Bolt and Repatriation Commission

[2003] AATA 523

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 523

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2002/218

VETERANS APPEALS  DIVISION		)
Re		WILLIAM JOHN BOLT

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Brigadier R D F Lloyd, Member

Date3 June 2003

PlacePerth

Decision The Tribunal affirms the decision under review.

...........(sgd R D F Lloyd).....................

Member

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ Entitlements – ex RAN – operational service World War 2 – claimed condition cervical spondylosis – whether applicant’s contended injury meets the requirements of the relevant Statements of Principle – not war caused

Veterans’ Entitlements Act 1986 ss 9, 120(1), 120(3), 120(A), 196B(2)

Re Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

3 June 2003 Brigadier R D F Lloyd, Member   

1.      This is an application by William John Bolt (“the applicant”) for a review of that part of the Veterans’ Review Board (“the VRB”) decision dated 27 May 2002, which affirmed an earlier determination by a delegate of the Repatriation Commission (“the respondent”) of 30 October 2001 refusing acceptance of cervical spondylosis as being war-caused, under the provisions of the Veterans’ Entitlements Act 1986 (“the Act”).

2.      Because of his unexpected failure to appear for the hearing on 26 May 2003, the applicant was contacted by telephone (at Geraldton) before its commencement. He advised that, although he had received the formal notification by mail of the hearing details, he had been confused as to what he had to do. He was given the alternative of him giving evidence and fully participating in the hearing by a conference telephone hook-up, or for the hearing to proceed in his absence using the documented evidence previously provided by him and other documentary material made available to the Tribunal. The applicant chose the latter course and the hearing proceeded, with his agreement, in his absence.

3. At the Tribunal hearing the applicant was not present, as discussed above, and was not represented. The respondent was represented by Mr C Ponnuthurai. The Tribunal had before it the documents filed by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”). In addition the respondent tendered further documents in evidence – it being considered that these, which are regarded as additional T document material, would help clarify the applicant’s claim and be of assistance to him as well as the Tribunal. The Tribunal agreed and the documents taken into evidence at the hearing are as follows:

(a)Exhibit R1: Copy of a letter from the applicant addressed to Mr G Follington (Department of Veterans’ Affairs) concerning the applicant’s injury in Darwin in 1945 – received by the Department on 8 January 1986.

(b)Exhibit R2: Copy of a letter from the applicant to the respondent in relation to a claim – which was treated by the respondent as being an application for increase in disability pension – dated 22 October 1996.

(c)Exhibit R3: Copy of a ‘Claim for Medical Treatment and Pension’ (Form Z) completed by the applicant and dated 19 July 1985 – being a claim for “osteoarthritis of spine”.

(d)Exhibit R4: Copy of Form D2046 – ‘Statement in Support of a Claim for Medical Treatment and Pension’ (undated), in support of the claim in Exhibit R3.

No additional documentary evidence was provided to the Tribunal by the applicant for the hearing.

4. The applicant enlisted in the Royal Australian Navy Reserve (RANR) and served on war service with the Royal Australian Navy (RAN) during a period of hostilities designated as being part of World War 2. He enlisted on 6 February 1945 and was discharged on 30 October 1946. Under the provisions of the Act, this full period is regarded as operational service as defined. In view of this, the Tribunal is to determine the matter before it in accordance with s 120(1) and 120(3) of the Act. Under these provisions the Tribunal is required to decide whether, on the material before it, there is raised a reasonable hypothesis to connect the claimed condition with the applicant’s operational service. If so it must determine, based on the facts before it, that the condition is war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.

5. Additionally, as the claim was lodged after 1994, by virtue of s 120(A) of the Act, the Tribunal is required to assess the matter in accordance with any relevant Statement of Principle (“SoP”) issued by the Repatriation Medical Authority (“the RMA”).

6.      The Tribunal is reasonably satisfied, based on the documented medical evidence before it and in particular the opinion of Dr R Borcherds at T7 page 27, that the applicant’s claimed condition is appropriately diagnosed and described as cervical spondylosis. Furthermore from this and other evidence made available to the Tribunal, its opinion is that the clinical onset of this condition was most likely to have been in the 1990s, and not later than 2001.

7.      The applicant’s contention is that his ‘upper spine’ had been injured at the same time as he had suffered a trauma to his back in Darwin in 1945. Consequently, he believes not only was damage done to his lumbar spine at that time but to his cervical spine also, and that this has subsequently led to the claimed condition of cervical spondylosis. The condition of “lumbar spondylosis with disc degeneration” was accepted by the respondent in a determination dated 6 February 1986. This was based on the respondent’s delegate accepting at that time the applicant’s statement that the back injury had occurred at sport whilst he was in Darwin in 1945 – albeit there was no record in Service Medical records of such an injury incident (T6, page 22).

8.      Whilst there is no specific material before the Tribunal to actually support the applicant’s current cervical spondylosis contention, following the accepted process set out by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82, the Tribunal is relevantly satisfied that it does adequately point to an hypothesis connecting the applicant’s cervical spondylosis condition with his war service. However it does so subject to the hypothesis then meeting the requirements of the relevant SoP, and if necessary to it finally being tested against the findings of facts in this matter – yet to be made by the Tribunal.

9. There is an SoP in force determined by the RMA, under s 196B(2) of the Act, dealing with cervical spondylosis. The current SoP is Instrument 50 of 2002 which the Tribunal is initially required to use. Should it not find in favour of applicant in so doing, the applicant is entitled to the earlier SoP – current at the time of the primary decision by the respondent – being used (ie. SoP Instrument 31 of 1999). However, the Tribunal notes that this earlier SoP provides a more difficult situation for the applicant, in terms of the definition of “trauma to the cervical spine”, hence would disadvantage him and therefore will not be used by the Tribunal.

10.     The only relevant factor in SoP Instrument 50 of 2002 is factor 5(h), which states as follows:

“(h)suffering a trauma to the cervical spine before the clinical onset of cervical spondylosis; or”

The term “trauma to the cervical spine” is defined in paragraph 8 of the same SoP, which states as follows:

“’trauma to the cervical spine’ means a discrete injury to the cervical spine that causes the development, within 24 hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the cervical spine. These symptoms and signs must last for a period of at least seven days following their onset; save for where medical intervention for the trauma to the cervical spine has occurred, where that medical intervention involves either:

(a)       immobilisation of the cervical spine by splinting, or similar external agent; or

(b)       injection of corticosteroids or local anaesthetics into the cervical spine; or

(c)       surgery to the cervical spine.”

11.     In this instance, the time of ‘clinical onset’ of the applicant’s cervical spondylosis condition is not an issue. Clearly, from the evidence before the Tribunal, the contended injury in 1945 was before the onset of the spondylosis condition, which the Tribunal is satisfied was most likely to be in the 1990s (paragraph 6 above refers). In this particular respect therefore, there is no conflict with the time requirement in factor 5(h) of the SoP.

12.     Whilst the Tribunal accepts that the applicant’s contention raises an hypothesis of a connection with war service, it is another matter – again following the Deledio process – as to whether it is a reasonable one. To be so it must meet the requirements (fit the template) of the relevant factor 5(h) of the SoP. In this regard the only material before the Tribunal concerning spinal injury to the applicant is that related to his lower back (lumbar spine). The applicant simply states that his cervical spine condition was caused by the same circumstances as his accepted lumbar condition. There is no indication at all in his Service medical records, including his discharge medical, of him having suffered an injury to his neck or upper spine. Nor is there any evidence before the Tribunal of him post-war having referred to an upper spine/neck trauma or injury having occurred at the same time as his 1945 Darwin low back injury – or for that matter at any other time during his war service.

13.     The information concerning the applicant’s injury in 1945 is scanty in relation to it raising a reasonable hypothesis in terms of the SoP. At Exhibit R4 in the applicant’s statement in support of his claim for osteoarthritis of spine, formally diagnosed as lumbar spondylosis with disc degeneration, he states as follows:

“I was injured in middle of back while serving in Darwin and have had pain on and off over the years till I could no longer work. Besides GPs I have attended Dr Ian Stewart, orthopaedic surgeon, and Dr Nunn (specialist) diagnosed osteoarthritis of spine and incurable.”

Dr Nunn’s related report dated 3 October 1985 (T5 page 20) states, in part, as follows:

“I saw this patient [the applicant]…on 18..1..1983 regarding his complaint of low back pain ? to the left leg…X-rays showed severe degeneration changes of the lower three lumbar discs…”

Dr Nunn makes no reference in this report regarding the applicant’s back condition other than to his low back/lumbar spine region.

14.     In the decision of the respondent accepting his lumbar spine condition as being war-caused, the delegate records that the applicant had stated that he had “received a knee in the back while practising football” in Darwin in 1945. The applicant had advised that “he had about 10 days off duty, resuming light duties”. The delegate goes on to record that the applicant had stated that “he has had recurring back problems in the same area of his back since the initial Service injury”.

Tribunal’s conclusions

15. From the material before it, as outlined above, and the lack of evidence concerning the effects of the 1945 back injury to the applicant’s neck/cervical spine, the Tribunal is not relevantly satisfied that the hypothesis raised by the applicant fits sufficiently within the template of the SoP (factor 5(h) and the paragraph 8 definition). It follows, in accordance with the Act and the Federal Court in Deledio, that the claim on this basis must fail..

16. If a very liberal view were to be taken and the hypothesis were to be regarded as a reasonable one in terms of the Act, then from the facts before it and the Tribunal’s conclusions it would then in any case find that the evidence does not adequately support the 1945 back injury of the applicant resulting in an upper spine trauma sufficient to have been causal in the subsequent claimed condition of cervical spondylosis.

17.     In neither case therefore, as outlined in paragraphs 15 and 16 above, is the Tribunal satisfied beyond reasonable that the cervical spondylosis condition claimed by the applicant is war-caused.

Decision

18. For the above reasons, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal’s decision is to affirm the Veterans’ Review Board decision under review of 27 May 2002 that cervical spondylosis is not war-caused.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Brigadier R D F Lloyd, Member

Signed:         ............(sgd V Wong)...................................
  Associate

Date/s of Hearing  26 May 2003
Date of Decision  3 June 2003
Counsel for the Respondent     Mr C Ponnuthurai