Donoghue and Repatriation Commission - [2003] AATA 50

DECISION AND REASONS FOR DECISION [2003] AATA 50

ADMINISTRATIVE APPEALS TRIBUNAL        Nº N2001/744
VETERANS' APPEALS DIVISION
  Re:         DANIEL PATRICK DONOGHUE
  Applicant
  And:       REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal:       P.J. Lindsay, Senior Member
Date:             17 January 2003
Place:            Sydney

Decision:Decision under review set aside. In substitution the Tribunal decides that Mr Donoghue's lumbar spondylosis is a war-caused disease with effect from 24 February 1999. The matter is remitted to the Commission for assessment.

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Senior Member

© Commonwealth of Australia (2003)CATCHWORDS
Veterans Affairs – entitlement - lumbar spondylosis – whether a war-caused disease – necessity for Applicant to have suffered a 'trauma' in accordance with relevant Statement of Principles – decision set aside.
Veterans' Entitlements Act 1986, ss.120, 120A
Repatriation Medical Authority Statement of Principles, Instrument No. 46 of 2002 concerning Lumbar Spondylosis as amended by Instrument No. 77 of 2002.
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Gorton (2001) 110 FCR 321
Connors v Repatriation Commission (2000) 59 ALD 61
East v Repatriation Commission (1987) 16 FCR 517
Harris v Repatriation Commission (2000) 31 AAR 270

REASONS FOR DECISION

P.J. Lindsay, Senior Member

This is an application under the Veterans' Entitlements Act 1986 (the Act) for review of a decision by the Repatriation Commission (the Commission) which refused Mr Donoghue's claim for acceptance of lumbar spondylosis as a war-caused disease under the Act. The decision was affirmed by the Veterans' Review Board.
Mr B. Winship, solicitor, appeared for Mr Donoghue. The Commission was represented by Mr J. Marsh from the Department of Veterans' Affairs. The only witness to give evidence at the hearing was Mr Donoghue. The Tribunal had before it the documents lodged under s.37 of the Administrative Appeals Tribunal Act 1975 (the T documents) and also the exhibits tendered during the hearing.
background
The parties do not dispute that Mr Donoghue served in the Australian Army from 27 October 1941 to 26 February 1945 and that this was a period of eligible war service and operational service. Mr Donoghue's service records in the T documents note that on enlistment he was assessed as fit. During service he was treated for a number of disabilities including a right inguinal hernia, upper respiratory tract infection, pleurisy, infective jaundice, pharyngitis, painful feet and painful shoulders. He was medically examined for reclassification purposes in July 1944 but there was no record of any complaint regarding his back (T10). On discharge in February 1945 he complained of rheumatic pains in both shoulders and pains in his feet and in the back of his legs after standing and marching. The examining doctor recorded that he had a full range of movement in all joints with slight crepitus in both knees and shoulders (T6). The medical board considered each complaint to be constitutional in origin (T3). Notably, there was no mention of an injury to his back. When,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Donoghue and Repatriation Commission

Details

AGLC: Donoghue and Repatriation Commission [2003] AATA 50
Case: [2003] AATA 50
Decision Date: 17 January 2003

CaseChat Overview and Summary

The case involves Mr Donoghue, who is seeking a pension for his lumbar spondylosis, which he claims was caused by his service in the Australian Army during World War II. The dispute revolves around whether the lumbar spondylosis is a war-caused disease, requiring the Repatriation Commission to determine if it fits within the criteria set by the relevant Statement of Principles. The Federal Court is the judicial body reviewing the Commission's decision.

The primary legal issue the court had to address was whether Mr Donoghue's lumbar spondylosis is a war-caused disease under the Veterans' Entitlements Act 1986. Specifically, the court needed to decide if the lumbar spondylosis was connected to a trauma during his service, as defined by the Repatriation Medical Authority's Statement of Principles. The court also had to assess whether Mr Donoghue's account of the injury met the criteria for a 'trauma' as outlined in the applicable Statement of Principles.

The court examined Mr Donoghue's service records and medical evidence, including his recollection of an incident where he injured his back while serving. The court noted that Mr Donoghue's service records did not mention any back injury, but the medical evidence indicated that he suffered from lumbar spondylosis. The court considered the definition of 'trauma' in the relevant Statement of Principles and whether Mr Donoghue's account of the injury met this definition. The court concluded that the injury Mr Donoghue described did not constitute a 'trauma' within the meaning of the Statement of Principles. Consequently, the court found that the hypothesis connecting the lumbar spondylosis with Mr Donoghue's service did not fit the template set by the Statement of Principles.

The court set aside the Commission's decision, finding that Mr Donoghue's lumbar spondylosis was not war-caused because it did not meet the criteria for a war-related injury as defined by the applicable Statement of Principles. The court directed the Commission to reconsider the claim in light of its decision.

Orders

Orders of the court

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Background

Background to the litigation

Mr B. Winship, solicitor, appeared for Mr Donoghue. The Commission was represented by Mr J. Marsh from the Department of Veterans' Affairs. The only witness to give evidence at the hearing was Mr Donoghue. The Tribunal had before it the documents lodged under s.37 of the Administrative Appeals Tribunal Act 1975 (the T documents) and also the exhibits tendered during the hearing. background The parties do not dispute that Mr Donoghue served in the Australian Army from 27 October 1941 to 26 February 1945 and that this was a period of eligible war service and operational service. Mr Donoghue's service records in the T documents note that on enlistment he was assessed as fit. During service he was treated for a number of disabilities including a right inguinal hernia, upper respiratory tract infection, pleurisy, infective jaundice, pharyngitis, painful feet and painful shoulders. He was medically examined for reclassification purposes in July 1944 but there was no record of any complaint regarding his back (T10). On discharge in February 1945 he complained of rheumatic pains in both shoulders and pains in his feet and in the back of his legs after standing and marching. The examining doctor recorded that he had a full range of movement in all joints with slight crepitus in both knees and shoulders (T6). The medical board considered each complaint to be constitutional in origin (T3). Notably, there was no mention of an injury to his back. When, however, Mr Donoghue claimed pension entitlements in 1955 he described the disability as "severe pains in shoulders extending down the shoulder blades and back, also neck" (Exhibit R1 p.54). He explained the connection between the disability and his service as "Caused by conditions under which I served, because I didn't have any problem with my shoulders or any other part of my body before I enlisted." There is also no dispute that Mr Donoghue suffers from lumbar spondylosis. Mr Donoghue lodged a claim in 1973 for pension, originally relating to incapacity resulting from arthritis, but later changed to lumbar spondylosis and cervical spondylosis. Lumbar spondylosis was diagnosed in 1973 by Dr McNamee, orthopaedic surgeon. Neither Dr McNamee nor Dr Corrigan, rheumatologist, who also examined the Applicant in 1973, noted a history of injury to the back (T5). The Repatriation Board rejected the claim on the basis of medical evidence that his lumbar spondylosis and cervical spondylosis were consistent with age degeneration, and his appeal to the Commission in 1974 was disallowed. Mr Donoghue next appealed to the Repatriation Review Tribunal in 1979. In his application to the Repatriation Review Tribunal dated 4 October 1979 (Exhibit R1 p.36) he wrote that the reasons for his application were that he suffered an injury to his back while unloading a truck:Whilst serving at Townsville in 35th Employment Coy during 1943 I suffered a back injury. The circumstances follow. Four or five whom I was one, were unloading 44 gallon drums of petrol from a blitz truck when one unbalanced. I am sure that without my intervention, it would have severely injured my work mate. Unfortunately my effort was made on the spur of the moment and I took the weight of the 450 lb. drum while I was off balance. I suffered severe back pain immediately and for some days my mates had to cover for me. …

Evidence

Evidence Before The Court

An appeal was made in 1982 to the Repatriation Review Tribunal but it too failed. The Repatriation Review Tribunal accepted that Mr Donoghue could have injured his back while on service. It could make no finding that the injury was such as to accelerate the degenerative process. The Repatriation Review Tribunal decided that the weight of evidence suggested that the degenerative changes in his spine were consistent with his age, and concluded that it was satisfied beyond reasonable doubt that the requisite relationship between his condition and service was not a real possibility. Mr Donoghue lodged his current claim for pension in respect of lumbar spondylosis in June 1999 (T15). The Commission refused the claim on the ground that the condition was not war-caused. evidence Mr Donoghue made a statement on 16 November 2001, which was accepted in evidence without objection, where he said:In 1942 or 1943 I was serving with the Australian Army. My unit was camped on the outskirts of Townsville in Queensland. Our job was to load and unload drums of fuel. The fuel came in galvanised 44 gallon drums …On one occasion I was either loading or unloading full drums from the back of a truck. One of the drums began to tip off the truck. I believed the drum was going to strike one of the other blokes who was momentarily distracted. I moved and deflected the drum at about chest height taking the full weight on my arms and upper body. I fell to my knees. The other bloke said "what's happened". I replied "I think I hurt my back." I stayed on the ground for some time. I was assisted back to the truck and taken back to the barracks. I was assisted to the RAP. I was given something to take for the pain and told to rest. I believe it may have been a bex or a APC. I was assisted back to my tent and lay down. At this time my back was hurting so badly I was afraid to move once I lay down. Laying down was the only way of gaining any relief from the pain.The next morning I was not fit for work. I went back to the RAP and was given something to take. Medication was only handed out in small amounts. I rested in my tent all day. I lay down for much of the day. The pain was much the same as the previous day. I took either two or three full days off work and rested in my tent. I had great difficulty doing anything at this time, including simple things like going to the toilet. I returned to work after spending two or three full days resting in my tent. When I returned to work the chap in charge, I think he was a Corporal, was aware of my back injury and the difficulties it was causing me. He told me lie in the shade. I spent three or four days doing this. I spent most of these days laying prone on the ground. It was very painful even to turn on my side. I required assistance to get up off the ground and I also required assistance getting in and out the truck. After three or four days of this my back was beginning to improve a little.Approximately five to seven days after the initial injury I was given a job checking the details of the trucks and recording the number of drums on each truck. There was no physical work in this job. Most of the time doing this job I was able to sit or lie down to relieve my back pain. I was still having back pain and was still restricted in my movement. If I had to spend any time on my feet my back would hurt much more. I couldn't possibly have done my previous job as I couldn't take any weight because of my back.After about two weeks doing the checking job I was back to normal duties loading and unloading drums from the trucks. I was still not doing heavy work at this time because of my back. I was really just assisting and the other blokes would do the heavy lifting. …

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In cross-examination, Mr Donoghue said the drum did not fall onto his back or hit him on the back. He took the weight of the drum on his arms. He was unable to say definitely that he visited the RAP, but he said that he was given painkillers that were supplied by the RAP. He agreed that he was probably able to tie his boot laces by the time he rejoined his work party, which was a couple of days after the incident. Mr Donoghue added that while he went out to work with his colleagues he did not do any work. Although he worked on his family's sheep farm after discharge, he did no shearing or crutching. Mr Donoghue said he has not since suffered another injury to his back, whether while working on the farm or in other circumstances. consideration As Mr Donoghue rendered operational service, s.120(1) of the Act applies and the disease of lumbar spondylosis will be determined to be war-caused unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. The Tribunal will be so satisfied if it is of the view that the material before it does not raise a reasonable hypothesis connecting the disease with the circumstances of Mr Donoghue's service: s.120(3). As his claim for pension was lodged after 1 June 1994, s.120A of the Act applies and the Tribunal is to assess the reasonableness of the hypothesis in accordance with any Statement of Principles (SoP) issued by the Repatriation Medical Authority (RMA). The Commission accepts Mr Donoghue's account of the injury and that he did injure himself in the manner he described. Mr Marsh submitted that the issue for the Tribunal is whether Mr Donoghue's injury meets the definition of 'trauma to the lumbar spine' in the SoP. In reviewing the decision in question, the Tribunal must follow the approach that the Full Court of the Federal Court laid down in Repatriation Commission v Deledio (1998) 49 ALD 193, at 206:1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail. 2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). ... 3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail. 4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.