Broad and Repatriation Commission
[2004] AATA 880
•20 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 880
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2003/338
VETERANS' APPEALS DIVISION ) Re ROBERT CLARENCE BROAD Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Brigadier RDF Lloyd, Member Date20 August 2004
PlacePerth
Decision Pursuant to s43 of the Administrative Appeals Tribunal 1975, the Tribunal decides:
(a) To set aside the VRB decision under review of 8 August 2003 in so far as it rejected Lumbar Spondylosis and to accept that condition as being defence-caused with effect from 7 March 2001.
(b) To remit the matter of assessment of incapacity from this accepted condition of Lumbar Spondylosis, together with all other previously accepted conditions, to the respondent.
.........(sgd R D F Lloyd)..........
Member
CATCHWORDS
Veterans’ Affairs – Veterans’ Entitlements – applicant ex Australian Army (National Service) with operational service in Vietnam and eligible defence service – Military Police – claim for lumbar spondylosis – pre enlistment lower back injury (permanent ligamentous instability) – wording/use of SoPs questioned – reasonably satisfied defence injuries contributed to worsening of instability hence contributing to subsequent post discharge development of lumbar spondylosis – condition accepted as defence caused – assessment remitted to respondent.
Veterans’ Entitlements Act 1986 (Cth) ss 9(1), 70(5), 120(1), 120(3), 120(4), 120A
Statements of Principle Concerning Lumbar Spondylosis:
- Instrument No. 46 of 2002 as amended by No. 77 of 2002
- Instrument No. 47 of 2002 as amended by No. 78 of 2002
- Instrument No. 27 of 1999
- Instrument No. 28 of 1999
Re:Repatriation Commission v Gosewinckel [1999] FCA 1273
Repatriation Commission v Deledio (1998) 83 FCR 82
Stoddart v Repatriation Commission [2003] FCA 334
Kattenberg v Repatriation Commission [2002] FCA 412
Lees v Repatriation Commission [2002] FCAFC 398
Repatriation Commission v Gorton [2001] FCA 1158
Repatriation Commission v Williams [2001] FCA 1195
REASONS FOR DECISION
20 August 2004 Brigadier RDF Lloyd, Member 1. This is an application before the Administrative Appeals Tribunal (‘the Tribunal”) by Mr Robert Clarence Broad (“the applicant”) for a review of a decision of the Veterans’ Review Board (“the VRB”) dated 8 August 2003 which:
(a) affirmed the decision of the Repatriation Commission (“the respondent”) of 4 July 2001 which had determined that the condition of Lumbar Spondylosis was neither war nor defence caused; and
(b) affirmed the respondent’s 23 October 2000 decision which determined that disability pension should continue at 100% of the General Rate.
2. The applicant attended the hearing and was represented by Ms M Cowan of Hammond Worthington, Solicitors. The respondent was represented by Mr C Ponnuthurai. The Tribunal had before it the documents filed pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”). In addition the following documents were taken into evidence at the request of the applicant’s solicitor:
Exhibit A1 Statement of Evidence by Mr R Broad dated 24 November 2003.
Exhibit A2Statutory Declaration by Mr P J Clowry dated 27 October 2003.
Exhibit A3Bundle of Radiological Reports re Mr R C Broad, under cover of letter from Hammond Worthington dated 6 July 2004.
Exhibit A4 Report of Facet Joint Injection by Dr Morrison dated 14 April 2003, for Mr R C Broad.
Exhibit A5Report of Facet Joint Injection by Dr Gibson dated 8 February 1996, for Mr R C Board.
3. At the outset, Ms Cowan for Mr Broad requested that the matter of the applicant’s disability pension (currently rated at 100% of the General Rate) be remitted to the respondent for assessment or re-assessment rather than be dealt with by the Tribunal. After some discussion this request was clarified to mean – that should the Tribunal’s decision on the first matter – that relating to the applicant’s claim for Lumbar Spondylosis – turn out to be favourable for him, then the matter of assessment of overall pension (taking this newly accepted condition into account) be remitted by the Tribunal to the respondent. But that should the first matter result in his lumbar spine condition being rejected by the Tribunal, then the applicant’s request for review of the pension decision, as determined by the respondent on 23 October 2000 and affirmed by the VRB in their decision, would then be taken by the Tribunal to be withdrawn.
4. The respondent’s representative raised no objection to this proposed sequential procedure and gave reasons why it appropriately advantaged the applicant, should the Tribunal consent to it. The matter was again raised by the Tribunal at the commencement of the resumed day of hearing (Day 2), in which Ms Cowan confirmed the request and procedure as set out in paragraph 3 above. After due consideration and with both parties on common ground in this regard, the Tribunal agreed (Transcript of Tribunal hearing refers).
5. The applicant gave oral evidence at the hearing, was questioned by Ms Cowan and the Tribunal, and was cross-examined by the respondent’s representative. He gave evidence in a forthright manner and the Tribunal regards him as an apparently honest and credible witness, albeit at times tending to exaggerate matters in some of his responses. Nevertheless, he seemed generally as reliable in his accuracy as one would expect in recollecting matters dating back some 20 to 30 years.
6. Oral evidence in support of Mr Broad’s claim – in relation to particular Army service in which they both were involved – was given by conference telephone by Mr P J Clowry (Exhibit A2 also refers). He was examined by Ms Cowan, cross-examined by Mr Ponnuthural and answered questions raised by the Tribunal. He is assessed as a credible witness, who obviously knew the applicant, at least during his Army time, relatively well.
7. The respondent provided no additional documentary evidence. However, after some discussion at the conclusion of Day 1 of the hearing, the Tribunal supported the need for Dr P Woodland (Orthopaedic/Spinal Surgeon) who had seen the applicant in March 2002 and again in May 2003 (T28 pages 129 to 131), to be called by the respondent to give medical opinion evidence (by telephone) on the resumed day of hearing. Ms Cowan raised no objection to this and Dr Woodland gave relevant medical and expert medical opinion evidence that was of considerable assistance to the Tribunal. In so doing he was examined by the respondent’s representative and cross-examined by Ms Cowan, with additional questions also from the Tribunal.
Applicant’s Service and Related Matters of Law
8. Mr Broad served in the Australian Regular Army (ARA) from 1970 to 1979, initially as a National Serviceman. His eligible service under the Veterans’ Entitlements Act 1986 (“the Act”) is as follows:
(a) Operational Service (Vietnam) : 26 May 1971 to 9 March 1972.
(b) Eligible Defence Service : 7 December 1972 to 5 January 1979.
After recruit training in 1970 he was allotted to the Army’s Provost Corps and trained as a Military Policeman (MP) – in which employment he served throughout his Army service, both in Australia and overseas. He was discharged from the Army in 1979 and was almost immediately accepted into and joined the Western Australian Police Service. He was retired on medical grounds from that Service on 7 June 2000.
9. In regard to the applicant’s operational service, the entitlement matter before the Tribunal is to be determined in accordance with ss 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 of Lumbar Spondylosis with this 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.
10. For Mr Broad’s eligible defence service, as defined in the Act, the matter is to be determined in accordance with s 120(4) of the Act. Under this provision, the Tribunal is required to decide the matter to its reasonable satisfaction, i.e. on the balance of probabilities.
11. Additionally, as the claim for his Lumbar Spondylosis was lodged after 1 June 1994, by virtue of s 120A of the Act, the Tribunal is required to assess the matter in accordance with any relevant Statement of Principles (“SoP”) issued by the Repatriation Medical Authority (“the RMA”).
Diagnosis of Claimed Condition
12. The documented medical evidence before the Tribunal contained in the T documents, also supported by the Radiological Reports contained in Exhibit A3, as well as the reports at Exhibits A4 and A5, lead to the Tribunal being reasonably satisfied that the diagnosis of the applicant’s claimed condition is appropriately described as “Lumbar Spondylosis”. Whilst there is disagreement between the two parties as to causation and/or aggravation aspects, and also in particular concerning the early indicator diagnosis of the condition, the end diagnosis/description of “Lumbar Spondylosis” is common ground. The evidence given by Dr Woodland in his report of May 2003 and his oral evidence before the Tribunal further confirms that diagnosis.
Applicant’s Contention Regarding Claimed Condition of Lumbar Spondylosis – In Summary
13. It is stated by the applicant that he had an injury to his lower back in 1968, prior to his enlistment into the Army, during his civilian apprenticeship training. This is said to have resulted in permanent ligamentous instability of his lumbar spine. Despite this injury (which apparently was not disclosed by the applicant at the time of his medical examinations for service) he was accepted as medically fit for enlistment as a National Serviceman into the Army in 1970.
14. During his operational service in 1971-72 in Vietnam his MP duties resulted in him being involved in resolving a number of significant ‘brawls’ between Allied Servicemen and between them and Vietnamese military and civilian personnel. Mostly these occurred at Vung Tau and one or two in Saigon. Whilst not involving the enemy, the brawls did include abusive physical behaviour and resulted in Mr Broad suffering bodily injury on numerous occasions. It is contended that some of these injuries were specifically related to his lower back and that each and/or collectively contributed to a worsening of, or aggravated, his prior to enlistment back condition. It is not of relevance that none of the applicant’s time in Vietnam involved direct combat activity against the enemy during this operational service period – apart from one patrol.
15. Added to this were incidents during his eligible defence service, again involving injury breaking up brawls in Singapore, but more particularly significant injuries whilst playing Service sport. All these, it is contended further aggravated, or contributed to the worsening of his then existing lumbar spine condition (ligamentous instability).
16. The applicant’s evidence is that his post-discharge employment, as a member of the WA Police Service, did not result in any back injury, nor did it contribute to the worsened lumbar spine problem he now suffers.
17. There is medical evidence which shows that Mr Broad now has a significant lumbar spine condition, ie. Lumbar Spondylosis. It is the applicant’s contention that this is a result of injuries suffered during his operational as well as his eligible defence service – the end result being a worsening of his back instability condition that existed prior to either periods of service, thus leading to the current Lumbar Spondylosis. The details of relevant Service injuries are contained in Mr Broad’s oral evidence (Transcript) and his Statement of Evidence (Exhibit A1), that of Mr Clowry at Exhibit A2, and are also summarised in the Statement of Facts and Contentions provided by Ms Cowan. Hence they are not repeated here.
18. Following the Deledio process, in so far as this case allows, the Tribunal first considered the relevant material before it in relation to the applicant’s contention. Without making findings of fact at this stage in regard to this contention, the Tribunal is satisfied that the material adequately points to a hypothesis connecting the condition claimed with his war service. The Tribunal also considers, based on the material, that subject to findings of fact, there may be a relevant connection between his eligible defence service and the condition claimed.
Statements of Principles and Clinical Onset
19. There are SoPs in force, determined by the RMA, dealing with the claimed condition of Lumbar Spondylosis. These are as follows:
(a) For Operational Service:
§ Current : Instrument No. 46 of 2002 (as amended by Instrument No. 77 of 2002)
§ Current at the time of the respondent’s July 2001 decision : Instrument No. 27 of 1999
(b) For Eligible Defence Service:
§ Current : Instrument No. 47 of 2002 (as amended by Instrument No. 78 of 2002)
§ Current at the time of the respondent’s July 2001 decision : Instrument No. 28 of 1999
20. Despite the argument put forward by Ms Cowan, on behalf of the applicant, the Tribunal is bound, in the first instance, to assess the matter using the SoPs now current. Should it not find in favour of the applicant as a result, then the applicant’s accrued right for the matter to be assessed using the SoPs current at the time of the respondent’s decision is consequently applied by the Tribunal. (Stoddart v Repatriation Commission [2003] FCA 334).
21. The other argument put forward by Ms Cowan, at the outset, concerned the wording of the SoPs – in terms of the criteria they prescribed. In question was the validity of the particular wording in the current SoP Instruments defining permanent ligamentous instability (“PLI”) of the lumbar spine – as contained in Instrument No’s 77 and 78 of 2002. It was contended that the current definition is regarded as “not being realistic” by various medical opinions, including some contained in the material before the Tribunal. Dr Woodland’s evidence also tends to support this criticism – at least in part. However, Ms Cowan was reminded by the Tribunal that it was obliged by the Act to accept (and use) the SoP wording as stated. It could not deviate in this regard by making its own adjustments to fit the need, and there is a spectrum of Federal Court decisions which make this requirement quite clear. Furthermore it was emphasised at the hearing that the Administrative Appeals Tribunal is not the appropriate venue for challenging an SoP or any part thereof.
22. As far as the clinical onset of the claimed condition is concerned, it is of importance to first underline that the actual condition involved is that of Lumbar Spondylosis – not PLI or some other possibly related condition or indicator. In that respect the evidence relatively clearly points to the onset of Mr Broad’s Lumbar Spondylosis being in the early 1980’s. He did not suffer the condition prior to 1975, based on x-ray evidence that there was no sign at that time of degenerative change (SoP definition of Lumbar Spondylosis also refers). Dr Woodland’s oral opinion evidence also is that its onset was early in the 1980’s – and that the condition was certainly significant, from the evidence available, in 1992.
23. Based on the evidence before it, the Tribunal is relevantly satisfied that the clinical onset of Mr Broad’s claimed condition of Lumbar Spondylosis is the early 1980’s and certainly post his discharge from the Army. This is also common ground for both parties. That being the case any question of aggravation or clinical worsening of Mr Broad’s Lumbar Spondylosis, as if it were a condition existing prior to eligible service or one contracted during that service, can not legitimately arise.
24. It follows from this Tribunal finding that, within the relevant SoPs, those factors referring to “the clinical worsening of lumbar spondylosis” are not applicable in considering the current matter before it – albeit some of these factors were discussed by both parties during the hearing and some reliance appeared to be placed on them.
The Pre-Enlistment Lower Back Injury
25. Mr Broad’s evidence is that whilst undergoing civilian apprentice training in 1968 he injured his back. In Exhibit A1 he states “… I was bending forward with the axle in my left arm to place it between the two centres when I felt something go in my lower back. I was sore for several days but still continued operating the grinder and just considered the soreness to be a pulled muscle”.
26. He was twice medically examined for entry into the Army as a National Serviceman. No lumbar spine/low back problems were reported or noted, according to the relevant T documents, at the time of these examinations. He underwent his recruit training, initial employment training and then pre-embarkation training at Canungra – all of which are very physically demanding. Mr Broad in this respect stated (Exhibit A1) “… At no time during the training periods, that I can recall, did I suffer back problems”.
27. In reality, the only supporting evidence of consequence concerning the pre-enlistment injury, contended by Mr Broad to have occurred as described above, is that of Dr Woodland. His report of 7 May 2003 – some 35 years after the incident referred to – is at T28 pages 129 and 130. This record of the injury comes from Mr Broad’s description. It is similar to that described in paragraph 26, but with the addition of the words “… he felt something go in his lower back with severe lumbar pain. He did take time off work but he cannot recall the exact duration”. And Dr Woodland also adds “… Bob [Mr Broad] told me on specific questioning today that he did have ongoing lumbar back symptoms until the time he went into National Service in 1970”. The Tribunal notes the difference in evidence regarding this latter aspect.
28. Dr Woodland’s opinion evidence is based on the various radiological reports 1992, 1995 and 2002, his clinical assessments in 2002, and the applicant’s information. In his report he states “…I can support him [Mr Broad] in the premise that the initial injury in 1968 did result in permanent instability of the lumbar spine”. And he concludes his May 2002 report “… he did develop instability syndrome subsequent to 1968 then with suffering from permanent ligamentous instability before the clinical worsening of lumbar spondylosis during his Service years”. (emphasis added) However, in his oral evidence to the Tribunal, Dr Woodland, whilst confirming his earlier opinion (albeit without any radiological evidence dating 1968 or thereabouts) that Mr Broad had PLI before his Army service, he agreed with the assessment of clinical onset of the condition of Lumbar Spondylosis being early 1980’s (vide paragraph 23 above). This negated (or clarified) his earlier documented comment regarding Lumbar Spondylosis being worsened – as underlined above.
29. Based on all the evidence before it the Tribunal is relevantly satisfied that Mr Broad did suffer an injury in 1968 to his lower back prior to enlistment. This, in the opinion of Dr Woodland, resulted in instability syndrome which he describes as PLI – albeit that diagnosis is not supported by any available radiological evidence provided at the time. It is not contradicted by any other qualified medical opinion and from the evidence, the Tribunal accepts this diagnosis of a prior-to-enlistment condition of PLI, but also finds that he did not suffer from Lumbar Spondylosis at that time nor did he until the early 1980’s (post discharge).
Requirements of Relevant SoPs
30. In relation to PLI – for the Tribunal to proceed using the current SoPs, the claim must fail. The applicant’s pre-enlistment PLI condition does not meet the detailed definition contained in the SoPs as amended. In these circumstances the Tribunal then turns to the SoPs which were current at the time of the respondent’s decision. In both those Instruments, No’s 27 and 28, the definition of PLI is as follows:
“permanent ligamentous instability means continuing or recurring abnormal mobility and instability of the lumber spine which is characterised by the regular recurrence of episodes of pain and/or tenderness affecting the lumbar spine;”
31. The evidence to support the above definition of continuing instability applying to Mr Broad, from both oral and documented evidence by the applicant, is minimal in the Tribunal’s opinion. However, Dr Woodland’s opinion evidence in this regard again is not contradicted by other medical evidence, in fact there is some medical evidence/radiological material which indirectly supports the pre-enlistment (and continuing) PLI conclusion. Consequently, the Tribunal finds that Mr Broad had a degree of lumbar spine instability prior to his periods of eligible service and that that instability continued. The question is, did it worsen as a result of that service?
32. The route for reviewing the decision consequently selected by the Tribunal is whether the already existing PLI was relevantly worsened as a result of his subsequent operational and/or eligible defence service, thus contributing to the later onset of the claimed condition of Lumbar Spondylosis. In this regard the relevant factors in the appropriate SoP are: (g) in Instrument No. 27 of 1999 and (f) in Instrument No. 28 of 1999. The wording in each is identical and is as follows:
“suffering from permanent ligamentous instability of the lumber spine before the clinical onset of lumbar spondylosis; or”
33. The evidence of injury during Mr Broad’s operational service involves a series of incidents when as an MP he had a number of falls when breaking up brawls and also one MVA (paragraphs 14 to 16 of these Reasons refer and also the Transcript). From the evidence available none of these resulted in identifiable permanent worsening of any existing ligamentous instability. He had some temporary resultant back aches and pains – which it would seem he correctly identified at the time as muscular. The occasion of his treatment at the Australian Field Hospital (or 8 Field Ambulance) in Vietnam did not involve him being immobilised or kept as an inpatient – but only some days of light duty. By his own evidence he noticed no worsened instability in his lumbar spine that was on-going, and his medical records show none either, during this operational service period. The Tribunal as a result is satisfied beyond reasonable doubt that there is ground to determine that Mr Broad’s PLI was not worsened by his operational service and hence the subsequent development of Lumbar Spondylosis post discharge was not contributed to in a material degree by his war service by that means.
34. As far as the applicant’s eligible defence service is concerned, again the Tribunal finds no evidence of the several incidents involving brawls to have been causal in relevantly worsening Mr Broad’s pre-enlistment PLI. However, whilst the evidence is not strong by any means, the Tribunal is satisfied on the balance of probabilities – based on the evidence before it, and in particular that of Dr Woodland in his oral evidence (Transcript refers) that the two apparently significant injuries occurring when Mr Broad was involved in Service sport in Singapore did have a contributory and on-going impact on his PLI. That being the case the Tribunal is reasonably satisfied that the applicant’s eligible defence service did make a material contribution via this worsening PLI to the subsequent onset of his Lumbar Spondylosis.
35. Despite this favourable finding, the Tribunal also considered the avenue of factors, in both the current and previous SoP Instruments, concerning “trauma to the lumbar spine”. However it is relevantly satisfied that none of the incidents/injuries described in either operational or defence service was sufficient in themselves to meet the definition of suffering a trauma, resulting in a discrete injury to the lumbar spine, as prescribed in the SoPs. This is so even though the word “acute” has been excluded in the definition contained in the current Instruments. That being the case the Tribunal is relevantly satisfied that the Lumbar Spondylosis was not war or defence caused by virtue of suffering a trauma.
Conclusion
36. From its findings as outlined and reasons as summarised, the Tribunal is reasonably satisfied that Mr Broad’s claimed condition of Lumbar Spondylosis has been contributed to in a material degree by the worsening of his permanent ligamentous instability as a consequence of his eligible defence service. Hence the condition itself – Lumbar Spondylosis – is defence caused. The date of effect, in accordance with the provisions of the Act, is 7 March 2001.
37. For the reasons stated earlier (paragraphs 3 and 4 of these Reasons) the matter of assessment of incapacity is remitted to the respondent.
Decision
38. Pursuant to s43 of the Administrative Appeals Tribunal Act 1975, the Tribunal decides:
(a) To set aside the VRB decision under review of 8 August 2003 in so far as it rejected Lumbar Spondylosis and to accept that condition as being defence-caused with effect from 7 March 2001.
(b) To remit the matter of assessment of incapacity from this accepted condition of Lumbar Spondylosis, together with all other previously accepted conditions, to the respondent.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Brigadier RDF Lloyd
Signed: ...............(sgd V Wong)...................
AssociateDate/s of Hearing 6 and 16 July 2004
Date of Decision 20 August 2004
Counsel for the Applicant Ms M Cowan
Solicitor for the Applicant Hammond Worthington, Solicitors
Counsel for the Respondent Mr C Ponnuthurai
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