Maloney and Repatriation Commission [1999] AATA 879 (24 November 1999)

Last Updated: 25 November 1999

DECISION AND REASONS FOR DECISION [1999] AATA 879

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A1998/263

VETERANS' APPEALS DIVISION )

Re PAUL WILLIAM MALONEY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Pamela Burton, Senior Member

Date 24 November 1999

Place Canberra

Decision The tribunal sets aside the decision and remits the matter to the Repatriation Commission with the direction that the veteran is entitled to be paid his pension at special rate provided by section 24 of the Veterans' Entitlements Act 1986 with effect from 29 December 1994.

..................(Sgd.)......................

Pamela Burton Senior Member

CATCHWORDS

VETERANS' AFFAIRS - veterans' entitlements - disability pension - whether eligible for pension at Special Rate - application for special rate in 1995 when veteran 49 - Post Traumatic Stress Disorder - applicant in receipt of pension at 100% general rate - reasons for ceasing employment - capacity to engage in remunerative work - whether loss as a consequence of war-caused injury - whether of $50 a week constitutes "loss" of earnings

Legislation

Veterans' Entitlements Act 1986 s24

Authorities

Banovich v Repatriation Commission (1986) 69 ALR 395

Repatriation Commission v Smith (1987) 74 ALR 537

Starcevich v Repatriation Commission (1987) 76 ALR 449

Repatriation Commission v Sheehy (1995) 133 ALR 654

Re Hornery and Repatriation Commission (1998) 52 ALD 317

Re Martin and Repatriation Commission (1987) 13 ALD 83

Cavell & Repatriation Commission (AAT 2891, 19 September 1986)

REASONS FOR DECISION

24 November 1999 Pamela Burton, Senior Member

1. This is an application for review of a decision of the Repatriation Commission of 14 December 1995 which determined that the veteran was entitled to a pension at 100% of the general rate for his post traumatic stress disorder ("PTSD") and irritable bowel syndrome, which conditions it accepted as war-caused. The veteran claims that as a consequence of these conditions he is unable to work, and he seeks pension entitlement at above general rate. In arriving at its decision, the Repatriation Commission refused the veteran's claim that osteoarthrosis of his right knee was war-caused. This decision was affirmed by the Veterans' Review Board on 24 June 1998. The veteran does not pursue the claim relating to his right knee condition.

2. Mr Crabb appeared on behalf of the veteran, and Mr Sylvestre appeared on behalf of the respondent. The tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the "T-documents"). In addition a statement of the veteran dated 18 November 1998 (Exhibit B), and medical reports of Dr White, consultant psychiatrist, dated 7 July 1999 and 20 July 1999 (Exhibit A), and of Dr Henke, consultant in rehabilitation medicine, dated 27 January 1999 (Exhibit 1), were tendered at the hearing.

3. The veteran was born on 29 October 1945. He served in the Australian Army in Vietnam from 8 May 1966 to 12 May 1967. It is not in dispute that the veteran's service constitutes "operational service" for the purpose of the Veterans' Entitlements Act 1986 ("the Act").

The Legislation

4. Section 24 of the Act makes provision for a veteran who has an assessed degree of incapacity of 70% or more, to receive a pension at above general rate in certain defined circumstances. The relevant provisions provide:

24(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.

24(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.

The Issue

5. It is agreed that the veteran satisfies the conditions in paras. (aa), (aab), (a), (b) and (d) of subsection 24(1). In relation to para. (c) the respondent concedes on the evidence of Drs White and Henke, that the veteran is totally incapacitated for work by reason of his war-caused PTSD and irritable bowel syndrome, in that he is unable to undertake more than 8 hours remunerative work per week. It does not concede that the veteran's war-caused incapacity alone prevented him from undertaking remunerative work, and that he is by that reason alone thereof suffering a loss of earnings. Para. (c) is subject to subsection 24(2), and the respondent asserts that the veteran was partly incapacitated for work from other than war-caused conditions at the appropriate time, and that the wage loss he suffered of $50 a week when he ceased work in 1991 as a consequence of his war-caused condition, was not a substantial loss. It contends that the veteran was already limited in the amount he could earn as consequence of a non-war-related back condition.

Standard of Proof

6. Pursuant to subsection 120(4) of the Act the tribunal is to decide the matter to its reasonable satisfaction and, therefore, a standard of proof on the balance of probabilities is applicable (Repatriation Commission v Smith (1987) 74 ALR 537).

Assessment Period

7. It is agreed the earliest date of effect is 29 December 1994, the applicant having applied for an increase in pension on 27 March 1995. The relevant period is the assessment period commencing on the date of effect, namely 29 December 1994 to the date of this hearing.

The evidence

8. The veteran's work history is contained in his statement dated 18 November 1998 (Exhibit B). He elaborated on this statement in his oral evidence. On leaving Vietnam in 1967 he served another 3 years in the Army in Australia. He was discharged in 1970, and took up employment as a driver with the Victorian Ambulance Service. In 1975 in the course of that work he sustained an injury to his lumbar spine. He was unable to work as a result of that injury and was in receipt of workers' compensation for it until he resigned on medical advice in 1977.

9. Throughout 1977 and 1978 he worked as a taxi-driver, driving a taxi owned by his wife, up to twelve hours a day. At the end of 1978, he ceased taxi driving and he and his family moved to Junee, New South Wales, to be close to his wife's family. His wife obtained employment there, and throughout 1979 to 1982 the veteran looked after their four children at home.

10. The veteran's wife suffered an injury and was unable to work. Wanting to support his family financially, the veteran obtained two part-time jobs. The veteran worked for the Junee newsagency delivering papers. The paper run provided him with an average of 14 hours of work a week from which he earned $30 a week up until 1988 (T5, T7, T9 and T26). He also worked at a video store for 20 hours a week for $150-160 per week.

11. In 1984 the video store was sold and the veteran ceased that work. He continued the paper run, and applied to the Department of Social Security for a disability pension which he received for a short time. He also applied to the Department of Veterans' Affairs for a service pension stating that he was permanently unemployable as a consequence of his spinal injury (T3). In evidence the veteran said that, despite this declaration, he had the physical capacity to work, being restricted only in his bending and lifting activities. He said that he was told for the purposes of applying for the service pension to attribute his unemployability to his spinal injury, and did so. At that time he had not been diagnosed with PTSD and his bowel problems had not been medically attributed to it.

12. It seems that the veteran was, however, suffering from irritable bowel syndrome, and the evidence suggests that he was suffering from symptoms of PTSD at the time he applied for a service pension. This is supported by Dr Potts, the veteran's treating general practitioner, who in 1986 reported that the veteran "appears to have lost all motivation - negative personality". He observed that the veteran's life was governed by back pain and he queried whether his main problem was psychological (T8, p.24). In 1988 Dr Tym, consultant psychiatrist, diagnosed the veteran as suffering from PTSD, at which time he thought that the veteran's unemployability was "significantly contributed to by his Post-traumatic Stress Disorder, even though the client himself had been attributing his present unemployability solely to back pain" (report of 19 October 1988, T25).

13. The veteran nevertheless continued with the paper run. The work required him to ride a motor cycle. He had no physical difficulty doing the work. He was not significantly restricted by his knee or back problem. In 1991 he had several falls off his motor cycle and on one occasion he fractured his ribs. His general practitioner, Dr Potts, attributed these accidents to the veteran's lack of concentration arising out of his PTSD. Dr White later confirmed that the veteran's condition rendered him unfit for ambulance work or work as a driver due to his poor concentration "as this would make him quite dangerous" (report of 17 October 1997, T34, p.109).

14. According to the veteran's evidence, at the time he ceased work in 1991 he was working some 17-18 hours a week, from which he earned $50 a week. His service pension and his work on the paper run gave him a combined income of $175 a week. In addition, his wife was in receipt of compensation payments, and the total family income amounted to $609 a fortnight (T7).

15. In 1993 the veteran twisted his right knee worsening its degenerative condition which led to a procedure being undertaken by Dr Nichols, orthopaedic surgeon, on 8 May 1996. The veteran says that his right knee gives him no problem today.

16. The veteran considers himself physically fit for work that requires no heavy lifting or prolonged sitting, but incapacitated for work by reason of his mental condition. His duties in Vietnam were as a musician and a platoon medic. Other than in Vietnam, he has not used his musical training for deriving income. He utilised his para-medic training in the Victorian Ambulance Service. He sees no opportunity for suitable work in Junee where he resides, or Wagga Wagga, a 20-minute drive from Junee where many Junee residents work.

17. The veteran's war-caused psychiatric condition and associated irritable bowel syndrome affect him in many ways. He doesn't like crowds. He sits within a crowd only where he can see the "exit" sign. Because of his lack of concentration he has been medically advised to drive only up to 25 kms at a time. His forgetfulness affected his work on the paper run. He said he sometimes forgot deliveries. He suffers from disturbed sleep and nightmares. The veteran's evidence was that, as a consequence of his irritable bowel syndrome, he does not eat a meal before he goes out, and feels restricted to going to places where food is not served, to avoid the embarrassing consequences that might occur if he eats other than at home.

18. The veteran's wife's evidence was consistent with the veteran's evidence. The couple met in 1965 and married in 1971. She gave Dr Tym a history of the veteran being intermittently depressed, and jumpy and nervy since his return from Vietnam (T25, p.77). In evidence she said that from the time of their marriage he has screamed and moved around a lot at night. Over the last 3 years they have required separate bedrooms. She said her husband has been so depressed that he has attempted suicide. She said that he recalls events which occurred in Vietnam, including good times, but that he has difficulty recalling recent events. She does most of the driving, but said that her husband makes a 10 minute drive to pick up their mail every morning.

19. At the hearing the veteran was questioned about whether he has genuinely been seeking to engage in remunerative work. He stated that he attended the CES every fortnight. He conceded that he last sought work approximately 5 or 6 years ago, and that since ceasing taxi driving he has been engaged in only the two part-time jobs to which reference has been made.

Medical

20. A consideration of the medical evidence is necessary to determine whether the veteran's total incapacity to work in the assessment period is due to his war-caused condition alone, or whether it is contributed to by his back and knee condition.

21. Dr Nichols, orthopaedic surgeon, reviewed the veteran's knee condition after the 1996 surgery. In his report of 16 September 1997 (T34, p.107), he noted that the veteran "had some problems with aching in his knee when doing a lot of walking" but overall considered that a satisfactory result had been achieved from the procedure he carried out on the veteran's right knee.

22. Dr Henke, consultant in rehabilitation medicine, in his report dated 27 January 1999 (Exhibit 1), said in relation to the veteran's back and knee complaints:

It is noted that he sustained a back injury in approximately 1975. He resigned from the ambulance service on the basis of medical advice that he could not lift and has restricted lifting ever since. However his current examination of the back fails to reveal any marked loss of function beyond that which might be anticipated with age;

and

it does not appear that his back currently plays a significant role in terms of his unfitness for work ... he has some problems with his knee and to a lesser degree his left shoulder which again restricts his ability to do heavier physical lifting but these would not result in him being unfit for work.

Dr Henke concluded:

I am therefore of the conclusion that whilst this man originally made the decision to resign working as an ambulance officer and to restrict the nature of his work based on his back injury, the current major restriction upon his ability to work is his post traumatic stress disorder and the associated irritable bowel syndrome.

23. Dr van der Rijt, orthopaedic surgeon, in his report dated 14 November 1997 (T34, p.111), stated that he found age-related medial compartment osteoarthritis in the right and left knee. He noted the successful operative treatment in the right knee. He was unable to identify any specific injury or event which permanently aggravated or altered the natural history of the age-related degenerative condition. He did not consider that the 1975 back injury had caused any permanent incapacity or alternation in the condition. He said:

The (degenerative) changes would cause mild to moderate incapacity and would restrict the patient from undertaking heavy physical or arduous work or work that required long periods of bending or lifting. He would however have a reasonably normal work capacity consistent with his age and build.

Dr van der Rijt considered the veteran unfit to undertake long periods of standing, walking or squatting, but that his back or knee condition would "not render him unfit to undertake work delivering mail or papers".

24. The general medical consensus is therefore, that the veteran is not incapacitated for full or part-time work by reasons of his back or knee condition.

25. That the veteran, since 1991 has not been able to work more than 8 hours a week, or at all, is supported by Drs White and Henke, and is not contested by the respondent. His lack of concentration and forgetfulness hinders his ability to perform driving or clerical or other duties suitable to his physical condition.

26. Dr White, in a report of 5 June 1995 (T17) stated that the veteran had:

a clear Posttraumatic Stress Disorder with related depression. The depression is handicapping due to the reduced concentration, lack of drive and difficulty in learning new material. His memory is also affected.

At that time Dr White hoped his condition would improve. However, by 1997 he considered that the veteran was "permanently unfit for any full or part time employment for which he is suited by reason of education, training or experience, of 8 hours or more a week due to his PTSD..." (Exhibit A, report 7 July 1999). In his report to Dr Potts, of 14 May 1997, Dr White noted that the veteran's "concentration is very limited and he has an attention span of some 15 minutes when driving." Dr White regarded the veteran's poor concentration and attention with associated forgetfulness as being the major cause for the veteran's incapacity for any significant employment, and thought that "this alone would make him permanently unsuitable for any full or part time employment" (Exhibit A).

27. Consistent with the view of Dr Tym, Dr Westerink, the veteran's current treating psychiatrist, said in his report of 19 August 1998, that the veteran's "... back is currently fine but he cannot work because of his post Traumatic Stress Disorder" (T38). Dr Westerink records in his report of 16 February 1998 (T35, p.119), that the veteran is 100% disabled from PTSD, and he reported to Dr Potts on the same day (T35, p.120), that the veteran has a chronic PTSD "of considerable severity".

28. Dr Eaton, occupational physician, in his report of 10 December 1997, (T34. p.114) offered the opinion that the veteran's "... psychiatric illness negates any prospect of his physical capability allowing him to work". He found the veteran to be totally and permanently unfit for any type of work for any period of hours, because of his psychiatric condition.

29. The respondent has accepted the medical evidence that the irritable bowel syndrome arises out of the PTSD, consistent with the findings of Dr Fernon, consultant physician, that the veteran's diarrhoea is due to an irritable bowel syndrome "associated with the stress from the post traumatic stress disorder" (T23).

Findings

30. The veteran ceased work as an ambulance driver in 1975 because of a non-war caused condition, an injury to his back. However, I am satisfied on the medical evidence that his back injury had resolved well before 1991, and that by 1991 the veteran was not incapacitated for work by reason of any physical disability. The compensation payment of $10,000 he received by way of redemption of weekly compensation payments is supportive, though it is by no way determinative evidence, of the conclusion that the injury was not regarded as permanently incapacitating at the time. More persuasive is the evidence that the veteran resumed driving duties in 1978, a few years after the back injury. From the time of the back injury he was advised to avoid bending and lifting activities, but he was only moderately restricted in relation to physical work. The fact that the veteran worked as a taxi driver, and performed work which involved sitting and riding a motorcycle for the years he did, evidences the fact that neither his knee condition nor his back was an impediment to this level of physical work.

31. I accept the veteran's evidence that he was advised to apply for a service pension on the basis of his back complaint. The veteran accepted the suggestion as reasonable notwithstanding that he thought he had a physical capacity to work. At first sight, this does not reflect well on his credit. However, he was clearly lacking motivation to work then, and I accept that he had no insight into the cause of his lack of motivation and other psychological problems that he was having. The evidence suggests that he had had symptoms of that condition for some time. It seems that after the veteran ceased working for the video store in 1984 he made little effort, and was not motivated, to seek work in addition to his part-time paper delivery job. According to Dr Potts, by 1996 he had lost all motivation. When Dr Tym diagnosed the veteran's psychiatric condition in 1988, it was by then moderately severe and significantly disabling. It seems that once the veteran was in receipt of a service pension, he was content to earn no more than what he was allowed to earn without his earnings affecting his general pension rate. Taking into account these matters and the evidence of Mrs Maloney, it seems likely that the veteran's war-caused PTSD symptoms had become pronounced, lack of motivation being but one of them, to the point that he required psychiatric attention in 1988. His lack of motivation to work in 1984 and his readiness to rely on his back injury to avoid taking on further work is explicable in that light. I doubt whether the veteran had sufficient capacity to actively seek or undertake any additional work to that of the paper delivery work by the time he applied for the service pension.

32. The veteran continued his part-time paper run work despite his disabling PTSD until 1991 when the condition necessitated his ceasing that employment. By reason of his incapacity from that condition alone he was prevented from continuing to undertake the remunerative work that he was undertaking, as required by the first leg of subsection 24(1)(c).

33. The evidence is that but for the veteran's war-caused injuries he was and is capable of working in a store, driving a taxi or other vehicle, and engaging in other employment for which he has suitable qualification or skills. I note that between 1993 and 1996 the veteran had some additional right knee difficulties. However, the medical opinions speak with one voice that throughout the assessment period the PTSD and the irritable bowel syndrome, and not the knee or the back conditions, prevented him from engaging in any employment. His lack of concentration, short attention span and memory loss prevented him from continuing remunerative work that he had previously undertaken and prevent him from engaging in any otherwise suitable employment.

Whether the veteran suffered a "loss" under s24(1)(c)

34. The issue arises as to whether the veteran suffered a "loss" of salary or wages by reason of his incapacity from his war-caused disease, that he would not be suffering if he were free of that incapacity, as required by subsection 24(1)(c). It is accepted that he suffered a loss of $50 a week as a consequence of ceasing his delivery work. This raises the question of whether that is the extent of his loss, and if so, whether it is sufficient to satisfy subsection 24(1)(c).

35. Dealing with the second question first, the respondent submits that the loss of $50 a week is not a real or substantial loss. On its behalf it is submitted that the veteran's real and substantial loss of earnings arose as a consequence of his incapacity by reason of his back injury to continue to be engaged in the work of an ambulance driver. Thereafter, the socioeconomic conditions prevented him from obtaining suitable employment and receiving reasonable remuneration, and it is contended that he made no real effort to seek substantial remunerative employment.

36. The respondent referred the tribunal to the case of Starcevich and Repatriation Commission (1987) 76 ALR 449 for guidance as to what is meant by "loss" in section 24. In that case Fox J said (at p. 454):

It seems to me that the intention of para. 24(1)(c) is that the applicant must have suffered substantial loss of remuneration consequent alone upon the incapacity referred to in paras. 24(1)(a) and (b). ... the loss must be real, in the sense that the applicant cannot rely upon any remunerative work that he has undertaken in the past, but it would be unnecessarily restrictive to assess the loss by reference only to the last remunerative work undertaken before the applicant's inability to work became complete. In my opinion, a veteran's entitlement to a pension under section 24 may be based on his being prevented from continuing to undertake substantial remunerative work that he has undertaken in the past, even if that work was followed by work of a different type before the veteran ceased work altogether.

37. According to Fox J para (c) requires the veteran to satisfy three criteria:

the veteran (must be) prevented from continuing to undertake remunerative work that he was undertaking;

condition (I) above (must be) by reason alone of the incapacity, from war-caused injury or war-caused disease (to which s.24(1)(b) relates);

by reason of condition (I) above, the veteran (suffers) a loss of salary or wages or earnings on his or her own account.

The veteran in the present case satisfies all three criteria. His loss is "real" in the sense referred to by Fox J. Further, according to Sackvill J in Repatriation Commission v Sheehy (1995) 133 ALR 654, Fox J's reference to a "real" loss indicated that he "had in mind 'remunerative work that had continued for more than a very short period'." The veteran was engaged in his paper delivery work for a substantial period of time.

38. There is nothing in the legislation or the cases cited to me that the remunerative work must be other than part-time, or that loss of salary must arise from incapacity to work other than on a part-time basis. Nothing in the Act suggests the loss has to be substantial or significant (Cavell and Repatriation Commission (AAT 2891, 19 September 1986) per Senior Member McMahon). In any event, whether $50 a week is a "substantial loss" is a subjective matter. To the veteran it represents 100% of his earnings on his own account.

39. However, the veteran in this case suffered more than the mere loss of $50 a week. The "loss" referred to in the Act is not only the financial loss suffered because of the loss of existing employment but also includes the loss caused by the inability to obtain employment (Banovich v Repatriation Commission (1986) 69 ALR 395 at 402). Throughout the assessment period the veteran has been incapable of driving a taxi or any vehicle for more than 25 kms, because of his war-caused condition alone. He was previously able to do driving work, work at a store, and other work suitable to his skills and experience, restricted only in relation to lifting and bending, and long periods of sitting or walking. Senior Member McMahon (as he then was) stated in Cavell at p. 19:

A loss must mean a diminution of what the veteran might reasonably be expected to earn had he not been incapacitated. I see no reason to put an unnecessary gloss upon the Act by requiring the veteran to quantify that loss beyond a certain minimum amount.

I have already found that, but for the veteran's lack of motivation, which I concluded was a manifestation of his PTSD, arose as early as 1984 when he applied for the service pension. But for that condition it is likely that he would have had capacity to seek, or engage in work as a driver or some other suitable work in the Wagga Wagga area.

40. I acknowledge that in this case the veteran ceased previous full-time employment as an ambulance driver because he was incapacitated by his non-war-caused back condition. That was, however, in 1975. I have found that he was temporarily incapacitated and his loss of earnings was temporary. On his recovery he regained full-time employment as a taxi driver. It was noted in Banovich at 402-3, that:

... a member's loss of particular employment for a reason unrelated to a war disability would never destroy a member's subsequent entitlement to claim a special rate pension; the question would remain, at the relevant date for determination of a claim, whether the member was prevented by his or her war-related incapacity - and by that incapacity alone - from continuing in that field of remuneration activity.

41. The veteran then ceased taxi-driving and moved to an area of high unemployment. He assumed responsibility for caring for the children at home. When he sought to return to the work force, he obtained two part-time jobs amounting to almost full-time hours, notwithstanding the adverse economic climate. I note that he left one of those positions in 1984 when the employer closed the business. However, the evidence is that the veteran had employment opportunities not only in Junee, but in nearby Wagga Wagga. From this time on the evidence suggests that his war-caused PTSD left him lacking in motivation and capacity to work. There is no evidence to suggest that the veteran would not have been prepared to move if necessary to a place where he was more likely to obtain employment if he had not had his service disabilities. His lack of motivation to obtain employment and the reduction in his working capacity from 1984 onwards is more likely to have been the reason for him working less than full-time hours, than the lack of employment opportunities.

42. The veteran therefore satisfies subsection 24(1), and that he suffers a "loss" pursuant to para. (c).

Application of subsection 24(2)

43. For the reasons referred to above, paras. (a)(i) and (ii) of subsection 24(2) do not apply. Para. (b) of subsection 24(2) applies to a veteran under the age of 65 years who has not been engaged in remunerative work. In the case of Sheehy Sackville J at 664, pointed out that section 24(1)(c) is satisfied only if the veteran is prevented from continuing to undertake "remunerative work", but that when the veteran is under the age of 65, "it is enough if he or she is prevented from obtaining remunerative work by reason of the war-caused incapacity: s.24(2)(b)" (emphasis added). This is consistent with the Minister's Second Reading Speech in which he said: "The special or TPA rate pension was designed for severely disabled veterans of a relatively young age who could never go back to work and could never hope to support themselves or their families or put away money for their old age".

44. The purpose of subsection 24(2)(b) has been explained by this tribunal in Re Martin and Repatriation Commission (1987) 13 ALD 83 at 95 where it stated:

... It is there to cover the case of a veteran who was unemployed but genuinely seeking to engage in remunerative work when his incapacity from war-caused injury or disease became such as to prevent him continuing to undertake remunerative work. It allows such a veteran to satisfy the requirements of s24(1)(c) even though at the relevant time he was not undertaking remunerative work. If s24(2)(b) were not in the Act, veterans who had been unemployed at the time when their incapacity became so severe as to remove their capacity for work would never be able to qualify for pension at the special or intermediate rate.

Similarly, in Re Hornery and Repatriation Commission (1998) 52 ALD 317 the Tribunal said (at p. 332):

Section 24(2)(b) refers to a veteran who 'has been genuinely seeking to engage in remunerative work' and in the tribunal's view, this being a special provision to ameliorate s24(1)(c) in so far as its effect is that the alone test there does not apply, it was intended to apply where the veteran's genuine and active pursuit of work, that is, his or her efforts to obtain work were brought to an end by incapacity from war-caused injury or disease. (original emphasis)

45. In the present case the veteran was engaged in remunerative work, though only part time, when he became totally incapacitated by his PTSD. However, in so far as it matters that he was not in full-time employment at the time he became totally incapacitated, I have already found that from about 1984 his lack of capacity to engage in or seek extra work was a consequence of his worsening war-caused PTSD. Therefore, subsection 24(2)(b) has no application to the veteran given the facts and circumstances of his case.

Conclusion

46. I conclude that the evidence before me establishes to my reasonable satisfaction that the conditions prescribed by para. (c) of subsection 24(1) of the Act have been satisfied in the circumstances of the present case.

Decision

47. I set aside the decision under review and remit the matter to the Repatriation Commission with the direction that the veteran is entitled to be paid his pension at special rate provided by section 24 of the Act with effect from 29 December 1994. The respondent is to pay the veteran's reasonable costs as agreed or to be taxed.

I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Pamela Burton, Senior Member

Signed: Eva Dimopoulos .....................................................................................

Associate

Date of Hearing 30 August 1999

Date of Decision 24 November 1999

Counsel for the Applicant Mr Paul Crabb

Solicitor for Applicant Sneddon, Hall & Gallop

Counsel for the Respondent Mr John Sylvestre

Solicitor for the Respondent Department of Veterans' Affairs