PAUL GILMOUR and REPATRIATION COMMISSION

[2012] AATA 278

[2012] AATA 278  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2010/3873
Re	PAUL GILMOUR
APPLICANT
And	REPATRIATION COMMISSION
RESPONDENT

DECISION

Tribunal	Mr R G Kenny, Senior Member
Date	10 May 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, 120

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

Willis v Repatriation Commission [2012] FCA 399

REASONS FOR DECISION

10 May 2012

BACKGROUND

1. On 11 January 2010, Paul Gilmour 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 sensori-neural hearing loss, major depressive disorder, posttraumatic stress disorder, osteoarthrosis of the knees, lumbar spondylosis, irritable bowel syndrome, erectile dysfunction and pleural plaques. On 28 January 2010, a delegate of the respondent determined that, in accordance with s 22 of the Act, pension should continue to be paid to Mr Gilmour at 100% of the general rate and not at an earnings-related rate under ss 23 or 24 of the Act. On 5 August 2010, that decision was affirmed by the Veterans’ Review Board (“the Board”).

   ISSUES AND LEGISLATION

2. 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 1 January 2010, and ending when the claim or application is determined.[2]

   [1] Repatriation Commission v Smith (1987) 15 FCR 327 at 335 per Beaumont J.

   [2] Veterans’ Entitlements Act 1986 (Cth) ss 19(5C)(a) and 19(9).

3. It is not disputed that the general rate of pension payable to Mr Gilmour was correctly assessed by the respondent at 100%. The issue raised by Ms Helena Smith, for Mr Gilmour, 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 Gilmour from the application day. The matter that needs to be determined is whether or not Mr Gilmour meets the requirements of ss 24(1)(a)(i), (b) and (c) of the Act. These read:

   (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; or

   …

   (b) the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and

   (c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and

   …

4. Mr Jeff Kelly, for the respondent, conceded that Mr Gilmour meets the requirements of ss 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 Gilmour. He also submitted that s 24(2)(b) of the Act was not satisfied in this matter. Ms Smith submitted that the only reason for Mr Gilmour 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. Alternatively, she submitted that, as Mr Gilmour was under the age of 65 years on the application day and had been genuinely seeking remunerative work, he was entitled to the benefit of s 24(2)(b) of the Act.

   EVIDENCE

   Mr Gilmour

5. Mr Gilmour served in the RAAF for 20 years from 1969 until 1989. His training was in transport operations which included driving trucks and operating fork lifts and heavy equipment such as graders and bulldozers. He claimed that, during his RAAF service, he was disadvantaged by several remusterings which impacted adversely on his promotion prospects. He was discharged with the rank of corporal but had served for a period as acting sergeant. After 20 years of service, Mr Gilmour was alerted to the prospect of a further remustering and, being unwilling to experience that, he chose to retire from the RAAF. Mr Gilmour was then employed as a bus driver by the Picton Hospital and, subsequently, by the Liverpool Hospital. His hospital work involved the movement of patients and he ceased this in 2001. He then moved from New South Wales to Queensland where he took up residence in Beerwah to be close to relatives. He continues to reside there with his wife.

6. Mr Gilmour has a history of alcohol consumption which commenced, on a social basis, around the time of his RAAF enlistment. He was convicted of driving under the influence of alcohol in 1972. He said that, following a truck accident in 1983, his alcohol consumption increased substantially in the form of self-medication to assist him in getting to sleep at night and to overcome nightmares associated with the truck accident. After a bout of excessive alcohol consumption in 1986, Mr Gilmour was involved in a fight with several men as a result of which he spent the night in jail and was charged with assault. His RAAF penalty comprised a loss of two years seniority and Mr Gilmour said that his alcohol consumption interfered with his promotion prospects. After 1983, his daily routine was to repair to a hotel or club where he would consume alcohol but would cease drinking when he was within eight hours of resuming his driving duties. He said that his RAAF colleagues counselled him from time to time for his excessive drinking which they associated with his attitude in the workplace. He said that he was officially reprimanded in the RAAF on only two occasions.

7. Mr Gilmour said that his alcohol consumption was a factor in his ceasing work as a hospital bus driver in 2001. He would typically consume eight or nine “schooners” of beer each night in a club or hotel before going home. He was reprimanded on occasions for his behaviour, typically outbursts of anger often associated with hospital staff parking their vehicles in space reserved for his bus. He described himself as being “out of control” and said that he resigned “to do the right thing”. He gave one month notice to ensure that a replacement driver could be found before he stopped driving the bus.

8. Mr Gilmour was unable to recall whether he had lodged a worker’s compensation claim while he was working at the Liverpool Hospital but agreed that he had consulted a law firm at one stage in 2001 about payments due to him and that he was referred to a psychiatrist, Dr Robert Lewin, at the time. Also in 2001, Mr Gilmour saw psychiatrist Dr Altman on the advice of a colleague who had had been assisted by Dr Altman with psychiatric treatment.

9. Mr Gilmour currently consumes three large bottles of beer at night but said that he has two alcohol-free days each week. He attributed his reduced consumption to his difficult financial situation. He said that his wife experienced a heart problem some three years before the hearing and that this meant he was required to assume responsibility for most of the housework. He said that she was to see a heart specialist within a week or so. Mr Gilmour said that he is in receipt of the disability support payment, a form of income support available under Commonwealth social security legislation.

10. Mr Gilmour has been hospitalised for his psychiatric problems on some 29 occasions since coming to Queensland. He said that this was for depression and fear of self-harm, but he agreed that there was always an element of alcohol detoxification in his treatment. He was able to refrain from alcohol consumption in hospital because of the medication he was prescribed and said that he was able to maintain this for a short time after hospital discharge before recommencing his earlier habit.

11. Mr Gilmour agreed that he suffers pain from osteoarthritis in his elbows, feet, ankles and knees as well as his neck. He said that he should have claimed under the Act for these conditions to be accepted as service-related but said that he did not wish to appear too greedy. For his orthopaedic problems, he attends physiotherapy treatment three times each week and attends a podiatrist each month.

12. In relation to employment after ceasing his hospital bus driving, Mr Gilmour said that he had tried to get work “many times”. He said that no one was interested in employing him on the basis that he was either over qualified or too old. He was able to stand in for a truck driver on one occasion on a return trip to New South Wales for which he was paid $200. He also drove his own vehicle from time to time, without remuneration, to assist family members with removal of furniture. He agreed that he had told the Board that he had not sought work in Queensland and explained that this had been on the basis that no employer was interested in him and it was as if he hadn’t applied for work.

    Medical evidence

13. Dr Robert Lewin, psychiatrist, assessed Mr Gilmour in 2001 in relation to a workers’ compensation claim. He completed reports on 16 January 2001, 3 October 2001 and 25 July 2002. In his first report, Dr Lewin noted a history of excessive alcohol consumption and problems with temper control but he was unable to diagnose any psychiatric condition. In his second report, Dr Lewin diagnosed alcohol dependence, noted that tests had revealed signs of liver damage and expressed reservations about the appropriateness of Mr Gilmour’s involvement in driving. In his final report, Dr Lewin noted that Mr Gilmour had seen psychiatrist Dr Graham Altman who had diagnosed posttraumatic stress disorder. Dr Lewin’s opinion was that Mr Gilmour did not satisfy the diagnostic criteria for that condition but he confirmed his earlier diagnosis of alcohol dependence.

14. Dr Altman completed reports on 6 July 2001 and 7 December 2001. On the history provided by Mr Gilmour, Dr Altman diagnosed posttraumatic stress disorder, major depressive disorder and alcohol dependence.

15. Dr William Hurley, psychiatrist, completed a report on 24 April 2003. Despite being advised by Mr Gilmour that he was suffering from posttraumatic stress disorder, Dr Hurley’s opinion was that the appropriate diagnosis was generalised anxiety disorder. On 24 September 2004, Dr Hurley reported that he had seen Mr Gilmour on eight occasions for psychiatric treatment. He noted that Mr Gilmour had been an in-patient on some six occasions in 2003/4 for a total of some six weeks. Dr Hurley diagnosed posttraumatic stress disorder, major depressive disorder, alcohol dependence and abuse as well as borderline personality disorder. He assessed the relative contributions to Mr Gilmour’s overall psychiatric state as being 20% each for the first three of those conditions and 40% for borderline personality disorder.

16. Mr Gilmour’s treating psychiatrist is now Dr Eric De Leacy. He completed reports on 10 June 2006, 27 May 2008, 29 September 2009, 9 February 2010 and 7 June 2011. He also gave evidence. In his first report, Dr De Leacy diagnosed posttraumatic stress disorder, alcohol dependence in partial remission and major depressive disorder. He noted a history of significant problems with Mr Gilmour’s alcohol dependence and that he had been hospitalised several times for his psychiatric problems. Dr De Leacy referred to the reduction in use of alcohol as being due to his “lack of funds” to purchase it. In relation to work history, he wrote that Mr Gilmour had ceased work because of “arthritic problems”, that he was prevented from doing physical work because of his physical disabilities and that he was prevented from sedentary work because of his emotional problems. Dr De Leacy listed physical disabilities as including arthritis of the elbows.

17. Dr De Leacy concluded that Mr Gilmour did not suffer from borderline personality disorder and that the contributions to his psychiatric assessment were 40% each for posttraumatic stress disorder and major depressive disorder and 20% for alcohol dependence. In his subsequent reports, Dr De Leacy wrote that Mr Gilmour’s alcohol dependence had not been problematic in regard to his work capacity and that the alcohol related issues were “part and parcel” of his posttraumatic stress disorder. He noted the report of occupational physician, Dr John Sowby, and its reference to certain conditions as being relevant to Mr Gilmour’s work capacity. These were alcohol dependence, osteoarthritis of the ankles and elbows, heart murmur and chronic bronchitis. Dr De Leacy’s opinion was that these conditions do not prevent Mr Gilmour from working and that the posttraumatic stress disorder, alone, was responsible for Mr Gilmour not working.

18. In his evidence, Dr De Leacy confirmed his reported opinions. He said that, in a causal sense in Mr Gilmour’s case, alcohol dependence was related to his posttraumatic stress disorder. However, he agreed that, diagnostically, they were separate conditions. Dr De Leacy also agreed that part of the treatment received by Mr Gilmour in his hospitalisations was for his alcohol dependence.

19. Dr Sowby assessed Mr Gilmour on 8 March 2011 and completed a report on 15 March 2011. Dr Sowby wrote that Mr Gilmour had resigned from the hospital driving after a serious altercation with a person in the bus parking space. He also reported that Mr Gilmour had sought work after 2001 but was unsuccessful because he was “over fifty and over qualified”. Dr Sowby noted heavy alcohol consumption during Mr Gilmour’s working life but wrote that this had decreased in recent years in part because he cannot afford it. He described arthritic pain in Mr Gilmour’s ankles and knees. He also noted that Mr Gilmour has arthritis in his elbows which has worsened over the previous five years such that he has increasing difficulties with day to day activities, such as hanging washing or lifting a washing basket. Dr Sowby noted that Mr Gilmour’s bronchitis causes few problems except for a productive morning cough and breathlessness on exercising, such as walking for 150 metres. Dr Sowby noted that Mr Gilmour had hypertension which is controlled by medication and a heart murmur which has not required treatment.

20. Dr Sowby’s opinion was that Mr Gilmour’s psychiatric conditions would prevent him from returning to work in any meaningful capacity. He implicated Mr Gilmour’s lower back, lower limbs and elbows in restricting him in any commercial driving or plant operator duties. His opinion was that the capacity of Mr Gilmour to work was limited by all of the conditions from which he suffers.  

    Other evidence

21. In evidence was a report from the Liverpool Hospital where Mr Gilmour worked from November 1997 until January 2001. Therein, the reason for his ceasing work was declared to be of his “own accord”. It also advised that, if he had not left when he did, there were no reasons for his employment to be terminated in the foreseeable future.

    CONSIDERATION

22. Mr Gilmour was in receipt of pension at more than 70% of the general rate at the commencement of the assessment period. The evidence of is that Mr Gilmour’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 Kelly.

23. The application of s 24(1)(c) involves a consideration of what Mr Gilmour would probably have done in the assessment period in the absence of his accepted disabilities.[3] The Federal Court has said that a proper consideration of paragraph 24(1)(c) of the Act requires responses to the following questions:[4]

    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?”

    [3] See Repatriation Commission v Hendy (2002) 76 ALD 47 at 54.

    [4] See Flentjar v Repatriation Commission (1997) 26 AAR 93; (1997) 48 ALD 1 at 2.

24. 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.

25. 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”. It is not in dispute that Mr Gilmour’s remunerative work is as a truck or bus driver and plant operator. From the psychiatric evidence, I also accept that, for the purposes of the second of the questions noted above, Mr Gilmour’s accepted disabilities were such that, in the assessment period, they would have prevented him from continuing to undertake that remunerative work.

26. The third of the questions noted above raises what is referred to as the “alone test” in the first part of s 24(1)(c) of the Act. In Willis v Repatriation Commission,[5] Bromberg J said:

    [23]     The question raised by the “alone test” is not whether, on its own, the war‑caused incapacity prevents the veteran’s continued employment.  The question is whether apart from the war-caused incapacity, there is another factor or factors which prevent employment.  The existence of other factors which prevent the veteran from working has a disqualifying result for an application for a pension at the special rate.  The war-related incapacity must be the lone factor which prevents continued employment.  That is what is meant by “alone”.

    [24]      Another way of re-stating that proposition, which more closely focuses upon the language of s 24(1)(c), is that the alone test requires that the war-caused incapacity is the reason, rather than merely a reason, for the veteran’s inability to engage in the remunerative work which the veteran had previously done.  If there is another reason which, independently of the war-caused reason, is preventing the veteran from working, the inability of the veteran to engage in remunerative work is not “by reason” of the war‑caused incapacity “alone”.

    [5] [2012] FCA 399.

1. There must be no other factor, apart from Mr Gilmour’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.[6] In the event that they would have contributed to preventing Mr Gilmour from doing so in the assessment period, s 24 of the Act will not be satisfied.

   [6] See Repatriation Commission v Hendy (2002) 76 ALD 47 at 54–55; and Repatriation Commission v Alexander (2003) 75 ALD 329 at 334 per Spender J.

2. Mr Gilmour has several conditions which have been determined to be unrelated to his service. These are alcohol dependence and osteoarthritis of the ankles, elbows and neck. His major depressive disorder was the subject of a determination by the Tribunal on 15 September 2009 when, by consent, it was determined to be service-related.[7] At that time, alcohol dependence was also the subject of appeal to the Tribunal by Mr Gilmour. The Tribunal’s consent determination did not include alcohol dependence and, accordingly, it remained a rejected disability. No further claim for acceptance of that condition has been made by Mr Gilmour. I have noted the medical evidence which indicates that Mr Gilmour’s posttraumatic stress disorder encompasses his alcohol problems. Nonetheless, posttraumatic stress disorder and alcohol dependence are separate conditions in accordance with DSM IV[8] criteria and the Repatriation Medical Authority, which has published separate Statements of Principles[9] in relation to them. Accordingly, to the extent that Mr Gilmour’s alcohol dependence has impacted on his work capacity, I am unable to consider that to be a contribution from his accepted disabilities. In that regard, I have noted that Dr De Leacy allocated separate percentage values for posttraumatic stress disorder (40%) and for alcohol dependence (20%). Dr Hurley also distinguished between the two conditions with a 20% allocation to each.

   [7] Decision No 2008/5967.

   [8] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition.

   [9] Instruments No’d 5 and 6 of 2008 for posttraumatic stress disorder and Instruments No’d 1 and 2 of 2009 for alcohol dependence.

3. Ms Smith submitted that Mr Gilmour’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. The medical evidence pertaining to the assessment period comprises that of Dr De Leacy and Dr Sowby. Dr De Leacy’s opinion is that posttraumatic stress disorder has been the sole reason preventing Mr Gilmour from working in the assessment period. However, as noted above, he accepted that alcohol dependence was a separate condition and he attributed 20% of Mr Gilmour’s overall psychiatric debility as being due to that condition. Dr Sowby’s opinion was that Mr Gilmour’s psychiatric conditions, which in his analysis included alcohol dependence, would prevent him from returning to work in any meaningful capacity. But he also implicated Mr Gilmour’s lower limbs and elbows in restricting him in any commercial driving or plant operator duties. While Mr Gilmour’s knees are an accepted disability, his ankle conditions are not. Neither are his elbow conditions. Dr Sowby’s opinion was that the capacity of Mr Gilmour to work was limited by all of the conditions from which he suffers and I am satisfied that his summary included a reference to non-accepted disabilities. I have also noted Mr Gilmour’s evidence concerning the health problems of his wife and the consequence that this has had on his involvement in household duties.  I am satisfied that this would also impact on his capacity to involve himself in his form of remunerative work. Finally, I have noted Mr Gilmour’s own evidence of his age and am satisfied that this would also play a role in his obtaining the kinds of remunerative work relevant to him.

4. I am satisfied that the incapacity associated with Mr Gilmour’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. 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.

5. Ms Smith submitted that Mr Gilmour’s circumstances met the terms of that provision. At the commencement of the assessment period, Mr Gilmour was under 65 years of age. A pre-condition to the application of s 24(2)(b) of the Act is that Mr Gilmour 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.

6. Mr Gilmour has not given consistent accounts of his endeavours to gain employment after he ceased driving the bus at Liverpool Hospital in 2001. He moved to Queensland in 2002. In his evidence, he described “many attempts” to find work but no specific detail was provided in that regard except for an opportunity to drive a truck on one occasion to NSW to bring a caravan back to Queensland. This did not lead to any further work. He also shifted furniture in his own vehicle for family members but this was not remunerative work. His evidence to the Board was that he had not sought employment since 2001. He agreed that he gave that evidence but I do not accept the explanation he gave for having provided that statement to the Board. I am not satisfied that Mr Gilmour sought remunerative work in Queensland during the assessment period. However, even if he did seek such work, I am satisfied that his accepted disabilities were not the substantial cause of his inability to obtain remunerative work. He has osteoarthritic conditions which cause him problems and these include non-accepted disabilities in the ankles, elbows and neck. I have also noted his evidence that his wife’s health problems have required him to assume responsibilities in the home. The main reason he gave for not obtaining work was that no employer was interested in him and this was because he was considered to be over-qualified for work around Beerwah or because of his age. None of those reasons are associated with his accepted disabilities and I am satisfied that his accepted disabilities were not the substantial cause for Mr Gilmour’s inability to obtain remunerative work. Accordingly, I am satisfied that the ameliorating terms of s 24(2)(b) of the Act are not applicable to Mr Gilmour. The third question listed above is answered in the negative.

7. The fourth of the questions listed above is whether Mr Gilmour 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; and

   …

8. Ms Smith submitted that the effects of Mr Gilmour’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. I do not accept that submission. Whereas his alcohol dependence may be in remission to some extent at the present time, that was not the case in 2001 when he ceased work. It remains a condition which has been rejected as being related to his service. I am satisfied that Mr Gilmour 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.

9. I am satisfied that Mr Gilmour 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    

10. The Tribunal affirms the decision under review.

I certify that the preceding 36 (thirty six) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.

.............[Sgd].........................................

Associate

Dated 10 May 2012

Date(s) of hearing	17 April 2012
Advocate for the Applicant	Helena Smith
Advocate for the Respondent	Jeff Kelly