Boys and Repatriation Commission (Veterans' entitlements) - [2020] AATA 2116

Boys and Repatriation Commission (Veterans' entitlements) [2020] AATA 2116 (7 July 2020)
Division:VETERANS' APPEALS DIVISION
File Numbers: 2017/7128-9
Re:DALE MICHAEL BOYS
APPLICANT

AndREPATRIATION COMMISSION
RESPONDENT

DECISION
Tribunal:Senior Member Katter
Date:7 July 2020
Place:Brisbane

The decision under review is affirmed.
.............................[SGD]...........................................
Senior Member Katter
CATCHWORDS
VETERANS’ AFFAIRS – cervical spondylosis – special rate – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth)
CASES
John Joseph Flentjar v Repatriation Commission [1997] FCA 1200
Re Repatriation Commission v Norman Edwin Tuite [1993] FCA 39; (1993) 39 FCR 540; (1993) 29 ALD 609
REASONS FOR DECISION
Senior Member Katter
1 July 2020
APPLICATION

This is an application for review as to a decision finding that the Applicant’s cervical spondylosis was not related to service and that the Applicant was eligible for payment of the pension at 100% of the general rate[1].
[1] Exhibit 1, T2, page 6.
BACKGROUND
The Applicant served in the Australian Army from 16 June 1979 until 30 June 1986[2].
[2] Exhibit 1, T36, page 113.
By a claim form received by the Respondent on 14 May 2014, the Applicant stated at Part E of the form as to details of the new disabilities claimed as war or defence caused[3]:
[3]           Exhibit 1, T82, pages 305-316.
“List the disabilities you are now claiming and describe the signs and           symptoms …
Disability 1 Neck Problems
Signs and symptoms Neck pain. Pain, limitation of movement.
How do you believe your service caused, contributed to, or aggravated this          disability?
Results of MBA and MVA during service. Copies of extracts from SMR attached.            Also refer statement …
Disability 2 Headaches
Signs and Symptoms As described.
How do you believe your service caused, contributed to, or aggravated this          disability?
I consider that my headaches are related to my whiplash injuries suffered during service. Refer attached statement.”
The statement attached to that claim form received by the Respondent on 14 May 2014, stated relevantly[4]:
“Neck problem.
I consider that the troubles I am having with my neck have been caused by my     Army service.
On 8 March 1980 I had an accident on my motor bike whilst returning to camp      from weekend leave in Melbourne. On that occasion, I was treated at PANCH                Hospital. The report of that treatment stated; “Whip lash injury-pain down Right side of neck, pins and needles down right arm. All movement of neck … -tender            C6.”
Then, on 16 January 1982, I had a motor vehicle accident and the report of this    accident states; “Whiplash injury to neck.” On this occasion I was returning to         camp after a period of Annual Recreation Leave (ARL) …
Dr Daniel O’Dea has diagnosed my neck problems as Cervical Spondylosis and the Relevant Statement of Principles for this condition is Instrument No 34 of 2005.       I have had almost continual pain in my neck to varying degrees since these       accidents …
Enclosed are extracts from my service medical records dealing with these            accidents and the treatment…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] AATA 2116
Decision Date: 7 July 2020

CaseChat Overview and Summary

This matter concerned an application for review of a decision by the Repatriation Commission. The applicant, who served in the Australian Army between 1979 and 1986, claimed that his cervical spondylosis and associated headaches were related to his service. He specifically pointed to two motor vehicle accidents during his service, one in March 1980 involving a motorbike and another in January 1982 involving a car, both of which resulted in whiplash injuries. The applicant also referred to a third accident where a fallen tree smashed his car's windscreen. He sought acceptance of cervical spondylosis as defence-caused and an assessment for payment at the special rate.

The legal issues before the court were whether the applicant's cervical spondylosis was caused by his defence service, and if so, whether he was eligible for payment at the special rate. The applicant's claim for cervical spondylosis was based on the diagnosis by Dr Daniel O’Dea, who considered the condition and the applicant's headaches to be cervicogenic and part of his neck problems. The applicant provided evidence detailing the circumstances of the accidents and the subsequent pain and limitations experienced.

The court considered the applicant's evidence regarding the two motor vehicle accidents during his service, which resulted in whiplash injuries. It was noted that the applicant had also been involved in a third accident with a fallen tree, but he stated this did not cause neck problems. The court found that the applicant's incapacity from defence-caused injury or disease did not, on its own, prevent him from undertaking remunerative work on a part-time or intermittent basis, thus not meeting the criteria for the intermediate rate under section 23 of the relevant Act. Furthermore, the court determined that the extreme disablement adjustment under section 22 did not apply, having regard to the applicant's age.

The decision under review was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

This is an application for review as to a decision finding that the Applicant’s cervical spondylosis was not related to service and that the Applicant was eligible for payment of the pension at 100% of the general rate[1]. [1] Exhibit 1, T2, page 6.BACKGROUND The Applicant served in the Australian Army from 16 June 1979 until 30 June 1986[2]. [2] Exhibit 1, T36, page 113. By a claim form received by the Respondent on 14 May 2014, the Applicant stated at Part E of the form as to details of the new disabilities claimed as war or defence caused[3]: [3] Exhibit 1, T82, pages 305-316. “List the disabilities you are now claiming and describe the signs and symptoms … Disability 1 Neck Problems Signs and symptoms Neck pain. Pain, limitation of movement. How do you believe your service caused, contributed to, or aggravated this disability? Results of MBA and MVA during service. Copies of extracts from SMR attached. Also refer statement … Disability 2 Headaches Signs and Symptoms As described. How do you believe your service caused, contributed to, or aggravated this disability? I consider that my headaches are related to my whiplash injuries suffered during service. Refer attached statement.” The statement attached to that claim form received by the Respondent on 14 May 2014, stated relevantly[4]: “Neck problem. I consider that the troubles I am having with my neck have been caused by my Army service. On 8 March 1980 I had an accident on my motor bike whilst returning to camp from weekend leave in Melbourne. On that occasion, I was treated at PANCH Hospital. The report of that treatment stated; “Whip lash injury-pain down Right side of neck, pins and needles down right arm. All movement of neck … -tender C6.” Then, on 16 January 1982, I had a motor vehicle accident and the report of this accident states; “Whiplash injury to neck.” On this occasion I was returning to camp after a period of Annual Recreation Leave (ARL) … Dr Daniel O’Dea has diagnosed my neck problems as Cervical Spondylosis and the Relevant Statement of Principles for this condition is Instrument No 34 of 2005. I have had almost continual pain in my neck to varying degrees since these accidents … Enclosed are extracts from my service medical records dealing with these accidents and the treatment provided at the time. Headaches. Ever since these accidents, I have had headaches and Dr O’Dea considers these to be Cervicogenic Headaches and are therefore part and parcel of my neck problems.”[4] Exhibit 1, T82, page 309. On that claim form received by the Respondent on 14 May 2014, a medical practitioner stated, as to the details of the new disabilities now claimed[5]: “Medial Diagnosis … Cervical spondylosis. Basis for diagnosis Clinical history and examination. When did the veteran first consult you for this condition? 12/5/14… Medical diagnosis … Cervicogenic headaches Basis for diagnosis Clinical history and exam When did the veteran first consult you for this condition? 12/5/14[5] Exhibit 1, T82, pages 305-316.

Evidence

Evidence Before The Court

The Applicant stated that there were two issues[10]. First, that the entitlement claim as to cervical spondylosis be accepted as being caused by incidents during the Applicant’s service in the Australian Army[11]. Second, that there be an assessment of the rate of pension payable in respect of the previously accepted conditions and the acceptance of cervical spondylosis, with that rate being the special rate[12]. [10] Transcript 27 August 2019, P-2, lines 22-27. [11] Transcript 27 August 2019, P-2, lines 22-27. [12] Transcript 27 August 2019, P-2, lines 22-27. EVIDENCE The Applicant gave oral evidence at the hearing[13]. [13] Transcript, 27 August 2019, P-32-46. The Applicant stated that he joined the Australian Army at age 17[14]. The Applicant stated that he intended and requested to serve in transport in the Australian Army[15]. [14] Transcript, 27 August 2019, P-33, line 6.[15] Transcript, 27 August 2019, P-33, line 12. The Applicant stated that in March 1980 he had a motor-bike accident and suffered a ‘whiplash’ injury to his neck[16]. The Applicant referred to the accident as occurring on a journey to Puckapunyal, where he was ‘stationed’ at the time[17]. The accident occurred on a wet road, with a cat coming onto the road, changing the movement of a vehicle in front of his motor-bike[18]. The Applicant stated that he went over the top of his motor-bike handle-bars[19]. The Applicant stated that he had not been drinking alcohol prior to the accident[20].[16] Transcript, 27 August 2019, P-33, lines 38-39.[17] Transcript, 27 August 2019, P-33, lines 40-42.[18] Transcript, 27 August 2019, P-33, lines 44-48.[19] Transcript, 27 August 2019, P-34, lines 1-4.[20] Transcript, 27 August 2019, P-34, line 12. The Applicant referred to another motor vehicle accident in January 1982, where he also referred to suffering a ‘whiplash’ injury[21]. The Applicant was travelling from Hervey Bay in Queensland, to Puckapunyal in Victoria, when the Ford Falcon vehicle he was in aqua-planed and went backwards into a tree[22]. The Applicant stated that after some repairs to the vehicle he was able to continue on to Puckapunyal, but was noticing headaches and neck problems on the subsequent journey[23]. The Applicant stated that when he arrived at Puckapunyal he reported to the aid post there, reporting the problems, and was put in a neck collar for some time[24]. The Applicant stated that he had not been drinking alcohol prior to the accident[25].[21] Transcript, 27 August 2019, P-34, lines 14-16. [22] Transcript, 27 August 2019, P-34, lines 20-27.[23] Transcript, 27 August 2019, P-34, lines 27-34.[24] Transcript, 27 August 2019, P-34, lines 29-33.[25] Transcript, 27 August 2019, P-34, line 34. The Applicant referred to a third accident, where a fallen-tree smashed the windscreen of his car, showering him with glass fragments[26]. The Applicant stated that he was giving one of the members of his “troop” a lift home and was then returning to “camp”[27]. The Applicant stated that a tree had fallen on the road and he drove into it, with glass going into his eyes after the windscreen was smashed, resulting in three days in the military hospital[28]. The Applicant stated that he had no neck problems by reason of that motor vehicle accident[29]. The Applicant stated that he had not been drinking alcohol prior to that accident[30]. [26] Transcript, 27 August 2019, P-34, lines 36-37.[27] Transcript, 27 August 2019, P-34, lines 36-38.[28] Transcript, 27 August 2019, P-34, lines 41-44.[29] Transcript, 27 August 2019, P-34, lines 44-45.[30] Transcript, 27 August 2019, P-34, line 46.

Decision

Reasons for decision

As referred to above, the Applicant specifically limited Application 2017/7129 to only the special rate[87]. As to the intermediate rate in section 23 of the Act, having regard to the Applicant’s evidence[88], it is found that the Applicant’s incapacity from defence-caused injury or defence-caused disease, or both, alone, did not prevent the Applicant from continuing to undertake remunerative work on a part-time basis or intermittently: s 23(1)(b). The extreme disablement adjustment in s 22 does not apply, having regard to the age of the Applicant: s 22(4)(b). [87] Transcript 27 August 2019, P-2, lines 22-27. [88] Transcript, 27 August 2019, P-39, lines 40-45.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

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