McLaughlan and Repatriation Commission
[2001] AATA 10
•11 January 2001
DECISION AND REASONS FOR DECISION [2001] AATA 10
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/25
VETERANS' APPEALS DIVISION )
Re Brian McLAUGHLAN
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mrs M T Lewis, Senior Member Mr M Sassella, Senior Member
Date 11 January 2001
PlaceSydney
Decision The Tribunal – 1. Sets aside those parts of the decisions of delegates of the Repatriation Commission ("the Respondent") dated 11 September 1996 and 14 March 1998 that assessed pension payable to Brian Matthew McLauchlan ("the Applicant") at 100 percent of the General Rate; 2. Substitutes therefor its decision that the Applicant is entitled to be paid pension at the Special Rate pursuant to s24 of the Veterans' Entitlements Act 1986 with effect on and from 6 June 1995.
..............................................
M T Lewis
Presiding Member
CATCHWORDS
VETERANS' AFFAIRS – assessment – Special Rate – whether unable to undertake remunerative work because of accepted disabilities alone – whether suffered loss of salary or wages - whether ceased work for reasons other than accepted disabilities – whether intended to retire aged 60 years – whether forced to take redundancy
Veterans' Entitlements Act 1986 – s24(1)(c)
Banovich v Repatriation Commission (1986) 69 ALR 395
Birtles v Repatriation Commission (1991) 33 FCR 290
Chambers v Repatriation Commission (1995) 55 FCR 9
Repatriation Commission v Bowman (1981) 38 ALR 650
Starcevich v Repatriation Commission (1987) 18 FCR 22
REASONS FOR DECISION
Mrs M T Lewis, Senior Member Mr M Sassella, Senior Member
This is an application for review of two decisions dated 11 September 1996 and 14 March 1998 made by a delegate of the Repatriation Commission ("the Respondent") which were subsequently affirmed by the Veterans' Review Board ("the VRB") on 27 October 1998. All applications for review were in time.
The first decision determined that disability pension be granted to Brian McLaughlin ("the Applicant") at 100 per cent of the General Rate with effect from 6 June 1995, following the acceptance of bilateral sensorineural hearing loss and post traumatic stress disorder ("PTSD"). The second determination continued disability pension at 100 per cent of the General Rate, following the acceptance of the conditions of alcoholic fatty liver and gastro-oesophageal reflux disease. The Applicant's rejected disabilities are lumbar spondylosis and peptic ulcer disease.
The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The Applicant gave oral evidence and tendered as evidence reports of Dr M Baz, occupational physician, dated 12 April 1999 and 18 August 1999 (exhibit A), and a Schedule of Actual Severance & Accrued Entitlements Pay (exhibit B). The Tribunal caused the Applicant's TAFE academic transcript to be included as an exhibit (T3). The following documents were tendered as evidence on behalf of the Respondent -
Report of Dr M Burns, occupational physician, dated 13 August 1999 (exhibit 1);
Prospect Electricity "Performance Appraisal and Development Review" Pilot Study (exhibit 2);
Letter from Applicant to his solicitor dated 27 July 1999 with sundry attachments (exhibit 3) (Counsel for the Applicant waived any privilege attached to this document).
legislation, and issues to be determined
The Applicant is seeking payment of pension at the Special (Totally and Permanently Incapacitated) Rate pursuant to s24 of the Veterans' Entitlements Act 1986 ("the Act"). The Tribunal was advised at the hearing that the only issue between the parties was in respect of s24(1)(c). The Respondent advised that all other aspects of s24 were conceded. The Tribunal agrees that this is a concession that was properly made. Section 24(1)(c) provides insofar as relevant –
(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 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 or 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 of wages or of earnings on his or her own account, by reason of that incapacity if:
the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from the war-caused injury or war-caused disease, or both; or
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.
The Applicant's case is that he was unable to obtain remunerative work because of his PTSD and that he was forced to take a voluntary redundancy at the age of 57 years. The Respondent contended that the Applicant's accepted disabilities were not the substantial cause of his inability to work. Rather, his intention to retire from work at the age of 60 years and the decision to purchase a home at Yamba two years before he accepted redundancy reflected the true reasons why the Applicant ceased work at the time he did.
evidenceThe Applicant was born on 11 June 1937. He enlisted in the Royal Australian Navy on 26 May 1958 and was discharged on 31 July 1978. After his service he worked as a maintenance supervisor and foreman for Kentucky Fried Chicken for 5 years. He resigned from the position because of conflict with his supervisor.
The Applicant then worked for Prospect Electricity as a senior security officer. He was responsible for security and maintenance of the head office building. He worked in that position for 4 months. He then became a supervisor of a new section known as CARES, that helped pensioners and people on lower incomes to lower their electricity bill. He supervised a team of about seven people and remained in that role for approximately 7 or 8 months. He then worked in the administrative services section as office maintenance supervisor for about eight years. After this he was transferred to the new head office building site at Huntingdon as Technical Services Clerk of Works, and Prospect's representative on site. He remained in that position until he left Prospect Electricity on 25 March 1994.
The Applicant said that during his time at Prospect Electricity he was advised that as a supervisor he did not handle staff very well. He said that from time to time he was told by his manager to "lay off a bit" with respect to his behaviour. The Applicant said that after the first 12 to 18 months he became very short tempered at work and did not get on well with others. He became critical about the people under his control. He criticised them about their performance, their manner of dress and punctuality. He said that he tried to ensure that his behaviour was acceptable but he said on a number of occasions he was allocated to jobs that removed him from supervising staff for "months on end". He said he considered at the time that his behaviour was attributable to his Naval experiences, although he now believes it was due to stress.
The Tribunal notes that evidence regarding his behaviour was consistent with the evidence provided by others. A Statutory Declaration made by his wife noted (T29, p81) –
I have been the spouse of Brian Matthew McLauchlan … since 1.11.58.
Throughout the first five or so years of our marriage, Brian was an open, loving, even tempered husband and father to his two sons. His communication skills within and without the family environment were high, his drinking habits were moderate and he was a happy and self assured family man.
During the 1960's Brian's various ships were posted to Vietnam with the last trip taking place in 1966. During and after this period, Brian began displaying symptoms of extreme anxiety. He was regularly unable to sleep a complete night without waking up from sleep in a state of nervousness and tossing around, unable to return to rest. Other changes in her personality began to appear in the form of withdrawal into himself, cessation of any but the most basic forms of communication, increased dependence on alcohol and sudden, unprovoked and terrifying (at least to the writer and the children) bursts of violent and explosive behaviour. He constantly complained that he distrusted his superiors and his subordinates in his job and he commenced treating family members as though they were subordinate serving members of the R.A.N. This behaviourial (sic) pattern increased to a level of severity which, in 1979 at the end of his serving term in the R.A.N. brought about my departure from the marital home and a separation of approximately 11 months.Since 1979, his sleep in constantly interrupted, he suffers severe anxiety attacks which do not appear to have any cause. His memory has deteriorated to the point where he cannot remember a simple piece of information for more than a few hours and he has been unable to overcome his general distrust of others sufficiently to enable him to carry on his employment.
In his most recent position with Prospect Electricity, the symptoms described above increased to a level where they were so evident, that over the..10 year period of employment, management reassessed his situation several times and each time he was moved into a position where he had less and less contact with others. The culmination was that eighteen months prior to his departure, his superiors transferred him to the Project Team and he was physically moved to the site of their new building where he was able to work alone virtually with no face to face contact with other members of staff.
Yvonne Marjorie Watts, a close friend of the Applicant and his wife since 1959, made a Statutory Declaration (T20, p80) in which she confirmed much of the evidence provided by the Applicant's wife (supra). Ms Watts also stated –
In my presence he complained often about his lack of sleep and the fact that he constantly woke during the night and was extremely tired as a result. I observed that this seemed to affect his working relationships as he was suspicious and distrustful about his workmates and the management environment and told us regularly that this was so.
It was the Applicant's evidence that he was never formally cautioned about his behaviour, nor was it ever identified in his performance appraisal. Indeed the Tribunal notes a performance appraisal of the Applicant made in 1985 (exhibit 2) (and other documentation to the same effect), in which it was stated that "Brian is a self-reliant, constructive person who has shown by his work and his study an enthusiasm for further administrative advancement". It also stated that "he has a very cool and balanced temperament, irrespective of the situation". The Applicant scored an average of 8 out of 10 in every section of that performance appraisal. The Applicant said that appraisal did not reflect the true situation because the manager at the time was a sergeant in the Air Force who would not have written anything "bad" about a returned serviceman.
The Applicant said he left his job at Prospect because he was advised by the Project Manager that if he did not apply for a redundancy package, he would be dismissed. This was because senior management "did not want him in the building after the staff had moved in" due to the inappropriate behaviour he had been exhibiting towards staff. In effect, it was the Applicant's evidence that he had no choice but to take the redundancy. In a letter to his solicitor, the Applicant noted (exhibit 3) –
..I have been led to believe that one of my previous managers is now deceased and, the other manager involved would not, under the circumstances, admit to any reason as to the true and precise circumstances of my redundancy.
After having discussed the matter with his wife, the Applicant applied for a redundancy package and was successful. The Tribunal notes that the formal offer of redundancy was dated 8 December 1993, that his last day at Prospect was 25 March 1994 and that he received severance pay in the amount of $60,753.84 (net) (exhibit B), which on the Applicant's evidence was equivalent to two years' salary.
The Applicant and his wife lived in Greystanes at the time of redundancy negotiations. He also owned a property in Lake Macquarie that was destroyed by the Newcastle earthquake. The Mine Subsidence Board subsequently made an offer to purchase the house, which the Applicant accepted.
The Applicant said he was advised by his solicitor to purchase another property to avoid paying Capital Gains Tax. He subsequently purchased a property at Yamba that he rented out initially. He and his wife moved there in March 1994 shortly after he ceased work at Prospect Electricity.
The Applicant said he moved to Yamba for financial reasons and because he wanted to leave Sydney. He decided that he would get more money if he sold his house in Sydney as the market was relatively good at the time. He intended either to re-enter the public sector to work or do some teaching once he was in Yamba. He said he had intended to remain in the workforce until he was at least aged 65 years, and maybe longer depending on his health. He also said his wife had ceased work about 18 months before they moved to Yamba because she had "had enough". She was not happy in the position she had, and the possibility of restructuring prompted her decision to leave.
The Applicant said that by the end of his first month at Yamba he had applied for employment on numerous occasions. He applied for administrative, trade and any other positions advertised in the commercial and retail areas but he said he never received any response. Besides wanting to teach, he said he had completed an apprenticeship as a cabinet maker and was an able shipwright in the Navy. He had also completed a commercial cleaning course at Sydney TAFE and he was also interested in hardware retail. He said he was "open" to finding work in various areas. The Tribunal also notes that the Applicant completed an advanced certificate in management at TAFE in Parramatta (T3).
The Applicant said he received no income between about March 1994 and September 1996 and that he received unemployment benefit for about two months while he was in Yamba. The Tribunal notes that the Applicant was in receipt of Job Search Allowance from 20 March 1995 until 9 May 1996 (exhibit 3). He said he applied for benefits because he had been advised by an acquaintance to register with the CES who then sent him to the Department of Social Security.
The Applicant said he looked for employment both before and after receiving unemployment benefit. He said he applied for jobs at least two or three times a week. He said he tried face-to-face applications and visited places where he thought there was a chance of employment. He said he did not mention that he suffered from PTSD in his job applications.
The Applicant admitted that at the VRB hearing he said he could have continued working at Prospect Electricity. However in saying that, he meant that there were several positions available but he did not have the qualifications required for those positions and in any case it was made "abundantly and very sharply clear" to him that he was going. He said it was his understanding at the time that his employer could have dismissed him and that he would have had no recourse.
The Applicant said his drinking problem was the same now as when he worked for Prospect Electricity. He said he never drank at work, and the fact that he drank at home did not pose a problem for him at work. He said some of the people at work knew he drank more than what was considered normal.
The Applicant's evidence was that the behaviour he displayed at work also carried through to his home life to the point where he and his wife separated for 6 months and that they nearly separated on a second occasion. His sons do not speak to him because of his demanding behaviour.
The Applicant could not recall advising Dr Baz that he intended to retire at 60, because it was always his ambition to work until the age of 65 years. He said although he was advised by a neighbour to complete some Departmental forms so that he could claim entitlement at a later date, he had no intention of doing so as he never considered himself to have an illness. In effect, he said that it was not until he went to Yamba and after he was advised by a Vietnam Veterans' Association advocate who had attended an RSL meeting, that he became aware he was entitled to claim a disability pension for his PTSD.
It was the Applicant's evidence that his psychiatric condition and other medical conditions have not improved since he went to Yamba and are of the same severity as when he worked for Prospect, apart from losing his short term memory.
The Tribunal notes that the Applicant stated in a Departmental questionnaire completed by him on 2 September 1996 (T14, p45), that he ceased work because he "could no longer cope due to war/defence caused disabilities alone". He also stated that the reasons for his unemployment were because of his PTSD, anxiety state and substance abuse. In his claim form dated 4 March 1998 he provided in effect the same information (T18, p68) and in his claim for service invalidity pension dated 13 February 1996, he noted that he was prevented from working by -
… nervous tension, stress, short temper. Inability to concentrate on subject matter. Unable to make correct decisions. Can not trust superiors or Juniors. Extremely bad memory. (T2, p15)
medical evidence
In a report prepared by Dr Johns, consultant psychiatrist, dated 25 June 1996 (T10, p38), a history was obtained regarding the Applicant's behaviour similar to that provided in the Applicant's evidence. Dr Johns prescribed anti-depressant medication and suggested counselling through the Vietnam Veterans' Counselling Service.
Dr Burns, occupational physician, examined the Applicant on 12 August 1999 and prepared a medico-legal report dated 13 August 1999 (exhibit 1). He recorded the following occupational history from the Applicant -
After his discharge, he obtained a job in the maintenance area with Kentucky Fried Chicken. ….He then became the Assistant Building Supervisor with Prospect Electricity. He remained with this organisation until mid 1994. He was then told that either he applied for a voluntary redundancy package or they would terminate his services.
He reports that he and his wife had bought a house in Yamba approximately two years before this. They decided that they would move to Yamba after he was forced to take a voluntary redundancy. They did so in 1994.
He states that he applied for a number of positions in Yamba and also listed with the local CES office. He not only looked at the paper each day but he also physically went and spoke with business people. Even though he applied for a number of positions, he was unsuccessful in even obtaining an interview.
He reports that he felt that he was little rusty in his trade but that he could teach or do administrative work. ….In 1996 he applied for the Service Pension on the grounds of disablement and when this was granted he ceased looking for work.
Although the Applicant believed he could work, Dr Burns disagreed with that assertion. He in fact considered that the Applicant was not coping at work in the 12 months prior to his leaving. He considered the Applicant incapable of working even 8 hours a week in any open occupation solely due to his PTSD and alcohol intake associated with that condition. Dr Burns considered that the Applicant had some cognitive impairment and he had no insight into his own medical problems.
Dr Hope, the Applicant's local medical officer, provided a report dated 8 March 1996 in respect of his claim for service pension on the grounds of incapacity for work. He noted that the illnesses that prevented the Applicant from obtaining work included "IHD, CAL, PTSD". In his later report dated 20 May 1998 however he did not identify which accepted disabilities were affecting the Applicant's employment chances. He simply stated, "I certify that this man is unfit to work due to war caused disability" (T22, p89).
Dr Baz, occupational physician, examined the Applicant on 8 April 1999 and prepared reports dated 12 April 1999 and 18 August 1999 (exhibit A). She obtained the following occupational history with respect to his employment at Prospect Electricity –
…He was then in the administrative services branch for 6 years as office services supervisor….He had arguments with his supervisors who pushed him aside, having staff meetings without telling him about it. He was inappropriate to his managers, telling them how to do things. He was 'overbearing' with those he supervised.
Because of these problems they gave him jobs to get him out of the office. He was finally allocated a job as technical services clerk of works….the job came to an end and he was then told they would not have another job for him. He was told that they had been looking after him but could not any longer. He then applied for a retirement package rather than be dismissed, in 1994.
He reports that at work he was getting slower and slower. He could not make decisions. He was irritable and short tempered. He was consuming a 'peak' amount of alcohol. His sleep was disturbed.
He moved to live in Yamba. He applied for work of any type. He applied to the TAFE colleges, hardware stores, the local council and the building industry for work related to the trades or tools. He does not think his difficulty finding work was due only to his age, but feels it is also due to the high level unemployment level. He expects he would have retired at age 60 years if he had been able to get over his problems.Dr Baz opined that the Applicant suffered significant disability as a result of his PTSD along with his gastrointestinal symptoms and alcohol consumption. She considered the difficulties he had with interpersonal relationships in his employment impinged significantly on his work capacity and were the direct result of his PTSD. Dr Baz opined that the Applicant was unfit to work because of his PTSD and that in the absence of his accepted disabilities, his non-accepted conditions did not preclude him from work. Nor did his accepted musculo-skeletal disabilities prevent him from undertaking a variety of clerical and administrative work. Dr Baz understood that Prospect Electricity would have retained the Applicant's services to work in a clerical position if he did not have PTSD. Dr Baz opined that the Applicant was unfit to work 8 hours or more weekly and that his inability to obtain remunerative work was solely due to his war-caused conditions.
Dr Baz noted in her report dated 18 August 1999 (exhibit A) that, following the report of Dr Hope, the Applicant was referred to a cardiologist for investigation, which was normal. She also noted that spirometry was normal. On this basis Dr Baz opined that there was no cardiac or respiratory condition identified to explain the Applicant's shortness of breath on exertion, and that in any event these conditions did not prevent him from undertaking the clerical and administrative tasks in which he is experienced.
submissionsIt was submitted for the Applicant that although the Applicant was offered a voluntary redundancy package, there was enough evidence for the Tribunal to be reasonably satisfied that he was forced out of work. It was submitted that given the Applicant's disabilities and the effect they had on his behaviour at work, it was not "unheard of" for him to have left work in the way he did. It was also submitted that although Dr Burns was aware that the Applicant believed that he could work when he left Prospect Electricity, it was Dr Burns' expert opinion that he was at that time unfit for work and that he continued to be unfit for work.
It was submitted for the Respondent that the Applicant ceased work when he left Prospect Electricity because he accepted a voluntary redundancy and there was no evidence from his employer to suggest that they had problems with his performance.
The Applicant relied on the Federal Court decisions in Chambers v Repatriation Commission (1995) 55 FCR 9 and Repatriation Commission v Bowman (1981) 38 ALR 650. It was submitted that whether prospective employers did or did not know the Veteran had PTSD before deciding to interview him, was not the appropriate test to apply when considering the effect of a particular disability on an applicant's capacity to work. In Bowman (supra), the test to be applied by the Tribunal is the effect of the war-caused disability on the applicant's capacity to earn a living wage in a market reasonably accessible to him. It was submitted that otherwise, at times of high unemployment, a veteran would have to show that he had obtained an interview with a prospective employer in order to demonstrate that in a depressed marked he was not employed because of his war-caused disabilities.
It was also submitted for the Applicant that, relying on the decision of Birtles v Repatriation Commission (1991) 33 FCR 290, the Tribunal was not to have regard to the Applicant's relocation to Yamba if the Applicant was unable to work by reason of his war-caused disabilities alone. In reply, the Respondent submitted that although Chambers (supra) was predominantly concerned with s24(1)(b), it was still relevant to the application of s24(1)(c) to the extent that it held that matters such as a depressed labour market may be relevant when considering subs(1)(c).
In essence the Respondent submitted that on the evidence of the Applicant, he did not know why he was prevented from obtaining work. Furthermore, it was speculative to suggest that although no prospective employers knew that he had PTSD, the reason he was not given interviews was because of his accepted disabilities. There were clearly other reasons why he was unable to obtain work.
Accordingly, it was submitted for the Respondent that the Applicant failed to satisfy the second limb of s24(1)(c), that being suffering loss of salary, wages or earnings on his own account. It was submitted that therefore there was no need to apply the ameliorating provisions of s24(2)(b), since both limbs had to be satisfied.
In reply, it was submitted for the Applicant that the Tribunal was not obligated to consider the ameliorating provisions just because the Applicant continued to apply for work even after being granted service pension. It was improper to suggest that he had to show that he received interviews and to then prove that the employer did not interview him because of his disability.
Even if the ameliorating provisions were applied by the Tribunal, it was submitted for the Respondent that the position remained unchanged. Although the Applicant had genuinely sought work, the Applicant's incapacity was not the substantial cause of his inability to get work. It was submitted that to suggest that this was the case was pure speculation.
With respect to wage loss, it was submitted for the Applicant that it was improper to suggest that the Applicant had received approximately two years' salary on retirement. Technically, while that was the amount he received, a considerable component of that amount comprised statutory entitlements. It was submitted that the only wage component of the Applicant's redundancy package was "4 weeks salary in lieu of notice".
In any case, it was submitted that on the authorities of Banovich v Repatriation Commission (1986) 69 ALR 395 and Starcevich v Repatriation Commission (1987) 18 FCR 221, the Tribunal was required to determine whether there was any wage loss at the date upon which the Applicant applied for an increase in the rate of pension payable. It was submitted for the Respondent that it was open for the Tribunal to determine that special rate was payable from the date of the Veteran ceasing employment, being a date after the application date.
It was submitted for the Applicant that his manager was reticent to give evidence because of the potential liability arising out of the tax implications involved with redundancies that were not genuine. This was not to say that the Applicant's manager did not disclose the truth to the ATO. Rather, the arrangement assisted the Veteran by manufacturing circumstances such that both the Veteran and employer benefited from the redundancy.
consideration of evidence and findings of factNotwithstanding corroborative evidence from Prospect Electricity that the Applicant's behaviour and work performance were unsatisfactory and that his employment was terminated for that reason, the Tribunal finds on the considerable weight of evidence before it that the Applicant was unfit to continue his clerical and supervisory work with Prospect Electricity because of behaviour problems associated with his PTSD. While invariably the acceptance of a voluntary redundancy package by Veterans in these circumstances poses problems in meeting the requirements of s24(1)(c) of the Act, it is appropriate, and indeed necessary, to look behind the voluntary redundancy payment to the circumstances in which it was offered and accepted. Voluntary redundancy payments have become a mechanism through which employment is terminated for a wide variety of reasons, only one of which is actual redundancy.
The Tribunal finds on the evidence of Dr Burns and Dr Baz that at the time the Applicant ceased work for Prospect Electricity in March 1994 he was unfit for work because of his PTSD. Their evidence also shows that he has continued to be unfit for work since that time because of his accepted disabilities alone. Moreover, the Tribunal finds on the medical evidence that the Applicant does not suffer from any other disability that would prevent him from undertaking the sort of work he was undertaking at Prospect Electricity.
The Applicant lodged his claim for PTSD on 6 September 1995, some 18 months after he ceased work. Although he lodged a later claim for alcoholic fatty liver and gastro-oesophageal reflux on 9 March 1998, the assessment of which is also the subject of this review, there is nothing in the medical evidence to suggest that these conditions prevented him from undertaking his work. Therefore, in effect, the relevant Application Date in this matter is 6 September 1995, and the Tribunal must consider whether the Applicant meets the requirements of s24 of the Act as at that date.
The Applicant and his wife had moved from Sydney to Yamba soon after he ceased work at Prospect Electricity. The inference is that Yamba was an area of high unemployment, and the Tribunal is prepared to accept this as a fact. Moreover, although the Applicant was seeking work he failed to obtain an interview for any employment even though he did not disclose that he suffered from PTSD. The Respondent's case is based on the significance of these facts. However, the Tribunal is required to apply the decision of the Federal Court in Birtles (supra), which held that if a veteran by reason of his war-caused incapacities was unable to work, although otherwise willing and able to do so, his retirement to a geographical area where it could be difficult to obtain remunerative work of his main or chosen variety did not disqualify him under s24(1)(c) of the Act.
The Tribunal notes that the Applicant does not seek to rely on the ameliorating provisions of s24(2)(b) even though he was under the age of 65 at the Application Date, nor is he compelled to do so. Therefore the Tribunal does not intend to consider whether the Applicant meets the ameliorating provisions.
The Tribunal notes the submissions in relation to the decision of the Full Federal Court in Chambers (supra), but notes that the issues considered in that decision are not ones that are raised in the matter now before the Tribunal. Section 28 of the Act is not in issue here.
The Tribunal finds that the fact that the redundancy payment of $60,753.84 approximates two years' salary for the Applicant is irrelevant and coincidental. In considering the various components of the redundancy payment, any part of the payment in respect of a prospective rather than a retrospective period had long since passed by the Application Date. The Applicant was aged 58 years at the Application Date. The Tribunal notes the evidence of Dr Baz that the Applicant intended to retire at the age of 60 years, and the evidence of the Applicant that this was not his intention. The conflicting evidence on this issue is not material, however, because even if he had intended to retire at the age of 60 years, the test that the Tribunal is required to apply is that existing at the Application Date, when the Applicant was 58 years. The Tribunal finds on the evidence that as at the Application Date the Applicant has suffered a loss of salary or wages that he would not have suffered except for his war-caused incapacity to work.
The Tribunal is reasonably satisfied that the Applicant meets all the requirements of s24(1)(c) of the Act, and notes the concession of the Respondent that all other parts of s24 are met. Therefore the Applicant is entitled to be paid pension at the Special (Totally and Permanently Incapacitated) Rate with effect on and from 6 June 1995, being the earliest date from which pension is payable following the acceptance of the Applicant's PTSD as being war-caused. The Tribunal will therefore set aside that part of the decisions under review that assess pension payable to the Applicant at 100 percent of the General Rate.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member
Signed: .....................................................................................
AssociateDate/s of Hearing 11 February 2000
Date of Decision 11 January 2001
Counsel for the Applicant Mr Dawson
Solicitor for the Applicant R L Whyburn & Associates
Counsel for the Respondent Ms Doggett
Solicitor for the Respondent n/a
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