Kattenberg and Repatriation Commission (Veterans' entitlements)

[2019] AATA 3251

Kattenberg and Repatriation Commission (Veterans' entitlements) [2019] AATA 3251 (4 September 2019)

Division:VETERANS' APPEALS DIVISION

File Numbers:         2018/1388 & 2018/1389

Re:Raymond Kattenberg

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Deputy President R I Hanger AM QC

Date:4 September 2019

Place:Brisbane

The decision under review with respect to the alcohol use disorder is affirmed.

The decision under review with respect to the special rate of pension is set aside and remitted back to the respondent for reconsideration in the calculation of the applicant’s special rate of pension.

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Deputy President R I Hanger AM QC

CATCHWORDS

VETERANS’ AFFAIRS – compensation – claim for alcohol use disorder – claim for special rate of pension – whether applicant satisfies the statement of principles concerning alcohol use disorder – whether the applicant by reason of incapacity from a war-caused injury is prevented from continuing to undertake remunerative work – loss of salary or wages – decision relating to alcohol use disorder affirmed – decision relating to special rate of pension set aside and remitted.

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth)

SECONDARY MATERIALS

Statement of Principles No. 49 of 2017 – alcohol use disorder (Balance of Probabilities)

REASONS FOR DECISION

Deputy President R I Hanger AM QC

4 September 2019

INTRODUCTION AND BACKGROUND

1. The primary issue in this matter is whether the applicant is entitled to a Department of Veterans’ Affairs pension beyond 100% of the general rate; that is to say at a special rate.

2. The applicant was born in July 1952. He served in the Royal Australian Navy from

   
   

   July 1969 to July 1989.

3. The applicant has accepted disabilities of:

   ·Lumbar Spondylosis with L4-L5 Disc Lesion;

   ·Bilateral Sensorineural Hearing Loss;

   ·Bilateral Tinnitus;

   ·Long Standing Degenerative L4-5 Aggravation;

   ·Chronic Adjustment Disorder with Depressed and Anxious Mood; and

   ·Osteoarthritis affecting both knees.

4. On 27 July 2015 the applicant lodged a claim for an increase in his general rate disability pension. On 19 February 2016 a decision was made by the Repatriation Commission (“the Respondent”) which continued disability pension at 60% of the general rate.

5. On 30 June 2016 the applicant lodged a claim for a psychiatric condition and right knee pain. On 1 February 2017 a decision was made accepting a claim for adjustment disorder with depressed and anxious moods and osteoarthritis of the right knee. This decision resulted in an increase to the applicant’s disability pension to 100% of the general rate with effect from 30 March 2016. A claim for alcohol use disorder was rejected.

   
   

   On 14 March 2016 the applicant requested a review of the decision of 19 February 2016. On 21 February 2017 he requested a review of the determination dated 1 February 2017. On 26 July 2017 the Veterans Review Board affirmed both of the decisions under review.[1]

   [1]     Exhibit 3, T Documents, T2, Veterans’ Review Board Decision and Reasons

6. On 19 March 2018 the applicant lodged an application for review with this Tribunal for both decisions of the respondent dated 26 July 2017.[2]

   [2]     Exhibit 3, T Documents, T1, Application for Review.

   ISSUE

7. The essential issues for determination are whether the applicant:

   (a)Has a psychiatric condition, namely alcohol use disorder; and

   (b)Is entitled to a special rate pension.

   LEGISLATIVE FRAMEWORK

8. The alcohol use disorder is to be considered in accordance with the Statement of Principles concerning alcohol use disorder (Balance of Probabilities) (No. 49 of 2017) (“SoP No. 49 of 2017”). The Statement of Principles is a relevant instrument made under subsection 196B(3) of the Veterans’ Entitlements Act 1986 (Cth).

9. The respondent submits that the applicant does not meet the special rate of pension provisions of section 24(1)(c) of the  Act which so far as is relevant, provides as follows:

   “… The veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity;...”

   ALCOHOL USE DISORDER

   The applicant’s evidence

10. The applicant gave evidence at the hearing that he was introduced to drinking alcohol while in the Navy in the early 1980s. His drinking increased in the mid-80s because he had an operation on his back which was not as successful as he had hoped and he drank alcohol to relieve back pain. When he was discharged from the Navy in 1989 he says that he was not drinking any more than he was in the mid-80s. He says that it was affecting his lifestyle at that time and in particular his social relationships but it didn’t affect his employment. He says that he did not need to take time off work because of his alcohol consumption. On occasions during the course of his employment, the applicant informed the Tribunal he was counselled about his treatment of customers but there is no evidence that it resulted in a formal complaint against him. He worked as a warehouse supervisor. Sometime later he was involved in more managerial roles which were office-based and that caused him to have some problems with being able to stand or sit for any great length of time. He says it got worse over time. Nevertheless, he was able to avoid taking time off work. He was subsequently recommended to undertake exercise physiotherapy on a regular basis and he continues to do that. He continued working until 2014 which is

    
    

    25 years after he left the Navy.

11. In 2014 he took three weeks holiday leave and returned to work expecting to return to working as usual, but when he returned to work he was called to his immediate manager’s office and was told that his job was redundant. He has reservations as to whether he was truly redundant but made no complaint about it. He says that he immediately went home after being made redundant and sat down at his computer to search for work. However, after a conversation with his wife he decided not to proceed. In his evidence before the Tribunal he says that his reason for deciding not to continue to look for work was medical and caused by his back because he couldn’t remain at a desk for any significant time and couldn’t stand for a long period time. He has not worked since May 2014. He gave evidence that in the period between 2010 and 2014 he was probably drinking five standard drinks a day.

    Medical expert evidence

12. Doctor John Sowby is an Occupational Physician. He provided a report dated 12 July 2018.[3] He attributed 85% of the applicant’s disability to the L4/5 disc injury with lumbar spondylosis; 5% to hearing impairment and tinnitus; 5% to bilateral knee osteoarthritis; and 5% to a psychological condition with alcohol abuse disorder. He said that the applicant’s lumbar spine condition was the primary concern limiting his capacity for work. Only the back condition limited him to working less than eight hours per week. The other conditions listed did not prevent him from working more than 20 hours per week.

    [3]     Exhibit 6, Independent Medical Report of Dr John C. Sowby, dated 12 July 2018.

13. Doctor Ki Douglas is an Occupational Physician who provided a report dated 25 May 2016.[4] At that time she made a diagnosis as follows:

    ·lumbar spondylosis with L4 radiculopathy;

    ·prostate cancer Gleason score 9;

    ·hypertension, on medication

    ·osteoarthritis/tendinopathy both shoulders (needs ultrasound and x-ray to confirm); and

    ·obesity class I (BMI 30.9kg/m²).

    [4]     Exhibit 3, T Documents, T18, Report of Dr Ki Douglas, dated 25 May 2016.

14. Doctor Douglas said the applicant was “unfit for all work”. He was restricted in sitting and standing and limited in walking and that he would best benefit from an exercise physiology review and exercise physiotherapy, but that he is totally and permanently unfit for all work. She does not make any reference to excessive alcohol use, and attributed 100% to the lumbar spondylosis. The applicant told the doctor that he was consuming two bourbons with soda water every two days.

15. Doctor Donald Wright is a Psychiatrist who provided a report dated 9 July 2018.[5] He diagnosed the applicant as suffering from an adjustment disorder with depressed and anxious mood, alcohol abuse and dependence. The diagnosis of alcohol abuse was made “on the basis of the level of consumption of alcohol and the effect it has on his mental wellbeing”. The diagnosis of alcohol dependence was “made because of the presence of tolerance to increasing quantities of alcohol over many years”. The Doctor also interviewed the applicant’s wife who expressed concern about his use of alcohol and the effect it had on his mood. Doctor Wright expressed the opinion that most of the applicant’s problems appear to stem from the chronic back pain, and that other stressors in his life are of much less significance. He notes that even though the applicant had features of depression and alcohol dependence, he was able to continue working despite these. In particular, Dr Wright says that the “history does not suggest that the excessive alcohol use has particularly impaired his ability to work”.

    [5]     Exhibit 5, Independent Medical Report of Dr Donald James Wright, dated 9 July 2018.

16. When asked to apportion the extent that each condition contributes to his capacity for remunerative work Dr Wright opined the back pain is 80% responsible, depression and anxiety is 20% responsible, and alcohol dependence is not responsible at all.

17. The applicant started social drinking while he was in the Navy. His alcohol consumption increased significantly after his back surgery in 1986 but the alcohol consumption did not affect his ability to obtain and maintain employment from the time he left the Navy in 1989 until the time when he was retrenched in May 2014. While in the Navy he rose to the most senior non-commissioned rank and after leaving the Navy rose to the rank of manager for the company Kleenmaid and prior to his redundancy was a distribution coordinator for KWA blinds.

18. Doctor Jonathan Hargraves, Psychiatrist, provided three reports: the first dated 18 June 2016;[6] the second dated 11 September 2016;[7] and the third dated 13 June 2017.[8] In his first report, the doctor regards the applicant as 100% impaired from working and diagnosed him with adjustment disorder with depressed and anxious mood. He regarded that as being 50% of his problem and the remainder being attributable to chronic pain and associated disability, alcohol abuse, prostate cancer and chronic tinnitus. He refers to his having a history of chronic alcohol dependence for some years going back to his time in the Navy. Even though he had reduced his drinking to five standard drinks on two to three nights a week, Dr Wright still regarded this as “fulfil[ing] the criteria for alcohol abuse under this drinking regime”. This is all confirmed in his second report.

    [6]     Exhibit 3, T Documents, T19, Report of Dr Jonathan Hargraves, dated 18^th June 2016.

    [7]     Exhibit 2, Report attached to Applicant’s Facts and Contentions.

    [8]    

19. The third report further examines the issue of alcohol consumption. The applicant told the doctor that his drinking was commensurate with that of other people with whom he served but that after his back pain developed in 1986 he had continuous pain and that was when he began to drink on a regular basis.

    Whether the applicant satisfies the provisions of the Statement of Principles relating to Alcohol Use Disorder.

20. In order to establish a disability of alcohol use disorder pursuant to the provisions of the Act, the applicant carries an onus of satisfying the provisions set out in the SoP No. 49 of 2017.

21. The applicant relies on the accepted condition of adjustment disorder to satisfy Factor 9(1), or in the alternative the clinical worsening of his accepted condition under Factor 9(7) to satisfy the Statement of Principles.[9]

    [9]     Applicant’s Final Submissions, dated 16 August 2019.

22. Factor 9 (of Number 49 of 2017) provides:

    At least one of the following factors must exist before it can be said that that, on the balance of probabilities, alcohol use disorder… is connected with the circumstances of a person is relevant service:

    (1)  having a clinically significant disorder of mental health as specified at the time of the clinical onset of alcohol use disorder;

    …

    (7)  having a clinically significant disorder of mental health as specified at the time of the clinical worsening of alcohol use disorder;

23. The term “clinically significant disorder of mental health as specified means one of the following conditions, which is of sufficient severity to warrant ongoing management…

    (b) adjustment disorder;
    …
    (e) anxiety disorder.”

24. From the evidence set out above it is fairly clear that the applicant began drinking while in the Navy. Initially the drinking was social but it increased particularly after his back injury to the extent that it affected his social life. That occurred in the 1980s. The applicant was not diagnosed with adjustment disorder or anxiety state until 2016. Dr Hargraves gave evidence that the adjustment disorder symptoms including the depression and anxiety symptom clusters was likely to have its onset in the late 1980s although it was not diagnosed until over 20 years later. The applicant gave evidence that his drinking increased on a more regular basis in the mid-1980s when he was not getting relief from back pain and said that after his rehabilitation from back surgery when the operation had not been as successful as he hoped he started using alcohol again to mask the situation.

    
    

    I accept his evidence that he used and likely continues to use alcohol as a form of pain relief. One might thus argue that his acute alcohol disorder is directly attributable to his naval service but that does not appear to satisfy the test postulated in Factor 9(1).

25. While one may speculate about the possible existence of an adjustment disorder before 2016, there is really no acceptable evidence that at the time he began to suffer from Alcohol Use Disorder, he was suffering from an adjustment disorder so as to bring him within the scope of Factor 9. Dr Hargreaves regards the alcohol problem predated the psychiatric disorder. Certainly he appears to have coped with all of his disabilities well enough to enable him to work until 2014 and he did not regard the symptoms, whatever they were, to be of “sufficient severity to warrant management” by a mental health specialist. As such, the Tribunal finds that the applicant has not satisfied either Factor 9(1) or Factor 9(7) of SoP No. 49 of 2017.

26. The decision in relation to alcohol use disorder is affirmed.    

    DOES THE APPLICANT SATISFY THE CONDITIONS TO ENABLE HIM TO PAYMENT OF PENSION AT A SPECIAL RATE?

27. Section 24 of the Act provides for payment of a special rate of pension in certain circumstances. The veteran must establish that: “the veteran is by reason of incapacity from the war-caused injury…, 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 … that the veteran would not be suffering if the veteran were free of that incapacity.”

28. The applicant was engaged in work as a warehouse manager by KWA Blinds from 2009 until May 2014. He went on holiday and when he returned he was retrenched. This came as a surprise to him as he had intended to continue work on his return from leave. The evidence was as follows:

    “I went home, told my wife and immediately went onto the computer to look for work, and that’s when she said – called me out and she said, “I don’t think we should be looking to do this.” My idea of doing that was to finish off paying my mortgage, and she said, “I don’t think we should be doing this, because I don’t really think you can keep on going” which was – you know, and we thought about it and we discussed it, and we came to the agreement that we couldn’t really go on.

    So, in your discussion and in your own thoughts, what was your reasons that you believed you couldn’t work any longer?---My reason was medical; was because of my back, basically, because I knew that I could not remain at a desk for any duration of time. Two hours was really the maximum. I couldn’t stand for a long period of time and I knew that if I did, I would probably become a little bit moody and aggressive, and it was beyond me, basically.”

29. He has not sought work since that time.

30. In her report of 25 May 2016 Dr Douglas says that the applicant is unfit for all work and that he is prevented from undertaking employment solely because of his lumbar spondylosis. Lumbar spondylosis is one of his accepted conditions.

31. Doctor Hargreaves in his report of 18 June 2016 also regards the applicant as 100% impaired from working but he deems the psychiatric component of his inability to work as being 50% of his problem and the other 50%  attributable to chronic pain and associated disability, alcohol abuse, prostate cancer and chronic tinnitus. The prostate cancer was diagnosed in 2016 and was the subject of ongoing treatment.

32. To his credit the applicant has coped with serious injuries to a greater or lesser extent for a long time. Throughout the whole period he has been gainfully employed. He did not voluntarily leave employment. He was struggling to cope with his accepted disabilities but expected to continue. I note that he was having problems with alcohol but it did not stop him working. Various other matters were raised by the respondent suggesting that they were relevant but he had managed to cope with the various vicissitudes of life apart from the accepted conditions. I do not accept them as contributing to his decision after retrenchment, and after consultation with his wife, to not seek further employment. 

33. I am satisfied, placing particular emphasis on the evidence of Dr Douglas, and on the applicant’s own evidence, that the accepted conditions alone, prevented him from continuing to undertake remunerative work and that he satisfies the provisions of section 24 of the Act entitling him to a special rate of pension.

34. The decision relating to the application for a special rate of pension is set aside and remitted back to the respondent for reconsideration in the calculation of the applicant’s special rate of pension.

35.     I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President R I Hanger AM QC

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Associate

Dated: 4 September 2019

Dates of hearing:

6 and 7 August 2019

Applicant:

In person

Advocate for the Applicant:

Mr G Blake

Representative for the Respondent:

Mr B Williams

Department of Veterans’ Affairs

Exhibit 3, T Documents, T2, Attachment to Veterans’ Review Board Decision and Reasons, Report of

Dr Jonathan Hargraves, dated 13^th June 2017.