MICHAEL HOLT and REPATRIATION COMMISSION
[2012] AATA 158
•14 March 2012
[2012] AATA 158
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/3710
Re
MICHAEL HOLT
APPLICANT
And
REPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 14 March 2012 Place Brisbane The Tribunal affirms the decision under review.
.................[Sgd].......................................................
Mr R G Kenny, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Benefits and entitlements – Disability pension payable at 100% of general rate – Eligibility for special rate of pension – Incapacity from war-caused conditions sufficient to prevent applicant undertaking remunerative work for more than 8 hours per week – Applicant not prevented by reason of incapacity from war-caused conditions, alone or substantially, from continuing to undertake remunerative work– No loss of salary, wages or earnings that would not be suffered if free from incapacity – Decision under review affirmed.
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 5Q, 15, 19, 22, 23, 24
CASES
Flentjar v Repatriation Commission (1997) 26 AAR 93; (1997) 48 ALD 1
Leane v Repatriation Commission [2004] FCAFC 83; (2004) 81 ALD 625
Repatriation Commission v Alexander (2003) 75 ALD 329
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Smith (1987) 15 FCR 327
REASONS FOR DECISION
Mr R G Kenny, Senior Member
14 March 2012
BACKGROUND
On 28 September 2010, Michael Holt lodged a claim under s 15 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) for an increase in the disability pension paid to him in respect of conditions previously accepted by the Repatriation Commission (“the respondent”) in relation to his service in the Royal Australian Air Force (“RAAF”). Those conditions are posttraumatic stress disorder, sensori-neural hearing loss, tinnitus and alcohol dependence (in remission). On 7 February 2011, a delegate of the respondent determined that, in accordance with s 22 of the Act, pension should continue to be paid to Mr Holt at 100% of the general rate and that it was not payable at an earnings-related rate under ss 23 or 24 of the Act. On 4 August 2011, that decision was affirmed by the Veterans’ Review Board (“the Board”).
ISSUES AND LEGISLATION
The standard of proof applicable in this matter is set out in s 120(4) of the Act, which requires that matters be determined to the decision-maker’s reasonable satisfaction. This imports the civil standard of proof so that matters must be determined on the balance of probabilities.[1] The procedure to be followed is set out in s 19 of the Act. It requires the rate of pension to be determined during the “assessment period”, which is defined as meaning the period starting on the application day, in this case 28 September 2010, and ending when the claim or application is determined.[2]
[1] Repatriation Commission v Smith (1987) 15 FCR 327 at 335.
[2] Veterans’ Entitlements Act 1986 (Cth) ss 19(5C)(a) and 19(9).
It is not disputed that the general rate of pension payable to Mr Holt was correctly assessed by the respondent at 100%. The issue raised by Ms Helena Smith, for Mr Holt, is whether he meets the criteria for payment of an earnings-related rate of pension under ss 23 or 24 of the Act. These relate, respectively, to the intermediate rate and special rate of pension. Ms Smith submitted that the special rate of pension was payable to Mr Holt from the application day. The matter that needs to be determined is whether or not Mr Holt meets the requirements of ss 24(1)(a)(i), (b) and (c) of the Act. These read:
24(1) This section applies to a veteran if:
(a) …
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force;
…
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity;
…
Mr Williams, for the respondent, conceded that Mr Holt meets the requirements of s 24(1)(a)(i) and (b) of the Act. However, he submitted that he does not satisfy the terms of s 24(1)(c) thereof and that, accordingly, a rate under s 24 of the Act was not payable to Mr Holt. Ms Smith submitted that the only reason for Mr Holt ceasing remunerative work was the effects upon him of his accepted disabilities and that he met all of the requirements for payment of the special rate of pension.
EVIDENCE
Mr Holt
Mr Holt’s training in the RAAF was in radio communication and telegraphy. After his discharge he took on labouring work in Western Australia, Sydney and Darwin before working in New Zealand in a publishing company selling advertising. On return to Australia, he worked in advertising with a radio station in Townsville. In 1977, he commenced travel in Asia with a view to returning to England where he was born. Arriving in Thailand in 1978, he obtained work and remained there for 30 years. He began selling advertising as a secretary for an English teacher but soon opened his own school in which he employed others to teach English. He continued this for some ten years. In 1985, he commenced training in computer usage and programming. He developed competence in these matters but had no formal qualifications in that regard. Rather, he worked with a private trainer on three days per week over two years. He then commenced selling computers through a company structure, Holt WorldWide Co Ltd. He then became involved in designing computer programs for a range of clients. Initially, he employed Thai workers to complete the technical work. He found them to be unsuitable and outsourced the technical work to a company in India. Mr Holt then concentrated on dealing with his customers and managing the projects. He defined the specification parameters of the programming tasks to be done in India, checked and tested the completed codes and then made them available to the customers in Thailand.
Mr Holt described a typical customer as a Thai company providing experiences for tourists and a typical programming exercise as the creation of a web page and programs to enable the customer to manage its daily activity timetable. Some of the management projects were complex and, at times, there was tension between him and his customers in relation to the quality of the programs provided and also disputes about payment for the project.
Mr Holt completed the sale of his company interest in January 2008. His intention was to remain in Thailand, and, to that end, he set up three more companies. One was a holding company which had shares in the other two companies. He said that this structure was adopted because of requirements under Thai law. One of the other two companies was to be operated by his wife in the marketing of cosmetic and herbal products; the other was to be operated by Mr Holt as a business consultancy providing assistance to those with an interest in conducting business in Thailand. Another reason for establishing the corporate structure was set out by Mr Holt in an e-mail to Ms Smith on 19 December 2011[3] which he confirmed in his evidence. This was to enable the purchase of a house/condominium in Thailand, which were unable to be owned by non-Thai residents. He wrote that the company structure was essential to his plans for remaining in Thailand. The companies did not commence trading because Mr Holt learned that he was able to return to live in Australia. He had not realised that he was able to do this because he did not have Australian citizenship. However, he learned that his RAAF service entitled him to obtain Australian residence. He, his wife and children, aged 3 years and 6 years, respectively, moved to Australia permanently in January 2009 after obtaining the appropriate visas in late 2008.
[3] See exhibit 7.
Asked for his reasons for selling his business, Mr Holt referred to the complexity of some of the work he was doing, the unreasonableness of some of his clients in relation to their project demands and the unwillingness of some clients to pay for his services. Mr Holt said that he suffered from conjunctivitis but also said that this was not the main reason for wanting to return to Australia. However, he agreed that he gave the following as evidence in proceedings before the Board in 2010:
·The conjunctivitis definitely affected his work;
·Sometimes he could not see anything to be able to work;
·It would cause blinking and that affected his business as he would feel self-conscious at meetings;
·Sometimes he would be so sick from the eye infections he couldn’t work at all;
·The poison would spread to his face and it would become inflamed;
·His eyes were sore at the time of the sale of the business; and
·It was probably one of the factors in selling the business.
Mr Holt also agreed that this was an accurate statement of the effects of his eye condition including that it was a relevant factor in the sale of his business. He also referred to headaches which he suffered and which he attributed to the stress he experienced in his Thai business activities. While he variously described these as tension headaches and migraines and said that he took Panadol tablets to relieve them, Mr Holt said that doctors in Thailand consistently diagnosed migraine. Mr Holt accepted that he suffered from sleep apnoea and that daily tiredness required him to take a nap during the day over the years when he was in Thailand. This was particularly the case when he increased in weight which he did from 2005 to 2007. His evidence was that the condition had not affected his work capacity. He said that he no longer experiences difficulty from this condition as he sleeps at night with the benefit of a CPAP system.[4]
[4] Continuous Positive Airway Pressure system.
In 2008, while Mr Holt had sold his business, he had set up another company network. Despite that, he returned to Australia. His reasons for so doing included the effects of conjunctivitis, a desire to spend more time with his ageing mother in Australia, the education needs of his two children at that time, his wish to leave Thailand after 30 years and the newly discovered capacity to obtain visas for his family and take up residence in Australia.
After returning to Australia, Mr Holt did not set up any other companies. He gave consideration to commencing businesses in Australia with links to Thailand. One of these was for the organisation of golf tours in Thailand for Australians; another was to utilise his understanding of business practices in Thailand by providing assistance to those who wished to set up businesses in Thailand. He said that these concepts were not developed because they failed to generate interest and because he was unable to obtain financial support or provide sufficient physical motivation for the projects. He said that he was unfamiliar with business practices in Australia and did not have appropriate business contacts. He said that these factors had served to prevent him from seeking to engage in business here.
For a few weeks in October 2010, Mr Holt sought to engage in selling insurance. He found this difficult and only signed two policies which had been arranged by the person who had provided him with his introductory training. A difficulty he described was the negative responses from potential customers because of their perceptions of the insurance industry’s failures to honour claims. Mr Holt underwent knee replacement surgery in August 2010 and May 2011. He said that it his knee conditions had not impacted on his work in Thailand and had not been a problem for him when he was attempting to sell insurance. He agreed that the pain in his knees had prevented him from walking to the end of a pier on a holiday with his children in 2010. Mr Holt provided no material in relation to his insurance activity.
Mr Holt established two web sites in 2011 viz “aceswebs” and “sunshinecoastsavers”. The first of these was to market his IT services but Mr Holt said that he had done no marketing for the site and that he has not registered a single enquiry through that medium. Mr Holt agreed that he had described his web site activity as something he had “never really been serious about” because he had “had enough of IT, to be honest”. The second site was related to the development of a cooperative in the Sunshine Coast area for the purchase of electricity at lower cost from power suppliers. He said that 30 to 40 people had expressed interest but that he would need some 5,000 registrations to make it viable. Mr Holt does not intend to earn any income from this procedure and gives information talks to groups of people such as those who attend Lions Club meetings.
Mr Holt said that he made job applications through the on‑line service of (“Seek”) but his applications were rejected with no explanation. Mr Holt had no records of these applications or rejections and thought he had made about six applications. Mr Holt agreed that he had not provided information to his examining psychiatrists about his web sites or his Seek applications and said that these had “never come up in the conversation”. He agreed that his first reference to these was in January 2012. He also agreed that he had not provided information in his evidence to the Board about his web sites or Seek applications.
Dr Michael Bint, thoracic physician
In a report, dated 1 April 2010, Dr Bint described Mr Holt as having severe obstructive sleep apnoea following a sleep study in February 2010. He noted that the condition had caused him to take a nap on many afternoons in the week and that he would doze off at times such as at meetings or at the movies.
Eye Care Specialist
In evidence was a report, dated 23 July 2009, from Eye Care Specialists which operates from the Sunshine Coast. It is not signed but dictated by “Hugo”.[5] It describes Mr Holt’s allergic conjunctivitis affecting both eyes as an annoying irritant due to the red itchy eyes associated with the condition.
[5] Referred to in a general practitioner’s report as Dr Hugo Holden.
Dr Burnett Kann, psychiatrist
Dr Kann completed a report on 6 December 2011. He described Mr Holt’s history of migraine headaches and noted that he had to quit insurance work because of the headaches. In listing the effects associated with Mr Holt’s posttraumatic stress disorder, Dr Kann does not refer to headaches. Dr Kann noted the Board’s determination that Mr Holt’s conjunctivitis most likely contributed to his ceasing work and, in that regard, he also noted the education needs of his children and his mother’s age. Dr Kann’s opinion was that Mr Holt could not work for eight hours per week because of his psychiatric conditions.
Dr Bob Anderson, psychiatrist
Dr Anderson completed reports on 14 July 2009, 15 December 2009 and 1 December 2010. He confirmed that Mr Holt is unable to work for more than eight hours per week because of psychiatric conditions. In his first report, Dr Anderson referred to Mr Holt’s desire to start a new business as a tour operator for persons travelling to Thailand. In his second report, Dr Anderson noted that Mr Holt’s business interests had ceased. In his final report, Dr Anderson noted that Mr Holt had made repeated attempts to start businesses to make a living in Australia but that he was incapable of working. He also noted that Mr Holt had, in recent times, had panic attacks, headaches and nausea which he considered were part of his posttraumatic stress disorder.
Board transcript
The transcript of the Board proceedings from 4 August 2011 was in evidence. Mr Holt advised the Board that, after selling his business, he applied almost immediately to come to Australia. He said that he had the insurance job in late 2010 and that this was the only work he had done or applied for in Australia. He said that in selling insurance he began to get very bad headaches and “just couldn’t do the job” and “had to quit after three weeks”. He said that, in Thailand, he believed that these were due to stress but he said that his doctors in Thailand just kept saying that his symptoms were typical of migraine. He advised that his eye condition could last for as long as two or three weeks and he agreed that it was one of the factors in selling his business, though not the main factor. He described his knee problem as commencing in 2001 and as being “really bad” in 2010 such that, on a holiday, he was able to walk only about 20 to 30 metres on occasions. He said that these did not impact upon his work in Thailand because he mainly sat at a desk and was able to deal with customers electronically or they came to him.
General practitioners’ notes
Notes from the two medical centres which Mr Holt has attended since returning to Australia were in evidence. They refer to a range of health complaints including conjunctivitis, knee pain, lesion left buttock, psoriasis, recurrent skin infection on face, dermatitis both hands, sleep apnoea, sinusitis, persistent eye irritation and dental abscess. Prescribed medication is noted to include “panadol osteo”. There is no reference to headaches.
Other evidence
In a statement by Mr Holt in an e-mail to Ms Smith, dated 19 December 2011, he described the tour business that he tried to set up in Australia but could not proceed because of headaches. He wrote that he was “eating panadol like candy” because of his headaches. The e-mail refers to his “aceswebs” and “sunshinecoastsavers” websites.
In another statement, bearing the dates 7 November 2011 and 3 January 2012, Mr Holt referred to his attempt to set up the golf tour business and to his lack of success due to stress. He referred to an intensive two week course in insurance selling in October 2010 before he went out into the field selling insurance. Reference is made to headaches and customers complaining about the failures of insurance companies to meet payment obligations. He referred to “numerous” applications to companies through Seek and to rejections in each case. He wrote that his conjunctivitis was not a contributing factor in selling his company in Thailand.
CONSIDERATION
Mr Holt was in receipt of pension at more than 70% of the general rate at the commencement of the assessment period. The evidence of Dr Anderson and Dr Kann is that Mr Holt’s accepted disabilities render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. Accordingly, I am satisfied that the requirements of ss 24(1)(a)(i) and (b) of the Act are met throughout the assessment period. As noted above, this was conceded by Mr Williams.
The application of s 24(1)(c) involves a consideration of what Mr Holt would probably have done in the assessment period in the absence of his accepted disabilities.[6] The Federal Court has said that a proper consideration of paragraph 24(1)(c) of the Act requires responses to the following questions:[7]
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 own account that he would not be suffering if he were free of that incapacity?”
[6] See Repatriation Commission v Hendy (2002) 76 ALD 47 at 54.
[7] See Flentjar v Repatriation Commission (1997) 26 AAR 93; (1997) 48 ALD 1 at 2.
Consideration must also be given to s 24(2)(a) of the Act, which operates in conjunction with the fourth of those questions, and s 24(2)(b) of the Act which operates, in the case of a person under 65 years of age, in conjunction with the third of those questions.
For the first of those questions, the term remunerative work is broadly defined in s 5Q(1) of the Act as including any remunerative activity. Mr Williams submitted that Mr Holt’s remunerative work was as an IT specialist in a business consultant environment. This was not disputed by Ms Smith and I accept Mr Williams’ submission. From the psychiatric evidence, I also accept that, for the purposes of the second of the questions noted above, Mr Holt’s accepted disabilities were such that, in the assessment period, they would have prevented him from continuing to undertake that remunerative work.
The third of the questions noted above raises in issue the first part of s 24(1)(c) of the Act. There must be no other factor, apart from Mr Holt’s accepted disabilities, which would impact upon his capacity to undertake the relevant remunerative work at the start of, or during, the assessment period. Such a factor may be associated with a wide variety of considerations such as incapacity from a non-service-related medical condition, the effects of age, relocation to a locality distant from work opportunities or the impact of the length of time out of the workforce. Such factors, individually or in combination with each other or with accepted disabilities, may serve to prevent a person from continuing to undertake relevant remunerative work.[8] In the event that they would have prevented Mr Holt from doing so in the assessment period, s 24 of the Act will not be satisfied.
[8] See Repatriation Commission v Hendy (2002) 76 ALD 47 at 54 – 55; and Repatriation Commission v Alexander (2003) 75 ALD 329 at 334.
Ms Smith submitted that Mr Holt’s accepted conditions were the only factors in the assessment period which prevented him from gaining remunerative work. I do not accept that to be the case. At the commencement of the assessment period, Mr Holt had sold the business which he had operated for many years. His evidence for doing so has not been consistent. He gave the main reason for selling his business as being associated with the stress and tension which he associated with the psychiatric conditions subsequently accepted as being related to his service. There is evidence that he suffered from sleep apnoea, knee pain and severe conjunctivitis and these are conditions which have not been accepted as being related to Mr Holt’s service. As to the eye condition, Mr Holt, on several occasions, has declared that this was not the main reason for selling his business. However, he has also declared on several occasions, including in his evidence to the Tribunal, that it was a relevant factor. Given his description of the severe symptoms he had from the condition[9] that is not surprising. I am satisfied that the sale by Mr Holt of his business in Thailand and, therefore, the absence of work from that source as at the start of the assessment period, was not due, solely, to his accepted disabilities.
[9] See para 8 above.
In 2008, the new company network Mr Holt had established in Thailand did not mature into remunerative work because he left Thailand to come to Australia. Factors relevant to his decision to leave Thailand included his desire to return to Australia to be with his aging mother, to secure education opportunities for his children, his desire to leave Thailand after 30 years, the newly discovered capacity to obtain residence for his family in Australia and, importantly, the absence of a business connection with Thailand. I am satisfied that Mr Holt’s decision to leave Thailand was not due solely to his accepted disabilities.
In Australia, Mr Holt’s evidence was that he had engaged in remunerative work during the assessment period. The only such work in which Mr Holt may be seen to have engaged in during that period is the selling of insurance for a short time. This was after the Board rejected his claim for an increase in his pension. His evidence was that he finalised the sale of two policies but only through the contribution of his mentor. Reasons for discontinuing included his headaches. Mr Holt has made frequent reference to headaches, and, in a statement, he wrote that he was “eating panadol like candy” because of them. In his evidence, he said that doctors in Thailand diagnosed migraine. No formal diagnosis of the source of Mr Holt’s headaches while he was in Thailand was in evidence although Dr Anderson, in his report of December 2010, described “recent” headaches as being associated with Mr Holt’s anxiety. However, Dr Kann described them as migraine headaches. I do not accept Mr Holt’s assertions about the frequency or severity of his headaches. This is because the clinical notes from his treating doctors, though they refer to a wide range of matters about which Mr Holt made complaint, make no reference to headache. Further, those notes list the medications that Mr Holt was taking and include a reference to “panadol osteo” in a context which refers to frequent complaint by Mr Holt of pain from his knee osteoarthritis for which he underwent knee replacements after returning to Australia. The first of these was in August 2010, shortly before he was involved in his insurance work. His description of his knees being “really bad” at that time is consistent with knee pain being a problem for him in any work, including the selling of insurance. Regardless of his headaches, Mr Holt also attributed his lack of success in selling insurance to the resistance of customers to the sale of policies and that is, clearly, not associated with his accepted disabilities. Mr Holt’s failure to continue with his insurance work cannot be attributed solely to his accepted disabilities.
Mr Holt established the “aceswebs” website. However, he had no response to the invitation it gives for people to seek his assistance in website management. Such an absence of response is not associated solely with Mr Holt’s accepted disabilities. The other website, “sunshinecoastsavers”, is not associated with any attempt at obtaining remunerative work. Mr Holt described attempts to establish businesses with emphasis on tours to Thailand. These were not pursued by him because of a lack of resources, including financial support from others, and, again, this was not associated solely with his accepted disabilities.
Mr Holt’s evidence was that he made unsuccessful job applications through Seek. His evidence was not consistent in that regard. In a written statement, he described “numerous” applications. In his evidence, he said that there may have been six applications. He was unable to recall and had no record of any such applications. Mr Holt made no reference to Seek in his consultations with his psychiatrists or in his evidence to the Board. I have real concerns that any such applications were made by Mr Holt but, even if they were, his evidence was that no reason was given for any of his applications being rejected. Again, his accepted disabilities are not solely implicated in that rejection process. I note that, unlike his position in Thailand, Mr Holt was unaware of business procedures and practices in Australia and he accepted that this contributed to his inability to obtain remunerative work in this country.
I am satisfied that the incapacity associated with Mr Holt’s accepted disabilities was not the only factor which, during the assessment period, would have prevented him from continuing to be engaged in the relevant remunerative work either in Thailand or Australia. This means that the third question listed above is, at this stage of the analysis, answered in the negative. However, consideration must be given to s 24(2)(b) of the Act, which operates, in the case of a person under 65 years of age, in conjunction with that question. It reads:
(2) For the purpose of paragraph (1)(c):
…
(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.
Ms Smith submitted that no reliance was placed by her on s 24(2)(b) of the Act. Nonetheless, I have given consideration to that provision as, at the commencement of the assessment period, Mr Holt was under 65 years of age. A pre-condition to the application of s 24(2)(b) of the Act is that Mr Holt must have been genuinely seeking to engage in remunerative work. In Leane v Repatriation Commission[10], the Full Federal Court referred to this requirement in the following way:
[10] [2004] FCAFC 83; (2004) 81 ALD 625.
27.The policy of s 24(2)(b) of the Act was explained in the speech on the second reading of the Bill for the insertion of that provision: see per Sackville J in Repatriation Commission v Hendy (1995) 133 ALR 654 at 660-661; 39 ALD 286 at 292. In that speech the relevant Minister made the point that “special provision is made by the bill to cover veterans who are under 65 years of age, are unemployed, and are genuinely seeking to engage in remunerative work”.
28.The primary judge interpreted the word “seeking” to mean “attempting to” or “trying to”. This may be accepted. Such a meaning involves something more than a mere wish or hope. It requires that a claimant “do” something. On the other hand the word “genuinely” is used in the sense of “sincerely” or “honestly”. It involves an assessment of the subjective intention or purpose of a claimant. What is required is that the claimant honestly be trying to engage in remunerative work.
29.It may be accepted that, in the ordinary course, a person in the position of the veteran would have difficulty in establishing that he or she was honestly trying to engage in remunerative work unless there were some “objective signs of active pursuit of remunerative work”. However, it would be wrong to turn the practical issue of how a person might establish his or her case into some legal pre-condition. Assume, for example, that a claimant satisfied the Tribunal that:
· he or she honestly wished to engage in remunerative work;
· he or she had made a reasonable assessment of his or her disabilities;
· he or she had reasonably concluded that he or she could only be employed in a particular type of work;
· he or she was checking employment advertisements on the lookout for such employment; but
· he or she had not yet identified any such employment prospects.
Counsel for the Commission properly conceded that, on these facts, the tribunal [sic] might be satisfied that the claimant was “genuinely seeking to engage in remunerative work”. This example highlights that the adjectives “objective” and “actual” in the redefinition adopted by the tribunal [sic] are at least unhelpful and may be misleading. The proper course was for the tribunal [sic] to ask itself whether, on the evidence before it, it was satisfied that the veteran was “genuinely seeking to engage in remunerative work” or not, rather than to ask itself the different question that it did ask.
After Mr Holt sold his business, his establishment of a new company network in Thailand, his attempts to establish tour businesses in Australia, his selling of insurance and any applications he may have made through Seek may satisfy the requirement of his genuinely seeking to engage in remunerative work. However, I am satisfied, for the reasons given above, that his accepted disabilities were not the substantial cause of his inability to obtain remunerative work through any of those means. Accordingly, I am satisfied that the ameliorating terms of s 24(2)(b) of the Act are not applicable to Mr Holt. The third question listed above is answered in the negative.
The fourth of the questions listed above is whether Mr Holt is, by reason of being prevented from continuing to undertake the remunerative work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity? That requirement is qualified by the terms of s 24(2)(a) of the Act which reads:
(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;
…
Ms Smith submitted that the effects of Mr Holt’s now accepted psychiatric conditions were responsible for his no longer being in remunerative work and for the consequential loss of earnings associated with that. However, I am satisfied that Mr Holt ceased his remunerative work for reasons other than the incapacity from his accepted conditions and, accordingly, is not taken to be suffering a loss of salary or wages, or of earnings on his own account, by reason of that incapacity.
I am satisfied that Mr Holt does not meet the requirements for the payment of the special rate of pension because he fails to satisfy the terms of s 24(1)(c) of the Act. The intermediate rate of pension, for which provision is made in s 23 of the Act, was not raised in this case. However, I am also satisfied that the requirements for payment of pension at that rate are not met because of s 23(1)(c) of the Act which operates in the same manner as s 24(1)(c) thereof.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 39 (thirty nine) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.
...............[Sgd].........................................................
Associate
Dated 14 March 2012
Date(s) of hearing 29 February 2012 Advocate for the Applicant Helena Smith Advocate for the Respondent Bruce Williams
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