Rowe and Repatriation Commission
[2000] AATA 471
•13 June 2000
DECISION AND REASONS FOR DECISION [2000] AATA 471
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q98/1024
VETERANS' APPEALS DIVISION )
Re WAYNE WALTER ROWE
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President DP Breen, Presidential Member Brigadier IRW Brumfield, Member Dr KP Kennedy, Member
Date13 June 2000
PlaceBrisbane
Decision The Tribunal varies the decision under review by deciding that the conditions of hypertension and inflammatory bowel disease are defence-caused with effect from 27 February 1997. The decision under review is otherwise affirmed. The Tribunal remits the matter to the respondent Commission for assessment of pension.
(Sgd) DP BREEN
PRESIDENTIAL MEMBER
CATCHWORDS
VETERANS' AFFAIRS – war-caused disease – hypertension – inflammatory bowel disease – adjustment disorder – psychosocial stressors.
Veterans' Entitlements Act 1986 s 13
Repatriation Commission v Keeley (unreported FCA 532, 28 April 2000)
REASONS FOR DECISION
13 June 2000 Deputy President DP Breen, Presidential Member Brigadier IRW Brumfield, Member Dr KP Kennedy, Member
This is a review of a decision of a delegate of the Repatriation Commission dated 26 September 1997 which was affirmed by the Veterans' Review Board on 19 June 1998. The applicant appeals the decision, insofar as it rejects the conditions of hypertension, inflammatory bowel disease and adjustment disorder as being defence-caused.
This case was heard before a Tribunal constituted by myself as Presiding Member and Brigadier IRW Brumfield and Dr KP Kennedy, Members on 6 April 2000 in Brisbane. The applicant, Wayne Walter Rowe, was represented by Mr P Sapsford of Counsel instructed by K.C. Gladstone, Solicitor and the respondent Commission was represented by Mr R Morison, Departmental Advocate.
The applicant gave oral evidence at the hearing and the following documents were also taken into evidence.
Exhibit 1 "T" Documents
Exhibit 2 Statement of Wayne Walter Rowe dated 13 October 1999
Mr Rowe joined the RAAF in April 1969 and was discharged in 1989. His eligible service is from 7 December 1972 to 3 May 1989. He claims that his hypertension is due to obesity which was due to his sedentary lifestyle in the Air Force and particularly his service in St Louis, Missouri, from 1985 to 1989. Mr Rowe also claims that his inflammatory bowel disease was caused by excessive tobacco consumption during his defence service. Finally, he asserts that he suffers from an adjustment disorder which was caused by stress and anxiety which arose during his service in Missouri and subsequent eligible service.
The applicable legislation is Section 13 of the Veterans' Entitlements Act 1986. It is in the following terms:
"13(1) Where:
(a) the death of a veteran was war-caused; or(b)a veteran has become incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c)in the case of the death of the veteran – pensions by way of compensation to the dependants of the veteran; or
(d)in the case of the incapacity of the veteran – pension by way of compensation to the veteran;
in accordance with this Act."
For a condition to be accepted as defence-caused, it must satisfy the applicable Statement of Principles. In line with the Full Federal Court decision in Repatriation Commission v Keeley (unreported FCA 532, 28 April 2000), the Statement of Principle in force at the time of the initial decision is the one to be applied. However, in this present case it makes little difference to the outcome which Statement of Principle is applied.
Considering, firstly, Mr Rowe's claim for hypertension, the applicable Statement of Principle is Instrument No 84 of 1995. This requires that the applicant show, on the balance of probabilities, that they were suffering from persistent obesity before and continuing at least until the accurate determination of hypertension. A person is considered to be clinically obese if they have a Body Mass Index (BMI) of 30 or more.
At the time of enlistment, Mr Rowe's BMI was 21.46. This steadily rose during his service. His BMI was 29.19 in 1987 when hypertension was diagnosed and was 31.87 upon his discharge in 1989. It was Mr Rowe's evidence that, while he had been required to participate in monthly parades and regular sporting afternoons when stationed at Amberley and Butterworth, when he was re-assigned to Melbourne, no such activities occurred. Whilst in Melbourne he had to travel long distances to get to work and there were no sporting or gym facilities at the base so as to preclude him from taking exercise during the week. His weight began to increase during this time. The applicant was then transferred to Missouri for just over three years and during that time he put on 12 kilograms. The applicant claims that this was due to the limited exercise he was able to take due to his work schedule and to the higher fat content in the food in Missouri.
It is the Tribunal's finding that, on the balance of probabilities, this lack of exercise and the alteration to Mr Rowe's diet in Missouri did impact upon his weight and led to his obesity. Although not clinically obese until 1988, this legislation is beneficial legislation and Statements of Principle are not to be read strictly. Given that Mr Rowe was hovering around a BMI of 30 for two years before he was diagnosed with hypertension, the Tribunal is reasonably satisfied that Mr Rowe complies with the Statement of Principle and that his hypertension is defence-caused.
Considering, secondly, the applicant's claim for inflammatory bowel disease, the applicable Statement of Principle is Instrument No 145 of 1996. This requires that for the inflammatory bowel disease to be connected with the circumstances of service, the applicant must have smoked at least one pack year of cigarettes or other tobacco products before the clinical onset of Crohn's Disease.
Mr Rowe was diagnosed with Crohn's Disease in 1986. A pack year is defined as 7,300 cigarettes a year, or 20 cigarettes a day for a year. It was Mr Rowe's evidence that he took up smoking when he joined the RAAF and was smoking 5-10 cigarettes a day. During his eligible service this increased to around 20 cigarettes a day. By 1985 the applicant was smoking approximately 40 cigarettes a day as well as smoking cigars and a pipe on a regular basis. It was his evidence that this increase in smoking was attributable to the stress associated with his work. Mr Rowe was involved in designing computer programmes for the RAAF, a task which he found to be far beyond his capability.
It is the finding of the Tribunal that the stress suffered by Mr Rowe led to an increase in his smoking habit and that the applicant easily satisfied the requirement of smoking one pack year before 1986. As such, the applicant's inflammatory bowel disease is determined to be defence-caused.
Finally, considering the applicant's claim for adjustment disorder, the applicable Statement of Principle is Instrument No. 58 of 1996. This requires that the applicant experience an identifiable psychosocial stressor within three months immediately before the clinical onset of the adjustment disorder. The Statement of Principle defines psychosocial stressors as:
"an injury, disease or occurrence that evokes in an individual, feelings of substantial anxiety or stress (for example being shot at, being involved in a motor vehicle accident, experiencing failure or loss such as divorce, or receiving a diagnosis of a disabling medical condition such as a malignancy or chronic cardio-respiratory disorder)."
An adjustment disorder is medically restricted to occurring within three months of the stressor and ceasing usually within six months of the stressor ceasing, unless the stressor is a chronic stressor. Dr Lillian Cameron diagnosed the applicant in August 1997 as having an adjustment disorder. Her report states:
"From a psychological view, his diagnosis is DSM-IV: Adjustment Disorder with depressed mood and anxiety especially during the last ten months, which he says began while he was still in the Air Force in America on a three year visit between 1985 and 1988. His symptoms do not meet fully the criteria of Generalised Anxiety Disorder and he has no specific trauma which triggered his symptoms."
Despite Dr Cameron's observation that there is no specific trauma which triggered this disorder in Mr Rowe's case, the applicant points to a number of conflicts he had with superiors whilst in Missouri and the stress involved with his work as being the cause of his anxiety disorder. While it is not likely that such work conflicts would produce the requisite level of anxiety to qualify as a stressor under the Statement of Principle, these stressors had ceased upon discharge in 1989. They do not constitute chronic stressors and any such adjustment disorder related to those events would have resolved by 1990. As such, it is the Tribunal's finding that, on the balance of probabilities, given the medical evidence available, the applicant's adjustment disorder is not defence-caused.
Therefore, the Tribunal varies the decision under review by deciding that the conditions of hypertension and inflammatory bowel disease are defence-caused with effect from 27 February 1997. The decision under review is affirmed in its rejection of adjustment disorder. The Tribunal remits the matter to the respondent Commission for assessment of pension.
I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member, Brigadier IRW Brumfield and Dr KP Kennedy, Members
Signed: Emma Oettinger
AssociateDate/s of Hearing 6.4.00
Date of Decision 13.6.00
Counsel for the Applicant Mr P Sapsford
Solicitor for the Applicant K.C. Gladstone, Solicitor
Solicitor for the Respondent Mr R Morison, Departmental Advocate
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