Caldwell and Repatriation Commission - [2000] AATA 302

DECISION AND REASONS FOR DECISION [2000] AATA 302

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A1999/88

VETERANS' AFFAIRS DIVISION )

Re BRUCE ATHOL CALDWELL
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Pamela Burton, Senior Member

Date19 April 2000
PlaceCanberra

Decision The tribunal decides to set aside the decision under review and remits the matter for reconsideration of the rate of pension payable to the veteran with the direction that the veteran's condition of lumbar spondylosis is war-caused and the pension payable is effective from 9 February 1996.

...................(Sgd.).......................
Pamela Burton Senior Member
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – disability pension – whether lumbar spondylosis "war caused" – recall of an unrecorded trauma – injury to ribs and hip – whether any restriction of movement and altered mobility by reason of hip pain.
Legislation
Veterans' Entitlements Act 1986
Authorities
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Bushell (1991) 23 ALD 13
Keeley v Repatriation Commission [1999] FCA 1103

REASONS FOR DECISION

19 April 2000 Pamela Burton, Senior Member

This is an application for review of the decision of the Repatriation Commission dated 15 May 1996 denying that the veteran's condition of lumbar spondylosis was war-caused. The Veterans' Review Board ("the VRB") affirmed the decision on 1 February 1999.
The veteran was represented by Mr Paul Crabb and the respondent by Ms Susie Breuer. The tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the "T-documents"). In addition medical reports of Dr Scott, occupational physician, dated 17 September 1999 (Exhibit A), and of Professor Sambrook, rheumatologist, dated 25 August 1999 (Exhibit 1), were tendered at the hearing. The tribunal heard the evidence of the veteran and Dr Scott gave telephone evidence on behalf of the veteran. Professor Sambrook gave telephone evidence on behalf of the respondent.
The issue before the tribunal is whether the veteran's condition of lumbar spondylosis is war-caused.
The Veterans' Entitlements Act 1986 ("the Act") requires that for a claim to be accepted the disability must be related to operational or eligible defence service. The veteran was born on 24 April 1927. He joined the Royal Australian Navy in November 1946. It is not in dispute that the veteran served in the Second World War from 6 November 1946 to 2 January 1949, which period constitutes "eligible service" for the purpose of the Act. He served in Far East Strategic Reserve from 19 September 1955 to 27 October 1955; from 14 November 1955 to 11 December 1955; from 23 June 1960 to 16 August 1960; from 10 September to 10 October 1960; from 14 October 1960 to 5 November 1960 and from 15 November 1960 to 30 November 1960, which periods constitute "operational service" for the purpose of the Act. He served in Vietnam from 16 March 1971 to 11 October 1971, which period constitutes "operational service" for the purpose of the Act. He further served in the period 7 December 1972 to 23 April 1974, constituting "eligible defence service" under the Act.
The veteran does not bear the onus of proof. The standard of proof is as set out in sections 120(1) and 120(3) of the Act in respect of war-caused conditions during operational service, with which the tribunal is concerned in this case. That is, the tribunal must find that the claimed conditions were war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that finding. The tribunal must be so satisfied if it is of the opinion that the material before it does not raise a reasonable hypothesis to connect those conditions with the circumstance of the operational service rendered.
In coming to its decision, the tribunal must have regard to the Statement of Principles ("SoPs"), issued by the Repatriation Medical Authority from time to time, if any, in relation to a claimed war-caused condition. These SoPs state what factors must exist for a hypothesis to be considered reasonable. Pursuant to sections 120A and 120B of the Act the tribunal cannot accept a condition as being related to service unless the evidence meets one of the factors set out in the SoP for that condition. However, for operational service the tribunal must be satisfied beyond reasonable doubt that a factor does not exist before the claim can be refused.
In the veteran's case the SoP applying at the time of the decision under review was instrument No. 105 as amended by Nos. 334 and 358 of 1995. The relevant factor to be met in the 1995 SoP is that the veteran suffered "a trauma to the lumbar spine before the clinical onset of lumbar spondylosis". The veteran claims that his lumbar spondylosis was caused by many years of microtrauma and a fall in Singapore, and that his circumstances met that factor. The SoP does not recognise the contribution of microtrauma to lumbar spondylosis and the decision-maker found that there was no history of the veteran having had a trauma to his lumbar spine in Singapore.
Trauma to the lumbar spine is defined under the 1995 SoP to mean:
An injury to the lumbar spine caused by the force of an extraneous physical or mechanical agent that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of the joint, and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs, unless medical intervention has occurred (eg splinting, corticosteroid injection, surgery), and there is evidence relating to the extent of injury and treatment, such evidence may be considered.
Since that time SoP No. 52 of 1998 concerning lumbar spondylosis was issued, revoking that definition of trauma. By the time of this hearing SoP No. 27 of 1999 had been issued.
Under the later SoP "trauma to the lumbar spine" is defined to mean:
A discrete injury to the lumbar spine that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain and tenderness, and either altered mobility or range of movement of the lumbar spine. These acute 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, where 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.
Whether the SoPs in existence at the time a veteran makes his or her application or whether those in existence at the time of the tribunal's hearing should be applied is presently the subject of judicial consideration.
In the case before me the veteran claims that his circumstances meet the factors set out above in both sets of relevant SoPs. The central issue for the tribunal to determine is whether or not the veteran suffered a trauma to his lumbar spine in the incident to which he referred in Singapore. The definition of "trauma to the lumbar spine" is perhaps stricter in the 1999 instrument. However, I agree that on the evidence before me, the outcome of this review is not dependent upon the slight differences in the definitions of "trauma to the lumbar spine" in the two SoPs.
The veteran's evidence
The veteran was a Senior Stores Rating on the HMAS Brisbane in his last period of operational service in Vietnam. He supervised a staff of up to four and was responsible for the movement of all stores, equipment and parts (other than food) on the ship. In April 1971, during the course of this service in Vietnam, he had a five-day period of rest and recreation ("R&R") in Singapore. His evidence is that on 24 April 1971 he suffered a trauma to his low back when he was pushed into a drain while in Singapore. The veteran recalls the date as it was his birthday and he had been having celebratory drinks prior to returning to the ship.
The incident occurred while the veteran was standing at a taxi rank with a friend in order to return to the ship after his night out. As they jostled to get to the taxi he was pushed and fell backwards into a concrete and stone monsoon drain that carried water and sewerage. The drain was about 6 to 8 feet deep and twenty feet wide. He said that his fall was unbroken and he landed on the low right side of his back and his right hip. He was embarrassed by the fall and he said he felt sore and tender and had difficulty breathing. He was helped out of the drain by being pulled out as he stepped up the sloping wall, which was sufficiently rocky to allow a foot hold. The veteran thought that there was about 6 to 18 inches of sewerage water at the bottom of the drain. Not enough to soften the impact of his fall, but sufficient to cause his clothes to be wet, dirty and putrid.
The veteran said that when he got out of the drain his right hip and ribs were sore to touch and he had to put his hand on his ribs and push them to breath. He caught a taxi back to the ship and went alone to his cabin where he discarded his clothing and showered, and he went to bed. He said that while he was getting ready for bed he was hurting all over. He was mobile but in pain. He recalled that his right hip and his ribs were painful while he was lying in bed. He had a restless and uncomfortable sleep.
The veteran's evidence is that the next morning he reported to sick bay as he had trouble breathing and he had soreness and tenderness in his low back and especially in the hip area. He said he had restricted movement in his arms and back. The veteran also suspects he had broken ribs but recalls no bruising. He saw the sick bay attendant, and a doctor examined him. He described the examination as consisting of him taking off his shirt so that the doctor could look at his back. He was asked to raise his arms (apparently to see if he had fractured any ribs). The veteran assumed he had broken a rib, although nothing was said to him about that in the sick bay. He was given no prescribed medication. He was told to take it easy and not to exert himself.
The veteran did not return to the sick bay, he says, because the ship was due to go back into the gun line within the next three to four days at the completion of the R&R period, and he wanted to remain on the operation. In the course of the rest of his R&R period the veteran says that he was too sore to play golf. He was able to dress himself and put on his own shoes but he felt pain while bending down.
Thus the veteran took no time off work, other than the three to four day period he had left on R&R. He was not put on light duties after the injury. He explained that his injury did not affect his work, as his duties were clerical. He had no trouble sitting or standing. However, he modified the way in which he worked, and he did not visit the storeroom because that required him to climb down ladders.
He said he was sore on the right hand side of his back above his hip, and tender on his hip and ribs. He said his breathing was so difficult that he had to "pump" his ribs. He said that these symptoms lasted a couple of months at least. The symptoms varied in intensity after a couple of months and reduced, but he still had to pump his lungs. This, he said, was so bad that he ceased smoking, and he did not resume smoking until 1982 during a period in the Navy reserve.
The veteran was asked whether he could explain the absence of any sick bay records to verify his attendance there. He said that while the crew was on R&R the sick bay was busy and the routine was disrupted. It was pointed out to him that records of HMAS Warramunger on which he served in 1955 revealed that he had previously complained of a backache (T3, p8). The veteran was not able to recall this incident, and was adamant that it was unrelated to the pain from which he suffered in Singapore, which was distinctly to the right side of the low back. He said that everyone fell down ladders from time to time and complained of backaches. It was pointed out to the veteran that he complained of low back pain on another occasion, which the veteran also did not recall. He said that he did recall a complaint of lumbago in the middle of his low back. This seems to be a reference to an occasion on 19 May 1969 when the veteran was serving on HMAS Kuttabul (T3, p.11). On that occasion the record revealed that he took three days off and took painkillers. There is also evidence that in February 1960, the veteran complained of low back pain while on the Vampire (T3 p.18).
The veteran's evidence is that as a consequence of the fall in the drain in Singapore he was in acute pain which lasted a couple of months. He said he took no pills, and he continued to work, restricted by constant pain over the period. He avoided climbing down ladders, because of both his rib and back pain. His chest and rib pain resolved and the tenderness and soreness in his hip improved, after a few months.
The veteran said that it was not until some 6 or 8 years ago that he was told he had lumbar spondylosis, and treated for low back pain. He said that he first commenced suffering his current back pain when he was in Tasmania and he found walking difficult. He saw a doctor there, and then returned home and sought further medical treatment. Dr Ahern, the veteran's general medical practitioner, arranged for x-rays to be taken and the veteran's condition was diagnosed as lumbar spondylosis.
The documented evidence
There was no record made in the sick bay reports of HMAS Brisbane of the veteran's attendance. Nor did the veteran mention this incident on his discharge in 1974 although the medical discharge record noted a complaint of backache in 1955 (T3 p.8).
The veteran says that the reference to the 1955 incident on his discharge form was included because it was an incident recorded in the sick bay notes. He said that he didn't fill out the form, he merely signed it. On seeing the form he did agree, however, that some of it was completed in his writing (T7 p.34, T11 p.47). The veteran says that the discharge form cannot be assumed to be accurate. He points out that the medical record on discharge doesn't refer to lumbago, or his high blood pressure (T3, p.8), though the diagnosis of lumbago is made on the daily medical record in 1969 (T3 p.11).
That the veteran had previous back incidents is clear from the records, and in particular from his own statement. In 1996 he stated in relation to his low back problems: "27 ½ years service, thousands of periods of micro trauma while descending ladders. A major fall in Singapore and continuous pain during and since service" (T7, p.34). Further, Dr Ahern in his report of 1 December 1998, obtained a history that the applicant had suffered back pain before the incident in Singapore in 1971, but did not report it.
The medical evidence
The veteran suffers from lumbar spondylosis, evidenced by pathology as reported by Dr Ahern in his report of 1 December 1998 (T10). Professor Sambrook in his report 25 August 1999 (Exhibit 1) described the x-rays of the lumbosacral spine performed on 3 May 1996 as having revealed a mildly narrowed L4/5 disc space, anterior osteophyte formation at L1/2, L2/3, and L3/4, possible mild spondylolisthesis, facet osteoarthritis at L5/S1 and minor wedging of T12 anteriorly.
Is a reasonable hypothesis raised?
The veteran advances the hypothesis that he suffered an injury in the incident in Singapore which has materially contributed to his condition of lumbar spondylosis. In considering whether the hypothesis is reasonable I must consider the whole of the material before me and decide whether the hypothesis is reasonable taking into account the relevant SoPs.
Without inquiring into the existence of the facts relied on by the veteran as supporting the relevant factors in the SoPs, I need to consider whether the facts raised by the veteran point to a connection between his current condition and his operational service.
The veteran contends that on the facts raised the hypothesis is consistent with and thus upheld by the relevant SoPs. One of the factors which must exist is that a trauma occurred of the kind the veteran says he suffered when he fell into the drain and landed on his right side and back. The veteran says he suffered acute pain for some weeks or months thereafter in his chest and right hip area, and that his mobility and range of movement was restricted for that time as a result of both his low back and chest pain. Thus, the veteran contends that he has raised a reasonable hypothesis connecting his condition and incapacity with his operational service.
The respondent contends that the material before the tribunal does not raise a reasonable hypothesis. On the respondent's behalf it is asserted that on the veteran's own evidence he did not suffer a trauma as defined in the relevant SoPs. In issue in particular, is whether the veteran's description of pain amounts to "acute pain" and whether his evidence suggests that he suffered a restriction of mobility or range of movement for the requisite period to satisfy the SoPs. Even so, the veteran's evidence does not indicate whether the pain and restriction of mobility or range of movement was by reason of his low back injury rather than his chest injury.
The veteran's case is that he suffered acute pain in both his chest and low back region. This pain lasted for some 6 to 8 weeks in both areas. This satisfies one part of the definition of "trauma to the lumbar spine". He says that he went about his duties without medical intervention and was capable of a full range of movement, but that his mobility was restricted in that he had to take it easy and avoid climbing up and down ladders. His evidence is that the restriction was a result of both his chest and low back pain. On this evidence I must conclude that the low back pain played a part in his altered mobility. Therefore, the second component of the definition of trauma is met. On the facts raised in support of the hypothesis, I am satisfied that all the components of the definition of "trauma to the lumbar spine" are met.
On the medical and other material available, the hypothesis is not otherwise contrary to "proved" or "known" scientific facts, or obviously fanciful, impossible, incredible, absurd, or ridiculous. On the facts raised upon which the hypothesis is based I cannot conclude that it is not tenable or that it is too remote or too tenuous (Repatriation Commission v Bushell (1991) 23 ALD 13 at 14). I therefore find that a reasonable hypothesis has been raised connecting the veteran's operational service with his condition of lumbar spondylosis and his current incapacity arising out of that condition.
I turn now to consider whether on the evidence I can be satisfied beyond reasonable doubt, that one or more of the facts supporting the hypothesis is not established or that an inconsistent fact is established beyond reasonable doubt (Repatriation Commission v Deledio (1998) 49 ALD 193 at 206).
The credibility of the veteran and accuracy of his recall
The veteran gave a frank and honest account of the Singapore event and its aftermath to the best of his recall. I note that he described the drain as some 6 to 8 feet deep, somewhat deeper than the maximum of two feet that his advocate told the VRB the veteran thought it was. The history taken by Professor Sambrook from the veteran was that the drain was some 5 to 6 feet. The veteran really did not know how deep the drain was. It was dark and he didn't measure it. He said that it was a "big drain" and I accept that evidence as sufficient to warrant a conclusion that falling into the drain could cause trauma to the lumbar spine.

The veteran's recollection of attending the sick bay is very clear. I have no doubt that he did attend because of his concern in relation to his rib pain and breathing difficulties in particular, despite the fact that it is not recorded. He said acute pain in his back lasted up to two months, a slightly longer period than indicated in his submission to the VRB. He agreed that it is difficult to recall after 30 years.
Findings of fact
Whether there was an injury to the lumbar spine
Accepting the veteran's credibility, though not necessarily the accuracy of the entirety of his evidence, I accept that the incident in Singapore occurred in the way in which he described it. In any event, counsel for the respondent did not challenge him as to its occurrence. I note the absence of documentary evidence in support of the veteran's attendance at the sick back after the incident. The respondent submitted that if the 1955 incident, one too insignificant for the veteran to recall, was recorded, it is likely that an incident as serious as the one the veteran describes occurred in Singapore, would be noted. I do not accept this proposition, as the practice of the personnel on each ship is likely to differ, depending on their habits, and how busy the medical staff was at the time.
It seems clear that the veteran was quite concerned about his painful chest and breathing problems after the fall. On the evidence I have no reason to doubt that the veteran attended the sick bay the next day, primarily, as he frankly explained, because he was having difficulty breathing and thought he might have broken some ribs. He said he told the doctor that he was sore on the back but the doctor was more concerned with the ribs. He was frank about the fact that the doctor examined his back only cursorily, in order to see whether or not he had broken a rib. The rib problem has since resolved and the veteran has nothing to gain in these proceedings by fabricating or exaggerating his evidence about his rib and chest condition. He says he had soreness and tenderness around the right hip region for "a couple of months" after which time it eased off, and I am satisfied that he did suffer injury and pain to the low back area as a consequence of the fall.
Whether acute symptoms and signs of pain lasting for 7 days
The veteran says he was sore and tender in the right hip area overnight after the incident. He describes that level of pain as persisting for a period of 6 to 8 weeks. I accept that pain persisted for at least 6 weeks. The persistence of a consistent level of pain accompanied by relatively full mobility is not a description of "acute" pain as generally understood.
Professor Sambrook explains that acute pain is pain that settles. He surmised that with the elapse of time the veteran might not now recall a more gradual subsiding of the initial acuteness of the pain. Dr Scott had no difficulty accepting that what the veteran described was acute pain. However, Dr Scott assumed, it seems incorrectly, that the veteran had been taking some sort of analgesic after the incident. He agreed that what the veteran described was not severe pain, or otherwise that the veteran was tough. Being informed at the hearing that there is no evidence that the veteran was prescribed or took analgesics, Dr Scott nevertheless adhered to his view that the veteran's description of low back pain satisfied the particular component of the relevant SoPs. Professor Sambrook also conceded that the veteran's description of tenderness and soreness for some two months, satisfies the component of the SoP that requires it to persist for a period of at least seven days. On this evidence I cannot be satisfied beyond reasonable doubt that the veteran didn't suffer acute pain in the low back for a period of at least seven days.
Whether altered mobility or range of movement
From the veteran's evidence it can be concluded that after the fall in Singapore he had a full range of spinal movement as indicated by his ability to shower and dress and bend to put on his shoes. However, it seems that his mobility was affected. His normal duties were not interfered with initially, because he still had a few days left of his R&R. He was unable to play golf during that time. He said that when he resumed duties he was able to do all that was required of him, as his position was fairly sedentary. However, he said that he took it easy for the period of about two months and did things more slowly because of both his low back and chest pain. He avoided climbing ladders. He had too much pain to do this.
Whether or not the limitation described by the veteran amounts to altered mobility caused by his low back pain is complicated by the fact that he had another source of pain in his ribs. The veteran was not able to differentiate between the low back and rib pain as a cause of his restricted mobility. He said that both restricted his mobility.
Professor Sambrook agrees that the veteran's evidence may well fit the hypothesis in its requirement of altered mobility for a period of seven days, if a source of the restriction was his low back. On the veteran's evidence his low back pain contributed to his restricted mobility. In those circumstances I cannot be satisfied beyond reasonable doubt that the veteran's right low back pain was not a source of his altered mobility for a period of some weeks.
Whether causative link between operational service and incapacity
The veteran made no mention of his low back problem when he was discharged from the service. He had no treatment in relation to his back until about 1996 when his current pain started. There is no disagreement between the medical specialists that the veteran has lumbar spondylosis.
Professor Sambrook, in his report dated 25 August 1999 (Exhibit 1), stated that:
I have reviewed Instrument 27/1999. It would be unusual for Mr Caldwell to have sustained an injury of the severity envisaged in the definition of trauma in the Statement of Principles and not have it recorded. Moreover although his current x-rays show diffuse changes of lumbar spondylosis these are generally mild and in no way more severe than one might expect for the Veteran's age. I did note that Mr Caldwell did complain of backaches in his medical statement on discharge but there appears to be no mention of a specific back injury. The episode described on the HMAS Vampire seems to have been a self-limiting episode which had resolved by five days and there is nothing to suggest aggravation of this injury by the reported episode in Singapore. Moreover even if aggravation is considered, there appears to be insufficient evidence to support that this episode was consistent with Trauma as defined in the Statement of Principles.

Professor Sambrook's opinion is that the veteran's pathology is consistent with his age. He expected to see more severe deterioration if something other than the veteran's age caused it. In his view the pathology does not point to it being caused by trauma.

Dr Scott disagrees. He sees the trauma described by the veteran at the hearing as having materially contributed to the veteran's current lumbar condition. He explained that trauma does not cause immediate degeneration; it occurs with time later in life. In Dr Scott's opinion, the veteran has war-caused lumbar spondylosis on any of the definitions in the relevant SoPs.
Taking into account the whole of the medical evidence, I am not satisfied beyond reasonable doubt that the injury suffered by the veteran in the course of his operational service while he was on R&R in Singapore did not materially contribute to his condition of lumbar spondylosis. I therefore find that the veteran's incapacity arising from his condition of lumbar spondylosis is war-caused.
Determination of impairment rating
Dr Scott, at p.3 of his report dated 17 September 1999 (Exhibit A), assessed the veteran's impairment as 20% under Table 3.3.1 of the Guide to the Assessment of Rates of Veterans' Pensions at 20 points, finding that the veteran had a loss of about half of the normal range of movement. Table 3.6.1 converts the impairment rating to an age-adjusted impairment rating of 16 points.
Professor Sambrook, at p.4 of his report dated 25 August 1999 (Exhibit 1), assessed the impairment rating under Table 3.3.1 at 15 points, finding that there was a loss of between one quarter and one half of the normal range of movement. This adjusts to 12 points under Table 3.6.1.
The respondent seeks that if the tribunal finds that the veteran's lumbar spondylosis condition is war-caused, the matter be remitted for assessment. I intend to do so given the lack of material before me to explain the different assessments arrived at by the two specialists. Very little attention was given to the issue of the veteran's current function and range of movement of his lumbar spine at this hearing. I do not have sufficient material before me to account for the different assessments given by the two specialists, or to assess the relative value of the opinions they have given in this respect.
Date of effect
I note that the earliest date of effect is 9 February 1996.
Decision
The tribunal decides to set aside the decision under review and remits the matter for reconsideration of the rate of pension payable to the veteran with the direction that the veteran's condition of lumbar spondylosis is war-caused and the pension payable is effective from 9 February 1996.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Pamela Burton, Senior Member
Signed:         Eva Dimopoulos           .....................................................................................
  Associate
Date of Hearing  10 February 2000
Date of Decision  19 April 2000
Counsel for the Applicant        Mr Paul Crabb
Solicitor for Applicant               Sneddon, Hall & Gallop
Counsel for the Respondent    Ms Susie Breuer