Kaliopate Rokonayalewa and Repatriation Commission
[2014] AATA 881
•27 November 2014
[2014] AATA 881
Division VETERANS' APPEALS DIVISION File Number
2013/4010
Re
Kaliopate Rokonayalewa
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 27 November 2014 Place Brisbane The decision under review is affirmed.
........................................................................
Senior Member Bernard J McCabe
CATCHWORDS
VETERANS’ AND MILITARY COMPENSATION – Accepted service-related orthopaedic conditions – Applicant unable to exercise – Morbid obesity – Statements of Principle concerning morbid obesity – Excess caloric intake relative to energy output not related to applicant’s service – Morbid obesity not connected to service – Decision under review affirmed.
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth)
Statement of Principles concerning morbid obesity No. 32 of 2003
Statement of Principles concerning morbid obesity No. 6 of 2014
REASONS FOR DECISION
27 November 2014
Mr Kaliopate Rokonayalewa suffered a number of injuries while playing football during the course of his service in the Australian Army from 11 April 1978 to 5 February 2001. He has developed orthopaedic conditions which the Repatriation Commission accepts are related to his service. He is currently paid a disability pension under the
Veterans’ Entitlements Act 1986 (Cth). He says he is now unable to work and he applied for that pension to be increased to the intermediate or special rate – but the Commission has rejected his claim. The sticking point appears to be the applicant’s morbid obesity condition. The Commission says that condition is unrelated to the applicant’s service.Mr Rokonayalewa says the morbid obesity condition is related to his service.
His argument is as follows. He was an enthusiastic and effective rugby player while he was in the Army. He had a very physical style and suffered a number of injuries to his back, knees, ankles and right shoulder. Those conditions have been accepted as
service-related. They have also combined to prevent him from exercising and burning up calories. He has put on weight as a result, and become morbidly obese.There is no dispute that Mr Rokonayalewa was properly diagnosed as being morbidly obese by at least 2011 – but I cannot be satisfied his condition is related to his service between 1978 and early 2001. I will explain my reasons below.
I accept Mr Mr Rokonayalewa has suffered orthopaedic injuries whilst playing sport that made it harder for him to exercise. I was provided with pictures of him at various stages of his Army career; they show a powerfully built younger man who becomes more heavily-set over time. I accept that evolution is partly because:
·he was exercising less because of his physical limitations: he ultimately could not run or play rugby or lift weights; and
·he became a chef in the Army. That meant he was inevitably around food, which he was routinely required to taste.
I am also satisfied it is likely Mr Rokonayalewa’s commitment to exercise may have waned once he left the Army and grew older.
Mr Rokonayalewa worked as a security guard at various defence establishments after he left the Army. He did not continue working as a chef. He gave evidence that the jobs were not physically demanding but over time he became so restricted in his movements that he could not do the work.
In order to succeed in his contention that the morbid obesity condition is service-related, Mr Rokonayalewa must satisfy the relevant statement of principles. The current Statement of Principles concerning morbid obesity is No. 6 of 2014. Factor 6(a) of the Statement of Principles identifies the following risk factor:
Having a caloric intake that is excessive for energy needs for at least the five years before the clinical onset of morbid obesity[.]
In this case, I accept the applicant’s caloric intake exceeds his energy needs over the five years before 2011. Indeed, it seems likely that his caloric intake was excessive for some time before that. But that does not mean the applicant satisfies the Statement of Principles without more. Mr Williams, the advocate for the Repatriation Commission, argued the factor effectively imposed an equation with two variables – caloric intake and energy output – and both variables must have a connection with the applicant’s service. Even if I were to accept the applicant’s energy output diminished as a consequence of an inability to exercise brought on by service-related conditions, Mr Williams said it is also necessary to be satisfied the applicant’s service was somehow implicated in his inability to reduce the caloric intake in the first place. To put it another way, the Commission says there was no reason arising out of Mr Rokonayalewa’s service why he could not control his caloric intake in order to manage his weight even as he exercised less.
The Commission is right. Mr Rokonayalewa could have moderated his caloric intake.
He was used to eating larger meals, but his circumstances had changed. There was no reason – no reason arising out of his service, at any rate – why he could not have changed his diet. I do not think he can satisfy Factor 6(a) in the current statement.There is an older statement of principles that was revoked after the application was lodged: No. 32 of 2003. I am required to refer to it if the applicant is unsuccessful having regard to the current statement. The risk factor identified in the older statement at
Factor 5(a) is described as follows:
Having a caloric intake that:
(i)Is excessive for energy needs; and
(ii)Cannot be compensated by physical activity;
for the year immediately before the clinical onset of morbid obesity[.]
Mr Rokonayalewa runs into the same difficulty here: there was no reason arising out of his service that prevented him from moderating his diet in response to the difficulties he encountered when exercising.
CONCLUSION
The applicant’s morbid obesity condition is not related to his service. The decision under review must therefore be affirmed.
I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe. ........................................................................
Associate
Dated 27 November 2014
Dates of hearing 30 September 2014 Solicitors for the Applicant Mr Terence O'Connor Advocate for the Respondent Mr Bruce Williams
0
0
0