Ronald Dawes and Repatriation Commission
[2014] AATA 730
•9 October 2014
[2014] AATA 730
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/3272
Re
Ronald Dawes
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Brigadier (Retired) Conrad Ermert, Member
Date 9 October 2014 Place Melbourne The Tribunal sets aside the decision under review and substitutes a decision that the Repatriation Commission pay Mr Dawes pension at the special rate with effect from 13 August 2012.
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Brigadier (Retired) Conrad Ermert, Member
VETERANS' ENTITLEMENTS – veteran not yet turned 65 – veteran is totally and permanently incapacitated – incapacity from war-caused injuries alone – prevented from continuing to undertake remunerative work – suffering a loss of salary – decision set aside
Legislation
Veterans' Entitlements Act 1986 section 24
Cases
Repatriation Commission v Hendy (2002) 76 ALD 47
Flentjar v Repatriation Commission [1997] FCA 1200 (1997) 48 ALD 1
Cadd v Repatriation Commission [2008] FCA 1024 (8 July 2008)
Smith v Repatriation Commission [2014] FCAFC 53 (1 May 2014)
Anthony Fox v Repatriation Commission [1997] FCA 176 (19 March 1997)Repatriation Commission v Van Heteren [2003] FCA 888 (27 August 2003)
REASONS FOR DECISION
Brigadier (Retired) Conrad Ermert, Member
9 October 2014
INTRODUCTION
Mr Dawes, the applicant, served in the Australian Army from April 1968 to February 1972. He had operational service in Vietnam from January 1970 to December 1970. Mr Dawes currently receives a disability pension from the Repatriation Commission (the Commission), the respondent, at 90 per cent of the general rate for the following conditions which have been accepted as war caused:
·post-traumatic stress disorder (PTSD) with co-morbid major depression;
·migraine;
·sensorineural hearing loss;
·tinnitus; and
·solar keratosis.
Prior to his enlistment in the Army, Mr Dawes worked as a qualified electrical fitter with O’Donnell Griffin and in general duties with Peters International.
After his discharge from the Army, Mr Dawes was employed
·as a full-time student at theological college for two years;
·in the Ministry of The Salvation Army for 16 years until 1990;
·as a draftsman with Kitchen Comfort for a few months;
·in the engineering department of Henderson Industries until 1993;
·as a Development Manager for Melbourne City Mission for three years; and
·as State Director (NSW and ACT) for Leprosy Mission Australia until October 2012.
On 13 November 2012 Mr Dawes submitted claims to the Commission for hearing problems and solar keratosis. On 20 February 2013 the Commission accepted the claims and assessed his pension at 80 per cent of the general rate. On 4 March 2013 Mr Dawes applied to the Veterans’ Review Board (the VRB) for a review of the Commission’s decision. On 24 May 2013 the VRB set aside the reviewable decision and substituted a decision that the pension be assessed at 90 per cent of the general rate from and including 13 August 2012. On 9 July 2013 Mr Dawes applied to this Tribunal for a review of the VRB decision.
THE HEARING
Ms Fiona Ryan of Counsel, instructed by Williams Winter Solicitors, represented Mr Dawes. Mr Ken Rudge, a Departmental lawyer, represented the Commission. Mr Dawes appeared in person to give evidence under 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 16 June 2014; and
·the respondent’s Statement of Facts and Contentions dated 11 July 2014.
During the hearing I took into evidence for Mr Dawes:
·the statement by Mr Dawes dated 2 July 2013 (Exhibit A1);
·the report by Dr Kaplan dated 18 November 2013 (Exhibit A2); and
·the clinical notes of Dr Walid Jammal, pages 1 to 77 (Exhibit A3).
For the Commission I took into evidence:
·the report by Dr Strauss dated 26 September 2013 (Exhibit R1); and
·the report by Dr Horsley dated 12 December 2013 (Exhibit R2).
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 relevantly:
(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 ISSUE
In this case the parties agree that sections 24(1)(aa), (aab), (a)(i) and (b) of the Act are satisfied. The issue in contention is whether Mr Dawes qualifies for the payment of his pension at the special rate. He qualifies for the special rate if he satisfies the provisions of section 24(1)(c) of the Act, as affected by the provisions of section 24(2).
The parties agree that the assessment period commences on 13 November 2012, with the earliest date of effect of a favourable decision being 13 August 2012.
THE EVIDENCE
In his statement (Exhibit A1), Mr Dawes stated that Leprosy Mission Australia had made him and the other five state managers redundant from October 2012. Ms Ryan took Mr Dawes to page 2 of his statement and asked him about the employment of the other former State Managers of Leprosy Mission Australia following their termination. Mr Dawes said that one was subsequently re-employed by the Bible Society.
Mr Dawes stated it had always been his intention to keep working after reaching the age of 65. He said he had seen others deteriorate when they stopped work, drinking too much and acting in ways that broke up their marriages and their lives. He was also not financially prepared to cease work. He said he became qualified in fund raising for work after reaching retirement age.
Ms Ryan asked Mr Dawes why he moved from Sydney to Melbourne. Mr Dawes said he had always planned to work in Melbourne after his retirement from Leprosy Mission. He had discussed such a move with Leprosy Mission.
Ms Ryan took Mr Dawes to his Job Search list and asked about the positions shown for September 2012. Mr Dawes said he was not successful with any of the positions shown. He went on to say that in October 2012 he applied for a position with The Salvation Army in Melbourne. But he was not successful, even though he had previously been employed in the role and knew a number of people in the organisation. He said that people in the organisation were aware of his psychiatric condition.
When asked about the symptoms of his psychiatric condition, Mr Dawes said that he exhibited aggressive behaviour and spoke more loudly than necessary. The Chief Executive Officer (CEO) of Leprosy Mission had spoken to him about his aggression and loudness and told him that he would have to more readily adapt his approach. Mr Dawes stated that Leprosy Mission and The Salvation Army were part of a small world of charitable organisations. He said he was well known in that world.
Ms Ryan asked Mr Dawes why he ceased looking for work. Mr Dawes said that his treating psychiatrist at the time, Dr Lim, advised him to stop looking for work as it would worsen his psychiatric condition. Mr Dawes added that if it were not for his psychiatric condition he would still be working.
Mr Dawes then described a meeting at World Vision in Melbourne. He said the meeting was with the person in charge of fund-raising and other people. He said the meeting lasted about an hour. During the meeting he was asked for his availability for future consultations. Mr Dawes advised the meeting that he was under medical supervision and that he was unable to continue to work.
Mr Rudge cross-examined Mr Dawes about the other former State Directors from Leprosy Mission. Mr Dawes said that:
·the Director (South Australia) was qualified as a medical scientist and was re-employed within months by the University of South Australia; he was aged in his late 40s;
·the Director (West Australia) went to Missions Interlink; he was about ten years younger than Mr Dawes;
·the Director (Queensland) went to a Bible organisation in Queensland; he was one or two years younger than Mr Dawes and expected to retire within 12 to 18 months after being made redundant;
·the Director (Tasmania) was a self-employed accountant past his retirement age; and
·the Director (Victoria) was also the CEO of Leprosy Mission and he continued on in the role of CEO.
Mr Rudge asked how much notice had Mr Dawes received of his impending redundancy. Mr Dawes said he was informed by the CEO on the Tuesday or Wednesday. Mr Dawes said the CEO told him to close the business in 30 days or work on until December. Mr Dawes said that Dr Grace Warren advised him to take the shorter option. Dr Warren is a general practitioner and general surgeon who worked for many years as a consultant to Leprosy Mission. Mr Dawes said he knew Dr Warren professionally for many years. Mr Dawes said Dr Warren gave him the advice just after his meeting with the CEO.
Mr Dawes said he started looking for other jobs within days of receiving advice of his redundancy. Mr Rudge took him to the list of advertised positions on the T-documents. Mr Dawes said he inquired about the requirements of a number of the positions. He said he made over 20 telephone calls from September to December 2012. He had no interviews as a result of these calls and none of the organisations told him why he was not successful.
Mr Dawes said he also sent some written applications but received written responses from only two employers, Drake Employment and The Salvation Army. The applications were not successful. Mr Dawes said that when he spoke to the organisations they indicated he did not have the requisite qualifications or skills for the positions.
Mr Rudge asked about the response from The Salvation Army. Mr Dawes said that some people in leadership positions at The Salvation Army knew of his psychiatric condition. However, he did not know whether they were involved in the selection process. Nonetheless, he believed that knowledge of his condition affected the selection result. When asked why he held that belief Mr Dawes said that he knows the person who wrote the letter. He said the person previously worked with both him and his father. He would probably have been aware of Mr Dawes’ condition.
Mr Rudge asked Mr Dawes for more detail of the presentation of his condition. Mr Dawes said that he displayed aggression, had difficulty working with some people and that he tended to be obstinate and loud. Mr Dawes said that many times he was unaware of what was happening. He said that the CEO of Leprosy Mission had told him he needed to accept different things more readily, that he was not prepared to compromise.
Mr Dawes said the CEO had also demanded he do more work than he was already doing. Mr Dawes said there was pressure to raise more funds and he was told that if he could not lift his performance, he would be relieved of his position. Mr Dawes agreed with Mr Rudge’s proposition that there was increasing competition in the fund-raising industry leading to greater pressure on fund-raising. He also agreed that this pressure was reflected in the organisation of Leprosy Mission and was a factor in the organisation’s restructuring. Mr Dawes said that he had intended to stay in the position and had tried to negotiate a position in Victoria with a view to working after his retirement from the organisation.
In her re-examination, Ms Ryan asked if the people at The Salvation Army would have been aware of Mr Dawes’ aggressive behaviour. Mr Dawes believed his aggression would have been relayed to people in The Salvation Army. He believes at times he has asserted to others in that organisation that I was in charge. He said he was unaware of his behaviour at the time but was sometimes told about it later. Sometimes, when having discussions with other people, his wife would tell him he was raising his voice.
SUBMISSIONS
Ms Ryan contended that Mr Dawes’ redundancy does not preclude his qualification for the special rate of pension if he satisfies section 24(2)(b) of the Act. She referred to the judgement of the Full Court of the Federal Court in Smith v Repatriation Commission [2014] FCAFC 53 (1 May 2014), in which Buchanan J found, at paragraph 70:
… I see no reason why a veteran would be disentitled to make an application for an increase in pension if he or she had ceased to work for particular reasons at one point in time, then commenced genuine efforts to find work and was then prevented only by a war-caused injury or disease from obtaining such work. Ceasing to work at a particular time for reasons other than war-caused injury or disease, including for reasons which might be entirely beyond the control of a veteran (such as redundancy for example), is not a permanently disentitling circumstance. Nor is it necessary to make efforts during an assessment period which might be futile and humiliating if there is adequate evidence before an application is made that genuine efforts have been made to obtain employment, those efforts have been without success, and the lack of success is due to the war-caused injury or incapacity. That is accommodated in terms by s 24(2)(b).
Ms Ryan contended that Mr Dawes had made genuine efforts to engage in remunerative work and that his war-caused incapacity was the substantial cause of his lack of success. She submitted that Mr Dawes was recently sounded out for a job with World Vision but was not able to proceed because of his psychiatric condition. Ms Ryan referred to a report by Dr Lim, dated 29 November 2012 (Exhibit A3), which records that Mr Dawes was continuing his activity with the Leprosy Mission a few days a week.
Ms Ryan submitted that the Tribunal should accept Mr Dawes evidence that his professional network had knowledge of his aggressive behaviour. Ms Ryan also referred to the advice of Dr Lim that Mr Dawes’ psychiatric conditions were the substantial cause of his not being able to work. She submitted that the contents of Dr Lim’s reports were consistent with the oral evidence given by Mr Dawes.
Ms Ryan urged the Tribunal to find that Mr Dawes, after ceasing work at the age of 64, made genuine efforts to engage in further work. He was then told by Dr Lim and Dr Warren that he should cease his efforts to seek work as this was aggravating his psychiatric condition. She contended it had always been Mr Dawes’ intention to work beyond retirement age, and that absent his war-caused conditions he would be working now. She contended that Mr Dawes satisfied the provisions of section 24(2)(b) and accordingly he satisfies the provisions of section 24(1)(c). As a consequence, he is entitled to be paid a pension at the special rate.
Mr Rudge submitted that the first issue for consideration is the alone test of section 24(1)(c) of the Act. He referred to the judgement of the Full Court of the Federal Court in Repatriation Commission v Hendy (2002) 76 ALD 47. At paragraph 34, 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 … 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 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 contended that Mr Dawes’ age of 64 years and 8 months is a contributing factor. He submitted that it is difficult obtaining work at that age. He said this contention was supported by the evidence that Mr Dawes made many applications for work but received only two responses. Mr Rudge contended further that both age and Mr Dawes’ redundancy contribute to his being out of the workforce.
Mr Rudge turned to section 24(2)(b) of the Act and accepted that there was evidence that Mr Dawes was genuinely seeking work from September to December 2012. However, he posed the question whether Mr Dawes’ war-caused incapacity was the substantial cause of his inability to obtain work or just a substantial cause. He referred to the judgement of the Federal Court in the matter of Anthony Fox v Repatriation Commission [1997] FCA 176 (19 March 1997) in which Kiefel J found:
The words “the substantial cause” require that, if the incapacity is not of itself productive of the inability to obtain work, it is nevertheless the operative factor which, more than any other, explains it. That something might be “a substantial cause” has regard to the situation where there may be a number of factors operating which are of sufficient causal significance to qualify as “substantial” … The definite article in s 24(2) of the 1986 Act … requires a stronger and more direct causal connexion between the incapacity and the inability to obtain remunerative work. The Tribunal here was clearly of the view that whilst the applicant’s incapacity could be described as “substantial” the other factors, which it listed, were also of importance with respect to the applicant’s inability to obtain work. Since their effect was considered of such significance to deny his incapacity status as “the substantial cause”, one infers the Tribunal considered that they might also be described as a substantial cause or causes.
Mr Rudge submitted that in this case, it was for the Tribunal to decide whether Mr Dawes’ war-caused conditions of PTSD and co-morbid major depression were the operative factor in his inability to obtain remunerative work. That is, were the conditions the substantial cause and not just a substantial cause.
Mr Rudge addressed the second limb of sub-section 24(1)(c) as affected by sub-section 24(2)(a) of the Act which provides that a veteran shall not be taken to be suffering a loss of earnings if he has ceased to engage in remunerative work, or is prevented from engaging in remunerative work for reasons other than his war-caused incapacity.
Mr Rudge contended that Mr Dawes’ retrenchment is a reason for his ceasing work. He referred to the judgement of the Federal Court in the matter of Repatriation Commission v Van Heteren [2003] FCA 888 (27 August 2003) in which Finn J found:
Finally, the second limb of s 24(1)(c) (that is, the fourth Flentjar question). If the Tribunal has found that the “alone” test is satisfied it must then determine if the veteran was suffering a loss of income that he or she would not be suffering if free from war-caused incapacity. This question is not answered simply by finding that, in the assessment period, the veteran is unable to engage in any remunerative work. It in fact presupposes that he or she may well not be: cf s 24(1)(b). And because of the deemed “no loss” provisions of s 24(2)(a)(i) which apply where the veteran has ceased to engage in remunerative work for reasons other than his or her war-caused conditions, it requires an examination of the reasons why the veteran ceased work.
Mr Rudge referred to the judgement of the Federal Court in Cadd v Repatriation Commission [2008] FCA 1024 (8 July 2008) in which Finn J found (at paragraph 14) that, in deciding whether a veteran ceased to engage in remunerative work for reasons other than his war-caused incapacity, the correct question for the Tribunal is … whether a state of affairs had been reached such that it could properly be said that (the applicant) was no longer engaged in remunerative work. … .
TRIBUNAL CONSIDERATIONS
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 the matter of Flentjar v Repatriation Commission [1997] FCA 1200; (1997) 26 AAR 93 at 96 :
1. What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s. 24(1)(c) of the Act?
2. Was [the veteran], by reason of war-caused injury or war-caused disease, or both prevented from continuing to undertake that work?
3. If so, was 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 so, was [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?
Neither party made submissions about the type of remunerative work Mr Dawes was undertaking. In considering the first Flentjar question, I note that Mr Dawes’ last two jobs involved fund-raising for Melbourne City Mission for three years, and as a State Director with Leprosy Australia managing fund-raising in NSW and the ACT for six years. I also note Mr Dawes’s oral evidence that he became qualified in fund-raising to enable him to work after reaching retirement age. Mr Dawes also gave evidence that he was seeking fund-raising positions with the Christian Management Association (CMA) and that he is a member of The Fundraising Institute of Australia (Exhibit A1).
From the evidence, I find that the remunerative work Mr Dawes was undertaking within the meaning of section 24(1)(c) of the Act was fund-raising and the management of fund-raising activities.
In answer to the second Flentjar question, both parties agree, correctly in my opinion, that Mr Dawes’s war-caused disabilities prevent him from continuing to undertake that work. I find accordingly.
The third Flentjar question asks whether the war-caused disabilities are the only factors preventing the veteran from continuing to undertake the remunerative work.
Ms Ryan made no submissions in regard to the alone test of section 24(1)(c) of the Act. Ms Ryan relied instead on the reasoning of Buchanan J in Smith invoking the ameliorating provisions of section 24(2)(b) of the Act.
Mr Rudge referred to the reasoning in Hendy and submitted that Mr Dawes’ age and his retrenchment were factors contributing to preventing Mr Dawes from undertaking his remunerative work.
In considering this issue, I note Mr Dawes’ evidence that the fund-raising industry was more competitive resulting in greater pressure in the business of fund-raising. I also note Mr Dawes’ evidence that he responded to more than 20 advertised positions and spoke to employment agencies, all without success. In addition, I note that the four State Directors of Leprosy Mission who were retrenched at the same time as Mr Dawes and who found other employment were all younger than Mr Dawes.
I consider it likely that employers seeking to fill senior positions in a competitive and pressured industry would take into account the age and likely length of service of an applicant when making their appointments. At the time Mr Dawes was seeking employment he was over 64 years old, only a few months short of the age considered by many as a reasonable age to retire. I consider it reasonable to accept that his age was a negative factor in his attempts to obtain further employment. Accordingly, I find that Mr Dawes’ age was a factor contributing to preventing him from undertaking his remunerative employment.
There is no evidence to support the contention that Mr Dawes’ retrenchment was a factor contributing to the prevention of his undertaking remunerative work. I do not accept that element of Mr Rudge’s submission.
As a result of my finding, the answer to the third Flentjar question is no. However, before making any further determinations in relation to section 24(1)(c) I must consider the effects, if any, of the provisions of section 24(2).
It is not in contention that Mr Dawes had not attained the age of 65 at the time of his application and that he is not engaged in remunerative work (section 24(2)(b)). Ms Ryan contended that Mr Dawes has been seeking to engage in remunerative work and that his war-caused incapacity is the substantial cause of his inability to obtain work. Mr Rudge accepts that Mr Dawes was seeking work but questions whether his incapacity is the substantial reason or just a substantial reason for his inability to obtain work.
I note the uncontested evidence that Mr Dawes genuinely sought work from the time of his retrenchment in October 2012 to December 2012, when he was advised by Dr Lim that he should cease that effort. I accept Mr Rudge’s concession on this point.
Mr Dawes gave uncontested evidence that he intended to continue to seek work as he did not want to deteriorate like his friends after their retirement. His evidence is that he stopped seeking employment only because of the advice of Dr Lim who warned him that his continuing efforts to find work were aggravating his psychiatric condition. There is no evidence of any other reason for Mr Dawes’ ceasing to seek employment. I am satisfied from the evidence that Mr Dawes would be continuing to seek to engage in remunerative work but for his war-caused psychiatric condition.
Mr Rudge contended that, in addition to his war-caused incapacity, Mr Dawes’ age and his retrenchment were reasons for his inability to obtain work. By implication, he contended that they should be considered as the substantial reasons. Ms Ryan contended that Mr Dawes’ war-caused incapacity was the substantial reason.
The evidence relevant to Mr Dawes’ inability to obtain work is:
·the fund-raising industry was becoming increasingly competitive and pressured;
·his psychiatric condition was known by a number of people in the fund-raising industry;
·he was retrenched from his position at Leprosy Mission Australia;
·Mr Dawes inquired after more than 20 advertised positions without success;
·although asked about performing some work with World Vision he declined the opportunity because of his psychiatric condition,
·persons involved in the selection for a position with The Salvation Army knew Mr Dawes and may have known of his aggressive behaviour;
·Dr Lim advised Mr Dawes to cease searching for employment because it was aggravating his psychiatric condition; and
·he was over 64 years of age when applying for work.
Although Mr Dawes’ age is a factor in his ability to obtain remunerative work, I do not consider it to be the substantial factor. Mr Dawes was asked about performing work with World Vision in the full knowledge of his age at the time.
I accept that the persons involved in World Vision are conscious of the competitive and pressured nature of the fund-raising industry. Nevertheless, they sought Mr Dawes’ availability for work in the industry. As a result, I do not consider this to be a substantial factor.
Mr Dawes was not given reasons for his lack of success from his many job inquiries. I can draw no evidence-based conclusions from this factor.
In regarding the effects, if any, of his retrenchment, I note that the other ex-State Directors of Leprosy Mission Australia found employment. The fact that their retrenchment was due to a restructure was not a factor preventing them from obtaining other employment.
I consider that the substantial reasons for Mr Dawes’ inability to obtain remunerative work are the likely knowledge in the industry (including within The Salvation Army) of Mr Dawes’ psychiatric condition, his inability to accept the work with World Vision and his inability to continue seeking work. These reasons are the result of his war-caused incapacity. Therefore, I find that the substantial cause of his inability to obtain remunerative work is his war-caused incapacity. As a result, in accordance with the provisions of section 24(2)(b), Mr Dawes is treated as having been prevented by reason of his war-caused incapacity from continuing to undertake remunerative work that he was undertaking (section 24(1)(c)).
My finding means that, in this case, the answer to the third Flentjar question is yes. Accordingly, I will now consider whether Mr Dawes is suffering a loss of earnings he would otherwise not be suffering.
My first consideration is to determine when Mr Dawes ceased to engage in remunerative work. Following the reasoning in Cadd, I must determine when the state of affairs was reached such that it could properly be said that Mr Dawes was no longer engaged in remunerative work.
The evidence is clear and not contested that Mr Dawes sought to obtain further work as soon as he was informed of his retrenchment. He continued his search until advised by Dr Lim to cease. I consider that it was not until Mr Dawes received Dr Lim’s advice and ceased his search for employment that the requisite state of affairs was reached. This state of affairs was brought about only by Dr Lim’s advice, which in itself resulted from Mr Dawes war-caused psychiatric condition.
Applying the reasoning in Van Heteren to this finding, I find that Mr Dawes ceased to engage in remunerative work for no reason other than his war-caused incapacity. As a result, I find that the provisions posed in the fourth Flentjar question are satisfied. Accordingly, I find that the disabling provisions of section 24(2)(a) do not apply to Mr Dawes’ situation.
My findings mean that all the provisions of section 24(1)(c) are satisfied and that Mr Dawes is qualified to be paid his pension at the special rate. The date of effect of this determination is 13 August 2012.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision that that the Commission pay Mr Dawes pension at the special rate with effect from 13 August 2012.
I certify that the preceding 64 (sixty -four) paragraphs are a true copy of the reasons for the decision herein of Brigadier (Retired) Conrad Ermert, Member
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Associate
Dated 9 October 2014
Date of hearing 18 September 2014 Counsel for the Applicant Ms Fiona Ryan Solicitors for the Applicant Williams Winter Solicitors Solicitors for the Respondent Mr Ken Rudge, Department of Veterans' Affairs
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