Hill and Repatriation Commission [2000] AATA 63 (3 February 2000)

Last Updated: 4 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 63

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1997/1530

VETERANS' APPEALS DIVISION )

Re Allan Claude HILL

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member Dr J R Vallentine, Member

Date 3 February 2000

Place Sydney

Decision The Tribunal affirms the decision under review.

..............................................

M T Lewis

Presiding Member

CATCHWORDS

VETERANS AFFAIRS - disability pension paid at intermediate rate - application for increase in rate of pension - whether entitled to special rate - whether unfit for work of eight hours or more per week - whether dog-breeding remunerative work or hobby - whether suffered loss of earnings

Veterans' Entitlements Act 1986- s24(1)(b), s24(1)(c)

Starcevich v Repatriation Commission (1987) 18 FCR 221

Banovich v Repatriation Commission (1986) 69 ALR 395

Repatriation Commission v Sheehy (1995) 39 ALD 286

Gauntlett v Repatriation Commission (1991) 32 FCR 73

REASONS FOR DECISION

3 February 2000 Mrs M T Lewis, Senior Member Dr J R Vallentine, Member

1. This is a review of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 6 May 1997 (T2) which refused an application by Allan Claude Hill ("the Applicant") for an increase in the rate of pension and determined that the pension be continued at the Intermediate Rate. The delegate's decision was affirmed by the Veterans' Review Board ("the VRB") on 23 September 1997 (T7), and the Applicant lodged an application for review by this Tribunal on 7 November 1997. All applications for review were in time. Therefore the earliest effective date if this matter is to succeed is 25 March 1996, being the date on which the application for increase in pension was lodged.

2. The Applicant was granted pension at the Intermediate Rate by this Tribunal on 16 April 1993 (Q1992/1) backdated to 19 January 1990. He has the following accepted war-caused disabilities -

* bilateral sensori-neural deafness

* iridocyclitis left eye with secondary cataract and macular degeneration

* membrano proliferative glomerulo nephritis

* haemorrhoids

* cervical spondylosis

* lumbar scoliosis

* right iritis

* right chondromalacia patella

* generalised anxiety disorder

3. The Tribunal had before it the documents provided by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. At the hearing the Applicant gave oral evidence.

The following documents were tendered as evidence on behalf of the Applicant -

* Report of Dr M G Baz, occupational physician, dated 6 July 1998 (exhibit A);

* Report of Dr A Dinnen, consultant psychiatrist, dated 31 March 1999 (exhibit B);

* Documents extracted from documents produced by the Respondent in response to a summons (exhibit C).

The following documents were tendered on behalf of the Respondent -

* Report of Dr A S Prakash, orthopaedic surgeon and specialist in rehabilitation medicine, dated 27 August 1998 (exhibit 1);

* Report of Dr R D Lewin, consultant psychiatrist, dated 14 August 1998 (exhibit 2).

legislative background

4. The application for increase must be assessed in accordance with s24 of the Veterans' Entitlements Act 1986 ("the Act"), which provides, insofar as relevant -

24 Special rate of pension

(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.

Applicant's Evidence

5. The Applicant was born on 10 February 1936 and at the date of his application for increase he was aged 60 years (T4). The Applicant served in the RAAF between 1958 and 1978 and left on the completion of 20 years' service. He provided a work history in a signed undated statement (exhibit C). That statement indicated he had periods of employment at the Patents and Trademarks Office and at the Munitions Filling Factory in 1978, and between 1978 and 1989 he was employed by the Department of Defence at the Guided Weapons and Electronic Support Facility. He was retrenched in 1989 because of the amount of sick leave that he had been taking.

6. In his oral evidence he said that in the last six months of his employment in the public service he was absent from work a lot because of iritis and back pain. He specifically recalled being off work for six weeks in December 1988 and being absent for a few days between January and March because of appointments with an eye specialist and an ear specialist. He said that he was advised by Dr Pittorino, his local doctor, to give up work and seek an invalidity pension. He said that at the time he felt he was not "pulling his weight" because of having so much time off work.

7. The Applicant said in 1988 he was examined by a Commonwealth Medical Officer ("the CMO") to assess work fitness (exhibit C) because of the amount of sick leave he was taking. At that time he was considered fit for clerical work. The Applicant thought Dr Pittorino was aware of the CMO's finding and disagreed with it. He said that at the time he did not feel capable of working. He said that as the purchasing officer, most of his work was undertaken on the computer and he was having difficulty looking at the computer monitor. He said that he stayed on for three months after receiving Dr Pittorino's advice in order to receive a redundancy package. The Applicant gave the following evidence about leaving work -

A. Well, I was off on sick leave over my Christmas holidays and when I went back to work in January I went and saw the manager and said to him that I was going to resign on invalidity grounds and I was advised by Dr Pittorino to do so and he said to me, he said, "Well", he said, "It might be to your financial advantage to hold fire for a couple of months because there's some retrenchments coming up and your position could be one of them.

Q. So after that discussion..

A. In virtual fact he was telling me that my position was becoming redundant, that's the way I took it.

....

Q. What happened next?

A. Well, they offered me the redundancy package. It was a - and then they said that in one of the letters virtually that I wouldn't be able to get a transfer anywhere. One of the letters with the redundancy package saying that my position was redundant, if you accept voluntary redundancy, that's the word, voluntary, I was trying to think, and, but virtually that I wouldn't be employable again.

8. The Applicant said a number of others were also made redundant. He did not know whether or not he would have been made redundant had he not suffered from any disabilities. He was unable to recall whether any of the redundancies were involuntary. He was unable to recall the specific content of the letter he received prior to the redundancy.

9. The Applicant accepted the redundancy package and ceased full time work on 22 February 1989. He then moved to northern New South Wales. He said he owned five dogs and decided to try to earn money by breeding dogs. He bred two or three litters, but was getting paid significantly less for the dogs he was selling than when he was in Sydney. He said he decided to stop dog breeding in 1994 because of back pain caused by lifting the dogs that weighed 18 to 19 lb. He felt unable to manage the grooming requirements. The business required cleaning out the dog shed daily by mopping and hosing, and grooming the dogs about three times a week when there were shows. On the day before a show the Applicant was required to wash, dry and groom each dog. On the day of a show he loaded the car with dog trolleys, drove to the show and then groomed the dogs and showed them. He said that he attended about 10 or 11 shows a year. He said he now owns two dogs that do not require much grooming.

10. In cross-examination the Applicant said that he probably sold a total of about ten dogs. He said his tax returns always indicated that the dog breeding business made a loss. He began breeding after he left the RAAF in 1978 but only registered a business name in 1989. He said the amount of clerical work involved in the dog breeding business was minimal.

11. The Applicant said he last sought alternative employment three or four years ago. He registered with the Commonwealth Employment Service ("the CES") as it then was, and attended a disabled persons' seminar. After the completion of the seminar a CES officer advised him that he would be unable to obtain employment because of his disabilities. The Tribunal notes a letter from CES dated 27 June 1990 that is consistent with this evidence (exhibit C).

12. The Applicant said he is currently able to sit for periods of between fifteen minutes and half an hour before experiencing back pain. When he stands up after sitting, his back is stiff and sore, but it is relieved after moving around for a few minutes. He takes prescribed medication for pain relief.

13. On 12 June 1991 Dr Allcock, surgeon, provided a report (exhibit C) in which he referred to the Applicant having fallen on his back in March 1991, and X-rays showed a crack fracture of the sacrum at S4. In cross-examination the Applicant said he could not recall pain following that fall. Since the incident he said he has been attending a chiropractor every two months for manipulation, which relieves his back pain.

14. The Applicant said his knee is sore but not swollen. It clicks, "rubs" and aches with a burning sensation when he walks. It also aches when he sits.

15. The Applicant said his anxiety condition has worsened in the last five years, since he ceased work. He gets upset over minor things and feels that he is unable to cope properly. He considers that his son and daughter left him because of this behaviour. He said they could not stand his outbursts of temper. He said he had occasional outbursts of temper while he was working. At present he is not undergoing any treatment for his anxiety condition.

16. The Applicant said he has never suffered from metastatic melanoma of the bowel despite references to that effect in the documentary evidence. He also said the reference in Dr Prakash's report to a consultation for conjunctivitis is incorrect (exhibit 1). He said the consultation was in respect of iritis of the left and right eye. He said he does not currently suffer from asthma and bronchitis. He uses an asthma puffer sometimes.

Dr M G Baz

17. Dr Baz, occupational physician, examined the Applicant on 25 June 1998 and prepared a report dated 6 July 1998 (exhibit A). She noted a history of low back pain with prolonged sitting that was aggravated by walking. He reported a sitting tolerance of 30 minutes because of back pain and irritability. The Applicant's neck was stiff and sore at night. His right knee was sore but not swollen and he reported an ache and numbness in the knee, particularly when walking. He had difficulty using stairs because of knee pain and back pain, and he was breathless on inclines.

18. In respect of his vision, the Applicant said he has had recurrent iritis since his war service. He may be free of symptoms for up to three months and then his eyes ache and feel sore and gritty. He reported that he had suffered episodes of four to five weeks' duration about five times during the year prior to Dr Baz's examination. The symptoms are treated with prescription eye drops, which cause photophobia and poor vision. This reduces his ability to read print or watch television. The Applicant said he used to take two to three weeks off work at a time about three or four times a year because of the effect of the medication.

19. The Applicant has difficulty understanding conversation when there is background noise because of bilateral sensori-neural hearing loss. He wears bilateral hearing aids.

20. The Applicant suffers from a generalised anxiety disorder. He stated he was easily irritated and depressed at times, but that generally his mood was "reasonable". He does not take any medication or receive any psychiatric treatment for this condition.

21. The Applicant also suffers from labyrinthine hypoactivity, which has not been accepted as a war-caused condition. He reported sudden onset of giddiness many years ago. He no longer takes regular medication to control this condition and feels a "little off balance" but only rarely.

22. Dr Baz reported -

"He took frequent leave for his eye problem. He requires (sic) 6-8 weeks leave, in one period, during his last year employment. He was referred, by his supervisor, to the CMO on two occasions for assessment of fitness for work. However he was deemed to be "fit" so eventually, in December 1988, his local doctor recommended that he retired. He returned to work in January 1989 and discussed retirement with his supervisor. He was advised to continue until March 1989 as this would have certain financial benefits for him.

23. Dr Baz opined that the Applicant's frequent exacerbations of iritis significantly impinged on his work capacity. The discomfort affected his concentration and the effect of the medication upon his vision reduced his ability to undertake clerical and administrative tasks. Dr Baz added that based upon his history, the Applicant could only be expected to work for half of any year because of his iritis.

24. Dr Baz did not consider that the Applicant's back and neck pain or his hearing loss would preclude him from work. She opined that his generalised anxiety disorder significantly limited his work capacity. His ability to deal with other discomfort and altered vision were adversely affected by the irritability resulting from the anxiety disorder. The difficulties in interpersonal relationships and his social withdrawal also reduced his effectiveness as an employee.

25. Dr Baz opined that the combination of accepted disabilities, in particular the generalised anxiety disorder, iridocyclitis and iritis, effectively preclude the Applicant from work. These conditions led to his retirement in 1989 and continue to preclude him from regular employment. She opined that the Applicant is unable to work for eight hours a week or more solely due to his war-caused conditions.

Dr A Dinnen

26. Dr Dinnen, psychiatrist, examined the Applicant and provided a report dated 31 March 1999 (exhibit B). He opined that the Applicant suffers from a generalised anxiety disorder. He assessed the level of impairment from the psychiatric condition as 44 points using GARP 5. He opined that the Applicant's psychiatric illness would significantly restrict him from working, and doubted whether he would be able to work more than 8 hours a week and whether any specific treatment would improve his condition. He opined that the Applicant's alcohol intake was providing him with some relief, in the place of treatment.

Dr R Lewin

27. Dr Lewin, psychiatrist, examined the Applicant at the request of the Respondent and provided a report dated 14 August 1998 (exhibit 2). The Applicant gave a history of anxiety symptoms and moderately heavy and sustained use of alcohol over many years.

28. The Tribunal will disregard those parts of Dr Lewin's report which relate to the association between the Applicant's condition and his war service. That fact is not at issue as the Applicant's generalised anxiety disorder is accepted as being war-caused and Dr Lewin agrees that the Applicant suffers from that condition. Dr Lewin provided a GARP-V assessment of the Applicant's psychiatric condition at 10 impairment points. He made no assessment of the Applicant's work capacity.

Dr A.S Prakash

29. Dr Prakash, orthopaedic surgeon and specialist in rehabilitation medicine, examined the Applicant at the request of the Respondent and provided a report dated 27 August 1998 (exhibit 1). On examination, Dr Prakash recorded the Applicant was able to squat and stand on his tip toes and heels, and there was no wasting of his upper or lower limb muscles. Dr Prakash observed the following movements of the cervical spine-

* Full flexion;

* Extension reduced by 25 degrees;

* Lateral flexion reduced by 15 degrees on both sides;

* Rotation reduced by 40 degrees on both sides.

Dr Prakash observed the following movements of the thoraco-lumbar spine-

* Flexion and extension of the thoraco-lumbar spine were reduced by 10 degrees;

* Lateral flexion and rotation to both sides was full;

* Straight leg raising was 80 degrees on the right side and 90 degrees on the left;

* Sciatic and femoral nerve stretch tests were negative on both sides.

30. Dr Prakash opined that in relation to the Applicant's musculo-skeletal disabilities he is fit to perform eight hours of work per week, provided he is not required to do repeated movements or carry more than 5 kilograms. Dr Prakash noted the Applicant's age and the fact that he has not worked since 1989 and questioned whether he was motivated to return to the workforce.

submissions

Applicant

31. In respect of s 24(1)(b) the Applicant relies on his oral evidence and the opinions of Dr Baz and Dr Dinnen. The Applicant's evidence was that he ceased his public service position because he felt he could not continue working. It was submitted he was unable to work for eight hours per week or more.

32. It was submitted that Dr Lewin did not address the issue of work capacity and that while Dr Prakash gave his opinion about work capacity, he confined his consideration to the Applicant's musculo-skeletal problems. His opinion did not address the auditory, psychiatric or visual problems.

29. It was submitted there has been deterioration in the Applicant's condition since he was awarded pension at the Intermediate Rate in 1993. The Applicants' oral evidence and the findings of medical experts who examined him in the last 12 months support this contention. The Applicant's anxiety condition has worsened over the past three to five years. He gave up his work with the dogs because of his back condition.

30. It was submitted that whether the public service position or the dog breeding business was seen as the Applicant's last remunerative work was immaterial, because he gave up each activity for the same reasons. It was submitted that the question of whether an activity was "remunerative" related to whether there were earnings from that activity. The earnings of a business are derived from its revenue. Whether or not the business generated a profit is not a relevant consideration. It was submitted that the dog breeding business could not properly be characterised as a hobby, as the Applicant had registered a business name and lodged tax returns in respect of it.

Respondent

31. The Respondent conceded that in respect of s 24(1)(a) of the Act the Applicant has a 70 percent medical impairment. It was submitted that it is open to the Tribunal to find on the evidence that s 24(1)(b) is not satisfied. If the Tribunal accepts Dr Lewin's finding of an extremely low level of psychiatric impairment and the CMO's finding in July 1988 that the Applicant can continue working, then it may conclude there is no qualification even for the Intermediate Rate.

32. It was submitted that in respect of s24(1)(c) the Tribunal must also assess what has changed since the Applicant was granted Intermediate Rate pension. The Applicant's evidence was that both his back and anxiety conditions might have been a little worse, but he did not mention that his anxiety condition was a problem in relation to the dog breeding business. It was submitted that although the Applicant registered a business name and treated dog breeding as a business, it never generated a profit. The Applicant gave evidence that he sold about ten dogs for between $100 and $150 each. It was submitted that this amount be considered an insubstantial income and should not be considered remunerative work: Starcevich v Repatriation Commission (1987) 18 FCR 221. Even if it was remunerative work, the Applicant was not suffering a loss of salary, wages or earnings because the dog breeding business had never generated a profit.

33. It was submitted for the Respondent that there is some uncertainty about the Applicant's accident in 1991 and whether this contributed to any increase in back problems. It was submitted for the Applicant in reply, that the suggestion that the fall in 1991 worsened the back condition was not put to the Applicant with any specificity to enable the Tribunal to be satisfied that any aggravation occurred.

consideration of preliminary issues

34. On the evidence the Tribunal accepts that reference in the s37 documents to the Applicant suffering from metastatic melanoma is not accurate. The Tribunal also accepts that there is insufficient evidence about the Applicant's fall on his back in 1991 to determine whether that incident aggravated his war-caused back condition.

35. The Applicant was granted Intermediate Rate pension by the Tribunal on 16 April 1993. The specific findings of the Tribunal are not available and in any event it is not open to this Tribunal to review that decision. Even if those findings were available, they would not be binding on this Tribunal. Unless the Tribunal was to find that the Applicant's war-caused conditions have improved since the time of that decision, and that as a consequence he no longer meets the criteria for Intermediate Rate pension, the Tribunal cannot otherwise find that the Applicant does not continue to be entitled to payment of pension at the Intermediate Rate. There is no such evidence before the Tribunal, and indeed the uncontroverted evidence of the Applicant at the hearing was that his conditions have deteriorated since the Tribunal made its decision in 1993.

36. The Respondent conceded the Applicant meets the requirements of s24(1)(a). The Tribunal accepts that this concession was properly made. Therefore, it is difficult to know why the Respondent relied on the report of Dr Lewin. The section of the report that questioned whether the Applicant's generalised anxiety disorder was in fact related to his war service is not relevant to these proceedings. It is not open to the Tribunal to look behind the acceptance of generalised anxiety disorder. There is no doubt from the evidence and from the opinion of Dr Lewin that the Applicant suffers from generalised anxiety disorder. It is not clear, therefore, why Dr Lewin has taken this approach in his report. The Tribunal did not have the benefit of the letter of instruction from the Respondent to Dr Lewin that requested his examination and report. Dr Lewin's GARP assessment of the Applicant's psychiatric condition appears to achieve no purpose as the Respondent has conceded s24(1)(a). As the Applicant is paid Intermediate Rate already, s24(1)(a) was unlikely to have been at issue. At most, Dr Lewin's report when taken in juxtaposition with the report of Dr Dinnen, amounts to a conflict of medical opinion about the severity of the Applicant's psychiatric condition. Dr Lewin does not provide any opinion regarding the Applicant's capacity to work because of his psychiatric condition despite that being the main thrust of these proceedings.

consideration of evidence and findings of fact

Section 24(1)(b)

37. The Tribunal finds that the Applicant's back and neck conditions preclude him from continuing his business as a dog breeder. On the evidence of Dr Prakash the Applicant is unable to lift more than 5 kg. His dogs weigh 18 to 19 lbs. The Tribunal accepts the evidence of Dr Baz and finds that the Applicant is unfit for work of eight or more hours a week because of the combination of his accepted disabilities. The Respondent did not provide any comparable evidence on this issue. The Tribunal notes that although Dr Prakash considered the Applicant was fit to perform eight hours work per week, that opinion related only to the Applicant's musculo-skeletal disabilities. He paid no regard to the Applicant's eye condition, which on the evidence of Dr Baz, would alone preclude him from working on average more than half of any year. It was also the cause of considerable absenteeism before he left his public service position. Dr Prakash also took no account of the effects of the Applicant's psychiatric condition on his capacity to work. Given these significant omissions, Dr Prakash's opinion is not very useful.

38. The Tribunal has some difficulty in accepting the evidence of Dr Dinnen that the Applicant's psychiatric condition alone would preclude him from work of more than eight hours a week. The Tribunal is more inclined to give much lower weight to the severity of the Applicant's psychiatric condition. Nothwithstanding that, when taken in conjunction with all his other accepted disabilities, the Tribunal is reasonably satisfied the Applicant meets the test in s24(1)(b) as at the date of application for increase, 25 March 1996.

Section 24 (1)( c)

39. The Tribunal must consider whether the Applicant meets the provisions of s24(1)(c), as at the application date, 25 March 1996: Banovich v Repatriation Commission (1986) 69 ALR 395. The first issue which the Tribunal must consider is whether the Applicant's work as a dog breeder was remunerative work for the purpose of s24(1)(c). Counsel for the Applicant tendered sundry documents at the hearing relating to the previous proceedings before the Tribunal when Intermediate Rate pension was granted (exhibit C), which have a bearing on this issue. Unfortunately the Tribunal had no opportunity to consider the content of those documents during the hearing. Presumably the Respondent also did not consider the significance of the documents adequately as the Respondent did not cross-examine on them, notwithstanding that they were documents held by the Respondent and produced in response to a summons.

40. The Applicant has been registered as a dog breeder since he ceased work as a public servant ten years ago, and indeed he was undertaking work as a dog breeder prior to ceasing full-time work in 1989. Since he ceased work and moved to northern New South Wales he made a significant capital investment in relation to his dog breeding activity and made a small number of sales. Associated with being a dog breeder he has also been involved in attending regional dog shows with his dogs. The issue is whether the Applicant's dog breeding after he moved to northern New South Wales was remunerative work or a hobby.

41. The Tribunal notes a report of Dr Pittorino, the Applicant's local doctor until August 1989 when he moved to northern New South Wales, dated 19 December 1992 (exhibit C) , in which he stated -

I remember that Mr Hill was a dog breeder for some years before he left work. He carried on after leaving work but by 1989 he had to reduce this as the cleaning of kennels and feeding of puppies caused his back to become very painful.

Despite this, it was the Applicant's evidence at the hearing that he persisted with this work until 1994 when he ceased work as a dog breeder because he could not cope with the physical activities any longer as a result of his war-caused musculo-skeletal conditions. However, the Tribunal notes a report of Dr Henke, consultant in rehabilitation medicine, dated 4 September 1992 (exhibit C) in which he said -

After leaving the Commonwealth Public Service he apparently started breeding dogs but this did not appear to be satisfactory, and he later registered with the Commonwealth Employment Service. He has not worked since 1989.

At a later point in Dr Henke's report he said -

He also shows dogs, but obtains help from his son for this.

Dr Henke opined that the Applicant was capable of working a maximum of twenty hours a week on a regular basis. He considered that the Applicant was only capable of performing fairly basic clerical duties, that he did not have any capacity for physical work of significance and indeed he was unfit for all "physical type duties".

42. The inference in Dr Henke's report was that the Applicant was not working in the business of a dog breeder, which the Tribunal finds to be a "physical type duty", at the time he was granted Intermediate Rate pension. Rather, he was seeking work through the CES - presumably clerical work.

43. The Tribunal also notes in a Statement of Facts and Contentions dated 13 March 1993 from the Applicant's previous solicitor in respect of those proceedings (exhibit C) that no reference was made to the Applicant conducting a business as a dog breeder.

44. In an unsigned statement of Douglas Lambert dated 16 April 1993 (exhibit C), with whom the Applicant served in the RAAF, he said, inter alia -

I thought the dog business was a good idea because he never really wanted to give work away. He said "I have to do something". I know he moved to Lawrence so as to undertake the breeding. I advised him to register. But when I visited him and saw the nature of the work I knew it would be a failure financially because he just wasn't capable of the work.

Handwritten notation on this statement in respect of this item reads-

Saw vet. in mid 1991 & advised him to give it away. Told him it was impossible. Did not discuss other work. Age made him.

Although the source of that notation is not apparent, the Tribunal finds that if it was not accurate it is hardly likely the Applicant's counsel would tender it as part of the documentary evidence before the Tribunal, at least without attempting to clarify it through the Applicant's oral evidence. That was not done. This evidence would suggest that some time before 16 April 1993 Mr Lambert concluded the Applicant was unable to run the kennels. This evidence, taken in conjunction with the other evidence already outlined, would suggest that by the time of the previous proceedings in 1993, the Applicant was no longer pursuing the kennels as a remunerative activity, notwithstanding that he continued to trade as a business for income tax purposes until June 1996.

45. Within the context of the abovementioned evidence, the Tribunal notes that in a copy of the Applicant's income tax return for the year 1993/94, the Applicant claimed an income of $1,087 and deductions totalling $8,866 in respect of his dog breeding business (s37 docs. p 44). For the year 1995/96 he claimed an income of $475 and deductions totalling $6,170. The 1996 tax return was accompanied by a covering letter from Mr Lambert, which noted that the Applicant had ceased trading as "Almarson Kennels" with effect from 28 June 1996. The Tribunal notes this is somewhat at odds with the Applicant's oral evidence that he decided to stop dog breeding in 1994, and with Mr Lambert's statement (supra) dated 16 April 1993.

46. On 26 November 1990 a delegate of the Respondent accepted the Applicant's claim for generalised anxiety disorder. In the Statement of Reasons (exhibit C) the delegate noted, inter alia -

* He applied for a service pension on the grounds of permanent unemployability on 1 August 1989 and was granted the same on 3 August 1989.

* He stated in a letter of 1 August 1989 that his health was so poor that he was of the belief that he would be unable to obtain or retain suitable work and therefore chose to relocate to Lawrence with a view to setting up a small dog breeding venture. He stated that this proved to be overtaxing his health and he had to abandon his plans and retain only a couple of dogs as pets.

* The veteran did not register with the Grafton Job Centre until 3 May 1990, twelve months following his relocation to the area. A letter from the Grafton Job Centre indicates that amongst his health problems, the veteran's age would be a factor in his being unable to obtain local work.

* There is no evidence on file or in the service pension application that the veteran ever attempted to set up a dog breeding business or indeed to attempt to genuinely seek to engage in any other work.

47. On the totality of the evidence the Tribunal finds the Applicant's plan to running breeding kennels after he moved to northern New South Wales did not properly commence operation, and therefore the Tribunal cannot find that at any time this was his remunerative work. It was merely a hobby that produced some very limited income for him.

48. On this basis the Tribunal finds that the Applicant has not been engaged in remunerative work of any sort since he left his public service position in 1989. Therefore, the remunerative work which the Tribunal must consider, and which apparently the Tribunal previously considered in 1993, was his work as a public servant that he ceased in 1989. Having been granted the Intermediate Rate pension in 1993, the Tribunal must now consider whether the Applicant has suffered a loss of salary or wages, or earnings on his own account since 1993.

49. On the evidence of Dr Henke, the Applicant was fit for clerical work for up to twenty hours a week. However, since the Applicant did not perform any such work and did not continue to seek such work, he cannot show that as at the application date, 15 March 1996, he has suffered a loss of earnings from his inability to engage in remunerative work which he was undertaking, as a result of his accepted disabilities alone. This is the turning point for the Applicant - on the basis that the Tribunal finds that his work as a dog breeder was not remunerative work, he cannot show loss of earnings. On the basis of Dr Henke's evidence, the Tribunal finds the Applicant still had some work capacity when he left the public service. Dr Prakash questioned the Applicant's motivation to work. The Tribunal finds on all the evidence available, that at least since the Applicant commenced receipt of Intermediate Rate pension, he has not sought work nor had he any intention of working.

50. In coming to this position on the evidence the Tribunal is required to apply the decision of the Federal Court in Repatriation Commission v Sheehy (1995) 39 ALD 286. In that decision Sackville J. held that economic loss or loss of remunerative work referred to in s24(1)(c) must be a real loss in the sense that the work, including new work, must have continued for more than a very short period.

51. Overall, neither party has greatly assisted the Tribunal in the presentation of this matter. However, on consideration of the evidence before the Tribunal, there is sufficient evidence to make the correct or preferable decision. Consequently, the Tribunal has not chosen to reopen the hearing to obtain further evidence.

52. Because of the way in which the Tribunal has decided this matter, the Tribunal has not considered the Respondent's submission that the Applicant's income from dog breeding was "insubstantial" and therefore should not be considered to be remunerative work: Starcevich (supra). The Tribunal does not accept the Respondent's submissions on that issue, and refers to the decision of the Federal Court in Gauntlett v. Repatriation Commission (1991) 32 FCR 73. In that decision, Pincus J. made reference to Fox J's judgment in Starcevich and made some helpful comments, albeit obiter dictum, about the reference to the phrase "substantial" loss of remuneration. Before the Respondent continues to rely on Starcevich in this way it might be helpful to consider the comments of Pincus J. in Gauntlett (supra).

53. The Tribunal affirms the decision under review.

I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member, and Dr J R Vallentine, Member.

Signed: .....................................................................................

Associate

Date of Hearing 16 June 1999

Date of Decision 3 February 2000

Counsel for the Applicant Mr Vincent

Solicitor for Applicant R.L.Whyburn & Associates

Counsel for the Respondent N/A

Advocate for the Respondent Mr Sylvestre

Dept. of Veterans' Affairs