Quick and Repatriation Commission
[2011] AATA 167
•14 March 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 167
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/0309
Veterans' Appeals DIVISION ) Re Kevin Quick Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal Senior Member Jill Toohey
Dr Maxwell Thorpe, Member
Date 14 March 2011
PlaceSydney
Decision The decision under review is affirmed.
....................[sgd]..........................
Senior Member
CATCHWORDS
VETERANS ENTITLEMENTS – special rate of pension – war-caused post traumatic stress disorder - whether veteran satisfied s 24(1)(c) – whether veteran ceased work for reasons other than his PTSD – whether veteran genuinely seeking to engage in remunerative employment – finding that veteran not prevented by PTSD alone from continuing to undertake remunerative work – finding that veteran ceased remunerative work for reasons other than PTSD – work trial did not amount to genuinely seeking to engage in remunerative work – decision under review affirmed
Veterans Entitlements 1986 Act, ss 24, 120
Flentjar v Repatriation Commission (1997) 26 AAR 93
Cavell v Repatriation Commission (1988) 9 AAR 534
Forbes v Repatriation Commission (2000) 101 FCR 50
Repatriation Commission v van Heteran (2003) FCA 888
Repatriation Commission v Hendy [2002] FCFCA 424
Magill v Repatriation Commission [2002] FCA 244
Repatriation Commission v Sheehy (1996) 39 ALD 286
Leane v Repatriation Commission [2004] FCAFC 83
REASONS FOR DECISION
14 March 2011 Senior Member Jill Toohey
Dr Maxwell Thorpe, MemberIntroduction
1. Mr Kevin Quick served in the Australian Army in South Vietnam for 12 months from about July 1970. His service constitutes eligible service for the purposes of the Veterans Entitlements 1986 Act (the Act).
2. Mr Quick suffers from a number of disabilities and medical conditions, some of which the Repatriation Commission (the Commission) has accepted as war-caused. He receives a disability pension at 100% of the General Rate. The background to his current rate of pension, which is quite complicated, is set out below.
3. Mr Quick seeks review of a decision made by the Veterans’ Review Board (the Board) on 30 November 2009, which affirmed a decision made by the Commission, that he is not entitled to the pension at the Special Rate.
Background: Mr Quick’s employment history
4. In 1965, when he was 16, Mr Quick started work as a surveyor’s assistant for the (then) Commonwealth Department of Works. He worked for the Department of Works for four years.
5. In 1972, after he had completed his service, he started an apprenticeship as an electrician and, in 1975, he became a licensed electrician.
6. From 1976, Mr Quick was employed by the (then) Commonwealth Department of Housing and Construction. In 1978, he was promoted to foreman estimator and planner, and was responsible for estimating requirements and cost of all electrical maintenance work in the Department of Housing and Construction.
7. In 1980, Mr Quick was posted to the Australian embassy in Hanoi for approximately seven months where he was a building and servicing officer, responsible for estimating and planning electrical works.
8. Mr Quick left Commonwealth employment in 1980 and, in about 1981, he established a business, Browick Electrical, in Bateman’s Bay, New South Wales, with his long-time close friend, Mr Robert Brown. Mr Quick handled the estimating and planning work side of the business and Mr Brown looked after the electrical work.
9. After several months, the business started to suffer because Mr Quick would get into arguments with contractors and customers; he became increasingly difficult to work with, he was aggressive towards customers and, eventually, all of the business’s major contractors pulled out. There is little doubt that the post traumatic stress disorder (PTSD) he developed after Vietnam was the reason for his behaviour.
10. Browick Electrical was dissolved in 1982 after Mr Brown decided his business and personal reputation was being adversely affected by Mr Quick’s behaviour and he could not continue in the partnership. Despite this, he has remained a good friend and support to Mr Quick.
11. In 1983, Mr Quick started work as a cook at Bateman’s Bay hospital. In 1985, he suffered a serious back injury while lifting chairs at work. Some months after the injury, Mr Quick was certified fit to return to work on light duties. However, no light duties were available at the hospital and he did not resume work. He was paid workers compensation payments until his compensation claim was finalised by way of lump sum redemption. The exact date of settlement is not clear but it appears to have been around mid-September 1994.
12. Between 1985 and 1994, Mr Quick did some minor, very irregular, electrical work helping other electricians. After his compensation claim was finalised, he approached a number of people in Bateman’s Bay about the possibility of work but he was unable to secure anything.
13. Around September 1994, Mr Brown, who knew Mr Quick was having trouble finding work, offered him work on a trial basis for three months. The trial did not work out because Mr Quick again argued with customers and contractors, and his worsening memory meant he made repeated mistakes. He has not worked, or attempted to work, since.
Background: Mr Quick’s medical history
14. Mr Quick has been treated for many years by counsellors, psychologists and psychiatrists for chronic PTSD with associated anxiety and major depressive disorder. The first formal diagnosis appears to have been in November 1989 when he was assessed by a Department of Veterans Affairs (the Department) psychiatrist. Since November 2007, he has been treated by Dr Brian White, psychiatrist, who reports that the history given by Mr Quick and his wife indicates that the onset of his PTSD was in 1971. The date of onset is not in issue here. In 1989 the Board accepted Mr Quick’s PTSD was war-caused.
15. Mr Quick was under the care of Dr Karl Koller, psychiatrist, for 10 or 12 years until Dr Koller moved. Since then, he has been under the care of Dr White.
16. Mr Quick has also had back problems for many years. He first injured his back in a fall in Vietnam. Then, in 1985, he had the injury at work which led to his compensation claim. That injury was treated by way of laminectomy, removal of a disc herniation and decompression of a root nerve, and a long period of rehabilitation.
17. The Commission has accepted that Mr Quick has the following war-caused conditions:
(i)left ulnar nerve partial sensory lesion;
(ii)essential hypertension;
(iii)sensori-neural hearing loss;
(iv)post traumatic stress disorder with impotence.
18. The Commission does not accept as war-caused the following conditions:
(i)lumbar intervertebral disc lesion;
(ii)diabetes mellitus;
(iii)intervertebral disc lesion.
19. Mr Quick also suffers from the following conditions:
(i)ischaemic heart disease;
(ii)osteoarthritis of the knees;
(iii)transient ischaemic attacks.
20. Mr Quick has recently lodged a claim seeking to have his ischaemic heart disease and diabetes recognised as war-caused. That claim does not form part of these proceedings.
Background: Mr Quick’s application for review
21. In March 1986, the Commission accepted Mr Quick’s claim for war-caused hypertension. In August 1987, the Board accepted that his lumbar intervertebral disc lesion also was-caused and adjourned its proceedings for further investigations.
22. On 27 May 1988, the Board granted Mr Quick a disability pension at 100% of the General Rate with effect from 27 December 1985 for what it found were his war-caused hypertension and intervertebral disc lesion.
23. On 22 August 1990, the Commission accepted that Mr Quick also suffered from war-caused hearing loss, tinnitus and PTSD. His disability pension was continued at 100% of the General Rate.
24. On 15 July 1993, Mr Quick applied for an increase in his pension to the Special Rate. On 15 February 1995, the Board affirmed the Commission’s decision that he did not qualify for Special Rate of pension.That decision led ultimately to these proceedings.
25. Mr Quick applied to this tribunal for review of the Board’s decision. On 24 May 1996, the Tribunal, differently constituted, by consent ordered that he was entitled to the pension as follows:
(i)from 15 July 1993 to 5 September 1994: Special Rate (temporary);
(ii)from 6 September 1994 to 19 November 1994: 100% of the General Rate
(iii)from 19 November 1994 onwards: Special Rate (permanent)
26. The reasons for the various rates of pension are not entirely clear but it seems that the reduced rate from September 1994 to November 1994 may be because this was when Mr Quick was undertaking the work trial with Mr Brown.
27. Subsequently, it came to the Department’s attention that Mr Quick had fabricated claims about the incident in Vietnam which he said led to his PTSD. The details do not matter here. As a result, on 27 June 2005, the Department decided that Mr Quick’s back injury, PTSD and hypertension were not war-caused. Exercising its powers under s 31 of the Act, the Commission revoked its decision concerning those conditions and assessed Mr Quick’s pension as follows:
(i)from 27 December 1985: 10% of the General Rate;
(ii)from 23 May 1989: 20% of the General Rate;
(iii)from 15 July 1993: 30% of the General Rate.
28. On 1 August 2007, Mr Quick was sentenced in the District Court of New South Wales to two years imprisonment for one count of fraudulent receipt of the pension at the Special Rate. He was acquitted of another charge. He was released after serving three months of his sentence.
29. On 19 January 2009, the Board heard Mr Quick’s application for review of the Commission’s decision of 27 June 2005. The Board affirmed the decision that Mr Quick’s lumbar intervertebral disc lesion was not war-caused, but set aside the decision in relation to PTSD and hypertension, and remitted the matter to the Commission. As the Board explained in its reasons for decision, it was satisfied, for reasons unrelated to those he had fabricated, that Mr Quick suffered from war-caused PTSD. The Commission does not dispute the Board’s finding in this regard.
30. The Board in its reasons cited remarks of the sentencing judge to the effect that there was ample evidence that Mr Quick had suffered “significant emotional sequelae” from his service and it was “tragic” that he chose to tell lies when the truth may well have been sufficient to qualify him for the appropriate pension (which turned out to be the case).
31. On 14 May 2009, reconsidering the matter after remittal, the Commission decided Mr Quick was not entitled to the Special Rate of pension, but assessed his entitlement as follows:
(i)from 27 February 1985: 20% of the General Rate;
(ii) from 23 May 1989: 100% of the General Rate;
(iii) from 5 July 2005: 100% of the General Rate;
(iv) from 19 January 2009: 100% of the General Rate.
32. Mr Quick sought review of that decision, still maintaining he was entitled to the Special Rate. On 30 November 2009, the Board affirmed the decision.
33. Mr Quick now seeks review of the Board’s decision. In effect, he seeks to have restored the order made by the Tribunal on 24 May 1996 that he was entitled to the pension at the Special Rate from 15 July 1993. The Commission accepts that, should Mr Quick’s application succeed, the date of effect would be 15 July 1993.
34. The assessment period is, therefore, from 15 July 1993 to 24 May 1996.
Related proceedings
35. Mr Quick is currently appealing his criminal conviction. Proceedings are also on foot in the Supreme Court of New South Wales under the Confiscation ofProceeds of Crime Act 1989 to recover from him the amount of pension he was found to have fraudulently obtained. The Supreme Court has adjourned those proceedings pending the outcome of these; if Mr Quick is found to be entitled to the Special Rate, the effect will be to extinguish the debt.
36. Other than that the Supreme Court proceedings are adjourned pending the outcome of these proceedings, that matter, and the appeal against conviction, have no bearing on these proceedings.
Legislation
37. To qualify for a special rate of pension, Mr Quick must satisfy the criteria in s 24(1) of the Act. He must first have made a claim for an increase in his pension before he turned 65 years and have a degree of incapacity from war‑caused injury of at least 70%. There is no dispute that he satisfies these criteria.
38. Secondly, s 24(1)(b) requires that Mr Quick be totally and permanently incapacitated which, in this context, means that his war-caused injury of itself renders him or her incapable of undertaking remunerative work for eight or more hours per week: s 24(1)(b). There is no dispute that, by reason of war-caused post-traumatic stress disorder, Mr Quick satisfies this criterion.
39. In dispute is whether Mr Quick satisfies s 24(1)(c) which requires that a veteran be, by reason of his or her war-caused injury alone, prevented from continuing to undertake remunerative work that he or she was undertaking and, by reason thereof, be suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if free of that incapacity.
40. Section 24(2)(a) qualifies s 24(1)(c) by providing that a veteran who is incapacitated from a war‑caused injury 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
(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason.
41. The effect of s 24(1)(c) is ameliorated by s 24(2)(b) by providing:
(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.
Issues
42. There is no dispute that Mr Quick satisfies s 24(1)(a) and (b). In issue is whether he satisfies s 24(1)(c). This involves us determining:
(i)whether he ceased to engage in remunerative employment for reasons other than his war-caused incapacity and so is disqualified by 24(2)(a);
(ii)whether he has been genuinely seeking to engage in remunerative work and his war-caused incapacity is the substantial cause of his inability to obtain that work, such that he has the benefit of s 24(2)(b).
43. The standard of proof is the reasonable satisfaction of the Tribunal: s 120(4) of the Act.
Contentions
44. There is no dispute that Mr Quick has suffered from PTSD since about 1971. There is also no dispute that, at the relevant time, he suffered from a back condition that was sufficiently serious to prevent him from working for a period and then left him fit for light duties only. The Commission accepts that his knee and heart conditions are not relevant here.
45. Mr Quick contends that his back injury did not take him out of the workplace. He maintains that, from about 1990, his back had been improving steadily and played no significant part in his reason for ceasing remunerative work; however, as his back improved, his PTSD steadily worsened so that, by the relevant period, his PTSD was the sole reason he was prevented from continuing to engage in remunerative work.
46. Mr Quick further contends that, if he is found not to satisfy s 24(2)(a), he was genuinely seeking to engage in remunerative employment. In particular, when he undertook the work trial for Mr Brown in late 1994, while it was not itself remunerative work, it was a genuine attempt on his part to engage in remunerative work, and he would be continuing to do so, were it not for his incapacity. Further, he says, his incapacity was the substantial cause of his inability to obtain work.
47. The Commission contends that Mr Quick’s back condition, which is not an accepted disability, was the real reason he ceased work, and that other factors also played a part. Further, that any efforts by Mr Quick to find work did not amount to genuinely seeking to engage in remunerative work and nor was his PTSD the substantial cause of his inability to obtain work. The Commission concedes that, if Mr Quick is found otherwise to satisfy s 24(1)(c), he suffered a loss of income.
Did Mr Quick cease to engage in remunerative employment for reasons other than his war-caused incapacity
48. Mr Quick’s memory is poor. He has difficulty recalling names, dates and the sequence of events. His wife, Frances Quick, gave evidence that his memory is “shocking” and has worsened over time. Mr Brown gave similar evidence. In a report dated 18 November 2010, Dr White noted Mr Quick’s poor memory, especially for short term events. He commented that poor concentration is common in chronic PTSD and that other factors might also be aggravating Mr Quick’s poor memory.
49. We found no reason to doubt the truthfulness of Mr Quick’s evidence before the Tribunal. However, his poor memory made much of his evidence unreliable. For example, he denied, or could not recall, reporting various symptoms to his doctors at different times, even where they had recorded that history in their reports. His wife was able to clarify some apparent discrepancies in his medical and employment history. Where Mr Quick’s recollection was at odds with others, especially with the reports from his doctors, we prefer their evidence to his.
50. Mr Quick gave evidence that, when he first injured his back at work, he was in a lot of pain and could not walk properly without a stick. He had to have surgery; he was on heavy pain killers and was having a lot of trouble getting around.
51. A report from Dr Raymond Newcombe, neurosurgeon, dated 31 January 1986 shows that Mr Quick underwent a left-sided laminectomy on 24 January 1986. Dr William Lennon, orthopaedic surgeon, reported to the Department on 15 September 1995 that Mr Quick reported no relief following this operation and, in January 1988, he was admitted to Lady Davidson Hospital in Turramurra for rehabilitation. He spent two or three weeks there then was transferred to the Illawarra Rehabilitation Centre for approximately three weeks.
52. Mr Quick gave evidence that his back was recovering after the rehabilitation program. He was still restricted but was able to walk without a stick. He was able to drive a car comfortably, although he could not drive for long distances until about 12 months after his rehabilitation. He said that, by about 1994 or 1995, the difficulties he had after his injury had resolved “to some extent” and continued to improve; his back was “still a little bit sore” but it was not hindering him. He said his back did not restrict him when he did the work trial with Mr Brown in late 1994, although his evidence also was that this work did not involve any lifting or climbing; it was mainly “observation and just sitting at a desk determining costs”.
53. Mr Quick also gave evidence about the effects of his PTSD on his behaviour, including at work. He described his emotional volatility, arguments with customers and others, difficulties at home, poor memory and a range of other symptoms. We have no reason to doubt his evidence. It is supported by the evidence of his wife and Mr Brown, and is well-documented in medical reports. We accept that the effects of his PTSD have not decreased over time; if anything, they appear to have worsened. We accept his evidence that, by the time he saw Dr Graham Altman, psychiatrist, in 1995, the “explosive nature” of his personality was the more significant of his two main conditions. (Dr Altman’s report is referred to below).
Mrs Quick’s evidence
54. Mrs Quick gave evidence that the effects of her husband’s PTSD continue even today; he continues to have psychiatric counselling and is heavily medicated; he gets angry and is very forgetful. He has been under constant psychiatric care since the 1980s. His memory is “shocking” for all sorts of things including names and dates, and she has to help by making notes. She gave examples of responses he had given to doctors, for example and dates of events, that were simply wrong.
55. Mrs Quick recalled that her husband could not walk properly after the laminectomy in 1986 and need further treatment in the form of medication and injection. Around 1990, his walking started to improve, he was able to drive further and to sit for longer; he could do things around the house such as washing up, making a bed and mowing the lawn, but he could not lift heavy weights. He could do a lot more by 1994: he could drive, mow lawns and do most things around the house; his walking was improving; he could walk longer distances and for longer periods; he was only having “slight difficulties” but “on the whole” he was improving. He still could not lift heavy weights; he could not, for example, lift the wheelie bins.
56. Mr Quick’s claim that his back was improving was supported by his wife and by Mr Brown. Mrs Quick gave evidence that, after about 1990, his back started to improve. She did not agree with Dr Burns’ assessment that, in 1995, he could only do very light house duties. She said he had improved by then, although she did not dispute Dr Burns’ note that Mr Quick complained of intermittent low back pain when walking. Dr Burns also notes that, in 1995, Mr Quick walked with no obvious limp and without the aid of a walking stick. We accept Mrs Quick’s evidence that her husband’s back had improved but in light of the medical evidence below, we are satisfies it remained a significant impediment to his resuming work. – and improvement is supported by Dr Burns – but that does not answer out question.
Mr Brown’s evidence
57. Mr Brown said Mr Quick’s back injury was “quite severe” at first but he gradually started to get better over a long period with years of treatment and rehabilitation and he seemed to be getting back to normal. Mr Brown did not think he had a back problem “as such” in 1994. In contrast, his mental condition has not improved over the years.
Medical evidence
58. We have a number of medical reports from treating doctors and from doctors who assessed Mr Quick at different times for the purposes of various proceedings.
59. On 6 February 1990, Dr A J Christie, Director of Medical Services at GIO Insurance, examined Mr Quick in connection with his compensation claim. He took a history from Mr Quick including that he “still has severe back pain”. Dr Christie said he “seriously wondered” whether the pain was as severe as Mr Quick reported, but thought it reasonable to say he was unfit for the ordinary work of an electrician but he should possibly be fit to resume work as a cook; he should at least be fit for some light duties. We note that Dr Christie was apparently referring to ordinary work as an electrician rather than to planning and estimating work.
60. Dr Graham Anderson, who was Mr Quick’s general practitioner at the time, reported on 15 February 1991 that Mr Quick was under his care for hypertension, back, hearing, PTSD and left ulnar nerve conditions. Dr Graham stated that “his overall condition has not improved and he is not fit for employment now nor do I see it likely that he will be employable in the future”.
61. On 1 January 1992, Dr Anderson reported that, due to his PTSD and back conditions, Mr Quick was “unemployable at present time and can see no likelihood of his becoming employable at any time in the future”.
62. On 8 April 1994, Dr Graham Altman, psychiatrist, reported that “[Mr Quick] feels he couldn’t go back to work at all at present or in the future because of his back problems and because of “my aggro – I get too angry - I couldn’t work with people any more – I’m much better on my own”.
63. Dr Geoffrey Miller, consultant physician, saw Mr Quick on 31 August 1995 and reported the history he took from Mr Quick. In his report of the same date, he noted that, in the period 1981 to 1983, Mr Quick had difficulty working on his own because his left arm and back injuries, and had to cut back on some of the work. He noted that (in 1995):
He also complains of intermittent low backache on walking and also backache between his shoulder blades. … He has problems bending and lifting, he is unable to sit still for more than 20 to 30 minutes and is either fidgety or has to get up because of discomfort in his back.
64. Dr Miller concluded that Mr Quick’s “major disability for returning to work” was his PTSD but he considered his back injury of August 1985 “would materially interfere with his returning to remunerative employment”.
65. On 11 October 1995, Dr Mark Burns, occupational physician, reviewed Mr Quick at the request of the Department for the purpose of assessing whether his conditions were war-caused. He reported that he took a history from Mr Quick including that “ever since he injured his low back severely in 1985 he has been unable to work. He potters around the house but can only do light duties … he helps when he can but is not very useful”.
66. Dr Burns concluded that Mr Quick had “two separate quite severe disabilities”: service-related PTSD and a back condition which he did not believe was service-related. Dr Burns stated:
If this is the case [that his back condition was not related to his service], he ceased work in 1985 due to an injury that was not service related. At that time his [PTSD] does not appear to have been severe enough to keep him out of the workforce. Certainly it would be severe enough now to keep him out of the workforce and his back injury is also severe enough to keep him from doing most of his previous duties. I thus believe he currently is unfit to work even eight hours per week due to a mixture of his low back problems and his [PTSD].
67. Mr Quick gave evidence that he did not agree with this assessment and did not recall telling Dr Burns that he had been unable to work since his back injury. He gave evidence that, at the time he saw Dr Burns, his back was not giving him much trouble with his mobility, but he still had no feelings in his thighs and left leg.
68. Dr Ian Davison, orthopaedic surgeon, saw Mr Quick on 16 February 1999 in relation to his knees. He reported to the Department that he took a history that Mr Quick had been retired “with an invalid pension because of back troubles for at least ten years”.
69. In his report dated 18 November 2007, Dr White records the history he took from Mr Quick. He notes Mr Quick “has a chronic back condition” which “may further limit him”.
Other evidence
70. In a “Lifestyle Report” received by the Department in September 1989, Mr Quick answered questions relating to his mobility for the purposes of assessing his level of pension. Asked if he had any problems walking, he wrote: “chronic back pain, left leg pain, leg collapses at time getting worse, shortness of breath, can’t walk far, have to rest frequently”. As to whether he needed help to move around: “I used to be in a wheelchair and then a stick [sic]. I will soon have to use a stick again”. He wrote that he had difficulty using public transport because of “pain in back – leg pain, fear of enclosed space in public transport” which occurred “all the time”. Because of his back and legs, he could not do “any physical activity to wash up and I lean against the sink and lean against the wall. He had stopped “all domestic activities” because of his back and leg pain.
Consideration
71. The approach to determining whether a veteran satisfies s 24(1)(c) is set out in Flentjar v Repatriation Commission (1997) 26 AAR 93 at 96.
72. Section 24(1) (c) requires that a veteran’s inability to work be due to his or her war-caused disabilities alone and not to other matters. The word “alone” in s 24(1)(c) should be given its ordinary meaning. In Cavell v Repatriation Commission (1988) 9 AAR 534 Burchett J said that to characterise “alone” as “the sole, unique and absolute cause” of a veterans inability to work tends:
to distract the tribunal from its true task – to make a practical decision whether a veteran’s loss of remunerative work is attributable to his service related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide.
73. Whether a veteran satisfies s 24(1)(c) can only be answered by considering “all of the circumstances in which the war-caused condition exists. The fact that a non war-caused condition is not alone causative of such preventative effect does not prevent it having that effect in combination with the war-caused condition”. This may be so even where the war-caused condition is “far and away the more dominant of the causes having such effect in combination”: Forbes v Repatriation Commission (2000) 101 FCR 50 per Nicholson J at 57; see also Repatriation Commission v van Heteran (2003) FCA 888.
74. In Repatriation Commission v Hendy [2002] FCFCA 424, the Full Court said at par 37:
The decision-maker is required to take into account any factor that plays a part or contributes to a veteran’s being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the cessation period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(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.
75. The Tribunal must assess what would the veteran probably have done if he or she had none of his or her war-caused disabilities during the assessment period. In considering what the substantive remunerative work was that the veteran was undertaking, the Tribunal it is not limited to considering the last employment he or she actually undertook: Repatriation Commission v Hendy [2002] FCFCA 424, following Flentjar (above).
76. There is no dispute, and we accept, that the substantive remunerative work that Mr Quick was undertaking within the meaning of s 24(1)(c) was that of estimator and planner; it was the work he did for virtually all of his working life and we accept that he remained qualified to do that work. To the extent that he tried to obtain work, it was the work he sought to do. We accept the evidence of Mr Quick and Mr Brown that there was work available for an estimator/planner during the assessment period and that Mr Quick remained trained and qualified for that work.
77. It is agreed that Mr Quick’s knee problems did not emerge until around 1999 and that his ischaemic heart disease did not manifest itself until around 2005. It is also agreed that the back injury he sustained in Vietnam did not affect his capacity to engage in remunerative employment. We are satisfied that those conditions had no relevant effect.
78. The medical evidence is clear that, by the assessment period, Mr Quick’s PTSD was well-entrenched. There is no question that it had a marked effect on his capacity to engage in remunerative work as an estimator and planner. However, we are not satisfied that Mr Quick’s PTSD alone prevented him from engaging in that work. We find that the effects of his back injury in 1985 played a significant part.
79. We accept that Mr Quick’s back improved over time. However, the evidence from a range of medical sources is that he had persistent back pain of varying severity well past 1990 and into the assessment period. The reports of Drs Altman, Miller and Burns, document Mr Quick’s account of continuing back problems which limited his ability to work. As late as 2007, Dr White, who has treated Mr Quick for several years, reported that he has a “chronic back condition”.
80. We accept that Mr Quick’s poor memory and concentration meant that the histories the doctors took from him were not always accurate. However, as well has past history, the reports record what Mr Quick told the doctors of his condition at the time they saw him. There is a consistency in the histories they recorded, and in their assessments, that cannot be explained by Mr Quick’s poor memory. It is more probable that they recorded his back condition at the time with a reasonable degree of accuracy.
81. For Mr Quick it is submitted that Dr Christie, assessing him in June 1990 noted he still had “severe back pain” but considered him fit for light duties, indicating his back was not a major impediment to employment. However, this is one report; it has to be read in light of all the medical evidence, including Dr Anderson’s assessment, 12 months later, that Mr Quick was unemployable and unlikely to be employable in the future due to his back condition and PTSD. Dr Anderson restated this opinion in January 1992.
82. We are satisfied that Mr Quick suffered a very serious back injury in 1985 after which he did not resume remunerative employment. His injury was not war-caused. It was the reason he left the workforce. He needed treatment and rehabilitation until as late as 1989 and, at that time, it was severe enough that he reported that he could not walk.
83. The evidence does not satisfy us that Mr Quick’s back had improved by the period 1993 to 1996 to the extent that it was of no consequence to his ability to engage in remunerative work. We are satisfied that, together with his PTSD, it prevented him from so engaging.
84. It follows that Mr Quick’s war-caused PTSD alone did not prevent him from continuing to engage in remunerative employment and his claim for pension at the Special Rate must fail.
Was Mr Quick genuinely seeking to engage in remunerative work and was his war-caused incapacity the substantial cause of his inability to obtain that work
85. A veteran whose war-caused incapacity is not the sole reason he or she has not been engaged in remunerative work at the relevant date, will nevertheless be able to satisfy the “alone” criterion in s 24(1)(c) provided he or she meets the requirements of s 24(2)(b) (see: Magill v Repatriation Commission [2002] FCA 244; Repatriation Commission v Sheehy (1996) 39 ALD 286 at 291-292).
86. Section 24(2)(b) requires a veteran to be genuinely seeking to engage in remunerative work [and] 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.
87. In Leane v Repatriation Commission [2004] FCAFC 83, the Full Federal Court said at [28-29] that “genuinely seeking”:
involves something more than a mere wish or hope. It requires a claimant to 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.
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’.
88. The Court went on (at [29]) to caution against trying to overly-define or prescribe the meaning of “genuinely attempting”. It noted (at [30]) that it was unnecessary for a veteran to show that he or she had been genuinely seeking employment at all times during the assessment period. What is necessary is that the veteran be entitled “at any time during the assessment period”. If that can be established, then the veteran is entitled at least from that time to the Special Rate: Leane at [31].
Mr Quick’s evidence
89. Mr Quick has not suggested that the minor unpaid electrical work he did very occasionally over the years constituted a genuine attempt to find paid work. He relies on his efforts after his compensation claim was finalised, in particular, the work trial with Mr Brown.
90. Mr Quick gave evidence, which was supported by his wife, that after his compensation claim was finalised, he wanted to find work as an estimator and planner but it was difficult because most electricians were doing that side of the work themselves, and he could not do the ordinary electrical work because he could not climb ladders and do the manual work involved.
91. Mr Quick gave evidence to us that he approached two local electricians, whom he named, for work around this time; he was not responding to advertisements, he would make a phone call or walk in off the street and ask if there was work.
92. Mr Quick gave evidence that the work he did for Mr Brown was “just an odd job here and there” over a period of about ten weeks; “it wasn’t full on every day”. He worked maybe four or five hours a week, depending on what was required. Mr Brown paid him around $12 to $15 per hour; payments were to Mrs Quick because he never managed the finances in the household.
Mrs Quick’s evidence
93. Mrs Quick gave evidence that she recalled her husband looking for work around 1994; he could not resume normal electrical duties such as climbing ladders and lifting heavy cables but he wanted to find work as an estimator and planner. She recalled him ringing two local electricians in particular, as well as others contractors, but nothing came of his approaches. Several times while they were out, they ran into people who said things along the lines of “have you been able to find work” or “I’m sorry I couldn’t put you on”.
94. Mrs Quick recalled her husband working for Mr Brown around the end of 1994 for approximately three months; it was part time work; he was not working full time or regular hours; Mr Brown would contact him from time to time some days there were estimations to be done but on most days there was no work at all; it was spasmodic. She recalled Mr Brown was trying to help her husband, who really wanted to get back to work, but it didn’t eventuate, because of his attitude.
95. Mrs Quick recalled that her husband was paid by Mr Brown but said it was difficult to recall details; she believed he was paid on an hourly basis and, to the best of her recollection, at about $12 to $15 per hour. She knew that income over a certain amount had to be disclosed to the Department, and says her husband would have disclosed his earnings had they been over that amount.
Mr Brown’s evidence
96. Mr Brown and Mr Quick have been friends for nearly 50 years. Mr Brown said he realised, not long after Mr Quick returned from Vietnam, that something was wrong with him. He described their joint venture in Browick Electrical and confirmed Mr Quick’s evidence about how his behaviour led to their split and was the only reason the business failed.
97. Mr Brown gave evidence that he offered Mr Quick work in 1994 because he knew he wanted to work but was not getting anything. He recalled Mr Quick telling him he had tried to get work with other electricians. Mr Brown suggested he contact a particular electrician but Mr Quick later told him he had been unsuccessful.
98. Mr Brown gave evidence that, at the time, and until about 2000, the development boom meant there was plenty of work in the area. If Mr Quick had been able to show he could do the work as estimator and planner, there was plenty of work available for him. However, they lived in a small town and he believed that word had got around about how difficult Mr Quick was to deal with because of his mental instability.
99. Mr Brown gave evidence that, at the time, he was essentially a one-man operation; he did not have full time work for Mr Quick, or anyone else, he needed a licensed contractor and Mr Quick was available, so he gave him a go. Mr Quick’s work involved estimating and planning and looking at variations. It did not require much and, in particular, no heavy lifting or climbing. However, Mr Quick would become agitated on the job, he would make mistakes and blame others.
100. Mr Quick worked for Mr Brown on a trial casual basis. Some days he worked three hours, some five, but most days not at all. Mr Brown estimates that, in the 12 week period, he only worked about ten weeks before he had to stop the arrangement. As far as Mr Brown could recall (because his records are no longer available), he paid Mr Quick $12 to 15 per hour and he thought the full amount would have been considerably under the declaration threshold.
Consideration
101. Counsel for the Commission cross-examined Mr and Mrs Quick and Mr Brown about how much Mr Quick earned with Mr Brown, and the arrangements for payment. Much of this evidence went to whether or not the work trial amounted to “remunerative employment” but it also went to whether it was a genuine attempt to gain employment. The Commission says the amounts Mr Quick earned were so nominal that they weigh against a finding of genuine attempts and that the work trial was more a mate helping out a mate.
102. For Mr Quick it is conceded that the work trial was not remunerative work for the purposes of s 24(2)(b). However, he says, together with his other efforts, it shows he was genuinely seeing to engage in remunerative employment, even if it was a case of mate helping out a mate.
103. It is submitted for Mr Quick that he genuinely intended to resume work but it would have been difficult, and was not really feasible, for him to attempt to get work until the worker’s compensation claim was finalised. It is not clear why it would not have been feasible, especially given Mr Quick’s claim that, from about 1990, his back was improving considerably, and he was certified by Dr Christie as fit for light duties.
104. We accept that in the period around 1993 to 1994, there was plenty of electrical work in the Bateman’s Bay area because there was something of a development boom. We accept that, had he wanted to, and been able to, Mr Quick should have been able to obtain employment.
105. However, we are not satisfied that the work trial with Mr Brown constituted a genuine attempt by Mr Quick to engage in remunerative employment. The trial happened nearly ten years after Mr Quick was last in paid employment. In that time he had made no attempt to find remunerative employment. We accept that he may have wished to have paid employment but that does not amount to a genuine attempt. We accept that, by 1994, word may have got around about him and this may have resulted in refusals but we are still not satisfied that the few approaches he made amounted to genuine attempts as contemplated by s 24(2)(b). Moreover, the evidence is that the work trial came about because Mr Brown took it on himself to make the offer to Mr Quick. It did not come about because of any effort on Mr Quick’s behalf.
106. Taking all of the circumstances into account, we are not satisfied that Mr Quick can obtain the benefit of s 24(2)(b). Even allowing that the work trial did not itself have to constitute remunerative work, we are not satisfied that it demonstrated a genuine attempt to obtain remunerative work. It was something that came his way. The few occasional inquires he made about work around the same time do not add anything of substance.
107. The decision of the Board in 1995 found there was no evidence that Mr Quick had been genuinely seeking to engage in remunerative work, and makes no reference to the work trial with Mr Brown. Mr Quick told us he was sure that he had mentioned the trial to the Board. Given that it was a live issue, it seems unlikely the Board would have omitted to refer to this in its reasons had Mr Quick raised it. However, we cannot know exactly how the hearing before the Board proceeded and we place no weight on this.
Conclusion
108. For the reasons we have given, we are not satisfied that Mr Quick’s war-caused incapacity alone prevented him from continuing to undertake remunerative work. Nor are we satisfied that, during the relevant period, he was genuinely seeking to engage in remunerative employment.
109. It follows that Mr Quick does not qualify for the Special Rate of pension and we affirm the decision under review.
I certify that the 109 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Jill Toohey and Dr Thorpe, Member.
Signed: ...........[sgd].................................................
Associate: Diana WestonDate of Hearing 6 and 7 December 2010
Date of Decision 14 March 2011
Solicitor for the Applicant Kemp & Co. Lawyers
Counsel for the Applicant Ms D Robinson
Solicitor for the Respondent Mr R Douglass, Department of Veterans’ Affair
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