Youngberry and Repatriation Commission
[2004] AATA 309
•26 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 309
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/88
VETERANS' APPEALS DIVISION )
Re COLIN JOHN YOUNGBERRY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr O Rinaudo, Member Date26 March 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ..................(Sgd).......................
O Rinaudo
Member
CATCHWORDS
VETERANS ENTITLEMENTS – application for special rate pension – alone test – substantial contributors - applicant could not be said to have ceased work due to war-caused injury alone – not genuinely seeking to engage in remunerative work – decision affirmed.
Veterans’ Entitlements Act 1986 ss 23, 24, 120(4)
Flentjar v Repatriation Commission [1997] 1200 FCA
Starcevich and Repatriation Commission (1987) 76 ALR 449
Repatriation Commission v Hendy [2002] FCAFC 424Re Hornery and Repatriation Commission (1998) 52 ALD 317
Forbes v Repatriation Commission [2000] FCA 328
Moorcroft v Repatriation Commission (1999) FCA 862
Cavell v Repatriation Commission (1988) 9 AAR 539
Hendy v Repatriation Commission [2002] FCA 602
Conway v Repatriation Commission [2003] FCA 704REASONS FOR DECISION
26 March 2004 Mr O Rinaudo, Member Decision under Review
1. The applicant seeks review of a decision of the respondent dated 1 June 2000 which determined disability pension at 80% of the General Rate with effect from 10 September 1999. On 8 December 2000 the Veterans’ Review Board set aside the decision under review and substituted a new decision that pension is payable at 100% of the General Rate from and including 1 September 1999.
2. The applicant seeks Special Rate pension pursuant to section 24 of the Veterans’ Entitlements Act 1986.
History
3. The applicant was born on 5 September 1947. The applicant served in the Australian Army from 20 March 1968 to 8 May 1988 and undertook operational service from 6 January 1969 to 7 January 1970. The applicant’s eligible service is from 7 December 1972 until 8 May 1988. As at 10 December 1999, the applicant’s accepted disabilities were:
· Lacerated left leg with lateral popliteal nerve palsy
· Right medial meniscectomy
· Sensori-neural hearing loss
· Bilateral tinnitus
· Localised osteoarthrosis of the left knee
· Localised osteoarthrosis of the left ankle and foot
· Localised osteoarthrosis of the right knee
· Gastro-oesophageal reflux disease
4. On 2 October 2001 the respondent accepted the applicant’s claim made on 27 April 2001 for olecranon bursitis both elbows, alcohol dependence and localised osteoarthritis affecting both shoulders with effect from 27 January 2001. The applicant’s claim for cervical spondylosis was rejected.
Legislative Framework
5. The legislation relevant to this application is contained in the Veterans’ Entitlements Act 1986 (the Act) and, in particular, in section 24 of that Act.
6. For the purposes of this application sections 24(1)(a) and 24(1)(b) are satisfied. These sections state as follows:
“24 Special rate of pension
(1) This section applies to a veteran if:
(a) either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week;”
7. The Tribunal must consider the effect of sections 24(1)(c), 24(2)(a) and 24(2)(b). These sections provide as follows:
(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(2) For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.”
8. Section 24 deals with Special Rate. Section 23 of the Act, which is in similar terms to that of Section 24, deals with Intermediate Rate. The only difference is that under section 23 the applicant must be incapable of working more than 20 hours per week and under section 24 the applicant must be incapable of working more than 8 hours per week.
9. At one point the applicant was making an application under section 23. However, in accordance with the applicant’s Statement of Facts and Contentions it now appears that the applicant is relying solely on section 24 and seeks Special Rate only.
10. Section 120(4) of the Act applies with respect to standard of proof. That section requires the Tribunal to be satisfied about the issues to its reasonable satisfaction.
The hearing
11. At the hearing the applicant gave evidence. Mr Collins, Dr Knight and Dr Sowby also gave evidence. In addition to the oral evidence, the following exhibits were tendered:
Exhibit 1 “T” Documents
Exhibit 2 Statement of Colin John Youngberry dated 13 March 2001
Exhibit 3Supplementary Statement of Colin Youngberry dated 22 March 2001
Exhibit 4Supplementary Statement of Colin John Youngberry dated 8 March 2002
Exhibit 5Supplementary Statement of Colin Youngberry dated 19 June 2002
Exhibit 6Statement of MJ Collins dated 20 March 2001
Exhibit 7Report of Dr Sowby dated 12 April 2001
Exhibit 8Employment Questionnaire dated 31 May 2001
Exhibit 9Statement of Service dated 23 July 2002
Exhibit 10Employment Questionnaire dated 29 July 2002
Exhibit 11Bundle of Tax Returns – 1993 to 2002
Exhibit 12Service Pension Claim Invalidity Details
Exhibit 13Statement of Michelle Buckland dated 1 April 2003
Exhibit 14Letter from L Shearer, Department of Veterans’ Affairs to Gilshenan and Luton dated 17 April 2002
Exhibit 15Letter from L Shearer, Department of Veterans’ Affairs to Mr Osberg dated 8 April 2002
· Dr Knight
12. Dr Knight gave evidence and confirmed the matters set out in his report dated 11 April 2000 at folios 48 and 49 of Exhibit 1.
13. Dr Knight stated he could not confidently say when the onset of the applicant’s conditions had occurred. He stated that the statements in his report were accurate as told to him.
14. Under cross-examination Dr Knight noted that he considered that the neck and right ankle conditions accounted for 15% whole person impairment. He stated that the overwhelming cause of incapacity (as much as 85%) was as a result of the accepted conditions.
15. Dr Knight conceded that as a driver or supervisor the neck condition of the applicant would not be a problem.
· Applicant – Colin Youngberry
16. The applicant gave evidence and confirmed the matters set out in his statements at Exhibits 2, 3, 4 and 5. He confirmed that from 1968 to 1988 he had been an infantry soldier in the Australian Army. He had been in the Assault Pioneers. He said that in February 1975 during Cyclone Tracey he injured his left knee while chain-sawing a tree. He was transferred to Ordinance after this and became a warehouse supervisor.
17. The applicant left the Regular Army in 1988 and thereafter was employed with the Army Reserve full time until 1990. He said that after this he worked on his house to get his house built and worked for relatives building things and using his hands which he liked to do.
18. In late 1990 or early 1991, the applicant moved to Laurieton where he now lives and worked on a go-cart track as a supervisor for about five months. The owner went bankrupt and he lost his job. He looked for work but could not find work in that area at that time.
19. In 1994 he and his wife returned to Queensland where they lived for some years. He said that he looked for work and went to interviews. However, he said that because of his obvious orthopaedic condition he was not employed. He said that because his problems had come on him at the time of his discharge he was unattractive to prospective employers. He said that the jobs that he secured were either through relatives or friends. He said that after the go-cart work he worked as a casual labourer employed with William J McMahon, concreting contractor, who was a relative of his wife.
20. The applicant then worked for a downpipes manufacturer for a period of three weeks in three separate periods. This was a company called Cleg and he worked for them in 1995 and 1996. This was standing work and involved very little walking. He said that the person in charge knew he had orthopaedic conditions and had accounted for in this in the jobs that he gave him.
21. After this in 1996, the applicant worked for Home Hardware and received cash in hand. He said he received $80 per day or $50 for a half day. This work was secured through a friend called Mike Collins. Mike Collins had also secured him the job with Cleg.
22. The employer at Home Hardware was Mr Osberg. This was at Burpengary. Mr Youngberry said that he was desperate which is why he accepted the job on the conditions as he had not been able to secure a permanent job since leaving the Army. He said the reason for this had always been because of his extensive orthopaedic conditions and difficulties with alcohol as well.
23. The applicant said he wanted to join the Police Force and he would have continued to work. If he had not been injured he said he would have stayed in the Army. The applicant also noted that there was a report that he had worked one day as a truck driver. He said this was for a friend of his. He said he got injured below the right knee and did not get paid for this job. He could not recall whether this job was before or after his job at Home Hardware.
24. Under cross-examination, the applicant confirmed that in 1988 he was living at Brackenridge. In 1991 he started work on the go-carts and remained there for five months in Laurieton and stayed there until 1994. He then came back to look for work at Burpengary. This is when he did the four weeks of concreting in 1995/1996.
25. The applicant said he used to go to Caboolture CES looking for work. He said that he did not register for unemployment because he was receiving superannuation. He said he used the superannuation until it ran out. He said his wife had a job at Tip Top Bakery for two years. He stated the truck driver whom he had worked for, but not been paid, was Mr Mark Atchinson.
26. The applicant confirmed he had worked at Burpengary Hardware but had not declared this on his income tax returns. He said the owner, Mr Osberg, and he had entered into a “sweetheart” deal.
27. He also said he had undertaken mowing jobs for cash.
28. He confirmed that in May 1997 he had lost his job at Burpengary Hardware because the boss had told him that he would get a more able-bodied person.
· Michael Collins
29. Mr Michael Collins gave evidence. Mr Collins confirmed that he and Mr Youngberry had been friends for some time. He said they met in the 1980s in the Army. Mr Collins confirmed his statement at Exhibit 6. He confirmed that he had worked at Home Hardware for a period of five years ending in 1998. He knew that his employer was looking for employees. He asked Mr Youngberry, whom he thought would be ideal for the job, to come down for an interview. It soon became obvious that he was unable to carry out the duties because of his difficulty with his mobility. He said he observed Mr Youngberry in physical discomfort. He said that on the Saturday Mr Youngberry had an obvious limp and on the Sunday he was wearing knee guards. He said he gave Mr Youngberry help with his job. He confirmed that Mr Youngberry had been replaced by a much younger person. He confirmed that Mr Youngberry did not participate in the Anzac Day marches because they are too long.
30. Under cross-examination, Mr Collins confirmed that he was the supervisor of the casual drivers at Home Hardware. He said it was a rotating roster and Mr Youngberry worked on call but always worked Friday, Saturday and Sunday.
31. Mr Collins said he knew that Mr Youngberry’s right foot would drop. He said he left Home Hardware in 1998.
· Dr Sowby
32. Dr Sowby gave evidence and confirmed his report dated 12 April 2001. Dr Sowby confirmed his comments at page 2 of the report that:
“Mr Youngberry reports he first developed right ankle problems in 1996. He felt that this was due to favouring this leg because of restrictions caused by his old left leg injury. This has continued to deteriorate over the past 5 years. He has not received any specific treatment for this and similarly not currently undergoing any specific treatment.”
33. Dr Sowby also confirmed the comments in his report that:
“Mr Youngberry reports he developed Bursitis in both elbows in 1997, though his elbows had been causing him symptoms and difficulties prior to this. This currently causes him difficulties when standing after sitting in a chair.”
34. On page 3 of his report, Dr Sowby confirmed that:
“Mr Youngberry first experienced problems with his wrists and hands in January 2000, when his wrists became swollen. This episode lasted approximately 3 weeks before resolving without specific treatment. Currently he has ongoing discomfort in his fingers, worse on the right, that restrict his ability to fully flex his fingers and has reduced his general grip strength.”
35. He also confirmed that Mr Youngberry’s lifting capacity was:
“He is able to lift up to 15kg on an occasional basis, though when his symptoms are bad his lifting capacity is significantly less.”
36. Dr Sowby confirmed that on average Mr Youngberry drinks 10 stubbies of mid-strength beer per day and has done so since 1968. He said that Mr Youngberry confirmed that on his binges this would increase to 15 stubbies per day.
37. Dr Sowby confirmed that Mr Youngberry’s hand and back problems would have an effect on his employment. He confirmed that Mr Youngberry’s gout caused widespread problems in his joints. However, he considered that Mr Youngberry should undergo further examination in respect of his gout. Dr Sowby concluded that the applicant’s medical conditions would have an effect on his ability to work.
38. Under cross-examination, Dr Sowby confirmed his opinion that:
“In my opinion, Mr Youngberry’s current ‘Accepted Conditions’ would render him incapable of undertaking remunerative work for more than 8 hours per week. It is also likely that his Non-Accepted Disabilities would also independently cause a total incapacity for him to undertake remunerative work.”
39. He confirmed that Mr Youngberry’s accepted conditions would be of sufficient severity to have caused him work-related difficulties. He acknowledged that Mr Youngberry’s conditions would have been a substantial contributor to his ceasing work. In particular, he referred to Mr Youngberry’s neck and lumbar conditions. He confirmed the comments on page 4 of his report with respect to Mr Youngberry’s conditions that:
“His neck movements were mildly restricted in all directions. His thoraco-lumbar movements were similarly restricted, except for lumbar extension, which was very limited.”
Submissions
40. Mr Harding, Counsel for the applicant, referred the Tribunal to the decision of Flentjar v Repatriation Commission [1997] 1200 FCA (10 October 1997) and in particular to the comments of Branson J at page 5 of the decision where his Honour said:
“In my view the issues before the AAT in this case were as follows:
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?”
41. As to section 24(1)(a), Mr Harding submitted that the applicant satisfied this provision as the applicant was in receipt of a pension at a rate higher than 70%. Mr Harding confirmed that the date of effect was 27 January 2001 and that as at that date the applicant was receiving 100% of the General Rate of pension. Mr Harding noted that alcohol abuse and bursitis had been added as accepted conditions at that time.
42. In respect of section 24(1)(b), Mr Harding referred to the report of Dr Knight and in particular paragraph 7 at folio 49 of Exhibit 1 where Dr Knight stated:
“No, in my opinion, Mr Youngberry is not fit to work 8 hours or more but less than 20 hours per week.”
43. Mr Harding submitted that based on the evidence presented, the Tribunal would accept that the applicant was incapable of working for greater than 8 hours per week as a result of the accepted conditions alone.
44. Mr Harding submitted that the Tribunal should consider that the relevant type of work to which section 24(1)(c) relates, as far as the applicant is concerned, is driving or supervising. It was submitted that the Tribunal would regard work which was less arduous or onerous as being the type of work to which the section applied.
45. In this regard Mr Harding referred the Tribunal to the comments of Fox J in Starcevich and Repatriation Commission (1987) 76 ALR 449 and which referred to the type of work as follows at 454:
“substantial remunerative work …. undertaken in the past, even if that work was followed by work of a different type before the veteran ceased work altogether.”
46. In respect of the “alone test”, Mr Harding referred the Tribunal to the decision of the Full Court in Repatriation Commission v Hendy [2002] FCAFC 424 when considering what the applicant would probably have done absent the service disabilities.
“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.” [emphasis added]
47. In this regard Mr Harding submitted that the Tribunal would be satisfied that the applicant’s accepted conditions alone prevent him from undertaking remunerative employment.
48. Mr Harding submitted that the Tribunal would be satisfied that the applicant was genuinely seeking work as required by section 24(2)(b) as he had kept trying to work and had in fact found work, including work at Home Hardware. Counsel submitted that the applicant’s accepted conditions are the cause of his inability to find employment.
49. Mr Harding further submitted that the Tribunal would be satisfied under section 24(2) that the applicant was suffering loss of salary and wages. The applicant did not intend to retire and wanted to continue in employment.
50. Mr McAninly for the respondent submitted that the Tribunal would not be satisfied that the applicant had ceased work because of his accepted conditions. The applicant did not cease work with the Army Reserve because of his accepted conditions. In any event, after that he had a number of jobs including five weeks concrete laying, five months as a go-cart attendant and twelve weeks in ten months with a downpipe manufacturer and with Home Hardware.
51. Mr McAninly questioned why the applicant had not disclosed the work at Home Hardware previously. It was also noted that the applicant had several small jobs for cash.
52. Mr McAninly questioned why the applicant had not registered with Centrelink for unemployment. He submitted that there was no evidence of the applicant looking for work. He referred to the decision in Re Hornery and Repatriation Commission (1998) 52 ALD 317 where the applicant’s active pursuit of remunerative work ceased when he was granted disability pension. The applicant in that case could not bring himself within section 24(2)(b).
53. Mr McAninly submitted that the applicant did not meet the “genuinely looking for work test” in this case. It was submitted that the applicant was content to retire. In any event, the critical date was the date that the applicant left work.
Discussion and Decision
54. In determining eligibility for the Special Rate pension, known in the Act as the totally and permanently incapacity (TPI) pension, the Minister in his Second Reading Speech in May 1985 sought to clarify the criteria:-
“…to qualify for a TPI pension a veteran must be eligible for the 100 per cent general rate pension. In addition, the TPI rate pension can become payable only when a veteran is totally and permanently disabled by accepted disabilities and is thereby precluded from continuing to engage in remunerative work. If a person has had the usual span of a working life or has retired voluntarily or has left employment for reasons other than accepted disabilities, a TPI pension is not payable.”
55. To succeed in this application, the applicant must establish that the war-caused injuries alone caused the loss of salary, wages or earnings under section 24(1)(c) of the Act. It is important to consider whether the loss of employment is a direct result of the war-caused injuries and not related to any other factors. As Beaumont J indicated in Repatriation Commission v Smith (1987) 15 FCR 337:
“The tribunal must attempt an assessment of what the respondent probably would have done if he had none of his service disabilities.”
56. The importance of attributing the loss of employment solely to the war-caused injury was again emphasised by RD Nicholson J in Forbes v Repatriation Commission [2000] FCA 328 when he declined to follow the test as outline by Dowse J in Moorcroft v Repatriation Commission (1999) FCA 862. Instead, RD Nicholson J affirmed the view in Cavell v Repatriation Commission (1988) 9 AAR 539 and restated (at 33):
“….any factor having employment consequences which played a part in the applicant’s inability to work or to obtain and hold remunerative employment, is sufficient to displace the applicant’s case for pension at the special rate.”
57. Having made this comment, however, RD Nicholson J highlighted the difficulty veterans incurred in attempting to establish that their injuries alone were the cause of their unemployment. He also acknowledged the further difficulty incurred under section 24(2) and concurred with Burchett J of the need to apply a commonsense approach “with an eye to reality” when considering veteran applications under this section. Burchett J’s view expressed in Cavell is often cited as the preferred approach to be utilised in ascertaining whether an applicant has satisfied the “alone test”. Burchett J stated that to characterise a test as the “sole, unique and absolute cause” of the cessation of remunerative work was incorrect because it has the tendency to:
“…distract the tribunal from its true task….It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which commonsense is the proper guide.”
58. Bearing this in mind, the Tribunal must determine whether the applicant is prevented from undertaking remunerative work by reason of incapacity from war-caused injuries alone.
59. In this case the Tribunal accepts that the type of remunerative work which would apply to the applicant would be driver or supervisor. However, the Tribunal does not consider this issue until it is satisfied that pursuant to section 24(2)(a) the applicant did not cease to engage in remunerative work for reasons other than his incapacity from his war-caused injury or that the applicant is incapacitated or prevented from engaging in remunerative work for some other reason.
60. An analysis of the applicant’s work history shows that he left the Army Reserve in full-time service when that engagement ceased on 23 February 1990. In 1993 the applicant worked for William J McMahon and earned $1,500 from 5 May 1993 until 18 June 1993. His income tax returns do not show any income in 1993/94 or 1994/95 although Mr Youngberry states that he was undertaking casual jobs both for himself and others. In 1995/96 the applicant disclosed in his income tax returns that he worked Clegg Manufacturing Pty Ltd and earned $2,960 between 21 August 1995 and 30 June 1996. After that he does not show any income although he states that he worked for Home Hardware from May 1996 until April 1997 as a casual driver (according to Mr Collins).
61. In a statement dated 8 January 2002, the applicant’s employer at Home Hardware, Mr Osberg, stated:
“Because of his apparent limitations due to his orthopaedic conditions, I believe that Mr Youngberry could not be employed to work any more hours than what he was receiving as a casual driver.”
62. Mr Osberg said that he was receiving on average a little less than 20 hours per week. Mr Osberg went on to say:
“Because we required a full-time employer, I had to let Mr Youngberry go.”
Presumably Mr Osberg means employee.
63. In his employment questionnaire dated 31 May 2001, Mr Osberg states that Mr Youngberry’s employment was terminated for “staff restructure”.
64. It was not until 1999 that Mr Youngberry received 80% of the General Rate of disability pension.
65. Accordingly, even putting Mr Youngberry’s case at the highest, and accepting that he ceased employment in 1996/97 and not 1993 as suggested by the respondent, the Tribunal cannot be reasonably satisfied that the applicant ceased work by reason of his war-caused disabilities alone. There is simply no evidence to satisfy the Tribunal on the basis of reasonable satisfaction.
66. The evidence about Mr Youngberry’s employment at Home hardware both by the applicant and of Mr Osberg is ambiguous and unreliable. On the one hand Mr Osberg says that he had to let Mr Youngberry go because he needed a full-time employee and on the other he says Mr Youngberry was let go because of “apparent orthopaedic injuries”.
67. Mr Youngberry did not disclose this income. He says that he got this and previous jobs through friends of the family. His evidence was that he was paid cash of $80.00 per day or $50.00 for a half day.
68. In the Tribunals view it is more likely than not that Mr Osberg wanted a worker who could work more hours than Mr Youngberry. In this regard it is in the Tribunal’s view likely that Mr Youngberry’s accepted conditions were impacting on his ability to work but there is simply no evidence that he gave up work solely because of his accepted conditions. The Tribunal therefore finds that Mr Youngberry did not cease work because of his accepted conditions alone.
69. Accordingly, the Tribunal finds that the applicant does not satisfy section 24(2)(a) of the Act.
70. The Tribunal must now consider whether the applicant has, pursuant to section 24(2)(b) of the Act, been genuinely seeking to engage in remunerative work and that his war-caused incapacity is a substantial cause of his inability to obtain remunerative work in which to engage.
71. In his report dated 12 April 2001, Dr Sowby reports:
“In my opinion, Mr Youngberry’s current ‘Accepted Conditions’ would render him incapable of undertaking remunerative work for more than 8 hours per week.”
72. The applicant admits that he has not been seeking work since he ceased work at Home Hardware in 1997. It should be remembered that Mr Youngberry’s accepted disabilities were added to in January 2001 by the inclusion of olecranon bursitis below elbow, alcohol dependence and localised osteoarthritis affecting both shoulders.
73. In this regard the Tribunal has considered the comments of Madgwick J in the decision of Hendy v Repatriation Commission [2002] FCA 602 that:
“51. Section 24(2)(b) is an ameliorating provision specifically included in the Act to deal with a veteran who does not come within the provisions of s 24(1). To come within s 24(2)(b) an applicant must be under the age of 65 and have been genuinely seeking to engage in remunerative work, and the war-caused incapacity must be the substantial cause of the inability to obtain remunerative work. The Tribunal, having found that the applicant did not satisfy s 24(1)(c), did not consider whether the applicant could meet the provisions of s 24(2)(b) which, if applicable, would have deemed him to have been prevented by reason of his incapacity from continuing to undertake remunerative work that he had been undertaking.
52. Spender J considered s 24(2)(b) in Hall. His Honour said (at 461):
‘It seems to me that the question of whether a veteran has been `genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing to so seek' has to be addressed in a realistic way, having regard to the nature and extent of the incapacity. Many veterans are permanently incapacitated by war-caused injury or disease for any form of remunerative work, and the requirement that such persons should be genuinely seeking work seems to involve something of a charade.’
His Honour also observed that evidence which shows that a veteran who may not be able to seek employment but indicated a willingness to accept work if any could be found, would be enough to satisfy the "genuinely seeking" requirement of s 24(2)(b).”
74. This decision and the decision in Hall were considered by Dowsett J in the decision of Conway v Repatriation Commission [2003] FCA 704 in the following terms:
“7. The applicant's first point is that the test has in some way been incorrectly applied. This submission relies upon a decision of Spender J in Hall v Repatriation Commission (1994) 33 ALD 454 in which his Honour said of s 24 (at 461):
‘It seems to me that the question of whether a veteran has been "genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing to so (sic) seek" has to be addressed in a realistic way, having regard to the nature and extent of the incapacity. Many veterans are permanently incapacitated by war-caused injury or disease for any form of remunerative work, and the requirement that such persons should be genuinely seeking work seems to involve something of a charade.’
8. That passage was quoted with apparent approval by Madgwick J in Hendy v Repatriation Commission [2002] FCA 602 at [52]. I am not entirely sure that I understand the significance of the passage. As I understand par 24(2)(b), there must be an inquiry as to whether or not the relevant applicant has been genuinely seeking to engage in remunerative work in the past, that is prior to his becoming incapacitated for the purposes of s 24. Then it is necessary to enquire whether or not he would be continuing to seek to engage in remunerative work had he not been incapacitated, and whether the incapacity is the substantial cause of his inability to obtain remunerative work. The "genuinely seeking" test relates to the work history of the applicant rather than to efforts which he might make after he becomes incapacitated. Although the construction of the section is not an easy matter, this appears to have been the view taken by the Tribunal in Re Hornery and Repatriation Commission (1998) 52 ALD 317 at 331. I consider it to be correct.
9. If this is so, then the observations made by Spender and Madgwick JJ mean only that a realistic approach must be taken to the efforts made by any particular applicant to find employment. There can be no objection to such a proposition, but it is of little assistance for present purposes. I do not consider that to assert that the Tribunal failed to take a realistic approach to the application of par 24(2)(b) raises a question of law.”
75. In the present case then what can be said about he applicants attempts to seek work. Clearly enough there is no evidence that the applicant sought work after his employment with Home Hardware ceased. If The Tribunal was to consider that Mr Youngberry’s last employment was with Clegg than the Tribunal could consider the applicant's employment with Home Hardware as a genuine attempt to seek work. Under the section the Tribunal would then have to be satisfied that the substantial cause of the applicant ceasing that employment was his accepted incapacities.
76. There is no evidence before the Tribunal, which would satisfy this test. In any event the applicant did not seek any other work after this.
77. Accordingly, in this case the Tribunal finds that the applicant does not satisfy the requirements of section 24(2)(b) and therefore does not meet the requirements of section 24(1)(c) of the Act.
78. In the circumstances, the Tribunal affirms the decision under review.
I certify that the 78 preceding paragraphs are a true copy of the reasons for the decision herein of Mr O Rinaudo, Member
Signed: Nicca Grant
AssociateDate/s of Hearing 16 April 2003
Date of Decision 26 March 2004Counsel for the Applicant Mr A Harding
Solicitor for the Applicant Gilshenan and Luton
For the Respondent Mr D McAninly
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