Naylor and Military Rehabilitation and Compensation Commission

[2011] AATA 838

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 838

ADMINISTRATIVE APPEALS TRIBUNAL      )

)       Nos  2010/2909 and

VETERANS’ APPEALS DIVISION		)               2010/3698
Re		Thomas Naylor

Applicant

And Military Rehabilitation and Compensation Commission

Respondent

DECISION

Tribunal Deputy President J W Constance

Date25 November 2011

PlaceMelbourne

Decision

The decision of the Military Rehabilitation and Compensation Commission made 16 June 2010 which disallowed Mr Naylor’s claim for compensation in respect of the conditions of diabetes and hypertension, is affirmed.

The decision of the Military Rehabilitation and Compensation Commission made 27 August 2010 which disallowed Mr Naylor’s claim for compensation in respect of the condition of obesity, is affirmed.

.......(sgd J W Constance)............

Deputy President

CATCHWORDS

COMPENSATION - whether obesity, hypertension and diabetes were contributed to in a material degree by employment in the Royal Australian Navy – definition of disease – decisions under review affirmed

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4 and 14(1)

Comcare v Sahu-Khan (2007) 156 FCR 536

REASONS FOR DECISION

25 November 2011   Deputy President J W Constance

INTRODUCTION

1.      Mr Naylor is seeking a review of decisions of the Commission refusing his claims for compensation in respect of the conditions of obesity, diabetes and hypertension from which he suffers.

2.      The claims have been made under the provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth). Mr Naylor says that as a result of his service in the Royal Australian Navy he suffered a heart attack which caused him to adopt a sedentary lifestyle. He says that this lifestyle caused him to gain weight which in turn caused him to develop diabetes and hypertension.

3.      For the reasons which follow the decisions of the Commission refusing the claims will be affirmed.

BACKGROUND

4.      Unless otherwise stated the following findings of fact are based on the evidence of Mr Naylor.  I am satisfied of the facts found on the balance of probabilities.

5.      Mr Naylor is 71 years old.  He served as a member of the Royal Australian Navy from 29 September 1958 to 28 September 1967 and from 26 June 1973 to 25 June 1984.

6.      In January 1988 Mr Naylor suffered a heart attack.  The Commission accepted liability to compensate Mr Naylor in respect of this condition on the basis that it was caused by his smoking habit which in turn had been caused by his service in the Navy.

7.      In the years following the heart attack Mr Naylor gained weight.  In 1993 he was diagnosed as suffering hypertension and in 1996 as suffering diabetes.

8.      Mr Naylor claims that after he suffered the heart attack he adopted a sedentary lifestyle to avoid the risk of a second attack.  He says that he did this on medical advice.

LEGISLATION

9. Subsection 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) provides:

Compensation for Injuries

Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

10. The definition of injury which is applicable to Mr Naylor’s claims was contained in section 4 of the Act. It reads in part:

injury means

(a)     a disease suffered by an employee;

…

11.     The relevant definition of disease is:

disease means:

(a)     any ailment suffered by an employee; or

(b)     the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth…

ISSUES FOR DETERMINATION

12.     It is not in dispute that Mr Naylor suffers all three conditions, namely obesity, hypertension and diabetes. He argues that his heart attack (which it is agreed was caused by his employment in the Navy) caused him to become obese which contributed to his suffering hypertension and diabetes.

13.     The following are the issues for decision.

1)Was the obesity which Mr Naylor now suffers contributed to in a material degree by his employment in the Navy?

2)Was the hypertension from which Mr Naylor has suffered since 1993 contributed to in a material degree by his employment in the Navy?

3)Was the diabetes from which Mr Naylor has suffered since 1996 contributed to in a material degree by his employment in the Navy?

EVIDENCE AND FURTHER FINDINGS OF FACT

14.     The records of Mr Naylor’s weight disclose the following:

·July 1967 (2 months before first discharge)  81.5 kg[1]

[1] Exhibit A2 p.24.

[September 1967 – completion of first period of service]

[June 1973 – re-enlistment]

·October 1975  85 kg[2]

·September 1982  90 kg[3]

·March 1983 (obesity surveillance commenced)                 90 kg[4]

·April 1983  92 kg[5]

·October 1983 (surveillance completed)  83 kg[6]

[June 1984 – completion of second period of service]

[January 1988 – heart attack]

·February 1989  95 kg.[7]

[2] Exhibit A2 p.33.

[3] Exhibit A2 p.70.

[4] Exhibit A2 p.76.

[5] Exhibit A2 p.78.

[6] Exhibit A2 pp.93, 94.

[7] Exhibit A2 p.113.

15.     In a report to the Department of Veterans’ Affairs in February 1989,[8]  Dr Easton stated, in part:

Details of medical rehabilitation received in recent years

Medical rehabilitation (exercise and counselling) following heart attack (myocardial infarction) in Jan ‘88.

[8] Exhibit A2 pp.113, 114.

This report followed an assessment carried out by Dr Easton to determine Mr Naylor’s employability.  I am satisfied that this information was provided by Mr Naylor to Dr Easton.

Medical evidence and opinion

Mr G D Kerr, Cardiologist

16.     Mr Naylor was under the care of Mr Kerr following his heart attack.  In a report to the Commission on 21 April 2010[9] Mr Kerr stated:

As I mentioned in my last report, Mr Naylor suffered a myocardial infarction 20 years ago. Following the heart attack he reduced his physical activity and adopted a sedentary lifestyle. He was fearful that exertion would cause another heart attack.

Because of the reduced physical activity his weight has increased and he has developed obesity. The obesity is likely to have contributed to the development of diabetes and hypertension.

[9] Exhibit A2 p.265.

Dr M Jelinek, Consultant Cardiologist, Associate Professor of Medicine

17.     Dr Jelinek assessed Mr Naylor on behalf of the Commission in 2010.  He provided reports dated 18 November 2010[10] and 19 July 2011[11] and gave evidence.

[10] Exhibit R1.

[11] Exhibit R2.

18.     In his report of 18 November 2010 Dr Jelinek stated, in part:

b. Would an individual who suffered a myocardial infarct be advised to adopt a sedentary lifestyle?

The myocardial infarction occurred in January 1988. Enlightened Clinicians at that time did not advise their patients to adopt a sedentary lifestyle. I did advise them to exclude vigorous physical activity from the usual activity level. However, it is possible that Mr Naylor was actually advised by somebody to lead a sedentary lifestyle.

c. What other advice would an individual who suffered an acute myocardial infarction be given?

He would be advised to stop smoking, to do regular exercise of a moderate severity such as walking, to maintain but not increase his weight, to have a diet low in saturated fat, to have adequate blood pressure and cholesterol control.

…

j. My opinion on the link between obesity and the onset of diabetes and hypertension.

Clearly in this case this man had a tendency to obesity. He claims he was advised to adopt a sedentary lifestyle. He stopped smoking at the time of his myocardial infarction. Predictably he developed substantial weight gain. His development of diabetes was about 7 ½ years after his myocardial infarct. However, his weight continued to balloon out subsequently. Very little evidence of this man’s hypertension has been provided but I think in Mr Naylor’s case there is a prima facie case that is stopping smoking and adopting a sedentary lifestyle contributed to the development of his obesity.

19.     Dr Jelinek gave evidence that a weight gain of 3kg is normal for a person who ceases smoking, as cigarettes supress appetite.  This weight gain can be greater in a person who is a heavy smoker, as was Mr Naylor.  However natural appetite does return and the person’s weight stabilizes.  This may take 2-3 years, but after that time food intake is a matter of choice.  In his opinion the nature and quantity of food consumed is a major contributor to weight gain.  This is particularly so if the diet is high in fat and carbohydrates.  In his opinion obesity was the factor which materially contributed to Mr Naylor’s hypertension and diabetes.

Bright Medical Centre Patient Medical History

20.     The records of Mr Naylor’s attendance at the Centre[12] show that Mr Naylor attended the Centre between April 2005 and August 2010.  Included in the records are the following entries:

[12] Exhibit T1.

25-Aug-2005   activity

“lift my knife and fork”

Wt 112.8 kg

…

poor diet for diabetes

excess fat, large serves, only basic understanding of fat/kj content of diet

too many chops, chicken skin, bread, mash, meat, cheese, eating out choices poor

…

lower k/fat alternatives discussed

cut down serves

daily activity

27-Oct-2005   down 3.6kg past 2 months

changes:

no marg/butter

less bread

smart milk

no cream

no mashed spuds

no all you can eat chinese

corn thins

…

has been eating a bit much to treat

…

28-April-2009  no exercise

poor diet-chocolate etc

…

discussed seeing Diabetic educator, reluctantly agreed

hasn’t seen in years apparently

15-June-2009  weight-113.5kg

3-Sep-2009     pt is obese

full fat dairy, low veg with lunch, mash potato, portions

…

decrease portion size overall

22-Jun-2010   wt increase 2kg in 6 months

start exercising and decrease food intake

…

Mr Naylor’s evidence

21.     Mr Naylor was unable to say what he weighed at the time he had the heart attack in 1988, but did say that his weight increased after this event.  He believed his weight was about stable from 1984, when he left the Navy, until the time of the heart attack.  He agreed that after the heart attack he was not told to refrain from exercise but that he was told to refrain from vigorous exercise.  He said that after the attack he reduced his activity as he was afraid he may experience another attack.  He gave evidence that after the attack he “did nothing much at all”[13] and that he was not exercising and not working.

[13] Transcript 24.10.11.

22.     Mr Naylor was questioned about the entries in the Bright Medical Centre notes referring to his apparent excess food consumption.  He said that some of his comments about his diet were made in jest.  I do not accept his evidence in this regard.  I do not accept that a health professional, either a doctor or a dietician, would record comments by Mr Naylor about his diet if it appeared that he was joking at the time.  When it was put to Mr Naylor that by 2009 he had not made any attempt to change his diet he replied “on and off”.

23.     Mr Naylor was asked about his exercising routine in 2009.  He replied that he bought a bicycle but as he fell off it twice “he did not worry about it”.  He said that since the heart attack he has walked for half an hour “every couple of days”.

Diagnosis

24.     I am satisfied on the basis of the evidence of Mr Naylor that Dr Easton diagnosed Mr Naylor as suffering hypertension in 1993 and diabetes in 1996.  This is not in dispute.

25.     It is not in dispute that at the time of the diagnoses Mr Naylor was obese.

REASONING

Was the obesity from which Mr Naylor now suffers contributed to in a material degree by his employment in the Navy?

26.     In Comcare v Sahu-Khan[14] the Federal Court considered the definition of disease in s.4 of the Act. The Court said:

[14] (2007) 156 FCR 536, 542, 543.

Bearing in mind that the course of statutory construction is often not aided by substituting for the word used in an enactment, another word which is not so used, probably the best that can ultimately be said is that the s 4 definition:

(i)requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;

(ii)“in a material degree” requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question (“the threshold evaluation”);

(iii)whether this will be so in a given case will be a matter of fact and degree.

27.     Mr Naylor has shown a tendency to become obese on occasions.  In 1982 his weight had increased to 90 kg and he was placed on obesity surveillance in March 1983.  His maximum weight during 1983 was at least 92 kg.  He was able to reduce his weight to 83 kg within six months by reducing his food intake and by exercise.

28.     The records of the Bright Medical Centre show that between August 2005 and June 2010 Mr Naylor’s weight had increased to 113.5 kg.  The advice he was given indicates that his weight problem was attributable to his poor dietary choices, excessive food consumption and insufficient exercise.  The responses given by Mr Naylor to his general practitioners and his evidence indicate that he has not always followed the advice he has been given in relation to weight reduction.

29.     Mr Naylor relies on the evidence of Mr Kerr that his weight increase which followed his heart attack was caused by his reduced physical activity.  It was argued on behalf of Mr Naylor that he was advised to adopt a sedentary lifestyle after the heart attack.  However in giving evidence Mr Naylor conceded that he was not told to refrain from exercise, but rather he was told to refrain from “vigorous exercise”.  He said that he “did nothing much at all” by reason of his fear of a further attack. 

30.     Mr Naylor did cease smoking cigarettes following his heart attack and I note that it has been accepted that his smoking habit was caused by his Naval service.  I accept the evidence of Dr Jelinek that over 2-3 years following cessation of smoking it is normal for a weight gain of 3 kg to occur, and that this may be more in the case of high cigarette consumption, such as that of Mr Naylor.  I accept also Dr Jelinek’s evidence that after 2-3 years the effect of ceasing smoking no longer contributes to weight increase.

31.     I prefer the evidence of Dr Jelinek to that of Mr Kerr.  Mr Kerr did not give evidence and did not give any reasons why he appeared not to have taken into account dietary factors in reaching his view that lack of exercise contributed to Mr Naylor’s weight gain following his heart attack.  Dr Jelinek provided the basis for his opinion that in addition to the lack of exercise, the nature and quantity of food consumed is a major contributor to weight gain.

32.     I am satisfied that the heart attack suffered by Mr Naylor caused him to cease smoking and that his lack of exercise and the effects of his ceasing smoking which followed made some contribution to his weight gain.  However on the evidence before me I cannot be satisfied on the balance of probabilities as to the extent of this contribution by the time Mr Naylor was diagnosed with hypertension and with diabetes.

33.     As was stated by the Federal Court in Comcare v Sahu-Khan, in evaluating whether the employment has contributed to the disease “in a material degree” it is necessary to evaluate all relevant contributing factors.  This is a matter of fact and degree.

I am satisfied on the balance of probabilities that from time to time Mr Naylor chose to consume excessive quantities of food of an inappropriate nature for a man with his propensity to gain weight.  I am satisfied also that apart from any fear of exercising brought on by the attack, he has decided from time to time not to engage in exercise as a means of controlling his weight, despite having received advice to do so.

34.     In view of the various factors which have contributed to the obesity suffered by Mr Naylor, and in particular the importance of the factors related to diet and his known propensity to gain weight, I am not satisfied on the balance of probabilities that the heart attack contributed to the condition in a material degree.  It follows that I am not satisfied on the balance of probabilities that Mr Naylor’s employment contributed in a material degree to the condition.

Was the hypertension from which Mr Naylor has suffered since 1993 contributed to in a material degree by his employment in the Navy?

Was the diabetes from which Mr Naylor has suffered since 1996 contributed to in a material degree by his employment in the Navy?

35.     It was conceded on behalf of Mr Naylor that if the Tribunal is not satisfied that Mr  Naylor’s employment made a material contribution to his obesity it could not be satisfied that his employment made a material contribution to his hypertension or his diabetes.  This concession was made on the basis that the medical evidence was that both the hypertension and the diabetes were caused, at least in part, by his being obese.  There is no evidence which otherwise links the hypertension and/or the diabetes to his Naval service.  On the evidence before me I am satisfied this was a proper concession.

CONCLUSION

36.     The decision of the Military Rehabilitation and Compensation Commission made 16 June 2010 which disallowed Mr Naylor’s claim for compensation in respect of the conditions of diabetes and hypertension, will be affirmed.

37.     The decision of the Military Rehabilitation and Compensation Commission made 27 August 2010 which disallowed Mr Naylor’s claim for compensation in respect of the condition of obesity, will be affirmed.

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of

Deputy President J W Constance

Signed:         .........(sgd K Peterson)...............
  Ms K Peterson, Associate

Date/s of Hearing  24 October 2011
Date of Decision  25 November 2011
Solicitor for the Applicant          Mr B Turner
Counsel for the Respondent     Mr J Wallace
Solicitor for the Respondent     Mr A Blunt, Australian Government Solicitor