Peter Fielden and Repatriation Commission
[2014] AATA 702
•25 September 2014
[2014] AATA 702
Division VETERANS' APPEALS DIVISION File Number
2013/3649
Re
Peter Fielden
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Brigadier C. Ermert (Retd), Member
Date 25 September 2014 Place Melbourne The Tribunal sets aside the decision under review and decides that Mr Fielden’s pension is to be paid at the special rate from 26 April 2013.
[sgd].........................................................................
Member
VETERANS' ENTITLEMENTS – veteran not yet turned 65 – totally and permanently incapacitated – incapacity from war-caused injury or war-caused disease alone – prevented from continuing to undertake remunerative work – decision set aside
LEGISLATION
Veterans' Entitlements Act 1986, s.24
CASES
Flentjar v Repatriation Commission [1997] FCA 1200 (1997) 26 AAR 93
Repatriation Commission v Hendy [2002] FCAFC 424
Repatriation Commission v Sheehy (1995) 133 ALR 654
Leane v Repatriation Commission [2004] FCAFC 83 (31 March 2004)
Richmond v Repatriation Commission [2014] FCA 272REASONS FOR DECISION
Brigadier C. Ermert (Retd), Member
25 September 2014
INTRODUCTION
Mr Fielden, the Applicant, was born on 19 January 1949. He undertook National Service in the Australian Army from 28 January 1970 to 15 November 1971, including a period of service in Vietnam. Following his Army service Mr Fielden had a number of jobs, mainly as a roof tiler and a rigger. He last worked in 2000.
Mr Fielden received a pension, at 100 per cent of the general rate, for incapacity from the conditions of post-traumatic stress disorder (PTSD) with alcohol and drug abuse, sensorineural hearing loss and tinnitus. The Repatriation Commission (the Commission), the Respondent, accepted all of these conditions as war-caused. On 3 February 2011 Mr Fielden applied to the Commission, for an increase in the rate of pension. On 8 February 2011 the Commission refused the application and decided to continue Mr Fielden’s disability pension at 100 per cent of the general rate. The Veterans’ Review Board (VRB) affirmed this decision on 8 July 2012. On 26 July 2013 Mr Fielden applied to this Tribunal for a review of the VRB’s decision.
On 26 July 2013 the Commission also accepted Mr Fielden’s conditions of chronic bronchitis and emphysema as war-caused.
THE HEARING
At the hearing Ms Fiona Ryan of Counsel, instructed by Williams Winter Solicitors, represented Mr Fielden. Mr Ken Rudge, a departmental lawyer, represented the Commission. Mr Fielden appeared in person to give evidence on oath to the Tribunal.
At the hearing, I had before me:
·the documents lodged by the Respondent under section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents),
·The Applicant’s Statement of Facts and Contentions, dated 19 May 2014, and
·The Respondent’s Statement of Facts and Contentions, dated 23 June 2014.
During the hearing I took into evidence for Mr Fielden:
·The statement by Mr Fielden dated 23 July 2013 (Exhibit A1),
·The report by Dr Kaplan dated 26 November 2013 (Exhibit A2),
·The supplementary report by Dr Kaplan dated 4 July 2014 (Exhibit A3),
·The clinical notes from Wyndham Health Care, pages 1 to 118 (Exhibit A4) and
·The clinical notes of Dr Schrueder, pages 1 to 120 (Exhibit A5).
For the Commission I took into evidence:
·The WS Service Classification Record (the Psychiatric Record) of Mr Fielden, dated 28 January 1970 (Exhibit R1),
·Mr Fielden’s Army Record of Service (Exhibit R2),
·The report by Dr Horsley dated 13 March 2014 (Exhibit R3),
·The report by Dr Farnbach dated 24 March 2014 (Exhibit R4), and
·The transcript of the VRB proceedings dated 8 July 2013.
THE LEGISLATION
The relevant legislation is contained in section 24 of The Veterans’ Entitlements Act 1986 (the Act). Section 24 of the Act contains the provisions for the payment of the special rate of pension. Section 24 provides:
(1) This section applies to a veteran if:
(aa) the veteran has made … an application under section 15 for an increase in the rate of the pension that he or she is receiving: and
(aab) the veteran had not yet turned 65 when the … application was made; and
(a) either:
(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
(ii)…
(b)The veteran is totally and permanently incapacitated …; 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
(d)…
(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
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
THE ISSUES
In this case the parties agree that sections 24(1)(aa), 24(1)(aab), 24(1)(a)(i) and 24(1)(b) of the Act are satisfied. The issue in contention is whether Mr Fielden meets section 24(1)(c), as affected by the provisions of section 24(2).
The parties agree that the assessment period commences on 26 July 2013, with the earliest date of effect of a favourable decision being 26 April 2013.
THE EVIDENCE
Ms Ryan took Mr Fielden to his statement dated 23 July 2013 (Exhibit A1). Mr Fielden stated that after he finished school he worked for Castrol as an office boy for 12 months. He then worked in a clerical position at Olympic Tyres for about two years. He was about 19 years old at the time. He said he had a good record with Olympic Tyres during those two years, with no personal difficulties.
Six months after returning from Vietnam, Mr Fielden went back to Olympic Tyres but after a short time he just got up and walked out. He said it was too much. After leaving Olympic Tyres, Mr Fielden had other jobs involving physical labour, including work as a roof tiler and a rigger. His last regular work was as a rigger with John Holland Constructions from 1992 to 1993.
After leaving John Holland Constructions, Mr Fielden had a number of small jobs. He said that none of them worked out. He said he wanted to do things his own way. He said he would yell at people and on occasions came to blows with others. Mr Fielden said he became aware that he had a reputation in the industry and his job applications would be put in the bin.
Mr Fielden said a friend helped him to get a job with a company called Simon Calves. After six weeks he was made a leading hand. He said he was good at his job. He was also appointed a shop steward. However, when the job finished he got the flick.
When asked whether he had had any sustained work for the fifteen to twenty years since the Simon Calves job, Mr Fielden said no. He said his reputation denied him jobs. He said he even tried contracting but it did not work out.
Mr Fielden stated that without his disabilities he would still be working. He said he becomes out of breath after walking only short distances. He has to stop for breath even while taking out the garbage. Mr Fielden said that on average he drinks 12 stubbies of beer a day and one to two bottles of scotch whisky a week. He said he also smokes about three to four bongs of marijuana a day.
Mr Fielden said he started receiving psychiatric treatment from Dr Schrueder a long time ago. He said he was admitted to the Albert Road Clinic in September 2010. In July 2012 he was taken by the police to the Werribee Hospital Emergency Department suffering the effects of excessive alcohol consumption and displaying suicidal tendencies. In June 2013 Mr Fielden was admitted to the Austin Hospital suffering the effects of alcohol consumption.
Mr Fielden said he no longer attended Dr Schrueder for treatment as it was not heading anywhere. He takes anti-depressant medication. He attends the veterans’ program at the Repatriation Hospital in Heidelberg once a week.
When asked by Ms Ryan why he was not looking for work, Mr Fielden said he could not do work involving walking up stairs or carrying weights.
Mr Rudge asked Mr Fielden about the pre-enlistment employment details shown in his Army psychiatric record (Exhibit R1). Mr Fielden gave the following details:
·Position 1: Salesman, four months – he left the job as he wanted to do clerical work;
·Position 2: Clerk, 13 months – he left to take up a job with Olympic Tyres;
·Position 3: Storeman, one month – he does not remember this job;
·Position 4: Roof Tiler, six months – this was piece-work with his father;
·Position 5: Clerk, five months – he does remember this job, although it may have been a despatch clerk position;
·Position 6: Clerk, 17 months – this was the position with Olympic Tyres.
In reply to further questions relating to Exhibit 1, Mr Fielden said:
·He refused to put on his uniform because he did not want to be in the Army;
·He liked surfing but did not leave any job to go surfing;
·He shared about three joints of marijuana before doing his National Service but does not know about using Methedrine;
·He was not really a heavy drinker before his National Service. He would take half-a-dozen cans to a party about once a month.
Mr Rudge referred Mr Fielden to the report of Dr Kornan dated 25 August 1969 and contained in his Army Record of Service (Exhibit R2). In that report Dr Kornan recorded that his enuresis does seem to happen after heavy drinking. Mr Fielden responded that one’s tolerance changes over time. Mr Rudge asked about the drink-driving and assault recorded by Dr Kornan. Mr Fielden said he remembered the incident and said that the police dropped the assault charge.
Mr Rudge asked Mr Fielden about the three occasions on which he had been sentenced to detention during his Army service (Exhibit R2). Mr Fielden said the first occasion was as a result of his refusing to put on his uniform. The third occasion was as a result of his having a drink in his tent in Vietnam, for which he was sentenced to 18 days detention.
Mr Rudge asked Mr Fielden whether he went surfing in the two years between finishing his work at Olympic Tyres and starting work for Monier Tiles. Mr Fielden said he did a number of short jobs with his father as a roof tiler when he needed money. He went surfing in the daytime at weekends. He said he lived at Anglesea for about 12 months and at Torquay for about 18 months. He worked at odd jobs such as glassing surfboards and helping his mate with house building. He did not declare his income for taxation purposes. He said he enjoyed the lifestyle. He went to the beach on weekends because his mates were all working during the week.
Mr Fielden agreed with Mr Rudge that his last significant jobs were with John Holland Constructions as a rigger, ending in 1992; and then he worked for 12 months with Simon Calves. He said that he also did odd jobs, which included work on the Arts Centre spire, work at the Kew swimming pool and helping his brother with house renovations. He said that in some jobs he earned $1,000 to $1,500 per week. He agreed he should have declared the income to the Australian Taxation Office (ATO) but he did not do so.
Mr Rudge put to Mr Fielden that at his age of 60 to 64, with a 100 percent pension, he had had enough of work and preferred time for leisure. Mr Fielden disagreed and said that without his disabilities he would still be working if he could get a really good dollar.
In response to Ms Ryan’s re-examination, Mr Fielden said he was about 25 years old while he was living at Anglesea and about 27 when at Torquay. He said he has not been surfing since he was 35.
TRIBUNAL CONSIDERATION
Section 24(1)(c) of the Act requires that the veteran be prevented from continuing to undertake the remunerative work that the veteran was undertaking by reason of incapacity from war-caused disabilities alone. In considering this issue, I will ask the questions set out in the reasons for the judgment of the Full Court of the Federal Court in Flentjar v Repatriation Commission [1997] FCA 1200; (1997) 26 AAR 93 at 96 :
1What was the relevant remunerative work that the veteran was undertaking within the meaning of s. 24(1)(c) of the Act?
2Is the veteran, by reason of war-caused injury or war-caused disease, or both prevented from continuing to undertake that work?
3If 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?
4If 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 her were free of that incapacity?
In considering question 1, I note Mr Fielden’s evidence that his last regular work was as a rigger with John Holland Construction in 1992-93. Mr Fielden also said that he worked at different times with his father as a roof tiler and he did odd manual labour jobs including sanding surfboards, helping a mate with house building and working at the Kew swimming pool.
Ms Ryan made no submissions regarding the type of work which constitutes Mr Fielden’s remunerative work. In his written Statement of Facts and Contentions, Mr Rudge referred to the Full Federal Court judgement in Sheehy v Repatriation Commission (1996) FCA 1516, paragraph 23 where their Honours held that the veteran must have successfully undertaken or effectively undertaken remunerative work for that work to come within the terms of the remunerative work that the veteran was undertaking in s 24(1)(c) of the Act.
The expression remunerative work is defined broadly in section 5Q(1) of the Act to include any remunerative activity. In Joseph Frederick Starcevich v Repatriation Commission [1987] FCA 342 (6 October 1987), the Federal Court said (at paragraph 19) that:
… a veteran's entitlement to a pension under s.24 may be based on his being prevented from continuing to undertake substantial remunerative work that he has undertaken in the past, even if that work was followed by work of a different type before the veteran ceased work altogether.
In Martin and Repatriation Commission [2001] AATA 346 (30 April 2001) the Tribunal stated (at paragraph 12):
In our opinion, the effect of Section 24(1)(c) is to ensure that an applicant for Special Rate must be able to demonstrate that before the onset of incapacity caused by war injury or disease he was more or less regularly utilising his earning capacity to produce some measurable reward for his work.
In this case the evidence is that Mr Fielden undertook substantial remunerative work as a rigger. However, this work was periodic in nature. Interspersed with his work as a rigger, he undertook work as a roof tiler and did numerous odd jobs of a physical nature. In her report (Exhibit R3), Dr Horsley described his short-term work as unskilled labouring jobs. Although the short-term work is described as odd jobs, some work was substantial in that earned $1,000 to $1,500 per week.
The work also produced some measurable reward for his work in that he was paid wages for the work he performed.
From the evidence I find that the substantial work (more or less) regularly undertaken by Mr Fielden to produce some measurable reward was his work as a rigger and a manual labourer. Accordingly, I find that the remunerative work that Mr Fielden was undertaking was as a rigger and a manual labourer.
In answer to Flentjar question 2, both parties agree, correctly in my opinion, that Mr Fielden’s war-caused disabilities prevent him from continuing to undertake that work.
Flentjar question 3 asks whether the war-caused disabilities are the only factors preventing the veteran from continuing to undertake the remunerative work.
In his submissions, Mr Rudge referred to the judgement of the Full Court of the Federal Court in Repatriation Commission v Hendy (2002) 76 ALD 47. At paragraph 37, their Honours said:
The consideration of what a veteran would probably have done, absent the service disabilities, is a hypothetical exercise. The language of s24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work … If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s24(1)(c) of the Act. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period. …”
Mr Rudge submitted that during the assessment period Mr Fielden had been out of the workforce for about 20 years and that he was 64 years of age. Mr Rudge further submitted that there is evidence that prior to his Army service Mr Fielden drank heavily, used marijuana and Methedrine and had been charged with drink driving and assault. Mr Rudge noted that Mr Fielden had a record of changing jobs, having had six jobs prior to his Army service. Mr Rudge further submitted that after his Army service, Mr Fielden had a fractured work history, spending 12 months at Anglesea and 18 months at Torquay.
Mr Rudge contended that Mr Fielden’s time out of the workforce, his age, his pre-service history, his fractured post-service work history and his personal problems with the community are factors which, in addition to his accepted disabilities, prevent him from continuing to engage in his remunerative work. Mr Rudge contended that the Tribunal should find that Mr Fielden would probably not have been working in the assessment period even in the absence of his accepted disabilities.
Ms Ryan submitted that Mr Fielden had no problems with his employment before he went to Vietnam; and at that at the age of 21 he had a steady work history. She submitted that the last time Mr Fielden went surfing was when he was 35 and there is no evidence that at age 64 he wanted to stop working to go surfing.
Ms Ryan contended that the psychiatric evidence is clear that Mr Fielden had severe psychiatric problems over many years and that those problems prevented him undertaking remunerative work. She submitted that he lost numerous jobs because of conflict with people. She contended also that in later years his chronic bronchitis contributed further to his inability to work. Ms Ryan referred to the following:
·Dr Lester Walton’s report dated 9 October 2003 in which he records:
oMr Fielden’s alcohol and drug abuse after his Vietnam service;
oThe severity of Mr Fielden’s conditions;
oHis work history; and
oHis personal history;
·Austin Hospital Discharge Summary (Exhibit A4) which records Mr Fielden’s drinking one slab of beer and half a bottle of spirits per day in 2013;
·Dr Schrueder’s notes (Exhibit A5) which contains:
odetails of Mr Fielden’s admission into Werribee Hospital on 30 July 2012; and
odetails of Mr Fielden’s admission into Austin Hospital on 28 September 2010;
·Dr Schrueder’s report of 26 August 2010, in which he notes:
oI have been involved in his psychiatric treatment since 12th November 1999;
oMr Fielden has a chronic war related Post Traumatic Stress Disorder with secondary depression. In addition has reported excessive alcohol use indicating dependence; and
oThe clinical picture is currently of a deteriorated state, contributed to by chronic Post traumatic stress disorder, depression and substance abuse, notably alcohol and marijuana. It appears to be 30% PTSD, 50% alcohol and marijuana and the remainder depression”;
·Dr Kaplan, dated 26 November 2013 (Exhibit A2) in which he records:
o“He … worked as a rigger for some 10 years. His work was irregular. He would lose his temper, become involved in physical altercations with workers and bosses, and developed a poor reputation as a result of this behaviour. He commented “I couldn’t handle authority”” (page 2);
oMr Fielden stated that he remains anxious and is constantly on edge. He is intensely irritable and is easily startled … he cannot cope with pressure or stress;
oMr Fielden stated that he still feels depressed and is prone to tears when he is alone. He lacks confidence;
oThe details of Mr Fielden’s alcohol and substance abuse; and
oIn my opinion, Mr Fielden’s accepted war caused injuries are themselves alone preventing him from undertaking remunerative work for periods aggregating more than eight hours per week, and indeed he is not capable of undertaking any work.
·Dr Kaplan’s supplementary report dated 4 July 2014 (Exhibit A3), in which he records:
oI note that there is a consensus of opinion in the attached reports that Mr Fielden is suffering from a Post-Traumatic Stress Disorder related to his war service and that he has no capacity for work as a result of this condition;
·Dr Farnbach’s report dated 24 March 2014 (Exhibit R4), in which he records:
oWith regard to work capacity, it is abundantly clear that Mr Fielden is unemployable and this situation is remotely unlikely to change. He has problems with attention, concentration and memory and longstanding difficulties with argumentativeness and, at time, assaultive behaviour; and
·Dr Horsley’s report dated13 March 2014 (Exhibit R3), in which she records:
oMr Fielden’s primary disability is clearly his psychiatric status, including post traumatic stress disorder with alcohol and drug abuse; and
oIn addition to his significant post traumatic stress disorder, alcohol and drug abuse, he has severe chronic obstructive pulmonary disease …His chronic bronchitis and emphysema alone would prevent him from working greater than 8 hours and greater than 20 hours per week.
Ms Ryan contended that there is no evidence of any reason, other than Mr Fielden’s accepted war-caused disabilities, that prevents him from continuing to undertake remunerative work. She submitted that none of the psychiatrists who examined Mr Fielden said that he would have stopped work absent his accepted war-caused disabilities. She also submitted that there is no evidence that Mr Fielden would not have worked after the age of 64.
Having made the contention above, Ms Ryan acknowledged that Dr Horsley’s report (Exhibit R3) states that Mr Fielden’s age and time out of the workforce are barriers to his return to work. Ms Ryan referred to the unreported judgement of the Federal Court in Richmond v Repatriation Commission [2014] FCA 272, in which Justice Dodds-Streeton wrote (at paragraph 159):
Hendy [Repatriation Commission v Hendy (2002) 76 ALD 47] thus recognises that where, at the commencement of the assessment period, the veteran has already been out of the workforce for some time, whether factors such as lack of recent experience or advanced age during the assessment period should be treated as defeating the alone test may depend on an assessment of what the veteran would have done prior to the assessment period but for his war-caused illness, which is necessarily hypothetical. If, for example, the veteran would not have left the workforce or moved to a different area but for the war-caused condition, such factors would be a consequence of the condition rather than an independent preventative factor.
His Honour stated further (at paragraph 169):
If the veteran would not have been out of the workforce but for the war-caused illness, that factor should not be treated as an independent preventative factor to defeat the alone requirement.
Ms Ryan contended that Mr Fielden’s working life was cut short by his psychiatric illness and that he would not have been out of the workforce but for his psychiatric condition. Accordingly, his age and time out of the workforce should be considered as a consequence of his war-caused conditions, not as independent factors which prevented him from working.
In determining this issue I must consider the hypothetical question posed in Hendy; that is, what Mr Fielden would probably have done absent his war-caused disabilities. Mr Rudge posited that Mr Fielden would not have been working during the assessment period and that his time out of the workforce, his age, his pre-service history, his fractured post-service history and his personal problems with the community are factors which, in addition to his accepted disabilities, prevent him from continuing to engage in his remunerative work.
In regard to Mr Fielden’s time out of work, I note the unanimity of psychiatric evidence that, as a consequence of his PTSD and alcohol problems, Mr Fielden has been incapable of remunerative work for many years. There is no evidence to the contrary. Mr Fielden’s emphysema also affects his ability to perform physical work. However, this condition is also accepted as being war-caused. Following the reasoning in Richmond, I am satisfied that Mr Fielden’s time out of work is a consequence of his PTSD and emphysema, both of which are accepted disabilities.
In considering whether Mr Fielden’s age is a contributing factor, I note the evidence of Dr Horsley who considers that his age is a barrier to his return to work. However, there is no evidence that Mr Fielden is incapable of performing remunerative work as a rigger or manual labourer because of his age. There is no evidence that he lacks the skills, training or knowledge required to perform a number of tasks within the ambit of such work. Without such evidence, I do not accept the statement of Dr Horsley as being definitive on this issue.
I consider Mr Fielden’s pre-service history to be irrelevant to the consideration of his working during the assessment period. Prior to his war service he had not been subjected to the events leading to his PTSD. In regard to his fractured work history and personal problems with the community, I note Mr Fielden’s evidence that he left his various jobs because of his psychiatric problems, including drug and alcohol abuse. There is no evidence to the contrary and I accept Mr Fielden’s account. I also accept the evidence that his driving and assault charges were the result of his alcohol and drug problems.
Following this consideration, I find that Mr Fielden’s age does not prevent him from undertaking remunerative work during the assessment period. I also find that his time out of work, his fractured work history and his personal problems with the community resulted from his war-caused disabilities of PTSD with drug and alcohol abuse. Following the reasoning in Richmond, I find these factors are a consequence of his war‑caused disabilities and do not act as independent factors to defeat the alone test of section 24(1)(c) of the Act.
As a consequence, I find that Mr Fielden’s war-caused disabilities are the only factors preventing him from continuing to undertake his remunerative work (Flentjar question 3). Accordingly, I find that Mr Fielden, is by reason of incapacity from his war-caused disabilities alone, prevented from continuing to undertake the remunerative work that he was undertaking.
In regard to his loss of earnings, I note Mr Rudge’s submissions that as a result of his fractured work history and his personal characteristics, including a liking for surfing, Mr Fielden would probably not have been working in the assessment period absent his accepted disabilities. On the other hand, Ms Ryan contended that, but for his war-caused disabilities, Mr Fielden would have continued working.
In considering this issue, I note Mr Fielden’s evidence that he has not left a job in order to go surfing. He also said that he stopped surfing when he was 35 years old; and that he was between 25 and 27 years old at the time he was living at Anglesea and Torquay. I am not satisfied that Mr Fielden’s liking for surfing as a young man has an influence on whether he would be working during the assessment period. I note also Mr Fielden’s evidence that if it were not for his war-caused disabilities he would still be working.
I have found that Mr Fielden was prevented from working by his war-caused disabilities alone. From the evidence I am satisfied that in the absence of his war-caused disabilities, he would have undertaken remunerative work at some time during the assessment period. As he has been prevented from undertaking remunerative work by his war-caused disabilities, I am satisfied that he is suffering a loss of earnings that he would not be suffering if he were free of that incapacity.
I find that Mr Fielden satisfies the provisions of section 24(1)(c) of the Act.
In regard to section 24(2) of the Act, I have found that Mr Fielden has not ceased to engage in remunerative work for any reason other than his war-caused disabilities and that he is prevented from engaging in remunerative work for no reason other than his war-caused disabilities. Accordingly, the provisions of section 24(2)(a) do not preclude my finding that Mr Fielden is suffering a loss of earnings by reason of his war-caused incapacity.
As I have found Mr Fielden is prevented by his war-caused incapacities alone from continuing to undertake remunerative work, I do not need to consider the deeming provisions in section 24(2)(b).
I have found that Mr Fielden satisfies all the relevant provisions of section 24(1) of the Act. Accordingly, I find that Mr Fielden’s application is successful and he is entitled to be paid his disability pension at the special rate.
The parties agreed, and I find, that the date of effect of a favourable decision is 26 April 2013.
DECISION
The Tribunal sets aside the decision under review and decides that Mr Fielden’s disability pension is to be paid at the special rate from 26 April 2013.
I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Brigadier C. Ermert (Retd), Member [sgd]........................................................................
Associate
Dated 25 September 2014
Date of hearing 4 September 2014 Counsel for the Applicant Ms F Ryan Solicitors for the Applicant Williams Winter Solicitors Advocate for the Respondent Mr K Rudge, Department of Veterans' Affairs
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