Coates and Repatriation Commission
[2001] AATA 54
•31 January 2001
DECISION AND REASONS FOR DECISION [2001] AATA 54
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S1999/15
VETERANS' APPEALS DIVISION )
Re BRIAN CHARLES COATES
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Miss WJF Purcell
Date31 January 2001
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – disability pension - whether lumbar spondylosis and cervical spondylosis are war-caused – whether there was trauma - no reasonable hypothesis connecting the disabilities with operational service.
Veterans' Entitlements Act 1986, Sections 120 and 120A
Statements of Principles Nos 161 and 165 of 1996
REASONS FOR DECISION
31 January 2001 Miss WJF Purcell (Senior Member)
This is an application for review of a decision of a delegate of the Repatriation Commission (the Commission) dated 21 October 1997, which determined that the applicant's lumbar spondylosis and cervical spondylosis were not war-caused for the purposes of the Veterans' Entitlements Act 1986 (the Act). The decision was affirmed by the Veterans' Review Board (the VRB) on 29 September 1998.
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, (the T Documents) together with the exhibits tendered by the parties. The applicant, who gave oral evidence, was represented by Mr Williams. He called his treating psychiatrist, Dr M Atchison, and Mr R Fleiner, who served with him in the Australian Army. Mr Doube, Departmental Advocate, appeared for the Commission.
The applicant, who is 55 years of age, has rendered overseas service with the Australian Army in South Vietnam, from 16 June 1967 to 14 May 1968. He served as a fitter and turner, vehicle mechanic, with the Royal Australian Electrical Mechanical Engineers (RAEME). The standard of proof is that of reasonable hypothesis in accordance with section 120 of the Act, which as far as is relevant for the purposes of this review provides:-
"120 Standard of proof
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.(2) …
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
…
120A Reasonableness of hypothesis to be assessed 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 operational service rendered by a veteran;
(b) a claim under Part IV that relates to:(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120(1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, 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(2) 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) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.…"
The claim was lodged after 1 June 1964, and the appropriate Statement of Principles for the condition of lumbar spondylosis is Instrument No. 165 of 1996 (the Lumbar Spondylosis SoP) and that for the condition of cervical spondylosis is Instrument No. 161 of 1996 (the Cervical Spondylosis SoP). The applicant contends that in relation to the conditions of:
(1)Lumbar Spondylosis, factor 5(g) of the Lumbar Spondylosis SoP is satisfied. Factor 5(g) reads:
"suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis;"
and(2)Cervical Spondylosis, factor 5(g) of the Cervical Spondylosis SoP is satisfied. Factor 5(g) reads:
"suffering a trauma to the cervical spine before the clinical onset of cervical spondylosis."
The applicant submits that an incident which occurred in December 1967 constitutes a "trauma" to the lumbar and the cervical spine and satisfies Factor 5(g) of the respective Statements of Principle. There is a reasonable hypothesis therefore connecting the injury with the circumstances of his relevant service. The applicant maintains that as a result of his condition of Post Traumatic Stress Disorder (PTSD), he was unable to recall this incident until he attended a squadron reunion of Vietnam Veterans in Townsville in September 1997. In the course of discussions with Mr Fleiner, who he met on that occasion for the first time since his service in Vietnam, the applicant was reminded of the December 1967 injury. This brought back the memory of the incident which he had forgotten completely. The incident itself is clear in his mind now. He recalls that he was incapacitated for nearly three weeks, suffered from acute pain, tenderness and altered mobility or range of movement, and the injury is a "trauma", therefore, for the purposes of the respective Statements of Principle.
The Commission argues that the applicant did not injure his back in the manner he has described. If the incident occurred, as described in evidence, and the applicant did injure his back, then the injury was to the thoracic spine. This account is a recent invention designed to fit the respective Statements of Principle once the applicant was aware that heavy manual work did not satisfy the Statements of Principle. His evidence now is inconsistent with contemporaneous medical records; with his own statement at the time of his original claim, and with the history he outlined to Mr Byrne, General Surgeon, in July 1997.
The applicant's accepted disability is PTSD, with effect from 13 June 1995. He lodged a claim for acceptance of "lumbo-sacral/cervical" disability on 5 August 1997. He provided a report from Mr Byrne, dated 8 July 1997, which reads in part :
"On talking with Mr Coates, he informed me that the scale of equipment and mechanical aids to assist him as a vehicle mechanic in the RAEME Det at 1 Fd Sqn at Nui Dat was minimal. As stated already, he had to manually lift with one person assisting engine blocks out of vehicles plus also differential gear boxes etc. mainly with landrovers and international Mark 3, 4 and 5 trucks – 3-5 tons. At times he would work over night under a canvas tarpaulin to shelter from the monsoon rain.
He noticed when doing this the onset of low back pain and has stated he would take oral analgesic tablets up to the level of Panadeine Forte. He did not report to any Regimental Medical Officer (he has an aversion to Medical Practitioners) and little documentation of his problems appeared in writing.
On two or three occasions during the nine months at Nui Dat, he couldn't continue because of the low back pain and also some discomfort in his neck. On those occasions he was ordered by his officer commanding the squadron to rest for 2-3 days down at Vung Tau.
On the odd occasion, he was required to work for up to 3-4 days and nights continuously and at the end of that time, because of exhaustion he was forced to rest.
On specific questioning, no x-rays were taken of his low back in Vietnam."(T3/29)
The applicant lodged also, a Statutory Declaration of his fellow serviceman, Mr Fleiner, dated 25 July 1997, which reads:
"I, Robert J Fleiner of 6 Hayworth Street POINT VERNON, HERVEY BAY, in the State of Queensland, do solemnly and sincerely declare that as 43226 WO 11 Robert J Fleiner, I served with 17 Construction Sqn. Workshops from August 1967 to August 1968, located at Vung Tua. My position in the Unit was Corporal in Charge of the "B" Vehicle section.
During this period the Workshop was required to send a forward repair team, to work out of Nui Dat in support of 1 Field Regiment Engineers. CFN.B.Coates was part of that team.The work of the Team necessitated Workshop type repairs to be carried out under Field conditions. Hence, gearboxes, engines, and differential assemblies had to be manually lifted out and in by Team members, when repairs or replacement of these assemblies were required. …"
(T3/27)
In answer to question 16 which requests details of accidents, injuries or illnesses suffered during service relating to the claim, the applicant stated :-
"Back stiffness SVN due to man-handling motors and gearboxes due to lack of hydraulic equipment in SVN during my War Service.
My records (attached) state back stiffness by the unit Doctor/Final Medical …(unreadable)
Pain was relieved by taking asprin as issued by our Unit Medic."(T3/22)
On 21 October 1997, the Commission refused the applicant's claim, and the conditions were described as "lumbar spondylosis and cervical spondylosis". In the course of his letter of advice to the applicant, the delegate stated :-
"Reasons for Refusal
I have considered the evidence that is relevant to this claim. This includes the details of service, the history of the claimed conditions and the factors in the Statements of Principles that can cause or aggravate these conditions. A list of these factors is contained in the Information Leaflet.
I wrote to you to ask for information about any injuries you may have suffered during your service. You have not replied. The service records which you have submitted state explicitly that there were no back injuries. I have therefore discounted the idea of the condition being caused by trauma. …"(T2/6)
On 9 December 1997, the applicant applied to the VRB for review of the decision on the basis that :
"The SOP's do not contain Trauma to the Spine by Veterans who LIFTED manually, motors, gearboxes from "A" & "B" vehicles in Vietnam. Without the appropriate equipment on a continuing basis and during long shifts where there was pressure by the Task Force to get everything mobile"
(T3/9)
The applicant and his representative, Mr Schar, attended the VRB Hearing on 29 September 1998, and the applicant tendered his Statement dated 28 September 1998, which reads in part as follows:
"At about halfway through my tour of duty, I had a incident where the truck gearbox fell on me, unbeknown to me, some of the bolts had been already broken but held in position by cakes of mud, in turn I felt sharp pains to my upper and lower back. I was choppered back to base where I was given time off to rest my back. It was three weeks. I believe I had more time off."
Driving or Workers comp. claims or accidents before and after Vietnam, nil.
To support my claim I have obtain (sic) medical opinion from Dr. Peter Byrne for my back injury. His assessment to my back is classed as mild.
Since Vietnam I have looked after my back so as to not to aggravate pain unnecessarily. Only recently while on a PTSD course that my back was aggravated while being assessed at RGH. They forgot to examine me."(T3/39)
On 29 September 1998, the VRB affirmed the Commission decision, and in the course of its Reasons for Decision stated:-
"Mr Schar drew the Board's attention to Exhibit 1 where the veteran had given an account of an incident where a truck gearbox fell on him. Unknown to the veteran, some of the bolts had already been broken but were held in position by cakes of mud. The veteran stated that he felt sharp pains to his upper and lower back. He was taken back to base by helicopter where he was given time off to rest his back. He had three weeks off.
The veteran said that he had a very good commanding officer who rewarded hard work with time off and, when he said he was injured, the officer gave him significant time off.
The Board asked the veteran about entries in his service documents where it was recorded, at folios 7 and 8 that he experienced stiffness of his back for three weeks but there was "no history of injury" and "no apparent cause". The veteran could not explain how those entries had been made.
The Board also asked the veteran why, in his claim, he had indicated as the cause of his injury working with unsatisfactory equipment and lifting heavy components by hand. He had not there mentioned any accident. The veteran said that he had forgotten the incident and believed his post traumatic stress disorder was the reason that he may well have forgotten it.
The Board further enquired why, when speaking to Dr P Byrne, whose report appears at folios 8-14, he gave some detail about how his back injury had occurred but did not mention any gearbox incident. In that report, the veteran had indicated he was employed as a mechanic and was required to work in somewhat primitive conditions, lifting engine blocks, differentials, gearboxes and so on. In that report, he told Dr Byrne that at times he would be sent away on leave because of the nature of his back pain. Again, the veteran believed he must have forgotten the incident concerned.
On folio 7, there was a statement from a fellow soldier who served with the veteran in Vietnam. That statement, in the form of a Statutory Declaration, describes the nature of the work which the veteran had to carry out, manually lifting gearboxes and engine from vehicles. No mention is made of the particular incident now recalled by the veteran. …"
(T4/43)
The applicant has applied to this Tribunal for review of the Commission's decision. He gave evidence that after his arrival in Vietnam, in June 1967, he was at Vung Tau for six to eight weeks and was posted then to Nui Dat. He says that a troop carrier/supply truck, part of a convoy, broke down some time in December 1967. He was flown by helicopter to the site. The truck's wheels had seized up and the whole convoy had stopped and was waiting for the truck to be moved or repaired. The applicant got under the truck, in the mud, with the intention of disconnecting the rear tail shaft from the gearbox end. In his statement dated 3 March 2000, and tendered at the Hearing, he said in part :
"…What I was not aware of was that the bolts holding the entire gear box and transfer box housing had sheared off under the pressure and that the only thing that was holding it to the truck was the rear tail shaft.
This would not normally be the case as the housing would be bolted to the front part of the engine as well.
I was lying under the truck in mud when I disconnected the rear tail shaft.
As soon as I did so, the only bolts that were holding the transfer box to the truck had been sheared off and the entire gear box and transfer box housing fell on top of me.
As it fell towards me I rolled over and hit me in the back 'bouncing' off my back into the mud.
I would estimate that it weighed somewhere in the vicinity of 180 Kilos.
It hurt considerably at the time but in the circumstances it was necessary for me to continue working.
I got out from underneath the truck and asked the soldiers to get a rope to pull the entire gearbox and transfer box out so that the truck could be towed.
At around about this time there was some firing going on.
I am not certain whether the enemy was being engaged but there was generally concern about the situation.
While I had hurt my back, there was no opportunity for me to stop.
The entire convoy appeared to be in danger and I simply had to perform the work that was necessary to ensure that this truck could be moved and the convoy could move on – there was no opportunity for me to stop and rest. …"(Exhibit A1, pp.6-7)
In his oral testimony, the applicant said that when he released one end of the tail shaft and gear box, it swung down on him (still held at one end) and he had time to roll 90 degrees. It hit him square in the middle of the back which he described in evidence as the "T-Section". He said in evidence that he had never been fired upon until this incident, and that the incident itself was the most frightening event he endured in Vietnam. He thought at the time, that this could be the last time he would perform any job. He said that for the following two weeks he did absolutely no work; his back and neck were both stiff and sore, and he had significant bruising on the back and constant headaches. He gave evidence that the 17 Construction Squadron Workshop Officer came to Nui Dat to assess his condition and sent him back to Vung Tau, where he was to spend one week on light duties. He said that at Vung Tau it was impossible to undertake light duties because essentially there were no light duties available.
The applicant said in evidence that in August 1997, he attended the Squadron Workshops reunion in Townsville, and at that reunion he met Mr Fleiner and other servicemen, for the first time since service in Vietnam. In the course of a conversation Mr Fleiner teased him about the time he injured his back and went on light duties. This brought back the memory of the incident. This was the first time he actually recalled the incident, and having been reminded of the incident, it is very clear in his mind now. He had completely forgotten about the incident and did not mention it to Mr Byrne on any of his five visits to Mr Byrne, between April and June 1997. He said that the only explanation he has for his lack of previous memory of the incident is his accepted condition of PTSD.
The applicant called Mr Fleiner, who said that since 1995 he has been in receipt of disability pension at the special rate, due to his accepted condition of PTSD. He gave evidence that in December 1967, at Vung Tau, he was informed by the orderly room that the applicant had a back injury and would be transferred back to Vung Tau for one week on light duties. Mr Fleiner made no enquiries of the applicant or the authorities, as to the nature of the applicant's injury, nor the circumstances that led to its occurrence. He gave detailed evidence of the light duties he provided for the applicant, such as oil changes, greasing, and servicing batteries. Duties that would not have been detrimental to the applicant's condition but which the applicant denied in evidence had been made available to him.
The applicant called his treating psychiatrist, Dr Atchison, who first saw him in late 1996, and has been treating him since mid 1997. His major complaint was of persistently depressed mood and hopelessness about the future. She said in evidence that after the reunion the applicant was depressed, he was drinking heavily and was hospitalized for three months at the Repatriation General Hospital's psychiatric ward, from September 1997. Dr Atchison gave evidence that she continues to see the applicant monthly and that the December 1967 incident is the only incident of repressed memory that she has noted whilst treating the applicant. She had seen the applicant on some fifteen to twenty occasions subsequent to September, 1997, but it was not until March 2000 that he mentioned the December 1967 incident. She said that repression of traumatic memories is a common experience in patients suffering PTSD, and that in fact one of the diagnostic criteria is that persons who have suffered a traumatic experience may be unable to recall aspects of the experience.
On the applicant's evidence he first recalled the details of the December 1967 incident when he discussed the matter with Mr Fleiner at the reunion in September 1997; this being the first occasion, he says, that he had seen Mr Fleiner in 30 years. Mr Fleiner, however, had provided to the applicant a statement in support of his claim on 25 July 1997 (one month before the reunion). He made no reference therein to the December 1967 incident. Prior to its decision in October 1997, the Commission had requested specifically that the applicant provide any history of an injury during service. The applicant said in evidence that he does not know why he did not answer the Commission's request, when by this time, the incident was fresh in his memory. He said also that he does not know why he did not mention the December 1967 incident when he applied to the VRB for review of the Commission's decision which he signed on 9 December 1997 (some three months after the reunion).
On the evidence it was not until 28 September 1998, the day before the VRB Hearing, that the applicant made any reference to the alleged December 1967 incident. An incident which he maintains was the most terrifying event that occurred during his time in Vietnam. He did not mention the incident to his treating psychiatrist, Dr Atchison, until March 2000; and then in the context of his anxiety about the proceedings before this Tribunal. Dr Atchison, in her role as the applicant's treating psychiatrist, accepts the veracity of his statements. I must be satisfied, however, that the applicant suffered "trauma" to the lumbar and the cervical spine, as defined in the respective Statements of Principles, and in the circumstances outlined in his sworn testimony.
The applicant gave lengthy oral evidence. His cross examination was searching, but fair. I found him an unimpressive witness who I consider has adapted and tailored his evidence in an attempt to bring his circumstances within the terms of the relevant Statements of Principles. In my view, his version of the alleged December 1967 incident is a recent invention and an attempt to convince the Tribunal that he suffered a "trauma" to his back, at a time which would coincide with the only entry in his Service Records of any back complaint whilst serving in Vietnam, namely 3 January 1968, where the entry reads "bruised back", and he was returned to duty. (T3/16)
Mr Fleiner was a cooperative and forthright witness. When he signed his statement of July 1997, he was convinced, as was the applicant, that the heavy lifting in unsatisfactory working conditions in Vietnam was responsible for the applicant's back problems. By the time his later Statement was prepared, 15 January 1999, the applicant was seeking to satisfy the "trauma" definition, and Mr Fleiner's Statement supported the applicant's assertion that some back injury occurred in December 1967, and he was sent back then to Vung Tau.
Mr Fleiner's evidence of the applicant's return to Vung Tau with back problems, is consistent with the applicant's own earlier assertions to the Commission, and his statements to Mr Byrne. Mr Fleiner did not seek details of the origin of the applicant's back problems at the time, and his evidence now is of little assistance in relation to the central question as to the occurrence of the alleged December 1967 incident. I have taken this into account in my assessment of the weight to be given to Mr Fleiner's testimony.
I have examined the whole of the evidence carefully and in detail and I have taken into account the parties' submissions. I am satisfied on the evidence, that the alleged December 1967 incident did not occur in the manner described by the applicant. I am satisfied on the evidence, and find as a fact, that any injury the applicant might have suffered in or about December 1997, did not occasion trauma to the lower back, or to the neck, of sufficient severity to satisfy the definitions of either "trauma to the lumbar spine" or "trauma to the cervical spine" in the appropriate Statements of Principles. In my view Factor 5(g) of the lumbar spondylosis Statement of Principles is not satisfied; nor is Factor 5(g) of the cervical spondylosis Statement of Principles satisfied.
I am satisfied beyond reasonable doubt that there is not sufficient ground for determining that the applicant's conditions of lumbar spondylosis, and cervical spondylosis were war-caused. The material before the Tribunal does not raise a reasonable hypothesis connecting these conditions with the circumstances of the particular service rendered by the applicant.
For these reasons the Tribunal affirms the decision under review.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Miss WJF Purcell.
Signed: .....................................................................................
Personal AssistantDate/s of Hearing 27 November 2000
Date of Decision 31 January 2001
Counsel for the Applicant Mr S Williams
Solicitor for the Applicant -
Counsel for the Respondent Mr G Doube
Solicitor for the Respondent Repatriation Commission
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