Aldcroft and Repatriation Commission

Case [2002] AATA 432

DECISION AND REASONS FOR DECISION [2002] AATA 432

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N1999/1475

VETERANS' APPEALS  DIVISION       )          
           Re      BARRY ALDCROFT         
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Mr M J Sassella, Senior Member  Dr J D Campbell, Member

Date6 June 2002

PlaceSydney

Decision      The applicant's spondylolisthesis condition is a war-caused injury or disease and this is so with effect from 24 July 1996. The applicant's cervical intervertebral disc prolapse is a war-caused injury disease and this is so with effect from 9 August 1998.    The applicant is entitled to special rate Disability Pension with effect from 9 August 1998.         
  ..............................................
  Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – Disability Pension - lumbar spondylolisthesis – cervical intervertebral disc prolapse – whether war-caused injuries or diseases – spondylolisthesis as an aggravation of congenital condition caused by war service – inabilitry to obtain appropriate clinical management - special rate Disability Pension – whether war-caused injuries or diseases alone prevent veteran from continuing to engage in suitable remunerative employment – held that spondylolisthesis and cervical intervertebral disc prolapse were war-caused injuries or diseases – held that special rate payable

Veterans' Entitlements Act 1986: ss 6C(1), 7(1)(a), 9(1)(e)(ii), 13(1)(b), (d), 14(1), (3), (4), 19(6), (9) ("application day", "assessment period", "claim"), 20(1), 23(1), (2), (3), 24(1), 24A(1), 28, 120(1), (3), (4), (6), 120A(1), (3), 157(2)(a)(ii), 196B(1), (2), 196D.

Statement of Principles 15/97 concerning spondylolisthesis.
Statement of Principles 130/96 as amended by 92/97 concerning intervertebral disc prolapse.

Arnott v Repatriation Commission (2001) 32 AAR 445.
Banovich v Repatriation Commission (1986) 69 ALR 395.
Bull v Repatriation Commission [2001] FCA 1832.
Bushell v Repatriation Commission (1992) 175 CLR 408.
Byrnes v Repatriation Commission (1993) 177 CLR 564.
Re Ferres and Repatriation Commission [2002] AATA 410.
Harris v Repatriation Commission (2000) 31 AAR 270.
Kattenberg v Repatriation Commission [2002] FCA 412.
Re Millen and Repatriation Commission [2000] AATA 508.
Repatriation Commission v Deledio (1998) 49 ALD 193.
Repatriation Commission v Gorton (2001) 33 AAR 370.
Repatriation Commission v Smith (1987) 74 ALR 537.
Repatriation Commission v Thompson (2001) 63 ALD 1.
Repatriation Commission v Williams [2001] FCA 1195.

REASONS FOR DECISION

6 June 2002 Mr M J Sassella, Senior Member  Dr J D Campbell, Member           

HISTORY OF APPLICATION

  1. On 19 August 1996 Barry Aldcroft ("the applicant") lodged with the Department of Veterans' Affairs ("DVA") an application for Disability Pension in respect of back and neck problems caused by a fall on an oil rig and aggravated by activities in his army service (T10).

  2. On 16 October 1996 a delegate of the Repatriation Commission ("the respondent") refused the applicant's claim for conditions the respondent described as spondylolisthesis and facet joint osteoarthritis (T13).  The respondent found that because the condition was congenital in nature, and because the lifting and carrying duties in Vietnam were not in themselves severe enough to cause spondylolisthesis and facet joint osteoarthritis, no reasonable hypothesis could be raised connecting the conditions to the applicant's war…

Continue reading Aldcroft and Repatriation Commission

Sign in free to access the full text

Details
AGLC
Aldcroft and Repatriation Commission [2002] AATA 432
Case
[2002] AATA 432
Decision Date

CaseChat Overview and Summary

The case of Aldcroft and the Repatriation Commission involved a dispute concerning the eligibility of a veteran for a disability pension, specifically in relation to his conditions of lumbar spondylolisthesis and cervical intervertebral disc prolapse. The dispute was heard and decided by the Administrative Appeals Tribunal (AAT). The primary legal issues that the court needed to decide included whether the veteran's conditions were war-caused injuries or diseases, and if so, whether these conditions alone prevented him from engaging in suitable remunerative employment, thus qualifying him for a special rate disability pension.

The court carefully examined the evidence and the relevant statements of principles (SoP) concerning spondylolisthesis and intervertebral disc prolapse. The veteran's medical history, including the findings from various medical examinations and surgeries, were considered. The court found that the veteran's spondylolisthesis and cervical intervertebral disc prolapse were indeed war-caused injuries. It was determined that the veteran's congenital condition of spondylolisthesis was aggravated during his recruit training in 1964, which was within the eligible service period, and that the cervical intervertebral disc prolapse was caused by his war service. The court further held that the veteran was unable to obtain appropriate clinical management, which contributed to his inability to work.

In light of these findings, the court concluded that the veteran's war-caused injuries or diseases alone prevented him from continuing to engage in suitable remunerative employment. Consequently, the court ruled that the special rate disability pension was payable to the veteran. This decision was based on the veteran's inability to work due to his war-caused conditions, as required by the relevant sections of the Veterans' Entitlements Act 1986.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The SoPs relevant to the determination of these matters are SoP 15/97 concerning spondylolisthesis and 130/96 as amended by 92/97 in relation to intervertebral disc prolapse. medical evidence On 21 March 1978 Dr Willington, radiologist, examined the applicant and found "possible C6/7 intervertebral disc injury otherwise normal" (T14/67). On 10 June 1982 Dr Huygens, a surgeon, wrote to a Dr Mein about the applicant's then condition (T10/57). He noted the applicant's nine-month history of pain in the right hip region and diagnosed a "muscular sprain type of injury involving the short rotator muscles of the right hip." On 25 November 1992 the applicant was given a MR scan by a Dr Houang (T10/58). He concluded that the applicant had "…forward slip of L4 and L5 associated with arthritic changes in the facet joints. The distal sac is indented posteriorly by the posterior elements. A small disc protrusion is noted at the L5/S1 level." Dr Peter Moloney, neurosurgeon, wrote to a Dr O'Halloran on 22 December 1992 stating that the only measure that would be of any benefit to the applicant would be surgical intervention along the lines of a spinal fusion at L4/5 (T10/59). On 23 April 1993 the applicant underwent surgery on the recommendation of Dr Moloney but there was a failure to fuse at the L4/5 level (T21/111). On 4 March 1994 the applicant underwent further exploratory surgery and it was found that the screws and plates inserted into the bone had come loose, no longer immobilising the back (T21/111). During the surgery the tip of a scalpel broke off and remained permanently in the L4/5 region of the spine. On 31 August 1994 the applicant was given a myelogram and CT scan which revealed a large cervical disc protrusion at the C5/6 interspace to the right side. (T21/111). On 8 August 1995 Dr M G Miller, a physician, wrote a report on the applicant at the request of the Vietnam Veterans' Association (T9). He gave a detailed personal and medical history of the applicant. Concerning the issues relevant in this matter, his back and neck conditions, the applicant underwent a laminectomy of L4 in 1993 and was given a lower lumbar spinal fusion. The surgery was repeated in April 1994 and March 1995 because of pins becoming loose and the increasing pain. A scalpel point broke off during one of these operations and remained in his body. The 1993 surgery was complicated by a severe pulmonary embolus. Dr Miller further stated in his report that the applicant experienced back ache if he walked and the applicant had difficulty in dressing. Dr Miller assumed that the "lumbar spondylosis" was a 1990 work injury. On 22 August 1995 Dr Ditton, consultant in pain management, reported on the applicant for the applicant's treating doctor, Dr Scott (T16/80). He noted that the pain which the applicant was experiencing was appropriate for the conditions of spondylolisthesis and disc protrusion of the neck. On 15 February 1996 Dr Moloney wrote to the Vietnam Veterans' Association stating that the applicant had a congenital abnormality, characterised by a pars interarticularis defect (T10/60,T21/116). He further stated that the surgery that the applicant had undergone had not relieved his pain sufficient to permit him to return to work.

Decision

Reasons for decision

On 13 April 1999 the respondent's delegate elected not to conduct a s 31 review of the decision because the circumstances of the condition did not meet any of the factors of the relevant SoP (T20).the decisions under review On 6 September 1999 the VRB affirmed the decisions of the Repatriation Commission dated 27 and 28 January 1999 in respect of the condition of disc protrusion at C5/6 and an increase in Disability Pension (T21). In the VRB hearing the applicant submitted that the factors (a), (c) and (f) of the relevant SoP could apply to the veteran's circumstances. The VRB found that although, in relation to factor (a), the applicant performed the activities as required by the SoP, the applicant did not, as required, suffer a discrete injury to the C5/6 intervertebral disc. The pain area was reported as "jabbing left inguinal pain", far removed from the disc protrusion at C5/6. In relation to factor (c) the VRB found that the applicant did not satisfy the necessary two years of heavy lifting that the SoP requires. The VRB further found, in respect of factor (c) of the SoP, that the applicant did not meet the requirement of having a 30 pack year history of smoking. The VRB noted the differing smoking histories given by the applicant and decided that the most contemporaneous evidence, that of 1968, was the most accurate. A smoking habit of 20 cigarettes a day between 22 April 1966 and 1993 was therefore established (ie 140 cigarettes a week). Further, clinical onset of the disc protrusion condition was established as sometime in 1992, and the applicant's spine was found to be normal at both enlistment and discharge from the army. Therefore, aggravation of the condition was found not to be relevant. In order to qualify for the intermediate or special rate, the applicant must have ceased work for reasons solely due to his war-caused incapacity or he must not be prevented from working for reasons other than the war-caused incapacity. As for the first requirement, the VRB found that the injury sustained on an oil rig was the condition that prevented the applicant from working. As regards undertaking remunerative work in the future, the VRB found that, because the conditions preventing the applicant from working were not war-caused, he was not eligible for an earnings-related pension. On 6 September 1999 the VRB affirmed the decision of 16 October 1996 that spondylolisthesis and facet joint osteoarthritis were not war caused conditions (T21/103). The VRB found that the applicant had a congenital condition of spondylolisthesis and that, although it was possibly aggravated during recruit training in 1964, this aggravation did not occur during the eligible service period. As regards the lifting of heavy weights as a factor in the aggravation of this condition, the VRB found that there was no factor in the governing SoP which referred to this. The VRB ultimately found that the mere possibility of a connection between the condition and war service did not constitute a reasonable hypothesis. RELEVANT LEGISLATION

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.