Kidd and Repatriation Commission (Veterans’ entitlements)
[2016] AATA 485
•8 July 2016
Kidd and Repatriation Commission (Veterans’ entitlements) [2016] AATA 485 (8 July 2016)
Division
VETERANS' APPEALS DIVISION
File Number(s)
2015/0320
2015/0322
Re
Richard Kidd
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 8 July 2016 Place Sydney The Tribunal affirms the decision under review.
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Senior Member J F Toohey
CATCHWORDS
VETERANS’ ENTITLEMENTS – whether morbid obesity related to service – whether hypertension related to service – whether veteran entitled to special rate – whether veteran prevented from continuing in remunerative employment by accepted disabilities alone – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986
Statement of Principles Concerning Hypertension No. 64 of 2013
Statement of Principles Concerning Morbid Obesity No. 6 of 2014
CASES
Forbes v Repatriation Commission (2000) 58 ALD 394
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Tuite (1993) 39 FCR 540
Repatriation Commission v Van Heteren (2003) 75 ALD 703Roncevich v Repatriation Commission (2005) 222 CLR 115
REASONS FOR DECISION
Senior Member J F Toohey
8 July 2016
BACKGROUND
Mr Richard Kidd has multiple disabilities related to his service in the Royal Australian Air Force (RAAF) between August 1974 and August 1994. They include dislocation of the right shoulder, osteoarthritis of both knees and left wrist, lateral and medial epicondylitis of the left arm, cervical and lumbar spondylosis, gastro-oesophageal reflux disease, depressive disorder, sensorineural hearing loss and tinnitus, and solar keratosis, post-operative complications at the donor site in the right leg and non-melanotic malignant neoplasm of the skin.
Mr Kidd receives a pension at 100 per cent of the General Rate. He seeks review of a decision of the Veterans’ Review Board (the Board) on 17 December 2014 to affirm a decision of the Repatriation Commission that his morbid obesity and hypertension are not related to his service, and that he is not entitled to the special rate of pension.
The legislation concerning a veteran’s entitlements is in the Veterans’ Entitlements Act 1986 (the Act). Mr Kidd’s service is eligible defence service for the purposes of the Act. In deciding whether his morbid obesity and hypertension are related to his service and whether he is entitled to the special rate of pension, the standard of reasonable satisfaction applies: subsection 120(4).
ARE MR KIDD’S MORBID OBESITY AND HYPERTENSION RELATED TO HIS SERVICE?
Mr Kidd’s morbid obesity and hypertension are diseases within the meaning of subsection 5D(1) of the Act. In order to find them related to his service, the Tribunal must be reasonably satisfied that the material before it raises a connection between his diseases and his service, and there is in force a relevant Statement of Principles (SOP) that upholds the contention that they are, on the balance of probabilities, connected with his service: subsection 120B(3).
The assessment period commences on 9 April 2014, when Mr Kidd lodged his application and ends on the day of this determination: subsection 19(9).
Morbid obesity
The relevant SOP concerning morbid obesity is No. 6 of 2014. It provides that, for the purposes of the SOP, morbid obesity means “an excessive accumulation of fat in the body resulting in… a current BMI of at least 40”: clause 3(b)(i).
Mr Kidd’s service records show that he was diagnosed with obesity in 1988. His BMI has fluctuated over the years and he believes it was over 40 in about 2006. At the time of the Board’s hearing in December 2014, it was 37.3. The first evidence of a BMI of at least 40 during the assessment period was on 3 July 2015 when Mr Kidd saw Professor Michael O’Rourke, cardiologist, who noted that his weight was 131 kilograms and his height 178 centimetres, “on the basis of which his BMI was 41 indicating morbid obesity”.
Clause 5 of the SOP provides that at least one of the factors in clause 6 must be related to Mr Kidd’s service. Relevant to these proceedings is factor 6(h):
having a clinically significant psychiatric disorder as specified for at least the five years before the clinical onset of morbid obesity;
Mr Kidd has been treated for depression since 1998. Dr Robin Chase, occupational physician, saw him for assessment in August 2015. In his report, it is recorded that Mr Kidd told him that he believes he has had post-traumatic stress disorder and depression since the 1980s when he was involved in a helicopter incident on the Malaysia/Thailand border. Mr Kidd was first treated by Dr Graham Vickery, psychiatrist, in March 1999. He continues to see a psychologist and he takes antidepressant medication.
The Commission accepts, and I am satisfied, that Mr Kidd had depression for at least five years before the clinical onset of morbid obesity in July 2015. His depression has been accepted as related to his service. As he had a clinically significant psychiatric disorder related to his service for at least five years before the clinical onset of morbid obesity, the Commission accepts, and I am satisfied that his morbid obesity is related to his service, with effect from 3 July 2015.
Hypertension
Medical and service records show that Mr Kidd was diagnosed with hypertension in 1982 or 1983.
The relevant SOP concerning hypertension is No. 64 of 2013. It sets out 29 factors, at least one of which must be related to Mr Kidd’s service: clause 5. Only three of these factors suggest any possibility of the necessary causal relationship, but, for the reasons that follow, I am not satisfied that any are related to Mr Kidd’s service. They are:
(a)being overweight or obese at the time of the clinical onset of hypertension; or
(b)consuming an average of at least 500 grams of alcohol per week for at least the six months before the clinical onset of hypertension; or
…
(k)having sleep apnoea at the time of the clinical onset of hypertension
As the onset of Mr Kidd’s accepted morbid obesity post-dates the clinical onset of his hypertension, factor 6(a) cannot be satisfied.
In relation to alcohol consumption, Mr Kidd’s written evidence is that, before he enlisted, he did not consume a lot of alcohol, and would only drink at family gatherings. During his 10-week recruitment course, he would spend his free time in the evening, six nights a week, at the recruits’ tavern where he would play cards or talk with mates, consuming at least six schooners of beer followed by a shot of rum. He states his drinking decreased from around 1974 to 1976 when he was posted to RAAF Base Laverton with his wife and son.
Around 1977, after Mr Kidd suffered a shoulder injury and became very depressed, he started to drink more. In February 1979, he was posted to RAAF Base Butterworth in Malaysia and says “it was nothing” for him to consume 24 stubbies in one night while playing cards or sitting around talking to friends. After the helicopter incident in 1980, his drinking increased and became heavier over time. Since around 2007, he has been cutting back on his alcohol intake and now drinks very little.
The Commission accepts that Mr Kidd may have consumed the requisite amount of alcohol to satisfy factor 6(b). The Commission contends, however, that his alcohol consumption may have had a temporal relationship but did not have the necessary causal relationship.
I accept the Commission’s contention. A veteran’s service must be more than merely “the setting” in which he or she, for example, takes up or increases drinking or smoking: Repatriation Commission v Tuite (1993) 39 FCR 540 at [541]. So, for example, the mere availability of alcohol or a culture of drinking is not itself sufficient.
In Roncevich v Repatriation Commission (2005) 222 CLR 115, the High Court said (at [125]):
… whether an event arises in the course of an activity, or as here, out of “an activity”, depends upon such matters as the nature of the person’s employment, the circumstances in which it is undertaken, and what, in consequence, the person is required or expected to do to carry out the actual duties. The connection must however be a causal and not merely a temporal one.
I accept that Mr Kidd’s exposure to alcohol increased once on service, and that it was common for servicemen to socialise, but it was not a requirement of service or something that arose out of his employment with the service. I am not satisfied that the necessary causal connection is made out.
Mr Kidd was diagnosed with sleep apnoea around early 2000. As this postdates the clinical onset of hypertension, factor 6(k) cannot be satisfied.
As none of the factors in the relevant SOP are met, I am not satisfied that Mr Kidd’s hypertension is related to his service.
IS MR KIDD ENTITLED TO THE SPECIAL RATE OF PENSION?
To qualify for the special rate of pension, Mr Kidd must satisfy the criteria in subsection 24(1) of the Act. It is not in dispute, and I am satisfied, that he meets subsections 24(1)(a) and (b). His claim turns on whether he satisfies subsection 24(1)(c).
Subsection 24(1)(c) has two limbs, both of which must be satisfied. The first requires that Mr Kidd be, by a reason of his incapacity from his accepted disabilities alone, prevented from continuing to undertake remunerative work that he was undertaking.
The second limb of s 24(1)(c) requires that Mr Kidd be, by reason of his accepted incapacity, suffering a loss of salary or wages, or earnings on his own account, that he would not be suffering if free of that incapacity. It is to be read in conjunction with subsection 24(2)(a) by which Mr Kidd will not be taken to be suffering a loss of income by reason of his accepted incapacity if he has ceased to engage in remunerative work for reasons other than the accepted incapacity, or if he is incapacitated or prevented from engaging in remunerative work for some other reason.
Any factor having employment consequences that plays a part in Mr Kidd’s inability to work or to obtain and hold remunerative employment will defeat his claim: Forbes v Repatriation Commission (2000) 58 ALD 394; applied in Repatriation Commission v Hendy (2002) 76 ALD 47 and Repatriation Commission v Van Heteren (2003) 75 ALD 703.
Mr Kidd says that, after his discharge in August 1994, he had difficulty finding employment because of his age and his physical disabilities. About two weeks after his discharge, he found permanent part-time employment as a console operator at a service station. He continued in that employment until 1999 when his general practitioner, Dr Mukherjee, advised him that his blood pressure was “out of control” and he should give up work. Mr Kidd gave evidence that, once he had stopped work, and cut down on smoking and drinking, his blood pressure came under control. Since ceasing work, Mr Kidd has done voluntary work for Meals on Wheels and for his local RSL.
The Commission contends that factors other than Mr Kidd’s accepted disabilities alone prevented him from continuing in remunerative work and that he ceased work for reasons other than his accepted disabilities alone.
In a Work Ability Report prepared for the Department of Veterans Affairs on 6 April 2000, Dr Mukherjee stated Mr Kidd’s last occupation and his reason for leaving were:
Console operator – he found an able to mange (sic) due to headaches and different disabilities.
Mr Kidd gave evidence that he had suffered headaches for many years which Dr Mukherjee put down to his work at the service station. A report from neurologist, Dr Venkatesh Krishnamurthy, in July 2014 shows that the Mr Kidd’s migraine headaches had “certainly responded to treatment”.
The report dated 12 February 2014 from Dr Khalil Cassim, specialist and respiratory physician, shows that Mr Kidd had asthma and “mild wheeze in both lungs”. Mr Kidd gave evidence that Dr Cassim thought his asthma might have been set off by his exposure to petrol.
Dr Chase provided a written report of his assessment of Mr Kidd and gave evidence to the Tribunal. In his report, he stated:
The major factors that prevented from working are his accepted disabilities alone.
Giving evidence, Dr Chase said he made that statement without having obtained from Mr Kidd a history of asthma which can be related to exposure to petrol, particularly, direct exposure through activities such as cleaning up spills and assisting tanker operators. Mr Kidd confirmed he did both in the course of his work as a console operator. Dr Chase said he also noted Mr Kidd’s history of cardiomyopathy, although he could not know how severe it was. He confirmed that Mr Kidd told him that his headaches were a factor in him stopping work.
The Commission submits that the evidence shows factors other than his accepted disabilities prevented Mr Kidd from continuing employment, and that these factors played a part in him ceasing employment. I accept that submission.
Dr Mukherjee’s report of 6 April 2000 refers to “headaches and other disabilities” as the reason for Mr Kidd ceasing employment. Clinical records show that he saw Dr Cassim not long after and was diagnosed with migraines. Mr Kidd does not dispute Dr Mukherjee’s report. Further, he gave evidence that he gave up work on the advice of Dr Mukherjee because his blood pressure was “out of control”.
The Commission further submits that factors preventing Mr Kidd from continuing employment are his age and time out of the workforce. By his own evidence, his age was a factor in being unable to find employment other than work as a console operator.
Taking these matters into account, I am not satisfied that Mr Kidd is, by reason of his incapacity from his accepted disabilities alone, prevented from continuing to undertake remunerative work that he was undertaking. For the same reason, I am not satisfied that he is suffering a loss of income by reason of his accepted disabilities.
CONCLUSION
For these reasons I affirm the decision under review.
I certify that the preceding 37 (thirty -seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey .........................[sgd]...............................................
Associate
Dated 8 July 2016
Date of hearing 28 June 2016 Applicant In person Solicitors for the Respondent Mr N Bunn, Repatriation Commission
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Appeal
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Remedies
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Judicial Review
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Procedural Fairness
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