ROSS STEWART and REPATRIATION COMMISSION
[2012] AATA 56
[2012] AATA 56
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2010/0549
Re
ROSS STEWART
APPLICANT
And
REPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal G. D. Friedman, Senior Member
Date 2 February 2012 Place Melbourne The Tribunal sets aside the decision under review and substitutes a decision that the sleep apnoea suffered by Mr Stewart is war-caused with effect from 5 September 2008.
.............................[sgd]...............................
G. D. Friedman, Senior Member
VETERANS' AFFAIRS – veterans’ entitlements – sleep apnoea – obesity – body mass index
Veterans' Entitlements Act 1986 ss 9, 120(1)
Bull v Repatriation Commission (2001) 188 ALR 756
East v Repatriation Commission (1987) 16 FCR 517
Kaluza v Repatriation Commission [2010] FCA 1244
Kaluza v Repatriation Commission [2011] FCAFC 97
McKenna v Repatriation Commission [1993] FCA 323
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION
G. D. Friedman, Senior Member
2 February 2012
Ross Stewart served in the Australian Army from 23 October 1968 to 27 October 1971. His service in Vietnam from 30 August 1969 to 20 August 1970 constitutes operational service under the Veterans' Entitlements Act 1986 (the Act).
Mr Stewart is in receipt of a disability pension at 100 per cent of the general rate as a result of a number of war-caused medical conditions, including alcohol abuse and diabetes mellitus. On 5 December 2008 he lodged a claim for incapacity from sleep apnoea arising from weight gain due to alcohol abuse and diabetes mellitus. His claim was rejected by the respondent and the Veterans' Review Board (VRB). Mr Stewart is seeking review of the decision.
LEGAL FRAMEWORK
Section 9 of the Act provides that where an injury or disease results from an occurrence that happened while the veteran was rendering operational service or where it arose out of, or was attributable to that service, the injury or disease will be taken as being war-caused. Causation questions such as these, where a veteran has rendered operational service, are addressed by applying the standard of proof in s 120(1) of the Act. That requires decision-makers to determine that an injury or disease is war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
In the circumstances of this case, where Mr Stewart has rendered operational service, the issue of whether the diagnosed condition was caused by operational service is to be decided by reference to the four-step process identified by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP [Statement of Principles] determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
ISSUE
There is no dispute that Mr Stewart suffers from sleep apnoea. The issue before the Tribunal is whether the condition is war-caused, which involves consideration of whether he was obese at the time of clinical onset of the condition.
IS MR STEWART'S SLEEP APNOEA WAR-CAUSED?
Mr Stewart told the Tribunal that his accepted conditions of alcohol abuse and diabetes mellitus led to significant weight gain which in turn caused obesity and sleep apnoea. He explained that when he enlisted in the army in 1968 his height was 5ft. 7in. (170cm) and his weight was 147 lb. (66.7kg) which gives a Body Mass Index (BMI) of 23 kilograms per square metre. When he was discharged in 1971 his height was 5ft. 7 1/2in. (171cm) and his weight was 141 lb. (64kg) which gives a BMI of 21.8. He said that his weight increased steadily after his discharge because of his alcohol consumption.
Mr Stewart explained that after completing his army service he worked for the army as a driver for about nine years until 1980, during which period he drank heavily during and after work. In the 1980s he worked for a private company as an interstate truck driver and his drinking habit continued throughout the 1980s and 1990s. He said that the combination of driving and drinking to excess caused him to gain weight. He stated that during the 1990s he weighed himself regularly on a weighbridge (a set of scales that was designed to measure the weight of large trucks in increments of 10kg). He said that using this equipment he estimated his weight to be at least 90kg.
In relation to his sleep apnoea Mr Stewart told the Tribunal that during the 1990s he had been urged by his general practitioner to lose weight and had tried to do so. In 1998 he read in a newspaper about sleep apnoea and could identify with symptoms such as falling asleep during the day and being unable to sleep at night, which he had experienced for about two years. He said that on 21 May 1998 Dr C Liow, his general practitioner at the time, referred him to the Epworth Sleep Centre in Melbourne, where he was diagnosed with sleep apnoea in June 1998. He could not recall his weight in 1998, although he remembers being overweight.
Under cross-examination Mr Stewart agreed that in various medical records since the 1970s his drinking habits are recorded as …an occasional drinker; …social drinker only; …minimal alcohol. He explained that he always told medical practitioners what they wanted to hear, and that he was ashamed of the amount of alcohol he was consuming. He agreed that in February 1990 he took several months off work because of a knee condition, and that his weight increased significantly during this period.
Mrs G Stewart, wife of Mr Stewart, told the Tribunal that when she met Mr Stewart he was quite thin, but that after their marriage in 1973 he began to drink heavily and that this has continued, and his weight increased until he was diagnosed with diabetes in the 1990s, although the weight gain resumed as a consequence of his medication and there have been fluctuations from time to time. She said that since the 1980s she observed Mr Stewart's sleep disturbance such as snoring, sleeping during the day and difficulty with his breathing at night, but she attributed this to his heavy drinking.
The clinical notes of the Goulburn River Group Practice confirm that on 21 May 1998 Dr Liow recorded Mr Stewart's attendance and symptoms of snoring, disturbed sleep and waking every half-hour. Dr Liow also wrote that she intended to refer Mr Stewart for a sleep study.
In a report dated 21 July 2010 Dr B Miller, respiratory & sleep disorder physician at the Epworth Sleep Centre, stated that the referral letter to the Austin Hospital for a diagnostic sleep study described…increasing problems with snoring, poor sleep and daytime sleepiness which has been worse over the last two years. Dr Miller noted that at the initial diagnostic study on 4 June 1998 at the Sleep Disorders Laboratory at Austin Health Mr Stewart's height was recorded as 173cm and his weight was recorded as 89.6 kg, which gives a BMI of 29.9, which places him at the upper limit of the category of overweight (a BMI greater than or equal to 25-29). At a test conducted at the laboratory on 23 June 1998 Mr Stewart's height was recorded as 173cm and his weight was recorded as 89.5 kg, which gives a BMI of 29.9. There was no indication from the test results of 23 June 1998 whether Mr Stewart's height was measured again or whether the height recorded on 4 June 1998 was used.
In material before the Tribunal Dr E Jarman, Mr Stewart's general practitioner, stated that Mr Stewart has been a patient since 1990. He noted that in 1999 Mr Stewart's height was 172cm and his weight was 83.5kg, which gives a BMI of 28.2. Dr Miller reported that she saw Mr Stewart for the first time on 21 March 2007 when he was referred for management of his sleep apnoea. His height was recorded as 177cm and his weight was recorded as 98kg, which gives a BMI of 31.3, but Dr Miller acknowledged that the recorded height was probably incorrect in view of Mr Stewart's previously recorded height measurements. Dr L Van Geyzel, occupational physician, reported that on 15 October 2007 Mr Stewart's height was 172cm and his weight was 90.6kg, which gives a BMI of 30. Dr P Trembath, respiratory scientist, reported that on 7 February 2008 Mr Stewart's height was 172cm and his weight was 89.0kg, which gives a BMI of 30.1. Dr Jarman stated that on 22 December 2008, after steady weight gain, Mr Stewart's height was 172cm and his weight was 93.5kg, which gives a BMI of 31.5, and attributed the weight gain to heavy drinking and diabetes, as well as ageing and the knee condition.
In relation to the first step from Deledio, after considering all the material about Mr Stewart's weight gain and his excessive alcohol consumption and diabetes, the Tribunal determines that the material points to a hypothesis connecting the sleep apnoea suffered by him with the circumstances of the particular service rendered by him. Therefore Mr Stewart satisfies the first step.
In relation to the second step from Deledio the relevant Statement of Principles (SoP) is No. 13 of 2005 concerning sleep apnoea. Factor 5 provides:
…
(b) being obese at the time of the clinical onset of sleep apnoea;
In paragraph 8 of the SoP:
"being obese" means an increase in body weight by way of fat accumulation which results in a Body Mass Index (BMI) of thirty or greater.
The BMI = W/H2 and where:
W is the person's weight in kilograms and
H is the person's height in metres;
In relation to the third step from Deledio it is necessary for the hypothesis to be reasonable. For a hypothesis to be reasonable it must be more than a mere possibility, not fanciful, and consistent with the known facts (East v Repatriation Commission (1987) 16 FCR 517). In Bull v Repatriation Commission (2001) 188 ALR 756 Emmett and Allsop JJ said (when referring to East) at 761:
The court said that an hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous. However, the Full Court did not say that if an hypothesis was not obviously fanciful or not impossible, or not incredible or tenable or not too remote or not too tenuous, it was therefore necessarily reasonable.
Although there was some weight gain in 1990 following a period of inaction due to a knee condition, the material shows that Mr Stewart's accepted conditions of alcohol abuse and diabetes mellitus contributed significantly to his weight gain, so the links in the chain of causation are satisfied (McKenna v Repatriation Commission [1993] FCA 323). The material points to the hypothesis linking his operational service with sleep apnoea. The material and evidence is consistent with the template found in the relevant SoP and therefore the hypothesis is reasonable and Mr Stewart satisfies the third step.
In relation to the fourth step from Deledio the Tribunal must decide whether it is satisfied beyond reasonable doubt that there is no sufficient ground for determining that sleep apnoea was connected with his operational service within the meaning of the Act. The claim will succeed unless one or more of the facts necessary to support the hypothesis is disproved or the truth of a fact inconsistent with the hypothesis is proved.
There is no definition of the term clinical onset in the SoPs or in the Act. In Kaluza v Repatriation Commission [2010] FCA 1244 Jacobson J stated at [92] and [93]:
The meaning of the expression "clinical onset" was considered by the Full Court in Lees. The effect of what their Honours (Heerey, Moore and Kiefel JJ) said at [13] was that there is a clinical onset of a disease, either:
when a person becomes aware of some features or symptoms which enable a doctor to say that the disease was present at that time; or
when a finding is made on investigation which is indicative to a doctor that the disease is present.
The definition therefore emphasises the need for a determination of the clinical onset by medical evidence. It is for the doctor to say when the clinical onset occurred by the presence of features or symptoms. But the clinical onset is not necessarily when the patient first sees a doctor for medical treatment.
In Kaluza v Repatriation Commission [2011] FCAFC 97 the Full Federal Court stated at [66]:
The test for clinical onset in Kaluza is disjunctive. The analogy given for Mr Kaluza was that a person might say 'I noticed [symptoms] in March last year but I didn't see a doctor until July'. If a doctor can say from the onset of those symptoms in March that that indicates the presence of disease at that time, that is the date of clinical onset. The other possibility is the finding which is made on investigation when a person actually attends upon a doctor who examines the person. That is why the Full Court, in adopting the approach of Branson J at first instance in Lees, explained that the purpose of the definition was to identify those symptoms or features which 'if observed by a clinician, would warrant a conclusion ...'.
The Tribunal takes into account Mr Stewart's recollection that in 1998 he had been experiencing sleeping problems for about two years. However after considering the medical evidence the Tribunal concludes that during the consultation with Dr Liow on 21 May 1998 Mr Stewart became aware of the features or symptoms which, upon referral for a sleep study, later enabled a medical diagnosis of sleep apnoea and treatment to commence. The Tribunal finds that clinical onset of sleep apnoea is 21 May 1998.
The Tribunal takes into account that the records of the medical centre where Mr Stewart has been a patient for many years show that on 26 March 1993 Dr J Kalman, cardiology locum, described Mr Stewart as moderately obese, although no BMI calculations were made. Similarly there is no medical record of height or weight measurements in May 1998 which would enable a calculation of Mr Stewart's BMI at the time of clinical onset of sleep apnoea.
The Tribunal accepts the medical evidence from Austin Health that on 4 June 1998, fourteen days after the time of clinical onset, Mr Stewart's BMI was calculated at 29.9, which is less than thirty or greater. However there is no record of the way the height measurement was made or its accuracy, and the Tribunal takes into account that the height was recorded in whole centimetres, while the weight measurement was taken to the nearest tenth of a kilogram, which suggests that the weight measurement may be more reliable than the height measurement. Further, the height measurement of 173cm recorded on 4 June 1998 might simply have been used again on 23 June 1998 instead of taking a new measurement on the basis that there would be no need to take another height measurement. This possibility is all the more plausible because the height measurement of 173cm is inconsistent with the measurement of 172cm taken by various medical practitioners between 1999 and 2008.
After considering all the material the Tribunal concludes that on 21 May 1998 Mr Stewart's height, if measured and recorded accurately, might have been 172cm rather than 173cm recorded on 4 June 1998 and 23 June 1998, which would have resulted in a BMI of 30.3 and would have satisfied factor 5(b) of SoP No. 13 of 2005. Therefore because of the doubt about the accuracy of the measurement of 173cm fourteen days after the time of clinical onset in view of the consistency of subsequent measurements, the Tribunal cannot be satisfied that at the time of clinical onset of sleep apnoea Mr Stewart was not obese. Therefore under s 120(1) of the Act the Tribunal is not satisfied beyond reasonable doubt that Mr Stewart's incapacity did not arise from a war-caused injury, and Mr Stewart satisfies the fourth step and his claim must succeed.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision that the sleep apnoea suffered by Mr Stewart is war-caused with effect from 5 September 2008.
I certify that the preceding 25 (twenty five) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member.
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Associate
Dated 2 February 2012
Dates of hearing 13 July 2011 and 25 January 2012 Counsel for the Applicant Mr C Thompson Solicitors for the Applicant Peter Liefman Solicitors for the Respondent Mr K Rudge, Department of Veterans' Affairs
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