JENSEN and REPATRIATION COMMISSION
[2004] AATA 1189
•11 November 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1189
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2003/872
VETERANS' APPEALS DIVISION
Re: IAN PAUL JENSEN
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Miss E.A. Shanahan, Member
Date: 11 November 2004
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) E.A. Shanahan
Member
VETERANS' AFFAIRS – application for special rate of pension – alone test – work capability – loss of income – genuinely seeking remunerative work
Veterans’ Entitlements Act 1986 ss 9, 24, 28, 120(4)
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 101 FCR 50
Leane v Repatriation Commission [2004] FCAFC 83
Repatriation Commission v Hendy (2002) 76 ALD 47
Sheehy v Repatriation Commission (1996) 66 FCR 569
Re Eastern and Repatriation Commission (1987) 12 ALD 778
REASONS FOR DECISION
11 November 2004 Miss E.A. Shanahan, Member
1. This is an application by Ian Paul Jensen (the applicant) for review of a decision of the Repatriation Commission (the respondent) dated 4 February 2003, subsequently affirmed by the Veterans’ Review Board (VRB) on 26 May 2003. The respondent increased the applicant’s pension rate to 100 per cent of the general rate, but denied his claim for special rate.
2. The applicant was represented by Mr D. De Marchi, solicitor. The respondent was represented by Mr K. Rudge, an advocate with the Department of Veterans’ Affairs. The Tribunal received into evidence the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T1 to T14), which were assigned the marking Exhibit R1. In addition, the respondent tendered the following documents:
Report by Dr K. Byrne, psychologist, dated 17 February 2004 Exhibit R2
Report by Dr R. Horsley, physician, dated 1 March 2004 Exhibit R3
Clinical notes of Dr R. Dewani numbered 1 to 24 Exhibit R4
Clinical notes of Dr B. Treister, cardiologist, numbered 1 to 10 Exhibit R5
Broadmeadows Health Service clinical notes numbered 1 to 11 Exhibit R6
The applicant tendered the following documents:
Applicant’s statement dated 16 April 2004 Exhibit A1
Report by Mr G. Foenander, psychologist,
dated 15 December 2003 Exhibit A2
Copies of the applicant’s personal income
tax returns, and those of his company(Jenno Pty Ltd), for the years 1993 to 1997 Exhibit A3
BACKGROUND TO THE APPLICATION
3. The applicant was born on 7 June 1949. He served in the Australian Army (the army) from 1 October 1969 to 30 September 1971. He had operational service in Vietnam from 9 July 1970 to 8 July 1971.
4. The applicant receives a pension at 100 per cent of the general rate. The respondent has accepted that the following disabilities suffered by the applicant are war‑caused: alcohol dependence or alcohol abuse; bilateral sensorineural hearing loss; gastro‑oesophageal reflux disease; solar keratosis and asthma.
5. Prior to the applicant's service in the army, he worked for the Commonwealth Bank and following his discharge he returned to the Commonwealth Bank. He rose through the ranks, to the level of bank manager at the West Preston Branch and then at the Eltham Branch. After 27 years of service with the Commonwealth Bank, he accepted a redundancy package of $300,000 in 1994. His wife had operated an Australia Post agency since 1991 and he joined her in this enterprise, using some of his redundancy money to purchase an adjoining shop for the purpose of selling cards, stationery and gifts (the business venture). The business venture was unsuccessful as the applicant claimed he was not contributing his share to the running of the business. The business venture was sold at the end of 1997.
6. The applicant claimed that his work performance while an officer of the Commonwealth Bank and while in the business venture was inferior. He said this inferior work performance was due solely to his accepted disability of alcohol abuse. He has not worked since early 1998. The applicant is now 55 years old.
7. The respondent rejected the applicant’s claim for the special rate of pension. On 3 July 2001 the applicant applied to the VRB for review of the respondent's decision. On 26 May 2003 the VRB affirmed the respondent's decision, finding that the applicant did not satisfy s 24(1)(b) of the Veterans’ Entitlements Act 1986 (the Act) as his war‑caused disabilities alone, and particularly his alcohol abuse, had not rendered him incapable of working more than eight hours per week. The VRB found that the business venture did not constitute remunerative employment in the terms required by the Act.
8. On 14 August 2003 the applicant sought review of the VRB decision by the Tribunal.
ISSUES BEFORE THE TRIBUNAL
9. The issues before the Tribunal are: whether the applicant, in both his claimed areas of remunerative work, ceased such employment solely because of his accepted disabilities; whether the applicant was, at the time of his claim, capable of working for eight hours or more per week; whether the applicant, by virtue of incapacity due to his war‑caused disease alone, is suffering a loss of salary or wages; and whether he has been genuinely seeking work since 1998, particularly during the assessment period which commenced on 29 January 2001.
EVIDENCE BEFORE THE TRIBUNAL
Mr Jensen
10. The applicant adopted his statement (Exhibit A1) as being true and correct. He said that prior to his service, he had worked for two years at the Commonwealth Bank and he returned to this employment after his army service. He recommenced as a general clerk and then worked as an auditor, an accountant and for the last five years as a bank manager. While in the Audit Division of the Commonwealth Bank, he was required to travel frequently, staying overnight in hotels. He said this allowed him to continue his excessive alcohol use, which dated from his Vietnam service. The applicant, once appointed as a manager, began to have problems with the regional manager. He identified the major problem as being unable to take directions from the regional manager. He said these problems were due to different attitudes regarding bank policy, his drinking and time spent away from the bank. This had led to disciplinary retraining at the bank's head office. The applicant described his personality as "aggressive…but I was getting worse with the more I drank…" (trans p4).
11. Having retired from the Bank, the applicant joined his wife in an Australia Post agency with cards and gifts adjoining. The applicant admitted that he had been aggressive toward customers and lacked motivation to perform in the business venture. His wife had to do the bookkeeping as he neglected this area, which had initially been his responsibility. The applicant said that in 1998 he had earned $6466 from the business venture and that this had been drawn as a wage. Since the sale of the business venture his wife has supported them both.
12. While Mr Foenander (Exhibit A2) and Dr Byrne (Exhibit R2) had suggested in their reports that the applicant could work as a bookkeeper, the applicant entirely disagreed.
13. The applicant has an accepted disability of asthma and when questioned by Mr De Marchi as to its current severity, the applicant stated that there had been a dramatic improvement in his symptoms since he commenced using a steroid inhaler.
14. In cross‑examination, the applicant detailed his various jobs at the Commonwealth Bank from 1971 onwards. He expanded on his evidence of his clashes with the regional manager. The applicant said he disagreed with the banking policy, which he saw as favouring rural clients over city business owners. The applicant identified this policy direction as "…a major contributing factor" to his clash with the regional director (trans p15). Despite this disagreement with respect to the bank policy, the applicant said "…I could have easily…just stayed there and plodded along" (trans p16), but he did not do so because of the opportunity, offered by the redundancy package, to join his wife's existing business.
15. The applicant agreed that Dr Byrne's report of his comments about the business venture was accurate, "She was running it, and I wanted to do it my way, and it just wasn't going to be. I didn't pull my weight" (trans p18). The applicant also agreed he had seen his role in the business venture as an overarching manager (trans p19).
16. The Tribunal asked the applicant what effect his recall to head office had on his decision to accept the offered redundancy package. He said his recall to head office had influenced his decision as he had had two code of conduct warnings. These had addressed his conduct with clients, but the major issue was the existing bank policy, with which he disagreed (trans p24).
17. Under re‑examination by Mr De Marchi, the applicant said his alcohol abuse had impacted to a major degree on his decision not to accept the bank policy (trans p25). However, he had "…no doubt if he wanted to stay he could have stayed" (trans p26).
Mr Foenander
18. Mr Foenander provided a detailed report of his assessment of the applicant using Neuropsychological Screening Testing, according to the Methodology for Screening and Assessing for Neuropsychological Impairment (Chapter 12, Handbook of Psychological Assessment, Groth‑Marnat, 4th Edition, 2003, John Wiley & Sons). He did not take a history from the applicant. Instead he relied on the reports by Dr Byrne, Dr Cronin and Dr N. Rose, psychiatrist, for the applicant’s history and their opinions. The neuropsychological testing was extensive and showed the applicant to be of average intelligence, to be experiencing cognitive difficulties with respect to a reduction in intellectual functioning, marginal difficulties with reference to memory and difficulties with high cognitive functions or higher exceeding functions. The latter testing dealt with a person's ability to effectively regulate and direct self‑behaviour, including volition, planning and organisation, purposive action, and effective performance. In addition, Mr Foenander measured the applicant’s level of emotional and social functioning, and opined that all of these tests showed that the applicant’s profile matched that of patients with alcohol abuse or dependence, and of someone suffering from a mood disorder as well.
19. Mr De Marchi pointed out that Dr Rose and Dr Cronin had been of the opinion that there are pre‑disposing, constitutional factors in the applicant’s makeup which had contributed to his work‑related difficulties. However, Mr Foenander stated that he had not found any such constitutional factors in his testing. Mr Foenander regarded the applicant’s prognosis for working as being very poor and that, while he may return to work successfully, the applicant was likely to de‑compensate under some form of stress in the workplace.
20. Under cross‑examination, Mr Foenander agreed that the applicant may have some work capacity but, in light of his continued alcohol abuse, a return to work was likely to be unsuccessful. Mr Foenander described the applicant as being chronically depressed, but said the applicant did not meet the criteria for a major depressive illness in the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition. In his opinion the applicant’s longstanding underlying depressed mood was associated with the alcohol abuse.
21. Under re‑examination, Mr De Marchi raised the question of the substantial cause of the applicant’s alcohol intake and his current ability or work capacity. Mr Foenander said that the applicant’s alcohol intake was the substantial reason why he was not currently employed.
22. As the question of substantial cause had not been raised in either examination‑in‑chief or cross‑examination, Mr Rudge was allowed to cross-examine Mr Foenander further. He asked Mr Foenander whether, on the basis of testing, the applicant would be able to perform clerical duties at a lower level for two hours a day. Mr Foenander said that the applicant would be able to perform such work, but found it unlikely that the applicant could sustain that level of work.
23. The Tribunal asked Mr Foenander if, in his opinion, a 27-year long high intake of alcohol would affect an individual's cognitive abilities based on organic brain change. Mr Foenander replied that this was what his neuropsychological testing had shown.
Documentary Evidence
Dr Cronin (T14)
24. Dr Cronin prepared a report dated 25 June 2002 and concentrates to a great extent on the applicant's Vietnam war experiences. The applicant had attended Dr Cronin with his daughter, who substantiated the applicant’s history. Dr Cronin had diagnosed alcohol dependence, dating from the applicant’s service in Vietnam, and while the applicant had some symptoms of anxiety, these were insufficient to make a diagnosis of anxiety disorder or post traumatic stress disorder (PTSD). Dr Cronin thought the anxiety symptoms were likely to be secondary to the alcohol dependence, and possibly have a constitutional basis. Dr Cronin was also of the opinion that the applicant’s capacity to work and the difficulties he had experienced while working arose through a combination of his alcohol dependence and constitutional factors.
Dr Rose
25. Dr Rose saw the applicant on 13 March 2001 at the request of the Department of Veterans' Affairs and produced a report dated 19 March 2001 (Exhibit R1, p88). He obtained a history similar to the evidence given by the applicant before the Tribunal. Dr Rose concluded that the applicant suffered from chronic alcohol abuse which commenced during his Vietnam service, but had no psychiatric disorder, such as anxiety or PTSD. Dr Rose opined that the applicant's alcohol abuse was probably not contributing to his not working, but arose from a characterological problem, a personality disorder exhibiting dependence.
Dr Byrne
26. Dr Byrne provided a lengthy report dated 27 February 2004 at the request of the Department of Veterans' Affairs (Exhibit R2). This report dealt with the applicant’s Vietnam service and his post‑service work history. Dr Byrne related the history given to him, which was in accordance with the applicant’s evidence before the Tribunal. In addition, he reviewed all past medical reports. Dr Byrne agreed the applicant suffered from alcohol dependence which had been longstanding. Despite this longstanding condition, he had worked successfully in the Commonwealth Bank for well over 20 years and that the most likely reason for him ceasing work in the business venture was the ongoing conflict between the applicant and his wife. Dr Byrne was of the opinion that the applicant could work up to 20 hours a week, as a self‑employed bookkeeper.
Dr Horsley
27. Dr Horsley saw the applicant on one occasion and also reviewed all the previous medical reports. Dr Horsley assessed the applicant as having the capacity to work more than 20 hours per week. She declined to comment on the reasons he ceased work, although she had interpreted his cessation of employment at the Commonwealth Bank and the business venture as relating to interpersonal difficulties with other bank officers and then with his wife. She advised that this question should be referred to a psychiatrist. She found the applicant poorly motivated to return to work, and given that he had not been a member of the workforce for 6 years, said he would require retraining to upgrade his skills.
Dr Treister
28. Dr Treister saw the applicant in 1992 at the request of his general practitioner, following the applicant’s development of chest pain. Dr Treister found no evidence of any coronary ischaemic heart disease. In the history he obtained Dr Treister does, however, note that alcohol is not a problem and that the applicant does not smoke.
Clinical Notes of Dr Dewani (Exhibit R4)
29. Dr Dewani's clinical notes cover the period from November 1983 to December 2003. The attendances relate predominantly to control of the applicant’s hypertension and to various other minor medical conditions, such as conjunctivitis. The notes also contain the results of upper gastrointestinal endoscopy which led to the diagnosis of grade III reflux oesophagitis associated with a hiatus hernia.
Dr J. Hoffman – Rehabilitative Physician
30. Dr Hoffman assessed the applicant in March 2003 with respect to his capacity to work. She assessed the applicant as being unable to work because of his alcohol abuse. In her opinion, while counselling may be useful in order to improve his quality of life, she did not believe this would render him able to work.
THE RELEVANT LEGISLATION
31. Section 24 of the Act provides for a 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.
32. Section 28 of the Act is relevant in determining a veteran’s ability to undertake remunerative work:
28 In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(a)the vocational, trade and professional skills, qualifications and experience of the veteran;
(b)the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c)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 in paragraph (b).
SUBMISSIONS
33. Mr De Marchi submitted that on the balance of probabilities it was clear that the applicant met the requirements of s 24(1)(b) and was prevented from being employed for any aggregate period of eight or more hours per week. This incapacity was due to his alcohol abuse. All the medical evidence had supported that diagnosis and it is an accepted disability. Mr De Marchi submitted that Mr Foenander's evidence, based on his neuropsychological testing indicating a cognitive defect in the applicant, should be preferred to Dr Byrne’s evidence. Mr De Marchi further submitted that the applicant’s alcohol abuse was the sole cause of his cessation of working at the Bank and the business venture with his wife. Thus, s 24(1)(c) of the Act was also satisfied.
34. The respondent relied upon Dr Byrne's reports and submitted that these should be favoured over that of Mr Foenander, as Mr Foenander relied entirely on neuropsychological testing and had not even taken a history from the applicant. Dr Byrne had assessed the applicant as capable of working 20 hours per week. Dr Rose, it was submitted, had attributed the applicant’s cessation of working to a combination of his heavy drinking and a characterological problem. Similarly, Dr Cronin had identified the work difficulties as arising from a combination of alcohol dependence and constitutional factors. The respondent submitted that, on the basis of the psychiatric and psychological reports, and applying the balance of probabilities test, a work capacity remained and the applicant was capable of working for more than 8 hours per week. Mr Foenander, it was submitted, had agreed that such work capacity existed, although he had added the rider that it may not be successful should the applicant decompensate at a later time.
35. The respondent submitted that s 24(1)(b) of the Act, as amplified by s 28, looks at any remunerative activity and the applicant’s skills, qualifications and experience. As a corollary, the respondent submitted that lower level clerical work, which would be less stressful, would be within the applicant’s work capacity. The respondent relied primarily upon the alone test and referred the Tribunal to the decision of the Full Court of the Federal Court in Flentjar v Repatriation Commission (1997) 48 ALD 1, where the Court proposed a series of four questions with respect to s 24 of the Act. These were
(a)What was the remunerative work that the veteran was undertaking?
(b)Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
(c)Is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
(d)Is the veteran, by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?
36. With respect to question (a) above, the respondent submitted that the applicant’s work with the Commonwealth Bank was well‑documented, and obviously, for remuneration. However, the respondent submitted that the applicant’s work in the business venture was not relevant remunerative work. The applicant’s evidence had indicated that his input and activity in the business venture was negligible and that his wife did all the work. When he was in attendance he would take cash from the cash register and neglected his role as bookkeeper. The respondent submitted that this was not successful or effective undertaking of work, as addressed by the Full Court of the Federal Court in Sheehy v Repatriation Commission (1996) 66 FCR 569. The respondent submitted that, for the purposes of s 24(1)(c) of the Act, the relevant work was the work the applicant did at the Commonwealth Bank. The respondent submitted that, on the second question raised in Flentjar, the medical evidence, on the balance of probabilities, was that the applicant was able to work for 8 hours or more per week.
37. On the third question raised in Flentjar, the respondent submitted that there were other factors preventing the veteran from continuing to undertake that work and relied on the Full Court of the Federal Court decision in Repatriation Commission v Hendy (2002) 76 ALD 47 (at p 37), where their Honours said:
…The language of s 24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the veteran from working. The decision-maker is required to take into account any factor that plays a part or contributes to a veteran’s being prevented from continuing to engage in remunerative work.
The respondent also relied on Forbes v Repatriation Commission (2000) 101 FCR 50, which it said is authority for the proposition that if a non‑accepted condition or factor in combination with the accepted conditions prevent work, then that is enough to disqualify a veteran from the special rate.
38. The respondent submitted that there were several factors which contributed to the applicant leaving the workforce. The first of these was the differences he had with the regional manager of the Commonwealth Bank over the bank's policy and his conduct. The applicant said in his evidence that he could have continued to work if he had accepted the direction of the bank, to follow policy. The respondent submitted that, if the work in the business venture was to be classified as remunerative work, the applicant's attitude to being in business with his wife was a contributory reason, along with his alcohol abuse, leading to cessation of his employment in the business venture. The respondent submitted that the applicant had expected to be in a managerial role with his wife doing the majority of the work.
39. The respondent submitted that the applicant’s 6 years out of the workforce, if one relies on the business venture, or 10 years out of the workforce if the Commonwealth Bank employment is taken as his last remunerative work, is a barrier in itself to returning to work. Dr Horsley had reported that the applicant would need to upgrade his skills and retrain in order to re‑enter the workforce. On the history she obtained the applicant was poorly motivated, a factor which would impact on a return to work. The respondent argued that the lack of motivation, the need to upgrade his skills and the need to retrain were factors impacting on the alone test.
40. While the ameliorating clause of s 24(2)(b) of the Act, regarding substantial cause, had not been argued at length by the applicant, the respondent submitted that, based on the authority of Forbes and Leane v Repatriation Commission [2004] FCAFC 83, there was evidence before the Tribunal that the applicant had sought to engage in remunerative work since early 1998. The respondent submitted that there was no evidence of the applicant genuinely seeking to engage in remunerative work during the assessment period from 29 January 2001 to the present day.
41. In reply the applicant submitted that Flentjar was irrelevant because it related to a veteran aged 77.
APPLICATION OF THE LEGISLATION TO THE EVIDENCE BEFORE THE
TRIBUNAL
42. Section 120(4) of the Act requires the Tribunal to decide all relevant matters to its reasonable satisfaction. In his claim for special rate of pension, the applicant satisfies s 24(1)(aa), (a) and (b), having lodged a claim under s 15 for an increase in the rate of pension that he was receiving, being 52 years of age at the time of his claim and his degree of incapacity due to his war‑caused injury having been assessed at 100 per cent. The Tribunal has no evidence before it to suggest that any of the applicant’s war‑caused disabilities other than alcohol abuse would potentially contribute to his incapacity for work. The issue before the Tribunal is whether the applicant satisfies s 24(1)(b) and s 24(1)(c) of the Act, and whether the ameliorative effect of s 24(2)(b) is attracted.
43. The Tribunal notes Dr Byrne, Dr Horsley and Mr Foenander were of the opinion that the applicant could work an aggregate of more than 8 hours per week, with Dr Byrne and Dr Horsley nominating 20 hours per week. Mr Foenander's estimate was subject to his concern that the applicant, having re‑commenced work, would decompensate and thus a work trial would most probably be unsuccessful. Dr Hoffman was adamant that the applicant had no work capacity whatsoever. Dr Cronin did not directly address this question, but the Tribunal’s interpretation of his report is that he probably felt the applicant did not have any work capacity. Dr Rose did not comment on the applicant’s work capacity.
44. While these opinions are somewhat divided, the more recent reports by Dr Byrne, Dr Horsley and Mr Foenander are taken into account. However, the Tribunal does not rely on these reports with regard to the degree of the applicant’s work capacity. The major consideration for the Tribunal is the application of the alone test under s 24(1)(b) and s 24(1)(c) of the Act. The Tribunal has taken into account all the evidence before it, but relies primarily on the applicant’s oral evidence. As there appears to be some disagreement as to what was the applicant’s last remunerative work, the Tribunal has considered both his employment at the Commonwealth Bank, which ceased in 1994, and his employment in the business venture with his wife, which ceased in early 1998. Prior to his cessation of work with the Commonwealth Bank, the applicant identified the major problem as his inability to take directions from the regional manager. He stated the causes of this clash were due to the different outlook on bank policy between himself and the regional manager, his own personality and, most probably, his drinking (trans pp3‑4). Despite this disagreement on bank policy, the applicant said "I could have easily…just stayed there and plodded along" (trans p16), but he did not do so because of the opportunity to join his wife's existing business. The applicant’s evidence is supported by the histories he gave to Dr Byrne and Dr Horsley.
45. In discussing the failure of the business venture with his wife, the applicant agreed that Dr Byrne's report of his comments was accurate — "She was running it, and I wanted to do it my way, and it just wasn't going to be. I didn't pull my weight" (trans p18). In cross‑examination the applicant agreed he had seen his role as an overarching manager. The applicant has himself identified other factors leading to his cessation of remunerative work at the Commonwealth Bank and in the business venture.
46. The respondent submitted that the applicant’s work in the business venture had not been remunerative work. While the Tribunal is not required to consider this submission, having already decided that the applicant does not meet the requirements of the alone test, the Tribunal has looked at the evidence before it and finds it confusing in that the applicant stated in evidence that he would take money from the cash register when he needed it and was not in receipt of a wage, but declared that his last income tax return (Exhibit A3) reported an income of $6466, derived from director's fees, etc, is similar to his income for 1993/1994 and 1998/1999. The applicant had described this sum of $6466 as a wage. The Tribunal notes that the applicant and his wife conducted their business venture as a company, Jenno Pty Ltd.
47. The applicant submitted that he attracted the ameliorative provisions of s 24(2)(b) of the Act, which is attracted if the applicant
…satisfies the Commission that he or she has been genuinely seeking to engage 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… .
There is no evidence before the Tribunal that the applicant sought employment, whether genuine or not, at any time after early 1998. While not essential to the decision, the Tribunal finds that s 24(2)(b) of the Act is not attracted.
48. For the reasons given above, the Tribunal affirms the decision under review.
I certify that the forty‑eight [48] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E.A. Shanahan, Member
(sgd) Catherine Thomas
ClerkDate of Hearing: 16 August 2004
Date of Decision: 11 November 2004
Advocate for applicant: Mr D. De Marchi
Solicitor for applicant: De Marchi & Associates
Advocate for respondent: Mr K. RudgeSolicitor for respondent: Advocacy Section, Department of Veterans’ Affairs
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