[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, MemberDate 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 115Youngnickel 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
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.
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
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…
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- Case
- [2013] AATA 522
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
Decision
Reasons for decision
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.