Van Ewijk and Repatriation Commission
[2003] AATA 605
•27 June 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 605
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2000/1020
VETERANS' APPEALS DIVISION )
Re PETER VAN EWIJK Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr IR Way, Member Date27 June 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
(Sgd) IR Way
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension – assessment – whether applicant entitled to pension at the special rate – whether applicant ceased work due to his war-caused disabilities – whether applicant has suffered a loss of salary or earnings
Veterans’ Entitlements Act 1986 ss 19, 24, 28, 120(4)
Repatriation Commission v Smith (1987) 74 ALD 537
Repatriation Commission v Braund (1991) 23 ALD 591
Forbes v Repatriation Commission [2000] FCA 328
Fry v Repatriation Commission [1997] FCA 771
Hall v Repatriation Commission (1994) 33 ALD 454
Cavill v Repatriation Commission (1988) 9 AAR 539Banovich v Repatriation Commission (1986) 69 ALR 395
Starcevich v Repatriation Commission (1987) 18 FCR 221
Magill v Repatriation Commission [2002] FCA 744REASONS FOR DECISION
27 June 2003 Mr IR Way, Member 1. This is an application by Peter Van Ewijk (“the applicant”) for review of a decision of the Repatriation Commission made on 28 September 1999, and affirmed by the Veterans’ Review Board on 19 September 2000, which assessed the applicant’s disability pension at 100% of the General Rate.
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal 1975 (T1–T6) and other documentary evidence as follows:
§Exhibit A1 Report – Dr G Apel dated 26 September 2002
§Exhibit A2 Report – Dr P Sharwood dated 16 November 2001
§Exhibit A3 Statement – Peter Van Ewijk dated 29 January 2001
§Exhibit A4 Statement – Peter Van Ewijk dated 2 April 2001
§Exhibit A5 Statement – Beverley Van Ewijk dated 2 April 2001
§Exhibit A6 Statement – Beverley Van Ewijk dated 1 February 2001
§Exhibit A7 Letter dated 10 March 1992 from Pioneer Concrete (Qld) Pty Ltd to applicant
§Exhibit A8 Three documents - Inter Office Memoranda from Workers’ Compensation Division
§Exhibit A9 Statement – Harry Cyril Jenkins, undated.
3. The applicant and his wife, Mrs Beverley Van Ewijk, gave oral evidence. The applicant was represented by Mr RJ Clutterbuck of Counsel and Mr M Smith represented the respondent.
4. The issue before the Tribunal is whether the applicant’s disability pension is correctly assessed at 100% of the General Rate and, in particular, whether the applicant’s pension should be assessed at the Special Rate.
5. The applicant was born on 27 August 1946 and lodged his claim for disability pension and medical treatment on 12 August 1999, at which time he was 52 years of age.
6. Theapplicant rendered National Service with the Australian Regular Army from 27 May 1968 to 26 May 1970, including service in Vietnam as an Infantryman with 5 RAR from 9 April 1969 to 5 March 1970.
7. The applicant’s service-related accepted disabilities are:
§Post traumatic stress disorder
§Gastro-oesophageal reflux disease
§Hypertension
§Alcohol dependence or alcohol abuse
§Diabetes mellitus
§Ischaemic heart disease
§Chronic solar skin damage
§Bilateral sensori-neural hearing loss.
He has no non-service-related disabilities.
8. The standard of proof applicable in this matter is provided for in subsection 120(4) of the Veterans’ Entitlements Act 1986 (“the Act”) and pursuant to this section the matter is to be decided by the Tribunal to its reasonable satisfaction, or in other words, on the balance of probabilities: Repatriation Commission v Smith (1987) 74 ALD 537.
9. The assessment period in this matter, pursuant to section 19 of the Act, is from 12 August 1999, the date of the applicant’s claim, to the present date (the relevant period): Repatriation Commission v Braund (1991) 23 ALD 591 at 592 and 595.
Legislative Framework
10. The legislative framework in respect of Special Rate of pension is relevantly provided in the Act as follows:
“24 Special rate of pension
(1) This section applies to a veteran if:
(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
(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.
…
28 Capacity to undertake remunerative work
In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(a)the vocational, trade and professional skills, qualifications and experience of the veteran;
(b)the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c)the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).”
Applicant’s Evidence
11. The applicant provided two written statements, one dated 29 January 2001 (Exhibit A3) and one dated 2 April 2001 (Exhibit A4).
12. In his oral evidence the applicant said he was not currently employed and had not worked since a work-related injury to his back in October 1991, at which time he had been working for Pioneer Concrete (Qld) Pty Ltd (since 1988).
13. The applicant told the Tribunal that prior to National Service he commenced work as an apprentice fitter and turner directed to marine engineering work and that post –Vietnam he had completed a part of a Marine Engineer Certificate and was a Certificate Marine Engine Driver. He said he was employed by BHP in the Newcastle area prior to National Service and following discharge from the Army, and that prior to going to Vietnam he had no medical problems.
14. On return from Vietnam he said he was drinking excessively and in 1977 he was sacked by BHP because he “got on the booze”.
15. During the early 1970s his first marriage failed (in 1973) and he said that the period from 1972 to 1977 was a real blank. However, he recalled being referred by his GP (Dr Laver – now deceased) to a psychiatrist (Dr Chambers – now deceased), after being advised to do so by his ex-mother-in-law because of his mood swings and anger.
16. Following being sacked by BHP the applicant said he remarried in 1977 and he and his wife went overseas, realising that it would be hard to get a job on the coast because he had a reputation of being “aggro”, drinking excessively and getting angry over trivial matters. While overseas the applicant was employed on a number of jobs.
17. On return from overseas the applicant said he went into a fishing partnership (through a shelf company) with an ex-Navy Chief Petty Office, Harry Jenkins, whom he knew. It was the applicant’s evidence that he brought marine engineering skills to the partnership. However, the venture ended in 1981 because of his excessive drinking and violence. The Tribunal notes that Mr Jenkins (Exhibit A9) corroborates the applicant’s account of their joint fishing partnership and its dissolution.
18. Following the fishing venture, the applicant said he went to work in New Guinea as a Slipway Superintendent involved in ship repair. He said he got along very well with local workers (being involved in training of local apprentices). However, he did not get along with the expatriates nor was he comfortable in joining in with expatriate social activities. He said he only lasted six months in this job, being told by his employer that he was a “square peg in a round hole”.
19. The applicant told the Tribunal he returned to Australia in late 1981 and he and his wife “hit the road” in an old van intending to tour Australia but they only got as far as Cairns, his wife falling pregnant. At this stage the couple settled in Brisbane and the applicant had a period of unemployment before securing employment as a Marine Engineer working for Condreco, a contract dredging company working in relation to the Brisbane Airport.
20. The applicant worked for Condreco from 1983 to mid-1987 when contract work ceased, the dredge was sold and his employment was terminated.
21. Following a gap in employment, the applicant was then taken on by Pioneer Concrete (Qld) Pty Ltd in late 1988 as a Marine Engineer.
22. During his employment with Pioneer Concrete the applicant described three back injuries, one in 1988 when he hurt his back lifting a capstan off its bearings (resulting in two weeks off work); one in 1989 when he slipped on engine room steps (with no time off); and one at the end of October 1991 when he twisted and put his back out jumping on to a barge and landing and slipping on gravel on the deck of the barge which could not readily be seen in the early morning darkness.
23. As a result of the latter injury, the applicant had time off on workers’ compensation and has not worked since then.
24. The Tribunal notes that Pioneer Concrete terminated the applicant’s employment on 20 March 1992, stating in a letter to the applicant dated 10 March 1992 (Exhibit A7):
“We refer to your telephone conversation with our Shipping Manager, Mr Peter Fenton, during which you advised that you were still incapacitated with no possibility of resuming your duties in the foreseeable future.
During your period of absence, which commenced 31 October, 1991, we have undertaken an extensive maintenance programme on our vessels. These overhauls are nearing completion and we now have a requirement for a full compliment of crew.
Unfortunately we are no longer able to support a vacancy in your position and are now forced to recruit a replacement. As a consequence, we regretfully advise that your services have been terminated with effect from Friday, 20 March 1992.
The necessity to take this action is sincerely regretted and we suggest that, when you have fully recovered from your injury, you contact us when you will be given serious consideration for any suitable vacancy which may exist at that time.”
25. The applicant told the Tribunal that during his time with Pioneer Concrete he had arguments with other crew members, that no-one was content to work with him and he knew nothing about the re-structuring in the company that led to his dismissal.
26. In respect of seeking work after his back injury in 1991, the applicant said that rehabilitation on his back took longer than expected with surgery taking place in August 1992. He said he had had a vocational assessment and referral to the CES, but despite a recommendation for re-training, such re-training had not taken place. He said he was unable to find jobs through the CES, had no correspondence from CES at all and did not go for any job interviews. He said that he regularly looked through newspapers as well as the CES for jobs and that he felt able and willing to work if work had been available. He highlighted the difficulty of making ends meet on social security benefits compared with paid employment.
27. It is the applicant’s evidence that his only training was in marine work and that he thought the CES did not offer him any re-training because they thought he was a “lost cause”. The Tribunal notes that the applicant, in his written statement (Exhibit A3) stated:
“…I was not contacted by the DSS regarding retraining. I have already passed exams and am qualified as a fitter and turner, also in marine engineering. The recommendations the CES made were; drafting, health technician, computing, radiographer, podiatrist and optometry… All of these would require further tertiary education…”
28. In view of this, and in view of his medical condition, the applicant said that he assessed his best chance for employment as being self-employment. He said it was at about this time that the cause of his anger over trivial matters, his verbal fights and “losing it” became apparent and fell into place, with the diagnosis of his suffering from PTSD as a result of trauma suffered during his service in Vietnam.
29. The applicant said that despite many attempts to engage in a self-employed business, the various ventures he and his wife looked at came to nothing because he was unable to raise the necessary capital by selling his home (despite putting it on the market) and that in some cases, on assessment, they considered the venture not feasible. The Tribunal notes that the applicant stated (Exhibit A3):
“As I had more than two decades of work to ‘retirement age’ I did not want to limit my potential. Whilst I was looking for work through regular channels during 1993 to 1997 I also decided to raise relevant capital to once again be self employed, as I had in the past, by selling my most valued asset my home.”
and in Exhibit A4:
“As previously stated in my endeavours to seek employment after finishing rehabilitation and being assessed as fit for light duties but could no longer continue in my former occupation of Marine Engineer I sought information in regards to retraining, by way of a psych. Test from W.C.B. and C.E.S., the result was further studies or partake in some self employment. This would mean that to have some sort of capital our home was put on the market.
At this time my mental state of mind was affected, showing increasing signs of irritability, moodiness, anger, anxiety and lack of concentration. These are problems that I have had since Vietnam.”
30. In respect of drinking habit, the applicant in cross-examination said that presently he was not drinking as much. However, he still had binges and that despite being on medication for PTSD still gets bursts of anger and hates confrontation.
31. He said he continued to look for self-employment businesses through to late 1998. The Tribunal notes that the applicant stated (Exhibit A3) “I actually commenced seeking work from 28.1.93 til 1997…”.
32. The Tribunal notes that the applicant had been on workers’ compensation and disability support pension from 1991 to 1997 when, on 10 November 1997, he applied to the Department of Veterans’ Affairs for income support pension in respect of his back condition and that the applicant made further application on 7 July 1998 in respect of PTSD and chest pains, as well as his back condition. The applicant was granted disability pension at 60% of the General Rate for PTSD and chest pain in 1998 and also service pension. In 1999 the applicant was granted disability pension at 100% of the General Rate.
33. Mrs B Van Ewijk provided two written statements, one dated 1 February 2001 (Exhibit A6) and one dated 2 April 2001 (Exhibit A5). Mrs Van Ewijk also gave oral evidence.
34. In her oral evidence Mrs Van Ewijk said she first met her husband in a hotel and noticed that although he had a big laugh he would argue over nothing. She said they were married in 1977 and that she then realised he had a drinking problem. She said that after coming home from the sea he often got quiet, and went out and got drunk and played the poker machines. She said that there was a big grapevine in the sea-going community and her husband was known as “aggro” and that he was “given heaps” because he would “bite all the time”.
35. In respect of anger flare-ups, she said that the applicant was not like that with her and she did not understand why he seemed to have no control of becoming angry over trivial matters. She could, however, recall an incident where he had been drinking for ten hours and grabbed her by the throat and incidents where he had nightmares and grabbed her in bed and pinned her down.
36. In respect of seeking self-employment after leaving Pioneer Concrete she told the Tribunal that she felt her husband wanted the freedom to be able to look after himself and she felt this was the only reasonable way to go. She said that it was her opinion that her husband was good with his back now and that he was not employed today because of his PTSD and that people “see it and don’t like it”.
37. In her written statements (Exhibits A5 and A6), Mrs Van Ewijk set out in detail the various jobs that her husband (and at times herself) had. She also expressed the opinion (Exhibit A6):
“Ever since Peter was a small boy he wanted to be a Marine Engineer. I know Peter is a good and capable Marine Engineer, however with every job he has had since his time in Vietnam his emotional and bahavioral [sic] problems have been the cause of many arguments, fights and dismissals. THE FACT IS PETER HAS NEVER BEEN DISMISSED FOR HIS ENGINEERING SKILLS.
Peter was more than willing to have a go at work other than marine engineering, he sought jobs relevant to the skills and qualifications he already had from the marine and fishing industries.
Peter tried the usual avenues in looking for work, he even went to the measure of putting our house on the market to raise venture capital to once again become self employed.
At the time I gave my full support. Because of his PTSD I conclude this option to be foolhardy and would not even consider it again.
After discussions and due consideration we both decided that further education was not an option. His nerves caused him many problems in past examinations, especially orals. One time his hair even fell out. Because of PTSD when Peter talks on the phone he stresses out, get a nervous throat clearing, stumbles over words so badly he cannot get them out, breaks out into a sweat, gets shakey [sic] and very much on edge so that the tone and manner in his voice changes – this is a very serious problem for him and does not go over well with prospective employers.
Because of the effects PTSD has on Peter’s demeanour, both in person and on the phone I believe PTSD consequently cost him jobs.
I deduce that PTSD is the reason Peter is not in the workforce.”
Medical Evidence
38. Dr P Sharwood, Orthopaedic Surgeon, examined the applicant on 16 November 2001 and provided a written report (Exhibit A2). Dr Sharwood opined:
“Reviewing this patient’s reports and the list of conditions which have been accepted as being due to his military service, I do not think this patient is in anyway restricted in his activities by the problems in his back. His current problems seem to be most likely cerebral damage, almost certainly secondary to alcoholism. He has carpal tunnel syndrome which is most likely secondary to his diabetes, he has some back pain which reflects the fact that he has had surgery to his back in the past, but this is in no way sufficient I believe to prevent his doing at least four hours work per day in a physical capacity. He would not be able to be employed doing four hours work today mainly because of his other conditions, specifically his neurological state and his post-traumatic stress disorder. Although his back would prevent his doing his original job as a Marine Engineer, it would certainly not prevent his doing up to four hours light engineering work per day. I am fairly certain though that he would be unable to do such work because of his other conditions, specifically his neurological problems.”
39. Dr G Apel, Psychiatrist, saw the applicant on 27 November 2001 and 5 December 2001 and provided a written report dated 21 September 2002 (Exhibit A1). Dr Apel diagnosed the applicant as suffering war-caused PTSD and chronic type alcohol dependence and concluded:
“3.It is entirely comprehsible [sic] that these psychological a symptoms and functional disability arose since physical incapacity subsequent to his back injury in 1991.
4.As noted in the report Dr Sharwood has recovered well and he has a physical capacity for at least light engineering work. Dr Sharwood is very clear that his back problems are not the major reason for his current unemployable status.
5.I concur with this opinion from a psychiatric point of view Mr Van Ewijk showing a capacity a significant degree of physical activity but psychologically has proven uncapable [sic] of remaining in the work force.
6.I see his alcohol dependence as a directly secondary to his post traumatic stress disorder.”
40. Dr J Pentis, Orthopaedic Surgeon, performed a discectomy on the applicant on 4 April 1992 and on review of the applicant on 10 June 1993 stated (T4/11):
“I do not envisage that he will be able to return to a heavy, manual job, or a job that required repetitive lifting.
His previous employment was one of maintenance work – marine engineering activity. It is quite unlikely that he will be able to return to this, as this requires some strength and mobility in getting himself into positions.
At this stage, he is 47 years of age, and the best alternative for him would be to retrained in some lighter form of duty. I believe he would be capable of carrying out light salesperson, clerical work, and if a suitable job could be found for him – a very light, manual job.”
41. On further review of the applicant on 23 March 2000, Dr Pentis commented (T4/155-156):
“The gentleman has sustained an injury to his lower back and has required a discectomy for this in 1992. He recovered reasonably well following this and is currently exhibiting some of the signs of the back injury and disc injury.
They have left him with an incapacity in his spine which would approximately a 25% maximum loss of the efficient function of his spine as a whole.
This would preclude him from returning to any heavy manual work, work that required repetitive bending and lifting. He would be able to if he could find same, carry out light duty activities. Jobs where he doesn’t have to bend or lift and where he can change his position from sitting to standing at reasonably frequent intervals, e.g. console operator, clerical work, teaching type activities.
So his back limits him to carrying out these light duties but he would not be able to carry out heavy duties.”
42. Dr Wong, LMO, on examining the applicant’s capacity to work on 8 May 1998 and 6 July 1988 commented that the applicant “was not able to work due to PTSD”.
43. Dr Leong, Consultant Psychiatrist, on 15 June 2000, also opined that the applicant’s accepted psychiatric conditions precluded him from working more than eight hours per week.
Submissions
44. Mr Smith, for the respondent, conceded that the applicant satisfies the criteria in subsections 24(1)(a) and 24(1)(b) of the Act.
45. However, it was Mr Smith’s submission that the applicant does not meet the criteria in subsection 24(1)(c) of the Act, nor does the applicant satisfy the ameliorating provisions of subsection 24(2)(b).
46. In so submitting, Mr Smith said that although the applicant genuinely sought to engage in remunerative work in the period 1994 to 1997, his war-caused disability was not the substantial cause of his inability to obtain work. It was contended that the applicant’s back condition, lack of skills, the tightness of the labour market and lack of finance contributed to an equal or greater degree. It also was contended that the applicant clearly was not genuinely seeking work during the assessment period.
47. In respect of its consideration of the criteria of subsection 24(1)(c), the respondent referred the Tribunal to Forbes v Repatriation Commission [2000] FCA 328.
48. Furthermore, it was contended that the applicant ceased to engage in remunerative work for reasons other than his war-caused disabilities and, therefore, pursuant to subsection 24(2)(a) of the Act, the applicant cannot satisfy the loss of earnings limb of subsection 24(1)(c). In so submitting, Mr Smith referred the Tribunal to Fry v Repatriation Commission [1997] FCA 771 where the Federal Court said (at p 10):
“…the AAT in my view did not err in its application of s 24(2B) of the Act. In paragraph 51 of the reasons for decision set out above, the AAT indicated that even if the ameliorating provision of s 24(2)(b) is applied to s 24(1)(c), the applicant was not entitled to the Special Rate of pension because of the effect of s 24(2)(a)(i), which provides that a veteran shall not be taken to be suffering the loss of salary or wages if the veteran ceased to engage in remunerative work for reasons other than his incapacity from war-caused injury or disease, or both…”
49. Mr Clutterbuck, for the applicant, submitted that the applicant clearly satisfies the criteria in subsection 24(1)(a) of the Act. Similarly, Mr Clutterbuck submitted that the applicant meets subsection 24(1)(b) as the medical evidence before the Tribunal supports the assertion that the applicant’s war-caused incapacity is such that of itself it renders the applicant incapable of undertaking remunerative work for periods of more than eight hours per week.
50. In respect of subsection 24(1)(c), it was submitted that the applicant had not been rendered unfit for work because of his suffering his orthopaedic damages. Rather, he had been rendered unfit for work and has therefore lost income because of war-caused PTSD and chronic type alcohol dependence and that his back condition in no way restricts his activities.
51. In respect of subsection 24(2)(a), it was submitted that the veteran’s cessation of work with Pioneer Concrete is not the determinative factor. Rather it was whether his cessation in remunerative work, whatever it be, has occurred for reasons other than his orthopaedic injury, namely post-traumatic stress disorder.
52. The Tribunal was referred to Hall v Repatriation Commission (1994) 33 ALD 454 as authority for the following propositions:
(a)that the loss referred to is not a loss necessarily of existing employment but may be a loss or inability to obtain employment (Starcevic v Repatriation Commission (1987) 18 FCR 221 at 255);
(b)the factors referred to by the respondent, being time out of the workforce, an inability to obtain employment together with an incapacity for remunerative work was not considered to be the same as the obtaining of employment;
(c)that as a matter of fact, it is for the Tribunal to determine whether the applicant has been prevented from continuing to undertake remunerative work that he was undertaking by reason of his incapacity (PTSD and alcoholism) which is the war-caused injury.
53. The course of evidence demonstrates that the medical practitioners who have given evidence confirm the contents of documents T4, folios 50, 63, 80, 83, 84, 104, 122, 149, 153, 154, 156 and 158.
54. It was therefore submitted that the Tribunal would be reasonably satisfied that the applicant should be assessed for pension at the Special Rate.
Consideration
55. In considering Special Rate of pension his Honour Justice Burchett in Cavill v Repatriation Commission (1988) 9 AAR 539 stated:
“To distract the Tribunal from its true task – 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 any philosophical distinctions, but with an eye to reality, and as a matter in respect of which commonsense is the proper guide.”
56. With respect, the Tribunal adopts this approach in consideration of this matter.
57. There is no dispute between the parties that the applicant satisfies the criteria of subsection 24(1)(a) and subsection 24(1)(b) of the Act and in view of this, and on the material before it, the Tribunal so finds.
58. In arriving at the finding in respect of subsection 24(1)(b), the Tribunal has taken into account, pursuant to section 28 of the Act, the kinds of remunerative work the applicant might reasonably undertake.. The Tribunal is satisfied that the applicant has trade qualifications and experience as a fitter and turner in the field of marine engineering, has qualifications and experience as a marine engineer and supervisor of ship maintenance, and experience in conducting small business ventures related to the marine environment. The Tribunal is therefore satisfied that it is this type of work that needs to be considered in determining the degree to which the applicant’s war-caused impairments prevent him from continuing to undertake or seek remunerative work and determining whether the veteran has ceased to engage in remunerative work for reasons other than his incapacity from war-caused injury and/or disease: Banovich v Repatriation Commission (1986) 69 ALR 395; Starcevich v Repatriation Commission (1987) 18 FCR 221.
59. Turning then to the central issue in this matter, that is, whether the applicant satisfies the criteria in subsection 24(1)(c).
60. In the matter of Magill v Repatriation Commission [2002] FCA 744, the Federal Court recently addressed the approach that must be taken in the application of the provisions of section 24(1)(c) of the Act. A summary of what his Honour Justice Drummond said is set out below.
61. Section 24(1)(c) consists of two limbs, each of which must be satisfied. The first limb of the subsection provides:
“The veteran is, by reasons 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…”
This must be read with subsection 24(2)(b).
62. The facts in respect of a particular veteran may be such that this first limb is clearly satisfied. However, there may be circumstances where a veteran’s war-caused incapacity, while not being the sole cause of his inability to obtain work, nevertheless is the substantial cause and subsection 24(2)(b) provides for these circumstances. It is an ameliorating provision which sets out criteria which, if satisfied, allows a veteran to meet the alone criteria of subsection 24(1)(c).
63. In summary, subsection 24(2)(b) allows a veteran to meet the alone test if the veteran has been genuinely seeking to engage in remunerative work, that the veteran, but for his war-caused incapacity would be continuing to seek to engage in remunerative work, and the veteran’s war-caused incapacity is the substantial cause of his inability to obtain remunerative work in which to engage.
64. The second limb of subsection 24(1)(c) which must also be satisfied, requires the veteran to suffer a loss of salary or wages or earnings that the veteran would not be suffering if he were free of his war-caused incapacity.
65. The loss referred to in this section may be caused by a loss of existing employment or by an inability to obtain employment.
66. This second limb must be considered with subsection 24(2)(a). This subsection, that is subsection 24(2)(a), narrows the second limb in that a veteran will not satisfy that limb if, though suffering a loss of wages, salary or earnings that may be causally related to the veteran’s war-caused injury or disease, there are other reasons that are also causally related to the veteran having ceased to engage in work or related to the veteran being prevented from engaging in work.
67. The applicant, in the first instance, has submitted in respect of subsection 24(2)(a), that the veteran’s cessation of work with Pioneer Concrete is not the determinative factor and that his cessation in remunerative work occurred for reasons other than his back injury, namely, PTSD.
68. In respect of relevant remunerative work (other than with Pioneer Concrete), the Tribunal is satisfied that his employment with Condreco as a Marine Engineer ceased for reasons other than his war-caused disability. On all of the material before it the Tribunal, on balance, is satisfied that he ceased to engage in work at BHP and in his fishing partnership because of his excessive drinking and, although this condition had not been properly recognised at that stage, nevertheless the Tribunal is satisfied that the condition was in existence at the relevant time and is war-caused.
69. In respect of his employment in New Guinea the Tribunal is reasonably satisfied that the applicant ceased such employment for reasons other than his service-related incapacity. On his own evidence, the applicant was able to establish good relations with the local people in New Guinea and it was mainly his dislike of the expatriate community and its way of life which led to his departure.
70. With respect to employment with Pioneer Concrete, the Tribunal is satisfied that the applicant ceased employment with Pioneer Concrete (Qld) Pty Ltd because of his non-accepted back condition. It is clear from the letter from Pioneer Concrete terminating his services that it was on his advice that his back injury precluded him from resuming his duties in the foreseeable future, that the company was no longer prepared to hold his job vacant. It is also clear that the company was prepared to consider re-employing him should be fully recover from his back injury..
71. The Tribunal is therefore satisfied that the applicant, for the last ten years or so of his working life, undertook a number of jobs all of which he ceased for reasons other than his war-caused injury/disease.
72. Insofar as his ceasing work with his fishing partner, Harry Jenkins, the Tribunal is mindful that subsequent to ceasing work with Pioneer Concrete, the applicant, on his own evidence, willingly decided to attempt to gain self-employment in businesses that he thought could be suitable and this he did until at least 1997, exploring some ten or more possibilities. It was the applicant’s evidence that he was not successful in establishing a business, principally because he had insufficient capital (having unsuccessfully tried to sell his house) and because in some cases he judged the business to be either not feasible or not viable.
73. In view of these endeavours and taking into account the findings of the Tribunal, as set out above, the Tribunal is reasonably satisfied that the applicant ceased and the submissions of both parties, to engage in remunerative work for reasons other than his incapacity from war-caused injury or war-caused disease and the Tribunal finds that the veteran is not suffering a loss of salary or wages or of earnings on his account by reason of his war-caused incapacity.
74. That being so, and following Fry v Repatriation Commission (supra), the applicant cannot satisfy subsection 24(1)(c) of the Act and therefore is not entitled to be paid Special Rate pension.
75. For the sake of completeness, the Tribunal has considered the applicant’s submissions based on Hall v Repatriation Commission (supra) as set out above.
76. In respect of the applicant’s first proposition, the Tribunal has already determined that it is the type of work which the applicant has engaged in that is relevant rather than his existing employment.
77. In respect of the applicant’s second proposition, the Tribunal of course accepts that “the question of capacity for remunerative work is not the same question as the obtaining of employment in fact, and that it would be wrong to identify reasons for the latter as necessarily relevant or applicable to the former question”.. However, the Tribunal’s reasons for refusing Special Rate are not such that this question arises.
78. In respect of the applicant’s third proposition, the question posed by the applicant does not arise in this matter. The Tribunal has found that the applicant is not to be taken to be suffering a loss of salary or wages or of earnings on his own account by reason of his war-caused incapacity and it is on this basis that the applicant is not entitled to Special Rate of pension.
79. The Tribunal affirms the decision under review.
I certify that the 79 preceding paragraphs are a true copy of the reasons for the decision herein of Mr IR Way, Member
Signed: .......................................................................................
AssociateDate of Hearing 4 June 2003
Date of Decision 27 June 2003
Counsel for the Applicant Mr RJ Clutterbuck
Solicitor for the Applicant Streeting Haney
For the Respondent Mr M Smith, Departmental Advocate
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