Gosbee and Repatriation Commissioon
[2001] AATA 139
•26 February 2001
DECISION AND REASONS FOR DECISION [2001] AATA 139
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. N1998/1758
VETERANS' APPEALS DIVISION )
Re Frederick George GOSBEE
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mrs M T Lewis, Senior Member Dr J D Campbell, Member
Date26 February 2001
PlaceSydney
Decision The Tribunal affirms that part of the decision under review, being the decision of a delegate of the Repatriation Commission dated 3 December 1997, that refused the claim of Frederick George Gosbee in respect of hypertension.
..............................................
M T Lewis
Presiding Member
CATCHWORDS
VETERANS' AFFAIRS – Entitlement – claim for hypertension – Statement of Principles applied – whether Veteran obese at the time of clinical worsening of hypertension – whether Veteran suffering from persistent obesity which developed and continued at least until the clinical worsening of hypertension – whether Applicant's accepted disabilities reduced his capacity to exercise - whether causal relationship between Veteran's defence service and his obesity
Veterans' Entitlements Act 1986 – ss 120(4) and 120B
Statement of Principles – Instrument No 84 of 1995 and Instrument No 26 of 1999
Re Olsen and Repatriation Commission [2000] AATA 909
Repatriation Commission v Keeley (2000) 98 FCR 108
Repatriation Commission v McLean (1998) 50 ALD 149
REASONS FOR DECISION
26 February 2001 Mrs M T Lewis, Senior Member Dr J Campbell, Member
This is a review of a decision of a Delegate of the Repatriation Commission ("the Respondent") dated 3 December 1997 that determined that the claim by Frederick Gosbee ("the Applicant") for hypertension should be refused. The Applicant sought review of that decision by the Veterans' Review Board ('the VRB"), and on 30 September 1998 the VRB affirmed the decision. The Applicant lodged an application for review by this Tribunal on 7 December 1998. All applications for review were in time, and therefore the earliest date of effect is 15 July 1997 being a date not more than three months before the Applicant lodged his claim for hypertension.
The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The Applicant gave oral evidence at the hearing and tendered the following documents:
Clinical notes of Dr B J Collins, orthopaedist, dated 27 October 1980 and X-ray reports on the Applicant's right ankle dated 22 July 1977 and 24 October 1980 (exhibit A);
Report of Dr M Geoffrey Miller, consultant physician, dated 24 June 1999 (exhibit B);
Statement of Frederick George Gosbee dated 1 August 1999 (exhibit C).
The Respondent called Professor M F O'Rourke, cardiologist, to give oral evidence at the hearing, and tendered the following documents:
X-ray report on the Applicant's right ankle dated 4 August 1977 (exhibit 1);
Letter of referral to Professor M F O'Rourke from Australian Government Solicitor dated 14 August 2000, 2 reports of Professor O'Rourke dated 7 July 2000 and 21 August 2000 and Curriculum Vitae (exhibit 2);
Attachment "C" to referral letter from Australian Government Solicitor to Professor O'Rourke dated 14 August 2000 (exhibit 3).
legislation and issues
The Applicant had the following periods of operational service whilst in Malaya, at Butterworth –
4 May 1967 to 1 June 1967
7 September 1967 to 19 October 1967
14 May 1968 to 9 July 1968.
However his claim for hypertension is only in relation to his eligible defence service from 7 December 1972 to 30 March 1984.
This matter falls for consideration pursuant to s120(4) of the Veterans' Entitlements Act 1984 ("the Act"), that requires that the matter be determined to the Tribunal's reasonable satisfaction. As the Applicant lodged his claim in respect of hypertension on 15 October 1997 the matter must be determined pursuant to s120B of the Act by applying the relevant Statement of Principles. The Statement of Principles in place at the time the primary decision was made was Instrument No 84 of 1995 which was subsequently revoked. The most recent Statement of Principles issued by the Repatriation Medical Authority in respect of hypertension is Instrument No 26 of 1999. The Applicant sought to rely on factor 5(n) of Instrument No 26 of 1999 as this was perceived to be most beneficial to his case. He did not wish to rely on his "accrued right" to have the matter determined in accordance with the Statement of Principles applicable at the time of the primary determination.
At the hearing of the matter the Tribunal noted the decision of Re Olsen and Repatriation Commision [2000] AATA 909. The Tribunal Re Olsen (supra), interpreted that the Federal Court decision in Repatriation Commission v Keeley (2000) 98 FCR 108 did not require a veteran to rely on any accrued rights and that sections 8 and 50 of the Acts Interpretation Act 1901 (Cth) only applied to preserve a right where the Statement of Principles in place at the time of the primary decision was advantageous to the veteran. The Respondent submitted that the solution which Davies J suggested in the Federal Court in Repatriation Commission v McLean (1998) 50 ALD 149 could be followed; that is, that it was open to the Tribunal to consider both Statements of Principles and give a decision in respect of each one. The hearing proceeded on this basis.
The Applicant has the following conditions accepted as service-related –
Lumbar spondylosis
Osteoarthritis right ankle
Chronic solar skin damage
Squamous cell carcinoma (L) pinna
Bilateral sensorineural hearing loss
The Applicant claimed that he was unable to exercise adequately because of his service-related lumbar spondylosis and osteoarthritis right ankle, and because of this he was unable to control his weight gain. Ultimately he did not press his case in relation to the effect of lumbar spondylosis. Factor 5(n) of Instrument No 26 of 1999 provides for "being obese at the time of the clinical worsening of hypertension".
applicant's evidenceThe Applicant was born on 2 June 1938. He enlisted in the Royal Australian Air Force on 15 March 1955. In his written statement dated 1 August 1999 (exhibit C) the Applicant stated that from the time of his enlistment he played as much sport as he could which included swimming, rugby union, rugby league and Australian rules football. In his oral evidence he said that he stopped playing physical contact sports due to lumbar spondylosis in 1969 and that he played other less demanding sports such as golf, volleyball and swimming until 1977. In 1977 the Applicant suffered an ankle injury and from that time he had problems with his ankle when playing sport.
The Applicant said that when he undertakes any prolonged physical activity he gets "gout" in his right ankle. His ankle swells and then stiffens so that he has trouble walking and bending. He cannot drive at those times and is usually treated with Indocid to clear the problem.
The Applicant said that he started to put on weight from approximately 1971 onwards, not long after he stopped physical contact sport. He said that until that point he had been able to maintain a reasonable weight, given that he is big-boned.
The Applicant said he was first advised that he had hypertension in 1978 when he had an "over 40s" medical examination required by the RAAF. The Applicant said he was first treated for hypertension in 1978 and at that time he was advised to reduce his weight and salt intake. The Applicant said that as a result of this advice he reduced his dietary intake of sugars, fatty fried foods and salt.
The Applicant said that in 1980 he was enrolled in a weight reduction program and physical fitness course organised by the medical staff at RAAF Richmond. The program included distance walking and physical exercises such as circuit training. The Applicant said he could walk about half a mile before his ankle caused him trouble. Unfortunately, he was unable to continue with this program after about two weeks because his ankle "blew up" and he was referred to Dr Collins. On cross-examination the Applicant admitted that Dr Collins said that had not advised him against doing any exercise – rather he was told to avoid any jolting or other action that would result in trauma to the ankle. The Applicant did not continue to consult Dr Collins at that stage.
In cross-examination the Respondent drew to the Applicant's attention that in April 1981 it was noted in his medical records that he had difficulty exercising because of gout. The Applicant said that his father also suffers from gout, and both parents have hypertension. The Respondent also drew the Applicant's attention to the clinical notes of Dr Kolos (T3, p27) where it is noted that "Both pt's parents have a history of both obesity & hypertension". The Applicant said that his mother was never overweight and that his father is a big build, but not overweight to an extreme.
The Applicant said when he received the rank of Warrant Officer he was not required to do much heavy work, but as a Sergeant he was required to do heavy work. In 1965 he injured his back lifting heavy radio equipment. He was able to return to normal duties, including football, after this injury. In 1971 the Applicant suffered a severe strain to his back and was hospitalised for about three days. He said that after December 1971 he was "aware" of his back but did not seek further medical attention for it. He said he took pain killers when he had back pain.
The service medical records (T3, p60) indicate that the Applicant played touch football in February 1974 while not wearing shoes, and took several layers of skin off his feet. When this incident was drawn to the Applicant's attention in cross-examination he said that that activity did not put too much strain on his back. He said that probably he was also swimming at that time and also played a 15 to 20 minute game of social volleyball once a week.
In the service medical records of July 1975 it was noted that the Applicant complained that his back had been aching since he had undertaken drill on an Officer Training Skill course. The Applicant reported that he had had intermittent trouble with his back for four years. In cross-examination the Applicant said that this trouble would occur two to three times a year. If he did something such as bend down to look at the wheels on the car and went to straighten up, or lifted something, he would get "terrific pain". At the time of that consultation in July 1975 it was recorded that when he moved to get something out of the back of the car he had severe pain in his back and could not straighten up (T3, p51).
In April 1976 the Applicant reported constant back pain and chest pain and throbbing ache in both arms following bricklaying - he was building a barbecue in his backyard (T3, p54). In February 1977 he complained (T3, p48) of strained lumbar muscles. In cross-examination the Applicant could not remember this incident.
The Applicant agreed that until 1977 he was able to carry out normal duties and presented for medical attention when his back pain became severe. Other than these problems, however, he carried out his normal duties and continued to swim and play volleyball. Indeed he sustained the injury to his right ankle while playing volleyball (T3, p 48, 12 July 1977). His ankle was put in a plaster caste for a few weeks. The Applicant said that he has had restricted movement in his ankle since that time.
The Applicant said that in 1977 he was not on permanent restriction of duties, but his ankle would regularly "flare up" and so he was no longer involved in the normal physical training programs or routines of the unit. He tried to maintain as much swimming as he could to address his weight gain. He said he would swim two to three times a week during summer. However, as there was no heated pool he did not do very much exercise during winter.
The Applicant said he developed gout not long after the ankle injury, about 1979 or 1980. He said that about 5 days of 20 minute walking on a treadmill would bring on a gout attack. By taking Indocid his ankle would return to normal in four to five days. The Applicant noted that now he does not consume white wine or peanuts. However he considered that his diet does not seem to matter, and he noted that as soon as he commences any regular exercise, his ankle starts to swell and stiffen.
The Applicant said that over the period since 1980 he tried to maintain a lower intake of food by restricting himself to three meals a day. He avoided eating sweets, cakes and biscuits. He has maintained that diet ever since.
The Applicant stated that he had been advised to lose weight throughout his career. He has lived at home rather than in barracks, apart from his overseas service of six months in Ubon. He said that his wife catered for his special dietary requirements.
The Applicant said that he is now a social drinker and drank two beers a month. In previous times he drank more as he was expected to attend mess for most functions, the frequency depending on the officer in charge. He said he "enjoys a soft drink". He believed he has maintained his weight because he has not been able to get enough exercise. He lost some weight on the Jenny Craig program, but was unable to maintain the exercise. He said he has never been a big eater or a heavy drinker and has never smoked. The Applicant was referred to Professor Katterson at Royal Prince Alfred Hospital for the modifast program but again he was unable to undertake the exercise regime.
In response to the Tribunal's comment that the Applicant did not appear to lose weight even when he was more active he said that he did lose 8 or 9 kilograms during his two periods in Asia when he developed an "irritable bowel".
The Applicant said that after his medical examination in September 1971, he did not have another medical examination until his return from Malaya in 1975 and the next was in 1978.
medical evidence
Dr M. Geoffrey Miller, Consultant PhysicianIn his report dated 24 June 1999 (exhibit B) Dr Miller noted the Applicant's back injury in 1971 and that despite the injury the Applicant was still trying to exercise in 1977 but his activities were restricted. Dr Miller also referred to the ankle injury and noted that by 1978 his ankle became swollen and locked when walking on rough ground or running and walking fast. He had had to give up all sporting activities and there was a significant restriction of his exercise.
Dr Miller also gave the following history of the Applicant's hypertension:
I note that on 1st November, 1974 his blood pressure was elevated at 135/100… In 1975 he was hypertensive with a blood pressure of 140/95… but the elevated blood pressure was not recognised until 1978… his blood pressure is recorded at 160/130 in June 1978 and treatment with propranolol and Enduron, a thiazide diuretic was prescribed. On 4th August, 1978 he was obese with a weight of 102 kg and weight restriction was advised but his weight continued to increase. He reached 104 kg in June 1981… and … 106.3 kg on 12th March 1981 and 105 kg on 10th April 1981.
His blood pressure remained poorly controlled and Minipres (sic) was added to his treatment on 24th April 1981. At that stage his blood pressure was 155/120 sitting and 145/100 lying.
Dr Miller opined:
I have no doubt that Mr Gosbee's obesity has significantly contributed to his hypertension. His baseline weight appears to be 88 kg, this is on 30th May, 1962 at the age of 24 when he had ceased growing and I agree with the determination of the Veterans' Review Board… that he was obese, in the context defined by the Statement of Principles, when his weight reached 105.6 kg. … a weight of 106.3 kg on 12 March 1981 and, although he had a transient and mild loss of weight over the next month, his weight continued to increase. In my opinion he satisfied the Statement of Principles for obesity causing hypertension in March 1981…
…
Mr Gosbee injured his right ankle in 1977. This, and his other accepted disability of lumbar spondylosis, prevented him exercising and contributed to his obesity. He gained 20% of his baseline weight in March 1981 and satisfies the Statement of Principles for clinical worsening of hypertension in November 1981.
Professor O'Rourke
Professor O'Rourke, in his report dated 7 July 2000 (exhibit 2) noted that the Applicant's blood pressure was normal at least until 1972, despite his weight gain to 215 lb (97.5 kg). His systolic blood pressure rose to 160 mmHg in 1978 when he weighed 104 kg, but with treatment this became controlled until 1984 when he was discharged from the RAAF at which time his weight was 108 kg. Professor O'Rourke noted that the Applicant's systolic blood pressure in subsequent years has generally been over 150 mmHg and he has remained overweight.
Professor O'Rourke had access to a schedule of the Applicant's blood pressure readings and weight measurements from 1954 until 1997 (exhibit 3). He opined that the Applicant was apparently overweight before he suffered any significant back injury. He weighed 96.7 kg in August 1966 when his blood pressure was 120/80. In 1972 he weighed 100 kg and his blood pressure was 135/80. His blood pressure was high in 1976 before he sustained the ankle injury. Prior to the ankle injury he was playing golf, volley ball and swimming. Professor O'Rourke also expressed reservations about the blood pressure levels recorded in exhibit 3 between 1978 and 1984, as that was a time when two different methods were used to determine the diastolic blood pressure. In his oral evidence he said that the diastolic recordings could not be relied upon. However the same method was used for measuring systolic blood pressure throughout the period of the Applicant's service and afterwards, and therefore is more reliable. In his oral evidence he also expressed concern about the effect of obvious rounding when the recordings have been made.
In his oral evidence he was also not sure whether an appropriate sized cuff had been used when taking these readings. He said that use of a standard cuff in a person who has a high body weight is likely to give misleadingly high levels of systolic and diastolic pressure. He expressed concern about the reliability of the diastolic measurements. However, when prompted by Tribunal questions, he did note that there were larger cuffs available in the 1970s and it was known that there was a need to tailor the size of the cuff to the size of the arm. He did not have personal knowledge of the practices of the armed forces during the 1970s. He said that in 1971 most places had only one size cuff available.
Professor O'Rourke noted that the blood pressure recording of 130/80 when the Applicant was aged 16 years was in the high normal range. He considered that the Applicant's injuries to his back and ankle during his service did not appear sufficient to cause an unusual weight gain.
Professor O'Rourke also opined that the Applicant had no symptoms related to his hypertension and no limitations from the condition.
In his report dated 21 August 2000 (exhibit 2) Professor O'Rourke assessed that any weight for the Applicant greater than 97.2 kg, representing a body mass index ("BMI") of 30 or greater, was obese. He also noted that the Applicant's baseline weight was 87.3 kg, and using the definition of "being obese" as a 20 percent increase from the baseline weight, a weight of 105 or greater met this definition of "being obese". Professor O'Rourke then noted that the first date on which it was recorded that the Applicant had a BMI of 30 or greater was on 22 September 1971. The Applicant had a 20 percent increase in baseline weight in association with a BMI of 30 or greater on 12 March 1981, 10 April 1981, 20 February 1984, 14 September 1984 and 16 July 1990.
The Applicant satisfied the definition of "obese" in Instrument No 84 of 1995, on 12 March 1981, 10 April 1981, 20 February 1984, 14 September 1984 and 16 July 1990. He satisfied the definition for "being obese" in Instrument No 26 of 1999 on 22 September 1971, 16 October 1972, 4 August 1978, 18 July 1978, 11 August 1978, 7 November 1979, 6 December 1979, 6 December 1979, 27 February 1980, 18 May 1981, June 1981, 12 March 1981, 10 April 1981, 3 June 1981, 20 February 1984, 14 September 1984 and 16 July 1990. Assuming that the method of recording blood pressure was accurate, Professor O'Rourke considered that the first date of hypertension was 22 September 1971 (in his earlier report he considered it was 1978). He also said that a clinically significant worsening of hypertension was evident on 11 August 1978. He also considered that the Applicant had persistent obesity. He had not been "persistently obese" prior to 22 September 1971.
Professor O'Rourke said that in 1971 a reading above 160/95 was considered unacceptable. He also noted that these levels have been "liberalised" in the last three or four years, and that readings of 140/90 are now considered borderline. He considered the new guidelines to be very liberal and said they would include most of the population over the age of 55 as being hypertensive.
Professor O'Rourke said he would not attach any significance to the Applicant's blood pressure reading of 120/90 in September 1971. While he considered above 90 to be abnormal, 90 and lower was in his view acceptable.
Professor O'Rourke said in his oral evidence that if one maintained the same dietary habits, had a propensity to gain weight and was restricted due to some injury in one's ability to undertake vigorous activity such as running or jogging to assist in weight reduction, one would be more prone to weight gain. However, he noted that if the Applicant had gained weight it might have been because he did not reduce his dietary habits appropriately. In such circumstances his weight should have been monitored. If the Applicant was unable to undertake physical activity his weight would have increased only if his diet was inappropriate for the level of activity he undertook. Professor O'Rourke said that a 1500 calorie or a 1200 calorie diet would have been appropriate diet management at the time if it were followed.
On cross-examination, Professor O'Rourke agreed that based on the Statements of Principles to which he had been referred and the blood pressure readings and weights provided to him at various dates, the Applicant became obese in 1981. He also agreed that the Statements of Principles had been met.
Professor O'Rourke said that he thought that the recordings taken during the period 1972 through to 1975 would be reasonable and accurate, and at least the diastolic blood pressures in 1974 and 1975 would be regarded as being hypertensive. He said that a clinical diagnosis of hypertension could be made when the Applicant was started on treatment in April 1978. At that stage there had been a series of high levels of blood pressure both systolic and diastolic and there could be no question that the Applicant's blood pressure was elevated by any criteria from 18 July 1978.
clinical notes from service medical recordsThe Applicant's enlistment medical examination on 6 December 1954, when he was aged 16 years and 5 months, noted that he weighed 166 lbs (74.7 kg) and his blood pressure was 130/80 (T3, p82). At a further routine medical examination on 22 June 1961 his weight was 196 lbs (88.2 kg) and his blood pressure was 130/85 (aged 22 years) (T3, p80). On 30 May 1962 his weight was 194 lbs ( 87.3 kg) and blood pressure was 125/85. At that time it was noted that he had a "stocky build" (T3, p78-79).
The next relevant entry was made on 3 February 1965 when it was noted that the Applicant was obese and he was prescribed a 1200 cal. Diet. No weight or blood pressure was recorded (T3, p74). At a routine medical examination on 2 August 1965 blood pressure was recorded as 120/86 and weight was 213 lbs (95.85 kg) (T3, p72). On 15 September 1965 his weight was recorded as 14 st. 7 lbs (92.1 kg) (T3, p74). He had a number of consultations in 1965 for abdominal pain.
On 30 March 1966, at another routine medical examination, the Applicant's blood pressure was 120/80 and his weight was 215 lbs (96.75 kg). "Mild obesity" was also recorded (T3, p71). A further routine medical examination on 20 May 1969 showed blood pressure to be 130/85 and weight as 196 lbs (88.2 kg) (T3, p67).
There was no further reference to the Applicant's blood pressure or weight until 18 January 1971 when he presented with dizziness and his blood pressure was 120/75 (T3, p69). The Applicant had a routine medical examination on 23 September 1971, when blood pressure was recorded as 120/90 and weight was 99.1 kg. At that time it was noted that he was obese, and diet, exercise and Ponderax, which the Tribunal understands is a weight reducing agent, was prescribed (T3, p64).
Although there is a record dated 6 December 1971 of "back pain I.S.Q. Muscle spasm …" there is no previous record of back pain or back injury, although there is an indecipherable entry (T3, p66) that could be relevant.
A further routine medical examination on 16 October 1972 recorded blood pressure at 125/80 and weight was 100.1 kg. It was also recorded "obese – refractory to advice and treatment" (T3, p63).
A consultation on 13 August 1973 referred to the Applicant having back pain after travelling from Singapore, and that he had also had back pain two years previously.
On 21 January 1974 the Applicant was noted to have mild strain of the left ankle. It was tender beneath the medial malleolus. He was advised to strap the ankle and apply Dencorub. On 15 February 1974 it was recorded that the Applicant played football while barefooted and injured his feet, taking off numerous layers of skin (T3, p60). A routine medical examination on 6 September 1974 recorded blood pressure of 140/90 and weight of 92.65 kg. Again it was noted that he was obese but he had lost 7 kg since his last medical examination (T3, p57). On 1 November 1974 it was noted that the Applicant was "currently under review of wt & B.P. For 10 days of BP recordings prior to approved medical review. BP today 135/100 – but has just cycled into OPD. Wt 89 kg." (T3, p56). However there was no record provided of the planned daily monitoring of the Applicant's blood pressure. On 1 October 1974 a routine medical examination was undertaken. It was noted that the Applicant had "lost 10 lbs in weight and seems to be motivated to loose (sic) more". No record was taken of weight or blood pressure at that examination (T3, p55).
In July 1975 the Applicant attended complaining of light-headedness over the last 10 to 14 days which "comes and goes". He also complained that his back had been aching for 7 weeks since starting drill on an OTS (Officer Training School) course. It was then noted that he "has had trouble intermittently for 4 yrs. Over weekend he moved to get something out of back of car à severe pain in back. Could not straighten up. No radiation of pain into legs". Blood pressure was 140/95. The Applicant was advised to lose weight (T3, p51).
The next recorded blood pressure was on 30 January 1976, at 166/110. On 20 April 1976 the Applicant presented with a complaint of back pain, chest pain and throbbing ache in both arms following bricklaying one day ago. He advised the Tribunal in his oral evidence that he had been making a barbecue. At the time of that consultation his blood pressure was 160/110 and it was noted that he was obese but there was no record of his weight. On a further date in April 1976 blood pressure was recorded as 140/95 (T3, p54). On 8 June 1976 blood pressure was 140/95 (T3, p48).
The Applicant sought a consultation on 11 February 1977 about "sprained lumbar muscles" and he was found to have limited flexion and extension of the lumbar spine on that occasion. He was prescribed Indocid.
On 22 July 1977 the Applicant sustained a flake fracture of the right ankle (T3, p48) that was confirmed on X-ray (exhibit A). A follow-up X-ray on 4 August 1977 noted that alignment was maintained and the flake fracture appears to have united (exhibit 1).
The next relevant consultation was on 18 July 1978 when the Applicant's blood pressure was recorded as 160/130, found at an "over 40" medical examination. His weight was 104 kg (T3, p45). His obesity was noted and weight reduction advised. On 4 August 1978 his blood pressure had reduced to 130/94 and his weight was 102 kg. His Blood pressure on 4 September 1978 was 135/110 on the first reading and 120/80 on retesting (T3, p45). It was noted at another entry in September 1978 that Blood Pressure was 140/98, that the Applicant was "over weight ++" and that he admitted that it had increased "lately" (T3, p38). The Applicant was then referred to Dr Dorg, physician, who noted that blood pressure was 128/86 on the first reading and later it was 128/94. In addition to continuing his medication it was recommended that he "increase exercise" and "decrease intake" (T3, p44).
Blood pressure was next recorded on 20 April 1979 at 130/80 (T3, p37), and on 26 September 1979 it was 130/75 (T3, p36). Anti-hypertensive medication continued to be prescribed throughout this period. His weight on 7 November 1979 was 103.3 kg. Blood pressure was not recorded. Blood pressure was 135/90 on 6 December 1979 and weight was 102 kg. It was recorded that he was to start a 1500 cal. Diet and "exercise". On 13 December 1979 blood pressure was 136/92. His weight had reduced to 100.9 kg on 27 February 1980 and blood pressure was 118/84. However, on 28 April 1980 blood pressure was 142/108 and it was noted that he was "off pills 4/7". Further anti-hypertensive medication was prescribed on that occasion. On 29 May 1980 blood pressure was 140/94 (T3, p34). On 10 June 1980 blood pressure was 158/120 and when checked again on the same day it was 144/125. On that occasion it was also noted "alcohol – mod à little. Non-smoker. Diet – adequate". On 19 June 1980 blood pressure was 140/110. He was given "dietary advice". On 6 August 1980 blood pressure was 140/100 and on 1 October 1980 it was 138/98 (T3, p33).
On 24 October 1980 it was recorded that the Applicant had an acute and painful right ankle that developed overnight. No injury had occurred. It was also noted that he had a previous history of fractured ankle three years ago. The ankle was swollen and tender. A further X-ray was taken on 24 October 1980 (exhibit A), that was reported viz.:
There is irregularity of the medial … [malleolus]. This is most probably due to old injury. There is no evidence of a recent fracture of dislocation. There is moderate soft tissue swelling over the lateral aspect of the ankle and lateral malleolus consistent with a soft tissue injury.
On 26 October 1980 it was noted that he had throbbing in ankle joint three days ago, and he had been jogging. The Applicant was seen by Dr B J Collins, orthopaedist, on 27 October 1980. The history and X-ray was noted, and he was advised to avoid jogging and to take anti-inflammatories (exhibit A).
On 28 November 1980, one month after the ankle swelling, the Applicant's blood pressure was 142/98. He was advised to increase exercise, decrease weight, and decrease salt in his diet (T3, p31).
On 29 January 1981 the Applicant's blood pressure was 150/110. He was advised to exercise and review in one week to check blood pressure. On 16 February 1981 blood pressure was 160/120 standing and 140/110 sitting (T3, p32). On 12 March 1981 blood pressure was 130/110. On that occasion he was referred to obtain a weight reduction diet (T3, p30).
On 11 April 1981 the Applicant attended for consultation because of a painful tendon in his left ankle, of sudden onset.. The diagnosis was "Prob. Gout" (T3, p 30). On 13 April 1981 it was noted that his right and left ankles had been swollen on 4 occasions since Christmas. He had been prescribed Butazolidin.
On 24 April 1981 the Applicant's blood pressure was recorded twice, the first 155/120 and the second 145/100. It was also noted that his weight reduction was inadequate, having reduced his weight from 106.3 kg on 12 March 1981 to 105 kg on 10 April 1981. It was noted that he had difficulty with exercise because of his gout (T3, p25).
On 5 May 1981 the Applicant's blood pressure was 140/100 and his weight was 102 kg (T3, p29). On 20 May 1981 the Applicant attended again because of "clinical acute gout L. big toe". At that time his blood pressure was 140/100.
On 3 June 1981 the Applicant's blood pressure was 155/105, and 145/95 after 5 minutes. At that consultation it was also recorded "MUST LOSE WEIGHT", but his weight was not recorded (T3, p29).
On 4 July 1981 the Applicant's blood pressure sitting was 130/95, and standing it was 140/105. It was noted that both the Applicant's parents have a history of both obesity and hypertension (T3, p27).
submissions
Instrument No 26 of 1999It was submitted for the Applicant that the Applicant meets factor 5(n) of Instrument No 26 of 1999, that is "being obese at the time of the clinical worsening of hypertension". It was also submitted that he met the definition of "being obese" as set out in Instrument No 26 of 1999, as his BMI was 30 or greater and he had a weight gain of 20 per cent increase in his base line weight, the baseline weight being 88 kilograms. This was evident in March 1981. It was also submitted that the medical reports support that the Applicant meets the factors set out in the Statements of Principles.
It was submitted that the clinical worsening of hypertension could be illustrated by the need to change medication to deal with the clinical worsening. Dr Miller in his report dated 24 June 1999 stated:
Mr Gosbee's hypertension worsened in November 1981 when Minipress was added to his treatment. I consider that this satisfies the definition "clinical worsening of hypertension" in the Statement of Principles Instrument 26 of 1999 for hypertension. Accordingly I consider that Mr Gosbee satisfies 5(n) as he was obese at the time of the clinical worsening in November 1991.
The report of Professor O'Rourke dated 21 August 2000 also supported the Applicant's case that he would satisfy the Statement of Principles based on the dates for obesity and hypertension accepted by Dr Miller.
It was submitted for the Applicant that his injury to his ankle was a factor in his not being able to exercise to the degree necessary to control his weight.
It was submitted that from the time the Applicant was told he had hypertension and obesity he moderated his diet and continued to do so. On his evidence he entered into a weight reduction program which lasted only a few days because he was unable to participate in the physical aspects of that program and was withdrawn. The Applicant's evidence was that from the time that he was diagnosed as obese he continued with changes to his diet to what he believed was appropriate.
It was submitted that therefore, relying on the reports of Dr Miller and Professor O'Rourke the Applicant meets the factor set out in Instrument No 26 of 1999.
Submissions were also made on behalf of the Respondent in respect of Instrument No 26 of 1999, and the issue of where "causes of obesity" become more significant. The Respondent submitted that the Repatriation Medical Authority Statement About the Causes of Being Obese ("the Obesity Statement") is in effect incorporated in Instrument No 26 of 1999 because of the definition of the words "being obese" as they are used in factors 5(a) and 5(n).
The Respondent noted that the Applicant appeared to rely on paragraph (a) of the Obesity Statement which reads:
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;
It was submitted for the Respondent that both parties are of the same mind about taking the baseline weight in the old system, of 194 lbs (88 kg) as at May 1962. An increase of 20 percent of the baseline weight did not occur until March-April 1981.
In relation to the Obesity Statement, the Respondent submitted that the first phrase of factor(a) could not be met, that is, "exposure to an environment which encourages caloric intake". The Respondent noted the Applicant's evidence that he was living with his wife and taking his meals in his home environment except for occasional dining at the mess when expected by a Wing Commander. Therefore he was eating in a domestic context virtually continuously. The Applicant's evidence was that his wife was encouraging of his dietary restrictions and was a great help in trying to meet the dietary limitations placed upon him. The Respondent submitted that the Applicant plainly fails to meet factor (a) of the Obesity Statement. Furthermore, in the work context, the RAAF doctors encouraged him to lose weight, he was offered a weight reduction program in 1980 but said that his ankle injury "got in the way". In his domestic environment where he was eating he was encouraged to meet a reasonable caloric level. Therefore, it was submitted for the Respondent whether one looks at paragraphs 5(a) or 5(n) of Instrument No. 26 of 1999, the primary consideration created by the definition of "being obese" is not met.
In relation to factor 5(x) of Instrument No 26 of 1999, it was submitted for the Respondent that the enormous volume of clinical records illustrates the Applicant's access to treatment for his hypertension from the RAAF throughout his career. It was also submitted that the Applicant has made no criticism about the clinical management of his condition. It is clear that he had the ability to obtain appropriate medical treatment, including specialist consultation, to monitor and advise on treatment.
Instrument No 84 of 1995It was submitted for the Applicant that he met factor 1(u) of the earlier Statement of Principles, that is, "suffering from persistent obesity which developed before and continued at least until the clinical worsening of hypertension". The Applicant noted that the Veteran was obese in August 1978 and that 16 February 1981 was "a continual worsening". Medication was changed in April 1981 when Minipress was added.
The Applicant submitted that, on the evidence of Dr Miller, clinical worsening occurred in April 1981 when Minipress was added to his treatment. The Applicant also highlighted the series of asterisks in the fifth column of exhibit 3 to which Professor O'Rourke referred in his report. These indicate a persistence in the Applicant's obesity from at least 1978 through to 1981.
It was submitted for the Applicant that he met factor 1(a) of Instrument No 84 of 1995, "suffering from persistent obesity before and continuing at least until the accurate determination of hypertension".
It was submitted for the Respondent that Professor O'Rourke considered the Applicant's weight of 99.1 kilograms on 22 September 1971 as the first recording of a weight where the BMI was greater than 30, and that there was a similar situation in 1972. Thereafter the Applicant's weight had dropped below a BMI greater than 30 at that stage. The Respondent noted that Professor O'Rourke, when asked to comment on the concept of "persistent" obesity, said that the concept meant "continuous" rather than "episodic" obesity. The Respondent submitted that as the impact of being obese is that it increases pressure on the cardiovascular system and therefore increases the load on the system, causing an increase in blood pressure, when weight decreases it cannot be said that obesity is stressing the system. Therefore, it is not the case that the Applicant was continuously obese because in October 1974 and November 1974 he did not have a BMI of 30 or greater. The Respondent also noted the period of the Applicant's overseas service where he was losing weight because of persistent diarrhoea.
The Respondent submitted that the first firm recording of the Applicant's weight was in 1978 when hypertension was diagnosed, and his BMI was then greater than 30.
The Respondent submitted that there was a scarcity of evidence in relation to the Applicant's weight. All one knows is that he was advised to lose weight in July 1975, and was described as overweight and obese in April 1976. Because of the paucity of evidence, the Respondent submitted that the claim that from the date of the ankle injury in 1977 there was an inability to control weight cannot be tested.
In terms of "persistent obesity" which developed before and continued at least until the clinical worsening, the Respondent submitted that the records are unhelpful as to what the Applicant achieved during his weight loss regimes. For example, the 1980 weight of 100.9 kilograms looks quite high, although there was actually a drop occurring at that stage when he was attempting exercise and a diet. However, there is no record of the amount he lost and whether he dropped below a BMI of 30.
It was submitted for the Respondent that the Tribunal needs to be satisfied each time that it is the "persistent obesity" which has some connection with the changes in the Applicant's blood pressure readings. In the absence of firm evidence as to his weight during that time, it is difficult to make the causal connection. Therefore, given the lack of evidence of the persistence of obesity, either at the time of onset or at the time of clinical worsening, the Applicant would fail under the first Statement of Principles. The Respondent also noted that it was open to the Applicant, given that obesity was an issue in this case, to provide information about his weight during the gaps in his evidence, particularly as this was something about which he would have been aware.
The Respondent also addressed factor 1(w), "inability to obtain appropriate clinical management for hypertension". The Respondent submitted that there was no evidence before the Tribunal that would satisfy it that there has been an inability on the part of the Applicant to obtain appropriate clinical management for hypertension. Although the Applicant's diastolic reading in September 1971 was 90, Professor O'Rourke's evidence has been quite clear that that reading would not have been regarded as a significant elevation of blood pressure at that time and in his view it would not be so regarded now. The Respondent submitted that in respect of the whole of the Applicant's service, but in particular his service from the onset of elevated blood pressures in 1978, he had consistent access to clinical management and there has been no criticism or any suggestion in the evidence that he was not given, or could not obtain, appropriate clinical management from those taking care of him.
It was submitted for the Applicant in reply that, in considering the history of weight gain from March 1981, this shows an inability to obtain clinical management. The Applicant also submitted that it was not the Applicant's back problem, but rather his ankle, that caused his inability to undergo exercise.
consideration of evidence and findings of factThe Tribunal finds that from about the time of the Applicant's ankle fracture in 1977 he has suffered from persistent obesity. However, there is no evidence that leaves the Tribunal reasonably satisfied that after the flake fracture of his ankle united (within a few months of the fracture) he had any residual disability or discomfort arising from that fracture. The Applicant in his oral evidence said he had pain and swelling in his ankle that had been referred to as "gout". The clinical notes from his service medical records show that at different times he has suffered from gout in his left ankle, right ankle, and right great toe. Indeed, one of these incidents (October 1980) occurred when he was jogging as part of a weight reduction program.
The history given by the Applicant to Dr Miller was that he had to give up all sporting activities because by 1978 his ankle became swollen. The reliability of this history must be considered in relation to the extensive service medical records. Moreover, Dr Miller has not considered the issue of the Applicant's gout.
The Tribunal notes that the Applicant's right ankle osteoarthritis and lumbar spondylosis are service related, and that gout has been rejected as a service related condition. The Tribunal also notes the final submissions of the Applicant that he is not claiming that his back condition has prevented him from exercising.
In considering all the evidence and in particular having analysed the service medical records in detail, the Tribunal is not reasonably satisfied that, over the duration of the Applicant's raised blood pressure, both before and after the diagnosis and treatment of the condition, he has been prevented from exercising because of any physical disability which he had. Apart from the incident to which the Tribunal has referred already, in October 1980, and a period of some six months thereafter when he was affected by a recurrence of gout from time to time, there is no other reference in the high volume of medical records to suggest any problem impeding him in pursuing an exercise program that he was advised to undertake on numerous occasions. Because of the frequency of this recommendation being recorded, the Tribunal would expect that the Applicant would have complained at those times that he was having difficulty carrying out that advice because of his right ankle fracture.
On the medical evidence the Tribunal finds that the Applicant meets both the first and the last Statement of Principles, notwithstanding Professor O'Rourke's apparent reluctance to accept some of the criteria in the Statement of Principles. However, this matter does not turn, in respect of obesity, on the Statement of Principles. It turns on the fact that, in the Tribunal's view, the Applicant's obesity is not in any way causally linked to his service related disabilities of lumbar spondylosis or osteoarthritis right ankle.
Moving now to the factor relating to "inability to obtain appropriate clinical management for hypertension", which the Tribunal notes is the same in both the first and the last Statement of Principles. The Tribunal finds that the Applicant's medical treatment for hypertension commenced in 1978 after considerable effort was made over the years to assist the Applicant to reduce his weight by diet and exercise. Indeed, in September 1971, when the Applicant's blood pressure reached 120/90, it was noted that he was obese, that he should diet and exercise, and he was prescribed a weight reducing agent. The Tribunal finds, having heard the evidence of Professor O'Rourke, that this was appropriate treatment at that time.
Having carefully considered the service medical records the Tribunal finds that at various medical examinations where the Applicant's blood pressure was "borderline" there was a specific focus on the reduction of the Applicant's weight. Additionally, the Tribunal notes, taking into account the evidence of Professor O'Rourke, that the medical profession in the 1970's was not as eager to intervene by prescription of anti-hypertensive medication as is now the case. The practice must be considered in the context of that which was acceptable at the time. The Tribunal finds that the commencement of treatment of the Applicant's hypertension in 1978 was appropriate, and that his medication and his weight reduction have been carefully monitored since that time until his retirement in 1984. We have less evidence of regular monitoring since that time, but that which is available would indicate that the Applicant's hypertension has not been better controlled post-discharge than it was before his retirement, and his weight has increased significantly.
On the evidence the Tribunal is not reasonably satisfied that factors (x) of Instrument No 26 of 1999 or (w) of Instrument No 84 of 1995 have been met.
The decision under review is therefore affirmed.
I certify that the 92 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member and Dr J Campbell, Member
Signed: .....................................................................................
AssociateDate/s of Hearing 27 November 2000
Date of Decision 26 February 2001
Solicitor for the Applicant Mr Peter Carey, RSL Advocate
Counsel for the Respondent Ms Rhonda Henderson
Solicitor for the Respondent Australian Government Solicitor
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