O'Donoghue and Repatriation Commission [2010] AATA 309 (29 April 2010)

Last Updated: 29 April 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 309

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/1097

VETERANS' APPEALS DIVISION		)
	Re		James O'Donoghue

Applicant

And

Repatriation Commission

Respondent

DECISION

Tribunal

Jill Toohey, Senior Member Dr John Campbell, Member

Date 29 April 2010

Place Sydney

Decision

The Tribunal sets aside the decision under review and substitutes the decision that Mr O’Donoghue is entitled to special rate pension with effect from 27 October 2007.

................[sgd]..............................
Senior Member

CATCHWORDS
VETERANS’ ENTITLEMENTS – special rate of pension – adjustment disorder – alcohol dependence or abuse – sleep apnoea – whether veteran incapable of remunerative work by reason of adjustment disorder alone – whether adjustment disorder sole reason veteran incapable of remunerative work – Tribunal satisfied that adjustment disorder meets requirements for special rate pension – decision under review set aside.

Veterans Entitlements Act 1986 – s.24, s.28

Cavell v Repatriation Commission (1988) 9 AAR 534

REASONS FOR DECISION

29 April 2010	Jill Toohey, Senior Member Dr John Campbell, Member
Background

1. Mr James O’Donoghue joined the Australian Navy in October 1971 when he was 15. He had operational service in Vietnam in November 1972, and from November 1990 to April 1991 in the Persian Gulf. He left the Navy in October 1998.
2. In 1997, Mr O’Donoghue was involved in an incident with another officer for which he was disciplined. Following this incident, he asked to see a psychologist who diagnosed adjustment disorder. He was discharged not long after. He is under the regular care of a psychiatrist.
3. Mr O’Donoghue receives a 90 per cent disability pension for accepted conditions of adjustment disorder, ligamentous strains of the lower back and left knee, and dislocation of the right shoulder. He seeks an increase to a special rate of pension on the ground that his adjustment disorder renders him incapable of undertaking remunerative work.

History of claims

4. The history of Mr O’Donoghue’s claims for pension is somewhat convoluted. For present purposes, the relevant history is that, on 14 July 1999, the Veterans Review Board (the Board) set aside a decision of the Repatriation Commission (the Commission) and determined that Mr O’Donoghue was entitled to a pension for incapacity arising from war-caused adjustment disorder. That decision is not under review here.
5. In March 2005, Mr O’Donoghue lodged a claim for “alcohol misuse and sleep apnoea” and sought an increase in his pension. In April 2005 he made a claim in relation to Post Traumatic Stress Disorder (PTSD). The claims were dealt with together by the Commission and the Board.
6. The Commission determined that the appropriate medical diagnoses for Mr O’Donoghue’s conditions were alcohol abuse and upper airways resistance syndrome but it was satisfied beyond reasonable doubt that neither was related to his service. In relation to PTSD, the Commission determined, in effect, that this had been dealt with, and accepted, as adjustment disorder.
7. In April 2007 the Board varied the diagnosis from alcohol abuse to alcohol dependence and affirmed the Commission’s decision in relation to alcohol dependence, PTSD and upper airways resistance syndrome. It was satisfied that Mr O’Donoghue qualified for 90 per cent general rate pension but was not satisfied he qualified for special rate pension.
8. Mr O’Donoghue gave oral evidence before the Tribunal. Otherwise, parties rely on medical reports and other documents filed with the Tribunal.

The issues

9. Parties have reached agreement on a number of matters which were in dispute when these proceedings commenced. As a result, the principal issues to be determined are:
   • (i) whether, as a result of his adjustment disorder alone, Mr O’Donoghue is incapable of working more than 8 hours per week;
   • (ii) if so, whether his adjustment disorder is the sole reason he is prevented from undertaking remunerative work.
     
10. No issue arises as to the diagnosis of adjustment disorder itself but an issue arises as to its relationship to Mr O’Donoghue’s alcohol consumption.
11. The Commission concedes “an element of alcohol misuse” but maintains that it is a discrete condition and not part of the adjustment disorder; further, that it is a factor in Mr O’Donoghue’s incapacity for work. Mr O’Donoghue says his history of alcohol consumption is not such as to amount to alcohol dependence and that his adjustment disorder is the sole reason he is unable to work.
12. Mr O’Donoghue does not pursue a claim in relation to upper airways resistance syndrome, or sleep apnoea, but the Commission contends it is a factor in his incapacity for work.

The legislation

13. To qualify for a special rate of pension, Mr O’Donoghue must meet the criteria in s 24(1) of the Veterans Entitlements Act 1986 (the Act) as it applies to him.
14. Section 24(1) requires that a veteran have made a claim for an increase in his pension, have not yet turned 65 years and have a degree of incapacity from war-caused injury or disease, or both, of at least 70%. None of these is in dispute. Additionally, a veteran must be:

(b) 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) 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.

15. Section 24 (2) provides that, for the purposes of s 24(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.

16. Section 28 provides that, in determining, for the purposes of s 24(1)(b), whether a veteran who is incapacitated from war-caused injury or disease, or both, is incapable of undertaking remunerative work, regard may be had to the following matters only:

(a) the vocational, trade and professional skills, qualifications and experience of the veteran;

(b) the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and

(c) the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).

The evidence

17. Mr O’Donoghue trained as a shipwright and engineer and rose to the rank of Chief Petty Officer (Engineer). According to Navy records, he generally performed well. However, he has had difficulty over the years forming and maintaining relationships. He is socially isolated and acknowledges he has difficulty managing his anger. The causes of his difficulties appear to lie in his upbringing as well as traumatic events during his operational service.
    
18. Over time, Mr O’Donoghue had increasing difficulty relating to others and managing his anger including at work. In May 1997, he was involved in an incident with another officer following which he went to the officer’s cabin and threw all his bedding and possessions overboard. He was fined and his leave stopped. He asked to see a psychologist who diagnosed adjustment disorder and, about 18 months later, he was voluntarily discharged.
19. Mr O’Donoghue has not been in paid civilian employment since being discharged. He entered the naval reserves and undertook several postings of six to eight weeks when called upon but says he found his depression getting worse and the work brought back memories of working in tanks on board ship.
20. From August 2006, Mr O’Donoghue worked on weekends for about 18 months as duty curator at the Navy Heritage Centre on Garden Island, for which he was paid, but he was not dealing well with the public and says anger management was the problem. He got into arguments with visitors to the centre and ended up leaving.
21. Around May 2007, Mr O’Donoghue spent about three months on reserve duty in Darwin but says he struggled “abysmally”. He found the heat difficult, he could not transport the machine he needed for his sleep apnoea, he forgot to take various medications with him, he had a run in with the commanding officer, and he ended up drinking. He had to return to his house in Newcastle when it was flooded but went back to Darwin briefly. He has not attended any reserve duties since 26 October 2007.
22. Throughout these periods, Mr O’Donoghue says his depression became worse; arguments with colleagues and the public were common; drink was often a problem when he felt “stressed out”, and he just could not fit in. He has undertaken several short-term training courses and has considered voluntary work but says he gets into arguments with others and “just can’t seem to fit into work scenes any more”.
23. On one occasion, Mr O’Donoghue started work for a cleaning company but left after three days. Some time later an opportunity arose to work unpaid in a friend’s butcher shop and learn about the business but this lasted only a few days partly, it seems, because the business was moving but also because his temperament was not suited to dealing with customers.
24. From about 1998 to 2005, Mr O’Donoghue was a referee for under-7s weekend football matches during the season, for which he was paid about $10 a game. He has applied for some jobs but received no reply and thinks he is unsuited for other positions, such as security work, because he would lose his temper and would not fit in.
25. Mr O’Donoghue has been under the care of a psychiatrist since leaving the Navy and has been admitted to hospital around ten times for periods of about three weeks, the last around late 2008. He is currently under the psychiatric care of Dr Murray who he sees fortnightly for medication and for help with his self-esteem and relationship issues and anger, and he has recently undergone an anger management programme over several weeks.
26. Mr O’Donoghue’s recollection of the dates and sequence of some events was occasionally poor but we have no reason to doubt his truthfulness as a witness. We accept his evidence.

Is Mr O’Donoghue totally and permanently incapacitated

27. Section 24(1)(b) requires that Mr O’Donoghue be totally and permanently incapacitated, meaning that his war-caused injury or 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.
28. The following medical reports are before the Tribunal.
29. Dr Robin Chase, occupational physician, reports that Mr O’Donoghue is unable to work full-time “because of his accepted disabilities alone and almost certainly the main factor is his psychological condition”; “on balance ... because of his psychiatric state he probably is not capable of working at all”; “if he did attempt rehabilitation or retraining the same pattern [of arguing with others] would ensue”; “the major issue that is preventing him from working in some capacity is his psychiatric state”: Report dated 12 June 2008.
30. Dr Anthony Hordern, psychiatrist, reports that Mr O’Donoghue has chronic severe adjustment disorder; he is “severely” to “very severely” disabled; it is unlikely that significant improvement will occur; his psychiatric disorders and disabilities have made him “an isolated, asocial, unemployable recluse”: Report dated 11 June 2008.
31. Dr Philippa Harvey-Sutton, occupational physician, states that Mr O’Donoghue has severe adjustment disorder and “on the balance of probabilities will never work again, based primarily on his Adjustment Disorder”. As to whether he can work for more than 8 hours each week, she says “he meets the criteria for the Full Special Rate of Pension”: Report dated 16 June 2008.
32. Dr John Roberts, psychiatrist, considers that Mr O’Donoghue suffers from psychosis rather than adjustment disorder or post-traumatic stress disorder but nevertheless believes that he is unfit for work “primarily because of his paranoid ideation” although other factors including his alcohol dependence would be factors: Report dated 7 July 2008.
33. A Work Ability Report prepared by the Department of Veterans Affairs on 4 May 2005 found that Mr O’Donoghue was not able to work more than 8 hours per week on account of Post-Traumatic Stress Disorder. Although that condition is not the subject of this application, the report is relevant insofar as it indicates that Mr O’Donoghue’s psychiatric condition itself prevented him from working for more than eight hours a week.
34. We are satisfied, on this evidence, that Mr O’Donoghue’s accepted condition of adjustment disorder of itself renders him totally and permanently incapacitated within the meaning of s 24(1)b).

Is Mr O’Donoghue’s adjustment disorder the sole reason he is incapacitated from work

35. Section 24(1)(c) requires that Mr O’Donoghue’s accepted disabilities alone prevent him from undertaking remunerative work.
36. We have to determine whether Mr O’Donoghue’s loss of remunerative work is attributable to his service-related incapacity and not to something else as well. That decision “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”: Cavell v Repatriation Commission (1988) 9 AAR 534 per Burchett J at 539.
37. The Commission contends that Mr O’Donoghue’s alcohol dependence and sleep apnoea are also reasons incapacitating, or preventing, him from engaging in remunerative work, meaning he fails to satisfy s 24(1)(c).

Submissions concerning alcohol use and adjustment disorder

38. The Commission submits that Mr O’Donoghue’s alcohol dependence is a separate condition from his adjustment disorder. Mr O’Donoghue submits there is no such condition or disorder present and that any misuse of alcohol is part of the adjustment disorder.
39. For the reasons set out below, we are not satisfied, on the evidence, that Mr O’Donoghue suffers from alcohol dependence or abuse.
40. If we are wrong about this, we would find the condition not to be war-caused for the same reasons found by the Board, being that it pre-dated the accepted disability of adjustment disorder and so failed to raise a reasonable hypothesis in accordance with the Statement of Principles for alcohol dependence or abuse.
41. The fact that Mr O’Donoghue’s misuse of alcohol pre-dates the onset of his adjustment disorder weighs in favour of finding that they are separate conditions. However, for the reasons set out below, even if he suffers from alcohol dependence or abuse, and whether or not it is war-caused, we are not satisfied on the evidence before us that it is a material factor in his incapacity to engage in remunerative work.

Alcohol use

42. Mr O’Donoghue is frank about his alcohol use and that it is often a problem when he becomes stressed. However, he gave evidence, which we accept, that he has never been referred for treatment for his drinking and, as far as he recalls, it has never been suggested to him.
43. Dr Graham Vickery, psychiatrist, reported on 2 December 1997 that he had assessed Mr O’Donoghue for nervous disorder. He recorded that Mr O’Donoghue said he consumed 60-80 mls of alcohol with binges of drinking almost every week which Mr O’Donoghue felt was “out of habit”. Dr Vickery concluded there was “some alcohol abuse which appeared to be behavioural and not related to any specific precipitant”.
44. Dr James Nicholls, psychiatrist, noted on 26 March 1998 that Mr O’Donoghue’s consumption of alcoholic beverages had increased as a result of his war service and included occasional binge drinking. “It was estimated that he would have been under the influence of alcohol at least 12 times per year”. Dr Nicholls concluded that the criteria were also met “for a diagnosis of habitual alcoholism secondary to the [PTSD] and Depressive Response.”
45. Dr Karin Reinhardt, psychiatrist, noted on Mr O’Donoghue’s discharge summary in February 1999 that he had PTSD and “occas. alcohol abuse”. On 16 August 2005, Dr Reinhardt reported that he had been seen regularly as an out-patient and his symptoms and functioning had gradually deteriorated; he has “co-morbid alcohol dependence, having used alcohol to alleviate his symptoms.” She concluded that, whatever the accepted diagnosis, Mr O’Donoghue suffers a severe, chronic war-caused psychiatric condition, the symptoms of which “alone are of such severity that he cannot work for more than 8 hours per week and is not suitable for retraining”.
46. Dr Anthony Hordern on 11 June 2008 referred to Mr O’Donoghue’s “chronic anxiety state with depression, irritability, panic attacks and, when it was available, overindulgence in alcohol all of which were products of his service”. He concludes that Mr O‘Donoghue has sought work since his discharge but has been prevented from working by his service-caused disabilities.
47. Dr John Roberts assessed Mr O’Donoghue in July 2008 at the Commission’s request. He diagnosed instead a paranoid illness, the cause of which was not clear. He noted Mr O’Donoghue was not seeking remunerative employment “primarily” because of his paranoid ideation. He considered that “other factors ... of a physical nature... and his non-accepted disability of alcohol dependence, would be factors that would need to be accepted in his capacity for work”.
48. Section 24(1)(c) does not require a formal diagnosis of a condition but it is relevant that none of the doctors has made a diagnosis in terms of the Statements of Principles concerning alcohol dependence or alcohol abuse. It is also relevant that there is no evidence that Mr O’Donoghue has ever been treated for alcohol dependence or abuse; he has not been hospitalised for alcohol intake or attended any outpatient treatment. There is no evidence that any psychiatrist has ever suggested he seek treatment for it.
49. Alcohol does not appear to have been a serious problem for Mr O’Donoghue while he was in the Navy. It appears to have been a factor in the incident in 1997 for which he was disciplined; he gave evidence that he had been drinking at the time, although he says he was not drunk. However, the evidence does not indicate any other incidents like this or that his capacity for work generally was impaired by his drinking.
50. A report from the Naval Psychology Section in May 1997 following the 1997 incident states that Mr O’Donoghue had “performed well in his job previously and over the past 25 years of service in the many and varied positions he has held”. Another report describes how his performance had fluctuated but concludes that he is “effective and reliable in divisional activities” (attached to psychology report).
51. In the absence of extended periods of work since his discharge, it is not easy to assess just what effect Mr O’Donoghue’s drinking might have on his capacity to undertake remunerative work. His drinking appears to have increased after he left the Navy (see Dr Nicholls report), and he described in oral evidence how he drank to excess while posted to Darwin. However, it does not appear to have been a material factor in his failure to keep any of the positions he had attempted since then and there is no medical or other evidence to say that it prevents, or contributes to preventing, him from working.
52. We have considered the indications in some of the reports that other factors are at play in Mr O’Donoghue’s incapacity for work. In particular, Dr Chase refers to Mr O’Donoghue’s psychiatric condition as the “major” issue preventing him from working. Dr Sutton-Harvey considers his incapacity for work is “primarily” based on his adjustment disorder. Neither is specific about other factors. Only Dr Roberts states specifically that “other factors including alcohol dependence” are relevant to Mr O’Donoghue’s capacity to engage in remunerative work.
53. We have to consider all of the evidence before us. On balance, although the evidence indicates clearly that Mr O’Donoghue’s drinking is a problem, it does not lead us to the finding made by the Commission on 31 October 2005 that his drinking is a significant factor in preventing him from working. The evidence does not in our view support a finding that his drinking is a factor in his incapacity for work such that he fails to meet s 24(1)(c).
54. We are satisfied that Mr O’Donoghue’s adjustment disorder alone prevents him from continuing to undertake remunerative work and that he is thereby suffering a loss of earnings that he would not be suffering if he were free of that incapacity.

Sleep apnoea

55. There is no issue that Mr O’Donoghue suffers from upper airways resistance syndrome, or sleep apnoea. He has had the condition since he was in the Navy. He uses a machine while he sleeps but it is not always easy to use; it tends to disturb his sleep when it slips off when he turns over. Medical evidence indicates that he gets good results when he uses it correctly (see: Glebe Medical Practice reports).
56. The Commission contends that Mr O’Donoghue’s sleep apnoea contributes to his incapacity for work. Mr O’Donoghue disputes that it is a factor of any significance.
57. Under cross-examination, Mr O’Donoghue agreed that he gets a good night’s sleep when he uses the machine effectively, and he wakes feeling more refreshed. When asked if it made him feel “ready for a day’s work”, he agreed. In fairness to him, however, we do not think this concession can be taken as more than a turn of phrase.
58. Under cross-examination Mr O’Donoghue agreed that his sleep apnoea would have contributed to his inability to get work. In re-examination, however, he explained this by saying that his ability to drive long distances is affected because he can fall asleep but his sleep aponea would not exclude him from all types of work.
59. There is no evidence that Mr O’Donoghue’s sleep apnoea has prevented him from working in the past in any occupation. He concedes it was more difficult for him in Darwin without his sleep machine but the evidence does not support the conclusion that it was a factor of any significance. The weight of the evidence is that his adjustment disorder gave rise to conflict and an inability to get on with others and was the reason he could not continue in the naval reserve or any other form of occupation.
60. The only medical evidence going directly to the effect of Mr O’Donoghue’s sleep apnoea on his capacity to work is from Dr Chase who reports that it results in “significant daytime sleepiness”, although this is partly due to his poor compliance with the machine. Dr Chase considers it might prevent him from taking a job that requires machinery operating or driving but it would not prevent most other occupations.
61. A fair reading of the reports that refer to Mr O’Donoghue’s psychiatric condition as the “primary” cause for his incapacity to work does not support a finding that other factors actually contribute to his incapacity. Doctors do not necessarily write reports with an eye to the language of the statute; no one refers to any other condition specifically as a factor; and those that do refer to his sleep apnoea (Dr Chase) specifically exclude it.
62. On the balance of the evidence, we are satisfied that Mr O’Donoghue’s sleep apnoea is not a material factor in his capacity for remunerative work.

Conclusion

63. We are satisfied, on the balance of probabilities, that Mr O’Donoghue satisfies s 24(1) of the Act and is entitled to a special rate pension.
64. It has not been possible to establish from Mr O’Donoghue’s service records the date on which he was last paid for work in the Active Reserve. It is submitted, and we accept, that his last day of remunerative work was 26 October 2007 being the date on which he last received wages from the Defence Force.
65. The Tribunal sets aside the decision under review and substitutes the decision that Mr O’Donoghue is entitled to special rate pension with effect from 27 October 2007.
    

I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Jill Toohey and Dr Campbell, Member.

Signed: ...........[sgd].................................................

Associate: Diana Weston

Date of Hearing 14 October 2009

Final submissions filed 9 April 2010

Date of Decision 29 April 2010

Solicitor for the Applicant Mr Andrew Kemp, Kemp & Co. Lawyers

Counsel for the Applicant Mr Mark Vincent

Solicitor for the Respondent Dr Stephen Thompson, Sparke Helmore