Bradd v. Repatriation Commission

[2002] AATA 321

(Decision by: Mr I R Way, Member)

Re: Warren Herbert Bradd - Applicant
And: Repatriation Commission - Respondent

Tribunal:
Administrative Appeals Tribunal

Member:
Mr I R Way, Member

Subject References:
VETERANS' AFFAIRS
disability pension assessment
special rate of pension
whether incapacity war-caused
whether incapacities render applicant incapable of undertaking any remunerative work
whether incapacity alone is preventing continued work
whether applicant is genuinely seeking to engage in remunerative work or whether, but for his incapacity, he would be continuing so to seek to engage remunerative work

Legislative References:
Veterans' Entitlement Act 1986 - the Act

Case References:
Hall v Repatriation Commission - (1994) 33 ALD 453
Cavell v Repatriation Commission - (1988) 9 AAR 534
Sheehy v Repatriation Commission - (1996) 137 ALR 223
Repatriation Commission v Strickland - (1990) 12 AAR 412

Hearing date: 3 April 2002
Decision date: 3 May 2002

Brisbane


Decision by:
Mr I R Way, Member

REASONS FOR DECISION

1. This is an application by Warren Herbert Bradd (the Applicant) for review of a decision of the Veterans' Review Board (VRB) dated 1 June 2000, which set aside the decision of the Respondent assessing the Applicant's disability pension at 80% of the General Rate and substituted its decision that pension be assessed at 90% of the General Rate, to operate from and including the 27 January 1999.

2. In arriving at this decision the VRB was satisfied that disability pension is not payable to the Applicant at the Special Rate.

3. At the hearing the Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T19), a written statement by the Applicant signed 26 February 2001(Exhibit A1) and a written report from Dr Scott Jenkins dated 24 May 2001 (Exhibit A2). The Applicant gave oral evidence and Dr Scott Jenkins gave evidence by telephone.

BACKGROUND

4. There was no dispute between the parties about the facts set out in the Applicant's Statement of Facts and Contentions. In view of this and on the evidence before it, The Tribunal finds as follows:

(a)
On 27 April 1999, the Applicant lodged a formal claim with the Repatriation Commission for acceptance of post traumatic stress disorder, alcohol abuse and hypertension as war-caused disabilities, as well as claiming an increase of pension.
(b)
On 26 October 1999, the Repatriation Commission accepted the Applicant's claims for post traumatic stress disorder, alcohol abuse and hypertension and assessed disability pension at 80% of the General Rate.
(c)
On 29 November 1999, the Applicant appealed the decision in respect of assessment of pension to the VRB.
(d)
On 1 June 2000, the VRB set aside the decision of the Repatriation Commission and assessed pension as being payable at 90% of the General Rate effective from 27 January 1999.
(e)
On 7 June 2000, the VRB advised the Applicant of this decision.
(f)
On 16 June 2000, the Applicant appealed to the AAT from these decisions.
(g)
The Applicant served in the Australian Army from 3 January 1964 to 9 July 1984, rendering operational service during the following periods:

(i)
Malaysia from 23 October 1964 to 1 December 1964;
(ii)
Brunei/Sabah/Sarawak from 17 March 1965 to 5 May 1965;
(iii)
Brunei/Sabah/Sarawak from 3 June 1965 to 28 July 1965;
(iv)
Vietnam from 8 April 1967 to 4 July 1967;
(v)
Vietnam from 23 July 1969 to 16 July 1970;

and rendering eligible defence service from 7 December 1972 to 9 July 1984.
(h)
The veteran has the following conditions accepted as service related:

(i)
Dermatitis legs and hands;
(ii)
Bilateral sensori-neural hearing loss;
(iii)
Post traumatic stress disorder;
(iv)
Alcoholic dependence or alcohol abuse;
(v)
Hypertension.

(i)
The Applicant has the following condition determined not to be service related:

(a)
Deformity right ring finger following fracture.

ISSUES

5. The issue before the Tribunal is whether the Applicant is entitled to a pension at a greater rate than 90% of the General Rate, in particular, whether the Applicant is entitled to payment at the Special Rate as provided for in s 24 of the Veterans' Entitlements Act 1986 (the Act).

LEGISLATIVE FRAMEWORK

6. The Act relevantly provides as follows:

24 Special Rate of Pension
(1)
This section applies to a veteran if:

(aa)
the veteran has made a claim under s 14 for a pension, or an application under s 15 for an increase in the rate of the pension that he or she is receiving; and
(ab)
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

(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.

28 Capacity to undertake remunerative work
In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:

(a)
the vocational, trade and professional skills, qualifications and experience of the veteran;
(b)
the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c)
the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).

7. This matter is to be determined as provided for by s 120 (4) of the Act and as such the Tribunal must decide the matter to its reasonable satisfaction (that is on the balance of probabilities).

THE APPLICANT'S EVIDENCE

8. In his written statement of 26 February 2001 (Exhibit A1) the Applicant states:

"Towards the end of my service I was consuming large amounts of alcohol. I was drinking heavily, becoming aggressive and doing some very crazy things. I found myself to be drinking all the time. I received absolutely no counselling or guidance from the Army. Doctors had subsequently advised me that this behaviour indicates that I may have been suffering from post traumatic stress disorder at this time. As I didn't want to affect the younger soldiers I was working with I decided it was time to leave the army.
Upon leaving the Army I registered with the Commonwealth Employment Services (CES). As I was unable to gain employment I proceeded to set up my own business manufacturing garden furniture. I only lasted in this business for approximately one year as I found it difficult to sell the furniture I was making. Most of this time I was only existing on my DFRDB payments. I was continually hungover after heavy drinking sessions often not being capable of working. Sometimes I was lucky to have worked two or three days a week. I suffered severe mood swings often becoming argumentative and aggressive to potential customers. I do believe this is what drove customers away to such a degree that it impacted upon this business.
I originally pursued this line of work because I couldn't stand civilians and wanted a job where I didn't have to deal with the public. I believe my post traumatic stress disorder and alcoholic dependence rendered me incapable of running this business and was the main contributing factor to my business venture failing.
After the business failed I went to various job interviews. At these interviews I lacked self-confidence. I was never at ease and found it difficult to get on very well with the interviewers, in particular if any mention was made about joining a Union or slighting the Army.
I recall one particular incident when I was applying for a job with K-Mart. I had been asked to sign a form which would join me to the relevant Union. I refused to do this due to my deep dislike of Unions. When pressured to sign I snapped and the situation ended with me being escorted from the shop by a security guard.
I was originally taking my army documents to interviews with me, However I have often received negative statement from interviewers as to my involvement in the Armed Forces especially with regards to my deployment in Vietnam. I reacted quite badly when this happened. I therefore ended up burning my army documents and did not tell potential employers about my previous involvement with the Armed Services. I was a Warrant Officer in the Army and proud of serving my country. I felt dirty and degraded when being interviewed. I lost all self-esteem.
I was quite anxious before interviews. To calm my nerves I would often have one or two stiffs drinks to calm myself down before attending Interviewers would smell this on my breath. When comments were made about my having been drinking before attending an interview I would just leave and get drunk.
I managed to gain work through a friend doing a cleaning job. I found this to be a very difficult situation to deal with. The boss was constantly niggling at me. One day he was having a go at me and said that I was just a useless Vietnam veteran. I could not deal appropriately with this situation so I just put down the mop and walked out on the job in tears.
I volunteered for the SES recruiting ex-servicemen. During this time however I had a number of altercations with my boss due to my heavy drinking and again eventually got to the point where I could no longer deal with the situation and left. After this bad experience I do not feel that I could work in a volunteer situation again.
I lived for many years in a shed at the rear of my parent's property and virtually became a recluse. I survived on my DFRDB of $200.00 a week and only left home to get alcohol, buy cigarettes and draw my DFRDB cheque. I was drunk all of the time. I have very little recollection of this period as I was in a constant alcoholic stupor. I withdrew from all social contact with what I thought of as the outside world and saw nobody. My family avoided me and I had driven all of my friend's away unless they wanted a free beer."

9. In an undated statement (received by the VRB on 11 April 2000) (T18, Folio 63), the Applicant stated:

"Prior to leaving the army in 1984 I was hitting the grog pretty hard, sometimes before work in the morning, at night I would drink myself into a coma and lose control of my body functions. I found that I could not cope with the physical and mental skills required for professional soldiers, and requested discharge.
My drinking at night was to stop the dreams and nightmares and help me sleep (see army medical docs). I thought civvy street would change this.
I found that grog was more accessible, I still had the dreams and nightmares, and that job interviews that I went to were a flop because of my drinking beforehand.
I also found that when interviewers were going through my employment record with the army they started rubbishing me because of my service in Vietnam.
The crunch came when one interviewer pointed to a clause in the employment contract which required me to join a union. I informed him that the Postal Union refused to touch Armed Forces mail in 1967 and the wharfie refused to load the ship bringing supplies to us in 1969 and I have hated unions ever since. After all these job rejections I moved into the weeds and kept to myself."

10. In his oral evidence the Applicant told the Tribunal that after his discharge from the Army he went to the CES at Forster, NSW, and subsequently attended three of four interviews for jobs as cleaner, shelf stacker and storeman. He said he was not a driver, had no clerical skills and that his Army skill as an infantryman did not fit him for any particular job outside of the Army. In answer to question from the Tribunal the Applicant said that post Vietnam he had served in the Army as a Platoon Sergeant in an infantry battalion; in the Independent Rifle Company at the Jungle Warfare Centre, Canungra; at the Officer Cadet School in Portsea where he was a drill and infantry minor tactics instructor and was promoted to Warrant Office class 2; as an instructor at the Battle School in Tully; and finally as an instructor in Battle Wing at JWC, Canungra.

11. He told the Tribunal that the courses he attended in the Army related to qualifying him as an instructor in mine warfare, flame warfare, demolitions and small craft handling. He said that during his twenty years of Army service he did not have much freedom of action always having to "call someone Sir". It was the Applicant's evidence that he consumed alcohol throughout all of his service, more so in the last four or five years, but he had not faced any Army disciplinary action or any adverse reports as a result of his drinking. He said he had been spoken to by his senior non-commission officers on a number of occasions as a result of his drinking. The Tribunal notes that the Applicant stated (at T6, p 29):

"I started drinking heavily during the Borneo confrontation when four of my fellow soldiers in the same platoon were killed. After going to Vietnam twice as an infantryman and witnessing more horrors than Borneo my drinking increased to as much as I could get which was beer and spirits to help calm my nerves from the stress and tension of war. I continued drinking heavily through my Army career (see Army Med Docs) and into civilian life, I am still a heavy drinker as it helps calm me down."

It was the Applicant's evidence that he had requested a discharge from the Army after attaining twenty years of service.

12. With respect to his garden furniture business the Applicant said that he made mainly tables and chairs and that he had hired a shed and machinery to set up the business. He said he had advertised in the local papers, but sales were not sufficient to make enough to pay the rent and the business failed in August/September of 1985. He told the Tribunal he went back to the CES seeking work but it was not until 1988 that he got a job as a probationary cleaner with K-Mart (through an ex-serviceman mate who worked for K-Mart). He said he worked for three hours a day for five days a week but he only lasted two weeks in the job because of criticism of his work. It was the Applicant's evidence that he again went back to the CES seeking another card for job interviews but it was not until 1998, some ten years later that he got another job through " a mate of a mate", working as a handyman for a person in that person's backyard. However, this job only lasted two weeks because he could not stand the constant criticism of his work. It was at this stage that the Applicant moved to Hervey Bay where he saw Dr Ironside a local GP. It was the Applicant's evidence that Dr Ironside told him not to work because of his war-caused disabilities.

13. The Applicant told the Tribunal that he did not think that at this stage he had the muscle to undertake any work of a physical nature.

MEDICAL EVIDENCE

14. Dr Peter Ironside, General Practitioner in a written report dated 11 November 1999 stated (T16, Folio 58):

"Mr Bradd has PTSD. As is often the case, the symptoms build over the years, insidiously disabling the patient, as they have done with Mr Bradd. He is now severely affected and can no longer work because of his PTSD."

15. Dr David Jenkins, consultant psychiatrist, first saw the Applicant on referral from Dr Ironside on 29 March 1999. In a written report dated 12 May 1999 (T7, Folio 30) Dr Jenkins stated:

"His physical health is good apart from his poor hearing. He was schooled to intermediate standard and played rugby and baseball. He then worked a s a storeman/packer for two years and then for Australia Post for two years until service. He has done no work since service because he cannot get on with civilians and because of his short-term memory problems and his poor concentration...
He drinks a dozen cans of beer a day. He said that he started drinking seriously in the Army and his drinking escalated after four men in his platoon were killed by mines in Borneo in 1965. When seen he was taking Normison 10mg at night, but apart from this has not seen a psychiatrist before he was referred to myself and he has had no other treatment for nervous condition. In my opinion, [he] has a severe chronic Post Traumatic Stress Disorder as a result of his Vietnam services and in particular the traumatic events which I have described previously. In my opinion, he also has Psychoactive Substance Dependence - Alcohol and this dependence appears to have been produced by the trauma of having four men in his platoon killed.
In my opinion, this veteran will require intensive psychiatric treatment including appropriate medication and he may require hospitalisation to deal with his dependence on alcohol."

And in a further report dated 9 November 1999 (T14, Folio 54) Dr David Jenkins opined:

"...this veteran became permanently unfit for any employment solely on account of his war-caused chronic PTSD."

16. Dr Scott Jenkins, psychiatrist, first saw the Applicant on 21 August 2000 and provided a written report dated 24 May 2001 (Exhibit A2) in which he stated:

"He has a work history of a failed furniture business in 1985 and two other jobs since that time cleaning in 1988 and 1989 and also as a handyman in 1997 and 1998. He states that he walked out on both those jobs after confrontation with his bosses.
He has had regular treatment with anti-depressants and nighttime sedation over the time that I have been seeing him.
He drinks approximately 240 grams of alcohol per day and has done so for the past thirty years or longer. This level of alcoholic intake has been consistent since his time of service.
It is a co-morbid condition with his Post Traumatic Stress Disorder.
I believe that his work record subsequent to his time in the army largely reflects the combination of Post Traumatic Stress Disorder and alcoholic abuse. He has had consistent inability to sustain work activity. He has an inability to sustain working relationships. He has an inability to deal with involvement with other people reflected in his single marital status and significant social withdrawal. He has no real interests apart from solitary ones and alcohol.
I believe his work record is entirely a result of his Post Traumatic Stress Disorder and alcohol abuse."

17. In his evidence by telephone Dr Scott Jenkins said that in expressing the view that the Applicant's work record is entirely a result of his PTSD and alcohol abuse he was aware of the Applicant's work history, his long time heavy drinking habit, the medication he is taking and the Applicant's limited social repertoire and Post Traumatic Stress Symptoms. Dr Jenkins said he could not separate the Applicant's alcohol habit from his PTSD and that the combined effect of both of these conditions was the cause of his lack of employability.

18. The Tribunal notes (T18, Folio 64) that an army medical board examined the Applicant in July 1980 and while noting the need for the Applicant to reduce his alcohol consumption, nevertheless classified him as FE (fit everywhere) with nil diagnosed disabilities. It was the Applicant's evidence that he was still classified FE at the time of his discharge.

SUBMISSIONS

19. Mr O' Gorman, Counsel for the Applicant submitted that it is the Applicant's accepted disabilities alone (particularly those of PTSD and alcohol dependence or abuse) that prevented him from engaging in remunerative work, and that this view was supported by all the medical evidence before the Tribunal.

20. It was submitted further that the Tribunal had before it evidence such that as a result of the ameliorating provisions of s 24(2)(b) of the Act, the Tribunal need not be satisfied that it is the Applicant's accepted disabilities alone that prevent him from engaging in remunerative work, but rather they need merely be the substantial reason.

21. With respect to the Applicant genuinely attempting to find and/or engage in remunerative work, it was submitted that the Applicant had in fact genuinely attempted to do so but has been unsuccessful because of his PTSD and/or alcohol dependence or abuse, which as time went by, caused the Applicant to become withdrawn, and have difficulties in coping with society and in effect leading to a situation where he could not continue to seek or gain employment. In considering this submission the Tribunal was referred to Hall v Repatriation Commission (1994) 33 ALD 453 where his Honour Justice Spender held:

"(iv)
The question of whether a veteran has been 'genuinely seeking to engage in remunerative work, [and] that he or she would, but for that incapacity, be continuing to do so seek'... in s 24(2), had to be addressed in a realistic way, having regard to the nature and extent of the incapacity. Many veterans were permanently incapacitated by war-caused injury or disease for any form of remunerative work, and the requirement that such a person be genuinely seeking work seemed to involve something of a charade. While it might be that H was advised to pursue his attempts at seeking employment through the CES, by advice which focussed on any realistic prospect that such work might be obtained, the report by the CES did not seem to cast doubt on H's willingness to accept work if any might be found for him".

22. Mr Stoner, advocate for the Respondent, drew the Tribunal's attention to the Respondent's admission that in this matter the Applicant satisfied the requirements of s 24(1)(a) of the Act.

23. He further submitted that based on the evidence put before the Tribunal at the hearing, the Respondent now conceded that the Applicant satisfied the requirements of s 24(1)(b) of the Act.

24. With respect to s 24(1)(c) of the Act, it was submitted that the Tribunal's attention should be focussed on the period from 27 April 1999, the date of the application, to the present, this being the relevant period of assessment.

25. It was contended by the Respondent that the Applicant did not satisfy s 24(1)(c) of the Act in that:

(a)
the Applicant became unemployed in the mid-1980s when his garden furniture business failed;
(b)
he apparently worked as a cleaner for two weeks in 1988 and possibly also as a handyman for a short period in 1997 or 1998;
(c)
effectively, the Applicant has been in retirement and relying for his income on his military pension;
(d)
as at the application day, the Applicant was aged 55 and had effectively been out of the workforce for 14 years;
(e)
the Applicant's contention that his accepted conditions of post traumatic stress disorder and alcohol dependence or abuse, alone, prevent him from continuing to undertake remunerative work, is self-serving and lacks any real foundation.

26. It was further submitted there were no indicia to show that the Applicant genuinely had attempted to obtain work as required by the Act. In so submitting, Mr Stoner noted that the Applicant, on discharge from the Army, had registered with the CES and initially attended a couple of interviews after his furniture manufacturing business had failed, but after he moved to Queensland and at the end of 1998 he had not genuinely sought work. With respect to what was said in Hall, Mr Stoner submitted that Mr Hall's circumstances differed to those prevailing in Mr Bradd's case in that Mr Hall was registered with the CES, and made himself available for work and there was a CES report which as Justice Spender said at 461:

"does not seem to cast doubt on the willingness of Mr Hall to accept work if any might be found for him"

27. Finally it was submitted that Special Rate of pension was intended for relatively young veterans who cannot work and that the Tribunal should take into consideration the fact that the Applicant was now presenting himself for TPI after such a long absence from the workforce.

CONSIDERATION

28. It is common ground that the Applicant's degree of incapacity meets the test as provided for in s 24(1)(a) of the Act and the Tribunal so finds.

29. There is no dispute between the parties that the Applicant's incapacity from war-caused injury or disease is of such a nature as, of itself alone, to render him incapable of undertaking any remunerative work. In view of this and on the evidence before it the Tribunal finds that the Applicant at the relevant time satisfies s 24(1)(b) of the Act.

30. Turning then to s 24(1)(c) of the Act, the first question to be addressed is whether the veteran is, by nature of his incapacity, alone, prevented from continuing to undertake remunerative work that he was undertaking.

31. In considering this question the Tribunal is mindful of what his Honour Justice Burchett said in Cavell v Repatriation Commission (1988) 9 AAR 534 (Cavell), at 539 namely:

"to distract the Tribunal from its true task - to make a practical decision whether the veteran's loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. 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 common sense is the proper guide."

32. Furthermore the Tribunal notes that in Sheehy v Repatriation Commission (1996) 137 ALR 223 (Sheehy) the Full Federal Court established that "undertake" and "undertaking" in s 24(1)(c) requires that the work be undertaken successfully or effectively.

33. With respect to the Applicant's discharge from the Army, the Tribunal notes that this was at the Applicant's request and after he had rendered twenty years of service thereby making him eligible to receive a pension under the DFRDB scheme. He was not classified by the Army as medically unfit at any stage during his service (being classified FE throughout his service), nor was he the subject of any adverse report during his service with respect to his drinking habit. While it is noted on the Applicant's medical board report, four years prior to his discharge, that he should reduce his alcohol consumption he continued to serve effectively and gained promotion as an infantry instructor at the Officer Cadet School, the Jungle Warfare Centre and the Battle Wing at Tully, albeit on his evidence, with counselling from his senior non-commissioned Officers about his alcohol consumption.

34. The Tribunal is mindful that the medical evidence and the Applicant's own evidence point to the onset of excessive alcohol consumption in concert with post traumatic stress symptoms following his services in Borneo in 1965 and subsequently in Vietnam. However, given the above history of his employment in the Army the Tribunal is of the view that the fact that the Applicant sought discharge after he had completed twenty years of service is not an insignificant reason as to why he did not continue to serve in the Army. As such the Tribunal is satisfied that it was not by reason of his accepted disabilities and incapacity, alone, that he was prevented from continuing to serve in the Army.

35. Following discharge from the Army the Applicant set up a self-employed furniture manufacturing business. On the Applicant's own evidence this business failed because he did not sell enough of the finished product. The Tribunal notes the Applicant's contention that this was because of difficulties he had in dealing with customers. However, the Tribunal is satisfied that the despite advertising in the local newspapers, the Applicant failed to attract sufficient potential customers and this had a marked effect on the viability of his business venture. As such the Tribunal is satisfied that it was not by reasons of incapacity, alone, that he was prevented from continuing to engage in the furniture manufacturing business.

36. With respect to other remunerative jobs held by the Applicant, namely two weeks as a probationary cleaner with K-Mart in 1988 and two weeks as a handyman in 1998, the Tribunal is of the view, following the Full Court reasoning in Sheehy that neither of these two activities constituted work which had been effectively performed for the purposes of s 24(1)(c) .

37. In addition to the above conclusion, the Tribunal is satisfied that the Applicant at the time of application, had been effectively out of the workforce for fourteen years and he has continued to be out of the workforce during the relevant period of assessment. In Cavell, it was held that prolonged absence from the workforce may also be an incapacitating factor, such an issue being a question of fact for determination by the Tribunal (at 540-541). In this case, the Tribunal is satisfied that the very substantial absence from the workforce is a considerable obstacle to the veteran now obtaining any employment.

38. It is convenient now to consider the Applicant's submission that the evidence in this matter enabled the Tribunal to conclude that as a result of the ameliorating provisions of s 24(2)(b) of the Act, the Tribunal need not be satisfied that it is the Applicant accepted disabilities alone that prevent him from engaging in remunerative work, but rather that they need merely be the substantial reason; and further the evidence suggests the Applicant had in fact genuinely attempted to find and/or engage in remunerative work, but had been unsuccessful because of his accepted disabilities of alcohol dependence or abuse and PTSD.

39. There is no dispute between the parties that the Applicant was 55 years of age as of the application dated 27 April 1999 and as such the Tribunal is satisfied that the ameliorating provisions in s 24(2)(b) are relevant to the consideration of the Applicant's case.

40. The medical evidence before the Tribunal and the Applicant's evidence point to the Applicant's war caused incapacity as the substantial cause of his inability to obtain remunerative work in which to engage. However, before proceeding to determine whether this is so, the Tribunal is of the view that is its appropriate to consider firstly whether the Tribunal can be satisfied that the Applicant has been genuinely seeking to engage in remunerative work.

41. In considering this matter the Tribunal is mindful that Spender J in Hall said that the requirement that permanently incapacitated veterans should genuinely be seeking work seems to involve something of a charade; and that Davies and Ryan JJ in Repatriation Commission v Strickland (1990) 12 AAR 412, said that s 24(1)(c) of the Act:

"Obliged the AAT to investigate what is, in certain respects, a highly artificial complex of facts."

42. It is within the context as set out in paragraph 41 above, and particularly paragraph 31, that the Tribunal has carefully considered all of the material before it and the submissions of both parties. The Tribunal is satisfied that the Respondent is correct in contending the Applicant has been effectively in retirement since his furniture business failed and has been relying for income on his military pension; and that as at the application date and subsequently the veteran has been effectively out of the workforce for many years. The Tribunal has taken into account the Applicant's evidence about seeking work through the CES however on balance the Tribunal finds that the Applicant, since 1988, has not been genuinely seeking to engage in remunerative work that he would, but for his incapacity, be continuing so to seek to engage in remunerative work.

43. The Tribunal is therefore satisfied that the Applicant does not meet the ameliorating provisions in s 24(2)(b) and for this reason and the reasons given above, does not satisfy the requirements of s 24(1)(c). As such the Applicant's claim for Special Rate of pension fails.

44. It remains for the Tribunal to consider whether the Applicant's rate of pension of 90% of the General Rate is correct. On the evidence before it and in the absence of any contrary submissions, the Tribunal is satisfied that the Applicant's rate of pension at 90% is correct.

45. For reasons given above, the Tribunal affirms the decision under review.

Counsel for the Applicant - Mr D O'Gorman
Solicitor for the Applicant - Gilshenan & Luton
Solicitor for the Respondent - Mr J Stoner, Department of Veterans' Affairs