Roger Ryan and Repatriation Commission
[2014] AATA 370
•12 June 2014
[2014] AATA 370
Division VETERANS' APPEALS DIVISION File Number
2013/2227
Re
Roger Ryan
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Dr M Denovan, Member
Date 12 June 2014 Place Brisbane The Tribunal affirms the decision under review.
............................Sgd..........................................
Dr M Denovan, Member
CATCHWORDS
VETERANS’ AFFAIRS – Service pension – Special rate of pension – Whether applicant ceased remunerative work for reasons other than his war-caused incapacity – Decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 19, 24, 120
CASES
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 58 ALD 394
REASONS FOR DECISION
Dr M Denovan, Member
12 June 2014
Mr Roger Ryan is the applicant in these proceedings. He served in the Australian Army from 8 July 1967 to 30 December 1970. He had operational service in Vietnam from
17 September 1970 to 1 October 1970. Mr Ryan completed a degree in Business after leaving the Army. He has worked as an accountant since graduating.
Mr Ryan has a number of medical conditions that have been accepted as service caused: sensorineural hearing loss, tinnitus, posttraumatic stress disorder (“PTSD”) and depressive disorder. He also suffers from lumbar spondylosis, type two diabetes, gout and sleep apnoea, none of which have been accepted as related to his service.
On 7 June 2012 a delegate of the Repatriation Commission determined that disability pension was payable at 90% of the general rate. Mr Ryan believes he is entitled to pension at above the general rate, so he appealed the decision. The Veterans’ Review Board affirmed the decision not to pay above the general rate on 22 February 2013.
Mr Ryan applied to this Tribunal for review on 10 May 2013.
STATUTORY FRAMEWORK
The requirements which must be satisfied before the special rate of pension can be paid are set out in s 24 of the Veterans’ Entitlement Act 1986 (Cth) (“the Act”). The eligibility criteria are different for applicants who are under 65 years of age, and are dealt with under s 24(1) of the Act. For Mr Ryan, who was under 65 years of age when he lodged his claim, to be eligible for special rate he must, among other things:
·have a degree of incapacity due to a war-caused injury or disease, or both, of at least 70% (s 24(1)(a));
·be incapable of undertaking remunerative work for more than 8 hours per week (s 24(1)(b)); and
·
the war-caused injury or disease, or both, alone, prevented him from continuing to undertake remunerative work that he was undertaking, and because of this, he is suffering a loss of salary, wages or earnings that he would not be suffering if he were free of his service related incapacity
(s 24(1)(c)).
A veteran who ceased to engage in remunerative work for reasons other than a war-caused incapacity, or is unable to engage in remunerative work for some other reason, will not be regarded as suffering a loss of salary, wages or earnings (s 24(2) of the Act).
Section 19(5C) of the Act adds an additional qualification for assessment. An applicant must meet all of the above criteria at some time within the “assessment period”. The assessment period runs from the date the application is received and ends on the date of determination of this application by the Tribunal.
Section 24(2)(b) is an ameliorating provision that creates a beneficial easing of the impact of the word “alone” in s 24(1)(c). That provision applies where the veteran has not been engaged in remunerative work and, if he or she satisfies the Repatriation Commission of three matters, the veteran is deemed to have met the second criterion in
s 24(1)(c); namely, he or she is prevented solely by the effect of the war-caused injury from engaging in remunerative work. To meet the test, the Tribunal must be reasonably satisfied that he or she has been genuinely seeking to engage in remunerative work; that but for the effect of the war-caused injury, he or she would be continuing to seek to engage in remunerative work; and the effect of the war-caused injury is the “substantial cause” – and not the sole cause – of the veteran’s inability to obtain such work.
If a veteran who has applied for an increase in the rate of pension under s 15 cannot satisfy the requirements of s 24(1), he or she may still be eligible for a lesser increase under s 23 of the Act. That section operates in respect of a veteran who is not totally and permanently incapacitated within the meaning of s 24(1)(b), but whose incapacity has resulted in him or her being only able to undertake part time or intermittent remunerative work. The relevant subsections in s 23 are subss (1)(b)-(d), (2) and (3).
The parties agreed at the outset of the hearing that Mr Ryan satisfies s 24(1)(aa), (aab) and (a) of the Act.
I must decide whether Mr Ryan satisfies the requirements of s 24(1)(b) and (c), or
s 23(1)(b) and (c) of the Act.
CONSIDERATION
Does Mr Ryan satisfy s 24(1)(c) of the Act? That is, do his war-caused injuries or diseases alone prevent him from continuing to undertake remunerative work that he was undertaking, and because of this, he is suffering a loss of salary, wages or earnings that he would not be suffering if he were free of his service related incapacity?
It is usual for decision-makers to approach consideration of s 24(1)(c) of the Act having regard to the four questions propounded in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 2, as per Branson J (“Flentjar”).
1. What was the relevant work that Mr Ryan was undertaking within the meaning of s 24(1)(c) of the Act?
Mr Ryan worked as an employee accountant from the time he graduated until 1992.
He has been a self-employed accountant since 1992. He was in private practice with a partner from approximately 1992 to 1997. Mr Ryan told me the partnership relocated from Woodridge to Springwood in 1995.
When the partnership was dissolved in 1997, Mr Ryan returned to Woodridge and set up as a sole practitioner. He remained in that practice until 2007. Until about 2002 he operated the business as the sole accountant, with the assistance of his wife who was the office manager. From 2002 to 2007 Mr Ryan remained as principal accountant and employed professional staff.
Just how much work Mr Ryan performed from 2004 is a matter of contention. It is his claim that from this time he was having problems, which he attributes to his accepted condition of PTSD, and that he progressively reduced the hours he worked. He claims that by June 2007 he was working only 2 hours or less a week. The respondent does not accept this to be the case and contends that Mr Ryan continued to work in a full time capacity until 1 July 2007.
What is not in contention is that after Mr Ryan sold his business, with effect from
1 July 2007, he assumed the role of principle accountant in a much smaller business. The only other professional staff member of the business was Mr G, an accountant who previously worked for Mr Ryan at the Woodridge practice. Mrs Ryan remained in her role as practice manager. It is accepted by both parties that from 1 July 2007
Mr Ryan worked less than 8 hours a week in a part-time capacity as a self-employed accountant.
In 2010 Mr Ryan worked for 5 weeks full time as a movie extra. Most of that time was spent waiting around. I do not consider this remunerative work for the purpose of the Act.
In summary, the relevant work that Mr Ryan was undertaking prior to when he says the effects of PTSD impacted on his work, was as a self-employed full time principle of an accountancy practice. Mr Ryan claims he needed to give up work completely in 2014 due to the effects of PTSD. Prior to giving up work in 2014, Mr Ryan was working in a part time capacity of less than 8 hours a week as a self-employed accountant.
2. Is Mr Ryan, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
Mr Ryan told the Tribunal that he believes his PTSD started to impact his work practice in 2004. He recalls becoming disinterested in work, and he began keeping to himself. He said he employed staff to “take up the slack” and all were either professionally qualified or studying to become professionally qualified. As the only registered tax agent in the firm, he was responsible for supervising the work of the professional staff he employed. Before he started having problems he worked until 6-6.30pm each day and also on Saturdays in the busy periods. He estimates he worked 45 hours or more a week. From 2004 it became more difficult for him to take on harder projects and people were upsetting him. For example, his staff upset him if, in his opinion, their knowledge was not up to scratch. He said he was having problems with memory. He was passing his clients over to other staff. His job became one of supervision of quality assurance. He made sure the practice kept standards up to scratch. Sometimes he would go into the office for 30 minutes and then return home and go to bed. He claims there was a gradual decline in his attendance at work and that by 2006 he turned up to work on average
two hours a week. In December 2006 his wife was worried he was going to run the practice down, so she approached one of their staff, the most senior accountant, with a view to him buying the business.
According to psychiatrist Dr Hargreaves, Mr Ryan is now incapable of working 8 hours or more a week due to his service related conditions. Dr Hargreaves’ opinion is clearly based on the information provided by Mr and Mrs Ryan. When questioned during the hearing about Mr Ryan’s capacity to work, Dr Hargreaves said that the reason he opined Mr Ryan could not work for 8 or more hours a week was that he relied on the history given to him by Mr and Mrs Ryan, and since treating him he has not seen anything that would point to a change in his work capacity. Dr Hargreaves said he was told by
Mr Ryan that he put staff on to cover for him, and he had to pay other people to do the work that he should have done himself. Asked about the history given to him about
Mr Ryan’s reasons for ceasing work, Dr Hargreaves read from his notes and said the following: Mr Ryan reported being angry with staff and clients, frustrated over errors made by others and had a bad run in with a client who provoked him by trying to cheat the system, resulting in him shaking with rage. Mr Ryan evicted the client from his room. Dr Hargreaves said Mr Ryan would breach some code with the client, like punch somebody. In her written statement, Mrs Ryan referred to this incident as having occurred in 2005, which was some years after professional staff commenced working for Mr Ryan. Mr Ryan complained to Dr Hargreaves of concentration problems and poor memory retention. He said he was double checking his work excessively, spending longer to get the same output, relying more heavily on staff, losing confidence in his own abilities and not coping well in his role of supervising others.
As pointed out by the respondent, a person does not have to suffer from PTSD to experience the problems Mr Ryan described to this Tribunal and to Dr Hargreaves.
Dr Hargreaves did not specifically state that the problems Mr Ryan claimed to have led to him selling the business were related to his accepted condition of PTSD, however I expect if specifically asked, he would have said that he thought they were, and I continue my consideration on that basis.
Dr Hargreaves told the Tribunal that he interviewed Mr and Mrs Ryan on
6 September 2011, and Mrs Ryan again on 12 September 2011. After reading
Dr Hargreaves’ report and listening to his evidence, it was clear that he had limited knowledge about Mr Ryan’s work history and had formed some incorrect assumptions about other important matters. For example, he stated that Mr Ryan had not played a musical instrument for 30 years, but it was clear from the evidence of Mr Ryan this is not the case. Dr Hargreaves also stated that Mr Ryan had no contact with his family.
Mr Ryan gave evidence to the contrary at the hearing: he has lent his daughter a considerable amount of money to assist with her disabled child and claims to have a good relationship with both his daughter and son. These matters are not insignificant. Relationships with family and interest, or loss thereof, in pastimes are often matters that psychiatrists refer to when assessing the nature and severity of psychiatric conditions, including PTSD.
Mr Ryan accepted that the error in Dr Hargreaves’ report must be the result of information provided by either himself or his wife. As this information came out after
Dr Hargreaves gave evidence, it was not possible to ask him if these inaccuracies would change his opinion as to Mr Ryan’s capacity to work. I made my decision on the assumption that Dr Hargreaves would not change his opinion had he been provided accurate information in relation to these matters.
There is no contrary opinion expressed by any medical expert, and I therefore accept the opinion of Dr Hargreaves, which is that during the assessment period, Mr Ryan is incapable of continuing the work he was previously undertaking for 8 hours or more a week because of his PTSD.
Dr Hargreaves also implied that Mr Ryan is now incapable of continuing with his part time work, which he was performing for about 2 hours a week. I do not accept that to be the case as Mr Ryan has continued to work, albeit for reduced or no fees.
3.If the answer to question two is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing Mr Ryan from continuing to undertake that work?
As already stated, Mr Ryan claims that he was prevented from continuing with the full time remunerative work he was previously undertaking for many years prior to the sale of the business. He claims his capacity to work full time has been compromised as a result of his PTSD since 2004 and that he was only working part time when he sold the practice. He claims he will continue to work in a part time capacity until July 2014.
Mr Ryan has given a detailed account of how he became progressively incapable of working in a full time capacity from 2004 onwards. Mrs Ryan claims she noticed deterioration in Mr Ryan from 2003 onwards.
Mr Purcell, for the respondent, contends that Mr Ryan’s account of his work history cannot be correct. He asserts that Mr Ryan continued to work in a full time capacity until 2007, when he sold his business at the age of 60 for reasons other than his service related injury or disease. Mr Purcell contends that the account given by Mr and Mrs Ryan of how the business was operating between 2004 and 2007 defies common sense.
He contends that the financial records do not support Mr and Mrs Ryan’s claims.
The sale of the accountancy practice with effect on 1 July 2007 is a significant reason as to why Mr Ryan is not able to continue the remunerative work he was previously undertaking. The good will of the practice was sold to his senior accountant, so from the date of the sale he only had 20-30 of his own clients, and the work generated by those clients was not in itself sufficient to keep him employed full time.
It is not enough for an applicant to say that he reduced his work hours from full time to part time and then sold his business due to a medical condition. In order for the Tribunal to be reasonably satisfied that was the case, there must be some evidence which supports the contention. Each case is different, however the more contemporaneous the evidence, the more weight as a rule it can be given. The medical notes of Mr Ryan’s general practitioner are in evidence. There is no suggestion that Mr Ryan reported having problems of the nature he now contends to have been experiencing in the three years prior to selling his business.
Although Dr Hargreaves accepts Mr Ryan’s account of why he sold his business, it is clear from reading his report and listening to his evidence that Dr Hargreaves was not under the impression that Mr Ryan cut back his work hours before he sold his practice. In his report, Dr Hargreaves stated that Mr Ryan worked in a full time capacity until
June 2007 when he sold his business. This is very significant. Dr Hargreaves’ report was written on 16 April 2012 and relied on information provided my Mr and Mrs Ryan in September 2011. Had Mr Ryan experienced the problems at work he is now claiming, I would have expected those problems to have been discussed in some detail with
Dr Hargreaves.
Consistent with a conclusion that Mr Ryan worked in a full time capacity until
30 June 2007 is Mr Ryan’s own evidence to the respondent. In his application form for pension, which he signed in December 2011, in response to the question, “[i]f you currently work part time, advise the date that you consider your employment became part time on a regular basis”, Mr Ryan wrote “1 July 2007”. The next question is “how many hours did you work prior to that date?” Mr Ryan answered “45 approx”. I do not accept Mr Ryan’s explanation that he turned his mind to a time of the busy years prior to selling the business when he answered the question. In a further application to the respondent, in response to a question asking if he had lost any time from work during the past
12 months due to his disabilities, Mr Ryan replied “work part time only since June 2007 – ([less than] 2 hours/week)”. As recently as October 2012, Mr Ryan himself claimed he was working full time until July 2007. In a letter to the respondent signed by Mr Ryan on 26 October 2012 he stated that he ceased full time work on 30 June 2007.
Around the same time, Dr Ian Cheung also gained the impression that Mr Ryan worked full time until 2007, when he interviewed Mr Ryan in relation to his back problems.
He stated in his report dated 7 November 2011 that Mr Ryan worked full time until 2007 and is currently working 2 hours a week.
The Tribunal adjourned this matter to enable Mr Ryan to provide material requested by the respondent. This material included time sheets and tax returns that are now in evidence. That evidence does not support Mr Ryan’s claim that he was working part time from 2004 and only working 2 hours a week by 2007.
Mr Ryan’s practice turnover increased considerably each year. This increase in revenue continued throughout the years that he claims he was becoming unproductive. In response to questions about this apparent inconsistency, Mr Ryan provided a number of explanations that are all, in my opinion, incredulous. He claimed that a 14% growth in a business is to be expected, that the business “basically ran itself”, that his wife ran the business and that Mr K performed most of the professional work, along with other employees.
Although growth of 14% may be expected under normal circumstances, Mr Ryan claims his circumstances were far from normal. He claims to have lost confidence in his ability to work and to have difficulty dealing with both clients and staff who he was responsible for supervising. If Mr Ryan was experiencing the problems he claims, I would have expected at the very least to have seen the business income stabilise. Mr Ryan claims he passed over most of his clients to other staff, but also claims that none of those staff were fully qualified accountants, and it was necessary for him to supervise their work and the work of his wife. The time sheets and invoices provided for the years 2002-2007 show that a considerable amount of work was being performed by the practice, and I do not accept that Mr Ryan could have satisfactorily supervised the work of others in the small time which he claims he attended the practice from 2004 onwards. Further, I do not accept that a business generating over $300,000 per year and growing steadily in size and income each year could be “running itself”, or be run by a group of newly appointed staff, none of whom were as yet fully qualified in their profession.
The time sheets provided show that in the last financial year (2007) prior to Mr K taking over the practice, Mr Ryan averaged approximately 6 hours a week on jobs in progress. This is approximately the same number of hours worked by Mr Ryan on jobs in progress in 2003, when he claims to have been working 45 hours a week, and at a time when he had no staff to supervise.
Mr Ryan’s explanation was that the work recorded under his name on the time sheets was actually performed by other accountants. He said that it was his practice to include in his time sheet records of work he thought other staff performed but had forgotten to claim. Specifically, Mr Ryan claims Mr K often forgot to claim for work. Frankly I find this incredulous. On the first day of his evidence, prior to the time sheets being made available, Mr Ryan told me the time sheets would be an accurate way of assessing the work done by each professional staff member. Mr Ryan explained that the time sheets did not reflect the amount charged for a job, and that it was usually the case that more work was performed than was actually charged to the client. He said that when a job was completed, the staff would decide what to charge for the job, based on what work was performed, and how much the client could afford. That being the case, there would be no reason to record hours performed by Mr K on Mr Ryan’s time sheet. Further,
Mr K was described as an extremely talented and capable man, who now singlehandedly generates more than $400,000 a year, and I very much doubt he was forgetting to log his work in time sheets. I find that the time sheets are an accurate reflection of the amount of work in progress performed by Mr Ryan, and that he averaged approximately
6 hours a week in the 2007 financial year working on jobs in progress alone.
It was explained that time sheets were not kept for work that was completed in one sitting; time sheets were only used when a job was in progress. When a job was completed in one sitting, it was billed immediately, and there was no need for a time sheet. Mr and Mrs Ryan, and Mr G, all explained that the time sheets only represented a fraction of the work performed for a client. They insisted that other work, such as phone calls, was performed but was not invoiced. Given Mr Ryan claims to have been working 45 hours a week in 2003 when his time sheets for work in progress were about the same as they were in 2007, I conclude he was working about the same number of hours in the 2007 year as he was in the 2003 year. It is possible he was working even more hours, as in 2003 Mr Ryan did not employ any staff, and hence did not have to spend any time supervising and checking the work of others. In 2007 he was responsible for supervising four professional staff.
Mr Ryan told me he was despondent watching his business collapse around him, and
Mrs Ryan claimed the necessity to put on extra professional staff caused a considerable financial burden. The financials for the business do not support these claims. From 2004 until 2007 Mr Ryan’s accountancy business increased the business turnover each year. Each year Mr Ryan paid his wife approximately $50 000, and in total, up to approximately $100,000 per year was paid to other professional staff. The business turnover was well over $300 000 in the 2007 year. This means the total annual costs of all professional staff was only about $50,000. The additional costs related to putting on extra staff were compensated for by an increase in annual revenue of the business.
From 2005 to 2007 Mr Ryan continued to pay himself a wage of at least $90 000.
He also paid all the business expenses and his and his wife’s car expenses. If he was in fact working only 2 hours a week, as he claims, it is hard to imagine why he would want to sell the business which, according to his own evidence, basically ran itself.
It may have been a genuine concern of both Mr and Mrs Ryan that Mr K would set up business in competition. Mr G gave evidence that Mr K had left once before and “set up shop” by himself. According to Mr G, it may not be ethical, but had Mr K “set up shop” across the road, no one would have come and stopped him. It is not an unusual practice for professional firms to groom junior staff as potential buyers of business. I do not accept that the sale of the business to Mr K was in any way related to Mr Ryan’s service caused injury or disease. Rather, it sounds as though Mr K was an enterprising young accountant interested in owning his own business.
Although Mrs Ryan claims that by the time the business was sold most clients had little to do with Mr Ryan anymore and there were no farewells, had the majority of the clients already transferred their business to Mr K then I doubt he would have been prepared to pay $250 000 for the practice, $240 000 of which was for good will.
Mr Ryan’s car expenses, as detailed in the financial returns for the practice, are very high, and are certainly inconsistent with a man who was only working 2 hours a week and not attending any professional conferences, as Mr Ryan claims.
Mr Ryan was not forthright and at times evasive when answering questions. An example relates to the business he operated ‘from home’ from 1 July 2007 onwards. Although
Mr Ryan informed the Veterans’ Review Board that he would wind up his business by
30 June 2013, it is clear that he has continued to work since then. At the hearing of this matter, Mr Ryan told me he would definitely cease practicing from 1 July 2014, however when pushed on the matter he said it would operate as a hobby, and he would perform some work for a limited number of friends and family, but he would charge few, if any, of these clients.
In the matter of Forbes v Repatriation Commission (2000) 58 ALD 394, Nicholson J stated at 401:
The fact that a non war-caused condition is not alone causative of such preventative effect does not prevent it having that effect in combination with the war-caused condition. The possibility of combination is recognised in the third conceptual environment identified in the applicant’s case. Furthermore it is consistent with the application by a tribunal of a common sense approach “with an eye to reality”.
… it is possible that the war-caused condition will be by far and away the more dominant of the causes of the preventative effect where there is also present a non war-caused condition having such effect in combination. The result is that the presence of the latter will deny to a veteran qualification for the special rate of pension.
I do not accept Mr Ryan’s claim that prior to 2004 he intended to operate his business indefinitely. Mr Ryan was in a secure financial position: he owned his house outright and used some of the money he received from the sale of his practice to pay off the mortgage on an investment property he and his wife own. He has assets in a superannuation fund. Mr Ryan’s financial situation is not such that he would be expected to continue to work beyond the age of usual retirement.
Considering all of the evidence before me, and “with an eye to reality”, I conclude that Mr Ryan continued to work in a full time self-employed capacity until 2007 and was not prevented from continuing to undertake the remunerative work he was undertaking; that is full time self-employed accountancy work, until he sold his practice in 2007. I find he sold his practice for reasons not related to his PTSD. Professionals such as Mr Ryan sell their practices usually for a multitude of reasons. Mr Ryan was 60 years old when he sold the business. This is not an unusual age for a professional to either retire or semi-retire. Sixty years is a significant age, as Mr Ryan would have been able to access funds in his superannuation fund, a factor that often influences a decision as to the timing of selling a business. That Mr Ryan had a potential buyer amongst his staff would likely have also influenced his decision to sell. By 2007 Mr K was now a qualified accountant and ready and willing to buy Mr Ryan out.
Mr Ryan need not have ceased to undertake the remunerative work he was undertaking when he sold his business. Mr Ryan could have bought or established another business and built the new business up to an enterprise in which he was again self-employed in a full time capacity. Although Mrs Ryan claims that was in fact the intention, I do not believe that the reason Mr Ryan sold his business or failed to establish a new business had anything to do with his PTSD.
Mr Ryan did not claim to have aspirations of building another private practice that eventually provided full time self-employment. Mr Ryan claims the clients that remained with him after 1 July 2007 were mostly Mr G’s, and that he had 20-30 clients of his own made up of mostly friends and family. He claims to have done very little work, and told the Tribunal that most of the work was performed by either his wife or Mr G. The financial records before the Tribunal show that Mr Ryan had a number of business and audit clients, as well as individual clients. All of these clients were previously clients of either Mr G or from Mr Ryan’s former practice. Mr Ryan did not advertise and made no attempt to solicit new clients. I find that Mr Ryan did not continue as a full time principle of an accountancy practice because he sold his practice, for reasons other than war caused injury or disease, after which time he choose to work on a part time basis only, and made no attempt at establishing a full time workload again. There is no evidence which suggests Mr Ryan’s service caused injury or disease prevented him from re-establishing himself in full time self-employed work. I find that a combination of reasons, including age and lack of clients, led to Mr Ryan working on a part time basis only, after selling his business in July 2007.
Mr Ryan’s business that he has operated since July 2007 has declined and certainly does not bring in the same gross income as it did initially. There are a number of explanations for this, unrelated to Mr Ryan’s service caused injury or disease. Firstly, Mr Ryan claims the first financial year of his business from home had an inflated income, because he was owed money for a large number of jobs that had not been completed at the time he sold. Secondly, Mr G has motor neuron disease, and has been reducing his client base with a view to retire. Thirdly, it was Mr Ryan’s evidence that the decline is, in part, due to a number of clients leaving him because of death or a decline in their finances. Finally,
Mr Ryan will be 67 years old as at 1 July 2014; no doubt his age plays a role in his decision to wind down the business or to cease trading altogether. I find that he has reduced the number of hours he works on a part time basis since 2007, for many reasons, none of which are related to service-caused injury or disease.
Mr Ryan claims to be closing his business as of 1 July 2014. He said he may do tax returns for friends or family, but will be waiving all if not most of his future fees. Completing work on behalf of family and friends, whether or not he charges for it, demonstrates a capacity to continue working. I am not convinced Mr Ryan actually intends to stop working; however it is of no relevance as his reasons for doing so are not related to his accepted service conditions.
The answer the third Flentjar question is in the negative. Mr Ryan’s war-caused injury or war-caused disease, or both, is not the only factor or factors preventing him from continuing to undertake the work he was previously engaged in, as both a full time accountant prior to 1 July 2007, and as a part time accountant after that date.
4.If the answers to questions 2 and 3 are, in each case, yes, is Mr Ryan, by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?
A veteran cannot rely on a loss of income if the effect of the war-caused injury or disease did not cause him or her to cease engaging in the formerly remunerative work. For the reasons given above I am reasonably satisfied that Mr Ryan ceased both his full time and part time employment as a self-employed accountant for reasons other than his PTSD. He fails the fourth Flentjar question also.
Decision
Mr Ryan does not satisfy s 24(1)(b) and (c) or s23(1)(b) and (c). Nor does he satisfy the ameliorating provisions in section 24(2)(b). He therefore does not qualify for the above general rate of pension. The decision under review is affirmed.
I certify that the preceding 54 (fifty –four) paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member ...........................Sgd..........................................
Associate
Dated 12 June 2014
Date of hearing 8 April 2014 Counsel for the Applicant Mr V. Van Grinsven P.C.M Solicitors for the Applicant Cockburn Legal Advocate for the Respondent Gerald Purcell, Department of Veterans' Affairs
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