DANIEL AUGUSTINE CONNOLLY and REPATRIATION COMMISSION

Case [2012] AATA 122

[2012] AATA 122 

Division VETERANS' APPEALS DIVISION

File Number(s)

2009/4934 and 2010/4751

Re

DANIEL AUGUSTINE CONNOLLY

APPLICANT

And

REPATRIATION COMMISSION

RESPONDENT

DECISION

Tribunal

The Hon R J Groom AO (Deputy President)
Date 28 February 2012
Place Hobart

Decision Summary

The Tribunal:

(a)       Affirms the decision of the Repatriation Commission made on 8 February 2008 that cervical spondylosis suffered by the applicant is not defence caused.

(b)       Sets aside the decision of the VRB made on 4 October 2010 and in substitution decides that the applicant is entitled to a pension at 60% of the General Rate effective from 18 January 2007 and increased to 90% of the General Rate effective from 14 May 2009.

(c)       Affirms the decision of the VRB also made on 4 October 2010 that the applicant is not entitled to receive a pension at the Special Rate. 

[Sgd Hon R J Groom]

Deputy President

CATCHWORDS

VETERANS’ AFFAIRS – disability pension – eligible defence service - whether cervical spondylosis was defence service caused – connection with service raised on material – connection not upheld by SOP – decision affirmed – applicant’s General Rate of pension assessed at 90% - whether applicant entitled to pension at the “Special Rate” – application of “alone” test in section 24(1) of Veterans’ Entitlements Act 1986 – service and non-service related conditions together prevented applicant from continuing to undertake remunerative work – “alone” test not satisfied - not entitled to pension at the Special Rate

LEGISLATION

Veterans' Entitlements Act 1986, ss 24, 29, 70(5), 120, 175, 177

CASES

Repatriation Commission v Smith (1987) 15 FCR 327

Repatriation Commission v Deledio (1988) 83 FCR 82
Hardman v Repatriation Commission [2005] FCAFC 83
Harris v Repatriation Commission [2000] FCA 873
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Alexander (2002) 75 ALD 329

Sheehy v Repatriation Commission (1996) 137 ALR 223

REASONS FOR DECISION

The Hon R J Groom AO (Deputy President)

INTRODUCTION

  1. Mr Connolly has made separate applications to this Tribunal for reviews of two decisions made in response to his claim for a pension for incapacity caused by his defence service.  It was agreed that the two applications should be heard together.

  2. The Repatriation Commission decided on 8 February 2008 that the conditions of intervertebral disc prolapse at C2-3, C5-6 and C6-7 and cervical spondylosis were not defence caused and further that Mr Connolly’s entitlement to a pension was 60% of the General Rate to operate from and including 18 January 2007.

  3. Mr Connolly then applied to the Veterans’ Review Board (“VRB”) for a review of those decisions of the Commission.  On 24 September 2009 the VRB decided to affirm the Commission’s decision that the above conditions were not defence caused.  On 4 October 2010 the VRB further decided that the Commission’s decision on the appropriate rate of pension should be set aside and substituted with the decision that the rate be 60% of the General Rate with effect from 18 January 2007 and 80% of the General Rate…

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DANIEL AUGUSTINE CONNOLLY and REPATRIATION COMMISSION [2012] AATA 122
Case
[2012] AATA 122
Decision Date

CaseChat Overview and Summary

In the case of Connolly v Repatriation Commission, the applicant, Daniel Augustine Connolly, sought a disability pension on the basis of cervical spondylosis allegedly caused by his service in the Australian Army. The dispute involved the determination of whether the condition was caused by his military service, the percentage of disability pension he was entitled to, and whether he qualified for the Special Rate of pension. The case was heard by the Administrative Appeals Tribunal. The primary legal issues revolved around establishing the cause of the applicant's cervical spondylosis, the assessment of the percentage for the General Rate disability pension, and the qualification for the Special Rate pension under the Veterans’ Entitlements Act 1986.

The Tribunal examined the evidence presented to determine if the applicant's cervical spondylosis was caused by his military service, particularly an accident that occurred in 1988. The lack of immediate medical attention or treatment following the accident was considered, along with the absence of medical records indicating a significant neck injury at the time. The Tribunal concluded that there was insufficient evidence to establish that the applicant's cervical spondylosis was service-related. Regarding the pension assessment, the Tribunal found that the applicant's incapacity was due to both service-related and non-service-related conditions, which together prevented him from continuing to undertake remunerative work. However, since the service-related condition alone did not prevent him from working, the applicant did not qualify for the Special Rate pension.

The Tribunal's reasoning was grounded in the lack of substantial evidence connecting the applicant's cervical spondylosis to his military service, particularly the 1988 accident. The absence of immediate medical intervention or records supporting a significant neck injury post-accident played a crucial role in the decision. For the pension assessment, the Tribunal applied the "alone" test, concluding that the service-related condition did not independently prevent the applicant from working. Therefore, the Tribunal affirmed the decision to grant the applicant a 90% General Rate disability pension but denied the entitlement to the Special Rate pension.

Orders

Orders of the court

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Background

Background to the litigation

The principal issues to be decided by this Tribunal are as follows:(a)Is the applicant suffering from cervical spondylosis, and, if so, is that condition defence caused?(b)What percentage General Rate disability pension is the applicant entitled to receive?(c)Is the applicant entitled to receive a disability pension at the Special Rate?BACKGROUND FACTS Mr Connolly was born on 12 November 1945 and is therefore now 66 years of age. He rendered continuous full-time service in the Australian Army from 2 May 1968 until 6 November 1988. It is not in dispute that the whole of Mr Connolly’s service in the army is “defence service” within the meaning of that term in section 68 of the Act. For most of his army service Mr Connolly was attached to 127 Signals Squadron as a supervising technician. He was involved in the maintenance, repair and upgrading of the army’s telecommunications systems. The work involved manually handling and lifting heavy modules and equipment. After leaving the army Mr Connolly worked as a technical officer with Telecom in Melbourne. That work involved installing and maintaining communication and navigation systems throughout Victoria. After some five years with Telecom Mr Connolly was experiencing some neck and lower back problems. These made it difficult for him to meet the demands of his work. He left Telecom in June 1994 after accepting an offer of voluntary redundancy. Between June 1994 and early 1997 Mr Connolly carried out renovation work on properties he had purchased in Victoria and Tasmania. The intention was to eventually sell the properties and then to use any surplus to establish his own contracting company. This intention was not realised and in March 1997 he relocated to Tasmania. He briefly undertook some casual contracting work for Y & B Homes in Tasmania however that building firm failed in 1998. He did not receive any payment for that work. Mr Connolly says he has not been involved in paid work since 1994. The only claimed cause of Mr Connolly’s cervical spondylosis are injuries sustained in a motor vehicle which occurred in the course of his defence service in Tasmania on 25 February 1988. The accident occurred when Mr Connolly was driving a motor vehicle from Hobart to Devonport in the course of his duties in the army. At the time of the accident he was driving a vehicle in a northerly direction on the Midlands Highway near Conara. The vehicle collided with a school mini bus which was travelling in the opposite direction. The cause is said to have been reckless driving by the driver of a third vehicle which suddenly moved out to overtake the mini bus causing Mr Connolly to pull onto the gravel verge. He then lost control of the vehicle. Other army personnel were also travelling in the vehicle with Mr Connolly. The collision occurred at high speed. Both vehicles were badly damaged. The only person requiring hospitalisation was the driver of the school mini bus. Police and emergency services attended the scene of the accident. The highway remained closed for approximately an hour following the collision. No charges were laid against any driver involved.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal finds persuasive the definite view expressed by Dr Markov in oral evidence when he said:“If he had had a serious injury of the kind that would satisfy the definition of trauma to the cervical spine he would have had no choice but to seek medical attention, which would have required prescription of potent painkillers and anti-inflammatories. He would have most likely had physiotherapy. There was plenty of opportunity for him to have this. It’s clear that he didn’t, neither in the three weeks between Hobart and far north Queensland nor in the period after he returned to Melbourne from far north Queensland”. And then later:“If he had had a neck injury significant enough to meet that criterion of trauma, he would have been requiring physiotherapy and other treatments for his neck. It’s clear that he didn’t have them. It appears to me that he didn’t seek then, and this suggests to me that the injury to his neck at the time was of a minor kind”. (Transcript page 78)CONCLUSION Mr Connolly has sought to link his present cervical spondylosis to this one incident which occurred so many years ago. The Tribunal is particularly influenced by the lack of any medical records suggesting that he had a neck problem in the period immediately after the accident. Obviously if one is involved in a motor vehicle accident of the kind Mr Connolly experienced it is likely to cause some degree of soreness and stiffness. In the Tribunal’s view more is needed however than some pain and stiffness and a vague problem relating to head movements. There is no clear evidence of altered mobility of the cervical spine or an altered range of movements. There are no medical reports indicating loss of mobility or a loss in the range of movement. There is insufficient evidence to persuade the Tribunal on the balance of probabilities that the essential elements in the SOP definition of “trauma to the cervical spine” were present as required. It is emphasised by the Tribunal that the only event relied upon by the applicant to establish a sufficient causative link between the cervical spondylosis from which he undoubtedly suffers and his defence service is the vehicle accident which occurred some 24 years ago. Mr Connolly’s 20 year service in the army involved heavy lifting yet no other defence service events apart from the 1988 accident are relied upon as a cause of his cervical spondylosis. The Tribunal finds, on the balance of probabilities, that the SOP concerning cervical spondylosis does not uphold Mr Connolly’s contention that his cervical spondylosis is connected with his eligible defence service. WHAT GENERAL RATE OF DISABILITY PENSION IS THE APPLICANT ENTITLED TO RECEIVE? When assessing the extent of the incapacity of a pension claimant the provisions of “The Guide to the Assessment of Rates of Veterans’ Pensions” (“GARP”) are binding on the Tribunal. (See section 29 of the Act) It is agreed by the parties that the 5th Edition of GARP is to be applied in assessing Mr Connolly’s incapacity.

Ratio Decidendi

Legal Principle Established

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