De Marchi and Repatriation Commission
[2008] AATA 954
•27 October 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 954
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200600696
VETERANS' APPEALS DIVISION ) Re RALPH WILLIAM WALTER DE MARCHI Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: G. D. Friedman, Senior Member Date:27 October 2008
Place:Melbourne
Decision: The Tribunal affirms the decision under review.
(sgd) G.D. Friedman
Senior Member
VETERANS' AFFAIRS – veterans’ entitlements – diabetes mellitus, hypertension and gastro-oesophageal reflux – alcohol consumption – smoking – obesity – whether service-caused
Veterans' Entitlements Act 1986 ss 70(5)(a), 120(4)
Repatriation Commission v Tuite (1993) 29 ALD 609
Roncevich v Repatriation Commission (2003) 75 ALD 345Roncevich v Repatriation Commission (2005) 222 CLR 115
REASONS FOR DECISION
27 October 2008 G. D. Friedman, Senior Member 1. Ralph De Marchi joined the Australian Army at age 17 in 1974 and served until 1980 as an infantry soldier. During his service he drank alcohol and smoked cigarettes to excess and later became obese. He claims that his medical conditions of diabetes mellitus, hypertension, gastro-oesophageal reflux and obesity are related to his army service.
2. The issues before the Tribunal are:
·Which Statement of Principles (SoP) is relevant to the medical conditions suffered by Mr De Marchi?
·Was Mr De Marchi’s level of drinking related to his service?
·Was Mr De Marchi’s level of smoking related to his service?
·Is Mr De Marchi’s obesity related to his service?
WHICH STATEMENT OF PRINCIPLES IS RELEVANT TO THE MEDICAL CONDITIONS SUFFERED BY MR DE MARCHI?
3. Mr De Marchi’s service in the Australian Army from 28 November 1974 until 12 November 1980 is eligible service under the Veterans’ Entitlements Act 1986. Section 120(4) of the Act requires the Tribunal to decide whether Mr De Marchi’s conditions were defence-caused to the Tribunal’s reasonable satisfaction. The Tribunal is also required to apply an SoP for each condition (where one exists), as formulated by the Repatriation Medical Authority, which provides a connection to service through factors contained in the SoP. Under s 70(5)(a) of the Act a condition is defence-caused if it arose out of, or was attributable to, any defence service.
4. The respondent has previously accepted that ligamentous injury right knee, osteoarthritis left ankle and osteoarthritis left knee are service-related. Mr De Marchi is in receipt of disability pension at 50 per cent of the general rate. There was no dispute that Mr De Marchi suffers from diabetes mellitus, hypertension gastro-oesophageal reflux and obesity. The relevant SoPs are:
· SoP No. 12 of 2004 concerning diabetes mellitus
Factor 5 provides:
…
(b) in relation to type 2 diabetes mellitus, being obese for a period of at least 10 years before the clinical onset of diabetes mellitus;
(c) in relation to type 2 diabetes mellitus, smoking at least 10 pack years of cigarettes or the equivalent thereof in other tobacco products before the clinical onset of diabetes mellitus, and where smoking has ceased, the clinical onset has occurred within five years of cessation;
…
(t) in relation to type 2 diabetes mellitus, an inability to undertake any physical activity greater than 3 METs for at least the 10 years immediately before the clinical onset of diabetes mellitus;
…
“MET” means a unit of measurement of the level of physical exertion. 1 MET = 3.5 ml of oxygen/kg of body weight per minute or, 1.0 kcal/kg of body weight per hour, or resting metabolic rate;
· SoP No. 36 of 2003 concerning hypertension
Factor 5 provides:
(a) being obese at the time of the clinical onset of hypertension; or
(b) consuming an average of at least 300 grams per week of alcohol which cannot be decreased to less than an average of 300 grams per week, at the time of the clinical onset of hypertension;
…
(m) an inability to undertake more than a mildly strenuous level of physical activity for at least the five years immediately before the clinical onset of hypertension;
The SoP was amended by No. 4 of 2004. Factor 5(b) was amended to:
(b) consuming an average of at least 300 grams per week of alcohol for a continuous period of at least 6 months immediately before the clinical onset of hypertension, which cannot be decreased to less than an average of 300 grams per week of alcohol;
The SoP was amended by No. 12 of 2008. Factor 5(b) was amended to:
(b) consuming an average of at least 500 grams of alcohol per week for a continuous period of at least the six months before the clinical onset of hypertension;
· SoP No. 12 of 2005 concerning gastro-oesophageal reflux disease
Factor 5 provides:
…
(b) being obese at the time of the clinical onset of gastro-oesophageal reflux disease;
(c) smoking at least twenty cigarettes per day, or the equivalent thereof in other tobacco products, for a continuous period of at least six months immediately before the clinical onset of gastro-oesophageal reflux disease;
(d) consuming an average of at least 500 grams of alcohol per week for at least the twelve months before the clinical onset of gastro-oesophageal reflux disease;
WAS MR DE MARCHI’S LEVEL OF DRINKING RELATED TO HIS SERVICE?
5. Mr De Marchi said that he completed recruit training at Kapooka, New South Wales and infantry training at Singleton, New South Wales, after which he was sent to the Land Warfare Centre at Canungra, Queensland from 1 June 1975 until 1 October 1976. Following a posting to Holsworthy, New South Wales he spent one month in Colorado Springs, United States of America (October to November 1977) where he undertook training with a mechanised infantry battalion involving armoured personnel carriers and tanks. He then returned to Holsworthy, and then to Kapooka in February 1979 as an instructor before his discharge with the rank of corporal. He then served with the Army Reserve from 1980 until 1984 as an instructor, attaining the rank of sergeant.
6. Mr De Marchi said that his alcohol consumption was linked to the requirements of his military service. In a written statement dated 21 November 2007 (Exhibit A3) he said that he did not drink alcohol prior to joining the army at the age of 17 years but soon became a heavy and regular drinker. He stated that alcohol was very much a part of service life and culture, and that social functions at the mess involved rituals of heavy drinking. He said that there was constant peer pressure to conform and to be part of the team by drinking. Mr De Marchi stated that while at Kapooka as an instructor in 1979 and 1980 he consumed 20 glasses of beer and 10 glasses of bourbon per session, with his consumption increasing at weekends to 40 glasses of beer and two bottles of bourbon. He said that he drank at this level throughout his army career and after discharge, although he reduced his consumption in 2003 because of health concerns. He still drinks about one bottle of red wine each night.
7. In oral evidence Mr De Marchi stated that there were no restrictions on alcohol consumption when off-duty, and alcohol was readily available on each base to which he was posted. When away from the base he and his colleagues drank at hotels. There were few non-drinkers. Under cross-examination Mr De Marchi agreed that his level of consumption listed in his written statement was considerably more than that contained in the Alcohol Questionnaire he completed in support of his claim to the Department of Veterans’ Affairs in August 2005 (T7 page 80), in which he listed the changes in his alcohol consumption during service as:
1975:4 to 5 beers per day: corps training restriction removed
1976:6-8 beers per day + 6 spirits: posted to JTC Canungra. Lots of spare time & stress of training
1977:6-10 beers per day, 8-10 spirits: Posted to Mech. Inf. Battalion. Training with APC’s & tanks. Stressful training
1979:10-15 beers per day, 10 spirits: 1RTB Kapooka as Instructor. Preparing lessons & being assessed on a constant basis
He said that he relied on his memory to estimate his level of drinking.
8. He also agreed that he told Dr B Kenny, consultant psychiatrist, in July 2005 that he hardly drinks during the week now. Mr De Marchi explained that he did not feel comfortable with Dr Kenny and did not want to tell the truth about his level of drinking. He conceded that he had been involved in a number of disciplinary proceedings during his service and as early as October 1975 had been warned of a possible discharge unless his performance improved. He attributed these to his heavy drinking, and said that he was still able to perform his duties to a high standard, culminating in his selection for a demonstration platoon at the Land Warfare Centre at Canungra and as an instructor at Kapooka. Mr De Marchi agreed that in his discharge medical document (Exhibit R2 page 34-35) a medical officer had written light beer in answer to the question: Do you drink alcohol? Mr De Marchi said that he had no recollection of stating this to the medical officer at the time.
9. In a written statement dated 3 July 2008 (Exhibit A6) Mr D Knight said that he has socialised weekly with Mr De Marchi for about 20 years, and that Mr De Marchi has been a heavy drinker throughout that period.
10. Mr M Burge, clinical psychologist, told the Tribunal in a report dated 26 May 2007 (Exhibit A2) that Mr De Marchi reported that army life involved social rituals including drinking alcohol (as well as smoking) and that drinking was part of social activities after work. He said that Mr De Marchi told him that as an instructor, drinking was the expected culture, to drink in the Mess to late into the night. Mr Burge stated:
When Mr De Marchi achieved the rank of Sergeant, he reported that it was expected, in fact, compulsory, that he attend formal dinners where drinking was a main part of the evening.
11. Mr Burge concluded that there was a clear link between Mr De Marchi’s history of excessive drinking and the army ethos and social factors. He said that army life involves conformity and does not allow much deviation from perceived norms and rituals. He stated that Mr De Marchi’s conformity with group norms is consistent with research into psychosocial factors that influence individuals to conform to customs in organisations that tolerate minimal non-compliance in traditions and rituals. In oral evidence Mr Burge said that he was not familiar with army instructions in the 1970s relating to alcohol consumption and he was not aware of alcohol rehabilitation programs that were available at the time. Under cross-examination he agreed that in his clinical practice the only veterans he sees in relation to alcohol are those with drinking problems.
12. Dr N Strauss, consultant and occupational psychiatrist, told the Tribunal in a report dated 29 August 2007 (Exhibit R5) that Mr De Marchi told him he never faced any significant stressors in the army, was never involved in an armed conflict and had not served in a war zone. In a further report dated 19 September 2007 (Exhibit R6) Dr Strauss diagnosed alcohol dependence which occurred while Mr De Marchi was in the army and that peer pressure and a drinking culture had been contributing factors.
13. The Tribunal accepts that Mr De Marchi was a non-drinker when he joined the army. Although there are inconsistencies in his estimates of the level of drinking during service, the Tribunal accepts that during his eligible service Mr De Marchi became a heavy drinker. In respect of hypertension the Tribunal finds that clinical onset occurred on 21 November 2000 as diagnosed by a medical officer, and that Mr De Marchi consumed sufficient alcohol to satisfy factor 5(b) of SoP No. 36 of 2003, being the SoP most favourable to him. Therefore for hypertension there is a temporal connection between Mr De Marchi’s eligible service and his level of drinking.
14. In respect of gastro-oesophageal reflux the Tribunal finds that clinical onset occurred as estimated by Mr De Marchi in about 1978 or 1979, and that he consumed sufficient alcohol to satisfy factor 5(d) of SoP No. 12 of 2005. Therefore for gastro-oesophageal reflux there is a temporal connection between Mr De Marchi’s eligible service and his level of drinking.
15. In relation to whether there is a causal connection between Mr De Marchi’s level of drinking and his eligible service, s 70(5)(a) of the Act states that a medical condition is defence-caused if the condition arose out of, or was attributable to, defence service.
16. In Repatriation Commission v Tuite (1993) 29 ALD 609 Davies J stated at 612:
If the circumstances of eligible war service provide an operative cause contributing to the serviceman's injury or disease, it matters not that the relevant circumstances, such as peer pressure to smoke, could be found elsewhere than in camp life. The question in each case, and it is a question of fact for the administrative decision-maker, is whether the eligible war service contributed causally to the injury or disease.
17. In the High Court of Australia judgment of Roncevich v Repatriation Commission (2005) 222 CLR 115 the majority stated:
[23]… As Dixon J said in the passage from Henderson cited by Heerey J in the Full Court, whether an event arises in the course of an activity, or as here, out of "an activity", depends upon such matters as the nature of the person's employment, the circumstances in which it is undertaken, and what, in consequence, the person is required or expected to do to carry out the actual duties. The connection must however be a causal and not merely temporal one.
…
[27] The use disjunctively in s 70(5) of the expressions "arose out of" and "attributable" manifest a legislative intention to give "defence-caused" a broad meaning, and certainly one not necessarily to be circumscribed by considerations such as whether the relevant act of the appellant was one that he was obliged to do as a soldier. A causal link alone or a causal connection is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate.
18. In [18] the majority referred to the dissenting judgment of Heerey J in Roncevich v Repatriation Commission (2003) 75 ALD 345 in which he stated at [36-37]:
36 In the present case, the expression "arose out of, or was attributable to, any defence service", although made up of ordinary words, is one that conveys a compound legal concept. It is not like the ordinary word "business" which was at issue in Hope or the word "insulting" (Brutus v Cozens [1972] UKHL 6; [1973] AC 854). For upwards of a century in common law jurisdictions courts have construed the meaning of such expressions in workers' compensation legislation…
37 The Tribunal erred in law in the application of this statutory criterion. It effectively ignored what the appellant was, as a matter of practicality, required or expected to do as part of his service in the Army. The primary judge did not correct that error…
19. In the matter under review the Tribunal places little weight on the evidence of Mr Burge, who made broad generalisations about Mr De Marchi’s conformity with the army’s norms, traditions and customs. Mr De Marchi’s own evidence about the number of disciplinary proceedings taken against him involving alcohol demonstrates a pattern of non-conformity with army regulations. In addition Mr Burge’s conclusions about the expectations on Mr De Marchi to attend formal dinners refer to the period when Mr De Marchi attained the rank of sergeant, which was after his eligible service. Mr Burge’s lack of knowledge of alcohol programs during the relevant period indicates a poor understanding of the circumstances of drinking in the army at the time.
20. Mr De Marchi joined the army as a young recruit and undoubtedly wished to be accepted by his peers. However the Tribunal finds that in the period from his enlistment until his promotion to corporal in July 1979 he had access to alcohol and drank to excess. The material before the Tribunal suggests that there were no formal expectations on him regarding drinking while attending social or other army functions. After he became a corporal and was posted to Kapooka as an instructor his level of drinking increased. However in his application to the Department of Veterans’ Affairs he gave as the reason: Preparing lessons & being assessed on a constant basis and made no mention of any requirement to drink to excess. He told Dr Strauss that he faced no significant stressors in the army. Other instructors may well have been heavy drinkers, but on the available material the Tribunal finds that, as a matter of ordinary commonsense and practicality, Mr De Marchi made his own choice to drink excessively during his eligible service. Therefore his excessive alcohol consumption did not arise from, or was attributable to, his service, so there is no causal connection.
WAS MR DE MARCHI’S LEVEL OF SMOKING RELATED TO HIS SERVICE?
21. In a written statement dated 20 November 2007 regarding smoking (Exhibit A4) Mr De Marchi said that he was a non-smoker when he joined the army. He said that he was placed in stressful situations and there were high expectations of individuals. Mr De Marchi said that there was a culture of smoking and that even non-smokers became smokers, particularly as instructors all smoked. He stated that he soon smoked 10-15 cigarettes per day and by 1975 his smoking increased to 20-30 cigarettes per day. This increased to 60 cigarettes per day in 1976 and 1977, largely because of the stress involved in adapting from traditional infantry to mechanised infantry and the need to acquire new skills as a signaller. He said that he continued to smoke at this level until he ceased smoking in 2000 for health reasons.
22. In the Claimant report - Smoking he completed in support of his claim to the Department of Veterans’ Affairs in August 2005 (T7 page 83), he listed the changes in his level of smoking during service, and the reasons, as:
1974:10-15 per day. Joined army
1975:20-30 per day. More time spent drinking
1976:30-40 per day. Stress of service & addiction.
1977:40-60 per day. APC training & simulated battlecraft[?]
1979:Stopped for 3 mths and then resumed to same level then stopped again in Feb 2000
23. In oral evidence Mr De Marchi said that, as with his drinking, he smoked in order to be accepted by his peers. He said that each rest break during training was referred to as a smoko, during which most people smoked, and younger soldiers were encouraged by instructors to smoke. Under cross-examination he agreed that in his discharge medical document a medical officer had written 20 cigarettes/day in answer to the question: Do you smoke tobacco? Mr De Marchi said that he had no recollection of stating this to the medical officer at the time.
24. Dr Strauss stated that Mr De Marchi gave a history of commencing to smoke after one month in the army and was smoking 75 cigarettes per day at the time of discharge. Mr Burge reported that Mr De Marchi gave a history of smoking that, as with drinking, was an activity engaged in to be part of the team and there was constant pressure to take part. Mr Burge’s conclusions about Mr De Marchi’s smoking were the same as his conclusions about Mr De Marchi’s drinking.
25. The Tribunal accepts that Mr De Marchi was a non-smoker when he joined the army and that during his eligible service he became a heavy smoker.
26. In respect of diabetes mellitus the Tribunal accepts that clinical onset occurred in 1996, as estimated by Dr M De Luise, endocrinologist (Exhibit R8) and that smoking ceased in 2000. Considering the material as a whole, the Tribunal finds that Mr De Marchi smoked at least 10 pack years of cigarettes before the clinical onset and that clinical onset occurred within five years of cessation, and satisfies factor 5(c) of SoP No. 12 of 2004. Therefore for diabetes mellitus there is a temporal connection between Mr De Marchi’s eligible service and his level of smoking.
27. In respect of gastro-oesophageal reflux the Tribunal finds that Mr De Marchi smoked at least 20 cigarettes per day for a continuous period of at least six months immediately before the clinical onset in 1978 or 1979 and satisfies factor 5(c) of SoP No. 12 of 2005. Therefore for gastro-oesophageal reflux there is a temporal connection between Mr De Marchi’s eligible service and his level of smoking.
28. In relation to whether there is a causal connection between Mr De Marchi’s level of smoking and his eligible service, s 70(5)(a) of the Act requires a consideration similar to that involving excessive drinking, and the quoted extracts from Tuite and Roncevich are relevant. As with the question of excessive drinking, the Tribunal places little weight on Mr Burge’s evidence. He appears to add the issue of smoking to his evidence regarding drinking as a matter of course, without any real analysis of whether smoking raises separate considerations in service life generally, or in this particular case.
29. The material before the Tribunal suggests that although cigarettes were readily available and that smoking appears to have occurred among a large number of personnel at the time, particularly during rest breaks and when off-duty, there is no persuasive evidence that there were formal expectations on Mr De Marchi to smoke to excess while attending social or other army functions. The Tribunal accepts that his level of smoking increased during 1976 and remained at a high level until his discharge. However in his Claimant report - Smoking he referred to his drinking and the stress of service as reasons, rather than any culture or pressure to smoke or a requirement to smoke to excess. He told Dr Strauss that he faced no significant stressors in the army. Other soldiers and instructors may well have been heavy smokers, but on the available material the Tribunal finds that, as a matter of ordinary commonsense and practicality, Mr De Marchi made his own choice to smoke excessively during his eligible service. Therefore his excessive smoking did not arise from, or was attributable to, his service, so there is no causal connection.
IS MR DE MARCHI’S OBESITY RELATED TO HIS SERVICE?
30. Mr De Marchi stated that, although obesity is not a disease and there is no SoP for the condition, his obesity contributed to his hypertension, diabetes mellitus and gastro-oesophageal reflux. He said that on enlistment in the army he weighed 69.7kg and was 179cm in height. On discharge his weight was 90kg and his height was 183cm. Mr De Marchi told the Tribunal that his weight increased in about 1976 or 1977 when he exercised less because of the mechanisation of his infantry unit. He also stated that he injured his right knee while alighting from an armoured personnel carrier and his condition deteriorated, requiring surgery after leaving the army. This reduced his ability to exercise and his weight increased to about 130kg in about 1981, when he was forced to cease sporting activities. His current weight is 115kg.
31. In the Claimant report - Obesity completed in support of his claim to the Department of Veterans’ Affairs in August 2005 (T7 page 84), he listed the changes in his height and weight during and after service as:
13/11/74:height: 183 cm; weight 62 kg. Not over[weight] or obese
13/11/80:height: 183 cm; weight 92 kg. Alcohol & bad knees. Lack of exercise
1984:height:183 cm; weight 117 kg. Lack of exercise; Alcohol; Bad knees
2005:height: 183 cm; weight 113 kg. Lack of ex.; Medication; Alcohol
In the relevant SoPs being obese means:
an increase in body weight by way of fat accumulation which results in a Body Mass Index (BMI) of thirty or greater.
The BMI = W/H2 and where:
W is the person’s weight in kilograms and
H is the person’s height in metres;
32. The BMI for the above measurements of height and weight are:
13/11/74:18.5
13/11/80:27.5
1984:34.9
2005:33.7
33. In relation to his ability to undertake physical activity, Mr De Marchi stated that during his service he was active and played sport including swimming, soccer and golf until surgery for his knee injury in 1981. He said that he still swims and plays golf occasionally.
34. Professor J. Proietto, endocrinologist, told the Tribunal in a report dated 22 May 2007 (Exhibit A1) that Mr De Marchi’s diabetes was diagnosed while he was still smoking, and the onset of diabetes was contributed to by the weight gain which was partially secondary to inability to exercise due to an injury to the right knee. Professor Proietto stated:
There is now overwhelming evidence that obesity is a major driver of Type 2 diabetes. Reflux oesophagitis and hypertension are two known complications of obesity, especially central obesity, which Mr De Marchi has.
35. On the available material the Tribunal finds that clinical onset of obesity occurred in 1984, when Mr De Marchi’s BMI first exceeded 30. In respect of diabetes mellitus, the clinical onset of which was 1996, Mr De Marchi was obese for at least 10 years before the clinical onset, so he satisfies factor 5(b) of SoP No. 12 of 2004. Although Mr De Marchi ceased active sporting activities after 1981, he still played some golf and swam occasionally after this date, so the Tribunal finds that he did not have an inability to undertake any physical activity greater than 3 METS for at least the 10 years immediately before the clinical onset of diabetes mellitus, and he does not satisfy factor 5(t).
36. In relation to whether there is a causal connection between Mr De Marchi’s obesity and his eligible service, the Tribunal takes into account that clinical onset of obesity occurred after Mr De Marchi’s eligible service, so the Tribunal finds that there is no causal connection between diabetes mellitus and eligible service as it relates to obesity.
37. In respect of hypertension, the clinical onset of which was in 2000, the Tribunal finds that Mr De Marchi was obese at that time, so he satisfies factor 5(a) of SoP No. 36 of 2003. As Mr De Marchi was still playing some golf and swimming occasionally in 1995, the Tribunal finds that he did not have an inability to undertake more than a mildly strenuous level of physical activity for at least the five years immediately before the clinical onset of hypertension, and he does not satisfy factor 5(m).
38. In relation to whether there is a causal connection between Mr De Marchi’s obesity and his eligible service, the Tribunal takes into account that clinical onset of obesity occurred after Mr De Marchi’s eligible service, so the Tribunal finds that there is no causal connection between hypertension and eligible service as it relates to obesity.
39. In respect of gastro-oesophageal reflux, the clinical onset was 1978 or 1979, so Mr De Marchi was not obese at the time of clinical onset, and the Tribunal finds that he does not satisfy factor 5(b) of SoP No. 12 of 2005, so there is no causal connection between Mr De Marchi’s eligible service as it relates to obesity.
CONCLUSION
40. None of the contentions raised by Mr De Marchi establishes a causal connection between his eligible service and any of the medical conditions, so the claim is unsuccessful.
DECISION
41. The Tribunal affirms the decision under review.
I certify that the forty-one [41] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Senior Member
(sgd) Mara Putnis
Associate
Date of hearing: 17 April 2008, 26 August 2008 and 16 October 2008
Date of decision: 27 October 2008
Advocate for the applicant: Mr D De Marchi
Solicitor for the applicant: De Marchi & Associates
Advocate for the respondent: Ms T Chant (26 August 2008)
Counsel for the respondent: Mr G Purcell (17 April 2008 and 16 October 2008)
Solicitor for the respondent: Advocacy Section, Department of Veterans’ Affairs
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