Bramich and Repatriation Commission - [2002] AATA 580

DECISION AND REASONS FOR DECISION [2002] AATA 580

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T2000/23

VETERANS' APPEALS DIVISION       )
           Re      RODNEY ERIC BRAMICH
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms A F Cunningham (Part-time Member)

Date12 July 2002
PlaceHobart

Decision      The Tribunal sets aside the decision under review and remits the application to the respondent for assessment of pension in accordance with this decision.
  ..............................................
  Part-Time Member
ADMINISTRATIVE APPEALS TRIBUNAL         )
  )          No. T2000/23
VETERANS' APPEALS DIVISION  )

Re RODNEY ERIC BRAMICH
Applicant

And REPATRIATION COMMISSION
Respondent

CORRIGENDUM

Tribunal : Ms A F Cunningham (Part-time Member)

Date : 23 July 2002

Place : Hobart

Decision:In the decision and reasons for decision in this application given on 12 July 2002 the decision page should be replaced with the following decision:
The Tribunal affirms the decision under review in so far as it relates to non-melanotic malignant neoplasm of the skin and sets aside the decision under review in so far as it relates to intervertebral disc prolapse at L4/L5 and intervertebral prolapse L5/S1 lumbar spondylosis and in substitution therefore IT IS DECIDED:

(1)that intervertebral disc prolapse at L4/L5 and intervertebral prolapse L5/S1 lumber spondylosis are war caused; and

(2)that the application be remitted to the respondent for calculation of pension entitlement in accordance with this decision.

(S'gd) A Cunningham
Part-time Member

CATCHWORDS
Veterans' Entitlements – operational service – existence of factors specified in Statement of Principles – intervertebral disc prolapse – trauma to the relevant disc.
Statement of Principle No 130 of 1996

REASONS FOR DECISION

12 July 2002 Ms A F Cunningham (Part-time Member)

This is a review of a decision of the Veterans' Review Board (VRB) on 31 January 2000 which affirmed a determination previously made by the respondent on 23 September 1999 which determined that the applicant's conditions of intervertebral disc prolapse at L4/L5 and intervertebral prolapse L5/S1 lumbar spondylosis and non-melanotic malignant neoplasm of the skin were not war-caused.
The applicant was represented by Mr R Webster and gave oral evidence at the hearing. Oral evidence was also given by Mr L Nelms who served with the applicant in North Borneo. Mr Liddell, an orthopaedic surgeon, was called on behalf of the applicant and gave oral evidence by telephone. The respondent was represented by Mr M Castle who called no evidence. The T documents were accepted into evidence pursuant to the provisions of s37 of the Administrative Appeals Tribunal Act 1975. A further report dated 7 December 2000 from Mr Liddell was tendered. A letter dated 30 April 2002 from Mr Webster to Mr Liddell which summarised the applicant's evidence given at the hearing in Devonport on 24 April 2002 was tendered by consent.
It was agreed between the parties to the appeal that the applicant served in the Australian Army from July 1965 to June 1967. Whilst Mr Castle conceded that the applicant had operational service from 17 June 1966 when he served in Borneo, he contended that the period of operational service ceased as from 11 August 1966 when the treaty of Bangkok was signed and ended the hostilities in that area. Whilst it had been contended by the applicant that his operational service continued until 28 November 1966, at the resumed hearing in Hobart on 30 May 2002 Mr Webster, advised that agreement had been reached in relation to the period of the applicant's operational service. In the circumstances the applicant's claim of non-melanotic malignant neoplasm of the skin was discontinued on the basis that the period of the applicant's operational service fell short of the requirements of the relevant Statement of Principles.
Legislation
The applicant's claim is to be determined in accordance with the provisions of the Veterans' Entitlements Act 1986 ("the Act"). As the applicant had operational service the relevant standard of proof is that prescribed by ss120(1) and (3). The Tribunal must find that the conditions are war-caused unless it is satisfied beyond reasonable doubt that there is no basis for such a finding in that the material does not raise a reasonable hypothesis connecting the conditions with the circumstances of the applicant's service. As the claim was lodged after 1 June 1994, the provisions of sub-section (4) of s120 provide that s120A of the Act applies. This section requires the Tribunal to assess the reasonableness of the hypothesis in accordance with the provisions of any relevant Statement of Principles. The Tribunal was referred to Instrument No 130 of the 1996 being a determination of Statement of Principles concerning intervertebral disc prolapse and the amendments prescribed under Instrument No 92 of 1997.
Evidence
The applicant gave evidence of the work undertaken by him during his period of service in Sabah, Borneo. The applicant said that he was a member of 22 Construction Squadron involved in the construction of roads. The applicant described his role as truck driver operating from a small depot from which stores of petrol; oil and diesel were carted to other base camps. The applicant said that as well as driving the truck he alone was responsible for loading and unloading the stores on and off the truck. The applicant described how this involved him rolling 44 gallon drums each weighing approximately 400 pounds, up two planks of wood onto the tray of the truck and then from the tray of the truck standing the drums upright and rolling them into position. The procedure would be reversed in the unloading process. The applicant described this work as "hard work" and that each load would generally consist of ten drums as well as dry stores. There were occasions when the applicant was required to load and off load bailey bridge panels.
The applicant stated that he had not experienced any back problems prior to enlisting and that he first experienced problems within his first week of undertaking his truck driving role. The applicant described a grabbing pain, which he said came on suddenly and which radiated across the bottom part of his back along his belt line and down both legs. Whilst the applicant said that he experienced this pain every day whilst undertaking the heavy work described and also at night, as there was no doctor stationed at the camp, his only alternative was to take pain killers which he consumed every day. After a period of between 6 and 8 weeks, his fellow servicemen who were aware of his ongoing problems, arranged for his duties to be transferred to that of a managing officer's driver. Whilst this change in duties helped the applicant's back pain, he said that he was never rid of it, and still assisted on occasions with the loading and unloading of stores, which exacerbated his back condition. The applicant's position as truck driver was taken on by Mr Laurie Nelms. The two men essentially swapped positions.
The applicant stated that his back condition affected his ability to get in and out of vehicles and that his back pain has been with him ever since. Despite three operations in 1992, 1998 and 2000 for disc repair which did ease the pain radiating down his legs, the applicant said that the pain is still with him, but is more manageable in that he is more aware of his restrictions.
Under cross-examination the applicant was asked about back problems that he sustained during a sporting match. The applicant said that this was in early 1967 whilst he was playing Australian Rules Football and that following medical advice he was placed on light duties for one week. The injury on this occasion was to his lower back muscle.
Mr Laurie Nelms that he first met the applicant in 1965 when they were first conscripted into the Army for two years national service. They both worked in Sabah with the 22nd Construction Squadron, Mr Nelms was the commanding officer's driver and the applicant was transporting fuel and rations. He described the work undertaken by the applicant, which comprised the loading and unloading of 44 gallon drums of fuel and oil each weighing approximately 400 pounds which he estimated to be about 200 kilos. He said that it was the responsibility of each driver to load and unload the drums on their own.
Mr Nelms stated that his bunk was located next to the applicant's and he recalled the applicant complaining of back pain. To ease the applicant's back problems Mr Nelms and the applicant arranged to switch roles, with the applicant becoming the CO driver and Mr Nelms taking the applicant's truck driving job which entailed the loading and unloading of fuel drums. Mr Nelms described the action required in pushing the drums up the ramp towards the tray of the truck on to which drums were lifted as the truck was one foot higher than the railway wagon from which drums were loaded. Even after switching their roles, Mr Nelms recalled that the applicant still continued to have ongoing back problems from time to time.
The surgery undertaken by Dr Liddell was contained in his report dated 17/2/98 contained at T23. A comprehensive report dated 7 December 2000 detailing the applicant's history, outcomes of an examination and ongoing progress as well as Mr Liddell's opinion was tendered in evidence. Mr Liddell saw the applicant on five occasions in 2000 and in May 2000 he performed a posterior lumbar interbody fusion (L4/5 and L5/S1). When Mr Liddell saw the applicant in December 2000, he noted that his situation was more or less unchanged. The report indicates that the applicant experienced ongoing pain which was affecting his mobility.
Mr Liddell reported that he had discussed the service related incident which occurred in Borneo with the applicant and noted as follows:
"He told me that he developed low back discomfort, whilst in the jungle in Borneo, in 1966.   However, he told me that he put up with it.   In that respect, I noted that he did not seek medical advice, nor did he require any time off duties.
Then, in 1966, whilst playing Squadron Football, in Perth, he hurt his back again.   At that time, he was apparently off normal duties completely, for a week.   He subsequently resumed normal duties.   Furthermore, he did not experience any further problems until 1976, when he began seeing a chiropractor - for low back discomfort.
OPINION
It is conceivable that either of the activities referred to in your letter set the scene for Mr Bramich's ongoing low back discomfort, and the need for surgery etc.   However, the fact that he continued to work for nine years after the most recent incident - apparently, without any further problems, would suggest that the subsequent development of low back discomfort may have been age related.
Despite having undergone what appears to have been a technically successful two level posterior lumbar interbody fusion procedure, Mr Bramich continues to experience significant grabbing pains in his low back/right hip – aggravated by activity – in particular, by bending and twisting.
Consequently, I believe that it would be appropriate (if possible) for him to avoid activities, such as repeated bending, heavy lifting and/or prolonged sitting/standing."
During the course of giving oral evidence, Mr Liddell stated that it was very hard for him to determine the initial cause of the applicant's back problem. He stated that heavy work clearly had the potential to cause ongoing back problems. Whilst heavy work can certainly cause back problems, the determining factor he said, was whether the applicant had a history of ongoing problems after the initial incident. Although the severity of the discomfort is not a crucial determinate, what is crucial to the issue of causation, he said, is whether or not the discomfort had been ongoing. When asked about his conclusion in his opinion dated 2 December 2000 that the development of the applicant's low back discomfort "may have been age related", Mr Liddell said that he made that statement based on the fact that the applicant had continued to work for nine years "apparently without any further problems". When Mr Liddell was informed of the evidence given by the applicant, that he did experience ongoing pain and restrictions, Mr Liddell concluded that "it was more probable than not" that his injury set the scene for his condition. He stated the fact that the applicant put up with the pain suggested that the applicant had experienced ongoing problems. Mr Liddell commented that the applicant being "a straight forward sort of chap" was the sort of person who could put up with the discomfort. Mr Liddell concluded that it was "highly likely" that the heavy work undertaken by the applicant during service as described, led to his current condition.
Determination
The Tribunal must firstly determine whether the evidence before it raises a reasonable hypothesis which connects the injury sustained by the applicant with the circumstances of his service. The Tribunal concludes that there is sufficient material before it connecting the applicant's condition with the claimed conditions of the service.
Mr Webster informed the Tribunal that the factor in Instrument No 130 relied upon to connect the applicant's condition of intervertebral disc prolapse with his service is contained in paragraph 5(a) which states:
"suffering trauma to the relevant disc at the time of the clinical onset of intervertebral disc prolapse".
The definition of trauma to the relevant disc has been amended by Instrument No 92 of 1997 which reads as follows:
"`trauma to the relevant disc' means an injury to the particular prolapsed intervertebral disc, giving rise to immediate pain, tenderness and altered mobility or altered range of movement of that part of the spine, which persists for at least two weeks, unless medical intervention has occurred (for example bracing, corticosteroid injection, surgery). Where medical intervention for the injury has occurred, and there is evidence relating to the extent of injury and treatment, such evidence may be considered. Examples of activities or events that may result in trauma to the relevant disc include:
(i) lifting, pushing or pulling an object weighing more than 10 kg; or
(ii)jumping from a height, for example, in a parachute jump, or jumping down from a tank; or
(iii)a fall; or
(iv)diving into a body of water; or
(v)participating in sports, for example, football, surfing, gymnastics; or
(vi)spinal manipulation; or
(vii)a motor vehicle accident; or
(viii)a blast explosion; or
(ix)a physical attack".
The sub-paragraph relied upon by Mr Webster is sub-paragraph (i) lifting, pushing or pulling an object weighing more than 10 kg.
It was Mr Castle's contention that the definition requires that there be a discrete injury when it refers to "an injury to the particular prolapsed intervertebral disc". Mr Castle argued that whilst there was evidence that the applicant was engaged in the process of heavy lifting and pushing work during his service, there was no evidence of a particular incident that gave rise to a trauma within the meaning of the Statement of Principles.
In support of his contention that the definition is not dependent on one isolated injury, Mr Webster referred the Tribunal to Senior Member Handley's decision in Re George Ablett and Repatriation Commission V95/1111 AAT No. 12210 (1997), where the Tribunal was concerned with the connection between the applicant's condition of rotator cuff syndrome and his period of service. The Tribunal was also concerned with the definition of the phrase "trauma to the relevant joint" and stated as follows:-
"There is nothing to suggest that only one injury is permitted and I am satisfied that a number of repeated injuries can constitute "a trauma". The occurrence of symptoms, at or around the joint was the manifestation of injury. The injury, or in this case, injuries, ultimately precipitated the condition of osteoarthrosis."
Senior Member Handley went on to state:
"Whilst I am satisfied that injury occurred, it is impossible to know when. Applying the beneficial spirit of veterans legislation, the previous comments of multiple or repeated assaults upon the joints and Mr Ablett's evidence of pain at rest following episodes as above, I am satisfied that there was a "development" (that is occurrence, manifestation, existence) within 24 hours of symptoms - which I am satisfied on his evidence were acute - and "signs" of pain, swelling, tenderness, altered mobility and altered range of movement."
Mr Webster referred the Tribunal to the applicant's own evidence when in answer to the question whether his pain had "come on suddenly" replied "Yes", and described a grabbing pain at the bottom part of his back". Mr Webster said that the Tribunal could infer from this that the applicant had suffered "an injury" within the meaning of the Statement of Principles.
The Tribunal concludes that the definition does not suggest that there be only one injury giving rise to the condition but that there may be one or more or a series of injuries which on their own or together culminate in the condition.
The Tribunal is satisfied on the evidence before it that the applicant suffered a series of injuries giving rise to immediate pain, tenderness, and altered mobility which were ongoing and persisting for at least 2 weeks. The evidence being that whilst the applicant was undertaking the heavy physical work for between 6 and 8 weeks, he was experiencing severe pain which required the taking of painkillers every day. The heavy physical work giving rise to the pain comprised the rolling and pushing and then the lifting and pulling of drums of fuel each weighing approximately 400 lbs from railway carts onto trucks. The Tribunal can take judicial notice of the fact that a 400 lb weight converts to 200 kgs or thereabouts, which is certainly in excess of the 10 kgs prescribed under Clause 7 of the relevant Statement of Principles.
The Tribunal also takes account of the evidence of Mr Liddell who stated that in his opinion it is "highly likely" that the incident as described and occurring during the applicant's period of operational service gave rise to his current condition.
For the above reasons, the Tribunal is satisfied that the applicant's condition of intervertebral disc prolapse is war-caused.   The Tribunal sets aside the decision under review and remits the application to the respondent for assessment of pension in accordance with this decision.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)
Signed:         .....................................................................................
  Administrative Assistant
Date/s of Hearing  24 April, 30 May 2002
Date of Decision  12 July 2002
Counsel for the Applicant        Mr R M Webster
Solicitor for the Applicant
Counsel for the Respondent    Mr M Castle
Solicitor for the Respondent    Department of Veterans' Affairs