Re George Ernest Rattray and Repatriation Commission [1986] AATA 311 (17 October 1986)

ADMINISTRATIVE APPEALS TRIBUNAL

Re: GEORGE ERNEST RATTRAY
And: REPATRIATION COMMISSION
No. N85/265
AAT No. 2936
Veterans' Affairs

COURT

ADMINISTRATIVE APPEALS TRIBUNAL
VETERANS' APPEALS DIVISION
Hon. Sir W. Prentice (Senior Member)

CATCHWORDS

Veterans' Affairs - whether entitled to Special Rate of pension - whether incapacity from accepted disabilities substantial cause inability to obtain work - whether that incapacity prevented working and loss of wages.

Veterans' Entitlements Act No. 27 of 1986 - Sub-sections 24(1)(a), 24(1)(b), 24(1)(c), 24(2)(a), 24(2)(b).

Re Lucas and Repatriation Commission (2659), 6 May 1986;

Re Lawrence and Repatriation Commission (2867), 4 September 1986;

Re Bertram and Repatriation Commission (2783), 29 July 1986;

Re Banovich and Repatriation Commission (2618), 10 April 1986.

HEARING

SYDNEY
17:10:1986

ORDER

The decision the subject of review is affirmed.

DECISION

This is an application for review of a decision of the Veterans' Review Board (of 2 April 1985) whereby a Repatriation Board decision (of 15 September 1983) was set aside and the applicant's pension was increased to 100% of the General Rate (from 5 February 1982). The applicant contends that he is entitled to pension at the Special ("TPI") Rate.

2. The applicant is now aged 69; he turned 65 in May 1982. His disabilities which are accepted as being war-caused are anxiety state, peptic ulcers (following a gastrectomy, he is left with a "dumping syndrome"), solar keratoses, basal cell carcinoma, and squamous papilloma.

FACTS

3. Mr. Rattray served in the army during World War II in Darwin from 1942 to 1946, initially in transport and afterwards in the production of Propaganda leaflets for distribution throughout the Islands. He had obtained his Trade Certificate pre-war as a letter-press printer with John Sands, to which firm he returned at war's end. There followed printing jobs with various firms including William Brookes (for 16 years). In the intervening years he had bought a block of land at Evans Head. When a domestic tragedy occurred, he and his wife decided to go to Evans Head where they looked after his brother-in-law's four orphaned little children; he says that he was then "about 50" years old.

4. On moving to Evans Head he sailed his own re-engined boat there, and began activity on his own account as a fisherman - since the war he had always had his own boat. But encountering trouble with the local Co-operative, he tied up his own boat and went trawling for Payne & Sons for some 18 months. He found it too difficult pulling on the nets when prawning (his stomach troubled him and he could have put his skipper in trouble by having to let go the haul); so he gave up trawling, and took a job as a club doorman three nights a week. That job also lasted some 18 months.

5. He then worked three seasons (each being May to December - "the crush") as a laboratory assistant checking sugar content of cane assignments in an Innisfail mill. Both at this and the doorman's job he "blew his stack" as he described it; and this "explosion" on provocation seems to have been responsible for his leaving a number of jobs usually after 8 or 9 years.

6. On 15 January 1975 Mr. Rattray, then being 58 years old, applied for and was granted the Service Pension. He made the application on the stated ground of "permanent unemployability", and stated the unemployability arose from "skin cancer and osteoarthritis and gastrectomy for ulcers".

7. Following the conclusion of the hearing of this application, Respondent's Counsel has stated in writing (letter of 21 August 1986) that the Commission accepts that Mr. Rattray meets the requirements of sub-section 24(1)(b) of the Veterans' Entitlements Act No. 27 of 1986 ("the Act"), as well as its sub-section 24(1)(a); that is to say that the applicant's accepted disabilities are of such a nature as of themselves alone to render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week, and that his incapacity is assessed at 100% for purposes of the Act. The Tribunal considers, having regard to the evidence before it, that these concessions were properly made.

8. The resolution of the claim requires decisions as to the applicability and effect of sub-sections 24(1)(c) and 24(2)(b) upon the case.

IF SUB-SECTION 24(2)(b) INAPPLICABLE TO THE CASE

9. I will assume for the moment that the amelioration of conditions of entitlement in the case of a veteran under 65 years of age provided for by sub-section 24(2)(b) of the Act is not available to Mr. Rattray. If that be so, it is necessary to consider the facts in the light of sub-section 24(1)(c) and sub-section 24(2)(a).

10. Mr. Slattery for the applicant has submitted that for the purpose of satisfying the requirements of sub-section 24(1)(c) (and inferentially also those of sub-section 24(2)(a)), it is sufficient to have shown incapacity from accepted disabilities played a dominant or supervening role in the prevention from undertaking remunerative work and consequent loss of wages.

11. To my knowledge, such a submission has never been accepted in the Tribunal. The decisions to the effect that incapacitation from accepted disabilities must be shown to have been the sole cause of prevention from remunerative working and loss of wages are legion. They make use of words such as "unique", "sole", "absolute" to illustrate what is regarded as the effect of the words "alone" and "by reason of" in sub-section 24(1)(c). It has been held repeatedly that domonstration of "a basket of causes" including accepted war-caused incapacity is insufficient. It is unnecessary to cite more than a few recent such decisions: Re Lawrence and Repatriation Commission ((2867), 4 September 1986), Re Bertram and Repatriation Commission ((2783), 29 July 1986), and Re Banovich and Repatriation Commission ((2618), 10 April 1986).

12. The applicant appears last to have worked in 1973, in the position of laboratory assistant at the Innisfail Sugar Mill. That he left that post not because of his post-operative incapacity and the condition of his skin, for which he had left the trawling industry, but rather because of temperament and impatience with the pressure of the job, appears to me to be the most compelling inference to be drawn from the applicant's account of happenings. I am unable to conclude on the evidence that his accepted disability of anxiety state (apparently mild in nature) played a predominant part in his leaving that job. Thereafter there seems to have been no further attempt to engage in employment, Mr. Rattray having returned to his home in Evans Head where indeed the employment prospects appear to have been nil.

13. As he stated in evidence, the applicant appears to have had some thought in his mind of retirement (when his son who was killed as an apprentice aged just under 17) "finished his time" - that is, some three and one-half years after the family moved to Evans Head in about 1968. But later, in evidence, he modified this by stating that he had intended to retire when he qualified for the Old Age or the Service Pension. In fact he obtained the Service Pension in March 1975. I consider that it was unlikely that Mr. Rattray, given his background and temperament, would in any event have worked beyond the age of 60. I am of the opinion that the evidence establishes that Mr. Rattray ceased to engage in remunerative work for a number of reasons. These included such incapacity as he was experiencing from what became his accepted war-caused disabilities; but I conclude on the balance of probabilities that other physical disabilities, the difficulties with hand, wrist and shoulder of arthritic nature, must have played some part in his so ceasing. Another factor which I believe to have been shown to be a reason for contributing to his cessation of remunerative work was his decision to remain in an area where there were no practicable work opportunities for him. Lastly, I find also that the acceptance of his claim for the Service Pension would not only have been a contributory reason to his not seeking to re-engage in remunerative work after his cessation of it in Innisfail, but would indeed have operated towards preventing him from so engaging. It has been shown therefore in my view that Mr. Rattray should not be taken to be suffering a loss of wages or of earnings on his own account by reason of his war-caused incapacity (sub-section 24(2)(a)); and does not therefore on this basis qualify under sub-section 24(1)(c) to grant of the Special Rate of pension.

IF SUB-SECTION 24(2)(b) IS APPLICABLE

14. This sub-section can apply in the case of a veteran "not being a veteran who has attained the age of 65 years". If his age at hearing of this application for review be the touchstone of applicability of the sub-section, then it would not apply. Six years have elapsed from application for pension to date. Mr. Rattray was 63 when his application was filed, he was not yet 65 on the date from which it was decided that payment of pension should commence. It does not appear logical to so construe an ameliorating sub-section such as 24(2)(b) (Re Lucas and Repatriation Commission (2659), 6 May 1986) in such a way that advantages that might otherwise accrue, could be lost through the delay in processing a claim through three appeals. I believe the spirit of the Act to require the question of attainment of 65 years for purposes of sub-section 24(2)(b) to be decided as at the date of the relevant application in this case being received, namely May 1980. On this basis Mr. Rattray then being some 63 years old could seek to rely on it.

15. However, there appears to be no evidence of Mr. Rattray's genuinely seeking to engage in remunerative work at any time after he gave up his employment at Innisfail. Mr. Rattray's evidence establishes, I consider, that he intended to work only until he could get "the old age pension or something like it" (as he said), and that it was most unlikely that he would have sought to work beyond the age of 60. Having regard to his electing to remain resident in the Evans Head area which he knew to offer almost no prospect whatever of employment for him with his working background and abilities, and to his applying for and being granted the Service Pension at the age of 58, and to his other non-accepted disabilities; I am unable to conclude on the balance of probabilities either that he would but for his accepted disabilities be continuing to seek to engage in remunerative work or that his incapacity arising from accepted disabilities is the substantial (in the sense of predominant) cause of his inability to obtain remunerative work.

16. I conclude that Mr. Rattray cannot therefore avoid the stricter conditions set by sub-section 24(1)(c) by recourse to sub-section 24(2)(b). For the above reasons, it is my conclusion that Mr. Rattray does not qualify for the Special Rate of Pension and that the decision the subject of review should be affirmed.