Bailey and Repatriation Commission
[2007] AATA 2089
•21 December 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 2089
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N 200601176
VETERANS' APPEALS DIVISION ) Re TERRENCE PETER BAILEY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal
Ms N Isenberg, Senior Member
Dr M Thorpe, Member
Date21 December 2007
PlaceSydney
Decision
The Administrative Appeals Tribunal decides that:
· the decision under review in relation to cervical spondylosis is affirmed; and
· the decision under review in relation to lumbar spondylosis is set aside as that condition is war-caused, as defined in section 9 of the Veterans’ Entitlement Act 1986, with effect from 11 March 2006, and the matter is remitted to the Repatriation Commission for assessment.
.................[sgd]...........................
Ms N Isenberg, Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – operational service – claim that injuries were war-caused – consideration of Statement of Principles in relation to cervical spondylosis and lumbar spondylosis – the Tribunal decides that the decision in relation to cervical spondylosis is affirmed, decision in relation to lumbar spondylosis set aside
Veterans’ Entitlements Act 1986 (Cth) - sections 9, 120, 120A and 196A, 196B
Statement of Principles concerning cervical spondylosis No. 33 of 2005
Statement of Principles concerning lumbar spondylosis No. 37 of 2005
Bull v Repatriation Commission (2001) 66 ALD 271
Bushell v Repatriation Commission (1992) 175 CLR 408
Elliott v Repatriation Commission (2002) 73 ALD 377
Hardman v Repatriation Commission (2004) 82 ALD 433
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Deledio (1998) 83 FCR 82
Youngnickel v Repatriation Commission [2004] FCA 1691
REASONS FOR DECISION
21 December 2007 Ms N Isenberg, Senior Member
Dr MEC Thorpe, Member1. The decision under review is the decision of the Repatriation Commission dated 10 May 2005 as affirmed by the Veterans’ Review Board (‘the VRB’) on 9 June 2006 that refused the claim by Mr Bailey (‘the veteran’) that his cervical spondylosis and lumbar spondylosis were related to service.
Background
2. Mr Bailey served in the Royal Australian Navy between 9 January 1958 and 8 January 1964. His ‘operational service’ as defined in the Act was as follows:
HMAS Quickmatch 24 Sep 1958 – 06 Nov 1958
20 Nov 1958 – 08 Dec 1958
HMAS Vampire 23 Jun 1960 – 29 Jun 1960
04 Jul 1960 – 08 Jul 1960
15 Jul 1960 – 22 Jul 1960
29 Jul 1960 – 31 Jul 1960
01 Aug 1960 – 16 Aug 1960
10 Sep 1960 – 13 Sep 1960
18 Sep 1960 – 10 Oct 1960
14 Oct 1960 – 05 Nov 1960
15 Nov 1960 – 30 Nov 1960
HMAS Melbourne 15 Apr 1963 – 08 May 1963
10 May 1963 – 25 May 1963
3. Mr Bailey contended that his neck condition arose as a result of an incident aboard HMAS Quickmatch in 1958 during operational service, and that he injured his back aboard HMAS Vampire in 1960 while on operational service.
Legislative Background
4. Section 9 of the Veterans’ Entitlements Act 1986 (‘the VE Act’) provides for when an injury or disease is taken to be war-caused, and provides, relevantly, as follows:
9 War-caused injuries or diseases
(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;
(b)the injury suffered, or disease contracted, by the veteran
arose out of, or was attributable to, any eligible war service
rendered by the veteran; …
5. Section 13(1) of the VE Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
6. As the veteran had operational service, the determination of whether his claimed conditions are war-caused is to be made by applying sub-sections 120(1) and 120(3) of the VE Act. Those sub-sections require us to find that the veteran’s condition was war‑caused, unless we are satisfied beyond reasonable doubt that there is no sufficient ground for making that finding. We must be so satisfied if we are of the opinion that the material before us does not raise a reasonable hypothesis to connect the veteran’s condition with his service.
7. The Repatriation Medical Authority (‘RMA’) was established under section 196A of the VE Act. If the RMA is of the view that there is sound medical-scientific evidence that indicates that a condition can be related to a veteran’s service, the RMA must determine a Statement of Principles (‘SoP’) (section 196B). The SoP sets out the factors, one of which as a minimum must exist (and which must be related to the veteran’s service) before it can be said that a reasonable hypothesis has been raised connecting the condition with that service. The reference in section 196B(2) to a particular kind of injury, disease or death being ‘related to service’ is expounded in section 196B(14). This provides relevantly, in effect, that a factor causing an injury is ‘related to service’ rendered by a person, if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.
Consideration
8. Where a SoP exists we must apply the test prescribed by section 120A(3) of the VE Act, as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 (‘Deledio’) in the following way:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a 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). ….
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 ss 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 to 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.
Steps 1 and 2: is there a hypothesis and is there a SoP?
9. The hypotheses are that the asserted events, in 1958 and 1960, to which we have referred to above, resulted in Mr Bailey suffering cervical spondylosis and lumbar spondylosis and that those conditions are therefore war-caused.
10. It was not in dispute that the current SoPs relevant to the veteran’s claim are:
·Statement of Principles concerning cervical spondylosis No 33 of 2005; and
·Statement of Principles concerning lumbar spondylosis No 37 of 2005.
Step 3: does the hypothesis conform to the template in the SoP?
11. Under clause 5 of the SoP for cervical spondylosis, at least one of the factors set out in clause 6 must be related to the relevant service (being in this case operational service) by the veteran.
12.The veteran’s case relied on factor 6(g) as follows:
(g) having a trauma to the cervical spine before the clinical onset of cervical
spondylosis
‘Trauma to the cervical spine’ is defined in the SoP as:
a discrete injury, including G force-induced injury, to the cervical spine that causes the development, within twenty-four hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the cervical 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 cervical spine has occurred and that medical intervention involves either:
(a) immobilisation of the cervical spine by splinting, or similar external agent; or
(b) injection of corticosteroids or local anaesthetics into the cervical spine; or
(c) surgery to the cervical spine.
The factor for lumbar spondylosis is in corresponding terms.
13. The third step of Deledio entails determining whether the relevant hypothesis complies with one or more of the factors referred to in the relevant SoP. This step involves considering all of the material before us, but without making any findings of fact at this stage of the process. The history given by a veteran to a medical practitioner can constitute material before the Tribunal for this purpose: Lees v Repatriation Commission (2002) 125 FCR 331.
14. We must consider all of the material before us, whether or not that material supports the hypothesis: Bull v Repatriation Commission (2001) 66 ALD 271, Hardman v Repatriation Commission (2004) 82 ALD 433, and Elliott v Repatriation Commission (2002) 73 ALD 377. In the last of these cases Stone J, likened the decision-maker’s task to striking out a statement of claim as failing to disclose a course of action, where no consideration is given to whether the facts pleaded can be substantiated.
15. A ‘reasonable hypothesis’ involves more than a mere possibility: Repatriation Commission v Bey (1997) 79 FCR 364.
16. As to clinical onset, there was no dispute that the clinical onset of Mr Bailey’s neck and back conditions was after his operational service.
Neck condition
17. Mr Bailey gave evidence that he hit his head on the edge or the clip of a watertight door when proceeding quickly in response to an (exercise) call to action stations. He could not recall when exactly it had occurred, it might have been during his Far East Strategic Reserve service. He had been in his mess and was moving to his action stations in the ‘ops room’. He demonstrated that he struck the right side of his head above the forehead. There was no laceration or blood but there was a bump. He fell to the ground but did not know how long he might have been there. At the time there were others moving to their action stations but he did not know if he was helped up. He undertook his role at action stations but when it had finished he felt ‘sick and sorry’ for himself, meaning, he said, he had a sore head. However, he did nothing and went about his duties. He had a headache, which he demonstrated as being on the right forehead and he took a ‘Bex’ which he had in his own locker. He said he had no other symptoms. He was able to go ashore a couple of days later, where, he agreed, he ‘painted the town red’ and he could not recall if the headache continued during that time. He could not recall if while on shore leave there was any limitation in his neck movement as there was ‘a lot of drinking’. In the following days he was also able to undertake his normal duties.
18. He had decided not to go to sick bay because it might jeopardise his shore leave, although he would have attended sick bay if something was ‘seriously wrong’ such as a dog bite or tonsillitis or social diseases. He agreed these were ‘no comparison’ with his head injuries.
19. Mr Bailey was shown a copy of a Claimant Report – Trauma to the Neck Cervical Spine With Facet Joints Osteoarthritis, which had been signed, but not completed, by him in 2005. There, in relation to his neck injury, it was written:
During action stations, struck head on a hatchway. Had pain and stiffness in neck for 7-10 days after. Recent MRI shows calcified lump on top of head which resulted from this trauma.
20. Upon refreshing his memory from the document he said that the stiffness in his neck was not immediate, but in the days following the incident. At the conclusion of the seven to ten days he thought the condition was ‘generally resolved’ and he was as he was beforehand. One ongoing effect was an inability to lie on his stomach.
21. He could not recall when after his service he noticed problems with his neck or when he first sought treatment for it. He attended the doctor infrequently. Mr Bailey agreed he had told Dr Smith that his first problems were 15 years ago.
22. Dr Shatwell, orthopaedic surgeon, took a history from the veteran, that he struck his forehead and had almost knocked himself out. He said he was very dazed and had headache and neck pain. He had ‘feelings of sickness and pain in the root of the neck for about one week which slowly improved with the passage of time’.
23. Dr Smith, orthopaedic surgeon, recorded a history that following the incident the veteran was dizzy and had neck pain and headaches, but that he took a Bex and ‘recovered after a short period’. His recollection was that the veteran said that then he ‘forgot it’. Dr Smith wrote in his report that when Mr Bailey hit his head he could have suffered a neck injury, although he did not think this was responsible for the present x-ray appearance.
24. Dr Giblin, orthopaedic surgeon, took a history that the veteran had struck his head and he was knocked flat onto his back. Mr Bailey told Dr Giblin that he ‘picked himself up and made his way to his action stations’. He ‘shut up and put up’ and never reported the incident, taking only the occasional Bex. The neck largely got ‘about 95% better’ although he favoured his neck if there was heavy lifting. The doctor‘s view was that Mr Bailey had suffered a soft tissue injury to the cervical spine.
25. Dr Giblin’s evidence was that when Mr Bailey struck the front side of his head there was a sudden and unexpected transmission of force to cervical spine. He said the soft tissue injury would have compromised the disc. He said that the veteran‘s cervical spondylosis was a product of both the ‘trauma’ and age.
26. The question for us at this stage is therefore: is there material pointing to each element of the factor?
27. Each element of the hypothesis must be raised by the material: Youngnickel v Repatriation Commission [2004] FCA 1691. Whether a hypothesis is consistent with a factor in the Statement of Principles requires an examination of the totality of the material, and every essential element of the factor must be pointed to by that material.
28. There was no discernable case law to assist us as to the meaning of a discrete injury to the cervical spine in the trauma definition. There was no material before us pointing to the veteran having suffered a blow to the neck region. On the contrary, the veteran himself demonstrated at every opportunity, and told the medical specialists to whom he was referred, that he had struck his forehead, or the side of his head. On the other hand, both Dr Smith and Dr Giblin were of the view that when Mr Bailey hit his head he could have suffered a neck injury. This is material which points to the veteran having suffered an injury to the cervical spine. It should be noted that there was no contention that the veteran had struck his head in 1960 during the fall down the ladder about HMAS Vampire (see paragraph 33 below).
29. By the time Mr Bailey concluded his role at action stations in the hours after the accident he had a sore head, for which he took a headache powder, but no other symptoms. He could not recall if the headache continued or if there was any limitation in mobility or range of movement of his neck. He was able to go on shore leave and then to undertake his normal duties. On the basis of his evidence there was no material pointing to the development within twenty-four hours of the injury being sustained, symptoms and signs of pain or tenderness in the cervical spine. Further, there was no material pointing to the development within twenty-four hours of the injury being sustained, either altered mobility or range of movement of the cervical spine.
30. There was, some material pointing to the pain in the neck lasting for seven days.
31. Therefore, we have come to the view, without making a finding of fact, that every essential element of the hypothesis is not pointed to by the material before us. A reasonable hypothesis therefore has not been raised.
32. By virtue of section 120(3) of the VE Act, we must find beyond reasonable doubt that there is no sufficient ground for determining Mr Bailey‘s cervical spondylosis was war-caused. As a result, his claim for pension in respect of that condition must fail.
Back condition
33. Mr Bailey gave evidence that while serving on HMAS Vampire during his operational service he was returning to his mess from the shower when his feet ‘went out from under him’ and he fell down steel steps – a distance of about two metres. He slid, landing at the bottom of the stairs. He could not recall what part of his body came into contact with the stairs or the ground. He had a sore back, in the centre, just above the belt line. He was unable to describe his symptoms, but said he went to lie down on his bunk. He could not recall how long he had a sore back. He could not recall if his ability to walk was affected. He said that although he did not go to sick bay he was ‘sick and sore’ for a week or so. By that, he said, he meant, he had a ‘few aches and pains and a bit of stiffness’. He said he took a few painkillers, such as Panadol. In the following week, he did not think he was able to work as hard as usual, although he could not recall what tasks he was doing. He said he did not attend the sick bay because he was protecting his shore leave and did not want to be seen as a ‘wimp’. He never contemplated getting a ‘chit’ for light duties. He thought his back improved after about a week, but the symptoms never completely went away, especially if he had to lift something heavy.
34. In his statement, dated 14 February 2005, he wrote that his lower back felt painful initially and by the next day it had become stiff as well. He wrote that in the week or so that followed he continued to have pain and stiffness in his back.
35. He thought he had his first x-ray of his back in 1967 after his back ‘went’ on him while gardening. He had symptoms prior to that – in 1962 – when he was unable to get out of bed. In his work after the Navy he avoided heavy work. Although he was later in the removalist business, he was an estimator and rarely had to do any lifting himself. On the rare occasions he had to physically help out he ensured he used a trolley. His subsequent jobs were picking and sorting tomatoes and then waterproofing bathrooms. He denied that those jobs caused any problems with his back, although his back was sore at the end of the working day.
36. Dr Giblin took a history from the veteran about slipping down the ladder. Mr Bailey told him he went to lie down on his bunk and did not report the incident for fear of jeopardising his shore leave or his promotional prospects. The back improved – to about 95 per cent - but ‘he would still get an occasional twinge with twisting or repetitive lifting’. Dr Giblin wrote that Mr Bailey had suffered a soft tissue injury to the lumbar spine, which in his evidence, he clarified to actually mean a disc lesion.
37. Dr Smith considered that if Mr Bailey had suffered a disc lesion, this would produce quite severe pain into the leg and buttock, lasting, perhaps, as long as a month. Dr Smith would have expected him to be confined to bed and to be medicated. Dr Smith wrote, that the veteran told him that he had ‘rested for a while and recovered fairly quickly’. (He said his notes recorded Mr Bailey had said ‘two days’). The veteran agreed that he had told Dr Smith that. Dr Smith thought even a week would be a quick recovery. He said he could ‘not rule out’ the veteran’s back condition being the result of trauma. He agreed that it was consistent with the history given by the veteran that he was never totally asymptomatic from that time.
38. Dr Shatwell wrote that the veteran told him he had ‘stuck his lower back and the back of his head’ in the fall and initially had severe pain. He rested on his bunk and took analgesics for about a week.
Is there material pointing to each element of the factor?
39. There is material which points to the veteran having suffered a discrete injury to the lumbar spine in that he fell down steel stairs. On the basis of his evidence, there was material pointing to the development within twenty-four hours of the injury being sustained, symptoms and signs of pain or tenderness in the lumbar spine. Further, there was material pointing to the development within twenty-four hours of the injury being sustained, either altered mobility or range of movement of the lumbar spine.
40. There was some material pointing to the pain in the lumbar spine lasting for seven days.
41. Therefore, we have come to the view, without making a find of fact, that every essential element of the hypothesis is pointed to by the material before us. A reasonable hypothesis therefore is raised.
Step 4: can we be satisfied beyond reasonable doubt that Mr Bailey’s back condition was not war caused?
42. We now turn to the fourth stage of the Deledio process. This involves making findings of fact from the material before us. Section 120(1) of the VE Act provides that the claim will succeed, unless we are satisfied beyond reasonable doubt that there are no sufficient grounds for determining that the veteran’s condition was war-caused. If we are not so satisfied, Mr Bailey’s claim must succeed by virtue of section 120(1) of the VE Act. In examining this question, we note that there is no onus of proof: section 120(6) of the VE Act, and Bushell v Repatriation Commission (1992) 175 CLR 408.
43. There was no evidence to contradict Mr Bailey’s contention that he fell down stairs aboard HMAS Vampire in 1960 while he was on operational service and that he struck his lower back. There was pain such that he then had to go and lie on his bunk. Stiffness, which we accept is synonymous with altered mobility, came on the next day. This is consistent with his evidence that he was unable to fully undertake his duties. His back improved after about a week, but he was never entirely asymptomatic and from that time he avoided heavy work. There was no evidence that his later jobs – as a removalist estimator and later, picking and sorting tomatoes and then waterproofing bathrooms – gave rise to his condition.
44. While Dr Giblin was of the view that Mr Bailey was likely to have suffered a disc lesion, Dr Smith considered Mr Bailey’s symptoms not to match those to be expected: he would have anticipated that Mr Bailey would have been confined to bed, had severe pain into the leg and buttock and would have taken about a month to recover. In the end result, Dr Smith could ‘not rule out’ that Mr Bailey’s back condition had resulted from trauma. Although his notes recorded Mr Bailey had said he had improved after ‘two days’, he conceded that his clinical findings were consistent with the history given by the veteran, that he was never totally asymptomatic from that time.
45. We find that Mr Bailey’s evidence as to the incident, and the evidence as to its aftermath in accordance with the relevant factor, have not been disproved beyond reasonable doubt.
Conclusion
46. For the above reasons, we are not satisfied beyond reasonable doubt there is sufficient ground for determining that the condition of lumbar spondylosis was not war-caused. We must accordingly determine, by virtue of section 120(1) of the VE Act, that Mr Bailey’s lumbar spondylosis was war-caused.
Decision
47. For the above reasons, we affirm the decision under review in relation to cervical spondylosis.
48. In relation to lumbar spondylosis, the decision under review is set aside and the Tribunal decides that that condition is war-caused as defined in section 9 of the VE Act with effect from 11 March 2006. That matter is remitted to the Repatriation Commission for assessment.
I certify that the 48 preceding paragraphs are a true
copy of the reasons for the decision herein of Ms N Isenberg, Senior Member and Dr MEC Thorpe, Member.Signed: ...................[sgd].....................
AssociateDate of Hearing 14 November 2007
Date of Decision 21 December 2007
Counsel for the Applicant M Perry
Advocate for the Respondent G Purcell
0
12
0