DANIEL AUGUSTINE CONNOLLY and REPATRIATION COMMISSION
[2012] AATA 122
•28 February 2012
[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 329Sheehy v Repatriation Commission (1996) 137 ALR 223
REASONS FOR DECISION
The Hon R J Groom AO (Deputy President)
INTRODUCTION
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.
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.
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 with effect from 23 October 2009. The VRB also decided that Mr Connolly was not entitled to a pension at the Special Rate.
Pursuant to section 175 of the Veterans’ Entitlements Act 1986 (“the Act”) the review before this Tribunal is of (a) the above affirmed decision of the Commission and (b) of the above VRB decision made in substitution for the Commission’s decision which it set aside.
At the hearing Mr Warren for the applicant said that the only additional defence related condition Mr Connolly was now pursuing was cervical spondylosis. (See transcript page 4)
THE ISSUES
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.
The question of whether the 1988 motor vehicle accident has a sufficient connection with the cervical spondylosis Mr Connolly now suffers will be fully considered later in these reasons.
It is not in issue in these proceedings that Mr Connolly has a number of previously accepted defence service caused disabilities. Those accepted disabilities are lumbar spondylosis, solar keratoses, tinnitus, sensorineural hearing loss and disfigurement and social impairment.
The Tribunal is therefore required to now decide whether Mr Connolly’s condition of cervical spondylosis is an additional defence service related impairment and then to proceed to assess the appropriate general rate of disability pension to which he is entitled. If that rate is 70% or above the Tribunal must further decide whether Mr Connolly is entitled to receive a disability pension at the Special Rate.
THE LEGISLATION
A person who has rendered defence service is eligible to receive a pension under Part IV of the Act if he or she suffers from an injury which was "defence caused". An injury is "defence caused" if it "arose out of or was attributable" to any defence service. It is sufficient if the injury was "contributed to in a material degree by or aggravated by" any defence service.
Section 70(5) of the Act relevantly provides as follows:
"For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence caused, an injury suffered by such a member shall be taken to be a defence caused injury or a disease contracted by such a member shall be taken to be a defence caused disease if:
(a) the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
(b) subject to subsection (8), the death, injury or disease, as the case may be, resulted from an accident that occurred while the member was travelling, during any defence service or peacekeeping service of the member but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place upon having ceased to perform duty; or
(c) the death is to be deemed by subsection (6) to be defence caused, the injury is to be deemed by subsection (7) to be a defence caused injury or the disease is to be deemed by subsection (7) to be a defence caused disease, as the case may be; or
(d) the injury or disease from which the member died, or is incapacitated:
(i) was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease; ..."
The standard of proof to be applied in a particular case varies according to the nature of the service rendered. For applicant's who have rendered "operational service", service in a "peacekeeping force" or service determined to be "hazardous service" there is a special reverse standard of "beyond reasonable doubt". However for those who rendered other "defence service" the standard of proof is "reasonable satisfaction" (see section 120(4) of the Act).
The "reasonable satisfaction" standard of proof has been held to mean the ordinary civil standard of proof or "on the balance of probabilities" (see Repatriation Commission v Smith (1987) 15 FCR 327).
Prior to 1994 many theories had been advanced to link a particular injury or disease to the person's defence service with little or no supporting medical/scientific evidence. To address that concern the Statement of Principles ("SOP") Scheme was introduced for claims lodged on or after the 1 June 1994. That Scheme requires that any alleged causal link between an injury or disease and the person's service must be supported by factors set out in the relevant SOP. Those factors are considered to be based on sound medical/scientific evidence as determined by the Repatriation Medical Authority. Section 120B(3) provides as follows:
"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".
IS THE APPLICANT SUFFERING FROM CERVICAL SPONDYLOSIS, AND, IF SO, IS THAT CONDITION DEFENCE CAUSED?
It is agreed that the relevant SOP for cervical spondylosis is No 34 of 2005.
There have been some amendments to that SOP but those amendments have no relevance in these proceedings.
The Tribunal is satisfied on the material before it that Mr Connolly is suffering from cervical spondylosis. The VRB decided that Mr Connolly was suffering from cervical spondylis. See also, for example, the diagnosis at page 5 of Dr Markov’s report of 18 March 2011. The central issue for determination however is whether that condition is defence service caused.
It is contended on Mr Connolly’s behalf that he suffered a trauma to the cervical spine in the 1988 motor vehicle accident which has resulted in his suffering cervical spondylosis.
The causal factor relied upon by Mr Connolly to link this condition to his defence service is expressed in the SOP in the following terms:
“6(f) having a trauma to the cervical spine within the twenty-five years before the clinical onset of cervical spondylosis;
…
“trauma to the cervical spine” means a discrete injury, including G force-induced injury, to the cervical spine that causes the development, within twenty-four 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 symptoms and signs must last for a period of at least ten days following their onset; save for where medical intervention for the trauma to the cervical spine has occurred and 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”.
It is not in doubt that a vehicle collision of the kind described by Mr Connolly did occur on 25 February 1988. It was a high speed collision on a major highway in which both vehicles were badly damaged. The vehicles spun out of control along the roadway. Fortunately Mr Connolly had his seat belt on at the time but nevertheless he suffered a violent sudden movement or series of movements during which, as Mr Connolly said in his oral evidence, “My head went backwards and forwards, side to side”. (Transcript page 12).
He further said, “Immediately after the accident, I was … sore all over, pains in the arm and shoulder and the right arm and shoulder, and pains in the neck”. (Transcript page 13)
After the accident Mr Connolly was driven to Campbell Town where he assisted police to complete a report on the accident. He later travelled to Hobart. He said he was then still, “stiff sore and shaking”. On the day following the accident, which was a Friday, he flew back to Melbourne.
Mr Connolly returned to work on the next Monday morning but he was still sore and “shaking a bit” and a superior officer arranged for him to be driven home.
Mr Connolly did not receive any medical treatment in Tasmania or on his immediate return to Melbourne but on the following Tuesday he did attend the Watsonia Medical Centre. He was not seen by a doctor at the centre but was given pain killers by the “sergeant on duty”.
Apart from those pain killers the only form of treatment he received was from his wife, Mrs Yvonne Connolly. She said that the day he returned from Tasmania after the accident her husband was “shaking and holding his arms”. (Transcript page 62)
Mrs Connolly noticed that Mr Connolly had “… bruising across his shoulder and down across his chest. This was a great big red welt …” (Transcript page 62) She said she massaged him with liniment to help “… take away the bruising and swelling”.
Mr Connolly said in evidence: “the stiffness in my neck and the head movement gradually subsided over the three months, but the arm – the pain in the arm and shoulder remained”. (Transcript page 16)
It is necessary for the Tribunal to consider the four steps of analysis described by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82.
The Full Federal Court in a later decision advised caution warning that:
“In most cases the hypothesis will be obvious as will the relation of it to the applicable SoP. There is a risk that the Tribunal’s primary role of fact finding can be diverted into convoluted hypothetical reasoning by too mechanical an application of the Deledio steps in any given case. Those steps, as such, are not found in the Act. There are many cases in which the Tribunal can proceed to fact finding with little more than a glance at s 120(3)”
(See Hardman v Repatriation Commission [2005] FCAFC 83 (13 May 2005) (Per Black CJ and French and Gyles JJ).
As there is evidence of a degree of pain and stiffness in the neck and elsewhere and some lack of movement of the head arising immediately after the 1988 motor vehicle accident the Tribunal finds that the material before it does point to an hypothesis connecting the injury to Mr Connolly’s defence service.
The central question however is whether the Tribunal is satisfied, on the balance of probabilities, that Mr Connolly suffered a “trauma to the cervical spine” as defined in the SOP.
It is necessary for there to be present “within 24 hours” of the 1988 accident symptoms and signs of “pain and tenderness” and either altered “mobility” or “range of movement” of the cervical spine. The symptoms and signs must last for at least 10 days.
As Finn J confirmed in Harris v Repatriation Commission [2000] FCA 873 at paragraph 32, when considering a very similar definition in an earlier SOP for the lumbar spine which also included the terms “pain”, “tenderness” and “altered mobility or range of movement”:
“… the definition contemplates a significant injury”.
In the Tribunal’s view the SOP template clearly requires something more than mere soreness and stiffness of the neck. The plain intent is to recognise for pension purposes a “discrete” injury to the cervical spine itself.
Although there is no medical report or record of Mr Connolly’s visit to the Watsonia Medical Centre the Tribunal accepts that this did occur. The Tribunal finds that it was a visit for the purpose of obtaining some pain killers for general soreness and bruising Mr Connolly was suffering following his motor vehicle accident. The evidence does not establish that that visit was specifically for the purpose of relieving pain for a neck injury suffered in the accident. Nor is there evidence that Mr Connolly sought the assistance of a medical practitioner or allied health professional.
In this case, as was noted by the VRB, there is an evident absence of any contemporaneous medical record indicating that Mr Connolly was experiencing a problem with his neck or cervical spine. Mr Connolly said that he suffered neck soreness and stiffness after the accident but it can be inferred that he did not then believe it was serious. If he had considered the neck soreness to be an indication of a spinal injury he would surely have sought some form of professional medical treatment or at least an opinion from a medical practitioner or physiotherapist. The relevant SOP obviously doesn’t require such medical involvement but the complete absence of such involvement does suggest that the neck symptoms were not of the kind envisaged by 6(f) and by the definition of “trauma to the cervical spine” in the SOP.
Professor Einoder said in his report dated 10 June 2008 (T Documents page 166) that:
“It is probable that Mr Connolly suffered a trauma to his cervical spine during the motor vehicle accident in February 1988”
He further said in that report:
“I have read your Statement of Principles concerning cervical spondylosis and conclude that the most appropriate number for him is 6 i.e he has developed symptoms due to cervical spondylosis which has developed following an injury that occurred within 25 years”.
Those opinions are clearly not based on any contemporaneous medical assessment or independent account but rely essentially upon information provided to Professor Einoder by Mr Connolly.
Dr Billett stated in his report of 23 October 2009 (T documents page 254):
“Thus, in summary, the motor vehicle accident in 1988 resulted in a soft tissue injury to his neck, with aggravation of any underlying pre-existing degenerative changes in the discs and facet joints, making them symptomatic, but the effects have now resolved completely”.
Again Dr Billett is essentially relying upon the account provided by Mr Connolly. There was clearly no corroborative evidence apart from Mr Connolly’s version of events to support Dr Billett’s opinion that in fact his cervical spondylosis was caused or aggravated by the motor vehicle accident in 1988.
During the course of 1988, including in the months after the accident, Mr Connolly attended a number of medical appointments for gout and other foot problems and for a painful right wrist but not for any neck or cervical spine injuries. It is fair to say from the medical records that he was not reluctant to seek medical attention when he felt it was necessary. There is a complete absence in Mr Connolly’s service records of any medical attention for any neck injury or pain. Some five months after the accident, on the 18 July 1988, a medical report indicates Mr Connolly’s back is “normal”. His Discharge Medical Board report of 7 October 1988 records that he had never had an accident for which he intended to apply for compensation. The condition of his back is said to be “normal”. That report was completed only a matter of months after his claimed injury to the cervical spine in the motor vehicle accident. The report was signed by Mr Connolly.
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.
The Tribunal having determined that cervical spondylosis is not an accepted defence related condition the following are the remaining accepted conditions:
·Lumbar spondylosis
·Tinnitus
·Sensorineural hearing loss
·Resting joint pain
·Solar keratoses
·Disfigurement and social impairment
It is noted that there is agreement between the parties as to the points to be allocated for tinnitus (10 points), sensorineural hearing loss (8 points), solar keratoses (2 points), resting joint pain (5 points) and solar keratoses (2 points). (See Transcript pages 114 and 115) The Tribunal finds that those assessments are appropriate.
The remaining assessment issues to be determined relate to the following conditions:
(a)Loss of spinal movement in the lumbar spine
(b)Loss of musculoskeletal function in the lower limbs
(c)Intermittent impairment
(d)Precluded and avoided activities
(e)Disfigurement and social impairment
The Tribunal will now consider each of the disputed assessment issues before calculating the percentage of the General Rate to which Mr Connolly is entitled.
LOSS OF MOVEMENT IN THE LUMBAR SPINE
The various medical experts involved in this case have expressed widely diverging views on Mr Connolly’s loss of lumbar spinal movement. This may be reflective of the difficult nature of such assessments.
Dr Markov said in oral evidence:
“Of all the things that one can observe and measure in clinical medicine, spinal movement is probably the least reliable”. (Transcript page 87)
Dr Markov, who is a physician specialising in rheumatology and internal medicine, was earlier asked by Mr Warren, appearing for Mr Connolly:
“Are you suggesting that any or all of those assessments are unreliable?”
Dr Markov replied:
“Yes, just as unreliable as mine was”. (Transcript page 87)
The Tribunal has the task of assessing the loss of movement in the lumbar spine. It is not reassuring for it to note that the only medical witness called by the respondent to give oral evidence at the hearing has declared in that evidence that all of the assessments by medical practitioners involved including his own, are unreliable.
Dr Markov expressed the view that there was present a loss of 25% of normal lumbar spinal movement. (Page 7 of his report of 18 March 2011).
Dr Tilsley had earlier decided in September 2007 that Mr Connolly had suffered a loss of movement in the lumbar spine of 50%.
Professor Einoder expressed his opinion on flexion and extension but did not provide a percentage loss of movement of the lumbar spine. (See his report of 10 June 2008)
Dr Billett, a consultant orthopaedic surgeon, in his report of 23 October 2009 gave figures for loss of extension, flexion and rotation which Dr Markov has interpreted as meaning a 50% loss of overall movement of the lumbar spine.
Dr Ruttenberg, a consultant occupational physician, expressed the opinion in his report of 1 March 2010 that the loss of range of movement of the lumbar spine was “about 25%”.
Dr Lyell, who was Mr Connolly’s general practitioner for a period of some years said in his detailed assessment of Mr Connolly’s various defence related disabilities that the appropriate figure was “about 75% loss of the range of thoracolumbar spinal movement”. Dr Lyell added that this loss was due solely to lumbar spondylosis.
It was interesting to note that Dr D’Souza, a Department of Veterans’ Affairs medical officer, stated in his report of 21 May 2009 that there had been a loss of “about three-quarters of normal range of movement” of the thoraco-lumbar spine. (T Documents page 227). Surprisingly, without offering any explanation of his amended opinion, Dr D’Souza said in a further report of 18 March 2010 that the correct figure for loss of movement of the lumbar spine was in fact one quarter loss.
After considering all of the material before it, and noting the quite extraordinary range of opinions expressed by the medical experts involved, the Tribunal prefers to accept the view expressed by Dr Lyell.
Dr Lyell knows Mr Connolly very well and has obviously had an opportunity to observe him over many years. It is noted that he spent a considerable period of time completing his assessment. (See page 300 of the T Documents) There is no reason to believe that the opinion Dr Lyell has expressed is not an honest and objective view of the true extent of Mr Connolly’s impairment. He was frank in expressing other views which were not supportive of Mr Connolly’s claim. For example he said that the keratoses did not cause any embarrassment to Mr Connolly in unfamiliar social setting. (Page 309 of the T Documents). It is further noted that the 75% figure was at one point supported by Dr D’Souza who, as mentioned, is a medical officer employed by the Department.
Mr Rudge contends that half of any impairment to the lumbar spine results from a disc prolapse of the lumbar spine. Dr Markov refers to a disc prolapse found in an MRI scan (page 3 of his report of 18 March 2011). Mr Connolly had decompressive surgery in 2000 “and the pain eased considerably”. However Dr Markov describes increasing pain four years after the operation and a “gradual deterioration” since 2004.
Dr Lyell assessed Mr Connolly’s disabilities in 2009, well after the operation on his lumbar spine. He stated that the 75% loss of movement was caused “solely” by the lumbar spondylosis. Dr Tilsley also expressed the opinion that the symptoms he identified were “due solely to the lumbar spondylosis”.
After considering the range of medical opinions the Tribunal concludes, in accepting Dr Lyell’s view, that 75% loss of movement of the lumbar spine results from the accepted condition of lumbar spondylosis.
Under Table 3.3.1 of GARP a loss of movement of the thoracolumbar spine of 75% gives an impairment rating of 30. However this figure has to be age adjusted under 3.6.1 (the relevant age bracket is 56 to 65) which then results in a figure of 27 points.
LOSS OF MUSCULOSKELETAL FUNCTION; LOWER LIMBS
Mr Connolly has described significant difficulties in walking;
“I have trouble walking, climbing stairs, walking any distance” (Transcript page 23)
In his report of 23 October 2009 Dr Billett said (at page 3):
“The pain in his lumbar region, although variable, remains on a constant daily basis, increasing at night, accompanied by constant daily pain down his right leg to the ankle, with intermittent paraesthesia in his right leg. Prolonged sitting, standing, walking, bending and cold weather aggravate his symptoms”.
On the evidence before it the Tribunal concludes that an impairment rating of 10 points under 3.2.2 would be appropriate for loss of musculoskeletal function; lower limbs. It is noted that Dr Lyell said that Mr Connolly could not walk more than 500 metres without resting. (T Documents page 301)
INTERMITTENT IMPAIRMENT
The Tribunal is not satisfied that a rating for “intermittent impairment” (Table 15.5) should be allocated. It has already determined that 27 points should apply for loss of spinal movement and 10 points for the loss of function in the lower limbs. Mr Connolly certainly experiences severe bouts of pain from time to time. He said when he has bad attacks of pain he has to lie “… on the floor and crawling around”. (Transcript page 23)
It is the view of the Tribunal however that the “intermittent impairment” factor is intended to apply where there is normally a very low level of impairment interspersed with discrete episodes of severe impairment. At page 209 of GARP the example of epilepsy is given. The Tribunal has already recognised a very significant permanent loss of movement in the lumbar spine and also an impairment of the lower limbs applying the system-specific tables in GARP. In all the circumstances the Tribunal considers this approach to be sufficient to provide a fair and reasoned assessment of the extent of Mr Connolly’s defence service caused disabilities.
PRECLUDED AND AVOIDED ACTIVITIES
Mr Warren also asked for an assessment under Table 15.5 for precluded activities. He submitted that 5 points was appropriate. Mr Rudge in his written submission conceded 2 points under that Table. Mr Connolly is forced to avoid few activities. The Tribunal finds that 2 points is the appropriate rating.
DISFIGUREMENT AND SOCIAL IMPAIRMENT
One further area of disagreement remains to be considered and that is a rating for disfigurement and social impairment under chapter 17. Mr Warren for the applicant argued that the appropriate figure was 10 points whereas Mr Rudge considers that a rating of 2 is appropriate. Taking all of the material into account the Tribunal finds that 2 points is appropriate. That was the figure determined by the VRB. There is some evidence of a degree of embarrassment but it is not marked. The evidence does not justify a figure under this item above 2 points.
The Tribunal therefore finds the appropriate ratings for Mr Connolly’s defence related impairments to be as follows:
| Condition & Body System | Table | Impairment Rating |
| 1. Loss of musculoskeletal function: spinal movement – lumbar spine (30) (age adjusted to 27) | 3.3.1 & 3.6.1 | 27 |
| 2. Loss of musculoskeletal function – lower limbs | 3.2.2 | 10 |
| 3. Tinnitus | 7.1.11 | 10 |
| 4. Bilateral sensorineural hearing loss | 7.1.3 to 7.1.8 | 8 |
| 5. Resting joint pain | 3.4.1 | 5 |
| 6. Solar keratoses | 11.1 | 2 |
| 7. Disfigurement & social impairment | 17.1 | 2 |
| 8. Precluded and avoided activities | 15.5 | 2 |
Applying the combined values chart in chapter 18 of GARP the above figures convert to a combined value of 52 which is then rounded to 50.
Mr Connolly has elected to have a lifestyle rating based on the level of his impairment. Applying Table 23.1 on page 278 of GARP the relevant impairment and lifestyle ratings combined to result in a degree of incapacity for all accepted conditions of 90. This equates to a pension at 90% of the General Rate.
The Tribunal has a discretion to backdate payment of the increase, subject to the limitations set out in section 177(2) of the Act. In the circumstances the Tribunal considers that the increase from 60% to 90% of the General Rate should apply from the date on which Dr Lyell assessed the loss of movement of the lumbar spine to be 75%. The evidence suggests that an earlier point in time there was a lower level of impairment. There has been a gradual deterioration of the lumbar spine since 2004 eventually reaching the higher degree of impairment described by Dr Lyell when completing the Medical Impairment Assessment Form on 14 May 2009. (T Documents page 303). The increase to 90% of the General Rate is therefore to apply from that date.
Mr Connolly is therefore entitled to receive 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.
IS THE APPLICANT ENTITLED TO RECEIVE A PENSION AT THE SPECIAL RATE?
As the Tribunal has concluded that Mr Connolly’s degree of incapacity is at least 70% it will now consider whether he is entitled to receive a pension at the Special Rate.
The Special Rate pension is often referred to as the Totally and Permanently Incapacitated (“TPI”) pension. In the Acting Minister’s Second Reading Speech on the Repatriation Legislation Amendment Bill 1985, the essential purpose of the Special Rate pension was explained in the following terms:
“Since 1920, there has been a special rate of disability pension payable in circumstances where, because of total and permanent incapacity resulting from war service, a veteran has been unable to resume or to continue in civil employment. The special or TPI rate pension was designed for severely disabled veterans of a relatively young age who could never go back to work and could never hope to support themselves or their families or put away money for their old age. It was never intended that the TPI rate would become payable to a veteran who, having enjoyed a full working life after war service, then retires from work possibly with whatever superannuation or other retirement benefits are available to the Australian work force.
...
... the TPI rate pension can become payable only when a veteran is totally and permanently disabled by accepted disabilities and is thereby precluded from continuing to engage in remunerative work. If a person has had the usual span of a working life or has retired voluntarily or has left employment for reasons other than accepted disabilities, a TPI pension is not payable. It would be in only very rare cases that any veteran beyond the normal retirement age could be eligible for this pension”.
Section 24 of the Act sets out the qualifying criteria for a pension at the Special Rate. Each criterion must be satisfied if a person is to be entitled to receive such a pension.
Mr Connolly has made a claim for a pension, had not turned 65 at the date of his pension claim and, as mentioned, his incapacity has been found to be at least 70%. He therefore satisfies paragraphs (aa), (aab) and (a) of section 24(1) of the Act. Section 24(1)(d) has no relevance here.
The elements of section 24 of the Act that are relevant in this case are section 24(1)(b) and (c) and (2). They provide as follows:
“(1) (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
(2) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking”
Section 73 of the Act provides that for the purposes of the application of the provisions in Divisions 4 and 5 of Part II of the Act (which includes section 24) a reference to “war-caused injury” should be read as a reference to “defence caused injury”.
The Tribunal considers the critical paragraph in this case to be section 24(1)(c). Section 24(1)(c) was considered by the Full Federal Court in Flentjar v Repatriation Commission (1997) 48 ALD 1. In that case the Full Court (Branson, Beaumont and Merkel JJ) said that section 24(1)(c) raised four specific questions for consideration:
“1. What was the relevant “remunerative work that the veteran was undertaking” within the meaning of section 24(1)(c) of the Act?
2. Is the veteran, by reason of war caused injury or war caused disease, or both, prevented from continuing to undertake that work?
3. If the answer to question 2 is yes, is the war caused injury or war caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4. If the answers to question 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings of his own account that he would not be suffering if he were free from that incapacity?”
In Repatriation Commission v Alexander (2002) 75 ALD 329 at 334 Spender J stated:
“If the non-service related conditions were a factor in preventing Mr Alexander from continuing to undertake remunerative work, all be it those conditions were “of secondary importance”, the “alone” requirement of s 24(1)(c) would not be satisfied”.
Mr Connolly has not performed any paid work since June 1994 when he accepted a voluntary redundancy and ceased working for Telecom. He later did some renovation work on properties he owned and also worked for a short period of time with Y & B Homes. Mr Connolly has said that he was not paid by Y & B Homes nor for any of the other work he has done since leaving Telecom.
He worked for Telecom for some five years. Mr Connolly travelled to remote areas across Victoria servicing and installing equipment. It involved the handling of heavy electronic equipment.
Mr John Gazan was Principal Telecommunications Officer at Telecom and Mr Connolly’s supervisor. In Mr Gazan’s statutory declaration made on 4 June 2008 (T Documents page 183) he stated at paragraph 6:
“After Mr Connolly had been working in my section for about 5 years, it became very obvious that he was having difficulty coping with the physical demands of his work; mainly due to his back problems which, as I understand it, resulted from his Army service”.
It is noted that Mr Gazan said Mr Connolly had difficulty coping “… mainly due to his back problems …” (the Tribunal’s emphasis).
The Tribunal accepts Mr Connolly’s evidence that the redundancy payment was not itself the reason for his decision to retire from Telecom. It finds however the additional payment had some influence on the timing of his decision to leave his employment.
Mr Connolly was asked:
“If the redundancy was not available would you have continued with Telstra?” (Telstra is the successor to Telecom).
In response Mr Connolly said:
“I may have continued for a few months, but I would have had to eventually resign”. (Transcript page 53).
In his oral evidence given at the hearing Mr Connolly stressed that it was his lumbar spine which was causing him difficulty with his work at Telecom. He said:
“In around ‘92 or thereabouts, my lower back was starting to play up and because we were installing and handling equipment in difficult and tight locations, I couldn’t continuing to do that work and some of the work had to be handed out to other members of the section.”
He was then asked:
“Did you want to stop working with Telstra at that time?”
Mr Connolly replied:
“No, I didn’t want to stop working at that time, but around the – ’94, Telstra were going through a restructure in our area and they offered redundancies and with discussion with my wife and Mr Gazan, the supervisor, it was suggested that my best move would be to apply for a redundancy”. (Transcript page 26)
However in his affidavit affirmed on 21 December 2009 Mr Connolly gave a frank explanation of the reasons for finishing work at Telecom and accepting the redundancy payment. He said at paragraph 36 and 37 of his affidavit:
“After some 5 years, the neck and lower back conditions I suffer as a result of my army service, deteriorated to the extent that I was experiencing difficulty meeting the demands of my work with Telecom. With increasing frequency, my work had to be reallocated to others.
By mid 1994 it was clear to me that I could no longer continue with Telecom. About this time, the company restricted and a number of voluntary redundancies were offered. After discussions with my supervisor and family, I elected to take a redundancy. It was a very difficult decision for me to make; one I would not have taken except for my worsening neck and lower back problems”.
Mrs Connolly made a consistent statement to that of Mr Connolly in her affidavit which was affirmed on 21 December 2009. At paragraphs 18, 19, 20 and 21 Mrs Connolly explained why her husband left his employment in 1994:
“By early 1994, Dan was finding it increasingly difficult to do his work because of his back and neck problems. I understand that, at times, some of his work had to be re-allocated to others in his department. I know that Dan found this situation very frustrating and degrading. Dan has always been a hard worker who takes pride in himself and his work. He was awarded the Medal of the Order of Australia for his work in the army.
In mid 1994, Dan’s spinal problems led to his being unable to continue working with Telecom. After a lot of discussion, Dan decided to accept a redundancy from the company. His intention was to start his own business as a contractor, undertaking what work he was able to physically do.
Dan was able to undertake some casual work to begin with, but eventually his back and neck forced him to stop work. Dan had to undergo major surgery in November 2000. It was about this time that a specialist told Dan that his arm problems were associated with a neck injury.
Since then, Dan has been unable to undertake paid work; primarily because he cannot guarantee that his spinal problems will allow him to work when required by the people to whom he is contracted”.
The Full Federal Court in Sheehy v Repatriation Commission (1996) 139 ALR 223 held that the words “undertake” and “undertaking” in section 24(1)(c) of the Act require that the work be undertaken successfully or effectively. The term ceasing to engage in remunerative work as used in the section implies work in which the veteran was engaged or actually performing.
The Tribunal finds that for the purposes of section 24(1)(c) the remunerative work Mr Connolly was prevented from undertaking was his five years of employment with Telecom.
There are some relevant medical records made in the period leading up to retirement from Telecom. (See Exhibit R3) It is made clear in the letter from Dr R G Newnham of Dandenong Victoria dated 2 October 1992 that Mr Connolly continued to have serious pain from polyarticular gout. He said he had episodes of pain in his right toe for “at least 10 years”. He had discomfort in both knees. It was affecting various joints. Dr Newnham suggested Mr Connolly remained on “Zyloprim forever”. It is noted that Mr Connolly had been taking Zyloprim for a considerable period of time (at least as far back as 1987) yet he still had episodes of pain. No doubt this was affecting his physical capacity to undertake his work with Telecom.
His general practitioner’s “Progress Notes” indicate that during 1993 and 1994 Mr Connolly attended the surgery and was prescribed Zyloprim. The last occasion in the notes was 14 February 1994, some four months prior to his acceptance of the Telecom redundancy offer.
The Tribunal concludes that Mr Connolly was suffering from a range of medical conditions which together resulted in his being unable to cope with the physical demands of his position with Telecom. Those conditions included his lumbar spondylosis, his cervical spondylosis and “neck” problems and his gout which was causing episodes of pain in his right first toe, the left knee, ankles and thumbs. The Tribunal concludes that a number of medical conditions played a part in his decision to end his employment.
Both Mr and Mrs Connolly have confirmed in their affidavits that the neck problems were a factor in the decision to accept the redundancy and leave his employment with Telecom. The Tribunal has already determined that cervical spondylosis is not a defence caused condition. Polyarticular gout is also not an accepted defence caused condition.
Mr Connolly’s lumbar spine condition may have been the principal reason for not continuing to undertake remunerative work with Telecom but there were other non-service related conditions which did, the Tribunal concludes, play a role in preventing him from continuing to undertake remunerative work.
The Tribunal therefore finds that it was not Mr Connolly’s war caused injuries or conditions alone which prevented him from continuing to undertake remunerative work.
As the applicant has not satisfied the requirements of section 24(1)(c) of the Act the Tribunal determines that he is not entitled to receive a pension at the Special Rate.
DECISION
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.
I certify that the preceding 107 (one hundred and seven) paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom AO (Deputy President).
[Sgd R Hunt]
Administrative Assistant
Dated 28 February 2012
Date(s) of hearing 8 and 21 December 2011 Advocate for the Applicant Mr B Warren, Naval Association of Australia Solicitors for the Respondent Mr K Rudge, Department of Veterans' Affairs Advocacy Section
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