Barlow and Repatriation Commission

[2003] AATA 145

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 145

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2001/371

VETERANS APPEALS DIVISION		)
Re		HUGH BARLOW

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member K L Beddoe

Date14 February 2003 

PlaceBrisbane

Decision

The Tribunal decides that:

(a)     the decision under review is set aside;

(b)     the condition Lumbar Spondylosis is a war-caused disability;

(c)     the date of effect of this decision is 7 July 1999; and

(d)     the matter is remitted to the respondent for assessment.

(Sgd) K L Beddoe
   Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – lumber spondylosis – diagnosis - whether reasonable hypothesis can be raised connecting veteran’s back condition with his war service

Veterans’ Entitlements Act 1986

REASONS FOR DECISION

14 February 2003  Senior Member K L Beddoe         

1.      The respondent refused the applicant’s claim for disability pension in respect of intervertebral disc prolapses at L3-4, L4-5, L5-S1. The respondent also considered Lumbar Spondylosis as a diagnosed condition.  That decision was subsequently affirmed by the Veterans’ Review Board.

2.      The applicant, who was born on 14 July 1940, had two periods of service with the Royal Australian Air Force. He first enlisted 3 February 1958, at age 17, and served until 1 November 1973.  The latter period of that service, from December 1972, was eligible defence service which included service at Butterworth, Malaysia.  During this period of service he had operational service in Thailand from 24 February 1966 to 26 August 1966. The applicant’s second period of service was from 16 October 1981 to 4 June 1993.  That period of service was eligible defence service.  It appears to be reserve service because the applicant was also in civil employment during this time (Exhibit 1).

3. At the hearing Mr Honchin appeared for the applicant and Mr Stoner represented the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the “T” documents and further documents were tendered and marked as exhibits.  Oral evidence was given by the applicant.

4.      At the conclusion of the hearing the matter was adjourned to allow the parties to make further written submissions.  Those written submissions have been taken into account.

5.      While at Ubon (Thailand), the applicant was mustered as a linesman responsible for the maintenance of cables, telephone systems and radio antenna on the RAAF Base.

6.      In April 1966 he was working on replacement of an airport cable.  In this work he was assisted by the radio technicians and a general hand.  Difficulties arose when trying to pull the new cable through a cable duct under the airport taxiway.  In the event the new cable was eventually being drawn through the cable duct with a draw wire which then folded back onto the taxiway.

7.      The approach of two Thai propeller driven aircraft caused the applicant to scramble to remove the draw wire from the taxiway.  He succeeded in this but fell down the other side of the taxiway onto his back hitting the edge of the duct as he fell down the side of the taxiway.

8.      He said that he attended the medical orderly for treatment, in the absence of the medical officer, was put on light duties and rest for two weeks receiving superficial treatment during this time.  The applicant said that he attended the medical officer on or about 27 April 1966, who investigated his injury and provided treatment.  In cross-examination he said that it was not true that he attended the medical officer at that time for the accident but did attend for investigation of a sore back and kidney disease.  His evidence does satisfy me he had a sore back for more than a week after the accident.

9.      The applicant said he was a casual smoker prior to enlistment and posting to Ubon.  He said that American cigarettes were plentiful and cheap there.  His use of cigarettes increased from 20 per fortnight to 200 per week while at Ubon.  The applicant’s written submission includes a smoking history which I accept is a reasonable summary of the applicant’s smoking history.

10.     Consumption of cigarettes is calculated at 282,000 cigarettes for the period February 1966 to 1998 when the applicant finally ceased smoking.  That is 38 pack years.

11.     In September 1997 the applicant made the following claims in relation to disability pension and medical treatment:

(a)Back condition, accident – electrocution – Butterworth – became aware in 1972

(b)Solar Keratosis – severe solar exposure in Ubon

(c)Hearing loss with Tinnitus – severe noise exposure during service

(d)Dermatitis on back – began during Ubon service.

12.     The claims at (b) and (c) were accepted by the respondent.  The other claims were refused.

13.     The back condition claim had previously been refused because the incident at Butterworth occurred in March 1972 that is outside the period of eligible defence service.

14.     Lumbar Spondylosis L4/5 was accepted as compensible by this Tribunal (Deputy President Breen) on 26 May 1997 as being attributable to the accident at Butterworth. Liability was accepted under the Safety, Rehabilitation and Compensation Act 1988. The Tribunal noted a previous history of back pain which it attributed to “different causes, including, on most occasions, renal conditions” (see Exhibit 1 at p 16: transcript of oral decision of Deputy President Breen (Q1995/547)).

15.     In a decision (undated but probably made in 1976) a Repatriation Board found a medical history relating to low back pain commencing with an X-Ray report 20 June 1967.  The report was “no abnormality detected, all disc spaces and above S-1 joints appear normal”.  No further report is noted until 6 March 1972 (folio 14 T documents and Exhibit 1).

16.     Exhibit 1 includes a copy of a report by Dr Lewis, orthopaedic surgeon, dated 7 November 1990 which includes the following statement:

“Mr Barlow states that his back problem began in 1972 when he was electrocuted while working for the Air Force in Malaya.”

In his oral evidence the applicant agreed the veracity of Dr Lewis’ statement.

17.     In a smoking questionnaire signed 1 September 1990, the applicant said that he commenced smoking regularly at age 19 being ten cigarettes per day, which increased during service and decreased after discharge.  He said he gave it up in 1977 (T4/18).  In a further questionnaire dated 4 October 1999, the applicant said he started smoking cigarettes on a regular basis from March 1966 and said he smoked twenty cigarettes per day.  He said he started to smoke on a regular basis because of “stress of service and to help relieve the boredom”.  He said he stopped smoking in January 1998 (T4/31). 

18.     The applicant explained the inconsistency in his responses to the smoking questionnaires in a letter dated 4 December 1999.  The facts asserted in that letter are inconsistent with the responses in each of the smoking questionnaire (T3).

19.     In his oral evidence the applicant said he started smoking in 1979, changed that to 1959 and later said 1960 but only about one packet per fortnight.  He said that consumption increased to 200 per week in March 1966 because cigarettes were cheap at Ubon.  After Ubon he was smoking 200 cigarettes per fortnight and he ceased smoking in 1977, but only for a short period, and then resumed later in 1977.

20.     In re-examination the applicant said the discrepancies in his reporting of his smoking history reflected that he did not keep records of his smoking and his answers depended on what he was doing at the time.

The Medical Evidence

21.     Dr Watson, Spinal Pain Unit, Townsville Hospital, made a report to the applicant’s general practitioner, Dr Leong, dated 6 April 1998, in which he diagnosed “Discogenic pain”  (T4/19-20).  Dr Watson recommended CT scan of the lumbar spine.

22.     That scan was reported on by Dr Boles in a report dated 14 April 1998 (T4/21).  Dr Boles diagnosed degenerative L3-4, L4-5 and L5-S1 disc spaces and facet joints with diffuse annular bulging of the L3-4 and L4-5 discs.

23.     Dr Low, Orthopaedic Surgeon, reported to Dr Leong in a report dated 20 April 1998.  Dr Low’s opinion was that the applicant had mechanical back pain from multiple levels of degeneration.  In a letter to the solicitors for the applicant, dated 29 May 1998, Dr Low said the applicant had age-related changes in the lumbar spine for which he is predisposed.  He thought the condition would have been temporarily aggravated (T4/22-23).

24.     With the benefit of these reports Dr Leong diagnosed prolapsed intervertebral discs at L3-4, L4-5 and L5/S1 (T4/28).

Consideration

25.     Two separate and quite distinct hypothesis are said to be raised:

(a)The trauma of the incident on the taxiway at Ubon was such that the subsequently diagnosed condition of Lumbar Spondylosis was caused by or aggravated by the trauma of falling onto the conduit; or

(b)The smoking history reflects a substantial increase in use of tobacco while on operational service resulting in the diagnosed condition of Intervertebral Disc Prolapse.

26.     It is sufficient, as I understand it, that, subject to accepting the diagnosis of the condition, that accepted diagnosis being attributed to operational service will satisfy the applicant’s claim.

27.     While he does not say as much, I am satisfied that Dr Low diagnosed Lumbar Spondylosis, as did Dr Boles.  Both described degeneration of the lumbar spine so as to justify a diagnosis of Lumbar Spondylosis as defined in Instrument No 27 of 1999.

28.     According to the raised facts, the applicant suffered a trauma to the lumbar spine while on operational service in the incident on the taxiway at Ubon.  “Trauma to the lumbar spine” has a defined meaning for the purposes of Instrument 27 of 1999.  In particular there must be acute symptoms and signs of pain and tenderness with altered mobility or range of movement of the lumbar spine lasting for at least seven days. The applicant agrees there was no significant medical intervention in his case.

29.     While it is apparent from the material that the applicant is a poor historian.  I accept that the material raises an hypothesis that he suffered the acute symptoms to his back for a period after the accident likely to be at least seven days.

30.     It follows that there was a trauma to the lumbar spine as defined in the Statement of Principles. It also follows that the accident at Ubon resulted in the applicant suffering a trauma to the lumbar spine before the clinical worsening of Lumbar Spondylosis related to the applicant’s operational service.

31.     The result is that I am satisfied there is a reasonable hypothesis within the terms of Instrument No 27 of 1999 because the hypothesis is consistent with the template in the Instrument.

32.     There is no basis for finding that the accident did not take place on the taxiway at Ubon.  Nor, on balance, is there any basis for being satisfied, beyond reasonable doubt, that the applicant did not suffer acute symptoms and signs of pain and tenderness which lasted for at least seven days.

33.     I have not overlooked the decision of the Tribunal in the compensation matter.  I am satisfied that decision is not a basis for being satisfied beyond reasonable doubt that the Lumbar Spondylosis did not arise from the applicant’s operational service.

34.     If I had been required to decide the claim for the alternative diagnosis by Dr Leong of Intervertebral Disc Prolapse I would not have been satisfied that the raised fact of the smoking history satisfies the Statement of Principles.

35.     The decision under review will be set aside.  There will be a decision accepting the diagnosed condition Lumbar Spondylosis as war-caused with effect from 7 July 1999.  The matter will be remitted to the respondent for assessment.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K L Beddoe

Signed:         .......................................................................................
  Associate

Date of Hearing  21 May 2002 (at Townsville)
Date of Decision  14 February 2003

Counsel for the Applicant         Mr D Honchin
Solicitor for the Applicant          Purcell Taylor Lawyers
For the Respondent                  Mr J Stoner, Departmental Advocate