Blake and Repatriation Commission
[2008] AATA 78
•30 January 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 78
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W 200600278
VETERANS' APPEALS DIVISION ) Re PETER MAURICE BLAKE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President S D Hotop
Dr P A Staer, MemberDate30 January 2008
PlacePerth
Decision The Tribunal affirms the decision under review.
.. ..........[Sgd S D Hotop].........
Deputy President
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – disability pension – applicant served in Royal Australian Navy from 1962 to 1982 – applicant rendered operational service in 1970-1971 – applicant suffers from spondylolysis, depressive disorder and hypertension – Statements of Principles (SoPs) – material before Tribunal raises hypothesis that applicant’s conditions connected with operational service – raised hypothesis not upheld by SoPs – raised hypothesis not a reasonable hypothesis – Tribunal satisfied beyond reasonable doubt that no sufficient ground for determining that applicant’s conditions war-caused – applicant’s conditions not war-caused – decision under review affirmed
Veterans’ Entitlements Act 1986 (Cth), s 5D(1), s 7(1), s 9(1), s120 and s 120A
Statement of Principles concerning Spondylolisthesis and Spondylolysis (Instrument No 5 of 2006)
Statement of Principles concerning Depressive Disorder (Instrument No 17 of 2007)
Statement of Principles concerning Hypertension (Instrument No 35 of 2003, as amended by Instrument No 3 of 2004 and Instrument No 11 of 2008)
Bull v Repatriation Commission (2001) 188 ALR 756
Byrne v Repatriation Commission (2007) 97 ALD 359
Collins v Administrative Appeals Tribunal (2007) 96 ALD 536
Repatriation Commission v Deledio (1998) 83 FCR 82
Woodward v Repatriation Commission (2003) 131 FCR 473
REASONS FOR DECISION
30 January 2008 Deputy President S D Hotop
Dr P A Staer, MemberIntroduction
1. The applicant, Peter Maurice Blake, served in the Royal Australian Navy (“RAN”) from 6 July 1962 to 5 July 1982. During his RAN service he rendered “operational service”, within the meaning of the Veterans’ Entitlements Act 1986(Cth) (“VE Act”), on board HMAS Sydney in various periods in 1970 and 1971.
2. The applicant suffers from, inter alia, lower back conditions (namely, spondylolysis, spondylolisthesis, and intervertebral disc prolapse), depressive disorder, and hypertension, and in November 2005 he made a claim to the Department of Veterans’ Affairs (“DVA”) that those conditions are related to his operational service and are thus “war-caused” within the meaning of the VE Act.
3. The Veterans’ Review Board determined that the applicant’s spondylolysis, spondylolisthesis, intervertebral disc prolapse, depressive disorder, and hypertension are not war-caused.
4. The applicant then applied to the Tribunal, seeking a determination that each of the abovementioned conditions is war-caused. At the hearing before the Tribunal, however, he abandoned his claim that his spondylolisthesis and intervertebral disc prolapse are war-caused, but he maintained his claim that his spondylolysis, depressive disorder, and hypertension are war-caused.
The Tribunal’s Determination
5. For the reasons which follow, the Tribunal has determined that the applicant’s spondylolysis, depressive disorder, and hypertension are not war-caused.
The Evidence
6. The evidence before the Tribunal comprised:
·the “T Documents” (T1-T29, pp 1-186) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
·various documents tendered by the applicant (Exhibits A1-A4) and by the respondent (Exhibits R1-R5); and
·the oral evidence of the applicant and of Mr P Hardcastle.
The applicant’s evidence
7. A signed statement of the applicant, dated 29 October 2007, was tendered in evidence. In that statement the applicant stated (inter alia):
“…
1. was born in Brisbane on 6 December 1946.
2. I joined the Royal Australian Navy as a Naval Apprentice mid 1962.
…
31. Prior to joining the Navy I had no pre-existing back condition.
32. I joined the Navy as a 15 year old in 1962.
33. During Service, playing sport was an important part of Service life.
34. When I joined the Navy in 1962 my spine was described as normal.
35. Pursuant to my [HMAS] Nirimba medical records, I attended the Medical Officer on 23 September 1965 with a back ache. I was treated with IRR, liniment and panadol (Annexure 1).
36. It is not unusual that I would have suffered a back ache given the strenuous nature of service training and the sport that I was involved in.
37. I had no further back pain for nearly 4 years.
38. The only reference to back pain in my service records prior to operational service was on 6 October 1969 where [HMAS] Cerberus medical records show that I had been diagnosed with low back pain. My treatment was diet, Tomeleril (sic) and Prenelin (sic) (Annexure 2).
39. When I completed operational service, I was in my early 20s.
40. I was allocated a special Sea Duty Station in addition to my normal duties.
41.I was required to be present to report the boat structurally seaworthy prior to the attachment of the lifting/disengaging gear, lifting clear of the cradle and turning out on the fixed davit.
42.When the boat was recovered I was responsible to check the structural integrity of the boat after the boat was turned in and placed on the cradle.
43. Both these tasks required me to climb over the side of the boat and then jump out of it from a height of approximately 1.8 metres wearing plastic sandals onto a sometimes wet and moving steel deck.
…
46. I believe this jumping caused some of the damage or aggravated damage to my back.
47. When employed with the tiling party, I was required to continually lift and carry 20 litre drums of deck faring compound called Rubbertex which weighed 30 kilos, 20 litre drums of tile adhesive weighing 25 kilos and boxes of CSR vinyl flex tiles weighing 20 kilos.
48. My employment as the ship’s painter required continual lifting, carrying and scaling of a vertical ladder from the paint store directly below the paint shop with 20 litre drums of paint weighing 25 kilos.
49. This lifting, carrying and scaling up a height of approximately 3 metres, I believe caused some of the damage and aggravation to my back.
50. The paint shop was in the forward section of the ship and therefore was subjected to extremes of pitching as the ship made its way through both calm and heavy seas.
51. I also played sport on board the ship and this meant I was continually jumping onto a steel deck with forceful rotation of the spine, which I later found out caused damage to my immature spine with a spondylolysis and concomitant disc prolapse.
52. It wasn’t until I was playing cricket that the extent of damage to my back became evident.
53. I had only delivered four balls in the cricket match and was unable to continue due to severe back and thigh pain.
54.Although I was hospitalised in the sick bay on HMAS Sydney for three days, no other treatments were received and I returned to work a short time later to light duties.
55. I suffered considerable pain and only 5 months after leaving HMAS Sydney, my condition began to become clearer after I had an x-ray showing damage caused while I was on active service in 1970 to 1971.
…
62. When I attended Dr Slinger, he was not aware, and I did not advise him of my duties both at sea and on shore. These included:
(i) manually moving heavy shoring timber (8 foot long and 4 x 4 lengths of Oregon timber (approximately 12 kilos) to the overhead main stowage on the focs’le from shore involving lifting, stretching and arching of my back;
(ii) manually moving that shoring timber to ready use locations throughout the ship for use at action stations involving lifting, stretching and arching of my back;
(iii) manually moving that shoring timber to compartments for damage control exercises, particularly through restricted access manholes in main deck hatches involving lifting, stretching and arching of my back;
(iv) lifting, cutting, preparing and putting into place shoring and heavy steel splinter boxes (approximately 20 kilos) as part of damage control runs as a member of the Fire and Repair Party teams involving lifting, stretching and arching of my back;
(v) simply making my way around the ship up and down ladders, sometimes in quick time during action station drills, and also awkwardly as the ship closed up to restricted movement states 2 Yankee and 1 Zulu, especially in heavy weather carrying equipment and tools of trade. Also attending and inspecting boats and ladders on the violently moving, rolling, wet and slippery exposed upper deck during heavy weather and storms;
(vi) jumping out of boats (32 foot motor cutters) while stowed in their cradles (in all weather), a drop of approximately 185 centimetres onto the wet, moving steel deck;
(vii) moving of extremely heavy two man snorer pumps approximately 60 kilos during damage control runs which involved stooping and lifting, often in awkward situations with a rolling deck;
(viii) my role at sea at action stations as a leader, member of Section 1 Fire and Repair Party;
(ix) playing organised sport, that is, volleyball, deck games and mini Olympics against other branches of the Army;
(x) employment as described in the tiling party and paint shop and playing sport;
(xi) our shipwrights’ volleyball team was the best in the ship and continually played volleyball and other sports against the Army and intra-ship sides on route to Vietnam over a period of two years.
63. All these activities took place continuously en route to and from Vietnam during my operational service.
…
71. I developed a depressive disorder and hypertension, which are associated with my back complaint and it has had a significant effect on my wife and family, as well as my social life, which has become difficult.
…
73. I was referred by Dr Ian Catto to my psychiatrist, Dr John Kemp, who is currently treating me.
… (Exhibit A1)
The applicant’s RAN service medical records
8. The applicant’s RAN service medical records (as in evidence) contain the
following information:
·the applicant’s enlistment medical examination record, dated 30 April 1962, states that his spine and emotional stability were “normal” and his blood pressure was 125/80 (T3, p18);
·HMAS Nirimba medical record, dated 23 September 1965, states that the applicant was complaining of lower back ache since spraining his back approximately 6 months earlier and that at times he was free of symptoms but playing sport (eg cricket) brought back his back ache (Annexure 1 to Exhibit A1);
·HMAS Cerberus medical record, dated 6 October 1969, indicates that the applicant was diagnosed with low back pain (Annexure 2 to Exhibit A1);
·HMAS Sydney in-patient record, dated 16 July 1971, states that the applicant was admitted to Sick Bay on 14 July 1971 “with recurrence of severe low back pain and pain in (R) thigh”, that he was diagnosed with “lumbar back strain”, and that, following steady improvement in his condition, he was discharged to light duties on 16 July 1971 (T3, pp 20-21);
·an x-ray report regarding the applicant’s lumbar spine, dated 17 May 1972, states that there is “spondylolysis at L4-5 level, with defects in the arch of L4 in the typical position … but no forward sublaxation (sic) of L4 or L5” and no other abnormality detected, and a diagnosis of lumbar spondylolysis was made (T3, p 22);
·a re-engagement medical examination record, dated 27 November 1973, states that the applicant’s spine was “normal” and his blood pressure was 130/80 but that his emotional stability was not examined (T3, p 23);
·a fitness test record, dated 28 August 1979, indicates that the applicant responded “No” to the question “Do you have pain in your back?”, and states that his blood pressure was 140/80 (T3, p 24);
·a re-engagement medical examination record, dated 20 February 1980, states that the applicant’s spine and emotional stability were “normal” and his blood pressure was 130/80 (T3, p 25);
·an x-ray report regarding the applicant’s lumbar spine, dated 27 March 1981, states:
“Spondyloysis (sic) of L4 is present, without spondylolisthesis. No other abnormalities seen” (T3, p28);
·a signed discharge statement of the applicant, dated 17 September 1981, in which he indicated that he had not “suffered from any disabilities during service” and that he did not “suffer from any disabilities at present” (T3, p 30);
·the applicant’s discharge medical examination record, dated 18 September 1981, states that his spine and emotional stability were “normal” and his blood pressure was 110/75 (T3, p 27).
Post-service medical reports
9. Various medical reports regarding the applicant, prepared since his discharge from the RAN, are in evidence. They include the following:
·x-ray report regarding the applicant’s lumbo-sacral spine, dated 3 September 1982, which notes the presence of “bilateral pars interarticularis defects at L4” with “only minimal displacement” (Pt of Exhibit R1);
·report of Mr J Collibee, Orthopaedic Surgeon, dated 28 September 1982, to the applicant’s general practitioner, which states:
“ …
I understand that on the 20th March 1965 he fell whilst fast bowling in a Navy cricket team, onto his back, injuring it and since that time he has been compensated for the aggravation of a pre-existing spondylolysis. The aggravation is deemed to have finished in May 1972, and he was re-engaged in the Navy, but following this he had recurrent back disability and was discharged in September of last year on medical grounds.
He is now manual arts teacher at Guildford and has a considerable amount of low back disability. He has difficulty turning in bed and on rising in the morning his back begins to ache, and by 11 am he is suffering from severe low back pain which is now radiating to both his testicles, and he is having to take dispirin. The pain is relieved by sitting in a comfortable chair, or at times lying down.
On examination he had full movement, but he was tender in the region of L4-5, he had normal straight leg raising without any neurological deficit.
Xrays reveal a definite spondylolysis of L4 without any forward slip. Bilateral breaks in the pars interarticularis.
…” (Pt of Exhibit R1);
·report of Mr W Thomas, Neurosurgeon, dated 12 October 1982, to the applicant’s general practitioner, which states:
“Thanks for referring Mr Peter Blake who has suffered low back pain some sixteen years. The pain is absent when he is lying down but comes on everyday whilst he is showering and persists throughout the day, such that he is exhausted by the continual discomfort by the end of the day. It is associated with a sharp pain in the right testis and pain in the left flank. These latter pains too are absent when he is lying down but come on after he has been standing up. He has not had any pain or numbness or tingling in the feet or legs. There has not been any weakness in the lower limbs.
He believes his low back pain may have begun following a sporting injury whilst he was in the Navy.
Neurological examination of the lower limbs, including straight leg raising, was totally normal. There was some tenderness to deep palpation and pressure over the L4 and L5 spinous processes in the midline. His range of lumbar spinal movement was extremely good.
I note that the x-rays of the lumbar spine do show pars interarticularis fractures at the L4/5 level. There is no disc space narrowing nor are there any plain x-ray changes suggestive of spinal stenosis.
The clinical symptoms of local back pain with referral to the testis which come upon him only after he gets up from lying down in the morning and which are relieved promptly by lying back down again, suggest a mechanical instability in the low back. The finding of bilateral pars interarticularis fractures on his plain x-rays tend to confirm that his pain may relate to instability. …” (Pt of Exhibit R1);
·x-ray report regarding the applicant’s lumbo-sacral spine, dated 14 November 1982, which confirms the presence of “bilateral pars interarticularis defects at L4 associated with a minor degree of Grade I spondylolisthesis” (Pt of Exhibit R1);
·letter from Mr Collibee to the Office of the Commissioner for Employees’ Compensation, dated 18 February 1983, which states:
“…
I think in fairness to Mr Blake that he has had as far as I can determine, a continuing history of back disability since the accident of 1965. It would appear that his problem has run a fluctuating course, at times he has been satisfactory, and at other times, suffering from a significant disability.” (Pt of Exhibit R1);
·report of Mr B Slinger, Orthopaedic Surgeon, to the DVA, dated 23 March 1983, which states:
“This man referred for assessment of a claim for symptoms in the lumbar spine.
He was employed in the Service from 1962-1982 working as a tradesman till 1974, and then subsequently as an Instructor.
He described an injury in March 1965, when whilst playing cricket, he fell landing on his back, and whilst he did not receive treatment he told me he complained of discomfort which persisted until further injury in 1971, when at cricket following an episode of bowling some 6 overs, he experienced aggravation of symptoms of low back, and was admitted to Sick Bay for one week. He has had continuous back pain since the original injury in 1965, and finds that standing, walking, or sitting provides aggravation, that his symptoms limit him, he is unable to play squash and he has attended for treatment by my orthopaedic colleague, Mr Collibee, which treatment has included a lumbo-sacral brace, which he wears at times of exacerbation. He has also attended my anaesthetic colleague, Dr Giles, for cryoprobe treatment which has not provided him with any lasting relief. Also at the present time he is going for a programme of physiotherapy.
…
X-rays of the lumbar spine showed bilateral pars intra-articularis (sic) defects at the L4 level with a Grade 1 spondylolisthesis.
This man does appear to have significant symptoms in the low back, which chronologically date from his original accident in 1965. His present symptoms are most likely related to a degree of instability relating to the demonstrable radiological abnormality.
The accident described in 1965 and 1971 would not under ordinary circumstances be likely to cause anything more than an acute low back strain, symptoms from which I would consider would have settled promptly, and would not be contributing materially, or indeed in any way to his present symptoms”. (Pt of Exhibit R1);
·CT report regarding the applicant’s lumbar spine, dated 3 February 2004, which notes, inter alia, “bilateral pars fractures” at the L4/5 level and “Grade I forward slip of L4 upon L5” (Exhibit A3);
·CT report regarding the applicant’s lumbo-sacral spine, dated 7 April 2006, which notes, inter alia, ”bilateral spondylolysis with grade 2 spondylolisthesis at L4-L5 level”, and “disc pathology at the [L4, L5 and S1] levels … and most prominent at L4-L5 level” (Exhibit A4);
·report of Dr I Catto (the applicant’s treating general practitioner) to the Military Rehabilitation and Compensation Commission, dated 5 July 2006, which states:
“Mr Blake was recently confirmed on CT examination of his lower back to now have a disc prolapse (‘right posterolateral disc herniation with compromise of the right exiting L4 nerve root’); this is a new development sine his last CT scan in 2004.
It is my opinion however that, rather than something entirely new, this is a further development of his known chronic back problem. He has a congenital L5 spondylolysis and documented increasing spondylolisthesis.
This became symptomatic for the first time after a fall in 1965. Symptoms were worsened by a second fall in 1971. He was commissioned to active service in Vietnam in spite of the known back problems and, predictably, his back problems became worse as a result.
In summary back injuries in 1965, and 1971, and then active military service in Vietnam have all directly been responsible for aggravating his pre-existing spondylolysis.” (T22, p 119);
·report of Dr J Kemp, Consultant Psychiatrist, to the DVA, dated 9 March 2006, which contains the following diagnosis:
“In my opinion Mr Peter Blake is suffering from Major Depressive Disorder which has arisen secondary to longstanding chronic pain. The chronic pain syndrome originates from his back injury dating back to his naval service and a presumed diagnosis of Spondylolysis of L4 with pars defects at L4/L5, spondylolisthesis of L4. The onset of depressive disorder most likely occurred about eighteen months ago with escalation of symptoms as such that treatment for Major Depression was initiated by his General Practitioner in early 2006 … ” (T13, pp 72-78);
·reports of Dr I Catto, dated 9 November 2005 and 20 January 2006, in which a diagnosis of hypertension is made and the date of clinical onset of hypertension is stated to be 3 November 2004 (T4, p 35; T12, p 69).
The evidence of Mr Philip Hardcastle
10. Mr Hardcastle, Orthopaedic Surgeon, at the request of the DVA prepared 2 reports regarding the applicant, one dated 7 December 2006, the other dated 22 November 2007.
11. In his report of 7 December 2006 (Exhibit R2) Mr Hardcastle summarised the applicant’s relevant RAN service history as follows:
“…
He reports that he didn’t have any symptoms in relation to his back before joining the RAN. In 1965 he evidently fell while playing cricket and developed low back pain. He said that DVA had reported as a pre-existing spondylolysis. I am not sure as to how this diagnosis came as in the enclosed document (medical history sheet) no x-ray was taken so I gather this must have been something made retrospectively.
Following this aggravation he said he had continued low back pain and did active service in Vietnam. He said his duties here were quite physical and involved jumping up and down off different heights on the ship as well as difficulty moving through the ship with confined spaces and carrying various heavy items including timber and pumps.
He reports his groin and testicle pain starting around 1965 as well and when they completed the duties in Vietnam the ship went to the USA. He said he played cricket on his arrival there and after about 4 balls he developed severe back pain. They subsequently returned to Australia and between 1971 and 1974 he worked as a shipwright with a lot of back pain and then changed in the RAN to teaching. He said the only sport he played following this was occasional volley ball.
He had problems with ongoing low back pain up until his time of discharge though he said he had almost no treatment between 1972 and 1982. …”
He subsequently expressed his opinion as follows:
“Mr Blake has a segmental instability problem at L4/5. …
Causation of the spondylolysis is an issue. There is a hereditary predisposition which he doesn’t demonstrate any radiological evidence of from the CT scan I reviewed. There’s no evidence that he had spondylolysis at the time of his joining the RAN. It is recognized that spondylolysis is not present at birth and that although a high percentage have occurred by the age of 6 there is an increased incidence of spondylolysis up until adulthood.
His first symptoms were in 1965, 3 years after he joined the service. This does fit the time frame that the spondylolysis developed during his first 3 years of naval service. Since then the spondylolysis has been symptomatic with x-rays not taken until about 1971 (sic) which demonstrated a longstanding spondylolysis. Although a date could not be put on this, from the report and my own experience there is evidence to support that the spondylolysis, particularly one at L4, has occurred after the age of 16 which we certainly see in clinical practice here. There’s no evidence to the contrary. …
…”
He then addressed specific questions asked of him as follows:
“1. When did he commence to suffer from spondylolysis?
In my opinion he developed the spondylolysis most likely in the first 3 – 4 years of his RAN service with the original symptoms in 1965 that are reported being from the spondylolisthesis (sic).
2. When did he commence to suffer from spondylolisthesis?
The spondylolisthesis which is due to a degeneration of the intervertebral disc at the L4/5 level in this case gradually narrowing resulting in a forward displacement of the spondylolysis (a spondylolysis does not displace forward until the degenerative process has been present for a period of time to allow disc space narrowing). Therefore the original x-ray reports in 1972 don’t demonstrate any forward displacement from my reference to the enclosures and that the spondylolisthesis has developed after this period of 1972.
3.Are you able to identify a cause for the spondylolysis and a cause for the spondylolisthesis?
There’s no evidence on the radiological investigations of a hereditary cause which are present in about 30% of patients with spondylolisthesis. There’s no clinical evidence that he suffered from back pain before joining the RAN and patients with spondylolysis which usually have some complaints particularly if they are involved in sporting activities which I understand he was playing some cricket before joining the RAN. His first complaints of pain didn’t come until 3 years after his naval service started and in this period he was playing I understand a reasonable amount of sport with his other activities and these in my opinion would be a significant contributing factor to the development of a spondylolysis.
4.Is there any indication that he suffered a high impact trauma to the spine resulting in an acute fracture of the vertebral arch or dislocation of the vertebra?
I could find no evidence in the history that there was a high impact trauma. The fall that he reported in my opinion is not high impact. In my opinion spondylolysis at L4 is more commonly associated with repetitive movement such as sport in the young immature spine which in males is before the age of 21. This repetitive action results in a stress fracture. The stress fracture in some cases will heal but in other cases won’t and go on and develop a spondylolysis which becomes chronic and won’t heal.
…”
12. In his report of 22 November 2007 (Exhibit R5) Mr Hardcastle addressed further specific questions asked of him as follows:
“1. Are you able to express an opinion as to the date of clinical onset of spondylolysis?
...
I don’t have specific information in relation to what activities Mr Blake was involved with as part of his RAN service in the first few years but what is apparent is that from the history the spondylolysis became apparent or symptomatic at the time of the fall in 1965.
It is not unusual for symptoms from spondylolysis to resolve and then reappear with the spondylosis at times healing and then a recurrent fracture occurs at a later date with further stress or alternatively there was an un-united spondylolysis which caused some local pain due to soft tissue irritation and this resolved but the spondylolysis remained only to be re-aggravated at a later date.
The only x-ray performed was some 7 years after and I have not reviewed the x-ray only the report details. What can be said is that if on plain x-rays the spondylolysis is clearly apparent which it was and it’s been there for a number of years. No more can be said about this. This would however fit with the development of the spondylolysis around the time of the fall in 1965. We see them [in] cricketers developing quite often early in the season when they start doing repetitive exercises and activity in preparation for the season and it wouldn’t be unreasonable to support the development of a spondylolysis as a result of sporting and exercise activities around 1965 and then the fall resulting in an aggravation of this rendering it symptomatic. The fall at cricket wouldn’t constitute high impact trauma appreciating the latter is an imprecise term but certainly would constitute impact trauma of a moderate degree dependent on the nature of the fall and also the associated activities in relation to the sport.
The history subsequently of this becoming symptomatic again while in the USA and bowling is quite typical of a spondylolysis which had not fully united and subsequently with some extra trauma refractures or the fibrous union becomes disrupted resulting in the condition becoming symptomatic.
…
2.Are you able to express an opinion on the history given to you and the material you have seen that Mr Blake experienced a high impact trauma to the spine resulting in an acute fracture of the vertebral arch or dislocation of the affected vertebra within the 6 weeks before the clinical onset of spondylolysis?
As mentioned under No 1 I find the definition of a high impact trauma difficult. If it is considered by the Board that a fall while running is high impact then I would accept that the fall as described in 1965 fits with a high impact injury and is consistent with the development of an acute fracture of the vertebral arch and also within the 6 weeks before the clinical onset of spondylolysis.”
13. In his oral evidence Mr Hardcastle said that it is likely that the applicant’s spondylolysis, which developed in 1965, never fully healed but rather subsequently stabilised by fibrous union, and that that fibrous union was itself subsequently broken down by his activities in RAN service.
14. Mr Hardcastle agreed that the activity of jumping from a height of approximately 1.8 metres onto a steel deck would involve a high impact trauma. Asked whether that sort of activity and trauma would cause the breaking down of the aforementioned fibrous union and an aggravation of the condition of spondylolysis, Mr Hardcastle responded:
“I think you can say that, I think you can say that, yes. You could probably do it, he might do it 20 times and he’s fine, even though it’s high impact, but you hit slightly at the wrong position at the wrong time and, bang, it can go.”
Asked whether that would involve a clinical worsening of that condition, Mr Hardcastle responded:
“Yes, I would have thought so”
and added:
“It may not – it probably is not going to move or dislocate any further, but it’s got potential to break the fibrosis and that can be a clinical worsening there, but then he’s got a whole – the whole thing has got to go through repair again, and the repair is probably not even going to be quite as strong the second or third time. If you keep breaking these things down repetitively the repairs usually aren’t quite as strong, you know, fibrous tissue doesn’t – it repairs best the first time.”
Additional material
15. Additional material, which is in evidence before the Tribunal, includes the following:
·a Claim for Compensation form, under the Commonwealth Employees’ Compensation Act 1930 (Cth), dated 3 July 1971, lodged by the applicant with the Department of Navy, whereby he claimed compensation for an injury described as “sprained back” sustained in March 1965 in circumstances described by him as follows:
“Playing cricket I injured my back, but did not warrant my being seen by medical officer. It did not worry me until about 23-9-65 when I reported it to the medical officer at HMAS ‘Nirimba’” (Exhibit R4);
·a statement made by the applicant to the Department of Repatriation, dated 9 December 1982, as follows:
“… in 1965 while serving in Australia I injured my back while playing cricket (service game). In July 1971 I suffered a further injury to my spine again while playing (service) cricket. Between these two injuries I experienced some back pain while working and it prevented me from playing sport although the pain was not as severe as it has been in the last two years.
…” (Pt of Exhibit R1)
The Relevant Legislation
The VE Act
16. Section 9(1) relevantly provides:
“… 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;
…
(e) the injury suffered, or disease contracted, by the veteran:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
…”
Section 5D(1) contains the following relevant definitions:
“disease means:
(a)any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b)the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c) the aggravation of such an ailment, disorder, defect or morbid condition; or
…”
“injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:
(a) a disease; or
(b) the aggravation of a physical or mental injury.”
Section 7(1) relevantly provides:
“…for the purposes of this Act:
(a)a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; …
…”
17. Section 120, which deals with the standard of proof required for claims under the VE Act, relevantly provides:
“(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.
…”
Section 120A relevantly provides:
“…
(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.”
The Statements of Principles
18. The Repatriation Medical Authority (established by s 196A(1) of the VE Act) has determined, under s 196B(2) of the VE Act, the following relevant Statements of Principles (“SoPs”) which are presently in force:
· Statement of Principles concerning Spondylolisthesis and Spondylolysis (Instrument No 5 of 2006);
· Statement of Principles concerning Depressive Disorder (Instrument No 17 of 2007);
· Statement of Principles concerning Hypertension (Instrument No 35 of 2003, as amended by Instrument No 3 of 2004 and Instrument No 11 of 2008).
The SoP concerning Spondylolisthesis and Spondylolysis relevantly states:
“…
Basis for determining the factors
4. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that spondylolisthesis and spondylolysis and death from spondylolisthesis and spondylolysis can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces under the VEA, or members under the Military Rehabilitation and Compensation Act 2004 (the MRCA).
Factors that must be related to service
5. Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Factors
6. The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting spondylolisthesis and spondylolysis or death from spondylolisthesis and spondylolysis with the circumstances of a person’s relevant service is:
(a) experiencing a high impact trauma to the spine resulting in an acute fracture of the vertebral arch or dislocation of the involved vertebra within the six weeks before the clinical onset of spondylolisthesis or spondylolysis; or
…
(h) experiencing a high impact trauma to the spine resulting in an acute fracture of the vertebral arch or dislocation of the involved vertebra within the six weeks before the clinical worsening of spondylolisthesis or spondylolysis; or
…
Factors that apply only to material contribution or aggravation
7. Paragraphs 6(h) to 6(k) apply only to material contribution to, or aggravation of, spondylolisthesis or spondylolysis where the person’s spondylolisthesis or spondylolysis was suffered or contracted before or during (but not arising out of) the person’s relevant service.
…”
The SoP concerning Depressive Disorder relevantly states:
“…
Basis for determining the factors
4. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that depressive disorder and death from depressive disorder can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces under the VEA, or members under the Military Rehabilitation and Compensation Act 2004 (the MRCA).
Factors that must be related to service
5. Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Factors
6. The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder or death from depressive disorder with the circumstances of a person’s relevant service is:
…
(i) having chronic pain of at least three months duration at the time of the clinical onset of depressive disorder; or
…
Other definitions
9.For the purposes of this Statement of Principles:
‘chronic pain’ means continuous or almost continuous pain, which may or may not be ameliorated by analgesic medication and which is of a level to cause interference with usual work or leisure activities or activities of daily living;
…”
The SoP concerning Hypertension relevantly states:
“…
Basis for determining the factors
3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that hypertension and death from hypertension can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting hypertension or death from hypertension with the circumstances of a person’s relevant service are:
...
(o) suffering from a clinically significant depressive disorder for the six months immediately before the clinical onset of hypertension; or
…
Other definitions
8. For the purposes of this Statement of Principles
…
‘clinically significant depressive disorder’ means any depressive disorder attracting a diagnosis under DSM-IV sufficient to warrant ongoing management by a psychiatrist, counsellor or General Practitioner;
…
‘DSM-IV’ means the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders;
…”
In each of the abovementioned SoPs the expression “relevant service” is defined to mean, inter alia, “operational service” within the meaning of the VE Act.
Analysis and Findings
The relevant injuries/diseases
19. It is common ground that the applicant suffers from, inter alia, lumbar spondylolysis, depressive disorder, and hypertension, and, on the basis of the medical evidence before it, the Tribunal so finds. The Tribunal also finds that each of those conditions is a “disease” (as defined in s 5D(1) of the VE Act) for the purposes of the VE Act.
Is each of the applicant’s relevant diseases a war-caused disease, within the meaning of s 9 of the VE Act?
20. This question is, in accordance with s 120(1) of the VE Act, to be determined on the “reverse criminal” standard of proof – that is to say, the Tribunal must determine that the relevant disease is a war-caused disease “unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination”. Pursuant to s 120(3) of the VE Act, the Tribunal shall be so satisfied if, after consideration of the whole of the material before it, it is of the opinion that that material “does not raise a reasonable hypothesis connecting the … disease … with the circumstances of ” the applicant’s operational service. If a relevant SoP, determined under s 196B(2) of the VE Act, is in force, a raised hypothesis connecting the relevant disease with the circumstances of the applicant’s operational service will be “reasonable” only if that SoP upholds that hypothesis: see s 120A(3) of the VE Act.
21. For the purpose of determining whether each of the applicant’s abovementioned diseases is a war-caused disease, within the meaning of s 9 of the VE Act, the Tribunal will follow the approach prescribed by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98, as subsequently qualified by the Full Court: see Bull v Repatriation Commission (2001) 188 ALR 756 at 759; Woodward v Repatriation Commission (2003) 131 FCR 473 at 483; Collins v Administrative Appeals Tribunal (2007) 96 ALD 536 at 543; Byrne v Repatriation Commission (2007) 97 ALD 359 at 366.
Does the material before the Tribunal raise a hypothesis connecting the applicant’s diseases with the circumstances of his operational service?
22. The Tribunal, having considered the whole of the material before it, is of the opinion that that material raises a hypothesis connecting the applicant’s abovementioned diseases with the circumstances of his operational service as follows:
· activities undertaken by the applicant in the course of performing sea duties on board HMAS Sydney in the course of his operational service – in particular, the jumping out of boats (32 ft motor cutters) stowed in their cradles onto the ship’s steel deck from a height of approximately 1.8 metres – aggravated an existing lumbar spondylolysis condition or, alternatively, caused the development of that condition; and
· he has thereafter suffered chronic lower back pain by reason of that aggravation of his lumbar spondylolysis condition, or, alternatively, by reason of the development of that condition, which has resulted in his contracting depressive disorder which, in turn, has resulted in his contracting hypertension.
The SoPs
23. The SoPs concerning the applicant’s relevant diseases have been specified in paragraph 18 above.
Does the material before the Tribunal raise a reasonable hypothesis connecting the applicant’s diseases with the circumstances of his operational service?
24. In accordance with s 120A(3) of the VE Act, the abovementioned hypothesis raised on the material before the Tribunal will be a reasonable hypothesis only if it is upheld by the relevant SoPs.
25. As regards the SoP concerning Spondylolisthesis and Spondylolysis, the applicant relied on para (h) – or, alternatively, para (a) – of clause 6, and submitted that the material before the Tribunal raised the (more specific) hypothesis that:
·the applicant contracted spondylolysis in or about 1965 (that is, before the commencement of his operational service), and his activities of jumping from the stowed motor cutters onto the steel deck some 1.8 metres below, in the course of his operational service on board HMAS Sydney in the period 13 May 1971 – 1 June 1971, resulted in the aggravation of his existing spondylolysis in June 1971 or very early July 1971 (when he first claimed compensation in respect of his lower back condition – see paragraph 15 above);
or, alternatively, that:
·the applicant first contracted spondylolysis in June 1971 or very early July 1971 (when he first claimed compensation in respect of his lower back condition) as a result of the abovementioned activities in the abovementioned period of operational service.
26. The relevant paragraphs of clause 6 of the SoP concerning Spondylolisthesis and Spondylolysis relevantly require the “experiencing [of] a high impact trauma to the spine resulting in an acute fracture of the vertebral arch or dislocation of the involved vertebra within the six weeks before the clinical worsening” (para (h)), or “the clinical onset” (para (a)), “of … spondylolysis”.
27. There is material before the Tribunal – namely, the evidence of Mr Hardcastle – which points to the applicant’s having experienced a “high impact trauma” to his lumbar spine in the course of his abovementioned activities of jumping from a height of approximately 1.8 metres onto the steel deck of the ship. The Tribunal notes that the phrase “high impact trauma” is not defined in the SoP.
28. In the opinion of the Tribunal, however, the material before it does not point to the applicant’s experiencing of that high impact trauma having “result(ed) in an acute fracture of the vertebral arch or dislocation of the involved vertebra within the six weeks before the clinical onset” or “the clinical worsening” of his spondylolysis, as relevantly required by the SoP. There is, in the first place, no radiological material before the Tribunal which points to the existence or the occurrence of an “acute fracture of the vertebral arch or dislocation of the… vertebra” within the relevant period of 6 weeks. Furthermore, the evidence of Mr Hardcastle, in the Tribunal’s opinion, goes no further than to acknowledge the possibility that the applicant’s abovementioned jumping activities might have caused an aggravation or a clinical worsening of an existing spondylolysis condition.
29. In addition, there is no material before the Tribunal which points to the clinical onset, or the clinical worsening, of the applicant’s spondylolysis having occurred within 6 weeks of the particular period of his operational service on which he chiefly relied, namely, the period from 13 May 1971 to 1 June 1971, or, indeed, within 6 weeks of the completion of his operational service on 17 December 1971.
30. As regards the clinical onset of the applicant’s spondylolysis, the Tribunal is of the opinion that there is material before it – in particular, the reports and evidence of Mr Hardcastle – which points to that having occurred in or about 1965 – that is, some 5 years before the commencement of his operational service on 16 February 1970.
31. The phrase “clinical worsening” (within the meaning, and for the purposes, of the various SoPs in which it appears) has recently been considered by the Federal Court of Australia. In Repatriation Commission v Milenz (2006) 93 ALD 107 Finn J said (at 113-114):
“[33] The question whether a disease as defined in a SoP has clinically worsened is a medical one, raising as it does a diagnostic question. I have emphasised ‘as defined’ for the reason that the clinical worsening must be of the disease having the features, symptoms and manifestations prescribed in the relevant SoP’s definition …” (original emphasis)
Later (at 115-116) his Honour commented that the question whether there has been a “clinical worsening” of a particular disease is
“a diagnostic question that addresse(s) the features and symptoms of that [disease] as defined in the SoP and require(s) [that] a clinical judgment be made”.
32. In the SoP concerning Spondylolisthesis and Spondylolysis, the term “spondylolysis” is defined in para (b) of clause 3 as follows:
“‘spondylolysis’ means a defect or fracture, unilateral or bilateral, involving the pars interarticularis of a vertebra. The pars interarticularis is that part of the vertebral arch that extends between the superior and inferior articular processes.”
There is no material before the Tribunal which points to the clinical worsening of spondylolysis (as defined in the abovementioned SoP) having occurred within 6 weeks of the particular period of the applicant’s operational service on which he chiefly relied, namely, the period from 13 May 1971 to 1 June 1971, or, indeed, within 6 weeks of the completion of his operational service on 17 December 1971. The earliest radiological material before the Tribunal is the x-ray report of 17 May 1972 which notes the presence of “spondylolysis at L4-5 level”, and there is no radiological or other medical material before the Tribunal pointing to a clinical worsening of the applicant’s spondylolysis prior to 1982.
33. Accordingly, the Tribunal is of the opinion that the material before it does not raise a hypothesis which accords with either para (a) or para (h) of clause 6 of the SoP concening Spondylolisthesis and Spondylolysis. None of the other paragraphs in clause 6 of that SoP was relied on by the applicant, and, in any event, the Tribunal is of the opinion that the material before it does not raise a hypothesis which accords with any of those paragraphs.
Findings
34. Pursuant to s 120A(3) of the VE Act, the Tribunal is of the opinion that the material before it does not raise a hypothesis which is upheld by the SoP concerning Spondylolisthesis and Spondylolysis and that, accordingly, for the purposes of s120(3) of the VE Act, that material does not raise a reasonable hypothesis connecting the applicant’s spondylolysis with the circumstances of his operational service.
35. In accordance with s 120(3) of the VE Act, the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the applicant’s spondylolysis is a war-caused disease. Pursuant to s 120(1) of the VE Act, therefore, the Tribunal finds that the applicant’s spondylolysis is not a war-caused injury or a war-caused disease, within the meaning of s 9 of the VE Act.
36. In the light of the abovementioned finding, the Tribunal is necessarily of the opinion that the material before it does not raise a hypothesis which is upheld by the SoP concerning Depressive Disorder, and that, accordingly, for the purposes of s 120(3) of the VE Act, that material does not raise a reasonable hypothesis connecting the applicant’s depressive disorder with the circumstances of his operational service.
37. In accordance with s 120(3) of the VE Act, the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the applicant’s depressive disorder is a war-caused disease. Pursuant to s 120(1) of the VE Act, therefore, the Tribunal finds that the applicant’s depressive disorder is not a war-caused injury or a war-caused disease, within the meaning of s 9 of the VE Act.
38. In the light of the lastmentioned finding, the Tribunal is necessarily of the opinion that the material before it does not raise a hypothesis which is upheld by the SoP concerning Hypertension, and that, accordingly, for the purposes of s 120(3) of the VE Act, that material does not raise a reasonable hypothesis connecting the applicant’s hypertension with the circumstances of his operational service.
39. In accordance with s 120(3) of the VE Act, the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the applicant’s hypertension is a war-caused disease. Pursuant to s 120(1) of the VE Act, therefore, the Tribunal finds that the applicant’s hypertension is not a war-caused injury or a war-caused disease, within the meaning of s 9 of the VE Act.
Decision
40. For the above reasons, the Tribunal affirms the decision under review.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr P A Staer, Member
Signed: .........................[Sgd M Rosair].........................
AssociateDates of Hearing 2 November, 13 December 2007
Date of Decision 30 January 2008
Counsel for the Applicant Mr R Grayden
Solicitor for the Applicant Hammond WorthingtonRepresentative of the Respondent Mr C Ponnuthurai
Department of Veterans’ Affairs
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