Falconer and Repatriation Commission

[2008] AATA 517

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 517

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No:  2007/1347

VETERANS’ APPEALS DIVISION		)
Re		ROBERT FALCONER

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal  M J Carstairs, Senior Member

Date 20 June 2008

Place Sydney

Decision  The Tribunal affirms the decision under review.

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

SENIOR MEMBER

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – diabetes mellitus – whether condition related to applicant’s defence service – affirms decision under review

Veterans’ Entitlements Act 1986 (Cth), ss 70, 119, 120

Repatriation Commission v Tuite (1993) 39 FCR 540

REASONS FOR DECISION

20 June 2008     M J Carstairs, Senior Member

1.      Robert Falconer suffers from type 2 diabetes mellitus. Mr Falconer maintains that he developed diabetes as a consequence of his Army service. His case is that, having sustained serious back and neck injuries during that service, his ability to exercise was compromised and he put on weight, making him more susceptible to the onset of diabetes.

2.      There are certain medically recognised connections between obesity and the development of diabetes mellitus, and Mr Falconer was clinically obese for some few years before his discharge from the Army in 1996.  The respondent, however, has denied Mr Falconer’s claim, on the grounds that, although Mr Falconer might have become obese during his Army service, the connection was temporal rather than causal.  

THE ISSUE

3.      The issue then comes down to whether Mr Falconer can show that his diabetes is related to his service in this way: that his obesity resulted from his reduced capacity to undertake exercise because of defence-caused injuries to his back and knees.

4. The legislative test involved in addressing this issue is set out at s 70(5)(a) of the Veterans’ Entitlements Act 1986 as being whether:

(a) the death, injury or disease, …, arose out of, or was attributable to, any defence service…

5.      Questions of causation of this kind are examined by applying Statements of Principles, formulated by the Repatriation Medical Authority.  In Mr Falconer’s case it is the Statement of Principles for diabetes mellitus (Instrument No. 12 of 2004 as amended).  Statements of Principles are designed to set out the possible connections with service, expressed as factors, which describe the medically recognised links between injury/disease and service. 

6.      In that regard, in this case, two factors appeared to need to be considered:

§  whether Mr Falconer was obese for a period of at least 10 years before the clinical onset of diabetes mellitus (factor 5(b)); and

§  whether Mr Falconer was unable to undertake any physical activity greater than 3 METS for at least the 10 years before the clinical onset of diabetes (factor 5(t)). 

7.      As the evidence unfolded, however, it became clearer that Mr Falconer in fact was able to undertake activities using energy greater than 3 METS in the period of 10 years before the onset of his diabetes, and so could not succeed on that ground.  Mr Falconer was able to continue working as a storeman in a civilian capacity until 2003, which means that despite his physical limitations, he was not so limited as to satisfy factor 5(t).

8.      My consideration is therefore confined to whether the evidence pointed to factor 5(b) of the Statement of Principles being met, so that it could be said that Mr Falconer’s diabetes arose out of or was attributable to his defence service.

BACKGROUND

9.      When Mr Falconer first enlisted in the Australian Army he was aged 18 years.  Apart from a short break in 1978, his service spanned the years 1969 to 1996. 

10.     In that time Mr Falconer sustained, as noted, a number of injuries.  A back injury required a laminectomy in 1981.  By the 1990’s he had problems with his knees.  The respondent has accepted these conditions as being due to his Army service. 

DIAGNOSIS OF DIABETES MELLITUS

11.     On this aspect of the matter there was no dispute and, I accept the medical evidence on which that was based, that Mr Falconer was diagnosed with type 2 diabetes mellitus by his general practitioner in August 2004[1].   However, Mr Falconer somewhat earlier in 2004, was experiencing symptoms characteristic of the early stages of diabetes, so that it can reasonably be accepted that medical practitioners would confirm the condition’s presence from that time.  This means that where the Statement of Principles requires the connection with service for 10 years prior to the onset of diabetes, in Mr Falconer’s case this will be by reference to a period from the start of 1994 to early 2004. 

[1]        Folio 50 ; T 10.

EVIDENCE ABOUT WEIGHT GAIN

12.     Mr Falconer stated that his weight since 1994 had varied from 104kgs to 109kgs.  Dr R Edwards recorded him as weighing 98kgs in 2007[2]; as did Associate Professor J Carter, consultant endocrinologist[3].  Mr Falconer said that his weight at present was between 102 – 103kgs.  He said he tries to eat healthily and follows the “Healthy Heart” programme, and had been referred to a dietician while he was in the Army.   

[2]        Exhibit A1.

[3]        Exhibit R1.

13.     The records charting Mr Falconer’s increase in weight during his service are as follows (this material being based on extracts from his service medical records):

Date	Weight	Reference
1969	72.6kg	Folio 3; T 3
11 February 1972	83kg	Folio 21S; T 3
6 March 1973	71.2kg	Folio 21J; T 3
2 December 1977	77kg	Folio 21M; T 3
August 1978	84kg	Folio 21J; T 3
18 June 1981	80.2kg	Folio 18 and 21I; T 3
10 February 1982	78kg	Folio 21H: T 3
23 April 1982	78.2kg	Folio 21G; T 3
26 March 1984	85kg	Folio 16; T 3
4 June 1986	85.2kg	Folio 15; T3
22 May 1990	87.3kg	Folio 21B; T 3
5 June 1991	84kg	Folio 21A; T 3
13 November 1995	105.6kg	Folio 60; T 11
7 November 1996	105kg	Folio 63; T 11

14.     Mr Winship, who appeared for Mr Falconer, noted a missing medical record relating to a medical board examination known to have taken place in November 1994, because it was subsequently referred to in the next medical board report[4].   Mr Winship submitted that Mr Falconer ought to be given the benefit of the doubt that this missing record would have shown that he was in the obese range (that is at about 100kg) in 1994[5]. The fact that Mr Falconer was recorded as medically downgraded at the 1994 medical board[6] lends some support to that conclusion.

[4]        Folio 60; T 11.

[5]          It should be observed that being “obese” is defined in the Statement of Principles as an    increase in weight that results in a Body Mass Index of 30 or greater.

[6]        Folio 60; T 11.

15. The respondent conceded, quite correctly in my view, that it is more likely than not that Mr Falconer had reached the obese range by the 1994 medical board examination, despite that record being lost. That inference accords with common sense, and a proper application of s 119(1)(h)(ii) of the Act[7], and I accept it.  

[7]        Veterans’ Entitlements Act 1986 (Cth), s 119(1)(h)(ii).

16.     Associate Professor Carter was asked to report on Mr Falconer’s diabetes and any relationship to weight gain.  His report records Mr Falconer’s weights at certain points that are at a slight variance to those I have recorded above, but the differences are not material.  Associate Professor Carter stated that Mr Falconer may have a genetic predisposition to diabetes, given that his sister also was recently diagnosed with diabetes. He observed that research shows that for genetically susceptible people, reduced physical fitness leads to insulin resistance and increased glucose levels[8].   On the other hand, he said that there is no link between increased weight or reduced activity and the onset of diabetes in people who do not have the genetic predisposition.

[8]        Exhibit R1.

17.     Mr Falconer appeared to have told Associate Professor Carter that his weight “increased slightly” after he gave up smoking in 1994. However, the pattern of weight increases revealed in the table above demonstrates that this is not correct.  It seems to me to be quite clear that Mr Falconer’s pattern of weight gain, until 1994/1995, was unremarkable.  His weight gain spikes quite markedly at or about the time he gave up smoking.

18.     The doctor who reported on him at the 1995 medical board[9] stated:

“gave up smoking 12/12 ago – ‘eating like a horse’”. 

[9]        Folio 60; T 11.

19.     I was satisfied that the pattern of weight gain, along with the observations of that doctor in 1995, support a conclusion that Mr Falconer’s weight gain to obese levels was related to his giving up smoking.

EVIDENCE ABOUT CAPACITY TO EXERCISE

20.     In an early written statement[10], Mr Falconer said that his other service-related injuries to his back and knees meant that he was “unable to carry out any physical activities whatsoever since 1992”.   However, it was clear from Mr Falconer’s oral evidence that it was not the case that he ceased physical activities.  The Army required him to maintain fitness levels and undertake daily PT, but I do accept his evidence that he was required to do less than others. 

[10]        Folio 57; R 11 – dated 20 September 2004

21.     Mr Falconer explained that once the serious condition affecting his back became apparent in the 1980’s, the Army transferred him from infantry to stores.  Mr Falconer said that after the surgery to his back in 1981 he was able a year later to regain the level of fitness known as “Fit Everywhere” (FE). However, there was a real difference in achieving that fitness rating when mustered as a storeman rather than as an infantryman. I accept Mr Falconer’s evidence in that regard; it makes sense that the Army would demand higher fitness levels of the infantry.

22.     Mr Falconer told Associate Professor Carter this as well, however Associate Professor Carter observed[11]:

It is difficult to determine how much exercise Mr Falconer undertook when employed by the Defence Forces but he indicated that he was able to have regular exercise since 1981 even though the degree of exercise was less than his otherwise fit colleagues undertook.

[11]        Exhibit R 1.

23.     The extent that Mr Falconer was restricted from exercising is far from clear. His level of fitness dropped after the laminectomy in 1981 while he recovered from the surgery; but, he was observed to have made a full recovery in 1982 and once again achieved the fitness rating of  “FE” in that year[12]. The previous medical board had stated that it was unlikely that he would ever regain “FE”[13]. However, he achieved that and maintained that fitness level until 1991, when his fitness level dropped to “CZE” and he was noted to have a problem with his right knee[14].

[12]        Folio 21G; T 3.

[13]        Folio 21H; T 3.

[14]        Folio 21A; T 3.

24.     Mr Falconer said they undertook physical training each morning, and games such as volleyball and touch football were interposed with PT for variety. He availed himself of the gym on the base. In addition he referred to quite physical demands of his work in stores. The report from the medical board in June 1991[15] which reduced his fitness level to “CZE” noted that Mr Falconer was having physiotherapy on his right knee and he was to “restrict running, PT at own pace”.

[15]        Folio 12; T 3.

WAS DIABETES DEFENCE CAUSED?

25.     In considering whether an injury or disease arose out of or was attributable to defence service, the causal connection need not be more than a contributing cause, however, the relationship between service and injury must be more than temporal. As the Full Federal Court observed in Repatriation Commission v Tuite[16]:

…if an injury or disease is claimed to have arisen out of or be attributable to a serviceman’s period of camp life, the question will usually be whether life in camp was a contributing cause and not merely the setting in which the event occurred…”

[16] (1993) 39 FCR 540 at 541.

26. The standard of proof to be applied by the Tribunal is one of reasonable satisfaction, provided for in s 120(4) of the Veterans’ Entitlements Act 1986.   

27.     Turning then to factor 5(b) of the Statement of Principles, it requires that the evidence on the balance of probabilities shows:

in relation to type 2 diabetes mellitus, being obese for a period of at least 10 years before the clinical onset of diabetes mellitus.

28.     The evidence, allowing for the likelihood that Mr Falconer was obese at the 1994 medical board points, to the requirement of the 10 year period being met. 

29.     If the question of a causal link with service required no more than Mr Falconer registering as obese while on service, his case, of course, would succeed.  Dr Edwards appears to have thought no more was required for the link to be made out, once Mr Falconer reached the obese range during service. However, paragraph 4 of the Statement of Principles makes plain that the factor of obesity itself must relate to service. Mr Falconer must show that there is a causal connection between his obesity and his service.

30.     I was not satisfied that the causal connection was made out. Mr Falconer acknowledged that in the Army he undertook PT on a daily basis. He had an active job in stores, including in the period 1992 to 1995 when he was working in stores in Melbourne where he had to climb stairs and engage in lifting. It is only towards the end of his service that Mr Falconer’s fitness level was reduced to “CZE”.

31.     Associate Professor Carter allows for the possibility that in the circumstances where Mr Falconer had genetic predisposition, there could be effects from reduced physical fitness.  He said he could not exclude that increased weight during Mr Falconer’s service and his reduced physical activity since 1981 may have contributed to the onset of diabetes.  However, he qualifies that by his observation that the degree to which back and knee injuries reduced Mr Falconer’s physical activity was hard to quantify. As I interpret Associate Professor Carter’s remarks they provide qualified support for the proposed connection, and are not based on clear evidence of reduced physical levels, or on evidence of that being related to obesity.  Associate Professor Carter’s opinion, in my view, offers only limited support to the possible connection between reduced exercise capacity and Mr Falconer’s diabetes. His opinion in my view is qualified to the extent that he did not know what level of exercise Mr Falconer had in fact undertaken.

32.     Associate Professor Carter makes his remarks about a possible link with reduced physical fitness and obesity in the context of an apparent acceptance of the history given to him by Mr Falconer that his weight had increased only “slightly” when he gave up smoking. This plainly was not the case.   

33.     I accept that Mr Falconer had lesser fitness levels required of him in stores than as an infantryman, and that he could undertake PT at his own pace particularly after 1991. I was not satisfied that the evidence points to this as leading to his weight gain.  The medical board reports show that he retained high fitness levels until 1991. He was able to carry out his ordinary army duties. His weight remains relatively steady over the years of his service, that is, until he stopped smoking in 1994. This event stands out as being the key factor in the development in Mr Falconer’s obesity.  It was not suggested that his smoking habit is related to service.

34.     The evidence in my view does not point to factor 5(b) in the Statement of Principles being met.   Mr Falconer is unable to show, on the balance of probabilities, that his diabetes mellitus is connected with his service.

DECISION

35.     The Tribunal affirms the decision under review.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the order herein of M J Carstairs, Senior Member

Signed ………………[sgd]…………………          
  Joan Torbey, Associate

Date of Hearing  19 May 2008
Date of Decision  20 June 2008
Solicitors for the Applicant              Winship Legal Pty Limited
Advocate for the Respondent       Mr T O’Reilly