Morris and Repatriation Commission
[2007] AATA 1445
•20 June 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1445
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200401048
VETERANS’ APPEALS DIVISION ) Re JOHN RAYMOND MORRIS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date20 June 2007
PlaceMelbourne
Decision The decision under review is set aside and in substitution IT IS DECIDED the applicant has been at all relevant times entitled to pension at the special rate. ..............................................
John Handley
Senior Member
VETERANS’ AFFAIRS – application for special rate pension – veteran suffered war‑caused infarct in 1997 – previously worked as a rouseabout on sheep properties at half of award rates – whether applicant was undertaking remunerative work – whether he had been engaged in a hobby – rejected disabilities did not prevent work – claim made in 2002 – whether alone test satisfied – decision set aside
Veterans’ Entitlements Act 1986 (Cth) s 24 and s 24(1)(c)
Cavell v Repatriation Commission (1988) 9 AAR 534
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 58 ALD 394
Hill v Repatriation Commission [2000] FCA 929
Leane v Repatriation Commission [2004] FCAFC 83
Repatriation Commission and Butcher [2007] FCAFC 36
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Smith (1987) 15 FCR 327
Sheehy v Repatriation Commission (1996) 23 AAR 126
REASONS FOR DECISION
20 June 2007 Mr John Handley, Senior Member 1. Mr Morris seeks pension at the special rate. An application to the respondent to increase pension beyond 100 per cent of the general rate was refused and affirmed by the Veterans’ Review Board (VRB). He currently has the accepted war‑caused conditions of bilateral sensori‑neural hearing loss and tinnitus, chronic solar skin damage, anxiety disorder, emphysema, ischaemic heart disease, diabetes mellitus, hypertension, alcohol dependence and pleural plaque. The conditions which have been rejected by the respondent are pigentary retinal dystrophy (bilateral) and bilateral drusen of optic disc.
2. Mr Morris was 62 at the commencement of the assessment period. He was a member of the RAN between 1958 and 1966. He was engaged in operational service in Malaya and Vietnam as part of the Far Eastern Stragetic Reserve (FESR) between 1959 and 1965. He served as a stoker and engineer.
3. Mr Morris left school at the age of 15 having completed Year 7. He was employed by the PMG delivering telegrams immediately prior to his enlistment. After discharge he obtained employment with New Broken Hill Consolidated Mines in Broken Hill. He worked as an underground miner until 1988 when he and approximately 400 other miners were offered redundancy. Mr Morris said that he was offered surface work but he declined it because his salary would have been approximately one‑third of his previous salary, he would be required to work shifts, job security was not offered and he would have been required to decline a redundancy payment (of considerable value in 1988). He said that he and others were offered redundancy because of re‑structuring of the mining industry (refer Exhibit A).
4. Mr Morris did not then work for approximately two years. At, or about that time, his marriage was failing and he was drinking alcohol to excess on a regular basis.
5. In about 1990, he was offered work by Robin Billings who was a grazier in western New South Wales. The work offered was as a rouseabout in return for sheep for table consumption. The work involved general duties associated with maintaining and shearing sheep. In the course of that employment, Mr Morris met Bernard Smith, a shearing contractor. Mr Smith ultimately offered Mr Morris employment as a rouseabout which involved penning sheep, cleaning, loading and stamping wool bales and mustering.
6. At or about the time Mr Morris commenced work with Mr Smith, mulesing powder accidentally came into contact with his eyes. He was taken initially to Wilcannia Hospital and then transferred to Broken Hill Hospital. At consultation the bilateral drusen was diagnosed. That condition has the affect of severely limiting the peripheral vision. Mr Morris said that he did not notice much change in his vision at or about that time but when he was required to undertake visual tests, he became aware that his eyesight was limited. He was referred to Dr Cromptom, an eye specialist, who advised him that he would ultimately become blind. He encouraged Mr Morris to make an application for a blind pension which he also supported. The pension was granted and Mr Morris lost his motor vehicle licence.
7. In 1993, Mr Morris returned to Dr Crompton in the hope that he would support an application to have his motor vehicle licence restored. Dr Crompton refused and said that it was likely that his eyes would continue to deteriorate.
8. In the interim, Mr Morris had continued to be employed by, and work for, Mr Smith. In fact he worked for him for about five years and throughout that time was engaged in general rouseabout duties on farming properties to which Mr Smith contracted. Mr Morris said that his loss of vision did not interfere with his work. He said he was driven to and from jobs by other employees.
9. Mr Morris said that he worked for about six months of each year with Mr Smith and as he became known to other graziers, he obtained employment in his own right for about three months of each year as a cook and rouseabout. He was again driven to and from farming properties by other employees.
10. Mr Morris said that he was always paid either by Mr Smith or by other graziers, by cheque, from which tax had been deducted. He said he was always issued with group certificates but he did not ever complete taxation returns. He said he did not feel the need to do so because tax had been deducted and when he was not working, he was too busy drinking.
11. Mr Morris ceased work in about 1997. He suffered a heart attack when he was working on a property owned by Mr Billings. He also suffered severe angina. He was driven to Broken Hill Hospital and he then realised that he could no longer work on remote farming properties because of the absence of relatively immediate medical care. In 1999, he had another two heart attacks and angioplasty. In 2002, he suffered another infarct and is currently a public patient waiting for cardiac surgery.
12. Mr Morris agreed that there are no income taxation records of his employment after he ceased mining in 1988. He relied on the evidence that was given in these proceedings by Mr Smith, together with a summary of the employers who engaged him which he prepared and which was also received into evidence (Exhibit B).
13. In cross-examination, Mr Morris was referred to page 7 of the Reasons For Decision of the VRB who recorded that he had been earning approximately $2000 per annum when engaged by Mr Smith or when he was self‑employed working for other graziers. Mr Morris disputed that figure. He said that he was earning between $50 and $60 per day and worked for about nine months of every year. He said despite the figure of $2000 being recorded by the VRB, he didn’t care what he earned because he drank most of it. Mr Morris said that he did not ever receive any letters from the Taxation Office. Mr Morris was unable to explain why, in an application made to the respondent in July 2002, he did not declare any employment after he ceased as a miner (T‑documents, p17). He was also unable to explain why Dr Ewer, a psychiatrist in Adelaide, reported in October 2002 that he had obtained a history from Mr Morris that he had not worked since 1989 (T‑documents, pp21 and 23). Mr Morris said that the history taken by Dr Ewer was not true.
14. Mr Morris said that he had not ever worked in an office environment nor did he have any experience with the use of computers. He said his driver’s licence was re‑issued to him in August 2006 after he completed a medical examination and a driver’s test. He is permitted to drive in daylight only. He said he was confident that he could continue to work as a rouseabout or be engaged in general farming duties with graziers in western New South Wales but for his accepted disabilities alone. He said that there has been no change of any significance in his eyesight since 1990, although, whilst agreeing that his right eye is slightly worse, it is his belief that his left eye has improved. He was confident that he could obtain work for the additional reason that he was prepared to work at approximately 50 per cent of award wages. It was his understanding that rouseabouts earn up to $120 per day, whereas, he was working at half of the current award rate. With his driver’s licence restored he would also be able to drive to jobs.
15. Mr Morris agreed that he declined surface work after the redundancy offer was made to him in Broken Hill because he would not have obtained the benefit of a redundancy payment, employment would have been insecure and at considerably less salary and he would have been required to work shift. He said the employer had no real wish to keep persons employed and the redundancy offer was an inducement to leave the industry.
16. Mr Morris said after he ceased working in 1997 he received telephone calls until about 2001 from graziers for whom he had previously worked asking him to return. He said rouseabouts are generally regarded as being unreliable because they either fail to commence work or fail to return to complete contracts. He said rouseabout work is plentiful, he was regarded as being reliable and he was confident were it not for his coronary illness he would be working at the present time.
bernard john smith
17. Mr Smith said that he has known Mr Morris for about 32 years. He said he employed him in about 1990 until the mid‑1990’s. At that time he was a shearing contractor and grazier working out of Broken Hill operating three shearing teams. He said teams were sent for hundreds of kilometres in a radius from Broken Hill. Additionally, he also agisted his own sheep on other properties.
18. Mr Smith said he came in contact with Mr Morris at Billings’ station and after a conversation with him he was engaged initially as a cook and as a station hand managing his own sheep. He then engaged him as a cook in shearing sheds and as a shed and general hand on other properties. He said that he did not know a lot about Mr Morris’s visual impairment but said that it did not impede him. He said the work was not hard and he was engaged essentially to help other persons. Mr Morris was employed by him for about six months of each year and travelled to jobs as a passenger in motor vehicles driven by other employees. Salary was paid at $60 per day by cheque with tax and superannuation contributions being deducted. A group certificate was issued each year. Mr Smith said that he no longer has the records of the employment of Mr Morris, those records having recently been destroyed.
19. Mr Smith said the work undertaken by Mr Morris was a real job. He said he was not required to undertake hard tasks and he employed Mr Morris because he was reliable and dependable.
steve flecknoe‑brown
20. Dr Flecknoe‑Brown is a medical practitioner in Broken Hill who is engaged at the Broken Hill hospital and who holds additional fellowships as a Member of the Australian College of Practitioners and the Royal College of Pathologists. He completed a report of 29 September 2006 which was received into evidence (Exhibit C).
21. Dr Flecknoe‑Brown said that he had known Mr Morris for a number of years by referral from his former general practitioner. He was aware that Mr Morris did suffer from drusen of both eyes from the early 1990’s but despite the pessimistic advice then given, it was his opinion that the condition has been stable since about 1996 and his eyesight had not interfered with his ability to undertake employment. It was his opinion that Mr Morris’s eyesight would only affect him if he were working underground as a miner or if he was working in the vicinity of moving machinery. He learned when giving evidence that Mr Morris had recently been re‑issued with his motor vehicle licence and in those circumstances he assumed that Mr Morris had satisfactorily passed a medical and visual examination. It was his opinion that Mr Morris was totally and permanently disabled by his ischaemic heart disease and post‑traumatic stress disorder.
22. Dr Flecknoe‑Brown was aware that Mr Morris performed voluntary work with the Musicians Club in Broken Hill and was also engaged in voluntary work with Legacy and the RSL. It was his opinion that Mr Morris was capable of undertaking some clerical type work but he was unaware of whether he possessed any clerical type skills.
concession
23. At the end of the evidence of the first day of hearing in Mildura, Mr Douglass conceded the applicant had been employed and there was no need to call other shearing contractors who had engaged him.
second day of hearing
24. Mr Morris was examined by Dr Green an ophthalmologist in July 2005 at the request of the respondent. She was not required for cross-examination and was not called to give evidence. In a report of 1 August 2005 she took a history from Mr Morris that it was his opinion that his reduced vision did not affect his ability to work as a station hand. She reported that there was no evidence of pigmentary dystrophy of the retina but whilst there was severe peripheral visual field loss there was good central vision. It was her opinion that the applicant’s vision had remained stable since 1992 and his eye condition should not prevent him from undertaking remunerative work providing that the tasks he is required to perform do not rely on peripheral vision.
25. Dr Horsley, an occupational physician, examined the applicant at the request of the respondent in July 2005 and provided a report. She was called to give evidence. In her report she expressed the opinion that the ischaemic heart disease and emphysema realistically prevent him from working greater than eight hours and greater than 20 hours per day [sic] in manual work. She also reported that the applicant was limited to manual work by reason of his educational background and literacy difficulties. She noted a history of manual employment in Broken Hill. She thought the absence of a driver’s licence because of his visual deficit did impact on his capacity for work as well as his age (at date of consultation) of 64 years. It was her opinion that the applicant’s diabetes, hypertension, alcohol dependence and right shoulder injury did not interfere with his capacity for employment.
26. In evidence, Dr Horsley said that she obtained a history from Mr Morris that he was employed as a shearing contractor and he had been engaged in heavy work. She thought that by reason of the drought in recent years there would be less opportunities for work on rural properties because of reduced stock numbers.
27. When she learnt of the opinions expressed by Dr Green and learnt also that the applicant had been issued with a driver’s licence, she remained of the opinion that there was a continuing incapacity for work by reason of the ischaemic heart disease and emphysema.
submissions
28. Mr Purcell who appeared on behalf of the respondent on the second day of hearing submitted that the applicant had not been engaged in remunerative work and in those circumstances was unable to satisfy the framework of the Full Federal Court decision of Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4 and 5.
29. Additionaly, it was submitted the applicant had not been engaged in work that was real or substantial, the evidence of both the applicant and Mr Smith was inconsistent as to the period of employment and the description of the work and the relevant remunerative work of the applicant should be found to be of a miner from which the applicant was retrenched in 1988. In the event that it was found that the applicant was working for shearing contractors, it was submitted that it should be found that he was in fact engaged as a labourer and not as a rouseabout because he had not been working at award wages and such terms of employment would not have been tolerated by a relevant union. It was submitted the applicant was prohibited from engaging in the use of machinery or driving a motor vehicle because of his poor vision and his period of time out of the workforce prior to making his application prohibited him from satisfying the alone test under s 24(1)(c) of the Veterans’ Entitlements Act 1986 (the Act).
30. Mr Moore on behalf of the applicant submitted that the alone test was the only matter in issue. It was submitted that despite the applicant having qualified for a blind pension, he did engage in employment until 1997 without incapacity. It was submitted that the applicant was engaged in remunerative work for which he was sought out by contractors and graziers, his age, his place of domicile and his poor eyesight did not interfere with his capacity to engage in employment and his only impediment to continuing employment were his accepted disabilities.
conclusion and reasons for decision
31. Considerable attention was given in the respondent’s closing submissions to the evidence of the applicant and Mr Smith from the transcript of evidence of the first day of hearing in Mildura. It was submitted that the evidence was unreliable and a finding should not be made that the applicant was employed as a rouseabout as alleged. I am not satisfied that findings of that type are warranted.
32. Mr Smith did record in a letter of 5 February 2006 (Exhibit E) that he employed the applicant in 1987 throught [sic] to 1990. However in a letter of 20 September 2003 (T‑documents, p102) he recorded that the applicant was employed to the mid 1990’s. Mr Bennett, to whom Mr Smith contracted, recorded in a letter of 12 October 2005 (Exhibit E) that the applicant worked on his property during the 1990’s. Mr Billings (T‑documents, p101) recorded that he last employed the applicant on 8 August 1997 (which was the occasion the applicant described as having sustained severe chest pains and for which he was admitted to Broken Hill Hospital. It appears that this was the last day that the applicant worked). In evidence, Mr Smith said that he employed the applicant until the mid 1990’s (Trans. p9). On balance therefore I am satisfied that the applicant was employed well beyond 1990 and then until 8 August 1997 when he was working for Mr Billings. I am satisfied that the entry made by Mr Smith in his letter of 5 February 2006 is incorrect, it is inconsistent with the letter he wrote on 20 September 2003 and it is also inconsistent with the evidence he gave at the hearing. It is also inconsistent with the letter of retrenchment which records Mr Morris being employed at December 1988, as a miner in Broken Hill. I am also satisfied that a history taken by Dr Ewer in a report of 11 October 2002 (T5) recording the applicant as having ceased work in 1989 when he was retrenched by Broken Hill Mines was incorrect. The applicant said in evidence that history was not true and is inconsistent with the evidence of Mr Smith and the documented evidence of other graziers.
33. It was also suggested that the applicant was not engaged in real or substantial work. Those submissions may have their origin in the evidence given to the VRB by the applicant of an annual remuneration of $2000.00. On the evidence of both Mr Smith and the applicant, I am satisfied that the evidence of annual remuneration at that level was incorrect. Mr Smith said in evidence that he paid the applicant at $60.00 per day by cheque from which taxation had been deducted. He also issued group certificates. It was his evidence that he engaged the applicant for about six months of every year and the evidence of the applicant was that he obtained work in his own right for another three months of each year. He said that he continued to earn at about $60.00 per day with other graziers. He agreed that the award rate for rouseabouts was in the vicinity of $120.00 per day and it therefore followed that he also agreed that he was working at about half of the award rate of pay. He worked Monday to Friday and it therefore followed that for nine months of each year that he worked, he would earn considerably more than $2000.00 per annum. The evidence at the VRB was difficult to comprehend in the absence of a Transcript of the evidence then given to it but I am satisfied and find as a fact that the applicant did work consistently for nine months of each year at approximately $60.00 per day and he would have therefore have earned considerably greater than $2000.00 per annum. It may be – although this did not attract any attention during the hearing – that the wages paid to the applicant was also supplemented by the provision of killers. I understand that to mean that the applicant received meat in the form of sheep carcasses in addition to the $60.00 paid per day. Working at less than award rates probably would not have been tolerated by a relevant union (refer paragraph 29 earlier) as submitted, nor, in probability, any agency responsible for enforcing award entitlements. But it does not follow that there was no contract of employment between Mr Morris and graziers where he was engaged as a rouseabout.
34. It was also suggested that the applicant was not engaged in real or substantial work because of the evidence of Mr Smith that the applicant wasn’t working very hard – he was only just helping me out . . .(Trans. p10) and we only gave him the jobs that really suited him, we didn’t give him any of the real hard tasks . . . (Trans. p11). Despite that evidence there was the evidence of the applicant – and Mr Smith – that the duties undertaken by the applicant were that of a cook together with penning sheep, cleaning, loading and stamping wool bales and mustering. Subjectively that may not have been regarded by Mr Smith as being real hard tasks or not a lot but nonetheless the applicant was engaged on a daily basis – at least with Mr Smith – for about six months of each year earning income. Work is not qualified by s 24(1)(c) as duties which must require a degree of vigour or which were arduous. Work, that a veteran was undertaking, was found by the Full Federal Court in Sheehy v Repatriation Commission (1996) 23 AAR 126 at 130 as importing a notion of performance or of successful or effective undertaking of work. That decision involved an enquiry into whether two periods of employment, each of two weeks, satisfied s 24(1)(c) being the work that the veteran had undertaken. The Court decided to the contrary. In the present case, the veteran’s circumstances are significantly different. He worked for a contractor and was sought by station owners for a greater part of each of seven years. There are, clearly in my view, objective signs, which point to Mr Morris having pursued and been engaged in remunerative work (refer Leane v Repatriation Commission [2004] FCAFC 83.
35. Being engaged as a cook or mustering or penning sheep might be thought – in comparative terms to persons engaged as shearers – as being lighter work but that does not permit a finding submitted by the respondent’s representative on the second day of hearing that the applicant was realistically engaged in a hobby. Earnings of $60.00 per day for about nine months of each year would attract an annual salary in the vicinity of $13,000 or $14,000. Income at that level earned over nine months of each year working at five days per week, being driven to and from jobs by other employees sometimes to a distance of 200kms from Broken Hill and being issued with a group certificate does not permit a conclusion that the applicant was engaged in a hobby. The present circumstances of Mr Morris are very different to the veteran in Hill v Repatriation Commission [2000] FCA 929 where Wilcox J decided that a veteran who asserted he was undertaking remunerative work, was, in fact, engaged in a hobby of dog breeding. In that case, at relevant times, the veteran sold about 10 dogs, his income from sales was minimal and significantly less than his expenses. I am satisfied for all of the above reasons Mr Morris was undertaking remunerative work.
36. It is true that the applicant did not lodge tax returns. His explanation was that tax had been deducted from his wages. Another explanation was that he didn’t care. If he has fallen foul of the income tax legislation it does not detract from characterising his engagement with Mr Smith and others as being in the nature of employment which had, as its ingredient, undertaking work which was remunerative. There was no warrant to criticise or attack the credit of Mr Smith by his failure to produce records when in evidence he said that records that he had held had been destroyed because it was no longer necessary for him to keep them.
37. In concluding this part of the reasons I am also satisfied that the remunerative work which was being undertaken by the applicant was that as a rouseabout. I reject the submission made by the respondent that the relevant remunerative work was that as a miner which concluded in 1988.
38. The real focus in this review was whether the applicant, by reason of war‑caused injuries alone, was prevented from continuing to undertake remunerative work that was being undertaken and as a consequence whether the veteran has suffered a loss.
39. I am satisfied that the applicant has not worked since August 1997 and has not earned income. It therefore follows that he has suffered a loss of salary or wages.
40. The respondent asserted that the applicant did not satisfy the alone test because there were other factors in combination contributing to his incapacity (refer Forbes v Repatriation Commission (2000) 58 ALD 394) paragraphs 39 and 40. In Repatriation Commission v Hendy (2002) 76 ALD 47 at 47 the Full Federal Court decided that any factor that plays a part or contributes to a veteran being prevented from continuing to engage in remunerative work was required to be taken into account. The respondent relied on the applicant’s poor schooling and literacy, his inability to work or be engaged at or near machinery (because of his poor vision), his domicile in Broken Hill which is regarded as a remote area with limited employment opportunities, his inability to drive a motor vehicle, widespread drought reducing the opportunities for employment on grazing properties, the risk that he presented to a potential employer by reason of his poor vision and the period of time out of the workforce before lodging his application, as factors which offended the alone test.
41. Taken in isolation there may be merit in the respondent’s contentions. However all of those factors must be taken into account and examined in order to determine whether they do contribute to the applicant being prevented from continuing to engage in remunerative work. Deciding what a veteran probably would have done absent the service disabilities is a hypothetical exercise (refer Hendy at paragraph 37 and Repatriation Commission v Smith (1987) 15 FCR 327 at 336). As Burchett J decided in Cavell v Repatriation Commission (1988) 9 AAR 534 at 539, a finding of whether a veteran has suffered a loss of remunerative work by war‑caused injuries or diseases alone, should be made with an eye to reality, not philosophical distinctions and using commonsense (as) the proper guide.
42. I do not think any weight should be attached to the factors asserted by the respondent as offending the alone test. The applicant’s limited schooling and poor literacy did not affect his work as a rouseabout and would not have affected it into the future. It would be wise for him to avoid use of or working near machinery having regard to his limited vision but that was not an issue whilst he was employed, nor, apparently an issue for the graziers that contacted Mr Morris after 1997 asking him to return to work. Living in Broken Hill which, on the respondent’s contentions has significant unemployment, was no impediment to the applicant because it was in fact the central base from which he worked as a rouseabout. His loss of motor vehicle licence was not an impediment because he was driven to and from work by other colleagues and more recently has regained his licence to drive during daylight hours. It was submitted that the drought throughout Australia in recent years would have caused a loss of job opportunities as a rouseabout but there was no evidence of this. It might be possible to infer that depleted pastures might cause reduced stock numbers but equally it could be inferred that stock were hand fed. Simply put, there is no evidence that the stock of sheep in western New South Wales has been reduced thereby limiting the opportunity of the applicant continuing to engage in work as a rouseabout. The risk to potential employers by the applicant’s loss of vision did not prevent a number of graziers engaging him as evident by the list of employers provided at the hearing (Exhibit E). The applicant has been out of the workforce since 1997 but he did receive telephone calls from graziers until 2001 offering him work. Whilst that might suggest that work opportunities were not reduced by the drought, it does suggest that his period of time out of the workforce was not an impediment to returning to work nor was it considered by potential employers that he had lost his previous skills as a rouseabout. Consistent with the evidence of Dr Flecknoe‑Brown and Dr Horsley, the applicant has been at all relevant times incapacitated for employment by reason of his war‑caused ischaemic heart disease.
43. Dealing therefore with the four issues posed in Flentjar –
(i)I am aware of – and adopt – the comments of the Full Federal Court in Repatriation Commission and Butcher [2007] FCAFC 36 at paragraph 7, namely –
7 It is settled law that the subsection requires consideration of ‘remunerative work’ by having regard not to particular tasks and duties involved in specific jobs, but rather to the type of substantive work undertaken by the veteran considered at a higher level of generality: see Banovich v Repatriation Commission (1986) 69 ALR 395 at 402; Starcevich v Repatriation Commission (1987) 18 FCR 221 at 225; and Repatriation Commission v Hendy (2002) 76 ALD 47 at 54.
(refer also Hendy at paragraph 36).
The relevant remunerative work that the applicant was undertaking within the meaning of s 24(1)(c) of the Act was work manual and unskilled, work involving lifting, bending and walking. The last remunerative work prior to the commencement of incapacity was as a rouseabout. He had been undertaking that work for seven years immediately before the commencement of incapacity. He was not a miner. That work had ceased nine years previously. But, as will be discussed later, even if it were found that the relevant remunerative work was a miner, the physical nature of that work would be beyond the capacity of the applicant.
(ii)The war‑caused injuries, especially the ischaemic heart disease, has prevented the applicant from continuing to undertake the work as a rouseabout since August 1997. Dr Flecknoe-Brown said post‑traumatic stress disorder and Dr Horsely said emphysema also contributed to incapacity. Both of those conditions are accepted as war‑caused. The work as a rouseabout exposed the applicant to a wide range of physical activity. Even if the remunerative work of which the applicant has been prevented from continuing to undertake was found to be a miner, its physical demands would be beyond him. (It would, for the reasons given earlier, be inappropriate to find the remunerative work to be as a miner, no less because to do so would ignore the work which was subsequently, and objectively, undertaken, as a rouseabout. The applicant has no capacity for any employment, irrespective of the outer boundaries of a reasonable range of remunerative work (refer Butcher at paragraph 17). The capacity to work since August 1997 is absent because of the war‑caused injuries predominately emphysema, ischaemic heart disease and post‑traumatic stress disorder. The opinion of Dr Flecknoe‑Brown of the applicant being able to engage in clerical work is not within the reasonable range of remunerative work because he has no such experience. It would not be reasonable to find such a capacity, no less, in terms of the s 24 qualification, because the capacity to undertake that type of work was limited to no more than eight hours per week (refer Exhibit C, p3).
(iii)I am satisfied for all of the above reasons that the war‑caused injuries, especially the ischaemic heart disease, have been the only factors preventing the applicant from continuing to undertake the work as a rouseabout.
(iv)But for the war‑caused injuries and especially ischaemic heart disease, the applicant has been prevented from continuing to undertake the work as a rouseabout and as a consequence he has suffered a loss of salary or wages or earnings that he would not be suffering if he were free of that incapacity.
44. In all of the circumstances the decision under review should be set aside and in substitution for it IT IS DECIDED that at all relevant times the applicant has been entitled to pension at the special rate.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior MemberSigned: .....................................................................................
Personal AssistantDates of Hearing 13 March and 8 June 2007
Date of Decision 20 June 2007
Counsel for the Applicant Mr G Moore
Solicitor for the Applicant Mr P Liefman
Departmental Advocates Mr R Douglass and Mr G Purcell of Counsel
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