STEPHEN COUCH and REPATRIATION COMMISSION
[2010] AATA 201
•24 March 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 201
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1237
VETERANS' APPEALS DIVISION ) Re STEPHEN COUCH Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member A K Britton
Dr M E C Thorpe, MemberDate24 March 2010
PlaceSydney
Decision The decision under review is set aside, and a decision substituted that the applicant satisfied the criteria for the grant of a special rate of pension with effect from 6 June 2008. ......................[SGD]........................
Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – special rate pension – “alone” test – whether veteran was prevented by war-caused injuries, alone, from continuing remunerative work – whether the veteran ceased work for reasons other than accepted war-caused injuries – evaluation of date at which remunerative work ceased where applicant was sporadically employed.
Veterans Entitlements Act 1986 (Cth) – ss 19(5), 19(5C), 19(6), 24(1)(c), 24(2)(a)
Jones v Dunkel (1958) 101 CLR 298
Starcevich v Repatriation Commission (1987) 18 FCR 221
Sheehy v Repatriation Commission (1996) 66 FCR 569
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Hendy (2002) 76 ALD 47
Banovich v Repatriation Commission (1986) 69 ALR 395
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Braund (1991) 23 ALD 591
Repatriation Commission v Hendy (2002) 76 ALD 47
Peacock v Repatriation Commission [2004] FCA 1449
Giesen v Repatriation Commission (2005) 87 ALD 347
Re Bertram and Repatriation Commission (AAT 2783, 29 July 1986)
REASONS FOR DECISION
24 March 2010 Senior Member A K Britton
Dr M E C Thorpe, Member1. The veteran, Mr Stephen Couch, left school at age 16 to join the Royal Australian Navy and served for 12 years. He contends that multiple war–caused conditions now render him totally and permanently incapacitated for work, and that he therefore satisfies the eligibility requirements for a special rate pension under s 24 of the Veterans’ Entitlements Act 1986 (Cth) (the Act). In respect of pension eligibility, the most significant of these conditions are post traumatic stress disorder, alcohol abuse and lumbar spondylosis.
2. In June 2008, Mr Couch applied to the respondent, the Repatriation Commission, for an increase in the rate of pension he received. The Commission decided that Mr Couch’s rate of pension should remain unchanged at 90% of the general rate specified under s 22 of the Act. That decision was affirmed by the Veterans’ Review Board. Mr Couch subsequently applied to this Tribunal for review of that decision.
3. The Commission opposes Mr Couch’s claim of entitlement to a special rate pension, but concedes that his pension rate should be increased to 100% of the general rate on the basis of his current level of incapacity.
Background
4. Mr Couch was serving on HMAS Hobart during the Vietnam War when a colleague was killed during an air attack. Mr Couch — who was 19 at the time — saw his colleague’s mutilated body and blames himself for the incident. He told psychiatrist Dr Robert Lewin, “I think about [his colleague’s death] all the time”. Medical reports tendered in these proceedings record that Mr Couch reports ongoing feelings of worry and avoidance about his military history. He has not been treated for his psychiatric conditions. He finds some solace in alcohol. His GP reports that he has been drinking eight to ten standard drinks a day since 1968 in an attempt to cope with his PTSD.
5. After leaving the Navy in 1975, Mr Couch took up employment as a boilermaker and fitter. In 1989 he left a job after smashing a telephone into a colleague’s face. In evidence given in these proceedings, Mr Couch said he felt unable to cope and had to “get away from life in general”. He moved to Dorrigo, a small town in rural NSW.
6. Mr Couch lives with his brother in separate accommodation on a remote property. He lives an isolated and marginalised existence.
7. Six months after moving to Dorrigo, Mr Couch commenced working for a tourism business, “Wildwater Adventures”. His principal duties involved driving customers, loading and unloading equipment and helping to run camps. He trained as a tour guide but claimed he did little of this work because of his difficulties dealing with people. According to Mr Couch, he worked “on and off” for the next 12 years. The work was casual and there would often be no work for extended periods in the colder months or in times of drought. Mr Couch testified that over time he found he was unable to cope with the work at Wildwater due to the deterioration of his back and his increasing inability to deal with customers, citing as an example an incident where he “manhandled” a teenage boy in front of his parents.
8. Mr Couch left Dorrigo in December 2006 and moved to Tasmania to help a friend establish a second hand goods store. He was provided with bed and board but not paid regular wages. The venture failed after about seven months and he returned to Dorrigo.
9. According to Mr Couch, he thought on his return that he might be able to cope with his old job after his break in Tasmania. He worked for the business intermittently until April 2008. According to Mr Couch, after he finished work he learnt that the business had “gone broke”.
10. Mr Couch has not worked since that time.
11. Mr Couch suffers from the following conditions: lumbar spondylosis, alcohol abuse, hypertension, post traumatic stress disorder (PTSD), gastro-oesophageal reflux disease, bilateral sensorial-neural hearing loss with tinnitus, and solar kerataosis. All are accepted as war-caused.
Criteria for eligibility for pension at the special rate
12. Section 24 of the Act sets out several criteria that must be satisfied before a pension is payable at the “special rate”. It is agreed that all but that specified in s 24(1)(c) are satisfied. It provides:
(1) This section applies to a veteran if:
...
(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...
13. Section 24(2)(a) provides that for the purposes of the second limb of s 24(1)(c), the so-called loss test, a veteran 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; …
14. Section 24(2)(b) operates in certain circumstances to ameliorate the consequences of failing to satisfy the first limb of s 24(1)(c), the so-called “alone” test. It is not relied upon by Mr Couch.
15. In Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4-5 Branson J — with whom Beaumont and Merkel JJ agreed — described the issues raised by s 24(1)(c) as being:
(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. Whether Mr Couch satisfies these criteria must be assessed against the “assessment period”, which runs from the date on which his claim was received, 6 June 2008, to the date of this decision: s 19(5C) of the Act. It is not necessary that Mr Couch have satisfied the criteria throughout the entirety of that period: Repatriation Commission v Braund (1991) 23 ALD 591 at 594 per Pincus J. However the pension will only be payable from the date within the assessment period, Mr Couch satisfies all criteria.
What was the relevant ‘remunerative work’?
17. Central to the operation of s 24(1)(c) is the identification of the “remunerative work” that Mr Couch was undertaking — which, for shorthand purposes, we will refer to as “relevant remunerative work”— requires us to conduct an assessment of what Mr Couch “probably would have done if he had had none of his service disabilities”: Repatriation Commission v Smith (1987) 15 FCR 327 at 337 per Beaumont J. The phrase “remunerative work that the veteran was undertaking” in s 24(1)(c) is a reference to the type of work which [Mr Couch] previously undertook and not to any particular job”: Banovich v Repatriation Commission (1986) 69 ALR 395 at 402; Repatriation Commission v Hendy (2002) 76 ALD 47 at [36]). It is not restricted to Mr Couch’s last employment: Banovich at 402-403.
18. Tasmanian employment It was argued for Mr Couch that the work performed in the Tasmanian second-hand business was not “remunerative work”, but rather an “attempt to find work”. It was pointed out that Mr Couch did not draw a regular wage.
19. “Remunerative work” is somewhat unhelpfully defined by the Act to mean “any remunerative activity”: s 5Q(1). The Oxford English Dictionary, 2nd edition defines “remunerative” to mean: “Liable to provide or offer remuneration or reward; … providing the opportunity for profit or gain”.
20. Mr Couch testified that the arrangement with his friend was that any profit generated by the business would be split equally. The shop closed after a short period without making a profit and therefore there was no profit to split.
21. In our view, the term “remunerative work” should not be given the narrow meaning Mr Latimore for Mr Couch, urges us to adopt, but encompasses work which provides the opportunity to make a profit or financial gain, irrespective of whether that object is achieved (see Re Bertram and Repatriation Commission (AAT 2783, 29 July 1986)). Mr Couch entered into the Tasmanian venture on the understanding that he would share in any profit made. The failure of the business to return a profit does not negate the fact that Mr Couch was given the opportunity to share in it had the business succeeded.
22. In our opinion, the work performed in Tasmania was plainly “remunerative work”.
23. Type of remunerative work Mr Couch’s work history as sketched in above reveals that his only full-time employment in civilian life was as a fitter/boilermaker. He went on to work on a casual basis with Wildwater Adventures and for a short period in the Tasmanian venture.
24. The only other work of note was a stint as a security guard in 2005. From the Centrelink records it appears that Mr Couch worked five shifts over six months. While we doubt that this type of work constitutes “remunerative work”, we will proceed on the basis that it does (see Starcevich v Repatriation Commission (1987) 18 FCR 221 at 227.)
25. In our view, the type of work Mr Couch “probably would have done if he had none of his service disabilities” could be described as:
· fitter/boilermaker;
· driver/camp assistant;
· retail worker;
· security guard.
Each, in our view, constitutes “remunerative work” for the purposes of s 24(1)(c)
Is Mr Couch, by reason of his war-caused conditions alone, prevented from continuing to undertake relevant remunerative work?
26. The “alone” test requires us to decide whether, by reason of his war–caused incapacities alone, Mr Couch was prevented from undertaking relevant remunerative work at any point during the assessment period. It is a strict test and requires us to focus on the cause or causes preventing Mr Couch from continuing to undertake the remunerative work he had been undertaking: see Giesen v Repatriation Commission (2005) 87 ALD 347 at 353 per Gray J . It requires us to “take into account any factor that plays a part or contributes to a veteran being prevented from continuing to engage in remunerative work” and “consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period”: Repatriation Commission v Hendy (2002) 76 ALD 47 at 54.
27. The Commission concedes that Mr Couch is now incapacitated for the type of employment he had previously been undertaking. It argues however, that several other factors also operate to prevent him from continuing to undertake this type of work. These include the closing down of Wildwater Adventures, the lack of work in the Dorrigo area and Mr Couch’s receipt of a service pension since June 2008.
28. To address this issue, it is necessary to examine the nature of the relevant remunerative work, the nature of Mr Couch’s war-caused incapacity, and any other factor that might have prevented him from undertaking relevant remunerative work throughout the assessment period.
29. Functional requirements of the work The categories of relevant remunerative work we have identified broadly involve the following tasks:
Fitter/boilermaker — Heavy lifting and other manual tasks.
Driver/camp assistant — Driving medium sized vehicles, loading and unloading equipment, setting up camp, preparing meals, dealing with customers.
Retail work — Dealing with customers, stock and accounting work.
Security work — Undertaking patrols, investigating and dealing with security breaches
30. Accepted conditions The consensus of medical opinion is that Mr Couch’s conditions of lumbar spondylosis, alcohol dependence and PTSD are of primary importance in terms of an assessment of his fitness for employment. His hearing loss would also incapacitate him to some degree if he was required to deal with people especially by phone.
31. Medical evidence Mr Couch’s treating GP, Dr Horts Herb, prepared a report dated 21 July 2008 at the request of the Department of Veterans’ Affairs. Dr Herb stated that Mr Couch left the white water rafting business because of lumbar pain associated with heavy lifting. He reported that Mr Couch could not walk more than 150 metres or climb two flights of stairs without experiencing lower back pain. He identified lumbar sposndylosis, PTSD and alcohol abuse as “major” conditions contributing to Mr Couch’s incapacity for employment.
32. In a medical certificate dated 10 July 2008, Dr Herb certified Mr Couch as totally unfit for work until 11 October 2008. In his view, Mr Couch was unable to continue to work in Wildwater Adventures, but was able to undertake non-physical work. He noted however that the PTSD and alcohol abuse limited Mr Couch’s ability to interact with people and that his hearing loss made talking on the phone difficult.
33. In June 2007 Mr Couch was assessed by psychiatrist, Dr Philip Reid, at the request of the Department. In a report dated 2 July 2007, Dr Reid recorded a diagnosis of PTSD and alcohol abuse. He wrote that Mr Couch’s psychiatric conditions had not led to any “major time away from work”, and that he hoped to re-enter the workforce on his return to NSW.
34. In July 2008, Mr Couch’s capacity for work was assessed by Centrelink occupational therapist, Ms K Street. She was of the opinion that Mr Couch was prevented from undertaking any work for three months. She wrote:
Rationale: The client has a verified short term temporary conditions [sic] including PTSD, and temporary exacerbation of existing permanent condition of chronic back pain. Current presenting symptoms include daily flashbacks, depression, fluctuating mood, anger management issues, anxiety, avoidance and limited ability to bend, reduced sitting tolerance of 20 mins, reduced walking tolerance on 150 metres before pain starts and limits further walking, inability to garden or mow lawn and this would prevent any work capacity until 10/11/2008.
35. Ms Street recorded that Mr Couch’s chronic back pain meant that he would probably have the following functional restrictions over the next two years: limited ability to bend, a sitting tolerance of 20 minutes and walking tolerance of 150 metres. In her view, Mr Couch did not have the skills, confidence or understanding of his condition to “independently build work capacity and compensate for the restriction of his injury”. While she noted that Mr Couch had been diagnosed as suffering from PTSD, she did not address whether this condition or long history of alcohol abuse, reduced his capacity for employment.
36. In 2009 Mr Couch was seen by a number of experts whose reports were tendered in these proceedings — psychiatrists, Drs Anthony Dinnen and Robert Lewin, and occupational physician, Dr Robin Chase.
37. Both psychiatrists were of the opinion that Mr Couch suffered from chronic PTSD with associated depressive and anxiety features together with alcohol abuse. Both thought the conditions were severe; expressed concern that they were untreated and believed that the combination of his psychiatric conditions rendered Mr Couch unfit for work. Dr Lewin cautiously opined that, in a “carefully structured and protected environment”, Mr Couch might be able to manage four to five hours per week in some form of “maintenance, caretaking or agricultural work”.
38. Dr Chase was of the opinion that Mr Couch’s back pain precluded him from returning to any heavy physical work, including the type he had previously undertaken with Wildwater Adventures. He thought that Mr Couch’s accepted conditions alone rendered him incapable of working more than 20 hours per week, but that in a supported environment he might be able to work up to 20 hours in “low manual labour low stress” type work.
39. Jones v Dunkel submissionThe Commission contends that we should draw an adverse inference from Mr Couch’s failure to tender a report prepared by occupational physician, Dr Burns, at the request of his solicitors, citing in support Jones v Dunkel (1958) 101 CLR 298. Mr Latimore explained that the report was not tendered because ultimately it did not address issues relevant to these proceedings.
40. The so-called rule in Jones v Dunkel provides that where a party to proceedings fails, without adequate explanation, to call a witness whom he or she (rather than any other party) might be expected to call, and whose evidence might be expected to elucidate a factual matter that is in issue, the court or tribunal may (a) infer that this evidence would not have assisted the party who failed to call the witness and (b) draw any inference adverse to that party which is otherwise open upon the evidence and which the witness might have been expected to contradict.
41. It is not a “rule of law” to be applied in all circumstances but a method of inferential reasoning permitted by law where appropriate. It may apply if a party shields an unfavourable expert by failing to call him or her. However it is not enough for the party relying on Jones v Dunkel to leave it to the Tribunal to guess what point in issue the absent expert might have given evidence about that would not have assisted their opponent. It is unclear from the Commission’s submission what adverse inference should be drawn from the failure to tender Dr Burns’s report. The rule cannot be used to fill gaps in evidence or, as it has been put, “to convert conjecture and suspicion into inference” (see J.D.Heydon, Cross on Evidence (6th Edition) Butterworths, Sydney, p.36). For these reasons we decline the Commission’s invitation to draw an adverse inference from Mr Couch‘s decision not to call Dr Burns.
42. Findings and conclusions It is uncontroversial that Mr Couch is unable to undertake heavy work because of his back condition. This clearly makes him unfit for the type of trade work he had been undertaking before he went to Dorrigo. It also makes him unfit for many of the duties of a driver/camp assistant. While this work is not as relentlessly heavy as trade-type work, it nonetheless would require Mr Couch to lift, stand and sit (while driving) beyond his assessed tolerance levels. It is unclear from Dr Chase’s report if he categorises retail work as “low manual labour low stress” — the kind of work he believes Mr Couch might be able to undertake in a “supportive environment”. That opinion — if he held it — would be at odds with the weight of the expert psychiatric opinion which was to the effect that Mr Couch is now effectively unemployable because of multiple psychiatric conditions. It is self evident that security work could not be characterised as “low stress” and therefore Mr Couch is unfit to undertake it.
43. In assessing the role Mr Couch’s accepted psychiatric conditions play in preventing him from undertaking relevant remunerative work, throughout the assessment period, we prefer the opinions of Drs Dinnen and Lewin over that of Dr Reid for these reasons. First, Drs Dinnen and Lewin considered in greater detail Mr Couch’s employment capacity. Second, Dr Reid has not seen Mr Couch for close to three years, while Drs Dinnen and Lewin have had the advantage of a more recent assessment.
44. The medical evidence makes it abundantly clear that Mr Couch is now totally unfit for any relevant remunerative work. We are satisfied that he is now prevented from undertaking any relevant remunerative work on account of his accepted conditions.
45. Other factors Mr Couch’s unfitness for relevant remunerative work on account of his accepted conditions of itself does not satisfy the alone test. That test will not be satisfied if any factors apart from war-caused incapacity either separately or in combination with each other or Mr Couch’s accepted conditions, prevent him from undertaking relevant remunerative work. We understand the Commission to argue that the other factors which prevent Mr Couch from undertaking relevant remunerative work include the closure of Wildwater Adventures, the limited work available in Mr Couch’s local area, and his eligibility for a service pension in June 2008.
46. There are no details before us about the amount and type of relevant remunerative work available in Mr Couch’s local area. Some of the medical reports tendered in these proceedings refer to Mr Couch’s unsuccessful attempts to find work on his return from Tasmania. While it is a matter of common knowledge that employment opportunities in rural NSW are limited, the evidence would not support a finding that there is little or no relevant remunerative work available in the labour market reasonably available to Mr Couch.
47. The date Wildwater Adventures ceased operation is in dispute, however it is common ground that it no longer operates, at least in the area in which Mr Couch lives. While plain that this avenue of employment is closed to Mr Couch, it does not follow that he is prevented from undertaking other relevant remunerative work. If work with Wildwater Adventures was the sole relevant remunerative work available to Mr Couch, the closure of the business might be of greater significance; but that is not the case.
48. Nor do we consider his eligibility for a service pension in June 2008 to be a factor preventing Mr Couch from undertaking relevant remunerative work. The situation is analogous to that considered by Dowsett J in Peacock v Repatriation Commission [2004] FCA 1449 in which His Honour commented at [35] that “the availability of superannuation benefits may have induced the [veteran] to retire in 2000, but such availability did not prevent him from performing work in 2004”. While the availability of a pension may have been a factor which influenced Mr Couch’s decision not to actively seek work, it did not prevent him from undertaking that work.
49. Having carefully considered any factor apart from his war–caused incapacity that might prevent Mr Couch from continuing to undertake relevant remunerative work throughout the assessment period, we are satisfied that none, either separately or in combination, play a role in Mr Couch being prevented from continuing to undertake that work. We conclude that Mr Couch is now prevented by reason of his war–caused incapacities alone from undertaking relevant remunerative work.
Is Mr Couch suffering a loss of salary, wages or earnings?
50. The fourth step in Flentjar — the so-called “loss test’ — requires that Mr Couch, by reason of being prevented from continuing to undertake relevant remunerative work, is suffering a loss of salary, wages or earnings on his own account that he would not be suffering were it not for his war-caused incapacity. By the operation of s 24(2)(a) Mr Couch shall not be taken to be suffering a loss of remuneration by reason of his incapacity if he:
• has ceased to engage in remunerative work for reasons other than his relevant war-caused incapacity; or
• is incapacitated or prevented from engaging in remunerative work for some other reason.
(i) Ceasing to engage in remunerative work
51. The Commission contends that Mr Couch cannot satisfy s 24(2)(a)(i) as he ceased work because Wildwater Adventures ceased operations.
52. To answer this question, it is first necessary to determine when Mr Couch ceased remunerative work. The Commission contends it was on 9 April 2008 — Mr Couch’s last day of employment with Wildwater Adventures. Mr Couch, on the other hand, contends that it was sometime in December 2006 when he left Dorrigo for Tasmania. As noted, we rejected the submission put for Mr Couch that the work he undertook in Tasmania does not constitute remunerative work. For the reasons that follow, we also reject his alternative submission that the work with Wildwater Adventures on his return to Dorrigo in October 2007 did not constitute remunerative work.
53. It was contended for Mr Couch that the work he undertook on his return from Tasmania was at best sporadic and occasional and not “substantial”, and on that basis did not qualify as “remunerative work” within the meaning of s 24(1)(c) of the Act. Starcevich v Repatriation Commission (1987) 18 FCR 221 and Sheehy v Repatriation Commission (1996) 66 FCR 569 were cited in support of this proposition.
54. We disagree. There is no evidence that there was any material change in either the amount or type of work undertaken by Mr Couch on his return from Tasmania. Centrelink records tendered by the Commission reveal that he worked about 30 days throughout the period 12 October 2007 to 9 April 2008. This estimate is based on Mr Couch’s claim that towards the end of his time with Wildwater Adventures he was paid about $100/$140, respectively, for one and two day trips. Mr Couch did not specify the amount of work he undertook with Wildwater Adventures in the 12 years before leaving for Tasmania, but the flavour of his evidence, read together with the histories recorded in the medical reports before us, indicates that it was occasional and fluctuated according to the seasons and customer demand.
55. Had Mr Couch worked full-time before moving to Tasmania and then only a couple of days on his return, his argument that the latter did not constitute “substantial remunerative work” would have been more powerful. However, the evidence reveals that there was no material change in either the type or amount of work undertaken upon his return from Tasmania. Rather, the pattern of work he had been undertaking over a number of years continued. For these reasons, we are of the opinion that the post-Tasmania work constitutes remunerative work within the meaning of s 24(1)(c). It follows that Mr Couch ceased to engage in remunerative work on 9 April 2008.
56. We must now decide whether Mr Couch ceased to engage in remunerative work for reasons other than his war-caused incapacity. The Commission contends that there is a simple answer to this question — Mr Couch ceased work because Wildwater Adventures went out of business.
57. In a statement prepared for these proceedings, Mr Couch claimed he resigned from Wildwater Adventures in May 2008 because he found the work increasingly difficult because of his bad back and psychiatric conditions. A number of contemporary records support that claim. In an employment questionnaire completed in July 2008 at the request of the Department of Veterans’ Affairs, Mr Couch stated that he stopped work in May 2008 on account of his health. He was not cross-examined on this document. His former employer, Mr A Kelly, made a consistent claim in August 2008 — “the main reason for the termination of [Mr Couch’s] employment” was his inability to cope with the heavy physical work involved with the job — setting up camp, loading vehicles, heavy lifting (see Department of Veteran Affairs questionnaire completed by Mr A Kelly, 15 August 2008). Mr Couch’s GP, in a similar vein, in July 2008, certified that he left the white water-rafting business because of back pain associated with heavy lifting (Centrelink, Work Ability report, 21 July 2008). Ms Street’s report completed around this time is also consistent with Mr Couch’s claim.
58. In support of the contention that Mr Couch ceased work because Wildwater Adventures had closed down, the Commission points to the history recorded by Dr Chase of Mr Couch working for a couple of days with Wildwater Adventures on his return from Tasmania and the business then shutting down. Dr Lewin also refers to Mr Couch continuing with Wildwater “until the business closed down”. In addition, the Commission seeks to rely upon verbal advice given by Mr Kelly to its representative in these proceedings, Ms Wormall, to the effect that the business closed down around Easter 2008.
59. It was open to the Commission to call Mr Kelly to give evidence and/or summons his business records. It is unclear why it chose not to do so, given that these proceedings have been on foot for almost 12 months. His recent claim contradicts what he told the Department eighteen months earlier. While the rules of evidence do not apply in proceedings before the AAT, nonetheless any material taken into account must nonetheless be of probative value. The rules of procedural fairness are also of critical importance, especially where a matter goes to a critical issue in dispute. Given that the account of the conversation with Mr Kelly contradicts other material before us, and no explanation has been provided which might shed light on the reason for this apparent discrepancy, in our view it would not only be unsafe to place any reliance on that account but, given that Mr Kelly’s latest, possibly mistaken, account has not been tested and that he has not been made available for testing on this point, it would be unfairly prejudicial to Mr Couch to do so. For these reasons, we place no reliance on the evidence given from the Bar table.
60. At various points in his oral testimony, Mr Couch appeared to contradict the claim he made in 2008 that he left Wildwater Adventures on account of poor health. In answer to a question from the Tribunal he said he only realised that the business had closed “some months” after his last day of work, and then only after he had made his own enquiries. He said he might have been prepared to do the occasional day had he been asked. He made no mention of a bad back.
61. That evidence is difficult to reconcile with the contemporary records we have referred to above. Mr Couch readily conceded that dates and details are not his strong point. It was apparent from Mr Couch’s oral evidence that he was confused about some key events in his employment history and had no independent recollection of them. For example, in his statement prepared for these proceedings and oral evidence-in-chief, he claimed that he left for Tasmania in mid-2008. He appeared genuinely surprised when in cross-examination he was taken to records which revealed that that recollection of events was out by 18 months. This is not to suggest that Mr Couch was an untruthful witness; indeed, in our view, he appeared to endeavour to give truthful answers to the questions put. It may be that Mr Couch’s psychiatric conditions, long history of alcohol abuse and solitary existence or some other factor contributed to his faulty recollection. Whatever the cause, we have taken the approach that where there is a conflict between Mr Couch’s evidence and the contemporary records, unless the former is independently corroborated, the latter will be preferred.
62. The contemporary records reveal that Mr Couch left Wildwater Adventures on account of his war-caused conditions. There is no reliable evidence to indicate otherwise. In our view the evidence does not support a finding that Mr Couch ceased to engage in remunerative work for reasons other than his relevant war-caused incapacity.
(ii) Incapacitated or prevented from engaging in remunerative work for some other reason
63. The final issue to be determined is whether Mr Couch is incapacitated or prevented from engaging in remunerative work for some other reason.
64. Consistent with the comments of Federal Court in Sheehy at 574 we take the term “remunerative work” in the context s 24(2)(a)(ii) to mean the remunerative work Mr Couch was undertaking. Adopting that meaning, we find that Mr Couch is not “incapacitated or prevented from engaging in remunerative work for some other reason” for the reasons given at [45] – [49] above.
65. Summary We find that Mr Couch is suffering a loss of salary, wages or earnings on his own account, that he would not be suffering if he were free of his war-caused incapacity.
66. It follows that Mr Couch meets the eligibility criteria for a grant of pension at the special rate, as set out in s 24 of the Act.
Decision
67. For the above reasons, the decision under review is set aside, and in place of that decision we determine that Mr Couch is eligible for pension at the special rate payable pursuant to s 24 of the Act with effect from and including 6 June 2008.
I certify that the 67 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton and Dr M E C Thorpe, Member.
Signed: ..................................[SGD]............................................
AssociateDate of Hearing: 9 March 2010
Date of Decision: 24 March 2010Representative for the Applicant: Mr A Latimore, NSW Legal Aid Commission
Representative for the Respondent: Ms J Warmoll, Department of Veterans’ Affairs Advocacy Section
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