Stone and Repatriation Commission [2002] AATA 21 (16 January 2002)

Last Updated: 17 January 2002

DECISION AND REASONS FOR DECISION [2002] AATA 21

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1999/1034

VETERANS' APPEALS DIVISION )

Re PHYLLIS STONE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr IR Way, Member

Date 16 January 2002

Place Brisbane

Decision The Tribunal affirms the decision under review.

I R WAY

MEMBER

CATCHWORDS

VETERANS' AFFAIRS - war widow's pension - whether the veteran's death was war-caused - obesity

Veterans' Entitlements Act 1986

Repatriation Commission v Smith (1987) 15 FCR 327

Repatriation Commission v Tuite (1993) 17 AAR 158

Hilton v Repatriation Commission [2001] AATA 20

REASONS FOR DECISION

16 January 2002 Mr IR Way, Member

1. This is an application by Phyllis Stone for review of a decision of the Veterans' Review Board (VRB) dated 24 July 1999 which affirmed a decision of a delegate of the Repatriation Commission that the death of the applicant's husband, the late Jack Stone, was not causally related to his service.

2. At the hearing, the applicant was represented by Mr A Harding of Counsel, instructed by Messrs Gilshenan and Luton, and the respondent by Mr M Smith, Departmental Advocate.

3. The Tribunal had before it the documents lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 ("T" Documents T1 - T6), a medical report prepared by Dr RM Goodwin (Physician) dated 17 June 2001 (Exhibit A1) and a report dated 27 April 2000 prepared by Dr J Kenardy (Psychologist) (Exhibit A2). Oral evidence was given by the applicant, Mrs D Ferney and Dr Goodwin.

4. Under Section 13 of the Veterans' Entitlements Act 1986 (the Act) the Commonwealth is liable to pay a pension by way of compensation to the dependents of a veteran, where the death of the veteran was war-caused. A dependent of a deceased veteran, including a widow (Section 11), may make a claim to a pension under Section 14.

5. Mr Stone served in the Royal Australian Air Force from 12 May 1943 until his discharge on 13 January 1946. All of his service was in Australia and hence Mr Stone rendered eligible war service. However, the veteran's service was not operational service and accordingly Section 120(4) of the Act requires the Commission, in making any determination of a decision on her application, to decide the matter to its reasonable satisfaction applying the civil standard of proof of the balance of probabilities (see Repatriation Commission v Smith (1987) 15 FCR 327 at 335). Section 120B(3) of the Act provides in part:

"(3) In apply 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

(ii) ......

that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service."

6. Where there is a Statement of Principles (SoP) made under subsection 196B(3) of the Act, the Tribunal must first determine whether, to its reasonable satisfaction, the material before it raises a connection between the veteran's death and his service. Secondly, the Tribunal is required to decide whether the applicable SoP upholds the contention that the veteran's death is, on the balance of probabilities, connected with the veteran's service - subsection 120B(3)(b). This last question must also be determined to the reasonable satisfaction of the Tribunal.

7. The relationship to service required by the SoP must be one of the relationships prescribed in Section 196B(14) of the Act:

"(14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:

(a) it resulted from an occurrence that happened while the person was rendering that service; or

(b) it arose out OF, OR WAS ATTRIBUTABLE TO, THAT SERVICE; OR

(c) it resulted from an accident that occurred while the person was travelling, while rendering that service but otherwise than in the course of duty, on a journey:

(i) to a place for the purpose of performing duty; or

(ii) away from a place of duty upon having ceased to perform duty; or

(d) it was contributed to in a material degree by, or was aggravated by, that service; or

(e) in the case of a factor causing, or contributing to, an injury - it resulted from an accident that would not have occurred:

(i) but for the rendering of that service by the person; or

(ii) but for changes in the person's environment consequent upon his or her having rendered that service; or

(f) in the case of a factor causing, or contributing to, a disease - it would not have occurred:

(i) but for the rendering of that service by the person; or

(ii) but for changes in the person's environment consequent upon his or her having rendered that service; or

(g) in the case of a factor causing, or contributing to, the death of a person - it was due to an accident that would not have occurred, or to a disease that would not have been contracted:

(i) but for the rendering of that service by the person; or

(ii) but for changes in the person's environment consequent upon his or her having rendered that service."

8. The Tribunal is also mindful that Section 119 of the Act provides as follows:

"Commission not bound by technicalities

(1) In considering, hearing or determining, and in making a decision in relation to:

(a) a claim or application;

......

the Commission:

(f) is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;

(g) shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and

(h) without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:

(i) the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and

(ii) the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities."

9. The veteran was born on 4 March 1919 and died on 17 April 1998, aged 79, the cause of death being (a) cardiac arrest (b) recurrent ventricular tachycardia (2 days) and (c) ischaemic heart disease (two years).

10. The applicant contends the veteran's death was a result of his obesity and that his obesity was related to his service, in that changes in the veteran's environment, associated with his service induced a lasting change in his eating habits which led to a service-induced weight increase, hypertension and ischaemic heart disease.

11. The parties agreed, and the Tribunal accepts, that the relevant SoPs in this matter are as follows:

(a) Ischaemic Heart Disease: Instrument No 141 of 1996, as amended by Instruments No 78 of 1997 and 38 of 1998.

(b) Hypertension: Instrument No 84 of 1995.

12. The respondent also contends that the Repatriation Medical Authority Statement dated 16 August 1996 about the causes of "being obese" are relevant to the consideration of this matter.

13. The relevant factors from the accepted SoPs are:

(a) Hypertension - factor 1(a) - suffering from persistent obesity before and continuing at least until the accurate determination of hypertension.

(b) Ischaemic Heart Disease - factor 5(a) - the presence of hypertension before the clinical onset of ischaemic heart disease; or - factor 5(c) - being obese for a period of at least two years within the fifteen years immediately before the clinical onset of ischaemic heart disease.

14. Being obese is defined for the purposes of ischaemic heart disease in the relevant SoP as follows:

"'being obese' means having an increase in body weight by way of fat accumulation beyond an arbitrary limit, and due to a cause specified in the Repatriation Medical Authority's Statement about the causes of 'being obese' signed by the Chairman of the Authority on 16 August 1996, attracting ICD code 278.0.

The measurement used to define 'being obese' is the Body Mass Index (BMI).

The BMI = W/H², where:

W is the person's weight in kilograms and

H is the person's height in metres.

'Being obese' is where the BMI is 30 or greater. This definition excludes weight gain not resulting from fat deposition such as gross oedema, peritoneal or pleural effusion, or muscle hypertrophy. 'Being obese' develops when energy intake is in excess of expenditure for a sustained period of time.

For a factor to be included as a cause of 'being obese' it must have resulted in a significant weight gain, of the order of a 20% increase in baseline weight, and in association with a BMI of 30 or greater."

15. The causes of obesity for the purposes of the ischaemic heart disease SoP, as listed in the "Causes of Being Obese" Statement and relevant to consideration of this matter, are:

"(a) exposure to an environment which encourages caloric intake, where this caloric intake is excessive for energy needs and cannot be compensation by adequate physical activity, and which has resulted in a weight gain of at least 20% of the baseline weight."

16. Obesity is defined in Instrument No 84 of 1995 (the Hypertension SoP) as follows:

"'obesity' means having a Body Mass Index (BMI) greater than 30, where:

BMI = W÷H²

And where:

W is the person's weight in kilograms; and

H is the person's height in metres."

The Tribunal notes that Instrument No. 84 of 1995 pre-dates the statement about the causes of being obese dated 16 August 1996.

Applicant's evidence

17. In a written statement dated 29 April 1998 (T4/26) the applicant states:

"Jack and I were married on 26^th December 1942 and Jack enlisted in the RAAF six months later. Before he enlisted Jack worked as a furnaceman and would come home so tired at times he would not eat so much. After enlistment in the RAAF, Jack started to eat more and as his job was not as physically demanding his weight increased.

After Jack came home it was clear that his eating habits had also changed from what they were before his service. The main difference was that he now ate pies, more meat and dairy products such as butter and ice cream.

....

Because of these changes in his eating habits which he picked up in the service, jack's weight steadily increased until by 1980 he weighed over 15 stone. That was when Hypertension was diagnosed and Jack was put on a diet which successfully decreased his weight but his Hypertension stayed with him, and for which he received ongoing treatment for the rest of his life, including diuretics such as thiazides.

...... By the very early 1990s, Jack developed heart disease which was the cause of his death."

18. In her oral evidence, Mrs Stone said that her husband did not smoke and drank a beer only occasionally.

19. She said she had known her husband for some 18 months prior to their marriage and during this period would have eaten a meal with him at his home once a week. It was the applicant's evidence that at this time the late veteran had very little appetite as a result of his job as a furnaceman, being hot and sweaty and "collapsing" at the end of the day going straight to bed and to sleep. She said he played no sport and that she had no knowledge of his eating habits prior to first meeting him.

20. The applicant told the Tribunal that the veteran prior to service was very thin, short and had narrow shoulders. At the end of his service she said he was very fat, jowly and had thick shoulders and at this stage his eating habits had changed. She saw the applicant regularly during his service but could not recall any details of the veteran's eating habits or rations during the war, apart from being told by the veteran that he would swap his smoking coupons for food coupons which he would use in the canteen. She said she remembered he was always hungry during his service and that she thought the meals provided were not enough to satisfy her husband's appetite.

21. The applicant told the Tribunal that her husband worked with the Tramways after the war, initially as a conductor, then driver including buses, and finally as an inspector. She said her husband in 1980 was more than 15 stone in weight and that he had gradually put on weight for some time prior to this.

22. Mrs Ferney, the applicant's daughter, was born on 19 June 1947 and told the Tribunal that she always thought of her father as fat. She recalled a photograph of her father at her baptism in 1948 showing that at the time he was fat. She said that she thought he had been "pretty well the same" weight until he became more aware of his diet following the diagnosis of hypertension in 1980. She said her father loved food and always ate fat off the bone and liked meat pies, bread, cream and apple pie.

Medical evidence

23. Dr Goodwin, Physician, provided a written report dated 17 June 2001, Exhibit A1, and gave oral evidence. In his written report Dr Goodwin noted that on entry to the RAAF the veteran weighed 155lbs and on discharge 181lbs, "almost 20% gain". He also noted that the veteran had many weeks of relative inactivity during his service due to illnesses of mumps and excision of a pilonidal cyst. He stated that the veteran's job as a flight rigger would have required much less physical activity than being a furnaceman and this less demanding physical activity along with increased consumption of more fatty food, more meat, meat pies and diary products would be a certain recipe for a development of ischaemic heart disease. Dr Goodwin opined that the veteran conformed with factor 5(c) of the SoP relating to ischaemic heart disease, being obese for a period of at least two years within the fifteen years immediately before the clinical onset of ischaemic heart disease.

24. He stated:

"With nearly 20% weight gain evident during his actual period in the RAAF, on the evidence available, in my opinion, it is more than reasonable conclusion that obesity that was evident in 1980, was associated with adverse eating and physical habits that were required during and because of the nature of his eligible service. In 1980, with a weight of 15 stone or 95 kg, his BMI was 32.5 which is technically obese. Furthermore, such obesity is likely to have been a factor in the development of hypertension, and been a further cause of deterioration in the cause of ischaemic heart disease."

25. In his oral evidence, Dr Goodwin highlighted that hypertension had a very strong application in the development of ischaemic heart disease and that obesity, coupled with inactivity, was almost as strong a factor as hypertension. He was not able to comment on details of the veteran's dietary intake during his period of service and placed major emphasis on the periods of inactivity that the veteran suffered as a result of illnesses in the RAAF, triggering changes in weight and the subsequent weight problems which the veteran had. Dr Goodwin told the Tribunal he had no direct knowledge of the duties of a flight rigger and with respect to the veteran's activities during his service, could not add further to what was in his written report and what he had already said in his oral evidence.

26. Dr Kenardy (Psychologist) in his report dated 27 April 2000 (Exhibit A2) addressed in general terms the questions of high fat diet causing a habitual consumption of high fat foods and the role of habituation in relation to fat consumption.

"The direct relationship between fat preference and fat consumption has yet to be established, and is likely to be complex and multi-factorial. Furthermore, little is known about the pathways from fat preference and consumption to habit.......At present it cannot be concluded that fat itself is habit forming.....Is it possible that a person (specifically a young adult) could develop a generally increased preference and consumption of fact in excess of need following exposure to elevated levels of fat in a diet, in the presence of a previously lower consumption of fat? The answer is yes, it is possible. However, as stated above, the sole influence of fat itself in causing a specific response with a particular person is very difficult to determine. As stated above higher fat is generally likely to be preferred as a food, and fat generally likely to be over-consumed. Thus any specific conclusions drawn about fat exposure and preference must be tempered by these broader influences on the population of fat consumers. Furthermore, the literature at present does not provide us with the necessary information to address this issue within an individual. It could be stated, however, that the influences on formation of any habitual (eating) behaviours are likely to include factors such as accessibility, sensory and organismic factors, social and cognitive factors, and past experience, that is to say, environmental contingencies. Similar factors are likely to influence ongoing consumption of fat."

27. The Tribunal notes that on entry to the RAAF the veteran was 5 foot 6¼ inches high and weighed 154 lbs. On discharge he weighed 181 lbs and about 210 lbs when he was first diagnosed with hypertension in 1980.

28. Applying the formula in the definition of "obesity" common to both relevant SoPs, the veteran's increase in weight during his service was 17.6% with a Body Mass Index (BMI) of 29.1; and ultimately in 1980 well in excess of the benchmark of a BMI of 30; and a significant gain of more than 20% in baseline weight.

Submissions

29. It was submitted for the applicant that the veteran's increased consumption of dietary fat and/or calories during his service was an occurrence that happened while the veteran was rendering his service, or, alternatively his increased consumption of dietary fat or calories would not have occurred but for his having rendered his eligible service, or but for changes in his environment consequent upon his having rendered eligible war service.

30. It was further submitted that the respondent accepted the temporal connection between obesity, hypertension and ischaemic heart disease, on the basis that the relevant SoP is satisfied, the only issue being whether or not the veteran's obesity can be related to his service.

31. In connecting the veteran's obesity to his service, Counsel for the applicant relied on the evidence of the veteran's widow that when the veteran came home after the war she noticed a change in his eating habits from what they were before his service and that his weight and build had increased significantly during his service. It was further submitted:

(a) that the Tribunal should infer from this that the veteran must have eaten fatty foods during his service;

(b) that the evidence before the Tribunal indicated that a young person can develop a preference for fatty foods, as did the veteran during his service; and

(c) that the veteran's weight increase was, in part, caused by his inactivity resulting from illnesses during his service and the less onerous duties of a flight rigger compared with a furnaceman.

32. With respect to war service contributing to the veteran's condition, the applicant referred the Tribunal to Repatriation Commission v Tuite (1993) 17 AAR 158. The respondent submitted that Tuite's case related to an addictive smoking habit and that in this matter fat or calorie intake was not an addiction and there was no suggestion of boredom or peer pressure playing a part as it had in Tuite's case.

33. With respect to the application of the Repatriation Medical Authority's "Statement about the Causes of 'Being Obese'", the respondent referred the Tribunal to Hilton v Repatriation Commission [2001] AATA 20 and it was submitted for the respondent that even though the Statement was issued before the respondent's decision in this matter, once it had been issued it immediately became an amendment to all the SoPs in which obesity is a factor.

34. In summary, the respondent contended the applicant's obesity was not causally related to his service and submitted:

(a) the veteran was essentially a big eater, including other than fatty foods;

(b) the veteran's service did not encourage calorific intake excessive to energy needs which could not be compensated by adequate physical activity;

(c) that even though the veteran had put on a significant amount of weight during his service, he had not technically gained weight to the level of being classified obese at the conclusion of his service;

(d) that flight riggers do PT and there was plenty of sport available to the veteran during his service;

(e) that the veteran's food intake was a matter of his personal choice;

(f) that the veteran's consumption of pies, ice cream and butter after service could not apply in the few years after the war when rationing was still in existence; and

(g) that after service the veteran took a less active occupation and was not involved in sports or other such activities.

Consideration

35. At the outset the Tribunal needs to consider the applicability in this matter of the Repatriation Medical Authority's "Statement about the Causes of 'Being Obese'".

36. In the matter of Hilton v Repatriation Commission, the Tribunal said:

"64. The Tribunal does not accept the Applicant's submission that the RMA has no power to make the Obesity Statement because it is not a statement about an injury or disease. The Tribunal considers that the RMA's Obesity Statement has the same function as many of the definitions incorporated in specific Statements of Principles, but because of its application to a number of diseases or injuries it is justifiable to have it as a 'stand alone' statement to which reference is made specifically in those Statements of Principles where it is to be applied. The Tribunal does not accept the Applicant's submission that this in effect is ultra vires.

65. The Tribunal considers that, with respect, the Respondent's position on the application of the Obesity Statement is correct, that is, that because no reference is made to the Obesity Statement in the Hypertension Statement of Principles it has no legal standing in respect of that Instrument, but because specific reference is made to the Obesity Statement in the Ischaemic Heart Disease Statement of Principles, then in respect of factor 5(c) the Tribunal is bound to apply the Obesity Statement in the consideration of that factor. This has the potentially anomalous effect that although the Obesity Statement does not need to be applied in respect of the Hypertension Instrument and if successful on that Instrument, hypertension can then be a factor [5(a)] in the Ischaemic Heart Disease Instrument, the Obesity Statement must be applied in factor 5(c) of that Instrument."

37. With respect, the Tribunal agrees with the above reasoning and adopts this approach in consideration of this matter.

38. There is no disagreement between the parties and the Tribunal finds accordingly:

(a) that the veteran died from ischaemic heart disease which he first contracted in April 1996; and

(b) that at the time of his death, the veteran suffered from hypertension first diagnosed in 1980.

39. The evidence before the Tribunal about the veteran's weight post-1980 is that he lost weight when he began to pay attention to his diet after hypertension was diagnosed. On the evidence available the Tribunal is unable to be satisfied that the veteran was obese for a period of at least two years within the fifteen years immediately before the clinical onset of ischaemic heart disease.

40. The Tribunal accepts, and finds accordingly, that the veteran satisfies factor 5(a) of Instrument No. 141 of 1996 (Ischaemic Heart Disease) in that there was -

"5(a) the presence of hypertension before the clinical onset of ischaemic heart disease."

41. With respect to hypertension, the Tribunal is satisfied that the veteran suffered from persistent obesity, as defined in Instrument No. 84 of 1995, before and continuing at least until the accurate determination of hypertension, and so finds. As such, the Tribunal is satisfied that the veteran meets the requirements of factor 1(a) of Instrument No. 84 of 1995, that is:

"1(a) suffering from persistent obesity before and continuing at least until the accurate determination of hypertension."

42. The remaining and central issue then is whether or not the veteran's obesity is connected with the circumstances of the veteran's service.

43. Turning first to the question of the veteran's dietary intake during service. There is no evidence about the rations provided to the veteran during his service and what evidence there is before the Tribunal about the veteran's dietary intake is inconsistent. On the one hand the veteran's widow states the veteran always complained of being hungry and not getting sufficient food to eat, and on the other hand, that he increased his food intake by swapping his cigarette coupons for food coupons which he used in the canteen. The applicant's evidence about the changes in the veteran's eating habits on return from service taken in the context of food rationing immediately post-war is of little assistance to the Tribunal in determining the veteran's dietary intake during his service.

44. Dr Goodwin's opinion that an increase in the veteran's food consumption would have been triggered by inactivity during his illnesses during service needs to be considered in the context of the veteran being in hospital and, as such, on hospital rations for a total of 48 days and then being on sick leave for a total of 10 days within a total period of service of approximately 880 days. On this basis the Tribunal does not accept Dr Goodwin's opinion that periods of inactivity due to service illnesses triggered an increase in the veteran's food consumption. The Tribunal notes that the veteran, post war, engaged in sedentary type work and had a relatively inactive lifestyle.

45. On the issue of the veteran's physical activity during his service, there is no credible evidence which would assist the Tribunal in determining the nature of his duties as a flight rigger or any other activities that he undertook during his service.

46. Dr Kenardy's report clearly indicates that the direct relationship between fat preference and fat consumption has yet to be established and is likely to be complex and multi-factorial. The Tribunal notes that there is no evidence of the veteran's early childhood diet and, as indicated above, the evidence about the veteran's dietary intake on service is limited and inconsistent. On this basis, Dr Kenardy's report was of little assistance to the Tribunal regarding the veteran's fat preference and ingestion.

47. The Tribunal notes that the veteran's weight increased considerably during his service. However, in the absence of any other evidence it would be speculation to infer that his weight increase resulted from an increase in fat in his war-time diet; or from the calorific value of rations provided during his service; or from the conditions or exigencies of his service.

48. On the material before it, the Tribunal is satisfied that the veteran did not develop a preference for fatty food as a result of his service, that the veteran's service was not a contributing cause to his subsequent obesity and his service in the RAAF was merely the setting in which the increase in his weight occurred.

49. In arriving at this conclusion, the Tribunal is mindful of what His Honour Justice Davies said in Tuite's case, namely:

"... if an injury or disease is claimed to have arisen out of or be attributable to a serviceman's period of 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. Denning J has said that the service 'must be a cause as distinct from being part of the circumstances in or on which the cause operates'."

Davies J went on to say:

"Of course, causation is primarily an issue of fact.

.......

If the circumstances of eligible war service provide an operative cause contributing to the serviceman's injury or disease, it matters not that the relevant circumstances, such as peer pressure to smoke, could be found elsewhere than in camp life. The question in each case, and it is a question of fact for the administrative decision-maker, is whether the eligible war service contributed causally to the injury or disease."

50. After careful consideration of all of the material before it, and the submissions made by both parties, the Tribunal is not satisfied on the probabilities that the veteran's obesity was causally related to his service.

51. The Tribunal is therefore satisfied that the veteran's death was not related to his war service.

52. The Tribunal affirms the decision under review.

I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of I R Way, Member

Signed: .....................................................................................

Associate

Date of Hearing 15 November 2001

Date of Decision 16 January 2002

Counsel for the Applicant Mr A Harding

Solicitor for the Applicant Gilshenan And Luton

For the Respondent Mr M Smith, Departmental Advocate