Dawson and Repatriation Commission
[2004] AATA 107
•6 February 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 107
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/770
VETERANS' APPEALS DIVISION ) Re ROBERT DAWSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr O Rinaudo, Member Date6 February 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
....................(Sgd).....................
O Rinaudo
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension – lumbar spondylosis – whether condition caused by applicant’s war service – whether trauma to the lumbar spine – whether symptoms continued for ten days after trauma - hypothesis does not fit within template of Statement of Principles – hypothesis not reasonable – decision affirmed
Veterans’ Entitlements Act 1986 ss 9, 120B
Harris v Repatriation Commission [2000] FCA 873
Harris v Repatriation Commission [2000] FCA 1687
REASONS FOR DECISION
6 February 2004 Mr O Rinaudo, Member Decision under Review
1. The applicant seeks review of a decision made by the Repatriation Commission on 4 April 2001 to refuse claims for lumbar spondylosis and asthma. The Veteran’s Review Board affirmed this decision on 23 May 2002.
2. The applicant has abandoned his claim for asthma.
Decision
3. The decision of the Tribunal is to affirm the decision under review with respect to lumbar spondylosis.
History
4. The applicant was born on 11 July 1938. He served in the Royal Australian Airforce from 1 August 1955 to 22 April 1976.
5. The applicant service in the airforce included the following:
§ operational service in Vietnam from 2 July 1996 to 13 September 1967; and
§ defence service from 7 December 1972 to 22 April 1976.
6. The applicant injured his back in 1958 whilst playing rugby and in 1974 whilst playing squash.
Issue
7. The issue for the Tribunal in this application is to determine whether the applicant’s lumbar spondylosis is war or defence caused within the meaning of section 9 of the Veterans’ Entitlements Act 1986 (the Act). In this case the standard of proof applicable is that set out in section 120B of the Act being reasonable satisfaction.
Evidence
8. The applicant attended the hearing and gave evidence. There were two exhibits, the T documents were marked as Exhibit 1 and the statement of the applicant dated 21 November 2002 marked as Exhibit 2. The applicant gave the following evidence:
9. In 1958 whilst playing a Rugby Union game at RAAF Amberley he injured his back in a tackle. The tackler had grabbed his jersey and given him a “jersey fling”. He landed on hard ground. He said his back was sore so he could not continue the game.
10. The next morning he went to the “Medico” for treatment.
11. The applicant referred to page 2 of T4 of the T documents, which showed an attendance on 1 September 1958 with bruised back and a further attendance on 5 September 1958. The applicant said that he went back on 5 September because he had pain. He said x-rays were taken of his lumbar spine, and that he had two or three more weeks of treatment.
12. The applicant said that in 1974 he was playing squash at the RAAF base at Point Cook. He said he was playing with the base medical officer. On 25 November 1974 he fell hitting his back against the back wall. The applicant said he was moving backwards at speed and the impact was pretty solid in the lower spine region. He said it was about the pelvis line of the lumbar spine. The applicant said that the first indication of pain he had was in his right leg. This occurred about twenty minutes into the game. He said that he continued for about another five or ten minutes. However, the pain caused him to stop playing.
13. He said that when he cooled down the pain was about seven or eight out of ten. The applicant said he had played A grade squash. He said the area of the pain was very tender. The medical officer who he was playing with told him that if the pain persisted he should go and see him the next day. On 26 November 1974, the applicant attended the medical officer (see page 3, T4). He was given medication, assigned to light duties and was to be reviewed in three days. On 28 November 1974, the applicant returned to the medical officer. As the pain was worse, especially when sitting, he was given two days sick leave.
14. The applicant did not take the days off but rather worked as he said there was no one that could do his job whilst he was off.
15. The applicant told the Tribunal that he had two weeks of problems including walking, sitting, driving, sleeping etc. He did not visit the doctor after 28 November 1974. He said he could not recall if he was taking anything for the pain.
16. The applicant stated that he had lingering problems including restricted ability to do gardening, which he enjoyed; sleeping (he said turning in his sleep causes pain), sitting, particularly if he sits and watches television in one position. He said that he has been taking Voltaren for the pain and Panadeine prior to that. He said he went back to Dr Sharwood who increased the dosage because of pain in his hip. Under cross-examination the applicant said his back had been getting worse for some time. He thought that time would take care of it. The applicant said that he thought that regardless of any treatment to his back he still had to do his job. He said that after a couple of days the pain in his back was bearable. He confirmed in cross-examination that he tripped over his opponent’s foot or his own foot and hit the wall in the lower back. He said that he was certain that he hit the small of his back; the pelvic area hit and he had bruising. In re-examination he said that his back pain got worse after 1974; he said it affected a broader range of activities. Before 1974 he had had general restrictions but it was no big deal. After 1974 he said he had problems sitting, chopping wood, driving etc.
Legislation
17. The legislation applicable to this decision is contained in section 9 and section 120B of the Act. These sections state as follows:
“9(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c)the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service 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 of duty upon having ceased to perform duty;
(d)the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;
(e)the injury suffered, or disease contracted, by the veteran:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war 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 eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.
9(2) For the purposes of this Act, where any incapacity of a veteran was, in the opinion of the Commission, due to an accident that would not have occurred, or due to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service:
(a)if that incapacity was due to an accident—that incapacity shall be deemed to have arisen out of the injury suffered by the veteran as a result of the accident and the injury so suffered shall be deemed to be a war-caused injury suffered by the veteran; or
(b)(b) if the incapacity was due to a disease—the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a war-caused disease contracted by the veteran.
9(3) Paragraph (1)(a), (b), (c) or (d) does not apply to an injury suffered, or disease contracted, by a veteran if the injury or disease:
(a) resulted from the veteran's serious default or wilful act; or
(b) arose from:
(i)a serious breach of discipline committed by the veteran; or
(ii)an occurrence that happened while the veteran was committing a serious breach of discipline.
9(4) Subsections (1) and (2) do not apply to an injury suffered, or disease contracted, by a veteran if the incapacity of the veteran from that injury or disease resulted from the serious default or wilful act of the veteran that happened after the veteran ceased, or last ceased, to render eligible war service.
9(5) Paragraph (1)(c) does not apply:
(a)to an accident that occurred while the veteran was travelling on a journey from the veteran's place of work in a case where the veteran had delayed commencing the journey for a substantial period after he or she ceased to perform duty at that place (otherwise than for a reason connected with the performance of the veteran's duties) unless, in the circumstances of the particular case, the nature of the risk of sustaining an injury, or contracting a disease, was not substantially changed, and the extent of that risk was not substantially increased, by that delay or by anything that happened during that delay;
(b)to an accident that occurred while the veteran was travelling on a journey, or a part of a journey, by a route that was not reasonably direct having regard to the means of transport used, unless:
(i)the journey, or that part of the journey, was made by that route for a reason connected with the performance of the veteran's duty; or
(ii)in the circumstances of the particular case, the nature of the risk of sustaining an injury, or contracting a disease, was not substantially changed, and the extent of the risk was not substantially increased, by reason that the journey, or that part of the journey, was made by that route; or
(c)to an accident that occurred while the veteran was travelling on a part of a journey made after a substantial interruption of the journey, being an interruption made for a reason unconnected with the performance of the veteran's duties, unless, in the circumstances of the particular case, the nature of the risk referred to in subparagraph (b)(ii) was not substantially changed, and the extent of that risk was not substantially increased, by reason of that interruption.
9(6) Paragraph (1)(e) does not apply to an injury suffered, or disease contracted, by a veteran (being an injury or disease that has been contributed to in a material degree by, or aggravated by, eligible war service rendered by the veteran):
(a) if the aggravation of the injury or disease:
(i) resulted from the veteran's serious default or wilful act;
(ii)arose from a serious breach of discipline committed by the veteran; or
(b)unless the veteran had rendered operational service or the period of eligible war service rendered by the veteran that so contributed to the injury or disease, or by which the injury or disease was aggravated, was 6 months or longer.
9(7) Despite subsection (1), the injury or disease of a veteran is taken not to have been war-caused if that injury or disease is related to the veteran's eligible war service only because:
(a)in the case of a veteran who had not used tobacco products before 1 January 1998—the veteran used tobacco products after 31 December 1997; or
(b)in the case of a veteran who had used tobacco products before 1 January 1998—the veteran increased his or her use of tobacco products after 31 December 1997.
…
120B(1) This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;
(b)a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.
120B(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(3) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
120B(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.
120B(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.”
Discussion and Decision
18. The applicant is in receipt of pension at 50% of the General Rate for the following accepted disabilities.
§ Localised osteoarthritis affecting both shoulders;
§ Post traumatic stress disorder; and
§ Non-malanotic malignant neoplasm of the skin
19. The applicant has the following non-service related disabilities:
§ Lumbar spondylosis
§ Asthma
§ Muscle Tension Dysphonia
§ Bilateral Tinnitus
20. The question for the Tribunal in this case is whether the material before it points to a connection between the injury to the applicant and some particular service rendered by him. If such a hypothesis is raised on the material, the Tribunal must determine if there is in force a Statement of Principles that upholds the contention that the injury is, on the balance of probabilities, connected with that service. The relevant Statement of Principles in this case is Instrument 28 of 1999, which is made under section 196B(3) of the Act. The applicant’s contention, that he suffered worsening of lumbar spondylosis, is supported by the report of Dr Peter Sharwood, orthopaedic surgeon, dated 21 September 2001, where he says:
“With respect to his back, the problems there are quite significant spondylosis. It is documented that he had injuries in 1958 and x-rays taken some sixteen years later record degenerative changes. There is albeit remote, a link between the two and that had he suffered significant damage to his lumbar spine as a result of the injury in 1958, degenerative changes in 1974 would be present. There were certainly no degenerative changes present in 1958. What is also of significance is that the injury in 1974 aggravated the condition. The member states that he has continued to have some pain, however it is almost impossible to assess how much arose form the episode in 1974 and how much arose from the episode in 1958. I would think it reasonable to assume that the 1974 episode was an aggravation of the pre-existing problem, precipitated by the injury in 1958. I believe the episode in 1974 aggravated the condition precipitated by the injury in 1958. I believe at this stage the best guess one could put on this degree of aggravation would be five percent (5%).”
21. The relevant Statement of Principles states the factors that must exist before it can be said that, on the balance of probabilities, lumbar spondylosis is connected with the circumstances of the person’s relevant service. In this case, the applicant relies on Factor 5(r), which provides: “suffering a trauma to the lumbar spine within the 25 years immediately before the clinical worsening of lumbar spondylosis”.
22. It is necessary then to consider the words “trauma to the lumbar spine” which in the SoP means:
“a discrete injury to the lumbar spine which causes the development, within 24 hours of the injury before being sustained, of acute symptoms 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 ten days following their onset save for where medical intervention for the trauma to the lumbar spine has occurred…”
23. The respondent argued that, as the definition of trauma to the lumbar spine has not been satisfied, in that the applicant did not have continuing acute symptoms and signs which lasted for a period of at least ten days, the Statement of Principles is not met and accordingly the Tribunal could not, on the balance of probabilities, uphold the contention that the injury was connected with the applicant’s service.
24. In this regard counsel for the applicant referred to the evidence of the applicant when he said he had suffered from the effects of his injury for two weeks after the incident, and referred the Tribunal to the decision of Harris v Repatriation Commission [2000] FCA 873 which was subsequently affirmed by the Full Court of the Federal Court ([2000] FCA 1687). It is clear from the patient clinical record on page 3, T4 of the T documents that the applicant attended the medical officer on 26 November 1974 which for all intents and purposes is within twenty-four hours of the injury occurring, complaining of pain and stiffness on the right side of his lower back and persistence of pain in the calf. According to the record the applicant was placed on light duties and was to be reviewed two days later. The applicant was again seen on 28 November 1974 when according to the record he was given two days sick leave. The applicant, in his evidence, said however that he did not take the sick leave but went back to work because he did not think there was anyone who could do his job if he took the day off. He said that he suffered for two weeks after that having problems with walking, sitting, driving, sleeping etc but he did not visit the doctor again after 28 November, and does not recall if he was taking any pain killers. If the Tribunal is not satisfied on the balance of probabilities that the applicant suffered a trauma to the lumbar spine as defined then Factor 5(r) is not satisfied and the applicant’s contention will not be upheld.
25. The Full Court in affirming the decision of the primary Judge in Harris made the following comments:
“Once regard is had to these uncontraversial medical usages, it is apparent that the definition in the SoP No 105 of 1995 required objective evidence of altered mobility or range of movement, such alteration lasting for a period of at least a week. Ordinarily, of course, the objective evidence would be accompanied by symptoms appreciated by the patient. This supports what His Honour described as the ‘balance’ between the two causes. The first of which required the ‘development’ of what, for practical purposes, are objective symptoms ‘within 24 hours’, and the second of which required that they last for a period of at least one week immediately after the injury occurs.
In our opinion, the requirements that symptoms once developed, endure for a minimum period (in the absence of medical intervention) was intended to extend to ‘altered mobility or range of movement’.”
26. In a statement of the applicant, which is dated 1 October 2001 and commences at page 87 of the T documents and particularly at page 89, the applicant says “with the exception of medical consultations in November 1974 from the time of my initial injury in 1958 up to this year when my claim for lumbar spondylosis was refused, I have not sought medical help for my back condition because I felt nothing could be done”.. There is simply no evidence that the applicant suffered symptoms which persisted for the requisite period to meet the definition in the SoP.
27. In addition, the Tribunal also accepts the finding of the VRB which noted that:
“In order for the applicant’s claim to succeed on the basis of clinical worsening there must be demonstrable evidence of the condition becoming permanently worsened. The term ‘aggravation’ as it relates to lumbar spondylosis is not referrable to one mere episode. Judicial interpretation of the term ‘clinical worsening’ is that it means to alter the course of the condition so to make it permanently worse. There is simply no evidence that this is the case. The reference by Dr Sharwood to ‘aggravation’ is not synonymous with ‘clinical worsening’.”
28. Accordingly the Tribunal is not reasonably satisfied in this case that the applicant’s lumbar spondylosis is not defence-caused, accordingly the decision under review is affirmed.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Mr O Rinaudo, Member
Signed: Sarah Oliver
AssociateDate of Hearing 28 March 2003
Date of Decision 6 February 2004Counsel for the Applicant Mr J Griffiths
Solicitor for the Applicant Sciaccas Lawyers
For the Respondent Mr M Smith, Departmental Advocate
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