Crookham and Repatriation Commission
[2001] AATA 507
•15 May 2001
DECISION AND REASONS FOR DECISION [2001] AATA 507
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/1295
VETERANS' APPEALS DIVISION )
Re DOUGLAS stewart CROOKHAM
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen Dr P D Lynch, Member
Date15 May 2001
PlaceSydney
ADMINISTRATIVE APPEALS TRIBUNAL ) No N2000/1295
)
VETERANS' APPEALS DIVISION )
Re: DOUGLAS STEWART CROOKHAM
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date 15 May 2001
Place Sydney
DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is SET ASIDE and the Tribunal substitutes in lieu thereof its decision, namely THAT:
1. The Applicant, DOUGLAS STEWART CROOKHAM, is entitled to pension for the war-caused disease of Lumbar Spondylosis as and from 13 June 1999; and
2. This matter is remitted to the Respondent so that it might assess the rate of pension to be paid for all war-caused diseases and injuries suffered by the Applicant.
(Sgd) M.D. ALLEN
.............................
Presiding Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Lumbar spondylosis. Whether injury to spinal cord as opposed to soft tissue injury. Effect of altered gait upon lumbar spondylosis.
Veterans' Entitlements Act 1986
Repatriation Commission v Deledio 83 FCR 82
Dixon v Repatriation Commission 29 AAR 235
Harris v Repatriation Commission [2000] fca 1687
REASONS FOR DECISION
Senior Member M D Allen
Dr P D Lynch, Member
At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.
I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen
Dr P D Lynch, Member
Signed: Kwai-Ling Wong
..................................................................................……………………………….Associate
Date of Hearing 15 May 2001
Date of Decision 15 May 2001
Counsel for Applicant Mr N DawsonRepresentative for Applicant R L Whyburn & Associates
Advocate for Respondent Ms P Hook, Department of Veterans' Affairs
DRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2000/1295
By SENIOR MEMBER ALLEN and DR Lynch, Member
CROOKHAM and REPATRIATION COMMISSION
SYDNEY, 15 MAY 2001MR ALLEN: In this matter, the applicant, pursuant to an application, lodged with the Tribunal on 5 May 2000, sought review for the decision of the respondent dated 16 September 1999 refusing his claim for lumbar spondylosis. The applicant had operational service as that term is defined in the Veterans' Entitlements Act 1986 as amended being the period during the second World War dated from 2 January 1942 to 11 June 1946. The consequence of that is that the standard of proof in this matter is that set forth in subsections (1) and (3) of section 120 of the Veterans' Entitlements Act.
Subsection (1) provides that the Tribunal shall determine that the disease is war caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. Subsection (3) however, provides that the Tribunal shall be so satisfied beyond reasonable doubt unless the material before it raises a reasonable hypothesis connecting the said disease with the circumstances of the particular service rendered by the applicant. Subsection (3) of section 120 has been further affected by section 120A which provides that a hypothesis shall not be reasonable unless it conforms with the so called Statement of Principles.
In this matter, the Statement of Principles concerned is Instrument 27 of 1999 entitled Lumbar Spondylosis. We would only mention as an aside that there is no question of any more favourable latter Statement of Principles. The manner in which the Statement of Principles regime affects the way in which the Tribunal must consider matters was set forth in a decision by the Full Court of the Federal Court in Repatriation Commission v Deledio 83 FCR 82. Page 97, the Court said the task of the Tribunal is as follows:
1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s196B(2) or (11). …
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©Auscript Pty Ltd 20013.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the 'template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service …. If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be 'reasonable' and the claim will fail.
4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
We would only mention that latter point that subsection (6) of section 120 provides that there is no onus of proof upon either party to these proceedings.
The other point to be acknowledged at all time is however the fact finding task is at stage 4 of the Deledio decision. In that regard we would refer to the decision of Wilcox J in Dixon v Repatriation Commission 29 AAR 235 where, as his honour pointed out, the question whether a decision made reaches a conclusion adverse to a claimant at the step 3 stage or the step 4 stage of the Deledio process is not a mere technicality.
As stated previously, the applicable Statement of Principles in this matter is Instrument 27 of 1999. In that instrument, the factors which must as a minium exist before it can be said that a reasonable hypothesis has been raised connecting lumbar spondylosis with the circumstances of the person's relevant service are inter alia said to be of the following:
5.(e) having a malalignment of the lumbar spine before the clinical onset of lumbar spondylosis; or
…
(h)suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis;
At the outset, when referring to malalignment, we would refer to the definition of that term in Gould Medical Dictionary, 4th edition, where malalignment is defined in the following terms as meaning improper
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©Auscript Pty Ltd 2001alignment. Factor 5(h) refers to trauma to the lumbar spine and the definition of trauma to the lumbar spine is set out in the instrument. In part it says:
… a discrete injury to the lumbar spine that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain and tenderness, and either altered mobility or range of movement of the lumbar spine. These acute symptoms and signs must last for a period of at least seven days following their onset save for where medical intervention for the trauma to the lumbar spine has occurred…
Of that particular definition, it was pointed out by the Full Court of the Federal Court in Harris v Repatriation Commission [2000] fca 1687 that the definition puts the position beyond doubt. The reference there being to previous definitions regarding which there had been considerable debate. However, it now seems that the definition in Instrument 27 of 1999 is clear and speaks for itself. That definition of course still refers to acute symptoms. It was said in Harris at first instance in a passage which has been adopted in later decisions, that of the symptoms being acute that they be sharp or act keenly on the senses and a reference to the Shorter Oxford English Dictionary definition of acute.
It was further then said in Arnott v Repatriation Commission [2001] FCA 262, the meaning of acute symptoms or signs in the sense of being sharp acting keenly on the senses or being significant manifestations and referring to the Macquarie Dictionary and the Court there went on to say:
Thus, although the difference in degree may not be substantial, an "acute" pain does not necessarily equate with a "severe" pain.
It is unfortunate of course that the Court did not have further and better regard to the medical meanings of the word "acute". For example, in Goulds Medical Dictionary supra, acute is defined in the following terms:
Sharp, severe, having a rapid onset, a short course and pronounced symptoms.
As an aside, we would simply refer to the following passage which occurred in a workers compensation case when Dr neil McGill, a well respected and well known rheumatologist was being cross-examined, having been called for the Commonwealth. He was asked regarding acute and as he said:
Acute, means a brief duration.
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©Auscript Pty Ltd 2001He further added to the cross-examiner:
Acute doesn't mean sever, I'm sure you know that. I don't want to correct you, an acute pain is a very short duration pain.
He further added later:
Acute means it comes on quickly, it doesn't refer to severity.
Now I put those passages in on the simple bases to refer to the fact that there is still, it seems to us, some room for differentiation between what the Federal Court regards as the meaning of acute and what the medical profession regard as acute. It may need to be looked at again because the Statements of Principles are altered by the Repatriation Medical Authority and it seems to us, should be understood in the language understood by medical practitioners.
Also in this matter, it was pointed out to us that there had been a change and a deliberate change, in the wording adopted by the Repatriation Medical Authority relating to trauma. The term in Instrument 27 of 1999 is:
Suffering a trauma to the lumbar spine.
Now, in an earlier instrument where the amendment occurred, the explanatory notes said:
The Authority recognises that the previous definition of "trauma to the relevant joint" did not clearly reflect the available epidemiological and biological literature on the subject of significant joint trauma and its biological effects. The new definition reflects the fact that initial internal damage to the joint or disc, and not only overlying soft tissue injury is needed to increase the risk of lumbar spondylosis.
In other words, it seems to us that the Repatriation Medical Authority, in an amendment which is carried through to the current instrument, was seeking to draw a distinct differentiation to injury to the lumbar spine as opposed to soft tissue injury. That being so, we must therefore consider these particular principles in light of the applicant's evidence. The case in question was of relatively short compass. The applicant, whilst serving with the Australian Electrical and Mechanical Engineers in a light aid detachment at Geraldton was involved in a motorbike accident. In his evidence, he said that the bike was going around 20 to 25 miles per hour. Because of a malfunction, to the wheels of the sidecar, it went down into
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a ditch beside the road and struck a fence, he was thrown off over the bike and received not only bruising to his hips, but back pain. That back pain in the hip area continued for about a month, it restricted his activities. He did what he could do of normal duties.He immediately after the accident, reported it to the Regimental Aid Post and was simply told that as it would appear that there were no bones broken, he was to take it easy. Although he said he returned to duties immediately, he did have a lie down for a while. He found that showers helped, hot showers. And as we said, pain and stiffness continued for about a month. In his report of 16 November 2000, exhibit A2, orthopaedic surgeon, Mr Giblin says inter alia that:
It would be my view, that the motorbike accident, and the subsequent symptoms would be a reasonable causal initiating organic event, producing the soft tissue injury which has subsequently led on to the degenerative changes and symptoms of which he now complains.
Mr Giblin also says:
I note that he has bilateral foot arthritis which has caused an altered gait pattern.
This also, would be a significant contributing factor insofar that the altered biomechanics of his legs would have produced more strain on the supporting lumbar spinal muscles and thereby, transferred extra stress to his lumbar spine.
The particular conditions of osteoarthritis both feet is a condition which has been accepted by the respondent as being war caused. The applicant was also examined by Dr Lennon, orthopaedic surgeon. He, in the first page of his report dated 15 November 2000, said:
It is extremely doubtful that such is the case, however, it is possible that any abnormal gait pattern may aggravate prior spondylitic disease with the occurrent of back pain but certainly not the cause of his lumbar spondylosis.
We would only pause there to say that a factor 5(e) on the Statement of Principles does refer to a malalignment of the lumbar spine. Malalignment being defined in the said instrument:
… means the presence of significant displacement out of line resulting from the effect of underlying muscle weakness,
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©Auscript Pty Ltd 2001deformity of other joints, joint dysplasia or disparate leg length;
Dr Lennon concluded his report by stating that the applicant's lumbar spondylosis was:
… age related, degenerative in nature and not in any way related to his forefoot deformities or to his motorbike incident …
Now take into account the applicant's evidence and we would say at the outset that we found no reason to in any way doubt the applicant's evidence before us. That although Dr Giblin refers to soft tissue injury, having regard to the physical forces involved in the motorcycle accident and the duration of the applicant's pain, we cannot be satisfied that it was only muscle tissue injury that was involved. Furthermore, having regard to the definitions of malalignent and the report of Dr Giblin, it seems to us that malalignment resulting from the osteoarthritis of the feet is also an additional factor in causing the applicant's lumbar spondylosis.
So on that basis therefore, it seems to us, that on two counts, namely malalignment and also trauma to the lumbar spine, a reasonable hypothesis has been raised connecting the applicant's lumbar spondylosis with his service and there is nothing in the material before us which causes us to be satisfied beyond reasonable doubt that connection with service is properly made.
The decision under review will therefore be set aside and the Tribunal substitutes its decision that the applicant is entitled to pension for the war caused condition of lumbar spondylosis as and from 13 June 1999 and that this matter is remitted to the respondent in order that it might assess the rate of pension to be paid.
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