Manelski and Repatriation Commission
[2003] AATA 232
•13 March 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 232
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V01/1546
VETERANS’ APPEALS DIVISION ) Re MARK ANDREW MANELSKI Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mrs Joan Dwyer, Senior Member
Mr C. Ermert, Member
Assoc. Professor J.H. Maynard, MemberDate13 March 2003
PlaceMelbourne
Decision The Tribunal affirms the decision under review. (Sgd) Joan Dwyer
Senior Member
VETERAN’ AFFAIRS – veteran’s pension – whether entitled to intermediate or special rate pension – accepted war-caused conditions include PTSD – whether it results in incapacity for work of such a nature as to render veteran incapable of working more than eight hours a week or otherwise than on a part-time basis or intermittently – whether prevented from continuing to undertake remunerative work that he was undertaking by reason of incapacity from war-caused injury alone – decision affirmed
WORDS AND PHRASES – work of a particular kind
Veterans' Entitlements Act 1986 ss 23, 24
REASONS FOR DECISION
13 March 2003 Mrs Joan Dwyer, Senior Member
Mr C. Ermert, Member
Assoc. Professor J.H. Maynard, MemberBACKGROUND FACTS
1. This is an application for review of a decision of the Repatriation Commission made on 5 December 2000 which accepted two conditions as war-caused under the Veterans' Entitlements Act 1986 (“the Act”) and assessed pension payable in respect of those conditions and other previously accepted conditions including Post-Traumatic Stress Disorder (“PTSD”) at 70% of the general rate under s 22 of the Act. That assessment was affirmed by the Veterans’ Review Board (“VRB”) on 26 September 2001.
2. Mr D De Marchi, a solicitor, appeared for the applicant. Mr K Rudge, an advocate with the Department of Veterans’ Affairs, appeared for the Repatriation Commission. The Tribunal had before it the documents (“the T documents”) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) and also the exhibits tendered during the hearing.
3. Mr Manelski gave evidence. Evidence on his behalf was given by Mr Boctor and by Dr Stone, a rehabilitation physician. The respondent called Dr Gidley, a psychiatrist.
4. Mr Manelski has the following accepted disabilities:
Healed wound right thigh
Post Traumatic Stress Disorder
Tinea
Bilateral sensorineural hearing loss
Diabetes mellitus
Diabetic retinopathy
Impotence
The issue before the Tribunal is whether Mr Manelski is entitled to pension at the intermediate or the special rate under ss 23 or 24 of the Act. It was not in dispute that Mr Manelski’s accepted PTSD is the only war-caused disease which affects his capacity to undertake employment.
5. As Mr Manelski is already in receipt of pension at 70% of the general rate under s 22 of the Act, he satisfies part of the qualification for special or intermediate rate pension. The relevant legislative provisions are found in ss 23 and 24 of the Veterans' Entitlements Act 1986 (“the Act”). So far as relevant to this matter, they provide as follows:
23 Intermediate rate of pension
(1)This section applies to a veteran if:
. . .
(b)the veteran’s incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and
(c)the veteran is, by reason of incapacity from 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 from that incapacity; and
(2)Paragraph (1) (b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:
(a)if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or
(b)in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking—if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.
(3)For the purpose of paragraph (1) (c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1) (b) 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:
(i)if 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;
(ii)if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or
(iii)if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; and
(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.
24 Special rate of pension
(1) This section applies to a veteran if:
. . .
(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; and
(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
(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.
THE EVIDENCE
6. The evidence is that Mr Manelski served in the Australian Army for five years from 19 April 1967 to 18 April 1972. He had operational service in Vietnam from 25 June 1968 to 14 March 1969.
7. Mr Manelski was employed by the Victorian Railways and then the Public Transport Corporation (“PTC”) for 29 years, both before and after his Army service. He was made redundant in September 1993 at age 47. Since then he has not had full-time work in spite of lodging approximately three or four applications for full-time positions a week. Since January 1999, he has been working part-time for St Joseph’s College (“the College”).
8. Mr Manelski lodged a work statement (A2) which reads as follows:
1.I served in the Australian Army from 19 April 1967 to 18 April 1969 and have rendered operational service in South Vietnam.
2.When I returned from Vietnam I returned to work at the Victorian Railways in the Accountancy Branch. My duties included bookkeeping timekeeping payroll and auditing. I worked as a Debt Collector tor the last few years.
3.I left the Railways on 23 September 1993, when I was retrenched. However during my time with the Railways I have had to take time off on stress leave tor approximately 4 weeks. I was also involved in altercations with clients in relation to payment of his debt. When this customer telephoned me I would just hang up on him. The incident became heated and my supervisor counselled me and I was reprimanded and this customer was taken out of my charge. I was very short tempered with customers.
4.In 1999 I obtained part time employment in Accounts and as a Debt Collector. This was in a part-time capacity. I am still so employed.
5.I verily believe that but for my accepted condition of Post Traumatic Stress Disorder I would not have been retrenched and I would still be employed today.
6.When I was working with the Victorian Railways my income was approximately $32.247.00 per annum. Since then my income has been approximately $7,000 to $8,000 per annum and I have lost remuneration as a result of not being able to work.
9. In his evidence Mr Manelski gave more detail as to the difficulties which arose while he was working for the Victorian Railways, which was privatised and became the PTC. He said in September 1993 the PTC started a policy of redundancies and he was one of four people in his office who were retrenched in the first lot of redundancies. Mr Manelski believed he was retrenched because he was not of benefit to the railways.
10. Mr Manelski said he had been working in debt collection. He was responsible for collecting fees in part of the ledger. He had to work to deadlines and if possible obtain payment of fees without alienating the customer of the railways. At the time he thought he was doing a good job, and just did not “suffer fools gladly”, but now, looking back on it, he realised that sometimes he had rubbed people up the wrong way or overstepped the mark. If this happened it could stop payment of the outstanding fees and that could lead to the loss of a client.
11. Mr Manelski said that it was his impression that he began to over react to customers and to withdraw socially, as the years progressed. He said that three of his supervisors had spoken to him about his approach to clients. One had suggested that he should “think before I speak”, another had asked him to remember where he was and for whom he was working. The third, Mr Boctor, had told him that on occasions clients had contacted him to complain about the way they had been treated by Mr Manelski.
12. Mr Manelski said that he believed that the reason he was retrenched was that, because of the problems in his interaction with clients, he was the least useful of the 16 people working in his office. He now understood that those problems were due to his diagnosed and accepted PTSD.
13. Mr Manelski’s case was that the problems which were the reason for his being made redundant, were symptoms of and resulted from his PTSD. In support of that submission he relied on the evidence of Mr Boctor, who was Mr Manelski’s immediate supervisor at the time he was retrenched. Mr Boctor made a statement (A3) which reads as follows:
I Alex Boctor state that I was Mr Manelski's supervisor with the Public Transport Corporation in the accounts receivable department.
To the best of my of my recollection I spoke to Mr Manelski on a number of occasions between 1985 and early 1990's as we had some concerns of his behaviour towards clients, as he was inclined to [be] very short tempered.
Whilst this was sometime ago I can recall him taking time off work, which I believed was stress related.
Mr Manelski was retrenched by the PTC around 1993
14. Mr Boctor confirmed that statement. He said that Mr Manelski was sometimes short with customers who were persistently overdue. He explained that as a matter of commonsense, if the PTC had to retrench staff, management would choose those performing less well than others. He said he was not responsible for the decision as to who would be retrenched. He said that he was possibly a little surprised when he learnt that Mr Manelski was to be retrenched, because he had been with the Railways for 29 years, and because of Mr Manelski’s service in Vietnam. He thought the organisation might have been more lenient to Mr Manelski for those reasons, but he acknowledged that Mr Manelski did sometimes lose his temper reasonably quickly. He understood that the anger and stress Mr Manelski demonstrated, when dealing with some of the customers would have caused a problem with the new organisation. He explained that privatisation brought a gradual shift to be more accountable and he assumed, or expected, that Mr Manelski’s history of difficulty in dealing with some customers would have been the reason why he was selected to be made redundant.
15. When Mr Manelski started working for the College, he was working two days a week. But, from early 2000, his hours were reduced by the College to one day per week. He works that one day as two mornings a week.
16. Mr Manelski said that he would like to work more hours for the College and he did not describe any difficulty, from his point of view, when he was working two days a week. He explained that the reduction to one day a week had come about when the College ceased to be run by clergy and employed a lay Principal and a lay Business Manager. He said that from that time on, it was more efficiently managed and there was only enough work for one day per week. He explained that as there are only 500 parents with children at the College, that is as much time as you could expect. He added that sometimes when he tries to make arrangements for payment of outstanding fees, some parents “come on a bit heavy”, and he then asks the business manager to deal with them. He pointed out that the situation is not as stressful as it could be, because the College does not take parents to court, that is a matter for the Archbishop. Further, the College does not have a policy of requiring children to be removed if fees are not paid. On the other hand that approach does mean that he does not have any means of extracting fees from parents who are determined not to pay the fees.
17. The Tribunal received two short letters from Mr Freeman, Business Manager at the College. They were received as exhibits A4 and R7. Exhibit R7 is slightly longer and reads as follows:
In reply to the questions you posed in your letter dated 6 September 2002, I supply the following answers:
1.Mark is on a 0.200 Full Time Equivalent load or 7 hours 42 minutes per week. This time is usually covered on two half days (Tuesday and Thursday) each week. He receives 4 weeks annual leave.
2.The job does not require any more hours than what is allocated.
3.There would not be more hours required if Mr. Manelski wished and were available to work longer hours.
4.Mark has an excellent attendance record.
Should you have any further queries regarding this matter, please do not hesitate to contact me at the College.
18. Mr Manelski said that he continues to apply for full-time positions doing office work. He believes he could work in administration. He is computer literate and believes that if he was successful in obtaining a position in an office, or doing record maintenance he would be able to perform his duties satisfactorily. He was of the opinion that he would be able to work full-time in an office. When Mr De Marchi asked him whether that was a realistic or an optimistic assessment, he agreed that it was an optimistic assessment, but he said that he needs to maintain an optimistic view.
19. Mr Manelski said that when he has applied for jobs, up until recently, he quite often succeeded in obtaining interviews. But, he knew he did not communicate or project himself well in an interview. Quite often he could perceive that he had lost the interest of the person interviewing him, and then he knew that he would not be successful. He said that lately, although he continues to lodge applications, he has not been granted interviews.
20. Mr Manelski was asked in re-examination to explain his answer that he would be able to work full-time if he were successful in obtaining a position. He said that he is aware that he would have to be on his guard, and think things through before he made a comment about someone. He realised that he has to understand that while he is looking at things one way, others might see them another way. He also acknowledged that he may not be as confident as he used to be.
21. Mr De Marchi asked Mr Manelski how he would react to criticism or direction from supervisors. He said that if he felt the comment was justified, he would “react OK”, but there could be a problem if he thought the supervisor was wrong. He said “My sharp tongue might give the wrong answer”. Mr Manelski was referred to a comment in Dr Stone’s report (A1), to the effect that, if a bit of pressure is applied he goes to pieces. He said that is true, but he is hoping that if he got a new job he would be able to cope with the pressure.
22. Because s 23 of the Act is only relevant if s 24 does not apply to a veteran, the Tribunal must first consider the requirements of s 24. Section 24(1)(b) requires that a veteran must be “totally and permanently incapacitated, that is to say, the veteran’s incapacity from . . . war-caused disease . . . is of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week”.
23. The evidence is clear that, since Mr Manelski was made redundant by the PTC, he has worked more than eight hours per week. In fact, he was working two days a week, or between 15 and 16 hours per week, for the College until his hours were reduced. There is no evidence to suggest that his hours were reduced because of incapacity. The evidence is that once the administration of the College was taken over by Mr Freeman, as Business Manager, there was not sufficient work to require Mr Manelski’s attendance for more than one day a week. Mr Manelski explained that Mr Freeman is more efficient than the 76 year old priest who previously looked after the business management side of things at the College.
24. There is no evidence before the Tribunal that the reduction in Mr Manelski’s hours of work was because of any incapacity from his accepted PTSD or other accepted diseases. The only evidence is that the reduction in hours was because there was not sufficient work to require Mr Manelski to work more than one day or two half days per week. The Tribunal does not find that Mr Manelski is incapable of undertaking remunerative work for periods aggregating more than eight hours per week. We find that he is capable of undertaking such work for periods of, at least, 16 hours per week. We find that Mr Manelski is not entitled to the special rate of pension under s 24 of the Act.
25. We turn therefore to consider Mr Manelski’s entitlement to intermediate rate pension under s 23 of the Act. The first issue requiring consideration arises under s 23(1)(b) of the Act. It is whether Mr Manelski’s incapacity from war-caused disease is, “of itself alone, of such a nature as to render [him] incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently”.
26. There is evidence before the Tribunal that Mr Manelski could work full-time. That is what Mr Manelski himself said. It is also the view of Mr Manelski’s treating doctor, Dr Wilks, in a GARP assessment (R5). However both Dr Stone, the rehabilitation and occupational physician, called on behalf of Mr Manelski, and Dr Gidley, the psychiatrist, called on behalf of the respondent, expressed doubt as to whether Mr Manelski could work otherwise than on a part-time basis or intermittently.
27. Dr Wilks, in his GARP assessment (R4) answered a question as to how PTSD affects Mr Manelski’s capacity to work as follows:
4. Comment on how the condition affects his capacity to work:
(such as ability to concentrate on the task, ability to work with others, ability to take instructions from a supervisor and ability to interact appropriately with clients)
Able to work – able to interact with fellow workers.
28. Dr Wilks’ clinical notes (R2) contained a Work Ability Report he had completed for the Department of Veterans’ Affairs on 4 December 2000 (R2 pp26-31). At that time Dr Wilks wrote as to Mr Manelski’s mental state that he had “NAD” i.e. no abnormalities detected. In a list of diagnosed conditions, Dr Wilks set out only diabetes, and two other conditions which do not affect work capacity. Dr Wilks was asked a number of questions to which he replied as follows (R2 p30):
In your opinion, which medical conditions reduce the veteran’s ability to work and how? [Bold for questions]
His medical conditions are not restrictive (his impaired vision may preclude some jobs)
In view of the above, what type of work, if any, would the veteran be able to perform (eg Manual [heavy or light], professional, clerical, full time or part time etc)? Please provide details.
- light manual
- professional
- clerical
- full time
How many hours would the veteran be able to perform such work?
full time
Are there other factors which you consider prevent the veteran from obtaining or performing such work as mentioned above (ie. age, time out of workforce, location, etc)? Please provide details.
He is of an age where finding work is difficult.
29. There is however a significant problem in placing reliance on those opinions of Dr Wilks, in view of the fact that he made no reference to Mr Manelski having any psychiatric condition at all. As PTSD is an accepted war-caused disease, we find more assistance from the opinions of medical experts who have considered the effects of PTSD on Mr Manelski’s capacity for work.
30. Dr Gidley wrote in his report of 6 March 2002 (R6 p4).
Occupation – His work capacity is restricted by his irritability and his intolerance of others. His poor concentration makes it difficult for him to persist with complex tasks. He is currently working only part time and his motivation to look for more demanding work is minimal.
Under the heading, “OPINION”, Dr Gidley added:
4.His Diabetes and associated visual impairment impact on his capacity to work.
His attitude to finding work is also a problem, in view of his belief that he was made redundant from his job with the Railways through no fault of his own.
31. In evidence, Dr Gidley said that in his opinion Mr Manelski could only work full-time in a supportive environment with no external or internal pressures. Overall, he thought Mr Manelski would have difficulty working a 36 hour week. He said Mr Manelski would be suited to clerical work, bookkeeping or accountancy with “by and large cooperative clients and a supportive boss”. He said that he thought Mr Manelski’s job at the College met those criteria, but he recognised that it was only available for up to 8 hours a week. Dr Gidley said that he thought Mr Manelski could do his job at the College for 20-30 hours a week.
32. Dr Gidley said that if it is accepted that Mr Manelski’s retrenchment was due to his PTSD, that is relevant in considering what incapacity for work results from the PTSD. He said the PTSD is of some significance in Mr Manelski’s difficulty in finding further employment. He explained that his flat effect and apparent symptoms of depression may be an aspect of his personality or may be related to his PTSD. His presentation at interview would make it hard for him to obtain employment, as would his age.
33. Dr Stone, in his report of 28 March 2002, wrote as to PTSD (A1):
Table 4.4
Impairment Rating 6
Mr Manelski is only working two half days per week. While this is partly attributable to lack of availability of more work at the college he works at, it is also the case that he is unable to work in any pressured environment, and would find it quite difficult, if not impossible, to obtain other work.
34. In evidence Dr Stone said that Mr Manelski would need a supportive and secure work situation without pressure such as time limits. He would also need to be kept away from difficult customers or clients. He said that if Mr Manelski found himself in a job with pressures he might give it up, or otherwise he could be terminated. Dr Stone was asked to comment on Mr Manelski’s own evidence that he thought he could work full-time. He said that could be correct in a supportive environment but such employment is difficult to find in the current times. He also said that he thought Mr Manelski would be likely to have problems with supervisors, particularly if he did not agree with them.
35. Dr Stone said that the combination of PTSD and Mr Manelski’s current age of 56 would make it very difficult for him to find new work. He said he thought the PTSD alone would make a return to work very difficult. In regard to the issue of age, it is relevant that in the almost 10 years between 1993, when Mr Manelski was made redundant and October 2002 when the matter was heard, Mr Manelski, although he made many job applications, had only succeeded in finding one job of 16 hours per week, which was then reduced to 8 hours per week. Mr Manelski said that he does not disclose his PTSD in his job applications. In spite of that he has not been successful in obtaining any job interviews in recent years.
36. Dr Stone agreed with Dr Gidley that Mr Manelski could work for more than 20 hours a week in a supportive environment, but he said that sort of employment is not readily available. He said that Mr Manelski is well motivated for work. That is a somewhat different assessment to those of Dr Gidley and Dr Wilks.
37. Mr De Marchi submitted that we should find that Mr Manelski was not able to work more hours than those he currently works namely 7 hours and 42 minutes per week and thus, that he was entitled to special rate of pension. Mr Rudge submitted that we should find that Mr Manelski could work more than 20 hours a week in his current position, and that we should find he was not entitled to either the intermediate or the special rate of pension.
38. When the Tribunal invited Mr De Marchi and Mr Rudge to address it as to s 23(2) of the Act, Mr Rudge relied on the responses of Dr Wilk in the GARP assessment (R4) as showing that Mr Manelski was capable of working full-time and hence clearly more than 20 hours a week. Mr De Marchi referred to the evidence of Dr Stone. We were not addressed as to the meaning of “work of a particular kind”.. So far as we are aware that term has not been considered in any Tribunal decision.
39. The Act gives no guidance as to the meaning of the term “work of a particular kind”, as referred to in s 23(2) of the Act. Is it referring to work of a particular kind e.g. as to the nature of the work such as office work, or as to the conditions in which the work is done? We consider in this matter the reference must be to the sort of office work Mr Manelski is undertaking, namely office work in a supportive and non-pressured environment. Accepting the evidence of Dr Gidley and Dr Stone, we are satisfied that Mr Manelski could perform that work for 20-30 hours per week and perhaps even on a full-time basis, if it were available. We are not satisfied on the evidence that Mr Manelski could not work full-time in his current position. Thus we cannot find that the nature of Mr Manelski’s incapacity is such as to render him “incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently”, so as to satisfy s 23(1)(b) of the Act. We do find that he would have difficulty working full-time except in a supportive environment, such as that in which he presently works, but that is not the same as finding that he is incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently.
40. There would however be further difficulties for Mr Manelski, under s 24(1)(c) of the Act, even if we had found that he satisfied s 23(1)(b). Section 23(1)(c) requires that Mr Manelski be, by reason of his incapacity from his PTSD and other accepted conditions alone, prevented from continuing to undertake remunerative work that he was undertaking. Mr Rudge pointed to other factors such as the PTC decision to make some employees redundant, the change in government policy in favour of privatisation, the fact of the PTC taking over the Victorian Railways, as all contributing to Mr Manelski’s being prevented from continuing to undertake the remunerative work that he was undertaking. Other factors referred to by Mr Rudge as preventing Mr Manelski from finding alternative employment are his personality and age.
41. We found Mr Boctor’s evidence relevant to this issue. Mr Boctor pointed out that there were two good reasons why Mr Manelski could have expected not to be made redundant. One was his 29 years of service in the railways. The other was the fact that he was known to be a Vietnam veteran. Both those matters would have been reasons for the PTC to take a lenient approach to Mr Manelski’s difficulties in the work place. However, the PTC did not take a lenient approach. It took a commonsense and pragmatic approach and dispensed with the services of the employees who were not performing well. Mr Manelski was one of three or four people in his area who were made redundant. He believed, and Mr Boctor was inclined to agree, that the reason was because the symptoms of PTSD made Mr Manelski an unsatisfactory employee. We accept that analysis, but we must still acknowledge that the privatisation of the Railways and the PTC policy of cutting costs by making some employees redundant did contribute to Mr Manelski being prevented from continuing to undertake remunerative work. Were it not for the PTC policy in respect of redundancies, there is no evidence that Mr Manelski’s employment would have been terminated because of incapacity to perform to the required standard due to the symptoms of his PTSD. It is relevant that he was not the only employee made redundant at that time. Thus he would not have satisfied s 23(1)(c) even if s 23(1)(b) had been satisfied.
42. Our conclusions as to s 23(1)(b) and s 23(1)(c) mean that it is not necessary for us to consider s 23(1)(c) as to loss of earnings. Mr Manelski gave details of his loss of wages in paragraph 6 of his work statement (A2). There is no dispute about the fact that Mr Manelski has suffered a substantial loss of income as a result of being prevented from continuing to undertake the remunerative work he was undertaking with the Victorian Railways and the PTC.
43. We are not satisfied that Mr Manelski satisfies s 23(1)(b) or (c) of the Act. Accordingly we find he is not entitled to intermediate or special rate pension.
44. The decision under review will be affirmed.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of
Mrs Joan Dwyer, Senior Member
Mr C Ermert, Member and
Assoc. Professor J.H. Maynard, MemberSigned: Grace Carney
Personal AssistantDate of Hearing 28 October 2002
Date of Decision 13 March 2003
Solicitor for the Applicant Mr D De Marchi
Departmental Advocate Mr K Rudge
0
0
0