Summers and Repatriation Commission

[2008] AATA 481

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 481

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q200700053

VETERANS' APPEALS DIVISION		)
Re		FRANCIS SUMMERS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe

Date10 June 2008

PlaceBrisbane (heard in Cairns)

Decision The Tribunal affirms the decision under review.

.......................[Sgd].......................

Senior Member

CATCHWORDS

VETERANS' AFFAIRS – Veterans’ Entitlements – pension – rate of pension payable – applicant suffers morbid obesity – whether morbid obesity war-caused – whether excessive caloric intake could not be compensated by physical exercise – applicant had some difficulty in pursuing some forms of exercise – applicant was not rendered incapable of undertaking physical exercise that might compensate for excessive caloric intake – decision affirmed

Veterans’ Entitlements Act 1986 (Cth), s 120

Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82

REASONS FOR DECISION

10 June 2008 Senior Member Bernard J McCabe         

1.      Mr Francis Summer, the applicant, suffers from morbid obesity. He says he developed the condition because he was unable to exercise as a result of his accepted war-caused conditions. The Repatriation Commission, the respondent, has refused to accept his condition is war-caused.

2.      I accept the unchallenged medical evidence that says Mr Summer now suffers from morbid obesity. Dr Simpson made that diagnosis in 1999. The evidence as to the date of onset is less clear. The applicant was not morbidly obese when he was discharged from the services in 1969, and photographs of the applicant taken in 1994 while he was in Indonesia suggest he was overweight but not morbidly obese at that point. Mr Summers says he started to gain weight soon after he returned from Indonesia in that year. The applicant’s statements and the statement of his daughter suggest his weight increased gradually but markedly between 1994 and 1996. The respondent conceded a diagnosis of morbid obesity could properly be made in 1996 or 1997. I am satisfied that concession is consistent with the evidence offered by Mr Summer, and I accept it.

The law and its application

3. Having arrived at a diagnosis of morbid obesity with a date of onset in 1996 or 1997, it is necessary for me to assess the applicant’s claim having regard to s 120 of the Veterans’ Entitlements Act 1986 (“the VEA”). The operation of that section was discussed by the Full Federal Court in the course of its decision in Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 at 97-98. The Court set out the steps the decision-maker should follow in the course of applying the legislation. I address those steps below.

4.      Mr Stoner, for the respondent, conceded the applicant was able to satisfy the first step in the Deledio process because he was able to make out a hypothesis connecting morbid obesity with the circumstances of his service. Mr Summers was a heavy drinker of beer and champagne during the mid-1990s, which may have resulted in a caloric intake that was excessive for his energy needs. His alcohol consumption is an accepted war-caused condition.

5.      The parties agreed the relevant statement of principles (“SoP”) was No 31 of 2003. Identifying the relevant SoP is the second step required by Deledio; the third step requires that I consider whether the veteran’s story fits within the template provided by the SoP. I am obliged to refrain from making findings of fact at this point. I must take the applicant’s story as it has been told and determine whether it is capable of satisfying the requirements of the SoP.

6.      Factor 5(a) of the SoP effectively requires that I identify evidence suggesting an excessive caloric intake that cannot be compensated by physical activity in the year immediately preceding the date of clinical onset of the condition (ie, during 1995-1996). I have already observed the Repatriation Commission has conceded the applicant’s caloric intake was high. But the respondent says the applicant was not prevented from undertaking physical activity that would compensate for his drinking. Mr Stoner argued it was not enough to identify evidence suggesting the applicant was more reluctant or disinclined to exercise because of his conditions. Mr Stoner says there must be something related to the applicant’s service that actually prevented him from exercising.

7.      I agree with Mr Stoner’s interpretation of the relevant provision in the SoP. It uses the expression “cannot be compensated by physical activity”. That contemplates something related to service that actually prevents physical activity. Circumstances or conditions that merely discourage or inhibit physical activity without preventing it are not enough.

8.      Mr Summer gave evidence that he was physically active prior to 1995. He said he was a regular and enthusiastic dancer. He swam every day and snorkelled and played golf each week. He said he started to scale back his activities in 1994-1995. He said he became lethargic and short of breath, which made most of the activities less attractive. He conceded he was still able to swim. As his activity level fell, his weight began to increase.

9.      Mr Sumner-Pott, for the applicant, said Mr Summer’s high calorie intake and poor health made any reduction in physical activity a serious matter. The applicant’s condition was finely balanced, I was told, and once the applicant stopped exercising for any reason his weight was liable to spiral out of control. I accept that is so, but I do not think that resolves the issue in the applicant’s favour. The evidence does not establish any of the applicant’s conditions actually prevented him from exercising. At its highest, the evidence suggests he had some difficulty continuing some of his chosen pursuits. He was not rendered incapable of undertaking physical activity that might compensate for the excessive caloric intake.

10.     The applicant was subsequently found to have developed a goitre. The goitre is accepted as being war-caused. If the goitre was present during the period before the date of onset of the morbid obesity condition, that may well have prevented him from undertaking physical activity. But the medical evidence (especially that of Dr Simpson) suggests the goitre did not appear until 1997 at the earliest. The applicant’s morbid obesity condition was already manifest by that point, so he cannot rely on the goitre as proving a link to the circumstances of his service.

Conclusion

11.     The applicant’s story does not fit the template contained in the statement of principles. It follows his claim must fail at the third stage of the Deledio process. The decision under review must therefore be affirmed.

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe

Signed: ................................[Sgd].....................................................
  Michael Buckingham, Associate

Date of Hearing  28 May 2008
Date of Decision  10 June 2008
Counsel for the applicant          Mr M Sumner-Potts
Solicitors for the applicant        Myles Thompson Lawyers
Solicitor for the respondent      Departmental advocate