Hill and Repatriaiton Commission - [2001] AATA 331

DECISION AND REASONS FOR DECISION [2001] AATA 331

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1118

VETERANS' APPEALS DIVISION       )
           Re      ALLAN HILL
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal The Hon. R N J PURVIS QC, DEPUTY PRESIDENT

Date24 April 2001
PlaceSydney

Decision The decision under review is set aside, the matter remitted to the Respondent to determine the appropriate amount due to the Applicant, the earliest date of effect being 25 March 1996.

..............................................
[sgd]R N J PURVIS QC
Deputy President
CATCHWORDS
VETERANS' APPEALS – disability pension – special rate – accepted war-caused disabilities – total and permanent incapacity as a consequence of accepted disabilities – last remunerative work – whether the accepted disabilities alone were the cause of the Applicant ceasing his last remunerative work – deterioration in accepted disabilities – whether relevant loss suffered was by reason of diminution of capacity to undertake remunerative work

Veterans' Entitlements Act 1986 – ss 24(1), 24(2)

Hill v Repatriation Commission [2000] FCA 929
Banovich v Repatriation Commission (1986) 69 ALR 395

REASONS FOR DECISION

The Hon. R N J PURVIS QC, DEPUTY PRESIDENT
the application

This is an application made by Allan Claude Hill ("the Applicant") seeking payment of a pension at the special rate pursuant to section 24 of the Veterans' Entitlement Act 1986 ("the Act").
Following a decision of the Administrative Appeals Tribunal on 16 April 1993, the Applicant received a disability pension at the intermediate rate with effect from 19 January 1990. On 25 March 1996 the Applicant lodged a claim for an increase in disability pension to the special rate, the Repatriation Commission ("the Respondent") refusing the application on 6 May 1996 and maintaining the disability pension at the intermediate rate. This refusal decision was affirmed by the Veterans' Review Board on 23 September 1997.
The Applicant contends that he ceased work solely as a result of his accepted conditions. Further, that he is impaired totally for any work as a consequence of his accepted conditions and his war-caused generalised anxiety disorder. The Respondent on the other hand maintains that the Applicant is not totally and permanently incapacitated within the meaning of section 24(1)(b) and that he ceased work for reasons other than his accepted disabilities and therefore fails to satisfy the requirements of section 24(1)(c) of the Act.
An application to review the decision of 6 May 1996 came on for hearing before the Tribunal on 16 June 1999 and on 3 February 2000; the decision under review was affirmed. There was and is no issue between the parties that the Applicant met the requirements of sections 24(1)(aa), (aab) and (a)(i), namely:
"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 determination that is in force; or
…"
The Tribunal was reasonably satisfied that the Applicant met the test of section 24(1)(b) as at the date of the application for increase, that is 25 March 1996 namely:
"(b) the veteran is totally and permanently incapacitated, that is to say the veterans' 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…"

The Tribunal however was not satisfied that the Applicant met the requirements of section 24(1)(c) namely:
"(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 that war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii) the veteran is incapacitated or prevented, from engaging in remunerative work for some other reason; and
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking."

The Applicant appealed from the decision of the Administrative Appeals Tribunal to the Federal Court. On 17 July 2000 the appeal was upheld, the Court finding an error of law in the approach that the Tribunal took in its consideration of section 24(1)(c) (Hill v Repatriation Commission [2000] FCA 929). The matter was remitted to the Tribunal for further hearing and re-determination according to law.
the hearing
At the present hearing the Applicant was represented by Mr M Vincent of counsel, the Respondent by Ms R M Henderson of counsel.
The evidence was comprised of the material filed in the Federal Court in aid of the appeal, that is in effect the material that was before the Tribunal in June 1999 together with limited oral evidence given by the Applicant.
No further oral or written material was tendered before the present hearing by the Tribunal.
the relevant factual situation
The Federal Court in its reasons for decision stated the background facts as follows. Subject to, primarily as to his current medical condition, the limited oral evidence given by the Applicant at the present hearing, the factual situation is now no different.
The Applicant was born on 10 February 1936. He served in the Royal Australian Airforce for 20 years from 1958 to 1978. Following his discharge, he was employed for eleven years in a civilian capacity by the Department of Defence. He worked at the Guided Weapons and Electronic Support Facility at St Mary's near Sydney. He was retrenched from that employment on 28 March 1989. The Applicant claims that he accepted the departments' offer of retrenchment because of various physical disabilities which he describes as "war- caused".
Immediately after leaving the Department of Defence the Applicant applied for a pension under the Act. This application was ultimately successful.
The following war-cause disabilities have been accepted by the Respondent as applicable to the Applicant:
· bilateral sensorineural deafness;
· iridocyclitis left eye with cataract and macular degeneration;

membrano proliferative glomerulo nephritis;
haemmorhoids;
cervical spondylosis;
lumbar scoliosis;
right iritis;
right chondromalicia patellae; and
generalised anxiety disorder.

On 16 April 1993 the Administrative Appeals Tribunal determined that the Applicant was "entitled to receive a pension at the intermediate rate on or from 19 January 1990". Apparently the Tribunal gave oral reasons for its decision at the end of the hearing, reasons which might not have been transcribed. Certainly it appears such reasons were not available to the Tribunal in June 1999. That is the Tribunal which made the decision that was appealed to the Federal Court. However, it was common ground between the parties at the time of that appeal to the Federal Court, that it was inherent in the 1993 Tribunal decision, that the Tribunal was then satisfied as to the existence of all the elements of entitlement set out in section 23(1) of the Act. These elements included:
"Intermediate rate of pension
23(1) This section applies to a veteran if:
…
(c)The veteran is by reason of incapacity from 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 from that incapacity; and
…."
The Applicant received a service pension at the intermediate rate back dated to 19 January 1990. He still continues to receive a pension at that rate.
While he was employed at the Department of Defence, the Applicant kept dogs and bred from them. At the date of his retrenchment he owned five dogs. He decided to move to Lawrence on the north coast of New South Wales and try to earn money by breeding dogs. The Tribunal in February 2000 found that the Applicant bred two or three litters, but the pups realised much less than the Applicant had obtained in Sydney. The Applicant said that he probably sold a total of about 10 dogs. He said his tax return always disclosed a loss. Details were available in respect of only the years 1993/94 and 1995/96. In the first of those years the Applicant disclosed a dog breeding income of $1087 and expenses of $8866. In the later year he claimed that his dog breeding income was $475 and his expenses were $6170. The latter taxation return was accompanied by a letter, stating that the Applicant had ceased trading as "Almarson Kennels" with effect from 28 June 1996. The date on which he ceased carrying out his dog breeding activities was however not certain. The Applicant himself gave evidence that he ceased dog breeding "because of back pain caused by lifting the dogs that weighed 18 to 19 pounds". He also said he felt unable to manage the grooming requirements, having exhibited dogs at 10 or 11 dog shows each year. In addition, it was necessary for him to clean out the dog shed daily by moping and hosing. In the year 2000, he owned two dogs that did not require much grooming.
At the time of the subject application, the Applicant was aged 60 years, so satisfying the prerequisites of section 24(1)(aab), and his degree of incapacity from war-caused disabilities was at least 70%, so satisfying section 24(1)(a)(i).
The additional oral evidence of the Applicant before this Tribunal was to the effect that:
(a) he had in the year 2000 undergone total left hip replacement, a nasal operation, and more recently experienced bronchial problems. His anxiety state and back condition had both worsened since June 1999. He is unable to bend down to care for his now two dogs and has a respite come to his home three times a week. He can take one half hour to put on his shoes and socks.
(b) he was only 53 years of age when he left his work with the Department of Defence and that only for his then state of health – it was considerably worse on the date of his application and is more so now – he would have remained at work, not least so that he could obtain the benefit of "full superannuation payments" at the age of 65 years. He was not cross-examined on this evidence.

the reasoning of the federal court

It is not necessary for this Tribunal to further consider the reasons and findings of the earlier Tribunal determinations. Suffice for it to note the conclusions stated by the Federal Court as to the dog breeding activities, namely (Hill (supra) at paras 28 and 29):
"28. …Although the Tribunal found that his [the Applicant's] war-caused disabilities were the catalyst for Mr Hill's decision to give up dog breeding, there is no basis in the evidence for a conclusion that, absent those disabilities, the dog breeding activity would have yielded Mr Hill a profit, either immediately or in the longer term. On the contrary, Mr Hill made clear that his fundamental problem was that the price he could obtain for the puppies was inadequate to cover his costs. As it was not suggested that his costs were inflated by his disabilities, this problem obviously had nothing to do with his war-caused disabilities.
29. In my opinion, the Tribunal was correct in concluding, that Mr Hill's dog breeding activity did not constitute "remunerative work" within the meaning of s 24(1)(c) of the Act."
This Tribunal concurs on the basis of the evidence before it with the finding of the earlier Tribunal and the opinion expressed by the Federal Court.
As to "the public service position", the Federal Court stated (Hill (supra) at paras 30-38):
"30. …There appears to be no doubt that Mr Hill relied, as one of two bases of his s 24(1)(c) claim, on the loss of his public service position in 1989. It was therefore incumbent on the Tribunal to deal with that matter. I agree with Mr Vincent that it was erroneous for the Tribunal to limit its task to determination of the extent to which Mr Hill's position had changed since 1993. It was required to determine whether Mr Hill satisfied the criteria set out in section 24 of the Act. As the Tribunal itself remarked, it was not bound by the conclusions of the 1993 Tribunal. In any event, in relation to s 24(1)(c), the conclusions of the 1993 Tribunal favoured Mr Hill. As is accepted by both parties, Mr Muller [the 1993 Tribunal Senior Member] must have been satisfied that Mr Hill had lost earnings from remunerative work because of his war-caused disabilities. Mr Muller could only have been so satisfied on the basis that Mr Hill was unable, at the date of the earlier application, to continue his public service work…
32. …Ms Henderson [counsel for the Respondent] contended the word "continued" in s 24(1)(c) mandated consideration of the particular position previously occupied by the veteran and required that it had been occupied only shortly before application day. She was unwilling to define what she meant by "shortly before".
33. With respect to Ms Henderson, it seems to me this approach repeats the heresy scotched in Starcevich v Repatriation Commission [(1987) 18 FCR 221]. The applicant in that case was a Second World War veteran. For most of the period between his return from the war and 1971, he had worked as a farmer, albeit with difficulty because of a war-caused disability. In June 1971, he started work with the Postmaster-General's Department ("PMG") but lost that job in 1974 when its location was moved. Because of his injury he could not travel to the new site. He tried a job in a furniture factory but had to give up after one day because of his injury. He had not worked since that time.
34. The Tribunal found that Starcevich's preferred occupation was farming and that, but for his injury, he "would still be farming". The Tribunal also found that he suffered a loss of income from his inability to farm. However, it refused Starcevich's application for a special rate pension because he had passed the age (65) by which he would have been forced to retire from his PMG position.
35. …[in Starcevich at 224] Fox J said:
"Where a veteran has undertaken different types of work, the meaning of "remunerative work" in paragraph (c) is ambiguous. The use of the phrase "prevented from continuing to undertake" in relation to "remunerative work" does suggest the last remunerative work undertaken, but this is not necessarily so. The use of the indefinite "remunerative work" simpliciter, rather than "the remunerative work" tends against this construction and "continuing" can also mean resuming after a suspension or interruption. Furthermore, both paragraphs of subs (2) look to a wider concept of "remunerative work": this is especially so of paragraph (b)."
At [225-226]…his Honour set out his view of s 24(1)(c):
"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. In such circumstances, the passage of time from the cessation of the work upon which reliance is placed to the veterans' complete retirement may mean that the other requirement of s 24 (1)(c), namely that the veterans' war-caused injury or disease alone prevents him from undertaking the remunerative work upon which his claim is based, is not satisfied, but this a different matter, and one which does not arise here."
36. …Starcevich establishes that consideration of the question whether the veteran was, at application day, "prevented from continuing to undertake remunerative work that the veteran was undertaking", and thereby lost income, is not confined to consideration of the question whether the veteran would then have been working in his or her most recent employment…Nor is it fatal to a claim of prevention from continuing to undertake remunerative work in some sphere, that the veteran has worked at something else in the meantime, or that there is a substantial temporal gap between the cessation of work in that sphere and the date of the application. Those factors may make it difficult for the veteran to obtain a favourable factual finding, but they do not mean the previous work is to be excluded from consideration.
37. The case put to the Tribunal by Mr Hill is that he accepted the offer of redundancy made to him by the Department of Defence only because his war-caused disabilities made it increasingly difficult for him to cope with the requirements of the position. He said in a written statement, which he affirmed in oral evidence: "There were no other reasons other than my war-cause disabilities why I stopped work".
38. The Tribunal was not bound to accept this statement at face value. It was entitled to consider for itself whether this was, indeed, the reason why Mr Hill accepted the redundancy package. If it did accept Mr Hill's assertion, the Tribunal was required to consider whether it was probable that Mr Hill, absent the war-caused disabilities, would still have been engaged in this type of work at the date of his special rate pension application seven years later. The Tribunal might have concluded he would, in any event, have retired from this type of work by that date, even if he did not have war-caused disabilities, and notwithstanding that he had not yet reached 65 years of age."

a review of the medical evidence

Although there was a finding by the June 1999 Tribunal, as is noted in the reasons for judgement of the Federal Court, that section 24(1)(b) had been satisfied, it is desirable in the context of the present application to revisit the evidence referable to this issue and make a definitive determination.
The medical evidence is extensive and it is not necessary for the Tribunal to set out in great detail the diagnosis and opinions expressed by the medical practitioners and specialists. Suffice it for the Tribunal to highlight the more significant aspects of the various reports. On 7 May 1990 Dr R Delaforce reported that the Applicant:
"would probably benefit from counselling related to his fears of further decline in physical health and still persisting effects of the failed two marriages. He is disabled socially because of the effects of the physical disorders. He may benefit from a trial anti-depressant medication (assuming safety in view of his eye condition) because of the insomnia and other generalised anxiety features. His prognosis is not good."

Again on 25 February 1991, Dr Delaforce stated:

"When his physical state is considered, and even when this includes only the accepted disabilities, there is overall considerable physical health problems. When the anxiety disorder is added to this, there is overall marked disability. I doubt very much that he would on an ongoing basis be able to work 20 hours a week. He is effectively unemployable, especially in the current economic climate."

On 4 September 1992 Dr Henke, a consultant in rehabilitation medicine, having examined the Applicant, stated:
"It would appear that each of these conditions [having detailed the various accepted disabilities] per se is not sufficient to render this man incapable of working. However, it does appear that cumulatively they create a significant effect. He is therefore impaired by virtue of his service-related conditions with respect to vision, hearing, mobility and concentration. He has worked mainly in clerical work throughout both his service and post-service career and it would seem inappropriate for this man to try and transfer from this area. He has significant visual problems with cataract development and macular degeneration of the left eye. This is complicated by further episodes when his eyes become inflamed and this would make it extremely difficult for him to work. During these periods he would be totally unfit for duties as a clerical worker by virtue of the restriction of his vision. On the other hand, he has a history of ongoing neck and back pain and therefore sitting for long periods with the neck flexed, as is the likely situation for a clerical worker, may well be likely to provoke his symptoms… The anxiety disorder has an overall effect upon all of these conditions, making it unpleasant for him to interact and potentially creating a source of conflict between him and other workers… All of his conditions are of a chronic type, with some capacity to either gradually deteriorate and also to periodically flare up, resulting in short-term periods of severe restriction. There is no potential for him to recover from these conditions and therefore any improvement in the future is extremely unlikely…"
On 5 June 1996 Dr Derek Johns, a consultant psychiatrist, reported:
"…Because of difficulties he was experiencing with a wide range of physical disabilities, as well as an anxiety disorder related to his war service, he was advised to resign on medical grounds and last worked in 1989.
His psychiatric symptoms include apprehension in public places, anxiety and panic attacks, irritability with outburst of anger, startle reactions, poor sleep and memories of terrifying experiences in Vietnam one in particular involving a hand grenade.
His symptoms have also resulted in the breakdown of two marriages and his adult children have moved out because of his behaviour and he now lives alone.
His presentation is consistent with him suffering a Post Traumatic Stress Disorder due to his tour of duty …"

On 4 July 1996 Dr Johns stated:

"I would consider that he is now totally and permanently incapacitated because of his PTSD for any form of employment and would not be able to work for even eight hours per week".

Dr E A Allcock, a general practitioner, stated on 17 June 1996:
"It becomes increasingly clear that he is unable to gain and sustain remunerative employment. It is anticipated that this situation will only deteriorate with time."

In June 1991 Dr Allcock reported:

"The multiple pathologies which constitute the attributable disabilities have not improved and have in fact been augmented by respiratory complaints and hiatus hernia. It is now clear that has now become unemployable."

In July 1998 Dr Martha Baz, an occupational physician, having examined the Applicant and commented on his various disabilities, assessed his fitness for work. She observed that the dog breeding activity was "not a realistic alternative employment opportunity for him" and:
"The leave that he has taken from work [that is his employment with the Department of Defence] will be unacceptable to any potential employer considering him for a permanent position. …he could only expect to work for half of any year because of this condition. The unpredictable nature of the exacerbations would cause further problems with work attendance and efficiency.
In addition, Mr Hill experiences back and neck pain and stiffness which would be exacerbated by prolonged sitting or standing and which requires some posture autonomy to minimise symptoms. However I do not consider that these, or the other musculoskeletal conditions, would preclude him from any work. Similaly, the hearing loss would affect his ability to understand conversation when there is background noise present, but not preclude him from any work.
The post-traumatic stress disorder, or generalised anxiety disorder, would, in my opinion cause further, significant limitation, to work capacity. His ability to deal with the discomfort and altered vision would be adversely affected by the irritability due to the anxiety disorder. The difficulty he experiences with interpersonal relationships and his social withdrawal would further reduce his effectiveness as an employee in the administrative and clerical work for which he is experienced.
In my opinion the combination of accepted disabilities, in particular, the post-traumatic stress disorder and iridocyclitis and iritis, effectively preclude Mr Hill from work…
In my opinion Mr Hill is unable to work for eight hours a week or more solely due to his war caused conditions…
In my opinion there is no evidence of other, non-accepted, conditions which would preclude Mr Hill from undertaking remunerative employment or seeking remunerative employment…"
In March 1999 Dr Anthony Dinnen, consultant psychiatrist, reported on the Applicant and noted, that his impairment due to anxiety state "is greater than appears to be the case at first impression" and that his psychiatric illness "would significantly restrict him from working". Dr Dinnen stated:
"I doubt that he could work more than eight hours per week with this level of psychiatric impairment and I doubt very much that any specific treatment would make things much better".
A report furnished by Dr Prakash, an orthopaedic surgeon, in August 1998, related only to a muscular skeletal system assessment and is not otherwise germane to this decision.
It was submitted by counsel on behalf of the Applicant, that the medical evidence before the Tribunal is such as to support a finding, that the Applicant had and has no residual work capacity of eight or more hours. The Applicant as of the application date did not have any work capacity above and beyond the stipulated limit. In this regard the Respondent, noting that the task of the Tribunal is to consider and determine whether sections 24(1)(a), (b) and (c) are satisfied during the assessment period, that is up to the present time, made no further submission referable to section 24(1)(b).
Whilst the Tribunal is not bound by the findings of the June 1999 Tribunal, nevertheless on the basis of the above detailed evidence, there is not any reason to depart from the decisions agreed upon, and reached, as to the Applicant and his condition complying with the prerequisites of sections 24(1)(a) and 24(1)(b) of the Act. It is as to compliance or otherwise with section 24(1)(c) that this hearing is now primarily concerned.
section 24(1)(c) accepted disabilities, incapacity and last remunerative work or activity
submissions on behalf of the applicant
The Applicant contends that it does not matter, whether the last remunerative work undertaken be that with the Department of Defence or the dog breeding. The Tribunal however, is of like mind to that of the Federal Court and does not see the Applicant's dog breeding activity as constituting remunerative work within the meaning of section 24(1)(c) of the Act. Thus, the task before the Tribunal is to determine whether the accepted disabilities were the cause of the Applicant ceasing his work with the Department of Defence, that is, whether the retrenchment was one that was brought about by medical problems as opposed to something "that was simply there to be taken up and afford the veteran the benefit of early retirement".
The Applicant stated that he had been advised to retire by his general practitioner and that he should not then be working. At that time he was only 53 years of age and has said in his evidence, which, as already noted, was not the subject of a cross-examination, that he would have preferred to continue working to the normal retirement age of 65 years, this in order to obtain inter alia his full superannuation. At the time of the Applicant making his relevant application, he was only 60 years of age.
At the application date, the Applicant had not been working for the Department of Defence for well over seven years. He had been assessed at that time as sufficiently incapacitated to receive a service pension on the grounds of permanent incapacity. In 1993 the Tribunal was satisfied that he met the requirements of section 23 of the Act, the same except for the rate being equivalent to section 24. At that time he had been assessed by Dr Henke, the substance of whose report has been considered earlier in these reasons. Dr Henke indicated that the Applicant was one who would and could not expect re-training. At that time he was rated at the intermediate level, since then he has become more incapacitated.
It was submitted on behalf of the Applicant, that having been accepted by the Respondent as eligible for an above general rate pension, the only thing that has changed since that time is that his health has deteriorated. In 1993 a determination was made that the Applicant met the provisions of section 23 and the present Tribunal should not depart from this determination unless there be some clear and compelling reason to do so. It was submitted that there is no such reason because the evidence as to the nature of the work and as to why the Applicant ceased his engagement in such work has not changed. The Tribunal agrees with and accepts this submission made on behalf of the Applicant, namely that where a previous determination has been made by it on any equivalent or otherwise similar provision, that even be it not bound by such determination, it should not be departed from in the absence of clear and compelling reasons for so doing.
respondent's submissions
On behalf of the Respondent, Ms Henderson submitted that the Applicant in 1989 accepted a redundancy with a background as a clerical worker. The attention of the Tribunal was drawn to the determination made in 1993, that by reason of loss of capacity from ability to do a full time job to ability to work no more than 20 hours a week, the veteran was then suffering a loss. However, section 24(1)(c), consistent with the decision in Banovich v Repatriation Commission (1986) 69 ALR 395, requires consideration not only to be given to why the Applicant left his job with the Defence Department, but also why he did not thereafter do the type of work which he previously undertook. It was submitted, that the Tribunal being satisfied in 1993 that the Applicant had ceased to engage in a type of work in which he had previously engaged because his level of capacity had diminished, is now to consider whether if it is satisfied in respect of a further diminution of capacity and inability to even work for eight hours. It was submitted on behalf of the Respondent, that the Tribunal would not be satisfied that the Applicant had experienced any loss and that is a financial loss, as a result of that further diminution in capacity.
The issue then it was said, is as to whether the Tribunal is satisfied, that since the Applicant was assessed in 1993 as having a capacity to work of 20 hours a week, that the Applicant is a person who would still be likely at this stage to be working in the type of work that he was able to do in 1993. The application it was said failed on two bases, namely:
The Applicant's account of his own circumstances from 1989 onwards is consistent with him having made a decision even so he plainly still had a capacity to work, to withdraw permanently from the workforce at that stage. He still had 20 hours a week that he could do but rather than actually exploit that capacity the Applicant took himself off to Lawrence, not a place where one would have thought there would be much work for a man of his particular experience. It was noted that the Applicant did not fall within the provisions of section 24(2) of the Act, which would have relieved him of the need to be a person who actually engaged in remunerative work. The decision post-1989 was consistent with a decision to retire in total "not withstanding his then still quite substantial capacity for work". Thus the requirements of the "alone element" in section 24(1)(c) were not satisfied.
The Applicant has spent considerable time out of the workforce. At the date of his application in 1996, he had not been employed for seven years. This long gap, it was submitted, is an important factor, which would prevent a person from continuing to undertake remunerative work that had been taken in the past. This was further confirmation of the Applicant's life style choice in 1989 to withdraw entirely from work.
Overall, it was submitted that the Applicant did not satisfy the pre-work principles of section 24(1)(c) because he had suffered no loss by reason of the diminution of his capacity from 20 hours a week to eight hours a week. Further absent any actual job and absent any attempts under section 24(2)(b) to obtain such jobs, the Applicant did not demonstrate that he had sustained a loss for the purpose of section 24(1)(c).
decision
The Tribunal does not accept the submissions made by and on behalf of the Respondent. The Tribunal is satisfied that the evidence before it is consistent with the Applicant ceasing his employment in 1989 on account of his accepted disabilities alone. In 1993 a determination was made as to his entitlement to an intermediate pension and his capacity to work in the type of work in which he had been employed prior to his retirement was substantially further reduced. His activities in dog breeding and display are not the relevant activities for the purpose of this application. On the basis of the medical evidence, the Tribunal is satisfied that the Applicant is a person who was unable to engage in remunerative work at the application date beyond the statutory pre-requisite and that he did and does not exhibit a relevant capacity for work. It was not a matter of "a personal election" being made by him to cease his employment but a retirement solely because and on account of his accepted disabilities. The "long gap" between his retirement and making the subject application did not play a part in preventing him from continuing to undertake remunerative work, the like of which he had taken in the past. He did not withdraw from the workforce to benefit from any life style choice. The life style choice, namely one of experiencing measurable incapacities, was placed or imposed upon him.
The Tribunal is satisfied that the Applicant suffered a relevant loss by reason of the diminution of his capacity to undertake remunerative work from 20 hours a week to eight hours a week, this on account of the impact upon him of a deterioration in his accepted disabilities. The Applicant was increasingly unable to undertake the remunerative work that he was last doing and this on account of his accepted disabilities.
The Tribunal is satisfied that the Applicant accepted the offer of redundancy in 1989 only because his war-caused disabilities made it increasingly difficult for him to cope with the requirements of his position. This was the reason why the Applicant accepted the redundancy package. It was not probable that the Applicant, in the absence of his war-caused disabilities, would have been engaged in the type of work he undertook with the Department of Defence at the date of the subject pension application be it seven years later. The Tribunal is not satisfied that the Applicant would have retired from this type of work by the date of his application, absent his war-caused disabilities and not withstanding that he had not by then reached 65 years of age.
For the above reasons the decision under review is set aside, the matter remitted to the Respondent to determine the appropriate amount due to the Applicant, the earliest date of effect being 25 March 1996.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of R N J PURVIS QC, DEPUTY PRESIDENT
Signed:         .....................................................................................
  Associate
Date/s of Hearing  21 March 2001
Date of Decision  24 April 2001
Counsel for the Applicant        Mark Vincent
Counsel for Respondent         Rhonda Henderson