Paul Betts and Repatriation Commission
[2013] AATA 346
•28 May 2013
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2012/0960
Veterans' Appeals Division )
Re: Paul Betts
Applicant
And: Repatriation Commission
RespondentCORRIGENDUM
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 CouchDate 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 Couch28 May 2013
Background
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.
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.
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
The whole of Mr Betts’ service is eligible defence service for the purposes of the Veterans’ Entitlements Act1986 (the Act). In determining whether his morbid obesity is caused by his defence service, the standard of proof is to our reasonable satisfaction: s 120(4).
In applying s 120(4), we will be reasonably satisfied Mr Betts’ morbid obesity was caused by his defence service only if the material before us raises a connection between his condition and his service, and there is in force a relevant Statement of Principles (SOP) that upholds the contention that his condition is, on the balance of probabilities, connected with his service: s 120B(3).
Relevant statement of principles
The relevant SOP in Mr Betts’ case is No 32 of 2003 which defines morbid obesity as an excessive accumulation of fat in the body resulting in:
(i)a BMI (body mass index) of at least 40; or
(ii)a BMI of at least 35 together with a requirement for:
(a)ongoing, medically prescribed drug therapy for weight reduction; or
(b)surgical intervention for weight reduction other than cosmetic surgery.
Before it can be said that, on the balance of probabilities, Mr Betts’ morbid obesity is connected to his service, at least one of the factors set out in clause 5 of the SOP must be related to his defence service: cl 4.
The factors which must exist before it can be said that, on the balance of probabilities, that morbid obesity is connected with the circumstances of a person’s service are set out in clause 5 of the SOP. Mr Betts relies on factor 5(a):
(a)having a caloric intake that:
(i)is excessive for energy needs; and
(ii)cannot be compensated by physical activity;
for the year immediately before the clinical onset of morbid obesity
When making its determination, the Veterans’ Review Board also considered whether Mr Betts satisfied factor 5(g) of the SOP (inability to obtain appropriate clinical management for morbid obesity). Because a requirement of factor 5(g) is that morbid obesity be suffered or contracted before or during the person’s relevant service, the Board found Mr Betts did not satisfy this factor.
The evidence (set out below) is that Mr Betts’ morbid obesity had its onset approximately 14 years after his discharge from service. It follows that he cannot satisfy factor 5(g), and he does not rely on it in these proceedings.
“Related to service”
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.
Mr Betts gave evidence that, every second or third day or so, he would feel hungry after a meal and would go to the dry canteen. For instance, he would get a sandwich or a sausage roll on his way back to work after lunch and, over time, he ate more and more food from takeaway outlets off base.
Throughout this time, Mr Betts was running five kilometres each morning and doing group exercises before work, and playing team sports in the afternoon. Despite this, by 1982 he weighed 98 kilograms, 7.5 kilograms above his maximum healthy weight, and his supervisor suggested it would be in his interest, if he wanted a promotion, to lose weight. They came to an agreement that Mr Betts would cut back to two meals a day, and increase his exercise. He kept to the agreement and lost some weight.
Over the years, however, Mr Betts’ weight steadily increased. In 1984, he was recorded as weighing 102 kilograms, some of which he was able to lose with exercise. However, his weight increased to 103 kilograms in 1985, and 108 kilograms in 1987. In August 1989, he weighed 108 kilograms
Mr Betts suffered injuries to his back, knees, and ankles at different times throughout his service. When his injuries occurred, he was unable to exercise for a time, but otherwise maintained his regime of a five kilometre run and group exercises in the morning, and team sports in the afternoon, throughout his service.
In March 1989, Mr Betts suffered a serious back injury that led to chronic pain and affected his ability to exercise. He was downgraded from FE (Fully Effective) to BMS (Below Medical Standard) and decided to leave the Army. The report of an examination in June 1989 shows his employment restrictions as “No marching, running, lifting or bending”. He was discharged in July 1990. In 1994 he was granted a disability support pension by Centrelink.
After his discharge, Mr Betts’ weight continued to increase. In about 2000, he weighed 145 kilograms. He maintained that weight until around 2003 when it started to increase again. Since 2005 he has tried to eat less, and his weight has stabilised, but he finds exercise very difficult because of his chronic pain in his back, knees and ankles. In 2006 he weighed 165 kilograms. He has lost small amounts of weight at different times but, by 2009, he weighed 212 kilograms. When he saw Dr Chase in February 2011, he weighed at least 200 kilograms although his precise weight could not be determined because it exceeded the scales.
Does Mr Betts satisfy factor 5(a)?
(i) Caloric intake “excessive for energy needs”
The respondent does not dispute that, for the year immediately before the clinical onset of his morbid obesity, Mr Betts had a caloric intake that was excessive for his energy needs.
Dr Dianne Volker, an accredited practising dietician and nutritionist, and Dr David Mann an accredited dietician, each interviewed Mr Betts and prepared a report about his diet before, during and after service. They gave oral evidence concurrently. They agree that Mr Betts’ caloric intake at the relevant time was excessive for his energy needs. We accept their evidence. It follows that Mr Betts caloric intake meets the first descriptor in factor 5(a).
(ii) “… that cannot be compensated by physical activity”
Mr Betts gave evidence that, with exercise, he has been able to lose weight at different times. The first occasion was around the time he enlisted, in 1982. The second was in 1984. During these times he exercising fairly strenuously each day and, other than during periods of injury, he maintained exercise up until 1989.
After his 1989 injury and discharge, Mr Betts could not undertake the same forms of exercise as previously. He was limited to golf and lawn bowls but eventually had to give up both because of his back pain and problems with his knees. He gave evidence that he last played lawn bowls in 2005 although, according to Dr Chase’s report in February 2011, he played lawn bowls “up to 3 years ago”, but little turns on which is correct. Dr Chase also noted that Mr Betts had resumed aqua aerobics three or four times a week after a nine month break.
It is apparent that Mr Betts’ increasing weight, combined with his physical disabilities, has brought him to a point where he now finds it very difficult indeed to exercise. However, the relevant period for the purposes of factor 5(a) is from around March 2003 to March 2004. What has happened since will be relevant only insofar as it throws any light on his circumstances during that period.
Although he has lost some weight at different times, Mr Betts’ weight has steadily increased over the years. At the relevant time, he had put on approximately 50 kilograms since his discharge, and he now weighs approximately double what he weighed when discharged.
Mr Betts gave evidence that, in about 2003, he was undergoing rehabilitation through the Commonwealth Rehabilitation Service (CRS) with a view to returning to work. As part of his rehabilitation program, a plan was developed which included exercise to reduce his weight and make him more attractive to prospective employers. Funding for that part of the plan was refused by the Department of Veterans’ Affairs on the ground that Mr Betts’ weight and health needs were said to be his own responsibility.
Finally, in about 2005 “after two or three years of trying” by the CRS, the Department agreed to fund a short physical exercise programme that lasted about three months. Mr Betts achieved a “slight” decrease in his weight but was told, when the course finished, that he would have to pay for it himself if he wanted to continue. He gave evidence that, had he been allowed to stay on the programme, he thinks it would have helped and he could have reduced his weight. As it was, once the programme ended, and he no longer exercised, his weight increased again, and kept increasing.
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.
Dr Mann disagreed that one factor could be singled out as contributing to a lifetime’s habits. In his view, seven months’ exposure to different foods would not itself change habits; Mr Betts did not develop poor eating habits because of the meals served at the mess, but because of “his own purchasing of his own choice of foods”. He agreed that Mr Betts’ injuries “indeed impacted on his ability to exercise” but said exercise is not the only means by which a person can lose weight and even people who are in a wheelchair have been able to lose weight without exercise.
We have some difficulty with the evidence of both Dr Volker and Dr Mann. The relationship between a relatively short period of exposure to a different diet and developing lifelong habits is not clear from the evidence before us, and nor does this view seem to have regard to the role of personal choice or control on the part of the individual concerned. On the other hand, nor is it clear that Mr Betts could have lost weight without exercising at all. However, because we find that Mr Betts’ accepted injuries contributed in a material degree to his morbid obesity, we do not think it necessary, in the circumstances of this case, finally to determine this question.
There is evidence in Army records that Mr Betts was advised at different times that he should lose weight. The report of a medical examination in December 1981 shows “Advised re diet to reduce 4-5 kilos for FE”. An assessment in March 1982 shows he weighed 98 kilograms which was “7.5kg over max. weight” and “FE - lose wt by dieting”. A report in July 1984 noted “At times he can be slightly overweight but has recently made a concentrated effort toward reducing his weight and improving his fitness. He is well regarded and credible”. In June 1989, he was “grossly overweight”; in August 1989, he weighed 108 kilograms and showed “signs of obesity”.
There is no evidence in the records that Mr Betts was given any real, practical support to lose weight. Drs Volker and Mann agree that his efforts at dieting failed for lack of guidance. Against that, the decision of the Veterans’ Review Board shows Mr Betts conceded, when he appeared before the Board, that some responsibility lay with him, but he felt let down by the lack of proactive support for his attempts to lose weight. He conceded it was open to him to ask for assistance with an exercise program, and that there were healthy options available in the mess which he could have chosen.
In Peter William Vidler and Repatriation Commission [2010] AATA 1021, the Tribunal found the Navy had failed in its duty of care to Mr Vidler in that, although he was placed on a program of regular weight checks, his evidence was that it made no arrangements for him to undergo “dietary, lifestyle or physiological management” to reduce his weight and maintain a healthy weight in future. The Tribunal found the Navy’s failure contributed in a material degree to Mr Vidler’s obesity and, therefore, to his sleep apnoea.
While Mr Betts’ evidence suggests we might reach a finding similar to that in Vidler, we have decided against finding whether or not the Army failed in its duty to him. In particular, Mr Betts’ evidence was that, with additional exercise, he was largely able to control his weight while he was in the Army, a strategy which Dr Volker described in her report as “successful”.
“Material contribution” in s 196B(14)(b) connotes “a relationship of substantial causality although it is clear that sole causality is not meant: Perram J in Gilkinson v Repatriation Commission (2011) 284 ALR 226 at 228.
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.
I certify that the preceding 53 (fifty -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey and Dr M Couch. .........[sgd]...............................................................
Associate
Dated 28 May 2013
Date(s) of hearing 5 March 2013 Counsel for the Applicant Mr C Colborne Solicitors for the Applicant Legal Aid Commission of NSW Advocate for the Respondent Department of Veterans' Affairs Advocacy Section
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