Hall and Repatriation Commission
[2009] AATA 883
•13 November 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 883
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1431
VETERANS' APPEALS DIVISION ) Re JOHN HAY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr S Karas, AO, Senior Member Date13 November 2009
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
.................[Sgd].............................
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Benefits and entitlements – Eligible defence service – Claim for eating disorder – Consideration of Statement of Principles – No causal factor relating condition to service – Decision under review affirmed.
Veterans’ Entitlements Act 1986 (Cth), s 120
Millen and Repatriation Commission [2000] AATA 508
REASONS FOR DECISION
13 November 2009 Mr S Karas, AO, Senior Member BACKGROUND
1. John Hay (“the applicant”) was born on 27 December 1954 and served with the Royal Australian Navy from 10 July 1970 to 9 July 1982. His defence service as defined by the Veterans’ Entitlements Act 1986 (“the Act”) was from 7 December 1972 to 9 July 1982. He is currently unemployed.
2. The applicant was assessed at 30% of the general rate of disability pension. On 4 July 2008, the Repatriation Commission (“the respondent”) decided that the applicant’s eating disorder was not defence-caused within the meaning of s 70 of the Act. That decision was affirmed by a departmental review officer and, on 3 March 2009, by the Veterans’ Review Board (“VRB”).
3. On 8 April 2009, the applicant applied for review to the Administrative Appeals Tribunal (“the Tribunal”).
ISSUES AND LEGISLATION
4. The issue for the Tribunal to determine is whether the applicant’s eating disorder is “defence-caused”, that is, whether a connection exists between the applicant’s condition and his service. For the applicant to succeed, he must prove such a connection to the Tribunal’s “reasonable satisfaction”: s 120(4) of the Act. For the Tribunal to be so satisfied, a Statement of Principles (“SoP”) must uphold (by reference to factors contained therein) that such a connection exists “on the balance of probabilities”: s 120B(3) of the Act.
5. The relevant SoP for this matter is Instrument No. 48 of 2008 relating to eating disorder, as amended by Instrument No. 48 of 2009.
6. Counsel for the applicant, Ms A Frizelle, submitted that the applicant’s eating disorder is associated with stressors suffered during his naval service from 1972 to 1974 onboard HMAS Snipe. These stressors, continued Ms Frizelle, constitute a “category 2 stressor” (which term is defined in the SoP). The stressor she identified was example (c) in the category 2 stressor definition: “having concerns in the work … environment including … perceived lack of control over tasks performed and stressful work loads …”
7. Factors 6(c) and 6(n) are relevant and provide as follows:
(c)experiencing a category 2 stressor within the one year before the clinical onset of eating disorder; or
…
(n)inability to obtain appropriate clinical management for eating disorder.
EVIDENCE
8. The applicant joined the Navy as a 15½ year old in 1970 and underwent training in Western Australia for 12 months. He was then assigned to HMAS Stuart and HMAS Anzac for six months of sea training. After completing an engineering course, he joined HMAS Snipe in April 1972 when he was 17½ years old. He reached the rank of Petty Officer in 1981.
9. The applicant was a watch-keeper in the engine room of HMAS Snipe for two years, from 1972. He referred to an incident where the generator “blew up” as he leaned over to start it, causing a sizeable metal piece to land at his feet and smoke exhaust to come out. A rod had snapped off, exiting out of the generator’s side. He said it was “like a bomb going off”. The ship was delayed while the generator was changed. An electrician who was with the applicant asked if he was alright. The applicant was frightened and “shaking like a leaf” because he thought the explosion could have severed his legs. He became very apprehensive and cautious after that incident. The incident was reported to the Chief Engineer.
10. The applicant also referred to minesweeping incidents that occurred while he was in the engine room of the HMAS Snipe. The ship was minesweeping in New Guinea for ordinances from World War II and would be some 100 yards away when they were exploded. This caused him to be frightened. The applicant stated this occurred in about 1973.
11. The respondent’s advocate, Mr B Williams, referred to the transcript of the applicant’s evidence from the VRB hearing. The applicant there stated that he taught himself the duties required of him onboard HMAS Snipe. He noted he felt capable of doing the work he was assigned and was happy with his progress, although not 100% confident. The applicant said he had feelings of not being trained adequately when he joined HMAS Snipe. He noted the ship had six to seven engineers and a crew of 28. He was shown what to do on his watch by an engineer and then “left on his own.”
12. In the engine room, the applicant would perform temperature readings, and check gauges, bilges and oil levels on his own - the engineer would remain in the control room at the back of the engine room. There was a distance of some 30 metres between the applicant and the control room and so the engineer could not see him. They would communicate by telephone. He would work four hours on and eight hours off.
13. Because the engineer could not leave the control room, the applicant would fetch coffee and food for him. The applicant developed eating habits and would take food from the cafeteria such as biscuits, coffee, hot soup and sandwiches, as they were left for those working in the engine room. This eating helped “settle” his nerves and he “felt good”. When not eating, he was “worried” and felt incompetent as he was not trained enough. He stated that his eating got worse after the engine room incident. The applicant also referred to drinking alcohol from age of 18 due to “peer pressure”.
14. The applicant thought of himself as slightly overweight, but fit, while in the Navy and could always carry out his duties. None of his captains or other officers spoke to him of his weight. He passed a fitness test in October 1972. He would be at sea for two to three months at a time. No dietary food was provided and he ate extra food at night. While on HMAS Snipe he was not found to be unfit for duty. He was threatened with discharge when he was found to be unfit for duty in 1977.
15. While on ship at sea, the applicant would do “sit-ups and stuff like that” as there was not a lot of room to exercise. On shore, he would do football training and played rugby. He played rugby throughout his time in the Navy. (He started playing on the wing and ended up in the front row.)
16. The applicant has been obese for a number of years and now weighs 225 kg. He believes he might have been moderately obese in 1974 and in December 1976 was told he would be discharged as he was “below normal physical standards”. He could not resist getting food each time he walked past the fridge. He also stated he was told he was obese on the HMAS Creswell, not by a doctor, but in line with a weight chart on the ship. He did a fitness test and was passed to go to sea. He thinks he went back to sea in 1978.
17. The Naval Daily Medical Record dated 7 November 1975 diagnoses the applicant as obese and advises “diet and exercise”. In an out-patient record of 14 December 1976, Dr Roberts noted the applicant’s “weight problem with poor dieting and minimal exercises”.[1] The applicant was referred to Dr I Ferguson, consulting physician, who recorded the applicant as being “markedly overweight” and weighing 122 kg. That doctor noted: “I have advised him strongly regarding caloric restriction and exercise”.[2] A report of 25 February 1977 records the applicant’s comments that “I will just have to try harder to lose weight”.[3] On 14 June 1977, Dr Roberts again referred the applicant to Dr Ferguson, noting “no weight loss in 6 months”. Dr Ferguson then noted that, although the applicant played “regular sport”, he had not been “adhering to a low calorie diet” and was “markedly overweight for stature”. Another medical report indicated he had lost weight in 1977 due to “training and playing football”, but added: “due to unsatisfactory effort to lose weight over last 18 months recommend discharge BNPS”. Dr Ferguson recorded on 21 December 1977 that he considered the applicant had “pathological dietary obesity” and that he “had made very poor efforts in terms of diet, and has basically inadequate exercise programme”. Other reports in 1977 also refer to the applicant’s obesity and treatment, for example, noting that he “has passed the National Fitness Test recommend he be upgraded Category One”. In 1978, the applicant is recorded as stating that although he had “lost 11 kg this trip, I find it hard to diet under conditions at sea”.
[1] T4, folio 6.
[2] T4, folio 6.
[3] T4, folio 7.
18. The Medical surveys in the applicant’s Electronic Historical Record (Exhibit D) note that:
· on 20 May 1970, 26 October 1972 and 4 January 1978, the applicant was “fit for duty anywhere”; and that
· on 25 January 1977, 5 July 1977 and 28 April 1982, the applicant was “unfit for sea duty, fit for shore duty in Australia except in a tropical or remote area”.
19. No entry regarding the applicant being unfit for duty from 1972 to 1977 appears on the record. This period covers his duty time on HMAS Snipe, HMAS Creswell and HMAS Labucan. Also, from the record, the applicant was “fit for duty anywhere” from 4 January 1978 to 28 April 1982.
20. The applicant did not see a psychiatrist during those early times, and it was only in 2008 that he saw Dr M May, psychiatrist, on advice from his advocate. He has seen Dr May on three occasions, for a good half hour each time. He sees his GP every two months, who is trying to get him referred to a dietician for an initial consultation. Having been told to have a lifestyle change, he has cut back on his drinking and has not had a drink for three months. He still plays golf (once a week, with a buggy that he has been using for the past 12 to 18 months) and goes fishing despite being a diabetic and suffering from leg fluid and sore problems. He is on weight loss medication and does not keep food in his fridge, because he is determined to lose the weight he realises is “really affecting” him.
SUBMISSIONS
21. Ms Frizelle, for the applicant, submitted that the applicant experienced a “category 2 stressor” (as defined in the SoP) onboard HMAS Snipe due to the engine room explosion. His weight problem then arose as he coped by eating food left out for the night shift.
22. Ms Frizelle also submitted that the applicant was not totally confident in performing his duties on HMAS Snipe due to being improperly trained. The applicant ate to relieve the resultant stress, thereby developing a habit of pathological eating. Ms Frizelle relied on Dr May’s reports to support those contentions. The applicant contends that, on the basis of the above submissions, factor 6(c) of the SoP is satisfied.
23. Further, it is Ms Frizelle’s contention that inappropriate clinical management of the applicant’s eating disorder has caused his current health problems. The medical records show the applicant being diagnosed as obese, yet there was no dietary food onboard and he was not discouraged while on night watch from consuming more food. The applicant’s obesity and eating disorder were exacerbated by being unable to exercise properly on HMAS Snipe, where he could only do sit-ups. Dr Roberts referred him to Dr Ferguson, a physician who became concerned with the applicant’s weight and described his situation as pathological dietary obesity. However, the applicant was not referred to a psychiatrist for his eating disorder and the naval doctor watched his weight increase without referring him to a psychiatrist for treatment. Consequently, Ms Frizelle submitted, factor 6(n) of the SoP is also satisfied. As well, the applicant relies on Dr May’s reports, which state that the applicant’s eating disorder commenced while he was onboard HMAS Snipe.
24. Dr May stated that the applicant’s eating disorder was precipitated by several category 2 stressors. Dr May referred to a number of incidents experienced by the applicant during his service on HMAS Snipe as meeting the definition of a category 2 stressor.
25. Ms Frizelle stressed that the applicant was not relying on the minesweeping in New Guinea as a stressor. Only the engine room incident and the inadequate training were so relied upon.
26. According to Ms Frizelle, the Tribunal case of Millen and Repatriation Commission [2000] AATA 508 is distinguishable. She reiterated that the applicant’s obesity occurred while at sea onboard HMAS Snipe and that his only treatment was from Navy medicos. Furthermore, the respondent had not criticized Dr May’s reports.
27. Mr Williams, for the respondent, conceded that the applicant had an eating disorder connected to his naval service. However, he referred to the VRB transcript of evidence that recorded the applicant stating he was capable and happy onboard HMAS Snipe, although not 100% confident.
28. Mr Williams submitted that the applicant was obese only because he had exercised his personal choice to consume extra food.
29. In relation to the engine room explosion, Mr Williams pointed out that the applicant was not injured, that there was no fire and that the “smoke” was caused by diesel fuel vapour. He submitted that this incident was not a category 2 stressor.
30. In relation to factor 6(c) of the SoP, Mr Williams submitted that the evidence showed that the applicant was given as much help as could have been expected so early in his service and that he soon became familiar with the machines and his duties. Indeed, he felt confident (though not 100% so) after his first sea trip on HMAS Snipe and was capable and happy.
31. Mr Williams submitted that factor 6(n) did not require the applicant to be referred to a psychiatrist and that being referred to Dr Ferguson (who advised him to diet and exercise) had been an appropriate clinical management of his condition. He also emphasised the applicant’s evidence that he did not think his weight was a problem in 1975 and nor did he think it had been the focus of attention by his colleagues. Also, the applicant did not recall his three consultations with Dr Ferguson. The applicant remained in the Navy and was promoted. Mr Williams relied on the case of Millen [2000] AATA 508.
CONSIDERATION AND FINDINGS
32. Given the evidence and material, including Dr May’s reports, the Tribunal finds that the applicant has a diagnosed binge eating disorder. In order for this disorder to relate to service, the applicant’s circumstances must raise a causal factor relating it to his relevant service.
33. The Tribunal accepts that the engine room incident occurred, largely as stated by the applicant. It is corroborated to a degree by the Writeway Record dated 20 October 2009 at paras 1 and 3, although it appears at para 2 that a Junior Officer on HMAS Snipe in 1973 did “not recall the incident”. The incident was not reported or noted in detail in the ship’s log, however the Commander of HMAS Snipe in a report for September 1973 stated that “No. 2 FODEN diesel generator was changed by ship’s staff with base assistance from WATERHEN”.
34. The Tribunal notes that the applicant felt more competent about his duties on HMAS Snipe after his first sea voyage, even though he was not 100% confident. The Tribunal accepts that as a newly trained and qualified sailor in 1972, the applicant had some reservations about his competency, especially when he was initially shown his duties. However, the applicant stated that he became more confident in his role and duties. Furthermore, he progressed through the ranks during his naval service, being discharged with the rank of Petty Officer. This indicates that his subsequent service and performance was recognised as satisfactory. There is no evidence that the applicant suffered from stressful workloads during his shifts (four hours on and eight hours off). Indeed, from his naval records, it appears it was not until January 1977 that he was initially recorded as being unfit for sea duty. The applicant was able to continue playing rugby throughout his 12 year naval career and he could exercise while onboard the HMAS Snipe by doing sit-ups.
35. In relation to the submission that the applicant received inadequate medical care at the time his eating order arose, the Tribunal considers his referral to the Navy’s consultant physician, Dr Ferguson as appropriate clinical management. Dr Ferguson noted the applicant’s need for diet and exercise. Although the applicant was treated by doctors after his naval service, they did not refer him to a psychiatrist for his diagnosed eating disorder either. On his own evidence, the applicant was only referred to a psychiatrist (Dr May) at the behest of his advocate in 2008, not by his treating GP. That facts show that the naval doctors’ referral to consulting physician Dr Ferguson was, at the time, appropriate in the terms of clause 6(n) of the SoP. Clause 6(n) of the SoP “does not invite an inquiry as to the appropriateness of a claimant’s clinical management. It requires a claimant to show an inability to obtain that management”: Millen [2000] AATA 508 at [22]. On the evidence, no such inability existed.
36. The Tribunal does not find on balance - and is therefore unable to be reasonably satisfied - that the applicant’s circumstances during the relevant time period constitute a category 2 stressor. Although Dr May, in his reports from 2008, identified and referred to perceived stressors affecting the applicant, the Tribunal is unable to be reasonably satisfied that they constitute a category 1(a), 1(b) or 2 stressor as defined in the SoP. While in the Navy, the applicant was largely able to carry out his duties and function effectively. He played rugby throughout and indulged in other sporting activities like squash. He rose in the ranks and after discharge from the Navy had a number of jobs in a variety of areas of employment.
37. Therefore, for the reasons given above, the Tribunal finds that none of the factors set out in the SoP are satisfied in the circumstances of this case. The Tribunal is reasonably satisfied that the evidence and material before it does not raise a connection between the applicant’s eating disorder and his relevant service.
DECISION
38. The Tribunal affirms the decision under review.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Karas, AO, Senior Member.
Signed:..........................[Sgd]....................................................
Mátyás Kochárdy, Research AssociateDate of Hearing 22 October 2009
Date of Decision 13 November 2009
Counsel for the Applicant Ms Ann Frizelle
Solicitor for the Applicant Mr Noel Payne, G Couper Solicitors
Advocate for the Respondent Mr Bruce Williams
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