Thatcher and Repatriation Commission
[2004] AATA 519
•21 May 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 519
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2003/151
VETERAN'S APPEALS DIVISION ) Re ALAN THATCHER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date21 May 2004
PlaceAdelaide
Decision
The Tribunal sets aside the decision under review and in substitution therefor determines that the applicant is eligible for a pension at the special rate payable pursuant to s 24 of the Veterans’ Entitlements Act 1986 with effect from and including 14 October 2001.
D G Jarvis
(Signed)Deputy President
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. S2003/151
VETERANS’ APPEALS DIVISION )
Re: ALAN THATCHER
Applicant
And: REPATRIATION COMMISSION
Respondent
CORRIGENDUM TO DECISION [2004] AATA 519
TribunalDeputy President Jarvis
Date of Decision 21 May 2004
Date of Corrigendum 28 May 2004
PlaceAdelaide
Corrigendum:
That the date ’14 October 2001’ appearing in the decision of the Tribunal and in paragraph 49 in the statement of reasons for decision be deleted and ’26 February 2002.’ be inserted in its place.
D G Jarvis
(Signed)Deputy President
CATCHWORDS
VETERANS’ ENTITLEMENTS – disability pension – rate of pension payable – special rate – type of remunerative work that the applicant had previously undertaken – applicant prevented from continuing to undertake remunerative work for war-caused reasons alone – work at crash repairer constituted remunerative work – applicant entitled to special rate.
Veterans’ Entitlements Act 1986 s 24(1)(c) and s 24(2)(b)
Flentjar v Repatriation Commission (1987) 48 ALD 1
Repatriation Commission v Smith (1987) 15 FCR 327
Banovich v Repatriation Commission (1986) 69 ALR 395
Doig v Repatriation Commission, Federal Court, 18 December 1996, 1106/96
Starcevich v Repatriation Commission (1987) 18 FCR 221
Re Forrester and Repatriation Commission (AAT 12510, 22 December 1997)
Re Hetherington and Repatriation Commission [2002] AATA 880
Cavell v Repatriation Commission (1988) 9 AAR 534
Forbes v Repatriation Commission (2000) 101 FCR 50
Repatriation Commission v Hendy [2002] 76 ALD 47
Repatriation Commission v Van Heteren (2003) 75 ALD 703
REASONS FOR DECISION
21 May 2004 Deputy President D G Jarvis Introduction
1. The applicant, Alan Harvey Thatcher, is a Vietnam veteran. He currently suffers from the accepted disabilities of post traumatic stress disorder (“PTSD”), alcohol dependence, bilateral sensorineural hearing loss, bilateral tinnitus and tinea. He has previously suffered from non-war caused cervical spondylosis, but there is no evidence before me that this condition had any impact upon his capacity to work during the relevant period.
2. On 14 January 2002 the applicant lodged a claim with the respondent for a disability pension. A delegate of the Repatriation Commission decided on 24 April 2002 that the accepted conditions outlined in paragraph 1 above entitled the applicant to 100% of the general rate of disability pension in accordance with s 22 of the Veterans’ Entitlements Act 1986 (“VE Act”), but the applicant was not entitled to a pension at the special rate under s 24. This decision was affirmed on review by the Veterans’ Review Board (“VRB”) in a reviewable decision dated 2 April 2003. The applicant has applied to this Tribunal for review of the delegate’s decision as affirmed by the VRB.
3. At the hearing before me, the applicant was represented by Mr C Swan, solicitor, and the respondent was represented by Mr A Crowe, an advocate employed by the respondent. The applicant and Mr Brian Nash, his former employer, gave oral evidence to the Tribunal. The applicant also tendered the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the “T Documents”), and each party tendered various other documents. No oral evidence was called by the respondent.
4. On 7 March 2004 the Tribunal wrote to the parties inviting them to comment on whether s 24(2)(b) has any application in this matter. The Tribunal received a written response from the respondent on 15 April 2004 and from the applicant on 23 April 2004. I have taken those submissions into account, but due to my findings on s 24(1)(c) a determination concerning s 24(2)(b) is unnecessary.
Issues for Determination
5. The applicant’s entitlement to the special rate of pension is to be determined under s 24 of the VE Act. It was common ground that the applicant satisfies the first criterion under s 24 (namely, a determination of entitlement to a pension at a rate higher than 70% of the general rate), and the second criterion (namely, an incapacity from war-caused conditions of such a nature as, of themselves alone, to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week). These criteria are contained in s 24(1)(a)(i) and s 24(1)(b) respectively of the VE Act.
6. The issue before the Tribunal is whether the applicant satisfies s 24(1)(c) of the VE Act, that is:
· whether he is, by reason of incapacity from his war-cased injuries alone, prevented from continuing to undertake remunerative work that he had been undertaking; and
· whether in consequence he is suffering a loss of wages or earnings on his own account which he would not be suffering if he were free of that incapacity.
7. I have reached the conclusion that the applicant has satisfied the requirements of s 24(1)(c) of the VE Act and so is entitled to a pension at the special rate with effect from 14 October 2001, for the reasons set out below.
Legislation
8.Section 24(1)(c) and s 24(2)(a) of the VE Act provide as follows:
“24(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; and
…
(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; …”
If s 24(1) of the VE Act applies to the applicant, he will be entitled to a pension at the special rate provided for in s 24(4).
Section 24(2)(b) provides as follows:
“(2) For the purpose of paragraph (1)(c):
…
(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.”
Background and Evidence
9. I found the evidence of the applicant to be somewhat confused, but I also found him to be a frank and cooperative witness who was willing to concede that he had not always been the most accurate historian of his own work history. I accept the evidence of the applicant and also that of Mr Nash and make the following findings from their evidence and from the information in the exhibits.
10. The applicant is aged 64 years old and was born on 18 September 1939 in Adelaide. He left school when he was 14 and joined a specialty printing business as an apprentice. He went on to complete three months’ national service at Woodside and two years in the CMF. In 1964 he joined the Army and remained in service for seven years. The applicant’s discharge from the Army in 1971 followed a period of service in Vietnam during which time he was involved in evacuating casualties and, at one point, he served as a side gunner on a helicopter. The applicant contracted tropical dermatitis and this brought his service in Vietnam to an end.
11. After he returned from Vietnam the applicant was stationed at Bandiana Camp at Wagga. He applied for a discharge because his wife was not happy living at Wagga and upon discharge, he worked for the Government Printers, then The News and subsequently, at The Advertiser. The applicant has a long history in printing, having witnessed several transitions in printing techniques and technologies, and ultimately he attained the position of Press Room Manager and Press Room Maintenance Manager at the Mile End press of The Advertiser.
12. The applicant’s duties at The Advertiser included running three new printing presses from Germany, running the presses at Mile End and at the Adelaide premises of The Advertiser, and maintaining and cleaning the presses. The German manufacturer of the presses did not show The Advertiser staff how to maintain and clean the presses and the applicant designed his own methodology in order to carry out that necessary work. He resigned in 1994 from his position following arguments with the Production Manager over the need to service the presses that were being constantly used and thus poorly maintained.
13. The applicant initially applied for and received unemployment benefits and then obtained employment from 9 September 1996 to 5 February 1997 with Advance Edging, a concrete border manufacturer that employed the applicant to lay down concrete borders by means of a machine. The applicant carried out this work with a friend, but they regularly argued, and when the work declined the applicant was no longer offered employment by that business. He then worked for P&O Cleaners for six to seven months but was unable to continue after that company lost a contract to clean supermarkets. While employed with P&O, the applicant swept and polished floors by manual means and by the use of machinery. The applicant then commenced cleaning work with Birkley Challenge but he ceased his employment because he had arguments with his supervisors over the need for the cleaning equipment to be transported by the cleaners up the stairs of the school where he worked. This dispute led to his resignation. Exhibit A4, enclosure B2, is a group certificate which records that the applicant was employed by Manpower Services during the period 9 December 1997 to 30 June 1998. He was paid $149.35 during this time. There is no evidence before the Tribunal concerning the duties he undertook in this position or when or in what circumstances that work ceased.
14. The applicant commenced employment with Ross Air on 19 March 1998 and remained employed with Hawker de Havilland after that company took over Ross Air on 14 April 1999. His work included cleaning the hanger, hanger maintenance, ordering and collecting spare parts, maintaining vehicles and towards the end of his employment, he was also required to seal hangar floors.
15. The applicant originally resided at Morphett Vale and drove to the Ross Air premises at Adelaide Airport. Eventually, the applicant and his wife purchased a house at Victor Harbor and he commuted between his place of work and residence. Initially the applicant only worked at the Adelaide Airport, but in the course of 1999, the applicant was directed to work at Adelaide Airport three days a week and at Parafield Airport, where Hawker de Havilland had a division, for the remaining two days.
16. By the middle of 1999 the applicant became angry at having to drive from Victor Harbor to the Parafield Airport. He was experiencing “road rage” on the long trip from his home, as well as profuse sweating behind the wheel, running off the road on occasions, and loss of concentration. The applicant experienced these difficulties whilst driving to and from work and also whilst driving his employer’s car during the day. The applicant stated that he believes that these were symptoms of what he now knows to be PTSD, but at the time, he was unaware that he was suffering from that condition. The transcript from the hearing before the Veterans’ Review Board (exhibit R1) records that the applicant stated that Hawker de Havilland requested that he work at Parafield Airport and also commence specialist duties, such as sealing hangar floors, for which the applicant felt he was not properly trained. This change in employment duties caused the applicant additional stress and he “couldn’t hack it” (exhibit R1, page 14). On 30 June 1999 the applicant gave notice and resigned from Hawker de Havilland.
17. The applicant then received social security payments and, when he reached the age of 60, service pension payments. In early 2001 the applicant applied for a position in night-fill at a BI-LO Supermarket but, for reasons unknown to him, he was not successful. The applicant surmised that his age could have been a reason for the rejection of his application. He did, however, succeed in gaining employment with Christies Beach Crash Repairs, a car repair business, and commenced on 21 December 2001. That position involved taking damaged car panels to the wrecker, getting spare parts repaired, sweeping, general cleaning after sanding, sorting through scratched and dented bumper bars, and cleaning the spray booths. The applicant later carried out some maintenance duties and completed construction of the detailing area and a fibreglass wall in the back room of the business. The applicant was employed for two days a week, five hours a day, at $10 per hour. Apart from the work Christmas function where he drove himself, the applicant’s wife or son drove him to and from work for each shift.
18. The applicant explained that initially his employer, Mr Nash, said that the applicant could work any hours. It was the applicant’s evidence that he hoped to expand his hours to four hours a day, five days a week even though the resulting level of income from those hours would affect his service pension. He said that he had reduced his Centrelink income previously, and would do the same with his service pension because it was his preference to work.
19. The applicant commenced his employment with Christies Beach Crash Repairs just prior to the Christmas break, and he only worked for two days in his first week of employment with Christies Beach Crash Repairs before the business shut until it re-opened on 2 January 2002. After his employer resumed normal hours, the applicant returned to work but he was voluntarily admitted to the Repatriation General Hospital from 6 January 2002 until 31 January 2002 (T15, page 77). Upon his release from the hospital, and while under the influence of several prescribed medications, the applicant attended work at Christies Beach Crash Repairs and completed several shifts up until 25 February 2002 (exhibit A4, enclosure “F11”). On that day he was found wandering around the work premises in a bewildered and disorientated state. Upon finding the applicant in such a state, Mr Nash terminated the applicant’s employment. In all, the applicant worked 45½ hours for Christies Beach Crash Repairs.
20. The applicant gave evidence that were it not for the drugs he is required to take for his war-caused PTSD he would be able to work. He said he is presently prescribed Zoloft, an anti-depressant, a night-time sedative called Imovane, and Pericyazine, a tranquilliser. He was previously prescribed Luvox but his doctor changed the prescription to Zoloft because of the side effects of Luvox.
21. In cross-examination, the applicant agreed that the claim form lodged with the respondent is incomplete and fails to accurately record his employment history or even that he was employed at the time that he lodged his claim. The applicant explained that it was completed by an advocate, Mr Smith, while the applicant was heavily medicated and in hospital. I note that T4, page 15, records that the nominated representative is a Mr Desmond Smith. The applicant further agreed in cross-examination that Dr Ewer wrote a report dated 18 March 2002 (exhibit A1, pages 47 - 53) without the benefit of the applicant’s correct and full employment history, because (he said) his most recent work had slipped his mind, even though he saw Dr Ewer only two weeks after he lost his job with Christies Beach Crash Repairs. The applicant also conceded that he had all but forgotten about his employment with Christies Beach Crash Repairs at the time of his interview with the VRB, and only remembered to refer to it when his wife reminded him.
22. The respondent’s advocate also questioned the applicant about his present work capacity and suggested that even while taking medication, the applicant may be able to work in a position that did not involve machinery or driving. The applicant replied that he would “give it a go” but admitted that the medication causes him to “walk around in a daze”.
Mr Brian Nash
23. Mr Nash gave evidence that he had hired the applicant after he was approached by the applicant’s son, whom he also employed in his crash repair business, and was asked if he had a position for the applicant. He said that the applicant was hired on a casual basis. Although Mr Nash could not precisely recall how many hours or days the applicant worked, he did confirm that exhibit A4 is a group certificate recording that the applicant received $450 from Christies Beach Crash Repairs. Mr Nash said that the applicant did not tell him about his depression or medications at the time of his appointment, but Mr Nash became aware that the applicant had a problem when it took him a very long time to complete the back room using power tools. It was then that the applicant told Mr Nash about his medication. Mr Nash described the applicant as “quite a good employee” and “fine” and even “ideal” at first, but eventually the applicant was found wandering around in the yard and “did not know what was going on”. Mr Nash decided he could not continue to employ the applicant because he was not fit to do what he had been hired for. Exhibit A2 is a signed letter from Mr Nash in which Mr Nash writes that the applicant was employed with his company “but due to his medication he was unable to perform the duties safely”. Mr Nash now employs a university student to carry out the duties for which he had previously employed the applicant.
Medical Evidence
24. The parties did not call any expert witnesses but several medical reports and records were tendered as exhibits. Those documents are as follows:
(a)a Centrelink medical certificate dated 13 August 1999 signed by Dr R M O’Dee (exhibit A1, page 44);
(b)Discharge summary of the Repatriation General Hospital for the period 6 January 2002 to 31 January 2002, signed by Dr Graham Wright (exhibit A1, pages 77 – 78);
(c)a report dated 18 March 2002 by Dr Ewer (exhibit A1, pages 47 - 53);
(d)a report dated 9 April 2002 by Dr M Jay (exhibit A1, pages 54 – 55);
(e)a report dated 11 November 2002 from Dr Graham Wright (exhibit A1, pages 73 – 76); and
(f)a report dated 11 November 2003 by Dr Michael A Reid (exhibit A3).
I have taken these various reports into account and I note that the report of Dr Ewer (referred to in paragraph (c) above), prepared following a consultation with the applicant on 15 March 2002, erroneously records that “Mr Thatcher…has not worked since the year 2000”. Dr Ewer goes on to say that:
“Mr Thatcher fulfils the DSM-IV criteria for the axis-1, psychiatric diagnosis of a Chronic Post-Traumatic Stress Disorder … He has continued to re-experience the traumatic events in the form of nightmares, intrusive recollections and flashbacks. He has demonstrated persistent avoidant behaviour over many years. He experiences emotional numbing and he feels detached from others. He has persistent symptoms of increased arousal indicated by insomnia, poor concentration, hypervigilance and an exaggerated startle reaction.”
Dr Ewer also finds that the applicant’s PTSD renders him unfit for paid employment and reports that:
“Table 4.4 occupation
A number of Mr Thatcher’s symptoms are interfering with his ability to work.
These symptoms include:
· Reduced ability to cope with stress.
· Poor memory and concentration (leading to reduced productivity).
· Lethargy and insomnia (reducing pace and perseverance).
· Irritability (leading to aggression in the workplace).
When considered together these problems render Mr Thatcher unfit for paid employment… .”
Clearly Dr Ewer did not have the benefit of the most recent work history of the applicant, and thus did not have information concerning the applicant’s acute reaction to the PTSD medication only three weeks or so before the date that the applicant consulted him. It seems likely that this information would have provided more evidence to Dr Ewer of the significant impact that his medication, and therefore indirectly his PTSD, was having on the applicant’s ability to work, but notwithstanding the absence of this information Dr Ewer assessed the applicant as unfit for paid work. It would appear that while the incomplete work history presents a less than optimal foundation on which to seek a medical opinion, the material that has been withheld from Dr Ewer would only have served to assist the applicant, and so I do not agree with the respondent’s submission that the applicant has consciously concealed this information from Dr Ewer.
25.In the report referred to in paragraph 24(f) above, Dr Reid states that:
“[The applicant] was a patient of mine from 27 October 2000 until 18 October 2002. A diagnosis of post traumatic stress disorder (PTSD) has been established by at least two treating psychiatrists. In the time that I treated Mr. Thatcher he periodically exhibited symptoms, of varying degrees, consistent with this diagnosis including, but not restricted to: generalised anxiety; hyper vigilance; exaggerated startle responses; marital dysfunction and depression. In January 2002 he had a lengthy admission to the Repatriation General Hospital for the treatment of his psychiatric condition.
…
With regard to your specific enquiry regarding Mr. Thatcher’s employment as a cleaner I confirm that in the period in question Mr. Thatcher was experiencing a particular flare-up of his symptoms which, as noted above, resulted in his admission to the psychiatric ward at Repatriation General Hospital. From my knowledge of Mr. Thatcher, his clinical presentation and his psychiatric condition I am of the opinion that for the period in question it would be unrealistic to expect Mr. Thatcher to have been able to have worked for more than twelve hours per week and that quite frequently he would have been unable to have worked at all.”
Respondent’s Submissions
26. Mr Crowe, for the respondent, submitted that the applicant’s work with Christies Beach Crash Repairs was not real or substantive remunerative work, and that his repeated failure to refer to this employment was indicative of the applicant’s belief that it was not a real or substantive position. He relied on the fact that the applicant was admitted to hospital and was therefore absent from his work at Christies Beach Crash Repairs for 25 days of the period during which he was employed by that business; namely, 20 December 2001 to 25 February 2002 (exhibit A4, enclosure “F11”). Mr Crowe also drew attention to the incomplete work history that was provided to Dr Ewer, recorded on the special rate application form and at particular points in the hearing before the Veteran’s Review Board (exhibit R1, pages 18 - 19). He argued that the applicant has varied his story in an attempt to gain the special rate of pension and, therefore, his evidence was unreliable.
27. Mr Crowe also contended that it was open to the Tribunal to find that the last work of the applicant was in fact with Hawker de Havilland, and that this came to an end in mid 1999. Further, the respondent’s argument was that although the applicant was by then apparently suffering from war-caused PTSD and thus unable to safely drive, he ceased that work predominantly for non-war caused reasons, namely the employer’s decision to require the applicant to work at both the Adelaide and Parafield Airports, and cannot satisfy s 24(1)(c) due to the deeming provisions of s 24(2)(a).
Consideration
28. In making my decision, I must have regard to the assessment period. Under the definition of that phrase in s 19(9) of the VE Act the assessment period commences on the date of the applicant’s claim and continues until the date of my decision.
29. In considering the application of s 24(1)(c) of the VE Act, I refer first to the very helpful analysis of Branson J with whom the other members of the Full Court of the Federal Court agreed in Flentjar v Repatriation Commission (1997) 48 ALD 1 at page 4.9. Her Honour said that a proper consideration of s 24(1)(c) required responses to the following four 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 account that he would not be suffering if he were free of that incapacity?”
30. A determination of the responses to these questions entails an examination of the facts relevant to each question. Under s 120(4) of the VE Act, the Tribunal must decide these issues to its reasonable satisfaction, a standard which equates with proof on the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327. Neither party has an onus of proof (s 124(6) of the VE Act), and the Tribunal must act according to substantial justice, and the substantial merits of the case, without regard to legal form and technicalities (s 19(1)(g)).
31. As regards the first question in Flentjar, the reference to “remunerative work which the veteran was undertaking” is to be read as a reference to the type of work which the veteran had previously undertaken, and not to any particular job: Banovich v Repatriation Commission (1986) 69 ALR 395. Accordingly, the loss of a particular job for reasons unrelated to the war-caused condition is immaterial to this issue: per Lindgren J in Doig v Repatriation Commission, Federal Court, 18 December 1996, 1106/96. The remunerative work does not have to be the last work undertaken by the veteran (unless the veteran is over 65 at the time of a claim or application): Starcevich v Repatriation Commission (1987) 18 FCR 221; 76 ALR 449 per Fox J. In the present matter, I find on the evidence before me that the relevant types of remunerative work that the applicant had previously undertaken were:
(a)carrying out printing press maintenance and printing press maintenance management;
(b) unskilled manual labouring work, including laying concrete borders;
(c) work as a cleaner of commercial or institutional premises;
(d) stock management, procurement and general hanger maintenance in the aircraft industry; and
(e) unskilled general handyman.
32. Having determined the type of work which the applicant had previously undertaken, I will now address the respondent’s submission that the work undertaken with Christies Beach Crash Repairs (ie work as a cleaner) was not “substantial” remunerative work. This requires an analysis of whether the remunerative work that the veteran was undertaking must be substantial in order to establish an entitlement under s 24(1)(c).
33. In Re Forrester and Repatriation Commission (AATA 12501, 22 December 1997) President Matthews J reviewed the state of the authorities addressing what constitutes remunerative work for the purposes of s 24 of the VE Act. Forrester concerned a case in which the applicant was employed as a casual cook. That position provided only limited employment opportunities, and Mr Forrester was employed only four times during the relevant period. The work was dependent upon Defence Force training camps which were decreasing in frequency. In the course of analysing the relevant case law at [24] Matthews J said:
“In Sheehy v Repatriation Commission (1986) 41 ALD 205 the question arose as to whether a veteran had undertaken “remunerative work” under section 24(1)(c) in the following circumstances. Shortly after his retirement as a fitter in 1982 the veteran obtained work as a storeman, but left after a week because the work was too heavy for him. About 10 years later he attempted a similar job, but again left after two weeks because he could not manage the heavy duties. The Full Federal Court (Wilcox, Whitlam and Lindgren JJ) found that his work as a storeman did not constitute “remunerative work undertaken by the veteran”. Their Honours made the following observations (at pp.209-210):
‘… In our opinion, the words “undertake” and “undertaking” in paragraph 24(1)(c) import the notion of “performance” or of a “successful’ or “effective” undertaking of work … .
Whether, as we think, paragraph 24(1)(c) requires that the “remunerative work the veteran was undertaking” must have been “performed” or “successfully undertaken” or “effectively undertaken”, has not been the subject of a direct decision in the two cases in which the paragraph has been considered by full courts of this court. In Banovich v Repatriation Commission (1986) 69 ALR 395; 11 ALN N142 it was held that the same expression in the predecessor provision did not refer to “the particular job” which the member had previously undertaken but referred to a “type of work” or “field of remunerative activity” (at ALR 402-3). In Starcevich v Repatriation Commission (1987) 14 ALD 160; 18 FCR 221, it was held that paragraph 24(1)(c), and in particular the word “continuing” in that paragraph, does not require that the remunerative work that the veteran is prevented from undertaking be the last remunerative work which he undertook.
The construction which we have sought to explain above is consistent with both of these decisions and certain references in Starcevich directly support it. Fox J stated that the loss sustained by the veteran had to be “real” and this indicates that his Honour had in mind remunerative work that had been successfully undertaken. Even more to the point is his Honour's reference to “substantial remunerative work … undertaken in the past” [Emphasis added]. Similarly, Jenkinson J suggested, although tentatively, that past remunerative work does not satisfy the terms of paragraph 24(1)(c) unless it continued for more than a very short period.
In Birtles v Repatriation Commission (1991) 24 ALD 545; 33 FCR 290 Hill J understood Starcevich as having excluded from consideration remunerative work which the veteran had undertaken for only a short period. His Honour identified the question to be asked as follows:
… has the veteran by reason of his war incapacity been prevented from “continuing” a type of remunerative work which he previously undertook (not being work undertaken only for a short period)? (at ALD 553; FCR 299)’
Although it is perhaps understandable that there have been references in the cases to a “short” or “very short” period of work, we would prefer to say that the “remunerative work that the veteran was undertaking” must have been “performed or successfully undertaken” or “effectively undertaken”.”
34. Having considered the above authorities, Matthews J determined that “the Court in Sheehy was concerned more with the question of whether remunerative work had been ‘undertaken’ than with exploring the question of whether the work was remunerative in the first place” (see paragraph 25). Justice Matthews then went on to discuss Fox J’s consideration of this issue in Starcevich (1987) (supra) where His Honour said at page 225:
“It seems to me that the intention of s 24(1)(c) is that the applicant must have suffered substantial loss of remuneration consequent alone upon the incapacity referred to in s 24(1)(a) and (b). The loss must be real, in the sense that the applicant cannot rely upon any remunerative work that he has undertaken in the past, but it would be unnecessarily restrictive to assess the loss by reference only to the last remunerative work undertaken before the applicant’s inability to work became complete. In my opinion, a veteran’s entitlement to a pension under s 24 may be based on his being prevented from continuing to undertake substantial remunerative work that he has undertaken in the past, even if that work was followed by work of a different type before the veteran ceased work altogether”.
Justice Matthews concluded, at [27], that:
“there is no explicit requirement in s 24(1)(c) that remunerative work must be “substantial” in order to attract entitlement under the section, so I do not propose to treat this as determinative of the issue. However, it is a powerful consideration.”
On the facts of that case, Matthews J found that the type of work engaged in by Mr Forrester was, by its very nature, occasional work with little return and no future. Accordingly, Her Honour decided that the work was not remunerative work.
35. The reasoning of Matthews J was applied by the Tribunal in the decision of Re Hetherington and Repatriation Commission [2002] AATA 850. In Hetherington, the Tribunal also analysed and recounted the case law at [29] in the following way:
“In Gauntlet v Repatriation Commission (1991) 32 FLR 73, Pincus J, in referring to Starcevich, made the following comments:
‘The word “substantial” is used in the judgment of Fox J and it is not clear to me that Jenkinson J, who agreed generally with his Honour’s reasons, is to be taken as accepting that qualification. The better view appears to be that the extent to which the section should be read down so as to exclude from its scope insubstantial or trivial losses, in order to avoid absurdity, is still an open one, and it is unnecessary to determine it in this case. I feel obliged to add, however, that this is not the first time in which the respondent Commission has implied in argument that provisions of this sort could not possibly have been intended to produce such anomalies as, literally read, seem to follow from them; but it is the constitutional function of Parliament, and not that of the judges, to correct any anomalies thought to arise from applying the plain language of legislation.’”
36. In Hetherington the applicant sought review of a decision under s 24(1)(c) in circumstances in which he had been employed for seven to eight hours per week and had gross average earnings not exceeding $50.00 per week. The Tribunal distinguished the position of Mr Hetherington from that of the applicant in Forrester (above) and said, commencing at [45] that:
“Applying Matthews J’s reasoning … to the circumstances of this case, it cannot be said that Mr Hetherington was unable to “perform or successfully undertake” the work of a delivery driver for DJ Meats. In Her Honour’s view, the Court in Sheehy was concerned more with the question of remunerative work being “undertaken” than with exploring the question of whether the work was remunerative in the first place.
…
48. The Tribunal considers the reasoning in [Guantlet and Forrester] is the appropriate approach to adopt in this application – subject to the following qualification identified by Matthews J in Forrester: that is, whether the type of work undertaken by Mr Hetherington with DJ Meats could be described as “remunerative work” so as to ground an entitlement under s 24(1)(c). Her Honour considered this question of casual work not only in terms of the amount of income return, but also in terms of the future uncertainty for casual or occasional work, stating (at Forrester paras 28, 29):
‘The answer will no doubt depend in each case upon the nature of the work and the prospects which it holds for further remunerative employment. … Was it the type of work which held no particular promise of future employment? Did the work simply “dry up” in the normal course of events, or was it the applicant’s anxiety state [an accepted service disability] which prevented him from continuing it? The answers to these questions are relevant not only to whether it was ‘remunerative work’ under s 24(1)(c), but also to whether it ceased for reasons other than his war-caused incapacities under s 24(2)(a)(i).”
37. In the present matter, the respondent contends that the last work of the applicant, namely employment with Christies Beach Crash Repairs, was too brief and brought the applicant too little income to amount to substantial remunerative work. This is the same argument that was put to the Tribunal in Hetherington and Forrester (above). Having regard to the observations of Matthews J (see paragraphs 33 and 34 above) and the Tribunal in Hetherington (see paragraphs 35 and 36 above), I find that the applicant’s work with Christies Beach Crash Repairs was remunerative work under s 24(1)(c), and was sufficient to ground an entitlement under that provision, for the following reasons:
(a)the applicant commenced employment with Christies Beach Crash Repairs on the understanding that he would engage in ongoing employment of 10 hours per week;
(b)the applicant had an intention to increase his hours and thus, his earnings, from Christies Beach Crash Repairs;
(c)the applicant would have continued to receive stable earnings of $100 per week and did, in fact, receive $450 for the 45 hours he is recorded as having completed;
(d)Mr Nash clearly intended to employ, and continue to employ, someone in the applicant’s position as evidenced by his subsequent employment of a university student;
(e)according to the evidence of Mr Nash and the applicant, the applicant was effectively undertaking his work at Christies Beach Crash Repairs until the time when he was affected by his medication, and the work he did was not insubstantial or trivial; and
(f)unlike the applicant in Forrester, the position previously held by the applicant with Christies Beach Crash Repairs was not of a kind that was subject to “drying up” in the normal course of events.
38. The second question in Flentjar entails a simple factual decision, and if s 24(1)(b) is satisfied it is unlikely to be an issue. In the present matter the respondent acknowledges that s 24(1)(b) has been satisfied, and I find that the applicant, by reason of his war-caused conditions, is prevented from continuing to undertake the type of work referred to in paragraph 31 above.
39. The third question in Flentjar refers to the “alone” test in s 24(1)(c). On the authority of Cavell v Repatriation Commission (1988) 9 AAR 534, and the analysis of Burchett J’s judgment in that case and referred to in Forbes v Repatriation Commission (2000) 101 FCR 50 at [33], the word “alone”, in the absence of ambiguity, should not have substituted for it other words. The word “alone” as it appears in s 24(1)(c) requires a practical decision as to whether the veteran’s loss of remunerative work is attributable to his or her service-related incapacities, and not to something else as well. Any factor having employment consequences which plays a part in the veteran’s inability to work or to obtain and hold remunerative employment is sufficient to displace the veteran’s case for pension at the special rate.
40. In Cavell, Burchett J said at 539 that the true task of the Administrative Appeals Tribunal, in applying the “alone” test in s 24(1)(c) of the VE Act, was:
“to make a practical decision whether the veteran’s loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide.”
In Forbes, RD Nicholson J said at [39]:
“The question whether the veteran by reason of the war-caused condition ‘alone’ has been prevented from continuing to undertake remunerative work can only be answered by reference to all the circumstances in which the war-caused condition exists”.
41. The potential relevance of other factors which might prevent a veteran from continuing to undertake the relevant remunerative work was further explained in Repatriation Commission v Hendy (2002) 76 ALD 47 at [37] as follows:
“The language of s 24(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 provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the Veteran from working. 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 s 24(1)(c) of the Act. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period. … [H]aving considered any or all of the factors which may have contributed to a veteran’s incapacity, the Tribunal is then required to determine whether it is the veteran’s war-caused injury or war-caused disease, or both, alone which prevent the veteran from continuing to undertake remunerative work.”
42. As to the alone test, the medical evidence and the oral evidence of the applicant and Mr Nash demonstrate that the effects of the PTSD medication are severe and cause the applicant to “walk around in a daze”. This is not a case where the veteran has been out of the work force for years on end, nor is it a case where there is evidence of any other non-war caused factor having work consequences for this applicant. I find that it is only the applicant’s PTSD and the medication used to treat that condition that render him incapable of continuing the type of work for which he has the requisite skills, qualifications and experience, whether that work be cleaning, manual labouring or any other task that is required in the performance of the types of work identified in paragraph 31 above with the possible exception of his work in maintaining and managing printing presses. (As to that work, I am mindful that it is nearly 10 years since he last worked with printing presses and technology may have changed to such an extent that the applicant would not now have the skills necessary to do that work). I therefore find that the answer to the third question posed in Flentjar (supra), namely whether it is the war-caused condition that is the only factor preventing the veteran from continuing to undertake the relevant remunerative work, is yes with respect to the types of remunerative work identified at paragraph 31(b) to (e).
43. The fourth question in Flentjar (that is, the “loss” issue, being the second aspect of s 24(1)(c)) entails a consideration of whether the veteran is suffering a loss of income that he or she would not have been suffering if not affected by the war-caused disability. The Tribunal is also mindful of the deeming provision in s 24(2)(a) which requires an assessment of the reason or reasons that a veteran is incapacitated or prevented from engaging in remunerative work and the reason or reasons that a veteran has ceased to engage in remunerative work.
44. In Repatriation Commission v Van Heteren (2003) 75 ALD 703 Finn J considered the relevance of the deeming provisions of s 24(2)(a)(i). His Honour said at [25]:
“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 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.”
I also refer in this regard to Re Laugher and Repatriation Commission (1985) 11 ALN N56, which indicates that under s 24(2)(a) the veteran’s own reasons for ceasing work may be relevant, unlike the more objective test imposed by s 24(1)(c).
45. I will now analyse the reasons why the applicant has ceased to engage in remunerative work and I refer to the identification of that work in paragraph 31 above. The applicant is certainly skilled in printing press maintenance and the management of maintenance and cleaning of printing presses. The applicant ceased that type of work after a dispute with his employer about the demands being placed on the printing machinery in circumstances where he thought that the machinery was not being adequately maintained. It seems likely that there were non-war caused work-related issues that were relevant to the cause of this dispute and were, therefore, a factor in his decision to leave the workplace. I find that the applicant ceased this work for reasons including non war-caused reasons.
46. As outlined in paragraphs 13 and 19 above, the applicant undertook several positions after leaving the employ of The Advertiser. I find on the evidence before me that he ceased working with Advance Edging because of the deterioration in his working relationship with his work colleague (and this may, perhaps, have been related to PTSD) and because the availability of that work decreased. Likewise, the applicant ceased his work with P&O Cleaners because that company lost its cleaning contract. As for his cleaning work with Birkley Challenge, the applicant’s evidence was that that work ceased because he had arguments with management over the need to transport cleaning machinery upstairs. There is no evidence that the applicant’s disinclination to carry the machinery was due to any war-caused condition or disease. I therefore find that the applicant ceased work with Advance Edging, P&O Cleaners and Birkley Challenge for non war-caused reasons.
47. At Hawker de Havilland, the applicant undertook the type of work described in paragraph 31(d) above. The evidence before the Tribunal is to the effect that although the applicant appears to have been suffering the effects of PTSD during his driving duties in particular, his decision to quit this position came about after his employer directed the applicant to work five days a week, rather than the three days a week he had been working, at both the Adelaide and Parafield airports, the latter being a considerable distance from the applicant’s home. The decision by the employer to change the applicant’s place of work for part of the week, and the consequential increase in the amount of driving that the applicant was required to do was a factor in the applicant’s decision to cease his employment in that position. I also note that the Veterans’ Review Board transcript (exhibit R1) records that the nature of the applicant’s employment changed after Hawker de Havilland took over in that he was then required to do specialist tasks such as sealing the hangar floor and building cabinets (exhibit R1, at page 7). The transcript also records that the applicant explained that “[he] couldn’t hack [the changes]”. It would appear that these changes in the nature of the applicant’s employment were also factors in the applicant’s decision to quit his position with Hawker de Havilland. I therefore find that the applicant ceased this remunerative work as a result of both war caused and non-war caused factors.
48. I note that ceasing to engage in remunerative work is a wider concept than ceasing to perform a particular job, but the reasons why an applicant left his or her last job is highly relevant. As for the applicant’s employment with Christies Beach Crash Repairs, I refer to my findings in paragraph 37 above and the applicant’s evidence was that he not only wished to remain in the employment of Christies Beach Crash Repairs, but eventually, he hoped to increase his hours and earnings and decrease his dependence on his pension. Mr Nash confirmed that the applicant was a good employee until the effects of his medication (which, I find, was the medication he was taking for his PTSD) after his admission and discharge from the Repatriation General Hospital made it unsafe to continue to employ him. Indeed, it was Mr Nash’s evidence that it was only upon finding the applicant in a bewildered and disorientated state that he dismissed the applicant. On the evidence before me, I find that were it not for his PTSD, the applicant would have continued to work for Christies Beach Crash Repairs, and that he did not cease to engage in this employment for reasons other than his PTSD. I accordingly find that the applicant is suffering a loss of salary from employment that he would not be suffering if he were free of his war-caused incapacity.
Decision
49. For the above reasons, I set aside the decision under review and in substitution therefor determine that the applicant is eligible for a pension at the special rate payable pursuant to s 24 of the Veterans’ Entitlements Act 1986 with effect from and including 14 October 2001.
I certify that the 49 preceding paragraphs are a
true copy of the reasons for the decision
herein of Deputy President D G JarvisSigned:
...................................................................................N Quirke Associate
Date/s of Hearing 6 February 2004
Date of Decision 21 May 2004
Counsel for the Applicant Mr C Swan
Solicitor for the Applicant Swan Lawyers
Advocate for the Respondent Mr A Crowe
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