Ansell and Repatriation Commission
[2005] AATA 1101
•7 November 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1101
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2004/168
VETERANS' APPEALS DIVISION ) Re STANLEY VICTOR ANSELL Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr JG Short (Member) Date7 November 2005
PlaceAdelaide
Decision The Tribunal sets aside the decision under review and substitutes a new decision that from 17 July 2003 Mr Ansell has satisfied the requirements of s 24 of the Veterans’ Entitlements Act and is entitled to payment of the special rate of pension.
..............................................
JG SHORT
(Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – Disability Pension – earnings related rate of pension – applicant prevented from engaging in remunerative work because of incapacity from war-caused disabilities alone – decision under review set aside
Veterans’ Entitlements Act 1986 ss 19(5C), 19(9), 24(1)
Workers Rehabilitation and Compensation Act 1986 s 43
Re Jackman and Repatriation Commission [2001] AATA 295
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Alexander [2003] FCA 399
Flentjar v Repatriation Commission (1997) 48 ALD 1
Cavell v Repatriation Commission (1988) 9 AAR 534
Forbes v Repatriation Commission (2000) 101 FCR 50REASONS FOR DECISION
7 November 2005 Mr JG Short (Member) background
1. On 21 October 2002 Mr Stanley Ansell lodged a claim for acceptance of a hearing condition and of an emotional and behavioural condition as being war-caused. On 30 January 2003 the Repatriation Commission (the Commission) answered the claim by accepting post-traumatic stress disorder with alcohol dependence and bilateral sensorineural hearing loss with tinnitus as war-caused disabilities. The Commission assessed Mr Ansell’s rate of pension at 80 percent of the general rate with effect from 21 July 2002. On 11 February 2003, Mr Ansell lodged an application for review by the Veterans’ Review Board (the VRB). On 30 March 2004 the VRB affirmed the decision. On 3 June 2004 Mr Ansell lodged an appeal with this Tribunal.
issue for determination
2. The issue for determination is whether Mr Ansell satisfies s 24(1)(c) of the Veterans’ Entitlements Act 1986 (the VE Act), that is:
·whether he is, by reason of incapacity from his war-caused injuries alone, prevented from continuing to undertake remunerative work that he had been undertaking; and
·whether in consequence he is suffering a loss of wages or earnings on his own account which he would not be suffering if he were free from that incapacity.
3. It is common ground, and on the evidence I find, that Mr Ansell satisfies the first and second criterion for payment of an earnings related rate of pension under s 24 of the VE Act, that is that Mr Ansell’s degree of service related incapacity is at least 70 percent. And that his incapacity from war-caused conditions is of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. These criterion are contained in ss 24(1)(a)(i) and 24(1)(b) of the VE Act.
4. Mr Ansell was employed as a building manager at the North Campus of Trinity College Gawler Inc. (Trinity College) until his resignation from that position on 17 July 2003. Mr Ansell has not sought to engage in remunerative work since his resignation and consequently the provisions of s 24(2)(b) of the VE Act have no application.
evidence
mr stanley ansell
5. Mr Ansell tendered a written statement [Exhibit A2] and also gave oral evidence. He described how he had worked in a full-time capacity at Trinity College since February 1993 until his resignation on 17 July 2003. Mr Ansell said that since July 1997 he also had a part-time job driving a truck. Mr Ansell explained that he had a personal relationship with the trucking company manager and that it was left to him to decide how much driving work he would undertake. He said that by March 2000 his driving activities comprised no more than one return trip to a point, approximately half way between Adelaide and Sydney, undertaken each three weeks. Mr Ansell said that no further driving work was undertaken after March 2000, save and except for a brief failed attempt to return to this type of work in 2001.
6. Mr Ansell said that when he started work at Trinity College he had explained to the Principal that he had a history of back injuries:
·1982 – lower back injury arising out of motor vehicle accident.
·1988 – left elbow injury arising out of a fall while working as a transport driver.
·June 1992 – low back injury while working as a transport driver.
·1999 – low back injury while bending and working under a stage at Trinity College.
·March 2000 – left shoulder injury arising out of a fall at Trinity College.
·2002 – minor motor vehicle accident – mild exacerbation of previous injuries.
7. Mr Ansell said that he had been “up front” in advising the Principal at Trinity College of his history of injuries. He said that his physical injuries did not prevent him performing any of his duties at Trinity College. He said that he learned to work around his physical disabilities.
8. Mr Ansell said that his condition of post-traumatic stress disorder (PTSD) worsened, particularly over about a period of 6 months leading to his eventual resignation on 17 July 2003. Mr Ansell described his symptoms of PTSD as including anger; a propensity to be easily upset; distain for authority; annoyance at people’s insistence at worrying about trivial matters; a tendency to be forgetful; feeling like he was walking in circles; headaches and a feeling of high blood pressure. He said he sometimes felt like his head was going to explode. Mr Ansell said that he was prescribed the anti-depressant, Effexor, and is currently taking 150 mg per day.
9. Mr Ansell said that his physical conditions did not impact on his ability to work. In reference to his right shoulder he said that there was no pain and that he enjoyed a full range of movement; in relation to his lower back he said that on a cold day he feels a minor aching, but did not experience sciatica and had a full range of movement. In relation to his right elbow he said that this had occurred during truck driving and that the injury had resulted in minor arthritic changes. He said that he is able to straighten his right elbow to 170 degrees rather than 180 degrees and that there is no loss of muscle power. He said that he is right hand dominant. Mr Ansell said that without his experience of PTSD he would still be working on a full-time basis performing the same type of work which he performed at Trinity College, that is general maintenance type work. Mr Ansell said that he has considered self-employment in this same field, but feels that he could not cope with the pressure of self-employment. Mr Ansell denied having any significant time off work at Trinity College for reasons relating to his physical conditions other than for periods immediately following those injuries.
10. In answers to questions put in cross-examination, Mr Ansell said that he regarded himself as physically fit to perform all his usual duties after September 2001. He said that the one exception to this was a brief period of exacerbation of his back condition following a minor motor vehicle accident in 2002.
11. Mr Ansell was referred to the two medical reports prepared by Orthopaedic Surgeon, Dr Felix Lim, both dated 23 November 2002. One report relates to Mr Ansell’s left shoulder injury and the other to his back injury. The reports suggest that Dr Lim had examined Mr Ansell in relation to both injuries on 22 November 2002. Mr Ansell said that in fact he had attended on Dr Lim on two separate occasions in order that Dr Lim could examine both of these two last mentioned injuries.
12. Dr Lim’s report on Mr Ansell’s left shoulder injury stated that this injury occurred on or about 3 March 2000 and involved a fall over a student’s bag. This report concludes by suggesting that Mr Ansell was eventually able to return to normal duties with some restrictions relating to the use of his left arm for extended periods in an elevated position and the need to avoid heavy lifting. Dr Lim ascribed a 10 percent loss of work capacity in the open market. For the purposes of Schedule 3 of s 43 of the Workers Rehabilitation and Compensation Act 1986 (Workers Compensation Act) Dr Lim also ascribed a 15 percent permanent impairment of left shoulder. In relation to his back injury, Dr Lim recorded constant back pain at a level of 5 out of 10 with exacerbation of 8 out of 10 and that Mr Ansell’s range of motion in his lumbar spine was restricted and painful. The same report indicates that Mr Ansell did not have time off work after the 2002 motor vehicle accident and that Mr Ansell is fit for normal duties with some restriction on lifting and bending. For purposes of s 43 of the Workers Compensation Act Dr Lim ascribed a 40 percent permanent physical impairment in relation to Mr Ansell’s back.
13. Mr Ansell said that Dr Lim had been confused in recording some of his history. Mr Ansell also said that his physical conditions had improved since Dr Lim reported in November 2002. He said that Dr Lim’s reports should be seen in the context of having been prepared for Mr Ansell’s solicitor’s use in a workers’ compensation claim and particularly for an entitlement under s 43 of the Workers Compensation Act.
14. Mr Ansell said that he had developed a friendship with the school chaplain, Mr Peter Linn. He said that it was during discussions with Mr Linn that Mr Linn suggested Mr Ansell consult a psychiatrist about his feelings of anxiety. Mr Ansell said that he consulted Dr Martyn Ewer in January 2003 and that Dr Ewer had diagnosed PTSD, but at that stage had indicated that the condition may be temporary and that Mr Ansell was still capable of working at least 20 hours a week. Mr Ansell said that his PTSD rapidly worsened. He next saw Dr Ewer in March 2003 at which time Dr Ewer reported that Mr Ansell was unable to work 8 hours a week, and that his condition was likely to be seen as permanent unless there was some significant improvement within 6 months.
15. Mr Ansell said that although he was physically able to undertake all of his duties at Trinity College, and although he was physically present, he was not “mentally present”. He described a term “presenteeism”.
16. Mr Ansell said that a new position had been created in 2003 and that he had been encouraged by others to apply for the position. He said that he was not surprised when he was not appointed to that position. He said that during the period leading up to his resignation in July 2003, he had fallen into a hole. He only performed tasks which were related to the safety of the students and delayed attending to other maintenance type duties around Trinity College.
17. Mr Ansell said that he had discussed resignation from Trinity College with his wife. Neither he nor she were keen on him leaving. He said however that in June 2003 he told his wife that he was simply unable to go on. He said that he felt as if his head were going to explode.
18. Mr Ansell said that he had told the school Principal, Mr Kym Reynolds, in about March 2003 about his experience of PTSD. Mr Ansell repeated that the only thing which prevented him continuing to work was his PTSD. He said that he had been working with “a crook back since 1982”. He said that he had learned to live with it.
19. Mr Ansell said that he had been successful in obtaining a compensation payment pursuant to s 43 of the Workers Compensation Act in the sum of about $49,000. He said that the claim was settled in December 2004. Mr Ansell said however that this had nothing to do with his ability to work at Trinity College and played no part in his decision to resign that employment.
mr kym reynolds
20. Mr Reynolds is the Principal of Trinity College. He spoke in glowing terms of Mr Ansell’s work performance. There was no suggestion that physical disabilities impacted on that performance.
21. Mr Reynolds said that he learned from the school chaplain, Mr Linn, that Mr Linn was concerned for Mr Ansell’s welfare due to his experience of PTSD. Mr Reynolds said that he was not surprised that a report from Trinity College indicated that Mr Ansell had resigned from the College because of PTSD. He said however that there may have been other reasons for the resignation, in addition to PTSD.
22. Mr Reynolds said that Trinity College had grown from one campus to four and now recently five. He said that this allowed more centralised management and more outsourcing. Mr Reynolds said that Mr Ansell had told him that he was leaving because he had not been pleased with the direction Trinity College was going. Mr Reynolds said that he could not recall Mr Ansell telling him that PTSD was a reason for leaving. He did however confirm that Mr Linn had told him, in the first half of 2003, that he was concerned about Mr Ansell’s PTSD. Mr Reynolds said that he accepted that PTSD was a reason for Mr Ansell leaving. He said however that he was not sure that it was the only reason. He said that on more than one occasion Mr Ansell had expressed his frustration at the direction in which Trinity College was going and at not being successful in obtaining a position which Mr Ansell had considered perfect for himself.
mr peter linn
23. Mr Peter Linn has a Bachelor of Theology and has worked as a priest/chaplain for many years. He has also gained experience identifying and providing initial counselling for Vietnam veterans exhibiting symptoms of PTSD. Mr Linn explained that he has a military background and is a serving member of the reserve forces.
24. Mr Linn said that he recalled one particular occasion after he had returned from a camp at El Alamein. He discussed the camp with Mr Ansell and described how he had witnessed 50 calibre shells being fired. Mr Linn said that this discussion led to Mr Ansell displaying signs of anxiety and stress. Thereafter he was able to observe Mr Ansell having “good days and bad days”. Mr Linn confirmed that he had raised his concerns about Mr Ansell’s experience of PTSD with Mr Reynolds.
25. Mr Linn said that he had become particularly concerned for Mr Ansell’s welfare over the 2002/03 Christmas period. He recalled seeing Mr Ansell simply standing and staring into the distance. Mr Linn undertook what he described as “walk and talks”, with Mr Ansell. He said that his concern led him to arrange for Mr Ansell to obtain some professional help.
26. Mr Linn said that in early 2003 he had noted Mr Ansell displaying more and more extreme symptoms of stress and frustration. He said that Mr Ansell would often swear in reference to teachers. He also noted that after performing medical first aid for students (Mr Ansell held a First Aid Certificate) Mr Ansell was often shaking. Mr Linn said that Mr Ansell had also described to him how he had increased his alcohol consumption.
27. Mr Linn said that he had advised Mr Ansell that he should apply for a newly created position in early 2003. He said however that he had recently discovered that the position had, at the time it was offered, already been promised to another person.
28. Mr Linn described how he accompanied Mr Ansell to Mr Luke Thomson’s office (the Headmaster) in mid 2003 and assisted him in discussing his intention to resign from Trinity College. Mr Linn said that neither he nor Mr Ansell had mentioned any conditions other than PTSD.
29. Mr Linn said that although there were days when it was obvious that Mr Ansell had a back or shoulder condition, he was always able to work through it. Mr Linn described an occasion in the first term of 2003 when Mr Ansell was to fix a number of art frames. Mr Linn said he noticed that Mr Ansell was having trouble reaching above his head. He soon noted that Mr Ansell was able to bring some tables and trolleys to his assistance and was able to efficiently manage the task.
medical evidence
30. Medical reports of Psychiatrist, Dr Ewer, dated 9 January 2003 and 24 March 2003 were admitted as part of Exhibit 1. The first report diagnoses chronic PTSD with alcohol dependence. That report goes on to say that Mr Ansell was, at that time, capable of working more than 20 hours a week and that his condition could be seen as temporary, but may prove to be permanent. The second report dated 24 March 2003 noted that Mr Ansell’s general practitioner had increased his dose of Cipramil to 40 mg per day. The report also mentions that Mr Ansell had undertaken counselling sessions with the Vietnam Veterans’ Counselling Service. Dr Ewer said that despite this assistance Mr Ansell’s emotional state had deteriorated. Dr Ewer concluded his report by saying that Mr Ansell could no longer work 8 hours a week due to his psychiatric problems and that his condition was likely to be permanent unless significantly improved within 6 months.
31. Mr Ansell’s local medical officer, Dr Nat Maiolo, in a report dated 7 April 2003 indicated that Mr Ansell was no longer able to work and that the reason for this was his psychiatric problems.
32. Occupational Physician, Dr Graham Long, in a report dated 5 December 2003 addressed to the Department of Veterans’ Affairs concluded by saying:
“Although there has been significant improvement in his symptoms of PTSD with treatment and ceasing work, he does report significant ongoing disability in this regard, with symptoms of depression including impaired motivation and fatigue and tearfulness.”
The clinical findings expressed in Dr Long’s report describe a full and free range of shoulder movement bilaterally, and a restriction in range of movement of the left elbow of between 5 and 10 percent. When back pain is present it is located at L4-L5. This report goes on to say that there was no tenderness on the occasion of the examination and that Mr Ansell retained a full and free range of back movement with flexion possible to reach his toes. The report indicates:
“There is a history of old back and left elbow injuries with minimal impact currently with respect to his ability to undertake work and home activities.”
33. I have already described the reports of Orthopaedic Surgeon, Dr Felix Lim, in paragraphs 11, 12 and 13 of these Reasons for Decision.
legislation
34.Section 24(1)(c) of the VE Act provides as follows:
“24(1) This section applies to a veteran if:
…
(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
… .”
35. The second leg of s 24(1)(c) is affected by the deeming provisions in s 24(2)(a) of the VE Act. This provides:
“24(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
… .”
The expression “remunerative work” is defined in s 5Q(1) of the VE Act to mean “any remunerative activity”.
applicant’s submissions
36. Mr Jolly referred to the expert medical opinion evidence of Dr Ewer and Dr Long. Mr Jolly said that the evidence presented a picture of a diligent maintenance worker who had always worked in a pro-active way and had coped well with a history of physical injuries. He said that the evidence clearly pointed to an exacerbation of Mr Ansell’s symptoms of PTSD in the first half of 2003 as described in Dr Ewer’s second report culminating in Mr Ansell’s inability to perform the work he had undertaken for more than 10 years.
37. Mr Jolly suggested that the opinion of Orthopaedic Surgeon, Dr Felix Lim, was reliable only in relation to his clinical findings. He also suggested that the report was coloured by its purpose. Mr Jolly referred to paragraph 12 of the Tribunal’s decision in ReJackman and Repatriation Commission [2001] AATA 295 which reads as follows:
“… In our opinion the fact that a veteran’s war-caused incapacity is aggravated by extraneous events does not enable the Respondent to argue that his inability to engage in remunerative work is due to factors other than war-caused disability alone. … it was an aggravation to a pre-existing war-caused post traumatic stress disorder.”
38. Mr Jolly suggested that although other circumstances existed including a history of physical injuries, changes in the school environment and failing to obtain a promotional position, these simply exacerbated Mr Ansell’s experience of PTSD. They played no role in his decision to resign his employment.
respondent’s submissions
39. Mr Crowe referred to the cases of Repatriation Commission v Hendy (2002) 76 ALD 47 and Repatriation Commission v Alexander [2003] FCA 399. Mr Crowe conceded that ss 24(1)(a) and 24(1)(b) of the VE Act had been satisfied in this case, that is that Mr Ansell’s PTSD would, of itself, be sufficient to prevent Mr Ansell working, however he correctly pointed out that this was not the only test. He submitted that Mr Ansell failed to satisfy the test described in s 24(1)(c) of the VE Act requiring that the only factor impacting on the veteran’s inability to work be an accepted disability, in this case PTSD. Mr Crowe suggested that other factors could be found in Mr Ansell’s wife obtaining further and better paid employment, changes over the years in Trinity College’s management and a failure to obtain a promotional position. He also referred to the symptoms flowing from Mr Ansell’s history of physical injuries, as described by Orthopaedic Surgeon, Dr Lim.
consideration
40. I start by recording that under s 19(5C) of the VE Act it is necessary to assess the rate or rates at which pension is payable from time to time during “the assessment period”. That expression is defined in s 19(9) of the VE Act to mean a period starting on the application day (in this case 21 October 2002) and ending when the application is determined. In this case it has been agreed by the parties, and I find on the evidence, that Mr Ansell resigned his employment on 17 July 2003 and consequently this date is the first date from which an earnings related rate of pension could be payable.
41. In considering the application of s 24(1)(c) of the VE Act, I refer first to the analysis of Branson J (with whom the other members of the Full Court of the Federal Court agreed) in Flentjar v Repatriation Commission (1997) 48 ALD 1. Her Honour said that a proper consideration of s 24(1)(c) required responses to the following four questions:
“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 account that he would not be suffering if he were free of that incapacity?”
42. In reference to the first question in Flentjar (supra), I determine that the type of remunerative work which Mr Ansell was undertaking was that of a maintenance person or general handyman.
43. In reference to the second question in Flentjar and noting that the Commission has conceded that s 24(1)(b) of the VE Act has been satisfied, I find that Mr Ansell’s experience of PTSD with alcohol dependence is sufficient to prevent him from continuing to undertake the type of work previously undertaken.
44. The third question in Flentjar relates to the “alone” test in s 24(1)(c). On the authority of Cavell v Repatriation Commission (1988) 9 AAR 534, and of Forbes v Repatriation Commission (2000) 101 FCR 50, the word “alone”, in the absence of ambiguity, should not have other words substituted for it. The word “alone” as it appears in s 24(1)(c) requires a practical decision as to whether the veteran’s being prevented from undertaking remunerative work is attributable to his or her service-related incapacities, and not to something else as well; any factor having employment consequences which plays a part in the veteran’s inability to work or to obtain and hold remunerative employment is sufficient to displace the veteran’s case for pension at the special rate.
45. In Cavell (supra) at 539, Burchett J said further that the true task of the Administrative Appeals Tribunal, in applying the “alone” test in s 24(1)(c) of the VE Act, was:
“… 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”.
In Forbes (supra), RD Nicholson J said (at para [39]):
“The question whether the veteran by reason of the war-caused condition ‘alone’ has been prevented from continuing to undertake remunerative work can only be answered by reference to all the circumstances in which the war-caused condition exists”.
46. The potential relevance of other factors which might prevent a veteran from continuing to undertake the relevant remunerative work was further explained in Hendy (supra) (at para [37]):
“The language of s 24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the Veteran from working. The decision-maker is required to take into account any factor that plays a part or contributes to a veteran’s being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period. … [H]aving considered any or all of the factors which may have contributed to a veteran’s incapacity, the tribunal is then required to determine whether it is the veteran’s war-caused injury or war-caused disease, or both, alone which prevent the veteran from continuing to undertake remunerative work.”
47. I must now consider, in the light of the above authorities whether there are factors other than Mr Ansell’s war-caused PTSD with alcohol dependence which contribute to his being prevented from undertaking remunerative work.
48. The Commission submitted that Mr Ansell’s physical injuries, along with his wife finding different and more highly paid employment, his dissatisfaction with the management of Trinity College and his failure to obtain a particular position, all contributed to his inability to continue to work. By contrast, Mr Jolly contended that Mr Ansell had demonstrated over many years that his physical conditions had not impacted on his ability to work and that the management changes at the school and Mr Ansell’s failure to obtain a particular position were matters with which Mr Ansell would cope easily were it not for his experience of PTSD.
49. I have had regard to all of the circumstances of this case. I have noted that the medical reports of Mr Ansell’s local medical officer, his Psychiatrist, Dr Martyn Ewer, and to a lesser extent, Occupational Physician, Dr Graham Long, all support the applicant’s contentions in relation to the absence of any physical conditions which impacted upon Mr Ansell’s inability to continue working. I have also noted the reports of Orthopaedic Surgeon, Dr Felix Lim, and the outcome of Mr Ansell’s s 43 claim. I am not satisfied that Mr Ansell’s wife’s promotion or pay rise impacted on Mr Ansell’s decision to resign in any way.
50. I have been particularly impressed with the evidence provided by Trinity College’s chaplain, Mr Peter Linn. Mr Linn did not seek to disguise the fact that Mr Ansell did experience symptoms of physical injuries nor the fact that Mr Ansell was dissatisfied with the changes to the management at Trinity College. Mr Linn has had significant experience in recognising symptoms of PTSD in Vietnam veterans. He also had an opportunity of observing Mr Ansell’s work performance and general demeanour over the years leading to his resignation. Mr Linn said that Mr Ansell managed his physical disabilities and was well able to cope with the physical aspects of his employment. Mr Linn was able to observe and recognise the exacerbation of Mr Ansell’s experience of PTSD during the first half of 2003. This period of exacerbation was also described by Dr Ewer in his second report. It was Mr Linn who accompanied Mr Ansell to the headmaster’s office to advise of Mr Ansell’s resignation. He confirmed that PTSD was the only condition mentioned at that time and I accept this evidence.
51. Dr Lim’s evidence may in some circumstances have resulted in a rejection of Mr Ansell’s claim for an earnings related rate of pension. In the circumstances of this case however I am in the unusual position of having the benefit of Mr Linn’s evidence which I accept without hesitation. It was he who witnessed Mr Ansell’s escalating experience of PTSD and was able to describe its effect on Mr Ansell’s ability to work. Taking a practical approach to the issue for determination and appreciating the Commission’s submissions, I have reached the view that reasons other than Mr Ansell’s experience of PTSD did not play a significant role in preventing Mr Ansell from working. As a consequence, Mr Ansell satisfies the alone test described in s 24(1)(c) of the VE Act.
52. I set aside the decision under review and substitute a new decision that from 17 July 2003 Mr Ansell has satisfied the requirements of s 24 of the Veterans’ Entitlements Act and is entitled to payment of the special rate of pension.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Mr JG Short (Member)
Signed: ...........J Coulthard............................................
AssociateDates of Hearing 9-11 August 2005
Date of Decision 7 November 2005
Counsel for the Applicant Mr E Jolly
Solicitor for the Applicant Tindall Gask Bentley
Counsel for the Respondent Mr A Crowe
Solicitor for the Respondent DVA
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