Summerhill and Repatriation Commission
[2004] AATA 883
•24 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 883
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/236
VETERANS' APPEALS DIVISION )
Re MICHAEL SUMMERHILL Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date24 August 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review. .................[Sgd]..................
RG Kenny
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – special rate of pension – intermediate rate of pension – veteran prevented from undertaking remunerative work by war-caused conditions – veteran not prevented by reason of incapacity from war-caused conditions, alone, from continuing to undertake remunerative work that he was undertaking – veteran not genuinely seeking to engage in remunerative work – pension payable at 100% of the General Rate – decision affirmed
Veterans’ Entitlements Act 1986 ss 15, 22, 23, 24
Flentjar v Repatriation Commission (1997) 26 AAR 93
Leane v Repatriation Commission [2004] FCAFC 83REASONS FOR DECISION
24 August 2004 Mr RG Kenny, Member Background
1. In response to a claim lodged on 21 September 2001, in accordance with section 15 of the Veterans’ Entitlements Act 1986 (the Act), by Michael Summerhill (the applicant), a delegate of the Repatriation Commission (the respondent) determined, on 24 September 2001, that the degree of incapacity that the applicant suffered in relation to his war-caused conditions of post traumatic stress disorder and osteoarthrosis of the right knee was 100%. The respondent then determined that, in accordance with section 22 of the Act, pension was payable at 100% of the General Rate.
2. On 11 February 2003, the decision of the respondent was affirmed by the Veterans’ Review Board and, on 20 March 2003, the applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).
3. The applicant attended the hearing and was represented by Mr R Clutterbuck of Counsel. The respondent was represented by Mr J Kelly.
4. At the hearing, the following material was taken into evidence:
Exhibit 1:the “T” Documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (T1–T6);
Exhibit 2:a statement, dated 3 December 2003, by Milton Eyles, Owner / Proprietor of Harris Engine Services;
Exhibit 3:a statement (with Centrelink annexures), dated 6 November 2003, by the applicant;
Exhibit 4:a further statement, dated 27 November 2003, by the applicant;
Exhibit 5:an employment statement, dated 8 May 2003, completed by the applicant;
Exhibit 6:a medical report, dated 17 June 2003, by Dr Roger Parkington, Orthopaedic Surgeon;
Exhibit 7:a medical report, dated 5 August 2003, by Dr John Watson, Orthopaedic Surgeon;
Exhibit 8:a medical report, dated 21 July 2003, by Dr Joseph Mathew, Consultant Psychiatrist;
Exhibit 9:a medical report, dated 9 March 1998, by Dr Kevin Bleasel, Neurosurgeon;
Exhibit 10:a medical report, dated 9 March 1998, by Dr Grahame Mahony, Orthopaedic Surgeon;
Exhibit 11:an Income Support Pension Claim, dated 29 April 1998, completed by the applicant; and
Exhibit 12:an employment report, dated 29 April 1998, completed by Graeme Waggott from Ken Waggott Speed Equipment Pty Ltd.
Issues and Legislation
5. The issue raised by the applicant in this case is whether he meets the criteria for payment of an earnings-related rate of pension under section 23 or section 24 of the Act.
6. Section 23 relates to the intermediate rate of pension and, where relevant, reads:
“(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran’s incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and
(c)the veteran is, by reason of incapacity from 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 from that incapacity; and
(d) section 24 or 25 does not apply to the veteran.
(2)Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:
(a)if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or
(b)in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking—if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.
(3) For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1)(b) 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:
(i)if 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;
(ii)if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or
(iii)if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; 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.”
7. The special rate of pension is provided for in section 24 of the Act and sub-sections 24(1) and (2) read:
“(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d) section 25 does not apply to the veteran.
(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.”
8. The application for increase was made in accordance with section 15 of the Act and, on the application day of 21 September 2001, he was 59 years of age, having been born on 17 January 1942. It follows that he meets the requirements of paragraphs 23(1)(aaa) and (aab) as well as paragraphs 24(1)(aaa) and(aab) of the Act.
9. The applicant is currently in receipt of pension at 100% of the General Rate, which is calculated in accordance with section 22 of the Act, and, it was conceded by Mr Kelly that, therefore, he meets the requirements of paragraphs 23(1)(a) and 24(1)(a) of the Act. Having regard to the applicant’s incapacity associated with the conditions, referred to above, that have been accepted by the respondent as being related to his eligible war service, I am satisfied that the concession by Mr Kelly was properly made.
10. The matters that need to be determined are whether or not the applicant meets the requirements of paragraphs 23(1)(b) and (c) or paragraphs 24(1)(b) and (c) of the Act.
Applicant’s Work History
11. After being discharged from the Army in 1967, the applicant obtained employment with Waggott Engineering in Sydney where he undertook training in engine reconditioning and worked with engine modification and design until October 1977 by which time he had achieved the status of workshop foreman. In his evidence, he said he was “sacked” from that position because of his attitude and because of his inability to relate to other staff members. He also said that, while working for Waggott Engineering, he had difficulties with the son of the proprietor who was an apprentice in the business.
12. For the next three years, the applicant continued his association with engine work but in the capacity of running his own business. He said that he specialised in high performance engines, that he worked from various locations and that his business was economically viable.
13. In November 1980, the applicant was approached by Ken Waggott, brother of the proprietor of the former business where he worked, and was offered employment as the Manager of Ken Waggott Speed Equipment in Sydney. He accepted this position and was responsible for managing the operation. He said that this involved him in employment of staff, training of apprentices, purchasing of parts, writing company policy as well as being engaged in bench work on engines.
14. The applicant said he continued in that manner until he injured his back in the workplace in November 1996. He was on workers’ compensation benefits for a period of about two weeks and then he returned to work. After some six to eight weeks back at work, he re-injured his back and was again off work for some weeks after which he returned to work where he experienced a further back injury. He said he had not been in full-time remunerative work since then although he continued to receive workers’ compensation payments until September 1999, when he received a lump sum payment of $190,000 as a result of a settlement of his common law claim in relation to his back injury.
15. The applicant said that, while he had been working for Ken Waggott Speed Equipment over the period of 17 years, it had been a very successful business and that he had no problems with the staff. He said that, after he injured his back, this changed and the business closed down in June 1997.
16. In relation to his living arrangements, the applicant said that he and his wife sold their Sydney home in 1997 or 1998 and moved to Gloucester in New South Wales to an acreage site which he had purchased in 1995. On first moving to Gloucester, they lived in temporary accommodation in a cabin. He said that, initially, he had seen this as a weekender but they then built a house there. He described it as a “hobby farm” where he kept cattle and poultry. The applicant said that he and his wife had been having relationship difficulties during that time and he said these worsened after the house at Gloucester had been constructed. The applicant said that he and his wife had separated in May 2002 and that their divorce became absolute on 15 July 2004. He said that he had since re-partnered and was now living in a de facto relationship at Arundel on Queensland’s Gold Coast on a property that he purchased in October 2002.
17. In April 1998, the applicant lodged a claim with the Department of Veterans’ Affairs for a service pension on the basis of his invalidity and, in his evidence, he conceded that this was because of the effects of the back injury that he received in 1997. He said he continued to receive the service pension for some time while he lived at Gloucester but that the receipt by him of his lump-sum compensation payment meant that he was no longer eligible to receive the income support payments. In May 2001, the applicant’s service pension was cancelled on the basis of the level of his assets due, in large part, to his receipt of the compensation lump sum.
18. The applicant said that, by early 2001, he felt physically well and began looking for part-time employment prospects in the Gloucester area. He said he found that no-one wanted to take on part-time employees and that no-one wanted to take on employees in his age range. He said he decided to attempt to find work in Sydney and contacted persons he had known previously in the engine reconditioning industry. In particular, he spoke to Milton Eyles, the proprietor of Harris Engine Services and was engaged on a trial basis. He said that, during that period of work, he lived in Sydney with his son. He said he explained to Mr Eyles that he had problems with his back and that he suffered from post traumatic stress disorder. He said there was no agreement as to what his rate of payment would be and it was decided that he would receive his travelling and living expenses with any remuneration to be determined at the end of the trial period. He said he lasted for two weeks.
19. The applicant said that, while working at Harris Engine Services, he became angry with customers. He said that this was followed by a reduction in his hours by Mr Eyles from 30 hours per week to 24 hours per week. He said that, when a further reduction was suggested, he told Mr Eyles to “shove it” and left. He said that he declined any remuneration for his work. He said that he then made an approach to Dennis Motors in Sydney where, again, he was employed on a trial basis but, again, was sacked because of his anger. He said that, thereafter, he began to realise that the problem was in himself rather than in the workforce.
20. The applicant said he registered for work with the Centrelink office in Gloucester on 24 September 2001. He said that, although he went to that office from time to time to see what work was available, he received no leads and obtained no employment. In his evidence, he agreed that he had made his attempts for employment with Harris Engine Services and Dennis Motors prior to registering for work with Centrelink. The applicant also said that he had made other attempts in 2001 to get employment with various engine reconditioning businesses but was unsuccessful and he said that this occurred because he told them about his back problems. Also, he said that, at that time, there had been a down-turn in the engine reconditioning industry.
21. The applicant said he had moved to the Gold Coast because he had previously owned a unit there and liked the area. He said he had not attempted to obtain any employment since moving to the Gold Coast because he was concerned that the same result would occur as happened at the engine reconditioning businesses in Sydney.
22. In his evidence, the applicant said he experienced difficulty, not only with his back, but with his knees and that the state of his left knee was worse than that of his right knee.
Milton Eyles
23. In his evidence, Mr Eyles said that he was the proprietor of Harris Engine Services and that, when he was approached by the applicant, he decided to give him a month’s trial because, based on his reputation in the industry, he would have been an asset to his firm. He said there was no agreement reached as to what his rate of payment would be and that this would be settled at the end of the trial period which he had expected to run for a month. He said he was aware of the applicant’s back problems and his psychiatric condition and said he was shown a report from a medical practitioner who said he would be able to work for 20 hours per week. He said he could not remember the precise terms of the report or who wrote it. He said he started the applicant on 30 hours per week but said it became clear that he was difficult to get along with. He said he was critical of customers and was argumentative. He decided to reduce his working hours to 24 hours per week. He said there was no real point in reducing his hours further because he could more easily have done the work himself. He said it became a self-defeating function to have an angry person, especially, dealing with customers at the front counter. He said he paid him some expenses during his period there but the applicant left in a state of anger and received no further monies.
Dr Roger Parkington, Orthopaedic Surgeon
24. Dr Parkington saw the applicant on 17 June 2003 and prepared a report on the same day. He also gave evidence. He said that the applicant suffered from severe osteoarthritis of the left knee and extensive degenerative disease of the lumbar spine. He said the applicant had advised him that his back problem had brought his employment to an end in 1996. Dr Parkington gave the opinion that the applicant’s orthopaedic conditions would contribute to his inability to engage in remunerative employment but that these would not be totally responsible for that. He said they would not be sufficient to stop him from working in his previous type of employment as an engine reconditioner for periods of up to eight hours a week but he said he would have difficulty in working beyond that or in doing 20 hours per week. He said his work capacity would depend upon his being able to engage in work which did not involve him in bending or lifting.
Dr John Watson, Orthopaedic Surgeon
25. Dr Watson saw the applicant on 28 July 2003 and completed a report on 5 August 2003. He also gave evidence. In his report, Dr Watson recorded that the applicant had not worked since 1997 because of his back problems. He said the applicant described “severe” back pain and pain in both of his knees. Dr Watson described lumbar degenerative spondylitis and degenerative changes in the knees. He said the applicant’s orthopaedic conditions would present difficulty for him with heavy manual employment but he said he would be able to undertake a normal work day if he were able to vary his position from sitting and standing for longer periods.
Dr Graham Altman, Psychiatrist
26. Dr Altman is the applicant’s treating psychiatrist. He gave evidence and prepared reports dated 22 April 1999, 8 November 2000 and 9 January 2002.
27. In the first of those reports, he gave an account of why the applicant stopped work in 1997. He wrote:
“…he worked for the last company for approximately sixteen years. He has not worked since then. He stated that he stopped work ‘because I re-injured my war-related back injury. I fell down some steps. My back and my knees (also war-related) are stopping me from going back to work’. However, he stated that he expressed other problems at work – ‘I was demanding. I was standing over people demanding that things get done perfectly and I was getting that way with the customers and at home I was the same way. I was very tense. Sometimes I felt like breaking their necks. I couldn’t stand customers most of the time. With the average bloke that came in I was very short and told them what they had to do and with no compromise. Customer relations were going down hill badly. I knew I had to do something (to improve things) but I wasn’t sure what. I would have got to the stage where I couldn’t have worked with the stress and I would have had to give up work’.”
28. Dr Altman said that he had been treating the applicant since January 1999 and said that his post traumatic stress disorder was of such a level of severity that it would prevent him from working for eight hours a week. He said that he would, most times, not be able to work at all, although, on some occasions, he may be able to carry out some work-related tasks. He reiterated that the applicant had stopped work because of his back injury and noted a statement by the applicant that he would have had to stop working, in any event, because of his post traumatic stress disorder.
29. Dr Altman said that the applicant had attended a clinic to stabilise his psychiatric state early in 2001 for a period of about eleven weeks. He said that this had a beneficial effect upon him but that he was, nevertheless, not really well enough to return to work at that stage.
Dr Joseph Mathew, Psychiatrist
30. Dr Mathew interviewed the applicant on 21 July 2003 and produced a report on the same date. He also gave evidence. In his report, he wrote:
“The claimant’s Post Traumatic Stress Disorder has had an adverse affect on his ability to work for some time. Prior to his stopping work, he had been irritable with both customers and staff. In his report dated 06/04/03, Dr Leonard Lee reported that in about 1990 ‘he was so angry with a disruptive employee that he hit him in the head’. It would seem that this irritability continued. His injury to his back seemed to have been a catalyst that led to his final cessation of work in November 1996. He has since attempted to return to work (last in 2001 for several weeks) but his irritability resulted in his employer asking him to leave. His incapacity is permanent and is [sic] prognosis is guarded given the chronicity of his symptoms despite ongoing treatment with psychotherapy, group treatment and medications. I note that he did report considerable improvement in his previous depressive mood with treatment with Paroxetine (antidepressant).”
31. Also, in that report, Dr Mathew wrote:
“He described a back injury in 1996 after falling down stairs at work. At the time, this had resulted in some restrictions in his work. He said that he still suffered occasional pain but it was ‘not severe’ and that he could ‘usually work through it’.”
32. In his oral evidence, Dr Mathew said the applicant was not capable of working eight hours a week because of his psychiatric condition.
Consideration
33. Psychiatric evidence provided by Dr Altman and Dr Mathew is that the applicant’s post traumatic stress disorder is of sufficient extent to incapacitate him from employment and I am satisfied that he is not able, because of his post traumatic stress disorder, to undertake remunerative work for periods aggregating more than eight hours per week. This was conceded by Mr Kelly. It follows that the applicant meets the requirements of paragraph 24(1)(b) of the Act in relation to the special rate of pension. I am also satisfied that he meets the requirements of paragraph 23(1)(b) of the Act in respect of the intermediate rate of pension.
34. The focus of paragraphs 24(1)(c) and 23(1)(c) of the Act is the reason for the applicant no longer being engaged in remunerative work. For the purposes of the former provision, the Federal Court in Flentjar v Repatriation Commission (1997) 26 AAR 93 said that a proper consideration of it requires responses to the following questions:
“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?”
35. In this case, the relevant remunerative work that the applicant was undertaking was in respect of engine reconditioning and the evidence of Dr Altman and Dr Mathew is to the effect that he is prevented from continuing to undertake that work because of his post traumatic stress disorder. While this means that the second of those questions from Flentjar’s case is answered in the affirmative, I am satisfied that that is not the case in respect of the third question.
36. The applicant ceased work in 1997 for reasons unassociated with his psychiatric state. The evidence of both Dr Altman and Dr Mathew reflected information provided to them by the applicant that there was some input to his cessation of employment at that time from his post traumatic stress disorder. Dr Mathew made reference to some incident of violence in 1990 and Dr Altman recorded that the applicant believed that he had reached the stage where he was having trouble with customers and would not have been able to continue in his employment. That was not the evidence of the applicant at the hearing. He said that he had full responsibility for running the business, that it was “very successful” and that he had made “lots of money” for the owner. There was no suggestion that there was any concern expressed by anybody about his inter-relationship with either staff or customers. Indeed, in his evidence, he said he had no problems with the staff. The evidence is that the applicant ceased employment because of his back problem. Further, in the event that there had been some resolution of that problem, he was unable to return to that remunerative work because the business closed down. It was no longer available as an option for him to return to that employment.
37. At the commencement of the assessment period on 21 September 2001, I am satisfied that there was a continuing role played by the applicant’s lumbar condition to his being out of remunerative work. By then, he had experienced his brief association with Milton Eyles at Harris Engine Services. Mr Eyles’ evidence was that he terminated his employment because of outbursts of criticism by the applicant and his anger. However, apart from incidental expenses, the applicant received no remuneration for that work. There was another trial period of employment by the applicant with another Sydney reconditioning firm but there is no evidence from the employer as to the remuneration arrangements or the reason for leaving. The evidence is not consistent as to when that was. The applicant said in his evidence that it was after the experience at Harris Engine Services and prior to registering with Centrelink on 24 September 2001. According to Mr Eyles, the applicant approached him for work in mid-September 2001. Dr Altman recorded the second period of employment as being in October 2001.
38. By the commencement of the assessment period, the applicant had not worked from some four years and, during that time, had moved from Sydney to Gloucester and it was the applicant’s evidence that there was little employment available in that area which is approximately 300 kilometres north of Sydney. At his Gloucester property, the applicant was engaged in building a house and he advised Dr Leonard Lee, Psychiatrist, in 2000, that he was looking after cattle and improving his property. Dr Lee, in his report dated 5 April 2000, said that he saw the applicant on 4 April 2000 and recorded that the applicant had advised him that he continued to have pain in his back and his knees at that time and that he was, at that time, unable to work because of pain.
39. The applicant was seen by Dr D Lewis-Enright, Occupational Medicine Physician, on 20 December 2001 and a report was prepared by him on 15 February 2002. In that report, the applicant was described as having only 50% of the normal range of movement in his thoraco-lumbar spine and as displaying significant crepitus in both of his knees. While, in that report, Dr Lewis-Enright concluded that the applicant’s main problem was his post traumatic stress disorder, he concluded that, nevertheless, his back and knee conditions would prevent him from working more than 20 hours per week. This means that there was a significant input to work incapacity from those orthopaedic conditions.
40. The applicant was also seen by Occupational Physician, Dr Martha Baz, on 27 April 2000 and Dr Baz provided a report dated 3 May 2000 in respect of his situation. Dr Baz recorded that the applicant advised he had been unable to obtain work after 1997 because of his back and his knees and also because he was experiencing increasing difficulties with post traumatic stress disorder and associated irritability with customers. Dr Baz also described a half-normal range of movement in the thoraco-lumbar spine. In conclusion, Dr Baz wrote that the applicant was not fit for full-time work at that time because of a combination of post traumatic stress disorder, low back condition and bilateral knee osteoarthritis.
41. The applicant was also seen by Occupational Physician, Dr Mark Burns, on 14 June 2000 and in evidence was a report by him, dated 15 June 2000. Dr Burns concluded that it was a combination of the applicant’s accepted and non-accepted disabilities which prevented him from continuing to work.
42. The implication of the applicant’s non-accepted orthopaedic conditions as being relevant to his status of being no longer engaged in remunerative work is consistent with the evidence of Dr Parkington as noted above. In assessing the reasons for his no longer being engaged in remunerative work as at the commencement of the assessment period and thereafter, the medical evidence in relation to his orthopaedic condition cannot be ignored. In that situation, it cannot be said that it was only his war-caused disabilities which had been responsible for his no longer being engaged in remunerative work. His lumbar spondylosis was rejected by the respondent as being a service-related disability and his osteoarthritis of the left knee is not a service-related disability. Significantly, the applicant described this as being more severe in its effect upon him than the right knee condition which has been accepted as being service-related.
43. In that regard, I do not accept the evidence of Dr Altman that the applicant’s non-accepted orthopaedic conditions would have no role to play in his inability to work. I am mindful that, in taking a history from the applicant, Dr Altman was led to believe that it was the applicant’s psychiatric condition which had a role to play in his cessation of employment in 1997. As noted above, I am satisfied that that was not the case.
44. I am satisfied that, as at the commencement of the assessment period, and thereafter, those orthopaedic conditions, the applicant’s period of absence from the workforce on a remunerated basis and his decision to remove himself from the metropolitan base where he carried out his remunerative work to the area of Gloucester all had a role to play as factors preventing him from continuing to undertake remunerative work of the kind that he had been involved in. In that situation, I am satisfied that the applicant does not meet the “alone” test as it appears in paragraphs 24(1)(c) or 23(1)(c) of the Act.
45. The operation of those respective provisions is ameliorated by the terms of sub-sections 23(3) and 24(2) of the Act which are identical in their terms. Sub-section 24(2) reads:
“(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.”
46. In this case, the applicant is under the age of 65 years and regard must be had to paragraph (b) as set out above. It will be sufficient, to satisfy the terms of paragraph 23(1)(c) or 24(1)(c) of the Act, if his service-related disabilities are the substantial cause of his inability to obtain remunerative work. A pre-condition to the application of those ameliorating provisions is that the applicant must have been genuinely seeking to engage in remunerative work. In Leane v Repatriation Commission [2004] FCAFC 83, the Full Federal Court referred to this requirement in the following way:
“The primary judge interpreted the word ‘seeking’ to mean ‘attempting to’ or ‘trying to’. This may be accepted. Such a meaning involves something more than a mere wish or hope. It requires that a claimant ‘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.”
47. I am not satisfied that the applicant genuinely sought to re-engage in remunerative work. He had made a claim for service pension on the basis that he was unable to work because of his back condition and he had received a significant lump sum payment in respect of that condition. He had, effectively, retired to the Gloucester area. He was receiving psychiatric treatment from Dr Altman who, even in his earlier report of 29 April 1999, assessed the applicant as not being able to work because of his post traumatic stress disorder. The association that the applicant had with Harris Engine Services was referred to as having occurred in mid-September 2001. The applicant completed his claim form on 18 September 2001. It was the applicant’s evidence that there was a subsequent attempt to return to remunerative work with Dennis Motors. This must have been after he lodged his application for increase and that is consistent with what he told Dr Altman, that it occurred in October 2001. There, Dr Altman wrote in his report of 9 January 2002:
“He then had another attempt at work – in October 2001 – in a similar type of job. He had problems there too – ‘it was a month’s trial but I lasted one week – same reason’. He stated that ‘he (his boss) asked me to leave’.”
48. In his application for increase, the applicant said he was unable to cope because of his post traumatic stress disorder. Despite that, he listed himself with Centrelink on 24 September 2001 which was the same date as the initial determination of his claim by the respondent. I do not accept his evidence that he was genuinely seeking employment during that period. On that basis, the ameliorating provisions are not applicable to him.
49. Even if it were the case that the applicant’s approaches to Centrelink and/or employers in the engine reconditioning industry could be described as genuine, the evidence before the Tribunal in respect of the reason for being unsuccessful came from Mr Eyles who said that it was because of his anger and inability to cope with customers. Given that Mr Eyles said that he was aware that the applicant suffered from post traumatic stress disorder and that he engaged the applicant purely because of his reputation as an engine reconditioner and engine modifier and because he was held in the highest regard throughout the industry for those qualifications, it is difficult to see why he could not be quarantined into that form of work where he had no role to play except for the use of the skills for which he was acclaimed. The evidence of the applicant in respect of other rejections for work was that the employers which he approached were not interested in taking on someone on a part-time basis or anyone who was the applicant’s age. In that situation, I am satisfied that the accepted disabilities of the applicant cannot be considered to be the substantial cause for his failure to obtain remunerative work at any time during the assessment period.
Decision
50. There were no submissions made in respect of the general rate of pension and I am satisfied that it should continue to be paid to the applicant at 100% of the General Rate. However, I am satisfied that neither the intermediate nor the special rate of pension, under sections 23 and 24 of the Act, respectively, are payable to the applicant.
51. The Tribunal affirms the decision under review.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: S Oliver
Associate
Dates of Hearing 27 and 28 July 2004
Date of Decision 24 August 2004
Counsel for the Applicant Mr R Clutterbuck
Solicitor for the Applicant Streeting Haney
For the Respondent Mr J Kelly, Departmental Advocate
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