Briscoe and Repatriation Commission
[2009] AATA 910
•26 November 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 910
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/3436
VETERANS' APPEALS DIVISION ) Re KENNETH BRISCOE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr R G Kenny, Senior Member Date26 November 2009
PlaceBrisbane
Decision The Tribunal affirms the decisions under review.
.................[Sgd].....................
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – operational service with Royal Australian Navy – application of Statements of Principles – diagnosis of lumbar spondylosis – a reasonable hypothesis of relevant relationship to service not raised – satisfied beyond reasonable doubt that lumbar spondylosis not attributable to eligible war-service – lumbar spondylosis not war-caused – decision under review affirmed
Veterans’ Entitlements Act 1986 (Cth) – ss 6C, 7, 9, 14, 119, 120, 120A
Fogarty v Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363
Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193
Ogden Industries v Lucas (1967) 116 CLR 537
Lee and Repatriation Commission (1986) 11 ALD 56REASONS FOR DECISION
26 November 2009 Mr R G Kenny, Senior Member BACKGROUND
1. Kenneth Briscoe served with the Royal Australian Navy (“the RAN”) from 5 July 1968 until 14 March 1972. On 1 May 2007, he lodged with the Repatriation Commission (“the respondent”), in accordance with s 14 of the Veterans’ Entitlements Act 1986 (“the Act”), a claim for a disability pension for “lower back pain” which he contended was related to his RAN service.
2. On 28 May 2007, the respondent determined that the appropriate medical diagnoses in answer to Mr Briscoe’s claim were fractured vertebra and lumbar spondylosis. It also determined that those conditions were not related to Mr Briscoe’s RAN service. On 18 July 2008, the Veterans’ Review Board affirmed the decision.
ISSUES AND SERVICE
3. Mr Briscoe completed a period of eligible war service in the form of operational service as provided for in s 7 and s 6C of the Act, respectively, from 17 November 1969 until 5 December 1969. During that period, Mr Briscoe was a crew member on HMAS Sydney (“the Sydney”) on its return voyage from Australia to South Vietnam and in Vung Tau Harbour.
4. Under s 9(1)(b) of the Act, a condition will be war-caused if it arose out of, or was attributable to, any eligible war service rendered. Under s 9(1)(e) of the Act, it will be war-caused if it pre-existed the claimed condition and was aggravated by any eligible war service rendered. The standard of proof for determining diagnostic matters under the Act is provided for in s 120(4). This requires that such matters be determined to the decision-maker’s reasonable satisfaction[1]. For issues of causation for operational service, the standard of proof is set out in s 120(1) of the Act which reads:
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.
[1] This means that matters are determined on the balance of probabilities: Fogarty v Repatriation Commission (2003) 37 AAR 363 at 373.
5. The application of that provision is affected by the terms of s 120(3) and s 120A of the Act which require that consideration be given to any relevant Statements of Principles that have been published by the Repatriation Medical Authority (“RMA”).
6. The issues for determination are, first, the appropriate diagnosis of any condition which answers Mr Briscoe’s claim and, secondly, whether any such condition arose out of, or was attributable to, any of Mr Briscoe’s eligible war service or whether, any pre-existing condition was aggravated by his eligible war service.
DIAGNOSIS
7. Mr Stoner, for the respondent, and Ms Frizelle, for Mr Briscoe, agreed that the only diagnosis relevant to Mr Briscoe’s claim was lumbar spondylosis.
8. Dr David Walters, orthopaedic surgeon, completed reports on 14 April 2009 and 30 September 2009. He reviewed x-rays of Mr Briscoe’s spine and concluded that there was no fractured vertebra but that there was a minimal degree of lumbar spondylosis.
9. Dr Peter Giblin, orthopaedic surgeon, completed a report on 29 June 2000. Dr Giblin did not have any x-rays available to him but concluded that the appropriate diagnosis was lumbar spondylosis.
10. On the basis of those medical reports and consistent with the submissions of Mr Stoner and Ms Frizelle, I am satisfied that the diagnosis which answers Mr Briscoe’s claim is lumbar spondylosis.
RELATIONSHIP TO SERVICE
Evidence of Mr Briscoe
11. Mr Briscoe described the incident which occurred on 28 November 1969 on the Sydney. He was part of a human chain loading various types of crates and cartons onto a cargo net. This was spread across the floor of a hangar and, when fully loaded, it was to be elevated by crane for the next stage of transporting the materials to the shore. Cartons passed from man to man along the chain and, on one occasion, the weight of the load passed to Mr Briscoe was such that, as he turned to pass it to the next person in the chain, he experienced pain in his back and fell to the deck. The men adjacent to him in the chain assisted him to the side of the area in which they were working. After about ten minutes, a sick bay attendant arrived. He asked Mr Briscoe to raise, in turn, each of his legs. Mr Briscoe was not able to do so because of the pain. The sick bay attendant then lifted his legs which again caused pain. The attendant gave Mr Briscoe two Panadol tablets and told him to wait while he went to obtain a certificate limiting Mr Briscoe to light duties. The attendant returned after about ten minutes with the certificate.
12. About twenty minutes later, a Petty Officer approached Mr Briscoe and advised him that he was required to complete a duty in the engine room on fire watch. The Petty Officer pointed to a fire bucket and told him to sit on it during his shift. He continued doing so for two hours. During that time, Mr Briscoe heard explosions from outside the vessel and, when the two hour shift was finished, he raced up to the open deck to get to “open air”. He had to negotiate the access stairs and ramps for three to four decks to achieve this and he did so in “pretty quick” time. Mr Briscoe recalled that he stayed on fire watch for two hours and not four hours. He also said that his memory of events was affected by the period of time that has elapsed since they occurred.
13. Mr Briscoe continued to feel pain during the seven day voyage back to Australia. He remained on light duties, for which a further certificate was issued, during that time. Mr Briscoe has experienced back pain ever since. In demonstrating the site of the pain, he pointed to the lowest part of his spine in the tailbone area. He went on leave over the 1969 Christmas period and recalled seeing, in January 1970, a doctor at HMAS Cerberus where he was then based. He advised the Tribunal that he had an RAN medical report of that consultation which was for “pins and needles” in his feet. He recalled that the doctor used a “donger” device to test reflex movement in his knees and ankles. No x-rays were taken. No treatment was given and Mr Briscoe was told that the pins and needles were probably associated with the RAN boots he was wearing.
14. Mr Briscoe recalled his discharge medical examination and said that he had a back problem at the time but made no reference to it because he was advised by the examiner that such disclosure would invite further examinations and a delay in his discharge arrangements. To avoid this, he did not mention the back problem in the medical report. His spine was first x-rayed in 1976 when treated by a Dr Fitzgerald for pain at the base of his spine.
15. Mr Briscoe agreed that there had been two occasions, before he joined the Sydney, at HMAS Leeuwin when he landed on his back during sporting activity. One was in a tackle in a football game; the other was in using gymnasium equipment. On both occasions, he landed flat on his back and, though he was “winded”, he did not suffer any injury to his back. He could not recall taking seven to ten days to recover or telling any doctor that he did.
16. Following the day of the fall, the light duties undertaken by Mr Briscoe comprised a bridge watch and what Mr Briscoe described as “2 Juliet 2” duties. The former involved standing, for shifts of two or four hours, on the bridge and looking out with binoculars. For the latter, he assisted, during recreational periods, the projectionist in the screening of movies. His task was to have reels of film available as and when needed. He sat at a desk, and would reach behind him, select the reel from a table and then turn towards the projectionist to hand the reel over. Mr Briscoe demonstrated this by twisting in his chair fully to the left and then rotating fully to the right with arms outstretched and holding the reel of film. He also catered for the projectionist’s needs such as providing him with cups of coffee. Mr Briscoe did not report any difficulty in carrying out these duties.
Mr Briscoe’s statement
17. In his statement[2], Mr Briscoe wrote that, after the human chain fall, he was “helped off to sick bay” where he was examined by an orderly and given a light duties chit. He also wrote that the duty on fire watch was for four hours. He wrote that he looked around and found a red fire bucket which he used as a seat. In the statement, he wrote that he “ran up” the first gangway, “raced along a companion way” and “climbed” another gangway before he “rushed to the railing”.
Christopher Dreis
[2] This is an undated handwritten statement at ff 7-14 of the documents (the T documents) obtained under s 37 of the Administrative Appeals Tribunal Act 1975 (the Act).
18. Mr Briscoe met with Mr Dreis when they were both being treated at Greenslopes Hospital in 2007. They both served on the Sydney in 1969 and Mr Dreis recalled the incident when Mr Briscoe hurt his back. He agreed to provide a statement to assist Mr Briscoe with his claim. To that end, he completed a statutory declaration form. Mr Briscoe visited Mr Dreis at his home in mid January 2008 and collected it. It was signed by Mr Dreis but was not witnessed. In part, it reads:
In Vung Tau Harbour while offloading, the sailors had formed a line of people to move stores (daisy chain) and I recognised Ken as one of the people involved.
We were waiting to go ashore and I was about 10 metres from where these people had changed from passing one box to two boxes at a time. Ken was 10 metres from me and I was looking at him when he twisted his back and fell to the floor. He couldn’t rise by himself and was carried over to where I was with my section and laid down on the floor. I had a chance to talk to him and asked him to raise legs one at a time and when he couldn’t do this, the medic raised them himself. Ken was obviously in a lot of pain. He was told he would be on light duties. He was given a couple of pain killers. I don’t know what happened after that as we had to proceed to shore.
19. On 13 February 2008, Mr Briscoe took that document to a Centrelink office to have it witnessed by a justice of the peace (JP). This was signed, accordingly, even though the JP did not witness Mr Dreis signing the declaration. Subsequently, Mr Briscoe learned that Mr Dreis had died on 10 February 2008 but he said that he was not aware of that when he requested that the JP sign as a witness to Mr Dreis’ signature. He said that he had not known, at that time, that the person signing as a witness should have, in fact, seen the deponent actually signing the document.
Gordon Lucas
20. Gordon Lucas served with Mr Briscoe and was part of the daisy chain procedure in which Mr Briscoe fell. He did not see the incident but heard about it subsequently.
Medical evidence
21. Orthopaedic surgeon, Dr Walters[3], recorded the history from Mr Briscoe as involving pain in the sacral area after he fell down following the lifting of some crates in 1969. He described Mr Briscoe’s lumbar spondylosis as being “minimal” and, in his reports, he did not attribute it to Mr Briscoe’s service. Indeed, in his first report, he opined that Mr Briscoe’s pain was due to psychological factors.
[3] See para 8 above.
22. The history that orthopaedic surgeon, Dr Giblin[4], took was that of Mr Briscoe shifting stores on the Sydney in 1969, of being handed two large boxes, turning and hearing “a sharp crack in his back associated with severe pain which caused him to fall down”. Dr Giblin wrote that Mr Briscoe was given Panadol and was allocated to light duties for the rest of his time on HMAS Sydney in Vung Tau Harbour and during the return voyage to Australia. Dr Giblin noted that Mr Briscoe experienced pins and needles in his feet after the incident and always blamed these on RAN footwear but that symptoms continued after he left the RAN. He concluded that Mr Briscoe’s original injury in 1969 was the initiating and causative factor for Mr Briscoe’s progressive and premature degenerative changes. In his report, Dr Giblin noted that Mr Briscoe had not engaged in any sport while he was in the RAN. Dr Giblin was not provided with any references to trauma apart from the daisy chain incident.
[4] See para 9 above.
23. Orthopaedic surgeon, Dr Ian Stratton, completed a report, dated 26 November 1997. The history that he took from Mr Briscoe was that he injured his back at HMAS Leeuwin in Western Australia while playing football and using gymnastic equipment as a result of which he took, on each occasion, seven to ten days to recover. This was before he joined the Sydney. Dr Stratton also recorded that the shifting of stores in 1969 while on the Sydney was a “potent cause of continued back disability”.
24. In a report, dated 9 December 2000, psychiatrist, Dr Richard Jones, referred to a back injury to Mr Briscoe in 1969 on the Sydney. Dr Jones described the unloading of heavy equipment in a human chain when Mr Briscoe felt a “click in his back, fell down and was then allocated to light duties”. He was treated with Panadol and was told by the doctor that “he had suffered pinched nerves in his back”. Mr Briscoe said that x-rays were taken and that these revealed a protrusion at L4/5 for which he used a TENS machine.
25. Mr Briscoe was seen by psychiatrist, Dr L Darcy, who completed a report on 12 July 2000. Dr Darcy also referred to the incident on HMAS Sydney. He recorded the following history. Mr Briscoe was unloading in a human chain when he was “awkwardly passed quite a heavy carton of tinned foods” when he “fell to the deck and hurt his back quite badly”. Mr Briscoe was seen in the sick bay where he was given a “straight leg-raising test” and told “he was alright”. A Petty Officer put Mr Briscoe on to light duties which involved a fire watch in the engine room.
26. Mr Briscoe’s records from the Toowoomba Hospital were in evidence. They include the following notes:
4 March 1988: never had injury to back;
11 March 1988: bad back for 3-4 years – no history of injury;
5 April 1988: low back pain 4 months/ occas back of legs - no injury;
8 April 1988: pain began 20 years ago - no incident – usually in winter time;
18 July 1988: chronic back pain for about 10 years; and
6 October 1988: chronic back pain for six months.
27. Other reports of the medical superintendent from Toowoomba Base Hospital, dated 8 May 1989, 28 May 1990 and 14 January 1992, repeat the record of 18 July 1988.
28. Mr Briscoe’s service medical records show treatment on several occasions in April and May 1970 and in 1971 for problems with his feet and legs which resulted in him being excused from wearing boots and referred for shoe supports. His records also show treatment for a range of other conditions including gastroenteritis, eye problems and intoxication. No reference is made to any treatment for his back.
29. Mr Briscoe’s medical examination record at the time of his RAN discharge was in evidence. It showed his back as being “normal” and as Mr Briscoe having suffered no disabilities during his service.
Other evidence
30. The records of the respondent which were in evidence show that Mr Dreis died on 10 February 2008. This was not in dispute.
SUBMISSIONS
31. Ms Frizelle submitted that the incident on the human chain constituted a reasonable hypothesis of a relevant relationship between Mr Briscoe’s lumbar spondylosis and his eligible service. She submitted that Mr Briscoe experienced trauma to the lumbar spine which caused the development, within twenty-four hours of the injury being sustained, of symptoms and signs of pain, and tenderness or altered mobility and range of movement of the lumbar spine which lasted for a period of at least seven days following the incident. Alternatively, Ms Frizelle submitted that the incident in the human chain constituted trauma which aggravated a pre-existing condition.
32. Mr Stoner conceded that an incident had occurred to Mr Briscoe while he was involved in shifting stores in a human chain on 28 November 1969, that this incident involved a fall with some resultant impact to Mr Briscoe’s back and that this was an hypothesis of a relationship between his lumbar spondylosis and his operational service. However, he submitted that such hypothesis was not reasonable as required under the Act and that Mr Briscoe’s lumbar spondylosis was not a war‑caused condition. Mr Stoner submitted that there was no evidence of any pre‑existing condition of lumbar spondylosis and, accordingly, no aggravation of that condition by the events in November 1969.
PRINCIPLES OF CAUSATION
33. The Federal Court, in Repatriation Commission v Deledio[5], has set out a four‑step procedure for determining issues of causation in relation to operational service. The first of these steps requires that there be material which points to an hypothesis connecting a claimed condition with service. It is not disputed that an incident occurred to Mr Briscoe while he was involved in shifting stores in a human chain on 28 November 1969 on the Sydney and that his back received some level of trauma at that time. This constitutes an hypothesis of a relationship between Mr Briscoe’s lumbar spondylosis and his operational service.
[5] (1998) 83 FCR 82 at 92.
34. The second of the four Deledio steps requires identification of the relevant Statement of Principles as published by the RMA. For lumbar spondylosis, this is Instrument No 37 of 1995[6]. In so far as relevant, it reads:
[6] This was amended by Instrument No 78 of 2008 in a manner which is not relevant to Mr Briscoe.
(g)having a trauma to the lumbar spine before the clinical onset of lumbar spondylosis;
(p)having a trauma to the lumbar spine before the clinical worsening of lumbar spondylosis;
“trauma to the lumbar spine” means a discrete injury, including G force-induced injury, to the lumbar spine that causes the development, within twenty-four hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the lumbar 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 lumbar spine has occurred and that medical intervention involves either:
(a) immobilisation of the lumbar spine by splinting, or similar external agent; or
(b) injection of corticosteroids or local anaesthetics into the lumbar spine; or
(c) surgery to the lumbar spine.
35. The third Deledio step does not involve fact-finding but requires a consideration of each advanced hypothesis to determine whether it is reasonable. This requirement will be met if the hypothesis fits or is consistent with the template provided by a relevant factor in the Statement of Principles.
36. If an hypothesis is reasonable, it will then be necessary to consider the fourth of the Deledio steps.
Reasonableness of the hypothese under s 9(1)(b) of the Act
37. The various accounts given by Mr Briscoe about the incident involving trauma while shifting stores on 28 November 1969 on the Sydney are not consistent. Ms Frizelle submitted that regard should be had to the lapse of time since the incident occurred and the effect that would have on memory. While, generally, I accept that proposition[7], it is not the case that Mr Briscoe was unable to recall details but, rather, that he gave differing accounts of material matters. He has given differing descriptions of what he experienced when he hurt his back[8], who examined him[9], the place of examination by the sick bay attendant[10], the description of the injury at the time[11], who placed him on light duties[12], the period of time he was on fire watch[13] and how he came to use the red bucket during fire watch[14]. During the hearing, he identified the site of the pain he experienced as in the tailbone area rather than the lumbar component of his spine.
[7] This consistent with the terms of s 119 of the Act.
[8] Compare paras 11, 22, 24 and 25 above.
[9] Compare paras 11, 24 and 25 above.
[10] Compare paras 11 and 25 above.
[11] Compare paras11, 24 and 25 above.
[12] Compare paras 11 and 25 above.
[13] Compare paras 12 and 17 above.
[14] Compare paras 12 and 17 above.
38. The accounts of the history of Mr Briscoe’s back problem as recorded by various doctors and in medical reports also reflect significant variations. There is a reference by Dr Stratton to sporting injuries to the back, with a seven to ten day recovery period, which predated 1969. Dr Giblin recorded that Mr Briscoe had not engaged in any sport while he was in the RAN. Hospital records in 1988 record that he had never had a back injury and also gave varying time-frames over which he has experienced back pain[15]. Despite Mr Briscoe’s assertion that he was treated for a back injury in January 1970, there is no such record though there are records of other forms of treatment for a range of conditions including his lower limbs. Mr Briscoe’s discharge medical documents make no reference to a back injury. While I have noted his explanation for this, the absence of a reference to a back injury during service is entirely consistent with a complete absence of any record of a back problem during service[t1] .
[15] See para 26 above.
39. The statement by Mr Dreis is supportive of some aspects of the evidence of Mr Briscoe. However, I place little weight on that statement because of the unusual circumstances in which it appears to have been obtained and “witnessed”. In any event, it is supportive only in relation to the incident itself and its immediate consequences rather than to the subsequent aspects which are also part of the template of the factors in the Statement of Principles.
40. The material before me points to an incident of trauma to some part of the spine and to the development of pain and tenderness within 24 hours. That is consistent with the template of the Statement of Principles. However, that template also requires either altered mobility or range of movement of the lumbar spine for a period of at least seven days following their onset.
41. It was contended that the difficulty manifested by Mr Briscoe in raising his legs when attended to by the sick bay attendant pointed to those criteria. While that may be the case in the period immediately after the incident, no material points to that thereafter. After his fire watch, whether that be of two or four hours duration, Mr Briscoe’s evidence was that he “raced up” the connecting stairs and ramps to get to the open air and that he negotiated these in “pretty quick” time. Indeed, in his statement, he described himself running up the first gangway, racing along a companion way and climbing another gangway before rushing to the Sydney’s railing. Those descriptions do not point to consistency with the components of the definition of trauma which require altered mobility or range of movement of the lumbar spine. Rather, they point to an absence of mobility problems or of range of movement loss. That is also the situation with the light duties Mr Briscoe described during the voyage back to Australia. These involved standing for two or four hours on bridge watch and assisting the movie projectionist by handling reels of film in a manoeuvre which, in his description thereof, was similar to the handling of boxes in the human chain. His evidence was that he had no difficulty in carrying out these duties.
42. The material before me does not fit the template of the Statement of Principles for lumbar spondylosis in relation to the definition of trauma to the lumbar spine. In particular, this is because the material does not point to altered mobility or range of movement of the lumbar spine. This means that the hypothesis that the lumbar spondylosis arose out of, or was attributable to, the incident is not reasonable.
Reasonableness of the hypothese under s 9(1)(e) of the Act
43. The alternative hypothesis advanced by Ms Frizelle was that the incident on the Sydney aggravated Mr Briscoe’s lumbar spondylosis. For aggravation of lumbar spondylosis to occur, there must have been a pre-existing condition of lumbar spondylosis which was made worse by the service–related factor[16]; in this case, the fall on 28 November 1969.
[16] See Ogden Industries v Lucas (1967) 116 CLR 537 at 593-594 and Lee and Repatriation Commission (1986) 11 ALD 56 at 68.
44. For aggravation, Ms Frizelle relied on the report of Dr Stratton where he opined that the shifting of stores in 1969 while on the Sydney was a “potent cause of continued back disability”. Earlier in that report, Dr Stratton noted that Mr Briscoe had injured his back at HMAS Leeuwin before he joined the Sydney while playing football and using gymnastic equipment as a result of which he took, on each occasion, seven to ten days to recover. This was one of the inconsistencies in Mr Briscoe’s evidence. While, clearly, Dr Stratton must have obtained that history from Mr Briscoe, it was denied in his evidence in that he described merely being “winded” on those sports-related occasions. Even if, at HMAS Leeuwin, there was some trauma to Mr Briscoe’s spine which resulted in pain, there is no material before me which points to the presence of lumbar spondylosis at any time prior to the stores incident in November 1969.
45. There is no material which points to the aggravation of a pre-existing condition as a result of the stores incident in November 1969. Accordingly, the material before me does not fit the template of the Statement of Principles for lumbar spondylosis in relation to the requirement of aggravation. This means that the hypothesis that the lumbar spondylosis was aggravated by the incident is not reasonable.
Is the condition war-caused?
46. As neither of the hypotheses advanced in this matter is reasonable, I am satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that Mr Briscoe’s lumbar spondylosis is a war-caused condition.
47. It is unnecessary to consider the hypotheses advanced in this matter under the fourth of the Deledio steps. However, were it the case that either or both hypotheses were reasonable, I would, because of the many inconsistencies in his evidence, be satisfied beyond reasonable doubt that Mr Briscoe’s lumbar spondylosis was not war-caused under s 9(1)(b) or (e) of the Act.
DECISION
48. The Tribunal affirms the decision under review.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.
Signed:.............................]Sgd].....................................
Research Associate
Dates of Hearing 4 November 2009
Date of Decision 26 November 2009
Counsel for the Applicant Ms A Frizelle
Solicitor for the Applicant G Couper
Solicitor for the Respondent Mr J Stoner
[t1]Mr Kenny, I have left this highlighting in as I assumed it was for your reference.
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