Cox and Repatriation Commission

[2008] AATA 642

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 642

ADMINISTRATIVE APPEALS TRIBUNAL      )

) No Q200600909

VETERANS’ APPEALS DIVISION		)
Re		GRAHAME COX

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe and Dr G J Maynard, Brigadier (Rtd), Member

Date23 July 2008

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

.......................[Sgd].......................

Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ Entitlements – Pension – War-caused injury – Whether veteran’s lumbar spondylosis war-caused – Consideration of loads carried or lifted by the veteran – Veteran’s lumbar spondylosis not war-caused – Decision affirmed

Veterans’ Entitlements Act 1986 (Cth), ss 13, 120

Deledio v Repatriation Commission [1998] FCA 391; (1998) 83 FCR 82

East v Repatriation Commission [1987] FCA 242; (1987) 16 FCR 517

Bull v Repatriation Commission [2001] FCA 1832; (2002) 66 ALD 271

REASONS FOR DECISION

23 July 2008 Senior Member Bernard J McCabe and Dr G J Maynard, Brigadier (Rtd), Member    

1. Mr Grahame Cox, the applicant, suffers from lumbar spondylosis. He says he developed the condition as a result of his war service in Malaya and Borneo in 1961-1963. He has sought compensation under s 13 of the Veterans’ Entitlements Act 1986 (“the Act”). The Repatriation Commission says there is no connection between the applicant’s condition and the circumstances of his war service. Mr Cox has asked the Tribunal to reconsider the claim.

2.      Mr Cox argues his back condition may have its genesis in a trauma to his lumbar spine which he sustained when he fell from the back of a truck while working in the jungle. Alternatively, he says the condition might have resulted from the heavy lifting which he was required to perform in the course of his work in an engineering squadron. In either case, he says, the condition is compensable.

3.      We disagree. For reasons we will explain, we do not accept that the applicant is able to establish a causal link between the circumstances of his service and his current back condition. We have therefore decided to affirm the decision under review.

The background facts

4.      Mr Cox rendered operational service in Malaya and Borneo between 12 October 1961 and 27 May 1963 as a field engineer with 4 Troop, Royal Australian Engineers. His unit worked closely with units in the British Army. The unit undertook a variety of construction and engineering tasks, including road and bridge building and the erection of helicopter landing platforms in remote areas of the jungle. The unit was also occasionally required to undertake patrols through the jungle. These patrols might last for as long as three weeks.

5.      The applicant fell or was thrown from the back of a water truck on a construction site in December 1961. He was knocked unconscious and taken to hospital. A short time later, he developed a condition that the medical evidence suggests was probably scrub typhus. He complained of lower-back pain and other symptoms during the course of his treatment. He remained under care for some time before he returned to his unit. He became a pay clerk and worked more or less full-time in the pay office for the remainder of his time in Malaya, although he was occasionally deployed with his unit to undertake construction tasks and perhaps patrols. He says that work required him to lift and carry very heavy loads which damaged his back.

6.      The parties agree the applicant currently suffers from lumbar spondylosis. We accept that diagnosis was properly made. The only question for us to resolve is that of causation.

The legislation

7. Section 13 of the Act says a veteran is entitled to a pension where he or she has become incapacitated as a result of a war-caused injury. One determines whether a causal link exists between the war-caused injury and the circumstances of services having regard to the standard of proof in ss 120(1) and 120(3).

8.      The operation of s 120 was discussed by the Full Federal Court in Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 at 97-98 and in subsequent cases. That approach requires that, having arrived at a diagnosis, we should analyse the case in four steps. We will adopt that approach.

Does the whole of the material before the tribunal point to a hypothesis connecting his condition with the circumstances of his service?

9.      We shall deal firstly with the applicant’s claim that he developed lumbar spondylosis as a result of a trauma to his lumbar spine.

10.     There is evidence that the applicant fell from a moving vehicle in December 1961, and that he sustained head and shoulder injuries from the fall. But there is no evidence before the Tribunal suggesting the applicant sustained a traumatic injury to his lumbar spine in the course of the fall. Mr Cox was rendered unconscious by the fall, and he says he did not learn of it until comparatively recently – so he cannot tell us anything about his injuries. The medical records do not refer to any injuries to the lumbar spine, although they do note the applicant complained of lower-back pain within two or three days of the incident. It is possible that the applicant suffered an injury to his lumbar spine in the course of a fall that also resulted in injuries to the head and shoulder. The evidence of lower-back pain after he regained consciousness in the hospital is also consistent with trauma to the lumbar spine – although it may also have been a symptom of the scrub typhus which was apparently in its early stages as he was delivered to the hospital following his fall.

11.     That will not do. The cases make it clear that there must be material before the Tribunal actively pointing to a particular hypothesis. It is not enough that the evidence leaves something open as a possibility: see East v Repatriation Commission [1987] FCA 242; (1987) 16 FCR 517 at 532-533 per Jenkinson, Neaves and Wilcox JJ; see also Bull v Repatriation Commission [2001] FCA 1832; (2002) 66 ALD 271 at [18] per Emmett and Allsop JJ. In this case, the evidence does not actively point to trauma to the lumbar spine. It merely leaves it open as a possibility. In those circumstances, we are satisfied the claim in so far as it arises out of trauma to the lumbar spine cannot succeed because there is no hypothesis that can be raised.

12.     We turn now to the claim that the applicant developed a back condition as a result of being required to lift and carry heavy loads. We accept the applicant has given evidence suggesting he was required to lift and carry heavy loads that might have resulted in the development of a back condition. Thus, there is a hypothesis connecting Mr Cox’s condition with the circumstances of his service. As such, we must consider the hypothesis against the relevant Statement of Principles.

The relevant statement of principles

13. There was no dispute that the relevant Statement of Principles (“SoP”) was No 37 of 2005 which concerns lumbar spondylosis. The applicant relies in particular on factor 6(i) which refers to “carrying or lifting loads of at least twenty-five kilograms while bearing weight through the lumbar spine to a cumulative total of at least 120 000 kilograms within any ten year period before the clinical onset of lumbar spondylosis”.

Does the applicant’s story fit the template provided by the statement of principles?

14.     We must next consider whether the applicant’s story is capable of fitting the template contained in factor 6(i). We are not making findings of fact at this stage. We are merely asking whether there is evidence suggesting the applicant lifted or carried loads of the weight and over the time set out in the SoP.

15.     We are satisfied that evidence has been given to this effect, most obviously by the applicant in his various statements and in the course of his oral testimony. He spoke of lifting and carrying a large number of large logs in the process of constructing large helicopter pads in the jungle and road culverts. He also spoke of carrying a heavy pack weighing as much as 45 kilograms over long distances in the course of patrols. He was also required to cart sandbags, bags of cement and unload stores.

Can we be satisfied beyond reasonable doubt that the applicant does not satisfy the requirements in the statement of principles?

16.     The fourth stage of the Deledio process requires us to make findings of fact. We acknowledge that we should accept the applicant’s claim unless we are satisfied beyond reasonable doubt that the hypothesis is not reasonable; that is, unless we are satisfied beyond reasonable doubt that there is no factual basis to the hypothesis connecting the applicant’s medical condition with the circumstances of his service.

17.     We turn firstly to the evidence given by the applicant. He was an unsatisfactory witness. His story has varied widely over time. His statements offer varying estimates of the size and number of the helicopter pads which he helped to construct.

18.     A number of the applicant’s statements were tendered in the course of an earlier hearing which related to his claim for lumbar spondylosis and other conditions. The claim in respect of lumbar spondylosis was decided against him in the Tribunal but it has been remitted to the Tribunal for re-hearing following an appeal to the Federal Magistrates’ Court. The appeal book compiled in connection with the appeal was tendered into evidence in these proceedings as Exhibit One. The book included the transcript of evidence given at the earlier hearing. Ms Ford, counsel for the respondent, questioned the applicant about some of the discrepancies in the evidence he has given over time. He said he had experienced difficulties with his memory. He said he was heavily medicated when he had given his earlier evidence. He went on to explain that his more recent evidence was more reliable because he had undertaken research to help him clarify what had occurred. He said he had spoken with former comrades and reviewed historical material provided by the Sappers’ Association.

19.     Given the inconsistencies in the applicant’s story over time and the admission that he has undertaken research in an apparent attempt to “refresh” his memory, we do not think we can rely on the applicant’s evidence.

20.     What does that leave? We have the evidence of Mr Griffith who was second in command of the applicant’s unit while he was in Malaya. That evidence suggests the unit was involved in the construction of perhaps three helicopter landing pads in the jungle in Malaya in 1962. The applicant was ill for part of this time, and thereafter he was working on a more or less full-time basis in the pay office according to Mr Griffiths – although Mr Griffiths agreed the applicant might have been deployed on other work, including construction work, for up to a week once every two months or so.

21.     We also have the evidence of Mr Knight, a military researcher, who prepared two reports in relation to the applicant’s claim. One of the reports included a photograph of another unit constructing a comparable landing pad from timber logs. He said the landing pads were no more than about 14 metres squared. They certainly were not 30 metres squared, as the applicant argued. Mr Knight had experience building similar pads in Vietnam and consulted the 1967 Royal Engineers Pocket Book which confirmed that helicopters routinely landed on small pads. Although that Pocket Book was not issued until 1967, Mr Knight testified that the same standards were applicable in Malaya in 1962.

22.     Mr Knight’s evidence, which appears to be borne out in the photograph tendered as Exhibit Ten, suggests the pads required fewer logs than contended by Mr Cox. There was some dispute over the size of the logs in question: Mr Knight may have underestimated the size of some of the logs when he made his calculations if the logs in the photograph are used as a guide. Mr Knight suggested that even if the logs were of a larger diameter than he had accounted for, there would still be only a relatively small increase in the total amount of weight the applicant would have lifted and carried.

23.     We are satisfied the applicant was involved in the construction of only three small landing pads and that he lifted and carried fewer logs than he contended. While we acknowledge the business of estimating the total weight borne over time is uncomfortably inexact, we favour the estimate offered in evidence by Mr Knight at Exhibit Seven, at pages 3-4. Even if we allow for the possibility that the applicant did carry larger logs than Mr Knight estimated, it is clear he still falls well short of a cumulative total of 120,000 kilograms in lifting and carrying in a ten year period. It follows we are satisfied beyond reasonable doubt that there is not a factual basis for the hypothesis offered by the applicant.

Conclusion

24.     The decision under review is affirmed.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe and Dr G J Maynard, Brigadier (Rtd), Member

Signed:.................................[Sgd].............................................
  Michael Buckingham, Associate

Dates of Hearing  2-3 June 2008
  10 July 2008  
Date of Decision  23 July 2008
Counsel for the Applicant         Mr M McAuley 
Solicitor for the Applicant          Justin Crosby Solicitors 
Counsel for the Respondent     Ms E Ford  
Solicitor for the Respondent     Australian Government Solicitor