|
(d) the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work ("last paid work") that the veteran was last undertaking before he or she made the claim or application; ...
|
Paragraph (2A)(d) provides a test similar to that in the first part of paragraph (1)(c), but it relates to the veteran's "last paid work". This effectively overrules, for persons over 65, the main effect of
Starcevich and an important aspect of Banovich. Instead of looking at the reasons for the veteran being prevented from undertaking remunerative of a type that he was undertaking at some time in the past, it is the particular work that the veteran was last undertaking that is the focus of the provision. Indeed, it is this particular last paid work that is the focus of each of the succeeding paragraphs.While the Act does not expressly say so, it might be that a Court would find, similarly to Fox J in
Starcevich, that the last paid work means the last substantial remunerative work undertaken by the veteran. Thus a veteran who had ceased his usual employment but who attempted for a short time, but unsuccessfully, some other enterprise, might not be excluded by a characterisation of that enterprise as his or her last paid work.
|
Paragraph 24(2A)(e) and subsection 24(2B) (e) because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; … (2B) For the purposes of paragraph (2A)(e), a veteran who is incapacitated from war-caused injury or war-caused disease or both, is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if: (a) 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 (b) the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason.
|
It is important to note that where a veteran turns 65 after making a claim or application but before the claim or application is determined, subsections (1) and (2) continue to apply to that person for the entire assessment period and not subsections (2A) and (2B)-this is why there remains a reference to age 65 in paragraph (2)(b).
Paragraph (2A)(e) provides a test similar to that in the second part of paragraph (1)(c), but, again, it relates to the veteran's "last paid work". Thus, the veteran must be suffering a loss of salary or wages, or of earnings on his or her own account that he or she would not be suffering if he or she were free from the incapacity from war-caused disabilities because the veteran is prevented from undertaking his or her last paid work.
The operation of this paragraph is affected by subsection (2B), which operates in a similar fashion to paragraph (2)(a). Similar considerations as are expressed in relation to that paragraph in the first part of the paper apply, except that it must be read in the context of paragraph (2B)(e) applying only in relation to the veteran's last paid work.