Downing and Repatriation Commission - [2001] AATA 963

DECISION AND REASONS FOR DECISION [2001] AATA 963

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1254

VETERANS' APPEALS   DIVISION     )
           Re      Michael Alfred Downing
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal M J Sassella, Senior Member Dr J D Campbell, Member

Date27 November 2001
PlaceSydney

Decision      The decision under review is set aside. In substitution the Tribunal decides that the Applicant's cervical spondylosis is a war-caused disease and that he is to be paid Disability Pension at 80% of the general rate as of the first pension payday on or after 1 August 1995.
  [SGD]    M SASSELLA
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – whether cervical spondylosis service related – hearing loss and generalised anxiety disorder service related – impediment to work - increased rate of Disability Pension – finding of cervical spondylosis service related – special and intermediate rate Disability Pension – alone test – ameliorating provision
Veterans' Entitlement Act 1986, ss 6C(1), 7(1)(a), 9(1)(a), 13(1)(b), (d), 14(1), (3), (4), 19(6), (9) definitions of "application day", "assessment period", 20(1), 21A, 23(1), (2), (3), 24(1), (2), 24A, 28, 29(1), (3), (4), (7), (9), 120(1), (3), (4), (6), 120A(1), (3), 196B(1), (2), (3), 196D.

Repatriation Commission v Deledio (1998) ALD 193
Harris v Repatriation Commission [2000] FCA 873
Arnott v Repatriation Commission [2001] FCA 262
Flentjar v Repatriation Commission (1997) 48 ALD 1
Re Hornery and Repatriation Commission (1998) 52 ALD 317
Re Brennan and Repatriation Commission (1996) 42 ALD 191

REASONS FOR DECISION

M J Sassella, Senior Member Dr J D Campbell, Member

On 1 November 1995 Michael Alfred Downing ("the Applicant") lodged an application for Disability Pension and medical treatment with the Department of Veterans' Affairs ("the DVA") (T4). The Applicant claimed that his conditions of post traumatic stress disorder ("PTSD"), cervical spondylosis and noise induced hearing loss were war- or defence-caused.
On 30 April 1996 the Applicant completed a service pension claim for the DVA (T13B). He described his conditions as cervical spondylosis, generalised anxiety disorder, deafness, memory loss and tingling fingers, left arm and neck. Except for his anxiety and deafness, which he described as "stable", his conditions were deteriorating.
On 4 July 1996 the Applicant's treating doctor, Dr Barratt, filled out a claim for permanent incapacity for the Applicant (folio 48H). He listed the Applicant's conditions as anxiety state (permanent and stable) and cervical, lumbar and thoracic spondylosis (stable and deteriorating slowly). He stated that light/lesser skilled work would be suitable provided there was no aggravation of the back and neck.
On 8 July 1996 the Repatriation Commission ("the Respondent") accepted the Applicant's claim for generalised anxiety disorder and bilateral sensorineural hearing loss ("BSHL"), with date of effect being 1 August 1995 (T15). However, in the same decision it refused his claim for cervical spondylosis. This was on the basis that the condition developed after the Applicant's service had ceased. The Applicant was granted a disability pension at 50% of the general rate.
On 18 July 1996 the Applicant lodged an application for review of the Repatriation Commission decision with the Veterans' Review Board ("the VRB") (T16). There was no specific objection to the Respondent's decision, but the Applicant stated that it was "wrong in fact and law."
The Decision Under Review
On 20 July 1999 the VRB affirmed the decision under review in respect of the refusal to accept as war-caused the Applicant's condition of cervical spondylosis and the assessment of pension entitlement at 50% of the general rate (T24). The VRB was of the view that, in relation to cervical spondylosis, the Applicant did not suffer a discrete injury to the cervical spine when he was involved in a jarring incident when driving a forklift truck. The VRB noted that when the Applicant lodged an application for Disability Pension and medical treatment he attributed the back problems to the fact that he had to lift munitions and stores as part of duties. However six months later, when applying for service pension on the grounds of invalidity, the Applicant stated that he did not know when the condition started. Further, there is no record of the Applicant either reporting the injury or seeking treatment for it. The Applicant stated at the VRB hearing that he was bed-ridden for seven to 10 days because of extreme pain, but the VRB did not accept this assertion. At the time the Applicant was only two to three hundred meters from an army hospital. The VRB found it unlikely that the Applicant would not have sought treatment for extreme pain when in such close proximity to a hospital. The VRB further found that "jarring" suggested a "shock through the body and that this would not constitute a discrete injury to the cervical spine" as is required by the relevant Statement of Principles ("SOP"). In relation to impairment ratings, using the Guide to the Assessment of Veterans' Pensions, 5th Edition ("GARP") ( the VRB assessed the Applicant as attracting 20 points for generalised anxiety disorder, 2 points for BSHL and 5 points for tinnitus (total rounded score of 25 points). The Applicant was assessed by the VRB as having a lifestyle rating of 3. Although this equated to a pension entitlement at 40% of the general rate in accordance with GARP, the Board maintained the veteran's pension at 50% because his degree of incapacity had not decreased and because there was no false statement or representation in relation to his previous assessment.

Background

The Applicant was born on 27 May 1943 and he is currently in receipt of a Disability Pension at 50% of the general rate. His conditions of generalised anxiety disorder and BSHL have been accepted as war-caused. Cervical spondylosis, PTSD and shortness of breath have been rejected as either not being war caused, or not present at all. The Applicant rendered operational service during the period 10 September 1968 to 10 September 1969 (aged 25-26) in Vietnam (T2).

Before induction into the army the Applicant worked for his father on the land (oral evidence). Whilst in Vietnam the Applicant served in the ordinance corps, transporting stores, ammunition and clothing (T7). He lost friends who were killed but was not actually with them when they died.

The Applicant was married at the age of 27, the marriage lasting 11 years (T7). The marriage broke down in December 1980. He and his ex-wife have three children. The Applicant currently lives with a woman with whom there is no attachment other than friendship (Exhibit R1).

After his return from Vietnam the Applicant worked from 1970 to 1989 as a driver-fettler for the State Rail Authority. In the years 1992 to 1993 he undertook road work for Severn Shire Council. After this period, in 1993 and 1994 he was a roller driver contractor and then, from 1995 onwards, he worked in fabrication, construction and painting of cattle crushes (T4, p 23).

In a statement of 27 October 1995, presumably attached to the Applicant's original pension application, Mr Downing wrote that his marriage broke down in 1981 due to bouts of depression and anger (T5). He further stated that in the past he used beer to help him relax and sleep but now he used Temazepan. He stated that he used Naprosyn to ease his back pain. The Applicant started smoking and drinking heavily while he was in Vietnam. He gave up smoking in 1988 (T9, p 39).

On 20 January 1996 the Applicant completed a lifestyle questionnaire (T10). He stated that his personal relationships were unaffected by his disabilities; that he is tense and irritable but nevertheless able to get on with people fairly well. He further stated that he does not sleep well, that he gets cranky from pain and that he finds it difficult to discuss his problems. The Applicant wrote, "after war unable to relax and talk without getting moody and fidgety. Toss and turn in bed and do not look forward to night time." The Applicant found it hard to mix with his family, forgetting birthdays and important family matters. He cited moodiness, irrationality and forgetfulness as mitigating factors in his social life. The Applicant stated also that his neck and lower back pains affect his sexual performance. He has these pains most of the time. He also experiences hearing problems most of the time, while shortness of breath affects him depending on what he is doing and how fast he does it. He suffers from memory loss "some of the time." Driving a car is restricted in that he can not sit in the one position for very long without suffering pain in the neck and lower back. The Applicant has given up work, tennis and dancing because of his disabilities. He has a person who comes to his house and does domestic and gardening duties for him. The Applicant further stated that he was restricted in his employment because he was not able to do heavy lifting or working on hard surfaces and because of his hearing defect.

Statement of the Applicant

On 18 February 2000 the Applicant provided a statement in support of his application for review (Exhibit A1). He stated that during his last period of employment at Carinya Steel in Armidale he found it difficult to stand for long periods on hard surfaces because of pain in his back, his hips and right knee. He deafness was also a significant problem because he could not hear instructions and he was working in a noisy machine environment. The Applicant's memory was also failing him, making him forget instructions and the tasks he was supposed to complete. It was for these reasons that he ceased working on 22 December 1995. He stated that he has not looked for work because of these disabilities and because of the drowsiness that is caused by his pain killing medication.

Medical and other documentary evidence

On 1 September 1995 the Applicant was excused from work on that date because he was suffering from chest pains (T11).

On 19 September 1995 the Applicant was examined by Dr W Barter, radiologist (T6). He found no significant abnormalities or deformities in the chest, cervical, thoracic or lumbosacral spine.

On 16 December 1995 Dr Lambeth, psychiatrist, provided a report on the Applicant (T7). He noted that the Applicant was tense, nervous, and irritable and that he gets tired easily. The Applicant described being nervous in crowds as well as when he was alone. He suffered from moderately severe insomnia. He had a variety of aches and pains and myoclonic jerking. Dr Lambeth took a history of the Applicant's Vietnam service and his experience of having friends who were killed in action. The Applicant was diagnosed as suffering from generalised anxiety disorder of moderate intensity. Dr Lambeth further stated that "it would appear that this began following his service in Vietnam", and that the events which distressed the Applicant caused him to increase his drinking which has continued since his service.

On 5 January 1996 the Applicant was given a social security medical certificate by Dr Barratt in respect of cervical spondylosis (T10). This certificate excused the Applicant from work for the period 5 January 1996 to 20 February 1996.
On 15, 18 and 20 January 1996 Dr Barratt completed medical assessment reports in respect of the Applicant's psychiatric, hearing and cervical spine conditions respectively (T12). As regards his hearing, Dr Barratt stated that the Applicant experienced symptoms of BSHL, but the doctor did not provide details of them. He further stated that the Applicant suffers tinnitus every day but that it is tolerable much of the time. As for the Applicant's psychiatric condition, Dr Barratt stated that he suffered from insomnia, loss of memory and emotional and social debilitation. The Applicant's wife left him in 1981 due to his heavy drinking after he returned from Vietnam. Dr Barratt stated in relation to the Applicant's cervical spondylosis that he suffers neck pain and that he sometimes cannot use his left hand. Further the Applicant has intermittent left arm paraesthesia.

On 16 February 1996 Dr Barratt examined the Applicant and gave him a social security medical certificate excusing him from work for three months due to neck and arm pain (T13A).

On 26 June 1996 Dr Kumaran, in DVA, provided a final assessment report on the Applicant's impairment (T14). He awarded a rating of 5 points for hearing and tinnitus and 20 points for his emotional and behavioural conditions.

On 1 August 1997 Dr Barratt provided further medical assessment reports in respect of the Applicant's hearing and psychiatric conditions (T17). He stated that the Applicant wears a hearing aid in the left ear and he also provided an audiogram report. In relation to the psychiatric condition Dr Barratt noted the Applicant's anxiety and nervousness and that the condition limits his social and recreational activities.

On 25 February 1998 Dr Cohen, radiologist, conducted an examination of the Applicant (T17A). He found that the Applicant's heart and lungs were radiologically normal.

On 2 March 1998 Dr O'Connor, chest physician, wrote a report on the Applicant's chest and breathing condition, which he was claiming as a war caused disability (T17B). The Applicant had given him a history of breathing problems since leaving the army in 1970. He reported reduced effort tolerance and wheeziness. He concluded,

"I am fairly sure that Mr Downing doesn't have significant lung disease. His description of his symptoms is very suggestive of a psychosomatic cause. However I can't exclude the possibility of coronary disease or some form of heart failure."

Dr O'Connor provided a supplementary report on 8 April 1998 (T17B, p 61F). He reiterated his belief that there is no significant heart or lung disease. He thought that there as a small chance that the Applicant had asthma and recommended treatment via a puffer for a month.

On 3 March 1999 Mr Charles Lucas, consultant psychologist, provided a vocational guidance assessment of the Applicant (T20). He took account of the Applicant's employment history and the medical and psychological problems associated with his anxiety disorder. The Applicant also told Mr Lucas about osteoarthritis in both hips, his back as well as problems in both knees, which the Applicant said was a result of jumping out of a truck during his service. Mr Lucas diagnosed the Applicant as suffering from PTSD with a secondary depression which "has strong features of anxiety."

On 4 March 1999 Dr Helme completed an emotional and behavioural medical impairment worksheet for the DVA (T22). Dr Helme assessed the Applicant as having an impairment rating of 38 points.

On 5 March 1999 the Applicant wrote to his representative at the Vietnam Veterans' Association, Mr Barry Dixon (T21). He stated that he was driving a forklift truck in the middle of 1969 when he received "a severe jar in the cervical-vertebrae area of my neck." He had difficulty moving his neck from side to side and could not sleep well because of the discomfort. He further stated that his wife and three children left him in December of 1980 because of "verbal abuse, during my drinking bouts, fits of depression, and flashbacks to Vietnam, and mates killed and injured in action."

On 15 March 1999 Dr Barratt provided a further report on the Applicant for the Applicant's representative (T23). He noted the Applicant's flashbacks to occurrences in Vietnam, depression, bad dreams, hallucinations, sleeplessness and anxiety state. He further described the Applicant's osteoarthritis in both hips, right knee, arthritis in the lumbar region and cervical spondylosis causing severe pain. He concluded, "all in all this man does not have a good quality of life and relies heavily on medications to help him through life."

On 31 January 2000 Dr Anderson, consultant occupational physician, reported on the Applicant at the request of the Respondent (Exhibit R2). He stated that the Applicant's arthritic condition was due to naturally occurring degenerative changes and that there is no evidence that his army service had any influence on it. Dr Anderson doubted that his hearing loss was due to army service, not having access to audiograms from that period. Dr Anderson further found that his anxiety condition could not reasonably be related to his service in Vietnam. The loss of friends would not be sufficient to cause a significant anxiety condition. Dr Anderson does not consider the Applicant's condition a clinical condition, rather a matter of personal choice and responsibility for the Applicant. He found it reasonable for the Applicant to do light bench work on a part-time basis, or as a console operator in a service station as an example. Dr Anderson found an impairment rating of 25 points and a lifestyle rating of 3, equating to an entitlement to a Disability Pension at 50% of the general rate. Dr Anderson emphasised this opinion in a supplementary report of 15 May 2000 (Exhibit R3).

On 2 February 2000 Dr Walden, consultant psychiatrist, reported on the Applicant (Exhibit R1). Dr Walden took a detailed history of the Applicant's alcohol consumption and noted two drink-driving charges, in 1981 and 1984. The Applicant lost his licence for 12 and 18 months respectively. The Applicant had started drinking in Vietnam and was regularly drunk, experiencing blackouts and waking up outdoors on occasions. He had recently reduced his drinking to eight to 10 stubbies of beer a day. Dr Walden took a detailed history the Applicant's employment and upbringing. She recommended a rating of 27 points under GARP, and stated that the Applicant should be able to undertake remunerative work for eight hours a week or more. Dr Walden found the diagnosis confusing because of the Applicant's excessive drinking, which made him more anxious. It is possible that self-medication with alcohol produces symptoms such as irritability, poor concentration and withdrawal, which themselves mimic the symptoms of anxiety.

On 28 March 2000 Dr Helme provided another report on the Applicant (Exhibit A2). He took the Applicant's employment history and noted the nerve problems that had been evident since his service. Dr Helme noted the history of symptoms and difficulties both domestically and socially. He recommended an impairment rating of 30.

On 12 April 2000 Dr Wallace, orthopaedic surgeon, reported on the Applicant's condition (Exhibit A3). He concluded:

"I believe that this patient has advanced cervical spondylosis. There is no clinical evidence of nerve root compression but he has radiation into the left upper limb…I believe that the patient's history of injury whilst on duty in Vietnam is consistent with a disc injury to the neck which over time would result in advanced degenerative changes as is evidenced on x-ray and clinical examination. I think that on the balance of probabilities the patient's present cervical spine condition can be related to his injury whilst on duty in Vietnam…".

Dr Wallace found that the Applicant was not able to engage in employment due to his cervical condition, his medical history of alcohol dependence and multi focal degenerative disease.

On 26 April 2000 Professor Sambrook, rheumatologist, provided a report on the Applicant (Exhibit R4). His diagnosis was that the Applicant was suffering from cervical spondylosis, with an impairment rating of 10 and a loss of about one half of the normal range of movement. Professor Sambrook further stated that the Applicant had an impairment rating of 10 in relation to the thoracolumbar spine with a loss of about one quarter of the normal range of movement. He concurred with the VRB's finding that the jarring episode did not constitute a discrete injury and that the lack of documentation at the time of this injury indicated against a finding of a reasonable hypothesis connecting the condition and the Applicant's service. Further he wrote, "…it should be stated that the radiological appearance certainly does not suggest changes over and above what might be expected for the veteran's age." The professor was of the opinion that, although the Applicant was not able to undertake remunerative work "at present", he would be able to "walk around or perform sitting activities." The Applicant would be able to perform light but not heavy domestic duties.

Counsel for the Applicant provided the Tribunal with a document that summarised the impairment ratings of the various doctors:

Dr Helme 4/3/1999 Dr Barratt 13/1/99   Dr Helme 28.3.00    Dr Walden 27/1/00 Current Repat Rating
Table 4.1      10       3         10       10       6
Table 4.2      10       6         10       6         3
Table 4.3      5         5         5         1         1
Table 4.4      6         8         6         5         5
Table 4.5      7         8         8         1         0
Table 4.6      5         5         5         3         3
Table 4.7      5         8         6         3         3
Table 4.8      5         2         5         3         3
Overall rating         38       33       40       27       20

T23A consists of what appear to be submissions on the Applicant's behalf to the VRB. They mention the Applicant's inability or unwillingness to answer questions in a straightforward fashion which, it is submitted, disadvantages the Applicant's case. An example of this is where he stated that he does not drink a great deal, whereas in fact he drinks eight to ten stubbies of beer a day. It was contended that the Applicant's initial evidence regarding the forklift truck incident was similarly unreliable because it drew too little attention to the extent of the injury. His statement at T21 to Mr Dixon was said to be a far more reliable account. Further evidence was made available on the road conditions on which the Applicant had to drive the forklift and how his work involved a constant series of "jolts and jars, day in, day out." After the injury the Applicant stayed in his room for several days, being brought meals by his fellow soldiers.

It was submitted that the injury raises a reasonable hypothesis connecting his diagnosed cervical spondylosis with his war service; suffering a trauma to the cervical spine before the onset of the condition as in SOP no 31 of 1999, paragraph 5(h). The Applicant continued the jarring and jolting to the cervical spine after the initial injury. This would have aggravated the condition.

In relation to the Applicant's psychiatric condition, the impairment rating of 20 points was disputed. The Respondent assessed the Applicant as having a rating of 2 points for frequent family discord. The Applicant's wife left him, taking the three young children with her. This was due to the Applicant's drinking habits, his verbal abuse and bouts of depression. The Applicant seeks a rating of 8 points for a "virtually non-existent family life because of conflict with family members."

Further the Applicant submitted that the assessment of the treating doctor and the treating psychiatric specialist were far more reliable than that of the departmental medical officer, Dr Kumeran. The Applicant's treating doctor and psychiatrist recommend ratings of 33 and 38 points respectively. It was contended that the recommendation of the treating specialist should be preferred and the impairment rating should be 38 points. Therefore it was contended that, combined with a lifestyle rating of 3, the Applicant was entitled to a disability pension at 70% of the general rate, effective from 3 August 1995.

In addition to this assessment, the Applicant contended that, if cervical spondylosis had been accepted as a war caused disability, an impairment rating of 60 points would have applied which, combined with a lifestyle rating of 4, would yield a Disability Pension at 100% of the general rate.

Relevant legislation and Statements of Principles

The relevant legislation is the Veterans' Entitlements Act 1986 ("the Act") sections 6C(1), 7(1)(a), 9(1)(a), 13(1)(b), (d), 14(1), (3), (4), 19(6), (9) definitions of "application day", "assessment period", 20(1), 21A, 23(1), (2), (3), 24(1), (2), 24A, 28, 29(1), (3), (4), (7), (9), 120(1), (3), (4), (6), 120A(1), (3), 196B(1), (2), (3), 196D.

The relevant SOP is SOP 101/95 concerning cervical spondylosis, as amended by SOP 330/95 and SOP 354/95

Veterans' Entitlements Act 1986

6C Operational service - post World War 2 service in operational areas
(1)Subject to this section, a member of the Defence Force who has rendered continuous full-time service in an operational area as:
(a) a member who was allotted for duty in that area; or
(b)a member of a unit of the Defence Force that was allotted for duty in that area;

is taken to have been rendering operational service in the operational area while the member was so rendering continuous full-time service.
…

7 Eligible war service
(1) Subject to subsection (2), for the purposes of this Act:
(a)a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service;

…

9 War-caused injuries or diseases
(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;
…
Division 2 - Eligibility for pension
13 Eligibility for pension

(1) Where:
…
(b)a veteran has become incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:

…
(d)in the case of the incapacity of the veteran—pension by way of compensation to the veteran;

in accordance with this Act.
…

14 Claim for pension
(1)Subject to subsection (2), a veteran, or a dependant of a deceased veteran, may make a claim for a pension in accordance with subsection (3).

Note 1: some dependants do not have to make a claim (see section 13A).
Note 2:if it is uncertain whether a person is a dependant and as a result a pension is not payable to the person under section 13A, the person may make a claim for the pension under section 14. The Commission will determine whether the person is entitled to be granted a pension (see subsection 19 (3)).

…
(3) A claim for a pension:
(a)shall be in writing and in accordance with a form approved by the Commission;
(b)shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and
(c)shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b).

(4)Subsection (3) shall not be taken to impose any onus of proof on a claimant or to prevent a claimant from submitting evidence in support of the claim subsequently to the making, but before the determination, of the claim.
…

19 Determination of claims and applications
…
(6)Where the Commission has, pursuant to subsection (5C), assessed that the pension was payable at some time during the assessment period at the rate provided by section 23 or 24 then, subject to section 24A, the rate at which the pension is payable shall not be lower than the rate provided by whichever of those sections applied, or applied most recently, during the assessment period.

…
(9) In this section:
…
application day, in relation to a person who has made a claim or application or on whose behalf a claim or application has been made, means:
(a)the day on which the claim or application was received at an office of the Department in Australia; or
(b)if subsection 20 (2) or 21 (2) applies to the person—the day on which the claim or application referred to in paragraph 20 (2) (a) or 21 (2) (a) was so received;

assessment period, in relation to a claim or application relating to a pension, means the period starting on the application day and ending when the claim or application is determined;
…
20 Dates of effect that may be specified in respect of grant of claim for pension
(1)Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, specify as a date that a determination under subsection 19(3) takes effect in respect of the claim, a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14 (3) (a) was received at an office of the Department in Australia.

…
Division 4 - Rates of pensions payable to veterans
21A Determination of degree of incapacity
(1)The Commission shall, subject to subsections (2) and (3), determine the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, according to the provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions.
(2)Subject to subsection (3), the degree of incapacity shall be determined as 10% or a multiple of 10%, but not exceeding 100%.
(3)The Commission may determine that the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, is less than 10% (including 0%), and, where it does so, it shall not assess a rate of pension, but shall refuse to grant a pension to the veteran on the ground that the extent of the incapacity of the veteran from that war-caused injury or war-caused disease, or both, is insufficient to justify the grant of a pension.

23 Intermediate rate of pension
(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and

(a) either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and

(b)the veteran's incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and
(c)the veteran is, by reason of incapacity from 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 from that incapacity; and

(d) section 24 or 25 does not apply to the veteran.
(2)Paragraph (1) (b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:
(a)if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or
(b)in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking—if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.

(3) For the purpose of paragraph (1) (c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph
(1) (b) 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:
(i)if 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;
(ii)if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or
(iii)if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; 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.

…
24 Special rate of pension
(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and

(a) either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and

(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

(d) section 25 does not apply to the veteran.

(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.

…
24A Continuation of rates of certain pensions
(1)Subject to subsection (2), if the Commonwealth is or becomes liable to pay a pension to a veteran at the rate applicable under section 23 or 24, that rate continues, while a pension continues to be payable to the veteran, to apply to the veteran unless:
(a)the decision to apply that rate of pension to the veteran would not have been made but for a false statement or misrepresentation made by a person;

(b) in the case of a veteran to whom section 23 applies:
(i)the veteran is undertaking or is capable of undertaking remunerative work of a particular kind for 50% or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full time basis; or
(ii)in a case where subparagraph (i) is inapplicable to the work which the veteran is undertaking or is capable of undertaking—the veteran is undertaking or is capable of undertaking that work for 20 or more hours per week; or

(c)in the case of a veteran to whom section 24 applies—the veteran is undertaking or is capable of undertaking remunerative work for periods aggregating more than 8 hours per week.

(2)Paragraphs (1)(b) and (c) do not apply to a veteran if the veteran is undertaking a rehabilitation program under the Veterans' Vocational Rehabilitation Scheme or section 115D applies to the veteran.

28 Capacity to undertake remunerative work
In determining, for the purposes of paragraph 23 (1) (b) or 24 (1) (b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(a)the vocational, trade and professional skills, qualifications and experience of the veteran;
(b)the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c)the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).

29 Guide to the assessment of rates of veterans' pensions
(1)The Commission may, from time to time, prepare a written document, to be known as the "Guide to the Assessment of Rates of Veterans' Pensions" setting out:
(a)criteria by reference to which the extent of the incapacity of a veteran resulting from war-caused injury or war-caused disease, or both, shall be assessed; and
(b)methods by which the extent of that incapacity, as assessed in accordance with those criteria, shall be expressed as a percentage of incapacity from that injury or disease, or both, being a percentage not exceeding 100 per centum.

…
(3)A document prepared by the Commission in accordance with subsection (1), and an instrument under subsection (2), have no force or effect unless and until approved by the Minister.
(4)Where the Commission, the Board or the Administrative Appeals Tribunal is required to assess or re-assess, or review the assessment or re-assessment of, the extent of the incapacity of a veteran resulting from war-caused injury or war-caused disease, or both, the provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions are binding on the Commission, the Board or the Administrative Appeals Tribunal, as the case may be, in, and in connection with, the carrying out by it of that assessment, re-assessment or review, and the assessment, re-assessment or review of the extent of that incapacity made by it shall be in accordance with the relevant.
…
(7)When a document prepared by the Commission in accordance with subsection (1), or an instrument under subsection (2), has been approved by the Minister, the Commission shall furnish copies of the document or instrument to the Minister and the Minister shall cause copies to be laid before each House of the Parliament within 15 sitting days of that House after the Minister received those copies.

…
(9)Sections 48 (other than paragraphs (1) (a) and (b) and subsection (2)), 48A, 48B, 49 and 50 of the Acts Interpretation Act 1901 apply in relation to a document, being the approved Guide to the Assessment of Rates of Veterans' Pensions or an instrument varying or revoking that Guide that has been approved by the Minister, as if, in those sections, references to regulations were references to such a document and references to a regulation were references to a provision of such a document.

120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

Note: This subsection is affected by section 120A.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or

(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.

Note: This subsection is affected by section 120A.
(4)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.

Note: This subsection is affected by section 120B.
…
(6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b)the Commonwealth, the Department or any other person in relation to such a claim or application;

any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
…

120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(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 operational service rendered by a veteran;

(b) a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or

(ii) the hazardous service rendered by a member of the Forces.

Note 1: Subsections 120 (1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).
…
(3)For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B (2) or (11); or

(b) a determination of the Commission under subsection 180A (2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
…
196B Functions of Authority

(1) This section sets out the functions of the Repatriation Medical Authority.
Determination of Statement of Principles
(2)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.

Note 1: For sound medical-scientific evidence see subsection 5AB (2).
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).
Note 3: For factor related to service see subsection (14).
(3)If the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to:
(a)eligible war service (other than operational service) rendered by veterans; or
(b)defence service (other than 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:
(c) the factors that must exist; and
(d)which of those factors must be related to service rendered by a person;

before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service.
Note 1: For sound medical-scientific evidence see subsection 5AB (2).
Note 2: For defence service and hazardous service see subsection 5Q (1A).
Note 3: For factor related to service see subsection (14).
…
196D Disallowable instrument
A determination of the Repatriation Medical Authority under section 196B is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

Statement of Principles concerning CERVICAL SPONDYLOSIS [SOP 101/95]
1. Being of the view that there is sound medical-scientific evidence that
indicates that cervical spondylosis and death from cervical
spondylosis can be related to operational service rendered by veterans,
peacekeeping service rendered by members of Peacekeeping forces and
hazardous service rendered by members of the Forces, the Repatriation
Medical Authority determines, under subsection 196B(2) of the
Veterans' Entitlements Act 1986, that the factors that must as a minimum
exist before it can be said that a reasonable hypothesis has been raised
connecting cervical spondylosis or death from cervical spondylosis
with the circumstances of that service, are:
…
(c) suffering an intra-articular fracture of the cervical spine before the
clinical onset of cervical spondylosis; or
…
(f) suffering a trauma to the cervical spine which has resulted in
permanent ligamentous instability before the clinical onset of
cervical spondylosis; or
…
2. Subject to clause 3 (below) at least one of the factors set out in paragraphs
1(a) to 1(g) must be related to any service rendered by a person.
…
4. For the purposes of this Statement of Principles:
"cervical spine" means that part of the spine between the base of the
skull and the first thoracic vertebrae, namely C1 to C7;
"cervical spondylosis" means degenerative changes in the cervical spine,
including changes in the vertebral body, the intervertebral disc, the
ligamentum flavum, the zygapophyseal joints, the intervertebral joints, and
the other ligamentous structures of the cervical spine, attracting ICD code
721.0, 721.1, 722.4,722.71 or 722.91;
…
"ICD code" means a number assigned to a particular kind of injury or
disease in the tenth edition of the International Classification of
Diseases 9th Revision, effective date of 1 October 1993, copyrighted by
the US Commission on Professional and Hospital Activities, and having
the Library of Congress number 77-94472
Amendment of Statement of Principles concerning CERVICAL SPONDYLOSIS [SOP 330/95]
The Repatriation Medical Authority amends, under subsection 196B(2) of the
Veterans' Entitlements Act 1986 (the Act), Instrument No.101 of 1995
(Statement of Principles concerning cervical spondylosis) by:
1. inserting immediately after paragraph (f) of clause 1, the following:
"(fa) suffering a trauma to the cervical spine before the clinical
onset of cervical spondylosis; or";
…
6. omitting the definition of "cervical spondylosis" in paragraph 4 and
inserting in its place in paragraph 4, the following definition:
"'cervical spondylosis' means a clinical syndrome characterised by local
pain and stiffness, or pain and paraesthesia radiating into the arms,
associated with degenerative changes in the cervical vertebrae, attracting
ICD code 721.0, 721.1, 722.4, 722.71 or 722.91;";
7. inserting after the definition of "malalignment" in paragraph 4 the
following definitions:
"'trauma to the cervical spine' means injury to the cervical spine caused
by the force of an extraneous physical or mechanical agent that causes
pain, swelling or tenderness within the 24 hours after the force has been
applied;
'trauma to the cervical spine which has resulted in permanent
ligamentous instability' means abnormal mobility and instability of the
cervical spine due to ligamentous injury caused by the force of an
extraneous physical or mechanical agent, and is characterised by the
regular recurrence of episodes of pain and/or swelling of the cervical
spine.".
The amendments made by this instrument apply to all matters to which Instrument
No.101 of 1995 and section 120A of the Act apply.
Amendment of Statement of Principles concerning CERVICAL SPONDYLOSIS [SOP 354/95]
The Repatriation Medical Authority amends, under subsection 196B(2) of the
Veterans' Entitlements Act 1986 (the Act), Instrument No.101 of 1995
(Statement of Principles concerning cervical spondylosis, as amended by
Instrument No.330 of 1995) by:
1. omitting the definition of "trauma to the cervical spine" in paragraph 4 and
inserting in its place in paragraph 4, the following definition:
"'trauma to the cervical spine' means an injury to the cervical spine
caused by the force of an extraneous physical or mechanical agent that
causes the development, within 24 hours of the injury being sustained, of
acute symptoms and signs of pain, tenderness, and altered mobility or
range of movement of the joint, and where such acute symptoms and signs
last for a period of at least one week immediately after the injury occurs,
unless medical intervention has occurred. Where medical intervention for
the injury has occurred (eg splinting, corticosteroid injection, surgery),
and there is evidence relating to the extent of injury and treatment, such
evidence may be considered;";
2. omitting the definition of "trauma to the cervical spine which has resulted
in permanent ligamentous instability" in paragraph 4 and inserting in its
place in paragraph 4, the following definition:
"'trauma to the cervical spine which has resulted in permanent
ligamentous instability' means abnormal mobility and instability of the cervical spine due to ligamentous injury caused by the force of an
extraneous physical or mechanical agent, and is characterised by the
regular recurrence of episodes of pain and/or tenderness affecting the
cervical spine.".
The amendments made by this instrument apply to all matters to which Instrument
No.101 of 1995 and section 120A of the Act apply.

Hearing and appearances

The Tribunal convened a hearing in this matter in Sydney on 12 October 2000. Mr N Dawson of counsel represented Mr Downing. Mr S Modder of DVA represented the Respondent.

The Tribunal had access to the following documentary evidence:

Exhibit TD1 – Section 37 Statement and associated documents, 14 September 1999.

Exhibit A1 – Statement of Applicant, 18 February 2000.

Exhibit A2 – Report by Dr K Helme, psychiatrist, 28 March 2000.

Exhibit A3 – Report by Dr M F Wallace, orthopaedic surgeon, 12 April 2000.

Exhibit A4 – Applicant's statement of facts and contentions, 27 April 2000.

Exhibit R1 – Report by Dr M Walden, psychiatrist, 2 February 2000.

Exhibit R2 – Report by Dr T Anderson, occupational physician, 31 January 2000.

Exhibit R3 – Report by Dr Anderson, 15 May 2000.

Exhibit R4 – Report by Professor P N Sambrook, Professor of Rheumatology, 26 April 2000.

Exhibit R5 – Respondent's statement of facts and contentions, 27 April 2000.

Findings on material questions of fact with reference to the evidence and other material in support of those findings

Issues

The issues in this matter are:

Whether the Applicant's condition of cervical spondylosis is a war-caused disease.

The correct impairment rating for the Applicant's accepted disability, generalised anxiety disorder.

Whether the Applicant qualifies for special rate Disability Pension.

Uncontentious findings

The Applicant's date of birth is 27 May 1943 (T4). He was aged 52 at the date of lodging his currently relevant claim.

The Applicant rendered operational service in South Vietnam from 10 September 1968 until 10 September 1969.

The Applicant lodged a valid claim in respect of cervical spondylosis on 1 November 1995 (T4).

The date of effect of any favourable decision would be 1 August 1995 (s 20(1) of the Act).

The standard of proof in relation to whether cervical spondylosis should be an accepted disability is the reasonable hypothesis standard as described in s 120(1) and (3) of the Act. The standard in respect of levels of assessment is the reasonable satisfaction standard as provided in s 120(4) of the Act. This, according to Repatriation Commission v Smith (1987) 74 ALR 537, 547, equates to satisfaction on the balance of probabilities.

The relevant SOP is prima facie the SOP concerning cervical spondylosis in force at present, ie SOP 31/99. However, if the SOP in force at the date of the primary decision, ie 8 July 1996 (T15) is more favourable to the Applicant, that SOP can be applied because of the Applicant's accrued rights. This follows from the decision of the full Federal Court in Repatriation Commission v Gorton [2001] FCA 1194. As at 8 July 1996 the relevant SOP was SOP 101/95 as amended by SOP 330/95 and SOP 354/95.

Cervical spondylosis

For cervical spondylosis to be accepted as a war-caused injury or disease it will be necessary to apply the principles in Repatriation Commission v Deledio (1998) 49 ALD 193, 206. The first step is to consider whether the material before the Tribunal points to a hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the Applicant.

The second step is to ascertain whether there is a relevant SOP in force. The Tribunal has already found that one of several possible SOPs concerning cervical spondylosis applies.

The third step is to form an opinion as to whether the hypothesis raised is reasonable. If the hypothesis is consistent with the template in the SOP it will be reasonable. The hypothesis raised must contain at least one of the factors in the SOP which the SOP says must exist, and that factor must be related to the Applicant's service.

Finn J explained the proper operation of step three in Harris v Repatriation Commission [2000] FCA 873 in paragraphs 37-40 where he said:

"It is important to bear in mind that the Tribunal, when dealing with stage 3 of Deledio, was concerned not with the proof or disproof of the various SoP factors as such in Mr Harris' case, but with whether material before it was consistent with the existence of those factors, or else properly allowed one or more of them to be assumed, so permitting the SoP to uphold the applicant's hypothesis. Importantly, as Heerey J noted in Deledio (47 ALD at 275), an hypothesis can so be upheld notwithstanding that 'one of the disputed facts happens also to be a component of an SoP'.

"38 In the instant case, it may well have been able to be said that, in light of Dr Stone's evidence, there was material consistent with altered mobility etc that was not overt, and that whether there was altered mobility was itself simply a disputed fact. But even if this were so, it would not justify any different answer to the question the Tribunal ought to have addressed.
"39 Bearing in mind that the contentious SoP factor in the present case was whether there were (inter alia) 'acute signs and symptoms of altered mobility etc', Dr Stone's evidence was not consistent with, nor did it point to, the existence of this factor. Altered mobility of which a person is unaware (even given the stresses and preoccupations associated with a patrol) cannot be said to be suggestive of an 'acute sign or symptom' of that altered mobility. Dr Stone's evidence apart, all that there was to go on in the material before the Tribunal were Mr Harris' inability to recollect whether he suffered altered mobility and his actions immediately after the incident which were not themselves suggestive of any such altered mobility.
"40 The material indicated signs and symptoms of pain, but no more. The matters relied upon by the Tribunal in refusing to assume the existence of altered mobility … point inescapably to the conclusion that it could not properly on the material before it have made the assumption that Mr Harris suffered acute signs and symptoms of altered mobility."

Again, in Arnott v Repatriation Commission [2001] FCA 262 the full Federal Court put the matter succinctly in paragraph 27 when it wrote:

"However, as explained above, in carrying out the third step in Deledio, namely of forming an opinion as to whether the hypothesis raised is a reasonable one, the AAT is required to determine whether the 'particular claim' fits the 'template' laid down in the SoP. As was stated by the Full Court … in Deledio, the question at that stage is whether the facts raised by the claimant give rise to a reasonable hypothesis, with proof of the relevant facts not being in issue at that stage."

As the Tribunal understands it, its obligation at step 3 is to consider whether the hypothesis, in all its aspects, as advanced by, or for, or in aid of the Applicant, in the opinion of the Tribunal, matches the template provided in the SOP. It is therefore necessary to consider what is required in the SOP.

It is difficult not to engage in a fact finding exercise in step three of Deledio (supra). There is usually an account given by the Applicant. There is usually a rebuttal by the Respondent wherein the Respondent refers to evidence before the Tribunal. However, the Tribunal takes the correct approach to be to have regard to the Applicant's version in step three and see whether that meets the SOP template.

If the Tribunal finds that step three has been satisfied that means that the hypothesis raised by the Applicant is a "reasonable" hypothesis in the terms of s 120(3) of the Act.

Moving on to consider step four of Deledio (supra), the Tribunal must decide whether it is satisfied beyond reasonable doubt that the Applicant's incapacity did not arise from a war-caused injury. It is at this point that many of the arguments put by the Respondent come into play. The Tribunal will assess each of these in turn to ascertain whether one, some or all serve to satisfy the Tribunal beyond reasonable doubt that the Applicant's cervical spondylosis was not war-caused.

As regards the first step, the Tribunal finds that there is a hypothesis advanced for the Applicant. The Applicant's hypothesis is that when in South Vietnam on an uncertain date he was driving an unsprung forklift over rough ground transporting supplies from a ship when he experienced a jarring. He reported this to the corporal and was put onto sweeping duties for seven days. He saw no doctor because doctors were not seen much "in the bush". He put up with pain. This element is further fleshed out below with quotes from what he told Drs Wallace (Exhibit A3) and Professor Sambrook (Exhibit R4). His account of the onset of pain and its aftermath varies as between the histories he gave Dr Wallace on one hand and Professor Sambrook on the other. The back began to experience real pain when the Applicant was back in Australia and he sat or drove for an extended period.

The Tribunal has already found that there is more than one potentially applicable SOP. The Applicant argued in the hearing for the application of SOP101/95 because the definitions of "trauma to the cervical spine" and "trauma to the cervical spine which has resulted in permanent ligamentous instability" (actually appearing in SOP 354/95) are less onerous for the Applicant.

The Tribunal considers that, in assessing whether the Applicant's hypothesis fits the template under step three of Deledio (supra), the following questions, based on the SOP become relevant.

Question 1 – Does the Applicant claim in his hypothesis to suffer from cervical spondylosis as defined in clause 4 of SOP 101/95?

Question 2 – If the answer to Q1 is yes, has the Applicant on his hypothesis suffered a trauma to the cervical spine before the clinical onset of cervical spondylosis (factor 1(fa) of SOP 101/95 as amended by SOP 330/95) or suffered a trauma to the cervical spine which has resulted in permanent ligamentous instability before the clinical onset of cervical spondylosis (factor 1(f) of SOP 101/95)?

(Note: definitions of "trauma to the cervical spine and of "trauma to the cervical spine which has resulted in permanent ligamentous instability" are in SOP 354/95.)

Question 3 – If the answer to Q2 is yes, was the injury related, according to his hypothesis, to the Applicant's operational service as required in clauses 1 and 2 of SOP 101/95?

Consideration of these questions now follows.

Question 1 – Does the Applicant claim in his hypothesis to suffer from cervical spondylosis as defined in clause 4 of SOP 101/95?

The Tribunal finds that the Applicant's hypothesis starts with the proposition that he has cervical spondylosis. This is clear from his claim form T4 (p 22) and his statement of facts and contentions (Exhibit A4).

For the Applicant's hypothesis to accord with the SOP the hypothesis may, on the first analysis, posit that he suffered a trauma to the cervical spine. According to the SOP that requires "an injury to the cervical spine caused by the force of an extraneous physical or mechanical agent that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of the joint, and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs".

The jarring is the suggested extraneous physical or mechanical agent in the Applicant's case. Within 24 hours of the jarring he developed a pain in his back. The SOP requires that the symptoms must be acute. In Harris v Repatriation Commission [2000] FCA 873 Finn J referred in paragraph 31 to the Shorter Oxford English Dictionary ("SOED") definitions of "sign" and "symptom", both of which must be "acute". The SOED defines "acute" as sharp or acting keenly on the senses. The SOED defines a "sign" as "A token or indication (visible or otherwise) of some fact, quality, etc.". A "symptom" is "A (bodily or mental) phenomenon, circumstance, or change of condition arising from and accompanying a disease or affection and constituting an indication or evidence of it; a characteristic sign of some particular disease." Finn J says in paragraph 32, "there would need to be significant manifestations, variously, of pain, of tenderness and of altered mobility, etc."

This analysis was confirmed by the full Federal Court in Harris v Repatriation Commission [2000] FCA 1687, paragraph 51. That decision goes further in distinguishing between signs and symptoms in paragraph 52. Quoting from Butterworths Medical Dictionary (2nd ed, 1978) the Court says a symptom is "The consciousness of a disturbance of a bodily function; the subjective feeling that there is something wrong in the working of the body and of which the patient complains, e.g shortness of breath, pain, fatigue, palpitation, etc. The symptom may or may not be accompanied by observable signs."

A sign is "Objective evidence of a disease or deformity".

Dr Wallace (Exhibit A3) took a history in which the Applicant said that he drove over a large pot hole made worse by rain and jarred his neck. "He experienced immediate severe posterior neck pain without significant radiation." Dr Wallace recorded that the Applicant reported this to his corporal who advised him to go on light duties. The Applicant told Dr Wallace that he was unable to perform any heavy lifting after this and was always disabled by neck pain. He continued with light duties until after he was discharged in 1970.

Professor Sambrook (Exhibit R4) took a slightly different history. He saw the claim as based on heavy lifting as well as the fork lift episode. He recorded that the fork lift inadvertently dropped into a pot hole causing Mr Downing to jar his neck. He reported this to the corporal. He was sent to his room to rest and do only light duties. "Apparently the symptoms of the neck pain lasted for at least a week however Mr Downing did not attend the [regimental aid post] as he did not consider the problem to be significant at the time." Professor Sambrook went on to record, "He told me that sooner after his discharge he became aware of increasing cervical pain although at that time he was working for the state rail authority as a fettler/driver it was unclear whether the symptoms related to his army service or that physical activity."

The Tribunal noted above that the Applicant's hypothesis is confused as to the onset and aftermath of pain. His oral account to the Tribunal was almost exactly as he gave it to Professor Sambrook. In the Tribunal's view this version of what occurred does not accord with the SOP.

The onset of pain does not, on the Applicant's account, appear to have been sharp or acting keenly on the senses in the terms of Harris (supra) (per Finn J). The "acute symptoms and signs" must last for at least one week. The nature of the pain experienced by the Applicant over the relevant next week would not appear to satisfy the "acute" requirement.

However, when Dr Campbell, a Tribunal Member, asked for further details he asked exactly what did the Applicant feel when he was jarred going over the pothole. The Applicant said there was "a sudden jar up the back". He was bearing a box of ordnance supplies at the time. He felt "excruciating pain into the cervical region. A stabbing pain." It lasted about a week before he resumed duty. He reported the pain to the corporal and returned in a Land Rover in the back of the vehicle to the barracks. He was transferred onto a bed, his own bed. He did not move around much for a few days. His meals were brought to him by his "mates". He took himself off to ablutions and the toilet.

He had a couple of days in bed and then got around in the barracks. He did no heavy lifting. He would check if beds were made and make any that were unmade. He does not recall taking any tablets. The Applicant could not recall the day of the week on which the incident happened. When he returned to work his neck stiffened and rotation of the neck was painful. The pattern of pain involved a weakness and tingling to the fingers via the left arm. There was a pain in his chest.

The Applicant said that the bed making and sweeping were quite light work. The Applicant told Dr Campbell that he did not go to the RAP. The injury did not seem serious at the time and there was a bush culture that leant against seeing doctors.

This evidence altered the picture somewhat. From the description of the onset of the pain as given to Dr Campbell it was very probably a pain with acute signs and symptoms. The hypothesis has, in effect, been changed.

It would seem that this version of the events involves also tenderness and altered mobility or range of movement of the joint. This appears to have had its onset within 24 hours. The Applicant told Dr Campbell that these signs and symptoms lasted for a few days. He was off work for a week. In the Tribunal's view, while the Applicant's hypothesis, as adjusted, is still borderline, the Act is beneficial legislation and the Applicant should be accorded the benefit of the doubt.

The Tribunal therefore finds that the Applicant's hypothesis accords with the requirements of factor 1(fa).

The Applicant's hypothesis might also satisfy factor 1(g) of SOP 101/95. The requirements in SOP 354/95 for "trauma to the cervical spine which has resulted in permanent ligamentous instability" are there has been (i) a ligamentous injury caused by the force of an extraneous physical or mechanical agent, and (ii) abnormal mobility and instability of the cervical spine, and (iii) this is to be characterised by the regular recurrence of episodes of pain and/or tenderness affecting the cervical spine.

The jarring resulting from going over the pot hole fulfils the requirement for force coming from an extraneous physical or mechanical agent. The Applicant produced an assessment by Dr Wallace (Exhibit A3) recording that :

"The patient now has severe limitation of activities of daily living due to cervical spinal pain, which is felt in the posterior cervical spine and radiating to the left upper limb associated with paraesthesiae. He has nocturnal pain and he has difficulty driving a car, lifting and rotating his head to right and left."

This would appear to indicate regular recurrence of pain or tenderness.

Dr Wallace recorded that "Examination of his cervical spine revealed tenderness in both posterior triangles. He had limited flexion and extension by fifty percent of normal. He had normal lateral flexion to the two right and left by fifty percent of normal. He had restricted rotation to right and left by twenty-five percent of normal." This would appear to show abnormal mobility and instability of the cervical spine.

The Tribunal therefore answers yes to this question, in relation to trauma to the cervical spine and trauma to the cervical spine which has resulted in permanent ligamentous instability.

Question 3 – If the answer to Q2 is yes, was the injury related, according to his hypothesis, to the Applicant's operational service as required in clauses 1 and 2 of SOP 101/95?

The Tribunal answers yes to this question. The Applicant considers that he was required to drive the fork lift as a part of his army duties in Vietnam. The injury resulting from that activity was therefore related to his operational service.

The Tribunal therefore finds that there is a reasonable hypothesis linking the Applicant's service to his condition of cervical spondylosis.

Step four of Deledio (supra) requires the Tribunal to decide whether it is satisfied beyond reasonable doubt that the Applicant's incapacity did not arise from a war-caused injury. If the Tribunal so decides then the Applicant must lose.

In the Tribunal's view there is little to counteract the Applicant's hypothesis as it relates to permanent ligamentous instability, although there is material that may affect the hypothesis relating to a simple trauma to the cervical spine. This is probably because the parties tended to concentrate on the thesis that there had been a trauma to the cervical spine. The points made by the Respondent to attempt to undercut the Applicant's thesis were as follows:

In T4 the Applicant had said that he had a "back" disability from "lifting of munitions and stores in relation to ordnance". There was no reference to the fork lift incident. The treating doctor, Dr Barratt described that condition as cervical spondylosis. Probably that was the condition that the Applicant intended to indicate. However, it is not clear. In any event, it is curious that no mention was made of the forklift incident.

The Applicant did not report to the RAP. He said he just got on with it. He said he did not realise the significance of the injury at the time. He said he was given light duties, sweeping, making beds, no outside work. He said that no one suggested he attend the RAP, which was nearby. The Applicant said his work in Vietnam after this incident was much as it had been previously. (The Tribunal notes that this is not what the Applicant told Dr Wallace.)

The Applicant had seen army doctors about a number of matters including problems with toes, ankles and ears (T3). It seems odd that he did not report the forklift incident.

The Applicant told Mr Modder that he made no mention of his neck in his discharge medical because he was keen to be discharged. When asked if his neck or back were troubling him at the time the Applicant said that it was not much of an examination. His neck was stiffening but he did not regard it as significant at the time.

As far as the medical evidence is concerned the Tribunal will concentrate on the assessments by specialists as these are the most thorough. Dr Anderson (Exhibit R2) found grossly restricted movement of the neck and, to an extent, the back. Dr Anderson does not say much more about the neck. He refers to the "arthritic condition". This clearly includes the hips, right knee and left wrist. It is unclear if Dr Anderson means it to include the neck also. The Tribunal considers that he probably does mean to include the neck. He has gathered the neck, lower back, hips, knee and wrist together for discussion elsewhere in Exhibit R2. He attributes these conditions to naturally occurring degenerative changes, there being "no evidence that there has been any influence from [the Applicant's] time in the Army". "Also since there is multiple joint disease this suggests a predominant constitutional aetiology."

Dr Wallace (Exhibit A3) considered that the Applicant has "advanced cervical spondylosis … consistent with a disc injury to the neck which over time would result in advanced degenerative changes as is evidenced on x-ray and clinical examination."

Professor Sambrook (Exhibit R4) diagnosed cervical spondylosis with loss of about one half of normal range of movement. However, he wrote, "... it should be stated that the radiological appearance certainly does not suggest changes over and above what might be expected for the veteran's age". Prof Sambrook also had doubts that the events in Vietnam described by the Applicant were sufficient to constitute a trauma as defined in the SOP. Prof Sambrook considered that the jarring episode did not constitute a discrete injury. He also considered that the lack of documentation contemporaneous with the injury indicated against a finding a reasonable hypothesis connecting the condition and the Applicant's service.

The strongest arguments against the Applicant are, therefore:

1. that he did not refer to the forklift incident in his claim form;

2.   that the forklift incident and alleged resulting injuries was not recorded in the Applicant's army medical records;
3.   that the level of cervical spondylosis endured by the Applicant is much as is normal for a man of his age; and
4.   that, as Mr Modder suggested, Dr Wallace did not consider whether the Applicant's post-army work in the NSW railways may have caused the cervical spondylosis.

In the Tribunal's view it is understandable that the Applicant may have overlooked the forklift incident when writing up his claim. He referred to carrying munitions, a longer term, repeated activity. The jarring was a one-off incident. When he became apprised of the requirements for trauma to the cervical spine it may have occurred to him that the jarring incident might fit the requirements. Whilst it would have been preferable and more convincing for the Applicant to have cited the jarring incident as far back as when he claimed, it is understandable that he did not. By itself this omission would not satisfy the reverse onus of proof in s 120(1) of the Act.

Similarly, the Tribunal finds that the omission of any mention of the forklift incident in the army medical documents is insufficient to satisfy the reverse onus of proof. In the Tribunal's experience it seems a somewhat hit or miss matter whether particular incidents or injuries are recorded. The Applicant's explanations for not attending the RAP were not out of the ordinary and he held to them consistently over the history of the matter.

Professor Sambrook and Drs Wallace and Anderson appear to differ as to whether the Applicant's severity of cervical spondylosis is out of line with what could be expected of any man in his 50s. Dr Wallace considered that it is and that the explanation could well be his army service. The Tribunal notes the interesting argument that the Applicant's disability, if not constitutional, could be attributable to his post-service employment. However, at best this raises a doubt. It does not suffice to convince the Tribunal beyond a reasonable doubt that there is no sufficient ground for determining that the Applicant's cervical spondylosis was war-caused.

The Tribunal therefore finds that the Applicant's disability, cervical spondylosis, is a war-caused disease.

It is necessary to decide the GARP impairment rating for the condition of cervical spondylosis. The relevant table is 3.3.1, "loss of musculoskeletal function: spinal movement". The medical examinations indicated the following as regards restrictions in cervical spinal movement:

Dr Wallace (Exhibit A3) found "limited flexion and extension by fifty percent of normal. … normal lateral flexion to right and left by fifty percent of normal … restricted rotation to right and left by twenty-five percent of normal".

Dr Anderson (Exhibit R2) identified "grossly restricted movement of his neck …".

Professor Sambrook (Exhibit R4) said that cervical spine "movements were restricted with flexion with 50 [degrees], extension to 20 [degrees], lateral flexion to 15 [degrees] and rotation to the right 30 but to the left just 5 [degrees]. … Using table 3.3.1, Mr Downing has an impairment rating in the cervical spine of 10 and he has the loss of about one half of the normal range of movement".

The Tribunal, on the basis of these examination findings, finds that the impairment rating for the cervical spondylosis is 10 points.

Impairment rating for the Applicant's generalised anxiety disorder

The Applicant argues that a GARP impairment rating of 40 (as per Dr Helme) is appropriate (Exhibit A4). The Respondent considers that a rating of 27 (as per Dr Walden) is appropriate (Exhibit R5).

The range of assessments according to different experts is set out in the table above (see paragraph 34 above).

Chapter 4 of GARP dealing with emotional and behavioural conditions is relevant. The Tribunal's findings in relation to GARP chapter 4 are set out in the following table.

4.1 Subjective distress 10 Very frequent symptoms causing moderate distress. The veteran will often be unable to distract himself or herself from the distress. A rating of 6, as favoured by the VRB (T24) would apply if symptoms were "frequent" rather than "very frequent". The Tribunal considers that the evidence is that symptoms are daily and so very frequent. A rating of 15 would apply if symptoms were persistent and caused considerable distress. The Tribunal agrees with Drs Helme and Walden that that level of distress is not present. The Applicant's evidence was that he has trouble sleeping unless he has "a fair bit" to drink. He has between 2 and 10 schooners a day. Dr Helme (Ex A2) recorded that he worries frequently and over minor issues. He is anxious when driving and tends to jump at the slightest noise. He is anxious frequently every day. Dr Walden (Ex R1) noted that the Applicant described frequently feeling tense, irritable, and unable to find relief from this. He limits car usage because he tends to go blank. Daily drinking is likely an attempt to deal with anxiety. Dr Barratt's ratings in T25 are unexplained.

4.2 Manifest distress        10       Obvious distress and pre-occupation with the symptoms is evident to casual observers and even persons unfamiliar with the veteran. For a 6 rating the symptoms would be observable only by astute observers or persons familiar with the veteran. For a 15 rating there must be obvious continual distress. For a 3 rating, as favoured by the VRB (T24) the distress must be apparent only sometimes and the veteran's pre-occupation only sometimes noticeable to astute observers, The Tribunal considers that Dr Helme's observation supports a 10 rating better than a 3, 6 or 15.      Dr Helme said (Ex A2) that in February 2000 Mr Downing was clearly an anxious man throughout the interview. He favoured a 10 rating. Dr Walden (Ex R1) opted for a 6 rating citing his irritability, poor concentration, restlessness, tendency to pace up and down the room when friends visit but not out in the public.
4.3 Functional effects      1         Minimal or no interferences with most aspects of living. A 5 rating requires a marked interference with function in many everyday situations. The Tribunal considers that Dr Walden's assessment of 1 better reflects the veteran's capacities in relation to matters in the explanatory note in GARP which emphasises such things as "the veteran's ability to deal with personal hygiene, to prepare and consume food, to use electrical appliances, to find one's way around, to return safely home after going to the shops etc, to avoid common dangers (such as in crossing the road), to remember the location and use of ordinary objects, the method of catching public transport etc." The Tribunal's assessment from the evidence is that the requirements for a rating of 2 (moderate interference in "some" situations) or 3 (moderate interference in many situations) are not justified on the basis of the evidence. In essence Mr Downing looks after himself quite effectively. Dr Helme (Ex A2) opted for a 5 rating noting that the Applicant can live alone, prepare his own meals but that he worries every day. Anxiety can prevent him from going shopping and he avoids associating with people. Dr Walden recommends a 1 score. She noted that he is generally able to function in a non-specific environment. He can go shopping, do banking, catch public transport. He has reduced driving to short distances where he is not familiar because he often "goes blank". The VRB opts also for a 1 rating (T24).
4.4 Occupation        6         The veteran may be unable to work or may still be working, but with marked loss of time and/or loss of productivity at work leading to loss of original vocation. A 5 rating would involve the veteran only in having difficulties at work. An 8 rating would mean that the veteran is unable to work.    Arguably the veteran might qualify for an 8 rating. The Tribunal defers, however, to Dr Helme who saw and assessed the veteran. The Tribunal considers that Dr Helme's assessments as to loss of time and productivity are apposite in the Applicant's case. Dr Helme (Ex A2) said it is difficult to judge the effect of generalised anxiety disorder when the patient is not working but considered that there would be marked loss of time and productivity due to his anxiety and it would be difficult for him to maintain employment. Dr Helme gave a 6 rating. Dr Walden rated the Applicant at 5. He ceased work likely because his cognitive impairments would make it difficult for him to learn new tasks. Fluctuations in concentration could cause problems.    The VRB opted for a 5 rating (T24) because the generalised anxiety disorder contributed to his losing his job. The Respondent argued that it was his orthopaedic conditions that caused the Applicant to lose his job.
4.5 Domestic situation     1         Occasional friction with family members. The emphasis in the table is on "domestic interpersonal relationships" and so the Tribunal tends to discount the non-resident friendships. The Tribunal is impressed by Dr Walden's findings about the Applicant's platonic but domestic relationship with a woman friend who shares his house. The Tribunal accepts that there is some friction within that relationship but that it is a variant of a modern form of family relationship. The Tribunal does not agree with Dr Helme that the Applicant has a virtually non-existent family life such as to attract an 8 rating. The VRB (T24) opted for a nil rating on the basis that the veteran's family left him in 1980 and he lives alone. He retains contact only via greeting cards. This assessment overlooks the veteran's housemate and, if accurate, would probably justify an 8 rating.          The Applicant's evidence was that he lives alone. He married after returning from Vietnam and had three children. His wife left him over 20 years ago. His children are in their 20s and never see him.    Dr Helme (Ex A2) took this to mean that the Applicant's family has broken up and this occurred because of the veteran's worry, irritability and depressed moods. Dr Walden (Ex R1) noted that the Applicant has shared a house with a woman for a number of years. He describes some day to day irritability with her when she tells him what to do about domestic chores. He has some friends with whom he can get on. He maintains contact by phone with siblings.
4.6 Social interaction         3         Significant reduction in social interaction. A 5 rating would require a substantial reduction in social interaction. In the Tribunal's view the Applicant's level of social interaction is not all that much reduced from the ordinary.     The veteran told the Tribunal that he avails himself of the community transport scheme, that he does not go out much or mix with other people, that he reads, watches television and listens to the radio and does gardening. He has good neighbours and keeps in touch with them. He has a Korean war friend who drives him places.    Dr Helme (Ex A2) scored the veteran as 5 on the basis that he has contact with only one nearby neighbour.   That seems an understatement in view of the veteran's evidence to the Tribunal. Dr Walden (Ex R1) noted that he sees one friend two or three times a week and the family of his housemate a couple of times a week. He goes to the RSL club but limits contact there because of excessive drinking. He ceased visiting older veterans as he used to do before 1995. The VRB opted for a 3 rating also (T24).
4.7 Leisure activities           3         Significant reduction in recreational activities. The 6 rating suggested by Dr Helme would require a "substantial" reduction in most recreational pursuits. Whilst it is true that the Applicant's leisure pursuits are sedentary he has quite a few of them. He does not appear to have sacrificed many leisure activities.     Dr Helme (Ex A2) recorded that the Applicant's leisure activities were reading and doing crossword puzzles at home. He concluded this represented a considerable withdrawal from leisure activities and rated him at 6. Dr Walden (Ex R1) recorded the Applicant as watching television, reading, listening to music and doing some fishing. This is close to the evidence the Tribunal obtained. She rated him as 3. The VRB opted also for a 3 rating (T24).
4.8 Current therapy 3         Psychiatric treatment, at least in the form of medication or psychotherapy, has been used (or deemed necessary), and/or periods of regular supportive therapy at an outpatient level or similar. The Tribunal thinks that the 3 rating accurately reflects the level of intervention. Dr Helme's rating of 5 requires a need "for intensive specialist psychiatric treatment on an outpatient basis, including medication and/or inpatient hospital care for short periods". This does not seem satisfied on the evidence.      He takes Valerian relaxer and he sees a counsellor and psychiatrist regularly. Dr Helme (Ex A2) rates the Applicant as 5. Dr Walden (Ex R1) rates him as 3. The VRB opted for a 3 rating (T24). It referred to the Applicant's counselling, psychiatric treatment and prescription of Valerian.
Overall rating           32

There are ratings ascribed also by Dr Anderson (Exhibit R2). The ratings suggested by Dr Anderson are generally close to the VRB's. Dr Anderson does not explain the bases for his ratings and the Tribunal has found that they are of no real assistance.

The overall GARP impairment rating is made up of:

Generalised anxiety disorder 32 points
BSHL 2 points
Tinnitus 5 points
Cervical spondylosis 10 points

This translates into a rating of 43 in accordance with the combined values chart in chapter 18 of GARP. This is rounded up to 45 in accordance with chapter 18 of GARP.

There has been no challenge to the veteran's lifestyle assessment of 3 and the Tribunal finds that that is the appropriate lifestyle rating.

The conversion of these figures to the Applicant's degree of incapacity in accordance with scale 23.1 in GARP and s 21A of the Act results in a degree of incapacity of 80. The Tribunal therefore finds that the Applicant's degree of incapacity is 80%.

The Applicant's entitlement to special rate Disability Pension.

The Applicant has argued that, even without the acceptance of cervical spondylosis as a war-caused disease, he qualifies for payment of his Disability Pension at the special rate. The combination of ss 24(1), (2) and 28 of the Act, and the decision of the Federal Court in Flentjar v Repatriation Commission (1997) 48 ALD 1, 4-5, dictate the following questions that must be answered:

Question 1 – Has the Applicant lodged a claim (s 24(1)(aa) of the Act)?

Question 2 – Was the Applicant aged under 65 when the claim was made (s 24(1)(aab) of the Act)?

Question 3 – Is the Applicant's degree of incapacity at least 70% under s 21A of the Act (s 24(1)(a)(i) of the Act)?

Question 4 – What are the vocational, trade and professional skills, qualifications and experience of the Applicant (ss 24(1)(b) and 28(a) of the Act)?

Question 5 – What are the kinds of remunerative work which a person with the skills, qualifications and experience referred to in question 4 might reasonably undertake (ss 24(1)(b) and 28(b) of the Act)?

Question 6 – What is the degree to which the physical or mental impairment of the Applicant as result of the war-caused injury or war-caused disease, or both, has reduced his capacity to undertake the kinds of remunerative work referred to in answer to question 5 (ss 24(1)(b) and 28(c) of the Act)?

Question 7 – What was the relevant remunerative work that the Applicant was undertaking within the meaning of s 24(1)(c) of the Act (s 24(1)(c) of the Act and Flentjar v Repatriation Commission (1997) 48 ALD 1, 4-5)?

Question 8 – Is the Applicant, by reason of his war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work (s 24(1)(c) of the Act and Flentjar (supra))?

Question 9 – If the answer to question 8 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the applicant from continuing to undertake that work (s 24(1)(c) and Flentjar (supra))?

Question 10 – If the answers to questions 8 and 9 are yes, is the Applicant by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity (s 14(1)(c) of the Act and Flentjar (supra))?

It may also be necessary to consider the requirements in s 24(2) of the Act.

The Tribunal will proceed now to address these questions.

Question 1 – Has the Applicant lodged a claim (s 24(1)(aa) of the Act)?

Yes. A valid claim (T4) was lodged on 1 November 1995.

Question 2 – Was the Applicant aged under 65 when the claim was made (s 24(1)(aab) of the Act)?

At the date of claim the Applicant was aged 52 years (T4), so the answer is yes.

Question 3 – Is the Applicant's degree of incapacity at least 70% under s 21A of the Act (s 24(1)(a)(i) of the Act)?

As already found by the Tribunal, the Applicant's degree of incapacity is 80%, so the answer is yes.

Question 4 – What are the vocational, trade and professional skills, qualifications and experience of the Applicant (ss 24(1)(b) and 28(a) of the Act)?

Relying largely on the history taken by Dr Walden (Exhibit R2), the Tribunal understands that the Applicant left school at age 14 and worked briefly for the Forestry Department in Queensland. He then worked for three years at a meatworks. He worked on the land on his father's property for a period. He enlisted at age 24 and was in the army for three years. After the army he worked for the NSW railways as a "jack of all trades" in the Chullora workshops from 1970 to 1981 and then for the railways in Glen Innes until he became redundant with the closing of the railway line there in 1989. He then attended TAFE and worked for 11 months as a builder's assistant. He then worked for two years as a roller driver (apparently doing roadwork). He then studied welding at TAFE and worked as a welder for Karinya Steelmakers until he resigned at the end of 1995. He was a permanent casual there, working between three and five days a week. This account tallies with the Applicant's work history in T4.

The Applicant therefore has training as a builder's assistant and welder. He has lengthy experience as a railway driver and fettler. He has some experience in roadwork and in welding.

The Tribunal therefore finds that the Applicant's skills, qualifications and experience are in the fields of railways driver/fettler, roller operator and welder.

The Tribunal finds that the kinds of remunerative work a person with the Applicant's skills, qualifications and experience might reasonably undertake are heavy labouring, welding and driving.

The Applicant's war-caused injuries or diseases are hearing loss, cervical spondylosis and generalised anxiety disorder. The Tribunal finds that these disabilities reduce to practically zero the Applicant's capacity to engage in these activities.

In T4 the Applicant suggested how his accepted disabilities would impede his work. He has problems hearing orders, possibly an important matter in his area of work. He has to avoid heavy lifting. In T9 he mentions driving difficulties caused by entry and exit from a vehicle and sitting a long time in one position. The Applicant cannot work standing on cement or other hard surfaces, presumably because of his orthopaedic disabilities. At page 39 he says, "Due to neck and lower back pains and ability to move around I ceased my fabrication job with Carinya Steel Products … on 22/12/1995. I was unable to continue working on the cement floor and wear heavy steel toe capped safety boots. There are no light duties in that work place".

In Exhibit A1 the Applicant explained his difficulties when he last worked:

Standing for long periods on hard surfaces caused pain in his back, hips and right knee.

Deafness made it dangerous to be around trucks and machinery. Co-workers had to tap him on the shoulder to get his attention.

Memory failures meant he forgot jobs he had to do.

He said also that he had not looked for work since ceasing on 22 December 1995 because of his "knowledge that [he] can't work with [his] disabilities". He takes painkillers which make him drowsy. He has been advised not to drive a car or operate machinery.

Dr Helme in Exhibit A2 considered that the Applicant's generalised anxiety disorder would cause a marked loss of time and productivity due to his anxiety and it would be difficult for him to retain employment.

Dr Wallace in Exhibit A3 said that he did not think that the Applicant could engage in gainful employment because of his cervical spinal injury, alcohol dependence and "multi focal degenerative disease

Dr Walden in Exhibit R1 did not see the generalised anxiety disorder and alcohol dependence as alone preventing him from working for eight or more hours a week. "He described missing very little work related to these conditions, and did not describe much irritability with his workmates. … it is likely that some impairment in concentration and difficulty learning new material would limit him undertaking new work, but he should be capable of performing simple tasks with which he is familiar".

Dr Anderson in Exhibit R2 considered that, despite arthritis in the neck, right hip, left knee and left wrist, he could still do light bench work, at least on a part-time basis. The job would need to be carefully structured. He could work as a service station console operator on a part-time basis. He is not fit for truck driving. He could not work with fast moving or dangerous machinery because of his drinking problem.

Professor Sambrook in Exhibit R4 said that the Applicant appeared unable to undertake remunerative work "at present" (ie in April 2000). The limitation in cervical spine movement would affect his ability to lift or perform physical labour but would not affect to a large extent his capacity to walk around or perform sitting activities. Dr Anderson in Exhibit R3 commented on Professor Sambrook's opinion. He accepted Professor Sambrook's assessment that Mr Downing had lost about half of the normal range of cervical movement. He identified the loss of about a quarter of movement of the lumbar spine. Dr Anderson suggested "that there are many people carrying out a full occupation in the workforce who have a restriction of movement of the cervical and thoracolumbar spine easily as much as these figures". He considered that, if Mr Downing wished to do so, he "would quite easily be able to work at least 20 hours a week"

The Tribunal discerns from this evidence that the Applicant has difficulty working because of his accepted disabilities. His cervical spondylosis according to Professor Sambrook effectively prevents him from working. Dr Wallace agrees. Only Dr Anderson demurs. The Tribunal is aware from other matters that Dr Anderson takes a view more robust than most as to the capabilities of the average human being. It may be correct that some workers remain in jobs with a cervical spine disability at the level of the Applicant's, but it would seem from the contrary evidence that this is less than common. The Tribunal finds that the Applicant's cervical spondylosis alone is enough to prevent him from performing the relevant remunerative work.

The Tribunal considers that the Applicant's BSHL, by itself, would restrict the Applicant from the work he might otherwise be doing for the reasons he himself advanced.

The Applicant's generalised anxiety disorder might not, if Dr Walden is correct, by itself prevent or greatly restrict the Applicant from doing the relevant remunerative work. However, in view of the findings relating to the other accepted disabilities, this does not matter.

The Tribunal finds on the basis of the Applicant's employment history (see paragraph 106 above) that relevant remunerative work that the Applicant was undertaking was heavy labouring, welding and driving.

Question 8 – Is the Applicant, by reason of his war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work (s 24(1)(c) of the Act and Flentjar (supra))?

The Tribunal finds that the answer to this question is yes for the same reasons as applied for question 6.

Question 9 – If the answer to question 8 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the Applicant from continuing to undertake that work (s 24(1)(c) and Flentjar (supra))?

The answer to this question causes problems for the Applicant. In addition to the war-caused injuries or diseases that prevent the Applicant from continuing to undertake the relevant work there has been mention made of pain in the Applicant's back, hips and right knee. This comes from the Applicant himself (Exhibit A1) and from Dr Wallace (Exhibit A2).

Some doctors have mentioned the Applicant's alcohol abuse as a reason he cannot return to work. Whilst this is not accepted at present as a discrete war-caused disease, it seems a function of the Applicant's generalised anxiety disorder (Dr Walden seems to accept this view in Exhibit R1). The Tribunal regards it as such and so regards any barrier to employment arising from this condition as war-caused.

The Tribunal finds that the war-caused disabilities are not the only factors preventing the Applicant from continuing to undertake the relevant work because the non war-caused disabilities in the Applicant's lower back, hips and right knee contribute to his inability to continue with relevant remunerative work.

An answer is not strictly called for, given the answer to question 9, however, the Tribunal is reasonably satisfied that the Applicant is worse off financially as a result of his no longer doing the types of work he did up to 1995. It is conceivable that, if those jobs were low paid, and they may have been because they were not full-time permanent jobs, then the Disability Pension is at the same or at a higher level. If that is the case, or if he has money from something like a disability insurance policy, then he may not be losing income. There is no evidence to that effect before the Tribunal, however.

These findings mean that the Applicant has not qualified for a special rate pension under s 24(1) of the Act. It is necessary to consider whether the Applicant can avail himself of the ameliorating provision in s 24(2)(b) of the Act. Under that provision he may qualify for special rate even if his war-caused disabilities are only a substantial cause of his being prevented from continuing to undertake the relevant work. The Tribunal must be satisfied as a first step, however, that the Applicant "has been genuinely seeking to engage in remunerative work".

The Applicant said in Exhibit A1 that he has not looked for work since he finished his last job late in 1995. He said he has lived on a Disability Pension and a Service Pension. T13B indicates that the Applicant claimed a Service Pension on or about 30 April 1996, that is quite soon after ceasing work. He claimed the Disability Pension even before ceasing work. This case appears similar in some respects to Re Hornery and Repatriation Commission (1998) 52 ALD 317 where the Tribunal held that there must be "genuine" attempts to find work and Re Brennan and Repatriation Commission (1996) 42 ALD 191 where the Tribunal held that s 24(2)(b) did not apply to the applicant because he was not genuinely seeking work at the time of the claim and he was content to exist on his Service Pension and military superannuation. In the present case the Applicant claimed Disability Pension in 1 November 1995, gave up work on 22 December 1995, claimed Service Pension on or about 30 April 1996 and never engaged in any work search activity. He would not seem a candidate for application of the ameliorating provision.

Conclusion

The Tribunal has found that the Applicant's cervical spondylosis is a war-caused disease. This, in addition to the Tribunal's findings as regards the impairment rating for the Applicant's generalised anxiety disorder, has increased his rate of Disability Pension to 80% of the general rate with effect from the first pension payday on or after 1 August 1995. The Tribunal has not found, however, that the Applicant qualifies for a special rate Disability Pension.

The Tribunal has also considered whether the Applicant might qualify for intermediate rate Disability Pension in accordance with s 23(1), (2) and (3) of the Act. Section 23(1)(c) and s 23(3)(b) are provisions which operate in the same fashion as s 24(1)(c) and 24(2)(a). The Tribunal finds that the Applicant cannot take advantage of s 23(1)(c) and 23(3)(b) for the same reasons as he could not benefit from s 24(1)(c) and 24(2)(b).

Decision

The decision under review is set aside. In substitution the Tribunal decides that the Applicant's cervical spondylosis is a war-caused disease and that he is to be paid Disability Pension at 80% of the general rate as of the first pension payday on or after 1 August 1995.

I certify that the 132 preceding paragraphs are a true copy of the reasons for the decision herein of M J Sassella, Senior Member
Dr J D Campbell, Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  12 October 2000
Date of Decision  27 November 2001
Counsel for the Applicant        Mr N Dawson
Counsel for the Respondent    Mr S Modder
Solicitor for the Respondent    Mr Ian Marsh