Corbin and Repatriation Commission

[2000] AATA 1143

DECISION AND REASONS FOR DECISION [2000] AATA 1143

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V99/1382

VETERANS'  APPEALS  DIVISION     )          
           Re      Clarence William Corbin            
  Applicant
           And    Repatriation Commission          
  Respondent

DECISION

Tribunal       Miss E.A. Shanahan, Member      

Date22 December 2000

PlaceMelbourne

Decision      The Tribunal affirms the decision under review. The applicant's cervical and lumbar spondylosis were not war-caused within the meaning of that term in s. 8 of the Veterans' Entitlements Act 1986.    
  ..(sgd. Miss E.A. Shanahan)..
  Member
CATCHWORDS
VETERANS' AFFAIRS – whether the development of cervical and lumbar spondylosis was war-caused within the meaning of s. 8 of the Veterans' Entitlements Act 1986 – standard of proof – on the balance of probabilities – application of Statements of Principles Instrument No. 57 of 1998 regarding cervical spondylosis and Instrument No. 53 of 1998 regarding lumbar spondylosis – decision affirmed.
Veterans' Entitlements Act 1986 ss. 8, 120(1), 120(3), 120(4), 120A, 120B
Repatriation Commission v Keeley (2000) FCA 532

REASONS FOR DECISION

Miss E.A. Shanahan, Member      

1. This is an application for review of a decision of a delegate of the Repatriation Commission dated 16 September 1998 wherein the delegate found that the claim for cervical spondylosis and lumbar spondylosis could not be connected to service as the relevant Statements of Principles ("SoPs") were not satisfied.  This decision was confirmed by the Veterans' Review Board ("the VRB") on 28 September 1999.  Before the VRB hearing, the applicant had claimed that his cervical and lumbar spondylosis had resulted from repeated minor trauma during the years of his war service with the Australian Army.  Throughout that period the applicant had served within Australia and therefore rendered eligible service but not operational service.

2. The applicant was represented by Mr D. De Marchi and the Repatriation Commission by Mr K. Rudge an advocate with the Department of Veterans' Affairs. The Tribunal had before it the s. 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and at the beginning of the hearing both parties tendered further documentation.  The applicant submitted a trauma statement regarding a single incident of trauma during his war service (Exh. A1), a lifestyle questionnaire completed by the applicant (Exh. A2) and a medical report from Associate Professor Stephen Hall dated 28 February 2000 (Exh. A3).  The respondent provided the applicant's service medical documentation (Exh. R1), clinical notes of Dr H. Kouzmin, the applicant's treating general practitioner (Exh. R2), a GARP report dated 22 May 2000 completed by Dr H. Kouzmin (Exh. R3), an audiogram and report of this audiogram dated 27 April 2000 by Chris Logan of Prescription Hearings (Exh. R4) and a combined impairment assessment dated 5 July 2000 completed by Dr F. J. Morgan (Exh. R5).  The veteran gave evidence before the Tribunal as did his son Mark William Corban.
   Background To The Application

3. The veteran was born on 23 December 1923 and served in the Royal Australian Army from 24 April 1942 until 19 November 1946.  His service was within Australia and constitutes eligible service.  Sub-section 120(4) of the Act, as affected by s. 120B, applies in respect of this period of service.  The Tribunal must be satisfied on the balance of probabilities that the claimed disabilities were war-caused.  As the claim was lodged after 1 June 1994 s. 120B is attracted and the relevant SoPs issued by the Repatriation Medical Authority must be satisfied.  In the hearing before the VRB the applicant had claimed his cervical and lumbar spondylosis to be due to repeated minor trauma.  Before this Tribunal he contended that these disabilities had resulted from a single episode of trauma which occurred at an unknown date in outback Queensland.  As a result of a motorbike accident the applicant stated that he sustained a broken arm and shoulder, ankle and elbow injuries.  In addition to this he hurt both his back and his neck.  He dated the onset of pain in the back and neck from this event (see Exh. A1).  Over a period of years (exact number unknown) the applicant has suffered from a deteriorating memory with periods of confusion and aggressive behaviour.  He has undergone investigation resulting in a provisional diagnosis of Alzheimer's disease although there are features that do not fit this diagnosis.  He regularly attends the Repatriation General Hospital under the care of the neurology service.
   Evidence Before The Tribunal

4. The applicant's son Mark Corbin gave evidence regarding his father's current condition with respect to his poor memory and aggressive and confused behaviour.  He stated that his father's mental performance varied from day to day.  To his knowledge his father had complained of neck and back problems since he was a child, that is, for some 30 or more years.  Mr Corbin jnr. recalled his father telling him that he worked repairing tanks during his Army service and that he had also ridden motorcycles.  Following his discharge from the Army he worked as a motor mechanic until the early 1960's when he became a tip truck driver until he retired in the mid 1980's.  Mr Corbin jnr. related several motor vehicle accidents his father had been involved in and in particular an episode where his tip truck rolled over three times and the applicant was hit on the head by the truck jack.  In response to a question by Mr Rudge, Mr Corbin jnr. stated his father had had quite a few motor vehicle accidents, the last of which was approximately four years ago when he was injured on the right side of the body.  He was of the opinion that following this accident his father's mental state deteriorated. 

5. The applicant also gave evidence.  He described an event that occurred in outback Queensland whilst in the Army and working as a dispatch rider.  He could not remember the year nor the exact place.  He stated that the motorcycle he was riding hit a rock and he was thrown from the cycle injuring the right side of his body and breaking his right arm.  He also injured his neck and his lumbar spine in this accident.  He was accompanied by another motorcycle rider who was also injured.  He thought he was taken to hospital in Queensland for a few days and then transferred back to Melbourne where his right arm was put in plaster.  He was unable to remember how long he was on sick leave.  Following these events he had been bothered by left shoulder pain, back pain in the lumbar region on the left and to a lesser degree, by pain in the right shoulder.  He also had noted pain in the neck.  He agreed that he had difficulty with his memory for the past four to five years.  When questioned by Mr De Marchi regarding his lifestyle, the applicant stated he had to depend on other people to assist him in day to day activities, the pain he suffers made him irritable and social life was limited.  He takes analgesics as prescribed and admitted to problems in bending over.  He was asked if he had sciatic pain and in reply stated his pain goes to the back of his knee.  He no longer drives a car and does not use public transport by choice.  He would prefer to use taxis.  He continues to be able to work on car repairs although his concentration span is limited.  He does not garden as he doesn't like it.  His son does all the heavy gardening work for his parents.  In cross examination by Mr Rudge, the applicant thought he had been initially hospitalised in Brisbane but that he had been definitively treated in Melbourne.  He stated his arm had been in plaster for four to five days.  The applicant was unable to recall an injury to his left elbow documented in his service medical record.  This injury to the left elbow had occurred while the applicant was on leave from the Army.  When asked directly if he had confused the motor bike accident timing the applicant agreed that this was possible.

6. The Tribunal had before it the applicant's detailed service medical documents.  While the injury to the left elbow whilst on leave in August of 1946 is well documented, there is no record whatsoever of any injury to the right side or any motorcycle accident whilst in the Army.  There is no documentation of admissions to hospital as claimed.  The period in November 1946 which appeared unaccounted for has subsequently been clarified.  The applicant was under arrest for seven days having been found in possession of a tool box which was the property of the Commonwealth of Australia.
   Legislation

7. The standard of proof required to link war service with the veteran's cervical and lumbar spondylosis is delineated in s. 120(4) of the Act.

   "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."

8. Section 120A of the Act is also attracted and the Tribunal must consider the claim in terms of the SoP issued by the Repatriation Medical Authority.  While there was some dissent between the parties as to which SoP's were attracted in light of the decision in Repatriation Commission v Keeley (2000) FCA 532.  The Tribunal has elected to apply Instrument No. 57 of 1998 regarding cervical spondylosis and Instrument No. 53 of 1998 regarding lumbar spondylosis.  Whether or not this is the correct interpretation is of minor importance in that all relevant SoP require, with respect to trauma to the lumbar or cervical spine, a discrete injury that results in twenty-four hours of acute symptoms and signs of pain and tenderness and either altered mobility or range of movement of the affected spine.  The acute symptoms and signs must last for a period of at least ten days following their onset.  This episode of trauma must occur within a set time before the clinical onset of the spondylosis. 

9. As there is no documented evidence of a discrete injury to either the cervical or lumbar spine suffered by the applicant in the course of his service in the Australian Army and as he himself has admitted he may have been confused about the timing of any such incident the Tribunal finds that the SoP's are not met.  There is however evidence of multiple motor vehicle accidents post discharge from the Army and injury of a degree may have resulted in the applicant's current symptoms.

10. For these reasons the decision under review is affirmed.

    I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of
    Miss E.A. Shanahan, Member

    Signed:         .....................................................................................
      Personal Assistant

    Date/s of Hearing  27 October 2000
    Date of Decision  22 December 2000
    Solicitor for Applicant               Mr D. De Marchi

    For the Respondent                 Mr K. Rudge, departmental advocate