Blandthorn and Military Rehabilitation and Compensation Commission (Veterans' entitlements)

[2019] AATA 6816

Blandthorn and Military Rehabilitation and Compensation Commission (Veterans' entitlements) [2019] AATA 6816 (30 October 2019)

Division:VETERANS' APPEALS DIVISION

File Numbers:2017/5269 & 2019/2374         

Re:Brian Blandthorn  

APPLICANT

Military Rehabilitation and Compensation CommissionAnd  

RESPONDENT

DECISION

Tribunal:Mr A. Maryniak QC, Member

Date of decision:               30 October 2019

Date of written reasons:         15 May 2020

Place:Melbourne

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decisions under review dated 31 July 2017 and 22 March 2019.

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

Mr A. Maryniak QC, Member

Catchwords

MILITARY COMPENSATION – whether the ailment or aggravation of an ailment was materially contributed to by the applicant’s employment – obesity – dental caries – decisions under review affirmed

Legislation

Safety Rehabilitation Compensation (Defence-related Claims) Act 1988

REASONS FOR DECISION

Mr A. Maryniak QC, Member  

15 May 2020

1. At the conclusion of the hearing of this matter, the terms of the decision intended to be made and the reasons therefore were stated orally.

2. The oral reasons for the decision have been transcribed by Epiq Australia Pty Ltd.  On 31 March 2020, the Respondent requested a copy of this transcript.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3. An extract of the said transcript is Annexure “A” hereunto and furnished to the Applicant and to the Respondent.

I certify that the following 51 (fifty-one) paragraphs are a true copy of the reasons for the decision of Mr A. Maryniak QC, Member.

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

Associate

Dated: 15 May 2020

Dates of hearing:	23 January and 28-30 October 2019.
The Applicant:	In person
Advocate for the Respondent:	Ms N McGowan
Solicitors for the Respondent:	Australian Government Solicitor

ANNEXURE A

EXTRACT OF TRANSCRIPT PROCEEDINGS

1. MEMBER:  The Applicant has brought two applications to the Tribunal.  By the first application dated 18 August 2017 the Applicant seeks review of a decision of the Respondent dated 31 July 2017.  The Respondent affirmed a determination dated 24 October 2016 which denied liability to pay compensation for obesity.

2. The issue for the Tribunal to determine is whether the Applicant’s obesity has been materially contributed to by his military service.  On the evidence before the Tribunal, the Applicant is submitting that it has, and the Respondent is denying, this association or link or contribution.

3. The Applicant was born on 3 February 1971 and enlisted in the Royal Australian Navy on 4 February 1991, initially in general duties, and then as a Navy medic.  The Applicant discharged from the Navy on 15 December 1998 having attained the rank of able seaman.

4. On 16 December 2016 the Applicant submitted a compensation claim in respect of obesity.  The Applicant claimed that his morbidly obese state was because he could not exercise or move around properly, and it was just getting worse:

   I’m eating the right foods and I’m not asking the Respondent to pay for food, but the doctor can prescribe meds to help me lose weight without exercise.

5. On 24 October 2016 the Respondent denied liability for obesity as the evidence failed to establish the Applicant’s obesity was materially contributed to by his employment by the Royal Australian Navy.

6. The Applicant has had a series of earlier accepted conditions and claims.  Claims that have been accepted over the years have resulted in compensation payouts, including: a payout for both knees of some $34,632.37, anterior disc rupture at the L3/L4 level of $35,186.33, bilateral knee at $18,106.59 and bilateral knee at $26,911.39, depressive disorder/anxiety disorder at $19,600.65, and right partial tears of ligamus medius of $37,156.07.  There have been also various claims that have been not accepted by the Respondent over the years.

7. More recently on 27 July 2017 the Applicant submitted a claim for compensation in respect of opioid dependency and long-term adverse effects.  The Applicant claims the condition was a result of medications prescribed for chronic pain for accepted conditions, namely opioids. 

8. On 17 January 2018 the Respondent determined that it was liable to pay compensation to the Applicant for his claimed substance use disorder condition pursuant to section 14 of the Act, the relevant Act being the Safety Rehabilitation Compensation (Defence-related Claims) Act 1988.  The onset date of 18 December 2017 is consistent with the date of the confirmed diagnosis.

9. On 27 July 2018 the Applicant submitted a claim for compensation in respect of tooth loss, dental issues.  The Applicant claims the condition is a result of morphine use for injuries.

10. On 5 June 2018 the Respondent amended the Applicant’s accepted condition to opioid use disorder.  On 6 February 2019 the Respondent issued a determination accepting liability for the Applicant’s aggravation of dental caries with effect from 18 December 2017.

11. On 7 February 2019 the Applicant wrote to the Respondent requesting a permanent impairment assessment for opioid use disorder and, if applicable, for aggravation of dental caries.

12. On 22 March 2019 the Respondent affirmed the determination of 6 February 2019.  The Respondent was satisfied that the date of onset for the aggravation of dental caries was 18 December 2017 being the date of onset of substance use disorder.

13. On 27 March 2019 the Respondent determined that it was not liable to pay permanent impairment compensation to the Applicant in respect of his accepted condition of aggravation of dental caries pursuant to sections 24 and 27 of the Act.  The decision was made on the basis that there was no assessable impairment.

14. By his second application dated 1 May 2019 the Applicant seeks review of a decision of the Respondent dated 22 March 2019.  On that date the Respondent affirmed a determination dated 6 February 2019 which accepted liability to pay compensation for aggravation of dental caries with effect from 18 February 2017.

15. The Respondent has accepted liability for aggravation of dental caries.  The issue for the Tribunal to determine in respect of the second application is the date of effect or onset of the aggravation.  The Respondent has determined the date of effect of the aggravation is 18 December 2017.  The Applicant claims that the date of effect is the start of his morphine use and/or 16 or 10 years earlier.

16. The Tribunal has considered the submissions of the parties together with the written and oral evidence before it.  The Tribunal has heard from the medical witnesses called by each party: Dr Toom, general practitioner of the Applicant, and Dr Lee, the Applicant’s dentist, and Dr Barton, occupational physician, and Dr Bowman, consultant dentist on behalf of the Respondent.  They, together with the Applicant, have been cross-examined and questioned by the Tribunal.

17. On the basis of such evidence including consideration of the written medical evidence before the Tribunal, the Tribunal finds that the medical evidence called by the Respondent is compelling, but more importantly the medical evidence called on behalf of the Applicant is equivocal at best and rises no higher than conjecture or possibilities.

18. On balance, the Tribunal finds that the Applicant does in fact walk, can and has been going to the gym on occasion, can and has completed various rehabilitation programs including physiotherapy, swimming and hydro-therapy.  The Applicant also gave evidence that he played rugby during his service even after his injuries to his knees and back.

19. The Applicant has been overweight over a long period of time, and his weight has fluctuated during an extended period.  During the Applicant’s employment he was referred to a dietician who recorded the Applicant’s diet was excessive in fat and inadequate and recommended less meat, and to reduce takeaways and fatty intake.

20. At least six doctors have also recommended over the years, in addition to losing weight, that the Applicant mobilise, be active and exercise.  The Applicant’s own GP management plans record:

    Weight loss:  follow dietary recommendations, increase daily exercise activity, review diet education, encourage exercise and develop strategies for increasing same.  Refer to dietary review if not losing weight.

21. The Applicant’s weight has also fluctuated with occasional weight loss after being prescribed Duromine.  The Applicant has, however, regained weight after ceasing Duromine because he has not made changes to his diet.  He gave evidence to the effect that:

    With the assistance of drugs that’s not changing my diet, that’s not doing anything differently, that is just the drugs working, and then once they stopped I don’t change my diet and the weight goes back on.

22. The Applicant gave evidence that he does not monitor his diet by way of a calorie count or a food diary, and has otherwise not adopted any formal diet such as the CSIRO diet.

23. The Tribunal notes the evidence of Dr Stevenson which was accepted or agreed with by Dr Barton, and in Dr Stevenson’s report of 21 October 2016 he said, inter alia:

    Obesity is not caused by inability to exercise.  Obesity is caused by habitual ingestion of calories in excess of need, a long-term pattern of behaviour where more food is eaten than is necessary.  Modest exercise is beneficial for general health to burn off calories.  An obese person walking for an hour expends about 100 to 180 calories.

24. And the Tribunal notes that in the opinion of Dr Barton in his report of 6 April 2018 he does not accept that the Applicant’s obesity has been caused by his employment in the Navy or a soliloquy of any of the accepted medical conditions.

25. Dr Barton was of the view that the Applicant simply eats more food than he needs to; that he needs to be advised to eat less.  While exercise may assist with weight loss, the amount of exercise required produces only marginal weight loss levels.  As an example, it is far easier not to eat a small chocolate then walk for one or two hours that may be required to burn off the calories gained from eating that chocolate bar.

26. On the evidence, the Applicant has and is able to continue exercising at the gym.  He has simply chosen not to continue because the Respondent will not pay for it.  He claims that he cannot afford the gym but his assertion must be viewed in light of the fact of recent purchases of a boat, a jet ski and a four-wheel drive.  And the Tribunal notes the previous compensation payouts received by the Applicant.

27. Also on the evidence, the Applicant is able to exercise in a pool.  He has chosen not to because the Respondent will not pay for it.  And the Tribunal notes that the Applicant has a pool in his back yard but he also chooses not to use that.

28. The Tribunal notes the medical records regarding the Applicant are replete with recommendations that the Applicant pursue various exercise regimes, monitor and implement diets, limiting food intake, and related forms of self-help unfortunately to no avail.

29. The consequences of the Applicant’s behaviour in this regard rests with him, and is in no way linked or materially contributed to by his time or any injuries sustained whilst with the Royal Australian Navy.  By his own evidence the Applicant has not pursued any of the dietary or exercise regimes suggested over the years in any disciplined fashion or at all.

30. Similar observations are applicable with respect to the Applicant’s dental records which are replete with notations as to poor dental hygiene and neglect on behalf of the Applicant and recommendations that the Applicant improve his dental hygiene, those records extending over a number of years.

31. With respect to the obesity claim the Applicant’s GP, Dr Toom, gave evidence on the Applicant’s behalf.  The value of Dr Toom’s evidence was undermined by his lack of knowledge of the Applicant’s food and calorie intake and his concession that it was impossible to monitor the Applicant’s food intake even if he had been minded to do so.  Dr Toom said it was hard to say why the Applicant was obese but he had told the Applicant that diet was important.  He said the Applicant’s case was complex, however, he was unaware of the history of the Applicant’s BMI and weight gain and loss including that it was 29.1 when he enlisted in 1991.

32. On balance, the result of Dr Toom’s evidence was that he really could only put a range of possibilities as to the cause of the Applicant’s obese state before the Tribunal by way of evidence. 

33. Under cross-examination the Applicant indicated that he did do exercise from time to time particularly when it was associated with regimes previously paid for by the Respondent or associated with in or outpatient treatment plans in the past.  He stated that he stopped one form of exercise, as I’ve indicated, when the Respondent stopped paying for it.

34. The Tribunal finds that the Applicant is capable of doing various forms of exercise whether he is motivated to or elects to exercise as has been recommended by various medical practitioners over the years.  It is ultimately a matter for him to choose.  No evidence before the Tribunal persuades it that the Applicant is incapable of exercising.

35. The Respondent tendered various relevant papers of the Applicant’s medical records from Wyndham House Clinic, which, together with other medical records before the Tribunal, form the basis of a weight chart chronology regarding the Applicant.

36. It is apparent from that chart and the Tribunal finds that both the Applicant’s weight and body mass index has fluctuated up and down during the periods April 1990 to April 2018.  Notably the Applicant’s BMI has fluctuated up and down within the range of 27.05 to 34.07 during that time.

37. The medical evidence relied upon by the Respondent supports the contention that obesity is caused by the habitual ingestion of calories and excessive need, a long-term pattern of behaviour becoming more prominent in Australia where an individual eats more food than is necessary.  Such evidence also establishes that exercise only has a limited impact in reducing obesity compared to dieting.

38. Whilst the Tribunal notes that the Applicant’s metabolism may possibly be affected by some of his medications, such fundamental influences on obesity remain valid.  In any event such other influences, such as medications, remain mere possibilities on the evidence before the Tribunal.  Put simply, by his evidence, the Applicant has not made out his case. 

39. The Applicant’s assertions regarding a purported link or material contribution between his obesity and his service with the Royal Australia Navy do not withstand close scrutiny.

40. The evidence before the Tribunal does not establish sufficient proof to support the Applicant’s case.  On balance the medical evidence relied on by the Respondent is more compelling.  Such evidence includes contemporaneous notes regarding the Applicant covering a number of decades.

41. On a consideration of the submissions and the evidence before the Tribunal the correct or preferable decision is the one made by the Respondent dated 31 July 2017.

42. The Tribunal finds that the Applicant’s obesity was not materially or significantly contributed to by the Applicant’s former employment with the Royal Australia Navy, and there was no liability pursuant to section 14 of the Safety Rehabilitation Compensation (Defence-related Claims) Act 1988.

43. The Tribunal affirms the decision under review dated 31 July 2017.

44. With respect to the proposed change of date for the aggravation with respect to the teeth claim, critically Dr Lee’s oral evidence before the Tribunal varied substantially from the opinions he had expressed in his two written reports.  Essentially in oral evidence-in-chief he stated that there was no clear connection between morphine use and dental side effects, but it cannot be said that there is a cause and effect relationship between the two, and he could not say there was a direct relationship.  Rather he simply accepted that morphine use and detrimental dental side effects cannot be ruled out.

45. The value of Dr Lee’s evidence was further limited by his lack of access to the Applicant’s extensive dental records history and the fact that Dr Lee had only commenced treating the Applicant in August 2018.

46. Dr Bowman was of the opinion that the formulation of large amounts of calculus, as described in the Applicant’s dental records, required a good quality and quantity of oral fluids, and that condition with respect to calculus cannot occur or does not occur in a state of dry mouth.  Further he noted that the first time xerostomia is recorded by Dr Lee as a result of medication is 4 December 2018.

47. On balance after considering all of the evidence before the Tribunal, including what Dr Bowman states in his report, namely that as dental caries is not a condition of spontaneous change and with a pre-existing history the basis for the advised date of 18 December 2017 was a considered opinion.  This represents a reasonable midpoint in time between the date of acceptance of opioid use disorder and the probable aggravation of pre-existing dental caries with the diagnosis of dental caries and dry mouth in the current condition dated 4 December 2018.

48. As there was no previous reporting of dry mouth or xerostomia or evidence to suggest its presence it is considered that there is no basis to support an earlier onset of aggravation.

49. The records consistently indicate a history of poor oral hygiene with the records from Goulburn Valley Health indicating significant periodontal disease as present in 2003.  This reflected upon continuation of poor oral hygiene during service period and from the start of service.  The record of poor oral hygiene is consistent with the diagnosis of chronic periodontal disease predating service period.

50. On the basis of all of the evidence before the Tribunal, on balance, the Tribunal finds that there is insufficient evidence to support a date of onset of the accepted claim for an aggravation of the Applicant’s dental caries any earlier than the date already determined by the Respondent.

51. The Tribunal affirms the decision under review dated 22 March 2019.