Vidler and Repatriation Commission
[2010] AATA 1021
•17 December 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 1021
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/3727
VETERANS' APPEALS DIVISION ) Re PETER WILLIAM VIDLER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal M D Allen, Senior Member
Dr I Alexander, Member
Date17 December 2010
PlaceSydney
Decision The decision under review is VARIED in that the disease of sleep apnoea is defence-caused and the Applicant is entitled to the pension at the Special Rate as and from 29 February 2008.
...................[sgd]...........................
M D Allen, Presiding Member
CATCHWORDS
VETERANS’ ENTITLEMENTS: Claim to have sleep apnoea attributed to Defence Service and for pension at the Special Rate. Held Naval Service and incapacity from defence-caused injuries to ankles materially contributed to obesity which caused sleep apnoea. Decision under review varied. Sleep apnoea defence-caused and pension payable at the Special Rate.
LEGISLATION
Veterans’ Entitlements Act 1986, S68, 69, 70, Ss120(4) and (6), 120B.
CASES
Croxford v Repatriation Commission (2004) 78 ALD 761
Repatriation Commission v Smith (1987) 15 FCR 327
REASONS FOR DECISION
17 December 2010 M D Allen, Senior Member
Dr I Alexander, Member1. By Application made 11 August 2009 the Applicant sought review of a decision by the Veterans’ Review Board (“VRB”) that allowed his claim to have the condition diagnosed as “Depressive Disorder” accepted as attributed to his Defence Service but rejected his claims regarding post traumatic stress disorder (“PTSD”); narcolepsy; sleep apnoea; and diabetes mellitus and determined that he should continue to be paid pension at 100 per cent of the General Rate.
2. In these proceedings the Applicant abandoned his claims in respect of PTSD, narcolepsy and diabetes mellitus.
3. The issue before this Tribunal was whether the Applicant’s sleep apnoea was attributable to his Defence Service. The Respondent conceded that if the Tribunal determined that question in the Applicant’s favour then he was entitled to pension at the Special Rate.
4. For the Applicant, it was contended that his sleep apnoea was caused by his obesity, which in turn had been contributed to in a material degree by his Defence Service.
5. Subsection 120(4) Veterans’ Entitlements Act 1986 (“VEA”) states inter alia that in determining whether an injury or disease is defence caused the Repatriation Commission, and hence this Tribunal, is to decide the matter to its “reasonable satisfaction”. In Repatriation Commission v Smith (1987) 15 FCR 327 the Full Court of the Federal Court pointed out that the term “reasonable satisfaction” equates to the civil standard of proof namely, proof on the balance of probabilities.
6. Subsection 120(6) VEA provides that neither party to this review bears any onus of proof.
7. Subsection 120B(3) VEA reads:
“(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war‑caused or defence‑caused only if:
(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:(i) a Statement of Principles determined under subsection 196B(3) or (12); or
(ii) a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.”
8. Instrument No.14 of 2005 is the Statement of Principle (“SoP”) relating to Sleep Apnoea caused or contributed to by Defence Service. Factor 5(b) reads:
“...being obese at the time of the clinical onset of sleep apnoea”.
9. “Being obese” is defined in that SoP as having a Body Mass Index (“BMI”) of 30 or greater.
10. We were informed from the bar table that the Repatriation Medical Authority (“RMA”) has declined to issue a SoP with regard to obesity, regarding being obese as not constituting a disease. We note however in Instrument No.32 of 2003 which relates to Morbid Obesity a factor is having a caloric intake that:
“(i) is excessive for energy needs; and
(ii) cannot be compensated for by physical activity”
We find that similar causal factors relate to obesity as well.
11. The Applicant based his claim that Defence Service caused or contributed to his obesity upon three factors, namely:
i.Naval Service per se – being an inability to exercise and the type of food served to him in naval messes.
ii.An inability to exercise following injury to his ankles whilst on and post Defence Service;
iii.His depressive illness caused him to eat in excess of requirements and to eat “junk foods”.
12. The Applicant gave evidence that whilst in the Navy he continued to gain weight. Whilst aboard HMAS Melbourne he did not eat breakfast and rarely had an evening meal. Lunch was often pies or a hamburger, and other food was often greasy or covered in batter or crumbed. After service aboard HMAS Melbourne he had a series of sedentary jobs but he continued to eat at his former level.
13. The Applicant was first classified as overweight by Naval Medical Officers in August 1983 when a notation in his medical records show that he was placed on a weight reduction programme.
14. We have no evidence as to what that weight reduction programme entailed. The Applicant’s evidence is that he was placed on what he termed “fortnightly weigh-ins” but his evidence was that no other steps, for example a dietary programme or counselling, were taken by the Navy to achieve weight loss.
15. On 11 April 1984 the Applicant was examined by a Naval Medical Board. That board classified the Applicant as “obese” and stated that his obesity had been aggravated by naval service.
16. A further medical examination on 23 August 1985 describes the Applicant as “a fit, well individual who is not carrying excessive weight”. However on 24 October 1989 a health record states the Applicant’s weight as 107kg which given his height constituted a BMI in excess of 30.
17. On 14 June 1990 the Applicant was noted as being “slightly obese” and on 15 August 1990 a note was made in his medical records that “Aim to lose 10kg”. A discharge medical examination of 13 February 1991 records a height of 184cm and a weight of 112kg which gives a BMI of 33.13, which is in excess of 30 and thus obese.
18. A medical examination on 8 January 1991 noted that the Applicant had played squash until 12 months ago. That examination also noted that the Applicant had put on two stone since he stopped smoking. The examination record ends with the notation “he must lose weight”.
19. Following his discharge from the Navy the Applicant was employed as a maintenance supervisor by the Defence Housing Authority (“DHA”). At the time of his discharge and during the course of his employment with the DHA the Applicant had difficulty walking distances because of his service-caused ankle injuries.
20. Clinical onset of the Applicant’s sleep apnoea can be said to be in the year 2000 when the diagnosis was confirmed by tests carried out at Hornsby Hospital.
21. The Applicant was cross examined regarding his ability to undertake exercise in the period after his discharge from the Navy. He stated that during the 1990s he had four operations on his ankles and had difficulty walking. He was also depressed and lethargic.
22. Describing his attempts to lose weight, the Applicant in his statement said:
“…Though during the seven year I worked for the DHA I had two attempts on losing weight, once with Jenny Craig which lasted for 12 weeks after losing 19 kilos and because I was on the road as a maintenance supervisor I could not maintain the program and had to stop and there put it all back on plus. The second attempt was sure slim which you had to make your own meals which I maintained for a while as I lived on salads but became boring and stopped again gaining even more weight. As well as trying to do something about my weight I had also undertaken four operations on my ankles as I continually had problems walking and driving and this also added to the cause of my putting on weight.
After being retrenched from DHA I worked as maintenance officer for Ashfield Mall and was restricted on what I could do because of my ankle not being able to climb ladders for long periods and later as a security officer during 12 hour shift and living on takeaways and catching public transport which would not allow me enough rest over the 18 month period leading up to 2000. As both jobs had fast food outlets it was hard to resist the temptation to eat”.
23. Prior to enlisting in the Royal Australian Navy (“RAN”), the Applicant had been a competitive swimmer and still does some beach swimming. Cross examined regarding swimming as an exercise the Applicant stated that given the hours he worked he rarely felt like coming home and swimming.
24. We note that at all relevant times, both while in the Navy and in post service employment, the Applicant lived at Blacktown which is in Sydney’s Western Suburbs. The location of Blacktown means that the Applicant would have had considerable travelling time both to and from his places of employment. We accept that a the end of the working day, given that he was suffering pain in his ankles plus his depressive condition it would not be realistic to expect him to attend at a local public swimming pool.
25. The Applicant also implicated his depressive condition in the onset of his obesity, claiming it led him to eat. This suggestion finds some support in the report of Dr Dinnen, Psychiatrist, of 13 October 2010. In that report Dr Dinnen states:
“However, with regard to the question of appetite and weight, it is more common in depression to lose appetite and to lose weight than to gain weight. Nonetheless patients with depressive illness have told me they overeat for ‘comfort’ and this may well have been the case with this patient.”
26. Dr Dinnen’s report is at best equivocal, and given that the Applicant has previously stated that he first became aware of the symptoms of his depressive illness in 1996 and that the onset of his obesity was in 1984, his obesity well predates any depressive state.
27. Questioned by the Tribunal, the Applicant conceded that when he was promoted to the rank of Petty Officer in 1980 his work became mainly sedentary yet he continued to eat the same diet as when he had a more active role.
28. We are satisfied that the Applicant’s depressive disorder played no part in the onset of his obesity. In the period leading up to the diagnosis of his sleep apnoea it is clear that the Applicant continued to be obese because of a calorific intake superfluous to his requirement and his inability to exercise.
29. The Applicant first became obese whilst in the Navy. The cause, as we see it, was multi-factorial namely a combination of poor dietary habits plus fatty foods. That the Applicant was not eating breakfast and at times not eating an evening meal is a situation which is now not considered conducive to weight loss.
30. Later the Applicant made no adjustment to his diet to compensate for a change to sedentary activity.
31. Although the Navy was alert to his obesity it appears that in reality it did little to assist the Applicant to combat it. Although he was placed on a programme of regular weight checks, his evidence was that the Navy did not give him any programme to assist in weight loss.
32. Obesity is not a disease so it cannot be held that the Applicant did not receive appropriate clinical management. Nevertheless we find that the Navy did fail in its duty of care towards the Applicant in that it made no arrangements for him to undergo dietary, lifestyle or physiological management aimed at not only reducing his existing weight but also maintaining a healthy weight in the future. A similar failure to institute an appropriate treatment regime (albeit regarding alcohol) was held to be a causative factor in Croxford v Repatriation Commission (2004) 78 ALD 761.
33. Upon discharge from the RAN, the Applicant carried his obesity into civilian life. He did make some attempt to change his lifestyle but was unsuccessful. We accept his evidence that pain from his ankle injuries together with a lethargy induced in part by his depression compromised his ability to exercise post service.
34. We find that Naval service in the sense that it contributed to the Applicant becoming obese, a fact recognised by a Naval Medical Board in 1984, and in that the Navy did not take appropriate steps to combat the Applicant’s obesity when diagnosed made a material contribution to the Applicant’s obesity at the time of his discharge from Naval service.
35. Following discharge, although the Applicant could and should have modified his caloric intake, he did have an inability to exercise caused by incapacity from his defence-caused ankle injuries and depression.
36. On balance we are reasonably satisfied that the Applicant’s obesity has been materially contributed to by his defence service. Obesity has then caused his sleep apnoea consequently his sleep apnoea is also defence-caused.
37. The decision under review is varied in that the disease of sleep apnoea is defence-caused and the Applicant is entitled to pension at the Special Rate as and from 29 February 2008.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen and Dr I Alexander, Member
Signed: ....................[sgd]..................................
K. Lynch, AssociateDates of Hearing 9 & 10 December 2010
Date of Decision 17 December 2010
Representative for the Applicant Mr Latimore,
Legal Aid Commission
Representative for the Respondent Mr A Crowe,
Dept, Veterans Affairs
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