Murphy and Military Rehabilitation and Compensation Commission (Compensation)

[2015] AATA 967

Murphy and Military Rehabilitation and Compensation Commission (Compensation) [2015] AATA 967 (15 December 2015)

Division	VETERANS' APPEALS DIVISION
File Number(s)	2015/1060
Re	Andrew Murphy
APPLICANT
And	Military Rehabilitation and Compensation Commission
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	15 December 2015
Place	Brisbane

The decision under review is affirmed.

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Senior Member Bernard J McCabe

CATCHWORDS

VETERANS’ AFFAIRS – service pension – condition must be connected with defence service – deep vein thrombosis – not satisfied applicant meets requirements of the relevant statement of principles – decision under review affirmed

LEGISLATION

Military Rehabilitation and Compensation Act 2004 (Cth), s 339(3)

Statement of Principles concerning deep vein thrombosis No.55 of 2012

CASES

Kattenberg v Repatriation Commission [2002] FCA 0412; (2002) 73 ALD 36

REASONS FOR DECISION

Senior Member Bernard J McCabe

15 December 2015

1. Mr Andrew Murphy has asked the Military Rehabilitation and Compensation Commission to accept liability under the Military Rehabilitation and Compensation Act 2004 (the Act) for his deep vein thrombosis (DVT) condition. I must consider whether his condition is connected with his defence service: s 339(3).

2. The Commission accepts the applicant suffers from DVT, and that the date of onset was on or about 18 May 2011. Mr Murphy was a serving member of the defence forces at the time. He explained in his oral evidence that he was required to do a lot of air travel around Australia for work purposes in 2011. He was posted to a training unit and much of his work took place behind a desk or in a class room. He said he had taken approximately 46 flights over an 18 month period. He recalled one flight from Melbourne to Brisbane on 17 May 2011. There was a lengthy delay during which he was forced to remain on the plane. The flight lasted around 3 hours and 40 minutes. He said he felt a twinge in his leg as he got off the plane. He initially thought it was a muscle strain. When he went home, he said he did some exercise but he did not get any relief. The pain became worse and he saw the doctor three days later. It was DVT.

3. Mr Murphy spoke about his intensive exercise program in the period before the date of onset of DVT. He is a fit man, and he has obviously worked hard over a long period to stay in excellent physical condition. He explained he experienced weight gain after reconstructive surgery on his left knee in 2005. He was unable to exercise at the same rate while he was recovering and said in his statement and oral evidence that he added approximately 12 kilograms over a relatively short period. He resumed his exercise program in due course but says he was unable to lose the weight he had gained following the surgery. In 2011, medical records (exhibit 3 at p 81) note he began to experience increased pain in both knees, and he was advised to reduce his running. The Medical Employment Classification Advice dated 25 October 2011 (exhibit 3) said he was thereafter permitted to complete physical fitness tests by walking rather than running.

4. Mr Murphy spoke about his modified exercise regime in the course of his oral evidence, and in his statement. He complained that the demands of his work at the training establishment did not allow as much time for him to exercise. Even so, it was apparent he still exercised at a reasonably high level of intensity. In his oral evidence, he spoke of using a pushbike and a rowing machine. He said in his statement that he attended the gym regularly. He was also a regular swimmer. He added:

   My average pass in a BFA (Basic Fitness Assessment) was well above the requirements for my age group with 60 push up (sic), 100 sit ups and the walk in 42 min 30 sec.

5. I was provided with copies of the applicant’s regular Annual Health Assessment and other medical records. They confirm the applicant experienced a BMI rating of 29 as at 5 August 2005. Reports in the service documents (exhibit 1) confirm the applicant had a BMI of 30 or more from at least November 2006. On that basis, he was – at least according to the criteria – obese.

   Establishing a causal connection

6. I must look to the relevant statements of principles to establish a causal connection between the applicant’s defence service and his DVT. The statement of principles applicable to DVT is No 55 of 2012. There are two factors that are potentially relevant here:

   (e) having restricted mobility for a continuous period of at least four hours within the four weeks before the clinical onset of deep vein thrombosis; or…

   (t) being obese at the time of the clinical onset of deep vein thrombosis…

7. Mr Murphy cannot satisfy the first factor. The applicant accepts he spent less than four hours on the plane on 17 May 2011. While he came close to satisfying the requirement, he did not experience restricted mobility for a continuous (that is, a single) period of four hours during the four weeks that preceded the onset of the condition.

8. The principle in Kattenberg v Repatriation Commission [2002] FCA 0412; (2002) 73 ALD 365 does not assist the applicant. It is not as if the applicant spent more than four hours on a plane in a single stretch for a range of reasons, only some of which were service-related. He simply did not spend long enough on the plane on 17 May 2011 (or on any other day during the preceding four weeks) to meet the requirements of factor 6(e) of the statement of principle.

9. The second factor raises more difficult issues. Clause 9 of the statement of principles says:

   “being obese” means an increase in body weight by way of fat accumulation which results in a Body Mass Index (BMI) of 30 or greater.

10. The Commission says there is no evidence to confirm the applicant’s BMI was the product of fat accumulation. I was told it was likely the applicant’s BMI went up because he added muscle mass - an hypothesis which was consistent with him continuing to exercise at a relatively high rate of intensity (albeit that he was not running) while maintaining a healthy diet.

11. I considered asking the Commission to seek an opinion from an exercise physiologist or other relevant expert about whether the applicant’s switch from running to other forms of exercise – perhaps those requiring more upper body strength, like rowing, gym work and swimming, or which impacted on dietary preferences – might result in increased muscle mass, leading to an increase in BMI. I ultimately decided that was not necessary because I accept the Commission’s central point: there is no evidence of the applicant experiencing an increase (and certainly not a sustained increase) in accumulation of fat that led to an elevated BMI in the period leading up to the date of onset of DVT. It follows I cannot be satisfied the applicant meets the requirements of factor 6(t) of the relevant statement of principles.

    Conclusion

12. The decision under review must be affirmed.

13.     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.

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Associate

Dated 15 December 2015

Date of hearing	25 September 2015
Advocate for the Applicant	Mr K Cullen, Samford RSL
Solicitor for the Respondent	Mr B Dube, Sparke Helmore