Lindsay Reinhard and Repatriation Commission

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[2013] AATA 522

Division VETERANS’ APPEALS DIVISION

File Number(s)

2012/0575

Re

Lindsay Reinhard

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

Ms N Isenberg, Senior Member and
Dr H Haikal-Mukhtar, Member
Date 25 July 2013
Place Sydney

The decision under review is affirmed.

................[sgd]........................................................

Ms N Isenberg, Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – disability pension – morbid obesity – whether condition is related to service – whether caloric intake cannot be compensated by physical activity for the year immediately before clinical onset – decision under review affirmed

LEGISLATION

Veterans’ Entitlements Act 1986 ss 9, 13, 70, 120

CASES

Bull v Repatriation Commission (2001) 66 ALD 271

Bushell v Repatriation Commission (1992) 175 CLR 408
Elliott v Repatriation Commission (2002) 73 ALD 377
Gilkinson v Repatriation Commission (2011) 197 FCR 102
Hardman v Repatriation Commission (2004) 82 ALD 433
Kattenberg and Repatriation Commission [2002] FCA 412; (2002) 73 ALD 365
Knight v Repatriation Commission [2010] FCA 1134
ReBetts and Repatriation Commission [2013] AATA 346
ReSummers and Repatriation Commission [2008] AATA 481
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hill (2002) 69 ALD 581
Roncevich v Repatriation Commission [2005] HCA 40; (2005) 222 CLR 115

Youngnickel v Repatriation Commission [2004] FCA 1691

SECONDARY MATERIALS

Statement of Principles concerning Morbid Obesity Instrument No. 31 of 2003

Statement of Principles concerning Morbid Obesity Instrument No. 32 of 2003

REASONS FOR DECISION

Ms N Isenberg, Senior Member and Dr H Haikal-Mukhtar, Member

25 July 2013

BACKGROUND

  1. The Applicant, Lindsay Reinhard, served in the Royal Australian Navy from 11 July 1971 to 20 March 1975.  He had operational service in Vietnamese waters between 20 September 1971 and 16 October 1971.  His service after 7 December 1972 is eligible defence service.  He receives a pension for service-related conditions in relation to both knees and ankles, diabetes mellitus, non-melanotic malignant neoplasm of the skin and ischaemic heart disease.  There was no dispute that the Applicant suffers morbid obesity and that, at his height, is morbidly obese at 126.74 kg.

  2. The Applicant seeks review of the determination by the Veterans’ Review Board that his morbid obesity is not related to his service.

    ISSUE BEFORE THE TRIBUNAL

  3. The issue is whether the Applicant’s morbid obesity is war-caused (or defence-caused).

    LEGISLATIVE BACKGROUND

  4. Section 9 of the Veterans’ Entitlements Act 1986 (VE Act) provides that a disease or injury is taken to be war-caused if it resulted from an occurrence that happened while the veteran was rendering operational service or arose out of, or was attributable to, that service.

  5. Section 13(1) of the VE Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.

  6. As the veteran had operational service, the determination of whether his claimed condition is war-caused is to be made by applying subs 120(1) and 120(3) of the VE Act.  Those subsections require us to find that the…

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Details
Case
[2013] AATA 522
Decision Date

CaseChat Overview and Summary

In the matter of Lindsay Reinhard and the Repatriation Commission, the Federal Court of Australia was tasked with determining whether the Applicant's morbid obesity was attributable to his service in the Australian Defence Force. The court was required to assess whether the Applicant's morbid obesity was war-caused or defence-caused under the Veterans’ Entitlements Act 1986. The Applicant argued that his service-related orthopaedic conditions prevented him from exercising, leading to an excessive caloric intake that could not be compensated by physical activity, thereby causing his morbid obesity. Alternatively, he posited that his service exposed him to an environment that encouraged overeating, contributing to his condition.

The court examined the statutory framework, particularly sections 9 and 13(1) of the VE Act, which establish the criteria for determining war-caused and defence-caused conditions. The relevant Statement of Principles No. 31 of 2003 defines morbid obesity and outlines the necessary factors that must be related to service for a condition to be considered war-caused. The Applicant relied on factor 5(a) of the SoP, which pertains to caloric intake exceeding energy needs without compensation through physical activity. The court scrutinised the Applicant's evidence, including his lifestyle and eating habits during and after his service, to determine if these factors were sufficiently linked to his service to satisfy the statutory criteria.

After evaluating the evidence, the court concluded that there was insufficient ground to determine that the Applicant's morbid obesity was related to his operational or eligible defence service. The court found that while the Applicant's service may have influenced his eating habits and physical activity levels, there was no compelling evidence to establish a direct causal link to his morbid obesity. Consequently, the court affirmed the decision of the Repatriation Commission denying the Applicant's claim for compensation related to his morbid obesity.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The issue is whether the Applicant’s morbid obesity is war-caused (or defence-caused).LEGISLATIVE BACKGROUND Section 9 of the Veterans’ Entitlements Act 1986 (VE Act) provides that a disease or injury is taken to be war-caused if it resulted from an occurrence that happened while the veteran was rendering operational service or arose out of, or was attributable to, that service. Section 13(1) of the VE Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran. As the veteran had operational service, the determination of whether his claimed condition is war-caused is to be made by applying subs 120(1) and 120(3) of the VE Act. Those subsections require us to find that the veteran’s condition was war‑caused unless we are satisfied, beyond reasonable doubt, that there is no sufficient ground for making that finding. A disease contracted by a member is defence-caused if the disease arose out of, or was attributable to, the member’s defence service: s 70(5)(a) of the VE Act. The Tribunal, in determining whether a disease suffered by a member is a “defence-caused disease” for the purposes of s 70 of the VE Act, is, pursuant to s 120(4), to decide that matter “to its reasonable satisfaction”. Therefore, the test for whether a condition is war-caused is more beneficial to a veteran than the test whether the condition is defence-caused. The relevant Statement of Principles (SoP) is No. 31 of 2003, which defines morbid obesity as an excessive accumulation of fat in the body resulting in: (i)a BMI [body mass index] of at least 40; or (ii) a BMI of at least 35 together with a requirement for: (a) ongoing, medically prescribed drug therapy for weight reduction; or (b) surgical intervention for weight reduction other than cosmetic surgery. Before it can be said that the Applicant’s morbid obesity is connected to his service, at least one of the factors set out in cl 5 of the SoP must be related to his service: cl 4. Mr Reinhard relies on factor 5(a): (a) 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. The relevant SoP in relation to eligible defence service is No. 32 of 2003, which is in corresponding terms.EVIDENCE We had before us the documents lodged with the Tribunal pursuant to s 37 of the Administrative Appeals Act 1975. The following documents were tendered at the hearing:·Statement of Lindsay Reinhard dated 3 January 2013;·Report of Dr Dianne Volker dated 15 June 2012;·Medical Examination Records dated 26 November 1970, 14 May 1971 and 27 January 1975;·Consultation notes of Dr Pearce dated 26 March 2013·Exercise/Weight Profile for Lindsay Reinhard;·Report of Dr David Mann dated 12 December 2012;·Historical Research Report prepared by A.H. R. Brecht, Commodore RAN (Retired) on behalf of Writeway Research Services dated 22 August 2012.

Evidence

Evidence Before The Court

Mr Reinhard provided a statement and gave evidence. Evidence was also given by Drs Volker and Mann, dieticians. Mr Reinhard’s evidence Mr Reinhard married in 1969. At that time, breakfast was either toast and boiled/poached egg or a serve of cereal with a slice of toast and coffee/tea. For lunch he would take a sandwich with either meat/lettuce and cheese or peanut butter/vegemite filling and fruit such as a banana or orange. Typically, they had meat and three vegetables or meat and salad for the evening meal. He would play sport once a week - tennis in the winter months and cricket in summer. For cricket there was one afternoon training session a week that went for about 1.5 hours. His weight on entry to the RAN on 11 July 1971 was about 80 kg. He was stationed at HMAS Cerberus for six to seven weeks while undertaking initial officer training. He lived in accommodation in the officer’s mess. HMAS Cerberus was also the Navy Cooking School and provided training for stewards. The quality and quantity of food available was at a level he had never experienced before. His first meal there was lobster thermidor. Overnight his eating changed to three full course meals, together with morning and afternoon tea and supper. For breakfast, as well as juice, cereals, fruits, toast and condiments, a full English breakfast was available (bacon, sausages, baked beans, eggs, mushrooms and fried potato). Lunch and dinner were three course meals. Bread or rolls and butter were always available. Servings were considerably larger than what he had been used to prior to entry to the RAN. Three days after entry he was selected in the RAN Victorian Inter-Service Soccer Team, which meant living in the RAAF Officer’s Mess at Point Cook for the following week as they played matches against Army and RAAF. While in Victoria he commenced playing sport most days of the week - initially as a means of filling in time. When he was not playing or training for soccer, there was also a tennis court next to the wardroom and he played with other officers undertaking basic officer training. This was to become the pattern for his life whilst in the RAN. Even while at sea he would play either volleyball, badminton or table tennis nearly every day. On land-based establishments inter-base sport was played during the week (normally Wednesday). While at HMAS Nirimba, he also coached RAN apprentice teams in soccer and cricket as well as represented NAVY in inter-service cricket and soccer. The base also played in the local town sporting competitions on Saturdays. As well as playing soccer and cricket for the base, he was also selected in representative matches for the Penrith District and played on Sundays. He was playing sport seven days a week. He also participated in hockey, tennis, volleyball and basketball. For the majority of the time he was in the RAN he was based at HMAS Nirimba where he lived in married quarters. For periods when his wife visited her parents he would live in the wardroom, and have meals there. Lunch was always provided in the wardroom. He also had breakfast most mornings in the wardroom and evening meals at least three nights a week, plus nights he was on duty. The catering at HMAS Nirimba was as plentiful as all other bases and seconds were always available. He was able to consume large meals without any weight gain.

Decision

Reasons for decision

In all of the circumstances, we are satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the Applicant’s morbid obesity related to either his operational nor, on the balance of probabilities, to his eligible defence service.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

In his report he had noted that “Mr Reinhard has been able to demonstrate that by cutting down his food intake, he has been able to lose weight.” He said that Mr Reinhard told him he had lost weight without exercise by cutting down his food intake.CONSIDERATION As we understand the submissions, the Applicant advanced two hypotheses:·Mr Reinhard’s accepted orthopaedic disabilities, including his war-caused osteoarthrosis of the left ankle, materially contributed to his inability to exercise and that, as a result, his caloric intake was excessive for his energy needs;·The Applicant’s defence service had exposed him to an environment which encouraged high caloric intake and led to a lifetime of over-eating, and this materially contributed to his morbid obesity. As to whether either hypothesis conformed to the template in the SoP, this step (as per Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98) entails determining whether the relevant hypothesis complies with the factor. This step involves considering all of the material before us, but without making any findings of fact at this stage of the process, whether or not that material supports the hypothesis: Bull v Repatriation Commission (2001) 66 ALD 271, Hardman v Repatriation Commission (2004) 82 ALD 433, and Elliott v Repatriation Commission (2002) 73 ALD 377. In the last of these cases, Stone J likened the decision-maker’s task to striking out a statement of claim as failing to disclose a cause of action, where no consideration is given to whether the facts pleaded can be substantiated. The question for us at this stage is, therefore, whether there is material pointing to each element of the hypothesis: Youngnickel v Repatriation Commission [2004] FCA 1691. Whether a hypothesis is consistent with a factor in the SoP requires an examination of the totality of the material, and every essential element of the factor must be pointed to by that material. A hypothesis connecting a disease with war service will only be reasonable if the material that raises it includes all of the essential elements prescribed by the SoP: Repatriation Commission v Hill (2002) 69 ALD 581. Both hypotheses, it was clear as a simple matter of interpretation of the factor, require the necessary elements to be considered in relation to the year immediately before the clinical onset of morbid obesity. As to clinical onset, there was no dispute that the clinical onset of Mr Reinhard’s morbid obesity was in about 2003, over 30 years after his operational service and 28 years after he left the Navy. The Applicant’s first hypothesis that, for the year immediately before the clinical onset of morbid obesity in 2003, his caloric intake was excessive for his energy needs, because it could not be compensated by physical activity due to his war-caused conditions. The contention was that, as a matter of construction, “caloric intake” will, as a matter of fact, be excessive for energy needs if it cannot be compensated by physical activity, and that therefore “excessive for energy needs” in the factor is redundant.