Locker and Repatriation Commission [2011] AATA 952 (23 December 2011)

Last Updated: 7 February 2012

[2011] AATA 952

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2010/4345
Re	Raymond Locker
	APPLICANT
And	Repatriation Commission
	RESPONDENT

DECISION

Tribunal	Deputy President J W Constance
Date	23 December 2011
Place	Melbourne

The decision under review, being the decision of the Repatriation Commission made 15 December 2008 that Mr Locker’s condition of diabetes mellitus and his condition of hypertension were not defence caused, is affirmed.

......(sgd)..................................................................
Deputy President J W Constance

Catchwords

VETERANS’ & MILITARY COMPENSATION – Navy – diabetes mellitus – hypertension – obesity – Statement of principles concerning diabetes mellitus Instrument No. 90 of 2011 and hypertension Instrument No. 36 of 2003 – decision under review affirmed

Legislation
Veterans’ Entitlement Act 1986 (Cth) ss 70, 120(4) and 120B(3)

REASONS FOR DECISION

Tribunal Deputy President J W Constance


Date of Written Reasons 7 February 2012

INTRODUCTION

1. Mr Locker served as a member of the Royal Australian Navy from 1978 until 1988.
2. In 2008 Mr Locker applied for a pension under the provisions of the Veterans’ Entitlement Act 1986 (Cth) on the grounds that the conditions of diabetes mellitus and hypertension from which he suffers were defence-caused. The Repatriation Commission has rejected the application.
3. Mr Locker has applied to the Tribunal to review the Commission’s decision. For the reasons which follow the decision of the Commission will be affirmed.

LEGISLATION

4. Section 70 of the Act provides that the Commonwealth is liable to pay a pension to a member of the forces who is incapacitated from a defence caused disease or injury. The parties agree that Mr Locker service in the Navy is eligible defence service within the meaning of the Act.
5. In accordance with subsection 120(4) I am required to decide this matter to my reasonable satisfaction.
6. Subsection 120B(3) provides in part:

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.

It is agreed that the Statement of Principles concerning diabetes mellitus is Instrument No. 90 of 2011 and that for hypertension is Instrument No. 36 of 2003 as amended by numbers 4 of 2004 and 12 of 2008. I am satisfied that these are the applicable Statements of Principle.

Statement of Principles concerning Diabetes Mellitus No.90 of 2011

7. Clause 5 of the Statement of Principle reads:

Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.

Clause 6b provides:

The factor that must exist before it can be said that, on the balance of probabilities, diabetes mellitus or death from diabetes mellitus is connected with the circumstances of a person’s relevant service is:
...
(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;

In clause 9 being overweight is defined to mean:

...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.

Statement of Principles concerning Hypertension No. 36 of 2003

8. Clause 4 of the Statement of Principles provides:

Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.

Clause 5 provides in part:

Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.

The definition of ‘being obese” (clause 8) is:

“an increase in body weight by way of fat accumulation which results in a Body Mass Index (BMI) of 30 or greater.

ISSUES FOR DETERMINATION

9. It is not in dispute that the clinical onset of both conditions was in early 1999. Further it is not in dispute that, in the case of diabetes mellitus, Mr Locker had been overweight for a period of at least five years before its clinical onset, and in the case of hypertension, that he was obese at the time of clinical onset. I am satisfied on the basis of Mr Locker’s medical records^[1] and his evidence that these concessions are appropriate. The records of Mr Locker’s BMI as summarised in the report of Dr Volker.^[2]
10. The issues for determination are as follows.
    • (a) In relation to the diabetes mellitus, was Mr Locker’s being overweight in the period of at least five years before 1999 related to his defence service?
    • (b) In relation to the hypertension, was his being obese in early 1999 related to his defence service?

FACTS

11. The following findings of fact are based on the evidence of Mr Locker. I found him to be an honest witness who gave his evidence to the best of his recollection, however I have taken into account that his evidence related to events of around 25 or more years ago and that those events, such as his eating habits and food consumption, would not have been of particular note at the time. His memory may not be entirely accurate.
12. Mr Locker served in the Royal Australian Navy from 11 January 1978 to 11 January 1988. At the time of his enlistment he was 16 years and four months of age. Initially his duties were as a weapons mechanic for which he was provided training by the Navy. He did not find his training stressful.
13. In 1982 the role of weapon mechanic was phased out and he was given the option of undertaking a trade. He was keen to do this and in 1982 he undertook an apprenticeship in electrical technical weapons. This qualification was to be completed in phases.
14. In 1984 he successfully completed phase 1, and in 1984-85 he started phase 2. He found the demands of the course stressful. He also said, and I accept, that at the time he did not tend to mix with his peers particularly well. However I do not accept his evidence that he in fact suffered from depression at that time, although I do accept that he was not always happy in his workplace. The diagnosis of depression is a matter for an appropriately qualified expert.
15. During phase 2 of his course Mr Locker was keen to advance but he had difficulty coping. He did not feel “real good” about himself. Nevertheless he was able to pass phase 2. In about August 1985 (at the end of phase 2) he was transferred to HMAS Cerberus which was a land based facility. At the end of October 1985 he was promoted to leading hand. He was subsequently transferred to HMAS Torrens as a leading seaman ETW. While on that posting he was told that he was not satisfactorily performing his duties and if he did not improve he may be demoted.
16. Mr Locker eventually sought and obtained a transfer back to HMAS Cerberus. Whilst there he attended the West Head Gunnery Range where an incident occurred during which, as a result of his conduct, a gun could have been seriously damaged. The failure was sufficiently serious to be noted on his service record.
17. Mr Locker never attempted phase 3 of the ETW course as it was clear to him that he was unlikely to succeed. He eventually sought discharge from the Navy as he believed that his prospects of advancement were, in his words, “virtually non-existent.”
18. Mr Locker enlisted in the Navy after leaving school. Prior to enlistment he lived with his parents. He said, and I accept, that his mother was a good cook and his typical meals as he grew up were breakfast of cereal and milk, lunch of sandwiches and fruit and dinner of meat with vegetables. During his service in the Royal Australian Navy his diet was different. When he was at sea, he would eat a cooked breakfast. Both at sea and on shore he would have morning tea, lunch (which was usually a cooked meal), afternoon tea, an evening meal of three courses and, at times, supper.
19. The quantity of food which he said he consumed after enlistment was significantly greater than what he had eaten beforehand. Initially the meals during service tended to be cooked in oils and tended to be more fatty than his mother had prepared. Once he turned 18 he also took up the beer rations, although he said that he did not drink excessively.
20. Mr Locker acknowledges that he was warned by a Navy doctor about his increasing weight in 1984. He said that he did make an effort to reduce his weight and was put on fortnightly reviews. This is confirmed by the medical records. He ate more during service because the food was readily available and he found it comforting.
21. During his initial training Mr Locker took part in the compulsory physical training for one to one a half hours on a couple of days per week. He also did a lot of marching. At HMAS Cerberus there was a lot of marching and on Wednesday afternoons he played two to three games of squash.
22. At the end of March 1979 Mr Locker was posted to HMAS Supply. He said that he could exercise on the ship, he engaged in some running and there were a few weights and a punching bag available. At times there was an instructor present to assist with exercise. I accept this evidence. When asked why he did not engage in physical training or sport after his initial training, Mr Locker replied, “I don’t know.” In relation to his time on board ship he said that he occasionally ran around the ship but he did not do so “a real lot.” When asked why he did not adopt the physical training regime that was available his answer was, “I can’t answer that now”. He said that on HMAS Supply “there was no gym as such but a couple of weights, a bench press and a punching bag.” He said that he had not used this equipment as others were there and, “I didn’t want to”.
23. By January 1985, at which time Mr Locker weighed 91.8 kilograms, his weight had increased by eight kilograms in five months. At the time he was living ashore in a rented house and did his own shopping and food preparation. For the whole of phase 2 of the course (from September 1984 to August 1985) he was off base and was sharing a house with a friend.
24. By 1985 Mr Locker was having significant problems with his weight and was constantly being monitored by the medical section of the Navy with a view to his losing weight so that he could stay in the Navy. His psychological reports confirm that Mr Locker had difficulty coping with his training at about this time.
25. After he left the Navy Mr Locker took a position with Ford Motor Company. By April 1988 he weighed 106 kilograms. He left the Ford Motor Company because of his depressive disorder but rejoined in February 1989. At that time he weighed 105 kilograms. He stayed with Ford until he accepted voluntary redundancy and ceased employment in February 2006.

Evidence of Health Professionals

26. I have taken into account all of the records included in the section 37 documents ^[3], the medical records of Mr Locker ^[4], the psychological records ^[5] and a food intake report ^[6].

Dr Volker, Dietician and Nutritionist

27. Dr Volker is a qualified dietician and nutritionist. She holds a PhD and has practised as a dietician and nutritionist for the past 17 years. Dr Volker gave evidence and provided a report dated 17 June 2009 ^[7]. This report contains a summary of the evidence in the service records as to Mr Locker’s weight increase.
28. In her report Dr Volker said:

Obesity – Raymond Locker was classified as being obese on discharge from the Royal Australian Navy after 10 years of eligible service 11.1.78 to 11.1.1988.

She continued in part:

The healthy weight range (HWR) is 20-25 BMI, overweight range from 25-30, obese range from 30-35 and morbid obesity>35. Raymond Locker became morbid obese after his naval discharge. ... Shift work has been linked with weight gain. There is a significant positive relationship between duration of shift work and body mass index (BMI) increases. Shift work, plentiful supply of food and a lack of exercise opportunities on board ship contributed to Raymond Locker’s weight gain of 40.8% in ten years.

29. Based on her discussions with Mt Locker, it is the opinion of Dr Volker that the food on board ship was often deep fried and mass produced and that there was no real attempt to have fresh fruit and vegetables available. She assumed that if catering was outsourced a company would try to make profit and frying was an easy way to do this. She said that a young growing male learns to eat a lot of food and that this behaviour can quickly become a lifelong habit. However, in cross-examination she did concede that it was difficult to conclude that this was the situation on board the ships to which Mr Locker was posted. However, she suggested that once a person learned to eat a naval diet he or she would not know how to change diet readily.
30. In relation to questions about the relevance of evidence that Mr Locker’s mother became diabetic at age 43 and being overweight, Dr Volker said that on her information Mrs Locker had been involved in the hospitality industry which would have set her up to be obese. In relation to Mr Locker’s BMI when he enlisted, she said that he was still within the healthy weight range. When asked as to the extent of her knowledge of the rotating shifts in which Mr Locker was engaged, she was unaware of the details.

Dr White, Consultant Psychiatrist

31. Dr White provided a report dated 3 May 2011^[8]. He was available for cross-examination on behalf of Mr Locker but was not required.
32. In his report Dr White said that:

Mr Locker is a 49-year-old man who has been diagnosed as suffering from a Dysthymic Disorder characterized by persistent fluctuating depressive symptoms over the past few years, in the context of a number of significant and incapacitating medical conditions. He feels that some adverse experiences whilst he was in the Navy may have been contributing factors, however, he describes a significant absence of persistent psychiatric symptoms until recent years.

33. In response to the question as to whether Mr Locker’s psychiatric condition was a cause or a contributory cause of his obesity Dr White reported:

Not on the evidence available. His obesity preceded the psychiatric condition.

MR LOCKER’S CONTENTION

34. It was argued on behalf of Mr Locker that:

(1) the quantity and quality of food available to him during his defence service led to his developing unhealthy eating habits;

(2) although exercise facilities and guidance were available, for most of Mr Locker’s naval career he was not compelled to take advantage of them;

(3) there was insufficient guidance provided in relation to the need for Mr Locker to ensure that he lost weight, and

(4) the training and management of Mr Locker’s promotion led to stress which led to excessive eating which also contributed to his being overweight and subsequently obese.

REASONING

35. The Act requires a causal connection between Mr Locker’s defence service and his being overweight and ultimately his being obese.
36. I accept that Mr Locker found training stressful, that he did not socialise readily with his colleagues and that he was promoted to a position which was probably beyond his training and experience and which further added to his stress. I accept his description of his feelings as, “sad, disappointed” and that he “did not feel confident” particularly during phase 2 of his course.
37. I am satisfied that whilst the Navy provided a substantial quantity and range of food to meet the needs of all members, it was a matter of choice for Mr Locker as to the quantity and type of food he ate. I am not satisfied of the extent of the change (if any) in his eating habits during his service in the Navy. Dr Newlands reported taking the following history from Mr Locker:

He believed his eating pattern may have changed at Cerberus during phase 1 training because the canteen was bigger at times he would go there at 7pm to 8pm for snack meals such as a burger though he had his main meal at 5.30 pm. Sometimes he would also have a Coke. He found the study, “A whole new ballgame, as stressful”. Hence there was perhaps some tendency to eat more. He did not recall any other change to his eating pattern whilst in the Navy. He specifically stated that he was not a binge eater and he was never prone to buy biscuits or sweets in general.^[9] (Emphasis added).

38. Dr Newlands also noted that Mr Locker said that he ate food because it was readily available, however this highlights that it is understandably difficult for Mr Locker to recall exactly how his eating habits were affected so long after the event.
39. Dr Volker may have overestimated the extent to which Mr Locker increased his food intake whilst on defence service in light of the history taken by Dr Newlands. Further, Dr Volker’s opinion as to the effect of Mr Locker engaging in shift work as based on a very limited understanding of the nature of the shift work involved.
40. I am satisfied that Mr Locker has had a tendency to gain excessive weight over many years and that he has a family history of a tendency to gain excessive weight. On the evidence before me I find that his period of defence service was the setting in which he gained some of his excess weight rather than a causal factor in his excessive weight gain and/or obesity.

CONCLUSION

41. The decision under review, being the decision of the Repatriation Commission made 15 December 2008 that Mr Locker’s condition of diabetes mellitus and the condition of hypertension were not defence caused, will be affirmed.

I certify that the preceding 41 (fortyone) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.

.......(sgd).................................................................
Associate

Date of Written Reasons 7 February 2012

Date of hearing	3 November 2011
Counsel for the Applicant	Ms A McMahon
Solicitors for the Applicant	Williams Winter
Advocates for the Respondent	Mr K Rudge and Ms J McCulloch

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^[1] Exhibit A3.

^[2] Exhibit A7 at p 580.

^[3] Exhibit A7.

^[4] Exhibit A3.

^[5] Exhibit A4.

^[6] Exhibit A8.

^[7] Exhibit A7 at p.579.

^[8] Exhibit R3.

^[9] Exhibit A7 p.640.