Bartos and Repatriation Commission
[2000] AATA 872
•29 September 2000
DECISION AND REASONS FOR DECISION [2000] AATA 872
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/1756
VETERANS APPEALS DIVISION )
Re JOSEPH CHARLES BARTOS
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms G Ettinger - Senior Member
Date29 September 2000
PlaceSydney
Decision The Administrative Appeals Tribunal affirms the decision of the Repatriation Commission dated 9 December 1997 as varied and affirmed by the Veterans' Review Board on 26 October 1999 to refuse the Applicant's claim that his spondylolysis at L4-5 and L5-S1 and spondylolisthesis of L5-S1 were war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986.
..............................................
Ms G Ettinger
Senior Member
CATCHWORDS
Veterans Appeals - whether spondylolisthesis arising out of pre-existing spondylolysis - whether injury a severe high energy trauma - decision under review affirmed
LEGISLATION
Veterans' Entitlements Act 1986 ss 9, 119, 120(1), 120(3), and 120A.
STATEMENT OF PRINCIPLES
Repatriation Medical Authority Statement of Principles Instrument No.15 of 1997
CASE LAW
Byrnes v Repatriation Commission (1993) 177 CLR 564
Deledio v Repatriation Commission (1997) 47 ALD 261
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Keeley (2000) 31 AAR 150
REASONS FOR DECISION
29 September 2000 Ms G Ettinger Senior Member
The Administrative Appeals Tribunal ("the Tribunal"), had before it the decision of the Repatriation Commission dated 9 December 1997 (T2) which refused the claim of Mr Joseph Charles Bartos, the Applicant, that his bilateral pars interarticularis defects with spondylolisthesis of L5 was war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986 ("the Act"). The Veterans' Review Board ("VRB") on 26 October 1999 (T23), varied the characterisation of the condition to spondylolysis at L4-5 and L5-S1 and spondylolisthesis at L5-S1, and affirmed the decision of the Repatriation Commission that the condition was not war-caused pursuant to section 9 of the Act.
The Applicant, Mr Joseph Charles Bartos, was represented by Mr B Winship of Rockliffs Solicitors, and the Respondent by its advocate, Mr P Godwin.
ISSUES BEFORE THE TRIBUNALThe issue before the Tribunal was whether the Applicant's spondylolysis at L4-5 and L5-S1 and spondylolisthesis at L5-S1 were war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986 ("the Veterans' Act").
LEGISLATIVE FRAMEWORKThe relevant legislation in relation to this matter was the Veterans' Entitlements Act 1986 in particular section 9. Section 9 provides:
"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;
…"
The standard of proof for the operational service given to his country by the Applicant between 30 April 1966 and 5 October 1966, and 20 January 1969 and 12 January 1970 is that of the reasonable hypothesis, applying sections 120(1) and 120(3) of the Veterans' Act. It was noted that Mr Bartos also served on eligible service.
"120 Standard of proof
(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.
Note: This subsection is affected by section 120A.
…..
(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.
Note: This subsection is affected by section 120A.…"
In the review of Mr Bartos' application, I was bound to apply section 120A of the Veterans' Act because the Veteran's application was lodged after 1 June 1994. Hence, the Repatriation Medical Authority ("RMA"), Statements of Principles ("SoPs") produced pursuant to section 196B of the Veterans' Act applied.
"120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b)a claim under Part IV that relates to:
(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B (2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3)For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B (2) or (11); or
(b)a determination of the Commission under subsection 180A (2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B (2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)the kind of injury suffered by the person; or
(b)the kind of disease contracted by the person; or
(c)the kind of death met by the person;
as the case may be."
For the sake of completeness, I noted that when the Repatriation Commission made its decision, it did so on the basis that: "the RMA has not yet issued a Statement of Principles for Bilateral pars interarticularis defects with spondylolisthesis of L5" (T2/3). The Repatriation Commission decided to refuse the Veteran's claim on the evidence before it. I noted however that Instrument No.15 of 1997 concerning Spondylolisthesis and Spondylolysis was in effect from 20 February 1997, and could have been applied had Mr Bartos' diagnosis been differently characterised.
After examining the evidence before it, the Repatriation Commission nevertheless found that the:
"… circumstances of this case do not satisfy the Statement of Principles issued by the RMA in respect of Bilaterial pars interarticularis defects with spondylolisthesis of L5. As a result I find that all the evidence does not raise a reasonable hypothesis connecting Bilaterial pars interarticularis defects with spondylolisthesis of L5 and operational service." (T2/4).
Upon appeal to the Veterans' Review Board, the Applicant's claim for bilateral pars interarticularis defects with spondylolisthesis of L5 was varied to a diagnosis of spondylolysis at L4-5 and spondylolisthesis at L5-S1. The VRB then refused his claim on the basis that he did not fulfil the requirements of Instrument No.15 of 1997 concerning Spondylolisthesis and Spondylolysis.
For the purposes of the Applicant's claim, the Statement of Principles Instrument No.15 of 1997 defines spondylolisthesis and spondylolysis as follows:
"'spondylolisthesis' means forward displacement of one vertebra over another, attracting ICD code 738.41 or 756.12; and
'spondylolysis' means a defect of or fracture, unilateral or bilateral, involving the pars interarticularis of a vertebra, attracting ICD code 738.41 or 756.11. The pars interarticularis is that part of the vertebral arch that extends between the superior and inferior articular processes."
In considering the matter, and the relevant SoP to apply, I was bound by the recent Federal Court decision in Repatriation Commission v Keeley (2000) 31 AAR 150, and was required to take into account Mr Bartos' accrued rights.
The parties agreed, and I accepted, that if the Applicant were successful, the earliest date of effect in this matter was 9 April 1997.
EVIDENCE BEFORE THE TRIBUNALThe Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and the following exhibits:
ITEM DATE NAME
Medical Report of Dr J Ellis 11 June 1999 Exhibit A1
Medical Report of Dr K Koller 16 February 2000 Exhibit A2
Medical Report of Dr J Ellis and annexures 27 March 2000 Exhibit A3
Statement of Joseph Charles Bartos July 2000 Exhibit A4
Applicant's Statement of Facts and Contentions 19 July 2000 Exhibit A5
Diagram drawn by the Applicant illustrating the incident with the stove Exhibit A6
Curriculum Vitae of Dr J Ellis Exhibit A7
T-Documents together with Supplementary T-Documents 18A, 112-117 and 26A-26Q Exhibit R1
Medical Report of Professor P Sambrook 8 March 2000 Exhibit R2
Medical Report of Professor P Sambrook 2 August 2000 Exhibit R3
Report of Mr C Ducker 7 August 2000 Exhibit R4
Respondent's Statement of Facts and Contentions 8 August 2000 Exhibit R5
Oral evidence was given by the Applicant, Mr Bartos, Dr J Ellis, Orthopaedic Specialist and Professor Sambrook, Rheumatologist.
EVIDENCE OF THE APPLICANT, MR JOSEPH CHARLES BARTOSThe Applicant, whose statement dated July 2000 was before the Tribunal as Exhibit A4, gave oral evidence. His date of birth was 12 April 1943. I noted that the Applicant had served on operational service in Vietnam from 30 April 1966 to 5 October 1966, and 20 January 1969 to 12 January 1970 and then on eligible service from 7 December 1972 and 1 November 1987.
Mr Bartos told me that he enlisted on 13 May 1960 and had an
Army medical examination at which time he had no aches and pains. He said that he played sport and had basic army training in New South Wales followed by a transfer to the catering corps. At Ingleburn he was based at the cooking school, and eventually promoted to the rank of Corporal. He was involved in other training and service prior to undergoing six months of jungle training before being sent to Vietnam. There he served as a cook both at Vung Tau and Nui Dat, the latter Australian base having previously been a rubber plantation.Mr Bartos gave evidence that when setting up the unit's kitchen, he was in the support company and was present to receive the stoves which were shipped to the base. He said they each weighed over 360 pounds, but that for purposes of moving them, they were partially dismantled so that the pots and pans were moved out, and the cabinet was stripped. He said that each stove then weighed a manageable 70 kilograms, approximately. The stripped stoves could then be slid off trucks, and across to move them he said.
Mr Bartos gave evidence that in June 1966 when unloading one such cabinet which had not been stripped properly, that is, it still had its top section attached and hence, its centre of gravity moved, it had "tipped up" onto him. He said he anticipated the fall and went down onto his knees and arched his back. Others helped he said, but the result was he felt a sharp pain in his lower back, three inches above the sacrum. Mr Bartos said he thought it was a muscle pain such as one would have after football, and that it would go away. Mr Bartos also said that he went to the medics tent; there was no doctor present but that the corporal said it was a muscular injury and gave him some cream to rub on his back three times daily. I noted the evidence that the hospital was thirty miles away at Vung Tau and no record was made of his visit to the medics tent.
When cross-examined about his participation in the unloading of equipment after the incident with the stove which he had described, Mr Bartos said that he was shaken, and that it took him some time to compose himself, but that he then directed others as to unloading, because he had to decide the layout of the kitchen and help prepare the meal for that night. He described the cooking, which he said was not heavy work because the American rations being used were all pre-cut and pre-packaged. He also described how certain jobs could be done sitting down.
Mr Bartos said that following the incident, he had difficulty walking so he made a wooden staff about six foot tall out of a rubber tree and used it for support for about a month until it fell apart. He said that by then he was "near normal". Mr Bartos said that his nickname at that time was Gandalf, noting that this was the name of the wizard in books by Tolkien. He also said that the unit was in an area vulnerable to attack and was just being set up, so that unless one had broken bones or was bleeding, one just kept on working. In addition, he had the pressure of promotion to sergeant ahead, with more income and housing advantages down the track. He said further that he had recently married and the worst thing on one's report would be a notation to the effect one had worried about one's own needs rather than those of the group.
In cross-examination, Mr Bartos was asked why he did not mention his back when he was being treated for tonsillitis on 15 June 1966 (T26J). He replied that there was a big difference between a little muscular pain and tonsillitis.
I noted that some two or three months later, in approximately October 1966, Mr Bartos was hospitalised in Vung Tau for treatment an ear infection, and was later returned to Australia as a medical evacuation. The clinical notes dated 5 October 1966 recorded matters relating to the ear infection and on a separate line there was an entry reading: "no other worries" (T26P). There was no mention of his back in this medical record. His explanation in reply in cross-examination for not mentioning his back was that on that occasion his head and ear hurt, and he didn't think of anything else. Besides he said, when resting, he felt no pain in his joints or back.
A further medical record of examination of Mr Bartos dated 31 October 1966 at T18A of the Supplementary T-documents showed that he had had a resection of the toe nail of his right great toe. Item 42 on that record had been completed to indicate the condition of his spine as "normal". When questioned about it, Mr Bartos said that the examination was to clear him with regard to his "medevac." When Mr Godwin asked Mr Bartos why he mentioned his toenail but not his spine, Mr Bartos said that it was a question related to his feet, and that he answered accordingly.
Mr Bartos gave evidence that following his convalescence, he worked as a sergeant cook at Duntroon from October 1967. He said that he was bored there so agreed to return to Vietnam for another twelve months. Mr Bartos said that this time things were better set up and the new stoves were one-third smaller in size, lighter and easier to manage. He also said that he was now in a supervisory position and only had to do heavy work to fill in when needed. Mr Bartos said the only pain he could recall was that: "at times the back was a bit sore."
After serving another twelve months, Mr Bartos was again repatriated with infected ears. He then served as a warrant officer which meant he had a managerial role, writing menus, carrying out training programs, and only did occasional heavy work. He said that he had some lower back discomfort in the same area of the lower back as previously, but attributed it to the occasional heavy work.
Mr Bartos then gave evidence that in 1980 a more rigorous physical training program was introduced. He said that he had the "odd ache in the back" but could do the running and chin-ups. However, he found difficulty in doing the sit-ups at the pace required. Mr Bartos said that when he told the Regimental Aid Post ("RAP") at Ingleburn about his pain, the person there told him everyone was complaining. Mr Bartos told me he had to continue because he had a mortgage and three teenage daughters to support, and did not therefore make any other complaints, or return for referral to a doctor.
I noted that in his final medical examination by the Army on 19 October 1987 (T3/8), item 36 indicated Mr Bartos' back was normal. Mr Bartos' explanation was that at the time his back was not hurting. He said that he did not mention his back because he wanted to return to the Reserves, and that after 30 years of service, one wanted to have a "clean sheet". Besides, he said that he had been told his back pain was muscular in origin.
Mr Bartos then recounted how when he left the Army, he had entered into a small business venture selling fish, and then one involving transport, adding both had been unsuccessful. Mr Bartos said that at that time he had an occasional dull ache at night, but that at present, he was seeking relief by night time, and drinking half a bottle of Scotch whisky to assist with the pain.
Mr Bartos was also asked about a record Dr Ellis had made recording that the back became progressively worse during the last seven years of service. His reply was that this was a different way of piecing together a history, and that it was the sit-ups in the exercise regime commenced in 1980, which aggravated his back.
MEDICAL EVIDENCE
evidence of dr j ellis, orthopaedic surgeonDr Ellis whose reports of 11 June 1999 (Exhibit A1) & (T23/100) and 27 March 2000 (Exhibit A3) were before the Tribunal, gave evidence with regard to his knowledge of the treatment given to Army personnel. I noted his military involvement from his Curriculum Vitae (Exhibit A7), and noted that his reports had been commissioned by both the Applicant and the Respondent.
Dr Ellis said that in the Army doctors were often not the first port of call, and that the standards of the RAP varied greatly. Sometimes it could be that it was well set up, or at other times very rough. He said that unless it was clear a doctor was required, matters were attended to by the RAP. He said that the standard of keeping records varied also, and that when units moved, often their records were destroyed.
I noted that Dr Ellis gave oral evidence regarding spondylolysis and spondylolisthesis, and that in his report at Exhibit A3, he opined as follows:
"It is well known that spondylolysis and indeed spondylolisthesis can be present and symptomless whether because of a developmental disorder or because of some period of stress unrecognised by the patient or his examiners. If the patient with symptomless spondylolysis or spondylolisthesis is exposed to stress of heavy lifting or a sudden traumatic episode which puts strains on the ligaments of the spinal level involved by the spondylolysis/listhesis, it strains the ligaments on which the stability of the back now depends and back pain follows."
Dr Ellis opined that although there was no record of any spine defect on enlistment, Mr Bartos probably had one when he enlisted, and that such a condition was symptomless in approximately one percent of the population.
Dr Ellis agreed when questioned, that Mr Bartos may have had spondylolisthesis before his service, and that it could have worsened due to the trauma. Dr Ellis opined that the trauma Mr Bartos underwent with the stove incident, as described to him, could have been sufficient to make his spondylolisthesis symptomatic. He also agreed that congenital spondylolysis could precede the development of spondylolisthesis. He opined in his report at T23/103 that:
"He has been diagnosed in fact as having two areas of spondylolysis, at L4-5 and L5-S1. I think his gross obesity (weight of 170 kg) is at least a cause of the aggravation of his back condition."
When asked for his comment regarding whether Mr Bartos should not have mentioned his back when he was hospitalised for an ear infection, Dr Ellis replied that when lying down in hospital, the back would not be under stress. He said that he was, therefore, not surprised the back had not been mentioned.
Dr Ellis was then cross-examined regarding the trauma required to meet the definition in Instrument No.15 of 1997. He agreed with the proposition in relation to Mr Bartos' trauma, that the greater the speed, the more the force he would have taken on the vertebrae. He referred in his replies to the incident as described by Mr Bartos, and opined that it did not lack force, but agreed it lacked speed.
Dr Ellis, opined, when reviewing the evidence regarding the incident, that walking unaided initially did not mean that Mr Bartos' spondylolysis had not been aggravated, and that it did not then develop into spondylolisthesis.
Dr Ellis was referred to T26J, a medical record dated 15 June 1966 regarding Mr Bartos' mild tonsillitis. His attention was drawn to the fact no mention was made of the back on that occasion, although it was only approximately two weeks after the stove incident. Dr Ellis stated that he was not surprised.
I noted further that Mr Bartos was admitted to hospital for otitis externa and myrmyitis, with no mention of any back problem approximately within a month of the incident (T26K). Dr Ellis was asked what he thought of that and replied that it depended for what Mr Bartos had been admitted, implying the attention would be predominantly to those concerns and no others.
A similar situation was put to Dr Ellis (T26O and T26P) regarding an admission in October 1966, some four months after the incident. Dr Ellis again placed no significance on the fact that the back had not been mentioned.
It was again put to Dr Ellis that at the annual medical examinations in 1986 and 1987, there had been no mention of Mr Bartos' back. Dr Ellis, when referred to his report at Exhibit A3, where he had recorded that: "For the last seven years of his service, his backache had become progressively worse…" , agreed that there were no medical records to demonstrate complaint by the Applicant about his back. He did however draw attention to T4/27 where a medical officer had on 3 July 1967, recorded amongst other things, "dull pain in left loin coming to front." Dr Ellis said that there could be various possible causes for such pain, including renal colic, although he added that was not the case as far as Mr Bartos was concerned.
evidence of professor p sambrook, rheumatologistProfessor Sambrook, whose reports dated 8 March 2000 and 2 August 2000 were Exhibits R2 and R3 before the Tribunal, gave evidence by telephone.
Following his initial examination of the Applicant, Professor Sambrook agreed with Dr Ellis when he opined at R2 that the Applicant:
"… suffers from spondylolysis at the two lower lumbar levels with a spondylolisthesis of L5 on S1."
He agreed that it was most likely that Mr Bartos had a pre-existing spondylolisthesis at the time of the incident with the stove.
Professor Sambrook gave evidence before the Tribunal that Instrument No.15 of 1997 was concerned with injuries sustained by a "virgin spine" and was not "particularly useful for people with a pre-existing spondylolysis". Referring to Mr Bartos and Clause 5(j) of Instrument No.15 of 1997, he said that the congenital defect in the bone was on one view, like a fracture, but not due to fracture. Professor Sambrook opined that if a fracture had taken place at the time of the incident, or if a facet dislocation had occurred, the pain would have been immediate, and Mr Bartos would not have been able to move or walk at all for some time. The evidence was, however, that Mr Bartos had continued working after the incident. The history of his movements after the stove incident as given by Mr Bartos indicated to Professor Sambrook that the impact had not been a high impact injury.
When questioned about a "severe high energy trauma to the lumbar spine" as defined in Clause 7 of Instrument No.15 of 1997, Professor Sambrook held that the SoP envisaged a "fairly significant injury" to the spine or an:
"injury that is sufficient to result in a fracture to the vertebral arch … or force apart the bones without a fracture."
Professor Sambrook also opined that the predominant element of a severe high energy trauma was force. Bearing this in mind, he said that the injury sustained by the Applicant through the fall of the army stove weighing approximately 70 kilograms was "probably not in the definition of a major force".
Professor Sambrook said further, that although not specified in the SoP, the examples given in the definition were all ones where a combination of speed or velocity with force were significant. That he said, was absent in Mr Bartos' case, where it was a matter of force rather than speed that was involved in the incident with the stove.
Professor Sambrook stated that the SoP required a direct blow to the back and in Mr Bartos' case, he did not suffer a direct blow to the back because the stove fell forward. He then referred to the examples posited by the SoP as requiring a "direct force to the back", namely being struck across the back.
Professor Sambrook was then asked questions about the meaning of unaided ambulation emanating from Instrument No.15 of 1997. He pointed out correctly, that there was no definition of it in the Instrument. He opined, however, that the Applicant's use of a stick to assist with walking as described by Mr Bartos could be as follows:
"It would not be unreasonable to regard the use of a stick for walking as aided ambulation and so I think it is reasonable to indicate that at least a liberal interpretation of the SoP does suggest Mr Bartos meets it." (Exhibit R3)
When asked what he thought of the record at T26J with regard to a medical visit for Mr Bartos' tonsillitis some two weeks after the stove incident which did not mention any back problem, Professor Sambrook said he considered it curious. He also said that if the stove incident of June 1966 had caused the "slip" towards spondylolisthesis, then it was remarkable that Mr Bartos' in-patient record of 2 July 1966 at T26K, for his ear problem, some four weeks after the incident, did not mention his back.
Professor Sambrook was asked about the notation regarding pain in the left loin as recorded at T4/27. He replied that the left loin was an area over the kidney and was high for referred pain from L5/S1. He said that pain in the groin or buttock would have been more consistent with Mr Bartos' spondylolysis and spondylolisthesis.
Professor Sambrook was also asked to comment on Mr Bartos' reports of back aches and pain from time to time in the post Vietnam era which he put down to arduous work he undertook in his catering job at various times. He replied that this intermittent pain was not inconsistent with Mr Bartos' pathology.
evidence of dr k koller, psychiatristDr Koller's reports of 26 September 1997 (T8) and 16 February 2000 (Exhibit A2) were before the Tribunal. The earlier report dealt with psychiatric matters whilst in the latter report, Dr Koller wrote reporting on Mr Bartos' description of the incident with the stove in 1966. He said:
"He was unable to seek treatment or take a rest because of the position he was in… To take time off would have been most odd and bring about thoughts that he was malingering. He did not wish to draw attention to his pain and inconvenience for another reason that he was ambitious for promotion…. He asserts the Veterans' Affairs Dept. rejects his claim because he did not take two weeks leave and rest. Obviously under the circumstances of war, in the bush, the enemy in the vicinity and he with status of rank hardly had the luxury of the choice of lying down for two weeks."
SUBMISSIONS AND CONCLUSIONS
Having heard the evidence, I had to take it into account, together with the submissions and the legislation to decide whether the Applicant's spondylolysis L4-5 and spondylolisthesis L5-S1 were war-caused within the terms of section 9 of the Act.
I noted that at the time the Applicant's initial claim was rejected by the Repatriation Commission on 9 December 1997:
"… the RMA has not yet issued a Statement of Principles for Bilaterial pars interarticularis defects with spondylolisthesis of L5. Therefore, my decision is based on all the evidence that is before me at this time." (T2/3)
After examining the evidence before it, the Repatriation Commission nevertheless found that the:
"… circumstances of this case do not satisfy the Statement of Principles issued by the RMA in respect of Bilaterial pars interarticularis defects with spondylolisthesis of L5. As a result I find that all the evidence does not raise a reasonable hypothesis connecting Bilaterial pars interarticularis defects with spondylolisthesis of L5 and operational service." (T2/4).
For the sake of completeness, I noted that upon appeal to the VRB, the Applicant's condition was characterised as spondylolysis at L4-5 and spondylolisthesis at L5-S1. The SoP in force and applied when the decision, which was handed down on 26 October 1999, was made, (before the decision in Keeley (supra)), was Instrument No.15 of 1997 concerning Spondylolisthesis and Spondylolysis. Instrument No.15 of 1997 was also in force at the time of the Repatriation Commission decision dated 9 December 1997, and should have been applied if the later diagnosis had been recognised.
Notwithstanding, in order to reach a decision as to whether the Applicant's injuries were war-caused within the meaning of section 9 of the Act, I was bound to apply Instrument No.15 of 1997 concerning Spondylolisthesis and Spondylolysis, in force at the time of the Repatriation Commission decision dated 9 December 1997 (Keeley (supra)).
As the Applicant gave operational service to his country, as detailed above, I have applied the principles outlined in Repatriation Commission v Deledio (1998) 83 FCR 82 and sections 120(3) and 120(1) of the Veterans Act in coming to my decision.
application of principles in repatriation commission v deledio (1998) 83 fcr 82I was mindful that the approach in decision-making involving operational service such as Mr Bartos served, was set out by Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261, and was approved and summarised by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82.
"…the course which the tribunal is to take in a case, such as the present, (ie 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 [is] as follows:
1The 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.
2If 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). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3If 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.
4The 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.
With respect to determining when an hypothesis is reasonable, I noted Heerey J's approach which followed the "reasonableness" test approved in Byrnes v Repatriation Commission (1993) 177 CLR 564 and approved in Repatriation Commission v Deledio (supra):
Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:
(i) contrary to proved or known scientific facts,
(ii)obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii) (since 1994) inconsistent with (not upheld by) an applicable SoP.
If the hypothesis is reasonable the claim will succeed unless:
(iv)one or more facts necessary to support it are disproved beyond reasonable doubt; or
(v)the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.
I turned then to decide whether applying the principles set out above, the material before me raised an hypothesis connecting Mr Bartos' spondylolysis and spondylolisthesis with his war service. I was mindful that no fact finding arose at this stage, nor was the reasonableness of the hypothesis at issue.
Firstly, I noted and accepted the evidence before me and the concessions of the Respondent that it was not disputed that the Applicant suffered an injury to his back during his operational service when moving an army stove. Furthermore, I noted that while the Applicant's accepted disabilities were otitis externa, acne keloid, generalised anxiety disorder and bilateral sensorineural hearing loss with tinnitus, the medical evidence before me of Dr Ellis and Professor Sambrook indicated that the Applicant suffered spondylolysis and spondylolisthesis. Dr Ellis had documented at Exhibit A1, the Applicant's back complaints as having been:
"diagnosed … as … two areas of spondylolysis, at L4-5 and L5-S1 … and his service in Vietnam probably aggravated the spondylolisthesis (or more correctly, the spondylosis at L4-5 and L5-S1 and the small degree of spondylolisthesis which has been reported at L5-S1."
I further noted that Professor Sambrook at Exhibit R2 diagnosed the Applicant as suffering from:
"… spondylolysis at the two lower lumbar levels with a spondylolisthesis of L5 on S1."
As to documentation of the Applicant's injury to his back during his service, Mr Winship submitted that pursuant to section 119 of the Veterans' Act, circumstances in which there were deficient medical records should still be given due consideration. In this respect, he submitted that as the Applicant gave evidence truthfully, his evidence should be given the appropriate weight by the Tribunal. I was mindful that section 119 of the Act enabled the Repatriation Commission, and, therefore, this Tribunal, to take into account the unavailability of medical records when ascertaining the existence of facts. Specifically, section 119 provides that:
"119 Commission not bound by technicalities
(1)In considering, hearing or determination, and in making a decision in relation to:
(a)a claim or application …
the Commission …
(h)without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause, or circumstance, including any reason attributable to:
(i) the effects if the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii) the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities."
In this respect, I noted that there was no record of Mr Bartos receiving treatment at the medics tent following the incident whilst unloading a stove in June 1966. I nevertheless, accepted that he was attended to by the corporal on duty who diagnosed his injury as muscular and gave him some cream to rub on his back.
I noted, however, that from the date of his injury to the time he applied for a pension based on his spondylolysis and spondylolisthesis, Mr Bartos only reported problems with any part of his back on one occasion. On 3 July 1967, the Applicant's medical history sheet (T4/29) recorded "NAD" for the question relating to "Bones and Joints" which indicated no abnormality detected, but that he suffered "dull pain in left loin coming to front" (T4/27). Two doctors gave their opinions regarding the record of dull pain in the left loin. Dr Ellis said that there could be various possible causes for such pain, including renal colic, although he added that was not the case as far as Mr Bartos was concerned. Professor Sambrook said that the left loin was an area over the kidney and was high for referred pain from L5/S1. He said that pain in the groin or buttock was more consistent with Mr Bartos' spondylolysis and spondylolisthesis.
Mr Winship submitted that such a deficiency in records was not unusual and directed my attention to the evidence of Dr Ellis and his experiences with record keeping in the Army during World War II and Vietnam. I noted Dr Ellis' comments about the standard of record keeping, particularly that when units moved, often their records were destroyed. He also said that the absence of further records was not surprising, considering that the Applicant wished to make a career out of the army and did not want to jeopardise his chances for promotion by complaining about his back pain.
I found that Dr Ellis in giving his evidence appeared to be acting as an advocate for Mr Bartos, particularly when discussing his own army experience. I felt this applied also to his answers when asked his opinions regarding whether Mr Bartos would have mentioned his back pain on his hospitalisation for his ear troubles if indeed it was as severe as he now indicated.
Mr Godwin submitted that there was a considerable number of medical records pertaining to the Applicant, and these carried on for a number of years. He said that since the date of his injury, Mr Bartos had only reported problems with his back on one occasion, that is, 3 July 1967 (T4/27), where his medical history sheet recorded that he suffered "dull pain in left loin coming to front." He noted that the medical officer did not, however, on that occasion, detect any abnormality in the bones or joints.
I also noted that Professor Sambrook had said in his evidence that if the stove incident of June 1966 had caused the spondylolisthesis to even commence, then it was remarkable that Mr Bartos at a visit to the doctor some four weeks later for ear problems, as recorded at T26K on 2 July 1966, did not mention his back.
I accepted that some war records may be deficient and that this should not prejudice the Applicant's case. I have however considered the submissions of the parties and have found from the evidence before me that Mr Bartos' medical records from his service in Vietnam and his subsequent service in Australia were generally well documented.
I agreed with the comments of Professor Sambrook and found that at the time of the injury to his back and afterwards, the Applicant sought treatment for a number of ailments, and did not mention any ongoing problems with his back during his hospitalisations. I also noted that at his final medical examination prior to leaving the Army conducted on 19 October 1987 (T3/8), the Applicant's back was assessed as normal, and that there was no notation made by the medical officer that the Applicant raised any problems he suffered with his back. The Applicant even attested that the:
"… information recorded against Items Nos 1 to 63 inclusive are true and complete to the best of my knowledge and belief ..." (T3/9)
Similar records of examinations which indicated that Mr Bartos' spine or back was "normal", were made on 10 October 1986 (T3/10), 11 September 1986 (T3/11), 9 May 1984 (T3/12), 23 August 1983 (T3/13), 14 May 1982 (T3/14), 30 October 1981 (T3/16), 21 March 1979 (T3/17) and 17 October 1977 (T3/18). There were no medical reports of Mr Bartos after he left the army which dealt with any ongoing back pain available to the Tribunal.
I accepted that there was an incident when the stove was unloaded, but that this was relatively minor. Mr Godwin for the Respondent also accepted that there had been an incident in June 1966 when Mr Bartos was unloading a stove in Vietnam. Thus, I found that there was an hypothesis connecting the spondylolysis and spondylolisthesis suffered by the Applicant with his service.
I must then turn to consider whether there was an appropriate SoP which could be applied to the situation. As discussed earlier in these reasons, if the Applicant's injuries had been characterised as spondylolysis and spondylolisthesis, Instrument No.15 of 1997 would have been applied at the time of the primary decision. Therefore, in applying Keeley (supra) in my decision-making, I found there was an appropriate Instrument for these purposes. I then had also to decide whether the hypothesis was reasonable by considering whether the development of the Applicant's spondylolysis and spondylolisthesis was consistent with the template in the SoP.
The factors raised in the SoPs are, of course, those that must exist as a minimum before it can be said that a reasonable hypothesis has been raised connecting the condition of the Veteran, in this case, Mr Bartos' condition of spondylolysis and spondylolisthesis with the circumstances of his service.
The SoP to be applied was:
Instrument No.15 of 1997 concerning Spondylolisthesis and Spondylolysis
The definitions of spondylolisthesis and spondylolysis in the above SoP are as follows:
"'spondylolisthesis' means forward displacement of one vertebra over another, attracting ICD code 738.41 or 756.12; and
'spondylolysis' means a defect of fracture, unilateral or bilateral, involving the pars interarticularis of a vertebra, attracting ICD code 738.41 or 756.11. The pars interarticularis is that part of the vertebral arch that extends between the superior and inferior articular processes."
The minimum factors required to relate the spondylolisthesis and spondylolysis to the Applicant's war service are outlined in Factor 5 of the SoP. In Mr Bartos' case, two of the sub-factors may have been relevant. They follow:
"(a)suffering a severe, high energy trauma to the lumbar spine sufficient to result in an acute fracture of the vertebral arch or vertebral dislocation at the involved level:
(i)at the time of the clinical onset of lumbar spondylolysis or;
(ii)at the time of clinical onset of lumbar spondylolisthesis secondary to vertebral facet joint dislocation; or
(iii)within the six weeks before the clinical onset of lumbar spondylolisthesis due to fracture of the pedicle, pars interarticularis or facet joints of the vertebral arch; or
…
(j)suffering a severe, high energy trauma to the lumbar spine sufficient to result in an acute fracture of the vertebral arch of vertebral facet joint dislocation at the time of the clinical worsening of lumbar spondylolisthesis and spondylolysis;
…"
What constitutes "a severe, high energy trauma to the lumbar spine" is defined in Instrument No.15 of 1997. It is:
"… a major, high impact, direct injury to the lumbar spine, giving rise to immediate lumbar pain and precluding unaided ambulation for a period of at least two weeks, and associated with other fractures and/or significant sort tissue injuries. Examples would include: a fall from a significant height directly onto the back, a major motor vehicle accident; being struck across the back by a heavy, high momentum object such as a falling tree;"
I noted that Mr Winship submitted for the Applicant that nothing that Professor Sambrook said in evidence was inconsistent with the evidence of Dr Ellis. I noted that Dr Ellis recorded the history taken from the Applicant at Exhibit A1 as follows:
"He was on the ground receiving stores, two soldiers were unloading a stove which caught on the floor of the truck as it was pushed forward. He took the weight of the stove, about 70 kg which "knocked him down to his knees". He had sharp, stabbing pain in his low back "like a spear"."
Similarly, Professor Sambrook stated in his report at Exhibit R2 that:
"The most relevant episode to his back appears to have been an incident at Nui Dat whilst he was trying to unload a field stove from a truck in the process of establishing the camp … The stove became caught on the floor of the truck and then as it came out, Mr Bartos apparently took the full weight of the stove …
The weight of the stove knocked him to his knees and he had the sudden onset of sharp stabbing pain in his low back, which he described as being like a spear."Both doctors agreed and I accepted that the Applicant's spondylolysis preceded his war service and that the impact of the stove falling on him, caused a pain in his low back which resolved after a short period.
I then turned to consider whether Mr Bartos' injury satisfied the definition of a "severe, high energy trauma" as required by the SoP.
Mr Winship submitted for the Applicant that he satisfied the condition as outlined in the SoP even allowing for the fact that it was not written for the Applicant's particular circumstances. He said that the Applicant had used a stick for approximately one month following the incident to assist him with walking and that his continuing back pain was noted at T4/27.
Mr Godwin submitted that while the Respondent conceded that the Applicant suffered an injury to the back in 1966, his injury did not fall within the definition of a severe, high energy trauma. He said that according to the evidence of Professor Sambrook, a severe, high energy trauma would result in the inability to move necessitating a period of bed rest. He said that instead, the Applicant rested for a short period before returning to prepare the evening meal. The Applicant, he said, gave evidence that he put pots on the stove and peeled potatoes before finding a stick to assist him to walk to the RAP.
Mr Godwin submitted the elements of speed and force as described in the examples of a motor vehicle accident and being struck across the back with a heavy, high momentum object like a tree were absent from the injury sustained by Mr Bartos.
Moreover, Mr Godwin argued that Dr Ellis, in his evidence, had likened the injury to a back strain that would be sustained in football and he submitted that a strain of this variety would not constitute a severe, high energy trauma as envisaged by the SoP.
I noted that Dr Ellis had stated in his report at Exhibit A1 that while the Applicant sustained a:
"… sharp, stabbing pain in his low back "like a spear" … He continued to work, attended the RAP that night, the corporal on duty gave him some cream to rub on his back. The pain continued and was worse on movement. He carried on with his work."
He did not describe the Applicant's use of a stick to aid with ambulation in either of his reports before the Tribunal, although I noted that in his oral evidence Dr Ellis stated that after such an incident of trauma as sustained by the Applicant in Vietnam, it would not be surprising that he would have to use a stick to aid with walking for over a month.
I further noted that Dr Ellis maintained that Applicant's spondylolysis and spondylolisthesis existed prior to his service, however, he also said that while:
"… I think the condition probably did antedate his service in Vietnam … it has been made worse by his service, if his history is correct."
Notwithstanding, Dr Ellis also attributed some of the Applicant's ongoing problems in his back to his weight. He said that Exhibit A1 that:
"he has had stress on his back during his army service and since he was discharged from Vietnam his weight has gone up considerably and this in itself will put a strain on his back …
I think his gross obesity (weight of 170 kg) is at least a cause of the aggravation of his back condition."I noted the comments of Professor Sambrook in his report at Exhibit R2 when he said that:
"Although the episode described by Mr Bartos could be characterised a high impact direct injury to the lumbar spine, the criteria outlined in the SOP requires not only immediate pain but precludes unaided ambulation for at least two weeks thereafter which is not met in Mr Bartos' case."
In his later report at Exhibit R3, Professor Sambrook revised his comments and said that:
"… I note that on page 2 of my previous report I indicated that following this episode Mr Bartos required to use a stick for at least several weeks. It would not be unreasonable to regard the use of a stick for walking as aided ambulation and so I think it is reasonable to indicate that at least a liberal interpretation of the SOP does suggest Mr Bartos meets it."
Notwithstanding, Professor Sambrook stated in his oral evidence before the Tribunal that Mr Bartos' actions following the injury were inconsistent with the SoP. Professor Sambrook also said that the injury did not involve a direct blow to the back as the stove fell forward on to the front of the Applicant. He said further that a 70 kg stove falling forward onto the Applicant would not generally have satisfied the definition of a major force.
Professor Sambrook also maintained that the SoP was devised with an injury to a "virgin spine" in mind, and that the SoP was not particularly useful for people with a pre-existing condition.
I preferred the evidence of Professor Sambrook that an injury of the severe, high energy kind as required by the SoP would have caused Mr Bartos an immediate inability to walk and forced him to remain bedridden for some period. However, I was mindful in coming to a decision regarding whether a reasonable hypothesis had been raised to find the connection between Mr Bartos' condition of spondylolysis and spondylolisthesis with his war service, that it was not a matter of proving anything or weighing up the numbers of medical reports against each other.
I noted Dr Ellis' comments relating to previously asymptomatic spondylolysis. He stated in his report at A3 that:
"The clinical manifestations of spondylolysis/listhesis are such that the episode with the field stoves is certainly the type of trauma that can convert this condition from being symptomless to symptomful. The aggravation can be continuing once it is established. Some people recover and some people do not. Those who do not often continue with increasing stress and instability in the back, as indeed has happened in this patient's case. He continued to serve in the army until 1987 and his back condition has remained increasingly symptomful. This patient is in the group of people who suffer from this condition in whom physical stress has strained the ligaments on which the stability of the back at the level of the … deficient pars interarticularis of the spine, which has left the back weakened, and once stressed the ligamentous injury has continued and become worse for a variety of reasons, including his Army Service and his increase in weight."
I have noted the opinions of Dr Ellis stated in the paragaph above, and cannot disagree that trauma can cause an asymptomatic condition to be aggravated or to become symptomful, and become worse over a period of time. However the documentary evidence before me showed that Mr Bartos had contact with medical officers on many occasions and that he did not report any back pain which might now be seen to have been worsening of any lumbar problems he may have had when he enlisted. It is most likely that the incident of June 1966 with the stove caused a temporary injury which settled within a short time.
In reaching my decision, I found that the injury as described by the Applicant did not meet the definition of a severe, high energy trauma required by the SoP for the following reasons:
The stove did not fall directly on the Applicant's back. It may have had some of the force, but not the velocity needed to constitute a major high impact injury.
The Applicant was able to continue working and walking following a short period of rest before seeking medical treatment from the medics tent;
The Applicant commenced using a stick to assist him to walk when he sought treatment from the medics tent, which was later on in the evening of the injury.
There was no evidence of trauma sufficient to result in a fracture of the vertebral arch or vertebral dislocation at the involved level as envisaged in Factors 5(a) or 5(j)
The stove falling forward onto Mr Bartos did not constitute a major high impact injury as envisaged by the SoP. I noted that the examples given in the definition which were not exclusive of course, included a fall from a significant height directly onto the back, a major motor vehicle accident and being struck across the back by a heavy, high momentum object such as a falling tree.
The Applicant did not satisfy Factors 5(a) or 5(j) in the SoP concerning spondylolisthesis and spondylolysis, as he did not sustain a severe, high energy trauma prior the onset or worsening of spondylolisthesis.
As to clinical worsening of lumbar spondyloslysis or spondylolisthesis envisaged in Factor 5(j); I have already pointed out above, that although there were many occasions on which Mr Bartos had contact with medical officers, he did not report any back pain which might now be seen to have been worsening of any lumbar problems he may have had when he enlisted. It is most likely that the incident of June 1966 with the stove caused a temporary injury which settled within a short time.
Thus, having considered all the medical evidence as well as the evidence of the Applicant, I was not satisfied from the material before me that a reasonable hypothesis had been raised to find the connection between Mr Bartos' condition of spondylolysis and spondylolisthesis with his war service.
I then took into account the indicia in section 120(3) of the Act and found that on the basis of consideration of the whole of the material before me, I was of the opinion the material did not raise a reasonable hypothesis connecting Mr Bartos' condition with his operational service.
I found applying section 120(1) of the Act that I was convinced beyond reasonable doubt that the Applicant's condition cannot be said to have been war-caused. Therefore, the application must fail and the reviewable decision be affirmed.
DECISIONThe Tribunal affirms the decision of the Repatriation Commission dated 9 December 1997 as varied and affirmed by the Veterans' Review Board on 26 October 1999 to refuse the Applicant's claim that his spondylolysis at L4-5 and L5-S1 and spondylolisthesis of L5-S1 were war caused pursuant to section 9 of the Veterans' Entitlements Act 1986.
I certify that the 108 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member
Signed: .....................................................................................
AssociateDate of Hearing 10 August 2000
Date of Decision 29 September 2000
Counsel for the Applicant N/A
Solicitor for Applicant Mr B Winship
Counsel for the Respondent N/A
Advocate for the Respondent Mr P Godwin
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