Coghill and Repatriation Commission (Veterans' entitlements)

[2018] AATA 2705

Coghill and Repatriation Commission (Veterans' entitlements) [2018] AATA 2705 (7 August 2018)

Division:                  VETERANS' APPEALS DIVISION

File Number(s):      2016/2907

Re:Robert Coghill

APPLICANT

AndRepatriation Commission

RESPONDENT

Decision

Tribunal:Mrs J C Kelly, Senior Member

Date:7 August 2018

Place:Sydney

The Tribunal affirms the decision under review.

.........................[sgd]...............................................

Mrs J C Kelly, Senior Member

CATCHWORDS

Whether Applicant eligible for Intermediate Rate of Pension or Special Rate of Pension –test for eligibility set out in s 23(1)(b) or s 24(1)(b) of the Veterans’ Entitlements Act 1986 – relevant standard of proof reasonable satisfaction – Applicant’s army service considered eligible and operational service under the Act - Applicant’s accepted conditions and medical opinion considered – decision affirmed

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) – ss 19, 23, 24, 120, 176, 177

CASES

Chambers v Repatriation Commission (1995) 129 ALR 219

Repatriation Commission v Buckingham [1996] FCA 37
Smith v Repatriation Commission [2014] FCAFC 53

SECONDARY MATERIALS

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

Introduction

1. Mr Coghill is seeking the Special Rate of Pension under s 24 of the Veterans’ Entitlements Act 1986 (the Act).  He applied unsuccessfully to the Repatriation Commission on 12 July 2013.  The Veterans’ Review Board (VRB) reviewed and affirmed that decision.  It held two hearings, one on 3 November 2014 and a second on 1 September 2015.

2. Mr Coghill has been receiving 100% of the general rate of disability pension since 28 March 2010. The Tribunal will consider whether Mr Coghill is eligible for both the Intermediate Rate of pension (s 23 of the Act) and Special Rate.   If he is successful in this case, the parties agreed that the earliest possible date of effect is 2 June 2016 because he applied to the Tribunal more than three months after the VRB’s decision.[1]

   [1] ss 176(4)(a) and s 177(2)(b)(ii)  of the Act.

3. The assessment period commenced on 12 July 2013 and ends with the decision of this Tribunal.[2]  Provided that a pension was payable at the intermediate or special rate at some time during that period, it will be payable, and if both are applicable, according to “whichever is most recently applicable”.[3]

   [2] s 19(9) of the Act.

   [3] Smith v Repatriation Commission [2014] FCAFC 53 per Buchanan J at [40].

4. The relevant standard of proof is reasonable satisfaction.[4] It is accepted that Mr Coghill satisfies the first three criteria under both s 23 and s 24 of the Act which are identical:

   (i)He has made an application for an increase in pension;

   (ii)He was born on 18 October 1948 had not turned 65 when the claim or application was made on 12 July 2013;

   (iii)His degree of incapacity from war-caused injury or war-caused disease, or both, has been determined to be at least 70%.

   [4] s 120(4) of the Act.

5. Mr Coghill served in the Australian Army.  His service from 18 March 1970 to 12 November 1970 is considered eligible and operational service under the Act. 

6. The following conditions have been accepted under the Act as related to Mr Coghill’s eligible and operational defence:

• Tension headaches

• Thoracolumbar spondylosis

• Post-Traumatic Stress Disorder (10 September 1999) (PTSD)

• Sensorial hearing loss

• Solar keratosis

• Osteoarthritis of the left knee

• Alcohol Abuse (28 March 2010)

• Tinnitus

• Non-melanotic malignant neoplasm of the skin 

1. Mr Coghill was diagnosed with bladder cancer in May 2016. He underwent major surgery on 5 August 2016 for the removal of his bladder and prostate and two months of chemotherapy. He has a urostomy bag. After the chemotherapy he was found to be in atrial flutter. He had two episodes of septicaemia in October and November 2016.  He was discharged from hospital on 15 November 2016. Bladder cancer is not an accepted condition.

The issues

1. The issues the Tribunal has to determine are whether Mr Coghill satisfies the tests for special and/or intermediate rate of pension.

The qualification criteria for incapacity for work

1. The qualification criteria for both the intermediate and special rates of pension require, first, that incapacity from war-caused injury or war-caused disease or both, alone, prevents Mr Coghill from undertaking specified hours of remunerative work, and secondly, the veteran’s war-caused incapacity, alone, prevents the veteran from continuing to undertake remunerative work the veteran was undertaking and is thereby suffering a loss of salary of wages or earnings that he would not be suffering if he were free of the incapacity.

2. To qualify for the intermediate rate of pension requires that the incapacity from war-caused injury or war-caused disease or both, alone renders Mr Coghill incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently (s 23(1)(b)). That requirement is not fulfilled 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) (s 23(2)(a)); or 

   where that paragraph is inapplicable to the work the veteran is undertaking or capable of undertaking, the veteran is undertaking or capable of undertaking that work for 20 or more hours per week (s 23(2)(b)). 

3. Qualification for the special rate of pension requires that a veteran is totally and permanently incapacitated from war-caused injury or war-caused disease, or both, which alone renders the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week (s 24(1)(b)). 

4. Section 28 of the Act requires that in determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war‑caused injury or war‑caused disease, or both, is incapable of undertaking remunerative work, the Tribunal shall have regard 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).

5. For the reasons that follow, the Tribunal has concluded that Mr Coghill does not satisfy either s 23(1)(b) or s 24(1)(b) of the Act. It is therefore unnecessary to set out provisions of the Act that apply if either of those provisions is satisfied.

Why did Mr Coghill cease work in 2013?

1. Counsel for Mr Coghill submitted that the only employment the Tribunal needed to consider was Mr Coghill’s employment with Sustainable Transportation Systems Pty Ltd (STS).  He argued that Mr Coghill satisfied the qualification criteria when he ceased work with STS in about May 2013 because he was unable to cope because of his accepted conditions of PTSD and Alcohol Abuse Disorder.

2. The Tribunal accepts that the employment with STS is the last Mr Coghill has had. 

3. It is relevant to consider Mr Coghill’s employment history prior to STS because his various accounts were inconsistent, which has led the Tribunal to find that his evidence was unreliable.

4. In his 16 June 2015 Employment History, Mr Coghill said the following. He had six jobs between 2000 and May 2006, the longest lasting about one year.  His reasons for leaving those jobs were conflict with someone, employment terminated for not making sales quota, and inability to cope with the work. He was doing “personal aquarobics exercise” twice a day to cope with PTSD and his chronic back condition and physiotherapy two to three times a week and daily home exercises. Those treatment programs had been difficult to do because he was reluctant to disclose medical information to work colleagues and employers and consequently was stressed at work due to back pain or symptoms of anxiety or depression.  He therefore “often” sought short term work with more flexible hours, but such employment was a stressor in terms of his self-esteem. 

5. The Respondent produced evidence about Mr Coghill’s success as the company secretary and director of Champion Resources Pty Limited from 1 November 2003 to at least 30 June 2005.  The Annual Financial Report for 2009 of Aries Mining Limited (Aries) lists Mr Coghill as a director from 4 June 2007 and states:

   Robert was a Director of the Equitlink group of companies and was a seed shareholder of the group.  He had key responsibility for capital raising for Australian and international equity fund, fixed interest and superannuation funds.  Robert was a director and fund raiser for Western Reefs Limited and played a key role in fundraising for Golder Deeps Ltd. Both those ASX listed companies were exploring for gold in the Kalgoorlie region.  Robert was Executive Chairman of Champion Resources Limited, a New South Wales gold and base metals exploration company which was sold to a Japanese Fund Manager.

6. Aries’ “principal activity” was “the establishment of mining tenemants” (sic).  It was “in the process of seeking and establishing mining tenemants (sic) for future exploration”.

7. Mr Coghill did not refer to his work with Champion Resources Pty Limited until it was raised in cross-examination.  The Tribunal does not accept that he had simply forgotten or overlooked this obviously successful venture. Such success was not consistent with the impression Mr Coghill sought to convey to the Tribunal that he had short-term jobs and had difficulty working in that period.

8. Mr Coghill worked with Indo-Chine Resources Ltd as chairman, company secretary, and chief financial officer for an initial term of five years commencing on 1 May 2008.  On 21 June 2010 his employment was terminated for “serious misconduct”.   IRL’s business included exploring for gold and base metals in Cambodia. It held a number of mining licences. 

9. In February 2014 Mr Coghill commenced legal proceedings against IRL in the Federal Court of Australia.  IRL defended the proceedings until 29 July 2015 when the solicitors filed a notice of ceasing to Act.  There was no appearance for IRL at the hearing on 14 September 2015.

10. The Federal Court published two decisions on 17 September 2015 and 23 October 2015.  Judgment was entered in Mr Coghill’s favour in the sum of USD 3,162,563 and AUD 7,673. Mr Coghill’s evidence was that IRL was wound up upon his application and as of the date of the Tribunal hearing, the liquidator had not located any assets.

11. When asked during the Tribunal hearing whether he did not pursue further employment because of the court case he commenced against IRL at the beginning of 2014, Mr Coghill said the following. No, he was not sure about anything, and he was attempting to do many things at that time.  He had to do everything to prepare the case, including making copies of all documents.  His lawyers did a certain amount of work.

12. In December 2010 Mr Coghill worked for Voice 1 Direct Pty Ltd which was run by a “friend and associate”.  Mr Coghill claimed that he left because he received no payment.  He told the Tribunal that he spoke to someone about being an officer of a company but nothing eventuated. Dr Altman stated in his report of 29 December 2010 that Mr Coghill was working approximately twenty hours per week “for a telecommunications company”, which the Tribunal finds was Voice 1 Direct Pty Ltd.

13. In his 16 June 2015 Employment History, Mr Coghill claimed that he did not work in 2011 because of depression.   He told the Tribunal that he went to the Philippines three times in 2011 with a colleague from Bangkok, looking at agricultural projects including large scale fruit farming and oil plantations on degraded land. He also said that he was unemployed due to depression, he liked going to Asia and it was of benefit to him to overcome depression due to PTSD, and his colleague in Bangkok knew that and tried to help him. The Tribunal infers that he was helping his colleague raise funds for the projects in the Philippines.

14. Mr Coghill told Dr Chase a different account. After IRL dismissed him, he took a two-year break and went to Thailand where a wealthy friend was living and had set up an organisation called “Rewarding Earth” (RE).  Mr Coghill put some money into RE and helped set up the business but was not paid.  RE was a charity to protect South American rainforest.  Mr Coghill commuted between Australia and Thailand but RE raised insufficient capital and its activities are on hold. Concurrently, he was working for Australian Agricultural Technologies Ltd (AAT Ltd) for 15 months as company secretary and accountant.  He was not paid a retainer but the major shareholder did not “review” the consulting agreement with him.

15. Mr Coghill claimed in his 16 June 2015 Employment History that he worked for AAT Ltd from 18 February 2012 to 31 March 2013 as the Chief Financial Officer and Company Secretary.  He claimed that he left because his agreement was not renewed after constant conflict with the largest shareholder.  He told the VRB on 3 November 2014 that he had worked for that company from 15 February 2012 to 28 April 2013 and that there was some overlap with his next job with STS. 

16. He told the Tribunal the following about AAT Ltd.  The company was in a mess.  He was trying to put documents together to raise money.  He prepared forecasts and reported to the Board. The company raised quite a bit of money but failed after he left because of mismanagement.

17. Mr Coghill’s evidence about the period he worked for STS was inconsistent. However it was no longer than about three months, from March to June 2013.  Mr Coghill’s evidence was that his job was to get the accounts for an Australian company in order for an audit. The business had a research and development operation in Minsk, involving Russian engineers and technology.  The principals of the business wanted to list a UK company on a London exchange.  It did not need the Australian company for its business but had established it for the purpose of getting a 457 visa for an individual.

18. In his application for increase in disability pension, Mr Coghill stated that he ceased work on 31 May 2013 because he was unable to cope because of ill-health.

19. On 3 November 2014, Mr Coghill told the VRB the following.  He was not coping very well with the lack of continuity.  “They” went overseas to Russia and he never heard from them again for months. He did not have a key to the office, they just sort of disappeared and he did what he could but was having trouble doing more work so he never chased it.  Later, he had a key, got the mail for them and then they got the mail and he never heard from them again.  “They’re in Russia somewhere”.  He also said that he did not think his work was ever completed. When asked if he would have continued to do the work if there had been more work, Mr Coghill said:  “Probably not, but it was very disjointed, the whole thing”.  He also said that he was not coping with the work.

20. The Current & Historical Company Extract shows that STS had been registered on 14 November 2011 and as of 5 December 2017 STS was deregistered.

21. In his 3 November 2017 statement, Mr Coghill claimed that he worked 8 to 20 hours per week for both AAT Ltd and STS.  He had not made that claim in his Employment History of 16 June 2015.  

22. He claimed the following in his 3 November 2017 statement.  He performed that work with difficulty as he was “always anxious” and tried many different strategies to try and cope, including meditation and mindfulness, and even alcohol.  He stopped going to the office of STS because he could not cope with the accounting work because of his PTSD symptoms and STS continued without his service. Mr Coghill described a couple of unsuccessful attempts he made to find work after his employment with STS.  He stated that he was “not now able to work due to my cancer treatment”.

23. Mr Coghill told the Tribunal that he had sought employment through contacts after leaving STS.  When asked by his counsel if there were any other reasons he was not working, Mr Coghill said that anxiety and depression prevented him from working.  He told the VRB in 2014 that he wished to continue working at least in a part-time capacity “because it makes him feel useful”. 

24. When asked during the Tribunal hearing about the evidence he had given to the VRB about his STS work, Mr Coghill said that it was incorrect and he was confused and under stress. He emphasised that the people who ran the business travelled back and forth to Minsk constantly and he told them that he was not coping.

25. Mr Coghill told Dr Rosenthal:

    After his employer disappeared from STS … he looked for work around May 2013 but has not been able to secure any since that time

26. The Tribunal does not accept that Mr Coghill was confused and unprepared when he appeared at the VRB hearing on 3 November 2014.  The transcript of that hearing does not support those claims. Mr Coghill’s counsel commented at the end of the Tribunal hearing that despite suffering from his accepted conditions and being unable to work according to Drs Dinnen and Smith, he has a remarkably good recollection of dates and gave coherent evidence. The Tribunal found Mr Coghill very clear-thinking and composed when giving his evidence. That is consistent with the impression gained from reading both VRB transcripts.

27. The Tribunal finds that Mr Coghill stopped working for STS because he was not given the assistance and co-operation necessary for him to do the job he had been contracted to do.  It finds that he stopped working when the people running the business went overseas and did not communicate with him. The Tribunal does not accept that he stopped working for STS because his accepted conditions prevented him from doing the work.

28. The Tribunal gives no weight to Dr Altman’s statement in his 19 August 2013 report that Mr Coghill’s explanation for ceasing work was he could not cope because of his anxiety and inability to concentrate, because the doctor was relying on what Mr Coghill told him, which the Tribunal considers to be unreliable, and the report was prepared after Mr Coghill had applied for the increase in pension and in support of the application.

29. The Tribunal gives no weight to the statements of other doctors as to why Mr Coghill ceased work or about his difficulties at work because they all relied on what he told them, which the Tribunal does not accept is reliable.

30. The Department of Veterans’ Affairs (DVA) sent a copy of a form to STS at its Sydney business address with a letter dated 18 December 2013.  The form dated 4 February 2014 provided no information in answer to the question about the period of Mr Coghill’s employment. His “trade or profession” was described as “Accountant/Bookkeeper”. The reason for termination of employment is stated to be “Ill Health unable to concentrate & cope with the workload”.  Answers to “Time Lost” and “Nature of illness/injury” had been completed in different writing:  “Maximum of only being able to work 5-8 hrs a week” and nature of illness injury was “Lack of concentration”.  Two signatures appear on the form.  Mr Coghill said the signatures were those of two directors of STS.  The signatures were illegible to the Tribunal.  In the box for “Employers’ Stamp”, is written “2 directors signed (NO SEAL)”.  

31. Mr Coghill told the Tribunal that he was able to contact a director of STS in London who filled out the form. 

32. The form was provided for the purpose of Mr Coghill’s application but does not identify the employer or the period of employment, both of which were clearly required to be provided. The source of the information provided is not apparent.  The Tribunal gives the information in the form no weight.

What is the remunerative work that a person with Mr Coghill’s skills, qualifications and experience might reasonably undertake?[5]

[5] s 24(1)(b) and 23(1)(b) of the Act; Chambers v Repatriation Commission (1995) 129 ALR 219; Repatriation Commission v Buckingham [1996] FCA 37.

1. The Tribunal finds that Mr Coghill is a retired certified practising accountant and associate of CPA.  He was also a Fellow of the Chartered Secretaries Australia (FCIS) and a Fellow of the Taxation Institute of Australia. He holds a Bachelor of Business (Accounting) and a Master of Commerce.

2. The Tribunal finds that Mr Coghill was an accountant, a company secretary, and financial adviser who specialised in raising venture capital and advising listed and unlisted companies, for over 30 years.   

3. The Tribunal finds that the remunerative work that a person with Mr Coghill’s skills, qualifications and experience might reasonably undertake are accountant, financial adviser to listed and unlisted companies, venture capital raiser, manager, work in financial services, or in any sort of clerical or administrative field.

The medical evidence

1. Dr Taylor treated Mr Coghill from 1998 to 2008. He made the following comments in relation to “Occupation” in the Emotional & Behavioural Worksheet he completed on 14 May 2007:

   Mr Coghill is a very driven man. He works very hard in various pursuits – financial advisor, raising venture capital, renovating properties and generally “living on his wits”. This (illegible) functions as long as he is fit enough to continues his rigorous exercise regime. When he abuses alcohol his symptoms worsen. I have grave reservations for his ability to continue to function work-wise in the longer term.

2. Dr Altman, Psychiatrist, has treated Mr Coghill since 2008. In his report to DVA dated 29 December 2010, Dr Altman wrote that Mr Coghill was “experiencing major difficulties at work” at a telecommunications company where he was working 20 hours per week.  He attributed Mr Coghill’s PTSD and Alcohol Abuse to his Vietnam service.  He did not refer to Mr Coghill losing his job with IRL in June 2010.

3. Dr Altman provided a report dated 19 August 2013 in support of the application for the increase in rate of pension.  Dr Altman’s opinion was that Mr Coghill was unable to work eight or more hours per week as a result of his PTSD and associated Alcohol Abuse alone and should be placed on the “T&PI” Disability Pension.  He reported Mr Coghill’s explanation for ceasing work was he could not cope because of his anxiety and inability to concentrate.

4. Dr Altman provided a report dated 21 January 2015 which set out the dates on which Mr Coghill had consulted him from 28 July 2008 until 21 January 2015.  In summary, Mr Coghill consulted Dr Altman: 

   ·   Three times  in 2008;

   ·   Nine times in 2009;

   ·   17 times in 2010;

   ·   Eight times in 2011;

   ·   Three times in 2012;

   ·   Five times in 2013;

   ·   Eight times in 2014;

   ·   Once in 2015.

5. The Tribunal finds that Mr Coghill’s mental health was adversely affected in 2010 by his employment and sacking from IRL.  That conclusion is based on the number of consultations Mr Coghill had with Dr Altman in 2010, and on Mr Coghill’s account to the Tribunal of the difficulties he encountered while working there, which included a murder threat, dealing with a bikie, and exposure to Tuberculosis, Hepatitis B and C, and corruption, in Cambodia, as well as the circumstances of his sacking.  It has also taken into account Mr Coghill’s account to Dr Dinnen.

6. That Dr Altman did not mention Mr Coghill’s employment difficulties at IRL in his 2010 report leads the Tribunal to place no reliance on his opinion.  It does not accept that he, the treating psychiatrist, was unaware of those circumstances.

7. Dr Dinnen interviewed both Mr Coghill and his wife on 10 October 2016.  He diagnosed Post traumatic stress disorder and Alcohol use disorder in remission, with clinical onset at the time Mr Coghill served in Vietnam.  Dr Dinnen’s opinion was that those conditions affected Mr Coghill’s ability to perform remunerative work.  Relying on Mr Coghill’s account at interview, Dr Dinnen expressed the opinions that Mr Coghill “would appear to be unable to work as much as 8 hours per week” and those conditions affected his work capacity at the time he ceased his last remunerative role.   Mr Coghill had told Dr Dinnen that he was working in 2013.

8. Dr Dinnen wrote:

   The development of bladder cancer with major surgery is a complicating factor and I believe is now a significant contributor to his inability to work.

9. Mr Coghill told Dr Dinnen that he had been “kicked out” of IRL and how his symptoms had affected him at that time.  He did not tell Dr Dinnen about the Federal Court proceedings. He told Dr Dinnen that he had not previously had any problems at work.

10. During oral evidence, Dr Dinnen was asked about Dr Smith’s diagnosis of Major Depressive Disorder comorbid with PTSD.  Dr Dinnen said he would not diagnose a separate condition because all the features Dr Smith referred to were included in the DSM 5 criteria for PTSD.[6] He had no argument with Dr Smith’s opinion that Mr Coghill had no capacity to work.

    [6] Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association.

11. Dr Rosenthal, Occupational Physician, saw Mr Coghill, accompanied by his wife, on 24 October 2016. His report is dated 14 November 2016.  He recorded the following history. Mr Coghill believed that he had been unfairly dismissed from his full-time job with IRL, then tried to do some part-time work “but he could not deal with the pressure”. Between 2010 and 2012 he worked for AAT Ltd for 15 months up to 12 to 15 hours per week  and then at STS for 10-12 hours per week:

    After his employer disappeared from STS … he looked for work around May 2013 but has not been able to secure any since that time.  

12. Dr Rosenthal recorded that Mr Coghill:

    … believes he had symptoms of his Post-traumatic stress disorder at the time he was working in his last casual job.

    … had trouble remembering a lot of the events and his wife was required to assist him with recall of a lot of information.

13. In Dr Rosenthal’s opinion, Mr Coghill’s accepted conditions impacted on his ability to perform remunerative work, and his psychiatric condition precluded him from working more than eight hours per week.  He stated that he relied on Dr Dinnen’s report.

14. He relied on Mr Coghill’s account that the psychiatric condition was present when he ceased his last remunerative role and reported that:

    Clearly he has poor concentration and reduction in cognitive abilities, this had a significant impact on him continuing his work. 

15. Dr Rosenthal identified the work to be as an accountant doing office based work.  He also expressed the opinions about Mr Coghill:

    None of his non-accepted conditions are impacting on his ability to work in his normal position as an accountant.

    …

    He basically told me that he did make enquiries to find work in May 2013 after his last employer had disappeared, however there is no documentary evidence that this happened.  Accepting the claimant is being truthful, then it would appear that he was seeking work.

16. Dr Rosenthal recorded Mr Coghill’s bladder/prostate cancer diagnosis, the subsequent chemotherapy and radiotherapy, development of atrial flutter and anticoagulant medication. 

17. Dr Rosenthal did not mention the removal of the bladder/prostate and that Mr Coghill had a urostomy bag.  Dr Rosenthal did not consider the impact of the diagnosis and treatment on Mr Coghill.  He took no history of the Federal Court proceedings.

18. During his oral evidence, Dr Rosenthal conceded that he had not explored the impact on Mr Coghill of cancer, the removal of his bladder/prostate or his wearing a urostomy bag because Mr Coghill had told him they were not impacting on his functional capabilities.  Dr Rosenthal said that the urostomy bag was catching urine and did not see how that would impact on work capacity because Mr Coghill could go to the bathroom whenever he wished.  He did not know the medications Mr Coghill was taking, how often he attended for treatment, or how many operations he had had.

19. Dr Smith, Psychiatrist, saw Mr Coghill with his wife on 18 November 2016. His report is dated 23 November 2016.  Dr Smith discussed the inconsistencies the VRB had found and reported that Mr Coghill provided him with a “coherent account of his employment history”.

20. Mr Coghill told Dr Smith that he ceased work with SDS in May 2013:

    He found that he could not cope with the demands of employment and in particular had difficulty focusing and concentrating.  He also reported being markedly restless and agitated.

21. Dr Smith agreed, overall, with Dr Dinnen’s opinions:

    I concur with the prevalence of Post-Traumatic stress disorder and a Major depressive Disorder.

    I agree that Mr Coghill has experienced symptoms of anxiety, depression and impairments in concentration.  He previously experienced outbursts at work and his mood was lowered to the extent of experiencing thoughts of self harm.

    I agree with Dr Dinnen’s opinion that the development of bladder cancer with major surgery is a complicating factor and a significant contributor to his inability to work.

22. In Dr Smith’s opinion:

    Mr Coghill displayed the diagnostic criteria for a Major Depressive Disorder which he deemed to be comorbid with PTSD and:

    … also a response to the significant losses he has experienced including his deteriorating physical health and loss of employment.

    …

    Mr Coghill is unable to work because of a combination of PTSD and currently his comorbid Major Depressive Disorder.  I would also add that in all probability his ability to work in the past has been compromised by his Alcohol Use Disorder.  This is now under control.  He is currently utilising a relatively high dose of the antidepressant Lexapro as well as other medications that may also intrude into his capacity to focus appropriately.

    The development of his bladder cancer with the need for surgical intervention including a prostatectomy and ongoing urinary difficulties is a major factor that in my opinion would intrude into Mr Coghill’s capacity to work.  With the onset of his physical decline associated with his bladder and prostate problems it is my opinion that his mental stability has been undermined.

    … I deem him to have no capacity to work.

23. During his oral evidence, Dr Smith expressed the following opinions. 

    ·   He did not agree with Dr Dinnen that PTSD was the only diagnosis or that depression is a diagnostic criterion of PTSD, including in DSM 5. 

    ·   The dominant presentation was Major Depressive Disorder, a separate diagnosis. 

    ·   He accepted a diagnosis of PTSD, based on exposure to a significant event during military service. PTSD should not have worsened.  The symptoms will ameliorate unless the person is re-traumatised.

    ·   Diagnoses were unreliable before alcohol was out of Mr Coghill’s system.

    ·    Mr Coghill was told to stop drinking alcohol when he was diagnosed with bladder cancer and did.

    ·   The significant factors causing distress before the emergence of bladder cancer were his excessive reliance on alcohol which was contributing to a major degree to anxiety, agitation and depressive symptoms. The onset of bladder cancer and the surgical interventions and the urostomy were very detrimental to him.  Mr Coghill was concerned about recurrence, future surgical interventions, and a significant loss to his well-being. 

    ·   In the absence of alcohol drinking, Dr Smith felt justified in diagnosing Major Depressive Disorder. PTSD was not florid. Despite his PTSD and Alcohol Use Disorder, Mr Coghill had a very good work record.  He had been productive and held prominent, responsible positions.  They had not prevented his occupational function.

    ·   Mr Coghill was able to engage in the very demanding litigation against IRL after he was dismissed.  That is significant from the point of view of his mental capacity. He did not explore at length whether the litigation had contributed to Mr Coghill’s Major Depressive Disorder and could not give a definitive response.  In his experience, complicated, lengthy, expensive litigation is quite harrowing.  If those factors were relevant, it is more likely they would have caused heightened levels of anxiety.

    ·   Alcohol may have caused Mr Coghill to be irritable and prone to aggressive outbursts and would have resulted in friction with others, interrupted sleep patterns, and lack of concentration, but he was working productively.

    ·   Mr Coghill’s comments to Dr Altman in 2013 were consistent with Alcohol Use Disorder and were not predominantly related to PTSD.

24. Dr Smith said the following in his oral evidence.  He did not disagree with Dr Chase. Mr Coghill has some capacity to work.  Mr Coghill was distracted by his bladder problems.  If he was improving, work would be good for him.  That opinion was at odds with the opinion in his report.  He was not a bladder expert and had concluded that the diagnosis was sinister with a host of complications including the urostomy bag and future surgery.  He assumed Dr Chase’s view was not as negative prognostically. If the bladder cancer were excluded, his opinion from the psychiatric point of view was that Mr Coghill would have a capacity to work.

25. Dr Chase, Occupational Physician, saw Mr Coghill on 17 November 2016.  His report is dated 29 November 2016.  He noted that Mr Coghill’s Alcohol Abuse was in remission and as a consequence there had been some improvement in his symptoms and the efficacy of the anti-depressant medication. Dr Chase considered that Mr Coghill was capable of part-time work as an accountant, fund manager, in financial services, or in any sort of clerical or administrative field between 8 and 20 hours per week. He observed that his PTSD might provide some problems with regards to his ability to manage the stresses of such work.  Dr Chase considered that Mr Coghill’s accepted disabilities were the major problem regarding his ability to work but that his cancer provided some partial contribution. Later in his report, he stated that if bladder cancer was accepted to be service related, that would change the impairment ratings “substantially”.

26. Dr Chase stated that Mr Coghill had been genuinely seeking remunerative employment and was capable of doing so.

27. During his oral evidence, Dr Chase said the following.  His assessment of Mr Coghill’s work capacity was based on Mr Coghill’s self-reported symptoms.  He would not argue with psychiatric diagnoses. His area of speciality is capacity to work. He could not comment on Mr Coghill’s capacity to work in 2013 because he had not seen him.  Similarly, he could not comment on his capacity to work in the years 2014 and 2015.  Mr Coghill said that his condition had improved because he had stopped drinking alcohol.  If he had seen Mr Coghill three years before when he was drinking heavily, his opinion may have been different. He had not seen the reports of Dr Dinnen or Dr Smith.

28. Dr Chase was asked to assume that in addition to PTSD, Mr Coghill had been diagnosed with Major Depressive Disorder.  He said that Major Depressive Disorder would not contribute to Mr Coghill’s inability to work longer than a certain number of hours because he implicitly assumed that the symptoms of depression were part of the constellation of symptoms of PTSD, which includes anxiety.

29. The opinion of both Dr Dinnen and Dr Smith in their reports of November 2016, was that Mr Coghill’s total incapacity to work at those times was partly due to his bladder cancer.  Mr Coghill’s own evidence was to the same effect. 

30. The Tribunal finds that Mr Coghill has resumed drinking alcohol occasionally, based on his oral evidence. 

    Conclusion

31. The Tribunal preferred the evidence of Dr Smith to the evidence of Doctors Dinnen, Rosenthal and Chase.  The consideration of both Doctors Rosenthal and Chase failed to take into account adequately the impact on Mr Coghill’s mental health of his diagnosis of and surgery for bladder cancer which both Dr Dinnen and Dr Smith agreed impacted on his capacity to work.  The psychiatric evidence is compelling on that issue. 

32. Dr Chase claimed to defer to the psychiatric evidence, but then gave an opinion about the symptoms of PTSD.  He does not have that expertise.  He had not considered the reports of Dr Dinnen or Dr Smith when he prepared his report.  His oral evidence was unpersuasive.

33. Dr Rosenthal did not consider the impact on Mr Coghill of his cancer diagnosis and surgery.  His oral evidence about the impact of the urostomy bag was ill-considered and unpersuasive. 

34. Dr Smith’s consideration of Mr Coghill’s condition in his report was thorough.  The Tribunal did not accept that his deference to Dr Chase’s opinion about capacity to work was justified. It found his reasoning for diagnosing a separate and unaccepted condition of Major Depressive Disorder to be persuasive.

35. The Tribunal finds that in October and November 2016 when Doctors Dinnen, Rosenthal, Smith and Chase examined Mr Coghill, he was incapacitated from undertaking remunerative work for periods aggregating more than eight hours per week because of a combination of PTSD and “currently his comorbid Major Depressive Disorder”.  The development of bladder cancer with the need for surgical intervention including prostatectomy and ongoing urinary difficulties was a significant factor in Mr Coghill’s incapacity to work.

36. For the above reasons, the Tribunal is not satisfied that incapacity from war-caused injury or war-caused disease or both, alone, prevented Mr Coghill from undertaking remunerative work otherwise than on a part-time basis or intermittently, or for periods aggregating more than 8 hours per week, at any time during the assessment period. 

37. Mr Coghill did not satisfy s 23(1)(b) or s 24(1)(b) of the Act during the assessment period.

Decision

1. The Tribunal affirms the decision under review.

I certify that the preceding 86 (eighty-six) paragraphs are a true copy of the reasons for the decision herein of
Mrs J C Kelly, Senior Member

............................[sgd]............................................

Associate

Dated: 7 August 2018

Dates of hearing:	4 and 5 December 2017
Counsel for the Applicant:	Mr T Saunders, Elizabeth Street Chambers
Solicitor for the Respondent:	Mr K Eskerie, Sparke Helmore