Lemay and Repatriation Commission
[2006] AATA 380
•1 May 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 380
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/70
VETERANS’ APPEALS DIVISION ) Re ALAN LEMAY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member Ms R Hunt
Member Dr P LynchDate1 May 2006
PlaceSydney
Decision The tribunal sets aside that part of the reviewable decision that Mr Lemay does not suffer from war-caused ischaemic heart disease and diabetes mellitus and, in substitution, decides that Mr Lemay presently suffers from ischaemic heart disease and diabetes mellitus and that those conditions are war-caused diseases within the meaning of s9 of the Act with effect from and including 30 July 2002.
..............................................
Ms R Hunt
Presiding Member
CATCHWORDS
Veterans’ Affairs – disability pension - applicant rendered operational service with Royal Australian Air Force and eligible service with peace keeping forces – applicant suffering ischaemic heart disease (IHD) and diabetes mellitus - hypothesis that applicant began smoking during service and became obese during service – hypothesis as to obesity reasonable – Statement of Principles satisfied – reasonable hypothesis connecting condition to operational service – not satisfied beyond reasonable doubt that diabetes and IHD condition were not war-caused - reasonable satisfaction that applicant’s diabetes mellitus and IHD war caused – decision set aside
Veterans’ Entitlements Act 1986 – ss. 120,120A, 20, 177, 9,
Statements of Principles –
- instrument no 83 of 1999, as amended by instruments no 10 and 92 of 2001
- instrument no 12 of 2004
- instrument no 82 of 1999, as amended by instruments no 9 and 91 of 2001
- instrument no 11 of 2004
- instrument no 54 of 2003, as amended by instrument no 10 of 2004
- instrument no 53 of 2003, as amended by instrument no 9 of 2004
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Bey (1997) 79 FCR 364
East v Repatriation Commission (1987) 16 FCR 517
Bull v Repatriation Commission (2001) 188 ALR 756
Cooke v Repatriation Commission (1997) 45 ALD 205
REASONS FOR DECISION
1 May 2006 Senior Member Ms R Hunt
Member Dr P LynchSUMMARY
1. Mr Lemay applied to the tribunal for review of a decision made by the Repatriation Commission which refused him an increase in pension for war-caused ischaemic heart disease. The decision under review was made on 3 October 2003. It refused a claim for the disorder and other conditions but accepted others and assessed disability pension at 80% of the general rate. The Veterans’ Review Board affirmed the decision on 16 December 2004. The tribunal has decided that Mr Lemay’s ischaemic heart disease is a result of his obesity which developed through the periods of his operational and eligible service. The link is established in terms of the statements of principle dealing with obesity, diabetes and ischaemic heart disease. Our reasoning is set out below. This means that Mr Lemay has succeeded in the review.
BACKGROUND
2. Mr Lemay served in the RAAF from 17 July 1967 to 18 May 1992. He was serving with peacekeeping forces. There is no dispute that Mr Lemay’s service throughout the period 14 June 1979 to 22 October 1979 constituted operational service pursuant to the Veterans’ Entitlements Act 1986 (“the Act”). The parties also agree that his service on and after 7 December 1972, other than his operational service, was eligible defence service. Mr Lemay had various disabilities accepted as war-caused and was receiving a disability pension at 80% of the general rate at the time of the review. However, his further claims that he suffered war-caused post traumatic stress disorder, alcohol problems, ischaemic heart disease and diabetes mellitus, were rejected by the Commission and by the Veterans’ Review Board. Mr Lemay proceeded for the present review with his claims concerning diabetes mellitus and ischaemic heart disease only.
ISSUES
3. At the commencement of the hearing, Mr Lemay withdrew ‘radiation to his chest wall’ as a claimed cause for his ischaemic heart disease (IHD), relying on this condition being associated with diabetes, his previous smoking history and obesity as war-caused disabilities. Also in the statement of facts and contentions lodged with the tribunal, Mr Lemay sets out that he does not suffer from any psychiatric or psychological condition nor does he suffer from alcohol dependence. Therefore, the tribunal’s task is narrowed to consideration of whether Mr Lemay’s IHD is related to his smoking habit, his diabetes and/or his obesity.
4. The initial issue for the tribunal was whether Mr Lemay had a war-caused smoking habit. As well, the tribunal was asked to decide if Mr Lemay suffered from war-caused obesity. The tribunal was asked then to consider whether either of these conditions brought about diabetes mellitus. Statements of Principles (SoPs) exist for the conditions at issue for the review.
5. The statement of principles for diabetes mellitus includes a factor for smoking and another factor for obesity. While the Commission conceded that Mr Lemay suffers from diabetes mellitus, it argued that this condition was not war-caused.
6. The statement of principles for ischaemic heart disease also contains a factor for smoking and a factor for obesity. In addition, it contains another factor for diabetes mellitus, being factor 5(b), which refers to diabetes mellitus existing before the clinical onset of ischaemic heart disease.
7. For Mr Lemay to succeed in his claim, he must satisfy the tribunal that his ischaemic heart disease is war-caused through one of the causes contained in the SoPs. He sought to establish this either through a smoking habit linked to relevant service or obesity link to relevant service. As he has contracted diabetes mellitus he further argued that, having contracted diabetes mellitus together with obesity, his metabolic syndrome in turn caused his ischaemic heart disease.
LEGISLATIVE PROVISIONS GOVERNING
8. Section 120 of the Act sets out the required standard of proof for the award of veterans’ pensions related to operational service and eligible service. The standard of proof for operational service is that of reasonable hypothesis. Subsection 120(1) makes it clear that where a claim for a pension in respect of incapacity from an injury or disease relates to operational service, the tribunal shall determine that the injury or disease was war-caused, unless it is satisfied beyond reasonable doubt that there are no sufficient grounds for making that determination.
9. Subsection 120(3) explains that, in applying subsection (1) of section 120 in respect of the incapacity of a person from injury or disease, the tribunal must be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the injury or disease was war-caused, after consideration of the whole of the material before it. If the tribunal reaches a view that the material does not raise a reasonable hypothesis connecting the injury with the circumstances of the veteran’s service, then the veteran cannot succeed in his claim.
10. Subsection (3) is affected by section 120A of the Act. Subsection 120A(3) addresses the reasonableness of the hypothesis and requires that it be assessed by reference to any relevant existing Statement of Principles (SoP). If a SoP is in place in respect of an injury or disease, the hypothesis put forward by an applicant must be tested against that SoP.
11. The applicable standard of proof for the period of eligible defence service is reasonable satisfaction as provided by section 120(4). Subsection (4) operates in conjunction with subsection 120A(3) which requires that the claim be assessed by reference to any relevant existing Statement of Principles (SoP).
principles for diabetes mellitus
12. Concerning Mr Lemay’s claim of a link between his diabetes mellitus and his eligible defence service the instruments that apply are instrument no 83 of 1999, as amended by instruments no 10 and 92 of 2001 (the instrument in force at the time of the original decision) and instrument no 12 of 2004 (the current instrument). For the claim of a link between his diabetes mellitus and his operational service, the relevant instruments are instrument no 82 of 1999, as amended by instruments no 9 and 91 of 2001 (the instruments in force at the time of the original decision), and instrument no 11 of 2004 (the current instrument).
principles for ischaemic heart disease
13. Concerning Mr Lemay’s claim of a link between his ischaemic heart disease and his eligible defence service, the instrument that applies is instrument no 54 of 2003, as amended by instrument no 10 of 2004. For the claim of a link between his ischaemic heart disease and his operational service, the relevant instrument is no 53 of 2003, as amended by 9 of 2004.
ANALYSIS OF EVIDENCE AND FINDINGS
14. Mr Lemay was born in 1948 and is now 57 years old. He attained the Leaving Certificate before joining the RAAF in July 1967. He took his discharge on 20 May 1992, after serving nearly 25 years. His eligible service commenced on 7 December 1972. His eligible service amounts to just under 20 years (less 6 months and 7 days). In addition, Mr Lemay had a period of operational service between 14 June and 22 October 1979 (5 months and 6 days). Mr Lemay served as a clerk for a time before he was promoted to sergeant in 1977. In 1978, he undertook training as a hygiene and environmental health inspector and reached the rank of warrant officer. He took a voluntary discharge in 1992.
15. Mr Lemay told the tribunal that, before enlistment, he had experimented with one or two cigarettes but he developed a heavy smoking habit during and after his service. This was because smoking relieved his stress and nerves and cigarettes were supplied in the service rations. Mr Lemay said he commenced smoking during his recruit training in 1967 at the age of 18. He put this down to peer group pressure. At the end of ten weeks of training, Mr Lemay said he was smoking about 15 cigarettes a day or 5 to 6 packets a week. He continued to smoke and also started to put on weight. Mr Lemay thought his weight went up when he was posted to Learmonth, in Exmouth, when there was not much to do but sit at the bar and have a beer. He said he and his peers played cricket, but only between 7 and 9 in the mornings and evenings because of the heat. He was stationed at some other locations in Australia before he was posted to Cairo during the Arab Israeli conflict in 1976.
16. Mr Lemay described his duties when stationed in Cairo in 1976 as providing health support to the Australian contingent. He said this could include a range of tasks such as provision of food and water, pest control, looking after the swimming pool, caring for sick people and ensuring people received certain vitamins and quinine. He told the tribunal that he was located near on open drain which contained waste and that people also used for fishing, swimming and doing their washing. He gave further evidence that he was distressed during this time to see two dead babies in the canal. He and an assistant moved the bodies to let them float out to sea as “it seemed to be the way of life”. He said he never really got over this experience and probably drank and smoked more as a result. He did not seek medical advice because he was the medical officer and the first point of call. He said he could not treat himself. Mr Lemay thought that during this time he was probably smoking about a carton of cigarettes a week. He estimated he smoked 10 packets of 20 cigarettes or 200 a week over a period of five months while posted to Ismalia in Egypt and also drank more. He continued to smoke heavily until he returned to Australia.
17. After he returned from Ismalia to Richmond in NSW, Mr Lemay gave evidence that he continued to smoke and drink. Two and a half years later, he said he was posted to Butterworth in Malaysia. That was in October 1981. Again, he was providing support, this time to the Royal Malaysian Airforce. Mr Lemay gave oral evidence that he looked after anti-malarial pest control. He continued to smoke at least a packet a day and changed from Dunhill to Craven A. He was stationed in Malaysia for two and a half years.
18. Mr Lemay told the tribunal that he continued to smoke heavily when he was based at Wagga Wagga. He was posted to Wagga Wagga around May 1984 for four years. He said he gave up smoking for a period out of concern for his health and after discussing this with his wife although he had no particular health scare. He told the tribunal he did not give up smoking entirely but cut back to having one “here or there”. He said he did not give it away for any good length of time and was back to smoking a packet a day in 1988 before he was posted to Newcastle. He said he was also drinking beer and had put on weight. While posted at Newcastle, Mr Lemay gave evidence that he was placed on restrictions due to being overweight. He gave evidence that he could not go on a posting to the United States because of his weight. He thought his weight then had been “in the high 120s”. He thought his weight at the time of the hearing was around 101kgs.
19 Next, Mr Lemay was posted to “Peabody’s Logistics” in Melbourne. He was there promoted to warrant officer. He gave evidence that he was still smoking at least at the same level. After one year in Melbourne, Mr Lemay told the tribunal he elected to take discharge from the service. Mr Lemay was discharged on 20 May 1992 after 24 years and 10 months of service. He gave evidence to the effect that he sought discharge because he was concerned about the effect on his children’s education of moving to Melbourne from Sydney where there was a different syllabus.
20. After leaving the RAAF, Mr Lemay lived at Cootamundra and worked at a grain handling corporation for 2 months before he commenced working for a correctional centre in 1993. While employed at the correctional centre, in 1997, Mr Lemay was diagnosed with a form of cancer, axillary leiomyosarcoma and diabetes. Mr Lemay told the tribunal the cancer was attached to his chest muscle and is “largely unbeatable”. He is insulin dependant and has stopped working. He told the tribunal his employer looked after him but made him redundant.
21. Mr Lemay told the tribunal he was mowing his lawn on 19 January 2003 when he felt tired and breathless. He cleaned up the yard and went to the tip with the rubbish, then bought some topsoil on the way home. He spread the topsoil and did other jobs at home until around 5.30 or 6.00pm, when he was on his knees cementing in a few bricks when he felt a horrible chest pain. His daughter rang the hospital and his wife hosed him down before she drove him to the hospital which was close by. The hospital ran some tests and found he had suffered a heart attack.
22. The tribunal accepts Mr Lemay’s account of his smoking history, weight history and health matters as truthful and accurate although somewhat lacking in particularity. There are several medical reports before us. Some of these have an emphasis on aspects of Mr Lemay’s health which are no longer at issue for the review.
23. Dr Stewart Mitchell, in his detailed report of 9 May 2005, found “the correct diagnosis is coronary heart disease (atherosclerotic) with myocardial infarction and poor left ventricular function”. He considered the date of clinical onset was 19 January 2003, when Mr Lemay first reported chest pain. In Dr Mitchell’s opinion, “the cause of Mr Lemay’s heart disease was atherosclerosis associated with diabetes, previous smoking and obesity (a metabolic syndrome)”. He added that the therapeutic radiation did not cause or contribute to the heart problem. Dr Mitchell put more emphasis on Mr Lemay’s smoking as the cause of Mr Lemay’s heart disease than his obesity although he thought obesity played a part. Dr Mitchell observed that diabetes was also a major factor. Dr Anthony Hordern, in his report dated 16 July 2005, expressed the opinion that Mr Lemay suffered from coronary artery disease, myocardial infarction, insulin-dependent diabetes mellitus, obesity and the effects of cigarette smoking from 1967 to 1992, with a non-smoking period of four years between 1984 and 1988.
24. For completeness, we note that Dr Yvonne Skinner on 10 June 2005 found that Mr Lemay did not suffer from any psychiatric condition that would prevent him from working. Professor Richard P Mattick, on 1 June 2005, also assessed Mr Lemay and found no relationship between his drinking and smoking and operational or eligible service. Material before us shows that Mr Lemay was diagnosed with diabetes mellitus in October 1997 and suffered a heart attack in January 2003. These events are not in dispute, but causation is an issue. For Mr Lemay to succeed, he must show that his diabetes and heart condition are “war-caused” disabilities.
25. The tribunal is required to adopt the approach set out in Repatriation Commission v Deledio (1998) 83 FCR 82 (at 97-8), when making findings in applying sections 120 and 120A of the Act. The court summarised the position as requiring four steps. The decision maker, first, must consider all the material before it and determine, without making any findings of fact, whether that material points to a hypothesis connecting the injury or disease with service rendered by the person. Secondly, a decision maker must check whether there is an applicable Statement of Principles in force. Thirdly, a decision maker must determine whether the hypothesis is consistent with any such Statement of Principle. Fourthly, the decision maker only then makes findings of fact from the material before it as to whether it is satisfied beyond reasonable doubt that the disease was not connected with service.
the hypothesis
26. The hypothesis put to us was that Mr Lemay developed heart disease associated with diabetes as a result of previous smoking and obesity (a metabolic syndrome). Part of the hypothesis was that he developed a smoking habit during service between 1967 and 1992 and that it increased to 20 to 30 cigarettes a day while he was part of the peace keeping force in 1979, a period of operational service. As well, the hypothesis was that he sustained his high smoking intake throughout his eligible defence service except for a gap from 1984 to 1988 and that Mr Lemay’s smoking led to his diabetes and ischaemic heart disease, making it a war-caused disease. The alternative aspect of the hypothesis was that diabetes and heart disease came about through Mr Lemay’s obesity and its being war-caused.
27. In this case, the Commission accepts that Mr Lemay does have diabetes mellitus and ischaemic heart disease. As there is no dispute as to diagnosis, the next step is to follow the analysis set out in Deledio (supra). Having identified the hypothesis, we have next considered whether it is reasonable, see Repatriation Commission v Bey (1997) 79 FCR 364 and East v Repatriation Commission (1987) 16 FCR 517. In Bey (supra), the court criticised the decision in Cooke v Repatriation Commission (1997) 45 ALD 205:
“In our view that course of reasoning ignores the fact that the expression in question is not ‘hypothesis’ but ‘reasonable hypothesis’. While a hypothesis may be no more than a possibility or supposition, in order for a hypothesis to be reasonable, it must, as East states, be pointed to or supported, and not merely left open as a possibility, by the material before the decision-maker” at 372
28. In Bull v Repatriation Commission (2001) 188 ALR 756, in which there was a relevant SoP, the court applied the reasoning in East (supra) and held that s 120(3) of the Act requires the formation of an opinion whether the material before the decision-maker raises a reasonable hypothesis. Where there is an SoP, the hypothesis must be reasonable, in the sense that it is not fanciful or tenuous, and it must also come within the terms of the relevant SoP.
Is there a reasonable hypothesis?
29. The relevant SoPs for diabetes mellitus and operational service, are contained in instrument no 82 of 1999, as amended by instruments no 9 and 91 of 2001 (the instruments in force at the time of the original decision), and instrument no 11 of 2004 (the current instrument). According to factor 5 of the current instrument, no 11 of 2004, one of the minimum factors that must exist before a reasonable hypothesis is raised connecting the condition with relevant service, is one of those set out in paras (a) to (zn). Two of these are in context, that expressed in (b), being obese for a period of at least 5 years before the clinical onset of diabetes mellitus; or that expressed in (c), smoking at least 10 pack years of cigarettes before the clinical onset of diabetes mellitus. The earlier SoP is less favourable to Mr Lemay and so has not been considered.
30. The hypothesis before us is consistent with the template in the relevant SoP and is reasonable in accordance with the analysis set out in Deledio (supra), before we make any actual findings of fact.
the hypothesis as to obesity
31. We have already noted the hypothesis that Mr Lemay’s operational service was the cause of his obesity and that this lead to diabetes mellitus and ischaemic heart disease. The further question is whether this hypothesis is reasonable in terms of the discussion of the role of SoPs and the comments of the courts above. Factor 5(b) of SoP 11 of 2004 requires, in relation to type 2 diabetes mellitus, that the veteran must as a minimum show “being obese for a period of at least 5 years before the clinical onset of diabetes mellitus”. The hypothesis before us is reasonable in terms of the SoP. In light of factor 5(b), we have gone through Mr Lemay’s body weight history.
Body Weight History
32. “(B)eing obese” as defined in the SoP means an increase in body weight by way of fat accumulation which results in a body mass index (BMI) of 30 or greater where the BMI = W/H squared. ‘W’ is the person’s weight in kilograms and ‘H’ is the person’s height in metres. Mr Lemay’s medical records show 5 recorded height measurements ranging from between 183 cm and 188 cm. This height variation affects the calculation of Body Mass Index (BMI= weight divided by height squared), which is used in the definition of obesity. The variation results in a range for Mr Lemay’s minimum threshold weight for classification as to obesity, specifically, from 100.5 Kg to 106 kg. The height variation recorded blurs the marginal BMI readings. Despite this difficulty, we calculated the BMI as within range for obesity according to the SoP. Influencing our finding is the greater acceptance appropriate under beneficial legislation and noting Mr Lemay’s operational service. Importantly, there is only one marginal reading of 102 Kg noted in February 1972. Taking the greater of the recorded heights before us (188 cm) as a reasonably accurate measurement, we note this agrees with the weight review document discussed in evidence and oral submissions during the hearing.
33. The weight records in the documents produced to the tribunal are sporadic and there are many gaps but this is the best evidence put to us. The record at T p28 gives a summary of Mr Lemay’s weight history and also shows the date of onset of his obesity as 1973. Neither party disputed this record. This report was undated but shows Mr Lemay’s length of service, suggesting it was compiled in August 1990. As well, the report was incomplete as the second page of the report is missing. This summary, nevertheless, shows that when Mr Lemay joined the RAAF in 1967, at age 18, he was 75 kg, which was a normal weight. The report showed a steady increase to 96 kg in 1972, which is the maximum acceptable weight for his height, then 111 kg in December 1979 (T p34), which is after his operational service, then 115 kg in 1983, 120 kg in 1988 and “now 127.5 (BMI = 36.07)” as at August 1990. Next, records are from 1988 to 1992 and show Mr Lemay’s weight consecutively as 120, 122, 127, 126 and 116 kilos. This last record shows his weight at his time of discharge medical examination. Our conclusion from these records is that Mr Lemay was obese from December 1979 until his discharge in 1992. Dr Mitchell observed that obesity was a major factor in Mr Lemay’s diabetes despite finding that previous smoking was a cause and that obesity only played a part.
34. Mr Lemay gave evidence of a busy lifestyle and referred to the second part-time job he performed for most of his service career. He also told of his participation in several sports, consistent with the medical records of football injuries. His account of his activities the day he had a massive coronary infarct is also consistent with his claim to an innate enjoyment in physical activity.
35. Further, Mr Lemay gave evidence about his operational service in Ismalia and that only one game was organised in the whole 5 months. He also stated the only activity was dancing. He told us he was living and working largely in a hotel with food and alcohol readily available close by. He gave evidence that he drank, smoked and ate more than in Australia.
Consideration of the evidence
36. The material before us indicates Mr Lemay’s onset of obesity was evident after his operational service, with the record showing the onset as 1973, as accepted by both parties during the hearing. The calculation of BMI continued until the end of his service in 1992 and satisfies SoP no 11 of 2004, clause 5(b), that is, Mr Lemay was obese for at least 5 years before the onset of diabetes. We agree with the submission that the relevant period does not have to be the years immediately prior to the onset of the diabetes but that the years may stretch over an unspecified period before the onset of diabetes.
37. We find that Mr Lemay was overweight before his operational service but not obese. His evidence shows his weight was marginally controlled by vigorous sporting activity, which he could not continue during his operational service. In addition, he had almost constant availability of food and drink, being billeted in a hotel. This was an artificial environment created by his operational service during which time he became obese. Despite a resumption of vigorous activity on his return to Australia, Mr Lemay could not reduce his weight below the obesity range. While dieting and weight control is a complex and multifactorial issue, we are not satisfied beyond reasonable doubt that the disease was not connected with operational services. Mr Lemay’s operational service imitated his graduation into obesity from which, despite efforts of all concerned, he was not able to correct. This establishes the required connection between his obesity and his operational service.
the causative link to ischaemic heart disease and operational service
38. As there is a causative link between Mr Lemay’s operational service and his obesity and consequently to his diabetes mellitus, via SoP instrument no 53 of 2003, as conceded by the Commission, this leads to the conclusion that then ischaemic heart disease should be accepted (see paragraph 23 of the Commission’s Statement of Facts and Contentions). The tribunal agrees that this concession is appropriate. As we have found the causation link between operational service and diabetes it is not necessary that we consider Mr Lemay’s smoking history as well.
CONCLUSION
39. It follows from the facts and opinions accepted by us that we are not satisfied beyond reasonable doubt that Mr Lemay’s diabetes and IHD condition were not war-caused. Accordingly, in accordance with s120(1) of the Act, we determine that his present conditions of IHD and diabetes mellitus are "war-caused diseases" within the meaning of s9 of the Act. The date of effect of that determination is 30 July 2002 (being 3 months prior to the lodgement of Mr Lemay’s claim for disability) (see ss20(1) and 177(2) of the Act.
decision
40. The tribunal sets aside that part of the reviewable decision that Mr Lemay does not suffer from war-caused ischaemic heart disease and diabetes mellitus and, in substitution, decides that Mr Lemay presently suffers from ischaemic heart disease and diabetes mellitus and that those conditions are war-caused diseases within the meaning of s9 of the Act with effect from and including 30 July 2002.
I certify that the preceding 40 paragraphs are a true copy of the decision and reasons for decision of Ms R. Hunt, Senior Member and Dr P. Lynch, Member:
Signed: A. Garcia
..................................................................................……………………………….Associate
Date of Hearing 14 December 2005
Date of Decision 1 May 2006
Solicitor for the Applicant Mr B. Winship
Advocate for the Respondent Mr N. Bunn
0
8
0