Williams and Repatriation Commission
[2004] AATA 968
•10 September 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 968
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2002/348 & S2002/349
VETERANS' APPEALS DIVISION ) Re RICHARD LEONARD WILLIAMS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member P J Lindsay
Dr ET Eriksen (Member)Date10 September 2004
PlaceAdelaide
Decision The tribunal affirms the Repatriation Commission’s decision dated 26 July 2001. The tribunal varies the Repatriation Commission’s decision of 9 November 2001 by finding that the applicant’s rotator cuff syndrome is a war-caused injury within the meaning of s.9 of the Veterans’ Entitlements Act 1986, but affirms the decision in all other respects.
..............................................
PJ LINDSAY
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – Disability Pension – entitlement to pension at special rate – alone test not satisfied
Veterans’ Entitlements Act 1986 s 24, 120(4)
Cavell v Repatriation Commission (1988) 9 AAR 534
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Smith (MJ) (1987) 74 ALR 537
Forbes v Repatriation Commission (2000) 171 ALR 131
Banovich v Repatriation Commission (1986) 69 ALR 395
Repatriation Commission v Hendy (2004) 76 ALD 47
REASONS FOR DECISION
August 2004 Senior Member PJ LIndsay
Dr ET Eriksen (Member)1. The applicant, Richard Williams, is 56 years of age, and served as a vehicle mechanic in the Australian Army from 1 March 1966 until 29 February 1972. He rendered operational service in Vietnam from 29 January 1968 to 16 November 1968.
2. Mr Williams’ sensorineural deafness has long been accepted by the Repatriation Commission as a war-caused condition. He was first granted a service pension on 18 November 1971. He now maintains that he is entitled to payment of disability pension at the special rate, and that he satisfies s.24 of the Veterans’ Entitlements Act 1986 (the Act), which as far as is relevant for the purposes of this review, provides:
(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.”
3. By its decision dated 26 July 2001, the Commission accepted that Mr Williams suffers from additional war-caused conditions, namely, post-traumatic stress disorder (PTSD) and tinea, and increased his rate of disability pension to 90 per cent of the general rate, with effect from 5 December 2000. Mr Williams made a further claim on 7 August 2001 in respect of neck and shoulder injury. On 9 November 2001, the Commission refused the applicant’s claim for rotator cuff syndrome of both shoulders, but accepted his condition of cervical spondylosis. The Commission assessed the rate at which pension should be paid for cervical spondylosis, together with his previously accepted conditions, at 100 per cent of the general rate with effect from 7 May 2001. On 20 June 2002, the Veterans’ Review Board affirmed both decisions.
4. At the hearing, Mr E Jolly of counsel appeared for the applicant. During the hearing, the Commission’s departmental representative, Mr Crowe, informed the tribunal that the Commission had decided that it would accept that Mr Williams’ rotator cuff syndrome is a war-caused injury. The case was then argued on the basis that the only issue for determination is whether s.24(1)(c) of the Act is satisfied. In addition, Mr Crowe advised that if the applicant succeeded in relation to s.24, the Commission would accept that the applicant’s entitlement to special rate would accrue from 5 December 2000. The material before the tribunal comprised the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act1975 (the T documents) together with exhibits tendered by the parties. Mr Williams gave evidence at the hearing and the tribunal heard evidence over the telephone from Mr H Frensch. The medical evidence was contained in a number of reports in the T documents and others that were tendered at the hearing.
evidence
5. Mr Williams said he was trained in the Army as a mechanic. His job was to repair tanks, armoured personnel carriers and other, lighter vehicles such as trucks. Immediately following his discharge in February 1972, he worked very briefly in a garage. In the next 12 months he worked in a succession of jobs. Mr Williams has twice worked for Mitsubishi Motors Australia Limited. Initially, he stayed for 6-8 months, then left to drive trucks for about 12 months. He returned to Mitsubishi where he remained for approximately 26 years, until he accepted a redundancy package in June 2000.
6. Describing his duties at Mitsubishi, Mr Williams said he worked as a vehicle inspector and was involved in the mechanical assessment of vehicles before they were sent to distributors. Later, he worked in positions all over the plant, from engineering to body work, and then in the testing of cars and trucks including their road durability. More recently, he said he worked in an office job, as a supervisor in the product development area within engineering, with responsibility for the work of 27 staff. As a supervisor, Mr Williams was responsible for submitting reports on subjects such as the manufacture of prototype vehicles, assessment of the durability of prototype vehicles and components under various stress conditions, and costings. As well, he looked after the management of the mechanical shop at the vehicle proving ground. He supported the marketing group by having new vehicles ready for trials and evaluation by media representatives. But he did not carry out any mechanical or engineering work requiring physical labour because he was not a member of the relevant union and such work was exclusively for members of the union.
7. Mr Williams’ evidence was that as time went on, he was given more and more responsibilities. He enjoyed the technical side of the job. There was something new and different to do all the time, and he found this challenging and interesting. In cross-examination, he said he would go back to working at Mitsubishi if the company’s financial prospects were sound.
8. During the last 4 to 5 years of his employment at Mitsubishi, Mr Williams noticed that he had problems controlling his temper. He found that he had difficulties dealing with a number of his staff. He would become frustrated easily by mistakes of others, even if the mistakes were insignificant. By way of explanation, Mr Williams said he did not enjoy dealing with people whom he did not consider to be competent. At times he would lose his temper and become very aggressive with some of them. He also had a number of run-ins with his superiors and, on more than one occasion, with a director of Mitsubishi who was in charge of the company’s engineering facility. He did not discuss his experiences in Vietnam with anyone at Mitsubishi.
9. It was around March or April 2000 that Mr Williams first heard that Mitsubishi was going to offer redundancy packages. He thought that any restructure by Mitsubishi would leave him without a job and “plan my area out of existence”. He thought that Mitsubishi would not want to keep him. Mr Williams discussed the possibility of leaving Mitsubishi with Helmut Frensch, his immediate supervisor. He said Mr Frensch was “wishy washy” when they discussed the applicant’s future with Mitsubishi. Mr Frensch’s statement of 4 April 2003 was accepted in evidence [Exhibit A5] wherein he said:
…
I work in the product development section.
This basically involves building prototype vehicles and testing future models.
If the models meet the test, then they are moved on for production.
Richard was in a supervision position.
A lot of his work was basic office work.
A lot of his work involved going to the road-testing area, co-ordinating the fleet vehicles, attending at the test track and co-ordinating that, being responsible for press releases.
It was light work.
I am aware that Richard throughout his years at work had a tendency to be aggressive and short-tempered.
He tended to be very loud speaking which would often be viewed as him yelling.
He tended to get upset with other people, people he was supervising or other subordinates quite easily.
There certainly were numerous occasions where I would have to smooth things over which involved talking with him.
On other occasions, I would also have to talk with other individuals that were involved.
I am aware that he had hearing problems which did make it difficult to communicate with him on occasion.
…
In cross-examination Mr Frensch agreed that he made a formal record of the applicant’s behavioural problems in some of the staff appraisals that were conducted every six months. He said some technicians had complained that Mr Williams was boisterous. Mr Frensch said he was involved in discussions with staff concerning the offer of redundancy in 2000. He gave them, Mr Williams included, the impression that if they did not accept the redundancy, they may soon after find themselves without both a job and the redundancy payment.
10. The redundancies that occurred around the time of the applicant’s departure, involved positions across the company. The Mitsubishi group was facing competitive pressures. The Chairman of Mitsubishi in Australia, Mr N Takehara, explained that restructuring was to be implemented and by letter dated 27 April 2000 he provided the following information to all employees of Mitsubishi Motors Australia Limited (MMAL) (exhibit R2):
Re: Restructuring at MMAL
It is my difficult duty to announce a program of strategic restructuring at Mitsubishi Motors Australia Ltd that will involve the need to further reduce our workforce. In a move aimed at rebuilding the competitiveness of our business, approximately 600 positions will become redundant, most of them at the staff/management levels.
It will be our endeavour to achieve this reduction through a Voluntary Redundancy Program similar to that implemented in Manufacturing last year.
…
This restructuring decision results primarily from:
·our current cost structure is unsustainable, even at significantly higher production levels, and not sufficiently flexible;
·general restructuring and rationalisation taking place across the MMC group of Companies world-wide; and
·the absolute imperative that MMAL restructures to be [sic] internationally competitive and profitable by 2001. …
11. Mitsubishi’s Mr M Hannan, Manager, Vehicle Testing and Proving Department, informed the respondent (by letter dated 29 August 2003) that, of the approximately four hundred redundancies in total, 20 were from product development, leaving 21 in that department [Exhibit R1]. A statement by Mr D Clutterbuck, Mitsubishi’s Manager, Organisational Effectiveness, dated 13 August 2004 [Exhibit R3] stated that he was involved in the coordination and management of company restructuring that occurred over the period from late 1999 to late 2000. The statement confirms that Mr Williams left employment on a voluntary separation package. It reads in part:
…
During this period, a number of employees voluntarily sought an interest in accessing a voluntary separation package (VSP), resulting in approximately 400 employees taking the VSP and voluntarily leaving the company. …
I am not aware if Mr Williams experienced any difficulties during his employment with [Mitsubishi], however, having said this, I was not directly responsible for him on a day to day basis. …
Additionally, Mr Williams personnel file does not indicate any leave was accessed as a result of conditions(s) arising out of his military service. No counselling requirements or incidents are indicated in his file. …
12. Mr Williams said he started thinking about leaving Mitsubishi around a year before he accepted the redundancy package in June 2000. There was no single incident or trigger that helped make up his mind to leave. He said engineering staff and his supervisors were beginning to question aspects of his decision-making and this upset him. Clashes with subordinates and managers were becoming more frequent. In himself, he knew his attitude was not good and that he was being harder on his staff. Although he was reminded that he should be more political and respectful to senior management, Mr Williams told the tribunal he had not received warnings or been threatened with dismissal because of his behaviour. He was “getting uptight” at home more and more. Despite these emotions, he maintained he was still working effectively in June 2000 when he left.
13. Mr Williams said he had made up his mind to take the redundancy package in April 2000 while driving back alone from a Pajero testing job at Alice Springs. Considering the likelihood that the engineering division would be totally re-structured, and that engineering related work represented fifty per cent of his duties, Mr Williams thought about the role he would continue to have at Mitsubishi. When the formal redundancy package offer was made some time later in April 2000, he accepted it. After discussions with a manager, the applicant agreed not to leave immediately because he still had three particular projects that were incomplete and he thought it would be irresponsible to leave without finishing his part in them. He stayed on until mid-June 2000. Mr Williams’ decision was made easier because his brother-in-law had already offered him a job managing the workshop at his garage, Affordable Mechanics, in Murray Bridge. The applicant said that he was going to take that position because he wanted to see if he could settle down in a new job that was not as demanding. The salary was only marginally lower than what he had been receiving at Mitsubishi.
14. Mr Williams said he was still quite able to do his work effectively at the time of finishing up at Mitsubishi. He added that he had never been criticised for not doing his work satisfactorily or for being overdue on completion of projects. His decision to leave Mitsubishi was made because he considered that if he were to stay on, something might happen. Also, he was aware that it was not in his family’s interest for him to continue to work for Mitsubishi because of the effect it had on him and home life. He said it was his intention to find an easier job in a calmer environment. The offer from his brother-in-law was not a decisive matter, but certainly the job at Affordable Mechanics fitted those criteria. Unfortunately, he stayed there for just two weeks because he concluded that there was not enough work for four mechanics at that garage. He said the job was not enough of a challenge for him.
15. About five years ago, Holden offered Mr Williams a job in vehicle testing. He declined because a move to Victoria would have been too disruptive to his daughter’s schooling. Mr Crowe asked the applicant whether he would accept the same offer from Holden if it were made to him today. Mr Williams said he would, but only if he could work just three days a week. He would take a similar type of test driving job at Mitsubishi, so long as he was not required to prepare reports. He would also accept a job as a truck driver, if he could work three days a week.
16. Mr Williams said that he thought he was a marketable employee and that he would move on and get another job after leaving Mitsubishi. He has had interviews for a number of jobs. One was for a delivery truck driver at Cadburys, but he suspects an offer was not made because he lives approximately 45 kilometres from their premises. He was offered another position in Queensland, but he rejected it because he did not want to move there. He also had an interview with a phone company but is not aware why his application was unsuccessful. Not long after leaving Affordable Mechanics, a trucking company put him on to drive a road train. However, he has not had further offers from them, which he suspects is due to his living an hour’s drive away from their depot. Earlier in 2004, he had a few weeks work in a snack bar during a busy, holiday period. In addition Mr Williams said he has been helping friends and associates by doing repairs and mechanical work on their vehicles. He is not paid in cash because commonly he is doing the work for plumbers, electricians or other tradespeople, and they reciprocate in kind.
17. Mr Williams said that while at Mitsubishi, he had missed out on a promotion to project co-ordinator. He was informed that he was unsuccessful because of his hearing problem. His evidence was that from time to time colleagues would draw attention to the fact that he has a hearing impairment and occasionally would make fun of his disability.
18. Mr Williams was asked whether he regarded himself as unemployable. He said he did not, and thought he could manage short-term work but not over the long-term because of his PTSD.
Medical evidence
19. In March 2001 Mr Williams lodged a claim for disability pension in respect of ‘emotional and behavioural disorder’. On the claim form [T5], Mr Williams stated the reason for ceasing work on 16 June 2000 was “inability to cope – caused redundancy”. He explained in the following terms how this disability affected his former employment as a supervisor at Mitsubishi and his ability to seek employment, “My emotional state caused such a problem at work that redundancy was the only option. This is reflected in company personnel reports. My emotional state was such that I was unable to maintain or gain employment.” The respondent arranged for an assessment by Dr M Ewer, consultant psychiatrist, on 2 May 2001. In his report dated 3 May 2001 [T13] Dr Ewer noted that the applicant had not previously seen a psychiatrist nor had he contacted counsellors. The history referred to Mr Williams’ being intolerant of others in the workplace at Mitsubishi, having difficulty with authority figures and not coping well with pressure.
20. Dr Ewer made a diagnosis of PTSD. In completing the assessment of Mr Williams' disability, pursuant to the Guide to the Assessment of Rates of Veterans’ Pensions (GARP), Dr Ewer stated:
…
A number of Mr. Williams’ symptoms are interfering with his ability to work. He is no longer able to cope with pressure, responsibility or deadlines. His memory and concentration are poor and his irritability leads him into conflict with others. He rebels against authority figures. When taken together, these problems render Mr. Williams unfit for paid employment.
This equates to an impairment rating of 8.
…
In Dr Ewer’s opinion the applicant “ … cannot work eight hours per week because of his psychiatric problems which are service related. I would encourage Mr Williams to seek psychiatric treatment but I doubt whether this will lessen his impairment rating which can therefore be considered ‘permanent’ from a medico-legal point of view.”
21. Mr Williams has been seen by Dr J Bastian, consultant in rehabilitation medicine, on a number of occasions. He was referred to Dr Bastian by his solicitor in connection with a claim for compensation under the victims of crime legislation. Mr Williams had been assaulted in December 1998. Dr Bastian reported on 27 November 2001 [T27] that Mr Williams had presented with neck, left shoulder and arm symptoms. His report stated:
… in my opinion his shoulder problem is not going to impede him from returning to clerical, supervisory or light manual bench type work. My opinion in this regard is in relation to his shoulders, and not in relation to his other medical problems. In my opinion, in relation to his shoulders, medical restrictions would include avoiding above shoulder height tasks, static arm forward flexion postures, and forceful pushing and pulling with the upper limbs.
In an earlier report dated 17 July 2000 [Exhibit A6], Dr Bastian noted that he had seen Mr Williams on 13 July 2000. This consultation occurred about a month after he left Mitsubishi. The report states as follows:
Mr Williams accepted a voluntary separation package on 16 June 2000. He reported this at least in part, was due to his ongoing neck pain and headaches, and also the fact that he felt he had lost interest in his work since this assault.
consideration
22. In making a determination, decision or assessment of the rate of pension payable in relation to Mr Williams’ application, s.120(4) of the Act requires the tribunal to decide the matter to its reasonable satisfaction, thereby introducing the civil standard of proof: Repatriation Commission v Smith (MJ) (1987) 74 ALR 537. Pursuant to s.19 of the Act, the relevant time for determining Mr Williams’ entitlement to the special rate of pension is during the “assessment period”, that is from 5 March 2001 until the date of the tribunal’s decision: Forbes v Repatriation Commission (2000) 171 ALR 131.
23. The respondent conceded that the applicant satisfied ss.24(1)(a) and 24(1)(b) of the Act. The tribunal’s task under s.24(1)(c) is to determine whether, during the period from the date of his claim for increased disability pension, 5 March 2001, to the present, Mr Williams’ incapacity from his war-caused disabilities, alone, has prevented him from continuing to undertake remunerative work that he was undertaking. The second limb of the paragraph requires the tribunal to determine whether by reason of being so prevented, he has suffered 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. Mr Crowe conceded that there would be such a loss of income in the event that the tribunal found in Mr Williams’ favour on the first limb of the provision.
24. The Full Court in Flentjar v Repatriation Commission (1997) 48 ALD 1 identified the following as the four issues that a decision-maker and the tribunal must consider (at 4-5):
1.What was the relevant “remunerative work 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?
25. For the purpose of 1. above, the tribunal refers to Banovich v Repatriation Commission (1986) 69 ALR 395, where the Full Court discussed the expression “remunerative work” in earlier, though for present purposes, substantially similar, legislation:
But it is, in our opinion, erroneous to read the phrase ‘remunerative work that the member was undertaking’ as referring to a particular job with a particular employer. The term ‘remunerative work’ is used in the Schedule in a context which indicates an intention to refer to work generally … Consistently with that use, the phrase ‘remunerative work which the respondent was undertaking’ should be read as a reference to the type of work which the member previously undertook and not to any particular job. (at 402)
26. Applying these principles, the tribunal finds that the following constitute the “remunerative work that the veteran was undertaking” for the purposes of s.24(1)(c):
– mechanical work on cars and other vehicles
– manager of vehicle product development, including road testing, promotion of newly released models and preparation of estimates of costs and budgets
- maintenance of property used in motor vehicle product development
– test driving vehicles
– truck driving
27. The second Flentjar step requires the tribunal to consider whether Mr Williams’ war-caused disabilities prevent him from continuing to undertake remunerative work. The parties agreed that this is the case and given Dr Ewer’s opinion, it is a conclusion that we agree with, and we find accordingly.
28. For the purposes of the third Flentjar step, it is necessary to determine whether the applicant’s war-caused conditions alone prevented him from continuing to undertake remunerative work that he had been undertaking. In this context, it should be noted that Burchett J in Cavell v Repatriation Commission (1988) 9 AAR 534 approved the following statement made there by the tribunal as being an appropriate application of the statutory test: “Again it follows from the use of the word ‘alone’ in s.24, that any factor having employment consequences which play a part in the applicant’s inability to work or to obtain and hold employment, is sufficient to displace the applicant’s case for pension at special rate.” (at 539-540) More recently, the Full Court in Repatriation Commission v Hendy (2004) 76 ALD 47 has emphasised that the tribunal must assess whether other factors have played a part in preventing a veteran from continuing to engage in remunerative work:
The Tribunal's task was to assess what the Veteran probably would have done, if he had none of his service disabilities during the assessment period. …
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. So long as the Tribunal performs this exercise, the conclusions drawn from the assignment of the relative impact the various factors on the ability of the veteran to continue in remunerative work is not reviewable, except in exceptional circumstances. Moreover, having considered any or all of the factors which may have contributed to a veteran's incapacity, the Tribunal is then required to determine whether it is the veteran's war-caused injury or war-caused disease, or both, alone which prevent the veteran from continuing to undertake remunerative work. Error on the part of the Tribunal is determining whether the veteran's war-caused injury or war-caused disease is the sole determinant in the prevention of continued remunerative work is, similarly, not open to review. (at 54-5)
29. Counsel for the applicant submitted that Mr Williams’ PTSD was the sole cause of his leaving Mitsubishi, since he was having a significant degree of difficulty in dealing with his staff. Further it was submitted that it was a coincidence that he left by accepting the redundancy package. For the respondent, it was conceded that Mr Williams’ war-caused conditions, including rotator cuff syndrome, contribute to his present unemployment. It was submitted, however, that there was a range of other factors that played a part in preventing him from continuing to undertake remunerative work: the availability of Mitsubishi’s voluntary separation package, his cycle of work at Mitsubishi came to an end immediately prior to his departure and he lives too far away from interested employers. There was no evidence that he has been unsuccessful in obtaining employment on account of his accepted disabilities.
30. Mr Williams’ evidence was that, at the time of the redundancy offer, he was aware that his role at Mitsubishi would change and might not exist after the restructuring was put in place. His immediate supervisor Mr Frensch was unable to assure him as to his future. Indeed Mr Frensch’s evidence was that he intended to convey the impression that there was no prospect of job security for employees in product development in the aftermath of the restructuring. Mr Williams said the climate at Mitsubishi was quite uncertain at the time of his leaving and the package was financially beneficial for him. We consider the opportunity for employment by his brother-in-law was also a factor that influenced his decision to leave Mitsubishi when he did.
31. Mr Williams said that he thought about resigning twelve months before he actually left Mitsubishi, but did not do so because things were not bad enough then to convince him to leave. His evidence was that he had been looking around and considering alternative employment options for some time prior to April 2000 when he resolved to leave. While we accept that there was evidence of Mr Williams’ suffering symptoms associated with PTSD, the evidence before us does not demonstrate that his coping mechanisms for the emotional and behavioural problems he was experiencing, had deteriorated to any material extent in that twelve month period.We acknowledge that his sense of duty compelled him to finish his projects before he left. Equally, this action suggests to us that he was able to cope with his duties and the work environment, and this finding is confirmed by his evidence that he was still working effectively. At all events, we are reasonably satisfied that the applicant’s acceptance of the voluntary redundancy package, and being mindful of Mr Takehara’s explanation of the context in which it was offered, was a significant factor that contributed to his being prevented from continuing to undertake remunerative work.
32. Since leaving Mitsubishi, the applicant was employed for a brief period as a mechanic by his brother-in law at Affordable Mechanics. He has done mechanical work on friends’ motor vehicles in an informal barter arrangement, at times up to forty hours a week according to evidence given at the Board’s hearing (T2). In relation to the former, his reasons for resigning were that the work, mainly preparing repair quotes, was not sufficiently challenging and he was dissatisfied with the way in which the business was operated. In evidence he said he did not experience any shoulder or neck problems while working there and that he got on well with the other staff. There is no material before us that suggests his war-caused conditions were reasons for his not continuing with the employment.
33. We infer from his evidence that Mr Williams has not succeeded with applications for further road train truck driving or the delivery driver job at Cadburys, because of the distance between his home and those businesses. The evidence does not implicate his accepted war-caused conditions as playing any part in his failure to secure those jobs. We conclude, therefore, that having to travel for up to an hour to potential places of employment is a significant factor that prevents him from continuing to undertake the remunerative work referred to in par 26. In passing we note that the evidence does not point to the accepted disabilities causing any difficulty in his driving the distances required.
34. Employing commonsense as a practical guide to our task (Cavell’s case at 539) we are not satisfied, on the balance of probabilities, that the applicant’s war-caused conditions alone prevent him in the assessment period from continuing to undertake his remunerative work. Step 4 in Flentjar thus does not arise for consideration.
decision
35. The tribunal therefore affirms the Commission’s decision dated 26 July 2001. The tribunal varies the Commission’s decision of 9 November 2001 by finding that the applicant’s rotator cuff syndrome is a war-caused injury within the meaning of s.9 of the Act but affirms the decision in all other respects.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision of PJ Lindsay, Senior Member and Dr ET Eriksen, Member
Signed: .....................................................................................
AssociateHearing 16 &17 August 2004
Decision 6 September 2004
Counsel for applicant E JollyRespondent’s representative A Crowe
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