Falconer and Repatriation Commission
[2002] AATA 557
•9 July 2002
DECISION AND REASONS FOR DECISION [2002] AATA 557
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/99
VETERANS' APPEALS DIVISION )
Re NEILSON FALCONER
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms N Bell, Member
Date9 July 2002
PlaceSydney
Decision The decision under review is affirmed.
[SGD] Ms N Bell
Member
CATCHWORDS
VETERANS' AFFAIRS – disability pension – claim for ischaemic heart disease and sleep apnoea – whether the Applicant's ischaemic heart disease and sleep apnoea are war-caused – whether the Applicant was obese for a period of at least two years within the 15 years immediately before the clinical onset of his ischaemic heart disease – whether Applicant was obese at the time of the clinical onset of sleep apnoea – whether Applicant's obesity was related to his service
Veterans Entitlements' Act 1986 sections 9, 120, 120A
Statement of Principles concerning ischaemic heart disease, No 38 of 1999
Statement of Principles concerning sleep apnoea, No 39 of 1997
Repatriation Commission v Stafford (1995) 38 ALD 193
Repatriation Commission v Deledio (1998) 83 FCR 82
Harris v Repatriation Commission (2000) 62 ALD 174
REASONS FOR DECISION
9 July 2002 Ms N Bell, Member
This is an application by Mr Neilson Falconer ("the Applicant") for review of a decision by the Repatriation Commission ("the Respondent") dated 22 December 1999 which varied the determination of the Respondent dated 10 September 1999 to accept ischaemic heart disease and Post-traumatic stress disorder as being war- caused and rejected claims for sleep apnoea and for alcohol abuse.
The decision of 22 December 1999 varied the earlier determination only in respect of ischaemic heart disease and determined that it was not war-caused. The Veterans Review Board affirmed the Respondent's decision, in relation to ischaemic heart disease, on 14 December 2000 but did not address any other aspects of entitlement concerning any other of the Applicant's conditions. The Applicant's application for review by the Veterans' Review Board indicated that review was sought of the decision "revoking the decision of ischaemic heart disease as being service related and reducing my pension from 80 (sic) to 50% of the general rate."
However, the Applicant's claim for pension noted the following conditions as being claimed: "PTSD and Depression", "Alcohol Abuse", "Heart Problems", "Sleep Disturbance" and "Respiratory Problems". On 7 December 1999 the Applicant's wife, on his behalf, had written to the Respondent submitting that his war-caused Post-traumatic stress disorder led to alcoholism, obesity, depression, sleep apnoea and "heart problems".
At the hearing before the Tribunal the Applicant was represented by Mr Paul Jones and the Respondent was represented by Ms Susie Breuer, an advocate from the Department of Veterans' Affairs. The Applicant gave oral evidence. No experts gave oral evidence to the Tribunal. Following the conclusion of the hearing on 4 March 2002, but before the application was determined by the Tribunal, the parties requested that the Tribunal include, in its consideration, the Applicant's condition of sleep apnoea. The parties agreed that, notwithstanding that it had not been considered by the Veterans' Review Board, the Tribunal had jurisdiction to consider the rejection by the Respondent of the Applicant's claim for sleep apnoea.
In this respect, the Tribunal considered the decision of the Full Federal Court in Repatriation Commission v Stafford (1995) 38 ALD 193. At page 202 their Honours said:
"'Rejection of claim for disability pension' in our opinion had in law the effect of imposing on the board the obligation to review each decision and determination concerning each condition of entitlement which the claim for pension proposed or the evidence before the commission suggested. In this case the claim proposed both of those conditions as war-caused diseases. That attracted, in relation to both conditions, the duties specified in s 139 (2). Only a clear, unambiguous withdrawal by Mr Stafford of either condition from the scope of the review, which the board was satisfied was a withdrawal the effect of which Mr Stafford understood, could relieve the board of the duty."
The Tribunal concluded that, given that the Applicant's wife had written to the Respondent on 7 December 1999 submitting that his war-caused Post-traumatic stress disorder led to, among other things, sleep apnoea and "heart problems" (T22), there was no "clear, unambiguous withdrawal" by the Applicant of any of the conditions in respect of which he had claimed and that, in accordance with the decision in Repatriation Commission v Stafford (supra) , the decision under review by the Tribunal is the decision of 10 September 1999 as varied by the later decision of 22 December 1999. That decision encompassed and rejected the Applicant's claim in respect of sleep apnoea as well as ischaemic heart disease. The parties' agreement that the Tribunal has jurisdiction to review the decision in respect of sleep apnoea is therefore, in the Tribunal's view, well founded.
The following documentary evidence was before the Tribunal:
Exhibit Document Date
TD1 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, T1-T29
A1 Applicant's Statement of Facts and Contentions 7 February 2002
A2 Report of Dr M Burns 30 January 2002
A3 Applicant's statement 30 October 2001
R1 Respondent's Statement of Facts and Contentions 26 February 2002
R2 Report of Associate Professor R Mattick 1 June 2001
R3 Report of Dr G S Robinson 20 March 2001
R4 Dietitian report of Philip Keech 13 October 2001
R5 Report of Dr J Chen 7 February 2002
BackgroundIt is common ground between the parties that the Applicant, who was born on 30 June 1921, served in the Australian Army from 1 October 1941 to 28 March 1946. This was eligible war service as defined in the Veterans' Entitlements Act 1986 ("the Act") and because he served overseas the whole of his service constitutes operational service.
The Applicant had a myocardial infarction in 1990 and it is accepted by the Respondent that the Applicant has ischaemic heart disease. The Respondent has not disputed that the Applicant suffers from sleep apnoea.
IssuesThe issue for the Tribunal to consider is whether the Applicant's ischaemic heart disease and sleep apnoea are war-caused. This requires consideration of whether the Applicant was obese for a period of at least two years within the 15 years immediately before the clinical onset of his ischaemic heart disease and whether the Applicant was obese at the time of the clinical onset of sleep apnoea. There is no dispute that the Applicant was obese for such a period and at such an time. The question that remains is whether the Applicant's obesity was related to his service.
legislationThe relevant legislation in this application is the Veterans' Entitlements Act 1986 and in particular sections 9,120 and 120A. The parties are in agreement that the Statement of Principles ("SoP") relevant to this application is SoP No. 38 of 1999, concerning ischaemic heart disease. The relevant SoP for sleep apnoea is SoP No.39 of 1997. In addition, SoPs Nos 38 of 1999 and 39 of 1997 refer to the Repatriation Medical Authority's Statement about the causes of "being obese" dated 16 August 1996 (the "Obesity Statement").
Section 9(1) of the Act provides:
"Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c) the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d) the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;
(e) the injury suffered, or disease contracted, by the veteran:
(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise."
Sections 120 and 120A of the Act are set out later in this Statement of Reasons.
Applicant's evidenceThe Applicant gave a brief history of his employment. He said that when he left the Army he went back to work with the Commonwealth Bank. He worked in the head office in the Housing Loans Department posting ledgers and doing Land Titles Office searches. He did this work for two to three years. The searches involved him in walking to the Land Titles Office about twice a week which in turn involved him in walking and standing for about half of the day.
He then worked in Government Ledgers, supervising the balancing of Government cheques. This was mainly sedentary work. Later he worked in the Balancing Section for about 12 months. This was quite sedentary but involved some running up and down stairs. By about the mid 1950s the Applicant was working at a counter as a teller.
The Applicant said that at about that time he and some colleagues established a credit union. He said that he would collect money in small amounts from members. The credit union made its first loan of 25 pounds about six months after it was started. His involvement in the credit union meant that he worked back at night and this caused some problems with his marriage at the time.
The Applicant said that he would occasionally take his children to the Blue Mountains in the car, park at Echo Point and walk for about four hours around the area. He said he did this walk about 6 times per year until the early 1980s. He said that he did not play sport at this time nor had he previously, with the exception of tennis, which he played every Saturday before the war. He said that he was a "mummy's boy" and was very protected. He said that after the war there was no opportunity to play tennis, living as he was in a small flat in North Sydney, with no friends and no interests except for stamp collecting.
The Applicant said that in the first half of the 1960s he was a teller at the Overseas Counter at the Commonwealth Bank and in this job he was on his feet for most of the time. He did this for about 12 months. He was then promoted to second officer in Government Ledgers which was a sedentary supervisory job. He said that he was still involved in the staff credit union and was working in relation to this at least three evenings per week.
At this time he was building a house on some land that he had bought at the Central Coast. It took him about two years to build the house and he did most of the work himself on weekends. He said the work was quite physical.
The Applicant was transferred to the Reserve Bank in 1965. He was associated with the changeover to decimal currency and as purchasing officer he was required to leave the office regularly to attend showrooms and inspect equipment. He was also required to travel to Melbourne for trips lasting up to two months. On evenings when he was in Sydney, he attended meetings of the credit union about three nights per week.
The Applicant said that in the late 1960s he was living at Dover Heights and his marriage had just about dissolved. In order to live separately from his wife, the Applicant dug out a room under his house and turned it into a flat. This involved digging sand and, with the help of some tradesmen, he brought in blocks of sandstone to support the foundations of the house and create a new room for himself to live in. He said this took six months and was all manual labour. He said that during this period he continued to go to the Blue Mountains and do the same walk.
The Applicant said that he left the Reserve Bank in 1972, having been charged with fraud. He became a tax consultant with ITP and opened a branch at Glebe. He said he did everything, including cleaning, himself and during July, August and September he would often work until 10 pm.
In 1974 the Applicant bought an ITP franchise at Rockdale, having by then worked at both the Glebe and Rockdale offices. He described a very busy working life, often working in the evenings and having responsibility for 15 offices and 150 employees - most of them part-time.
The Applicant said that his work was very important to him and he described himself as a workaholic. He said that work allowed him to avoid being social and made up for his loneliness. He said that his working life affected his relationship with his wives and described himself as a "lousy father".
The Applicant worked at ITP until 1982 when he sold his franchise. He had married his current wife, an employee, in 1981. He and his wife moved to the Central Coast where he set up on his own business as a tax agent. He began with approximately 50 clients but this grew to 400 clients, approximately half of which were business clients. He would often visit his business clients so as to become familiar with their businesses and went on regular trips to Goulburn, Glen Innes, Tullamore and Stanthorpe.
The Applicant said that his house on the Central Coast was on approximately 25 acres. Over 18 months, he built a track from the house to the ridge below his house and around back up to the house again, approximately 400 metres long. He said that he did this by cutting into the side of the hill below his house. He made the track wide enough to accommodate his wife's wheelchair and took the walk along the track about twice per week, taking 30-60 minutes. The Applicant and his wife moved from this property after eight years when the Applicant had a heart attack and discovered that it took 40 minutes to get to the hospital.
The Applicant said that he has done little exercise over the years for a combination of reasons, including a lack of will power, a lack of opportunity because he was working so hard and needed to relax on weekends and the fact that he is "not a physical person at all".
The Applicant said that until he was 12 years old he was a vegetarian. He said that when he worked back at the credit union at night, he would generally obtain a sandwich and a beer for dinner. At ITP when he worked evenings, he would generally get a snack at the Rockdale Business Club in the form of a pie or a sausage roll. If he was not working back, he would go home for dinner and generally have meat and vegetables. He said that after he married his second wife, he began to eat the fried food which she cooked.
The Applicant said that in the 1960s and 1970s he spent, in his working life, approximately 85 per cent of his time sitting and the remaining 15 per cent walking or standing. He said that he seldom saw a doctor and so received no advice about his diet, his lack of exercise or his drinking.
Medical evidenceMr Philip Keech, dietician, concluded that there is no relationship between the Applicant's excess energy intake, his excess alcohol intake or his disinterest in physical activity with any aspect of his service. However, he said in his report (Exhibit R4):
"Mr Falconer demonstrated that he was quite able to undertake physical activity when the need arose (bush walking, war service duties, tennis, skating and building paths) but he preferred sedentary activities (drinking, stamp collecting, relaxing an weekends)...
It has been documented that Mr Falconer at various times of his life ate high fat foods (which have a higher energy density), ate the extra food as a reaction to a particular stressful situation with which he was dealing at the time and that he drank alcoholic drinks regularly, at times excessively. If in addition to this he was employed in a sedentary occupation and preferred sedentary hobbies, it would come as no surprise that there may be an excess energy intake over expenditure albeit only 20 Calories per day. Such a scenario would entirely account for the observed weight increase."Dr Miller, consultant physician, gave the following diagnosis at T26:
"Mr Falconer suffers from morbid obesity. He has a clear history of alcohol abuse, as defined in the Statement of Principles for alcohol dependence and abuse, instrument No 76 of 1998. Specifically he has a maladaptive pattern of alcohol consumption and has many occasions when he drove his car when under the influence of alcohol. This has resulted in two motor vehicle accidents.
He also suffers from ischaemic heart disease, from his history he first developed symptoms that could well be angina as early as 1965 but which became a problem in 1975. He suffered a myocardial infarction in 1990…
In my opinion Mr Falconer satisfies the Repatriation Medical Authority statement about the causes of being obese. His alcohol abuse has exposed him to an environment which encouraged caloric intake, where this caloric intake is excessive to energy needs and cannot be compensated by adequate physical activity. In 1978 he had had a weight gain of 42 % of his weight when he was discharged from the army (70 kg).
In my opinion Mr Falconer satisfies the definition for alcohol abuse in the Statement of Principles, instrument number 76 of 1998 and satisfies factor 5 (a) as he has an accepted disability of post-traumatic stress disorder at the time of the onset of his alcohol abuse. In view of this, I consider that there is a reasonable hypothesis relating his obesity and therefore his ischaemic heart disease to war service"Associate Professor Mattick said in his report (Exhibit R2):
"He told me, in response to specific questioning that if he is emotionally distressed he may eat more and if he gets to feel depressed or anxious he might eat more. I asked him about these episodes and he said that he may have three or four slices of bread without butter, but with cheese and fruit and this would occur "only six times a year", approximately. He was unsure of the frequency that he may have bread, fruit and cheese, but said that this was not a frequent event."
Associate Professor Mattick concluded as follows:
"Mr Falconer does satisfy the diagnostic criteria for alcohol abuse but clinical onset of the alcohol abuse was probably in the 1970s. There is no evidence of it being present prior to that time, given his comments about his consumption earlier than 1975. I believe that his alcohol abuse is probably a primary condition caused by unhappiness associated with his second marriage and caused by workplace stress. I suspect it is not secondary to his war-caused post traumatic stress disorder…
There is some evidence that alcohol consumption causes weight gain. Alcohol has caloric content. He does not appear to have compensated for the caloric content of the alcohol by decreasing his general daily caloric intake from food. The alcohol consumption may be the cause of his increased weight, which certainly appears to have increased more than 20 % from his baseline weight, whether directly before or directly after operational service. Whether this weight gain can be totally attributed to alcohol consumption is unclear. I do not believe that it can be associated with excessive intake of food on the few occasions each year when he might eat four slices of bread, 250 grams of cheese and number of pieces of fruit. Of course, specific and specialist advice from a dietician may be appropriate, but from my perspective the caloric load from this occasional extra food intake is unlikely to be the cause of weight gain. The intake of alcohol across time could have caused the weight gain, although he does not appear to have lost weight markedly when he reduced his drinking.
He has not met criteria for a binge eating disorder and there is no relationship between his eating and his post-traumatic stress disorder."
Dr Robinson, consultant psychiatrist, reporting to the Department of Veterans' Affairs (Exhibit R3), said:
"Pressing him for other symptoms of 'nerves', he told me that if he really gets worried he eats. He admits that he is 'too fat' and he has trouble walking up and down steps or distances, because he gets short of breath and pain in his hips. He volunteered that he used to drink too much, that the drinking made him put on too much weight, and that this caused his heart problems. He told me that he had put this argument to the Board, and did not know why it was rejected; he added that an appeal was pending."
On the issue of the Applicant's of avoidance of thoughts and feelings, Dr Robinson said:
"I note that his reaction to the suicide of his son last year was similar. He told me that he had no real feelings about it, after hearing that his son had hung himself. He just threw himself into work."
In relation to loss of interest, Dr Robinson said:
"On item C4, loss of interest, he replied that he had lost no interest in anything. History from his wife revealed a loss of interest in nearly everything, for example, his stamp collection which was reputed according to his wife to be one of the best collections in Australia, is now of no interest to him whatsoever. (She told me he is not interested in anything at all nowadays, and that although he dabbles around with his work that is just to keep busy."
Dr Robinson concluded that the Applicant has Post-traumatic stress disorder with alcohol dependence in sustained partial remission. He concluded that the Applicant has used alcohol as a way of helping him suppress his feelings and has used work as a way of distracting himself from his feelings.
Dr Michael Hayes reported to the Department of Veterans' Affairs on 23 June 1999 (T13) that the Applicant suffers from severe obstructive sleep apnoea which is in part related to his obesity.
SubmissionsMr Jones, for the Applicant, submitted there is an inconsistency between the relevant SoPs and the Obesity Statement in that whereas the SoPs, in the definition of "obesity", allow for an energy intake in excess of expenditure over a period of time, the Obesity Statement, factor (a), appears to require an inability to compensate for excessive caloric intake by "adequate physical activity". He submitted that this requirement is, if interpreted as the Respondent would wish it, unnecessarily punitive, placing an onus on the Applicant to undertake "adequate" physical activity. He urged an interpretation that took into account the circumstances of the Applicant's life and the effects of his war-caused Post-traumatic stress disorder.
Mr Jones submitted that the term "exposure to an environment" as it appears in the Obesity Statement, should be interpreted to mean the circumstances of life, of a person or of a society and referred the Tribunal to the definition of the word "environment" in the Oxford Australian Concise Dictionary. He submitted that the Applicant's Post-traumatic stress disorder, his excessive alcohol consumption and his increased caloric intake are the circumstances of his life. He noted that the factor does not qualify the word "environment" with the word "service" and so the word "environment" should be given its broad and ordinary meaning.
Mr Jones also submitted that the Applicant's excessive alcohol consumption is war-caused, given that his Post-traumatic stress disorder is war-caused, and that this is confirmed in Dr Mattick's report.
In relation to the steps required to be taken by the Tribunal as stated in Repatriation Commission v Deledio (1998) 83 FCR 82, Mr Jones submitted that the first two steps are clearly satisfied and that the third step, that is, whether there is consistency between the hypothesis put forward by the Applicant and the relevant SoPs, is also satisfied. Mr Jones submitted that the Applicant did attempt to compensate for excessive caloric intake by undertaking adequate physical activity, given the circumstances of his life. In the alternative, Mr Jones submitted that the Applicant was prevented from compensating with adequate physical activity because he threw himself into his work and this was as a direct result of his psychiatric condition.
Ms Breuer, for the Respondent, submitted that the Obesity Statement requires three elements to be satisfied in order for obesity to be war-caused. The first element, in her submission, is "exposure to an environment" and this environment refers to a service environment. In the alternative, Ms Breuer submitted that the word "environment" in the Obesity Statement refers to external matters and not to internal matters such as a person's state of mind. She noted that it can be argued that there are some external circumstances that have influenced the Applicant's caloric intake such as his work environment and changes in his homelife which gave rise to dietary changes and encouraged an increase in caloric intake. These, however, were not related to his war service, although at the resumed hearing Ms Breuer indicated that the Respondent does accept, in principle, that there can be a connection between war-caused Post-traumatic stress disorder, alcoholism and caloric intake.
Ms Breuer submitted that the next element required in factor (a) of the Obesity Statement is an inability to compensate for excessive caloric intake by adequate physical activity. She submitted that, on the Applicant's evidence, he was capable of undertaking strenuous physical activity and therefore his failure to do so to the extent required to compensate for increased caloric intake was a matter of choice or preference for him. She submitted that it was not as a result of his psychiatric condition. Ms Breuer submitted that the word "adequate" in factor (a) means adequate to compensate for caloric intake so as to prevent obesity.
ConsiderationIt is convenient to set out the relevant provisions of sections 120 and 120A of the Act:
"120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
…
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
…
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;as the case may be."
In Repatriation Commission v Deledio (supra), the Full Federal Court summarised the steps that are to be taken by the Tribunal in applying the above provisions, in relation to a condition contended to arise out of operational service, and deciding whether a disease or injury is war-caused. The Tribunal adopted these steps in consideration of this application.
does the material before the tribunal point to a hypothesis connecting the applicant's ISCHAEMIC HEART DISEASE AND SLEEP APNOEA with the circumstances of his operational service?Mr Jones, for the Applicant, submitted that the Applicant's hypothesis is in accordance with that outlined in the report of Dr Miller. In summary, that is: the Applicant is obese and was obese for a period of at least two years within the 15 years immediately before the clinical onset of ischaemic heart disease and, in relation to sleep apnoea, was obese at the time of the clinical onset of sleep apnoea. The Applicant consumed alcohol and food to excess because of his accepted war-caused condition of Post-traumatic stress disorder. This exposed him to an environment which encouraged caloric intake, where this caloric intake is excessive to energy needs and cannot be compensated by adequate physical activity.
which statement of principles is relevant to the hypothesis?The SoPs relevant to this hypothesis are SoP No. 38 of 1999, concerning ischaemic heart disease and SoP No. 39 of 1997, concerning sleep apnoea. In addition, SoPs No 38 of 1999 and 39 of 1997 refer to the Repatriation Medical Authority's Statement about the causes of "being obese" dated 16 August 1996 (the "Obesity Statement").
The factor in SoP No. 38 of 1999 relied upon by the Applicant is factor 5(c) which states:
"(c) being obese for a period of at least two years within the 15 years
immediately before the clinical onset of ischaemic heart disease;"
SoP No. 38 of 1999 defines the term "being obese" as follows:
""being obese" means having an increase in body weight by way of fat
accumulation beyond an arbitrary limit, and due to a cause specified in the
Repatriation Medical Authority's Statement about the causes of "being
obese" signed by the Chairman of the Authority on 16 August 1996.
The measurement used to define "being obese" is the Body Mass Index
(BMI).
The BMI = W/H², where:
W is the person's weight in kilograms and
H is the person's height in metres."Being obese" is where the BMI is 30 or greater. This definition excludes
weight gain not resulting from fat deposition such as gross oedema,
peritoneal or pleural effusion, or muscle hypertrophy. "Being obese"
develops when energy intake is in excess of expenditure for a sustained
period of time.For a factor to be included as a cause of "being obese" it must have
resulted in a significant weight gain, of the order of a 20% increase in
baseline weight, and in association with a BMI of 30 or greater;"The factor in SoP No.39 of 1997 relied on by the Applicant is factor 5(b):
"(b) being obese at the time of the clinical onset of sleep apnoea;"
SoP No. 39 of 1997 defines the term "being obese" in similar terms as in SoP No. 38 of 1999.
The factor in the Obesity Statement relied on by the Applicant to establish a causal connection between the Applicant's war service and his obesity is factor (a):
"(a) exposure to an environment which encourages caloric intake, where this caloric intake is excessive for energy needs and cannot be compensated by adequate physical activity, and which has resulted in a weight gain of at least 20% of the baseline weight."
is there consistency between the hypothesis and the statement of principles?
The third step for the Tribunal, according to Repatriation Commission v Deledio (supra) is to form an opinion as to whether the hypothesis raised is reasonable. If the hypothesis is consistent with the template in the relevant SoP, it will be reasonable. The hypothesis raised must contain at least one of the factors in the SoP that the SoP says must exist, and that factor must be related to the Applicant's service. Finn J explained the proper operation of step three in Harris v Repatriation Commission (2000) 62 ALD 174 at 185 where he said:
"It is important to bear in mind that the tribunal, when dealing with stage 3 of Deledio, was concerned not with the proof or disproof of the various SoP factors as such in Mr Harris' case, but with whether material before it was consistent with the existence of those factors, or else properly allowed one or more of them to be assumed, so permitting the SoP to uphold the applicant's hypothesis. Importantly, as Heerey J noted in Deledio (47 ALD 261 at 275), an hypothesis can so be upheld notwithstanding that 'one of the disputed facts happens also to be a component of an SoP'".
The main difficulty in this application was the identification of the templates with which the Applicant's hypothesis must conform. This was so, notwithstanding that particular factors in particular SoPs and in the Obesity Statement had been identified. The difficulty arose from the wording of the factors themselves and, in particular, factor (a) in the Obesity Statement.
The first difficulty raised by the wording of factor (a) of the Obesity Statement was the meaning of the words "exposure to an environment which encourages caloric intake". The first issue raised by these words is whether the environment referred to is limited to the "service environment" or whether it can be interpreted to encompass the environment the Applicant was exposed to after he left the Army. The other issue was whether the "environment" referred to is an environment external to the Applicant or one that includes his internal state of mind.
The second difficulty raised by factor (a) of the Obesity Statement was that it appears to require not only a particular environment, but also an inability to compensate for excessive caloric intake by adequate physical activity. The Tribunal notes Mr Jones' comments on the punitive nature of this requirement, but the use of the conjunctive "and" in factor (a) of the Obesity Statement leaves no room for a different interpretation
Turning first to the question of the Applicant's ability or otherwise to compensate for excessive caloric intake by adequate physical activity, the material before the Tribunal in relation to the Applicant's capacity for physical activity is limited to the evidence of the Applicant. As summarised above, his evidence was that he undertook 4 hour walks in the Blue Mountains approximately 6 times per year until the early 1980s and at his house on the Central Coast he not only built a 400 metre track through the bush but walked it for 30 minutes to an hour approximately twice per week. In addition, the Applicant's evidence was that, by his own labour, he built a house for his family at the Central Coast and dug out, by manual labour, a flat under his house at Dover Heights. The material before the Tribunal does not point to the Applicant having been incapable of physical activity. Indeed, the activities described by him were strenuous and somewhat demanding.
Mr Jones submitted in the alternative that the Applicant was prevented from compensating with adequate physical activity because he threw himself into his work and this was as a direct result of his Post-traumatic stress disorder. However, the Applicant's evidence was that he did not exercise regularly over the years for a number of reasons including a lack of will power, a lack of opportunity because he was working so hard and needed to relax on weekends and the fact that he is "not a physical person at all". The Tribunal considers that this material does not point to the Applicant's war-caused psychiatric condition having made him incapable of compensating by adequate physical activity but rather to a preference for physically inactive pursuits. This is particularly so, given Mr Keech's report of an impressively extensive stamp collection.
The Tribunal was mindful of Dr Miller's report and his conclusion that the Applicant's obesity is related to his war service. However, Dr Miller's conclusion is more in the way of an assertion rather than a supported argument or analysis and does not address the issue of physical activity.
Given the hypothesis' inconsistency with one aspect of the template, it is not necessary for the Tribunal to consider the meaning of the words "exposure to an environment which encourages caloric intake". It is clear to the Tribunal, however, that the words used in factor (a) of the Obesity Statement create uncertainty and involved the parties and the Tribunal in submissions and discussions that might have been avoided by more careful drafting.
For these reasons, the Tribunal concludes that the Applicant's hypothesis is not consistent with the templates contained in SoPs Nos. 38 of 1999 and 39 of 1997 in so far as those templates incorporate factor (a) of the Obesity Statement. It follows that the Applicant's hypothesis is not a reasonable one within the meaning of the Act. Therefore the Applicant's ischaemic heart disease and sleep apnoea are not war-caused.
DeterminationThe decision under review is affirmed.
I certify that the 63 preceding paragraphs are a true copy of the reasons for the decision herein of MS N BELL, Member
Signed: H Sim .....................................................................................
AssociateDates of Hearing 4 March 2002, 24 June 2002
Date of Decision 9 July 2002
Solicitor for the Applicant Mr Paul Jones
Advocate for the Respondent Ms Susie Breuer
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