Collins and Repatriation Commission
[2006] AATA 364
•24 April 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 364
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2005/109
VETERANS' APPEALS DIVISION ) Re HENRY ERNEST ROY COLLINS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member L Hastwell Date24 April 2006
PlaceAdelaide
Decision The Tribunal sets aside the decision under review and finds that the applicant’s condition of cervical spondylosis is war-caused. The date of effect of the decision will be 14 January 2004.
..............................................
L HASTWELL
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – whether condition of cervical spondylosis war-caused – definition of “trauma to the cervical spine” – symptoms lasting for 7 days – whether signs and symptoms must be constant – signs and symptoms must be recurring and noticeable over 7 days – decision set aside
Veterans’ Entitlements Act 1986 ss 6, 9, 13, 120, 120A, 626F
Repatriation Commission v Deledio (1998) 83 FCR 82
Statement of Principles Instrument No 33 of 2005
REASONS FOR DECISION
24 April 2006 Senior Member L Hastwell 1. Henry Ernest Roy Collins (the applicant) served in the Royal Australian Navy (the Navy) from 29 June 1959 to 29 June 1979.
2. He had two periods of operational service aboard HMAS Melbourne (the Melbourne) from 24 March 1961 to 17 April 1961 and from 28 February 1962 to 16 March 1962.
3. The applicant is currently in receipt of a service pension at the rate of 30 percent.
4. The applicant lodged an application on 14 April 2004 for an increase in service pension and cited the conditions of neck pain (cervical spondylosis), hiatus hernia and asthma as being war or defence-caused. At the time he attributed the neck pain to playing in the prop forward position in service football. The accompanying medical report stated that the clinical onset of the condition was in 1974.
5. On 9 July 2004, the respondent (the Commission) found that none of the three conditions were related to his eligible service. A review of that decision was sought by the applicant and on 9 February 2005 the Veterans’ Review Board (the VRB) affirmed the decision. The applicant seeks a review of the Commission’s determination with respect to the findings in relation to cervical spondylosis. He asserts that this condition arises as a result of his operational service and is war-caused.
6. At the hearing of this matter a number of issues were agreed as between the parties which considerably reduced the issues to be determined by this Tribunal. The matters agreed between the parties were as follows:
·During the applicant’s operational service in 1962 he sustained a blow to his head while climbing a companionway on the Melbourne in rough weather. He hit the top of his head on the combing of a hatch while endeavouring to exit his deck at night. At the time he was suffering from seasickness.
·The applicant suffers from cervical spondylosis. That condition was first diagnosed in 2003.
·The earliest date from which benefits will be payable if the applicant is successful is 14 January 2004.
issues before the tribunal
7. The issue before the Tribunal is whether the condition of cervical spondylosis is war-caused for the purposes of the Veterans’ Entitlements Act 1986 (the VE Act).
legislative background
8. Section 9 of the VE Act provides for when an injury or disease is taken to be war-caused, and provides relevantly as follows:
“9 War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; …”
9. The expression “operational service” is defined in ss 6 to 6F of the VE Act.
10. Section 13(1) of the VE Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
11. As the applicant has performed operational service, as defined in s 6 of the VE Act, and as it is asserted that the injury that gives rise to his current condition arose in the course of operational service, then the determination of whether his asserted condition is war-caused is to be made by applying ss 120(1) and 120(3) of the VE Act. Those sections provide relevantly as follows:
“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.
…
(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.”
12. Under s 120A of the VE Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority has made a SoP in respect of a particular kind of injury or disease, the reasonableness of an hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which provides:
“(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.”
Subsection (4) of s 120A excludes the operation of subsection (3) in certain circumstances which are not relevant to the present proceedings.
hearing
13. The applicant gave evidence. There were various exhibits tendered, including the T documents and some medical evidence. Where relevant, those documents will be referred to. The Commission did not call any witnesses.
14. The applicant gave evidence that while serving on the Melbourne and during a period of operational service he climbed rapidly up a companionway at night as he wished to go to the head to be sick. He was suffering from seasickness at the time. The hatch between deck 4 and deck 3 was shut, which was customary if there was rough weather. There was a manhole cut in the hatch for access. He did not look up as he ascended and he hit the combing of the hatch with his head. The ship was sailing in heavy weather at the time.
15. He described a significant blow to the head. He said that he staggered back and felt a pain in his neck and “saw a few stars”. He remembered staggering back a couple of rungs and then easing his way through the access manhole. After being sick and regaining his composure he returned to the mess deck. He did not seek any medical attention for this incident. He said that he did not want to be seen at the sick bay because you could be put on light duties and that could flow on to stoppage of leave. He also commented that a large percentage of people waiting outside the sick bay were suffering from venereal disease and so there was in his mind a stigma attached to standing outside the sick bay.
16. In his evidence he described the after effects of the blow to his head as follows:
“… I don’t remember too much of the details, but I – just know that I had a sore neck and – and I had the pain for some – some time and I noticed – the pain might leave you, but the next day when you got out of your bunk you were back with a sore neck again. …”
17. He said that he had a sore neck and pain for some time which he recalled as being on and off for two months. The pain would go away, but he would have a sore neck again the next day. A relevant passage of the evidence with respect to the neck pain was as follows:
“So it was pain in your neck for a period of, how long after the incident?---I don’t – I don’t really remember. It would be a couple of months at least. It wasn’t continual. Sometimes you were free of pain but it usually recurred once you had got out of bed again. You know, like, you would be lying in your bunk and with the motion of the ship, you would wake up with a stiff neck.
Do you recall where in your neck that the pain was?---Yes, down the left side. I still have the same – still the same side that is affected now, yes.
Was that side of your neck tender at any point in the weeks following the incident?---No, I don’t remember that, no.
Do you recall whether your neck felt restricted and whether you were able to move it?---Yes. Like I say, when I would get up and – in the morning I would have a stiff neck, but over the period of the day it would settle down.”
18. The applicant gave evidence of the types of duties he carried out over the next few days after the incident. He did not alter his normal duties at all. He continued to carry out maintenance on radar and radio transmitters and similar instruments.
19. The applicant sustained another head injury when he was hit over the head while on shore leave in Singapore when he and some other sailors got into a fracas with a number of angry Chinese people. As a result of that incident he had stitches in his head and some concussion. He described it as being a fairly nasty incident. That incident occurred around 12 March 1962.
20. He was cross-examined further about the issue of neck pain arising out of the hatch incident. Once more he described suffering a stiff and sore neck in the mornings that loosened up during the day. It did not interfere with anything that he was doing at the time although he commented that “you knew you were carrying an injury and you just got on with it”.
21. The Tribunal noted from the applicant’s service medical records (T18), various visits to the sick bay by him during his period of service. A number of football injuries were noted including fractures, lacerations and pains.
22. The medical evidence before the Tribunal comprised two reports of Dr Byrne dated 24 November 2004 (T15/72) and 4 January 2006 (Exhibit A4). There was also a medical assessment report and a diagnostic report relating to the cervical spondylosis from Dr M R Allen (T11).
23. Dr Byrne is a General Surgeon. In his first report he outlines a history given to him by the applicant of being “stunned” when he hit his head on the hatch and that he became aware of an acute click coming from his neck with pain at the base of his neck. He confirms that he did not report to the sick bay, but put up with the pain in his neck and he would then have “acute recurrences of pain in his neck” after playing sport. In his later report of 4 January 2006 the same history is given by Dr Byrne and he states that the symptoms from the original injury lasted “perhaps two months”. In his first report of 2004 Dr Byrne expressed the view that the trauma to the cervical spine when the applicant hit his head on the hatch was linked to the clinical onset of cervical spondylosis.
24. Dr Allen from the Work Health Clinic, who was the applicant’s general practitioner, also provided a medical impairment assessment with respect to the applicant’s condition at T11/44 and a diagnostic report at T11/55. He confirmed a 30 year history of what he described as “neck ache” and he considered that the clinical onset of the condition was 1974 based on the history given to him. He attributed the injury to working in confined spaces in submarines and playing rugby union football.
25. The Tribunal also had regard to the statement of the applicant contained at Exhibit A3.
consideration
26. In this matter the Tribunal must determine whether the condition of cervical spondylosis from which it is acknowledged the applicant suffers, is war-caused. Section 9 of the VE Act has already been referred to in paragraph 8. It is common ground that the applicant undertook operational service as defined in s 626F of the VE Act and that an incident occurred during operational service when he hit his head on a manhole hatch cover. The sole issue for the Tribunal to determine is whether that incident has given rise to his cervical spondylosis such that it is war-caused.
27. The relevant legislation is contained at paragraphs 11 and 12 (supra).
28. The claimed condition of cervical spondylosis is the subject of Statements of Principles (SoP). The relevant SoP in this case is Instrument No 33 of 2005. The applicant relies on factor 6(g) which provides as follows:
“6. The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting cervical spondylosis or death from cervical spondylosis with the circumstances of a person’s relevant service is:
…
(g) having a trauma to the cervical spine before the clinical onset of cervical spondylosis;”
29. The SoP goes on to define “trauma to the cervical spine” in the following terms:
“… a discrete injury, including G force-induced injury, to the cervical spine that causes the development, within twenty-four hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the cervical spine. These symptoms and signs must last for a period of at least seven days following their onset; …”
30. I refer to the test prescribed by s 120A(3) of the VE Act, as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 in the following way:
“1 The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2 If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3 If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
4 The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
31. I have considered all of the material before me, and I am satisfied that the material points to a hypothesis connecting the condition of cervical spondylosis with the applicant’s operational service. That hypothesis is that the applicant sustained a trauma to the cervical spine during a period of operational service and that led to the development of cervical spondylosis.
32. There is a SoP in force in this case and the relevant sections upon which the applicant relies are contained at paragraphs 28 and 29 (supra).
33. Whether there is a reasonable hypothesis must be assessed by reference to the template in the relevant SoP and that SoP must uphold the hypothesis before it can be regarded as reasonable.
34. The Tribunal is not entitled to make any findings of fact when considering the third step of the Deledio (supra) test.
35. It is common ground that the applicant struck his head on a manhole hatch and it is common ground that he has developed cervical spondylosis. He has given evidence of pain and stiffness and restricted movement in his neck for some two months after the incident. In the circumstances, the material raises a hypothesis consistent with factor 6(g) of the relevant SoP. The hypothesis is reasonable within the terms of the third step in Deledio.
36. I now turn to the fourth step in Deledio. This involves making findings of fact from the material before me, bearing in mind the provisions of s 120(1) of the VE Act to the effect that the claim will succeed unless I am satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the incapacity in question was war-caused.
37. The applicant was a straightforward witness who endeavoured to honestly answer the questions that were put to him. He described a significant blow to his head when he hit the manhole and he described immediately experiencing dizziness and by the next morning he had pain and stiffness in his neck. He described that pain to Dr Byrne. He gave a good account of it in his evidence.
38. In his medical discharge examination (T18/172) it is reported that he suffered pain between his shoulder blades and it refers to this pain as having “developed after going up ladder with the hatch shut”. When pressed during cross-examination he could not be sure as to whether he had had continual pain for seven days after the injury. Nevertheless he described ongoing symptoms in one form or another for at leat two months with a history of recurrences over the ensuing years.
39. The Commission focussed on whether the applicant had suffered continual pain in his neck for seven days after the blow to the head. The Tribunal notes that the definition of trauma to the cervical spine in the SoP states that “symptoms and signs must last for a period of at least seven days following their onset”.
40. The Tribunal finds as a matter of fact that after the blow to the top of his head the applicant suffered symptoms and pain and stiffness in his neck for more than seven days. There may have been minor remissions in the ensuing days, but the injury continued to give him problems and pain on a daily basis. The symptoms of a sore neck and pain in the neck were ongoing for up to two months after the incident.
41. There is nothing in the definition of trauma to the cervical spine as contained in the SoP that connotes a requirement that the symptoms and pain from the injury must be for every minute of the day, 24 hours a day for seven days after the incident that caused the injury. In the Tribunal’s view all that is required is that over a period of seven days after the injury symptoms are recurring and noticeable to the applicant.
42. The Tribunal is satisfied that the applicant sustained a blow to his head when his head hit the combing of the hatch. That blow to his head resulted in him suffering from ongoing symptoms of pain, restriction of movement and soreness in his neck for seven days afterwards. The applicant now suffers from cervical spondylosis.
43. The Tribunal is satisfied that factor 6(g) of the relevant SoP is satisfied in this case. The claim must succeed as the Tribunal cannot be satisfied beyond reasonable doubt that the injury was not war-caused.
44. The Tribunal sets aside the decision under review and finds that the applicant’s condition of cervical spondylosis is war-caused. The date of effect of the decision will be 14 January 2004.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell
Signed: ............J Coulthard............................................
AssociateDates of Hearing 24 January 2006 & 21 February 2006
Date of Decision 24 April 2006
Counsel for the Applicant Mr S Ower
Solicitor for the Applicant Tindall Gask Bentley
Counsel for the Respondent Mr A Crowe
Solicitor for the Respondent DVA
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