Philip Clark and Repatriation Commission

[2014] AATA 955

[2014] AATA 955

Division	VETERANS’ APPEALS DIVISION
File Number	2013/5775
Re	Philip Clark
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Ms G Ettinger, Senior Member
Date	22 December 2014
Place	Sydney

The Tribunal sets aside the decision under review, and in substitution finds that Mr Clark is eligible for pension at the Special rate from 7 October 2011.

......................[sgd]..................................................

Ms G Ettinger, Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – disability pension – Special rate of pension – whether prevented from continuing to participate in remunerative work for more than eight hours a week due to his accepted conditions alone – loss of salary, wages or earnings suffered – decision under review set aside and substituted – Veteran is eligible for pension at the Special rate

LEGISLATION

Veterans’ Entitlements Act 1986 ss 24, 120

CASES

Flentjar v Repatriation Commission (1997) 48 ALD 1

Repatriation Commission v Connell (2011) 197 FCR 228

Repatriation Commission v Hendy (2002) 76 ALD 47

REASONS FOR DECISION

Ms G Ettinger, Senior Member

22 December 2014

1. Mr Philip Clark, the Veteran, who is 66 years old, served in the Australian Defence Force from 1970 to 1971. He made a claim for pension at the Special rate pursuant to section 24 of the Veterans’ Entitlements Act 1986 (Cth) (the Act), on 7 October 2011, and was under 65 years old on that date. The Repatriation Commission, the Respondent in these proceedings, refused the claim, and continued Mr Clark’s disability pension at the Intermediate rate. After unsuccessfully challenging that decision at the Veterans’ Review Board, Mr Clark now applies for review by this Tribunal.

2. Mr Clark suffers from a number of accepted defence-caused conditions including:

   ·sensori-neural deafness with tinnitus;

   ·solar hyperkeratoses;

   ·lumbar spondylosis with intervertebral disc lesion;

   ·tinea;

   ·Post Traumatic Stress Disorder (PTSD) with alcohol abuse;

   ·haemorrhoids; and

   ·irritable bowel syndrome.

3. I heard evidence from Mr Clark and his wife, Ann Clark, as well as Drs A Dinnen and Smith, both psychiatrists.

4. I have decided that Mr Clark meets the criteria in section 24(1) of the Act and is eligible for pension at the Special rate. My reasons follow.

   ISSUES BEFORE THE TRIBUNAL

5. I am mindful that Mr Clark was receiving pension at the Special rate from 1995 to 2006, when it was reduced to the Intermediate rate because he was found to have been working more than eight hours a week. I have to decide whether Mr Clark is entitled to disability pension at the Special Rate. The earliest date of effect would be 7 October 2011.

   RELEVANT LEGISLATION

6. Mr Clark will be eligible for a pension at the Special rate if he meets the criteria set out in section 24 of the Act, which follows as relevant:

   Special rate of pension

   (1)   This section applies to a veteran if:

   (aa) the veteran has made a claim under section 14 for a pension, or 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 claim or 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 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; …

7. Both parties agree subsections 24(1)(aa), 24(1)(aab) and 24(1)(a)(i) are satisfied.

8. Mr Clark contends that his condition of PTSD with alcohol abuse prevents him working more than eight hours a week, and as such his pension should be assessed at the Special rate. In order to decide that, I must consider the application of sections 24(1)(b) and (c) of the Act.

9. Since Mr Clark was under the age of 65 when he ceased work, an additional consideration is the ameliorating provision in sections 24(2)(a) and 24(2)(b) of the Act. It would apply if he had genuinely sought remunerative work and was substantially prevented from obtaining employment due to his accepted conditions. Mr Clark’s evidence was that he did not look for legal work after leaving his law firm in 1994, and did not look for teaching work after resigning from TAFE in 2010. In fact, he said he was offered teaching work in 2011 which he refused because he knew he could not do it.

10. As I have found from the evidence that he ceased remunerative work due to his war-caused disabilities alone, I do not have to consider the ameliorating provisions.

11. The standard of proof in this matter is on the balance of probabilities, pursuant to section 120(4) of the Act.

    BACKGROUND

12. Mr Clark was called up and served on eligible service in Vietnam for a year, 1970/1971. When he returned from Vietnam in March 1971, he worked in a bank till he resigned in July 1971. He then qualified as a lawyer, and practised law from 1979. He said however, that he had trouble studying following his return from Vietnam, whereas prior to the Vietnam posting, he loved academic study.

13. He has been married to Ann Clark since 1979, and they have four children, and grandchildren.

14. Mr Clark said that on his return from Vietnam he was finding the bank job difficult, and did not understand what was happening to him. He said that he was getting angry, suffering mood changes, being intolerant of customers at the counter, and not concentrating.

15. He said that after he left the bank in July 1971, he did nothing for a few weeks, then started mowing lawns. He said that his parents were concerned about his drinking. Mr Clark then commenced his legal studies which took place over the next eight years. He was in his own practice from 1979 to 1986.

16. Mr Clark told me about the personal reasons which led to his move to Orange in 1986. He said that after a break, he joined a law firm there. In 1987, in addition to practising law, Mr Clark started teaching three hours a week at TAFE. He said it was a challenge, and he loved teaching courses such as contract law to accountants. He said however, that by 1990, he was experiencing problems, not concentrating, and making mistakes in the law practice.

17. Both Mr and Mrs Clark gave evidence about a distressing occurrence in 1994 after which he resigned from the law firm. Mr Clark stated that he did not remember much about the event, but recounted how he had overheard the partners in his law firm talking about one of the women there, and lost it. He does not recall whether he physically hit anyone. His wife said that she found him lurching around outside the law firm’s premises, and demonstrated at the hearing how she had to virtually drag him along, as he could not support himself walking.

18. Mrs Clark said that her husband was proud to be a solicitor, but gave up legal practice because it was a high pressure and stressful job. She said that it was the single episode in 1994 described above which saw the end of his legal career.

19. Mr Clark told me that following the 1994 episode, he was referred to Dr G Altman who is a consultant psychiatrist, and whom he has been seeing regularly ever since. Mr Clark said that at the time he could not accept that he had PTSD with alcohol abuse, and that he was determined to fight it notwithstanding Dr Altman’s advice that he could not work. In 1995, Mr Clark spent three weeks as an in-patient at a psychiatric clinic.

20. Dr Altman opined in 1994, that it may be necessary to consider the Special rate pension for Mr Clark. In 1995, Dr Altman recommended Mr Clark receive Special rate pension for twelve months on the basis of being totally and temporarily incapacitated. In a letter dated January 1996, and again in March 2012, Dr Altman opined that Mr Clark was totally and permanently unfit to work, and was not well enough to work eight or more hours a week due to his war-caused PTSD and alcohol abuse. He recommended Mr Clark be granted pension at the Special rate.

21. Mr Clark said that after leaving the law firm, he continued with his work at TAFE, doing some three to four hours a week, and looking after classes for other teachers. He worked exclusively at TAFE on a part-time basis from 1994 to 2006. Mr Clark told me that in 2006, he verbally abused two students using strong and inappropriate language. He was reprimanded by the head of department. He said that it was a one-off bad incident, but that he became angry with students at other times. Mr Clark said that he resigned either in mid-2006 or at the end of that year.

22. Mr Clark said that in 2007 he did not work, but from 2008-2010, he continued teaching because TAFE found it hard to obtain the services of people who could teach, and he was determined to beat his illness. Mr Clark stated (Exhibit A1) that he experienced several personality changes during the time at TAFE, including becoming unnecessarily sarcastic and aggressive towards students, swearing, picking on students and so on.

23. Mr Clark said that by August 2010, he could not handle teaching, or the students, and he was not marking assignments or doing assessments. He said that he was depressed, moody, and punched a wall on one occasion to the extent he broke his knuckle. He decided to cease working at TAFE before something happened that I would later regret, he said. He said that to TAFE, he made light of his illness, and did not disclose in full what was wrong with him because he was embarrassed.

24. Both Mr and Mrs Clark described extensively how their lifestyle had been impacted by his illness, including his social isolation, anger and moodiness. Mrs Clark also mentioned the effect that her husband’s other accepted disabilities had on their lives, that is in addition to the PTSD and alcohol abuse.

25. Mr Clark said that by October 2010 he was suicidal, and Dr Altman had advised him to cease working. He said that TAFE asked him back for 2011 but he refused.

    The alcohol consumption

26. The evidence before me regarding Mr Clark’s alcohol consumption was not consistent except to the extent that it demonstrated he drank a lot of alcohol following the Vietnam service. Mr Clark explained that in Vietnam, although alcohol was readily available, he did not drink every day because he could not when out on patrol. He said however that on his return from Vietnam in 1971, he drank 10-12 schooners a day even when he was studying and playing sport.

27. At the Tribunal, he reported that a typical day would involve drinking eight stubbies, a bottle of wine, and a couple of whiskies in 100 ml glasses. Mrs Clark gave oral evidence at the Tribunal and provided a statement (Exhibit A2), in which she described all the accepted conditions, and the effect of those on her and her husband. She said that her husband had been a different person when she married him in 1979. She said that at that time, he was loving, sociable and liked going out. When asked about her husband’s consumption of alcohol between 1987 and 2010, Mrs Clark said that he drank excessively, and that on teaching days, he was uptight. She said that the night before this hearing, he had consumed a whole bottle of wine, two beers, but had not drunk whiskey. She said that normally he would have two glasses of wine rather than a whole bottle.

28. Dr Altman commented on Mr Clark’s alcohol consumption in his 1994 report. He recorded Mr Clark telling him that prior to the Vietnam service, Mr Clark drank alcohol minimally, but that in Vietnam he drank a lot, and after his return in 1971, he would drink 10-12 schooners a night on approximately five to seven days a week until 1976. That changed when he met his wife, and he reduced his alcohol intake to 4 big scotches’ approximately 4 times per week.

29. Dr Altman recorded in 1994 that Mr Clark told him he would binge drink at times. Dr Dinnen who saw Mr Clark and reported in April 2014, recorded Mr Clark telling him he does not binge drink.

30. Dr Altman recorded that prior to June 1994, the Veteran drank mainly at night to assist him to sleep, the quantity being on average four big whiskeys three to four times a week. He recorded that when Mr Clark was prescribed anti-depressant medication in mid-1994, he virtually stopped drinking alcohol because he was concerned about the possible interaction of alcohol and his medication. He referred Mr Clark for a three week hospitalisation in regard to his psychiatric conditions in 1995.

31. In his most recent report, dated 30 March 2012, Dr Altman opined that Mr Clark was not well enough to work eight or more hours a week due to his PTSD and alcohol abuse. He reported that at the date of examination, Mr Clark drank approximately six to eight beers and approximately two to three whiskeys or wine [sic] per day.

32. Dr Dinnen explored Mr Clark’s drinking at the time of his consultation on 26 March 2014. He recorded that Mr Clark commenced drinking in 1976, and noted that the Veteran drank excessively over the years. Dr Dinnen recorded that [h]e would have two or three bottles of Scotch a week and perhaps four to six stubbies of beer daily. At the time of the consultation, Mr Clark’s alcohol consumption averaged out to four to six standard drinks daily, at the time, and Mr Clark reported that he did not binge drink.

33. Dr Smith concluded in his report of 23 April 2014 that Mr Clark’s PTSD was secondary to the dominant diagnosis of Alcohol Dependence. Dr Smith stated that he did not disagree with Dr Altman in regard to the prevalence of alcohol dependence. However, in his opinion, many of Mr Clark’s symptomatologies that have been regarded as [PTSD] may also be more closely linked to his alcohol excess. Dr Smith also felt that any clinical worsening appears to have been related to the denial of his disability pension not going beyond the intermediate rate.

    Section 24(1)(a), 24(1)(aa), 24(1)(aab) and 24(1)(a)(i) of the Act

34. It is agreed, and I accept that Mr Clark satisfies the criteria for sections 24(1)(aa), 24(1)(aab) and 24(1)(a)(i) of the Act.

    Section 24(1)(b) of the Act

35. I have to decide in considering the application of section 24(1)(b) of the Act whether Mr Clark is totally and permanently incapacitated, that is to say, whether his incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week.

36. I have noted that following the 1994 incident as described above, he resigned from the law firm, and has not resumed his legal career. At the time he was teaching a law subject to TAFE students for three hours a week.

37. Following the 1994 incident, Mr Clark was referred to Dr Altman. Dr Altman stated in his reports of 1994 and 1995 to Mr Clark’s general practitioner, that as a result of his Vietnam experience, Mr Clark was suffering from severe chronic PTSD, major depression and alcohol abuse. In his 1996 report, Dr Altman confirmed what Mr Clark had told me, that he spent three weeks at a psychiatric clinic during 1995.

38. Mr Clark said that in 1994, he did not believe he had PTSD, or was suffering from alcohol abuse.

39. Writing on 19 January 1996, (and reiterated in 2012), Dr Altman stated that he continued to treat Mr Clark, and opined that the Veteran was then not well enough to work, and was totally and permanently incapacitated to work. He opined again that as a result of his Vietnam experience, Mr Clark was suffering from severe chronic PTSD, major depression and alcohol abuse. He opined that the disorders caused Mr Clark significant distress and affected his lifestyle in a number of ways.

40. Mr Purcell, who appeared for the Respondent, the Repatriation Commission, asked Mr Clark about how he had completed his law studies while suffering PTSD, noting he commenced studies after leaving his job in mid-1971. Mr Purcell also asked Mr Clark how it was he was able to play competition cricket from 1971 – 1979 while suffering PTSD.

41. Mr Clark replied that he was determined to complete his studies. I noted that he gained two high distinctions, although it took him eight years to complete his studies, and be registered. I was also mindful of Mr Clark’s evidence that before Vietnam he found academic study easy, but that following his return, he had trouble studying.

42. Mr Purcell also questioned Mr Clark about his resignation from TAFE in 2006 following the incidents with students, and then returning to work there from 2008-2010. Mr Clark’s evidence was that he took 2007 off, and returned in 2008 because TAFE found it hard to find law teachers, and he wanted to prove he could work in spite of the PTSD. I have noted and accept Mr Clark’s evidence that by August 2010 he was unable to continue, and left TAFE in case, as he said, something happened that he would later regret.

    The medical evidence

43. I then considered the medical evidence in respect of the application of section 24(1)(b) of the Act. I noted that in his most recent report, dated 30 March 2012, Dr Altman opined that Mr Clark was not well enough to work eight or more hours a week due to his PTSD and alcohol abuse. I noted that Dr Altman had already expressed that opinion in his reports of 1995 and 1996. He opined in his 2012 report that Mr Clark continues to suffer from severe symptoms of a Post-traumatic Stress Disorder, and described what that entailed. He reported that at the date of the 2012 examination, Mr Clark drank approximately six to eight beers and approximately two to three whiskeys or wine [sic] per day. He referred to Mr Clark’s evidence about his mental state in 2010.

44. Dr Dinnen, in his report dated 23 April 2014, diagnosed chronic PTSD with associated major depression and alcohol abuse as a result of Mr Clark’s Vietnam service. He opined that Mr Clark was not capable of working more than eight hours per week due to his psychiatric condition alone, taking into account his skills, experience and qualifications. Dr Dinnen opined that Mr Clark had not been able to practise law since 1994 when he first came into psychiatric treatment, and had not able to work more than a very limited amount as a TAFE teacher for the past eight years. Dr Dinnen opined that Mr Clark had struggled to cope, as many psychiatric patients do, denying their incapacity, and continuing in spite of medical advice.

45. Dr Dinnen disagreed with Dr Smith’s opinion expressed in his report of 23 April 2014 that Mr Clark’s PTSD was secondary to the dominant diagnosis of Alcohol Dependence and that [i]n all probability Mr Clark’s irritability, aggressivity and intolerance towards others is a reflection of his excess alcohol intake.

46. Dr Dinnen emphasised that Mr Clark’s PTSD, diagnosed following his return from Vietnam, and ongoing, was the primary illness, and present prior to the alcohol disorder. Dr Dinnen had observed in his report that Mr Clark commenced drinking in 1976. Dr Dinnen also emphasised that in his opinion, Mr Clark’s incapacity for work arose out of the PTSD. He opined Mr Clark suffered progressive deterioration, was struggling with work, and ceased under circumstances where he was unable to continue, being the event of 1994 in the legal practice, and 2010 at TAFE.

47. Dr Smith also gave oral evidence. He described Mr Clark as very hostile for approximately 30 minutes at the consultation, with negative comments about the Department of Veterans’ Affairs, and the loss of his Special rate pension in 2006. Dr Smith opined that alcohol provides the setting for this type of anger, and if Mr Clark reduced his intake of alcohol he would not be so angry.

1. Dr Smith stated that he did not deny Mr Clark suffered PTSD, but opined that the condition does not deteriorate as Dr Dinnen suggested. He also noted that Mr Clark could relate to his family, his children, and had friends who were Vietnam veterans which PTSD sufferers would generally find difficult. Dr Smith noted that by contrast with other PTSD sufferers, over the years following Vietnam, Mr Clark completed his law studies, and qualified, and worked as a solicitor.

2. Dr Smith concluded in his report that Mr Clark’s PTSD was secondary to the dominant diagnosis of Alcohol Dependence. Dr Smith stated that he did not disagree with Dr Altman regarding the importance of the alcohol dependence, noting however, that in his opinion [m]any of the symptomatologies that have been regarded as [PTSD] may also be more closely linked with his alcohol excess. Dr Smith also felt that any clinical worsening appears to have been related to the denial [to Mr Clark] of his disability pension not going beyond the intermediate rate.

3. Dr Smith disagreed with Dr Altman’s assessment of Mr Clark as demonstrating the degree of impairment enunciated in the GARP ratings. Dr Smith’s opinion was that Mr Clark ceased work in 2006 at a time when he was capable of undertaking remunerative employment on a part-time basis.

   The Tribunal’s deliberations regarding section 24(1)(b) of the Act

4. In coming to a decision regarding whether Mr Clark meets the tests in section 24(1)(b) of the Act, I have taken into account his evidence and that of his wife, and the doctors who treated and examined him. Mr Clark has, amongst other accepted conditions which I have listed above, PTSD with alcohol abuse. The PTSD with alcohol abuse was diagnosed by Dr Altman in 1994 after an incident at Mr Clark’s law firm. I accept from the evidence that he has not been able to do legal work since that time, and that his practising certificate lapsed in 1996.

5. Mr Clark’s evidence, and that which the doctors who examined him have recorded regarding his alcohol consumption is not entirely consistent. However, I am satisfied that following his return from Vietnam, Mr Clark drank excessively, with some remission when he met his wife, but has since continued to drink heavily. Dr Dinnen recorded the drinking commencing in 1976.

6. Drs Altman, Smith and Dinnen did not disagree that Mr Clark suffers PTSD and alcohol abuse or dependence. I note however, that Dr Smith opined that Mr Clark’s anger and many of his symptomatologies that had been regarded as PTSD may be more closely linked with the consumption of alcohol. He was the only doctor to have so opined. I am mindful too that since both PTSD and alcohol abuse have been accepted as war-caused, I do not find it necessary to comment further on Dr Smith’s view.

7. The Repatriation Commission accepted PTSD with alcohol abuse as war-caused, and for the sake of completeness I note that Mr Clark received pension at the Special rate from 1995 to 2006, when it was found he had been working more than eight hours a week. He was then put on Intermediate rate. Mr Clark is angry about that, and considered that he had been misled by advice from the Repatriation Commission regarding the hours he could work, which he thought, he could average out over a year rather than have each week considered separately. His evidence was that the extra TAFE hours for which he was found to have been remunerated were for what he termed baby sitting classes for a colleague who was not well.

8. I am mindful of Dr Smith’s opinion that Mr Clark was very hostile at the consultation with him, and made negative comments about the Department of Veterans’ Affairs, and the cessation of his Special rate pension in 2006. Mr Clark also displayed aggression about that issue at the Veterans’ Review Board hearing (Exhibit A4). The above is noted for the sake of completeness only as neither of those events impact on my findings regarding whether Mr Clark meets the tests in section 24(1)(b) of the Act.

9. I have also taken into account Mr Purcell’s questioning of Mr Clark regarding the fact he played cricket and was completing law studies at a time when he was found to be suffering PTSD. I do not find the fact that he played cricket inconsistent with suffering PTSD with alcohol abuse, and accept Mr Clark’s evidence that following his Vietnam tour he found academic study hard. In that regard I noted he took eight years to complete his law studies.

10. Dr Dinnen opined that Mr Clark had not been able to practise law since 1994 when he first came into psychiatric treatment, and was not able to work more than a very limited amount as a TAFE teacher for the past eight years. Dr Dinnen opined that Mr Clark had struggled to cope, as many psychiatric patients do, denying their incapacity, and continuing with work in spite of medical advice.

11. I am satisfied that Mr Clark’s legal career ended in 1994, and that pursuant to his evidence and that of Dr Altman, Mr Clark has not attempted to, and is not able to resume with that due to his PTSD and alcohol abuse.

12. I am satisfied from Mr Clark’s evidence, and the medical evidence that Mr Clark ceased teaching at TAFE in 2006 due to his PTSD and alcohol abuse which manifested itself in his loss of concentration and anger expressed towards students. I am also satisfied that Mr Clark liked teaching, and was keen to do so in spite of his PTSD, as Dr Dinnen described. Accordingly he took 2007 off, and returned to teach three hours a week at TAFE between 2008 and until towards the end of 2010, when he could no longer concentrate and mark papers. I accepted that he realised when he had another outburst directed at a student, that he could not continue. I am mindful he was asked to return in 2011, and refused because he was unable to undertake further work. I am mindful that the standard of the work he had performed was not criticised, and that the scarcity of law teachers may have motivated the request to return.

13. I am satisfied from the evidence that Mr Clark meets the tests in section 24(1)(b) of the Act, and that Mr Clark is totally and permanently incapacitated, that is to say, his incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week.

    Section 24(1)(c) of the Act

14. I now move to decide whether Mr Clark 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 he was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his own account, that Mr Clark would not be suffering if he were free of that incapacity.

15. In doing so, the Full Federal Court in Flentjar v Repatriation Commission (1997) 48 ALD 1 identified the following questions to be asked:

    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?

16. In Repatriation Commission v Hendy (2002) 76 ALD 47, the Full Federal Court said that the task of the Tribunal was:

    … to assess what the veteran probably would have done, if he had none of his service disabilities during the assessment period. The requirement to consider “remunerative work that the veteran was undertaking” does not mean a particular job with a particular employer but the substantive remunerative work that the veteran had undertaken in the past. … The tribunal was not bound to limit its consideration to the last employment that the veteran actually undertook.

17. I have also noted that the Full Federal Court in Repatriation Commission v Connell (2011) 197 FCR 228 held at [28] that:

    … in the context of the beneficial nature of the Act … “remunerative work” should not receive a restrictive interpretation. There is no valid reason to confine the expression to work of a particular type. “Remunerative work that the veteran was undertaking” should not be confined to the actual type of work involved but should also be referrable to its nature and quality. A person who works as a painter on a full-time basis but who, due to incapacity, can now only do that work on an intermittent or part-time basis is not continuing to perform the same remunerative work. The restricted nature of the work gives it an entirely different character…

18. As to the relevant remunerative work; I am mindful that pursuant to the Act, that means any remunerative activity. In Mr Clark’s case, work in legal practice until 1994 and teaching law at TAFE was his relevant remunerative work.

19. I am satisfied that Mr Clark is, and was at the date he resigned from the law firm in 1994, and ultimately from TAFE in 2010, by reason of incapacity from his war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake remunerative work that he was undertaking. Accordingly, I need to consider whether he has suffered a loss of earnings (Flentjar, question 4).

20. I refer also to sections 24(2)(a) and (b) of the Act. As Mr Clark left work before the age of 65, he could have been entitled to the ameliorating provision provided in section 24(2)(b) of the Act. That would apply if he had genuinely sought remunerative work after leaving the law firm, and after resigning from TAFE, and was substantially prevented from obtaining employment due to his accepted conditions alone. Mr Clark’s evidence was that he did not look for legal work after leaving his law firm, or look for teaching work after resigning form TAFE. He said that he knew he could not continue with his legal work after 1994, and rejected an offer to teach in 2011 because he could not continue to teach after 2010.

21. As I have found from the evidence that he ceased remunerative work due to his war-caused disabilities alone, I do not have to consider the ameliorating provisions.

22. I am satisfied from the evidence that Mr Clark ceased to engage in remunerative work that he was undertaking for reasons of incapacity from his war-caused injury or disease alone, first in relation to his legal work in 1994 and then in 2010 in relation to teaching. I accept his evidence that he would have worked to the age of 65 if he could have. The answer to the Flentjar questions 2, 3, and 4 are yes. Accordingly, Mr Clark satisfies the conditions required to receive pension at the Special Rate.

    DECISION

23. The Tribunal sets aside the decision under review, and in substitution finds that Mr Clark is eligible for pension at the Special rate from 7 October 2011.

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member

.....................[sgd]...............................................

Associate

Dated 22 December 2014

Date of hearing	7 November 2014
Advocate for the Applicant	Ms C Mudge
Solicitors for the Applicant	KCI Lawyers
Advocate for the Respondent	Mr Purcell