Vernard William JONES and Repatriation Commission
[2015] AATA 96
•23 February 2015
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2013/3377
Veterans' Appeals Division )Re: Vernard William JONES
Applicant
And: Repatriation Commission
RespondentCORRIGENDUM TO DECISION
TRIBUNAL: Mr C Ermert, Member
DATE: 16 March 2015
PLACE: Melbourne
Upon written application of the Applicant, and with the consent of the Respondent, the Tribunal directs the Registrar, pursuant to sub 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the decision as follows:
The Tribunal sets aside the reviewable decision and substitutes a decision that the Applicant be granted an increase to his disability pension to the special rate with effect from 24 February 2012.
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Member
[2015] AATA 96
Division VETERANS' APPEALS DIVISION File Number
2013/3377
Re
Vernard William JONES
APPLICANT
And
Repatriation Commission
RESPONDENT
Decision
Tribunal Mr C Ermert, Member
Date 23 February 2015 Place Melbourne The Tribunal sets aside the reviewable decision and remits the matter to the Respondent to determine Mr Jones’s entitlements in accordance with the findings of the Tribunal’s decision.
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Mr C Ermert, Member
Veterans Entitlements - incapacity from war-caused injuries alone - decision set aside and remitted to the Respondent
Legislation
Veterans' Entitlements Act 1986 s24(2A)
Cases
Owen v Repatriation Commission (1995) FCA 1428
Husband v Repatriation Commission (2000) FCA 356
Richmond v Repatriation Commission (2014) FCA 272Repatriation Commission v Richmond (2014) FCAFC 124
REASONS FOR DECISION
Mr C Ermert, Member
23 February 2015
introduction
Mr Jones, the Applicant, was born on 17 February 1945. He undertook National Service in the Australian Army and served in Vietnam from 11 June 1966 to 14 June 1967. He has a number of war-caused disabilities including anxiety disorder, alcohol abuse, small fibre neuropathy and irritable bowel syndrome for which the Repatriation Commission (the Respondent) accepts liability.
After his discharge from the Army, he had numerous jobs in grocery and food outlets. In 1986 he founded the company Competitive Carpet Services. He was self-employed and had no employees. He engaged subcontractors to undertake the installations. He ran the company from his home.
Mr Jones worked full-time until the mid-1990s when he reduced his working hours to about 15 hours per week. By that time he was drinking to excess. In that same period, the Respondent increased Mr Jones’s disability pension to the Intermediate Rate.
In October 2011 Ms Cranston, Mr Jones’s daughter, commenced working in the business. In February 2012 Ms Cranston took over the company and continues to the run the business.
On 8 October 2011 Mr Jones applied to the Respondent for an increase in his disability pension. On 29 February 2012 the Respondent’s delegate decided to continue paying his pension at the Intermediate Rate. Mr Jones applied to the Veterans’ Review Board (VRB) for a review of the decision. On 26 June 2013 the VRB affirmed the decision to continue to pay his disability pension at the Intermediate Rate.
This matter is an application for a review of the VRB decision.
the hearing
The hearing commenced on 12 August 2014. After taking evidence from Mr Jones and Ms Cranston, I adjourned the hearing until 8 December 2014.
Ms Ryan of Counsel represented Mr Jones. Mr Rudge, a Departmental lawyer, represented the Respondent.
For Mr Jones I took into evidence:
·Mr Jones’s statement, dated 9 July 2013 (Exhibit A1),
·Mr Jones’s Individual Tax Return 2012 (Exhibit A2),
·Ms Cranston’s statement, dated 9 July 2013 (Exhibit A3),
·Dr Holwill’s report, dated 18 September 2013 (Exhibit A4),
·Dr Kaplan’s report, dated 21 February 2013 (Exhibit A5),
·Dr Thomas’s report, dated 25 September 2013 (Exhibit A6),
·Dr Thomas’s report, dated 29 April 2014 (Exhibit A7), and
·Professor Butler’s notes comprising 10 pages (Exhibit A8),
For the Respondent I took into evidence:
·Dr Strauss’s report, dated 23 January 2014 (Exhibit R1), and
·Dr Horsley’s report, dated 24 January 2014 (Exhibit R2).
I also had before me:
·the documents lodged by the Respondent under section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents),
·the Applicant’s Statement of Facts and Contentions, dated 27 March 2014, and
·the Respondent’s Statement of Facts and Contentions, dated 29 May 2014.
the legislation
The relevant legislation is contained in section 24 of The Veterans’ Entitlements Act 1986 (the Act).
the issues
Section 24 of the Act contains the provisions for the payment of the Special Rate of Pension. section 24(2A) provides for a veteran who reached the age of 65 years before making an application for an increase in the rate of pension. Section 24(2A) provides:
This section applies to a veteran if:
(a)the veteran has made … an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(b)the veteran had turned 65 before the claim or application was made; and
(c)paragraphs (1)(a) and (1)(b) apply to the veteran; and
(d)the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and
(e)because the veteran is prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from than incapacity; and
(f)the veteran was undertaking his or her last paid work after the veteran had turned 65; and
(g)when the veteran stopped undertaking his or her last paid work, the veteran:
(i) if he or she was then working as an employee of another person – had been working for that person, or for that person and any predecessor or predecessors of that person; or
(ii) if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling – had been so working in that profession, trade, employment, vocation or calling;
for a continuous period of at least 10 years that began before the veteran turned 65; and
…
In this case the parties agree that Mr Jones:
·has applied for an increase in his rate of pension (s.24(2A)(a));
·turned 65 before he made his application (s.24(2A)(b));
·meets the provisions of paragraphs 24(1)(a) and 24(1)(b) (s.24(2A)(c)); and
·was undertaking his last paid work after he turned 65 (s.24(2A)(f)).
The issues in contention are whether Mr Jones:
(a)is prevented by incapacity from his war-caused injuries alone from continuing to undertake his last paid work (s.24(2A)(d));
(b)is thereby suffering a loss of earnings (s.24(2A)(e));
(c)was working for Ms Cranston or on his own account when he stopped undertaking his last paid work (s.24(2A)(g)(ii)); and
(d)had been working for Ms Cranston or on his own account for a continuous period of at least 10 years that began before he turned 65 (s.24(2A)(g)).
the evidence
Mr Jones’s evidence
Mr Jones recounted instances of his war service while in Vietnam. His experience included a recounting of his unit’s participation in Operation Bribie, as part of which his unit undertook an unsuccessful bayonet charge against the enemy and suffered a number of casualties.
After Mr Jones’s discharge from the Army, he worked in the grocery business. He had trouble taking directions from his employers and decided to work for himself. He had friends in the carpet industry and in 1986 he started a flooring sales business called Competitive Carpet Services. Mr Jones testified he ran the business from home but attended building sites in order to determine the flooring requirements. Mr Jones was a sole trader with no employees.
Mr Jones stated he worked full time until the mid-1990s when he reduced his work to approximately 15 hours per week. At about that time his first wife left him, he was drinking heavily, he was having difficulty dealing with people and was not keeping appointments. He said he could not engage with people as he smelled of alcohol, he could not think properly, his concentration was affected and his short term memory was gone. He said he also did not want his family and friends to see him, and he no longer went out. Mr Jones said that he commenced treatment with Dr Holwill during that time.
Mr Jones testified that his daughter began working with the company in October 2011. He said this was because he was no longer running the company very well as a result of his alcohol problem and his neuropathy which made it difficult for him to go to work sites, climb stairs and do the measuring.
Mr Jones stopped working in February 2012. He said that he would help his daughter but was not paid. He said his daughter took over the business name. Mr Jones said the 2012 tax return (Exhibit A2) was his last tax return as he has not worked since.
When asked about his irritable bowel syndrome, Mr Jones said he always had to find toilets. He said his hypertension was caused by his anxiety and he had to take medication for it. He would have liked to continue working but was not able to. He would also have liked to continue on the committee of the RSL club but he said he would drink himself to death.
Mr Jones spent three weeks in the Heidelberg Repatriation Hospital for alcohol detoxification on the advice of his wife and his psychiatrist, Dr Heffernan. He said that while at Heidelberg he did not want to discuss his Vietnam experiences. Since then he has reduced his drinking.
Mr Jones stated he did not suffer from diabetes and sleep apnoea. He takes anti-depressant medications for his psychiatric condition and other medications for his neuropathy and hypertension.
Under cross-examination, Mr Rudge referred to the historical details of the Australian Business Register for Mr Jones (T documents, page 165) which showed that his Australian Business Number (ABN) was current up to 5 December 2012. Mr Jones stated that this was due to the time lag in the cancellation of his registration. He said he cancelled his ABN by telephone contact some time during 2012. His daughter had her own ABN.
Mr Rudge took Mr Jones to Dr Sheehan’s report in which Dr Sheehan recorded that Mr Jones is currently working 15 hours a week (T documents, page 39). Mr Jones said that Dr Sheehan meant that he was working at 15 hours a week up to October 2011.
Mr Rudge referred Mr Jones to Dr Paul’s report in which Dr Paul recorded Mr Jones’s present work status as he estimates he works between 8 and 10 hours per week (T-documents, page 119). Mr Jones said he does not know why he gave Dr Sheehan and Dr Paul different hours. He said it was a mistake, possibly caused by his morning medication. He said he certainly was not working eight hours per week, probably five to seven.
Mr Rudge next referred to Dr Strauss’s report in which Dr Strauss recorded I asked this man specifically how many hours he works in the business and he said six to seven hours a week doing some invoicing and giving advice (Exhibit R1). Mr Jones said he had to answer the question from Dr Strauss straight away and did not have time to think about it until later. Mr Jones added that he stopped working in October 2011 and helped his daughter take over the business. He said he received no wages, no money or rewards in kind and paid no tax.
Mr Rudge took Mr Jones to Dr Horsley’s report in which Dr Horsley recorded on page 7 that Mr Jones was diagnosed a couple of years ago with sleep apnoea … currently he has daytime somnolence. He has a snooze from 3:00pm until 5:00pm most days (Exhibit R2). Mr Jones said he was tested for sleep apnoea but he did not have it. He said that he had the test because Dr Heffernan was concerned about Mr Jones’s alcoholism. In regard to the daytime somnolence, Mr Jones said he puts his head down, but not every day.
In regard to the diabetes recorded by Dr Horsley, Mr Jones said he was on the cusp of diabetes but it was treatable. Mr Rudge put to him that his need for examination by an optometrist and a podiatrist could be as a consequence of diabetes. Mr Jones said he went to the podiatrist because of his neuropathy, not diabetes.
Mr Rudge asked Mr Jones whether he had to sit down after climbing stairs because of fatigue. Mr Jones replied he had to sit down because of his feet. In regard to his weight, Mr Jones said his weight gain was caused by the medication Lyrica which he takes for his neuropathy. He did not think that stopping work affected his weight.
Returning to Dr Horsley’s report, Mr Rudge referred to the recorded problems with the right ankle and gout. Mr Jones stated he has no problem with his right ankle that is not caused by his neuropathy. In regard to gout, Mr Jones said that his problem moving around building sites was due to his neuropathy.
Mr Rudge asked whether Mr Jones worked for his daughter at any time. Mr Jones said that at no time did he work for his daughter. He said she just came in and he helped her, taught her how to do plans and took her to sites. He said his access to money from the business stopped in October 2011.
In her re-examination, Ms Ryan asked Mr Jones whether his sleep in the afternoons prevented him from working. Mr Jones replied yes. He went on to say that he moves away from the television to lie on the bed and think about things. He said that his lying down in the afternoon was only recent. He then said that his daytime sleeping habits had no effect on his work.
Under further cross-examination, Mr Rudge asked for clarification about Mr Jones’s statement that his sleeping had no effect on his work. Mr Jones said that it had no effect because he does not work. He reiterated that he does not lie down every day. He said he does so to have a rest and think about things other than his feet. Mr Rudge asked if his need to sleep in the afternoon, together with his weight and his general unwellness prevented him from working or made work more difficult. Mr Jones answered no.
In further re-examination Ms Ryan again asked Mr Jones about his afternoon rest. Mr Jones said he lies down because of the pain in his feet. His sleep in the afternoon does not prevent him from working. He just goes in for a rest. It is a recent thing and has nothing to do with his work. He does not sleep every afternoon, only three afternoons a week.
Mr Jones reiterated that he ran the business from home. He said that from 1995 onwards he was working only 15 hours per week on average. He would work in the mornings and drink in the afternoons.
Ms Cranston’s evidence
Ms Cranston is Mr Jones’s daughter. She provided a statement dated 9 July 2013 (Exhibit A3).
In her oral evidence, Ms Cranston stated that she decided to get involved in her father’s business because he intimated that he was struggling. She said he was unable to cope with the pressures of the job and dealing with people. She said he found the work stressful and could not communicate properly.
Ms Cranston said she began running the business in October 2011 and Mr Jones stopped working in February 2012. She said that from October 2011 to February 2012 they would go to the sites together and her father would train her.
In answer to questions from Ms Ryan, Ms Cranston said that:
·she did not use the company’s ABN as she had her own ABN from her work as a sole trader;
·Mr Jones would help her plan a job if she were confused about it;
·Mr Jones received no financial reward for his advice after February 2012;
·she compiled the schedule attached to her statement from the invoice books;
·she would ask her father for advice if she had problems as they lived in the same house;
·between October 2011 and February 2012 Mr Jones would forget he had jobs, did not keep documentation and was disorganised;
·she works full time with the company; and
·the company has no employees.
Mr Rudge asked if Mr Jones still helps with advice and planning with the company. Ms Cranston said yes.
Mr Rudge referred to the reports by Dr Sheehan and Dr Paul in which they recorded that Mr Jones was working 15 hours per week and eight to ten hours per week in February 2012 respectively. Ms Cranston said that Mr Jones was actually working only four hours a week. Mr Rudge referred to Dr Strauss’s report in which he recorded that Mr Jones was working six to seven hours a week in January 2014. Ms Cranston said that in January 2014 Mr Jones was working only one to one and a half hours a week, doing some planning and quotations.
Ms Cranston stated that Mr Jones was training her between October 2011 and February 2012. At the end of February 2012 she felt confident enough to work on her own and she became the boss. She stated that Mr Jones received no payments of rewards from the company after February 2012.
When asked whether Mr Jones was capable of part-time work, Ms Cranston answered No. He is not mentally up to it. He cannot take calls, he just gets upset. When asked what medical conditions prevent his work she said it was his anxiety and his mental incapacity to work. She said he was physically capable, except when his feet played up. She said Mr Jones stopped working because could not take it anymore because of his anxiety.
Dr Clayton Thomas’s evidence
Dr Thomas confirmed the contents of his reports, Exhibits A6 and A7. Ms Ryan asked Dr Thomas whether Mr Jones suffers from diabetes (Exhibit A6, page 2). Dr Thomas stated that Mr Jones does not have diabetes. He said Mr Jones has reflexes which he would have lost if he suffered from diabetes. When asked about the effects of the medication Lyrica, Dr Thomas said that Lyrica could easily cause weight gain.
When Ms Ryan took Dr Thomas to his second report, Exhibit A7, Dr Thomas stated that there were no diagnoses of sleep apnoea, diabetes and right ankle dysfunction. He repeated that Mr Jones does not have diabetes. He also noted that Mr Jones was taking the maximum dose of Lyrica, which can cause a person who is mentally inactive to drop off to sleep. Dr Thomas stated that Mr Jones’s afternoon rests were reasonable to take the weight off his feet and ease the pain from his neuropathy. They were not inconsistent with the dosage of Lyrica.
Under cross-examination, Mr Rudge took Dr Thomas to section 8.21 Sleep Apnoea of Dr Horsley’s report (Exhibit R2), and asked Dr Thomas if this was a reasonable diagnosis of sleep apnoea. Dr Thomas responded by questioning why the sleep apnoea had not been treated if it had been diagnosed. Mr Rudge asked whether Mr Jones’s afternoon snoozes and his struggles to get up at 8:00 am would restrict his work capacity. Dr Thomas said that if the cause is medication-related it should be treatable.
Mr Rudge asked Dr Thomas whether Dr Horsley’s findings of reduced reflexes in Mr Jones’s lower limbs and Mr Jones’s annual consultations with an optometrist indicated that he was a diabetic. Dr Thomas said he did not make a connection between Mr Jones’s vision and diabetes. Further, he did not take a history of a diagnosis of diabetes, being told by Mr Jones only that he was on the cusp of diabetes. Dr Thomas added that he was not an endocrinologist.
Mr Rudge put to Dr Thomas the opinion of Dr Horsley that Mr Jones’s sleep apnoea, diabetes, obesity and age all have an impact on his capacity to work. Dr Thomas said that if treated, the daytime somnolence would not be a problem; the obesity would not stop him working; and that age, of itself, does not affect Mr Jones’s work.
In re-examination, Dr Thomas agreed that Mr Jones’s conditions of tinnitus, painful feet and the effects of Lyrica would all be part and parcel of chronic fatigue.
Dr Robyn Horsley’s evidence
Dr Horsley is an Occupational Physician and gave her evidence under oath.
Mr Rudge took Dr Horsley to section 8.21 Sleep Apnoea of her report (Exhibit R2). Dr Horsley stated she relied on Mr Jones’s history in regard to the diagnosis of sleep apnoea and his sleep studies. She had no access to any test results. She said that Mr Jones’s history was clinically suggestive of sleep apnoea but the condition may be a sleep disorder and not sleep apnoea.
Mr Rudge asked Dr Horsley whether Mr Jones’s body mass index (BMI) of 33.95 was suggestive of his having sleep apnoea. Dr Horsley said that sleep apnoea was common with people who had a BMI greater than 35.
Referring to section 8.23 Non Insulin Dependent Diabetes Mellitus of the report, Dr Horsley said she took the information from Mr Jones’s history and understood that the condition was managed with tablets and diet. She said that his need for glasses was due to ageing and not diabetes.
In regard to Mr Jones’s right ankle, Dr Horsley said that the observed reduction in the bulk of the right calf was probably caused by a problem in his knees. She said Mr Jones had problems with both knees. The left one was more significant and may throw back on the right ankle.
Mr Rudge asked Dr Horsley whether the reduced reflexes reported on page 9 were consistent with neuropathy. Dr Horsley said Mr Jones presented a mixed picture in regard to neuropathy.
In regard to the other conditions reported on page 10 of her report, Dr Horsley agreed with Mr Rudge’s proposition that the sleep apnoea would have an impact on his general sense of wellness. She said it would impart a sense of lethargy. She added that ageing would not have stopped Mr Jones from working.
Under cross-examination, Dr Horsley said that:
·Mr Jones’s right ankle was not a major issue;
·neuropathy and lack of exercise contribute to the right ankle problem;
·she did not see any radiology of the knees;
·she did not find anything herself in regard to diabetes but relied on the history given by Mr Jones;
·in regard to sleep apnoea, she did not see the results of the sleep study and relied on Mr Jones’s history;
·had there been a diagnosis of sleep apnoea she would expect it to have been recorded; however,
·Mr Jones’s history was suggestive of sleep apnoea.
Dr Horsley agreed with Ms Ryan’s proposition that it was not surprising that Mr Jones had a sleep during the day considering the pain in his feet, the nightmares he has and the effects of his Lyrica medication.
In re-examination, Dr Horsley said that:
·the history given by Mr Jones that his sleep apnoea was not severe enough to be treated … does not mean that it was not diagnosed;
·weight gain is suggestive of sleep apnoea; and
·in regard to Mr Jones’s right ankle problem, position sense declines with neuropathy and reduced exercise leads to loss of muscle tone which also contributes to the problem.
Dr Horsley said that in referring to tinnitus on page 5 of her report, she was quoting Ms Ferrett, audiologist. She did not obtain a history of the condition from Mr Jones.
SUBMISSIONS
For the Applicant
Ms Ryan submitted that the Tribunal should find as fact that:
·Mr Jones reduced his working hours in the mid-1990s because of his alcohol consumption and anxiety;
·from 1995 Mr Jones worked in the mornings and drank in the afternoons;
·by 2011 the pain in his feet prevented Mr Jones from driving to building sites;
·in 2011 Dr Butler diagnosed small fibre neuropathy;
·in October 2011 Ms Cranston began working with the business because Mr Jones was unable to cope with the stress and he had lost his short term memory;
·in February 2012, Mr Jones ceased work and has not worked since.
Ms Ryan contended that the only issue in contention is the alone test.
Ms Ryan submitted that there is no evidence that Mr Jones suffers from diabetes.
Ms Ryan submitted that Mr Jones’s daytime somnolence does not prevent him from working at least part-time, in the mornings. She contended that his sleep is interrupted by nightmares and tinnitus. Additionally, his prescribed medication of Lyrica causes drowsiness. Ms Ryan referred to the evidence of Dr Horsley that it is not surprising that Mr Jones sleeps during the day. Ms Ryan contended that there is no evidence of Mr Jones having sleep apnoea.
Ms Ryan submitted that, in any case, Mr Jones’s daytime somnolence is a consequence of his accepted conditions. She cited the judgement in Richmond v Repatriation Commission [2014] FCA 272 in which Dodds-Streeton J found at paragraph 109:
However, a factor which prevents or contributes to preventing the veteran from continuing to undertake the remunerative work, but is itself the consequence of the veteran’s war-caused condition, will not constitute an independent preventative factor for purposes of defeating the “alone” requirement in s 24(1)(c).
Ms Ryan contended that his finding was not disturbed in the subsequent appeal.
For the Respondent
Mr Rudge agreed that the only issue in contention is the alone test of section 24(2A)(d) of the Act.
Referring to Dr Horsley’s evidence, Mr Rudge submitted that Mr Jones suffered from obstructive sleep apnoea with daytime somnolence. He contended that the incapacity arising from sleep apnoea contributed to preventing Mr Jones from undertaking the relevant remunerative work.
Mr Rudge submitted that, as there had been no determination that obstructive sleep apnoea is a war-caused disease, war-caused disabilities, alone, are not preventing Mr Jones from continuing to undertake the last paid work he was undertaking. As a consequence, Mr Jones’s situation does not satisfy the provisions of section 24(2A)(d) of the Act.
Mr Rudge made the same submissions in regard to diabetes mellitus.
He submitted that the possibility that accepted disabilities might cause similar symptoms does not alter the effect of the legislation and the case law (in Owen v Repatriation Commission (1995) FCA 1428, paragraph 38, and Husband v Repatriation Commission (2000) FCA 356, paragraph 34), that there is a non-accepted disability contributing to preventing Mr Jones from undertaking remunerative work. In support of this submission Mr Rudge cites the judgement of the Full Court of the Federal Court in Richmond v Repatriation Commission (2014) FCAFC 124, paragraphs 58 and 65.
TRIBUNAL CONSIDERATIONS
I note the agreement of both parties that Mr Jones’s circumstances satisfy the provisions of all sub-sections of section 24(2A) of the Act except sub-section (d). From the evidence I am satisfied that the provisions of sub-sections (2A)(a), (b), (c), (e), (f) and (g) are satisfied in this case, and I find accordingly.
The issue in contention is whether Mr Jones is prevented from continuing to undertake his last paid work because of incapacity from war-caused injury or war-caused disease alone (section 24(2A)(d)).
The conditions for which the Commission does not accept liability in this case are obstructive sleep apnoea, daytime somnolence and diabetes mellitus.
Obstructive Sleep Apnoea
Mr Rudge submitted that Mr Jones suffers from obstructive sleep apnoea with daytime somnolence which contributes to preventing Mr Jones from undertaking his remunerative work. Mr Rudge’s contention that Mr Jones suffered from this condition was based on Dr Horsley’s evidence. Mr Rudge notes that Dr Horsley based her opinion on the history she took from Mr Jones and the report of the treating psychiatrist, Dr Peter Heffernan (Exhibit R2, page 6).
Ms Ryan contended that there is no evidence before the Tribunal that Mr Jones suffers from obstructive sleep apnoea. She submitted that Mr Jones gave evidence that he had been tested for sleep apnoea and that the results revealed he did not suffer from the disorder. Ms Ryan submitted further that Dr Horsley agreed in her evidence-in-chief and cross-examination that for a diagnosis of sleep apnoea to be made, confirmation would be needed from a sleep study or other appropriate test. Ms Ryan submitted there is no evidence before the Tribunal of such a confirmation.
I note the evidence of Dr Horsley that in attributing the condition of sleep apnoea to Mr Jones she relied on his own history. She had no access to any results. Dr Horsley also said that had there been a diagnosis of sleep apnoea she would expect it to have been recorded. I note there is no such record.
The closest Dr Horsley’s evidence comes to a diagnosis of sleep apnoea is her statement that Mr Jones’s history was clinically suggestive of sleep apnoea. She qualified that opinion by adding that the condition may be a sleep disorder and not sleep apnoea.
I am not satisfied from the evidence that Mr Jones suffers from obstructive sleep apnoea and I find accordingly. Consequently, I find that obstructive sleep apnoea does not contribute to any incapacity that prevents Mr Jones from undertaking remunerative work.
Diabetes Mellitus
Mr Rudge made no specific submissions regarding diabetes mellitus.
Ms Ryan submitted there was no evidence before the Tribunal that Mr Jones suffers from diabetes. She referred to the evidence of Mr Jones, who denied he has ever been diagnosed with diabetes, although he said he was on the cusp of diabetes. She referred to Dr Thomas’ evidence that the fact that Mr Jones had positive reflexes in his lower limbs militated against a diagnosis of diabetes. Ms Ryan also referred to Dr Horsley’s evidence that Mr Jones had told her that he had been diagnosed with diabetes. Dr Horsley accepted that if that history was erroneous then her statement that Mr Jones suffered from diabetes could not be maintained.
I am not satisfied from the evidence that Mr Jones suffers from the condition of diabetes mellitus and I find accordingly. Consequently, I find that diabetes mellitus does not contribute to any incapacity that prevents Mr Jones from undertaking remunerative work.
Daytime Somnolence
Mr Rudge made no specific submissions relating to daytime somnolence. He submitted that incapacity from obstructive sleep apnoea contributes to preventing the applicant from undertaking the relevant remunerative work. Mr Rudge was relying on Dr Horsley’s opinion, which connected daytime somnolence with obstructive sleep apnoea. I accept that Mr Rudge’s submissions relate also to daytime somnolence.
In his written submissions, Mr Rudge did not elaborate on the way in which the contended incapacity contributed to Mr Jones’s incapacity to undertake his last paid work. In his oral submissions, Mr Rudge contended that the daytime somnolence contributed to a general feeling of being unwell which prevented Mr Jones from working or made work more difficult.
Ms Ryan submitted that Mr Jones’s evidence was that he has an afternoon sleep three times a week because his feet hurt. Both Dr Thomas and Dr Horsley accepted that in light of Mr Jones’s poor night-time sleep, resulting from his psychiatric condition, his tinnitus and his pain from peripheral neuropathy, it was not surprising that Mr Jones has a nap in the afternoon a few times a week. Ms Ryan contended that the psychiatric condition, tinnitus and neuropathy were all accepted conditions.
Ms Ryan contended that Mr Jones’s daytime somnolence is not a factor that prevents him from continuing to undertake his last paid work. She submitted that when Mr Jones was last working he did not work in the afternoons.
I note Mr Jones’s evidence that he started lying down three afternoons a week only recently. He said he moves away from the television to lie on the bed because of the pain in his feet and to think about things. Mr Jones was emphatic that his afternoon rest does not prevent him from working.
Mr Rudge submitted that Mr Jones’s somnolence contributed to a feeling of being unwell which prevented his remunerative work. However, there is no evidence from any of the treating doctors that Mr Jones was prevented from working even if he felt unwell. Mr Jones’s evidence, which was not contradicted, was that he chose to take an afternoon rest on three days a week. There was no evidence that he could not choose differently if there was work to be done.
The only evidence on whether Mr Jones’s somnolence is a contributing factor to an incapacity that prevents his remunerative work comes from Dr Horsley. In her written report (Exhibit R2) Dr Horsley records on page 10 that [t]he onset of his peripheral neuropathy … has directly resulted in a worsening of his obstructive sleep apnoea on history, and resulted in the diagnosis of non insulin dependent diabetes mellitus which further add to his general feelings of unwellness, daytime somnolence and impact upon capacity for work. I have already found that Mr Jones is not shown to suffer from sleep apnoea and diabetes mellitus. Accordingly, they do not impact on his capacity to undertake remunerative work.
In her oral evidence, Dr Horsley linked Mr Jones’s somnolence to lethargy and a general feeling of being unwell. She did not, however, elaborate on how they impacted on his capacity to undertake remunerative work. Mr Jones may feel disinclined to work on those three afternoons a week. However, that does not prevent or contribute to prevent him from undertaking remunerative work. The incentive to work is separate from the capacity to work. Without further evidence I do not accept that Mr Jones’s general feeling of being unwell and his daytime somnolence impact upon his capacity for work.
In the absence of evidence to the contrary, I accept Mr Jones’s evidence that his afternoon rests do not prevent him from undertaking his remunerative work and I find accordingly. I find further that there is insufficient evidence that somnolence is a factor that contributes to an incapacity that prevents Mr Jones from undertaking remunerative work.
SUMMARY
There is undisputed evidence that Mr Jones is prevented from working more than eight hours per week because of his war-caused conditions of alcohol abuse, anxiety disorder, and small fibre neuropathy.
I have found that Mr Jones does not have sleep apnoea and diabetes mellitus. Accordingly, these conditions do not contribute to preventing him from undertaking remunerative work.
In regard to daytime somnolence, I have found there is insufficient evidence that it is a factor that contributes to prevent Mr Jones from undertaking remunerative work.
Accordingly, I find that Mr Jones is prevented from continuing to undertake his remunerative work because of incapacity from his war-caused injuries alone. I find that he satisfies the provisions of section 24(2A)(d) of the Act.
DECISION
I set aside the reviewable decision and remit the matter to the Respondent to determine Mr Jones’s entitlements in accordance with the findings in this decision.
I certify that the preceding 97 (ninety seven) paragraphs are a true copy of the reasons for the decision herein of Mr C Ermert, Member
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Associate
Dated 23 February 2015
Dates of hearing 12 August 2014 & 8 December 2014 Advocate for the Respondent Mr K Rudge, Department of Veterans’ Affairs Counsel for the Applicant Ms F Ryan, Williams Winter Solicitors
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