WALLACE and REPATRIATION COMMISSION
[2010] AATA 602
•13 August 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 602
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/0436
VETERANS' APPEALS DIVISION ) Re GRAEME WALLACE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr R G Kenny, Senior Member Date13 August 2010
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
...................[Sgd]..................
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Veteran’s entitlements – Veteran in receipt of 90% general rate pension – Veteran not able to undertake remunerative work for more than 8 hours per week because of service-related conditions – Veteran not prevented from undertaking remunerative work that he was undertaking because of war-caused conditions alone – Special rate of pension not payable - Intermediate rate of pension not payable - Decision affirmed
Veterans’ Entitlements Act 1986 (Cth) ss 5Q, 14, 15, 19, 22, 23, 24, 119, 120
Flentjar v Repatriation Commission (1997) 26 AAR 93; (1997) 48 ALD 1
Leane v Repatriation Commission (2004) 81 ALD 625
Repatriation Commission v Hendy (2002) 76 ALD 47REASONS FOR DECISION
13 August 2010 Mr R G Kenny, Senior Member BACKGROUND
1. On 24 April 2008, Graeme Wallace made a claim under s 14 of the Veterans’ Entitlements Act 1986 (Cth) (the Act) for a disability pension for incapacity from “bowel problems” which, he contended, were related to his service in the Australian Army. He also claimed, under s 15 of the Act, for an increase in the rate of disability pension paid to him under the Act. On 17 December 2008, a delegate of the Repatriation Commission accepted his claim under a diagnosis of irritable bowel syndrome. Mr Wallace’s disability pension was assessed under s 22 of the Act at 90% of the general rate with effect from 24 January 2008. This was in respect of incapacity associated with the newly accepted condition as well as that from the previously accepted conditions of bilateral sensori-neural deafness, refractive error and post traumatic stress disorder. On 17 December 2009, the Veterans’ Review Board (the Board) affirmed the decision relating to the assessment of pension. In so determining, the delegate and the Board were satisfied that Mr Wallace did not qualify for the intermediate or the special rate of pension under s 23 or s 24 of the Act, respectively.
ISSUES AND LEGISLATION
2. Matters in issue are to be determined to the Tribunal’s reasonable satisfaction and in accordance with substantial justice and the substantial merits of the case[1]. In that process, neither party bears an onus of proof[2]. The procedure to be followed is provided for in s 19 of the Act. It requires the rate of pension to be assessed from time to time during the assessment period[3] which is defined as starting on the application day and ending when the claim or application is determined[4]. It is not disputed that the application day in this case was 24 April 2008 or that the assessment period runs from that day until the matter is determined.
[1] See s 120(4) and s 119(1) of the Act, respectively.
[2] See s 120(6) of the Act.
[3] See s 19(5C) of the Act.
[4] See s 19(9) of the Act.
3. No challenge is made by the applicant in this matter to the general rate of pension paid to him at 90%. The issue raised is whether he meets the criteria for payment of the special rate of pension under s 24 of the Act. It is not in dispute that the applicant was under 65 years of age at the time of his claim or that he is in receipt of pension at a rate greater than 70% of the general rate. Therefore, he meets the preliminary requirements of s 24(1)(aa), (aab) and (a)(i) of the Act for the special rate. Further, it was conceded by Mr Thrupp, for the respondent, that the incapacity component in s 24(1)(b) of the Act has been met at all material times. This is that, at the start of the assessment period, Mr Wallace was totally and permanently incapacitated in that his incapacity from his accepted disabilities was, of itself alone, of such a nature as to render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. The remaining component of the provision is s 24(1)(c) of the Act. This comprises two limbs which require that Mr Wallace:
is, by reason of incapacity from his accepted disabilities alone, prevented from continuing to undertake remunerative work that he was undertaking (first limb); and
is, by reason thereof, suffering a loss of salary or wages, or of earnings on his own account, that he would not be suffering if he were free of that incapacity (second limb).
4. The issue for determination is whether Mr Wallace’s circumstances meet those requirements in s 24(1)(c) of the Act.
5. Reference is made below to Table 4.4 of the Guide to the Assessment of Rates of Veterans’ Pensions (GARP). That table reads:
OCCUPATION Ratings General description and outcome 0 Minimal or no interference with work or occupation. 1 Exacerbation of symptoms may cause occasional days off work. 2 Short periods (more than one day at a time) of absence from work. 3 Long periods (weeks or months) of absence from work. 5 An employed veteran will have major difficulties at work, which may be manifested by job modification or restriction of career opportunities. The disorder may contribute to the loss of a job. 6 The veteran may be unable to work or may still be working, but with marked loss of time and/or loss of productivity at work leading to loss of original vocation. 8 The veteran cannot work
EVIDENCE
Mr Wallace
6. Mr Wallace gave the following evidence.
7. He was employed in the Australian public service from 1963 until 4 September 2002. His last position was as regional manager with Centrelink in Taree in New South Wales where he worked from 1981. He began to recognise changes in his work environment around the time that his daughter was married in 1997. He was becoming “short” with the 57 to 60 staff under his management and started to feel that he was not coping with them in the manner that he had previously. From late 1999, he became more aware of this. He frequently felt agitated at work and wanted to get away from his work premises. His position enabled him to carry out some of his duties in the community and he regularly went for lunch-time walks. He often felt sweaty and experienced shakiness in his hands. He frequently took work home to complete at night or on weekends. He had trouble sleeping and felt light-headed at times. In 2000, his general practitioner in Taree, Dr David Moore, told him that he was suffering from stress and, on two occasions, gave him certificates to take short-term sick leave. He also advised Mr Wallace to take his leave entitlements. On one occasion, Mr Wallace took a month of holiday leave and went to New Zealand with his wife. The break from work helped him but after some days the earlier feelings returned.
8. In 2002, Mr Wallace experienced loss of confidence and a further decline in his working relationships as well as difficulty with his own supervisors. He was becoming withdrawn and would avoid meetings when he could. He underwent Centrelink’s routine performance testing and one of these referred to his negativity in the workplace and another described him as lacking leadership in management. The problems that Mr Wallace experienced in the workplace also brought about changes in his home life from 1997 to 2002. He was short tempered with his wife and other family members and lacked interest in family matters. On the advice of Dr Moore, Mr Wallace took another month of holiday leave, travelling with his wife to western New South Wales and Victoria. Again, this provided only temporary relief.
9. In May 2002, Dr Moore arranged for a series of tests to be conducted on Mr Wallace. No physical problems were revealed. His general practitioner advised that the symptoms were work-related. In July 2002, he decided that he would not continue with Centrelink. He so advised his supervisor who asked him to remain at work pending a replacement being appointed and trained. He agreed to this and, on 15 July 2002, wrote a letter of resignation to take effect on 4 September 2002. He was not offered and did not receive any redundancy package but was aware that he would be able to gain access to his superannuation when he turned 55 years of age on 16 September 2002. He described that prospect as helping him in making his decision to resign but not as the reason for resigning. After his 55th birthday, he took a periodic pension from his superannuation and a lump sum payment of $240,000. In his statement, dated 2 March 2009, Mr Wallace acknowledged that the fact that his wife was in full-time employment assisted him in making his decision to cease work.
10. Mr Wallace’s wife also worked for Centrelink in Taree. In late 2002, she took a transfer to Sydney so they relocated and lived there until September 2003. While in Sydney, Mr Wallace came into contact with a man with whom he had served in the army. On hearing of Mr Wallace’s circumstances, the man recommended that he attend the Vietnam Veterans’ Counselling Service. Mr Wallace did this and was referred to a psychologist, Janis Fairbairn. At first, he did not want to see a psychologist because he had not considered that he was suffering from any form of psychiatric condition. For that reason, he did not advise his wife of his early consultations with Ms Fairbairn. He found his time with her helpful and became aware that his symptoms were not work-related but, rather, associated with his army service in Vietnam.
11. Mr Wallace and his wife moved to Brisbane in 2005 because of another transfer for Mrs Wallace. They remained there until 2006 when they moved to the Caloundra area. Mr Wallace has not sought remunerative work since leaving Centrelink in 2002 but, in Brisbane, registered for voluntary work with the Red Cross and the RSPCA. With the former, he was rostered to serve blood donors with tea or coffee. He was unable to relate to the people, again experienced shaking sensations in his hands and ceased his role there after only a few hours. With the latter, he was unable to enter the RSPCA premises on the first day because he felt that he would not be able to cope. He did not commence any rostered work there. In 2005, he enrolled in a computer course with the University of the Third Age but was unable to complete this because of difficulties with concentration and being in a group of people.
12. Shortly before his 60th birthday, Mr Wallace decided to apply for a seniors card. He went to his local RSL club to obtain an application form. There, he spoke with a counsellor and was advised that he should also apply for the service pension. He explained that he would probably not be eligible because of the income of his wife but was urged to apply anyway. He took the advice and lodged his claim, a copy of which was in evidence, for the service pension on 12 September 2007. As it was only three days before his 60th birthday, he based his claim on his age rather than on his disabilities.
13. Mr Wallace completed an Employee Report on 5 October 2006. A question therein was: “Why did you cease work?” In response, Mr Wallace wrote that he was “finding it difficult to cope and the opportunity came up to leave”. That same question was addressed by Mr Wallace in lifestyle questionnaires he completed on 30 August 2006 and 11 November 2009. In the former, his response was “age” and “ill health”. In the latter, it was “ill health”. In his evidence, he denied that he retired in 2002 and denied that he had told any medical practitioners that he had. Rather, he said, he had resigned from his Centrelink position and so advised his doctors.
Nita Wallace
14. Mrs Wallace provided a statement, dated 6 May 2010, and also gave evidence. She confirmed her employment, transfer and relocation arrangements as outlined by Mr Wallace. She also confirmed that she ceased work in 2006 and that she and Mr Wallace then moved to the Caloundra area. She described the changes that Mr Wallace displayed from about 1997 until he decided to resign from Centrelink in 2002. He became difficult to live with due to long periods of moodiness when he wanted to be by himself. He also had frequent displays of anger for no apparent reason and she had to be careful of what she said to him. Initially, she had not been aware that Mr Wallace was attending counselling with Ms Fairbairn and described this as uncharacteristic because they had not kept secrets from each other previously. Mrs Wallace said that his condition had improved since he was undergoing regular psychiatric treatment although he continued to be reluctant to mix with other people.
Medical records
15. On 8 April 2009, Mr Wallace wrote to Dr Moore. Mr Wallace requested copies of clinical notes to demonstrate that he attended Dr Moore’s surgery on a number of occasions regarding matters relating to stress and anxiety. In evidence were some of Dr Moore’s clinical notes. In the main, these related to consultations in the 1980s and 1990s. The only notes after those years were on 8 and 23 May 2002. They are difficult to read. On 8 May 2002, reference is made to Mr Wallace being “run down” and feeling “lightheaded” on “1/7 last week”. Reference is made to his sleep pattern as being from 10:00pm until 4:00am with inability to sleep thereafter. Also in evidence were the results of the wide range of tests which were conducted on Mr Wallace on 10 May 2002. Mr Wallace’s evidence was that these revealed no abnormal results. On 23 May 2002, he is described in Dr Moore’s clinical notes as having “improved”.
16. Dr Innes Campbell, Mr Wallace’s general practitioner in Caloundra, completed a medical assessment report on 10 September 2008. He noted Mr Wallace’s accepted disabilities and rated them in accordance with the following scale:
0 : No functional effect
1 : Minor effect on certain functions only
2 : Moderate effect on certain functions only
3 : Severe effect on certain functions only
4 : Severe or disabling effect on many functions
5 : Overwhelming effect on all relevant system functions
Dr Campbell rated Mr Wallace’s bowel problems and post traumatic stress disorder at 2 and his refractive error and sensori neural deafness at 3. He described the reason for Mr Wallace ceasing work as “pressure from work and opportunity to retire”. Dr Campbell wrote that it was not known whether Mr Wallace could work because he was “retired”. He assessed Mr Wallace as having a capacity for “light skilled” work when he saw him but also noted that medical conditions were not solely preventing him from working because he “had already retired”.
Employer report
17. Centrelink’s National Pay Centre provided a report in relation to Mr Wallace’s employment with the Commonwealth from 1 February 1963 until 4 September 2002. The employer listed cessation of work as being due to “voluntary retirement/redundancy”. In response to whether Mr Wallace experienced difficulties in the workplace, the employer advised that this was “unknown”. The employer advised that Mr Wallace was performing 36.75 hours per week with no reduction in working hours at any time. The employer also advised that, apart from his own decision to cease work, there was no other reason that his employment would have been terminated in the foreseeable future.
Psychiatric Evidence
18. In evidence were reports from psychiatrists Dr Peter Anderson, dated 1 May 2003; Dr Eric De Leacy, dated 12 October 2006; Dr Lawrence Nandam, dated 28 April 2010; and Dr Bob Anderson, dated 10 August 2008. None of these practitioners gave evidence at the hearing.
19. Dr P Anderson saw Mr Wallace as part of the processing of his claim for post traumatic stress disorder. He outlined a history of the onset of symptoms in a manner consistent with Mr Wallace’s evidence, noted above, and diagnosed post traumatic stress disorder. Dr P Anderson’s opinion was that, given his qualifications and experience, Mr Wallace did not have the capacity to work more than half the full-time applicable to his field of work. Having been told by Mr Wallace that he was interested in taking up a study program, Dr P Anderson also concluded that he would be fit to do so. Dr P Anderson also assessed Mr Wallace in accordance with Table 4.4 of GARP. He wrote:
There has been significant interference with occupation. There has been marked loss of productivity at work. This has been over a period of some years, and he has indeed retired because he could not see a way to continue. He is in my view fit to study. Problems included difficulty concentrating, difficulty working with others, difficulty taking instructions, and difficulty interacting with staff.
Dr P Anderson allocated an impairment rating of 6.
20. Mr Wallace’s difficulties at work and at home were described by Dr De Leacy as commencing in around 2000. He noted that Mr Wallace had the opportunity to leave work in 2002 and did so. His opinion was that Mr Wallace suffered from depressive disorder rather than post traumatic stress disorder. He considered that, because of his psychiatric state, he was unable to work for 8 hours per week but noted that he retired at age 55 with a retirement package. Dr De Leacy allocated an impairment rating of 8 under the GARP Table 4.4.
21. Dr B Anderson is Mr Wallace’s treating psychiatrist. He diagnosed post traumatic stress disorder. In an emotional and behavioural medical impairment worksheet, dated 18 September 2008, he gave the following comment about Mr Wallace:
Ceased work in 2002. He was highly anxious, angry, frustrated, and overreacted emotionally. Drained by stress. By mid-morning was shaking and couldn’t do any meaningful work after 2:00pm. Intrusive memories and anxious destroyed his concentration.
22. Dr B Anderson allocated an impairment rating of 8 under Table 4.4 of GARP. His opinion was that the effects of post traumatic stress disorder prevent him from working for 8 hours per week and would have been sufficient, alone, for him to have ceased work in 2002.
23. Dr Nandam outlined the history of difficulties that Mr Wallace experienced in the home and at work particularly from the time of his daughter’s wedding in 1997. He wrote that, by 2002, Mr Wallace was convinced that the demands of his job were too stressful for him and that he resigned with the intention of taking early retirement. He also wrote that, as Mr Wallace’s symptoms continued, he arranged to undergo counselling. Dr Nandam agreed with the diagnosis of post traumatic stress disorder which comprised a considerable barrier to Mr Wallace in undertaking remunerative employment.
SUBMISSIONS
24. Mr Thrupp contended that the applicant did not meet the requirements of s 24(1)(c) of the Act in that his accepted disabilities alone, did not prevent him from continuing to undertake remunerative work during the assessment period. He nominated another relevant factor as being the time out of the workforce prior to the start of the assessment period[5] but, mainly, he submitted that Mr Wallace ceased work because of his age.
[5] Relying on Repatriation Commission and Hendy (2002) 76 ALD 47 at 54-55.
25. Mr Harding, for the applicant, submitted that the requirements of s 24(1)(c) of the Act were met by Mr Wallace. He submitted that there was no evidence of any non-accepted disabilities affecting Mr Wallace at the time that he ceased work or at the start of the assessment period and that the period of time out of the workforce prior to the start of the assessment period would have no impact on his skills for the relevant remunerative work he had undertaken. Mr Harding submitted that Mr Wallace’s cessation of remunerative work and his remaining out of remunerative work was solely due to his post traumatic stress disorder which worsened from 1997, was the subject of concern for his general practitioner in May 2002, was the subject of treatment by a psychologist in 2003, and was diagnosed by Dr P Anderson in May 2003. Mr Harding submitted that Dr P Anderson’s opinion that Mr Wallace could work for 20 hours per week in 2003 was not consistent with the opinions of the other psychiatrists. He submitted that Mr Wallace’s belief that he could no longer cope with his work was supported by the evidence of his wife concerning his changed presentation in daily activities at home. Mr Harding accepted that Mr Wallace finished work at an age which enabled him to gain access to his superannuation but he described that as being coincidental and not a reason for Mr Wallace’s decision to resign.
CONSIDERATION
26. As noted above, Mr Thrupp conceded that the applicant meets the requirements of s 24(1)(aa), (aab) and (a)(i) of the Act. The material before me is that claims under s 14 and s 15 of the Act have been made, that the applicant is not yet aged 65 and that his degree of incapacity is in excess of 70%. Mr Thrupp also conceded that s 24(1)(b) is met as at the start of the assessment period. The opinion of Dr B Anderson and Dr Nandam is that Mr Wallace is not able to undertake remunerative work. Their reports were completed during the assessment period. That was also the opinion of Dr De Leacy in October 2006. I am satisfied that Mr Thrupp’s concessions have been properly made.
27. The Federal Court in Flentjar v Repatriation Commission[6] said that a proper application of s 24(1)(c) of the Act requires consideration of 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?
[6](1997) 26 AAR 93.
Step 1:
28. The term remunerative work is defined in the Act to include any remunerative activity[7]. It is not disputed and I am satisfied that the remunerative work that Mr Wallace was undertaking, relevant to his application, was administrative, clerical and managerial in nature.
[7] See s 5Q of the Act.
Step 2:
29. On the evidence of Dr B Anderson, Dr Nandam and Dr De Leacy, I am satisfied that, throughout the assessment period, Mr Wallace’s accepted disabilities have been sufficient to prevent him from continuing to undertake the relevant remunerative work. Accordingly, the second of the Flentjar questions is answered “yes”. This was conceded by Mr Thrupp.
Step 3:
30. The third of the Flentjar questions in Mr Wallace’s situation is whether accepted disabilities were the only factors preventing him from continuing to undertake work as at the start of and during the assessment period. Consider, first, the circumstances in which Mr Wallace ceased work in 2002.
31. Apart from that given by Mr Wallace and his wife, there is no evidence from before or at the time of Mr Wallace’s cessation of work about limitations on his work capacity. The employer reported that he was working on a full-time basis, with no reduction in working hours at any time, until he ceased on 4 September 2002. The employer was unaware of any health concerns affecting Mr Wallace’s employment. The action of Mr Wallace’s supervisor, when advised of his intention to resign, in requesting that he stay working on a full-time basis indicates that he was not aware of any such deficiencies. Indeed, when so requested, Mr Wallace agreed to continue in his management position on a full-time basis until 4 September 2002, a period of more than seven weeks after Mr Wallace had decided that he would resign. The employer advised that, apart from Mr Wallace’s own decision to cease work, there was no other reason that his employment would have been terminated in the foreseeable future. While Mr Wallace took leave on two occasions each for a period of one month, his evidence at the hearing was that each of these was in the nature of a holiday. That is consistent with the employer’s report that time taken off work was not due to health problems. That evidence does not support Mr Wallace’s contention that he was not able to continue working from September 2002.
32. There is no medical evidence from before or at the time of Mr Wallace’s cessation of work about limitations on his work capacity. He requested Dr Moore to provide material to demonstrate that he had been treated for stress and anxiety. Dr Moore did not provide a report and his clinical notes fall well short of what Mr Wallace requested. On 8 May 2002, they describe Mr Wallace as being “lightheaded” on “1/7 last week” which I understand to mean “one day last week”. Reference is made to his sleep pattern as being from 10:00pm until 4:00am with inability to sleep thereafter. There is no reference to problems at work or to any stress associated with work. There is no reply from Dr Moore to indicate that he advised Mr Wallace to take leave or that he provided certificates to excuse him from work at any time. The final clinical note, dated 23 May 2002, describes Mr Wallace as having “improved”. The first occasion of treatment for any psychological disorder was from Ms Fairbairn. She did not give evidence and no report was provided from her.
33. The medical report most proximate to Mr Wallace’s resignation is that from Dr P Anderson, prepared seven months after Mr Wallace ceased work. Dr P Anderson considered that, at that time, Mr Wallace was fit to undertake study and to work for up to half a full-time workload. That description is consistent with the non-medical and medical evidence set out in paragraphs 31 and 32 above. It does not support Mr Wallace’s contention that he was unable to continue working in September 2002. However, I note that Dr P Anderson allocated a rating of 6 under Table 4.4 of GARP. The description and outcome at level 6 in Table 4.4 of GARP would appear to be more restrictive than that given by Dr P Anderson. Level 6 describes a veteran who is unable to work or may still be working, but with marked loss of time and/or loss of productivity at work leading to loss of original vocation. A rating of 6 is more consistent with the opinion of Dr B Anderson that Mr Wallace’s post traumatic stress disorder would have been sufficient, alone, for him to have ceased work in 2002. However, there is overlap between the various levels in Table 4.4 and if there is any inconsistency between a rating number and a clear word description given in a report, I am satisfied that the word description should prevail. Accordingly, I accept that Dr P Anderson’s opinion was that Mr Wallace was fit to undertake study and to work for up to half of a full-time workload some 7 months after he ceased full-time work in September 2002.
34. I do not accept Dr B Anderson’s opinion that Mr Wallace’s post traumatic stress disorder was sufficient, of itself, to prevent him from working in 2002. His opinion, which is based on a history provided by Mr Wallace, is not consistent with the summary of evidence set out above in paragraphs 31 and 32. There were other factors relevant in September 2002. Mr Wallace denied advising any doctor that he had retired. While it is possible that one practitioner may incorrectly record a person’s intention relating to cessation of work, it is highly improbable that three specialists, i.e. Dr P Anderson, Dr Nandam and Dr De Leacy, would do so. One of the options nominated in the Employer Report was also voluntary retirement. Dr Campbell referred to pressure from work but also the opportunity to retire. I do not accept Mr Wallace’s evidence in that regard and am reasonably satisfied that those various references to retirement were made by Mr Wallace. The reference to “opportunity” was also used by Mr Wallace in his Employee Report where he wrote that he was finding it difficult to cope and that the opportunity came up to leave. The only opportunistic factors that emerge from the evidence before me are that Mr Wallace was to have his 55th birthday on 16 September 2002, that he was able to access his superannuation on reaching age 55 and that his wife remained in full-time employment. Significantly, he did access the superannuation fund by taking a pension and a lump sum payment of $240,000 and made no effort to re-engage in remunerative work thereafter.
35. While the effects of post traumatic stress disorder may have played a part in Mr Wallace’s decision to cease work, I am satisfied that the prospect of reaching age 55 years and gaining access to his superannuation and the fact that his wife was still in full-time employment were matters that weighed upon Mr Wallace when making a decision to retire from employment in September 2002.
36. By the start of the assessment period and thereafter, the evidence of Dr De Leacy, Dr B Anderson and Dr Nandam is that Mr Wallace’s post traumatic stress disorder was such that it prevented him from working. However, by then, Mr Wallace had not been in remunerative work for 5½ years and was aged 60 years. By then, his wife had retired from work and they had moved to the Caloundra area. In the previous year, Mr Wallace had claimed a service pension on the basis of his age. While the medical evidence is that he continued to experience symptoms of his post traumatic stress disorder, I am satisfied that the reason for Mr Wallace not being engaged in or continuing to be engaged in remunerative work at the start of or during the assessment period was that, by then, he had reached a settled state of retirement. This is confirmed by the opinion of his general practitioner, Dr Campbell. In his report, dated 10 September 2008, Dr Campbell wrote that he did not know whether Mr Wallace could work because “he is retired”. He wrote that medical conditions were not preventing Mr Wallace from working because he “has already retired” and that retraining/rehabilitation were not relevant because he “has already retired”.
37. I am satisfied that Mr Wallace’s accepted disabilities were not the only factor or factors preventing him from continuing to undertake the relevant remunerative work at the start of and during the assessment period. Accordingly, step 3, identified above, is answered in the negative.
38. The first limb of s 24(1)(c) of the Act may be ameliorated by the operation of s 24(2)(b) of the Act which applies if, during the assessment period, Mr Wallace has been genuinely seeking to engage in remunerative work but has been unsuccessful substantially because of his accepted disabilities. It is not disputed that Mr Wallace did not seek remunerative work after September 2002. This means that he was not “looking out”[8] for work to be engaged in at any time after that date and, accordingly, not in the assessment period.
[8] See Leane v Repatriation Commission (2004) 81 ALD 625 at [29].
Step 4:
39. As there is not an affirmative answer at step 3, the fourth of the Flentjar questions does not arise.
40. For the reasons given, s 24(1)(c) of the Act is not met and the special rate of pension is not payable to the applicant. The intermediate rate of pension is provided for in s 23 of the Act. The terms of s 23(1)(c) of the Act are identical to those of s 24(1)(c) thereof. For the reasons given above, s 23(1)(c) of the Act is not met and the intermediate rate of pension is not payable to the applicant.
DECISION
41.The decision under review is affirmed.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member
Signed: ..................[Sgd].....................................................
Kate Slack, Research AssociateDate/s of Hearing 14 July 2010
Date of Decision 13 August 2010
Counsel for the Applicant Anthony Harding
Solicitor for the Applicant Terence O'Connor
Representative for the Respondent Terry Thrupp, departmental advocate.
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