Stafford and Repatriation Commission [2002] AATA 104 (20 February 2002)

Last Updated: 20 February 2002

DECISION AND REASONS FOR DECISION [2002] AATA 104

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T1999/99

VETERANS' APPEALS DIVISION )

Re TERRENCE OWEN STAFFORD

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms A F Cunningham (Part-time Member)

Date 20 February 2002

Place Hobart

Decision The Tribunal affirms the decision under review in so far as it relates to hypertension, diabetes mellitis, narcolepsy, conjunctivitis of both eyes, sleep apnoea and obesity and sets aside the decision under review in so far as it relates to lumbar spondylosis and in substitution therefor IT IS DECIDED: 1. that lumbar spondylosis is war-caused; and 2. that the application be remitted to the respondent for calculation of pension entitlement in accordance with this decision.

[Sgd A F Cunningham]

Part-Time Member

CATCHWORDS

Veterans' Entitlements - lumbar spondylosis - obesity - gaps in period of operational service - whether war-caused - decision in part set aside.

Veterans' Entitlements Act 1986 - ss.5B(2),5D(1), 6C(1),6C(3)

Statement of Principles Instrument No. 165 of 1996

Cook and Repatriation Commission (1999) AATA 526

Repatriation v Tuite (1993) 29 ALD 609

REASONS FOR DECISION

20 February 2002 Ms A F Cunningham (Part-time Member)

1. The applicant has sought the review of a decision of the Repatriation Commission dated 4 March 1997 which refused his claim for lumbar spondylosis, hypertension, diabetes mellitus, narcolepsy, conjunctivitis of both eyes, sleep apnoea and obesity. The decision was subsequently affirmed by the Veterans' Review Board on 7 April 1998.

2. The applicant was represented Mr R M Webster and gave oral evidence at the hearing. The applicant also called his wife, Mrs Margaret Stafford and his medical practitioner, Dr Gartland to give evidence in support of his claim. No evidence was led in relation to the applicant's claimed conditions of narcolepsy and conjunctivitis of both eyes. The respondent was represented by Mr M Castle who called no evidence in response to the claim.

3. The T documents were submitted pursuant to the provisions of s.37 of the Administrative Appeals Tribunal Act 1975. The T documents included, service records and numerous medical reports relating to the applicant's claimed conditions. No further medical reports were tendered at the hearing before the Tribunal.

4. The applicant's evidence was that he served in the Royal Australian Navy from 1 March 1954 to 21 January 1967. The Tribunal was referred to T4 (pages 59 to 60) a letter from the Department of Defence which detailed the applicant's periods of service. The parties conceded that the reference in paragraph 4 to the applicant's service on HMAS Derwent should read "15.03.66 - 30.04.66", rather than "15.03.56 - 30.04.66".

Lumbar Spondylosis

5. It was the applicant's contention that a fall he suffered on a landing barge whilst loading goods in 1966 aggravated a previous condition that he suffered in a car accident leading to his current condition of lumbar spondylosis.

6. The applicant's evidence was that whilst he was serving on HMAS Derwent, then operating in Borneo, he was responsible for reprovisioning the stores. The applicant described how he went ashore to purchase fresh stores which were then packed onto an old landing barge. He described how there was quite a sea running at the time, that he was on the gunnel passing crates of food from the landing barge which weighed between 60 and 100 lbs each when he slipped, falling backwards onto his back. The applicant stated that as a result he was winded and experienced extreme pain. He was able to get himself onto the deck of the ship where he remained for awhile and then went to the sick bay where he was given pain killers. He recalled how the pain persisted for several hours, but was eased with pain killers. The applicant said that for a fortnight he continued to live and sleep in his office as he was unable to travel up and down the stairs to his normal sleeping quarters because of back pain. During this period he assumed a supervisory role in relation to the ship's stores and did not undertake lifting of any sort. He said that whilst his pain became bearable after about a week, he still felt the pain. He commented that even now he does not know "what it is like to be out of pain".

7. The applicant informed the Tribunal that in 1957 he was thrown from his car during a motor vehicle accident and landed on his back. He was subsequently taken to the Bacchus Marsh Hospital where he spent 4 days and then to the Flinders Hospital for a week. His doctor said that he had suffered a badly bruised back. He made a full recovery which enabled him to resume normal duties and had no problems with his back until the fall he suffered whilst serving on HMAS Derwent in 1966.

8. The applicant's evidence was that the fall during his service on HMAS Derwent occurred whilst the ship was in port at Tawau. The applicant described how each day the ship would travel up river into a war zone where it was "bombarded".

9. Whilst there was no dispute at the hearing that the applicant suffered the fall whilst serving on HMAS Derwent and presumably during the period 15 March 1966 to 30 April 1966 being the only period encompassing any significant period of time, it was submitted by Mr Castle, that as the fall occurred whilst the ship was in port, "this would be one of the intervening periods during which the vessel was not engaged in rendering operational service". It was submitted by Mr Webster that the provisions of the Act do not require a person to be on operational duties in order to have operational service.

10. In reference to operational service post World War II, s6C(1) of the Act provides:

"Subject to this section, a member of the Defence Force who has rendered continuous full-time service in an operational area as:

(a) a member who was allotted for duty in that area; or

(b) a member of a unit of the Defence Force that was allotted for duty in that area;

is taken to have been rendering operational service in the operational area while the member was so rendering continuous full-time service."

11. Section 5B(2) of the Act states that:

"A reference in this Act to a person, or a unit of the Defence Force, that was allotted for duty in an operational area is a reference:

(a) in the case of duty that was carried out in an operational area described in item 1, 2, 3, 4, 5, 6, 7 or 8 of Schedule 2 (in column 1) - to a person, or unit of the Defence Force, that is allotted for duty in the area (whether retrospectively or otherwise) by written instrument issued by the Defence Force for use by the Commission in determining a person's eligibility for entitlements under this Act; or

(b) in the case of duty that was carried out in an operational area described in item 9, 10, 11, 12, 13 or 14 of Schedule 2 (in column 1) - to a person, or unit of the Defence Force, that is allotted for duty in the area (whether retrospectively or otherwise) by written instrument signed by the Vice Chief of the Defence Force for use by the Commission in determining a person's eligibility for entitlements under this Act; or

(c) to a person, or unit of the Defence Force, that is, by written instrument signed by the Minister for Defence, taken to have been allotted for duty in an operational area described in item 4 or 8 in Schedule 2 (in column 1)."

12. The Tribunal agrees with Mr Webster that the above provisions do not require a person to be on operational duties in order to have "operational service". There is no reference in the Act to "intervening periods during which the veteran was not engaged in rendering "operational service" as referred to by Mr. Castle. Essentially a person is deemed to have operational service if they are "allotted for duty" in an operational area for the defined period as set out in the Schedule.

13. The evidence before the Tribunal supports a finding that the applicant at the relevant time was rendering continuous full-time service. There was no evidence to the contrary. The evidence before the Tribunal was that the applicant was travelling daily into a war zone environment where the ship was under fire from the enemy. There can be no justification for concluding that merely because the ship returned to the port of Tawau to reload, that this broke the period of operational service.

14. Sub-section 6C(3) defines when a period of operational service in an operational area is taken to have commenced and ended.

"For the purposes of subsection (1), a member of the Defence Force is, subject to subsection (4), taken to have rendered continuous full-time service in an operational area during the period commencing on:

(a) if the member was in Australia on the day (relevant day) from which the member, or the unit of the member, was allotted for duty in that area - on the day on which the member left the last port of call in Australia for that service; or

(b) if the member was outside Australia on the relevant day - on that day:

and ending at the end of:

(c) if the member, or the unit of the member, ceased to be allotted for duty - the day from which the member, or the unit, ceased to be allotted for duty; or

(d) if the member, or the unit of the member, was assigned for duty from the operational area to another area outside Australia (not being an operational area) - the day from which the member, or the unit, was assigned to that other area, or the day on which the member, or the unit, arrived at that other area, whichever is the later; or

(e) in any other case - the day on which the member arrived at the first port of call in Australia on returning from operational service."

15. The Tribunal is satisfied on the basis of the evidence before it that the applicant was rendering operational service within the meaning of the Act when he sustained the fall in question.

16. The Tribunal having concluded that the fall occurred during a period of operational service, a finding as to whether the applicant's claimed condition of lumbar spondylosis is related to his service is to be determined pursuant to the provisions of sub-sections 120(1) and (3) of the Act. In other words the Tribunal is required to find that the applicant 's claimed condition is war-caused unless it can be satisfied beyond reasonable doubt that there is no sufficient ground for so finding. Section 120A provides that as the applicant's claim was lodged after 1 June 1994, the Tribunal must assess the reasonableness of a hypothesis in accordance with any relevant Statement of Principles. In the present case the Tribunal was referred to Statement of Principles Instrument No. 165 of 1996.

17. The applicant's medical practitioner, Dr Gartland, gave evidence that the applicant suffers from the condition lumbar spondylosis and that the fall as described by the applicant was a possible factor leading to this condition.

18. The Tribunal was referred to the factor listed in paragraph 5(g) which states that a reasonable hypothesis has been raised connecting lumbar spondylosis with the circumstances of a person's relevant service where a trauma has been suffered to the lumbar spine before the clinical onset of lumbar spondylosis. Paragraph 7 in the Statement of Principles states:

"trauma to the spine" means an injury to the lumbar spine caused by the force of an extraneous physical or mechanical agent that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of that part of the spine, and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs, unless medical intervention has occurred. Where medical intervention for the injury has occurred (for example splinting, corticosteroid injection, surgery), and there is evidence relating to the extent of injury and treatment, such evidence may be considered."

19. On the basis of the evidence before it, the Tribunal is satisfied that the applicant suffered an injury to the spine which caused acute symptoms of pain and tenderness within 24 hours of the injury being sustained, and consequential alteration to mobility and/or range of movement of the lumbar spine which necessitated the applicant being restricted in his duties and being unable to lift for a period of at least 7 days and possibly 14 days. The Tribunal is satisfied that the injury suffered by the applicant during his period of operational service led to his condition of lumbar spondylosis which is consistent with the evidence of Dr Gartland.

Obesity, Hypertension, Diabetes Mellitis, Sleep Apnoea

20. The applicant contends that his claimed condition of obesity is causative or contributes to his conditions of hypertension, diabetes mellitis and sleep apnoea. It was submitted on behalf of the applicant that his condition of obesity was caused by the applicant's ready access to food and the consequential increase in his calorie intake whilst serving on HMAS Anzac during 1955 and 1956.

21. There was argument as to whether the claimed condition of obesity is a disease within the meaning s5D(1) of the Act which provides:

"In this Act, unless the contrary intention appears:

...

disease means:

(a) any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)."

22. In the decision of the Tribunal in Cook and Repatriation Commission (1999) AATA 526 the applicant was not prepared to concede that obesity is a disease within the meaning of the Act. The Tribunal nevertheless concluded in that case that it was, despite the conclusion of the Repatriation Medical Authority (RMA) which was the view that "obesity" is not a "disease" or "injury" as defined in subsection 5D(1) of the Act. The Tribunal was influenced by the finding in a report published by the World Health Organisation (WHO) which recorded that :

"... obesity is a chronic disease prevalent in both developed and developing countries and affecting children as well as adults. Indeed it is now so common that it is replacing the more traditional public health concerns, including under nutrition and infectious disease, as one of the most significant contributors to ill health ..." re (WHO report page 1)."

23. This Tribunal agrees with the finding of the Tribunal in Cook's case where it said at paragraph 59:

"Whilst the RMA was of the opinion that obesity does not fit within the definition of disease at section 5D of the Act, we have no doubt that it does."

24. The applicant's evidence was that his weight on entry into the services was 13½ stone. He said that he was a fairly fit individual, his previous line of employment having involved fairly hard physical work and that he had also engaged in various sports. He claimed that he started to gain weight whilst in the Far East where he was involved in the provisioning of supplies and had access to different types of food. He said that his only exercise consisted of going up and down ladders and that his weight increased to the point where he weighed 15 stone following his service on HMAS Anzac. He said that he weighed 17 stone at the end of his period of service with the Navy.

25. Whilst the applicant was offered counselling by specialist doctors in relation to his weight gain and was put on various diets, nothing seemed to make any difference he claimed, and he gave up trying to lose weight. He said that there was no supervision as to what he could eat and because of his ready access to good foods, which included caviar and good cheeses, he availed himself of these supplies and felt that he was virtually "eating all day".

26. The applicant's wife confirmed the applicant's dramatic weight gain, describing him as a big man, but not overweight when she first met him in 1964. She described how the applicant's weight remained fairly constant for a couple of years until it started to increase. She was aware that the applicant was admitted to hospital where he was placed on a low calorie diet without success.

27. As there is no relevant Statement of Principles for the condition of "obesity", the Tribunal must be satisfied that the applicant's claimed condition "arose out of, or was contributable to" eligible service (s8(1)(b)). In other words there must be some causal connection between the claimed incapacity from the disease and the applicant's service.

28. Mr Castle on behalf of the respondent contended that the applicant's increase in weight "was not a result of consuming standard naval rations but rather by availing himself of substantial additional food stuffs that was not his entitlement but which he procured as a result of his appointment".

29. Both parties agreed that the relevant periods of the applicant's operational service on HMAS Anzac were as submitted by the respondent in Attachment B to his submission. The periods comprised 14.12.1955 to 22.12.1955; 18.2.1956 to 22.2.1956; 28.2.1956 to 1.3.1956; 5.3.1956 to 10.3.1956; 15.3.1956 to 19.3.1956; 6.7.1956 to 11.7.1956; 16.7.1956 to 20.7.1956; 25.7.1956 to 30.7.1956; 7.8.1956 to 24.8.1956; 26.8.1956 to 30.8.1956; 3.9.1956 to 14.9.1956; 24.9.1956 to 29.9.1956 and 2.10.1956 to 8.10.1956. It is noted that the longest consecutive period was between 7.8.1956 and 24.8.1956, a total period of 17 days. Apart from the period 3.9.1956 to 14.9.1956, a period of 11 days, the other periods were for 8 days and less. The total period of operational service according to the schedule was 79 days.

30. Whilst the Tribunal does not doubt the evidence of the applicant that he availed himself of the food that was readily available to him during his service on HMAS Anzac, as well as being routinely entertained in port with good food and wine, the Tribunal must nevertheless find a connection between the applicant's period of operational service and his claimed condition as the Act requires that the claimed condition must arise of, or be attributable to eligible service. In other words there must be a causal relationship between the condition and service. As stated above, the period of eligible service was some 79 days on HMAS Anzac occurring between 14.12.1955 and 8.10.1956. It is also noted there were two significant gaps between in the service period namely between 22.12.1955 and 18.2.1956, a gap of almost 2 months, and also from 19.3.1956 to 6.7.1956, a gap of over 3 months.

31. The applicant had stated that whilst the Navy supplied him with regular meals, he chose to exceed the food supplied by availing himself of additional food that was readily available to him. The Tribunal does not accept that there was a causal connection between the food supplied to the applicant in the course of his service and his obese condition. It is difficult to accept that the applicant's weight gain arose out of or was attributable to his period of operational service on HMAS Anzac, a total period of 79 days. The other factors relevant to his service are that, when the applicant's condition was realised he was offered assistance and counselling which he chose not to fulfil.

32. As stated by the Full Federal Court in Repatriation Commission v Tuite (1993) 29 ALD 609:

"...if an injury or disease is claimed to have arisen out of or been attributable to a serviceman's camp life, the question will usually be whether life in camp was a contributing cause and not merely the setting in which the event occurred ...".

As the Tribunal found in Tuite's case, the causal connection must be more than merely temporal.

33. In the present case, the Tribunal is unable to find that the applicant's claimed condition of obesity had the required causal connection with the applicant's period of service on HMAS Anzac as outlined above. This is particularly so when account is taken of the significant gaps in that period of operational service.

34. The Tribunal having so found it affirms the decision of the Repatriation Commission refusing the applicant's claim for hypertension, diabetes mellitis and narcolepsy, conjunctivitis of both eyes, sleep apnoea and obesity, but sets aside the decision in so far as it relates to the applicant's claim for lumbar spondylosis and remits the matter for assessment in accordance with this decision.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)

Signed: K L Miller Personal Assistant

Date/s of Hearing 24 October 2001, 8 November 2001

Date of Decision 20 February 2002

Counsel for the Applicant Mr R M Webster

Solicitor for the Applicant R M Webster

Counsel for the Respondent Mr M Castle

Solicitor for the Respondent Department of Veterans' Affairs