McKerlie and Repatriation Commission
[2004] AATA 1111
•25 October 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1111
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2003/509
VETERANS' AFFAIRS DIVISION ) Re DONALD MCKERLIE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date25 October 2004
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
D G Jarvis
(Signed)
Deputy President
CATCHWORDS
VETERANS' ENTITLEMENTS - disability pension - rate of pension payable - special rate - applicant not prevented by war-caused disease from continuing to undertake relevant remunerative work - decision under review affirmed
Veterans’ Entitlements Act 1986 s 24
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Smith (1987) 15 FCR 327
Banovich v Repatriation Commission (1986) 69 ALR 395
Doig v Repatriation Commission, Federal Court, 18 December 1996, 1106/96
Starcevich v Repatriation Commission (1987) 18 FCR 221
Repatriation Commission v Graham [2004] FCA 1287
Cavell v Repatriation Commission (1988) 9 AAR 534
Forbes v Repatriation Commission (2000) 101 FCR 50
Repatriation Commission v Hendy (2002) 76 ALD 47
Re Almond and Secretary, Department of Social Security (1990) 20 ALD 746
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247
Re Bertram and Repatriation Commission (AAT 2783, 29 July 1986)
Re Smith and Repatriation Commission (1987) 12 ALD 534
Counsel v Repatriation Commission (2002) 122 FCR 476
REASONS FOR DECISION
25 October 2004 Deputy President D G Jarvis 1. Donald McKerlie had operational service in Vietnam from 22 April 1967 to 5 August 1968. He has accepted disabilities of post traumatic stress disorder (“PTSD”), depressive disorder, hypertension, bilateral sensorineural hearing loss and diabetes mellitus. He also suffers from gout and a back condition, but it was not suggested in the present proceedings that these were war-caused.
2. Mr McKerlie ceased work in 1998, and in 1999 he was granted a disability pension at 100% of the general rate. On 3 December 2002, Mr McKerlie lodged an application for an increase in the disability pension. In a reviewable decision, the Repatriation Commission refused this application, and that decision was affirmed on review by the Veterans’ Review Board (“VRB”). Mr McKerlie has applied to this Tribunal for review of the decision to refuse his application for pension at the special rate.
Issues for Determination
3. The applicant’s entitlement to the special rate pension is to be determined under s 24 of the Veterans’ Entitlements Act 1986 (“VE Act”). The issue before me is whether Mr McKerlie satisfies s 24(1)(c) of the VE Act, that is:
· whether he is, by reason of incapacity from his war-caused injuries alone, prevented from continuing to undertake remunerative work that he had been undertaking; and
· whether in consequence he is suffering a loss of wages or earnings on his own account which he would not be suffering if he were free of that incapacity.
4. It was common ground that Mr McKerlie satisfies the first criterion under s 24 (namely, a determination of entitlement to a pension at a rate higher than 70% of the general rate), and the second criterion (namely, an incapacity from war-caused conditions of such a nature as, of themselves alone, to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week). These criteria are contained in s 24(1)(a)(i) and s 24(1)(b) respectively of the VE Act.
5. There was no evidence that after Mr McKerlie ceased work he had been seeking to engage in remunerative work, and it was accepted that the ameliorative provisions of s 24(2)(b) have no application.
Background Facts
6. I make the following findings from oral or documentary evidence before me which was not disputed.
7. Mr McKerlie is aged 59, having been born on 18 March 1945. He completed his schooling at Port Augusta High School to Intermediate level. After leaving school he had a few casual jobs, and then obtained employment as a junior clerk with the Electricity Trust of South Australia (“ETSA”) when he was 17. He continued to be employed by ETSA, apart from his Army service, until he accepted a redundancy package from ETSA in 1991. At that stage, he had attained a more senior position in ETSA as a personnel officer, and was in charge of hiring and firing staff. He was told that if he had not accepted the redundancy package, he would have had to go back to the pay office and work with several other people.
8. In 1966 Mr McKerlie was called up for National Service, and he was discharged in April 1968. He served in Vietnam with 86 Transport Platoon, and was a transport driver in Vung Tau.
9. In 1992, after he had left ETSA, Mr McKerlie bought a truck with the intention of operating a cartage business with his son Adam, who was then 20 and without work. He later purchased a bob-cat, and he and his son obtained a contract with the Boral Quarry. They also obtained contract work in the Port Augusta/Stirling North district. Mr McKerlie continued to work in this business until 1998, but withdrew from the business after a family discussion with his wife and son.
Legislation
10. Sections 24(1)(c) and 24(2)(a) of the VE Act provide as follows:
“24(1) This section applies to a veteran if
…
(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; …”
If s 24(1) of the VE Act applies to the applicant, he will be entitled to a pension at the special rate provided for in s 24(4).
Applicant’s Claim for Pension at Special Rate
11. Mr McKerlie said that he had a good relationship with his son before they commenced the cartage and bob-cat business. However, he said that after they commenced their new business he became short-tempered and argumentative, and he found that he was always telling his son that he was not doing things the right way. He said that he argued with his son in front of customers.
12. Mr McKerlie said that matters culminated in a family meeting between himself, his wife and his son. During this meeting they both expressed their concern about his behaviour in front of customers, and asked him to withdraw from the business and leave it to his son to carry on. He said that at first he did not agree, but then he realised that he had been unable to work with his son, and so he withdrew completely from the business.
13. In a joint statement included in the T Documents (exhibit A1, T39, page 162) Mr McKerlie’s wife and son, Leonie McKerlie and Adam McKerlie, confirmed that within a short period after buying the business for Adam, Mr McKerlie developed a belligerent attitude towards Adam that soured his previously good relationship with him, and this extended to other members of the family. The joint statement continues:
“Driving the truck in traffic caused (Mr McKerlie) extreme anxiety and stressed him to such an extent that he started to argue with customers and even with people at the Quarry with whom he had previously enjoyed a good social liason (sic). This situation developed to such a degree that we feared that the future of both the business and the (sic) our family was at risk and we urged (Mr McKerlie) to discontinue all involvement. (His) full time association with the business was and is quite impossible.”
14. Counsel for Mr McKerlie, Mr Swan, called Mrs McKerlie at the request of the Commission so that she should be made available for cross-examination. She confirmed in cross-examination that over the years Mr McKerlie became more and more bad tempered and “grumpy”, and that she and her son asked him to withdraw from the business because of his behaviour.
15. I was asked to find on the basis of the evidence referred to above that Mr McKerlie was prevented from continuing to undertake his work as a partner in the cartage and bob-cat business because of the effects of his post traumatic stress disorder and depression, and that these conditions alone prevent him from continuing to undertake this work. His claim in this regard is supported by two medical reports from Dr Elaine Skinner, which are included in the T Documents (exhibit A1, T9, pages 62-66, and T37, exhibit A1, pages 156-159). Dr Skinner refers to various experiences which Mr McKerlie had whilst he was in Vietnam and which were causing a severe to extreme level of distress with symptoms occurring daily. She considered that his conditions rendered him unable to work, and she describes the unfortunate effects of his conditions on his daily living and domestic and interpersonal relationships.
16. The Commission accepted that Mr McKerlie’s war-caused conditions prevented him from continuing to undertake remunerative work, but asserted that he was suffering from a back condition, and that this was a contributing factor in his incapacity for work. I will refer in some detail below to the evidence before me as to Mr McKerlie’s back condition.
Consideration
17. The Commission, and this Tribunal, standing in the shoes of the Commission when determining an application for review, must determine the application made by Mr McKerlie in accordance with s 19 of the VE Act. Under s 19(5C) it is necessary to assess the rate or rates at which the pension would have been payable from time-to-time during the “assessment period”. That expression is defined in s 19(9) of the VE Act to mean period starting on the application day (i.e. 3 December 2002) and ending when the application is determined.
18. In considering the application of s 24(1)(c) of the VE Act, I refer first to the analysis of Branson J (with whom the other members of the Full Court of the Federal Court agreed) in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4.9. Her Honour said that a proper consideration of s 24(1)(c) required responses to the following four questions:
“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 answers 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 account that he would not be suffering if he were free of that incapacity?”
19. A determination of the responses to these questions entails an examination of the facts relevant to each question. Under s 120(4) of the VE Act, the Tribunal must decide these issues to its reasonable satisfaction, a standard which equates with proof on the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327. Neither party has an onus of proof (s 120(6) of the VE Act), and the Tribunal must act according to substantial justice, and the substantial merits of the case, without regard to legal form and technicalities (s 119(1)(g)).
20. As regards the first question in Flentjar, the reference to “remunerative work that the veteran was undertaking” is to be read as a reference to the type of work which the veteran had previously undertaken, and not to any particular job: Banovich v Repatriation Commission (1986) 69 ALR 395. Accordingly, the loss of a particular job for reasons unrelated to the war-caused condition is immaterial: Doig v Repatriation Commission, Federal Court, 18 December 1996, 1106/96. The remunerative work does not have to be the last work undertaken by the veteran (unless the veteran is over 65 at the time of a claim or application): Starcevich v Repatriation Commission (1987) 18 FCR 221 at 454 per Fox J. It is relevant to consider any “substantive” remunerative work that the veteran has undertaken in the past, but this may not necessarily include work that the veteran had undertaken in the far distant past, as this may not be a relevant comparison: Repatriation Commission v Graham [2004] FCA 1287.
21. In the present matter, I find on the evidence before me that the type of work which Mr McKerlie had previously undertaken was working as:
·a personnel officer, including work as a pay clerk; and
·a partner in a cartage and bob-cat business, entailing mainly administrative functions and also driving a truck and operating a bob-cat on a relieving basis.
22. The second question in Flentjar entails a simple factual decision, and if s 24(1)(b) is satisfied it is unlikely to be an issue. In the present matter the Commission acknowledges that s 24(1)(b) has been satisfied, and I find that Mr McKerlie, by reason of his war-caused injury, was prevented from continuing to undertake the type of work referred to in the preceding paragraph.
23. The third question in Flentjar refers to the “alone” test in s 24(1)(c). On the authority of Cavell v Repatriation Commission (1988) 9 AAR 534, and the analysis of Burchett J’s judgment in that case in Forbes v Repatriation Commission (2000) 101 FCR 50 at [33], the word “alone”, in the absence of ambiguity, should not have other words substituted for it. The word “alone” as it appears in s 24(1)(c) requires a practical decision as to whether the veteran’s loss of remunerative work is attributable to his or her service-related incapacities, and not to something else as well; and any factor having employment consequences which plays a part in the veteran’s inability to work or to obtain and hold remunerative employment is sufficient to displace the veteran’s case for pension at the special rate.
24. In Cavell (supra, at page 539), Burchett J said further that the true task of the Administrative Appeals Tribunal, in applying the “alone” test in s 24(1)(c) of the VE Act, was:
“… to make a practical decision whether the veteran’s loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide.”
In Forbes (supra), RD Nicholson J said (at [39]):
“The question whether the veteran by reason of the war-caused condition ‘alone’ has been prevented from continuing to undertake remunerative work can only be answered by reference to all the circumstances in which the war-caused condition exists.”
25. The potential relevance of other factors which might prevent a veteran from continuing to undertake the relevant remunerative work was further explained in Repatriation Commission v Hendy (2002) 76 ALD 47 at [37] as follows:
“The language of s 24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the Veteran from working. The decision-maker is required to take into account any factor that plays a part or contributes to a veteran’s being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period. … [H]aving considered any or all of the factors which may have contributed to a veteran’s incapacity, the tribunal is then required to determine whether it is the veteran’s war-caused injury or war-caused disease, or both, alone which prevent the veteran from continuing to undertake remunerative work.”
Evidence as to Back Condition and Findings
26. Mr McKerlie said that in approximately 1972 he had some back pain, although he could not recall any specific event that caused this. He said that a general practitioner in Port Augusta arranged for x-rays to be taken and he was told that there was nothing wrong with his back other than normal wear and tear. He said that since then he always has some back pain if he works in the garden or does any heavy or strenuous work that involves lifting or bending over an extended time. However, he had never had any further treatment for his back since 1972. He said that over the years he has done cement work, built stables for horses, laid concrete paths and put up a fence, all before 1999 when he was examined by a Dr Wright as part of the Commission’s investigation of his claim for an increased pension. He said that he helped a contractor to unload his truck when his house was rendered in about 2001, and he lifted things at that time.
27. As regards the truck and bob-cat work, he said that this was normally done by his son, and his role was to do the bookwork, and he only occasionally drove the truck when his son was sick or unable to do it himself. He said that giving up the business was a consequence of the family meeting and the concerns of his wife and son, and not because of his back.
28. Mr McKerlie also said that he found it hard to operate the levers at the quarry on occasions when he was working there, because considerable strength was needed to operate the levers. He said that he thought that this would have been difficult for anyone coming out of office work and then undertaking heavy manual work.
29. I also note that in a report dated 7 September 2000 from Mr McKerlie’s general practitioner, Dr A Wilson of Port Augusta (exhibit A1, T46, page 202), Dr Wilson says:
“… Mr McKerlie’s main problem is his major depression disorder and post traumatic stress disorder. His gout and low back pain are only minor in comparison and are not a significant problem with his employment.
These disabilities should not be taken into account when assessing his pension rate.”
30. A medical report dated 28 October 2003 from an orthopaedic surgeon, Mr PL Fry, was also tendered in support of Mr McKerlie’s claim. After summarising the history given to him, which indicated that his back pain was a minor matter, Mr Fry reported on the outcome of his physical examination and on the results of x-rays of his lumbar spine, which revealed minor spondylitic changes in the lower lumbar area, a little vertebral spurring and some minor facet joint changes, but nothing of particular note. Mr Fry then stated his opinion as follows:
“Mr McKerlie has a long history of back aches, dull pains coming and going, a little stiffness too it seems if the back is kept in one position for a while, but nothing of particular note, and in general this matches exactly the physical findings and the xrays. They simply showed some minor wear changes. It is apparent from not only the history but the other features too, that his back problems are insufficient to disable him from the practical performance of physical work if he desired – specifically the bob cat work etc., that was mentioned. The only reason, it appeared from the history, that Mr McKerlie did not still assist his son with the bob cat work was personal friction and definitely not back symptoms.
In short, he has some minor symptoms from his back, they are related to the personal aging process, but they are certainly insufficient to disbar him from the reasonable performance of a reasonable amount of work and specifically the bob cat type of work.” (exhibit A2, page 3)
31. A different conclusion as to the relevance of Mr McKerlie’s back condition was reached by Dr Graham Wright, an occupational physician (exhibit A1, T29, pages 117-120). In a report dated 3 November 1999, Dr Wright records being given a history that after Mr McKerlie left ETSA he took work as a truck and bob-cat operator, and his back deteriorated while he was doing this heavier work. Dr Wright then records in more detail the history he obtained as to the work involved in being a truck driver, and says:
“… he found this very stressful on his back. The central reason for leaving this work was that his ‘back was not up to it’. In addition, he had emotional distress, he was drinking heavily, he was irritable and aggressive. His work generally allowed him to avoid having much to do with customers.”
Dr Wright also reports that when he examined Mr McKerlie he found that there were significant limitations in Mr McKerlie’s range of movement, and these were consistent with the level of symptomatology that Mr McKerlie had described. Dr Wright then expresses the opinion that the principal causes of Mr McKerlie’s not being able to work are his PTSD and depression, but he proceeds to express the opinion that his back condition “significantly limits” his capacity to undertake other than light work, and he adds that “(h)e has worked as a truck driver and bobcat operator in the past, but in my opinion he could no longer perform this work.”
32. Dr Wright was called to give evidence and he confirmed the opinion expressed in his report. However, he acknowledged in cross-examination that his opinion assumed that the history he had been given was correct, and if this was not the case, his opinion “fell”.
33. Mr McKerlie admitted in cross-examination that he had deliberately exaggerated the symptoms of his back condition when he saw Dr Wright because he thought that this would assist his claim for an increased pension. He said he decided to do this on the spur of the moment when he was talking to Dr Wright at the time of his examination. He admitted further that he was trying to “bend the doctor’s report” and he thought it would help him in his claim for there to be further things wrong with him. Mr McKerlie maintained, however, that the evidence he had given to this Tribunal was the truth, and that he was not suffering from severe lower back pain when he was working with his son in the cartage and bob-cat business. He reiterated that his principal role in the business was a bookkeeping and administrative role.
34. Mrs McKerlie also gave evidence, and I have also taken her evidence into account, but it was not determinative of the issues before me. There are, however, certain documents in evidence which indicate that Mr McKerlie’s back pain was of some significance in assessing his capacity to continue his involvement with the cartage and bob-cat business. I refer to the following documentary evidence.
(a) The Income Support Pension Claim Form signed by Mr McKerlie on 2 December 1998 includes reference to a back condition in answer to question 2, which requests details of the injury or illness for which invalidity is claimed. The form also states “severe lower back pain – x-ray enclosed” in answer to question 12, which requests “details of treatment you have received during the last 12 months for the injury or illness for which you are claiming invalidity.” (exhibit A1, T6, pages 40-41).
(b) Further information from Dr Wilson is included in the T Documents. He refers in the Income Support Pension Claim Form (exhibit A1, T6, at page 42) to “his low back pain” in describing Mr McKerlie’s medical history and permanent incapacity. In assessing his ability to undertake employment, he indicates that the kinds of work described as “Moderate/semi-skilled”, “Heavy/skilled”, “Heavy/semi-skilled”, and “Heavy/lessor skilled” would not be available to Mr McKerlie, or would not be suitable for him, because of his low back pain or (in the last case) because of his limited flexibility. I note that the description of the category “Moderate/semi-skilled” includes “[p]lant/machine operators (e.g. grader operator, fork-lift driver)” and the category “Heavy/skilled” includes transport drivers. Dr Wilson appears to make no reference to Mr McKerlie’s back condition in a subsequent form dated 17 April 1999, although this had apparently partially been filled in before it was sent to him, and which did not include any reference to a back condition (exhibit A1, T14, pages 71-74). In a further form dated 29 July 1999 (exhibit A1, T23, pages 107-108), Dr Wilson refers to Mr McKerlie not having had pain in his back since he stopped working in December 1998, but when asked by the Department of Veterans’ Affairs to provide detailed answers as to the effects of Mr McKerlie’s back condition on his ability to work, he replied that he was not able to provide the information and suggested that Mr McKerlie should be referred to an occupational physician (exhibit A1, T27, page 114).
(c) Dr Wright gave evidence that his practice was to send patients a questionnaire and to ask patients to complete this before their initial appointment with him. He produced a questionnaire which Mr McKerlie completed, and this was received as exhibit R1. The appointment with Mr Wright was on 19 October 1999, and the questionnaire was presumably completed shortly before then, although it is not dated. When completing the questionnaire, Mr McKerlie described his back pain as:
“NORMALLY A DULL ACHE HOWEVER AFTER CERTAIN ACTIVITIES BECOMES A THROBBING ACHE & STIFFNESS.”
The questionnaire records that the pain is constant, and that it is eased by painkillers. The questionnaire further records that the problem appeared to increase when Mr McKerlie exerted himself or tried to do any heavy work. The form concludes with the final question and answer:
“14. Is there anything else to understand your problem and how it is affecting you?
PROBLEM HAS SLOWLY DETERIORATED OVER TIME TO THE STAGE WHERE I FELT I HAD TO GIVE UP WORKING – THUS BRINGING ABOUT MY APPLICATION TO VETERAN AFFAIRS FOR ASSISTANCE.”
This document is significant not only because it is a record of Mr McKerlie’s concerns about his back made within 9 or 10 months of when he ceased work, but also because it contradicts his assertion that he only decided to exaggerate his symptoms at the time of the examination by Dr Wright.
35. I am mindful of the conflict of evidence between Dr Wright and Mr Fry. Clearly the correctness or otherwise of the history given to them by Mr McKerlie was significant in formulating their respective opinions. It is generally more difficult for the Tribunal to compare the conflicting opinions expressed by doctors where one or more of the doctors concerned does not give oral evidence. I refer in this regard to the considerations discussed in Re Almond and Secretary, Department of Social Security (1990) 20 ALD 746 and Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247, and other authorities discussed in those cases. In the present matter, Mr Fry refers to Mr McKerlie having some minor symptoms from his back, and expresses the view that they are “certainly insufficient to disbar him from the reasonable performance of a reasonable amount of work and specifically the bob cat type of work”. However, as appears from Hendy (supra) the question for me to decide is not whether the non-accepted condition would prevent Mr McKerlie from undertaking remunerative work. The question is whether his war-caused disabilities alone prevent him from undertaking the relevant remunerative work. It is therefore not clear that Mr Fry addressed the correct question when he expressed this aspect of the opinion contained in his report. Furthermore, I note that the history which Dr Wright obtained is more consistent with the documentary evidence referred to in paragraph 34 above, and his examination of Mr McKerlie took place much closer in time to his cessation of work than was the case with Mr Fry’s examination. Mr McKerlie’s recollection of relevant symptoms and their effects was therefore likely to have been more reliable in 1999 than in 2003, when he saw Mr Fry. For all of the above reasons I prefer the evidence of Dr Wright to that of Mr Fry.
36. I place little weight on the report of 7 September 2000 from Dr Wilson (exhibit A1, T46, page 202) in view of the other information provided by Dr Wilson to which I refer in paragraph 34(b) above. In any event, that report can be interpreted as saying that Mr McKerlie’s gout and low back pain were in fact contributing factors in preventing him from continuing his work, even though they were not significant factors.
37. In view of Dr Wright’s opinion, the contemporaneous documentary evidence relating to the relevance of Mr McKerlie’s back condition, and his admission that he was prepared to exaggerate when describing his symptoms to Dr Wright in order to enhance his prospects of obtaining an increased pension, I am unable to accept that Mr McKerlie’s evidence before me as to his back condition and its effect on his capacity for work was reliable or accurate.
38. For the sake of completeness, I mention one other possible analysis of the evidence (even though this was not put to me in argument). I have so far considered Mr McKerlie’s capacity to undertake the hybrid duties of his role as a partner in the cartage and bob-cat business. However, another possible way of characterising the type of work that he had previously undertaken would be to divide his functions into two distinct types of work, the first being truck driving and operating the bob-cat (which Mr McKerlie only did in order to relieve when his son was unavailable to do this work), and the other being the administrative work of arranging jobs, assisting with quotes and keeping accounts (which was the major part of the work he was doing with the partnership). In doing such administrative work he would be required to have ongoing relations and communications with customers and contractors in order to perform that type of work effectively, and having regard to the difficulties he had during his partnership activities in his relations with customers and people at the quarry, I consider that his PTSD would be likely to significantly interfere with his ability to carry out that type of work. However, on the evidence before me, I do not consider that Mr McKerlie’s back condition would be a factor which might in any way prevent or restrict him from undertaking the kind of administrative work which I have postulated.
39. Nevertheless, there was no evidence before me that Mr McKerlie had an opportunity to obtain this kind of administrative work. On the contrary, he admitted telling the VRB that he did not seek work after leaving ETSA as his job had required knowledge of the employment market, and he knew there was no work around for him. Mr McKerlie lives near Port Augusta, and he said in his evidence that he was well aware that Port Augusta has a high rate of unemployment, and his age would go against him. I find that Mr McKerlie’s age and the state of the employment market were factors which contributed to his being prevented from undertaking the administrative type of work referred to above.
40. I am accordingly satisfied that Mr McKerlie’s PTSD and depression are major disabilities and were undoubtedly the predominant cause of his inability to continue in his business, but this is not sufficient to meet the requirements of s 24(1)(c) of the VE Act. I am mindful that the applicant has no onus of proof, as mentioned above, but having regard to all of the above considerations, I am not satisfied from the evidence before me that Mr McKerlie was, during the assessment period, by reason of incapacity from his war-caused injury, alone, prevented from continuing to undertake remunerative work that he had been undertaking.
41. I also record that Mr Doube, the advocate for the Commission, further submitted that on the evidence before me, Mr McKerlie’s work in the cartage and bob-cat business was not remunerative work, because Mr McKerlie had only gone into the business in order to provide work and an income for his son, and there was evidence that the business did not provide sufficient profit for Mr McKerlie as well as his son. He further argued that the lack of profit from this business was a factor in the decision to withdraw from the business.
42. It appears from earlier Tribunal decisions that the reference in s 24(1)(c) to “remunerative work” does not necessarily mean profitable employment or profitable undertakings, and will extend to work where the aim is to make a profit, whether or not that aim is successful: Re Bertram and Repatriation Commission (AAT 2783, 29 July 1986). I also refer in this regard to Re Smith and Repatriation Commission (1987) 12 ALD 534 where poorly paid employment afforded no net economic benefit because of excessive expenses, but could nevertheless properly be regarded as remunerative work. Further, in Counsel v Repatriation Commission (2002) 122 FCR 476, the Full Court of the Federal Court decided that the veteran had suffered a loss of earnings on his own account in circumstances where the business partnership in which he was involved had operated at a loss for a number of years. The Court held that “earnings” in this context meant gross earnings to which the partners had access from time to time rather than net earnings.
43. Although it is not necessary for me to determine these issues in view of my above findings, I do not accept the Commission’s further submissions. As far as it went, the evidence before me suggests that the work was remunerative work, even though Mr McKerlie was not dependent on the income from the business because of other assets he had, and because his wife was also working at the relevant time. Mr McKerlie referred to fluctuations in the business, but this does not mean that his involvement did not amount to remunerative work. Mrs McKerlie said that the question of money was not referred to during the discussion which led to Mr McKerlie withdrawing from the business. Mr McKerlie’s evidence was to the same effect, and I accept this position. I am satisfied that if it had not been for his disabilities, Mr McKerlie would have continued his involvement with the business, and would have received some earnings from it. Indeed, he said that this year would have been one of the best years since they had acquired the business. I find that Mr McKerlie has suffered a loss of earnings on his own account, but I further find, for the reasons referred to above, that this has not been due to his accepted disabilities alone.
Decision
44. For the above reasons I affirm the decision under review.
I certify that the 44 preceding paragraphs are a
true copy of the reasons for the decision herein
of Deputy President D G JarvisSigned: .....................................................................................
N Quirke AssociateDate/s of Hearing 4 June 2004
Date of Decision 25 October 2004
Counsel for the Applicant Mr C Swan
Solicitor for the Applicant Swan Lawyers
Advocate for the Respondent Mr G Doube
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