Carney and Repatriation Commission
[2005] AATA 280
•1 April 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 280
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/612
VETERANS' APPEALS DIVISION ) Re DOUGLAS LESLIE CARNEY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr KS Levy, Member Date1 April 2005
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and substitutes the decision that Mr Carney’s condition of lumbar spondylosis is defence caused with effect from 3 June 2001.
..................[Sgd].......................
Dr KS Levy
Member
CATCHWORDS
VETERANS’ AFFAIRS – Pensions, benefits and entitlements – war caused injury during defence service – lumbar spondylosis – condition accepted – whether injury was war caused – injury satisfied the relevant factor in the Statement of Principles – decision under review set aside and substituted accordingly.
Veterans’ Entitlements Act 1986 s 68, 70, 120B, 120
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Harris v Repatriation Commission (2000) 62 ALD 174
Arnott v Repatriation Commission (2001) 106 FCR 83; (2001) 63 ALD 575Mason v Repatriation Commission [2000] FCA 1409
Knight v Repatriation Commission [2002] FCA 103
REASONS FOR DECISION
1 April 2005 Dr KS Levy, Member 1. The decision under review by the Administrative Appeals Tribunal (the Tribunal) is the decision of the Repatriation Commission dated 2 November 2001 as affirmed by the Veterans’ Review Board’s decision of 5 July 2004. That decision rejected the applicant’s claim that his lumbar spondylosis was defence caused and thereby denied eligibility for pension under section 70 of the Veterans’ Entitlements Act 1986 (the Act) for that condition.
2. The applicant, Mr Douglas Leslie Carney, was represented by Mr D O’Gorman of Counsel and the respondent, by Mr M Smith, Departmental Advocate.
Issue before the Tribunal
3. The issue of consideration by the Tribunal was whether the lumbar spondylosis suffered by the applicant was defence caused, pursuant to section 70 of the Act.
Legislation
4. The relevant legislation in this matter is contained in sections 70, 120B and 120 sub-section 4 of the Act. Section 70 provides as follows:
“70 Eligibility for pension under this Part
(1) Where:
(a)…
(b)a member of the Forces or member of a Peacekeeping Force has become incapacitated from a defence-caused injury or a defence-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c) …
(d) in the case of the incapacity of the member—pension by way of compensation to the member;
in accordance with this Act.
5. The applicant claims he satisfies the requirements of section 70(5) of the Act as being an injury which is a “defence caused injury”. He has rendered eligible defence service in accordance with section 68(1) of the Act as he satisfies the definition of “defence service” in that he rendered continuous full time service as a member of the defence force on and after 7 December 1972.
6. As Mr Carney lodged his claim with the respondent after 1 June 1994, the Tribunal is required to apply section 120B of the Act and consider his claim in the light of any applicable Statements of Principles (SoPs) as issued by the Repatriation Medical Authority. Section 120B is as follows:
“120B Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
(1) This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;
(b)a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.
Note 1: Subsection 120(4) is relevant to these claims.
Note 2: For hazardous service and member of the Forces see subsection 5Q(1A).
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(3) in respect of that kind of injury, disease or death; or
(b) has declared that it does not propose to make such a Statement of Principles.
(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12); or
(ii)a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
…”
7. Mr Carney has eligible defence service as he enlisted in the Royal Australian Air Force on 6 November 1967 and was discharged on 14 January 1988. His eligible defence service is therefore from 7 December 1972 to 14 January 1988. The standard of proof applicable was that of the Tribunal’s reasonable satisfaction pursuant to section 120(4) of the Act.
“120 Standard of proof
…
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
…”
8. The Tribunal noted that the standard of proof is also affected by the relevant SoP No 47 of 2002 concerning lumbar spondylosis. It is also noted that the Repatriation Commission’s decision of 2 November 2001 was decided under Instrument No 28 of 1999, at the time of the Veterans’ Review Board decision of 5 July 2004, that that Instrument had been revoked by Instrument No 47 of 2002 and the applicant’s claim was considered in the light of that later SoP. The applicant and respondent both acknowledged the relevant SoP is Instrument No 47 of 2002. I also note that that Instrument has been amended by Instrument No 78 of 2002, however those amendments were not extensive and are not relevant for the issues arising in this case.
9. In that SoP, lumbar spondylosis is defined as:
“… degenerative changes affecting the lumbar vertebrae or intervertebral discs, causing local pain and stiffness or symptoms and signs of lumbar cord, cauda equina or lumbosacral nerve root compression,…”
10. The minimum factors required to relate the applicant’s lumbar spondylosis with his eligible defence service are outlined in Factor 5 of that SoP. In Mr Carney’s case, Factor 5(g) is the only relevant factor and is as follows:
“Factor 5.
(g) suffering a trauma to the lumbar spine within the 25 years immediately before the clinical onset of lumbar spondylosis; or
…”
11. Relevant to Factor 5(g) is the definition of “trauma to the lumbar spine”, which is defined in paragraph 8 of the SoP as follows:
“trauma to the lumbar spine. means a discrete injury to the lumbar spine that causes the development, within 24 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 10 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.”
Evidence Before the Tribunal
12. The Tribunal had before it documents lodged pursuant to the Administrative Appeals Tribunal Act 1975 and/or were tendered during the hearing as follows:
§ Exhibit 1 T documents
§ Exhibit 2 Statement by the applicant dated 21 October 2004
§ Exhibit 3 “Continuation sheet” dated 12 January 2005
§ Exhibit 4 Document of Dr Grant dated 2 December 2004
13. Oral evidence was given by the applicant, Mr Douglas Leslie Carney, his wife Dianne Lesley Carney, and Dr Peter Andrew Grant, physician.
Background and Service History
14. Mr Carney was born on 25 January 1947. He is now 58 years of age. He enlisted in the Royal Australian Air Force (RAAF) on 6 November 1967 and served continuously until 14 January 1988.
Evidence of the Applicant Mr Douglas Leslie Carney
15. The applicant’s evidence was contained in Folios 61 to 64 and Folios 54 to 55 of the T documents. In addition there was a statement of the applicant dated 21 October 2004 (Exhibit 2) which dealt with his evidence. Essentially, the facts portrayed by the applicant were that on 5 October 1976, on Exercise Kangaroo 2, he was helping to lift a heavy generator when he felt pain in his back. He stated that the next day, 6 October 1976, he was required to fly to Mt Carroll and when unloading the same generator from the helicopter, he felt his back injury was aggravated again. He said that while unloading the generator the helicopter was hovering due to high winds and rough terrain in the exercise area.
16. His superiors determined that he needed to be evacuated from the Exercise area and taken to hospital. He sustained a third injury to his back whilst trying to pull himself inside the helicopter. This involved significant loss of mobility whilst enduring pain from his back. In that incident, the applicant stated that the helicopter lurched sideways and he fell heavily on his buttocks and also struck the mid-section of his back on the metal framing of the passenger’s seat of the helicopter. He then spent four to five days in an Army hospital on his back and he stated in evidence that he was given injections and medication, although he was not able to be specific about these. On discharge from hospital, the record showed that the medical officer authorised him to be returned to his Unit to perform light duties. The applicant, under cross-examination, stated that he was not returned to his Unit as his temporary commanding officer felt he would be of no use in the field in that condition. He was instead returned to Richmond RAAF Base.
17. Whilst in the RAAF, the applicant stated that he was concerned that he might be medically discharged from the RAAF if he complained too much about his back injury. Consequently, he attended civilian doctors extensively for treatment to his back. He indicated that he had never previously had a trauma to his back prior to October 1976 and that he has had no similar injuries since. However, the deterioration of the condition he claims has resulted in his loss of employment with McDermott Aviation recently.
18. Under cross-examination the applicant noted that in the medical records it is shown that he was given medication but there was no record of pain killing injections. The sequence of events were noted which were outlined in Exhibit 3 and showed that whilst the injury was initiated on 5 October 1976 and that he was hospitalised on 6 October, the record shows that on 7 October that he was “better – no diarrhoea”; on 8 October the medical record shows “no pain to get up this afternoon”; on 9 October “OK for discharge tomorrow” and on 10 October he was “discharged to Unit for light duties”. The injury report which he completed was certified by a medical officer on 11 October (the day after discharge) and noted that the probable period of incapacity was four days. It also showed that the medical officer thought the injury was consistent with the applicant’s statement; that it was not likely to cause permanent ill effects; and the injury was not likely to impair the member’s future efficiency in the service. It was also noted that the injury was of a “minor nature”. In oral evidence, the applicant stated that he was to go back to work on 18 October, but when he indicated to his superior officer his situation was that he would need light duties if he was to return to work, he was then told that there would be no value in his being at work on light duties as there was no task he could be given until his Unit returned about two weeks later. In cross-examination, it was noted that the extra week off from 18 October was not noted formally on his medical records (or any other official record) which was available to the Tribunal.
Evidence of Mrs Dianne Lesley Carney
19. Mrs Carney provided evidence consistent with her statutory declaration (Folio 69 and 70 of the T documents). Mrs Carney described Mr Carney being returning to Richmond RAAF Base following his back injury on 12 October 1976 and said that he was sent home for another five to six days sick leave. Her evidence was essentially confirmation of the on-going chronic pain that he had suffered ever since that injury to his back. She also confirmed that he went to civilian doctors for treatment throughout his service in the RAAF and subsequently as he was concerned about going to the RAAF medical staff for fear that he might be discharged on medical grounds. She stated that he had been treated by civilian doctors and had been ordered to undertake physiotherapy, to take pain killers, anti-inflammatory drugs, together with heat pads and bed rest.
20. Mrs Carney was not cross-examined.
Evidence of Dr Peter Andrew Grant
21. Dr Grant had provided a document dated 2 December 2004 (Exhibit 4). While the applicant’s Counsel objected to part of that document being admitted, Dr Grant was available to provide oral evidence and to be cross-examined. He clarified the wording in the definition in the SoP of “trauma” and in particular differentiated the meaning of “sign” and “symptom”. He stated that “symptom” was information provided by the patient while a “sign” is something to be observed objectively by the examining doctor.
22. He also amplified the extent of “immobilisation” by splinting as referred to in the definition “trauma to the lumbar spine”. In relation to the injection of local anaesthetics as mentioned in the definition and as put into evidence by the applicant, Dr Grant stated that he could find no record of any injections given and thought that any narcotic drug would be unlikely to be administered without being recorded. He also thought that the drug Lomotil, which was prescribed for Mr Carney to stop acute or chronic diarrhoea, would not be issued by injection.
23. In relation to “immobilisation of the lumbar spine by splinting or other similar agent”, Dr Grant described treatments ranging from commercial pain killers such as codeine; to another level which provides a semi rigid format wrapped around the body; and lastly, to apply a cast which might extend as far down the trunk and as far as possible up under the arms to be effective. He said “splinting” merely means applying something to reduce movement, such as his description of graded treatments of splinting. In considering whether the applicant’s lying on boards which were placed under his mattress is similar to splinting Dr Grant said that one way of immobilising the spine is to lie down but that a 24 hour period would not really be immobilising the spine.
24. In assessing Dr Grant’s opinion as to whether the applicant had this injury for at least ten days as required by the admission, he stated that his opinion was based on his interpretation of the RAAF medical records. Based on the medical officer’s certification on 11 October 1976, he thought that it was not a “major injury”.
25. In further questioning by the Tribunal about whether the pain could have extended for some time after that shown on the record, Dr Grant indicated that back conditions can be aggravated by small movements such as sneezing. He indicated that “…it doesn’t take a lot to set off a degenerate or an already damaged disc”. Dr Grant stated that this is not necessarily a condition of old age and that many of these degenerative cases are hard to detect. If a person is overweight for example, this would cause further pressure on the injured area and increase the risk of damage or be likely to extend the damage or tears to the disc. His evidence was also that these type of injuries do not just cause incapacity overnight.
Other Medical Evidence
26. The report by Dr AJ Splatt (Folio 10) recommended a CT scan to clarify the area of the injury. This was performed on 18 March 1999 and the report of the radiologist Dr Earwaker states, inter alia: “the appearance of the lumbar spine film are a normal variant”. There was a further report by Dr DA Lisle (Folio 12) of 15 November 1999 about the bone density of the lumbar spine and said that this shows a mean bone density of 1.60 standard deviations below the mean for age matched controls. In other words his bone density would be less than the average for those of similar age. Dr Lisle also concluded that “fracture risk in the lumbar spine is not significantly increased”.
27. By 14 September 2001 he was again examined by Dr John Pryor. He noted pain and paresthesia if standing or sitting for greater than 30 minutes. He also reported 25% loss of thoracolumbar spinal movement. He also noted the L5 disc appeared deficient and said that his symptoms were solely due to lumbar spondylosis.
Submissions
28. The respondent submitted that the definition of trauma requires three criteria to be satisfied – “symptoms” of pain and tenderness; “signs” of pain and tenderness; and altered mobility or range of movement. In relation to immobilisation by splinting or similar external agent, it was submitted that “similar” implies something which has a like effect – or immobilises as an effect. The respondent submitted that boards give support to the back but would not immobilise in the sense of a splint, which is designed to ensure that you cannot move very well at all.
29. The respondent acknowledged that the applicant was off duty for 12 days but said it does not follow that he had signs and symptoms of pain and tenderness and loss of mobility or range of movement for the whole 12 days. He argued that it means that the applicant has got at least a symptom of some of those for some of that time and it means he would not be able to do his duty without pain. He also submitted that the narcotic injections are unlikely to have occurred as they are not recorded on his medical records.
30. The applicant’s Counsel submitted that the requirement for pain and tenderness for 10 days has been met. He argued that he had it on 6 October when he was admitted to hospital and still had it on 18 October when he went back to work and that he was then sent on a further week’s leave. In relation to altered mobility or range of movement, Counsel argued that this could be inferred given the length of time that he was granted sick leave from the RAAF i.e. up until 18 October 1976 plus another week beyond that date. He also submitted that the requirement of immobilisation of the spine or an injection were both satisfied based on the evidence. In relation to the injection, he submitted that it was not like going to a general practitioner but rather, that he went to a defence force hospital. He argued that no inference can be drawn by the fact that no reference is made in the material of an injection being administered. However, it was submitted on behalf of the applicant that he was immobilised by virtue of a board being placed under the mattress while he was hospitalised. He argued the definition does not require the immobilisation to be for 24 hours or 48 hours, it just required immobilisation. Also, in relation to the term “similar external agent” he argued this must be read with the whole of the definition. The word “splint” gives some guidance but a splint immobilises part of the body in the same way as bed rest. In other words that a board under the bed immobilised the lumbar spine.
Findings of Fact
31. The Tribunal finds that:
(a)The applicant and his wife were credible witnesses and the evidence of Mr Carney and his wife are accepted, subject to the findings below;
(b)The evidence of the report of 11 October 1976 by the medical officer are prospective only and are not taken as assessments of likely consequences over the following twenty-five years, where factual evidence to the contrary exists;
(c)Dr Grant’s evidence of the likely damage to a back injury, particularly about the likelihood of aggravating an already damaged disc, tends to corroborate in part Mr Carney’s claim;
(d)It is not accepted that the applicant received injections of narcotics for back pain as the evidence does not support this contention on the balance of probabilities;
(e)It is accepted that the applicant had symptoms and signs of pain and tenderness, and altered mobility for the period from 5 October 1976 until 18 October 1976 (a period of in excess of 10 days);
(f)Based on the expert medical evidence and the diagnosis in 2001, it is accepted that clinical onset of lumbar spondylosis had occurred at least by that date, which was within the period of 25 years from the date of the original injury.
Consideration
32. The Tribunal has reached a decision in this matter by taking into account the oral and documentary evidence, the legislation and case law.
33. Mr Carney’s condition, which he asserts is due to eligible defence service pursuant to section 70 of the Act is lumbar spondylosis. The Tribunal notes that there has been no dispute that Mr Carney presently has this condition. In relation to the issue of diagnosis, the Tribunal is reasonably satisfied that Mr Carney has lumbar spondylosis and notes the medical opinions of Dr Lisle and Dr Pryor in this regard. The Tribunal has also noted the meaning of “clinical onset” in Re Robertson and Repatriation Commission (1998) 50 ALD 668which found clinical onset to be when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time. From the evidence before the Tribunal, the diagnosis of Dr John Pryor points to the date of clinical onset and that that date is within the 25 year period specified in the SoP.
34. The Tribunal must next determine whether Mr Carney’s condition of lumbar spondylosis satisfies the standard of proof required to demonstrate that this condition was defence caused. The Tribunal must make this determination to the Tribunal’s reasonable satisfaction under section 120(4) of the Act. Moreover, to be reasonably satisfied that Mr Carney’s lumbar spondylosis was defence caused, the Tribunal must find pursuant to section 120B of the Act that if there is a Statement of Principle in relation to this condition, it must be determined in line with that SoP whether or not on the balance of probabilities, there is a connection between Mr Carney’s lumbar spondylosis and his defence service.
35. The Tribunal notes the relevant Statement of Principle concerning lumbar spondylosis is Instrument 47 of 2002. The relevant Factor in that Statement of Principle is Factor 5(g) which requires:
“(g)Suffering a trauma to the lumbar spine within the 25 years immediately before the clinical onset of lumbar spondylosis;”
36. In order to satisfy this factor, the definition of “trauma to the lumbar spine” in the SoP must be satisfied, which states:
“‘trauma to the lumbar spine’ means a discrete injury to the lumbar spine that causes the development, within 24 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, 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.”
37. The Tribunal notes in relation to this incident the absence of some medical records which would support Mr Carney’s evidence. Having accepted that there was, on the balance of probabilities, an incident or trauma as described by Mr Carney, the Tribunal must examine whether this incident fits within the SoP and specifically whether it meets Factor 5(g). In relation to the issue of the definition of “trauma to the lumbar spine” in the SoP, this definition has been given consideration by the Federal Court in relation to the words “acute symptoms and signs of pain and tenderness, and either altered mobility or range of movement”. In the Federal Court decision of Harris v Repatriation Commission (2000) 62 ALD 174, Finn J held that the phrase “acute symptoms and signs” applied to the three elements of pain, tenderness and altered mobility or range of movement. His Honour also noted that “signs and symptoms” requires “an indication of or phenomenon evidencing” each of the three elements. His Honour also determined that the definition taken as a whole “contemplates a significant injury”.
38. The Full Federal Court upheld the interpretation of Finn J in Harris (Supra). The Full Court also confirmed that the expression “acute signs and symptoms” is closely related to the concept of “altered mobility or range of movement”. In Arnott v Repatriation Commission (2001) 106 FCR 83 the Full Federal Court said “acute” pain was not necessarily the same as “severe” although there would be difficulty quite often in differentiating between those two terms. (See also Mason v Repatriation Commission [2000] FCA 1409 and Knight v Repatriation Commission [2002] FCA 103).
39. The Tribunal has accepted Mr Carney’s evidence in relation to the incident. Taking account of that evidence and the authorities, the Tribunal finds that Mr Carney satisfies the definition of “trauma to the lumbar spine”, on the balance of probabilities. It is noted that he consulted with medical advisers immediately after the incidents raised and also has consulted with civilian medical practitioners or specialists, both during his service in the RAAF and since his discharge. The Tribunal finds that there is consistency in the evidence asserted by Mr Carney that he suffered acute “symptoms” and “signs” of pain and tenderness, and suffered altered mobility (and possibly range of movement), as compared to his ordinary level of activity. He did elaborate on the extent of his injuries to his superiors when he returned to work.
40. The Tribunal noted that there were some deficiencies in the evidence of the medical records of the applicant in comparison to his evidence, however, section 119 of the Act requires the Tribunal to take account of the passing time and deficiencies in records, although this does not allow the Tribunal to invent evidence or to fill gaps in evidence (Mason (Supra)). The Tribunal also considered the recent medical evidence relevant in determining this matter.
41. The Tribunal considers that the evidence demonstrated that there were symptoms and signs of pain and tenderness within 24 hours and at least with altered mobility. It is satisfied that this situation existed from the time of the injury in the field on 5 October 1976, through the period of hospitalisation for 4 or 5 days and until he was returned to Richmond Air Force Base on 12 October 1976. He then did not return to work on light duties as authorised by the medical officer but was sent home for another week beyond 12 October. I therefore accept that he had signs and symptoms for at least 7 days, possibly longer.
42. However, as determined earlier, the Tribunal is not satisfied that there is evidence to justify on the balance of probabilities, that the applicant received an injection into the lumbar spine. Consequently, sub-paragraph (b) of the definition is not satisfied. There is no evidence that sub-paragraph (c) is satisfied either.
43. But in relation to sub-paragraph (a) of the definition, i.e. immobilisation of the lumbar spine by splinting or external agent, the Tribunal is satisfied that boards placed under the mattress at the time of his hospitalisation is sufficient to satisfy the term “similar external agent”. Dr Grant, in evidence, stated that “splinting” is applying something to reduce movement although a 24 hour period would not be sufficient. The fact that bed rest was ordered and there is no evidence to contradict the applicant’s evidence that that occurred, together with boards being placed under the mattress has the effect of applying something to reduce the movement. The Tribunal accepts that this was not for a mere 24 hour period but continued for about the 7 day period from evacuation from the exercise area and through the period of hospitalisation and return to Richmond. Therefore paragraph (a) of the definition is deemed to be satisfied.
44. While the evidence is such that the Tribunal is satisfied that the definition “trauma to the lumbar spine” is met, the Tribunal also notes that the requirement to have symptoms and signs for a period of at least 10 days is a requirement “save for where medical intervention” occurs as outlined in sub-paragraphs (a) or (b) or (c) of the definition. In other words it could be argued that the fact that sub-paragraph (a) is satisfied, then it is not strictly a requirement that the symptoms and signs be in existence for 10 days. Nevertheless, the fact that it has been accepted that the symptoms were there for at least 10 days, that issue need not be pursued. On either interpretation of whether the 10 day period must be met if either (a) or (b) or (c) is satisfied, the applicant must succeed as he satisfies both the requirement for the 10 day period and also had a prescribed treatment (a similar external agent) which satisfies sub-paragraph (a).
45. In all the circumstances and for the reasons expressed above, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal decides that Mr Carney’s condition of lumbar spondylosis is defence caused and accordingly the decision under review is set aside with a date of effect of 3 June 2001.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, Member
Signed: Camille Banks
AssociateDate/s of Hearing 3 February 2005
Date of Decision 1 April 2005
For the Applicant Mr D O'Gorman of Counsel
For the Applicant Len Marks Legal Practice, Solicitors
For the Respondent Mr M Smith, Departmental Advocate
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