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Solway and Repatriation Commission [2011] AATA 806 (15 November 2011)

Last Updated: 15 November 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 806

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2011/0180

Applicant

Respondent

DECISION

Date 15 November 2011

Place Brisbane

........................[sgd]......................
Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Benefits and entitlements – Disability pension payable at 100% of general rate – Eligibility for special rate of pension – Incapacity from defence-caused conditions sufficient to prevent applicant undertaking remunerative work for more than 8 hours per week – Applicant not prevented by reason of incapacity from defence-caused conditions, alone or substantially, from continuing to undertake remunerative work – No loss of salary, wages or earnings that would not be suffered if free from incapacity –Decision under review affirmed

Defence Force Retirement and Death Benefits Act 1973 (Cth) s 37
Veterans’ Entitlements Act 1986 (Cth) ss 5Q, 15, 19, 22, 23, 24

Defence Force Retirement and Death Benefits Authority v Britt [ 1985] VicRp 11 ; (1984) 4 FCR 306
Flentjar v Repatriation Commission [1997] FCA 1200; (1997) 26 AAR 93; (1997) 48 ALD 1
Leane v Repatriation Commission [2004] FCAFC 83; (2004) 81 ALD 625
Repatriation Commission v Alexander [2003] FCA 399; (2003) 75 ALD 329
Repatriation Commission v Hendy [2002] FCAFC 424; (2002) 76 ALD 47
Repatriation Commission v Smith (1987) 15 FCR 327

REASONS FOR DECISION

BACKGROUND

1. On 18 May 2010, Diane Solway lodged a claim under s 15 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) for an increase in the disability pension paid to her in respect of conditions previously accepted by the Repatriation Commission (“the respondent”) in respect of her service in the Royal Australian Air Force (“RAAF”) from March 1985 until September 1990. Those conditions are “cervical and lumbar spondylosis”, “somatisation disorder (includes neck, shoulder, arm and hand pain and fibromyalgia)”, “generalised anxiety disorder with secondary depressive features” and “posttraumatic stress disorder”. On 2 June 2010 a delegate of the respondent determined that, in accordance with s 22 of the Act, pension should continue to be paid to Ms Solway at 100% of the general rate and that it was not payable at an earnings-related rate under s 23 or 24 of the Act. On 29 November 2010, that decision was affirmed by the Veterans’ Review Board.

ISSUES AND LEGISLATION

2. The standard of proof applicable in this matter is set out in s 120(4) of the Act, which requires that matters be determined to the decision-maker’s ‘reasonable satisfaction’. This imports the civil standard of proof so that matters must be determined on the balance of probabilities.^[1] The procedure to be followed is set out in s 19 of the Act. It requires the rate of pension to be determined during the “assessment period”, which is defined as meaning the period starting on the application day, in this case 18 May 2010, and ending when the claim or application is determined.^[2]
3. It is not disputed that the general rate of pension payable to Ms Solway was correctly assessed by the respondent at 100%. The issue raised by Mr Harding, for the applicant, is whether she meets the criteria for payment of an earnings-related rate of pension under s 23 or s 24 of the Act. These relate, respectively, to the intermediate rate and special rate of pension. Mr Harding submitted that the special rate of pension was payable to Ms Solway from the application day. The matter that needs to be determined is whether or not Ms Solway meets the requirements of s 24(1)(a)(i), (b) and (c) of the Act. These read:

24(1) This section applies to a veteran if:
(a) ...
(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;
...
(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;

4. Mr Kelly, for the respondent, conceded that Ms Solway meets the requirements of s 24(1)(a)(i) and (b) of the Act. However, he submitted that she does not satisfy the terms of s 24(1)(c) thereof.

EVIDENCE

Ms Solway

5. Ms Solway’s mustering in the RAAF was as a stenographer (“Steno”). Prior to her RAAF service, she was employed as a stenographer/typist with the Queensland Public Service for 3½ years before obtaining a position for six months with the Department of Justice providing shorthand and typing support for various Supreme Court judges. Her enlistment in the RAAF was for six years and, after initial training, she was posted to the Aircraft Development and Research Unit (“ARDU”) at RAAF Edinburgh. Her evidence was that she was the secretary to the Commanding Officer (“CO”), Group Captain Richardson. Her work mostly involved typing reports, but she was occasionally given shorthand tasks by the CO to help maintain her shorthand skills. She estimated her typing/shorthand speeds at 140/130 words per minute.
6. While with the ARDU, Ms Solway enjoyed her work and was involved in a range of sporting activities. She was selected to serve in a greeting party for the Governor-General of Australia in mid-1986 and believed that this was because she had displayed exemplary and exceptional qualities in her work, as well as in her military bearing and general demeanour. Around Easter 1987, Ms Solway was invited to assist in a RAAF presentation to the public at the Coolangatta Air Show. Ms Solway said that, towards the end of 1987, she served as secretary to Group Captain Page, the officer commanding 92 Wing, where she was able to utilise her shorthand ability on almost a daily basis. She also said that, during that posting, she worked in the Orderly Room under the supervision of an RAAF Sergeant. In 1988, Ms Solway was posted to RAAF Glenbrook where she worked in the Orderly Room under the supervision of a Warrant Officer. She said that she had responsibility for some six or seven civilian staff as well as four or five RAAF members. She provided back-up secretarial support to the Officer Commanding where she was able to use her shorthand skills. This suited her because she was not doing this enough to maintain her skills at a high level.
7. In early 1988, a Board of Inquiry (“BOI”) was appointed to investigate an aircraft accident and Ms Solway was attached to the BOI to provide typing support. This was at RAAF Williamtown and she was promoted to corporal during that period. Her shorthand skills were not required as her work comprised the typing of reports. At that time, Ms Solway was exposed to the traumatic details of the aircraft accident, to personal trauma when she was assaulted and to an escape from death when a light aircraft, in which she was to supposed to have travelled, crashed. These events were the basis of the respondent’s acceptance of Ms Solway’s psychiatric conditions as being service-related.
8. In October 1988, Ms Solway was advised that the RAAF intended to phase out the Steno mustering. The options given to her were to remuster to Clerk A; to remuster to another mustering; to elect discharge; or to continue as a Steno for the term of her engagement which was to end in March 1991. Ms Solway chose the last of these options and said that this was because she wanted to remain shorthand proficient. At about that time, Ms Solway experienced health problems. Tests proved negative for pregnancy but the civilian doctor at Glenbrook advised that she had experienced a miscarriage. With continuing problems, Ms Solway was sent to a specialist gynaecologist who admitted her to hospital where an ovarian cyst was removed. In August 1989, Ms Solway was deployed for two months to exercise Kangaroo 89 (“K89”) at RAAF Curtin. She was engaged in the Orderly Room under the supervision of a Flight Sergeant. She performed typing duties, which included tasks allocated to her by the Officer Commanding.
9. After K89 Ms Solway was posted to Russel Offices in Canberra, with effect from January 1990. This was a posting she had requested to enable her to better utilise her shorthand skills. Her evidence was that she served as personal secretary to Air Commodore Beck, engaged mainly in typing but with some shorthand functions. Ms Solway again experienced health problems from about March 1990. She had pain in her back, neck and in the area of her left kidney as well as “fever, chest congestion, shortness of breath, abdominal tenderness, nausea and loss of appetite” and spent some time on sick leave. She was admitted to hospital at Duntroon where various tests were conducted. These proved negative. Ms Solway was critical of the treatment she received at the hospital and she gained the impression that staff considered that she was exaggerating her symptoms. No psychiatric assessment was carried out. She felt weakness and fatigue and, by 14 May 1990, had reached the end of her tether, believing that she was not well enough to perform her normal duties. Her application for recreation leave was refused and she went absent without leave (“AWL”), travelling to Coolangatta to be with her mother and family. On consulting the family general practitioner, Dr Tran, she was admitted to Sunnybank Hospital where she saw physician and gastroenterologist, Dr H Roberts, who referred her to orthopaedic surgeon, Dr Peter Sharwood. She was then referred to psychiatrist, Dr Janine Clark.
10. Ms Solway did not return to RAAF duties after she went AWL. Her evidence was that she was effectively on sick leave after 14 May 1990 until a Medical Fitness Board was called by the senior medical officer at RAAF Amberley to assess her future RAAF service. Chaired by Wing Commander Hubble, the Board found that Ms Solway was fit for service but declared that her return to duty was not desirable and recommended that she be discharged “incompatible with service life”. Ms Solway was given the choice of being discharged on that basis or as “being surplus to establishment”. She elected the latter, believing that there was no real choice as the former would not enable her to access her Defence Force Retirement and Death Benefits (“DFRDB”) entitlements. On 12 September 1990, she was discharged as “being surplus to establishment”.
11. Since her RAAF discharge, Ms Solway has been in receipt of income support payments from Centrelink in the form of sickness payments, special benefit and disability support pension. Her evidence was that she has not undertaken any remunerative work and has not attempted to obtain any employment since her RAAF discharge. She has not engaged in taking shorthand to any extent. She also said that she uses a laptop for typing but described herself as not being “computer literate”.

Robert Richardson

12. As Air Vice Marshall, Mr Richardson was the CO of ARDU at RAAF Edinburgh while Ms Solway was posted there as one of several clerks in the Unit Headquarters. He recalled assisting her to maintain shorthand proficiency by utilising her in that capacity from time to time. Ms Solway was under the supervision of Flight Lieutenant Treagus and Mr Richardson was not aware of any concerns about Ms Solway’s work. He recalled that she played a small but responsible role in a visit to the unit by the Governor-General.

Ray Bennell

13. Mr Bennell was a Corporal photographer at RAAF Edinburgh and a friend of Ms Solway while she worked there as a stenographer for the executives of the Unit. He described her as being energetic, positive, full of self-confidence and very professional in her work ethos with a genuine commitment to the RAAF.

Mr J C Bickmore

14. Lieutenant Colonel Bickmore was CO of the Joint Services Hospital in Canberra (“JSHC”). He completed a medical report on 16 May 1990 where he referred to the history of Ms Solway’s health complaints to medical staff at JSHC from January 1990. His opinion was that her main problem was psychological stress and he considered that she should be given help for her problem urgently and then returned to JSHC for follow up.

Mr L B Fisher

15. Air Marshall Fisher served in the RAAF as Chief of Air Staff. He reviewed the medical evidence relating to Ms Solway and, in a letter dated 17 October 1995, concluded that, at the time of her discharge, grounds existed whereby Ms Solway could have been discharged for medical reasons. This was written for the purpose of a claim by Ms Solway under the Defence Force Retirement and Death Benefits Act 1973 (Cth) (“the DFRDB Act”).

Dr H Roberts (physician and gastroenterologist)

16. In his report, dated 5 July 1990, Dr Roberts noted that Ms Solway had been hospitalised on 20 May 1990 at Sunnybank on referral from Dr Tran. He also noted a history from Ms Solway of health problems. Dr Roberts concluded that Ms Solway had no systemic medical disease but was concerned that she may have an orthopaedic problem, for which he referred her to orthopaedic surgeon Dr Sharwood. He considered that she suffered anxiety and stress associated with her relationship with the RAAF and referred her to psychiatrist Dr Janine Clark.

Dr Janine Clarke (psychiatrist)

17. Dr Clarke saw Ms Solway on 31 May 1990 and completed a report on 6 June 1990. She considered that Ms Solway had a somatisation disorder but not an anxiety or depressive disorder. She believed that there were insufficient elements of posttraumatic stress disorder for a definitive diagnosis of that condition. Dr Clarke described Ms Solway’s problems, in a psychological sense, as unlikely to be amenable to treatment. She noted that Ms Solway was determined to leave the RAAF and she felt she was losing her skills in her present employment, but that she was concerned about her superannuation entitlements. Dr Clarke considered that it was not in the best interests of either the RAAF or Ms Solway to remain in the service.

Dr Peter Sharwood (orthopaedic surgeon)

18. Dr Sharwood saw Ms Solway on 24, 25 and 30 May 1990. His opinion was that, while there may have been residual pain from a back strain a year earlier, no orthopaedic treatment was required and that she needed psychological and psychiatric help.

Dr Roderick Apel (psychiatrist)

19. In a report, dated 31 May 1991, Dr Apel described Ms Solway as suffering from somatisation disorder and sequela of posttraumatic stress disorder when he saw her in November 1990. He saw her again in November 1994 and completed a further report on 29 November 1994. He concluded that Ms Solway’s service had aggravated her somatisation disorder and also “caused her to experience a mild posttraumatic stress disorder which had essentially subsided by 1992”. In his later report, Dr Apel noted that Ms Solway had done no typing since 1990. He also noted that the Department of Defence had determined that the termination of her service was not the result of invalidity or any physical or mental incapacity to perform her duties.

Dr Tom Bell (psychiatrist)

20. Dr Bell completed reports on 13 June 1995 and 11 July 1995. He diagnosed Ms Solway as suffering from a personality disorder with its origins in a “somewhat traumatic and deprived childhood”. He described a demonstrated vulnerability to develop clinically significant psychiatric symptomatology. Dr Bell noted a history of anxiety, depression, somatoform disorder, mild posttraumatic stress disorder and chronic pain disorder but his formal opinion was that the only psychiatric condition which persisted when he saw her in 1995 was the personality dysfunction. He found very little evidence of somatisation disorder and no evidence of posttraumatic stress disorder. Dr Bell also wrote that Ms Solway suffered mild posttraumatic stress disorder from 1988 until 1992 and that, since then, her “personality disorder and the accompanying anxiety, depression, chronic pain (and some might say “somatoform disorder”) have all persisted”. Dr Bell recorded Ms Solway as advising him that she had “problems adjusting to service life” and that this was due to her “disappointment and disillusionment that the secretarial duties which she was required to perform were not what she had been expecting”.

Dr Harvey Whiteford (psychiatrist)

21. Dr Whiteford saw Ms Solway in June 1999 and completed a report on 22 July 1999. He referred to the earlier reports of Dr Apel, Dr Bell, Dr Clarke and Ms Solway’s former treating psychiatrist, Dr McNamara. He noted earlier diagnoses of somatisation disorder, posttraumatic stress disorder, anxiety disorder and major depressive disorder but concluded that her condition, when he saw her, was a psychotic illness, most likely schizophreniform or schizoaffective in type which was “likely to be chronic and continue indefinitely”.

Dr Scott Jenkins (psychiatrist)

22. Dr Jenkins provided reports dated 29 March 2010 and 31 May 2011. He also gave oral evidence. Dr Jenkins has treated Ms Solway since May 2008 on a monthly basis in sessions of 15 to 30 minutes. He referred to the reports of Dr Clarke and Dr Apel, dated 6 June 1990 and 31 May 1991 respectively, and considered that their reports were consistent with Ms Solway suffering from somatisation disorder. His opinion was that Ms Solway also suffered from anxiety disorder and posttraumatic stress disorder at the time of her RAAF discharge. He confirmed that she continues to suffer from posttraumatic stress disorder and anxiety disorder and has suffered from those conditions continuously since 1988. He concluded that these conditions have rendered her unable to work for more than eight hours per week and that her inability to work was entirely related to those conditions.
23. In his evidence, Dr Jenkins said that Ms Solway did not have a personality disorder because she did not satisfy two diagnostic criteria for that condition. His opinion was that it had to be present at age 21 years and was excluded where chronic pain or posttraumatic stress disorder are present. He noted that Ms Solway had been reported, in the 1990s, to have been free of posttraumatic stress disorder by 1992. He considered that this opinion was not consistent with the preferred current view that the condition does not resolve. In forming his opinion, Dr Jenkins had referred to the reports of Dr Clarke, Dr Bell, Dr Apel and Dr Whiteford.
24. Dr Jenkins noted Dr Whiteford’s opinion that Ms Solway suffered from schizophreniform or a schizoaffective condition. He described the former as a condition of less than six months duration and the latter as one which requires long term observation for confirmation. He understood Dr Whiteford’s opinion to be that Ms Solway suffered from a temporary psychosis.

Mr Stephen Brimstone (psychologist)

25. Mr Brimstone saw Ms Solway on 31 May and 6 June 1990. She reported a range of physical symptoms to him but Mr Brimstone considered that Ms Solway’s profile indicated that anxiety and somatoform symptoms characterised her reaction to stress. He recorded her as advising that her discharge from the RAAF “has got to happen”; that she did not want to return to service work; that she had plans for the future, including becoming a lawyer; and that she had sound interests/hobbies at that time.

Mr R Maberley (RAAF psychologist)

26. Mr Maberley assessed Ms Solway for her compatibility with service life. He saw her and completed a report in June 1990. He described Ms Solway as being dissatisfied and disappointed with service in the RAAF partly caused by unrealistic expectations she held about the type of work she would be undertaking as a Steno. Mr Maberley described Ms Solway’s physical health concerns and her rejection of the notion that her symptoms were related to psychological problems. She advised him that it was not possible for her to work full-time and regain her health and that she accepted that she would have to leave the RAAF but was hoping for some sort of compensation. His review of medical material relating to Ms Solway led him to conclude that her concern with her symptoms made her unable to cope with the routine demands of service life and unable to function efficiently. Mr Maberley concluded that her basic personality characteristics were causing incompatibility with service life. He recommended that she be discharged “incompatible with Service Life” (ISL).

Ms Solway’s RAAF discharge

27. In evidence was an extract from Ms Solway’s record of service with the RAAF, which declared the reason for discharge, on 12 September 1990, as “being surplus to establishment”.
28. An Employment Standard Review was completed on 4 September 1990. It was signed by a visiting medical officer, Lieutenant Colonel More, and the Senior Medical Officer, Wing Commander Hubble. It noted Ms Solway was in hospital for two days in early May 1990 and discharged with a diagnosis of musculoskeletal strain in the left loin area. It also referred to an intention for her to have follow-up outpatient treatment which did not occur because she sought treatment in Brisbane. The review noted that Ms Solway’s general practitioner referred her to a gastroenterologist and that she then saw Dr Sharwood and Dr Clarke. It noted a psychiatric diagnosis of somatisation disorder which was not amenable to treatment and concluded:

Currently non-effective, but considered by this MFB to be medically fit to return to restricted duties. However, her psychological status is such (somatisation disorder) that her employability and retention within the RAAF is greatly in doubt. Discharge on the grounds of incompatibility with service life (ISL) is recommended.

29. The review also included an annotation that Ms Solway was “Unfit for field/tactical deployments”.
30. On 13 September 1996, the Defence Force Retirement and Death Benefits Authority (“the Authority”) determined that Ms Solway should not be treated as having been retired on the ground of physical or mental incapacity to perform her duties. The Authority reviewed a wide range of medical evidence including a report from Dr Clarke, dated 23 August 1996, and a report dated 20 December 1995 from Dr M Miller of Joint Health Services. The Authority considered that Ms Solway could be discharged either as “being incompatible with service life” or “being surplus to establishment”. It noted that Ms Solway had elected the latter basis and, accordingly, had been discharged as “being surplus to establishment”. This enabled her to access a refund of her contributions made under the DFRDB Act.
31. The Authority conducted a review of that decision on 26 September 2005 after Ms Solway sought to have the earlier decision changed. The Authority’s decision was in evidence. Under s 37 of the DFRDB Act, it was open to the Authority to amend the reason for Ms Solway’s retirement to read that she was retired “on the ground of invalidity or of physical or mental incapacity.” The Authority had before it Mr Fisher’s letter of 17 October 1995, whose opinion was that, at the time of her discharge, grounds existed whereby Ms Solway could have been discharged for medical reasons. The Authority noted that Mr Fisher’s letter enabled it to reconsider the basis of Ms Solway’s discharge but that it was for the Authority to determine whether it should do so.^[3] Again, it considered a wide range of medical evidence and noted that the initial decision “had relied heavily” on the later report of Dr Clarke and quoted the following extract from it:

I saw Ms Solway on one occasion only, and that was on 31.5.’90. I was asked to make an assessment on her suitability to continue service life.
... I believe her psychiatric status, at the time that I saw her, would restrict her capacity to perform her duties in a minimal way only.
I made a diagnosis of Somatisation Disorder at that time.
... I do not believe her psychiatric condition at the time I saw her (approx. 4 months before her discharge) was of sufficient severity for her to be considered an invalid or as incapable. I cannot comment on her physical status.
... She was unsuitable for life in the Services though, based upon her personality structure and ongoing vulnerability

32. The Authority also quoted from the report Dr Miller who, on his review of Ms Solway’s service medical records, concluded that there was sufficient specialist evidence to support the diagnoses of posttraumatic stress disorder and somatisation disorder at the time of Ms Solway’s discharge. He considered that it was open for her discharge to have been based on being medically unfit for further service.
33. On 26 September 2005, the Authority determined that there was evidence that Ms Solway was suffering from somatisation disorder and posttraumatic stress disorder at the time of her discharge. Nonetheless, the Authority noted that Ms Solway had possessed a current and valid employment standard at the time of her discharge with no physical or mental impairment sufficient to have prevented her from performing her duties. It determined that the evidence before it, including that of Dr Clarke, did not support a finding that that Ms Solway “was incapacitated for the performance of her duties by a physical or mental impairment”. The Authority considered that:

... Ms Solway’s discharge was a combination of her incompatibility with service life and her choices regarding the options available to her due to the phasing out of her mustering as a stenographer, and did not believe that her circumstances at the time of her discharge had been such that discharge on the ground of invalidity would have been more appropriate.

34. The Authority affirmed the original decision.

Other evidence

35. A copy of the letter sent to Ms Solway on 18 October 1988 was in evidence. It was an advice that the Steno mustering was to be phased out. It advised that there would be no further recruitment to the mustering and no promotions within it but that it would not be declared redundant while members in the mustering continued to serve. It set out the four options open to Ms Solway.^[4]
36. Also in evidence was a copy of an Airman Evaluation Report which assessed Ms Solway’s performance for the period from 10 March 1989 to 12 July 1989. It described her in favourable terms in relation to employment and personal environment data, professional ability, supervisory ability and personal qualities. In the Amplifying Comments, Ms Solway is described as displaying “a commendable attitude to the Service”, as performing “her work diligently”, as having “a cheery disposition, mature outlook and initiative beyond that expected for her rank” and as often putting “herself out to meet the objectives of the Branch with no recompense”.

SUBMISSIONS

37. Mr Harding submitted that Ms Solway ceased her last remunerative work with the RAAF because of her accepted psychiatric conditions. He referred to the physical problems about which she complained in the months before her discharge and submitted that these were attributable to her psychological disorders. In that regard, he submitted that any references she made to medical practitioners about wanting to leave the RAAF were based on her psychiatric problems. He submitted that the opinion of Mr Fisher should prevail over the findings of the DFRDB Authority. Further, Mr Harding submitted that the only factors in the assessment period which prevented Ms Solway from being engaged in remunerative work as a stenographer/secretary/word processor were the effects of her accepted disabilities. He submitted that Ms Solway had an impressive work history in the RAAF and that there was a ready demand in the employment market for people with her typing skills.
38. Mr Kelly submitted that Ms Solway’s health problems commenced when she was serving in Canberra and that, prior to this, she had functioned well in her RAAF employment. He submitted that, in mid-1990, Ms Solway wanted to leave the RAAF because of her lack of work as a stenographer, her being unwilling to remuster or to continue on restricted duties and her discharge, in any event, due in March 1991. He submitted that this was confirmed by her comments to Dr Clarke, Mr Brimstone and Mr Maberley. Mr Kelly submitted that Ms Solway’s remunerative work was as a stenographer/typist with some elements of a secretarial role. However, he submitted that this was more than 20 years before the start of the assessment period. He submitted that, during that time, there had been an absence from work in any capacity, limited typing and a complete lack of shorthand experience. He submitted that those factors, along with Ms Solway’s self-declared lack of computer literacy, would operate to prevent her from obtaining the remunerative work she had previously undertaken.

CONSIDERATION

39. Ms Solway was in receipt of pension at more than 70% of the general rate at the commencement of the assessment period. Dr Jenkins’ evidence was that Ms Solway’s accepted disabilities render her incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. Accordingly, I am satisfied that the requirements of s 24(1)(a)(i) and (b) of the Act are met throughout the assessment period. As noted above, this was conceded by Mr Kelly.
40. The application of s 24(1)(c) involves a consideration of what Ms Solway would probably have done in the assessment period in the absence of her accepted disabilities.^[5] The Federal Court has said that a proper consideration of paragraph 24(1)(c) of the Act requires responses to the following questions^[6]:
    1. “What was the relevant ‘remunerative work that the veteran was undertaking’ within the meaning of s 24(1)(c) of the Act?”
    2. Is the veteran, “by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?”
    3. If the answer to question 2 is yes, is “the war-caused injury or war-caused disease, or both, the only factor or factors preventing [the veteran] from continuing to undertake that work?”
    4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran, “by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?”

41. Consideration must also be given to s 24(2)(a) of the Act, which operates in conjunction with the fourth of those questions, and s 24(2)(b) of the Act which operates, in the case of a person under 65 years of age, in conjunction with the third of those questions.
42. The term remunerative work is broadly defined in s 5Q(1) of the Act as including any remunerative activity. Mr Harding submitted that Ms Solway’s remunerative work was as a stenographer/secretary/word processor. Mr Kelly submitted that the relevant remunerative work comprised the various shorthand and typing functions performed by Ms Solway before she enlisted and while she was in the RAAF. In her evidence, Ms Solway said she was secretary to officers Richardson, Page and Beck. In each of those postings she is described as being in the Orderly Room under the supervision of more senior RAAF personnel. Mr Richardson recalled Ms Solway but he did so in terms that she was one of several clerks in the Unit Headquarters under the supervision of another officer. While I accept that Ms Solway undertook shorthand dictation from time to time, I am satisfied that Ms Solway served with those officers as part of a typing pool and that the type of remunerative work in Ms Solway’s case was as a stenographer/typist with minor elements of a secretarial role. That was also the case in her pre-RAAF employment. I also accept that, on the basis of Dr Jenkins’ evidence, Ms Solway’s accepted disabilities were such that, in the assessment period, they would have prevented her from continuing to undertake that remunerative work.
43. The third of the questions noted above raises in issue the first part of s 24(1)(c) of the Act. There must be no other factor, apart from Ms Solway’s accepted disabilities, which would impact upon her capacity to undertake the relevant remunerative work at the start of, or during, the assessment period. Such a factor may be associated with a wide variety of considerations such as incapacity from a non-service-related medical condition, the effects of age, relocation to a locality distant from work opportunities or the impact of the length of time out of the workforce. Such factors, individually or in combination with each other or with accepted disabilities, may serve to prevent a person from continuing to undertake relevant remunerative work.^[7] In the event that they would have prevented Ms Solway from doing so in the assessment period, s 24 will not be satisfied.
44. Mr Harding submitted that Ms Solway’s accepted conditions were the only factors in the assessment period which prevented her from gaining remunerative work. I do not accept that to be the case. At the commencement of the assessment period, Ms Solway had been out of remunerative work for almost 20 years. Mr Harding submitted that her impressive work record with the RAAF and, previously, with the Queensland Public Service was such that Ms Solway would readily find employment despite the length of time out of the workforce. He submitted that judicial notice could be taken of the wide range of opportunities for a person with typing skills to gain employment. No evidence of such availability was presented but, in any event, it is not the mere passage of time which is relevant in this matter. Ms Solway’s evidence was that, since her RAAF service, she has not taken shorthand, has undertaken limited typing and has not developed literacy in the computer-based activities typically required by a person involved in typing or secretarial-type work. I am satisfied that those matters and Ms Solway’s absence from remunerative work for more than 20 years would contribute to her being prevented from being engaged in the relevant remunerative work during the assessment period.
45. I am satisfied that the incapacity associated with Ms Solway’s accepted disabilities was not the only factor which, during the assessment period, would have prevented her from continuing to be engaged in the relevant remunerative work. This means that the third question listed above is, at this stage of the analysis, answered in the negative. However, consideration must be given to s 24(2)(b) of the Act, which operates, in the case of a person, such as Ms Solway, under 65 years of age, in conjunction with that question. It reads:

(2) For the purpose of paragraph (1)(c):
...
(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.

46. A pre-condition to the application of s 24(2)(b) of the Act is that Ms Solway must have been genuinely seeking to engage in remunerative work. In Leane v Repatriation Commission^[8], the Full Federal Court referred to this requirement in the following way:
    27. The policy of s 24(2)(b) of the Act was explained in the speech on the second reading of the Bill for the insertion of that provision: see per Sackville J in Repatriation Commission v Sheehy (1995) 133 ALR 654 at 660-661; 39 ALD 286 at 292. In that speech the relevant Minister made the point that “special provision is made by the bill to cover veterans who are under 65 years of age, are unemployed, and are genuinely seeking to engage in remunerative work”.
    28. The primary judge interpreted the word “seeking” to mean “attempting to” or “trying to”. This may be accepted. Such a meaning involves something more than a mere wish or hope. It requires that a claimant “do” something. On the other hand the word “genuinely” is used in the sense of “sincerely” or “honestly”. It involves an assessment of the subjective intention or purpose of a claimant. What is required is that the claimant honestly be trying to engage in remunerative work.
    29. It may be accepted that, in the ordinary course, a person in the position of the veteran would have difficulty in establishing that he or she was honestly trying to engage in remunerative work unless there were some “objective signs of active pursuit of remunerative work”. However, it would be wrong to turn the practical issue of how a person might establish his or her case into some legal pre-condition. Assume, for example, that a claimant satisfied the Tribunal that:
        • he or she honestly wished to engage in remunerative work;
        • he or she had made a reasonable assessment of his or her disabilities;
        • he or she had reasonably concluded that he or she could only be employed in a particular type of work;
        • he or she was checking employment advertisements on the look out for such employment; but
        • he or she had not yet identified any such employment prospects.

Counsel for the Commission properly conceded that, on these facts, the tribunal [sic] might be satisfied that the claimant was “genuinely seeking to engage in remunerative work”. This example highlights that the adjectives “objective” and “actual” in the redefinition adopted by the tribunal [sic] are at least unhelpful and may be misleading. The proper course was for the tribunal [sic] to ask itself whether, on the evidence before it, it was satisfied that the veteran was “genuinely seeking to engage in remunerative work” or not, rather than to ask itself the different question that it did ask.

47. After her RAAF discharge, Ms Solway received income support payments under the Social Security Act 1991 (Cth). She did not seek any form of employment in the 20 years before the start of the assessment period in May 2010 or since then. No evidence was given or tendered to demonstrate that Ms Solway took or considered any steps to enable her to obtain any employment. In the absence of objective signs of any active pursuit of remunerative work, I am satisfied that the ameliorating terms of s 24(2)(b) of the Act are not applicable to Ms Solway. The third question listed above is answered in the negative.
48. The fourth of the questions listed above is whether Ms Solway is, by reason of being prevented from continuing to undertake the remunerative work, suffering a loss of salary, wages or earnings on her own account that she would not be suffering if she were free of that incapacity? That requirement is qualified by the terms of s 24(2)(a) of the Act which reads:

(2) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from warcaused injury or warcaused 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 warcaused injury or warcaused disease, or both; or
(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason;

49. Mr Harding submitted that the effects of Ms Solway’s now accepted psychiatric conditions were responsible for her discharge from the RAAF in that they contributed to her being incompatible with service life. In that regard, he referred to Mr Fisher’s opinion. However, as I read Mr Fisher’s letter, it serves, in accordance with statutory requirements, as a precondition to enable the Authority to reopen Ms Solway’s claim.^[9] It is not an opinion that Ms Solway should have been discharged on medical grounds and is not in conflict with the Authority’s findings. When it reconsidered the basis for Ms Solway’s discharge, the Authority, acknowledged that there was evidence of posttraumatic stress disorder and comorbid somatisation disorder at the time but, nonetheless, maintained the view that she was fit for duty despite the presence of those conditions. It determined that Ms Solway’s discharge came from “a combination of her incompatibility with service life and her choices regarding the options available to her due to the phasing out of her mustering as a stenographer”.
50. I accept as correct Mr Harding’s submission that the findings of the Authority are not binding on the Tribunal. However, I am satisfied that they are consistent with the contemporaneous medical evidence at the time of Ms Solway’s discharge. Dr Apel diagnosed a mild posttraumatic stress disorder when he saw Ms Solway in 1990, shortly after discharge, and Dr Clarke was unable to identify the full range of symptoms for posttraumatic stress disorder when she saw her in May 1990, while Ms Solway was still serving. Those contemporaneous reports were relied on for subsequent diagnoses of posttraumatic stress disorder, retrospective to the time of Ms Solway’s discharge, by Dr Jenkins, Dr Whiteford and Dr Bell. That was also the evidence Dr Miller, as summarised in the decision of the Authority in 2005. However, the reports of Dr Apel and Dr Clarke do not point to a serious condition at the time of discharge and I prefer their evidence because of the timing of their observations of Ms Solway. Although Dr Apel set out a detailed history of Ms Solway’s treatment in the RAAF, he did not declare any support for Ms Solway’s statement to him that her discharge was due to her psychiatric conditions. Dr Clarke was aware of Ms Solway’s somatisation disorder but believed that her psychiatric status would restrict her capacity to perform her duties in a minimal way only.
51. Ms Solway had not accepted the remustering options presented to her in October 1988 and she eventually elected a voluntary discharge in order to access her superannuation entitlements. Her clear desire to leave the RAAF had been noted in the reports of Dr Clarke, Mr Brimstone and Mr Maberley. On one occasion, she is noted to have had an interest in becoming a lawyer. Dr Bell recorded Ms Solway as describing her service problems as being due to her “disappointment and disillusionment” with the types of secretarial duties which she was required to perform. I am satisfied that Ms Solway’s desire to avoid remustering from stenographer, to leave the RAAF but to secure the rights to her superannuation were relevant factors in her agreeing to be discharged from the RAAF in September 1990.
52. I am satisfied that Ms Solway ceased her remunerative work with the RAAF for reasons other than the incapacity from her accepted conditions and, accordingly, is not taken to be suffering a loss of salary or wages, or of earnings on her own account, by reason of that incapacity.
53. I am satisfied that Ms Solway does not meet the requirements for the payment of the special rate of pension because she fails to satisfy the terms of s 24(1)(c) of the Act. The intermediate rate of pension, for which provision is made in s 23 of the Act, was not raised in this case. However, I am also satisfied that the requirements for payment of pension at that rate are not met because of s 23(1)(c) of the Act which operates in the same manner as s 24(1)(c) thereof.

DECISION

54. The Tribunal affirms the decision under review.

I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member

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

Research Associate

Date/s of Hearing 3 October 2011

Date of Decision 15 November 2011

Counsel for the Applicant Anthony Harding

Solicitor for the Applicant Terence O'Connor

Solicitor for the Respondent Jeff Kelly, departmental advocate

^[1] Repatriation Commission v Smith (1987) 15 FCR 327 at 335.
^[2] Veterans’ Entitlements Act 1986 (Cth) ss 19(5C)(a) and 19(9).
^[3] Relying on Defence Force Retirement and Death Benefit Authority v Britt  [1985] VicRp 11 ; (1984) 4 FCR 306.
^[4] See paragraph 8 above.
^[5] See Repatriation Commission v Hendy [2002] FCAFC 424; (2002) 76 ALD 47 at 54.
^[6] See Flentjar v Repatriation Commission [1997] FCA 1200; (1997) 26 AAR 93; (1997) 48 ALD 1 at 2. The questions relate to a veteran with war service but are equally applicable to the defence service of Ms Solway.
^[7] See Repatriation Commission v Hendy [2002] FCAFC 424; (2002) 76 ALD 47 at 54 – 55; and Repatriation Commission v Alexander [2003] FCA 399; (2003) 75 ALD 329 at 334.
^[8] [2004] FCAFC 83; (2004) 81 ALD 625.
^[9] See s 37 of the Defence Force Retirement and Death Benefits Act 1973 (Cth).