Olsen and Repatriation Commission

[2004] AATA 1283

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1283

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   A2002/474

VETERANS’  APPEALS  DIVISION		)
Re		GEOFFREY OLSEN

Applicant

And   REPATRIATION COMMISSION

Respondent

DECISION

Tribunal   Mr J.W. Constance, Senior Member

Date  2 December 2004

Place  Canberra

Decision   The decision of the Repatriation Commission dated 8 March 2002 is affirmed.

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

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ Entitlements – eligibility for pension – whether the applicant’s injury or disease materially contributed to or aggravated by defence service – whether applicant obese during the relevant period – whether obesity contributed to by defence service – decision affirmed

Veterans’ Entitlement Act 1986 (Cth) – ss 70, 120, 120B

REASONS FOR DECISION

2 December 2004            Mr J.W. Constance, Senior Member

1.      On 21 February 2002 Mr Olsen lodged a claim for medical treatment and a pension for incapacity caused by a condition ultimately diagnosed as hiatus hernia. The Repatriation Commission refused the claim and its decision was affirmed by the Veterans’ Review Board.

2.      On this application for review of the Board’s decision the issue is whether his condition was contributed to in a material degree by, or was aggravated by, the defence service rendered by Mr Olsen as a member of the Air Force.

3.      For the reasons I set out the decision of the Repatriation Commission will be affirmed.

ISSUES FOR DETERMINATION

4.      The only issue for determination is whether I can be reasonably satisfied that Mr Olsen’s “hiatus hernia” is  a “defence-caused disease” such as to entitle him to a pension under section 70 of the Veterans’ Entitlement Act 1986 (Cth).

THE LAW

5.      Section 70 of the Act relevantly provides that a member of the Forces is eligible for a pension if the member has become incapacitated from a defence-caused disease.

6.      Section 70(5) provides:

“For the purposes of this Act, ……  a disease contracted by …… a member [of the Forces] shall be taken to be a defence-caused disease if……

(d) the……disease from which the member……has become incapacitated……was ……contracted during any defence service …… of the member, but did not arise out of that service……and, in the opinion of the Commission, the ……disease was contributed to in a material degree by, or was aggravated by, any defence service……rendered by the member, being service rendered after the member…… contracted the disease…”

7.      The standard of proof required in deciding questions of fact is reasonable satisfaction.[1]

[1] See s.120(4) of the Act.

8.      Section 120B(3) of the Act provides, inter alia:

“In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that……a disease contracted by a person……was …… defence-caused only if:

(a) the material before the Commission raises a connection between the …… disease……and some particular service rendered by the person; and

(b)  there is in force:

(i)     a Statement of Principles determined under subsection 196B(3) or (12); or

…….

that upholds the contention that the……disease……is, on the balance of probabilities, connected with that service.”

9.      There is in existence a Statement of Principles concerning Hiatus Hernia.[2] Clause 3 of that statement provides that:

“On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that hiatus hernia and death from hiatus hernia can be related to relevant service rendered by veterans or members of the Forces.”

[2] Instrument No. 18 of 2004.

10.     Clause 4 of the SOP provides inter alia, that “at least one of the factors set out in clause 5 must be related any relevant service rendered by that person.”

11.     Paragraph 5 provides in part that:

“The factor that must exist before it can be said that, on the balance of probabilities, hiatus hernia or death from hiatus hernia is connected with the circumstances of a person’s relevant service is:

…..

(f) being obese at the time of the clinical worsening of hiatus hernia”.

Mr Olsen advised the Tribunal at the commencement of the hearing that the factor set out in sub-paragraph (f) was the only factor upon which he was relying.

FACTS

12.     The following findings of fact are based on the evidence of Mr Olsen unless otherwise stated.  

13.     Mr Olsen was engaged continuously in defence service as a member of the Air Force during the period 24 September 1975 to 7 April 1994.  This was properly conceded.

14.     In 1985 Mr Olsen was diagnosed as suffering from “a small to moderate sized, sliding hiatus hernia.”[3]  A barium meal radiological examination carried out in 1979 had not demonstrated any such condition.[4]

[3] Service and Medical Documents T3 p.13.

[4] Service and Medical Documents T3 p.12.

15.     During the latter half of the 1980’s Mr Olsen suffered “increasing degrees of indigestion and stomach pain”[5] which caused him to seek medical advice and to undergo various tests.  In August 1988 the tests indicated that he had “a large sliding hiatus hernia”.[6]

[5] Transcript 28.9.04 p.10.

[6] Service and Medical Documents T3 p.15.

16.     From 1989 until 1993 Mr Olsen continued to suffer indigestion, stomach pain and reflux once or twice per week.  He treated these symptoms by taking Mylanta or a substitute, by sleeping with his head raised, and by modifying his diet.

17.     Around 1992 he began to have digestion problems which he described as “a feeling of ‘bloatedness’ in the stomach.”[7]  He experienced difficulty in swallowing food and suffered chest pain.  At this time Mr Olsen was employed in a sedentary position in Defence Intelligence, a position which was significantly less physically active compared to his previous positions of Squadron maintenance engineer on an airfield or a communications station.

[7] Transcript 28.9.04 p.11.

18.     Dr Gillies, Gastroenterologist, who examined Mr Olsen on behalf of the  Commission, gave evidence that the “hernia permanently worsened around 1993” and that in her opinion the initial worsening was in 1993.[8]  I accept this evidence.

[8]Exhibit R5, Report of Dr Gillies, 3 September 2004.

19.     Various documents before me show Mr Olsen’s weight between February 1989 and July 1994 as follows:

16 Feb 1989             88kg

2 Apr 1992              90.03kg

8 Jul 1994               92kg

The 1989 and 1992 readings appear at folios 82 and 61 respectively of the complete set of Service documents which were added to the section 37 documents filed in the Tribunal.  The 1994 reading is from a record of a medical examination carried out by Dr Langdale-Smith[9].  I accept these figures as being accurate.

[9] Exhibit A3.

20.     Mr Olsen contends that an entry in his Outpatient Clinical Records for 9 October 1992[10] records his weight as 93 kg.  In the absence of evidence from the maker of the note I am not prepared to make this finding.  I am of the view that the entry is to the effect that Mr Olsen’s weight was to be reviewed in “Feb 93” and that the figure “93” referred to the time the review was to take place.

[10] S.37 documents, p.7.

21.     The issue of Mr Olsen’s height is contentious.  Mr Olsen contends that his height remained constant at a point between 175cm and 176cm throughout the whole of the period between 1967 and 2004 and gave evidence of this.  He did not suggest that he could recall specific measurements of this height.  On the other hand, evidence before me records his height as follows:

Date	Height	Age of Applicant	Reference
17/10/67	175	16	SD174*
8/11/67	175	16	SD174*
9/2/71	175	19	SD153*
17/7/75	177	23	SD151*
9/86	178	35	SD97*
2/4/92	177	40	SD61*
8/7/94	178	43	Ex A3
17/7/01	175	49	Ex A2
8/7/02	175	50	Ex A2

* SD refers to the Service documents.

22.     Dr Gillies gave evidence that males can continue to grow until age 25 or 26 and that from age 40 height may start to decrease.  She said that she did not find the reduction in Mr Olsen’s height measurements between age 40 and 49 unusual.[11]

[11] Transcript pp 49-50.

23.     It is likely that the heights recorded in the documents before me are either measurements made by the various medical practitioners or given by Mr Olsen at the time.  On the evidence it is unlikely that the two 178cm measurements are correct, but otherwise I find that Mr Olsen’s height was as recorded in the above scale.  It is unlikely that each of the measurements from 1975 to 1994 were incorrectly recorded, particularly as they are consistent with Mr Olsen having continued to grow at least until he turned 23 years of age in 1975.  I am not reasonably satisfied that Mr Olsen was 178cm tall in either 1986 or 1994 as the evidence is that it was unlikely he would have decreased in height between the ages of 35 and 40 or grown between the ages of 40 and 43.

24.     On the balance of probabilities I find that Mr Olsen’s height during 1992-1994  was 177cm.

25.     In view of the above provisions of the Act and the Statement of Principles I must be satisfied, on the balance of probabilities, that:

a)    Mr Olsen suffered from a hiatus hernia;

b)    that this condition was suffered during his period of defence service, but did not arise out of that service;

c)    that there was a clinical worsening of the hiatus hernia;

d)    that Mr Olsen was obese at the time of the clinical worsening;

e)that the obesity was related to his defence service.

26.     It was not in issue between the parties that Mr Olsen suffered from the condition of hiatus hernia during the period of his defence service and there is no evidence that this condition arose out of that service.  I am reasonably satisfied that the requirements I have set out in paragraph 25 (a) and (b) above are met.

27.     Also I am reasonably satisfied that there was a clinical worsening of the hiatus hernia between 1991 and 7 April 1994.  In this period Mr Olsen started to experience symptoms of “bloatedness”, chest pain and difficulty in swallowing his food.  These were symptoms which he had not experienced previously.  The symptoms from which he suffered in March 1989 were “well controlled”[12], but by April 1993 the symptoms were such as to cause Mr Olsen to be referred to a gastroenterologist, Dr Bassett.  It is reasonable to infer from the worsening of the symptoms that the underlying condition itself worsened.  In addition there is the evidence of Dr Gillies that the condition worsened during this time.

[12] S.37 documents p.16.

28.     The SOP defines Body Mass Index (BMI) as follows:

“BMI = W/H² and where:

W is the person’s weight in kilograms and

H is the person’s height in metres”.

29.     On the basis of my findings that Mr Olsen’s weight was 90.3 kg on 2 April 1992 and 92 kg on 8 July 1994 and that his height at these times was 177cm, his BMI on these two dates were 28.82 and 29.37 respectively.  Consequently I am not reasonably satisfied that Mr Olsen was obese at these times in accordance with paragraph 8 of the SOP which determines that “being obese” requires a BMI of “30 or greater.”

30.       There is evidence that Mr Olsen was obese in 2001 but Mr Olsen did not argue that at this time his obesity was related to his period of service.

31.     Mr Olsen referred me to the publication “Physics in Context” [13] as authority for the recognition in scientific circles of the principle that there is an accepted margin for error in measurements of height and weight.  Mr Olsen argued that in the calculation of BMI these translated to a margin of error of +/- 0.61%.  For the purposes of this application I accept this proposition, but it does not assist Mr Olsen.  The margin of error works both ways and whilst it may mean that Mr Olsen’s BMI could have been 0.61% greater than the figures calculated (and therefore slightly in excess of 30), it is just as likely that it was 0.61% less than the figures calculated.  It does not mean that I can be reasonably satisfied that either of the BMI’s was 30 or greater.

[13] Exhibit A7. Zealey, Hynoski, Mathur & Tatnell, “Physics in Context”, Oxford University Press, 2001, pp 12-14.

32.     However, even if I am wrong in not being reasonably satisfied that Mr Olsen was obese at the relevant time, I am not reasonably satisfied that his obesity was related to his defence service.  Although he was employed in a sedentary position during 1992-94, I accept Mr Olsen’s evidence that his employer encouraged him to keep fit and to keep his weight in check and that he exercised and did not over-eat.[14] When asked by counsel for the Commission why he believed his weight increased Mr Olsen said:

“I don’t know. Nobody ever told me. It may be genetic. It may be the fact that I was sitting on my posterior for three years staring at a computer. But I certainly exercised. I did my very best but my weight just kept going up and up.”[15]

[14] Transcript pp 83-84.

[15] Transcript p.84.

There was no other evidence, neither from Mr Olsen nor his doctors, that could assist me in making a finding that his obesity was related to his defence service.

DECISION

33.     The decision of the Repatriation Commission dated 8 March 2002 is affirmed.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of

Signed:         .....................................................................................
  Associate (Chelsey Bell)

Date/s of Hearing  28 September 2004 & 21 October 2004
Date of Decision  2 December 2004
Representative for the Applicant    Self
Solicitor for the Respondent          Department of Veterans’ Affairs

+