Deane and Repatriation Commission

CATCHWORDS – VETERANS' AFFAIRS – applicant suffers from intervertebral disc prolapse – whether that condition arose out of or attributable to defence service – whether applicant's job required him to drive a minimum of 30 hours per week for at least 2 years within 10 years preceding onset – decision set aside.

Veterans' Entitlements Act 1986 – ss 5AB, 70, 120, 120B, 196B

Smith v Repatriation Commission (1987) 74 ALR 537

DECISION AND REASONS FOR DECISION [2000] AATA 914

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          D1999/24
VETERANS' APPEALS DIVISION  )

Re LEONARD JAMES DEANE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Miss S A Forgie (Deputy President)

Date 19 October, 2000

Place Brisbane

DecisionThe Tribunal:

1.sets aside the decision of the respondent dated 13 February, 1998 and affirmed by the Veterans' Review Board on 18 May, 1999;
2.substitutes a decision that the applicant's intervertebral disc prolapse is a defence-caused injury within the meaning of the Veterans' Entitlements Act 1986; and

3.adjourns further consideration of the assessment of any pension to which the applicant is entitled to a date to be fixed.

S A FORGIE
Deputy President

REASONS FOR DECISION

On 17 August, 1999, the applicant, Mr Leonard James Deane, applied for review of a decision of a delegate of the Repatriation Commission ("Commission") dated 13 February, 1998 and affirmed by a decision of the Veterans' Review Board ("VRB") dated 18 May, 1999. The Commission's decision had been to refuse Mr Deane's claim that an intervertebral disc prolapse was defence-caused within the meaning of the Veterans' Entitlements Act 1986 ("VE Act").

At the hearing, held first in Darwin and then by video link, Mr Deane was represented by his solicitor, Mr Piper, and the Commission was represented by its advocate, Mr Doube. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") were admitted in evidence together with statements by Mr Deane, Mr Bob Charles and Mr Gilbert and a transcript of the proceedings before the VRB. Regard was also had to a photocopy of the clinical notes of Dr Wake. Mr Deane gave oral evidence in support of his case as did Mr Charles and Mr Gilbert.

THE ISSUES

The major issue in this case is whether an intervertebral disc prolapse, from which Mr Deane suffers, was defence-caused within the meaning of the VE Act. That raises two subsidiary issues. First, did Mr Deane suffer from intervertebral disc prolapse arising out of or attributable to his defence-service. If so, did he drive a motor vehicle for at least 30 hours a week, as an occupational requirement, for at least 2 years within the 10 years immediately before either, as the case may be, the clinical onset or the clinical worsening of his intervertebral disc prolapse?

BACKGROUND

There was no dispute between the parties regarding certain aspects of the case. In view of that, and based on the evidence, I have made findings of fact regarding those matters and will set them out in the following paragraphs.

Mr Deane was born on 26 December, 1951 and was 48 years of age at the date of the hearing. On 4 February, 1969, he joined the Australian Army. On completing his recruit training, he was posted to RAASC at Puckapunyal where he completed a ten week driver's course for his basic military driving licence. Mr Deane was then qualified to drive Landrovers and Mack V trucks.

He was posted to 87 Transport (Tipper) Platoon, which was based at Puckapunyal and he remained with it until November, 1970. During his period with the 87 Transport (Tipper) Platoon, he drove Landrovers, trucks and tiptrucks but, for most of the period, drove tip trucks involved in the construction of an airstrip at Puckapunyal. The days were long and he drove up to 10 hours each day, including some weekends.

In November, 1970, Mr Deane was transferred to the 107 Supply & Transport Platoon based at the Larrakeyah Barracks in Darwin. His duties required him to undertake general driving duties including driving Landrovers, buses and trucks.

In approximately December, 1972, Mr Deane was transferred to 42 Transport Platoon (Amphibious) at Randwick. He undertook a thirteen week Lighter Amphibious Re-supply Cargo course ("LARC course") on amphibious vehicles. Mr Deane then drove amphibious vehicles for training purposes and unit exercises as well as performing general driving duties. He and other members of his unit were required to care for and maintain the vehicles and also to load and unload vehicles. Each week, he worked from Monday to Friday but, once each month, he worked a full weekend. When he was on weekend roster, he was the only driver on duty. He was required to drive from Woolwich to Middle Head to collect mail and perform courier duties. That took 2 hours of his time.

In 1978, Mr Deane was transferred to Darwin. He was posted to the 107 Supply & Transport Platoon which had, by now, changed its name to 7MD Transport Unit. The unit comprised Sergeant Roy Gilbert, Corporal McPhee, Mr Deane who was then a Lance Corporal and five other drivers. It provided drivers for all driving tasks for the Army in Darwin. During 1980, Mr Deane was the driver for the Commanding Officer, Lieutenant Colonel Wilkinsee.

Mr Deane left the Army on 4 February, 1981. By then, he had defence-service, as that term is defined in s. 68(1) of the VE Act, from 7 December, 1972 until 4 February, 1981.

Mr Deane has been diagnosed as suffering from an intervertebral disc prolapse.

LEGISLATIVE BACKGROUND

Sub-section 70(1) of the VE Act provides that, subject to the VE Act, the Commonwealth is liable to pay pension by way of compensation to a member of the Forces if he or she has become incapacitated from a defence-caused injury or defence-caused disease.

A veteran's injury or disease is taken to have been "defence-caused" if it meets one of the criteria specified in section 70. In so far this case is concerned, only paragraph 70(5)(a) is relevant. It provides that:

"For the purposes of this Act, the death of a member of the Forces … 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 … 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; …"

In so far as Mr Deane's claim relates to his period of defence service, sub-section 120(4) provides:

"Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction."

The meaning of the expression "reasonably satisfied" has been considered by the Federal Court in Smith v Repatriation Commission (1987) 74 ALR 537. After considering the authorities, Beaumont J concluded that the Tribunal:

"… should have asked itself whether on the facts of the case, it was persuaded on the civil standard. There is, in this connection, a distinction of substance to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other (see Re Repatriation Commission and Delkou (1986) 9 ALD 354; Re Easton and Repatriation Commission (1987) 12 ALD 777; Re Repatriation Commission and Falkner 12 ALD 87. " (page 547)

Sub-section 120(4) must be read with section 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.

…
(3)In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:

(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b)there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12); or
(ii)a determination of the Commission under subsection 180A(3);

that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(3), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)the kind of injury suffered by the person; or
(b)the kind of disease contracted by the person; or
(c)the kind of death met by the person;

as the case may be."

The RMA must prepare a SOP in situations prescribed in the Act. In respect of cases to which ss. 120(1) and (3) apply, it has the following role:

"If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans; or
(b)peacekeeping service rendered by members of Peacekeeping Forces; or
(c)hazardous service rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:

(d)the factors that must as a minimum exist; and
(e)which of those factors must be related to service rendered by a person;

before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service." (s. 196B(2))

Section 196B(14) defines the concept of "related to service" in terms consistent with those used in s. 70 in relation to "defence-caused injury" and "war-caused disease" in s. 70(5). In so far as this case is concerned, only s. 196B(14)(b) is relevant. It provides that:

"A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a)…
(b)it arose out of, or was attributable to that service;"

"Sound medical evidence" has the meaning given in s. 5AB(2)
(s. 5AB(1)):

"Information about a particular kind of injury, disease or death is taken to be sound medical-scientific evidence if:

(a)the information:
(i)is consistent with material relating to medical science that has been published in a medical or scientific publication and has been, in the opinion of the Repatriation Medical Authority, subjected to a peer review process; or
(ii)in accordance with generally accepted medical practice, would serve as the basis for the diagnosis and management of a medical condition; and

(b)in the case of information about how that kind of injury, disease or death may be caused - meets the applicable criteria for assessing causation currently applied in the field of epidemiology."

When Mr Deane lodged his formal claim with the Commission on 17 September, 1997, SoP 131 of 1996 ("SoP 131") concerning intervertebral disc prolapse was in operation. After that time but before the Commission made its decision, SoP 131 was amended by SoP 93 of 1997 ("SoP 93"). The effect of s. 120B(2) is the Commission must apply the SoP in force at the time it made its decision (s. 120B(2)). SoP 131 has not been amended since that time.

In so far as it is relevant in this case, SoP 131 sets out that:

"The factors that must exist before it can be said that, on the balance of probabilities, intervertebral disc prolapse or death from intervertebral disc prolapse is connected with the circumstances of a person's relevant service are:
…
(d)driving a motor vehicle or flying a motorised aircraft for an average of at least 30 hours a week, as an occupational requirement, for a period of at least two years within the ten years immediately before the clinical onset of intervertebral disc prolapse; or

…
(k)driving a motor vehicle or flying a motorised aircraft for an average of at least 30 hours a week, as an occupational requirement, for a period of at least two years within the ten years immediately before the clinical worsening of intervertebral disc prolapse; or

…" (clause 5)

An "intervertebral disc prolapse" is defined in SoP 131 as amended by SoP 93 to mean, in part, "… protrusion, herniation or rupture of an intervertebral disc of the cervical, … spine, causing local pain and stiffness, and may include:

(i)in the case of cervical disc prolapse – pain and paraesthesia radiating into the upper limbs or;
(ii)…" (paragraph 1(a)).

Subject to a qualification found in clause 6 of SoP 131 but not relevant in this case, Mr Deane must, on the balance of probabilities, satisfy this factor and must show that it is related to his "relevant service" i.e. his defence service in this case (clause 7).

THE EVIDENCE

DRIVING DUTIES

Mr Deane

In his evidence to the VRB, Mr Deane said that, in his last three years with the Army, he was working 40 hours each week and, once each week, worked a 24 hour shift. He estimated that 20 to 30 hours of those hours would be spent driving. (Exhibit 2, page 8)

In his statement (Exhibit C), Mr Deane described his duties for the Commanding Officer:

"All my general duties were subject to the CO's requirements, which had first priority.
I would drive him to his office every day, and every morning he would give me driving tasks for the day, eg driving around Darwin, not necessarily only as chauffeur for the CO, but other driving tasks for him eg collect visiting VIPs or other officers, personal courier tasks, etc.
When CO advised me he had no more jobs for me that day I would be available for general driving duties. More often than not he would have jobs for me.
Every Monday I would have plenty of driving jobs for him, and would be driving all morning, i.e., about 4 hours. I would estimate that the daily average driving time for the CO was 3 hours per day and that general driving duties would be about 3 hours per day. These duties included ration drops, driving soldiers, airport pickups, courier runs.
During exercises held in the Top End, there was a large amount of driving work required including transporting men and equipment, driving between Army and Navy base, airport pickups etc.
My work for the CO was greatly increased during those times eg the CO would make me available for senior visiting officers. There were (sic) at least one exercise in the Top End every year and these lasted for 2 weeks. I would estimate that during these times I would be driving at least 8 hours per day. This included after hours call outs." (Exhibit C, pages 2-3)

In his oral evidence, Mr Deane described his normal week when based in Darwin as being a five day week. He would start at 7.00 or 8.00 in the morning and finish at 4.00 or 4.30 in the afternoon. Every fortnight, though, he had to work a six or seven day week. Weekend work required more driving as he had to do all the driving duties for the command. They included driving to the Shoal Bay naval communication depot three times a day in order to pick up shift workers. A one way trip to Shoal Bay took 40 minutes or a little longer if he had to travel through the northern suburbs of Darwin. He also had to do airport pick ups and drop offs.
In his statement, Mr Deane also described other duties he undertook in 1979 and 1980:

"During my time with that unit the Army was involved in surveying most of the topography of the Top End, visiting station properties to ascertain details of the topography eg as to the terrain, roads, water supply, creeks, investigating tracks and access routes, number of cattle with a view to the Army having information as to land in which troops may be deployed, eg for training, or in the event of invasion.
These trips were carried out in the dry season. I did this every year I was in Darwin. These included a trip in 1979 Darwin to Alice Springs via Victoria River, Nicholson Station, Hooker Creek, Tanami Desert, Hermansburg Ranges, Kings Canyon, Ayres Rock, Alice Springs and back up the Stuart Highway to Darwin.
There were about 6 vehicles involved all up. I was driving the fuel truck that trip which lasted about 5 weeks (7 days per week). We started early every morning. Some days we would be driving 12 hours, occasionally there was a day of no or little driving but these were few (I would estimate less than 5 days overall) other than that on each day I would have driven at least 8 hours per day, 7 days per week.
In late 1979, 4 Field Survey Unit visited Darwin and required Landrovers and trucks with drivers for a survey around the Tennant Creek area. I participated in that expedition which lasted for about 3 months. About ten vehicles were involved, I drove a truck.
I was driving every day 7 days per week, save for an occasional lay day. I do not know the exact purpose or nature of the survey but I was aware that it was a big job and of some importance to the Army. Apart from the occasional lay day I estimate I would have been driving at least 8 hours per day.
In early 1980 I went on another 'bush trip' for about 8 weeks. We drove to a number of stations and locations to collect fuel drums left during previous exercises. We went to Mistake Creek, Timber Creek (twice) and Roper River. This involved continuous driving every day and again I would say we drove at least 8 hours every day." (Exhibit C, pages 3-4)

In giving evidence to the VRB, Mr Deane had said that he drove amphibious vehicles for at least 20 hours per week (Exhibit 2, pages 8-9). In relation to his work at 107 Supply & Transport Platoon, Mr Deane told the VRB that "… we were doing the same duties as you were when I was in the Transport Unit before, the last ….. was 107 Supply and Transport ….. and the basic driving duties were the same. Only the vehicles were a hell of a lot worse I guess at that stage. ….. in the Territory …" (Exhibit 2, page 9). During the last three years of his service, Mr Deane estimated, he had been driving for "… at least 20 to 30 of those hours …" (Exhibit 2, page 8). At the end of the hearing, Mr Deane said that he did:

"…. recall in 1979 the 4th Field Survey was in Darwin and we were used, our unit was used to support all their work and that was – that involved basically 31/2 months of off-road work from Darwin to Larrimah. I was involved in that period of time too, that was in 1979. …." (Exhibit 2, page 14)

Mr Deane did not state how much driving was involved in this work and was not asked.

Mr Roy Gilbert

Mr Gilbert said in his statement that he recalled supervising Mr Deane as his platoon sergeant with 7 MD Transport Section from 1978 to 1980. That was in the late 1970s and the early 1980s. At the time, he had some seven to nine drivers. As a driver, Mr Deane undertook general domiciliary tasks and exercises. Domiciliary tasks included such things as collecting stores in and out of Darwin and transporting personnel. Carrying personnel could have required him to drive a troop carrying vehicle or, if it were the Commanding Officer, a vehicle such as a Chevrolet. Exercises required him to drive International trucks. Exercises occurred two or three times each year and each lasted three or four weeks. They required him to drive for miles over fairly wide open country. He continued:

"As Len was employed as a driver for our unit, all I can say is that he did a hell of a lot of driving.
There would have been documents to support this, in the form of 'daily work tickets'.
These daily work tickets were filled out at the end of each day and stated when a worker started, when they finished and the tasks they engaged in including where they travelled.
These were kept in the office at the Larrakeyah barracks, however they were destroyed after five years as that was army policy and so Len Deanes (sic) tickets would not exist anymore, on my understanding.
From memory, a driver such as Len would have driven a minimum of three or four hours each working day, however, would frequently be driving for in excess of 8 hours per day.
In answer to the direct question of whether he would have averaged six hours per day driving or more, I would say that he would have driven at least six hours per day on average, or more than thirty hours per week." (Exhibit A)

In his oral evidence, Mr Gilbert said that Mr Deane would have driven for 8 or 9 hours a day during the exercises. That would have depended on what they were doing for the day. Activities would include map-reading or travelling. With domestic duties, they would be driving for "… 3 or 4 hours a day, most probably up to 5 or 6. I can't be real sure." (transcript page 6) Each of the drivers was also on a roster to perform night work. Each driver was on night duty "once a week or once a fortnight, something like that." (transcript page 6). At night, the drivers would drive officers to a function or a meeting. They would drive them and either wait or pick them up later. When they were not driving, they would perform other duties.

Mr Bob Charles

In his statement, Mr Charles said that he was the platoon sergeant for two years from about 1980 to 1982. He supervised Mr Deane, he said, for approximately 12 months. In his oral evidence, Mr Charles said that he had commenced just before Christmas and agreed that he had supervised Mr Charles for only 5 or 6 weeks. He had thought that it had been longer.

He allocated tasks to the six or seven drivers in the unit. He said that Mr Deane's duties involved principally driving but also included vehicle servicing and maintenance. There was no such thing as a typical week, he said:

"… Our drivers were required to perform a number of different driving tasks, in a range of different vehicles, from staff cars, to four tonne trucks, to troop carriers.
The six or seven drivers we had was never enough, and the allocation of driving tasks to Len and the other drivers was virtually constant.
A normal shift for our drivers was 7 am to 4 pm, the day starting with some physical training, before commencement of duties.
Often, however, a driver would be required to work much longer hours, for example, if a CO was in town, which was frequent, in which case a driver may continue working to 10 or 11 o'clock in the evening, driving the CO around.
Also a driver would be engaged in duty for extended hours on a bush trip, which might last for several days or weeks, and to my recollection this would occur two or three times per year. A driver might well be required to drive 10 hours per day, seven days a week on one of these bush trips. The drivers would be integral to army exercises, and in this work would be involved in 'cross-country', or off-road driving also.
Drivers were not just assigned to moving people but they were also courriers (sic), transporting cargo as well.
Drivers including Len Deane would be transporting people or cargo on an almost continuous basis.
If one were to average out the driving hours of Len Deane whilst under my supervision, I would say that it would come to a very minimum of 30 hours per week." (Exhibit B)

In cross examination, Mr Charles was asked whether the 30 hours comprised all driving time or included other tasks. He replied that it would "… probably be a bit of both" (transcript, page 16). When the drivers were sent on tasks, he was not always aware what they were doing. It would depend on where they had gone and what they were required to do. The drivers would load and unload their trucks. They cleaned the vehicles as well. Driving a Commander entails a lot of driving and a lot of waiting. When they were rostered on a 24 hour shift, which happened every 7 to 8 days, they would wait in the guard room unless they were undertaking set tasks (such as travelling to Shoal Bay) or required to perform other duties.

MEDICAL MATTERS

Mr Deane

In his statement, Mr Deane said that he had never suffered any traumatic injury to his neck. He had begun to suffer headaches in the area of the back of his head and top of his neck during the mid to early 1980s. In his oral evidence, Mr Deane said that he suffered headaches in the early 1980s and that they had progressively worsened. He described his neck on wakening each morning as "… sort of stiff and you sort of rub it and it's – and whatever else it sort of – do your little neck exercises and so forth until it warms up and you – you're right for a while and then you've got to have your - your medication then, because the aches are just there continuous unless you don't have it." (transcript pages 35-36) In the late 1980s, the headaches were more frequent and, if he did not take something such as Aspirin, they would stay with him all day. He would not get them for two days but then they would come back again. The headaches have now reached the stage where they are with him every day.

Mr Deane said that he did not go much to doctors in the 1980s. That was because the pain would go when he took Panadol and the Army taught him not to be a whinger or malingerer. In the 1990s, he would start to complain about his neck and his back whenever he saw the doctor. He thought that he had been prescribed Voltaren and Naprosyn at some stage.

At the hearing by the VRB, Mr Deane had said that he would get headaches every two or three days. He eventually went to the doctor in late 1989 or in the early nineties but he had been suffering from the headaches since the mid eighties. They had gradually become worse. (Exhibit 2, pages 6-7)

The Attendance and Treatment card relating to Mr Deane's service records his suffering from pain and tenderness in the L5/S1 region of his back. He is then recorded as suffering from back pain on 4 September, 1972 and a back injury on 17 January, 1974 (T documents, pages 24-25).

The clinical notes of Dr Wake (and presumably of other medical practitioners in the same practice) are difficult to read. They begin in 1982 when he had pain in the right S1 region and continued through the years recording such matters as injuries received at football, shoulder pain suffered after playing football, food poisoning, diarrhoea, kick to the achilles tendon, flu like symptoms and back pain and strain at the L4-5 level of the spine after football. Mr Deane was referred for X-rays in 1985 with a history of "rec low back pain". The first reference to pain in the cervical spine occurs in October, 1990 when the entry reads, in part "Tennis elbow 1/12 / shoulder neck back pain". The next entry recording "neck pain on & off" was written in 1994. Mr Deane attended the doctor on 1 August, 1996 with neck and upper back pain leading to headaches. Massage was prescribed. In April, 1997, the notes record "2 yrs neck pain/headaches" and "tender neck muscles". Mr Deane's neck pain was noted again on 16 February, 1998. On 5 June, 1998, the notes recorded that a "Disc fell into head 2/7 ago … ? headaches since …". Mr Deane

On 18 April, 1997, Dr Angus Robertson reported on an X-ray taken of Mr Deane's cervical spine:

"Long standing and quite advanced degenerative changes are present in the C6/7 disc where there is bilateral encroachment on the exit neural foramen. The other cervical discs appear within normal. No destructive lesions are seen in visualised bones." (T documents, page 50)

A CT scan was taken of Mr Deane's cervical spine and this was reported on by Perrett Harrison & Partners on 28 July, 1997:

"C3/4 level:     There is a small smooth posterior osteophytic bar which is centred to the right of the midline. The osteophytes fattens the anterior margin of the theca but does not appear to distort the cord. The osteophytes does not significantly constrict the C4 neural foramina.
C4/5 level:      No evidence of abnormal disc protrusion or osteophytes formation. The theca is centrally positioned.
C5/6 level:      There is a minor posterior disc bulge which slightly flattens the anterior margin of the theca however a clear rim of CSF surrounds the cord which is normally positioned. No evidence of osteophytic or disc impingement upon the C6 nerve root.
C6/7 level:      There is a small irregular posterior osteophytic bar with a focal left paracentral disc bulge extending into the upper margin of the C7 neural foramina which is relatively broad and the disc therefore does not necessarily cause significant impingement on the exiting C7 nerve root. The adjacent disc is degenerate with prominent sclerosis and irregularity of the adjacent end plate.
C7/T1 level:     Image quality at this level has been significantly degraded due to beam harding artifact from the overlying shoulders. No evidence of abnormal disc protrusion. The calibre of the spinal canal and neural foramina are well maintained." (T documents, page 51)

On 19 October, 1998, Mr Deane's then general practitioner, Dr Sankarayya, referred him to Dr David Millons, a surgeon, for an assessment as required by the Department of Veterans' Affairs. Dr Sankarayya told Dr Millons that Mr Deane:

"… had chronic neck pain producing headaches. This has been attributed to army service & prolonged travel in army trucks. X/R shows marked degenerative changes." (T documents, page 52)

Dr Millons wrote a report to Dr Sankarayya on 16 November, 1998. He set out the history he had obtained from Mr Deane and did so both in relation to back and neck pain:

"Mr. Deane has been having problems with his neck. He states that there were never ever recorded any incidents of neck pain during his Army service. He told me that part of his duties in the Field Force entailed driving trucks with very poor suspension through the bush. He thinks the jarring may have been aggravating to his neck problems although he admits to not having any neck symptoms while there.
Possibly in the 1980's, he started to develop some aching in his neck for which he would take an occasional Disprin or Panadol. Neck pain seemed to be somewhat more obvious in the 1990's and he saw Dr. Wake early in the piece. No X-rays or investigations were forthcoming.
When Dr. Wake left, he came under your care. Mr. Deane states that he has been putting up with his neck pain since that time. X-rays and CT scanning were performed last year. They demonstrated a problem for which … Dr Sankarayya] prescribed Naprosyn. Mr. Deane had no formal physiotherapy.
For the last couple of years, he has been having chiropractic treatment on and off for his back particularly. Treatments are now down to about once every fortnight. It seems to give him some ease.
Pain spreads from the neck and up to the back of the head. Every day, he gets headaches for which he takes Naprosyn. His neck does not seem that stiff to him but he has been aware that when working in the Administrative Section in the Prison, he has more pain when sitting underneath an air conditioning unit.
Mr. Deane does a regular neck and back exercise program." (T documents, page 45)

On examination, Dr Millons noted that:

"There is no spasm or tilt of the cervical spine. There is some tenderness over the mid and lower cervical spinous processes and over either side of the middle of the neck. There is reasonably good range of painless flexion and extension, rotation and lateral flexion." (T documents, pages 45)

In conclusion, Dr Millons wrote that he had reviewed the SoP concerning intervertebral disc prolapse and continued:

"Mr. Deane maintains his problems with his back and with his neck which somehow he relates to his time in the Services.
…
He now seeks to include his neck in the equation. On all reasonable grounds, I do not see how that can really stand up. There was no history of any recorded neck injury during his time in the Services. While he was driving trucks with no suspension over uneven terrain and bouncing around in water transport, the absence of neck symptoms during his time in the Services would indicate that there was no overt problem then.
X-rays of the neck taken in April last year have revealed moderate degenerate change at C6/7 which, I suspect, is constitutionally based and not caused by his time in the Army or due to the nature and conditions of his work thereafter.
I have gone through all the factors that must exist before it can be said that on the balance of probabilities an intervertebral disc prolapse is connected with the circumstances of a person's relevant service. I do not think they apply." (T documents, pages 46 and 47)

In giving oral evidence, Dr Millons described the mechanics of an intervertebral disc prolapse:

"The vertebral column is made up of a number of vertebral bodies, bony bodies. Between the bony bodies are the discs which are like shock absorbers. The shock absorber is made of a soft centre, the nucleus and they have got fibrous touch outer coating, the annulus. In a disc prolapse, the soft centre, the nucleus protrudes through a split in the annulus and can extend out backwards pressing on the various nerves that run up and down the spinal canal, giving rise to symptoms from the neck and the arms and from the back in the legs." (transcript page 23)

The protrusion may go to the front of the spinal column. If that occurs, it is relatively asymptomatic but, if it goes to the back as is usually the case, it can press on the spinal cord giving rise to symptoms or on the emerging nerve roots as they run out between the bones. The symptoms are acute pain in the neck and sometimes radiating pain in the arm in the case of the neck or the leg in the case of the back. Pins and needles, numbness and weakness along the course of the nerve root is experienced. Headaches are a symptom as a person can get a muscle spasm up the back of the neck and that gives rise to headaches.

Dr Millons explained the X-ray reports:

"… The X-rays of the neck that he had taken in 1997 showed that there was degenerate changes at C5-6. That means that that disc, the soft centre is actually dehydrating and the disc is collapsing a little. The scan of the cervical spine which is in fact transverse slices through the neck, showed a bony ridge at C3-4, a little higher than the degenerative changes noted on the plain X-ray. There was some posterior bulging of the disc in C5-6. In other words the disc was drying out and tending to protrude a little posturally but there was no frank disc protrusion. At the level below that again there was evidence of some degenerate change with a central disc bulge. So I mean, he has got changes really at two and possibly three levels in his neck. Those changes are of a chronic degeneration." (transcript pages 23-24)

Dr Millons explained that there are different degrees of what may happen to a disc. There are minor degrees of bulging and, as they become more bulgy, they are called protrusions. When it stands out more, it becomes a prolapse. The X-rays of Mr Deane's cervical spine showed a "… level of minor bulging or early protrusion, if you like, no more than that." (transcript page 28) Dr Millons believed that there were degenerate changes because he had not been given a history of any "… frank injury that might have set it up." (transcript page 24) He continued:

"… if there is a history of a frank injury to the neck that may cause damage to a disc and there is a persistence of symptoms from that time on then that may be responsible for the changes in a disc on X-rays some years later." (transcript page 24)

Dr Millons did not consider that there was any connection between Mr Deane's back and neck condition. He said that it was not possible to ascertain the precise time of the onset of Mr Deane's interevertebral disc prolapse and agreed that the condition would get a little bit worse each year. That is the nature of a degenerative condition. The radiological changes Mr Deane had in 1997 would clearly have been present for several years. He would guess at least five years and maybe more. In cross examination, Dr Millons agreed that, if Mr Deane experienced symptoms in the 1980s, there may have been some pathology then.

CONSIDERATION

As there is no dispute as to Mr Deane's suffering from intervertebral disc prolapse, the first question to consider is the time of its clinical onset.

I accept that Mr Deane has suffered pain in the region of his neck and headaches for some time. On the basis of his evidence, I find that he was able to control the pain with Aspirin or Panadol in earlier years and that he did not seek medical attention. I make that finding based both on his own evidence and that of the medical records from his general practitioner's surgery.

I also accept the evidence of Dr Millons that, based on the X-ray evidence taken in 1997 and on his examination of Mr Deane, Mr Deane's intervertebral discs showed only a minor or mild degree of bulging or protrusion. Given that I also accept that the bulging or protrusion would have worsened a little year by year, it follows that I also find that any bulging or protrusion would have been progressively less minor in the years preceding 1997.

That brings me to the question of when Mr Deane first suffered a bulging or protrusion. Dr Millons thought that it could have been present for the five years preceding 1997. That would only take it back to 1992 or thereabouts. Dr Millons conceded that it might have been present longer but that concession must be read with his later statement that Mr Deane might have had pathology in the 1980s if he suffered symptoms in the 1980s. The medical records of the general practitioner do not record any reference to neck pain in the 1980s and the first is in 1990 and the second in 1994. I am satisfied on the basis of the medical records that Mr Deane complained regularly of his neck pain after 1994.

The records would tend to suggest that, rather than suffering pain regularly in the early 1980s, Mr Deane suffered from it regularly in the 1990s. I accept that he may have controlled it in the early 1990s until about 1994 with medication such as Panadol and Aspirin. While accepting that Mr Deane's memory is that he did not go much to doctors in the 1980s, I find on the basis of the evidence of the medical records that he went two or three times each year. That may not be very much but the range of matters for which he attended the doctor is such that it would be surprising if he did not mention that he was suffering headaches and neck pain if he were doing so with any degree of regularity. When taken with the mild nature of Mr Deane's bulging or protrusion of his disc, his omission to mention headaches or neck pain to his general practitioner at all until 1990 and his not doing so further until 1994, leads me to conclude that, on the balance of probabilities, he was not suffering symptoms in the early 1980s or even the mid to late 1980s. I do find that he was suffering from symptoms in 1990 and thereafter. That finding is contrary to Mr Deane's recollection but, while not doubting the genuiness of his recollection, I prefer the conclusion offered by the objective evidence of the medical records and the mild nature of the pathology from which he suffers.

In view of Dr Millons' evidence, I find that Mr Deane's suffering symptoms is indicative of his having pathology and so I am satisfied that he was suffering from intervertebral disc protrusion at that time. As to how much before 1990 Mr Deane was suffering from symptoms is a matter of some concern. It is an important issue as paragraphs 5(d) and (k) of SoP 131 require me to have regard to the ten year period prior to its clinical onset (or worsening in an appropriate case).

Again, I have had regard both to Dr Millons' evidence as to the moderate or mild nature of Mr Deane's condition and his view that its onset would have been some five years before 1997. I have also had regard to Mr Deane's pattern of attending his general practitioner. That pattern appears to be one of attendance at his general practitioner when a condition occurred. So, for example, there are examples of his attending for football injuries and for complaints which had acute, although not necessarily long lasting, symptoms such as diarrhoea. He did also attend for those which persisted. His tennis elbow, for example, had persisted for a month. On the basis of his evidence, I find that his neck pain was something that persisted. His not attending his general practitioner even though it had persisted is not necessarily inconsistent with his other consultations. As he said, he was able to control the pain with Aspirin and Panadol. While that was the case, there was no need for him to attend but he did attend when that medication was no longer enough. That occurred in October, 1990. On the balance of probabilities, I am satisfied that he would have suffered pain for quite some time before he consulted his general practitioner and certainly throughout 1990 and 1989.

Mr Deane has associated his pain with his driving while in the Army. Dr Millons discounted this but did so on the basis that he had no overt symptoms during his service and from his understanding of SoP 131. It is clear from SoP 131, however, that it recognises that a person's intervertebral disc prolapse may be connected with the circumstances of a person's service even though there is no evidence of its clinical onset during his or her service. Dr Millons recognised that symptoms such as headaches and pain were an indication of the clinical onset of the condition. He did not question that a person could suffer an intervertebral disc prolapse by virtue of driving in certain circumstances. In view of that and of the findings I have made as to the onset of Mr Deane's condition, I am satisfied on the balance of probabilities that the material before the Commission raises a connection between his condition and the service he rendered as a driver in the Army.

The next question to consider is whether paragraphs 5(d) and/or (k) uphold the contention that his condition is, on the balance of probabilities, connected with his service. In this regard, there are discrepancies amongst the evidence of Mr Deane, Mr Gilbert, and Mr Charles. In view of the lapse of time since they worked together, this is understandable. It is also understandable in view of the destruction of the daily work tickets Mr Deane would have completed at the end of each day he worked as a driver. Those discrepancies are not such that they bring the credibility of the witnesses into question.

Mr Deane's evidence at the hearing and in his statement as well as that he gave at the hearing before the VRB are also broadly consistent. Certainly, Mr Deane described his work in the last three years of his time with the Army as involving 20 to 30 hours and he said at the hearing that he drove at least thirty hours each week. I do not, however, accept that he has contrived his evidence to me simply to meet the requirements of SoP 131. His evidence was that he was driving at least 20 to 30 hours each week. That estimate did not include any allowance for his work with 4th Field Survey in 1979. It is consistent with his evidence at the hearing. His subsequent hearing was, no doubt, more detailed but that was as a result of his having had the opportunity to explore the issues further with his solicitor and his having been cross examined by Mr Doube. It was not as a result of his contriving the evidence.

After weighing up all of the evidence and trying to reconcile any discrepancies, I am satisfied that Mr Deane was involved in driving duties, as opposed to duties such as unloading a vehicle or merely waiting for passengers, for the following periods:

Year Description Weeks Days Hours Total

Survey 12 6 8 576
Exercise 2 7 8 112
Survey 5 6 8 240
Normal weekly duties 29 5 4 580
Weekend roster (one weekend per month engaged in normal weekly duties) - 14 (7 months x 2 days) 8 112
Exercise 2 7 8 112
Survey 5 6 8 240
Normal weekly duties 41 5 4 820
Weekend roster (one weekend per month engaged in normal weekly duties) - 20 (10 months x 2 days) 8 160

Although it was not addressed in evidence, I have assumed that Mr Deane had 4 weeks holiday each year. Over the 48 weeks for which he worked, he dove for 2,962 hours. On the basis that he worked for 96 weeks in 1979 and 1980, I find that he drove for 30.75 hours each week. This figure allows only for three direct round trips to Shoal Bay each day during his weekend roster and so is somewhat conservative in that it makes no allowance for any additional driving.

It follows from this finding that paragraph 5(d) upholds the contention that Mr Deane's intervertebral disc prolapse is, on the balance of probabilities, connected with that service. Therefore, I find that it is a defence-caused condition within the meaning of the Act and, for the reasons I have given, I:

1.set aside the decision of the respondent dated 13 February, 1998 and affirmed by the Veterans' Review Board on 18 May, 1999; and
2.substitute a decision that the applicant's intervertebral disc prolapse is a defence-caused injury within the meaning of the Veterans' Entitlements Act 1986; and
3.adjourn further consideration of the assessment of any pension to which the applicant is entitled to a date to be fixed.

I certify that the sixty preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President)
Signed:          .......................................…
  M Martinez     Associate
Dates of Hearing   26 May, 2000; 15 September, 2000
Date of Decision   19 October, 2000
Solicitor for the Applicant          Mr B Piper
Advocate for the Respondent      Mr G Doube

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Citations

Deane and Repatriation Commission [2000] AATA 914

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Wright v Repatriation Commission [2005] FCA 7

[2000] AATA 914

19 October 2000