Boyce and Repatriation Commission

[2007] AATA 1127

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1127

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W200600269

VETERANS'      APPEALS        DIVISION		)
Re		GRAHAM BOYCE

Applicant

And REPATRIATION COMMISSION  

Respondent

DECISION

Tribunal Mr B.H. Pascoe, Senior Member
Brigadier A.G. Warner AM, LVO Member

Date13 March 2007  

PlacePerth

Decision The Tribunal varies the decision under review to the extent of finding that the applicant’s condition of osteoarthrosis of the left shoulder was defence caused.  In all other respects the decision is affirmed.

......(Sgd. Mr B H Pascoe)...................

Senior Member

VETERANS’ – eligible service – submariner – cervical spondylosis – osteoarthrosis of left shoulder – whether trauma – carrying loads on head

Veterans’ Entitlements Act 1986

REASONS FOR DECISION

13 March 2007	Mr B.H. Pascoe, Senior Member
Brigadier A.G. Warner AM, LVO Member

1.      This is an application to review a decision of the respondent that the applicant’s conditions of cervical spondylosis and osteoarthrosis of the left shoulder were neither war-caused nor defence caused.

2.      At the hearing the applicant Mr G. Boyce, was represented by Mr P. Lofdahl and the respondent by Mr C. Ponnuthurai, an advocate with the Department of Veterans’ Affairs.  Evidence was given by Mr Boyce who also tendered six statements by former Navy colleagues.  The respondent tendered a report by Commodore Brecht of Writeway Research Service Pty Ltd.

3.      Mr Boyce served in the Royal Australian Navy from 1964 to 1976 and from 1979 to 1989.  The majority of that time was served on Oberon class submarines.  He had deemed operational service from 24 August 1969 to 5 December 1969 and eligible defence service from 7 December 1972 to 9 January 1976 and 8 January 1979 to 9 January 1989.  After volunteering for submarines as a Leading Seaman in 1970 he progressed through the ranks and was promoted to Chief Petty Officer Marine Technical Propulsion (CPOMTP) in 1981.  He was discharged in 1989.  He has accepted disabilities of lumbar spondylosis, sensorineural hearing loss, depressive disorder, thoracic spondylosis and osteoarthrosis affecting both knees.

4. Mr Boyce has claimed that his cervical spondylosis and osteoarthrosis left shoulder are attributable to his eligible defence service. Pursuant to s 120(4) of the Veterans’ Entitlements Act 1986 (the Act) the Tribunal is required to decide the matter to its reasonable satisfaction. Under s 120B of the Act, the Tribunal is to be reasonably satisfied that an injury suffered was defence caused only if the material before it raises a connection between the injury and the particular service of the person and there is in force a Statement of Principles (SOPs) that upholds the contention that the injury is, on the balance of probabilities, connected with that service.  In this matter, the relevant SoPs are:

·Instrument No 32 of 2005 concerning Osteoarthrosis

·Instrument No 34 of 2005 concerning Cervical Spondylosis

Each SoPs sets out factors which must exist before it can be said that the injury is connected with the relevant service.  

In relation to osteoarthrosis, Mr Boyce relies on factor 6(f):

having a trauma to the affected joint within the twenty-five years before the clinical onset of osteoarthrosis in that joint; …

In relation to cervical spondylosis reliance is placed on:

6(f)      having a trauma to the cervical spine within the twenty-five years before the         clinical onset of cervical spondylosis; …

6(h)     carrying loads of at least twenty-five kilograms on the head while upright to a       cumulative total of a least 120,000 kilograms within any ten year period          before the clinical onset of cervical spondylosis, and where the clinical onset      of cervical spondylosis occurs within the twenty-five years following that   period. …

The definition of trauma is virtually identical under both SoPs. For cervical spine it states:

“trauma to the cervical spine” means a discrete injury, including G force-induced injury, to the cervical spine that causes the development, within twenty-four hours of the injury being sustained, or 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 ten days following their onset; save for where medical intervention for the trauma to the cervical spine has occurred and that medical intervention involves either:

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

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

(c)surgery to the cervical spine.

For osteoarthritis the definition excludes the words including G force-induced injury and replaces the words cervical spine with the word joint.

5.      In relation to the claim for osteoarthrosis, Mr Boyce had stated on the claim form that the symptoms were first noticed Whilst at sea on HMAS Orion approx 1980-1981.  Difficulty holding onto ladder with left hand while carrying items in the right hand. He had ticked No to the question Has there ever been an injury to this joint. No note of any such injury was contained in his medical records.  The only injury recorded was to his lower back in February 1981.  Mr Boyce said that this occurred when they were preparing to dive in rough weather in Jervis Bay and he slipped causing considerable bruising to his lower back.  He was evacuated and taken to hospital.  There is no note nor memory of any discrete injury to the cervical spine or shoulder.

6.      Subsequent to making the claim, Mr Boyce was reminded of an incident in 1979 by the then Coxswain of HMAS Orion, Mr J. Rana.  Mr Rana provided a letter dated 20 November 2006 in which he stated that Mr Boyce had fallen partially down and across an opened hatch, hitting his head and left shoulder on pipe work on the starboard side of the passageway.  He was given first aid, ice was applied to the shoulder and a sling was fitted to support the injured limb.  Severe bruising appeared after a few days and Mr Boyce complained of having no strength and limited movement in his left shoulder.  He remained at sea on light duties.  Mr Rana noted that Mr Boyce received no sympathy with the only concern being in regard to his ability to play in an upcoming Rugby match.  After this reminder, Mr Boyce recalled the incident and said that his arm remained in a sling for 5-6 days and it took a further 3-4 days before he had full use of the arm and shoulder.

7.      Much of the other documentary evidence tendered by Mr Boyce referred to the lack of medical services on board submarines and the culture of submariners to continue working notwithstanding injury so as not to let the other crew members down and a consequent lack of recording of injuries except those serious enough to warrant evacuation.  Both the respondent and Tribunal accepted this evidence.  Mr Boyce’s explanation for ticking No to the question of whether there had been an injury to the shoulder was that there was no reference in his records to such an injury and, being some 26 years later, had forgotten the 1979 incident.  He had recalled regular strength and mobility difficulties with the left shoulder and arm only.

8.      In relation to the cervical spondylosis Mr Boyce considered it likely that the injury in 1979 and/or the injury in 1981 had contributed to that condition.  It is clear, however, that no discrete injury to the cervical spine occurred which could in any way fit the requirements of trauma to the cervical spine required by the SoPs.  The alternative sought to be relied upon was Factor 6(h).  This was said to be satisfied by the said to be regular practice of opening hatches in the submarine by using the top of the head.  Mr Boyce said that it was common when climbing the ladder to a hatch and carrying supplies under one arm to use the top of the head to open the hatch.  Much of the report from Commodore Brecht related to attempts to assess the weight of the main entry and escape hatches on Oberon class submarines.  However, in oral evidence it became clear that, in the main, the hatches referred to by Mr Boyce were the internal between deck hatches.  Most were rectangular, varied from 500mm to 1-2 metres in size and were made of aluminium some 15-20mm thick.  He accepted that most were of a maximum weight of 20 kilograms with a possibility of 25 kilograms.  Mr Boyce said that for much of the time he was an outside engine room artificer with responsibility for all machinery outside the engine room including external hatch maintenance.  However he gave no evidence of attempting to open such external hatches using his head.  His evidence was primarily directed at the regular need to move stores between areas and the need to open hatches when carrying stores and the constant movement fore and aft in the submarine regularly requiring the negotiation of hatches. 

9.      On the basis of the evidence we are unable to be satisfied to our reasonable satisfaction or on the balance of probabilities that Mr Boyce could be said to have carried loads of at least 25 kilograms on his head to the extent required by the SoPs.  Even if the lifting of a hatch using the head can be said to be carrying loads on the head we are satisfied that they were rarely, if ever, of a weight of 25 kilograms.  Even if some were 25 kilograms in weight, the requirement for a total of 120,000 kilograms requires an average of 12,000 kilograms per year or 480 times.  We would have to consider this as most unlikely. Consequently, we find that Factor 6(h) of Instrument 34 of 2005 is not satisfied.  As indicated earlier we find also that Factor 6(f) is not satisfied.

10.     In relation to osteoarthrosis of the left shoulder, we are prepared to accept the evidence of Mr Rana and Mr Boyce that he did suffer a trauma to the affected joint within the definition of the SoPs and consequently satisfies Factor 6(f) of Instrument 32 of 2005.  Consequently that condition should be accepted as related to eligible service.

11.     As a consequence of the foregoing the decision under review should be varied to the extent of accepting osteoarthrosis of the left shoulder as being defence caused.

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B.H. Pascoe, Senior Member

Signed:         ..........(Sgd. Ms R Riberi)................................
   Associate

Date of Hearing  22 February 2007
Date of Decision  13 March 2007
Advocate for the Applicant       Mr P Lofdahl
Advocate for the Respondent   Mr C Ponnuthurai