to the contentions of the parties whether the loss of remuneration must be a "substantial" loss.
Case Law

Meaning of Remunerative Work

In Re Forrester and Repatriation Commission (AAT 12510, 22 December 1997), the then President of the Tribunal, Mathews J stated in her analysis of legal authorities:
"20. The authorities make it clear that 'remunerative work' under s 24(1)(c) is not necessarily the last work performed by a veteran (Starcevich v Repatriation Commission (1987) 18 FCR 221). In order words, a veteran's entitlement to a pension under s 24 may be based on his or her being prevented from undertaking substantial remunerative work which had been performed in the past, even though it was followed by work of a different type."

Later in Forrester, Mathews J considered the authorities as to what constitutes "remunerative work" under s 24(1)(c):
"… In Sheehy v Repatriation Commission (1986) 41 ALD 205 the question arose as to whether a veteran had undertaken 'remunerative work' under s 24(1)(c) in the following circumstances. Shortly after his retirement as a fitter in 1982 the veteran obtained work as a storeman, but left after a week because the work was too heavy for him. About 10 years later he attempted a similar job, but again left after two weeks because he could not manage the heavy duties. The Full Federal Court (Wilcox, Whitlam and Lindgren JJ) found that his work as a storeman did not constitute 'remunerative work undertaken by the veteran'. Their Honours made the following observations (at pp 209-210):
…In our opinion, the words 'undertake' and 'undertaking' in para 24(1)(c) import the notion of 'performance' or of a 'successful' or 'effective' undertaking of work…
Whether, as we think, para 24(1)(c) required that the 'remunerative work that the veteran was undertaking' must have been 'performed' or 'successfully undertaken' or 'effectively undertaken', has not been the subject of direct decision in the two cases in which the paragraph has been considered by full courts of this court. In Banovich v Repatriation Commission (1986) 69 ALR 395; 11 ALN N142 it was held that the same expression in the predecessor provision did not refer to 'the particular job' which the member had previously undertaken but referred to a 'type of work' or 'field of remunerative activity' (at ALR 402-3). In Starcevich v Repatriation Commission (1987) 14 ALD 160; 18 FCR 221, it was held that para 24(1)(c), and in particular the word 'continuing' in that paragraph, does not require that the remunerative work that the veteran is prevented from undertaking be the last remunerative work which he undertook.
The construction which we have sought to explain above is consistent with both of these decisions and certain references in Starcevich directly support it. Fox J stated that the loss sustained by the veteran had to be 'real' and this indicates that his Honour had in mind remunerative work that had been successfully undertaken. Even more to the point is his Honour's reference to 'substantial remunerative work … undertaken in the past' [emphasis added]. Similarly, Jenkinson J suggested, although tentatively, that past remunerative work does not satisfy the terms of para 24(1)(c) unless it continued for more than a very short period.
In Birtles v Repatriation Commission (1991) 24 ALD 545; 33 FCR 290 Hill J understood Starcevich as having excluded from consideration remunerative work which the veteran had undertaken for only a short period. His Honour identified the question to be asked as follows:
… 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)? (at ALD 553; FCR 299)
Although it is perhaps understandable that there have been references in the cases to a 'short' or 'very short' period of work, we would prefer to say that the 'remunerative work that the veteran was undertaking' must have been 'performed or successfully undertaken' or 'effectively undertaken'."

Her Honour concluded, on the analysis of the above authorities, that:
"However, in my view the Court in Sheehy was concerned more with the question of whether remunerative work had been 'undertaken' than with exploring the question of whether the work was remunerative in the first place."

Whether Remunerative Work Must be Substantial

Fox J in Starcevich stated at 225:
"It seems to me that the intention of s 24(1)(c) is that the applicant must have suffered substantial loss of remuneration consequent alone upon the incapacity referred to in s 24(1)(a) and (b). The loss must be real, in the sense that the applicant cannot rely upon any remunerative work that he has undertaken in the past, but it would be unnecessarily restrictive to assess the loss by reference only to the last remunerative work undertaken before the applicant's inability to work became complete. In my opinion, a veteran's entitlement to a pension under s 24 may be based on his being prevented from continuing to undertake substantial remunerative work that he has undertaken in the past, even if that work was followed by work of a different type before the veteran ceased work altogether."
Following Starcevich, cases before the Tribunal have considered the question where the loss of salary, wages of earnings must be a substantial loss (Tribunal emphasis).
In Gauntlett v Repatriation Commission (1991) 32 FLR 73, Pincus J, in referring to Starcevich, made the following comments:
"The word 'substantial' is used in the judgment of Fox J and it is not clear to me that Jenkinson J, who agreed generally with his Honour's reasons, is to be taken as accepting that qualification. The better view appears to be that the extent to which the section should be read down so as to exclude from its scope insubstantial or trivial losses, in order to avoid absurdity, is still an open one, and it is unnecessary to determine it in this case. I feel obliged to add, however, that this is not the first time in which the respondent Commission has implied in argument that provisions of this sort could not possibly have been intended to produce such anomalies as, literally read, seem to follow from them; but it is the constitution function of Parliament, and not that of the judges, to correct any anomalies thought to arise from applying the plain language of legislation."

In Re Forrester and Repatriation Commission (AAT 12510, 22 December 1997), the then President of the Tribunal, Mathews J noted (at paragraph 27):
"….there is no explicit requirement in s.24(1)(c) that remunerative work must be 'substantial' in order to attract entitlement under the section, so I do not propose to treat this as determinative of the issue. However, it is a powerful consideration."

Consideration of the Issues

In Repatriation Commission v Braund (1991) 23 ALD 591, the Federal Court held that:
"The question whether an applicant is entitled to the special rate is to be considered at the time of the application to the primary decision-maker (the application day). [That is, the date the application was lodged – not the day on which work ceased]."

Mr Hetherington's application was lodged on 29 January 2001.

The Tribunal has adopted the approach of Mathews J in Forrester's case, in terms of the matters that need to be established pursuant to s 24(1)(c), if a veteran is to qualify for a pension.
"(1)that it was the incapacity arising from accepted disabilities alone which prevented the veteran from continuing to undertake remunerative work which he or she had been undertaking; and
(2)that as a result, the veteran suffered a loss of earnings which would not have been suffered in the absence of the incapacity."
The decision maker needs to be 'reasonably satisfied' in relation to each of these requirements [s 120(4)]."

There is no dispute that Mr Hetherington's departure from the fulltime workforce in 1991 to be the full-time carer for his dependent children, is clearly unrelated to his war-caused diseases. Accordingly, if that were to be the occasion upon which he ceased to engage in remunerative work, then it could not be said that he was prevented from continuing such work by reason of his war-caused incapacities. It follows then he would fall within the disability provisions of s 24(2)(c)(i). However, Mr Hetherington's case is that the work he performed as a delivery driver for DJ Meats from August 1996 to January 2001, in which he worked seven to eight hours per week and earned a gross average no greater than $50 per week, constitutes "remunerative work" within the meaning of ss 24(1)(c) and 24(2)(a)(i). It was contended that his war-caused disabilities were responsible for Mr Hetherington ceasing this work in January 2001. In addition, that the terms of s 24(1)(c) would be satisfied, as Mr Hetherington was prevented from continuing to undertake remunerative work by reason of his war-caused incapacities alone.
Together with the approach in para 42, the Tribunal has further adopted the approach of Mathews J in Forrester's case, given that it was a case involving casual or occasional work, in which the nature of this work and the circumstances in which it ceased were major issues for the Tribunal to consider. According to the approach in Forrester, "in order to show a link between his war-caused incapacities and his cessation of work [in 2001]", Mr Hetherington would need to establish:
(i)that the casual work from 1996-2001 constituted remunerative work; and
(ii)that he was prevented from continuing to undertake that work by reason of his war-caused incapacities.

Was the Applicant Engaged in Remunerative Work from 1996-2001?

Applying Mathews J reasoning in Forrester's (see Forrester para 35) to the circumstances of this case, it cannot be said that Mr Hetherington was unable to "perform or successfully undertake" the work of a delivery driver for DJ Meats. In Her Honour's view, the Court in Sheehy was concerned more with the question of remunerative work being "undertaken" than with exploring the question of whether the work was remunerative in the first place.
Accordingly, the Tribunal next considers the question of whether the work performed was substantial "remunerative work" (emphasis added).
In Forrester's case, the veteran had not worked full time after 1978 because of a service related incapacity. Over a nine month period in 1981/82, he had worked as a camp cook for the Army on a casual employment basis on four occasions totalling eight weeks. His earnings, averaged out over the eight weeks, were less than $63 per week. In 1985, the Applicant's anxiety state was determined to be a [Korean] war-service disability. Mathews J commented that the Applicant's casual Army camp work could not be described as "substantive remunerative work". However, Her Honour commented that there was no explicit requirement in s 24(1)(c) that remunerative work must be "substantial" in order to attract entitlement under this section (see para 40). Pincus J in Gauntlett's case made a similar observation (see para 39).
The Tribunal considers the reasoning in both these authorities is the appropriate approach to adopt in this application – subject to the following qualification identified by Mathews J in Forrester: that is, whether the type of work undertaken by Mr Hetherington with DJ Meats could be described as "remunerative work" so as to ground an entitlement under s 24(1)(c). Her Honour considered this question of casual work not only in terms of the amount of income return, but also in terms of the future uncertainty for casual or occasional work, stating (at Forrester paras 28, 29):
"The answer will no doubt depend in each case upon the nature of the work and the prospects which it holds for further remunerative employment. …
Was it the type of work which held no particular promise of future employment? Did the work simply 'dry up' in the normal course of events, or was it the applicant's anxiety state [an accepted service disability] which prevented him from continuing it? The answers to these questions are relevant not only to whether it was 'remunerative work' under s 24(1)(c), but also to whether it ceased for reasons other than his war-caused incapacities under s 24(2)(a)(i)."

Based on the facts in Forrester's case Her Honour concluded that the casual work was not in itself "remunerative work" under s 24(1)(c) as by its very nature it was occasional work which offered little by way of return and no promise of any future because of:

(a)preferences for offering continuing casual employment as cooks at Army camps being given to people who had given long service in the past. In contrast, new people, like the Applicant, were getting little or no work; and
(b)"financial stringencies" that were imposed by the employer limiting employment opportunities. This had resulted in no vacancies after the Applicant's fourth (and final) camp.

Mr Hetherington's circumstances can be distinguished from the above facts in Forrester's case. His casual employment did not diminish over time (as in Forrester) but continued on a regular basis. Mr Hetherington's employer had provided him with employment where difficulties arising from his war-caused PTSD, in working with colleagues, did not arise. This work continued unimpeded, in any way, by actions of the employer that would either cause the employment to "dry up" or by "financial stringencies" put into place that would cause Mr Hetherington's "remunerative work" to end. Accordingly, the Tribunal finds that Mr Hetherington's casual employment had continued on a regular basis, over 1996-2001, providing him with a stable, but small amount of earnings together with the security of casual employment.
Consequently, in addressing the question of "remunerative work", the Tribunal has considered:
(i)the security of casual employment Mr Hetherington had with DJ Meats over the period 1996-2001;
(ii)the stability of earning regular amounts of income continuously over this period of time;
(iii)the fact that this application could be distinguished from Forrester's case in terms of "work that offered little by way of return", as work in Forrester's case only involved eight weeks of work in four discrete periods over a nine month period. Mr Hetherington's situation involved weekly payments of much the same weekly amount as Forrester but paid on a regular basis over the period 1996-2001; and
(iv)the observations of Pincus J in Gauntlett and Mathews J in Forrester as to the consideration of "substantial" to the requirements in s 24(1)(c) for "remunerative work" in order to attract entitlement (see para 47).
Accordingly, the Tribunal concludes that, based on the nature of the work, in terms of security and continuity, and the prospects which it held for further remunerative employment, Mr Hetherington was engaged in "remunerative work" from 1996-2001 and so satisfies this requirement under s 24(1)(c).
Why did the Applicant's Casual Work Cease?
The unchallenged medical opinion evidence of Dr P Stenberg, a psychiatrist, was:
"As a result of his ongoing [psychiatric] conditions [major depression, PTSD]… he is unable to develop any ongoing sustaining relationships;
It is my opinion, that in view of Mr Hetherington's problems, he is unable to work and will never be able to be gainfully employed;
Other medical conditions that Mr Hetherington suffers from are angina, hypertension and emphysema … (T4 Folio 19, 17 February 2000)."

Mr Hetherington's depressive disorder and PTSD were accepted as war-caused disabilities on 19 August 1999.
However, Mr Hetherington continued in employment with DJ Meats, notwithstanding that he had these psychiatric conditions. His medication at this time was antidepressant ("Prozac") and cardiovascular/hypertensive drugs ("Norvasc", "Betaloc", "Solprin").
The reference by Dr Stenberg in February 2000 to other medical conditions of Mr Hetherington of angina and hypertension (para 52) are somewhat prophetic as Mr Hetherington had a heart attack and cerebral stroke on 5 March 2000. Following surgery and post-operative recovery, Mr Hetherington returned to work on a therapeutic basis only, before ceasing work completely in January 2001.
Mr Hetherington's ischaemic heart disease and cerebral ischaemic were accepted as war-caused disabilities on 20 May 2000 and 29 October 2000, respectively.
The Tribunal considers two periods relevant in evaluating Mr Hetherington's war-caused disabilities and his ability to undertake remunerative work: the first period from acceptance of his PTSD as a war-caused disability (August 1999) to the time of his heart attack/stroke (March 2000) and the second period from the time of heart attack/stroke (March 2000) to the time he ceased remunerative work completely (January 2001).
For the first period, Mr Hetherington continued to work notwithstanding Dr Stenberg's opinion in relation to his inability to undertake work and his psychiatric/cardiovascular/hypertensive conditions (see para 53).
For the second period, Dr Stenberg's opinion must then be considered in the context of the personal health outcome of Mr Hetherington's continuing to undertake remunerative work against the background of all his medical conditions. His conditions deteriorated and he ultimately suffered a heart attack and stroke. Attempts to resume work for therapeutic purposes were unsuccessful and Mr Hetherington ceased work completely on 12 January 2001.
In evaluating all of the factual evidence, the Tribunal has done so in accordance with subsection 120(4)(c) of the Veterans' Entitlements Act 1986. In addition, the Tribunal determined the factual issues to its "reasonable satisfaction" by applying the approach in Cavell v Repatriation Commission (1988) 9 AAR 534, as referred to in Jackman v Repatriation Commission, that is "…to be guided by commonsense with an 'eye to reality'."
Next, the Tribunal considers the four sequential issues identified in Flentjar v Repatriation Commission (1997) 48 ALD 1 and makes the following findings.
The relevant "remunerative work" that Mr Hetherington was undertaking within the meaning of s 24(1)(b) was regular casual employment as a driver for DJ Meats.
The second issue is whether Mr Hetherington's war-caused conditions prevented him from undertaking this work. The Tribunal finds based on Dr Stenberg's report that this is the case and is made clearly evident in his unchallenged medical report (see paras 5, 53).
The next issue is whether Mr Hetherington's war-caused conditions were the only factors preventing him from continuing to undertake that work. Alternatively, whether there is a possibility that a combination of war service conditions and non-war service conditions prevented Mr Hetherington from continuing to undertake that work.
Based on the Tribunal's analysis of facts (paras 53-60), the Tribunal finds that, if Mr Hetherington did not have PTSD, ischaemic heart disease and cerebral ischaemic he would not have ceased work in January 2001. Unfortunately, he does have these war service conditions which prevent him from continuing in remunerative work. Moreover, the conclusions of Mathews J in Forrester's case are particularly relevant. That is, an inference that a war-caused disability would prevent the Applicant from continuing to undertake remunerative work might have been able to have been drawn had the casual work opportunities been made available on a regular basis (emphasis added). However, the availability of casual work, on a regular basis, was not the situation in Forrester's case. In contrast, such a conclusion did not apply in Mr Hetherington's case as his casual employment with DJ Meats was undertaken on a regular basis over the period 1996-2001.
Accordingly, the Tribunal concludes that at the time Mr Hetherington ceased work in January 2001, his accepted war disabilities had progressed to such a state as his general health deteriorated over time, that it can be clearly adduced to the "reasonable satisfaction" (see para 61) of the Tribunal that his accepted war service disabilities, alone, would prevent him from undertaking "remunerative work". The heart attack and stroke suffered by Mr Hetherington further corroborates Dr Stenberg's opinion, provided one month earlier, that his medical conditions left him unable to work and never able to be gainfully employed.
The Tribunal further concludes that the contention of the Respondent that a combination of war service and non-war service related conditions (age, time out of the workforce) led to Mr Hetherington ceasing work cannot be sustained when considered in relation to the following factual situation:
(a)in the context of Mr Hetherington undertaking casual remunerative work on a regular basis for 1996-2001;
(b)a progressive deterioration of his general health, associated with the subsequent acceptance of service war-caused disabilities, as he continued to undertake casual remunerative work over time on a regular basis;
(c)the expert medical evidence of Dr Stenberg in February 2000 which clearly stated that, at this time, Mr Hetherington "was unable to work and will never be able to be gainfully employed"; and
(d)the date his application was lodged.
Moreover, the report of Dr Stenberg also identified the medical conditions which were the foundation for his opinion. Mr Hetherington's medical condition worsened significantly beyond February 2000.
The Tribunal makes the above finding on these factual issues according to the standard of "reasonable satisfaction" (see para 61).
Furthermore, with respect to the Respondent's submissions as to the effect of age and time out of the work force to combine with his war service conditions causing Mr Hetherington to cease work, the Tribunal considers that the following statement by Madgwick J in Hendy v Repatriation Commission [2002] FCA 602, to be particularly relevant in Mr Hetherington's factual circumstances:
"40. It seems clear however that it is not within the intendment of the legislation that decision-makers might resort, under the rubric of labour market factors, to the mere consequences of a veteran's service-related disability for the purpose of defeating the veteran's claim. Among other things, if a service-related condition incapacitates a veteran for particular work, it will be more or less true in every case that, as time goes by, the veteran's ability to re-enter the workforce will tend to be impaired on account of lack of recent experience of that work, absence from the workplace generally and, for older veterans, their increasing age. There would have been little point in providing for a work incapacity pension if the direct consequences of the incapacity could defeat the right to the pension."
Given the above findings that Mr Hetherington's war service conditions are the sole reason for him not being able to continue to undertake relevant remunerative work after January 2001, the s 24(2)(b) requirements are satisfied: That is, there is no need for the Tribunal to consider whether Mr Hetherington made genuine attempts to seek work after that date: see Magill v Repatriation Commission [2002] FCA 744.
Finally, the Tribunal concludes that Mr Hetherington has suffered a loss of salary, wages or earnings, by being unable to undertake casual work with DJ Meats on a regular basis, but for his war-caused incapacities. There were no financial advantages to him when he ceased work in January 2001.
Accordingly, the Tribunal concludes that the second limb of subsections 24(1)(c) and 24(2)(a) are both satisfied.
The Tribunal sets aside the decision under review and in substitution therefore decides that the applicant Ronald Hetherington is entitled to pension payable to him at the Special Rate. The earliest date of effect is 29 January 2001.
I certify that the 75 preceding paragraphs are a true copy of the reasons for the decision herein of Dr E K Christie, Member
Signed:         S Oliver
  Associate
Date of Hearing  1 August 2002
Date of Decision  27 September 2002
For the Applicant  Mr D O'Gorman, Counsel
For the Respondent                 Mr M Smith, Advocate