Mark Domjahn and Military Rehabilitation and Compensation Commission

[2014] AATA 663

[2014] AATA 663 

Division	VETERANS' APPEALS DIVISION
File Number(s)	2014/0676
Re	Mark Domjahn
APPLICANT
And	Military Rehabilitation and Compensation Commission
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	11 September 2014
Place	Brisbane (heard in Darwin)

The decision under review is affirmed.

........................................................................

Senior Member Bernard J McCabe

CATCHWORDS

VETERANS’ AND MILITARY COMPENSATION – Claim that applicant’s sleep apnoea linked to his defence service – Application of Statement of Principles – Not established that applicant was obese at time of onset – Applicant unable to establish necessary factors in Statement of Principles – Insufficient evidence to establish clinical worsening – Reviewable decision affirmed.

LEGISLATION

Military Rehabilitation and Compensation Act 2004 (Cth)

SECONDARY MATERIALS

Statement of Principles concerning Sleep Apnoea, No. 42 of 2013

REASONS FOR DECISION

Senior Member Bernard J McCabe

11 September 2014

1. Mr Mark Domjahn was diagnosed with severe obstructive sleep apnoea in August 2008. He wants the Military Rehabilitation and Compensation Commission to recognise the condition is linked to his service in the Australian Army between 1995 and 2011 for the purposes of the Military Rehabilitation and Compensation Act 2004 (Cth).

   
   

   The Commission says it is not liable.

   The Statement of Principles

2. Mr Domjahn must satisfy the relevant Statement of Principles (SoP) in order to succeed in his claim. It was agreed the SoP applicable to sleep apnoea is No 42 of 2013. That is the SoP that deals with claims arising out of defence service. There is no doubt

   
   

   Mr Domjahn is suffering from a condition that answers the description "sleep apnoea" within the meaning of the SoP.

3. The next step is to identify one of the factors in clause 6 of the SoP. There must be evidence suggesting at least one of the factors is applicable. Before the hearing, the case was argued on the basis factor 6(a)(ii) was present – which is to say the applicant was "obese at the time of the clinical onset of sleep apnoea". The expression "being obese" is defined in clause 9 to mean "an increase in body weight by way of fat accumulation which results in a Body Mass Index (BMI) of 30 or greater".

   The medical evidence

4. The date of clinical onset is the date on which a diagnosis could have been made by a properly qualified medical practitioner who observed the symptoms that were present, or the date on which the diagnosis was made by an appropriate expert. In this case, the Commission says the date of onset can be fixed with reference to a sleep study on

   
   

   27 August 2008. The sleep physician, Dr Brown, did not comment on the date of onset issue directly in his report dated 16 September 2008 (exhibit 1.1, pp 59-60), but it is clear from that report the date of onset coincided with an increase in symptoms sometime in the course of early to mid-2008. That stands to reason as the symptoms must have been present before the initial study which was prompted by a referral.

5. That being so, the next question concerns the applicant's BMI in the period before clinical onset – that is, in the earlier part of 2008. The applicant's height and weight were recorded reasonably regularly throughout his service career. The weight measurements vary with a general trend towards increasing weight over time, but that is unsurprising. The record of a reasonably sudden increase in weight in mid to late 2008 also makes sense in light of Mr Domjahn's evidence that his physical activities were curtailed by a series of restrictions imposed following his diagnosis with sleep apnoea in August 2008. He climbed to a weight of 84 kilograms in October 2008 (exhibit 2, p 2).

6. There is a more surprising inconsistency in the records of Mr Domjahn's height.

   
   

   An individual's height might change over time – most of us shrink as we get beyond our mid-twenties. But Mr Domjahn's height appears to be more volatile, if the records are to be believed. A schedule prepared by the respondent suggests the applicant's height varied between about 163 cms in 1976 and 168 cms as recently as 2010, although he was back to 165 cms in 2013. In four measurements recorded between August and November 2008, his height was recorded as 167 cms, 168 cms, 165.5 cms and 168 cms.

   
   

   Those measurements cannot all be right.

7. I have settled on a height of 165-165.5 cms around the date of onset. That is the height recorded by two medical specialists (Dr Brown in exhibit 1.2 at p 73 and Dr Meyerkort in exhibit 1.2 at p 152) whom the applicant recalls actually measuring his height in bare feet using a fixed standard against a wall. It seems a number of the other records were made on the basis of self-reporting.

8. The Commission used the higher self-reported height figures in its calculation of

   
   

   Mr Domjahn's BMI for August 2008. It calculated a BMI of 29 on the basis of the observations recorded on 6 August  2008 which suggest Mr Domjahn was taller. Alas for Mr Domjahn, a recalculation using the lower height figure recorded by Dr Brown in October still yields a BMI of less than 30. Even if one uses the height recorded by

   
   

   Dr Meyerkort – the measure most favourable to the applicant – he still falls just short of a BMI of 30. (Mr Dube, who appeared for the Commission, performed the calculation at the hearing and confirmed that the BMI was in the order of 29.7. on the most generous approach to the height measurements.)

9. The requirements of the SoP are clear: an applicant must have a BMI of at least 30 before he or she can rely on factor 6(a)(ii). There is no scope to round up the figure recorded for Mr Domjahn. It follows his claim cannot succeed on this basis.

   Can the applicant’s claim succeed in another way?

10. Mr Domjahn raised a further possibility at the hearing. He said he experienced an increase in weight after he was diagnosed and his physical activities were compulsorily curtailed, as I have noted. But he also says his condition deteriorated between the sleep study on 27 August 2008 in Darwin (exhibit 1.1, p 50) and a follow-up study in Brisbane on 22 October 2008 where he used a Continuous Positive Airway Pressure (CPAP) mask (exhibit 3). The second report does note "sleep efficiency was reduced" although it also notes "quality of sleep [w]as better than usual" (exhibit 3, p 1). Mr Domjahn relies on the reports to argue he experienced a clinical worsening of his condition – presumably as a consequence of a rapid weight gain after he was placed on restrictions – in an attempt to satisfy factor 6(g)(ii) of the SoP.

11. I do not have sufficient evidence before me to be satisfied there has been a clinical worsening. The claim only arose late in the day, so the respondent had not commissioned medical evidence to deal with that aspect of the claim. Expert medical opinion might be available. I considered adjourning the hearing so that appropriate evidence could be secured, but Mr Dube, for the Commission, urged me not to do that. He pointed out it would be fairer and more cost effective if the Commission considered what is effectively a new claim in the course of its ordinary review processes rather than deal with the matter in the midst of a hearing.

    Conclusion

12. The decision under review must be affirmed. I am not satisfied the applicant had a BMI of at least 30 at the time of clinical onset of the sleep apnoea condition. I am not satisfied on the limited (and incomplete) evidence before me that he experienced a clinical worsening of that condition following diagnosis. That second proposition needs to be examined more fully before a positive conclusion can be reached.

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 11 September 2014

Date of hearing	29 August 2014
Applicant	In person
Counsel for the Respondent	Mr B Dube
Solicitors for the Respondent	Australian Government Solicitor