Brown and Repatriation Commission - [2002] AATA 937

DECISION AND REASONS FOR DECISION [2002] AATA 937

ADMINISTRATIVE APPEALS TRIBUNAL )

) Nº V2002/29

VETERANS'       APPEALS       DIVISION     )
           Re      ROBERT DARRELL BROWN
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal: Mr J. Handley, Senior Member

Date:10 October 2002
Place:Melbourne

Decision: The decision under review is set aside and in substitution it is

decided that left ankle fracture is war caused and the
applicant has been entitled to pension at the special rate from 24 May
2000.

. . . . .Sgd. Mr J. Handley . . .
Senior Member
VETERANS' AFFAIRS -
Veterans' Entitlements - applicant has lumbar spondylosis, post traumatic stress disorder, sensori neural hearing loss and irritable bowel syndrome accepted as war-caused; applicant was self employed as a plumber; whether lumbar spondylosis can cause spasm; whether applicant suffered a spasm when working from a ladder; whether spasm caused applicant to overbalance and fall; fall caused compound fracture of left ankle; whether ankle injury is war-caused; whether applicant totally incapacitated from date of fall; whether entitled to special rate pension - decision set aside.
Veterans' Entitlements Act 1986

REASONS FOR DECISION

10 October 2002 Mr J. Handley, Senior Member

The applicant applies to review a decision of the Veterans' Review Board ("the VRB") made on 11 December 2001. The VRB affirmed decisions previously made by the respondent refusing a claim for left ankle fracture and a refusal to increase disability pension beyond 90 per cent of the general rate.
Mr Brown is presently 57 years of age, having been born on 10 March 1945. He was a member of the Australian Army between April 1966 and February 1968. Part of that service was in Vietnam.
Mr Brown has the conditions of irritable bowel syndrome, post traumatic stress disorder ("PTSD"), sensorineural hearing loss of the left ear and lumbar spondylosis accepted as war-caused. He suffers bilateral osteoarthrosis of his knees, which have not been claimed upon the respondent.
The hearing of the application commenced in Albury, on 17 May 2002. Mr De Marchi appeared on behalf of the applicant and Mr Douglass appeared on behalf of the respondent.
Mr De Marchi indicated that the applicant sought special rate pension. It was submitted that the left ankle fracture was associated with the accepted lumbar spondylosis and, accordingly, the ankle fracture should be accepted as war-caused. He submitted that the condition and the existing accepted disabilities should, in combination, demonstrate an entitlement to special rate pension. Mr De Marchi submitted that the applicant satisfied s.24(1)(a) and (b) of the Veterans' Entitlements Act 1986 ("the Act"). Whilst acknowledging that s.24(1)(c) might cause some difficulty to the applicant in satisfying the "alone" test, he acknowledged that the applicant was entitled to the ameliorating provisions of s.24(2).
Mr Douglass submitted that if there was a finding made that the ankle fracture is related to service, the respondent would argue that the bilateral osteoarthrosis of the knees contributes to the inability to engage in remunerative work. Mr Douglass conceded that the applicant has suffered a loss of remunerative income and conceded also that the applicant satisfied the provisions of s.24(1)(a) and (b).
ROBERT DARREL BROWN
Prior to the commencement of the hearing, Mr Brown lodged a proof of his evidence, which embodied a history of his employment. It refers to him having commenced an apprenticeship as a plumber prior to enlistment and returning to work as a plumber after discharge. Mr Brown then found it difficult to settle and cope with the directions of his employer and, after approximately six months, he decided to become self-employed. He did so because he could "pick and choose" his work and because he was intolerant of members of the public. However, by approximately 1974 he found it difficult to continue work as a plumber on a full-time basis by reason of the PTSD and his back injury, and he then obtained employment until 1987 teaching apprentices. He eventually found it difficult to cope with that occupation and then obtained employment as a roller skating rink manager for about four years, but "lost it" also because of difficulty coping with members of the public. In 1991, he purchased a dairy farm in Cobram in the belief that he could cope with that work. However, that venture was not remunerative and he returned to work as a self-employed plumber. He said that he was coping with that work because the "pace was slower" and he was working between 20 to 35 hours per week. He said that he intended to continue work as a plumber. However, he suffered the ankle fracture on 24 May 2000. Save for a short period where he completed paperwork and bookwork only, Mr Brown has not worked since 31 August 2000.
In evidence Mr Brown said that he suffered lumbar spondylosis as a result of lifting oxygen bottles in Vietnam. Thereafter he has continually suffered from back spasms. He said he initially coped with the spasms because he was young. Additionally, he said that he has suffered a numb sensation between his right hip and his right knee since the onset of the back injury in Vietnam. He said the upper right leg is numb because of the lumbar spondylosis.
On 24 May 2000 Mr Brown was working at the house of a local veterinarian in Cobram completing roofing works and was sealing a gutter. He said he was working from an A-frame freestanding ladder when he suffered a severe back spasm. He said he attempted to grab hold of the guttering, but the next thing he could recall was lying on the ground in severe pain with a dog licking his face. He understood that he had fallen from the ladder and had struck his lower leg on the edge of a verandah, which was located under the gutter, where he had been working. He was eventually taken by ambulance to the Cobram Hospital and then transferred to the Goulburn Valley Hospital in Shepparton. Surgery was eventually performed and a plate was fitted to his lower leg and fixed with screws. He said that he had suffered a compound fracture and had been in extreme pain.
Mr Brown said that subsequent to the surgery he developed acute infections affecting his elbow and knee joints, and had spent many weeks in hospital by reason of the infections. He said that he is now unable to run and can barely walk. He is unable to crawl or climb steps or ladders. He has recently been told that he needs to have both knees replaced.
Prior to the fall, Mr Brown said that despite his knee injuries, he was able to climb and crawl and believed that he had the capacity to continue to work as a self-employed plumber. When he ceased work in August 2000, he divested his business to his son, who is also a plumber.
With respect to his injuries, Mr Brown said that he is in constant pain but consumes aspirin only. He said the pain is often unbearable and there are times when he wants to "end it". He has had psychological treatment with Dr Wild in Albury. He has physiotherapy once weekly and also consumes anti-inflammatory medication. He said that he does little at home and his wife undertakes all gardening. He said that he is no longer able to tolerate people.
Mr Brown said that were it not for his PTSD and lumbar spondylosis he would be able to work as a plumber. Additionally, or in the alternative, were it not for his PTSD Mr Brown believed that he would be able to return to teaching apprentices.
However, it was Mr Brown's position that the combined effects of all the accepted disabilities, together with the ankle injury, which he associated with the back spasm arising out of the lumbar spondylosis, have, in combination, affected his ability to work and cause total incapacity.
In cross-examination Mr Brown said that he has suffered the spasms since he was discharged from service. He said they occur irregularly and cause him to suffer severe shooting pains in his back. He also said that his back "locks".
Mr Brown was taken to parts of the transcript of the proceedings at the VRB. The Members of the VRB questioned Mr Brown with respect to the history taken by Mr Peter Scott, a consultant surgeon, who examined Mr Brown at the request of the respondent. Mr Brown was asked questions with respect to whether his leg was caught between the rung of the ladder and whether he suffered a "twinge". Mr Brown said in evidence, that he had, at the time, believed he had caught his leg between the rungs of the ladder. When he returned to the site of the fall and recalled the mechanism for the fall he understood that he had fallen to his left, however the ladder had fallen to its right and in those circumstances he could not have caught his leg between the rung of the ladder. He was adamant that he did suffer a back spasm and not a twinge. He said the word "twinge" was a word used by Mr Scott, not by him. He said that he recalled the interview by Mr Scott who did not then have a file or papers. He described Mr Scott at the interview as being "terse". He thought Mr Scott was trying to "minimise" the extent of the ankle fracture.
In one of his responses to questions of the VRB Members, Mr Brown said (p.9):
"I fell from the ladder and I – when I fell, I can't remember falling. I thought I had put my leg, caught it between the rungs, because when I came up I was almost knocked out, the bone was sticking through the foot and I went into shock – so I really can't recall falling from the ladder, so I am just surmising that. And when I found out later, I didn't catch my foot through the rung of the ladder, as I know, but I said that on several occasions. I thought that was the case, that I – it was obvious because the ladder went to the right and I was on the left and the ladder was nowhere – and my foot – so I really didn't what I was saying – I was there and it was stormy, I had a dog licking me and I was sort of – I didn't know, I just about passed out."
Mr Brown recalled that there was a storm approaching at the time of the fall but it was not raining. He denied that the ladder was wet and that he had slipped from it.
Mr Brown was then taken to the notes made on admission to the Goulburn Valley Hospital (found at p.32 of the T documents). The notes record (omitting irrelevant parts):
"… 55 yo [year old] ? [male] # [fracture] L [left] leg fall from ladder 16.20 today
Px [patient] fell 1.5m down ladder backwards; leg got caught in ladder – back & head impacted ground after falling vertically 1m."
The notes continue to record the applicant having suffered PTSD, depression, lumbar spondylosis and some other illnesses. It also records his allergy to penicillin.
Mr Brown was asked why the back spasm was not recorded by the hospital on admission as being the cause of the fall. He said that he was then in extreme pain and was only concerned with obtaining treatment. He was then taken to another page within the Goulburn Valley Hospital's records (p.33) where the history taken is:
"1620 hrs. PT [patient] up a ladder fell down the ladder (foot slipped) fell down the ladder, landing on ground fallen on back and head".
Mr Brown said that he could not recall the interview, giving rise to the notes at page 33.
At page 62 of the T documents is a copy of a letter Mr Brown wrote to the Department of Veterans' Affairs. The letter is undated, however he records that, on 24 May 2000, at Cobram:
"… my right leg went numb due to a back spasm.
As a result I slipped off the ladder and fell onto the verandah, from this I sustained a fractured left ankle".

Mr Brown was unable to explain why he would record that his "right leg went numb due to a back spasm" when he had earlier said in evidence that he had suffered numbness in his upper right leg since discharge from service. Additionally, he said that he had not been concerned at the hospitals to mention that he suffered back spasm, because he was only concerned with obtaining treatment. He said that he had been in extreme pain.

At the present time, Mr Brown said that the "anklebones have knitted" and he is unable to run and can only walk with pain. He said that he has been told that he has post-operative osteoarthritis. He has continuous pain, which is worse on movement and weight bearing. He said that he can walk only a few hundred metres without having to stop to rest.
Mr Brown agreed that he presently suffers greater discomfort in his knees subsequent to the ankle than prior to it. He said that he is unable to kneel or squat, and has had a cyst removed from his knee and has been told by Mr Critchley, his orthopaedic surgeon, that he needs bilateral knee replacement.
In re-examination, Mr Brown said that, prior to the fall, his back was "reasonable". He said that he had never been able to sleep well and suffered persisting memories, dreams, nightmares and restlessness. At the present time, he suffers continual pain in his back, his right ankle and in his knees. He said that he was "better" at the time of the fall than he is at the present time. He said that his back is no worse and he favours one leg. He understood that his back had worsened in part because of favouring his good leg. Additionally, he said with the combined effects of the ankle fracture, his inability to sleep and his significant pain that he is totally incapacitated for work.
With respect to the histories obtained by the hospital, Mr Brown said that he could barely recall being admitted and his main concern was to obtain treatment for the fracture. It was also noted from the records that he had tongue swelling and he believed that he might have had difficulty communicating. He described the pain at the hospital as being "excruciating" and he did not obtain any relief until he was eventually given an epidural injection immediately prior to surgery. He said that he recalled the hospital being concerned more with its own procedures, rather than obtaining details from him. He did not believe the history taken by the hospital was accurate.
Mr Brown was adamant that he would not have fallen from the ladder were it not for him having suffered from a back spasm. He said that climbing ladders is a routine part of work as a plumber, which he had been undertaking prior to the fall.
In answer to some questions from me, Mr Brown said that he now used a walking stick to alleviate pain in his knees and to keep him steady when walking and when on his feet. He acknowledged that he had knee pain prior to the fall, but it was not hindering him. He said that were it not for the fall and the consequent ankle fracture he would now be working with his son. Additionally, Mr Brown said that he could not recall any person at any of the hospitals or in the ambulance asking him why he had fallen. He said that he had received three pethidine injections by the time he arrived at the Goulburn Valley Hospital, but he was unable to say whether he had been affected by that medication.
When the hearing resumed in Melbourne on 27 September 2002, Mr Douglass indicated that having spoken to the applicant's treating surgeon Mr Critchley, he was satisfied that the applicant had suffered a worsening of his bilateral knee injuries subsequent to the ankle fracture by reason of the combined effects of immobility, joint infection, treatment and reaction to anti-biotics.
Mr Douglass submitted that subject to a finding of connection between the accepted lumbar spondylosis and the fall which caused the ankle fracture, the respondent would concede that from the day of the fall, namely 24 May 2000, the applicant has been totally incapacitated for employment by reason of the combined effects of the accepted disabilities predominantly the back injury and the PTSD.
Mr Douglass conceded in Albury that the applicant has suffered a loss of remunerative income and had satisfied the provisions of s.24(1)(a) & (b). Whilst he noted from the applicant's evidence that there had been an attempt to work until August 2000, the evidence indicated that the applicant was able only to undertake book and paperwork whilst in a seated position, which was not, in the circumstances, indicative of a capacity to work. Subject therefore to a finding of connection between the back injury and the fall which gave rise to the ankle fracture, the respondent would concede an entitlement to special rate pension from 24 May 2000. Accordingly, it was intended that the hearing would proceed in Melbourne only on the issue of whether the applicant satisfied s.24(1)(c), namely whether the war-caused injuries alone prevented the applicant from continuing to undertake renumerative work. In effect, it was the respondent's contention that an association did not exist between the lumbar spondylosis and the fall giving rise to the ankle injury and it was the ankle injury and the subsequent treatment of it, which has precipitated total incapacity. The applicant was not in those circumstances entitled to special rate pension.
Mr De Marchi indicated that he intended to call Dr Hofland, who provided a report dated 16 March 2002 and received into evidence as Exhibit D. He said that she reported, and would say in evidence, that irrespective of the ankle injury and its subsequent treatment and incapacitating effects, the applicant was at all relevant times totally incapacitated by reason of his PTSD.
I indicated to the parties that I was satisfied - for reasons which I would deliver in writing - that an association did exist between the lumbar spondylosis and the fall which precipitated the ankle fracture. In those circumstances, I indicated that I did not need to hear from Dr Hofland and Mr DeMarchi did not persist with calling her to give evidence.
I am satisfied on the evidence heard and read, that the concessions made by Mr Douglass are appropriate in the circumstances. I am satisfied that the applicant has suffered a deterioration in the state of his knee injury subsequent to the fall and would be satisfied that at 24 May 2000 his capacity for employment was apparently not affected by the knee injuries. Additionally, I am satisfied that since the date of the fall the applicant has been totally incapacitated by reason of the combined effects of the war-caused injuries and the ankle fracture. Prior to 24 May 2000, the applicant would not have been able to qualify for special rate because at that date he was working and would not have been able to demonstrate incapacity. Having also observed the Income Tax Returns lodged by Mr De Marchi, I am satisfied that there has been a loss of remunerative income which may be explained entirely by the inability of the applicant to resume his self employment as a plumber.
The applicant impressed me in Albury as being a witness of truth who did not seek to exaggerate or embelish his evidence. He is a person who is in constant pain and his mobility is assisted by the use of a walking stick. I am satisfied that the opinions Doctor Hofland expressed as to the impact upon his PTSD by his constant pain are well founded. It therefore follows that the applicant, subsequent to 24 May 2000, is in a considerably worse state by reason of an apparent deterioration in his physical and emotional injuries. I have little doubt that the applicant did fall and suffer the ankle fracture by reason of the lumbar spondylosis, precipitating a back spasm, which caused him to overbalance and fall from his ladder. I make this finding having been assisted by the reports of Mr Critchley and Mr Fraser, both of which were received into evidence.
Mr Critchley in his report of 2 May 2002 concluded-
"Although I can not state conclusively that the lumbar spasm was the cause of his fall and the subsequent sequelae, but it does seem to be a perfectly reasonable explanation for an unexpected fall in these circumstances.
It is certainly a well established symptoms of degenerative spondylosis that awkward twisting movements can precipitate sudden and severe stabs of pain which would certainly unbalance someone that was in a precarious situation".

Mr Fraser in his report of 7 May 2002 concluded-
"It is entirely probable that a spasm of low back and/or right leg pain as a result of the lumbar spondylosis, caused him to fall from the ladder in May 2000, sustaining a compound fracture of the left ankle".
Being satisfied, therefore, that lumbar spondylosis can precipitate spasm and that spasm can in turn precipitate a person being unbalanced, I have little doubt that the applicant did fall from the ladder as he described. There being no controversy that the effect of the fall caused the severe compound fracture, I am satisfied of the fact that the fracture occurred in the circumstances described.
The respondent pointed to inconsistencies in the applicant's evidence - both at Albury and on the documents lodged - concerning his description of the fall. There were references made to whether the applicant fell because he slipped or whether because his leg was caught between a rung of the ladder. The applicant explained that his leg did not become caught between rungs of the ladder and I am satisfied that this is so. Additionally, I am satisfied that the applicant did not slip. There was reference made to an approaching storm, but there was no evidence pointing to rain at the time, nor any other substance which would give rise to the applicant slipping from the ladder. I am satisfied that the applicant did fall entirely by reason of a spasm causing him to overbalance.
Additionally, the respondent pointed to the applicant's failure to notify the admitting hospitals that he had fallen by reason of a spasm. I am satisfied that the applicant did present in severe pain having had pethidine administered and was in a distressed state. The history taken by the hospitals as reproduced earlier in these reasons suggests that the persons admitting Mr Brown were concerned with the nature of his injuries rather than cause. I doubt that Mr Brown would have been minded to explain the cause of the fall to be by a back spasm. In all probability, he would have been suffering the effects of pain, perhaps also from the effects of pethidine, and would have been anxious to have his pain relieved. I note Doctor Fraser in his report (page 2) recorded-
"I note the reasons for the disallowance of the fracture of the left ankle as being 'war related' and would comment that it seems unreasonable to base this on the hospital records at the time of the fracture. If he did not mention the back spasm it would be quite understandable given that he was in pain as a result of the fracture. As well, having heard the circumstances of the injury, the receiving doctor in the emergency department and the orthopaedic registrar were certainly not to be expected to obtain a more detailed history, which might have led to the back spasm being recorded".
In all of the circumstances, I am satisfied that the concessions made by the respondent are appropriate and that a connection also exists in fact between the accepted disability of lumbar spondylosis giving rise to a spasm precipitating a fall causing compound fracture of the applicant's left ankle. Further, since the date of the fall, namely 24 May 2000, the applicant has been totally incapacitated for employment. By reason of that total incapacity, the applicant has suffered a loss of remunerative income. It follows that the applicant has been, since 24 May 2000, entitled to pension at the special rate.
The decision under review in the circumstances will be set aside and a decision in substitution made accordingly.
I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member.
Signed:         Katherine Navarro..............................
  Associate
Date/s of Hearing  17 July 2002 and 27 September 2002
Date of Decision  10 October 2002
Counsel for the Applicant        Mr De Marchi
Solicitor for the Applicant         De Marchi & Associates
Counsel for the Respondent    Mr Douglass
Solicitor for the Respondent    Department of Veterans' Affairs