Davis and Military Rehabilitation and Compensation Commission (Compensation)
[2022] AATA 3590
•27 October 2022
Davis and Military Rehabilitation and Compensation Commission (Compensation) [2022] AATA 3590 (27 October 2022)
Division:VETERANS' APPEALS DIVISION
File Number: 2021/2475
Re:Andrew Davis
APPLICANT
AndMilitary Rehabilitation and Compensation Commission
RESPONDENT
Decision
Tribunal:Deputy President J Sosso
Date:27 October 2022
Place:Brisbane
The decision under review is affirmed.
....................[SGD]....................................................
Deputy President J Sosso
Catchwords
VETERANS’ AFFAIRS — hiatus hernia — date of clinical onset — whether Veteran was obese for the two year period prior to clinical onset — SoP No. 61 of 2022 — SoP No. 69 of 2014 — decision under review affirmed
Legislation
Military Rehabilitation and Compensation Act 2004 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
Cases
Costello and Secretary, Department of Transport (1979) 2 ALD 934
Kaluza v Repatriation Commission [2011] FCAFC 97
Lees v Repatriation Commission (2002) 125 FCR 331
Re Marshall and Repatriation Commission (2000) 62 ALD 732
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Repatriation Commission v Knight (2012) 202 FCR 451
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Re Witten and Repatriation Commission (1998) 54 ALD 605
Youngnickel v Repatriation Commission [2004] FCA 1691
Secondary Materials
Australian Government, Repatriation Medical Authority, ‘Explanatory Statement, Statement of Principles Concerning HIATUS HERNIA (Balance of Probabilities) (No. 61 of 2022)’
Australian Government, Repatriation Medical Authority, ‘Statement of Principles
Concerning HIATUS HERNIA (Balance of Probabilities) (No. 61 of 2022)’, 24 June 2022
Australian Government, Repatriation Medical Authority, ‘Statement of Principles
Concerning HIATUS HERNIA (No. 69 of 2014)’, 20 June 2014
REASONS FOR DECISION
Deputy President J Sosso
27 October 2022
INTRODUCTION
Mr Andrew Davis (the Veteran) seeks a review of a decision of the Veterans’ Review Board (the Board) of 19 March 2021, which affirmed a decision of the Military Rehabilitation and Compensation Commission (the Respondent), that found that the Veteran is not entitled to compensation for hiatus hernia pursuant to s 23 of the Military Rehabilitation and Compensation Act 2004 (Cth) (the Act) – Exhibit 1 T23 p. 172 – 179.
The Respondent accepts that the Veteran has been diagnosed with hiatus hernia – Exhibit 6 p. 12 para 49.
The Act prescribes four kinds of service:
(a)warlike service;
(b)non-warlike service;
(c)peacetime service; and
(d)defence service.
Subsection 6(1) defines “defence service” to include all the other types of service. It is not disputed that during his period of service, the Veteran rendered defence service.
The only issue before the Tribunal is whether the Veteran’s claimed condition of hiatus hernia is defence-caused and, therefore, compensable pursuant to s 23 of the Act.
In determining this question, the Tribunal is required to consider Statement of Principles (SoP) No. 61 of 2022 – HIATUS HERNIA. SoP No. 61 of 2022 commenced on 25 July 2022 and replaced SoP No. 69 of 2014.
FACTS
The Veteran was born in August 1980 and is currently 42 years old – Exhibit 1 T1 p. 2.
The Veteran commenced service on 28 November 2011 with the Australian Defence Service in the Army Active Reserve and was discharged on 20 February 2019, being deemed medically unfit for service – Exhibit 1 T4 pp. 42 – 43.
On 4 February 2013, whilst undergoing field training at the Singleton Military Training Area, the Veteran injured his right ankle when he stepped on a rock. He continued walking but experienced pain. His ankle was taped, and he continued with field training, but ongoing pain and instability resulted in him being sent back to the Barracks. The Veteran was subsequently sent home and was treated by a General Practitioner who ordered an X-ray and he started physiotherapy – Exhibit 1 T3 pp. 32, 38.
The Veteran provided the following account of this incident in a “Defence WHS Incident Report – Initial Incident Report” – Exhibit 1 T6.9 p. 71:
“Section was returning from a Patrol objective by night, and during this activity utilising NVG, I walked into a small creek onto uneven surface and rolled right ankle outwards. Due to the location of incident I was required to continue Patrol to Section Location approximately 1 km away. I was picked up by Medics and strapped at the OP the following morning and returned to the field. I was removed from the field at approximately 2300 hrs Wednesday 06 Feb 13 and moved to RAP F Block…”
The Veteran’s condition did not improve, and, in March 2013, he was referred to an Orthopaedic specialist in Rockhampton. From that time, he was conservatively managed, receiving physiotherapy and undergoing light exercise. Although he was able to “ramp up” fitness, it caused him pain, but he was able to run 5 km – Exhibit 1 T3 pp. 32, 38.
An MRI scan in May 2015 indicated a longitudinal split peroneus brevis tendon and anterior migration of peroneus longus tendon. Surgery was performed on 1 June 2015, and the Veteran had to wear a moonboot and undergo physiotherapy. The Veteran, subsequently, was able to walk about 500 metres on a treadmill before experiencing pain, but was unable to run – Exhibit 1 T3 pp. 32 – 33, 38 – 39.
According to Army medical records in 2015, the Veteran was working as a safety management consultant, which was recorded as being a “civilian white collar job” – Exhibit 1 T3 p. 39.
A service medical record of 7 December 2015 prepared by Dr (Captain) James Savage, records that the Veteran was having physiotherapy approximately three times each fortnight, and had started to run but was not stable uphill or on uneven ground or on lunging. It was noted that the Veteran was making good progress but “requires further time on MEC restriction” – Exhibit 1 T3 p. 37.
A service medical note of 24 August 2016 records that the Veteran “is still in a moonboot; he will need CMECR” – Exhibit 1 T3 p. 37.
The Veteran was assessed for rehabilitation at the Enoggera Health Centre on 14 September 2016. So far as is relevant, the following notes were made of the assessment – Exhibit 1 T3 pp. 35 – 36:
“Member has continued to raise issues and lodge compliants [sic]; this has resulted in difficulties with addressing the issues as by the time one is resloved [sic] it it [sic] further confused with another. Member claim for reserve days for Jan / Feb are denied as Member has been able to attend civilian employment [sic] and hence not claim able as it is double dipping. Member is still wanting DVA to pay for him to attend SRC; this was discussed in the IWB and we were given to understand that it was resolved. Plan forward it is re-convene IWD with DVA AD, Unit and Accompanied by case manager.
Member is currently in a moon boot and unable to do his ususal [sic] work as a safety management consultant as he is unable to drive and unable to visit work sites…”
On 30 September 2016, Dr Paula Pryor, at the Enoggera Health Centre, assessed the Veteran. She noted that the Veteran reported that his right ankle pain had improved significantly with the use, over the prior four weeks, of a hinged brace. Further, the Veteran reported that he was mobilising quite well and could manage steps, but did experience pain with narrow steps. The Veteran also reported that he was not experiencing pain while at rest except for a dull ache at the end of each day. Dr Pryor determined that the Veteran was exempt from physical fitness testing and combat fitness testing, as well as being unfit for ceremonial parades, swimming or water based activities. Further, she recommended no marching or route marches – Exhibit 1 T3 p. 34.
The Veteran underwent a Periodic Health Examination (PHE) on 16 November 2016 and was assessed by Dr Pryor. Dr Pryor determined that the Veteran was fit for full duties within the then current MEC/SPEC and Restrictions, and made the following notes – Exhibit 1 T3 p. 30:
“Member has had improvement with use of hinged brace
He has seen Dr Lutz on 4/11/16; noted significant improvement but ache at end of day and attempts at running noted right leg muscle atrophy; recommended member to continue with use of brace and physio discharged him from his care
Member attending new exercise physiologist; seeing weekly; also physio weekly
Sttill [sic] awaitng [sic] MECRB determination; interseted [sic] in Corps transfer from Infantry to less physically demandig [sic] Corps such as Military Police in the future”.
On 27 January 2017, Dr Pryor, again, assessed the Veteran, and noted ongoing improvements in his condition – Exhibit 1 T3 p. 29:
“…He has had significant improvement since using hinged brace which was just commenced at time of CMECR
H[e] still does experience some aching in right ankle at end of day but it does not impact on his functionality
He has seen physio and functional assessment on 5/2/16 which showed improvement over the last 3 months. Exercise physiologist has tested him on 24/1/17 and noted that he completed 30 modified push ups, 50 sit ups and performed a 2.4km run in 15min 26 secs”.
The Veteran was assessed again on 31 January 2017, and most of the restrictions determined by Dr Pryor were kept in place – Exhibit 1 T3 pp. 29, 33.
On 25 May 2017, rehabilitation closed – Exhibit 1 T3 p. 28.
A final file note by Dr Pryor of 22 September 2017 contains the following information – Exhibit 1 T3 p. 28:
“He continues to wear ankle brace and experiences no ankle pain
He is running again and completed Bridge to Brisbane 10 kg [sic] run and 14 km City to Surf in August with no ankle pain”.
The Veteran’s weight and BMI during his service history is contained in various documents in Exhibit 1. The Entry Level Medical Examination discloses that, on 29 September 2010, the Veteran had a BMI of 27.96 and weight (it appears) of 91.6 kg – Exhibit 1 T3 p. 17. By 28 November 2011, the Veteran’s BMI had dropped to 25.66 and his weight to 85 kg – Exhibit 1 T3 p. 21.
The Veteran’s BMI was recorded as 25 – 29 and his weight as 92 kg on 16 November 2016 – Exhibit 1 T3 p. 28.
The Tribunal was presented with 433 pages of summonsed material, mostly non-service medical records. At the Hearing, the Veteran, through his representative, objected to the admission of that material into evidence as it contained information of a personal and potentially embarrassing nature. I agreed not to admit all of the summonsed material into evidence. However, I did admit into evidence the briefing letters to Dr Mark Norrie which refer to specific and relevant material in the summonsed material relating to the Veteran’s weight and BMI. The Tribunal, accordingly, is able to rely on the information contained in the briefing letters, which are marked as Exhibits 2 and 4.
First, Dr Norrie was briefed with the entire summonsed records of MyHealth, Wellington Point – Exhibit 2 pp. 8 – 9. Those records disclose the following BMI notes – Exhibit 2 p. 8:
(a)28 November 2011, BMI 24.8;
(b)16 January 2019, BMI 30.7; and
(c)23 December 2019, BMI 32.1.
Second, the summonsed records of Brisbane Private Hospital disclose that, on 23 and 25 August 2019, the Veteran’s BMI was noted as 32 and his weight was 107 kg – Exhibit 2 p. 9.
Medical evidence
The Tribunal was presented with two reports from Dr Norrie, gastroenterologist, of 13 January 2022 and 9 February 2022 – Exhibits 3 and 5. Both reports were based on briefed written material, as Dr Norrie did not personally examine and assess the Veteran.
As will be discussed below, some of Dr Norrie’s opinions in his first report were based on an incorrect reading of times when the Veteran obtained certain BMI results. As a result of this mistake, Dr Norrie was asked further clarificatory questions and prepared a supplementary report.
In his first report, Dr Norrie gave the following diagnosis of the Veteran’s current condition, and any conditions he had suffered in the past – Exhibit 3 p.4:
“Mr Davis suffers from oesophagus reflux without evidence of reflux oesophagitis. Whilst he may have a hiatus hernia, the relevance of this is that it predisposes to reflux symptoms. Per se it is not relevant in the sense that one may have a hiatus hernia without symptoms, or conversely one may have reflux without a hiatus hernia, but certainly the presence of a hiatus hernia does predispose an individual to reflux symptoms.
There are not any secondary conditions or aggravation of underlying conditions.”
Next, with respect to the clinical onset of hiatus hernia, Dr Norrie opined as follows – Exhibit 3 p. 4:
“The earliest diagnosis that a hiatus hernia was diagnosed was when the gastroscopy was performed on 17 July 2019.
It is possible that Mr Davis may have had the hiatus hernia prior to that…”
While Dr Norrie opined that the Veteran may have had a hiatus hernia prior to 17 July 2019, he gave a somewhat different opinion when answering the next Question posed – Exhibit 3 p. 5:
“…the diagnosis of the hiatus hernia was made when the gastroscopy was performed by Dr Leisa Barrett.
It is likely that he had the hiatus hernia prior to that and certainly had symptoms of oesophagus reflux, which is the more relevant issue, prior to the date of the gastroscopy..”
Dr Norrie agreed that the Veteran’s condition satisfied the definition of hiatus hernia in the relevant SoP – Exhibit 3 p. 5:
“Mr Davis had a gastroscopy performed on 17th July 2019 and a two-centimetre hiatus hernia was diagnosed by Dr Leisa Barrett. As described in 3(b), this satisfies the definition of an acquired protrusion of the part of the abdominal viscera into the mediastinum through the oesophageal hiatus of the diaphragm.”
Next, Dr Norrie was asked if, in his opinion, the Veteran was obese for a continuous period of 2 years prior to the clinical onset of hiatus hernia – Exhibit 3 p. 5:
“According to the record of Mr Davis’ body mass index, he was obese for a period of at least 17 months prior to the diagnosis of a hiatus hernia on the 17 July 2019. His BMI on 13 February 2018 was 30.88 and 11 January 2019 was 32.1.
It is possible that he may have been obese continuously for a period of two years. His BMI was recorded on 28 November 2016 at 26.88 and this was two years and eight months prior to the diagnosis of a hiatus hernia and 15 months prior to when he was first documented to be obese, but he would have had to had a substantial weight gain over eight months in order to have been continuously obese for a period of two years.”
Dr Norrie opined that the Veteran was, and is, obese, but the cause of his obesity was multifactorial, with inability to exercise only being one component. Other factors included dietary intake and a predisposition to gaining weight with advancing age with the slowing of the metabolic rate. Dr Norrie made the following observations – Exhibit 3 p. 6:
“Whilst regular exercise and activity may be a factor in reducing the BMI, weight gain, as previously stated, it is usually multifactorial, and is also mainly related to food intake. It was noted in the notes that Mr Davis had at one stage consumed soft drinks and comfort food, and this would certainly contribute to his body mass index gain.”
Based on the material he was briefed with, Dr Norrie opined that the Veteran’s weight gain between 2011 and 2020 was incremental. Further, based on the balance of probabilities, “it seems improbable that Mr Davis had a BMI of 30 or above for a continuous period from July 2017, in that his BMI was just in the obese category seven months later on 13 February 2018 at 30.88 and eight months prior, he was overweight but not obese with a BMI of 26.88 on 16 November 2016” – Exhibit 3 p. 7.
Finally, Dr Norrie gave the following opinion – Exhibit 3 p. 7:
“On the balance of probabilities, although it is not specifically recorded, I consider it is unlikely that Mr Davis had a BMI of 30 or above for a continuous period of two years before the onset of his hiatus hernia.”
The Respondent sought a supplementary file review report from Dr Norrie – Exhibit 4. It was pointed out to Dr Norrie that his answers were based on the understanding that the Veteran’s BMI was 30.88 on 13 February 2018 and 32.1 on 11 January 2019. However, the Veteran’s BMI was 30.88 on 13 December 2018, and not 13 February 2018, and his BMI of 32.1 was recorded on 23 December 2019, and not 11 January 2019 – Exhibit 4 p. 10.
Dr Norrie was asked, firstly, if this changed his opinion about the length of time the Veteran was likely obese prior to the diagnosis of hiatus hernia. The response of Dr Norrie was as follows – Exhibit 5 p. 2:
“Mr Davis had an endoscopy performed on 17 July 2019 and a hiatus hernia was diagnosed at that time. Thus, in order for him to have been obese for a period of two years prior to this diagnosis, he would have to have been obese on or before 17 July 2017. My opinion in my report dated 13 January 2022 was that it was possible that he could have been obese for a period of two years prior to the diagnosis of a hiatus hernia. However, based on a recorded BMI of 28.1 on 13 November 2017 and his BMI being recorded as being obese for the first time on 13 December 2018 at 30.68, it was not possible for him to have been obese for a period of two years prior to the diagnosis of a hiatus hernia. He was recorded as being obese for a period of only seven months.”
Dr Norrie was next asked, having regard to the information provided, whether this changed his opinion as outlined in his 13 January 2022 report about the length of time the Veteran was likely obese prior to the diagnosis of his hiatus hernia – Exhibit 5 pp. 3 – 4:
“Mr Davis had a reported Body Mass Index of 26.88, in the overweight range, on 16 November 2016. Another recording by Dr Keen on 13 November 2017 recorded a BMI of 28.1. This latter recording was therefore within the two-year timeframe from when he was diagnosed with the hiatus hernia. A BMI recorded on 13 December 2018 recorded a BMI of 30.68 which is defined as obese. However, based on the BMI recordings in the file notes, he was not obese for a period of two years prior to the diagnosis of the hiatus hernia. He was thus only obese for a period of seven months prior to the diagnosis of the hiatus hernia and, therefore, he does not fulfil the criteria in the SOP for being obese for a continuous period of two years prior to the clinical onset and diagnosis of the hiatus hernia.
This therefore modifies the response given in section 5a of Question 5 in the first report dated 13 January 2022. It is recorded in the notes that Mr Davis had an ankle injury in 2013. He had surgery in 2015 and was diagnosed with right perineal tendinopathy. He saw various specialists and a Physiotherapist for pain, and at one stage, was in a moonboot. He did have intermittent episodes of time when he was not able to exercise fully, but it was also recorded that he did well with rehabilitation and was able to exercise outside these times.
In regard to Question 5b, there is no change to my statement that Mr Davis is and was obese and that the cause of obesity is multifactorial. However, because Mr Davis was only stopped from exercising intermittently due to pain from his injuries, this would have been a minor component in his weight gain.
…
In response to Question 5d, Mr Davis was only recorded to be obese for a period of seven months prior to the diagnosis of the hiatus hernia and not 17 months, as I wrote in my report, and certainly not the required 24 months… In my report, I stated that I thought it improbable that he had been obese for a continuous period of two years prior to the diagnosis of a hiatus hernia. In fact, based on the BMI recordings as mentioned above, it was not possible that he was obese for a period of two years prior to the diagnosis of a hiatus hernia.”
THE LAW
Subparagraph 23(1)(a) of the Act provides that the Respondent must accept liability for a disease contracted by a person if the disease is a service disease under s 27 of the Act.
“Disease” is defined in s 5(1) as follows:
“(a) any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b) the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c) the aggravation of such an ailment, disorder, defect or morbid condition; or
(d) a temporary departure from:
(i) the normal physiological state; or
(ii) the accepted ranges of physiological or biochemical measures;
that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels).”
The term “service disease” is defined by s 27. So far as is relevant, a disease contracted is a service disease if one or more of the following apply:
(a)the disease resulted from an occurrence that happened while the person was a member rendering defence service;
(b)the disease arose out of, or was attributable to, any defence service rendered by the person while a member;
(c)the disease would not have been contracted but for the person rendering defence service while a member or changes in the person’s environment consequent upon the person rendering defence service while a member;
(d)the disease was contracted while the person was a member rendering defence service, but did not arise out of that service, or was contracted before the commencement of a period of defence service while a member, but not while the person was rendering defence service; or
(e)the disease resulted from an accident that occurred while the person was travelling, while a member rendering peacetime service on a journey to a place for the purpose of performing duty or away from the place of duty upon having ceased to perform duty.
The standard of proof applicable to this matter is prescribed by s 335(3), namely, reasonable satisfaction.
Neither the Veteran, nor the Respondent, bears any onus of proving any matter that is, or might be, relevant to the determination of the claim – s 337.
Reasonable satisfaction is to be assessed in this matter by reference to the relevant SoP – s 339. As previously noted, the applicable SoP in this matter is No. 61 of 2022 which commenced on 25 July 2022. Much of the evidence presented was framed on the wording of the previous SoP, No. 69 of 2014. Insofar as there are differences between the two SoP’s, they will be discussed below.
SoP’s are determined by the Repatriation Medical Authority. SoP’s, as the Respondent submitted (Respondent’s Closing Submissions (RCS) p. 2 – 3 para 9), are designed to be “stand-alone” instruments which remove purely medical issues from determination by decision-makers. The Tribunal’s attention was drawn to the following observations of the Federal Court in Repatriation Commission v Gosewinckel (1999) 59 ALD 690 at 704 – 705:
“Section 120A, and the associated provisions…were introduced in order to take the determination of ‘purely medical…issues’ out of the hands of bodies such as the Tribunal… Evidence which contradicts an SoP, or which proposes that a reasonable hypothesis may be raised by some factor not identified in the SoP, cannot alter the operation of the SoP in relation to any matter to which it is applicable…”
Pursuant to s 339(3), when determining a claim, a decision-maker can only be reasonably satisfied that a disease contracted by a person is a service disease if:
(a)the material before the decision-maker raises a connection between the disease and some particular defence service rendered by the person while a member;
(b)there is, in force, a SoP or determination of the Respondent under s 340(3); and
(c)the material, and, in this case, the SoP, upholds the contention that the disease is, on the balance of probabilities, connected with that service.
In this matter, the Veteran relies on Factor 9(3) of SoP No. 61 of 2022, namely, being obese for at least the 2 years before the clinical onset of hiatus hernia.
The term “being obese” is defined in Schedule 1 of SoP No. 61 of 2022 as “having a Body Mass Index (BMI) of 30 or greater.”
BMI is defined in Schedule 1 as follows:
“W/H2 where:
(a) W is the person’s weight in kilograms; and
(b) H is the person’s height in metres.”
Attention needs to be given to the term “clinical onset” as prescribed by Factor 9(3). It should be noted at the outset that this term is not defined in the Act; however, there are a number of Federal Court authorities that provide guidance on the proper application of this term.
In RCS p. 2 paras 7 – 8, the Tribunal’s attention was drawn, firstly, to observations of the Full Federal Court in Lees v Repatriation Commission (2002) 125 FCR 331. Set out below are the relevant paragraphs of the Full Court’s decision:
“13 The first ground raises for consideration the meaning of the expression ‘clinical onset’ in SoP1. It is an expression whose meaning has been considered by the Tribunal on several occasions including in Re Robertson and Repatriation Commission (1998) 50 ALD 668 and Re Witten and Repatriation Commission (1998) 54 ALD 605. It was also considered by Branson J in Repatriation Commission v Cornelius [2002] FCA 750. In that matter a veteran had engaged in repetitive work maintaining small arms and subsequently developed carpal tunnel syndrome. The relevant Statement of Principles provided that the clinical onset of the carpal tunnel syndrome had to be no more than 30 days after the repetitive work ceased. Her Honour said at [26]:
‘Before it could form the above opinion, the Tribunal was required to consider the meaning of the expression ‘clinical onset’ as used in clause 5(a) of the SoP. The Tribunal accepted the appropriateness of the approach adopted by the Tribunal in Robertson v Repatriation Commission (AAT 12666, 2 March 1998), namely that:
‘... there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present....’
By inference the Tribunal rejected the view of ‘clinical onset’ taken by Professor Sambrook in his report of 6 March 2001. Neither party challenged the appropriateness of the meaning which the Tribunal attributed to the expression ‘clinical onset’ in clause 5(a) of the SoP. For present purposes, therefore, Professor Sambrook's opinion that ‘[t]he earliest date of clinical onset of the carpal tunnel syndrome is 1993’ (see [8] above) may be disregarded.’
The opinion her Honour was referring to in the first sentence concerned whether the Tribunal was satisfied the material before it pointed to the relevant repetitive activities not having ceased more than 30 days before the clinical onset of the respondent's carpal tunnel syndrome.
14 The meaning of ‘clinical onset’ was also referred to by Weinberg J in Repatriation Commission v Gosewinckel (1999) 59 ALD 690 in the context of SoP 48 and generalised anxiety disorder. His Honour said (at 704 [64] and 704 – 705 [67] – [68]:
‘The SoP requires the presence of a number of distinct symptoms, of which ‘clinically significant distress’ and ‘restlessness or feeling keyed up or on edge’ are only part. Unless the symptoms referred to in cl 4(a)(i), at least three of (a)(ii)(A) to (F), and (a)(v) are all present, and the case does not fit within (a)(iii) and (iv), (b) and (c), it cannot be said, consistently with the medical-scientific standard prescribed by the SoP, that generalised anxiety was present.
The AAT cannot use the evidence of an expert to contradict or provide an alternative to the requirements of the SoP. Section 120A, and the associated provisions in Pt XIA of the VE Act were introduced in order to take the determination of ‘purely medical ... issues’ out of the hands of bodies such as the AAT – Explanatory Memorandum to Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994 at p 3. Evidence which contradicts an SoP, or which proposes that a reasonable hypothesis may be raised by some factor not identified in the SoP, cannot alter the operation of the SoP in relation to any matter to which it is applicable – see Deledio v Repatriation Commission at 411-2. An hypothesis that fails to fit within the template will be deemed not to be ‘reasonable’, and the claim will fail.
The hypothesis which the AAT found to be reasonable, namely, that the veteran experienced the clinical onset of generalised anxiety disorder within two years of experiencing a stressful event (ie within two years of the conclusion of the war) was not upheld by the relevant SoP. The AAT could not, therefore, have found that the hypothesis was reasonable, and was bound, on the material before it, to find that the veteran's generalised anxiety disorder was not war-caused.’
15 Counsel for the appellant submitted that in relation to a disease of gradual onset, which might include generalised anxiety disorder, one should approach the question of clinical onset within the two year period on the footing that it would be sufficient if only one of the prescribed symptoms may have manifested itself. It was submitted that this aspect of the applicable Statement of Principles was not directed to diagnosis but only causation.
16 However this approach overlooks the clear words of the applicable Statements of Principles and the function they perform in the legislative scheme. In relation to SoP1, the definition of ‘generalised anxiety disorder’ does not suggest that the disease exists if only some but not all of the symptoms (or features) are manifest. The exception to this statement is par C which provides that only three of the six specified symptoms are necessary for the disease to exist, though in the frequency and for the period identified. The purpose of the definition is to identify those symptoms (or features) which, if observed by a clinician, would warrant a conclusion that the patient suffered from generalised anxiety disorder. While it is true that Statements of Principles are directed to causation, the means of establishing the necessary link in SoP1 between disease and war service is to require that the symptoms (or features) of the disease are, in a case such as the present, revealed within two years of the veteran experiencing a severe psychosocial stressor (relevantly, during operational service). This is intended to establish sufficient proximity between the experiences during operational service and the manifestation of the disease to point to a causal link to sustain the hypothesis. In our view, the Tribunal did not err in its approach to the meaning of the expression ‘clinical onset’.”
As the above quotation highlights, the Full Federal Court endorsed a formulation made by the Tribunal in Robertson, that clinical onset of disease can occur either when:
(a)a person becomes aware of some feature or symptom which enables a doctor to say that the disease was present at that time; or
(b)a finding is made on investigation which is indicative to a doctor that the disease is present.
Nonetheless, there needs to be medical evidence to underpin a finding as to the timing of clinical onset. Clinical onset is not necessarily when a patient first attends on a doctor seeking medical treatment. The Full Federal Court in Kaluza v Repatriation Commission [2011] FCAFC 97, comprising McKerracher, Perram and Robertson JJ, said:
“51 The primary judge also noted (at [93]) that the definition in Lees emphasised the need for a determination of the clinical onset by medical evidence. Although it is for a doctor to say when the clinical onset occurred by the presence of features or symptoms, clinical onset was not necessarily when the patient first saw a doctor for medical treatment.
…
66 The test for clinical onset in Kaluza is disjunctive. The analogy given for Mr Kaluza was that a person might say 'I noticed [symptoms] in March last year but I didn't see a doctor until July'. If a doctor can say from the onset of those symptoms in March that that indicates the presence of disease at that time, that is the date of clinical onset. The other possibility is the finding which is made on investigation when a person actually attends upon a doctor who examines the person. That is why the Full Court, in adopting the approach of Branson J at first instance in Lees, explained that the purpose of the definition was to identify those symptoms or features which ‘if observed by a clinician, would warrant a conclusion…’.”
[Emphasis in original]
Finally, the Respondent contended that a finding of clinical onset should not be made unless all the symptoms of the disease can be shown to be present at the time, or within the relevant period specified by the SoP – Exhibit 6 p. 12 para 47.
The Respondent cited Youngnickel v Repatriation Commission [2004] FCA 1691 at [31] in support of that proposition. The Tribunal agrees that this is an accurate statement of the law and proceeds accordingly.
THE HEARING
A Hearing was convened in Brisbane on 3 August 2022. The Hearing was convened via Microsoft Teams.
The Veteran was assisted by Mr Matthew Jensen and the Respondent was represented by Ms Lindsay Cooper.
Apart from the Veteran, the only other person called to give evidence was Dr Norrie.
CONSIDERATION
Introduction
A number of preliminary issues arose at the Hearing. The most important of these was the change in wording of SoP No. 61 of 2022 compared with No. 69 of 2014. This, and other issues, are dealt with below, before attention is given to the substantive questions before the Tribunal.
Change in wording in SoP No. 61 of 2022
As previously discussed, Factor 9(3) in SoP No. 61 of 2022 refers to “being obese for at least the 2 years before the clinical onset of hiatus hernia”. In comparison, Factor 6(c) in SoP No. 69 of 2014 referred to “being obese for a continuous period of at least two years before the clinical onset of hiatus hernia”.
The question that arose was whether this change in wording had any substantive effect on the operation of the Factor, and, if so, what effect it had.
The Explanatory Statement issued with SoP No. 61 of 2022 makes the following reference to Factor 9(3) at para 7:
“revising the factors in subsections 9(3) and 9(7) concerning being obese”.
The Respondent submitted that the changes in Factor 9(3) amounted to no more than an editorial revision having no real substantive significance – RCS p. 4 para 16. The Respondent went on to make the following submissions:
“17.This is consistent with the plain meaning of the words included in the phrase ‘being obese for at least the 2 years before’. Macquarie includes the following relevant definitions:
17.1 ‘being’: relevantly meaning ‘existence, as opposed to non-existence.’
17.2 ‘for’: relevantly meaning ‘during the continuance of: for a long time’.
18.That is, to satisfy the circumstances of the current factor, obesity needs to exist continuously for at least the 2 year period prior to clinical onset.
19.No specific legislative intent is revealed by the applicable explanatory statement…”
The Tribunal agrees with the submissions of the Respondent.
Whilst the new wording in SoP No. 61 of 2022 omits the requirement of obesity for a “continuous period”, nonetheless, it continues to require a person being obese for “at least the 2 years before”. The new wording, when given its natural meaning, imports a requirement for a person to have been obese for at least 2 years before clinical onset, and, by that, there is no room for implying that it does not have to be a continuous period of 2 years. In short, there is no room for suggesting, for example, that this Factor can be met if a person was obese for an aggregate of two years, but over an extended period of time.
Relationship to service
In the Applicant’s Closing Submission (ACS), the following submission was made – ACS p. 1 para 3:
“The secondary issue raised and argued against at the hearing is how the obesity is connected with the Applicants service. With much respect to the Deputy President, who ruled on this matter raised at the hearing, it is the Applicants position that a link between being obese and the Applicants Service may not be required under the wording of SOP No 61 of 2022, and supported by other SOP’s issued by the Repatriation Medical Authority. As remarked at the hearing, SOP No 61 of 2022 lists factor 9(4) ‘being pregnant at the time of the hiatus hernia’. Other SOP’s such as No 36 of 2021 (Deep Vein Thrombosis) lists both obesity and pregnancy as factors, SOP No 84 of 2015 (Depressive Disorder) also list Pregnancy as a factor. The crux of this issue is the contradictory statements made in sections 10 and 11 of the Hernia SOP (and the others listed) in that 10(1) states that any factor referred to in section 9, must be related to the relevant service rendered by the person, where section 11 goes on to state if a factor referred to in section 9 applies to a person, and that factor refers to an SOP made under subsection 196B(3) of the VEA, then that SOP must apply. There is no SOP for Obesity, so what factors must be related to service for the obesity (or pregnancy) to be accepted as a contributing factor?
[Bold in original]
This submission is, with due respect, misconceived.
First, the Repatriation Medical Authority is established pursuant to Part XIA of the Veterans’ Entitlements Act 1986 (Cth) (the VEA). Pursuant to s 196B(2) of the VEA, the Authority is given the function of issuing SoPs where “there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to” specified kinds of service. The terms “injury” and “disease” are defined s 5D of the VEA.
In short, the starting point is that, when dealing with an application for compensation of the type being dealt with in this matter, a veteran must point to an identifiable injury or disease – Re Marshall and Repatriation Commission (2000) 62 ALD 732 at [11].
Obesity, and pregnancy, fall outside the definition of injury or disease in s 5D, and for that reason (amongst, no doubt, others), there is no SoP for either of those conditions.
Second, and more relevantly, s 10 of SoP No. 61 of 2022 requires the existence in a person of any factor referred to in s 9, “must be related to the relevant service rendered by the person.” It will be noted that it is the Factor in the relevant SoP that must be related to service, and not the injury disease or death – Repatriation Commission v Knight (2012) 202 FCR 451 at [15] – [19].
Finally, a reading of s 196B of the VEA and, in particular, subsections (2), (3) and (14), leads inexorably to the conclusion that, when prescribing Factors that exist with respect to a particular injury, disease or death, those Factors must be in relation to the relevant service rendered. To suggest otherwise, would result a person claiming compensation for an injury or disease suffered or contracted without reference to service rendered. This would be contrary to the fundamental policy underpinnings of veterans’ compensation law as has existed for more than a century.
Reviewable decision
The Veteran sought clarification whether the Tribunal only has jurisdiction to review the decision of the Board and not the initial decision of the Respondent – ACS pp. 1 – 2 para 4.
Section 354 of the Act makes it clear that the reviewable decision is that of the Board. However, it is important to note that the Tribunal “stands in the shoes” of the decision-maker when making its decision – Costello and Secretary, Department of Transport (1979) 2 ALD 934 at 943. The substituted decision becomes the decision of the decision-maker. The Tribunal is not bound by the reasoning of the decision-maker in reviewable decision, and undertakes its review unshackled by findings made previously or the evidence that was presented previously. It is a de novo review, and, for that reason, the Tribunal can receive new evidence and make new findings.
For these reasons, the fact that the reviewable decision is that of the Board, in no way limits the capacity of the Tribunal determining this matter in accordance with the evidence received and the current state of the law.
Date of clinical onset
“Hiatus hernia” is defined in s 7(2) of SoP No. 61 of 2022. At the end of the definition, there are two Notes, relevantly, Note 2 states as follows:
“Most patients are asymptomatic. The clinical features of hiatus hernia can include heartburn, regurgitation, chest pain, postprandial fullness, nausea and retching.”
The Veteran has claimed that he first noticed the signs and symptoms of his hiatus hernia in October 2018 – Exhibit 1 T6.3 p. 60.
On 17 July 2019, an upper endoscopy was performed by Dr Leisa Barrett and a “2 cm hiatus hernia” was noted – Exhibit 1 T5 p. 46.
Based on the legal principles set out above, these are the two alternative dates for clinical onset.
In response to a Question from Ms Cooper at the Hearing about what signs and symptoms of hiatus hernia the Veteran was experiencing in October 2018, the Veteran gave the following response – Transcript (Tr.) 3.8.2022 p. 42:
“Well, it’s the increase of reflux. The burping, spewing in your mouth…It’s not being able to swallow, it’s about chest pain…”
During examination-in-chief of Dr Norrie by Ms Cooper, the following exchange occurred – Tr. 3.8.2022 p. 52:
“…there is a claim form we have here before the tribunal and it is part of your brief, but for the purposes of your evidence, I will just let you know that Mr Davis has confirmed that he first experienced symptoms of increased reflux like symptoms in October 2018. With that information in mind, and putting those two bits of information together, what’s the time that you would say a clinician would conclude that Mr Davis was first suffering from hiatus hernia?---Based on that limited information, I would say the onset – first onset of reported clinical symptoms.
Under cross-examination by Mr Jensen, Dr Norrie gave a somewhat different response – Tr. 3.8.2022 p. 54:
“So given that statement, how would Mr Davis’ GP be able to diagnose him with hiatus hernia based on him talking about symptoms of reflux?---There’s two ways that you can diagnose the presence of a hiatus hernia, either you do an endoscopy or you do a barium swallow. He had an endoscopy in 2019, and he had a barium swallow that did not detect the hiatus hernia in 2020.
Okay. So my point is, in your opinion, could his GP have diagnosed hiatus hernia based on what Mr Davis had described in his symptoms in 2018? I am sorry, sir, I didn’t quite hear that?---No.”
Later, under re-examination by Ms Cooper, Dr Norrie clarified his opinion – Tr. 3.8.2022 p. 64:
“So a hiatus hernia usually do not… cause symptoms per say [sic]. The relevance of a hiatus hernia is that it increases your vulnerability to reflux. It is possible to get symptoms from a hiatus hernia per say [sic] only with (indistinct) one and his – the hiatus hernia… was only two centimetres. So therefore I do not believe that that hiatus hernia per say would cause symptoms. Only a vulnerability to getting symptoms of reflux.”
It is important to put the answers given by Dr Norrie in context, as they are not contradictory, as may first appear.
Dr Norrie opined that the hiatus hernia which afflicted the Veteran was only two centimetres when revealed in an endoscopy performed by Dr Barrett on 17 July 2019. As it was only a small hiatus hernia, Dr Norrie testified that the Veteran’s GP would not have been able to diagnose the hiatus hernia in 2018.
Further, Dr Norrie doubted that a hiatus hernia of that size would have caused symptoms, but may have increased a vulnerability of getting symptoms of reflux. Again, this testimony is consistent with the information contained in Note 2 set out above, that most patients are asymptomatic.
However, when questioned about the legal test of clinical onset, and being informed that the Veteran testified that he first experienced symptoms of increased reflux like symptoms in October 2018, Dr Norrie testified that the first onset of reported clinical symptoms was October 2018 as reported by the Veteran.
Clearly, having regard to the size of the hiatus hernia when revealed in the endoscopy of 17 July 2019, the Veteran’s GP would not have been able to diagnose it in October 2018. Indeed, Dr Norrie testified that the hiatus hernia was not disclosed by a barium swallow in 2020.
The Tribunal accepts the veracity of the Veteran’s claim that he first experienced symptoms of the hiatus hernia in October 2018 – Exhibit 1 T6.3 p. 60. In the same Form, the Veteran claimed that the injury happened in July 2019. However, under cross-examination, he explained this information as follows – Tr. 3.8.2022 p. 42:
“And then, in that same claim form, you indicated that the injury happened in July 2019?---That’s when it was diagnosed, I think, the records show.”
In other words, all the Veteran meant when he noted that the injury happened in July 2019, was that was the date the hiatus hernia was first medically detected. Again, the Tribunal accepts the testimony of the Veteran.
It is tolerably clear, then, that the date of clinical onset was October 2018, that being the time that the Veteran first noticed the symptoms of his hiatus hernia. Further, as explained by the Veteran during his testimony, those symptoms included an increase in reflux, burping, vomiting, not being able to swallow and chest pains. Dr Norrie opined that, while he did not believe the Veteran’s hiatus hernia would cause symptoms, it would result in a vulnerability to getting symptoms of reflux. Again, it would appear that the Veteran did start experiencing the symptoms of reflux from October 2018. The Tribunal, as previously stated, has no good reason to doubt the Veteran’s testimony that he was experiencing those symptoms.
The Tribunal, therefore, finds that the date of clinical onset was October 2018.
Being obese for at least 2 years before the clinical onset of hiatus hernia
The next issue is whether the evidence satisfies the Tribunal, on the balance of probabilities, that the Veteran was obese for at least 2 years before clinical onset. In short, does the evidence disclose that the Veteran had a BMI of 30 or greater in the period October 2016 until October 2018?
It will be recalled that Dr Norrie, in his report of 9 February 2022, made the following observations – Exhibit 5 pp. 3 – 4:
“Mr Davis had a reported Body Mass Index of 26.88, in the overweight range, on 16 November 2016. Another recording by Dr Keen on 13 November 2017 recorded a BMI of 28.1. This latter recording was therefore within the two-year timeframe from when he was diagnosed with the hiatus hernia. A BMI recorded on 13 December 2018 recorded a BMI of 30.68 which is defined as obese…
…
… Mr Davis was only recorded to be obese for a period of seven months prior to the diagnosis of the hiatus hernia and not 17 months, as I wrote in my report, and certainly not the required 24 months… In fact, based on the BMI recordings as mentioned above, it was not possible that he was obese for a period of two years prior to the diagnosis of a hiatus hernia.”
It will be seen that Dr Norrie has proceeded on the assumption that the date of clinical onset was 17 July 2019 when the endoscopy was performed. Accordingly, even assuming clinical onset was July 2019 and not October 2018, nonetheless, Dr Norrie opined that it was not possible, based on the material he was briefed, that the Veteran was obese for the required 24 months.
The key question, then, is whether the material before the Tribunal is sufficient to support Dr Norrie’s conclusions.
As previously noted, the Tribunal did not admit into evidence the summonsed material because of the concerns expressed by the Veteran. The Tribunal offered the parties the opportunity to make submissions after the conclusion of the Hearing, but this offer was not taken up. However, the key material in the summonsed documents relating to the Veteran’s BMI, as recorded by his treating doctors, is set out in the briefing letters to Dr Norrie – Exhibits 2 and 4. The Tribunal has taken the information contained in Exhibits 2 and 4 into account when making a finding on whether the Veteran satisfies Factor 9(3).
At the Hearing, Ms Cooper cross-examined the Veteran, at length, about the various medical records of his treating doctors. The Respondent accurately summed up the tenor of the Veteran’s evidence when it was noted that, while his recollections varied, and while he did testify that some information he gave to his treating doctors was not included in the clinical notes, and while he did not, at times, give his treating doctors all of the relevant information, that information which was included in the notes is generally accurate – RCS pp. 12 – 13 para 63.
First, the Veteran acknowledged that, at times, he was less than fulsome with the information he gave to his treating doctors, but this was basically designed to save his service employment rather than to deliberately deceive anyone – Tr. 3.8.2022 p. 41:
“So there are times where you might withhold information?---Well, I just gave you an example.
Yes, so the – so was the answer to that question yes?---Well, there has been a time that I can recall, yes.
Okay. And is that the only time?---I don’t know, but that’s one example I can think of.
Okay. Is it your general practice to provide – acknowledging that there might be some exceptional situations like the one you just spoke of, is your general practice when you’re engaging with doctors to be honest and candid with information you’re giving them?---When I have trusted people that I am dealing with, and I am not trying to save my military career, yes.
Okay, thank you. And do you (indistinct) that your recollection now is not as reliable as when it – is not as reliable as your recollection of events when you’re talking to the doctor at the time?---Well, no, because sometimes I struggle with the drugs I take and the sleep I don’t have, so it depends what example you want to talk about and how long ago it happened, on whether I can recollect it. Whether it was important, you know, when your client let me almost lose my house because I had no money, that was an important factor in my life I can recall.”
Second, the Tribunal proceeds on the assumption that the Veteran did not, in a blanket manner, challenge the accuracy of the medical notes made by his treating doctors, but flagged concerns without specifying the nature of them in advance – Tr. 3.8.2022 p. 45:
“MS COOPER: Well, I understand him to be saying he doesn’t accept the accuracy because he hasn’t read them.
DEPUTY PRESIDENT: I don’t – I haven’t read Mr Davis as saying that, I don’t think he is challenging the accuracy or inaccuracies, I think he is simply saying that, in his opinion, he was flooded with documentation at a late stage and it was beyond him to rea[d] all the material and he’s – in that context, he flags potential concerns without specifying the nature of them in advance.”
Third, Ms Cooper put to the Veteran extracts from various medical notes taken by his treating doctors, and the Veteran accepted the accuracy of the notes. For example, the following exchange occurred – Tr. 3.8.2022 p. 46:
“DEPUTY PRESIDENT: Okay, Mr Davis, it’s just the tribunal here, to the best of your recollection, is that an accurate summation of your discussions with Dr McDonald? ---Yes, it looks like it, for sure. That’s all accurate as to what was going on, at that time.”
Ms Cooper then asked the Veteran a series of questions about the medical notes, and then I summed up the evidence. This summation was not challenged by either party – Tr. 3.8.2022 p. 49:
“DEPUTY PRESIDENT: It mostly would be helpful, I mean, he – Mr Davis has basically said to the best of his recollection, and his recollection sometimes isn’t all that great. They reflect what he remembers he’s told the doctors but there’s other aspects in the reports that are commented on because they relate to the doctors (indistinct).
But from what I have heard today, with the possible exception on the running the bridge to Brisbane in 10 kilometres in 60 minutes, which is a pretty fantastic feat, which he cannot recall saying. But basically, he’s accepted the accuracy of the notes. So I think it might be helpful if there’s any other questions in the time left, you move onto them.”
Mr Jensen made the following submissions on behalf of the Veteran – ACS p. 3 paras 11 – 14:
11. In his testimony to the Tribunal, Dr Norrie admitted that he does not always measure a persons weight and height, and may instead ask them what their height and weight may be. As he is purported to be an expert witness in this field, this revelation should give the Tribunal pause to consider the accuracy and value of the two measurements of 14/03/2017 and 13/11/2017.
12. The second issue with accepting these two measurements was also highlighted by Dr Norrie when it was put to him about the discrepancy in the height measurement of 13/11/2017 being 183cm, when all other measurements in the chart are calculated with Mr Davis’s height being 185cm. DR Norrie explained that for instance if shoes were not removed when recording height, then a inaccuracy of 2-3 centimeters would be possible. In Mr Davis’s case however, that would mean all heights of 185cm were with shoes or boots on, and the one measurement of 183 was without. This would seem unlikely given that it would require the Defence health checks to have been done with combat boots on, which would render both height and weight measurements inaccurate.
13. Given the doubts over the two measurements in question, they should be excluded, or given little weight in determining if Mr Davis was obese for at least the two years prior to 17/07/2019.
14. On this basis alone, given the information in the chart, it was completely possible for Mr Davis to have been obese from at least 17/07/2017.”
Having regard to Mr Jensen’s submissions, it is important to carefully consider the testimony of Dr Norrie.
First, when referring to the Veteran’s weight, Mr Jensen asked Dr Norrie if it was within his expertise to ascertain sudden weight gain. The following exchange occurred – Tr. 3.8.2022 p. 55:
“…I think most doctors can give an opinion on sources of weight gain, it’s a problem that all doctors have to deal with.
Okay. And it’s something that you deal with?---Yes… particularly where I work in the public medicine, most of my patients would be overweight and obese and in the Australian population, 70 per cent of the population of men are overweight or obese.”
Second, Dr Norrie was asked if he conducted BMI tests on his patients, which he answered in the affirmative – Tr. 3.8.2022 p. 59. The following exchange then occurred – Tr. 3.8.2022 pp. 59 – 60:
“And how do you conduct those tests?---I conduct – you measure the height of the patient, and you measure the weight of the patient, and then, you divide the weight of the patient by the height in metres squared, so for example, my weight is about 80 kilos and my height is 178 centimetres, so my body mass index would be 80 divided by 1.78 squared.
Yes, thank you. I am more specifically questioning the actual procedure, now would you physically measure the client or would you just take their word on (indistinct)? ---It would depend, I don’t take the word of the patient – I may take the word of the patient if it looks approximately right, I may do that. If the patient doesn’t know, I will look at their driver’s licence although the older driver’s license (indistinct) height. But I do have a capacity if (indistinct) were completely unclear of the height, to measure it.
And so, the same would apply to the weight, would you just take their word for their weight or would you measure it?---Definitely not, the patients are often – obviously, weight fluctuates a lot more than height, so therefore, I would always measure the weight. I mean, I do that if it’s relevant to practice, obviously, if someone is clearly slim and healthy, it may not be necessary to calculate their BMI. But for example, I work in a – because in the area of medicine I work, sometimes it determines where – I need to be accurate about their BMI because it may determine what we can actually do with the patients. If their BMI is too high, they may need to go to another hospital, for example. So particularly in larger patients, yes, I would always (indistinct) measure the weight.
Sir, you’re saying that sometimes your BMI measurements wouldn’t be accurate, they’d just be taken on the word of the client?---Well, they – it would always be accurate where I’ve felt that weight was a concern, I would personally measure those things myself.”
It will be seen that Mr Jensen’s submission that Dr Norrie does not always measure a patient’s weight and height and, instead, relies upon their self-reporting, is not correct.
Dr Norrie testified that with respect to height, he would take the estimate of a patient if it appeared approximately right, but if the patient did not know, he would look at the patient’s drivers licence. Further, if it was unclear, he would measure a patient. However, with respect to weight, Dr Norrie testified that “I would always… measure the weight” – Tr. 3.8.2022 p. 59. Consequently, Dr Norrie testified that he never relied on a patient’s estimation of their weight.
Third, Mr Jensen cross-examined Dr Norrie about the height measurements of the Veteran, with it being recorded as 183 cm on 13 November 2017 and 185 cm on 14 March 2017. The following exchange occurred – Tr. 3.8.2022 p. 60:
“So where it was a concern but not always – the reason I ask is because if you looked at the two contentious height and weight measurements given to you in your questionnaire, which are 14/03/2017, 13/11/2017, the most clear and obvious error is that as Mr Davis’ height is 183 centimetres and the other one is 185?---Yes.
And two centimetres plus two or three kilos here and there, can make quite the (indistinct) talking about a requirement that he be exactly 30 BMI or above, correct? ---Well, I can’t – yes, I can’t obviously – those measurements were obviously made by the general practitioner, so I cannot attest to that statement.
No, I am saying that if there was an error of two centimetres, plus an error of a few kilos, then that could affect the BMI and it wouldn’t be necessarily accurate that we need to be within these SOPs, would you agree with that?---You could bring in that sort of error, for example, if you didn’t take the patient’s shoes off.”
The point made by Dr Norrie during this part of the cross-examination is that the difference in height could have arisen simply due to one being taken while the Veteran had his shoes on and the other when he had taken off his shoes.
Fourth, Dr Norrie later explained that the two centimetre height difference would only make a small difference to the BMI reading – Tr. 3.8.2022 p. 62:
“…You are right, it is correct that if there was a slight…small inaccuracy in the height … maybe due to the fact that… he was wearing shoes and one when he was not would be sufficient to account for the two centimetres in difference. If you do the mathematics on that…the square of that figure would only make a small difference to the body mass index.”
The Tribunal agrees with the submission of the Respondent that, having regard to the explanations given by Dr Norrie, as set out above, there is not a sound basis to impugn the general accuracy, relevance or usefulness of the BMI estimations, weight and height information found in the clinical records in general and the extracts of those records in the briefing letters to Dr Norrie – RCS p. 13 para 66.
It is the case that the Veteran agreed that the clinical records put to him were accurate, at least insofar as they faithfully recorded what he had self-reported.
There is no material before the Tribunal that would seriously question the accuracy of those records.
The Tribunal was impressed by the evidence of Dr Norrie. He was a witness of credit. His explanation of the differences in the Veteran’s height as reported, comported with common-sense. Further, it was not the case that Dr Norrie relied on the self-reporting of a patient’s weight. In any event, the height and weight figures raised by Mr Jensen were made not by Dr Norrie, but by Dr Keane and Dr Watson – Exhibit 2 p. 9. Neither of those Doctors were called to give evidence.
To sum up, the Tribunal has before it, extensive evidence of the Veteran’s height, weight and BMI over an extended period. That evidence comes from service records, as well as notes made by the Veteran’s treating doctors. There is no good reason for the Tribunal to disregard that evidence or to believe that the various professionals who made those notes were not competent or made inaccurate notations.
Further, the Tribunal has no reason to doubt the professionalism of Dr Norrie or the accuracy and validity of his estimations of the Veteran’s obesity during the two years prior to clinical onset, whether that be October 2018 or July 2019. As previously noted, having regard to the evidence presented, it makes no difference to the outcome.
For the reasons given, the Tribunal finds that Veteran was not obese for at least 2 years before the clinical onset of hiatus hernia.
As the Veteran does not meet the requirements of Factor 9(3), it is not necessary to consider s 10 of SoP No. 61 of 2022, namely, relationship to service.
For the sake of completeness, the Tribunal agrees with submissions of the Respondent as set out in pp. 13 – 14 paras 58 – 60 of Exhibit 6 and pp. 14 – 18 paras 67 – 85 of the RCS with respect to the issue of relationship to service.
DECISION
The decision under review is affirmed.
I certify that the preceding 123 (one hundred and twenty -three) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso
..................[SGD]......................................................
Associate
Dated: 27 October 2022
Date of hearing: 3 August 2022 Date final submissions received: 29 August 2022
Advocate for the Applicant: Mr Matthew Jensen Solicitors for the Respondent: Ms Lindsay Cooper
Australian Government Solicitor
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