Maxwell John Woodall and Repatriation Commission
[2015] AATA 163
•20 March 2015
[2015] AATA 163
Division VETERANS' APPEALS DIVISION File Number(s)
2011/2470
Re
Maxwell John Woodall
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal John Handley, Senior Member
Date 20 March 2015 Place Melbourne The decision under review is set aside and in substitution it is decided that the applicant is entitled to payment of pension at the special rate with effect from 29 July 2010.
......[sgd]..................................................................
John Handley, Senior Member
VETERANS’ AFFAIRS – Applicant made redundant from his employment in 2008 – subsequently applied for 70 jobs without success – granted temporary special rate pension in 2009 which ceased in 2010 – payments reverted to 100 per cent of general rate – claim for special rate rejected by respondent and VRB – heard and affirmed by AAT – appeal to Federal Court – remitted by consent of both parties to the AAT after Full Court decision in Smith v Repatriation Commission – focus on re-hearing on s 24(2)(b) – previous AAT decision reversed – decision under review set aside.
Legislation
Veterans’ Entitlements Act 1986 section 5Q, 19(5C), 23, 24 and 119(1)(h)
Cases
Woodall and Repatriation Commission [2012] AATA 803
Smith v Repatriation Commission (2014) 220 FCR 452
Smith v Repatriation Commission (2012) 131 ALD 63
Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518
Hill v Repatriation Commission (2004) 82 ALD 60
Fox v Repatriation Commission (1997) 45 ALD 317
Sheldon v Repatriations Commission [2014] FCA 1388
Repatriation Commission v Connell (2011) 197 FCR 228
Repatriation Commission v Butcher (2007) 94 ALD 364
Leane v Repatriation Commission (2004) 81 ALD 625
Repatriation Commission v Richmond [2014] FCAFC 124REASONS FOR DECISION
John Handley, Senior Member
20 March 2015
On 16 November 2012, Doctor Breen and I delivered reasons for decision in respect of an application made by Mr Woodall (Woodall and Repatriation Commission [2012] AATA 803).
The application that was before the Tribunal as previously constituted (Doctor Breen has subsequently retired as a Member) was for a review of a decision made by the Veterans’ Review Board (VRB) which affirmed a decision of the respondent to pay pension at 100 per cent of the general rate. The applicant sought to have that decision set aside and have a finding made that he was entitled to special rate pension pursuant to s 24 of the Veterans’ Entitlements Act 1986. (Unless otherwise indicated, all references in this decision shall be to sections of the Veterans’ Entitlements Act 1986).
A chronology of relevant events is as follows:
10 October 2008 The applicant was made redundant by his employer.
27 May 2009 The VRB set aside a decision of the respondent made on 4 November 2007 and found generalized anxiety disorder (GAD) and hypertension were war-caused. It remitted the application to the respondent to assess entitlement.
4 September 2009 The applicant was notified by the respondent that pension at 100 per cent of the general rate would be paid from 4 November 2007 (date of primary claim) and temporary payment of pension at the special rate from 11 October 2008 (day after ceasing work) until 17 August 2010, pursuant to s 25.
29 July 2010 The applicant claimed special rate pension pursuant to s 24.
22 November 2010 The applicant notified by respondent the payments of special rate will cease on 16 December 2010 and pension will be resumed at 100 per cent of the general rate.
29 November 2010 The applicant applied to review the decision of 22 November 2010.
25 May 2011 The VRB affirmed the decision of 22 November 2010.
24 June 2011 The applicant applied to this Tribunal seeking review of the VRB’s decision made on 25 May 2011.
The following issues are relevant to the chronology above:
·Between 10 October 2008 and 4 September 2009 the applicant made 70 job applications. All were unsuccessful;
·The applicant said during the first hearing that he stopped looking for work in August 2009 when he was notified he would be paid temporary special rate pension. That notification was given by the decision made on 4 September 2009. A finding in our decision of the applicant ceasing to make job applications in August should have been recorded as September;
·When the applicant was notified he would be paid temporary special rate pension (Exhibit A10) he was advised those payments would cease on 17 August 2010 and thereafter he would be paid at 100 per cent of the general rate. He was advised that if his service disabilities did not improve he should lodge an application for increased pension about six to eight weeks before the temporary special rate pension payments cease. The applicant therefore claimed special rate pension on 29 July 2010.
The applicant has not worked since October 2008 when his employer decided that he was redundant to its operations. The assessment period commenced when his claim for special rate pension was made on 29 July 2010. We decided that the applicant did not satisfy the alone test under s 24(1)(c) because of the combined effects of his age, his time out of the workforce and the state of the labour market.
We also decided that he could not obtain the benefit of s 24(2)(b). We were satisfied that the applicant had been genuinely seeking to engage in remunerative work but only between October 2008 and September 2009. We found that he did not genuinely seek to engage in remunerative work after 29 July 2010, that is, after the commencement of the assessment period.
The applicant’s solicitors lodged an appeal against that decision in the Federal Court on 12 December 2012. The question of law sought to be decided was:
Whether a failure by a veteran to take active steps during the assessment period to obtain remunerative work precludes a finding that he or she has been genuinely seeking to engage in remunerative work within the meaning of s. 24(2)(b) of the Veterans Entitlements Act 1986 (“the Act”).
The hearing of the appeal was deferred pending the outcome of an appeal in Smith v Repatriation Commission (VID 782 of 2012) (Smith). Mr Smith was unsuccessful before a single judge (see Smith v Repatriation Commission (2012) 131 ALD 63) but did succeed before a Full Court (Rares, Buchanan and Foster JJ). The decision of the Full Court was delivered on 1 May 2014 ((2014) 220 FCR 452).
On 19 June 2014, Tracey J made an Order, by consent of both parties, without hearing any evidence or submissions on the question of law before the Court, that the appeal lodged by Mr Woodall be allowed, the decision of the Tribunal made on 16 November 2012 be set aside and the application be remitted for re-hearing.
The re-hearing of the application occurred on 10 December 2014. Ms Ryan and Ms Maud both of Counsel appeared on behalf of the applicant and respondent respectively. They each made submissions. No further evidence was heard.
Preliminary Matters
Neither of the parties raised any issue before or during the re-hearing of this application concerning the constitution of the Tribunal. His Honour remitted the application to the Tribunal for re-hearing without any direction concerning its constitution. The Acting President of the Tribunal, Kenny J, on 21 August 2014, determined that the Tribunal for the purposes of the re-hearing be constituted by me alone.
At this stage I will pause to record that the Full Court in Smith found that s 24(2)(b) did not require a veteran to be genuinely seeking work at the commencement of or during the assessment period. We decided that the applicant could not obtain the ameliorative benefit of s 24(2)(b) because he did not seek to engage in remunerative work after the commencement of the assessment period. The decision of the Full Court clearly demonstrates that we were in error.
Having made findings of fact in the decision made on 16 November 2012, I asked for assistance from counsel during the re-hearing of how I should treat those findings, having regard to the decision of the Full Court in Smith.
The High Court in Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 heard an appeal against a decision of a Full Federal Court which made orders in relation to the constitution of a Tribunal to which it remitted an application for re-hearing. Although Tracey J did not make such an order, members of the High Court referred to the role of the Tribunal upon a re-hearing.
At [18], Gleeson CJ decided that a finding of fact to be made following the re-hearing … does not require that the hearing be conducted on the basis that any favourable findings of fact, made in the course of the decision that was set aside by the Full Court, be somehow preserved for [the applicant’s] benefit. At [45], McHugh J decided… the Tribunal was not bound to make the same findings as it did on the first occasion. At [68], Gummow and Hayne JJ decided [w]hether any findings from the first review would be preserved would entirely depend upon the view formed by the Tribunal in conducting the second review.
On the basis therefore of the above authority (also refer Hill v Repatriation Commission (2004) 82 ALD 60 at [54]), I am satisfied that I am not bound by the findings of fact previously made.
Another issue of concern to the Full Court in Smith was the absence of consideration by the Tribunal at first instance of whether the veteran had an entitlement to intermediate rate pension under s 23 (having found there was no entitlement to pension under s 24) when it was apparent that the veteran had applied for an increase in his rate of pension (refer Buchanan J at [72]).
In the present application, on 26 November 2010, in the Veterans’ Review Board – Application for Review, Mr Woodall requested a review of the delegate’s decision and stated he should be paid a disability pension at the “special rate” (Exhibit R5, T17, page 138). The VRB on 25 May 2011 decided at [36] that the applicant did not have an entitlement under ss 23 and 24.
The focus during the first hearing was only on special rate entitlement. Both parties addressed entitlement under s 24 only in their Statement of Facts and Contentions (SFCs) lodged prior to the commencement of the hearing. An electronic search of the transcript during the three days of the first hearing does not record the words intermediate rate or s 23 were ever spoken or submitted by either representative, excepting a reference at page 173 of the transcript, where s 23, which is referred to in s 19(6) and which was recited by counsel in closing submissions.
There was some evidence by the witnesses whether the veteran could work more than eight (s 24) or more than 20 hours (s 23) per week.
We did not address s 23 in our decision. We were influenced by the applicant’s claim, the SFCs before hearing and the submissions of counsel at the conclusion of the evidence.
The Legislation
The relevant parts of s 24 are as follows:
(1) This section applies to a veteran if:
(aa) …
(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
…
(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.
Submissions of Counsel
Two members of the Full Court in Smith (Rares J at [11]; Foster J at [174]) recorded the three elements comprising s 24(2)(b), as did both counsel at the re-hearing. The submissions of counsel were delivered having regard to those elements which are:
·has the veteran been genuinely seeking to engage in remunerative work?
·but for incapacity by war-caused injuries the veteran would be continuing to seek to engage in remunerative work? and
·is the war-caused incapacity the substantial cause of his inability to obtain remunerative work?
If the applicant satisfies these elements, he will be entitled to pension at the special rate under s 24(2)(b).
Has the veteran been genuinely seeking to engage in remunerative work?
It was not in dispute between the parties that subsequent to the applicant being made redundant in October 2008, he thereafter until September 2009 applied for about 70 jobs. He received a response from five employers to whom he applied and was interviewed on three occasions. On one occasion he was shown through a warehouse following an interview with Epping Furniture.
The respondent conceded that the above attempts by the applicant do constitute genuine attempts by him to engage in remunerative work. That concession is properly made.
But for incapacity by war-caused injuries the veteran would be continuing to seek to engage in remunerative work?
During the first hearing, the applicant was asked why he had stopped applying for jobs. The following question and answer is reproduced from the transcript (page 35).
So following the dismissal you started applying for other positions, as you described to us, and that continued with the 70 or more over the next – almost a year to about August 2009, and why did you stop applying?
That’s when the Commission granted me the temporary [special rate pension payments] and I had – by that time I had lost all confidence in the fact that I was going to get work so I just took it on board to have – that’s it. That will do me for a while and I will see what happens later on. I was expecting to go from temporary … to full [special rate pension payments]. That was why – because I never got any better. That’s the way I was looking at it.
Ms Ryan for the applicant submitted that the applicant ceased looking for work by September 2009 because he realised that his health would not improve, he was not going to obtain employment (having attempted on 70 occasions), and he was granted temporary special rate pension.
It was submitted that the applicant had made genuine attempts to obtain employment, he came to the realisation that employment would not be obtained and he was not required to continue to make futile or humiliating attempts.
Ms Maud for the respondent submitted that this issue needs to be answered my putting aside the applicant’s war-caused incapacities and giving consideration to what he would have done, but for those incapacities.
On the applicant’s evidence during the first hearing, it was submitted that he ceased looking for work because he had lost confidence that he would be able to obtain it. From that time, the applicant ceased to engage in remunerative work. He did not give evidence that his back pain or his GAD prohibited him from continuing to seek employment. Additionally, the applicant’s confidence was affected about three months after his redundancy when he was discharged from the Army Reserve.
Is the war-caused incapacity the substantial cause of the applicant’s inability to obtain remunerative work?
Ms Ryan submitted that only in exceptional circumstances would a prospective employer notify an unsuccessful job applicant that he or she was not engaged because of pre-existing injury. In deciding whether the applicant’s incapacity was the substantial cause of his inability to obtain work, consideration should be given to s 119(1)(h) and the Tribunal should therefore be mindful, not as a substitute for evidence, but of the difficulties a veteran would have in ascertaining the existence of a relevant fact or circumstance.
It is not in dispute that the applicant made 70 job applications, received five responses and only three interviews. He was never given an explanation from those persons who interviewed him why he was not selected. However, it is known that:
·the applicant performed badly during interviews. In his statement (Exhibit A1, page 3) lodged during the hearing, the applicant recorded, in relation to his three interviews:
… I had difficulty focusing due to concentration issues which relate to my anxiety disorder. I did not respond well to questions in the interview situation. Additionally, I disclosed to the potential employers my back problems after I was questioned on whether I had medical issues. It is my belief that my back condition was a significant reason why I was not offered employment by those who interviewed me. I also believe that my inability to interview well was also a real factor.
·the applicant was escorted through a warehouse at Epping Furniture by its personnel. When he observed that the premises did not have a loading ramp, he was told that he would be required to undertake heavy lifting, from ground level. He disclosed that he had back problems. The applicant said that he was then told they were looking to engage a younger person (Transcript, pages 14, 15 and 53).
Ms Ryan submitted that the substantial causes of the applicant’s inability to obtain remunerative work were:
(a)his incapacity by his war-caused injuries;
(b)he would not have impressed at interview because of the effects of his GAD and the disclosure of his back injury;
(c)his decision to cease engaging in remunerative work, that is leaving the workforce, because his applications to 70 potential employers made over 11 months had been unsuccessful and continuing his attempts would have been futile and humiliating; and
(d)his recognition that he was unemployable because his GAD and back conditions were not improving and he had no capacity for work.
Ms Maud relied on the authority of Kiefel J in Fox v Repatriation Commission (1997) 45 ALD 317 where at 319-320 her Honour decided:
The words ‘the substantial cause’ require that, if the incapacity is not of itself productive of the inability to work, it is nevertheless the operative factor which, more than any other, explains it. That something might be a ‘substantial cause’ has regard to the situation where there may be a number of factors operating which are of sufficient causal significance to qualify as substantial…
It was submitted that the word the, (as opposed to a), in circumstances where multiple causes for incapacity exist, indicates that the substantial cause must be the predominant cause.
The applicant’s circumstances pointed to the causes of his inability to obtain remunerative employment being a combination of his incapacity by war-caused injuries, redundancy, his age and his employment history. It was also contended that the labour market during the time he was seeking work was very competitive as a consequence of the global financial crisis.
Ms Maud submitted that although the applicant was interviewed on three occasions, there were 67 other employers who did not invite him for an interview. None of them knew of any incapacity by war-caused injuries, which could not therefore be the substantial cause of inability to obtain work.
Ms Maud further submitted that the Tribunal should find that the persons at Epping Furniture preferred to engage a younger person.
It was therefore contended that it should not be found that the substantial cause of the applicant’s inability to obtain remunerative work was incapacity by his war-caused injuries.
Conclusion and Reasons for Decision
The decision in Smith is significant in its breadth of application to many appeals initiated by veterans. It does reaffirm the spirit in which the Veterans’ Entitlement Act 1986 should be interpreted but goes further because it clarifies a number of provisions which have been the subject of litigation for many years.
In Sheldon v Repatriations Commission [2014] FCA 1388 (Sheldon), Collier J at [28] summarised a number of key points emerging from the combined judgment in Smith, some of which are relevant to this application.
In my view, the principles that emerge (mainly from) Smith and which apply in this review are as follows:
·s 24(1)(c) is a beneficial provision and should be construed practically [17]; if a veteran satisfies s 24(1)(c), s 24(2)(b) will have no role [176]; s 24(2)(b) is facultative [21], ameliorative [173] and a gateway [183] (giving entry to the potential of an entitlement that cannot be satisfied by s 24(1)(c));
·the expression remunerative work, signifies the type of work which the veteran previously undertook and means any substantive remunerative work that the veteran has ever undertaken [120]; (work does not mean an occupation or specific types of jobs – Repatriation Commission v Connell (2011) 197 FCR 228 at [27] and Repatriation Commission v Butcher (2007) 94 ALD 364 at [7]; s 5Q defines remunerative work as includes any remunerative activity);
·the expression continuing to undertake remunerative work that the veteran was undertaking (s. 24(1)(c)) must be construed in a realistic and practical way so as to avoid underlying technical constraints… [17]; Sheldon at [28];
·a veteran must sincerely or honestly do something to attempt or try to engage in remunerative work in order to satisfy the provision genuinely seeking to engage in remunerative work [21], [23], [49] and [184]; Leane v Repatriation Commission (2004) 81 ALD 625 (Leane) at 632;
·a determination of whether a veteran has a capacity to undertake remunerative work can be assisted by s 28 because the respondent shall have regard only to the vocational, trade and professional skills, qualifications and experience of the veteran (skills), the kinds of remunerative work a person with those skills might reasonably undertake and the degree to which a physical or mental impairment by a war-caused injury or disease has reduced the capacity of the veteran to undertake those kinds of remunerative work;
·an assessment of entitlement, rate of pension and the date of commencement of payment of pension during the assessment period is determined by s 19(5C); qualification if any under s 24(2)(b) is determined at the commencement of or during the assessment period [25], [51], [69], [183] and [185]; Leane at page 633.
·s 24(2)(b) does not require that a veteran must be genuinely seeking work during the assessment period [185]; regard must be given to the circumstances of the veteran prior to the commencement of the assessment period; those circumstances are not excluded by the legislation [185]; a veteran is entitled to rely on genuine efforts to find work before the commencement of the assessment period [69]; when the claim for pension has been made, that is at the commencement of the assessment period, it will often reflect that the veteran has been genuinely seeking to engage in remunerative work [25].
The applicant suffers a number of war-caused injuries and diseases which have been accepted by the respondent which previously entitled him to temporary payment of the special rate pension for about 22 months until it was reduced to 100 per cent of the general rate (which he had been paid before the temporary special rate pension payments).
The predominant war-caused injuries are GAD and intervertebral disc displacement. Hypertension is also an accepted disability. That condition was a factor in his dismissal from the Army Reserve.
After he was made redundant in October 2008 by his last employer, with whom he had been engaged for 10 or 11 years, he applied by post for about 70 jobs over 11 months until September 2009. He received five responses; two were letters of rejection and three offered him an interview. It was not disputed that the applicant had been genuinely seeking to engage in work. That is clearly evident by the number of applications he made for employment.
The second issue is but for the applicant’s incapacity he would have continued to seek employment.
The applicant worked many years with his last employer, despite the presence of back pain, which was also frequently incapacitating. Despite that injury, he did place himself on the labour market and sought work, evident by his multiple applications.
The applicant was also emotionally volatile which was attributable to his GAD and a reaction to his persisting back pain. I think it is fortunate that the applicant was engaged with his last employer, who by all accounts was particularly tolerant of his conduct in the workplace. Whilst it is obvious the applicant became unemployed immediately following redundancy and he probably would then have had difficulty demonstrating incapacity, I think a finding of incapacity can be made 11 months later, at about the time the respondent commenced to make temporary payments of special rate pension. It must also not be overlooked that the applicant said in evidence that there had not been any improvement in his back or GAD illnesses during the time that he was making his job applications.
I am satisfied that his attempts to seek work were genuinely made and then over a period of 11 months, however he reached a stage that his back pain and GAD were not improving and he lost confidence in himself and the likelihood of obtaining work.
On review of his circumstances, I am satisfied that the applicant became incapacitated by his war-caused injuries, at about the time that it became obvious that he would not receive a positive response to any of his 70 job applications.
The applicant’s last employer was probably the benevolent or sympathetic type of person discussed by Rares J at [21] in Smith. The applicant was fortunate to have had an employer who tolerated his absences and outbursts. I doubt there would many others who would have been as tolerant.
The medical evidence during the hearing, on balance, pointed to incapacity by the war-caused injuries, however our focus, then, was on s 24(1)(c) and we concluded that one of the reasons the applicant ceased work, was the redundancy. The issue now to be determined, by the focus on s 24(2)(b), is very different.
Doctor Kaplan, a consultant psychiatrist, was of the opinion that the GAD would prohibit the applicant from undertaking work. Doctors Pomorin and Strauss, both psychiatrists, reported that the applicant could not work more than eight hours per week. There was an issue of whether the applicant suffered alcohol abuse and if he did, whether it affected his capacity to work. On review of that evidence, especially the evidence from Dr Pomorin and the evidence of the applicant, I would not find, nor did we (refer the reasons at paragraph 122) that the consumption of alcohol had any influence on the applicant’s capacity for work.
Doctors Thomas and Markov gave evidence with respect to the applicant’s back injury. There was a significant distinction between them concerning diagnosis. Dr Thomas was of the opinion that the back injury would have prohibited the applicant working beyond 20 hours per week but whether the applicant had a capacity of less than eight hours per week was dependent on the opinions of the psychiatrists to whom he deferred.
I think it would be harsh to find, as the respondent submitted, that the applicant cannot satisfy the but for test because he lost confidence. Of course being unsuccessful in 70 job applications and being dismissed by the Army Reserve two months after redundancy would be demoralising, but to find loss of confidence only as the cause of the applicant ceasing to look for work would be to ignore the totality of the medical evidence.
I am satisfied that but for the incapacity by his war-caused injuries, the applicant would have been continuing to seek to engage in remunerative work.
The remaining issue is whether the incapacity was the substantial cause of his inability to obtain remunerative work.
The language of s 24(1)(c) would appear to contemplate the potential entitlement to special rate pension in the circumstances of a veteran who was employed but was prevented from continuing that employment by incapacity from war-caused injuries alone. Section 24(2)(b) appears to contemplate the circumstances of a veteran who has not been working and has been seeking work but the substantial cause of him being unable to obtain it is the incapacity by the war-caused injuries. If that is established, he is deemed to be prevented from continuing to undertake work.
The apparent distinction therefore between those provisions is the former enquires into whether the incapacity by war-caused injuries alone prevented the veteran from continuing to work whereas the latter provision enquires into whether the incapacity by war-caused injuries was the substantial cause of an inability to obtain work.
Section 24(2)(b) is often referred to as an ameliorative provision, because in the absence of having to satisfy the alone test provisions of s 24(1)(c), if the war-caused injuries are the substantial cause of an inability to obtain work, the veteran is deemed to be prevented by incapacity from continuing to undertake remunerative work that was previously undertaken.
In the circumstances of this application, the respondent contends that the applicant cannot establish that the substantial cause of his inability to obtain work was his war-caused injuries. It was put that in the absence of 67 potential employers to whom he applied being aware of his war-caused injuries, it cannot be found that those injuries were the substantial cause of an inability to obtain work.
The material before the Tribunal does point to the other three employers to whom the applicant applied rejecting him because of his injuries. When those injuries did become known to them during interviews, any prospect of employment with them became fatal. I concede that neither of them said words to that effect, however his emotional state during interview on two occasions, by reason of his GAD and disclosure of his back injury does raise a reasonable inference that his war-caused injuries were a substantial cause of his inability to be engaged by those employers. That is so because his prior work experience and qualifications were of some attraction to those employers because they responded to his application and did interview him.
The persons at the Epping Furniture went one step further and showed him through their premises, however when he was told that there was an expectation of him having to lift from floor level and the applicant indicating he would not be able to perform that work because of his back injury, he was told by those persons that they would prefer to engage a younger person. I think that response should be treated with some suspicion.
It was contended on behalf of the respondent that it should not be found that the applicant was unsuccessful in that application because if that potential employer was truly looking to engage a younger person, the applicant would not have been shown through the warehouse.
There may be some force in that contention however on balance, it could also be contended, and I will make this finding, that the communication to the applicant that he would not be engaged because a younger person would be preferred, could have been expressed before the tour of the workplace occurred. I think it is no coincidence that the potential employer notified the applicant that a younger person would be preferred at the time the applicant was told he would be required to lift from floor level, also at about time the applicant disclosed that he had a back injury.
I am also satisfied that it may reasonably be inferred that the experience of the applicant on those three occasions is indicative of the likely outcome, had he been interviewed elsewhere.
Other employers might have preferred to engage a younger person, or a person who possessed skills that may readily be adapted to the proposed work (that the applicant did not have), so far as it might have been gleaned from his written application. Additionally, the applicant may have faced competition amongst many other persons who applied for the same position. But it does not follow that those reasons individually or in combination were the substantial cause of his inability to obtain remunerative work.
I think it may also reasonably be inferred that the applicant would not have presented well at interview and he was vulnerable to rejection, especially when it would have become known that he had a back injury, as he volunteered on the three occasions where he was interviewed.
A determination of the substantial cause of the inability of a veteran to obtain remunerative work by war-caused injury must take account of the likelihood of the outcome of his presentation to potential employers. It must be balanced also against other causes which might reasonably be considered by those employers.
It would not be unusual for a potential employer to be cautious when considering engaging a person who discloses injuries which might either have affected the ability of that person to undertake the proposed work, to cause uncertainty of regularity of work by time off because of an exacerbation of back pain or the GAD or expose the employer to claims for compensation. I think it would be also notoriously difficult for any job applicant to obtain reasons for rejection of a job application, especially when the application was not acknowledged.
There is no onus on a veteran, the legislation is beneficial in nature and it should be constructed liberally and in a practical way (Hill v Repatriation Commission (2004) 82 ALD 60 at [44]; Repatriation Commission v Richmond [2014] FCAFC 124 at [92]; Smith at [17]).
I have not been able to locate an authority, nor was any suggested during submissions where the expression inability to obtain work has been discussed or determined.
The word inability, followed by the words to obtain, suggests, if literally and rigidly applied, that the veteran was lacking in ability to acquire or procure remunerative work. To obtain also involves the giving or granting of a job from an employer to a veteran who has sought to obtain it.
The respondent contends that the absence of knowledge by the other 67 employers of his back injury and GAD prohibit him from demonstrating an inability to obtain remunerative work by his incapacity because they must have rejected him for other reasons.
Surely a veteran is entitled to raise a reasonable inference or submit a hypothesis that if his incapacity by war-caused injuries were known to potential employers, it would be unlikely that he would obtain remunerative work. That inference is bolstered by the experience the applicant had with three employers that in fact did interview him and rejected him when his injuries became known.
If s 24(2)(b) does ameliorate the effect of the alone test in s 24(1)(c), the extent and nature of the war-caused injuries must be considered in a practical, liberal and beneficial manner and be balanced against those other factors that might discriminate against being engaged, in order to determine whether the substantial cause of the inability to obtain work is incapacity by war-caused injuries. In this application, I am satisfied that the greater or more dominant cause – the substantial cause – was the applicant’s incapacity by war-caused injuries.
Additionally, a realistic appraisal of the ability of a veteran with hypertension, anxiety disorder and a back injury to obtain work of a manual nature involving lifting and standing would conclude the person with those disabilities is not only unlikely to procure or acquire a job but it is equally unlikely that a job would be given or granted by a potential employer. The substantial cause would be the war-caused injuries.
The focus of our review initially was on s 24(1)(c) and its alone test. But the exercise now involves a finding of the substantial cause of his inability to obtain work (s 24(2)(b)).
In Smith, Foster J at [184] decided that a veteran who had been genuinely seeking to engage in remunerative work and would but for the incapacity have been continuing to seek to engage in that work would be entitled to pension and a higher rate if the war caused incapacity is the substantial cause of the veteran’s inability to obtain remunerative work.
I am satisfied that for all of the above reasons, no less the extent of the applicant’s incapacity by war-caused injuries, that the substantial cause of his inability to obtain work was his incapacity by war-caused injuries. In those circumstances he is to be deemed as being prevented from continuing to undertake the remunerative work that he was undertaking.
It follows that the applicant does have an entitlement to special rate pension. Entitlement to it will exist from the commencement of the assessment period, being 29 July 2010.
Decision
I am satisfied that the decision under review should be set aside and in substitution for it the applicant is entitled to payment of pension at the special rate.
I certify that the preceding 82 (eighty-two) paragraphs are a true copy of the reasons for the decision herein of John Handley, Senior Member. ......[sgd]..................................................................
Associate
Dated 20 March 2015
Date(s) of hearing 10 December 2014 Counsel for the Applicant Fiona Ryan Solicitors for the Applicant Williams Winter Counsel for the Respondent Zoey Maud Solicitors for the Respondent Australian Government Solicitor
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