Sheridan and Repatriation Commission (Veterans’ entitlements)
[2017] AATA 17
•12 January 2017
Sheridan and Repatriation Commission (Veterans’ entitlements) [2017] AATA 17 (12 January 2017)
Division
VETERANS' APPEALS DIVISION
File Number
2015/5479
Re
William Sheridan
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Dr Damien Cremean, Senior Member
Date 12 January 2017 Place Melbourne The Tribunal affirms the decision under review.
[sgd]...................................................................
Dr Damien Cremean, Senior Member
Catchwords
VETERANS’ AFFAIRS — claim for diabetes mellitus (type 2)—accepted condition of lumbar spondylosis—whether such condition caused the Applicant’s obesity—whether diabetes caused by lumbar spondylosis—no connection—decision affirmed
Legislation
Veterans’ Entitlements Act 1986 (Cth) ss 29,120(4),120B(3)
Cases
McKenna v Repatriation Commission (1999) 86 FCR 144
Secondary Materials
Guide to the Assessment of Rates of Veterans’ Pensions
Amendment Statement of Principles concerning diabetes mellitus No 89. of 2014 (Cth)
Statement of Principles concerning diabetes mellitus No 90. of 2011(Cth)
REASONS FOR DECISION
Dr Damien Cremean, Senior Member
12 January 2017
INTRODUCTION
The Applicant, Mr Sheridan, applies under the Veterans Entitlements Act 1986 (Cth) (the Act) to review the Respondent’s decision dated 30 October 2014 (the reviewable decision). The reviewable decision, inter alia, refused the claim Mr Sheridan made on 21 May 2014 for diabetes mellitus (type 2), hip problems and knee problems to be accepted under the Act as attributable to his defence service.
Subsequently, the reviewable decision was affirmed by the Veterans Review Board (VRB) on 21 November 2014 which, following the acceptance of other disabilities, including lumber spondylosis, increased pension from 60% to 80% of the General Rate.
On 20 October 2015 Mr Sheridan applied for review by this Tribunal.
At the hearing held on 8 December 2016, the Applicant was represented by Mr John Horan, independent advocate. The Respondent was represented by Mr Ken Rudge, departmental advocate.
The only witness called at the hearing was the Applicant himself. No medical evidence was called. No witnesses were called by the Respondent. The T- documents were placed into evidence.
Contentions
Mr Sheridan contends that his condition of diabetes mellitus (type 2) is attributable to his defence service and should be accepted under the Act
The Applicant argues his condition is attributable to his service as a result of his limited exercise capability due to his accepted disability of lumbar spondylosis. Lumbar spondylosis was accepted under the Act with effect from 14 September 2009. I note that earlier, Mr Sheridan appears to have considered his diabetes as being attributable to heavy smoking during his defence service even though he gave up smoking in 1984, some 32 years ago.
Mr Sheridan contends that his limited exercise ability, due to lumbar spondylosis, caused an increase in his weight to the extent that he eventually became morbidly obese.
Added to this now is a further accepted condition of osteoarthritis of the right ankle. This was accepted on 6 September 2016, long after the VRB decision, with effect from 25 April 2016.
Despite the Applicant’s ankle now also being an accepted condition, the Respondent contends that the Applicant does not satisfy any Statement of Principle made under the Act and in consequence is not entitled to have his condition accepted.
Pursuant to s 120(4) of the Act, the parties agreed the standard of proof in this case for entitlement and assessment is the balance of probabilities. This means that for the Applicant to succeed I must be satisfied, on the balance of probabilities, that his diabetes is due to his defence service. In this case he argues it is due to his defence service because it is due to his accepted condition of lumbar spondylosis.
Applying s 120B of the Act, the Tribunal is required to assess the reasonableness of Mr Sheridan’s claim in accordance with any Statements of Principles issued by the Repatriation Medical Authority. The Tribunal may only be reasonably satisfied that an injury is defence caused in accordance with s 120(4) of the Act where the material before it raises a connection between the injury, disease or death of the person and some particular service rendered by the person, and there is in force a Statement of Principles (SOP) that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
In this matter, the Applicant relies on Statement of Principles concerning diabetes mellitus No. 90 of 2011 as amended by Instrument No. 89 of 2014 (the SOP).
Relevant background
The Applicant served in the Australian Army (Field Engineers) for a period of just over three years, from 5 January 1972 to 14 February 1975. Mr Sheridan’s defence service, as per s 68(1) of the Act spans from 7 December 1972 to 14 February 1975. At the hearing, Mr Sheridan gave evidence that he was initially influenced by his butcher to join the Army. He further stated that he was also attracted to the lifestyle it offered: he told the Tribunal that in his youth, he used to participate in amateur Under19s football and enjoyed swimming, bike riding, camping, fishing and shooting. He also stated that he had pretty close mates and this is what appealed to him about the Army lifestyle. He was a young country lad. He had wanted to serve overseas in Vietnam. In the end, however, the plan to serve in Vietnam did not eventuate and Mr Sheridan remained in Australia throughout his service.
Mr Sheridan stated that his long term ambition was to make a career out of the Army. He left school at age 15 and enlisted with the Army for six years. However, he left the Army long before the end of that period. Documents record a number of infractions during that period leading up to discharge. He stated in evidence he was unhappy in the Army.
After discharge from the Army, the Applicant worked in various jobs but mainly driving trucks and machinery. It is not correct to say (as the Respondent’s Statement of Facts and Contentions asserts) that he did little work after 15 December 1974. In fact, the Applicant is still working full time, at age 62, in Myrtleford in Victoria on clerical duties.
The focus of the Applicant’s case at the hearing was clearly on his accepted condition of lumbar spondylosis but there was also discussion of his right ankle injury.
Lumbar spondylosis
With regards to his lumbar spondylosis, prior to discharge from the Army, Mr Sheridan began experiencing low back symptoms including pain, but only intermittently. His duties in the Army had involved the construction of landing zones for helicopters and carrying heavy packs and equipment and tools, such as chainsaws. This included when Mr Sheridan was required to be in the bush. Although he was cross-examined by Mr Rudge on the point, I am not concerned to establish whether Mr Sheridan spent nine months out of 12 or some shorter period in the bush.
In the hearing, Mr Sheridan gave further evidence that on 25 February 1972, he injured himself doing back squatting. Prior to this, he was able to perform all physical tasks required of him in service. Mr Sheridan told the Tribunal that following the injury, he was required to undertake constant physiotherapy, as well as an exercise regimen and was placed on light duties. He was also sent for a sight test.
Further, Mr Sheridan described himself as having a medical discharge threat hanging over [his] head if he didn’t perform and meet [the] standard. He told the Tribunal that this pushed him along and caused him to do more than usual, pushing himself to give 120% instead of 100%.
Following his discharge from the Army, Mr Sheridan noticed that his symptoms gradually got worse in the 1980’s, especially when driving. They have continued to worsen since then.
In his report dated 16 October 2014 Mr Ronald Haig, consultant orthopaedic surgeon, stated that Mr Sheridan complains that at the end of the day, though not every day... he is restricted in what he can do, referring to lifting, because of pain. He writes also that Mr Sheridan described experiencing difficulty in putting boots on because of pain and stiffness in the low back. He also described this pain and stiffness especially when getting into or out of a truck. In Mr Haig’s view, the Applicant has lumbar spondylosis affecting principally the lumbo-sacral level.
In his x-ray report of Mr Sheridan’s lumbar spine dated 1 October 2014 Dr Irosha De Silva, radiologist concluded that Mr Sheridan suffers from Lumbar Spondylosis maximally at L5/S1 level with features of Baastrup’s disease.
I have already noted that lumbar spondylosis is an accepted condition. In my view, this was rightly accepted in light of the evidence of Mr Haig and Dr De Silva.
The date of clinical onset of the Applicant’s lumber spondylosis is 14 September 2009. This is the date recorded by Dr Verhoef, the Applicant’s local medical officer, as the date when the symptoms were first reported.
CONSIDERATION
Application of criteria in Statement of Principles
The question for me to decide is whether the Applicant satisfies the criteria set out in the SOP. As the Applicant’s service is defence service, I must apply the SOP as set out in s 120B(3) of the Act. I can therefore only be reasonably satisfied that an injury suffered by the Applicant is defence-caused if the material before me raises a connection between the injury and some particular service rendered by the Applicant, and that there is a Statement of Principles determined that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
As noted above and identified by the Applicant, the relevant SOP in this case is Statement of Principles concerning diabetes mellitus No. 90 of 2011 as amended by Instrument No. 89 of 2014.
The SOP in paragraph 3(b) defines diabetes mellitus exhaustively as a metabolic disorder characterised by hyperglycaemia.
Paragraph 6 the SOP sets out the factor or factors that must exist before it can be said that, on the balance of probabilities, a case of diabetes mellitus is connected with the circumstances of a person’s service. It states:
(a)………..
(b) for type 2 diabetes mellitus only,
(i) being overweight for a period of at least five years before the clinical onset of diabetes mellitus; or
(ii) an inability to undertake any physical activity greater than three METs for at least the ten years before the clinical onset of diabetes mellitus;
……..
(c)…..
Paragraph 3(b) of the SOP defines the expression being overweight used in paragraph 6(b) as meaning:
an increase in body weight by way of fat accumulation which results in at least one of the following:
(i) a Body Mass Index (BMI) of 25 or greater ;or
(ii) a waist circumference of greater than 80 centimetres in women or greater than 94 centimetres in men;
The BMI = W/H² and where:
W is the person’s weight in kilograms and
H is the person’s height in metres;
The Applicant relies upon the factors in paragraphs 6(b)(i) (and also 6(b)(ii)) of the SOP.
Mr Sheridan argues (as it was expressed by the Respondent) that he falls within paragraph 6(b) of the SOP. He argues he became overweight because he could not exercise as a result of his lumbar spondylosis and/or right ankle fracture (occurring on 28 February 1972), osteoarthritis of the right ankle and bony spur at the site of the ankle fracture.
Mr Horan contended that Mr Sheridan’s condition of Diabetes Mellitus is attributable to his defence service as a result of his limited exercise capability because of his accepted condition of lumbar spondylosis. Mr Horan submitted that this limited exercise ability caused an increase in weight to the extent that he eventually became morbidly obese.
I find that the date of clinical onset of the Applicant’s diabetes is 25 August 2003. This is based on the assessment by Dr Verhoef dated 11 June 2014 contained in the T- documents. There is no doubt that before this date the Applicant had been overweight for many years although he had changed his eating habits by then.
History of Mr Sheridan’s weight
In his assessments, Dr Verhoef recorded the Applicant’s weight on various dates over a 20 year period (from 4 November 1994 to 13 June 2014). On all occasions his BMI was greater than 25, with the highest reading being a score of 40 on 11 January 1995 and the lowest being a score of 33 on 10 September 2003 and again on 21 April 2004.
At the same time though, the table or chart provided by Dr Verhoef indicates significant weight reduction during that same period. On 11 January 1995 the Applicant was 128 kilograms. This reduced to 107 kilograms on 10 September 2003. As at 13 June 2014 his weight was still only 110.5 kilograms. In his oral evidence, Mr Sheridan stated that at that time, he was in good control of his weight and that he was able to effect the change in his weight by dieting. It must be understood that the Applicant is a large framed man with a height of 181.5 centimetres. At the hearing, Mr Sheridan gave evidence that upon enlistment with the Army he was 6 feet tall and weighed 11 or 12 stone (69 or 76 kg).
Between 1974 and 1994 Mr Sheridan stated that he experienced a gradual increase in weight. He also gave up smoking during this period and that may explain some weight gain. He stated in evidence that he may have been smoking as many as 200 cigarettes per day at one point. Mr Sheridan also indicated that during this period he was as well prone to overeating. However, in 1983 or 1984 he stopped drinking alcohol, which coincided with the birth of his daughter.
Mr Sheridan further stated in evidence that from early on he had been a pretty good eater. Years after his discharge from the Army, however, he became diet conscious, with Mr Sheridan indicating to the Tribunal that he believed that diet is the most important thing. This attitude continues to the present day. In his evidence, Mr Sheridan stated that he sometimes has a binge but otherwise only has to think of something to put weight on. He is careful and aware of what he eats and how much he eats and has been this way for a long time. In addition to this, he continues to avoid alcohol, preferring to drink water and green tea.
I found Mr Sheridan to be a truthful witness not prone to overstatement or exaggeration. However, it is one thing to accept that he has had an obesity problem over the years. It is quite another to say that he is within the terms of the SOP.
Causal relationship between diabetes mellitus and lumbar spondylosis
In my view, Mr Sheridan is not within the terms of the SOP, specifically with regards to paragraph 6(b)(i). I agree with the Respondent that his contention that he was overweight because of lumbar spondylosis is not sustainable. I am, however, satisfied at the same time that for many years, Mr Sheridan has been prevented by his lumbar spondylosis from participating in various activities such as playing golf, playing football with his grandchildren or even picking his grandchildren up and holding them.
But the reason for my view that he is not within the SOP is this: I am unable to see any causal connection between the Applicant’s diabetes mellitus and his lumbar spondylosis, such that the latter caused or contributed to the former. Clearly, in my view, it is a causal connection which must exist. Not merely any connection at all will suffice. The connection must be causal: that is, the lumbar spondylosis must have caused the diabetes. The link should be clear (McKenna v Repatriation Commission (1999) 86 FCR 144).
It cannot be found that the Applicant’s lumbar spondylosis caused his diabetes, basing this on the temporal order of the dates of clinical onset. The date of clinical onset of the Applicant’s lumbar spondylosis is 14 September 2009. But that date is later than the date of clinical onset of his diabetes mellitus, being 25 August 2003. It thus comes after it.
In other words, in this way the Applicant’s diabetes mellitus occurred before his lumbar spondylosis showed up. It was not the other way around. I consider this determinative.
It would need to be the other way around, with the date of lumbar spondylosis occurring before the diabetes mellitus, if the Applicant’s contention were to be sustained. But that contention cannot be sustained. The lumbar spondylosis shows up after the diabetes.
There is no other evidence in the case by which I might make a finding that Mr Sheridan’s diabetes mellitus occurred after his lumbar spondylosis. There is an expression of opinion by Dr Sedal that 1995 is a likely date for the onset of lumbar spondylosis, a date 14 years before that recorded by Dr Verhoef. However, I am unable to see the basis Dr Sedal had for selecting this date and it appears to be entirely speculative.
Nothing else of a factual or medical nature connects the Applicant’s lumbar spondylosis with his diabetes mellitus in a way by which it may be said that the former caused the latter.
The fact is that the Applicant was overweight for a long period of time before the clinical onset of his diabetes mellitus. But nothing shows he was overweight because of his lumbar spondylosis or for that matter because of his right ankle injury. It is especially significant that there is no medical evidence in the case to support such a contention.
In reality, in the absence of any such evidence, the Applicant could have been overweight for any number of reasons. I have noted that Mr Sheridan stated in evidence that from early on he was a good eater. This is not common for someone to observe about themselves unless I suggest it must be quite noticeable. But Mr Sheridan made his food choices and out of the food choices he made he may have to blame himself for his obesity, short of any genetic explanation. It rendered him unfit for many activities, but this had nothing at all to do with his condition of lumbar spondylosis. I further consider that it probably was singularly the decisive factor in him suffering diabetes.
In all the circumstances, I consider for these reasons that the Applicant’s case fails under paragraph 6(b)(i) of the SOP. Even if he was overweight for five years before the clinical onset of diabetes mellitus, I cannot be satisfied that this was due to lumbar spondylosis. Any number of considerations may have led to him being overweight. For example, Mr Sheridan’s choices in relation to what he eats and how much he eats, or his choice of occupation.
Therefore, I am not satisfied that on the balance of probabilities a case exists for finding Mr Sheridan’s obesity is due to his lumber spondylosis and is therefore the cause of his diabetes mellitus. The connection is too tenuous, is against the evidence in the case, and is not supported by any medical opinion tendered on his behalf.
Equally, I am not satisfied that the Applicant, on the balance of probabilities, falls within paragraph 6(b)(ii) of the SOP. I was not well addressed on this point and was left to make several guesses. But I make the most of the information I have available to me.
Despite listening carefully to the evidence of the Applicant, I am not satisfied that for at least 10 years before the date of clinical onset of diabetes mellitus Mr Sheridan was unable to undertake any physical activity of more than three METs.
A MET is defined exhaustively in the SOP as a unit of measurement of the level of physical exertion. 1 MET= 3.5 ml of oxygen /kg of body weight per minute or, 1.0 kcal/kg of body weight per hour, or resting metabolic rate. A Guide to the appropriate MET figure is set out in the Guide to the Assessment of Rates of Veterans’ Pensions (GARP) and I use this to assist.
I accept that over many years, the Applicant has found it increasingly difficult to do various things. But I cannot accept that for at least 10 years before 25 August 2003 (the date of clinical onset of his diabetes mellitus), he was unable to undertake any physical activity more than 3 METs (that is, after 25 August 1993 but before 25 August 2003).
Applying the GARP, I am satisfied that during the period in question the Applicant was probably well within either 5-6 METs or 4-5 METs which is well beyond 3 METs.
I am satisfied that for that period in question the Applicant was a keen swimmer (he stated in evidence that he still swims at the Wangaratta pool each week). I am satisfied also that he was a keen cyclist, going on a bike ride up to once a month. And I am satisfied he was quite mobile all round and used a mower to cut the grass on his property and do other things as necessary around the house with no difficulty being reported to me during that period, although he may have considerable difficulties now.
I can accept that his walking pace has slowed down over the years but I am unable to find that during the period in question he was not walking at average pace or better.
In his evidence, Mr Sheridan gave evidence that it takes him approximately 10 to 15 minutes to walk 100 metres. I can accept that it currently takes the Applicant this amount of time to walk that distance. However, I have no evidence before me that, at the time between approximately 23 and 13 years ago, his diabetes mellitus hampered or hindered him in such a way that the pace of his walking then was the same as it is today. I am of course speaking of a time when he was aged between 39 and 52. He was then much fitter than now I would think and presumably much stronger, even though now he is still a large relatively healthy man, maintaining a relatively active lifestyle.
In truth, as Mr Sheridan stated in cross-examination, he has tended over time to do less physical activity due to a lack of interest or motivation. Maybe this is due to the passing years. But he clearly stated it was just motivation.
In all the circumstances, I am not satisfied on the balance of probabilities that Mr Sheridan falls within paragraph 6(b)(ii) of the SOP either.
For the above reasons, I am not satisfied that the relevant SOP upholds the contention that Mr Sheridan’s diabetes mellitus (type 2) is, on the balance of probabilities, connected with his defence service. I therefore cannot find that it is defence caused within the meaning of s 120(4) of the Act.
CONCLUSION
I am satisfied, for the reasons I have given, that the reviewable decision must be affirmed.
63. I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean, Senior Member
[sgd]....................................................................
Associate
Dated 12 January 2016
Date of hearing 8 December 2016 Advocate for Applicant Mr John Horan Advocate for Respondent Mr Ken Rudge
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Statutory Construction
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Causation
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Natural Justice
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Procedural Fairness
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Standing
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