Cox and Repatriation Commission
[2006] AATA 15
•12 January 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 15
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/644; Q2003/874
VETERANS’ APPEALS DIVISION ) Re GRAHAME COX Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member B J McCabe
Dr G J Maynard, Member
Date12 January 2006
PlaceBrisbane
Decision The decision with respect to the lumbar spondylosis, alcohol dependence, depression and PTSD is affirmed. The decision with respect to the osteoarthrosis of the right shoulder is set aside and in substitution the Tribunal decides the applicant’s shoulder condition is war-caused. .........[Sgd]........
BJ McCabe
SENIOR MEMBER
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – causation of medical conditions in issue - lumbar spondylosis, alcohol dependence, depression, PTSD and right shoulder injury – applicant experienced several events during operational service – events not “severe stressors” as defined within the relevant statements of principles – applicant unable to establish a connection between his PTSD, alcohol dependence, depression and lumbar spondylosis and the circumstances of his service – injury to right shoulder did occur during service and is thus war-caused.
Veterans’ Entitlements Act 1986 ss 24, 120
Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144
REASONS FOR DECISION
12 January 2006 Senior Member B J McCabe
Dr G J Maynard, Member
introduction
1. Mr Grahame Cox is the applicant in these proceedings. He suffers from a number of health conditions that he says are attributable to his service in the Army in Malaya between October 1961 and 1963. The respondent accepts the applicant is a sick man but denies his conditions are attributable to his service. The Veterans’ Review Board agreed with the respondent and Mr Cox has now asked the Tribunal to reconsider the matter.
2. The respondent conceded at the hearing that the only real question in issue was whether the non-accepted conditions were war-caused. If they were war-caused, the respondent accepts the applicant is entitled to an increase in the pension he already receives under the Veterans’ Entitlements Act 1986 (the VEA). (He already receives a pension in respect of other conditions that were accepted as being related to his service.)
3. After hearing all of the evidence and reviewing the documents, we do not accept Mr Cox’s post traumatic stress disorder (PTSD), lumbar spondylosis, alcohol abuse and major depression are war-caused. We accept his shoulder condition is war-caused. We explain the reasons for our conclusions below.
the material before the tribunal
4. The Tribunal was provided with two volumes of documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. Exhibit one relates to the claim in respect of the right shoulder, PTSD and alcohol abuse (file Q2003/874). Exhibit two relates to the claim in respect of lumbar spondylosis (file Q2004/644). A further 33 documents were also tendered in evidence.
5. The applicant gave evidence at the hearing. A number of other witnesses gave evidence in person or over the telephone. Those individuals were:
·Mr R. Plumb;
·Mr T. C. Young;
·Mr A. Boxsell;
·Mr R. Lee;
·Mr R. Quin;
·Dr P. Herbert;
·Mr J. Hogan;
·Mr N. Griffith;
·Mr K. Gentle;
·Mr P. Knight; and
·Mr M. Van Gelder.
6. The applicant was represented by Mr Clutterbuck of counsel. Mr Kelly, a departmental advocate, represented the Repatriation Commission.
the background facts
7. Mr Grahame Cox was born on 22 August 1941. He explained he came from a family with a long history of service in the military. After working briefly as a clerk for a pastoral house in Brisbane, he enlisted in the Army on 30 November 1959. He undertook corps training with the Royal Australian Engineers. He was discharged on 29 November 1965.
8. The applicant was involved in a motor vehicle accident near Nowra on 10 March 1961. The accident occurred in a service vehicle but the applicant was not on operational service at the time. He was admitted to hospital complaining of pain in his lower lumbar spine and legs. X-rays did not show any abnormality and he was released from hospital the following day. He says he was playing football soon after, and passed a fitness test.
9. Mr Cox subsequently 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. He says events occurring while he was on service contributed to the onset of his various conditions.
10. Mr Cox arrived in Singapore in October 1961 by ship. Most of his unit travelled on the same vessel. After unloading stores in Singapore, the ship took 4 troop to its base of operations near Butterworth. The men spent two weeks acclimatising upon arrival.
11. 4 troop was assigned to work with British units. The troop was to carry out a variety of engineering tasks, but there was also an expectation it would conduct patrols looking for evidence of communist terrorist (“CT”) activity. The first patrol occurred as soon as the acclimatisation period finished.
12. A number of witnesses described the patrols. The whole troop would go out for up to three weeks at a time on a patrol. The men carted equipment with them on their backs in heavy packs (the applicant’s statement of 28 September 2004 suggested packs weighed approximately 45 kilograms) and they slept in the jungle. Some areas of the country were regarded as being more dangerous than others. In “black areas”, there was thought to be a higher risk of CT activity - although Mr Van Gelder, the commanding officer of 4 Troop, suggested he was aware of only two contacts between CTs and Commonwealth troops during the entire period of his service. In any event, the men were all armed and carried ammunition in black areas. In other areas, there was less danger and the men were unarmed.
13. There were other risks in the jungle. Some of the witnesses referred to deadly snakes, pythons, elephants, scorpions and a range of venomous or disease-carrying insects. There were also tigers. Some of the witnesses spoke of hearing that a New Zealand soldier had been attacked by a tiger after handing a tiger cub. None of the witnesses said they had seen a tiger, although a number of them – including the applicant – claim they heard and smelled tigers, and saw droppings and other evidence suggesting the presence of tigers.
14. The engineering work was arduous. A lot of the work involved the use of heavy machinery, but some of it took place in isolated areas that were accessed on foot. Helipad construction in the jungle in particular required men to clear and cart logs without the assistance of heavy equipment. Evidence was given that it was necessary to create landing platforms made of logs. The pads had to be large enough to accommodate sizeable helicopters. Not all of the landing pads required these platforms; in some cases, it was only necessary to clear the trees and undergrowth to permit the helicopters to land on bare earth. But even that work still meant the men had to cart logs of varying sizes and weights. The applicant suggested in his statement dated 28 September 2004 that he routinely lifted logs weighing 40-50 kilograms. He said he also lifted other bulky equipment, detritus and panels used in bridge construction.
15. The applicant fell or was thrown from a water trailer on 4 December 1961 while the troop was involved in some construction work. The vehicle was driven by Sapper Thomas Young, who gave evidence at the hearing. Mr Cox was knocked unconscious. He says he has no memory of what happened after he felt himself flying through the air until he woke up in hospital some time later. Mr Quin, another man who gave evidence, provided first aid.
16. Mr Cox was taken to the Base Sick Quarters at Butterworth after the accident. He was transferred to the Base Medical Hospital at Kamunting on 15 December 1961 after he was diagnosed as suffering from scrub typhus. He became very ill. Mr Cox says he subsequently learned his mother had been informed he was close to death. The medical records note a variety of symptoms including dysuria, tender glands, headaches, diarrhoea, vomiting, abdominal pain and pain across the small of the back. There is no mention of shoulder pain in the records relating to the period at Kamunting (exhibit one at 174ff). The applicant was transferred to another hospital at Cameron Highlands on 28 December 1961 to convalesce once his condition improved. He was discharged from hospital on 25 January 1962.
17. The applicant says he went back to his duties with the troop upon his discharge. He was readmitted to hospital in Kamunting on 26 February 1962. He apparently continued to suffer from the effects of the scrub typhus. He was discharged on 2 March 1962. He was then posted as the pay clerk to the headquarters of the troop. Mr Cox says the new assignment was intended to allow him to carry out lighter duties while remaining with the unit.
18. Mr Cox says his duties as pay clerk were not particularly taxing. He said he was only occupied with those tasks for several days each fortnight. The rest of the time he was available to work alongside other sappers when they went on patrols or out on engineering jobs.
19. 4 Troop was posted to North Borneo on 28 July 1962. It continued the sort of work it performed elsewhere in Malaya. The applicant returned to Singapore on 12 November 1962.
20. The applicant played sport when he returned to Australia. He was injured in a football game in Sydney in 1964. His final medical board (exhibit 32) refers to a shoulder injury. There is also a reference to a nervous breakdown in 1965.
21. After his discharge from the Army, the applicant had difficulty settling down. He returned to his previous employer and was posted to Blackall. He was drinking heavily. He left his job and moved to Sydney. He claimed he was drinking a coffee bottle of rum each day. He wandered about doing odd jobs, feeling like he did not fit in.
the events the applicant says are severe stressors
22. The applicant claimed he witnessed or was confronted with a number of incidents during his service (apart from the accident on the water-truck) which might amount to severe stressors within the meaning of the relevant statements of principles issued by the Repatriation Medical Authority.
(a) the accidental discharge of a weapon in the jungle
23. The applicant described an incident in which a soldier accidentally discharged a round from a weapon. The applicant says the round passed through his hammock and gave him a dreadful fright. Other soldiers gave evidence of at least two occasions on which there had been accidental discharges during patrols; the balance of the evidence suggested it was unlikely that a stray round would have been fired into the encampment. Mr Griffith, an officer with the troop, said the guns would have been pointed outwards, not into the camp. Only Mr Young – the driver of the tanker when Mr Cox claims he injured his back and shoulder – corroborated his story.
(b) encounter with a tiger
24. The applicant said he accompanied an unarmed patrol into the jungle one night. The patrol was headed for a landing zone. As they made camp, the soldiers apparently became aware of animals running to escape what the men assumed was a tiger. The applicant says no one saw the tiger, but they could hear and smell it. He said the soldiers did not have time to urinate around the campsite (a standard defensive technique, we were told) so they huddled around a small fire and armed themselves with their shaving mirrors. They used the mirrors to flash light in the direction where they thought the tiger lay in an effort to ward it off. After the danger had passed, the applicant said he saw a pool of tiger urine.
(c) the bodies discovered on patrol
25. The applicant said he went on a patrol with two other men in a “black” area. They came across a number of bodies. The applicant says they were horribly mutilated. One of them was the remains of a pregnant female. The applicant claimed her arms had been cut off and she had been disembowelled. The foetus was hanging out of her stomach. He said it was the most horrible thing he had ever seen, and explained in his oral testimony that he had never told the full story before the hearing.
26. The ubiquitous Mr Young was also present on the patrol. He agreed the patrol discovered some bodies. He agreed there was some mutilation but he was unable to confirm the gruesome details provided by the applicant. That is surprising: if the details were as the applicant alleged, one would have thought Mr Young would have remembered them.
27. Other witnesses doubted whether three men would ever be sent off on their own in a black area. Mr Griffith a troop officer, said he would certainly have expected to hear about it if the patrol came across bodies: that would have been important news.
(e) the magnolia man incident
28. The applicant says he and the troop were on patrol when they became aware of a “Magnolia” man. Magnolia men were native Malays who rode about on bikes and sold drinks and other refreshments. Mr Cox said the approach of this Magnolia man was unusual because the troop was some distance from the nearest village, and the man should not have been aware of their presence. He was intercepted by an NCO. At some point, the applicant said he became aware the NCO suspected the man was carrying grenades. The applicant said he thought the man was disarmed.
29. Other witnesses gave evidence about the incident. Mr Plumb said he heard a rumour that a Magnolia man had been suspected of carrying grenades, but they turned out to be fruit. Mr Lee agreed a man had been searched for grenades. Mr Griffith thought it was just a rumour. Mr Gentle disputed whether the incident occurred as the applicant described: he suggested the applicant was referring to an earlier incident that had been the subject of rumours in the camp.
the legislation
30. Applicants seeking disability benefits in respect of war-caused injuries must comply with the requirements in ss 120(1) and (3) of the VEA. The correct approach to those provisions was set out by the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82. The first step requires that the decision-maker refer to all the material and identify the hypothesis connecting the applicant’s condition(s) with the circumstances of his or her service. Once that has been done, the decision-maker must identify the relevant statements of principle (SoPs) issued by the Repatriation Medical Authority. The third step requires that the decision-maker consider whether the applicant’s story is capable of “fitting” within the template provided by the relevant SoPs. If it does, the decision-maker moves to the fourth stage in the Deledio process, which involves fact-finding.
31. The applicant has claimed an entitlement to compensation in respect of a number of conditions. There does not appear to be any dispute as to diagnosis. We accept the applicant suffers from lumbar spondylosis, osteoarthritis of the right shoulder, PTSD, major depression and alcohol dependence. We will deal with each claim in turn.
the claim for ptsd
32. The applicant claims he developed PTSD as a result of witnessing or being confronted by a number of traumatic events during the course of his service in Malaya. He says those events, or any one of them, fall within the definition of severe stressor, which helps him to establish a causal connection between his condition and the circumstances of his service.
33. The relevant SoP is No 3 of 1999 (amended by No 54 of 1999).
34. Do any of the events described by the applicant “fit” the template provided by the SoP? In particular, has the applicant experienced a severe stressor within the meaning of that expression as defined in clause 8 of the SoP?
35. The incident on the water truck cannot be a severe stressor because the applicant says he does not remember anything beyond flying through the air. He does not remember hitting the ground or anything else about the incident. The accidental discharge of the weapon might be a severe stressor if the bullet passed through the applicant’s bedding as he alleged. We have some doubts over whether the “encounter” with the tiger amounts to a severe stressor because it is unclear from the applicant’s story whether there was an encounter as such at all. The discovery of mutilated bodies during the patrol would certainly amount to experiencing a severe stressor. We do not think the Magnolia man incident amounts to a severe stressor: we do not accept that seeing an NCO talking to the man and searching his bicycle and discovering grenade-like shapes that were quickly identified as fruit could really be perceived as a severe stressor by someone in Mr Cox’s shoes with his background and experience. Our doubts to this end grow when it is recalled that Mr Cox appeared to be situated some distance from the point on the road where the confrontation took place.
36. That leaves two incidents in particular which would clearly amount to severe stressors for the purposes of the SoP. Having reached the fourth stage of the Deledio process, we must now make findings of fact.
37. We note the applicant’s account of both incidents was corroborated by Mr Young, who also gave precise evidence of Mr Cox’s accident on the back of the water truck.
38. We should say something about the evidence of Mr Gentle at this point. Mr Gentle and Mr Cox served in the same unit. It is not clear whether they were friends at the time. Mr Cox contacted Mr Gentle to ask whether he would assist by giving evidence. The two men had some kind of falling out over a picture produced by the applicant. The picture apparently showed Mr Gentle smoking, but Mr Gentle says he never smoked. It was apparent from Mr Gentle’s eagerness to give evidence against the applicant that he might have been motivated by personal animus. We therefore treat his evidence with caution.
39. The applicant and Mr Young gave glaringly different accounts of the discovery of the bodies during the patrol. They both agreed they were on patrol with one other person (an occurrence which other witnesses said was most unlikely). They agreed they discovered mutilated bodies. But the accounts of the details of what they found diverge widely in unlikely ways. Mr Cox said he saw a woman who had her arms cut off and a foetus hanging out of her punctured belly. Mr Young said he did not see anything like that. He said he saw different injuries. The accounts of what they found differ so significantly that we do not think either of them discovered anything at all. We are fortified in this view by the failure on the part of anyone participating in this patrol – if there was a patrol – to report the discovery. Given the whole point of their presence in the area was to investigate evidence of CT activity, it beggars belief that the applicant and Mr Young would not inform their superiors of what they discovered.
40. We also have no confidence in the applicant’s account of a stray bullet flying through his bedding. All of the evidence indicated it was most unlikely that a weapon would discharge into the area occupied by the soldiers (although we accept weapons occasionally discharged into the surrounding jungle where they were aimed). We note Mr Young also corroborated Mr Cox’s story in this regard; but given that no one reported such an incident, we do not accept it occurred.
41. For the sake of completeness, we would also make a finding of fact in relation to the encounter with a tiger. The applicant’s account of huddling round a fire attempting to frighten a tiger with light reflected from shaving mirrors is unbelievable. We do not accept the event occurred as he described.
42. In all the circumstances, we do not accept the applicant is able to establish a connection between his PTSD and the circumstances of his service. His claim in this regard must therefore fail.
depression
43. The applicant did not press his claim for depression, but we will deal with it for the sake of completeness. Mr Cox says he has developed major depression as a result of the events he witnessed in Malaya.
44. The relevant SoP is No 58 of 1998.
45. There is no evidence of other clinically significant psychiatric conditions being present within the relevant time frame. The applicant must as a practical matter identify severe psychosocial stressors. Finding mutilated bodies in the course of a patrol could fit within the definition of severe psychosocial stressor in the SoP. None of the other events he described would appear to satisfy the definition. However for reasons we have already explained we do not accept the event occurred as he and Mr Young described. The applicant must therefore fail at the fourth stage of the Deledio process in relation to his claim.
alcohol dependence
46. The applicant’s claim with respect to alcohol dependence must also fail in circumstances where we do not accept there is any evidence of another clinically significant psychiatric condition or severe stressors being present.
the claim for lumbar spondylosis
47. The applicant says that lifting very heavy loads like logs and a fully-laden pack over the period of his service in Malaya gave rise to his back condition. We note the applicant also sustained injuries in his fall from the back of the water-truck, and that there is a reference in his medical records to lower back pain when he was being treated in hospital for scrub typhus.
48. The relevant SoPs are No 46 of 2002 as amended by No 77 of 2002. We will also have regard to No 37 of 2005, which came into affect after the date of the hearing.
49. The relevant SoPs require that we consider whether the applicant suffered a “trauma to the lumbar spine before the clinical onset of lumbar spondylosis”. No 46 of 2002 also refers to “manually lifting or carrying loads of at least 25kg while weight bearing to a cumulative total of 120,000 kgs within any ten year period, before the clinical onset of lumbar spondylosis. No 37 of 2005 includes a factor to the same effect, albeit the wording of the sub-clause is slightly different. We do not think the differences in drafting are material for present purposes.
50. We think the applicant’s claim fails at the third stage of the Deledio process. The only evidence of the applicant suffering any back symptoms at the time of the water truck accident appear in medical records made in relation to his treatment for scrub typhus. There is no evidence he sustained any trauma to the back in the accident, and the back pain symptoms are clearly accounted for by the applicant’s scrub typhus condition.
51. We also heard evidence about the applicant lifting heavy loads. Some of the evidence was given by Mr Knight who conducted research into the issue on the respondent’s behalf. Mr Clutterbuck questioned some of the assumptions upon which the report was based. That was probably inevitable: it was always going to be difficult to produce a meaningful estimate of the loads being lifted in the circumstances.
52. We accept soldiers in the applicant’s unit – including the applicant, when he was available to join them in their work – were expected to clear areas of jungle and lift heavy loads. We heard some of the witnesses (including the applicant) describe heaving large and small logs away from helicopter landing zones in particular. We also acknowledge the applicant was required to carry a heavy pack while on patrols. But the evidence does not suggest to us that the applicant lifted anything like 120,000 kgs in weight during his time in Malaya.
53. It follows we do not accept the applicant’s account is able to “fit” the template provided by any of the relevant SoPs. His claim in this regard must fail.
osteoarthrosis of the shoulder
54. The applicant says he has developed osteoarthrosis of the right shoulder as a result of the accident on the water truck in Malaya. He says he is now aware (courtesy of the evidence of Mr Young) that he fell heavily on his right shoulder when he was thrown from the back of the water truck.
55. The relevant SoP is No 81 of 2001.
56. We are satisfied the applicant’s story “fits” the template in the SoP. Factor 5(j) refers to “suffering a trauma to the affected joint before the clinical onset of osteoarthrosis of the joint”.
57. We note the applicant says he does not remember anything of the incident beyond flying through the air. His service medical records do not suggest his shoulder was injured in the incident. My Young, who was the driver of the vehicle, claims he saw Mr Cox fly from the back of the vehicle and land on his shoulder. He was adamant that the applicant landed on his right shoulder. How he managed to see all of this through the rear-view mirror or from the cab of the truck is a mystery given he was trying to control the vehicle at the time. But we also note the evidence of Mr Quin, the medical orderly. He did not see the accident occur but he says he recalls thinking the applicant might have broken his shoulder or collar bone. He says he recalls binding the applicant’s arm to his body for transport.
58. The evidence of Mr Quin suggests the applicant did sustain an injury to his shoulder when he fell from the water truck. That evidence would satisfy the requirements of the SoP. It is otherwise uncontradicted evidence; we accept it.
59. It follows the applicant can succeed in respect of his claim for osteoarthrosis of the shoulder. The decision under review is set aside with respect to that issue.
conclusion
60. The decision with respect to the lumbar spondylosis, alcohol dependence, depression and PTSD is affirmed. The decision with respect to the osteoarthrosis of the right shoulder is set aside and in substitution the Tribunal decides the applicant’s shoulder condition is war-caused. The Tribunal will entertain submissions with respect to the date of effect should the parties require a ruling.
61. The question of assessment for the purposes of s 24 is remitted to the respondent.
I certify that the 61 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe and Dr G J Maynard, Member.
Signed: .....................................................................................
Associate: Sam J AppletonDates of Hearing 6-7 October 2005
Date of Decision 12 January 2006
The applicant was represented by Mr Clutterbuck of counsel.The respondent was represented by Mr Kelly, a departmental advocate.
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