KENNETH SMITH and REPATRIATION COMMISSION
[2012] AATA 94
•16 February 2012
[2012] AATA 94
Division Veterans' Appeals Division File Number(s)
2010/3388
Re
KENNETH SMITH
APPLICANT
And
REPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal G. D. Friedman, Senior Member
Date 16 February 2012 Place Melbourne The Tribunal affirms the decision under review.
............................[sgd]...............................
G. D. Friedman, Senior Member
VETERANS' AFFAIRS – veterans’ entitlements – special rate of pension – whether incapacity from war-caused injuries ‘alone’ prevented the veteran from undertaking remunerative work – whether the veteran genuinely sought to engage in remunerative work
Veterans’ Entitlements Act 1986 ss 24(1)(a), (b) and (c), 24(2)(a) and (b)
Banovich v Repatriation Commission (1986) 69 ALR 395
Cavell v Repatriation Commission (1988) 9 AAR 534
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 101 FCR 50
Giesen v Repatriation Commission [2005] FCA 846
Leane v Repatriation Commission [2004] FCAFC 83
Repatriation Commission v Graham [2004] FCA 1287Repatriation Commission v Van Heteren [2003] FCA 888
REASONS FOR DECISION
G. D. Friedman, Senior Member
Kenneth Smith is receiving disability pension at 100 per cent of the general rate in respect of his accepted war-caused conditions of bilateral sensorineural hearing loss, bilateral tinnitus, post traumatic stress disorder (PTSD), solar keratosis and tinea. On 31 March 2009 he applied for the higher loss-of-earnings related payment known as special rate. The respondent refused his application and the decision was affirmed by the Veterans' Review Board.
The special rate of pension requires, among other things, that a person is prevented from continuing to undertake remunerative work, and cannot work more than eight hours per week, by reason of war-caused disability. The respondent says that Mr Smith is not entitled to special rate because there were reasons other than his war-caused conditions alone that account for him not being able to continue working in his previous occupation, and that he did not genuinely seek to engage in remunerative work after lodging his application for special rate.
LEGISLATIVE BACKGROUND
Section 24 of the Veterans' Entitlements Act 1986 (the Act) makes provision for payment at rates higher than 100 per cent of the general rate of pension:
24(1) This section applies to a veteran if:
…
(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…
…
(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…
(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.
…
ISSUES
There is no dispute that Mr Smith satisfies s 24(1)(a) of the Act. The issues before the Tribunal are whether Mr Smith is incapable of undertaking remunerative work for more than 8 hours per week, and, if so, whether this is due to war-caused conditions alone (s 24 (1)(b)); and subsequently, whether his war-caused incapacity alone prevents him from continuing to undertake the remunerative work that he was undertaking (s 24 (1)(c)).
IS MR SMITH INCAPABLE OF UNDERTAKING REMUNERATIVE WORK FOR MORE THAN EIGHT HOURS PER WEEK BECAUSE OF WAR-CAUSED CONDITIONS ALONE?
Mr Smith told the Tribunal that he is incapable of working for more than eight hours per week. By way of background he stated that he left school in Year 11 and completed an apprenticeship in electrical mechanics with Ford Motor Company. From 22 April 1970 to 9 December 1971 he undertook National Service with the Australian Army, and served in Vietnam from 9 November 1970 to 4 November 1971 as an electrical mechanic in Saigon. After discharge from the army he returned to Ford but ceased employment after two weeks because he could not cope with the harassment by co-workers about his war service. He then undertook short periods of employment, including work on a dairy farm; general labouring work with State Rivers and Waters Commission; tree lopping with the Forests Commission; and general duties in a timber mill. In June 1972 he obtained employment with an electrical contractor for six months. He explained that in each of these positions he could not cope with pressure or with dealing with people, whom he perceived to be harassing him about his war service.
In February 1973 Mr Smith commenced his own electrical contracting business, but ceased after twelve months because he could not cope with the pressures of self-employment and with the demands of customers. He said that he returned to Ford in March 1974 but lasted only about three weeks, for similar reasons to his previous departure from that company. After four weeks working with Bellarine Shire, he joined an existing electrical contractor in June 1974, and remained there for about five years before moving to Queensland to take up a position in the coal mining industry as an electrical contractor in 1979. He moved to another colliery in 1982 and shortly afterwards he suffered a serious workplace injury in 1982 when crushed by a vehicle, and his left leg was amputated above the knee. His right leg and ankle were also seriously damaged.
Mr Smith said that he spent five years recovering from his injuries and returned to Victoria in 1987, when he and his wife purchased a property of 500 acres (202 hectares) in the Bellarine Peninsula, where they operated a wool and beef farming business in partnership. In 1998 he obtained employment installing electrical alarms for two months until the contract was terminated. He explained that he and his wife moved back to Queensland in 1998 where he found work as an electrical fitter mechanic servicing underground mining equipment. They sold all but 167 acres (68 hectares) and left the property unoccupied. He said that he rose to the position of manager but the pressures of the position were such that he could not cope, and in 2000 they returned to Victoria. He completed a course in office administration and was employed at Avalon Airport Services for six months until his contract was terminated. In 2001 he worked for a labour hire agency and was sent to Avalon Airport where he performed upgrades on inflight entertainment units for Britax Aero services. However Mr Smith stated that he had a number of disputes with his supervisor and was not coping with the demands of the position. His employment was terminated in December 2002, but he was employed directly by Britax until he left the company in mid-2003 because of the pressures of the position.
Mr Smith explained that after leaving Britax he and his wife decided to commence a feedlot business on their property, with the assistance of their son, involving the fattening of cattle with a specially-designed feed mixture. The partnership agreement provided for their son to receive 50 per cent of the profits and the other 50 per cent to be shared between himself and his wife. He said that the intention was that he would purchase stock and arrange sales, but because he could not deal successfully with agents and customers this task was assumed by his son, who was away much of the time, and he was left to perform menial jobs such as cleaning and minor repairs. This meant that there was no-one to carry out the essential tasks of supervising the feedlot process, and the business could not afford to employ additional staff. Mr Smith stated that the business did not make a profit because he was not contributing in a meaningful way and because of the high start-up costs. Consequently the business was abandoned in 2006 and the equipment was sold, together with all of the remaining property except 7 acres (3 hectares) on which the house was situated. He said that he ceased working at that time, and tried unsuccessfully to obtain maintenance or unskilled jobs in 2006.
Dr C Newlands, consultant forensic psychiatrist, told the Tribunal in several reports that she was Mr Smith's treating psychiatrist from 29 November 2004 until 2005 following a diagnosis of PTSD by Dr M van der Linden, consultant psychiatrist, in 2004. She said that Mr Smith is incapable of working for more than eight hours per week solely because of his PTSD. She said that in making this assessment she had taken into account any psychological impact of the leg injuries sustained in 1982 and had noted that his employment history did not appear to have been affected adversely by his physical problems. Under cross-examination Dr Newlands acknowledged that she relied to a large extent on the history provided by Mr Smith.
In a report dated 1 December 2003 Dr van der Linden stated that at first Mr Smith did not believe that there were significant psychiatric symptoms that required treatment. He concluded at that time that Mr Smith was suffering from numerous symptoms of PTSD, but that the impairment did not constitute a diagnosis of PTSD. Dr van der Linden reported that he saw Mr Smith again in 2008 and that the symptoms had worsened. He noted that PTSD had been diagnosed and that a disability pension had been granted. In a further report dated 27 April 2009 Dr van der Linden stated that after five years Mr Smith had been referred for ongoing management of PTSD. He told the Tribunal that Mr Smith had admitted to being less than honest during the 2003 assessment by minimising the psychological symptoms. Dr van der Linden concluded that Mr Smith is incapable of working for eight hours per week solely because of war-caused PTSD symptoms of irritability, poor concentration and memory, inability to tolerate others, chronic anxiety and ongoing depression.
In a report dated 1 March 2011 Dr G White, consultant psychiatrist, stated that Mr Smith's psychiatric disability alone prevents him from working more than eight hours per week, and that no other factors, including leg injuries, were apparent. Dr White stated that the eventual cause of Mr Smith ceasing work permanently appears to have been psychiatric disabilities, which included both PTSD and major depressive disorder. Under cross-examination Dr White acknowledged that Dr van der Linden had found only PTSD, but he maintained that a diagnosis of PTSD with depressive and anxious mood did not meet the formal diagnostic requirements of PTSD as specified in the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (DSM-IV).
Dr R Horsley, occupational physician, stated in a report dated 15 December 2010 that the accepted conditions of solar keratosis and tinea had no impact on Mr Smith's ability to work, while his war-caused sensorineural hearing loss and bilateral tinnitus potentially impact on the type of work he could undertake. Dr Horsley took into account the leg injuries that resulted from the workplace accident and concluded that, on the basis of the accepted physical conditions alone, Mr Smith had the capacity to work for more than eight hours or more than 20 hours per week, although she acknowledged that psychiatric issues relating to PTSD must be taken into account.
In a report dated 22 November 2010 Dr C Thomas, consultant in rehabilitation and pain medicine, said that from a physical point of view Mr Smith reported minimal disability despite the left leg amputation and the right leg problems. Dr Thomas noted that Mr Smith had worked in numerous positions despite his mobility problems and concluded that Mr Smith has the capacity to work for more than eight hours per week from a physical point of view, although any job that involved prolonged standing or walking should be avoided. He noted that any assessment of inability to work arising from Mr Smith's PTSD would be a matter for psychiatrists.
Mr T Smith (Mr Smith's son) told the Tribunal that for as long as he could remember his father had difficulty relating to people. He described the establishment of the feedlot business in 2003 and said that he and his parents expected the business to be profitable. The understanding was that he would provide the bulk of the hands-on work but would benefit from the use of his parents' property, as well as receiving a wage. His mother would be responsible for the accounts and help with some chores, while his father would undertake some of the buying and selling of stock. However Mr Smith stated that his father's involvement had harmed the business and his contribution ceased after about three months because he could not cope with his allocated tasks and was often in dispute with stock agents and customers.
Mr Smith said that the business could not afford to employ another person to take over his father's duties, so there was no possibility of building up the stock from 500 to 1000, which was the level at which the business would have become profitable, so the family decided in 2006 to discontinue the business. Mr Smith stated that there was never any intention that his father would be required to undertake heavy work in building up the business. He told the Tribunal that he believed that his father's inability to cope with the demands of the business was due to the symptoms of PTSD rather than leg-related disabilities. Under cross-examination Mr Smith agreed that the failure to adopt clearly-defined roles, the lack of a long-term plan and the inability to employ additional staff may have contributed to the failure of the business.
The Tribunal accepts the evidence from Dr Horsley and Dr Thomas that the accepted physical conditions do not prevent Mr Smith from working more than eight hours per week. In respect of the evidence from the psychiatrists, the Tribunal prefers the opinions of Dr van der Linden and Dr Newlands that the correct diagnosis is PTSD rather than a combination of PTSD and depressive disorder as suggested by Dr White. The Tribunal is reasonably satisfied that Mr Smith is unable to work for more than eight hours per week and the inability is due to his war-caused condition of PTSD alone, and therefore he satisfies s 24(1)(b) of the Act.
IS MR SMITH PREVENTED FROM CONTINUING TO UNDERTAKE REMUNERATIVE WORK THAT HE WAS UNDERTAKING BECAUSE OF WAR-CAUSED INJURY ALONE?
In Flentjar v Repatriation Commission (1997) 48 ALD 1 the Full Federal Court described the test in s 24(1)(c) of the Act as:
(1) What was the relevant "remunerative work that the veteran was undertaking" within the meaning of s 24(1)(c) of the Act?
(2) Is the veteran, by reason of war caused injury or war caused disease, or both, prevented from continuing to undertake that work?
(3) If the answer to question 2 is yes, 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?
(4) If the answer to questions 2 and 3 are, in each case, yes, 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?
In respect of question (1) Mr Smith said that his most recent work involved the feedlot business that ceased in 2006, so the relevant remunerative work could best be described as farmer.
In Repatriation Commission v Van Heteren [2003] FCA 888 Finn J stated at [18]:
First, the "remunerative work" to which the paragraph refers is the remunerative work undertaken by the veteran before he or she was prevented from continuing to undertake that work. The term, though, does not refer simply to a particular job with a particular employer: Banovich v Repatriation Commission (1986) 69 ALR 395 at 402; nor merely to the last remunerative work undertaken before the veteran's inability to work became complete: Starcevich v Repatriation Commission (1987) 18 FCR 221 at 225. It signifies the type of work which the veteran previously undertook but which because of war-caused incapacity alone he or she can no longer undertake: Banovich at 402. The Act requires identification of that type of work as part of the veteran's demonstration that he or she has suffered a real and substantial loss consequent alone upon war-caused incapacity: see Starcevich's case, at 225. It is that remunerative work and not remunerative work at large with which s 24(1)(c) is concerned.
In Repatriation Commission v Graham [2004] FCA 1287 Selway J stated at [19]:
... The words 'remunerative work that the veteran was undertaking' are to be understood as meaning any 'substantive' remunerative work that the veteran has ever undertaken. This is made clear by Fox J in Starcevich at 224-226. In any event, it seems to be clear from the decision of the Full Court in Repatriation Commission v Hendy [2002] FCAFC 424 (Hendy) at [7]-[8], [14]-[15] and [36]. In that case the AAT found that work in a hotel undertaken some 8 years prior to the date when the veteran was prevented from continuing remunerative work constituted 'remunerative work that the veteran was undertaking', notwithstanding that over the subsequent 8 years the veteran had been employed only in the transport industry. The Full Court confirmed that the AAT was required to consider 'the substantive work that the Tribunal had undertaken in the past'.
Although Mr Smith worked in a farming capacity in the feedlot business in partnership with his wife and son from 2003 to 2006, and as a farmer from 1987 to 1998, his major employment from 1972 to 1982 (when he suffered his serious physical injuries) was as an electrician/electrical contractor or manager of electricians, and from 1998 to 2003 he worked mainly as an electrical fitter before commencing the feedlot business. Consequently the Tribunal finds that the answer to question (1) is: farmer; or electrician; or electrical fitter.
In respect of question (2) there is no dispute that on the evidence from the psychiatrists Mr Smith is prevented from continuing to undertake that work by reason of his war-caused condition of PTSD, so the answer to question (2) is yes.
In respect of question (3) Mr Smith told the Tribunal that his PTSD is the only factor that prevents him from continuing to undertake farming or any other work that he had been undertaking, and that physical injuries, particularly to his legs, do not prevent him from continuing to work.
In an application 11 February 1997 to the Department of Veterans' Affairs for a service pension (which requires evidence of total incapacity) Mr Smith stated that he was claiming invalidity because he had an above knee amputation to his left leg which required him to wear a prosthesis, and severe damage to his right leg below the knee which had limited his mobility and strength. He stated in the application form that his injury stopped him from working because:
My mobility and balance are severely affected and I become tired very quickly.
In a report dated 9 March 2010 Mr W Huffan, consultant orthopaedic surgeon, stated that Mr Smith's inability to engage in remunerative employment appears to be because of his incapacity from war-caused PTSD rather than the disabilities related to the severe leg injuries suffered in the workplace accident in 1982. On examination Mr Huffan found that following a total knee replacement of the right knee in February 2009 Mr Smith had a good functioning on the right side, and a good functioning on the left side despite the prosthetic leg. He noted that Mr Smith had coped with work as an electrician remarkably well following the physical injuries and that he has the skills and experience to be able to perform a wide variety of electrical work despite the physical disabilities.
In a Work Ability report dated 25 November 2003 for the Department of Veterans' Affairs, Dr M Birrell, general practitioner, stated that the injuries to Mr Smith's legs were the medical conditions that reduced his ability to work. Dr Birrell stated that Mr Smith's last occupation was with Britax and that the reason for leaving was:
…Standing up a problem, legs painful > 8 hour days to[o] stressful on legs.
Dr van der Linden told the Tribunal that it was not uncommon for psychiatric issues to arise from traumatic injuries, although in this case he suggested that Mr Smith had coped well with the impact of the 1982 injuries. In his clinical notes of the first consultation dated 28 October 2002 he recorded:
53 y.o man referred for assessment by Dr Mike Birrell – to review, to try & "tie in his artificial leg with Vietnam"
In his clinical notes dated 20 November 2002 he recorded:
Past year more and more difficult getting work > because of his [leg injuries] disability and age…From when lost leg > went downhill as he had difficulty coping
In his clinical notes as early as 9 December 2002 Dr van der Linden took a history of psychological symptoms including Mr Smith being introverted and withdrawn and never telling people how he feels. In his report Dr van der Linden maintained that PTSD was the sole reason for Mr Smith's inability to work, but acknowledged that in his clinical notes dated 26 November 2003 referring to the employment with Britax (particularly the six-month direct employment in 2003) he recorded:
Given difficult and menial jobs > physically leg sorer & sorer > till quit.
In a Lifestyle Questionnaire lodged with the Department of Veterans' Affairs in December 2003 Mr Smith did not respond to the question asking about any problems with walking or mobility. In the form he stated that he ceased work in 2003 due to ill-health and that his disabilities stopped him working because:
I could not participate fully in management discussions and I also have a physical disability.
He also stated in the Questionnaire that his disabilities affected the way he lived because of the lack of positive communication, an inability to withstand stress and:
My physical disabilities prevent my mobility.
In a further Lifestyle Questionnaire lodged with the Department of Veterans' Affairs in January 2005 (several months after PTSD had been accepted as a war-caused condition) Mr Smith acknowledged he had problems walking all of the time due to his above-knee amputation of the left leg and limited mobility of his right leg. However in the form he stated that he stopped working in 2003 because he could not cope with stress and could not build a working relationship with those in authority. In the summary Mr Smith listed ten ways in which his disabilities affected the way he lived (such as introverted; distrustful; aggressive; and withdrawn) but the physical disabilities were not mentioned. In an Employment Questionnaire completed in about February 2005 Mr Smith was asked: If you are currently unemployed, what do you believe is preventing you from getting a job or being employed? His answer was: My physical and mental state.
Mr Smith told the Tribunal that he was referred to Dr van der Linden in 2002 but did not discuss his psychological issues at first because he was embarrassed to admit that he had a problem, so instead he concentrated on his physical issues relating to his leg injuries. He said that he had also failed to discuss his psychological issues with Dr Birrell because he did not want to admit that he was suffering from mental problems.
Under cross-examination Mr Smith agreed that the 1982 injuries had been a significant setback to his mobility, but denied that he was depressed or traumatised or that his well-being was impaired. He agreed that in the claim to the Department of Veterans' Affairs in 2003 he specified only mobility issues, rather than mental issues, but reiterated that he could not bring himself to admit to psychological problems, and that he gave those answers because he …couldn't actually own up to what was wrong with me.
Mr Smith also agreed that Dr van der Linden's clinical notes of the first consultation on 28 October 2002 described the referral from Dr Birrell as being in support of the application for a service pension by trying to link the leg injuries to service in Vietnam. He maintained that his leg injuries have had no effect on his ability to resume remunerative work. He also agreed that since 2000 he has been taking various medications for his leg problems, including Endone and various anti-inflammatories, but denied that these demonstrate an increase in pain in his left leg or in his right leg following a knee replacement, or that the physical injuries have any impact on his fitness to resume work.
Mrs J Smith (Mr Smith's wife) told the Tribunal that she met Mr Smith in 1967 and they were married in 1970 before Mr Smith was sent to Vietnam. She said that after his return from Vietnam he was angry, irritable, anxious and restless, and had a succession of jobs because of his anxiety and difficulty relating to other people. Even when they operated a farming business from 1987 for 11 years Mr Smith found the pressure too great to continue. She explained that the feedlot business failed because Mr Smith was unable to make any effective contribution due to his PTSD symptoms of poor concentration and memory issues, and problems relating to customers and stock agents, but that physical issues such as his prosthetic leg did not have an impact on his ability to continue to work.
Under cross-examination Mrs Smith agreed that she had been granted carer allowance in 2006 because of Mr Smith's psychological needs, but stated that his leg injuries were not mentioned in her application and were not relevant. She agreed that Dr Birrell's report dated 24 April 2006 in support of her application referred to physical disabilities as well as psychiatric disabilities, and that Dr Birrell listed matters such as feeding, transfer from bed to chair, mobility, dressing and bathing as Mr Smith's day-to-day needs that required assistance. She agreed further that Centrelink documents show that in March 2008 Dr S Horne listed similar areas of mobility in which Mr Smith required day-to-day help, although she said that she had no recollection of providing such information to Centrelink.
Clinical notes from the medical practice where Mr Smith has attended for a number of years show that since 2000 he has been prescribed medication for a number of physical conditions including multiple references to severe pain in the right knee and ankle; referral to a specialist in 2007 for right groin and upper thigh pain; problems with osteoarthritis of the right knee and chronic pain in 2008 requiring physiotherapy; referral in 2009 for occupational therapy assessment for a wheelchair and possible bathroom rails in his home; and in 2010 for assessment for new crutches. He is taking numerous medications including anti-inflammatories and Endone (oxycodone), an opioid analgesic medication that is classified as a Schedule 8 poison that requires a permit from the Department of Human Services (Vic.) for a medical practitioner to administer, prescribe or supply.
In Cavell v Repatriation Commission (1988) 9 AAR 534 Burchett J said that decisions regarding s 24(1)(c) should be made with an eye to reality and that common sense is the proper guide. This principle was supported in Forbes v Repatriation Commission (2000) 101 FCR 50.
The Tribunal takes into account the evidence from Dr Thomas, Dr Horsley and Mr Huffan regarding Mr Smith's leg injuries. The Tribunal also accepts that initially Mr Smith may have had some embarrassment or reluctance to discuss his psychological symptoms with Dr Birrell and Dr van der Linden so he concentrated on his leg problems during some consultations. However this does not necessarily mean that that the ongoing symptoms of pain in his left leg following the 1982 accident including knee and ankle problems, as recorded contemporaneously in clinical notes of various practitioners, are inaccurate.
Consequently it is unsurprising that in 1997 Mr Smith sought a service pension on the basis of invalidity (or total incapacity) because of leg injuries that he claimed stopped him from working because of fatigue and reduced mobility and balance. This is consistent with his answers in the 2003 Lifestyle Questionnaire where he said that his disabilities, which prevented him from working, included his physical disability. This is also consistent with his answers in the 2005 Lifestyle Questionnaire that he had problems walking all of the time because of his leg injuries, and raises doubt about the truthfulness of his contention in the 2005 Questionnaire that he stopped work in 2003 because of stress and the failure to build a relationship with those in authority. This conclusion is supported by his comment in the Employment Questionnaire dated February 2005 that he was prevented from obtaining employment because of his physical and mental state. The Tribunal does not accept that the answers given by Mr Smith in the forms about the effects of his leg injuries were incorrect or were the result of him being in denial about his psychological injuries, because by 2003 he had already begun to discuss these with Dr van der Linden.
Further, the Tribunal accepts the accuracy of Dr Birrell's comments in the 2003 Workability Report that the injuries to Mr Smith's legs were the medical conditions that reduced his ability to work. By this time Dr Birrell had already began discussing psychological symptoms with Mr Smith.
The evidence contained in the clinical notes of the medical practice attended by Mr Smith shows frequent reference since 2000 to problems involving both legs, and numerous referrals for assessment and treatment of severe leg pain. The documents also show a range of prescribed medication that includes a high dosage of strong anti-inflammatory medication in addition to anti-depressant medication, which suggests that Mr Smith has had ongoing issues with his legs in recent years.
The Tribunal accepts that Mrs Smith lodged her application for carer allowance in 2006 on the basis of Mr Smith's psychological issues. However the documents demonstrate clearly that the assessment by Centrelink in 2006 and 2008, whether based on information supplied by treating doctors alone or with a contribution by Mrs Smith, shows that Mr Smith's mobility issues resulting from physical disabilities, rather than psychiatric conditions alone, contributed to the decision to grant the benefit to Mrs Smith.
Taking all relevant matters into account the Tribunal is reasonably satisfied that Mr Smith's physical injuries played an important part in his inability to continue to work, so the Tribunal finds that Mr Smith's PTSD is not the only factor preventing him from continuing to undertake his previous work, so the answer to question (3) is no.
In view of its findings in respect of question (3) there is no necessity for the Tribunal to consider question (4).
In Giesen v Repatriation Commission [2005] FCA 846 Gray J stated at [21]:
…the view has been expressed in a number of authorities that s 24(2)(b) of the VE Act is an ameliorating provision, of which a veteran who has ceased to engage in remunerative work may avail himself or herself, if he or she can show that war-caused incapacity is the substantial cause of inability to obtain remunerative work, which the veteran has been genuinely seeking.
In respect of whether Mr Smith has genuinely been seeking to engage in remunerative work during the assessment period which commenced on the date of application (31 March 2009) and continues until the date of the Tribunal's decision, he told the Tribunal that he has been doing so. He produced a copy of a letter dated 31 January 2006 received following an application for employment as rollformer/garage manufacturer/welder with a steel company; a letter dated 3 February 2006 following an application for a position in maintenance at a hotel; a letter dated 9 February 2006 following an application for a position as a farm hand; and a letter dated 2 March 2006 following an application for a position in sales with a real estate agent, all of which informed him that he had been unsuccessful because of his PTSD that he mentioned either in his application or at interview.
In a letter to the Department of Veterans' Affairs received on 26 May 2009 Mr Smith said that he had ceased work at the farm in 2003 but in 2006 he felt that he needed to find some type of work to sustain him and his wife, and to prove to himself that he was not worthless. He stated:
…
By about the end of 2006 I had given up looking for work as I was not progressing at all and the more I tried, the more I realised that I was incapable of holding down any type of a job because of my mental state. I was extremely agitated and angry most of the time. The more I looked for employment the worse I was becoming mentally. I ceased looking for employment toward the end of 2006 approximately.
...
Mrs Smith told the Tribunal that after the farm was sold in 2006 Mr Smith applied for a few jobs and had the desire to work, although it was obvious to her that he was not fit or capable for work due to his psychiatric illness. Under cross-examination she stated that she knew of the farm owner who signed the letter of rejection, but did not disclose to the Tribunal during her evidence that he is her brother-in-law. On the final day of the hearing she admitted her relationship to him, and said that she had not been truthful because he was ill and she did not want him to be called as a witness.
In Leane v Repatriation Commission [2004] FCAFC 83 the Full Federal Court held at [28]:
The primary judge interpreted the word 'seeking' to mean 'attempting to' or 'trying to'. This may be accepted. Such a meaning involves something more than a mere wish or hope. It requires that a claimant 'do' something. On the other hand the word 'genuinely' is used in the sense of 'sincerely' or 'honestly'. It involves an assessment of the subjective intention or purpose of a claimant. What is required is that the claimant honestly be trying to engage in remunerative work.
The Court also stated at [32]:
As the Commission properly conceded, if the Veteran had satisfied the Tribunal that he had, at any time during the assessment period, complied with the requirements of s 24(2)(b) (including the requirement that he had been genuinely been seeking to engage in remunerative employment) then, at least from that time, the Veteran would have been entitled to a pension at the special rate, notwithstanding that at some later time he may not have established that he was genuinely seeking to engage in remunerative employment.
The Tribunal takes into account that Mr Smith mentioned PTSD in all the unsuccessful applications that he made in early 2006, which might mean that he was giving an indication to potential employers that he had limitations on his ability to perform the duties of the advertised positions. Alternatively it might cast some doubt on whether the applications were genuine at the time because they were doomed to failure as soon as the condition was raised. The application for a sales assistant role in a real estate agency would appear to have had no real chance of success. In respect of the application for a position as a farm hand, Mr Smith failed to disclose to the Tribunal that the person who signed the letter of rejection was his wife's brother-in-law, and the farm is situated about 250 kilometres from Mr Smith's residence. This suggests that the letter was contrived by Mr and Mrs Smith to give the appearance of a genuine application, and raises concerns about Mr Smith's credibility generally, and that of Mrs Smith.
In any event the letters were written before the beginning of the assessment period, and there is no material before the Tribunal to demonstrate that Mr Smith made a real effort to obtain work at any time during the assessment period. This is supported by his letter to the Department of Veterans' Affairs in May 2009 that he had ceased seeking employment in 2006. For these reasons the Tribunal finds that during the assessment period Mr Smith has not been genuinely seeking to engage in remunerative work, so he cannot satisfy s 24(2)(b) of the Act, and there is no necessity for the Tribunal to consider other matters such as whether Mr Smith's PTSD was the substantial cause of his inability to obtain remunerative work or whether he suffered a loss of salary or wages, or of earnings on his own account. Consequently he cannot satisfy s 24(1)(c) of the Act and is not eligible for disability pension at the special rate.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 55 (fifty five) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member.
...........................[sgd].........................
Associate
Date(s) of hearing 5 and 6 September 2011, 7 October 2011, 10 February 2012
Counsel for the Applicant Ms F Ryan Solicitors for the Applicant Williams Winter Counsel for the Respondent Mr G Purcell Dated 16 February 2012
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