Jones and Repatriation Commission
[2005] AATA 169
•25 February 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 169
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2003/962
VETERANS' APPEALS DIVISION ) Re PETER ROMAN JONES Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date25 February 2005
PlaceMelbourne
Decision The Tribunal sets aside the decision under review and in substitution IT IS DECIDED that at all relevant times the applicant has been entitled to pension at the special rate. (Sgd) John Handley
Senior Member
VETERANS’ AFFAIRS – special rate pension ‑ period of time applicant out of the workforce prior to date of claim – satisfaction of the “alone” test under section 24(1)(c) of the Veterans’ Entitlements Act 1986 – labour market forces – successfully and effectively undertaken seasonal work – decision set aside
Veterans’ Entitlements Act 1986(Cth) s24(1)(a) (b) and (c)
Sheehy v Repatriation Commission (1996) 23 AAR 126
Repatriation Commission v Hendy [2002] FCFCA 424
REASONS FOR DECISION
25 February 2005 Mr John Handley, Senior Member 1. The applicant applies to review a decision of the Veterans’ Review Board (“the VRB”) made on 18 August 2003. The VRB then decided to affirm a decision previously made by the respondent to continue payment of pension at 100 per cent of the general rate.
2. Mr Jones was born on 15 May 1944 and is presently 60 years of age. He was a member of the Australian Army between 1962 and 1968 and served in Vietnam between September 1966 and March 1967. He suffered a number of injuries which have been accepted as war-caused namely, gun shot wound to left buttock and left shoulder, lumbar cervical spondylosis, chronic right ankle sprain and osteoarthrosis, sensori neural hearing loss, post traumatic stress disorder, diabetes and alcohol abuse.
3. The hearing of the application commenced in Bendigo on 9 December 2004. Mr Liefman appeared on behalf of Mr Jones and Mr Douglass appeared on behalf of the respondent. Mr Jones gave evidence and the application was adjourned, part-heard, and resumed in Melbourne on 22 February 2005 where evidence was then heard from Dr Percival. Mr Moore of Counsel then appeared for Mr Jones.
4. At the commencement of the hearing, Mr Douglass on behalf of the respondent, conceded that the applicant satisfied the provisions of s24(1)(a) and (b) of the Veterans’ Entitlements Act 1986 (“the Act”). It was submitted at the outset that the period of time that the applicant had been out of the work force prior to the date of the claim prohibited satisfaction of s24(1)(c) of the Act.
5. Mr Liefman submitted that despite an opinion expressed by Dr Horsley, who provided a report at the request of the respondent, that the applicant had been totally incapacitated by reason of his diabetes from 1998, it was the applicant’s case that he had effectively been totally incapacitated for all employment by reason of war-caused injuries, alone, from 1967. It was submitted that the applicant would assert that his diabetes was not his primary and incapacitating disability and that insufficient weight was given by Dr Horsley to the other accepted disabilities mainly, post-traumatic stress disorder (“PTSD”) and his ankle and foot injuries. It was submitted that Dr Percival would give evidence – consistent with his reports – that the war-caused injuries alone were responsible for the applicant’s total incapacity.
6. It was noted by Mr Liefman that the respondent would also assert that s24(2)(a)(i) has not been satisfied. He submitted that despite the applicant temporarily relocating to Queensland in the mid 1980’s, his war-caused injuries alone, were responsible for total incapacity.
peter roman jones
7. Mr Jones said that he was born in Melbourne and lived in a number of different suburbs until he completed Year 10 at school. He first obtained employment as a storeman and then with the Post-Master General’s Department delivering telegrams.
8. In 1962 he enlisted because he wanted a career in the Army and then entered into a contract to be of service for six years. He was trained initially at Kapooka and joined the 102 Field Battery at Holdsworthy in New South Wales. He was first posted overseas to Malaya as a Battery Surveyor for approximately two years but returned to Australia and served at Holdsworthy. Eventually he was posted overseas to Vietnam and was attached to the 103 Field Battery.
9. Mr Jones said that on his first patrol in Vietnam he remembered being tense. He was alerted to the presence of enemy nearby, he heard firing of bullets and his party confronted booby traps. He said 23 persons were wounded and a helicopter called in to evacuate wounded persons became disabled when it struck a number of trees. He was then required to assist in the rescue of wounded persons. On another occasion he and his party were confronted with an ambush and two persons were wounded, one of whom later died. Mr Jones said that he observed a number of dead and wounded Viet Cong persons during service and on another occasion he was wounded when he was shot and a bullet lodged in his left shoulder and left buttock. On the occasion that he was shot, Mr Jones witnessed a colleague killed by a booby trap.
10. Mr Jones was admitted to hospital for treatment of his wounds and removal of shrapnel. He was evacuated from Vung Tau to Australia by Hercules aircraft. He remained enlisted for another nine or ten months until 1968 when his contract expired. He was not reinterviewed for re-enlistment and elected to resign because there was a “risk” that if he had re-enlisted he would be returned to Vietnam. Mr Jones then had no wish or intention of returning to Vietnam. He said that he “had near misses and didn’t want to be exposed to that again”.
11. Mr Jones then joined the Victorian Police Force but after a number of years and in apparent unhappiness with the rate of salary, joined Ready Mix in December 1972. After two or three years of full time employment he left after he had “harsh words” with a production manager. Mr Jones said that prior to enlistment he had not previously argued with other persons. He then entered into a partnership with another person in an aquarium business but as a result of frequent arguments the partnership dissolved after approximately 12 months. He was then employed as a sales representative for a pet accessory company and then found employment selling motor car tyres and motor cars. Mr Jones said that he then realised that he was frequently arguing with persons and he felt helpless.
12. Mr Jones later obtained employment with Lamson Paragon as a sales person. He said he was able to hold down that job because he did not have to integrate with other persons and there were far less arguments. Eventually he left the employment after he abused a sales manager during a sales conference. Mr Jones said that at that stage he formed the belief that he was unable to work with, or tolerate, other persons. He then found employment selling photocopiers but that was temporary. At that time – the early 1980’s – he had not attended psychiatrists or counsellors nor engaged in any form of therapy.
13. Mr Jones obtained some casual work as a taxi driver because he was unable to find full time work. He recalled then that he was depressed and had severe left leg pain. He recalled that about that time he was having sensations in his leg which he said was the equivalent of an “electric shock”. He said his leg and knee would give way and he would frequently fall. He consulted a doctor who located other shrapnel remnants but was advised against surgical removal because of the risk of damage to his sciatic nerve.
14. In the early 1980’s Mr Jones was unable to find full time work and suffered a number of physical and psychiatric illnesses. He said his depression and his alcohol consumption caused his marriage to breakdown. His wife left and moved to Queensland. He recalled that his wife complained that it was uncharacteristic for him not to be in full time employment and she was sensitive to his alcohol abuse because of a history of alcoholism in her family. In an attempt to restore his marriage, Mr Jones sold the family home in Melbourne and moved to Queensland in an attempt to reconcile his relationship. However he was unable to cease drinking and he and his wife resumed their arguments.
15. Mr Jones said that he was unable to find work in Queensland despite extensive enquiries through the Commonwealth Employment Service (“CES”) and personal attendances at workplaces. He said he did not ever obtain an interview and the CES did not ever refer him to a job. After approximately 12 months he returned to Victoria and took up residence in Mooroopna in the Goulburn Valley. He was placed in seasonal work through the CES with the Ardmona cannery as a static guard. That employment lasted for about six to eight weeks in the 1983 season. He also obtained some casual work as a guard on two nights per week for a few hours each night relieving a full time guard. At the conclusion of the 1983 season, Mr Jones attempted fruit picking but his leg gave way when working from a ladder and he fell. He later obtained some employment in following seasons with the Heinz tomato plant at Girgarre, grading tomatoes, and as a weighbridge attendant. At the conclusion of each fruit season, Mr Jones was paid unemployment benefits.
16. That pattern of employment/unemployment continued until the early 1990’s when one of the applicant’s eldest children asked him to return to Queensland. Mr Jones did return but again was unable to find work. By that time he was using a walking stick on a full time basis and on reflection he thought that he was discriminated against by potential employers by his use of a walking stick. He returned to Victoria in 1996 but all seasonal work had then been taken by others. Mr Jones said that he reapplied through the CES but unsuccessfully. He also approached individual businesses in the Kyabram district, including an approach to a local supermarket offering to stack shelves.
17. Shortly after returning to Victoria and being unsuccessful in obtaining work, Mr Jones applied to the respondent for service pension. He was able to demonstrate that he was incapacitated and service pension has subsequently been paid. From that time Mr Jones has not sought employment.
18. Thereafter he did assist in relief milking in exchange for provision of free accommodation in a farmer’s cottage on a dairy farm in the northern Goulburn Valley. However Mr Jones noted that he was becoming more reliant upon his walking stick and was suffering pain in his leg on a frequent basis.
19. Mr Jones said that he recalled the examination with Dr Horsley. He recalled that she tended to place a great deal of emphasis upon his diabetes. He said that in 1998 when diabetes was diagnosed, he was then suffering pain in both feet and was excessively drinking fluids. He was diagnosed by his LMO (Dr Haries) with peripheral neuropathy, retinopathy and Charcots arthropathy of the right ankle. He had been told that those three conditions were a consequence of his diabetes. However from 1998 Mr Jones said that there has been “no change” in his overall health. He said that he continues to wear the same reading glasses that were prescribed to him in the 1970’s. He had laser treatment to his eyes to arrest haemorrhaging but does not have any visual disturbance. He said he has an ulcer at the bottom of his right foot which is a consequence of diabetes and he attends a podiatrist from time to time. He has blood sugar tests on a daily basis and maintains a diet to assist in the control of his diabetes and attempts some exercise.
20. Mr Jones said that he relies upon his walking stick because of his left leg pain and discomfort, which he associates with the presence of shrapnel. He said that he disagrees with the opinion of Dr Horsley because his inability to obtain employment, and be employed, is because of the presence of the shrapnel causing pain and electric type shocks which causes his knee to collapse. He said that he also suffers from PTSD which affects his mental state and contributes to his alcohol dependence. He said that he suffers from aggression and nightmares. Initially the nightmares were of him being involved in an ambush but in recent times his dreams comprise images of him killing people. He said he suffers these nightmares on three or four occasions per week.
21. In cross-examination Mr Jones said that he left Lamson Paragon in March 1980 and not in December 1980 as was found by the VRB. He said he achieved high sales awards but left after he abused a sales manager. He was adamant that he did not leave because of a poor sales record.
22. At Ready Mix, Mr Jones said that he had good working relationships with other persons. Eventually he had a dispute with a manager during a strike and “words were exchanged”. At Ready Mix his duties comprised weighing vehicles, taking samples, undertaking tests of asphalt composition and attending quarries.
23. After his marriage broke down Mr Jones moved to Queensland in an attempt to reconcile with his wife and understood that he would then be required to obtain work as a condition of reconciliation. However attempts to find work were unsuccessful and he eventually returned to Victoria.
24. Mr Jones said the work at the Ardmona cannery as a static guard involved checking persons and their vehicles as they entered and left the factory. He said that the work allowed him to rest and remain seated for lengthy periods. After he left the cannery, and before he commenced tomato grading in the following season, he moved to St Arnaud with the intention of obtaining employment but was unsuccessful.
25. When he assisted a dairy farmer with relief milking, Mr Jones described the duties as bringing cows into the dairy, opening gates and removing electric fences. He said he performed this work between 1984 and 1993.
26. Mr Jones was then taken to the transcript of the VRB proceedings where a reference is made to him having a weeping ulcer by reason of his diabetes. Mr Jones agreed that the description would suggest a severe injury however he said that he manages the condition by applying a dressing each day. He was also then asked to comment on the effects of the Charcots syndrome. He said that it does cause some discomfort in his right ankle and foot but he is able to walk with caution. He said he regarded his “prime problems” as his left leg and his PTSD.
27. Mr Jones agreed that by reason of him now receiving a service pension the amount of income he is able to earn is limited. Nonetheless he said he would prefer to be in employment rather than reliant upon a pension. He said that he ceased employment in 1980 when he was last engaged in full time permanent work. He said that he had then become alcohol dependent and was suicidal.
28. The application resumed in Melbourne on 21 February 2005. Dr Percival only gave evidence at the request of the applicant. Whilst the respondent did not call any evidence, no issue was taken by the applicant. It was agreed between the parties – and I also agree – that the principle issue in this application is the impact upon incapacity by the applicant’s PTSD and to this extent, evidence was only needed from Dr Percival.
christopher percival
29. Dr Percival is a consultant psychiatrist who has been in practice for 35 years. He provided two reports dated 25 March 1999 and 10 May 2004 following consultations with the applicant on 16 March 1999 and 10 May 2004. Dr Percival saw Mr Jones on the first occasion at the request of the respondent and the report is found at T12.
30. In his second report, Dr Percival referred to his observations of and consultation with the applicant in 1999 and noted that at that time he regarded Mr Jones to be a “significantly unwell man”. In evidence Dr Percival said that at the consultation in 2004 he regarded Mr Jones as continuing to be unwell, in fact he thought he was “more significantly unwell”. He noted that in 1999 he had thought that if the applicant had some treatment and was engaged in selective employment, where he was isolated from other persons that his condition might improve. He noted that the applicant had not had treatment and had not been engaged in any employment.
31. Dr Percival thought that the PTSD had an overwhelming affect upon the applicant’s life. Whilst acknowledging that it was not possible to say whether the applicant would have been engaged in employment and had a meaningful marriage without PTSD, it was his opinion that the applicant’s behaviour, his language and his form of communication with persons were all consistent with the PTSD suffered, thereby contributing to an unstable employment history and his subsequent dismissals from employment. He thought that the applicant was unsuccessful in his job applications, despite him presenting with a walking stick, because persons interviewing Mr Jones would have detected his irritability and mood and would not have, in those circumstances, engaged him.
32. On balance Dr Percival was of the opinion that the applicant was totally incapacitated by reason of his PTSD, alone. He thought that the applicant had been totally incapacitated from the time that he last worked in the Goulburn Valley. He was aware that the applicant had been engaged in seasonal employment and was aware also – by reason of his domicile in Shepparton – that seasonal work is generally available during fruit and vegetable processing at the end of each year and in the first two or three months of each succeeding year, where persons are re-engaged on a seasonal basis. It was his opinion that the applicant’s psychiatric illness and his presentation to potential employers with a walking stick would have caused him not to have been re-engaged. Dr Percival said that he is aware that fit, 60 year old male persons would, and do, obtain seasonal work.
33. Dr Percival was then taken to extracts from his report of 10 May 2004 where at page 4 the following paragraph appears.
It is my view therefore that the reasons underlying your client’s exit from the workforce are complex, but that ultimately they all relate to his war-related disabilities, since, even if one were to accept the breakdown of his marriage as the entire cause for him no longer working, a concept that I do not personally accept, then that marital breakdown itself was in my view unquestionably a direct consequence of the impact on the marriage of the veteran’s post traumatic stress disorder and alcohol abuse.
Dr Percival said that PTSD was, in the context of Mr Jones, an “all pervasive phenomena” and his life had been dictated by it.
34. Later, in that report, Dr Percival also commented as follows:
However I believe that it is important to understand that, just as the veteran’s post traumatic stress disorder and alcohol abuse gravely handicapped him in the work situation, to such an extent that he eventually ceased working on a full-time basis, so too will those phenomena handicap the veteran in finding, and obtaining, further employment. My own impression of the veteran’s attempts however is that, rather than being inadequately motivated to find work, he has a somewhat unrealistic expectation that, if he can find employment that is possible for him to undertake from the point of view of his physical disabilities, then he can accept that appointment and function well within it, whereas the reality would appear to be that, were he to be fortunate enough to find such employment, then almost certainly he would eventually run into exactly the same difficulties that have marked his entire working life, that is problems arising from the irritability and intolerance associated with his post traumatic stress disorder.
As commented above the veteran shows a noticeable tendency to deny the degree of his psychiatric disability, a tendency common to most, if not all, veterans suffering from untreated post traumatic stress disorder, and it would be my view that, insofar as the veteran ceased attending the offices of the Commonwealth Employment Services as a result of perceiving them as being unable to offer him suitable employment, then he was perhaps showing more realism with respect to his disabilities and problems than has generally been the case. Finally I would comment that in many veterans suffering from Post Traumatic Stress Disorder an essential part of their successful long-term management is to allow them to retire from the workforce with dignity and a reasonable level of financial security, as by doing so they are able to work around the impact of their post traumatic stress disorder, rather than being forced to confront that impact on a regular basis as a result of necessary and unavoidable interactions with other members of the workforce.
35. Dr Percival said that he preferred to elaborate on the above two paragraphs to the extent that he was aware that there is a community sigma against persons who suffer from a psychiatric illness. It was his experience that persons with a psychiatric illness unconsciously decide to give other explanations or advance other reasons for events or circumstances that might otherwise be caused or contributed to by the psychiatric illness. He said that such persons often deny having a psychiatric disorder in an attempt to “fool themselves” but they do not fool doctors.
36. In cross-examination Dr Percival maintained his view that the PTSD suffered by the applicant was responsible for the breakdown of his marriage. When he was notified that the applicant’s evidence at the VRB (refer transcript page 23) indicated that the applicant was of the belief that his marriage broke down because of his long working hours, Dr Percival referred to his earlier evidence and said that the applicant would have advanced that reason because he would have been “more comfortable” with it rather than acknowledging that he had PTSD which impacted upon his relationship.
37. The witness was then taken to pages 24 and 25 of the transcript which recorded the applicant giving evidence as to the long hours that he worked in former employment. Dr Percival said that a work history of that type would have assisted the applicant to “manage” his PTSD because people have a tendency to keep away from their home as a means of keeping their irritability under control. It was his opinion that if the applicant had then been at home, his marriage may have broken down at an earlier time. Dr Percival acknowledged that this opinion could not be expressed with “certainty” but it was his opinion, on the balance of probability, that the applicant’s marriage broke down by reason of his PTSD. It was his opinion also that PTSD was responsible for the applicant’s interrupted work history. When he was notified that the applicant had said in evidence, in these proceedings, that he left the Victoria Police because of poor salary, Dr Percival said that he would not have placed a great deal of weight on that explanation because it would have been continuing evidence of the applicant denying the existence of PTSD or having a psychiatric illness. He gave a similar explanation when he was asked to comment upon the applicant’s evidence that he left the employment with Heinz to visit his children in Queensland. He said that if the applicant had then been struggling to stay in the workforce and was offered a “reason to leave” he would have taken that opportunity and would have adopted that reason rather than acknowledging that employment ceased because of PTSD. When he was asked to comment upon the applicant’s evidence that he had “coped” with his employment at Heinz, Dr Percival said that he “may be kidding himself”.
38. Dr Percival expanded on this theme and said that in his experience it was a common response of people with psychiatric illness to adopt thoughts or beliefs that they were comfortable with rather than confront the reality of the illness. He said that this was an unconscious motive and was not based on dishonesty.
submissions
39. Mr Moore, who appeared on behalf of the applicant on the second day of hearing, submitted that the applicant should be regarded as a person who was not work shy and who had engaged in a wide variety of employment as a policeman, as a sales representative, despatch clerk, security guard and a fruit grader. It was worthy to note that the applicant had undertaken varied work, often of a physical or labouring type nature. It was submitted that the applicant should be viewed as a person who has little insight into his psychiatric illness and the affect, of that illness, upon his ability to obtain and maintain employment. It was submitted that the illness was of such a severity that it has also had an impact on the applicant’s relationships, particularly the relationship with his former wife.
40. It was acknowledged that the applicant in recent years had had an itinerate lifestyle, having moved around Victoria and interstate and had suffered a breakdown in his marriage. However it was also noted that the applicant had significant physical and psychiatric disabilities, no less than the accepted PTSD and the physical disabilities being the consequences of the shrapnel wounds ultimately causing him to use a walking stick from 1989. Despite this the applicant maintained employment until 1992 when it was acknowledged that he effectively ceased all employment.
41. Mr Moore referred to the Full Federal Court decision of Sheehy v Repatriation Commission (1996) 23 AAR 126 where at 131 the Court referred to the concept of the remunerative work being undertaken by a veteran as having been “performed” or “successfully undertaken” or “effectively undertaken”.
42. It was submitted that in the context of the applicant’s work history it should be found as a fact that Mr Jones had “performed” work which had been both “successfully” and “effectively” “undertaken”. It was noted that the engagement in seasonal work of between 6 and 12 weeks each year was a successful and effective undertaking, different to that of Mr Sheehy who had been engaged for approximately two weeks. Whilst it was acknowledged that the applicant had not been “effectively” or “successfully” undertaking work when relief milking, it was submitted that the engagement in seasonal labour, each year for between 6 and 12 weeks satisfies the criteria discussed in Sheehy.
43. In anticipation that the respondent would argue that the applicant did not satisfy s24(1)(c) in that his period of time out of the workforce and his age would cause him to not satisfy the “alone” test, Mr Moore relied on the Full Court decision of Repatriation Commission v Hendy [2002] FCFCA 424 and submitted that age and absence from the workforce of itself did not disqualify a veteran but rather they were relevant factors to be considered in examining s24(1)(c).
44. It was submitted that the relevant question to ask was “what might Mr Jones reasonably be expected to have done were it not for his accepted disabilities?”. It was submitted that by reason of the applicant’s prior work history, it could reasonably have been expected that the applicant would have continued to have been engaged each year in seasonal cannery work and would have been able to undertake it. It was submitted that there was no evidence to the contrary nor was there any evidence that the applicant’s age would have precluded him from being re-engaged each year.
45. Mr Douglass, on behalf of the respondent, submitted that the relevant consideration initially was to examine the applicant at 17 January 2003 when he made his claim, which was the date of the commencement of the assessment period. Additionally consideration needed to be given as to whether the applicant satisfied s24 throughout the whole of the assessment period. Mr Douglass conceded s24(1)(a) and (b). It was also conceded that the neuropathy and Charcots arthropathy suffered by the applicant is sequel to his diabetes. It was also conceded that the applicant last worked in 1992 when he ceased employment with Heinz. Mr Douglass also conceded that the applicant had successfully undertaken employment with Heinz in 1992 when he last worked.
46. These concessions in my view are appropriate and responsibly made.
47. The issue so far as the respondent is concerned was the effect of the applicant’s age, his time out of the workforce and the state of the labour market in assessing eligibility under s24(1)(c).
48. It was acknowledged that the relevant decisions of the Federal Court do not prescribe that there is a disqualification from special rate pension if a person has been out of the workforce for a period of time or if a person is of a mature age or if there are labour market factors causing difficulty obtaining employment. However, it was submitted that weight should be given to those factors when deciding, as a fact, whether the “alone” test had been satisfied.
49. Whilst it was conceded that there was no direct evidence that the applicant’s age at the application date would have alone been the cause of not obtaining employment, it was submitted that common sense would dictate that a male person at the age of 59 who had been out of the workforce for 11 years, in the presence of adverse labour market forces, would not obtain employment. It was noted that Mr Jones had said in evidence that he had attended the Commonwealth Employment Service and had been unable to locate work. This, it was submitted, pointed to labour market forces – and not the accepted disabilities – as causing or being responsible in whole or part for incapacity.
50. Additionally it was submitted that the applicant could not satisfy s24(2)(a)(i) because he left the employment with Heinz to travel to Bundaberg to visit his children. The incapacity then did not commence by reason of his accepted disabilities.
51. In reply Mr Moore submitted that it was the applicant’s evidence that he completed the 1992 season with Heinz and at the completion of the season only then did he leave Victoria to travel to Queensland to visit his children. Mr Moore relied on the applicant’s evidence on the first day of hearing found at page 20 of the transcript.
52. It was submitted that the Full Court decision of Hendy was authority for the proposition that common sense and broad consideration should be undertaken when determining whether qualification under s24(1)(c) exists. The reality, it was submitted, is that each year in the Goulburn Valley there was a shortage of labour whereby persons are engaged seasonally and persons of mature age are engaged.
conclusion and reasons for decision
53. This application has – by reason of the good will between the parties and their representatives – been narrowed to a single issue only namely, whether the applicant satisfies the “alone” test under s24(1)(c) of the Act.
54. Section 24(1) and (2) are reproduced as follows:
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.
55. The applicant satisfies s24(1)(a)(i) because he presently has been assessed at an incapacity of 100%. Sub-section (1)(b) is satisfied because the respondent concedes – and I find as a fact – that the applicant is, by reason of his war-caused injuries alone, unable to undertake remunerative work for periods aggregating more than eight hours per week.
56. Section 24(1)(c) is the principle issue in contention because the respondent disputes that the applicant’s incapacity by war-caused injury or disease, is, alone, preventing him from continuing to undertake remunerative work.
57. In support of its contentions the respondent submitted that by reason of the applicant having been out of the workforce since 1992 and being 59 at the date of his application on 17 January 2003, he cannot satisfy the “alone” test under sub-section (c) above. It was also submitted that labour market factors were relevant in assessing the reasons for incapacity.
58. Whilst it was conceded by Mr Moore that the applicant had not been employed since 1992 it was submitted by him that the “alone” test under sub‑section (c) has not been offended because the applicant has effectively been totally incapacitated for all employment by reason of his war-caused injuries alone since 1992. Additionally it was submitted that but for those injuries the applicant, in 2003, would have continued in his former seasonal employment, despite his age.
59. In Sheehy the Full Court acknowledged (page 131) that a number of earlier decisions in its examination of s24(1)(c) had not examined the language of that sub‑section in total. After examining the authorities, the Court recorded:
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”.
60. In Sheehy the veteran had been engaged for approximately two weeks but was unable to continue employment by reason of a war-caused back injury. With that factual scenario the Court ultimately concluded that “The veteran was never capable of performing the work of a storeman for Hawker Noyes or for Nylex and so cannot be said to have “performed” or “successfully undertaken” or “effectively undertaken” the work of a storeman.
61. The present case in my view is distinctly different. Mr Jones had a history of seasonal employment in the Goulburn Valley with a number of canneries and with Heinz. There was evidence that seasonal work is available at major canneries every year and it is not uncommon for the same persons to be re-engaged in each season. That was the evidence of Mr Jones, and as a fact I accept that that was his work routine in the years prior to 1992. Unlike the applicant in Sheehy who was “never capable of performing the work”, Mr Jones was – although with difficulty – capable of performing the seasonal cannery work and did perform it. From approximately 1992 when the season at Heinz concluded, Mr Jones did leave to travel to Bundaberg to see his children. He has not worked thereafter. He did not then cease his remunerative work for reasons other than incapacity by war-caused injury or disease. He ceased that employment because the season concluded and upon its conclusion he then travelled to Bundaberg.
62. I am satisfied in the circumstances that the applicant’s employment seasonally, each year, with Goulburn Valley canneries and with Heinz had been work that he had “performed” and which he had “successfully” and “effectively undertaken”.
63. Time out of the workforce and age of themselves may be relevant factors in assessing whether the “alone” test under sub-section (c) is satisfied. For example, heavy physical repetitive type labour might be work that could only reasonably be undertaken by younger persons. Alternatively a period of time out of the workforce might disqualify re-entry into the workforce if there had been advances in technology or work practices different from the technology and practices undertaken when that person last worked.
64. In my view those considerations are not relevant in the present case. The nature of seasonal process work, is effectively the same work undertaken each year and persons, irrespective of age, are generally re-engaged. Two predominant reasons for re-engagement is the need for labour and the experience of the person from previous seasons.
65. There is nothing heard in my view in the present proceedings which would cause me to find as a fact that but for the injuries suffered by Mr Jones which have been accepted as war-caused he would not have continued to be re-engaged each season with Goulburn Valley canneries. It would have been work – but for his war-caused injuries – that he would have been capable of undertaking “successfully” and “effectively”. I am also of the view that the applicant’s age at the commencement of the assessment period would not have offended the “alone” test.
66. In all of the circumstances and having considered the “hypothetical exercise” (refer Hendy) I am satisfied that the applicant’s incapacity by reason of his war-caused and accepted disabilities have “alone” prevented him from continuing to undertake remunerative work and from the commencement of the assessment period on 17 January 2003 to the present, the applicant has continued to satisfy the sub-section.
67. In all of the circumstances I am of the view that the decision under review should be set aside and in substitution it should be found that at all relevant times the applicant has been entitled to pension at the special rate.
I certify that the 67 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr John Handley, Senior MemberSigned: Alice Beattie
AssociateDates of Hearing 9 December 2004 and 22 February 2005
Date of Decision 25 February 2005
Counsel for the Applicant Mr G Moore
Solicitor for the Applicant Mr P Liefman
Departmental Advocate Mr R Douglass
0