Armstrong and Repatriation Commission
[2003] AATA 992
•3 October 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 992
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/847
VETERANS' APPEALS DIVISION )
Re BARRY JOHN ARMSTRONG Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr O Rinaudo, Member Date3 October 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review. (Sgd) O Rinaudo
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension – lumbar spondylosis and intervertebral disc prolapse - whether conditions were caused by veteran’s war service – whether reasonable hypothesis established
Veterans’ Entitlements Act 1986 ss 9, 120(1), 120(3)
Hill v Repatriation Commission [2001] FCA 1775
REASONS FOR DECISION
3 October 2003 Mr O Rinaudo, Member Background
1. Mr Armstrong seeks review of the decision of the Repatriation Commission and of the Veterans’ Review Board to reject claims for lumbar spondylosis and intervertebral disc prolapse as war-caused. The Veterans’ Review Board did amend the decision to include the diagnosis of intervertebral disc prolapse but affirmed the decision of the Commission.
2. It is accepted that Mr Armstrong had a number of periods of eligible service (including operational service) while serving in the Royal Australian Navy between 1963 and his discharge in 1968. The applicant has accepted conditions of sensori-neural hearing loss of the left ear and bilateral tinnitus for which he receives a pension at 20% of the General Rate.
3. Mr Armstrong gave evidence and was cross-examined. Documentary evidence tendered as exhibits were as follows.
§Exhibit 1 “T” Documents
§Exhibit 2 Applicant’s statement dated 14 January 2003
§Exhibit 3 Report of Dr Roger Parkington dated 10 February 2003
§Exhibit 4 Smoking Questionnaire dated 28 November 1996
§Exhibit 5 Report of Dr David McEvoy dated 15 September 1998
4. In essence, Mr Armstrong stated, in respect of his back condition, that he suffered a trauma to the lumbar spine before the clinical onset of lumbar spondylosis firstly on 8 March 1965 and, secondly, in June 1965.
5. In evidence it became clear that the reported injury occurred on 8 March 1965. This injury was sustained whilst the applicant and two other sailors were carrying a box. The full weight of the box shifted to the applicant because of the pitch and roll of the ship.
6. The applicant stated he was strapped and relieved of duties for ten days although the evidence does not support this. It appears from the evidence in the “T” Documents (at Folios 17, 18 and 19) that the applicant was passed fit for duties with no restrictions after three days. The applicant gave evidence that it was his best recollection that he was off work for ten days. However, he has had two tumours removed which cause him memory loss so he could not be sure.
7. The other occurrence was when Mr Armstrong fell down a ladder and landed on his bottom. This incident was unreported. Mr Armstrong stated that he “had a job to do” and the sailors had been lectured about “what had to be done” so he continued to work and self-medicate.
8. It became clear that this incident occurred about three months after the first incident whilst the applicant was serving on the Australia ship HMAS Duchess at anchor in Vietnam. According to the record, Mr Armstrong’s first trip to Vietnam was between 27 May 1965 and 26 June 1965. Again, there was some confusion about whether this accident occurred before or after the box incident. It is accepted that it was the second incident.
9. In respect of this application, the applicant said in his statement dated 16 February 1998 (Exhibit 1, Folio 20):
“On or about June 9, 1965 while at anchor in Vietnam serving as Escort to HMAS Sydney I fell down the ladder leading to the sonar instrument space. I landed on my tail bone causing pain which I still suffer from. As we were on active service at the time it wasn’t reported. Accidents often happened which weren’t reported as we were young and took the attitude that it’ll be OK.”
although in his statement dated 9 April 2001, the applicant stated about the reporting that:
“The crew of my ship were not a crew that reported the slightest injury, that sort of behaviour was frowned upon.”
10. In respect of his smoking, Mr Armstrong said that whilst he had completed a form (see Exhibit 4 – Claimant Report – Smoking Questionnaire), he had stopped smoking in 1977 when he “gave it up because of breathing problems”. Mr Armstrong stated that this was not correct and that he in fact stopped smoking in about 1986.
11. Mr Armstrong stated that his bad memory had been the cause of this mistake. He said that he got the years mixed up and that he should have said 1986/1987. The applicant’s counsel pointed to a report at folio 39 of Exhibit 1, which stated that a Dr John Baranowskyj, Medical Acupuncturist, had been treating Mr Armstrong for smoking in 1986. It notes:
“Treatments were principally for Back Pain. His bronchitis was treated symptomatically as well as antibiotics). It was noted he was a heavy smoker – approximately 30-40/day as well as a pipe.
It was strongly suggested he give away this practice in view of recurrent bronchitis attacks (and likelihood of further deterioration of airways).”
Issues
12. The issues for determination by the Tribunal in this case are whether Mr Armstrong’s conditions of lumbar spondylosis and intervertebral disc prolapse are war-caused within the meaning of section 9 of the Veterans’ Entitlements Act 1986 (“the Act”).
Legislation
13. Subsection 9(1) of the Act provides that:
“(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service; …”
14. It is accepted that Mr Armstrong had undertaken war service (which is also operational service) between 19 January 1965 and 2 March 1966. In considering section 9 regard must be had to subsections 120(1) and 120(3) of the Act. These subsections state as follows:
“(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. …
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.”
15. In this case it is accepted that there are Statements of Principles which are applicable and it is agreed that these are:
§Intervertebral Disc Prolapse – Instrument No 130 of 1996; and
§Lumbar Spondylosis – Instrument No 46 of 2002
Consideration
Lumbar Spondylosis
16. In respect of the correct approach to be adopted in addressing the issues in this case, consideration must be had to the comments of von Doussa J in the case of Hill v Repatriation Commission [2001] FCA 1775 where, considering the interpretation to be given to section 120(1) and (3), his Honour said:
“The Tribunal discussed the interpretation given to s 120(1) and (3) by the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 116 ALR 210, and the introduction thereafter of s 120A. The Tribunal noted that the interrelationship of s 120(3) with the provisions of a Statement of Principle (SoP) had been considered in this Court by Heerey J at first instance in Deledio v Repatriation Commission (1998) 47 ALD 261 and on appeal by a Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82. In its judgment, the Full Court (Beaumont, Hill and O’Connor JJ) said at 97 - 98:
‘ … we would restate the course which the Tribunal is to take in a case, such as the present, (i.e. one involving a claim to be decided after the 1994 Amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person as follows:
1.The Tribunal must consider all the material which is before it and determine whether that material points to an hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11) [of the 1986 Act].. If no such SoP is in force, the hypothesis will be taken not be reasonable and, in consequence, the application must fail.
3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by s 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not be ‘reasonable’ and the claim will fail.
4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.’”
17. There is evidence that the applicant suffered an injury to his back whilst on operational service in 1965. There is also evidence that the applicant suffers from intervertebral disc prolapse. Accordingly, in respect of both conditions, the Tribunal accepts that there is an hypothesis connecting the applicant’s lumbar spondylosis and intervertebral disc prolapse with his operational service in the Royal Australian Navy.
18. Having found that the material does raise an hypothesis, the Tribunal must consider whether the hypothesis is a reasonable one. As stated above, the parties agree that the relevant SoPs in this matter are Instrument No 46 of 2002 in respect of lumbar spondylosis and Instrument No 130 of 1996 in respect of intervertebral disc prolapse.
19. Dealing firstly with lumbar spondylosis, it was submitted on behalf of the respondent that consideration should be had to the definition of “trauma” in paragraph 8 of the SoP. That definition relevantly reads:
“‘trauma to the lumbar spine’ means a discrete injury to the lumbar spine that causes the development, within 24 hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the lumbar spine. These symptoms and signs must last for a period of at least seven days following their onset; save for where medical intervention for the trauma to the lumbar spine has occurred, where that medical intervention involves either:
(a)immobilisation of the lumbar spine by splinting, or similar external agent; or
(b)injection of corticosteroids or local anaesthetics into the lumbar spine; or
(c)surgery to the lumbar spine.”
20. After the evidence, it appeared clear that the more serious of the two incidents related by the applicant as causing injury to his back was the incident whilst carrying the box which occurred first. In this regard, the applicant was examined by Dr Roger Parkington who formed the following opinion (Exhibit 3):
“Mr Armstrong is suffering from mechanical low back pain, which I think is arising from his degenerate L4/5 space. He has undergone a lumbar discectomy for an intervertebral disc prolapse and the L4/5 disc would therefore have been degenerate prior to him undergoing his lumbar discectomy.
His operation has been very successful and all his sciatica has been relieved. He has been left with persistent backache.
Mr Armstrong gives a history of having had a fall during his navy service. I do not think he was seriously injured in this accident and he made a full recovery.
Mr Armstrong suffered a further injury when he strained his back whilst carrying a box. This would appear to have been a more serious injury and he was off his normal duties for ten days. He did require medical attention for that discomfort.
He certainly strained his back and he may well have suffered an intervertebral disc injury on that occasion. He also gives a good history of having had intermittent discomfort in his back since he left the Navy. He was requiring conservative treatment for this prior to undergoing surgical treatment.
In reply to you specific questions:
·The diagnosis is degenerative disease in the lumbar spine.
·The facts as stated by your client are consistent with the history that I was given and my physical findings.
·He does give a history of having suffered a trauma to the lumbar spine and this would have been before the clinical onset of lumbar spondylosis. He therefore appears to me to have satisfied the Statement of Principles.”
21. Clearly, the information provided to Dr Parkington in relation to both injuries was incorrect. Firstly, the latter incident did not occur first and, secondly, the period which the applicant required to recover from the “box incident” was not ten days but rather from 8 March 1965 until he was cleared for normal duties on 13 March 1965, a period of six days only. Accordingly, it is difficult to accept the opinion of Dr Parkington.
22. It is clear from the documents set out at folios 17, 18 and 19 of Exhibit 1 that the applicant was injured on 8 March 1965 when he was placed on light duties. The diagnosis was acute lumbar strain. On 11 March 1965, it appears that a Elastoplast Corset Strapping was applied and his rating was still limited to light duties but on 13 March 1965 the Elastoplast Strapping was removed and it was noted that he had a full range of painless lumbo-sacral movements and he was released for all duties. In the circumstances, having regard to the SoP, the Tribunal is not satisfied that the hypothesis raised is a reasonable one. It does not fit the “template” to be found in the SoP.
23. With respect to the fall from the ladder, it is clear on the medical evidence that this was a minor incident and does not appear to have had any effect on the back condition of the applicant. Accordingly, no reasonable hypothesis is raised in respect of that incident.
24. Accordingly, with respect to the claim for lumbar spondylosis, the Tribunal finds that no reasonable hypothesis is raised and therefore the claim is unsuccessful.
Intervertebral Disc Prolapse
25. The applicant Statement of Principles relating to this claim is Instrument No 130 of 1996 as amended by No 92 of 1997.
26. The minimum factor required pursuant to this SoP is Factor 5(f) which states that the applicant must have smoked at least 30 pack years of cigarettes before the clinical onset of intervertebral disc prolapse. The SoP defines “pack year” as 7,300 cigarettes.
27. In broad terms it was accepted by the parties that this meant 20 cigarettes per day for that number of cigarettes to be consumed within a one year period.
28. In the Smoking Questionnaire provided by the applicant on 28 November 1996 (Exhibit 4), the applicant stated that he first started smoking on a regular basis in 1963. He stated that at that time he was smoking between 15 and 20 cigarettes a day. He stated that he started to smoke because of “peer pressure and if you did not you were the odd man out”.
29. In this questionnaire he stated that he ceased smoking permanently in 1977 and subsequently notes that between 1965 and 1967 the number of cigarettes he smoked per day rose from 20 to 30 a day stating the reason as “on board ship in an operational area”.. The applicant further stated that between 1968 and 1977 he smoked 30 cigarettes a day and gives the reason that “Discharged. Gave it up because of breathing problems”.
30. In his oral evidence the applicant stated that he did not stop smoking permanently in 1977 and that this had been a mistake. He said he has memory problems because of tumours that have been removed from his brain.
31. The applicant referred to a report from Dr Baranowskyj (Exhibit 1, Folio 39) in which he said of the applicant’s smoking:
“It was strongly suggested he give away this practice in view of recurrent bronchitis attacks (and likelihood of further deterioration of airways).”
32. Dr Baranowskyj also noted that the applicant was a heavy smoker consuming between 30 and 40 cigarettes a day as well as a pipe. Counsel for the applicant submitted that:
“His lack of memory and dates was explained by the applicant because of his two tumour operations which has affected his memory. Also, these incidents are more than 38 years ago and it is sometimes hard to remember exact details of the incidents. It is submitted the decade he gave up smoking can be pinpointed by the acupuncturists report.”
33. Dr Bruce Hall wrote a report (Exhibit 1, folio 25) where he states:
“On 7th of February 2000 he underwent a right L4,5 micro discectomy and decompression of the L4 nerve root. The operative findings were a large prolapsed intervertebral disc with a herniated segment projecting superiorly and laterally to compress the L4 nerve root. Post-operatively his sciatica resolved, he was mobilised by the physiotherapists and discharged home after two days.”
34. It was submitted that the applicant satisfied the SoP and therefore a reasonable hypothesis had been raised connecting the intervertebral disc prolapse with the applicant’s war-caused.
35. There is evidence as presented to the Veterans’ Review Board that the applicant had an established smoking habit prior to operational service (Exhibit 1, folio L). There are a number of other anomalies in the evidence. However, having regard to the totality of the evidence, the Tribunal prefers the following evidence with respect to the applicant’s smoking.
36. The applicant ceased pipe smoking in 1971 just before he got married (Exhibit 2). The applicant had an established smoking habit prior to operational service.
37. Smoking increased slightly during operational service and continued until at least 1977. The Smoking Questionnaire notes that Mr Armstrong ceased smoking in 1977. He filled this out in November 1996. In September 1998, Dr David McEvoy notes that:
“Mr Armstrong smoked from 1963 – 1977, averaging 15 cigarettes daily but on occasions smoking up to 30 cigarettes daily.”
38. The Tribunal accepts this evidence. The evidence of Dr Baranowskyj seems inconsistent, however, the Tribunal discounts the report on the basis that Dr Baranowskyj does not say that Mr Armstrong was smoking in 1986. He stated:
“It was noted he was a heavy smoker – approximately 30-40/day as well as a pipe.”
39. Dr Baranowskyj was not called to clarify this evidence.
40. It seems clear from the applicant’s own evidence that he had ceased smoking a pipe well before 1986, in fact, in 1964. This of course makes the report of Dr Baranowskyj even more confusing and unreliable.
41. On the basis that the Tribunal is satisfied that the applicant ceased smoking in 1977, the applicant does not raise a reasonable hypothesis with respect to the minimum factors as set out in the SoP. The Tribunal must be satisfied that the applicant’s hypothesis is consistent with the “template” to be found in the SoP and, accordingly, the applicant’s intervertebral disc prolapse cannot be said to be war-caused. Accordingly, the applicant’s application in respect of this condition is not successful.
Decision
42. The Tribunal affirms the decision under review.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Mr O Rinaudo, Member
Signed: Sarah Oliver
AssociateDate of Hearing 3 September 2003
Date of Decision 3 October 2003
Counsel for the Applicant Ms B Carter-Nicoll
Solicitor for the Applicant Sciaccas Lawyers
For the Respondent Mr B Williams, Departmental Advocate
0
5
0