Webb and Repatriation Commission
[2007] AATA 1049
•7 February 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1049
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2005/809
VETERANS' APPEALS DIVISION ) Re FRANCIS JOSEPH WEBB Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr C. Ermert, Member Date7 February 2007
PlaceMelbourne
Decision The Tribunal affirms the decision under review. (sgd) C. Ermert
Member
VETERANS’ AFFAIRS ‑ veterans’ entitlements – operational service – accepted war‑caused injuries – cessation of remunerative work – what is the remunerative work – cessation due to war-caused injuries – cessation due to war-caused injuries alone ‑ application of the ameliorating provisions
Veterans’ Entitlements Act 1986 ss 23, 24
Sheehy v Repatriation Commission (1996) 137 ALR 223
Flentjar v Repatriation Commission (1997) 48 ALD 1
Re Freer and Repatriation Commission [2005] AATA 1256
Repatriation Commission v Hendy (2002) 76 ALD 47
Forbes v Repatriation Commission (2000) 101 FCR 50
REASONS FOR DECISION
7 February 2007 Mr C. Ermert, Member INTRODUCTION
1. Francis Joseph Webb left school in 1964 at the age of 17. He commenced work in a sawmilling and timber production company which was managed by his father and owned by a partnership between his family and two other families. He was conscripted and served in the Australian Army in Vietnam between 8 July 1968 and 9 July 1969. On his return to Australia he returned to the same business, working in various positions in the company. In 1978 the company was sold to Gollin & Co which ran the business for about six years before selling it to ACI which ran the business for a further six years. ACI then sold the business to Timbersales in September 1989. Mr Webb remained employed by each new owner in turn.
2. Mr Webb’s father died in about 1979 and Mr Webb received a substantial inheritance which was invested in property and family trust funds. He acted as a director of the family trust funds and, as a result of an investment in a winery, he was appointed a director of that winery. He was not paid for any of his director positions. By 2003 Mr Webb had resigned from all his directorships.
3. On 9 February 1990, about 12 months after Timbersales bought the company, Mr Webb resigned. He said that it was just as if he had hit a brick wall. He could not go on any further and ceased work. Since then he has lived off his investment income.
4. Mr Webb has the following accepted war‑caused disabilities:
·Lumbar Spondylosis,
·Tinea,
·Generalised Anxiety Disorder,
·Bilateral Sensorineural Hearing Loss,
·Cataract Right Eye, and
·Hypertension.
5. On 20 September 2004 the Repatriation Commission (the respondent) determined a disability pension of 100 per cent of the General Rate with effect from 20 July 2003. The Veterans Review Board affirmed the decision on 22 June 2005. On 8 September 2005 Mr Webb applied for a review of the decision by this Tribunal.
THE HEARING
6. At the hearing Mr Webb was represented by Mr Peter Liefman, a solicitor, and the respondent was represented by Ms Rosalinda Casamento, an advocate with the Department of Veterans’ Affairs. I had before me the documents lodged by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents). Additional material from both parties was taken into evidence.
7. For the applicant I heard evidence from:
· the applicant and
· Dr Edward Cole, a consultant psychiatrist.
8. For the respondent I heard evidence from:
· Dr Amanda Silcock, an occupational physician, who provided a report dated 25th March 2006 (Exhibit R4); and
· Dr Barrie Kenny, a consultant psychiatrist, who gave evidence by telephone and whose report dated 18th September 2000 is included in Exhibit R6.
THE ISSUES
9. The purpose of this review is to determine whether Mr Webb is qualified for a rate of pension greater than 100 per cent of the General Rate; specifically whether he qualifies for the Special Rate or the Intermediate Rate of pension.
10. In regard to the Special Rate of pension, s 24 of the Veterans’ Entitlement Act 1986 (the Act) relevantly states:
(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a)either:
(i)the degree of incapacity of the veteran from war‑caused injury or war‑caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war‑caused injury or war‑caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war‑caused injury or war‑caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d) section 25 does not apply to the veteran.
(2) For the purpose of paragraph(1)(c):
(a)a veteran who is incapacitated from war‑caused injury or war‑caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war‑caused injury or war‑caused disease, or both; or
(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
11. For the Intermediate Rate of pension, s 23 of the Act contains essentially the same provisions as those contained in s 24. The differences relate to the extent of remunerative work capable of being undertaken by the veteran: which, for the Intermediate Rate, is 50 per cent or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full‑time basis; or 20 or more hours per week. For the Special Rate of Pension the upper limit of remunerative work is eight hours per week. The provisions relating to the cessation of remunerative work for reasons other than incapacity from the war‑caused injury or disease are identical for the Intermediate Rate and the Special Rate of pension. For convenience and clarity, I will refer only to the provisions of s 24 of the Act except where the s 23 provisions specifically apply.
12. It was agreed by the parties that Mr Webb’s circumstances complied with the provisions of s 24(1)(aa), (aab), (a) and (b) of the Act and that the only question to be determined in this matter is whether Mr Webb circumstances meet the provisions of s 24(1)(c) of the Act. Thus, the first issue to be determined is whether Mr Webb is prevented by his war‑caused injuries alone from continuing to undertake remunerative work he was undertaking. I refer to this as the alone test.
13. If Mr Webb does satisfy the alone test, the next issue will be to determine whether he is suffering a loss of earnings that he would not be suffering if he were free of his war‑caused injuries. On this issue s 24(2) of the Act provides that a veteran shall not be taken to be suffering a loss of earnings if the veteran ceased to engage in remunerative work or is prevented from engaging in remunerative work for some reason other than his or her war‑caused incapacity.
Does Mr Webb Satisfy the Alone Test of s 24(1)(c) of the Act?
14. The process to be followed in deciding matters on the alone test is set out in the decision of the Full Court of the Federal Court of Australia in Flentjar v Repatriation Commission (1997) 48 ALD 1, in which Branson J., with whom Beaumont and Merkel JJ agreed, posed the relevant questions arising from s 24(1)(c) of the Act. The questions are:
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?
What is The Remunerative Work that Mr Webb was Undertaking?
15. Mr Liefman submitted that Mr Webb’s work at the timber mills is the remunerative work and therefore the cessation of employment to be considered in this case is the cessation of his employment with Timbersales in February 1990. Mr Liefman submitted that Mr Webb’s activities as an investor should not be considered as remunerative work as it could not be said that the work was successfully performed and that Mr Webb spent little time in that activity. Mr Liefman referred me to Sheehy v Repatriation Commission (1996) 137 ALR 223 in which decision Wilcox, Whitlam and Lindgren JJ determined that to be accepted as remunerative work, the work must have been successfully and effectively undertaken.
16. Ms Casamento made no submissions specific to the determination of the remunerative work. Her submissions relate only to the reasons for Mr Webb’s leaving work in 1990, which is the time he ceased work at Timbersales.
17. The evidence from Mr Webb and the other witnesses regarding his activities after ceasing work at Timbersales in 1990 is that he spent a limited amount of time managing his investments and the affairs of the trust funds with which he is involved. Mr Webb’s evidence was that he received no income from these activities and that he was not successful in his performance of them. No evidence was presented in support of that work being considered the remunerative work nor were submissions made in that vein. I find therefore that in this case the remunerative work that was being undertaken by Mr Webb was his employment by Timbersales, which ceased in February 1990.
Is Mr Webb by reason of his War-Caused Injuries Prevented from Continuing to Undertake that Work?
18. The second question posed by Flentjar is whether Mr Webb is prevented by reason of his war‑caused injuries from continuing to undertake that work, being his work at the timber mill.
19. In his statement dated 2 July 2002 (Exhibit R6, page 41) Mr Webb said:
I verily believe that but for my anxiety condition, I would still be employed in the timber company today. In his evidence Mr Webb said I made the decision to leave work because of my psychological problems (transcript, page 65).
Mr Webb described the events that led to his resignation from work, particularly the incident when he went to work in his slippers. He said:
I just said “this – there is something wrong”. I just hit a wall, just hit a blank wall, and just – never been the same. …I just resigned. I just – as if I hit a brick wall, just stopped like that, and go to work with your slippers on, and I guess it had been welling up, and all of a sudden, it just hit me, and I just lost it completely (transcript, pages 25-26).
20. In his report dated 4 June 2004 (T10) Dr Cole said:
In 1990 something happened. He just stopped work without giving anyone an explanation. He just could not handle it any longer … I would have to say that Mr Webb has not made a great deal of progress in the time that I have been treating him, although he is sleeping better and is, perhaps, rather less depressed. He still lacks confidence, has a poor sense of his own worth and finds it very difficult to become motivated. His back injury would, of course, limit the sort of work that he was able to undertake, but his emotional state represents by far the major factor in his incapacity to work … I would suggest that ninety percent of his incapacity is attributable to his nervous disorder.
In a later report dated 14 October 2004 Dr Cole certified that Mr Webb:
… is, in my opinion, unable to work for up to eight hours per week, due to his accepted service related condition of generalised anxiety disorder alone. His condition is permanent and he is unsuitable for rehabilitation (T24).
21. In his final report, dated 6 July 2006 (Exhibit A1) Dr Cole says:
I am still of the view that Mr Webb suffers from a chronic generalised anxiety disorder accompanied by undue dependence upon alcohol and that his condition is directly attributable to his war time experience in Vietnam … he is a very anxious and emotionally insecure person with a poor self image who found it increasingly difficult to cope with the stresses of everyday life before his retirement in 1990 and who has since regressed to a stage where he has become unduly dependent upon his wife. I believe that his work capacity has been affected by his accepted psychiatric disabilities … I believe also that his accepted psychiatric disabilities are the sole cause of his working capacity.
22. Dr Silcock examined Mr Webb on 16 February 2006. In her evidence she agreed that Mr Webb’s work capacity had reduced below eight hours per week. She said that:
… he was having a great deal more psychiatric treatment and he certainly appeared … more depressed than he had earlier … and he reported a lot more psychiatric symptoms than had been present on the earlier examination. And he was drinking more (transcript, page 92).
23. Dr William Glaser, a consultant psychiatrist, examined Mr Webb on 14 February 2006 on behalf of the respondent. In his report (Exhibit R1), in answer to the question of whether Mr Webb’s psychiatric condition prevents him from undertaking remunerative work, his opinion was that Mr Webb could probably work for more than eight hours per week but less than 20 hours per week.
24. Dr Kenny and Dr Ian Parkin, both psychiatrists, have also examined Mr Webb and provided reports dated 18 September 2000 (Exhibit R6, page 1) and 31 July 2001 (Exhibit R6, page 15) respectively. However, neither doctor has seen Mr Webb since.
25. From the evidence relating to Mr Webb’s current condition I am satisfied that Mr Webb is, by reason of his war‑caused injuries prevented from continuing to undertake the remunerative work. I note also that this issue is not contested by the respondent.
Are the War-Caused Injuries the Only Factors Preventing Mr Webb from Continuing to Undertake that Work?
26. The third of the Flentjar questions asks whether the war‑caused injuries are the only factors preventing the veteran from continuing to undertake the remunerative work. In his submissions on this issue Mr Liefman referred to Mr Webb’s statement dated 2 July 2002 (Exhibit R6, page 41), in which Mr Webb said:
When I returned to the family business after Vietnam service, my father told me that I had lost my initiative. He said I was not the same person I was prior to service, and that I would always be a “follow up person”. In other words, he felt that I was no longer able to work without supervision.
I found it very difficult to deal with clients, and was reluctant to return telephone calls. I had lost my confidence.
Around 1989, while driving to work, I felt I could not cope with work anymore. I could no longer make any decisions. I could not cope with people both customers and staff. I left in February 1990.
…
I verily believe that but for my anxiety condition, I would still be employed in the timber company today.
27. Mr Liefman also referred to Mr Webb’s evidence to the Veterans’ Review Board on 22 June 2005 (Exhibit R3, page 11) during which he said:
Yes, I ceased work in 1990 because I couldn’t cope any more. I had dreadful problems trying to even speak to anybody on telephones, to return calls to anyone and then just going to work one day, I just decided – something just happened and I said to my wife the night before, “I can’t handle any more. I just can’t” And I just gave up work and just went into a – my doctors kept telling me all these problems, and I had this thumping in my head all the time.
28. This is consistent with the evidence given by Mr Webb at the hearing. He said:
I just hit a wall, just hit a blank wall, and just –never been the same … I just resigned. I just – s if I hit a brick wall, just stopped like that, and go to work with your slippers on, and I guess it had been welling up, and all of a sudden, it just hit me, and I just lost it completely (transcript, pages 25-26).
29. On that basis Mr Liefman submitted that Mr Webb ceased work purely due to his ill-health.
30. Mr Liefman made the point that there is no contemporaneous evidence of Mr Webb’s condition at the time he ceased work in February 1990. He submitted that Dr Kenny’s evidence should be considered against the opinions of the other examining doctors. Mr Liefman also said that it would be reasonable for the Tribunal to accept that Mr Webb did not necessarily open up to Dr Kenny and tell him what was going on in his mental state. Mr Liefman also drew my attention to the report by Dr Parkin (Exhibit R6) where, on page 22 in answer to the question of whether Mr Webb’s psychiatric condition limits his ability to work, Dr Parkin states:
I believe this man is limited in his ability to work and that his poor concentration would interfere markedly. He has obviously got significant experience working in the timber industry but I think this man would have trouble doing a simple costing on a job order let alone managing a business. He would be capable of doing other less stressful work and would probably be capable of doing simple manual labour under supervision.
31. In response to the respondent’s submissions that Mr Webb stopped working as he had an alternative income, Mr Liefman submitted that Mr Webb’s income from his investments was unchanged from before he left his work at Timbersales to afterwards and that this was not a factor that influenced Mr Webb. In regard to the effects of Mr Webb’s age and his time out of work being factors in preventing Mr Webb from resuming his remunerative work, Mr Liefman referred me to Re Freer and Repatriation Commission [2005] AATA 1256. In which case the Tribunal referred to the fact that the Commission did not put any evidence before the Tribunal to prove that these factors played a part. Mr Liefman referred me to the evidence of Mr Webb during which he said that the time since he last worked and his age would not be a block to his getting a job with his brother who has a Mitre 10 store and employs older people. Mr Webb said that he could be on the floor in the timber section, advising people what they want for building their homes and what sort of timber they could use for whatever they wanted to do….
32. Ms Casamento submitted that Mr Webb left work in 1990 as a matter of personal choice and because of the availability of his investment income. Ms Casamento referred to the lack of contemporaneous medical evidence in relation to Mr Webb’s symptoms. The earliest medical evidence is the report of Dr Kenny dated 18 September 2000 (Exhibit R6, page 1) in which Dr Kenny records the history given to him by Mr Webb that:
he didn’t see himself as having a psychiatric problem and states his own opinion that he has no reason to consider that he had, or has for that matter, any significant psychiatric or emotional problem.
33. The next occasion on which Mr Webb was examined by a psychiatrist was when he was seen by Dr Parkin in 2001. Ms Casamento referred to Dr Parkin’s report dated 31 July 2001 (Exhibit R6, page 15) in which he states that Mr Webb may well be able to work for somewhere between 20 and 40 hours per week. Ms Casamento also referred to the 6 July 2006 report of Dr Cole (Exhibit A1) in which he states that Mr Webb had a bit of a breakdown. She referred also to the oral evidence of Dr Cole during which he agreed that this was only a self-diagnosis made by Mr Webb, made some 16 years after the event, that it was a lay term and had no generally agreed upon meaning.
34. Apart from the lack of contemporaneous medical evidence in relation to symptoms and diagnosis of a psychiatric disability as a cause of Mr Webb’s cessation of work, Ms Casamento submitted that there is material in relation to his income. She submitted that Mr Webb was a man with substantial financial resources who was able to maintain a comfortable living on the basis of investment income. Mr Webb was able to send his children to private school. When Mr Webb’s father passed away in 1988 he received a significant financial benefit such that he was able to lend $80,000 to his brother. Ms Casamento submitted Mr Webb ceased work because he had enough money to live on.
35. In relation to the issues Mr Webb’s time out of work and his age, Ms Casamento relied on the opinion of Dr Silcock, who states in her report dated 25 March 2006 (Exhibit R4) that Mr Webb has now been out of the workforce for over 15 years. It would therefore be very difficult to obtain work especially as he is now aged 59. Ms Casamento made the point that Dr Silcock was not cross‑examined on this opinion. I note also that Dr Cole, in his evidence, agreed with the proposition put by Ms Casamento that Mr Webb’s age has to be taken into account in making an assessment of his ability to work.
36. Other evidence that I considered relevant to Mr Webb’s decision to cease his remunerative work is Mr Webb’s description of the impact of the new owners of the timber company in which he said:
…I was bought [sic] up, the way I thought everything is just done the right way, and they would say, “no, you have to do it this way, and do it that way”, and there were conflicting ways that I thought it should have been done, and the way they thought it should have been done. (transcript, page 25)
I accept this as evidence of some degree of dissatisfaction by Mr Webb with the methods of his new employers.
37. A further possible cause of Mr Webb ceasing work arose from Dr Cole’s evidence that Mr Webb said … he wasn’t getting anywhere (transcript page 78). In answer to my question of what Mr Webb meant by that, Dr Cole said Well, I think he felt he wasn’t making any progress in the business and could not see a future for himself (transcript, page 85).
38. I note also the evidence of Dr Kenny who said:
I understood that he simply left the job that he did, and that he was, as it were, sort of semi-retired, owned, managing property. He was investing and managing property at home. (transcript, page 96)
Although Dr Kenny did not see Mr Webb until September 2000, some ten years after Mr Webb ceased work, this account is the earliest material available to me.
39. On the issue of whether Mr Webb’s age is also a contributing factor I note the opinions of Drs Silcock and Cole. However, I accept the evidence of Mr Webb that he could have found employment with his brother regardless of his age.
Consideration of the ‘Alone’ issue
40. In Repatriation Commission v Hendy (2002) 76 ALD 47 Whitlam, Emmett and Stone JJ said at paragraph 37:
The consideration of what a veteran would probably have done, absent the service disabilities, is a hypothetical exercise. 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.
41. This decision obliges me to take into account any factor that plays a part in or contributes to Mr Webb being prevented from continuing to engage in remunerative work. The factors that I take into account are that, at the time Mr Webb ceased his remunerative work he was not happy with the way the new owners were running the business, and that he saw no future for himself in the business. I find these factors to be consistent with the evidence of Mr Webb’s significant financial resources at the time he ceased work and the opinion formed by Dr Kenny that Mr Webb simply left the job and managed his investments from home. The evidence leads me to conclude that Mr Webb’s dissatisfaction with the new owner’s methods, his own lack of future in the business, in addition to his substantial financial resources are non war‑caused factors that did contribute to some degree to Mr Webb’s decision to cease his remunerative work. As a consequence, I find that Mr Webb was prevented from continuing to undertake remunerative work for reasons in addition to his war‑caused injuries. Therefore, he does not meet the provisions of s 23(1)(c) of the Act.
42. I turn now to the decision of the Federal Court in Forbes v Repatriation Commission (2000) 101 FCR 50 in which Nicholson J said:
39. The applicant’s case requires the Tribunal to not have regard to the non war-caused condition where there is a finding that it alone did not stop the applicant from undertaking work. In my view, that course is not open to the Tribunal in the light of the words used in the first limb of s 24(1)(c). 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. The fact that a non war-caused condition is not alone causative of such preventative effect does not prevent it having that effect in combination with the war-caused condition. The possibility of combination is recognised in the third conceptual environment identified in the applicant’s case. Furthermore it is consistent with the application by a Tribunal of a common sense approach “with an eye to reality”.
40. As in the case of the present applicant, it is possible that the war-caused condition will be by far and away the more dominant of the causes of the preventative effect where there is also present a non war-caused condition having such effect in combination. The result is that the presence of the latter will deny to a veteran qualification for the special rate of pension.
43. I have already accepted that that there are non war‑caused conditions that make some contribution to Mr Webb’s cessation of remunerative work. Applying the reasoning of Nicholson J, the presence of any non war‑caused condition would deny Mr Webb the qualification to the Special Rate Pension and also the Intermediate Rate Pension. Before making such a determination, however, I am obliged to consider the effects of the effects of s 24(2)(b) of the Act.
The Ameliorating Provision
44. In his decision in Forbes Nicolson J added the following statement at the end of paragraph 40:
Parliament has sought to ameliorate this position by the provisions in s 24(2)(b), to which reference has been made.
45. Section 24(2) of the Act provides:
For the purpose of paragraph(1)(c):
(b)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
(a)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
46. For the ameliorating provision to take affect the veteran must satisfy the Commission, or in this case the Tribunal, that he has been genuinely seeking to engage in remunerative work. The only evidence related to this issue was Mr Webb’s statement that following the resignation of his directorships he has done no work at all. There was no evidence adduced on this particular point and neither party made submissions on this issue.
47. As there is no evidence of Mr Webb seeking work following his resignation from the timber company in 1990 I am not satisfied that Mr Webb was genuinely seeking to engage in remunerative work as required by s 24(2)(b) of the Act.
48. As a consequence the ameliorating provisions do not act to alter the effect of my finding in regard to the alone test of s 24(1)(c): that Mr Webb was prevented from continuing to undertake remunerative work for reasons in addition to his war‑caused injuries and, as a consequence, he does not meet the provisions of that section of the Act.
Hours of Remunerative Work
49. Sub-section 24(1)(b) of the Act and its counterpart in s 23 define the amount of work able to be undertaken in order to qualify for the Special Rate or Intermediate Rate of Pension. These sub-sections are joined to the alone test sub-sections by the word and, with the result that if the veteran fails to satisfy the alone test then the amount of work able to undertaken by the veteran is immaterial. That is the case in this matter. As I have found that Mr Webb was not prevented from undertaking remunerative work by his war‑caused injuries alone, the amount of work he is capable of undertaking does not require consideration.
CONCLUSION
50. I have found that Mr Webb ceased to undertake remunerative work for reasons in addition to his war‑caused injuries. He therefore does not satisfy the provisions of s 24(1)(c) and s 23(1)(c) of the Act which require the cessation of work due to war‑caused injuries alone. In addition, I have found that the ameliorating provisions of s 24(2) and s 23(2) of the Act are not effective in this case, as I am not satisfied that Mr Webb has been genuinely seeking to engage in remunerative work. As a consequence, Mr Webb is not qualified for either the Special or the Intermediate Rate of Pension.
DECISION
51. The Tribunal affirms the decision under review.
I certify that the fifty‑one [51] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr C. Ermert, Member
(sgd) Olympia Sarrinikolaou
Clerk
Date of Hearing: 15 November 2006
Date of Decision: 7 February 2007
Solicitor for the applicant: Mr P.J. Liefman, Barrister & Solicitor
Solicitor for the respondent: Ms R. Casamento, Department of Veterans’ Affairs
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