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Paragraph 24(1)(b) (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; ...
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This test requires an examination of the veteran's incapacity from war-caused injury or disease to determine whether or not that incapacity is such, of itself alone, to render the veteran incapable of undertaking remunerative work for more than 8 hours per week. This does not require an examination of other causes that might render the veteran unable to undertake remunerative work, but merely whether the war-caused disabilities, on their own, are sufficient to render him or her incapable of undertaking such work.
There is a distinction between "incapacity" used in this sense and the way in which it is used in paragraph 24(1)(a). In paragraph (b), it is only concerned with the veteran's incapacity to undertake remunerative work, whereas, the degree of incapacity determined for the purposes of paragraph (a) "is not concerned primarily with incapacity for work but looks to incapacity which takes into account the effect of the relevant disability upon the whole of the veteran's life, not only his working life, but also his social and family life":
Apthorpe v. Repatriation Commission; Chambers v. Repatriation Commission.Section 28 provides assistance in determining whether a veteran is incapable of undertaking remunerative work by setting out the only matters that regard can be had to in deciding that question. The section provides as follows:
Capacity to undertake remunerative work
28.
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).
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Paragraph 28 (a) (a) the vocational, trade and professional skills, qualifications and experience of the veteran; ...
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The word, "experience" in paragraph 28(a) is not limited to job experience, and "vocational qualification" may encompass a person's physical fitness. Thus, even though a veteran's job experience has not included physical labour, if he or she is physically and mentally able to do such work, then the veteran could be said to have the skills, qualifications and experience to undertake particular remunerative work involving physical labour:
Chambers v. Repatriation Commission (Whitlam J); Chambers v. Repatriation Commission (Davies, Moore and Sackville JJ). While a veteran might be psychologically unable to continue to undertake a particular job, he or she might still be physically fit to undertake a low stress job involving manual labour.In
Chambers v. Repatriation Commission, Moore and Sackville JJ (with whom Davies J agreed) said:"The phrase 'remunerative work' is defined in the widest terms, to mean 'any remunerative activity'. Thus the ultimate inquiry to which s.28 is directed is whether the veteran's war-caused capacity (sic), of itself, has rendered that veteran incapable of undertaking any remunerative activity. ... The ultimate inquiry is not expressed to be whether the veteran's war-caused incapacity has rendered him or her incapable of undertaking employment of the kinds for which his previous work history provided training or relevant experience." (the Court's emphasis)
In the
Chambers' case, their Honours indicated that paragraph 28(a) is to be given a broad meaning. They said:"A person's skills are not confined to those acquired in formal training or by virtue of experience in particular employment. They include innate aptitude for tasks and abilities acquired or developed independently of employment or training. ... Similarly 'qualifications' ... is not confined to qualifications obtained as the result of formal training or work experience. Again a person's experience is not necessarily restricted to that acquired in employment or formal training.
"Of course the only skills, qualifications and experience that may be taken into account for the purpose of determining the veteran's opportunities for remunerative work are those that can be described as 'vocational, trade and professional' in character."
In considering the application of section 28, it is important to consider the reasonableness of the veteran undertaking the remunerative work for which he or she is notionally skilled, qualified or experienced. In
Chambers' case, their Honours said:"A broad view of s.28(a) does not produce the result that opportunities for remunerative work must be considered, even where it would be unreasonable for a person with the veteran's skills, qualifications and experience to undertake that work. Section 28(b) requires the question of reasonableness to be addressed."
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Paragraph 28 (b) (b) the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; ...
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In
Repatriation Commission v. Buckingham, the Federal Court noted that paragraph 28(b) is a test concerning a hypothetical person possessing the veteran's skills and experience. The Court also indicated that the kinds of remunerative work that could be postulated must be types of work that would be reasonably available, but that this did not require considerations as to the state of the labour market. The Court said:"Section 28(b) requires the decision-maker to undertake a different kind of inquiry into the types of employment which a hypothetical person with the veteran's skills, qualifications and experience, as found under s.28(a), could reasonably undertake. Unlike that under s.28(a), this inquiry is not directed to the actual subject veteran, but to a hypothetical individual possessing the subject veteran's skills and experience.
...
"That consideration cannot be undertaken in a vacuum. In order to decide what kinds of remunerative work the postulated hypothetical person might reasonably undertake, the Tribunal has to ask itself what kinds of remunerative work are reasonably 'available' to a person in the position hypothesised'. This entails the taking of some notice of the general level of demand by employers for the performance of work of the kind under consideration.
"The Tribunal made no comment at all on its perception of the prevailing state of the labour market. Rather, it seems to have concluded that Mr Buckingham was incapable of reasonably obtaining remunerative work in the open market whatever might be the fluctuations in demand in that market from time to time. By simply referring to the open market as the context in which the reasonably availability of remunerative work for somebody with Mr Buckingham's skills and experience has to be assessed, the Tribunal was not, in my view, erroneously having regard to a factor like 'depressed labour conditions', which Moore and Sackville JJ identified in
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Paragraph 28 (c) (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).
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Paragraph 28(c) requires an examination of the degree to which the physical or mental impairment of the veteran from war-caused injury or disease has reduced his or her capacity to undertake remunerative work. Thus the impact of the war-caused disabilities on the capacity to undertake the remunerative work for which the veteran is skilled, qualified and experienced must be determined.