Paul Betts and Repatriation Commission

Case [2013] AATA 346

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL             )

)        No: 2012/0960

Veterans' Appeals Division  )

Re: Paul Betts
Applicant

And: Repatriation Commission
Respondent

CORRIGENDUM

TRIBUNAL:             Senior Member J F Toohey

DATE:   4 June 2013

PLACE:                  Sydney

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

Where the decision of the Tribunal currently reads “The Tribunal sets aside the decision under review and remits the matter to the respondent for assessment”, the decision shall now read:

“The Tribunal sets aside the decision under review and in substitution decides that Mr Betts’ morbid obesity is related to his service. The Tribunal remits the matter to the respondent for assessment.”

Where at paragraph [53] the decision currently reads “We set aside the decision under review and remit the matter to the respondent for assessment”, the decision shall now read:

“We set aside the decision under review and in substitution decide that Mr Betts’ morbid obesity is related to his service. The matter is remitted to the respondent for assessment.”

............ [sgd].......................................................

Senior Member J F Toohey

[2013] AATA 346 

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2012/0960

Re

Paul Betts

APPLICANT

And

Repatriation Commission

RESPONDENT

Decision

Tribunal

Senior Member J F Toohey
Dr M Couch
Date 28 May 2013
Place Sydney

The Tribunal sets aside the decision under review and remits the matter to the respondent for assessment.

...........[sgd].............................................................

Senior Member J F Toohey

Catchwords

VETERANS’ ENTITLEMENTS – defence service – accepted back, knees and ankle condition – morbid obesity – whether related to service – standard of proof to Tribunal’s reasonable satisfaction – service diet – caloric intake – whether excessive for energy needs – whether caloric intake could be compensated by physical activity – decision under review set aside

Legislation

Veterans’ Entitlements Act 1986 ss 120(4), 120B(3), 196B(14)

Cases

Gilkinson v Repatriation Commission (2011) 284 ALR 226

Lees v Repatriation Commission [2002] FCAFC 398

Peter William Vidler and Repatriation Commission [2010] AATA 1021

Secondary Materials

Repatriation Medical Authority, Statement of Principles concerning Morbid Obesity, No 32 of 2003

REASONS FOR DECISION

Senior Member J F Toohey
Dr M Couch

28 May 2013

Background

  1. Mr Paul Betts served in the Australian Army from February 1979 to July 1990.  He receives a pension at 80% of the general rate for service-related conditions affecting his back, knees, ankles and left arm.  He also suffers from morbid obesity.

  2. Mr Betts seeks review of determinations by the Veterans’ Review Board that his morbid obesity is not related to his service, and that he is not entitled to the special rate of pension. 

  3. The parties agree that, if we find in Mr Betts’ favour on the first determination, we should remit the matter for assessment, and the Tribunal is not required to determine whether he is entitled to the special rate of pension.

    The law

  4. The whole of Mr Betts’ service is eligible defence service for…

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Paul Betts and Repatriation Commission [2013] AATA 346
Case
[2013] AATA 346
Decision Date

CaseChat Overview and Summary

In the case of Paul Betts and the Repatriation Commission, the Federal Court was called upon to determine whether the appellant's morbid obesity was related to his military service. The appellant, Mr Betts, argued that his exposure to an abundance of food during his service, coupled with his injuries post-service, contributed significantly to his condition. The court had to decide whether the Repatriation Commission's decision to not grant Mr Betts veterans' entitlements for his morbid obesity was correct.

The central legal issue before the court was whether Mr Betts' morbid obesity was related to his military service under the relevant statutory criteria. Specifically, the court needed to assess if his condition was caused by or contributed to in a material degree by his service, and if his excessive caloric intake could not be compensated by physical activity. This required a detailed examination of Mr Betts' service history, his dietary habits during and after service, and the impact of his service-related injuries on his ability to exercise.

The court found that Mr Betts' accepted injuries, particularly those sustained in 1989, significantly impaired his ability to exercise, which in turn severely restricted his ability to manage his weight. The court accepted that Mr Betts' excessive caloric intake could not be compensated by physical activity due to these injuries. The court also noted that Mr Betts' weight gain was most pronounced after his discharge from the military, particularly following his 1989 injury. Consequently, the court concluded that Mr Betts' morbid obesity was related to his service and set aside the decision under review.

The court ordered that the matter be remitted to the Repatriation Commission for reassessment, taking into account the findings that Mr Betts' morbid obesity was related to his service. The decision underscored the importance of considering both subjective and objective elements in determining whether an individual's caloric intake cannot be compensated by physical activity, as well as the significant impact of service-related injuries on an individual's ability to manage their weight post-service.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

By s 196B(14) of the Act, a factor causing, or contributing to, an injury or disease is related to service rendered by a person if:(a)…(b)it arose out of, or was attributable to, that service; or (c)…(d)it was contributed to in a material degree by, or was aggravated by, that service;(e)…(f)… (g)…The evidence There is no dispute that Mr Betts suffers from morbid obesity as defined by the SOP. His weight has increased steadily over the years, during and after his service, and he now weighs in excess of 200 kilograms. Dr Robin Chase, an occupational physician who examined Mr Betts in February 2011, confirmed his BMI at that time was at least 53, well above the BMI required to satisfy clause (i) in the definition of morbid obesity in the SOP. (It is not suggested Mr Betts satisfies clause (ii) of the definition). Clinical onset Clinical onset is the point at which sufficient symptoms of a condition exist to enable a clinician to conclude that the person suffers from the condition: Lees v Repatriation Commission [2002] FCAFC 398. The precise date when Mr Betts’ BMI reached 40 is not clear, partly because height is a variable in measuring BMI, and Mr Betts has been recorded as 190cm and 191cm at different times. However, based on a report from his general practitioner, Dr Gary Wong, it is agreed that his morbid obesity had its clinical onset in March 2004. When considering factor 5(a), therefore, the relevant period is from March 2003 to March 2004. History Mr Betts is one of 11 surviving children (one brother having died when young). He grew up on a farm where there was plenty of physical activity; he did cross-country running, and played rugby league, Australian rules football and soccer. He also helped out on his uncle’s farm during the year and on holidays, which involved long hours and physically demanding work. Mr Betts enlisted in 1979 when he was 17. It was suggested to him at the time he should lose “some weight”, which he did by exercising. It is not clear how much weight he needed to lose but there is no suggestion that his excess weight posed any obstacle to his enlistment. He is recorded as weighing 87 kilograms on enlistment which, for his height, meant a BMI of 25, which is within normal range. Mr Betts spent his first seven months in training at Kapooka military training school and at the School of Military Engineering where he qualified as a field engineer. Whereas his diet at home had been standard fare, Mr Betts gave evidence he could not believe the food that was available to recruits. As well as three meals, they were served morning and afternoon tea and, after several months, they also had limited access to the “dry canteen” where he would buy things like cordial and soft drinks when he was paid each fortnight. As he put it to us, he was presented with a massive array of food and his brain said “goodee – I can have it”. After his training, Mr Betts was posted to Holsworthy where the range of food was more limited; there was no morning and afternoon tea, and the amount of some food, such as bread, was restricted. There was a full-sized mess servicing several units. All the food would be put out at the same time and those who were in the first half of the queue got the better quality food and choice of meals. At the same time, there was unlimited access to the dry canteen which sold pies, sticky buns, lollies, chocolate and the like.

Decision

Reasons for decision

There is no dispute that Mr Betts’ accepted injuries seriously curtailed his ability to exercise. We are satisfied that the injury he sustained in 1989 and his resulting accepted conditions was the most significant factor in his inability to exercise after his discharge. . Over time, his increasing obesity has itself limited his ability to exercise but that does not change the contribution in a material degree by his accepted conditions at the relevant time, and since.Conclusion We are satisfied that, on the balance of probabilities, Mr Betts’ accepted conditions contributed in a material degree to his morbid obesity and, therefore, that it was caused by his service. We set aside the decision under review and remit the matter to the respondent for assessment.

Ratio Decidendi

Legal Principle Established

In a written statement in May 2011, Mr Betts said that, over the past couple of months, he had been losing weight slowly by watching what he ate and doing water exercises. That said, he remains morbidly obese and moves with obvious difficulty.Consideration Neither the SOP nor the Act offers any assistance in interpreting the phrase “cannot be compensated by physical activity”. As we read it, “cannot” in this context contains both subjective and objective elements and requires consideration of what is realistic and reasonable in the circumstances of the individual concerned. It was submitted for Mr Betts that an exercise program has to be reasonably available to satisfy factor 5(a)(ii), and that a program was not reasonably available to him after the CRS ceased funding in 2005. We do not think the SOP invites that qualification. The evidence, which we accept, is that Mr Betts was able to exercise quite vigorously for most of the time up until his discharge. His weight increased over time but it was only after his back injury in 1989 and his discharge in 1990 that it really increased, to approximately 150 kilograms during the relevant period and, since then to approximately twice what it was when he was discharged. From the time of his discharge, Mr Betts’ ability to exercise was severely restricted by the injury to his back, knees and ankles. There is evidence that he suffered low back pain in 1983, and recurrent episode of low back pain since. His back pain may have affected his ability to exercise from time to time but, as we have noted below at [51], he was largely able to control his weight with exercise while he was in the Army. We are satisfied that, at the relevant time, Mr Betts’ excessive caloric intake could not be compensated by physical activity. His ability to exercise was severely restricted and the weight loss he achieved occasionally after his discharge was minimal and made little difference to the overall increase in his weight. We do not think the fact that he achieved a “slight” decrease in weight over three months in 2005 makes any substantial difference. (It is not clear exactly how much weight Mr Betts lost on this occasion but, considering his pattern of weight increase overall, we are satisfied it was minimal). It follows that we are satisfied that Mr Betts satisfied factor 5(a) at the relevant time. We note that the respondent does not dispute that Mr Betts satisfies factor 5(a).Is Mr Betts’ morbid obesity related to his service Mr Betts submits that the diet to which he was exposed while on service changed his eating habits and led to a lifetime of over-eating and his morbid obesity. Further that, despite being aware of his increasing weight, the Army failed in its duty of care by failing to offer him support to lose weight, and that this failure contributed materially to his morbid obesity. Drs Volker and Mann disagreed about the effect of exposure to Army food on Mr Betts’ later dietary habits. Dr Volker took the view that “the food insecurity experienced by Mr Betts early in is army career developed into a habit of supplementing his mess diet with fast foods” and, on discharge, this pattern of eating continued; once he was injured, he could not exercise and became morbidly obese.