Creaney and Repatriation Commission
[2005] AATA 177
•3 March 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 177
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2003/184
VETERANS' APPEALS DIVISION ) Re RICHARD CREANEY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member Joan Dwyer
Associate Professor John Maynard, MemberDate3 March 2005
PlaceMelbourne
Decision The Tribunal varies the decision under review to provide:
(i) Cervical spondylosis is a war-caused disease, with effect from 7 October 2001;
(ii) Mr Creaney is entitled to pension at 60% of the general rate from 7 October 2001; and
(iii) Mr Creaney is entitled to pension at 80% of the general rate from 10 January 2003.
[sgd] Joan Dwyer
Senior Member
VETERANS’ AFFAIRS – whether cervical spondylosis and emphysema with chronic bronchitis defence-caused diseases under s 70(5) of the Veterans’ Entitlements Act 1986 – defence service – reasonable satisfaction standard of proof – cervical spondylosis – finding applicant suffered a trauma to the cervical spine within 25 years before clinical onset – emphysema with chronic bronchitis – whether increase in smoking related to service – test whether defence service contributed to or aggravated applicant’s smoking habit – Tribunal not reasonably satisfied – assessment of pension – intermediate or special rate – finding that incapacity from war-caused diseases of itself alone, not of such a nature as to render the veteran incapable of undertaking more than eight or twenty hours work a week – assessment of general rate of pension – decision under review varied.
PRACTICE AND PROCEDURE – inquisitorial approach by Tribunal – whether appropriate to consider case not articulated by applicant.
Forbes v Repatriation Commission (2000} 58 ALD 394
Grant v Repatriation Commission (1999) 57 ALD 1
Hill v Repatriation Commission [2005] FCAFC 23
Kattenberg v Repatriation Commission (2002) 73 ALD 265
Re Landells and Repatriation Commission [2005] AATA 85
Repatriation Commission v Edwards (1993) No. G250 of 1993 FED No. 612
Repatriation Commission v Gorton (2001) 65 ALD 609
Repatriation Commission v Smith (1987) 74 ALR 537Repatriation Commission v Tuite (1993) 17 AAR 158
REASONS FOR DECISION
3 March 2005 Senior Member Joan Dwyer
Associate Professor John Maynard, Member
FORMAL MATTERS
1. This is an application under s 175 of the Veterans’ Entitlements Act 1986 (“the Act”) for review of a decision of the Repatriation Commission (“the Commission”) made on 14 May 2002. The Commission rejected Mr Creaney’s claim to have cervical spondylosis and emphysema with chronic bronchitis accepted as defence-caused diseases under s 70(5) of the Act.That decision was affirmed, as to the diseases which are the subject of this hearing, by the Veterans’ Review Board (“the VRB”) on 13 December 2002.
2. The issue in this matter is whether the conditions of cervical spondylosis and emphysema with chronic bronchitis are defence-caused within the meaning of s 70 of the Act. If either condition is accepted as defence-caused, there is a further issue as to the appropriate rate of pension payable to Mr Creaney who, at the time of the hearing, was in receipt of pension at 80% of the general rate provided for in s 22 of the Act. He seeks the special or intermediate rate of pension under ss 24 and 23 of the Act, from December 2001, when he ceased work.
3. At the hearing, Mr De Marchi, a solicitor, appeared for Mr Creaney. Mr Rudge, an advocate with the Department of Veterans Affairs, appeared for the Repatriation Commission. The Tribunal had before it the documents (“the T Documents”) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) and also the exhibits tendered during the hearing, including one exhibit produced by the Tribunal. Mr Creaney gave evidence. Evidence on his behalf was also given by Professor Pain, a respiratory physician. Dr Silcock, an occupational physician, gave evidence for the Repatriation Commission.
SERVICE
4. Mr Creaney was born on 16 April 1952. He served in the Royal Australian Navy from 22 November 1969 to 4 May 1982 and from 7 March 1983 to 10 November 1990. He has rendered “defence service”, as defined in paragraph (a) of the definition of that term in s 68(1) of the Act, from 7 December 1972 to 4 May 1982, and from 7 March 1983 to 10 November 1990.
5. Under s 70(5)(a) and (b) of the Act, a disease contracted by Mr Creaney shall be taken to be a war-caused disease if it “arose out of, or was attributable to, any defence service”, or if it resulted from an accident that occurred while Mr Creaney was travelling to or from a place for the purpose of performing duty or having ceased to perform duty at that place.
6. Because Mr Creaney had defence service, but not operational service, the relevant standard of proof is that set out in s 120(4) of the Act which provides:
(4) 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.
7. The operation of s 120(4) of the Act is affected by s 120B which, so far as relevant, provides:
…
(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i) a Statement of Principles determined under subsection 196B(3) or (12); or
(ii) a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(3), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.
CERVICAL SPONDYLOSIS
8. There is no dispute about the fact that Mr Creaney suffers with pain in his neck, headaches and limitation of range of neck movement due to cervical spondylosis. The cervical spondylosis has been confirmed radiologically and is most pronounced at the C3-4 disc level.
9. The Tribunal had before it reports of Dr Grinwald, a consultant physician (R10), Dr Gilligan, a neurologist (R11), and Professor Chambers, a neurologist (R13), lodged on behalf of the Repatriation Commission. It also had the report of Mr Hadley, an orthopaedic surgeon (A3), lodged on behalf of Mr Creaney. Those reports all accepted the diagnosis of cervical spondylosis and agreed substantially as to the symptoms resulting from that condition. The respondent accepted, at paragraph 17 of the respondent’s Statement of Facts and Contentions, that “The evidence indicates that the applicant’s tension-type headaches are symptoms of the cervical spondylosis.”
10. Dr Gilligan, Professor Chambers and Mr Hadley, in their reports, also expressed the opinion that Mr Creaney’s cervical spondylosis probably results from a motor cycle accident he had during service, on 25 May 1973, when he fractured his clavicle. The accident is documented in the Service Medical Records (“the medical records”) in evidence before the Tribunal. Dr Grinwald did not accept that view, and Dr Silcock did not address the issue of causation.
11. The condition of “osteoarthrosis of the right shoulder” was accepted as a defence-caused injury under the Act by a Commission decision dated 12 May 2003 on the basis that Mr Creaney had suffered trauma to his right shoulder during his defence service. That claim had been made in respect of the fracture of the right clavicle sustained in the motor cycle accident
12. Mr Creaney described the accident in his statement (A1), at paragraphs 2 – 5:
2.On 25 May 1973 (during eligible defence service), when returning from duty at HMAS “Harman”, I was riding a motor bike on a dirt road, while executing a right turn the bike slid from under me as I went around the corner. I landed heavily on my right shoulder and jarred both my neck and shoulder. My knees were also sore.
3.I was unable to take off my jacket because the right shoulder was very painful. I could hardly move. My neck was also extremely sore. I was taken to Canberra and underwent X-rays which revealed a fracture of the distal end of the right clavicle. This was treated with a sling and pain killers.
4.I was given light duties during this time, but the pain continued for several weeks, from the right shoulder to the right side of the neck. I would go to the bar at the end of the day and have a dozen or so pots of beer to help me sleep and cope with the pain. My neck continued to be sore.
5.After two or three weeks I discontinued using the sling because it was aggravating the pain in my neck, my neck being tender. Pain restricted the movement of my neck. I was also feeling a clicking sensation in my neck when turning my head.
13. Mr Creaney said, in evidence, that he felt pain in his neck and shoulder very shortly after the fall, and that his neck and shoulder were extremely painful. There is confirmation of the fact that the neck was still painful two weeks after the motor bike accident, in the medical records for 8 June (R2, p47). The note in the daily medical record reads:
Not wearing sling 2 days because of pain in L side of neck, posteriorly, swelling persists but shoulder feels OK.
O/E No neuro signs in arms
Full neck movements
Rx sling 1 week
Re X-ray at 4 weeks and reassess
14. This matter is unusual, in that Mr Creaney’s claim has been refused, although the majority of the respondent’s medical witnesses who considered the issue of causation, agree with the expert witness called on behalf of Mr Creaney that his cervical spondylosis probably results from the motor bike accident during eligible defence service.
15. Dr Gilligan expressed the following opinion:
4. I believe that it is more likely than not, that when he came off the motor cycle in May, 1973, he did suffer injuries to his neck and that this was more than likely the cause or commencement of cervical spondylosis which became evident radiologically and clinically, in 1986.
It must be noted that the medical entry on 8th June, 1973 (page 47) did mention that he had pain in the left side of his neck and this is only some fourteen days after the injury to his clavicle.
In the Statements of Principles for cervical spondylosis, instrument 51 of 2002, factor 5g, appears to be appropriate in that he suffered a trauma to the cervical spine within the 25 years immediately before the clinical onset of cervical spondylosis, thus if the cervical spondylosis is accepted as having been caused then the tension type headache is a secondary phenomenon to the cervical spondylosis.
Dr Gilligan concluded:
To re-state and summarise, I believe that the motor cycle accident did initiate cervical spondylosis which has eventually produced chronic disabling neck pain with pressure type headaches.
16. Professor Chambers, in his report (R13) wrote:
Mechanism of Alleged Injury
On 25 May 1973, while serving with the Navy, Mr Creaney sustained a fracture/dislocation of his right acromioclavicular joint as a result of a motorcycle accident. Apparently he was riding at 5 – 10 km/hr along a dirt track. He took a bend but his motorcycle slid out from underneath him and he landed on his right shoulder.
Initial/Early Treatment Received
He was treated with analgesic medication and a sling and did not have any time off work.
There were no other apparent injuries although it is noted in his medical record that he was not wearing his sling due to pain in the left posterior cervical region.
…
OPINION
In response to your specific questions:
1. What is the appropriate diagnosis for Mr Creaney’s headaches?
Mr Creaney is suffering from muscle tension type headaches. He also experiences non-specific dizziness and disequilibrium. His memory and concentration difficulties are probably “attentional” in origin rather than indicating any associated brain impairment.
2. What is the cause of the headaches?
His headaches are secondary to cervical spondylosis.
…
4.What was the cause of the condition or conditions producing the above symptoms?
Please refer to the body of this report. [This appears to refer to the motor cycle accident, as it is the only mechanism of alleged injury referred to in the report]
17. On those reports, it may seem puzzling that Mr Creaney’s claim to have his cervical spondylosis recognised as defence-caused has not been successful. However, the reason why the claim has not already been accepted is because s120B of the Act requires that, where there is in force a Statement of Principles (“SoP”) for a claimed condition, a claim must not be accepted unless it is upheld by the relevant SoP.
18. The relevant SoP for cervical spondylosis is No. 51 of 2002. It contains, in paragraph 5(a), a list of factors which must exist, and be related to relevant service, before it can be said that, on the balance of probabilities, cervical spondylosis is connected with the circumstances of Mr Creaney’s relevant service. The only relevant factor is factor (g), which provides:
suffering a trauma to the cervical spine within the 25 years immediately before the clinical onset of cervical spondylosis.
19. SoP No. 51 of 2002 defines the term “trauma to the cervical spine” in clause 8, as follows:
trauma to the cervical spine means a discrete injury to the cervical spine that causes the development, within 24 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 acute symptoms and signs must last for a period of at least 10 days following their onset; save for where medical intervention for the trauma to the cervical spine has occurred, where that medical intervention involves either:
(a) immobilisation of the cervical spine by splinting, or similar external agent; or
(b) injection of corticosteroids or local anaesthetics into the cervical spine; or(c) surgery to the cervical spine.
20. The respondent’s Statement of Facts and Contentions, at paragraph 18 stated:
The applicant suffered a fractured right clavicle in 1973 when travelling from his navy workplace to his home. The medical consultations at that time did not indicate an injury to the cervical spine of the severity and duration as described in the Statement of Principles. The respondent submits that the applicant’s cervical spondylosis and symptomatic tension headaches are not defence-caused.
21. As set out in paragraph 6, the Tribunal must decide the matter to its reasonable satisfaction. It is well-established since Repatriation Commission v Smith (1987) 74 ALR 537, that the reasonable satisfaction standard of proof is the same as satisfaction on the balance of probabilities. Thus, what we must consider is whether we can be satisfied on the balance of probabilities that Mr Creaney suffered a service-related “trauma to the cervical spine” as defined in the SoP, within the 25 years immediately before the onset of cervical spondylosis.
whether mr creaney suffered a “trauma to the cervical spine” in the motor bike accident
22. The definition in the SoP, as set out in paragraph 19, has a number of requirements:
(i) There must be a discrete injury to the cervical spine;
(ii) It must cause the development within 24 hours of the injury of:
(a) symptoms and signs of:
· pain; and
· tenderness; and
(b) either:
· altered mobility; or
· range of movement
of the cervical spine.
(iii)the symptoms and signs must last for at least 10 days unless there has been medical treatment of the cervical spine as specified in the definition.
(i) Discrete Injury to the cervical spine
23. As to (i) above, we find that Mr Creaney did sustain a discrete jarring type of injury to the cervical spine when he fell off his motor bike with enough force to fracture his right clavicle. We accept Mr Hadley’s opinion at page 3 of his report(A3):
As a result of riding a motorbike when he was on duty for the Royal Australian Navy on 25.5.1973 when he was travelling on a dirt road going around to the right and the motorbike sided, he fell onto his right shoulder and jarred his neck and as a result he sustained:
A.Right shoulder injury with a fracture of the outer end of his clavicle which has become united with some deformity and he has developed osteoarthrosis with capsulitis.
B.Neck injury with a chronic strain to his cervical muscles and from cervical spondylosis, in particular at C3/4.
24. We note that Dr Gilligan and Professor Chambers accepted the motor bike accident as the cause of the cervical spondylosis, thus they must have accepted that there probably was injury to the cervical spine in that accident, such as to result in the later development of cervical spondylosis.
25. Although Dr Grinwald in his report did not accept that Mr Creaney suffered “a discreet [sic] injury to the cervical spine itself”, he did acknowledge that “the accident could have caused some jarring of the cervical spine” (R10, p7). We find that the jarring was of such a nature as to be a “discrete injury to the cervical spine”.
(ii)(a) Pain and tenderness
26. As to (ii)(a) above, Mr Creaney said in his statement, and in evidence, that, shortly after the injury he suffered extreme pain of the right shoulder and his neck was extremely sore and very painful. He said he was treated with a sling and painkillers. There is confirmation in the medical record for 8 June 1973 (R2, p47) that the left side of the neck posteriorly was still painful more than 10 days after the injury; and that because of neck pain, Mr Creaney had stopped wearing the sling for his right shoulder.
27. The meaning of “tenderness” given in Black’s Medical Dictionary is (p541):
The term usually applied in medical nomenclature to pain experienced when a diseased part is handled, the term, pain, being reserved for unpleasant sensations felt apart from any manipulations.
28. Tenderness of the neck is not mentioned in the medical record of 8 June 1973, but Mr Creaney did say in paragraph 5 of his statement (A1), that the wearing of the sling aggravated the pain in his neck, “my neck being tender”. We find that Mr Creaney’s neck was “tender”, because of his evidence that the wearing of the sling aggravated the pain in his neck, as noted in the medical record for 8 June 1973.
(ii)(b) Altered mobility or range of movement
29. As to (ii)(b) above, Mr Creaney said in his statement (A1), which he confirmed in his evidence, that “pain restricted the movement of my neck. I was also feeling a clicking sensation in my neck when turning my head”. Mr Rudge relied on the note, “O/E Full neck movements” in the medical record (R2, p47) of 8 June 2004, and on Mr Creaney’s acknowledgement in evidence that he did not have a restriction of the range of neck movement as at 8 June 1973. However the SoP does not require that there be “altered range of movement of the cervical spine”. It also is satisfied if there is evidence of “altered mobility” of the cervical spine.
30. Of course, 8 June 1973 is more than 10 days after 25 May 1973, but there is no evidence that Mr Creaney had a restricted range of movement of the cervical spine after the accident, even before 8 June. He gave no evidence to that effect and it seems, from the records, that his range of movement was not checked prior to that date. That may have been because of the swelling which was noted on 8 June, or perhaps because examination to ascertain the range of neck movement might have aggravated the pain associated with the fractured clavicle, or perhaps the medical staff did not think it necessary.
31. SoPs did not come into operation until 1 June 1994. This matter demonstrates a difficulty with the concepts underlying the SoPs. Apparently it was not necessary medically, when Mr Creaney had his motor bike accident, to identify every aspect of the “trauma to the cervical spine” he suffered in the motor bike accident. Medically, the applicant’s and two of the respondent’s expert witnesses agree that the cervical spondylosis which became symptomatic in 1985, and was confirmed by x-ray in 1986, is a consequence of the “trauma to the cervical spine” in the motor bike accident. Were it not for the SoPs, the condition would clearly be accepted as war-caused.
32. However the SoP carries a specific definition of “trauma to the cervical spine”. It requires us to make a finding as to what symptoms Mr Creaney experienced in the area of the cervical spine at the time he fractured his right clavicle more than 30 years ago. The medical records do not include any record of a full medical examination immediately after the motor bike accident, nor during the following two weeks. There are only x-ray records (R2, p44) and notes on 25 May 1973 (R2, p45), 28 May (R2, p46) and 8 June 1973 (R2, p47), and then a follow up x-ray of the fracture on 18 July 1973 (R2, p49). In the absence of medical evidence as to the effect of the injury on Mr Creaney’s mobility of the cervical spine, the only evidence on that issue is that of Mr Creaney.
33. Mr Creaney said that movement of his neck was painful after the accident. It remained painful, even though he was on light duties and taking painkillers for five or six weeks. There is no evidence of any pain on movement prior to the accident. He also described a clicking sensation in his neck when turning his head after the accident. There is nothing improbable about that evidence. We accept it and find that Mr Creaney did experience pain on movement and a clicking sensation when turning his head, as he described. We find they constitute symptoms of “altered mobility… of the cervical spine” following the motor bike accident.
34. The altered mobility is not noted on 8 June 1973 (R2, p47) but the note is brief and does confirm that there was neck pain persisting. Mr Creaney said it was the pain which caused the alteration in mobility in his neck. We do not have the evidence to say whether there is any deficiency in the medical records for medical purposes. However, for the purposes of this hearing, there appears to be a deficiency in the notes in that they did not document the effects of the motor bike accident on Mr Creaney’s cervical spine prior to 8 June 1973, and even then documented only one symptom, namely pain.
35. In so far as there might be reliance on that deficiency in the notes by the respondent, we consider this is an appropriate matter in which to give effect to s 119(1)(a) and (h)(ii) which provide:
Commission not bound by technicalities
(1) In considering, hearing or determining, and in making a decision in relation to:
(a) a claim or application;
…
the Commission:
…
(h)
without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i) the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii) the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities.
36. We consider that Mr Creaney’s statement and oral evidence are a sufficient basis for our finding that he did experience altered mobility of the cervical spine as a result of the motor bike accident. We consider that the medical records are so brief, that the omission of any record of altered mobility of the spine does not provide any reason to doubt Mr Creaney’s evidence on the point.
(iii) Length of symptoms and signs
37. Mr Creaney said the pain in his neck remained and even increased over time. The records show that he was still experiencing symptoms of pain and tenderness 13 days after the accident on 8 June 1973. This is shown by the record of him not wearing the prescribed sling due to pain at that time. We find on his evidence that the symptoms of pain, tenderness and altered mobility of the cervical spine did last “at least 10 days following their onset”.
38. Thus, we find that Mr Creaney did suffer “trauma to the cervical spine” as defined in the SoP, on 25 May 1973.
whether the trauma to the cervical spine was within 25 years before the clinical onset of cervical spondylosis
39. The next issue to consider is whether that trauma was “within the 25 years immediately before the clinical onset of cervical spondylosis” as required by factor 5(g) of the SoP.
40. The trauma relied on was the motor bike accident on 25 May 1973. Dr Gilligan in his report wrote that symptoms of cervical spondylosis were reported from 24 October 1983. That may be a typographical error, or Dr Gilligan may have misread the note at R2, p179 as dated 24 October 1983. In fact, it is dated 24 October 1985. The entries in the medical record identified by Dr Gilligan in his report (R11) as indicating symptoms of cervical spondylosis were as follows:
A further entry on 24th October, 1983 [sic] on page 179 notes, “Pain in right shoulder radiating to right occipital region. Patient also feel a clicking sensation when turning his head to the right, also after looking down. Pain gradually increasing.
Entries on page 230, 231, 232 and 233 refer to cervical pain, the dates being from 13th July, 1988 through until 10th August, 1988.
Entries on page 195, dated 28th November, 1986 quote, “Approximately one month history of dizziness” and some pain upper neck and occasional paraesthesia ulnar side of right hand, little and ring fingers. Some upper cervical spine tenderness. X-ray cervical spine at that stage, showed osteoarthritic changes at several at the apophyseal joints, most marked at C-3-4 level.
41. Dr Gilligan added the following further history:
Mr Creaney states that neck pain started to become a problem in the early 1980’s before he actually reported it.
42. We find on that evidence that Mr Creaney was suffering from cervical spondylosis which was radiologically confirmed at x-ray on 28 November 1986. That means that the motor bike accident was within the 25 years immediately before the clinical onset of cervical spondylosis.
43. We find that Mr Creaney’s cervical spondylosis is a defence-caused disease.
emphysema and chronic bronchitis
44. The claim to have the emphysema and chronic bronchitis accepted as defence-caused depends on Mr Creaney’s smoking habit. The T documents include a report by Mr Creaney as to his Cigarette Smoking (T5, pp19-20) and a further statement entitled smoking report dated 25/9/02 (T14, p65).
45. There is a SoP for chronic bronchitis and emphysema. From the time when the claim the subject of this application was lodged until the hearing, it was SoP No. 74 of 1997. Since the hearing, SoP No. 74 of 1997 has been revoked and a new SoP, No. 31 of 2004 has been determined. Applying Repatriation Commission v Gorton (2001) 65 ALD 609, the Tribunal is bound to apply the new SoP, unless the earlier SoP is more beneficial to Mr Creaney.
46. The only relevant factor in this matter is that related to smoking. In that respect, SoP No. 31 of 2004 is more beneficial to a veteran than was SoP No. 74 of 1997. The only difference between the equivalent factors, 5(a) of No. 31 of 2004, and 5(b) of No. 74 of 1997 is that the requirement of at least 15 pack years of service related smoking, in SoP No. 74 of 1997, has been reduced to at least 10 pack years of service related smoking in the current SoP.
47. Clauses 4 and 5(a) of SoP No. 31 of 2004 provides as follows:
Factors that must be related to service
4.Subject to clause 6, at least one of the factors set out in clause 5 must be related to the relevant service rendered by the person.
Factors
5.The factor that must exist before it can be said that, on the balance of probabilities, chronic bronchitis and emphysema or death from chronic bronchitis and/or emphysema is connected with the circumstances of a person’s relevant service is:
(a)smoking at least ten pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema; or
…
48. The term “pack years of cigarettes” is defined in clause 8 of the SoP as follows:
“pack years of cigarettes, or the equivalent thereof in other tobacco products” means a calculation of consumption where one pack year of cigarettes equals twenty tailor made cigarettes per day for a period of one calender year, or 7300 cigarettes. One tailor made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight. One pack year of tailor made cigarettes equates to 7300 cigarettes, or 7.3kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination.
49. The respondent conceded in paragraph 20 of the Respondent’s Statement of Facts and Contentions that Mr Creaney smoked in excess of 15 pack years before the clinical onset of chronic bronchitis and emphysema. However, in order for this application to succeed we would need to be reasonably satisfied that Mr Creaney’s smoking of 10 pack years of cigarettes, 73,000 cigarettes, prior to the clinical onset of his chronic bronchitis and emphysema was related to his defence service.
50. The issue as pointed out in paragraph 20 of the respondent’s Statement of Facts and Contentions was whether Mr Creaney’s smoking habit was defence caused. That only covers Mr Creaney’s “defence service” under the Act. It does not cover his earlier naval service.
51. In an undated report (T5, p19-20), Mr Creaney wrote that he started smoking on a regular basis in 1969, when he was smoking “5 per day”. He enlisted in the Navy on 22 November 1969. He wrote that he increased his smoking to 20 per day in 1973, due to “stress of service at sea”, and increased it further to 40 per day in 1980, again due to “stress of service at sea” and also “separation from spouse”.
52. In his further smoking report dated 25 September 2002, Mr Creaney wrote (T15, p66):
I wish to clarify my smoking questionnaire that I have previously filled in, in this questionnaire, I have stated that I started smoking in 1969, whilst this is true in that I started to smoke regularly at that time, I did smoke prior to my Naval Service, however, I could only be considered a social smoker, in that I would only smoke approximately one per day if any at all.
After I joined the Navy my smoking increased to approximately 5 per day in 1969, and then to about 10 per day in 1970. My smoking stayed this way until approximately 1973, when I was sent to sea, and was separated from my family, this caused both myself and my family stress, and my smoking increased to approximately 20 per day.
Again my smoking increased in 1980, when again I was sent to sea and separated from my family, my smoking increased to approximately 40 per day and has stayed that way since.
I declare the above to be a true and concise description of my smoking to the best of my memory, since prior to service until the present time.
53. At the hearing, Mr Creaney said that before joining the Navy he had bought one packet of cigarettes a week. He said he increased his level of smoking when he joined the Navy, so that he was smoking 15 to 20 a day when he joined HMAS Supply in early to mid 1974. He said he increased to 30 – 35 a day, due to missing his wife, who he married on 1 June 1974, and his first child Michelle, who was born on 21 December 1974. He said that he found sea time more arduous than shore postings, and added that everyone smoked in the mess.
54. Mr Creaney’s memory was a little confused as to dates. His record of service (R1) shows that he joined HMAS Supply on 5 November 1975.
55. In cross-examination, Mr Creaney said his smoking increased during recruit training because of the smoking breaks given by the instructor every half hour, and increased further each time he went to sea, due to him missing his family and to the ready availability of cigarettes. He said his drinking and smoking escalated when he was at sea, particularly because cigarettes at sea, when outside Australian waters, are duty free and cost only $1.00 a packet.
56. From Mr Creaney’s service record (R1) and the records of HMAS Sydney and HMAS Melbourne (R15), we find that Mr Creaney spent a considerable time at sea before his period of eligible defence service started on 7 December 1972. He was posted to HMAS Sydney from 10 March 1970 to 5 October 1970. During that period HMAS Sydney was on a training cruise off the Australian coast from 1April until 30 September. He was posted to HMAS Melbourne from 19 June 1972, he sailed to Pearl Harbour and the Subic exercise area from 17 August 1972 to 25 November 1972. That was before the start of his defence service.
57. Mr Rudge asked Mr Creaney why, if he increased his smoking when at sea due to stress and missing his family, he had applied for a sea posting in approximately September 1975, and readily accepted an offer of a sea posting to HMAS Supply in November 1975, even though it was “made quite clear” to him “that he did not have to accept this posting” (Defence Personnel documents, R3, p219). The Director of Sailors’ Postings in that Minute Paper wrote:
CREANEY was adamant that he wanted to take this posting and that he would have no personal problems etc to upset this. CREANEY was duly posted to SUPPLY.
58. Mr Creaney said he enjoyed sea postings overseas, but he did not like being away from his family so much. He also said he did not enjoy the office work he did when he had a land posting. We note that the Defence Personnel Documents (R3) include a letter written by Mr Creaney on 23 January 1976, seeking a free discharge from the Navy. He wrote (R3, p224):
Since becoming a Writer I have developed an increasing dislike for the tedious monotony of repetitious office work that are associated with my duties in the RAN. Apart from twelve months of my Naval career as a Writer, when I was employed in Personnel and Registry Offices, my employment has been in Navy Pay Offices. Even though it may appear that my discontentment may be alleviated by a change from my Pay Office duties I feel that it would only be short lived as it has been my experience that all office work is much the same.
Secondly in October 1975 whilst serving in HMAS Cerberus I was, I feel, tricked into revoking my elective discharge (due 5 March 76) under the pretence of having a pick of my most preferred ship in the fleet. Several days after my revocation Navy office telephoned me at Cerberus and confirmed that a list of available ships would be made available to me by telephone. Approximately three weeks later Navy Office again rang and gave me the list of ships, which is as follows: HMAS SUPPLY. Although I protested verbally at the time I found myself with no option but to join Supply.
With a free discharge I feel I would be more suited to my new employment. I would also feel more settled in my domestic life knowing that we would not have to move everytime I receive a new posting.
59. That letter is not consistent with Mr Creaney finding service at sea to be a source of stress. To the contrary, it shows that Mr Creaney applied for service at sea, as he said in evidence, because he did not enjoy office work, and found it boring. That is also suggested in a psychologist’s report (R3, p222-3), which refers to Mr Creaney’s boredom and dissatisfaction with the Navy. However, he made no claim at the hearing that he increased his smoking due to boredom, or to dissatisfaction with the Navy.
60. The medical records show that on 7 November 1985, Mr Creaney was referred to a Nicorette Clinic on account of his smoking (R2, p181). At that time, he said he was smoking 30 a day and had been smoking for 24 years (i.e. since he was 9 years old). A similar history is recorded on 23 October 1989 (R2, p251), when Mr Creaney was said to be smoking 35-40 a day with a history of smoking since 9 years of age.
61. The Linden Medical Centre Clinical notes include a report dated 16 March 1999 from Dr Strahan, a consultant physician, to whom Mr Creaney was referred for his right upper lobe caviating pneumonia. We note that Dr Strahan recorded (R6, p49):
He smokes 30 cigarettes daily, a habit he has practiced for 30 years.
62. That history does not indicate any increase in smoking habit due to Mr Creaney’s defence service. In contrast, the history he gave Dr Strahan as to alcohol intake did indicate “a much higher intake during Navy service, until ten years ago” (R6, p49).
relevant federal court decisions as to smoking
63. There are a number of Federal Court decisions which have looked at the issue of whether a veterans’ smoking habit is war or defence-caused. They were not referred to at the hearing.
64. In Repatriation Commission v Tuite (1993) 17 AAR 158 the Full Court of the Federal Court found that the Tribunal had not been in error in finding that Mr Tuite’s smoking habit was attributable to his eligible service. Davies J said at 160:
If the circumstances of eligible war service provide an operative cause contributing to the serviceman’s injury or disease, it matters not that the relevant circumstances, such as peer pressure to smoke, could be found elsewhere than in camp life. The question in each case, and it is a question of fact for the administrative decision-maker, is whether the eligible war service contributed causally to the injury or disease.
65. Burchett and Einfeld JJ said at 163:
The tribunal found that the respondent, at the age of 24, had not smoked before going into camp in the army, but by the end of his period in camp was smoking about 20 cigarettes a day. The tribunal noted that it was not sufficient simply to find a temporal connection; what was required was “something within the applicant’s military service which has caused him to start smoking'’. It accepted his evidence that he had not smoked before, “and that it was the circumstances whilst he was in camp that caused him to start to smoke'’. The tribunal added: “Some of those circumstances were that cigarettes were cheap, other people were smoking, and a certain degree of apprehension as regards his future in the military.'’ The tribunal pointed out that the respondent “was in a milieu totally different to that which he had experienced before his call-up'’. (It appears that he was actually a volunteer.)
We are unable to find anything suggestive of error in this reasoning. It was for the tribunal to decide whether it accepted the evidence of the respondent. Nothing seems to have been put before it to contradict that evidence, nor was the respondent seriously challenged in cross examination. Apart from the matters specifically mentioned in the tribunal’s reasons, there were indeed other things adduced in evidence which tended to the same conclusion. The boredom of life in camp clearly emerges from the respondent’s account. It is true that not everything which occurs while a man is in camp is attributable to his war service. But here the circumstances and incidents of camp life were plainly capable of having a causal influence upon the respondent’s decision to take up smoking, and upon his continuance in the habit until the inevitable onset of nicotinic addiction. It was open to the tribunal to find the circumstances persuasive. If, in the case of a particular person, one of the inevitable concomitants of war service is camp life, it must be open to the tribunal to conclude that a consequence (in the sense explained in Repatriation Commission v Law) of camp life is a consequence of war service. In this case, the tribunal has done so.
66. The distinctions between that matter and this are, first, that Mr Tuite had been a non-smoker before joining the Army, and, secondly, that once he joined the Army, “he was in a milieu totally different to that he had experienced before his call up” (p.163). In that matter, the whole of Mr Tuite’s military service was relevant service.
67. In this matter, it is only Mr Creaney’s defence service after 7 December 1972 which is relevant. Service before that date is not relevant in establishing Mr Creaney’s claim. Mr Creaney was not a non-smoker on enlistment. He was a light smoker of many years standing when he joined the Navy in 1969. Nor did the start of his relevant defence service did place him “a milieu totally different to that he had experienced before”. During his naval training and before the start of his defence service on 7 December 1972, he had increased his smoking habit, and he had already been to sea on HMAS Sydney and HMAS Melbourne, prior to 7 December 1972.
68. Another relevant decision is that of Lockhart J in Repatriation Commission v Edwards (1993) No. G250 of 1993 FED No. 612, delivered on 3 September 1993. It was relied on by the VRB as authority that relevant smoking must have more than a temporal connection with service. In that matter, the Administrative Appeals Tribunal (“AAT”) had held that Mr Edward’s death was war-caused because it arose out of or was attributable to his heavy smoking habit, which was attributable to his war service. Mr Edwards, like Mr Creaney, did not have operational service. There was evidence that Mr Edwards had never smoked before he joined the Army at age 32 and that he had learned to smoke in the Army “because there was nothing else to do. I was bored”. His claim was accepted by the AAT.
69. Lockhart J dismissed the Commission’s appeal. He said at paragraphs 25 and 28:
Considerable care must be exercised by the Tribunal when considering a case such as the present where the veteran commenced smoking during war service, but was not in a theatre of war. His war service was performed in Australia primarily in relation to control of transport pools and smoking was taken up because of boredom. Plainly on the facts of this case the Tribunal was justified in concluding that there was a temporal connection between the veteran commencing smoking and his war service; the war service provided the setting in which the veteran began to smoke.
Although the evidence in this case before the Tribunal in support of its conclusion that the veteran's smoking habit arose out of or was attributable to his war service is rather meagre; nevertheless the evidence of Mr Sheel in particular and to a lesser extent the evidence of Mrs Edwards was accepted by the Tribunal as sufficient to support its finding that it was reasonably satisfied of the requisite causal link between the veteran's smoking and his war service. Provided there is evidence to support this finding it is for the Tribunal to determine the evidence which it accepts as it is the judge of the facts. This is not a case where there was no evidence upon which the Tribunal could reasonably conclude that there was the requisite link between war service of the veteran and his subsequent death. Fragile though the evidence may be, it has not been established to my satisfaction that the Tribunal erred in its conclusion.
70. The issue was considered again more recently by Emmett J in Kattenberg v Repatriation Commission (2002) 73 ALD 265. We are surprised that this decision was not relied on by Mr De Marchi. Mr Kattenberg served in the Navy but he had operational service, which meant that the more beneficial reasonable hypothesis standard of proof applied to him. His Honour explained the proper approach to the question whether the smoking of the requisite number of cigarettes was attributable to service. He emphasised that it was necessary for the Tribunal to consider whether the smoking of the requisite number of cigarettes was contributed to in a material degree by the relevant service, or whether it would not have occurred but for rendering the relevant service.
71. Emmett J pointed out that the term, “related to … service”, as used in many SoPs, is explained in s 196B(14) of the Act. His Honour said at paragraph 9:
Section 196B(14) explains what is meant by the requirement to set out the factors that must be related to service rendered by a person. It does that by enumerating a number of alternate meanings of the phrase “related to service”. That is to say, it clarifies the circumstances in which the necessary causal relationship between a factor and service will be present. Thus, a factor that causes or contributes to a disease is related to service rendered by a person, relevantly, if:
(b) it arose out of, or was attributable to, that service; or …
(d) it was contributed to in a material degree by, or was aggravated by, that service …
(f) in the case of a factor causing, or contributing to a disease — it would not have occurred …
(i) but for the rendering of that service by the person.
72. Mr Kattenberg served in the Navy for nine years, but had only three short periods of operational service, the longest of which was approximately 5 ½ weeks. His service was not relevant to his claim, unless it was operational service. The SoP required the smoking of 30 pack years of cigarettes “related to service”, prior to the clinical onset of intervetebral disc prolapse.
73. Emmett J summarised the evidence on the issue at paragraphs 21-25, as follows:
[21] The veteran contended, in effect, that, as a consequence of his operational service, his consumption of cigarettes increased and that, but for that increase, he would not have smoked 30 pack years of cigarettes before the clinical onset of intervertebral disc prolapse. Accordingly, so it was said, the smoking of that quantity of cigarettes was related to the veteran’s operational service.
[22] The veteran claimed that he first smoked after he joined the navy, when he smoked between five and ten cigarettes per day. In 1965, when he left for his first trip away, he increased his smoking habit to between 25 and 40 cigarettes per day. The reasons were a combination of peer pressure, cigarettes being much cheaper at sea, plus the need to be awake for many hours, which was helped by smoking. He said that he continues to smoke but that over the previous 10 years, he had reduced to between 15 and 20 per day.
[23] In the course of evidence before the tribunal, the veteran said that he had a few cigarettes in recruit school but that that was nothing. He started smoking properly when on HMAS Yarra in September 1964, smoking eight to ten cigarettes a day. That increased in April 1965 to 20 at first and then to 30 and 40 a day. The increase to 20 was gradual and the veteran asserted that it resulted from stress and pressure. He increased consumption to 40 because cigarettes were available and cheap. Increasing stress engendered a rise in consumption. He continued to smoke around 40 per day for the rest of his time in the navy, reducing when he left the navy in 1973 to 15 or 20 per day.
[24] The tribunal made a calculation that suggested that the veteran had smoked in excess of 219,000 cigarettes between September 1964 and November 1998. Accordingly, the tribunal was satisfied that the veteran had smoked at least 30 pack years of cigarettes before 8 December 1998, the date of clinical onset of his intervertebral disc prolapse. The question, however, was whether there was a reasonable hypothesis that the smoking of those 30 pack years of cigarettes was related to the operational service of the veteran within the meaning of SoP 130 of 1996.
[25] The tribunal formed the opinion that the material did not raise a reasonable hypothesis connecting the intervertebral disc prolapse with the circumstances of his operational service because only about 20 cigarettes a day during the period from June 1965–May 1973 could be taken into account. That totalled 58,300 cigarettes, which was well short of the 219,000 cigarettes that would make up 30 pack years of cigarette smoking.
74. His Honour concluded on that issue, at paragraphs 42 – 44:
[42] An SoP is brought into existence in order to comply with s 196B. The terms of SoP 130 of 1996 purport to comply with the requirements of s 196B(2) by referring to the requirement that “factors must be related to any relevant service”. That is the language used in s 196B(2)(e). It is appropriate to construe that language, when used in SoP 130 of 1996, as having the same meaning as is given to the same language in s 196B. That entails reading into the language of the SoP the language of s 196B(14).
[43] Thus, smoking at least 30 pack years of cigarettes will be related to relevant service rendered by a veteran (see [9] above), if the smoking of that quantity of cigarettes:
• arose out of, or was attributable to, that service;
• was contributed to in a material degree by, or was aggravated by, that service; or
• would not have occurred but for the rendering of that service by the person.
Accordingly, the requirement of SoP 130 of 1996 that the relevant factor be related to the veteran’s service will be satisfied if there is shown to be a causal or contributory relationship between the specified number of pack years and service, or if the factor would not have occurred but for the rendering of that service.
[44] The tribunal did not approach the construction of SoP 130 of 1996 in that way. The tribunal construed the SoP as requiring that the smoking of at least 30 pack years of cigarettes be wholly attributable to the service. The tribunal did not examine the possibility that the smoking of the requisite number of cigarettes was contributed to in a material degree by the service or that it would not have occurred but for the rendering of the service. Accordingly, it fell into error in its application of SoP 130 of 1996. The second ground of appeal is therefore made out.
75. His Honour’s comments in Kattenberg also apply to matters in which the reasonable satisfaction standard of proof applies. In this matter, it is clear that Mr Creaney’s smoking of the requisite number of cigarettes did not arise out of and was not attributable only to his defence service. He was already a smoker when he enlisted. For that reason, we cannot be satisfied that his smoking of the requisite number of cigarettes would not have occurred but for the rendering of defence service by Mr Creaney. The more difficult question is whether it was contributed to in a material degree, or aggravated by his defence service.
76. Mr Creaney’s defence service lasted for over 17 years. During that time, his pre-existing smoking habit probably increased from about 5 cigarettes a day on enlistment at age 17, to 35-40 cigarettes a day in 1989 (R2, pp181-251). We must decide whether we are reasonably satisfied that the defence service did contribute to or aggravate Mr Creaney’s smoking habit, or whether there was simply a temporal connection, with defence service providing the setting in which the smoking habit increased over the years.
findings as to chronic bronchitis and emphysema
77. We find:
(i)Mr Creaney started smoking when he was very young and still at school.
(ii)Mr Creaney was a regular smoker prior to his enlistment, smoking at least a packet of cigarettes a week.
(iii)The level of his smoking increased significantly during his Navy recruit training.
(iv)It increased further when he went to sea on HMAS Sydney, to which he was posted on 10 March 1970, and on HMAS Melbourne, to which he was posted on 19 June 1972 (R1).
(v)Both those vessels were at sea while Mr Creaney served on them and his service on HMAS Melbourne included service sailing overseas.
(vi)Mr Creaney enjoyed being at sea and actively sought another sea posting in 1975, and accepted the offer of the posting to HMAS Supply, even though he was told he was not obliged to do so (R3, pp219-220).
78. We find that the facts that Mr Creaney had already been to sea before the start of his defence service, and that he sought another sea posting not long after his marriage, and before his daughter was 12 months old, contradict his evidence that his defence service caused him to increase his level of smoking due to “stress of service at sea” and “separation from his family”. Mr Creaney did not emphasise the issue as to smoking more because cigarettes were cheaper when sailing outside Australian waters. Nor did he give evidence as to when he sailed outside Australian waters. In any event, we consider from the authorities that something more is required to provide the requisite connection with defence service, than simply sometimes smoking more because cigarettes were cheaper when sailing outside Australian waters. On the evidence, we are not satisfied on the balance of probabilities that there was more than a temporal connection between Mr Creaney’s defence service and the increase in his smoking habit during his defence service.
79. We are however concerned that a close perusal of the Defence Personnel Documents (R3), especially the psychologist’s report at pp 222-3, does suggest that there may have been other reasons like boredom and dissatisfaction with his work in the Navy which could have influenced Mr Creaney’s smoking habit. We have considered whether this is a matter like Re Landells and Repatriation Commission [2005] AATA 85 where, applying what was said by the Federal Court in Grant v Repatriation Commission (1999) 57 ALD 1 at 6 [17-18], the Tribunal should put to the parties for their consideration a “case” not articulated by the applicant but which is suggested by some of the documents in R3.
80. We have decided that this is not a suitable matter in which to adopt such a course. The case put for Mr Creaney at the hearing relied on service at sea as increasing his smoking due to “stress of service at sea”. That is quite a different case to the suggestion that Mr Creaney might have smoked more because of boredom and dissatisfaction with Navy life in shore postings.
81. We note that in Hill v Repatriation Commission [2005] FCAFC 23, the Full Court said at paragraphs 103-4:
It is one thing to say that a tribunal must consider any inferences that are reasonably open on the material before it. It is altogether another to say that a tribunal must consider every conceivable permutation of the facts, and engage in speculation and conjecture as to possible hypotheses. The former is a course that Deledio not only permits but requires. The latter has no place under the VE Act.
The question that must be considered at this stage is whether the AAT was required to consider an hypothesis that was said to be available on the material before it even though it had not been expressly raised, and actually required findings which ran counter to the applicant’s case.
82. In this matter, as in Hill, a finding that Mr Creaney smoked more due to boredom and dissatisfaction with Navy life would require findings which run counter to the case Mr Creaney ran at the hearing. The evidence which we heard does not raise a case for Mr Creaney on the basis that he smoked more because of boredom and dissatisfaction with shore postings. There may be such a case to be raised, but it was not raised before us.
83. On the evidence before us, we do not find that Mr Creaney’s chronic bronchitis and emphysema are defence-caused diseases under the Act.
ASSESSMENT OF PENSION
pension at the special or intermediate rate
84. On 12 May 2003, the Commission accepted osteoarthrosis of the right shoulder as defence-caused, with effect from 10 January 2003. Since then, Mr Creaney has been in receipt of pension at 80% of the general rate under s 22 of the Act (A5) in respect of his accepted conditions of osteoarthrosis of both knees and of the right shoulder, and fractured right clavicle. The delegate of the Commission rejected the claim for pension at the special or intermediate rate because of his cervical spondylosis, which was not accepted as being defence-caused, on his capacity to work. The delegate stated:
I note that cervical spondylosis, a non-accepted condition, would also have a significant impact on your ability to undertake remunerative employment.
85. We have now decided that cervical spondylosis is a defence-caused disease, but, at this hearing, Mr Rudge submitted that not only the cervical spondylosis but also chronic bronchitis or emphysema contributed to Mr Creaney’s incapacity to work. Mr Rudge submitted in paragraph 25 of the Respondent’s Statement of Facts and Contentions:
The non-accepted disabilities chronic bronchitis, emphysema, effects of past tuberculosis infection, cervical spondylosis and associated tension headaches prevent the applicant from working more than eight hours per week. The respondent submits that the applicant would not satisfy the alone test in s 24(1)(c) of the Act without the acceptance of these conditions. Also relevant would be the lack of employment opportunities in the Charlton area.
86. Mr Creaney said in his statement (A1) at paragraphs 6 – 10:
6.While the pain in my right shoulder improved somewhat over time. The severity of the pain in my neck increased. I also experiencing dizziness and numbness in my right hand. The pain in the neck continued to increase and became a real problem in the early 1980’s when I eventually reported it. The headaches started around 1998.
7.I ceased work as an electrical fitter, repairing power tools, as a result of constant and chronic pain in my neck, right shoulder and headaches.
8.I enjoyed my work and would have continued to work to retirement age, but for the debilitating effect of these disabilities.
9.I ceased work completely on 14 December 2001, and have not worked since.
10.I have lost remuneration as a result of my inability to work.
87. Section 24 of the Act, which provides for special rate of pensions, provides, so far as relevant:
(1) This section applies to a veteran if:
…
(a) either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
…
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
…
88. Section 23 of the Act is, so far as relevant, similar to s 24, except that paragraph (1)(b) reads:
(b) the veteran's incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and
…
89. The only aspect of ss 23 and 24 of the Act which is in contention is the word “alone”, in ss 23(1)(c) and 24(1)(c).
90. Mr Creaney said that his neck and shoulder problems were the reason he gave up work. He explained that for 80% of the day he usually feels as though he has a sack of potatoes on his shoulders and a hand over the back of his neck and scalp and forehead. He said the pain across his shoulders and pressure on his neck and head and forehead interfered with his concentration at work. He also took anti-inflammatories for his pain, which perhaps also contributed to his lack of concentration.
91. Mr Creaney said that due to his poor concentration, he chopped the tip off his left index finger and nearly put his hand in an electric saw while at work. Those incidents made him realise that he could not safely go on working. He stopped on 14 December 2001.
92. Mr Creaney described an incident some 6 – 8 months before his retirement when he had an episode of tingling down one side, and his tongue and mouth became numb. The incident was diagnosed as a transient ischaemic accident (“TIA”). He said he had a brain scan but nothing was shown. He said since that incident his trouble turning his neck had become more severe.
93. Mr Creaney denied that his breathing problems played a part in his decision to stop work. He said they were minor at that time, and had only become really bad in 2004. He said if he did not have his neck and shoulder problems he would still be working.
94. Mr Rudge referred Mr Creaney to his claim form (T5, p14), which was completed and signed by him on 15 December 2001. The description of the breathing difficulties in that form is not consistent with Mr Creaney’s evidence at the hearing. The first condition which he claimed should be accepted as war-caused was “osteoarthritis neck”. The second was “emphysema”. Mr Creaney wrote in regard to that condition:
Get out of breath with very little exertion. Unable to perform any task without getting out of breath and needing a rest. Coughing up flem. [sic]
95. Mr Creaney answered “yes” to the question, “have the disabilities you are now claiming affected your employment or your ability to seek employment at any time?”. The details he provided were (T5, p16):
Lack of energy. Unable to concentrate or think. Continuous headache and dizziness. Get out of breath just talking sometimes. Unable to perform any task without getting out of breath and worn out. Can’t bend without difficulty most times. Coughing up flem all the time.
96. Dr Giddall in that claim form wrote that Mr Creaney was diagnosed with emphysema by Dr Strahan, a physician. The clinical records of the Linden Medical Centre (R6, p49) contain Dr Strahan’s report of 16 March 1999 making that diagnosis.
97. In his employment questionnaire completed on 7 February 2002 (T6, p26), Mr Creaney included “severe lack of breath” as one of the factors preventing him being employed. He listed (T6, p26):
Dizzy spells. Unable to think and concentrate. Severe lack of breath and energy. Constant headache and pain in neck and back of the head.
98. Professor Pain, who is a respiratory physician provided a report dated 12 February 2004 (A2) and gave evidence by telephone.Professor Pain had not examined Mr Creaney. He wrote a short report after reading the reports of Dr Gilligan (R11) and Dr Campagnaro (T10, p47) giving details of a pulmonary function test on 26 April 2002. Dr Campagnaro interpreted the results as follows:
Mild obstruction. Significant acute bronchodilator response. Gas transfer is moderately reduced. Lung volumes suggest a degree of gas trapping. Consistent with mild to moderate CAD.
99. Professor Pain reported:
1.In assessing the severity of the lung condition, I am relying on the reports from Dr. Campagnaro.
2.Mr Creaney apparently has a chronic cough productive of yellow sputum which is occasionally bloodstained. He also complains of mild exertional breathlessness but can cope with normal daily activities.
3.The spirometric lung function tests show a normal vital capacity and mild reduction in FV1 indicating some mild airflow obstruction. There was no change following bronchodilator. Dr Campagnaro refers to a reduction in gas transfer (consistent with some emphysema) but there is no result of this test in the lung function report.
4.The thoracic CT apparently shows some diffuse cystic changes consistent with emphysema.
5.I conclude that Mr Creaney has mild chronic airflow limitation (chronic bronchitis and emphysema) presumably due to his smoking habits. He does not have significant fibrotic scarring following his possible tuberculosis infection since his vital capacity is normal.
6.The impairment of lung function is mild and would not preclude him from working as an electrician. He would become breathless on attempting heavy lifting and he should avoid exposure to irritating fumes as well as ceasing to smoke cigarettes.
I do not think there is any need for me to examine Mr Creaney. [emphasis added]
100. We are puzzled by the statement made by Professor Pain in paragraph 3 that, “there was no change following bronchodilator”. That seems to be contradicted by Dr Campagnaro’s statement, “significant acute bronchodilator response”. That issue was not clarified in Professor Pain’s evidence. He may have overlooked that aspect of Dr Campagnaro’s report.
101. Professor Pain did say that if he had the gas transfer results he would be able to give a better assessment of the severity of Mr Creaney’s emphysema and its effect on work capacity.
102. When Mr Rudge referred Professor Pain to Mr Creaney’s statements in his claim (T5, pp14 and 16) and his employment questionnaire (T6, p26), all quoted above, Professor Pain said that it was quite possible that Mr Creaney’s incapacity due to emphysema is worse than his lung function tests indicate.
103. Mr Rudge also referred Professor Pain to Dr Silcock’s report of 24 September 2003 (R12), Dr Silcock wrote, as to her physical examination of Mr Creaney on 7 August 2003:
I noted that Mr Creaney was short of breath with even relatively minor exertion, such as undressing.
104. In her opinion, Dr Silcock wrote that she did not believe that Mr Creaney’s accepted osteoarthritis of both knees and of his right shoulder prevent him from undertaking work for more than eight or twenty hours a week. In answer to a question as to whether other disabilities prevent him working more than eight hours a week, she wrote (R12, p4):
I believe that Mr Creaney has a number of other disabilities that prevent him from working for more than eight hours per week.
In particular he has quite moderately severe Chronic Obstructive Airways Disease that causes him to be short of breath with even minor exertion. He also has difficulty with concentration, and while he has not been diagnosed as having what appears to have been a Transient Ischaemic Attack, I believe that this needs further investigation, as it is possible he is having a mild form of epileptic seizures. The absences I noted, accompanied by nystagmus, would suggest a problem like this.
105.Dr Silcock answered a further question of a similar nature:
I believe Mr Creaney’s disabilities that prevent him from working more than eight hours or more than 20 hours per week are as follows:
·Osteoarthritis of the right shoulder
·Cervical spondylosis
·Chronic bronchitis and emphysema
·As yet unspecified possible neurological condition causing difficulty with concentration
106.Dr Silcock concluded:
I do not believe that Mr Creaney is fit to undertake any remunerative work.
107. The respondent also tendered reports from medical witnesses who had examined Mr Creaney, but who did not give evidence. They too expressed the opinion that Mr Creaney’s chest problems contributed to his incapacity to work. Dr Grinwald, in his report of 15 July 2003 (R10) wrote that in his opinion Mr Creaney’s cervical spondylosis and associated headaches did not prevent him undertaking remunerative work for more than eight hours or more than 20 hours per week. He added (R10, p7):
Other medical conditions are present, including osteoarthritis of his right shoulder and both knees and chronic bronchitis and emphysema. I have not made a detailed assessment of his other conditions, but these appear likely to prevent him from working for more than eight hours per week in suitable remunerative work.
108. Dr Gilligan, in his report of 24 June 2003 (R11), wrote that Mr Creaney’s headaches were due to chronic cervical pain from the radiologically proven spondylosis at C3-4. He wrote that they do prevent Mr Creaney undertaking remunerative work for more than 8 and also for more than 20 hours a week. He also wrote in point 7 of his opinion:
There appear to be other conditions which prevent him from undertaking remunerative work for more than eight or more than twenty hours per week and these relate to his chest and knees.
findings as to assessment of pension
109. Mr Creaney’s description of the effect of the emphysema in his claim form and employment questionnaire which he completed in January and February 2002, shortly after ceasing work in December 2001 contradicts his evidence that his breathing problems did not play a part in his decision to stop work and that if he did not have his neck and shoulder problems he would still be working.
110. We note that the emphysema was diagnosed in March 1999. We consider that Mr Creaney’s statements in his claim form and employment questionnaire are more reliable than his evidence at the hearing.
111. There are gaps in the medical evidence as to the role Mr Creaney’s chronic bronchitis and emphysema played as at 14 December 2001, in relation to his ability to engage in remunerative work. Professor Pain did not examine Mr Creaney and did not have full details as to the gas transfer test results. Dr Grinwald and Dr Gilligan did not fully address the role of the chronic bronchitis and emphysema and did not give evidence, so they were not cross-examined. Dr Silcock was the only medical witness to examine Mr Creaney and give evidence. She considered that, as at August 2003, he had quite moderately severe chronic obstructive airway disease, which caused him to be short of breath with even minor exertion, but that evidence relates to a period after Mr Creaney ceased work.
112. Mr Rudge referred us to relevant passages in two Federal Court decisions. In Repatriation Commission v Hendy (2002) 76 ALD 47, Whitlam, Emmett & Stone JJ. said at par. 37:
The language of s 24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the veteran from working. The decision-maker is required to take into account any factor that plays a part or contributes to a veteran’s being prevented from continuing to engage in remunerative work.
113. In Forbes v Repatriation Commission (2000} 58 ALD 394, Nicholson J. said at 401:
[39] The applicant’s case requires the tribunal to not have regard to the non war-caused condition where there is a finding that it alone did not stop the applicant from undertaking work. In my view, that course is not open to the tribunal in the light of the words used in the first limb of s 24(1)(c). The question whether the veteran by reason of the war-caused condition “alone” has been prevented from continuing to undertake remunerative work can only be answered by reference to all the circumstances in which the war-caused condition exists. The fact that a non war-caused condition is not alone causative of such preventative effect does not prevent it having that effect in combination with the war-caused condition.
[40] … [I]t is possible that the war-caused condition will be by far and away the more dominant of the causes of the preventative effect where there is also present a non war-caused condition having such effect in combination. The result is that the presence of the latter will deny to a veteran qualification for the special rate of pension.
114. We find that Mr Creaney’s breathing problems which made him state that he suffered “severe lack of breath” “just talking sometimes” (T6, p26) and that he was “unable to perform any task without getting out of breath and worn out” (T5, p16), did play a part in preventing him continuing to undertake the remunerative work he was doing up to 14 December 2001.
115. We find that Mr Creaney was not prevented from continuing to undertake his remunerative work as an electrical fitter by reason of incapacity from defence-caused injury or disease alone. We find that Mr Creaney is not entitled to pension at either the intermediate rate under s 23 of the Act or the special rate under s 24 of the Act.
assessment of pension at the general rate under s 22 of the act
116. As we have found that Mr Creaney’s cervical spondylosis is a defence-caused disease, it is appropriate to reassess his rate of pension under s 22 of the Act.
117. Mr De Marchi accepted the impairment ratings given by the Commission in respect of osteoarthrosis of the knees and right shoulder, in its decision of 12 May 2003. Those assessments were made on Table 3 of the Guide to the Assessment of Rates of Veterans’ Pensions (“GARP”). They were:
(i) osteoarthrosis of the knees 20 points
(ii) osteoarthrosis of the right shoulder 20 points
118. Mr De Marchi submitted that the Tribunal should accept the ratings of Dr Grinwald for cervical spondylosis, namely:
(i)5 points on Table 3.3.1 for loss of about one quarter normal range of movement; and
(ii)5 points on Table 3.4.1 for resting joint pain.
119. Mr De Marchi also accepted Dr Gilligan’s rating of 2 points for headaches, on Table 15.4 of intermittent impairment.
120. Mr De Marchi did not submit that the rating of 5 impairment points for the united fracture of the clavicle allowed by the Commission was provided for in GARP. We do not see how it is justified. Table 3 does not provide any rating for united fractures which cause no impairment.
121. We accept Mr De Marchi’s submission as to the ratings for cervical spondylosis and headaches contained in the reports of the respondent’s medical witnesses, Dr Grinwald and Dr Gilligan. Accordingly we find the appropriate ratings for Mr Creaney’s conditions are:
a. Osteoarthrosis affecting both knees, accepted by VRB with effect from 7 October 2001.
20
b. Osteoarthrosis of the Right Shoulder, accepted by the Commission with effect from 10 January 2003.
20
c. Cervical spondylosis, Loss of Musculoskeletal Function, accepted by this decision with effect from 7 October 2001.
5
d. Cervical spondylosis, Resting Joint Pain, accepted by this decision with effect from 7 October 2001.
5
e. Tension headaches (Intermittent Impairment), accepted by this decision with effect from 7 October 2001.
2
122. The combined impairment rating on Table 18 needs to be worked out as at 7 October 2001 and 10 January 2003.
123. As at 7 October 2001, the accepted conditions are now osteoarthrosis of both knees and cervical spondylosis. The combined impairment rating on Table 18 is 20 + 5 + 5 + 2 = 30. There was no evidence at the hearing as to the appropriate lifestyle rating, but Mr Creaney lodged a lifestyle rating on 7 February 2002 (T7, p27). He calculated his lifestyle rating as 3. Accepting that rating, the combined impairment rating of 30 and a lifestyle rating of 3, convert to an incapacity of 60, so that Mr Creaney is entitled to pension at 60% of the general rate from 7 October 2001.
124. The accepted conditions as at 10 January 2003 include the osteoarthrosis of the right shoulder, which has an impairment rating of 20. The combined impairment rating on Table 18 as at 10 January 2003 is 20 + 20 + 5 + 5 + 2 = 45. Using the higher lifestyle rating of 4, which was accepted by the Commission on 12 May 2003, the degree of incapacity is 80. That means that the percentage of general rate of pension payable to Mr Creaney remains at 80%.
conclusion
125. The decision under review will be varied to provide:
(i)Cervical spondylosis is a war-caused disease, with effect from 7 October 2001;
(ii)Mr Creaney is entitled to pension at 60% of the general rate from 7 October 2001; and
(iii)Mr Creaney is entitled to pension at 80% of the general rate from 10 January 2003.
I certify that the 125 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Joan Dwyer and Associate Professor John Maynard, Member.
Signed: Josephine McKay
AssociateDate/s of Hearing 27 August 2004
Date of Decision 3 March 2005
Solicitor for the Applicant Mr De Marchi
Advocate for the Respondent Mr Rudge
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10
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