Drake and Repatriation Commission (Veterans' entitlements)
[2017] AATA 836
•12 June 2017
Drake and Repatriation Commission (Veterans' entitlements) [2017] AATA 836 (12 June 2017)
Division:VETERANS' APPEALS DIVISION
File Number: 2015/5086
Re:Jeffrey Drake
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Senior Member J Sosso
Date:12 June 2017
Place:Brisbane
The Tribunal sets aside the decision under. The matter is remitted to the Repatriation Commission to assess the appropriate level of entitlement. This decision takes effect on and from 30 January 2013.
................................[Sgd]........................................
Senior Member J Sosso
CATCHWORDS
VETERANS’ AFFAIRS – whether cervical spondylosis is defence-caused – whether bilateral rotator cuff insufficiency and painful arc syndrome are defence-caused – whether ischaemic heart disease is defence-caused - whether medical conditions are related to service - Statement of Principles - decision under review is set aside
LEGISLATION
Statement of Principles concerning cervical spondylosis No 67 of 2014
Statement of Principles concerning bilateral rotator cuff insufficiency and painful arc syndrome No 101 of 2014
Statement of Principles concerning ischaemic heart disease No 2 of 2016, No 90 of 2007, No 44 of 2009, No 97 of 2010, No 126 of 2011 and No 34 of 2014Veterans’ Entitlements Act 1986
CASES
Bushell v Repatriation Commission (1992) 175 CLR 408
Collins v Repatriation Commission (2009) 177 FCR 280
Hill v Repatriation Commission [2004] FCA 832
Kattenberg v Repatriation Commission [2002] FCA 412; 73 ALD 385
Knight v Repatriation Commission [2010] FCA 1134; 52 AAR 547
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Smith (1987) 15 FCR 325
Repatriation Commission v Tuite (1993) 39 FCR 540
Roncevich v Repatriation Commission (2005) 222 CLR 115
Thomas v Repatriation Commission [2003] FCAFC 122REASONS FOR DECISION
Senior Member J Sosso
12 June 2017
INTRODUCTION
Mr Jeffrey William Drake (the veteran) served in the Australian Army from 2 June 1971 until 1 June 1974. His service from 7 December 1972 until his discharge constitutes eligible defence service for the purposes of the Veterans’ Entitlements Act 1986 (the Act).
On 11 September 2013 the Repatriation Commission (the Respondent) accepted the veteran’s claim for sensorineural hearing loss, tinnitus, non melanotic malignant neoplasm of the skin, osteoarthritis of the left knee, lumbar spondylosis and solar keratoses. However, the veteran’s claim for left shoulder cuff insufficiency and painful arc syndrome, right shoulder rotator cuff insufficiency and painful arc syndrome, cervical spondylosis, ischaemic heart disease and emphysema were not accepted on the basis that they were not related to his defence service – Exhibit 1 T16 p. 226.
The veteran was granted a disability pension at 50% of the general rate with effect from 30 January 2013.
The veteran sought review of this decision by the Veterans’ Review Board (the Board). On 11 June 2015 the Board affirmed the Commission’s decision – Exhibit 1 T2 B2.
On 25 September 2015 the veteran applied under the Administrative Appeals Tribunal Act 1975 for a review of the Board’s decision – Exhibit 1 T1 A1.
A hearing was convened on 19 April 2017. The veteran was represented by Mr A Harding of Counsel the Respondent was represented by Mr B Williams. The veteran gave evidence and was cross-examined. In addition to the veteran, Mr Gregory John Holmes and Dr Peter Sharwood (Orthopaedic Surgeon) gave evidence and were cross-examined.
The Respondent requested that in addition to the Applicant and Mr Holmes, that Mr Catsacos and Mr Hemerick be available for cross-examination.
Mr Harding informed the Tribunal that Mr Catsacos had passed away and Mr Hemerick had refused to participate.
Leave was given for both parties to lodge further written submissions at the conclusion of the hearing. Subsequently Mr Harding lodged a document entitled Applicant’s Outline of Submissions (AOS) and Mr Williams lodged a document entitled Respondent’s Outline of Submissions (ROS). The supplementary submissions were of great assistance to the Tribunal.
ISSUES
The Tribunal has to determine if the following medical conditions are defence-caused, and whether they are related to service through the applicable Statement of Principles (SoP):
(a)Cervical spondylosis – SoP No 67 of 2014;
(b)Bilateral rotator cuff insufficiency and painful arc syndrome – SoP No 101 of 2014;
(c)Ischaemic heart disease – SoP No 2 of 2016 which replaced No 90 of 2007 as amended by No 44 of 2009, No 97 of 2010, No 126 of 2011 and No 34 of 2014.
During the course of the hearing the relevant SoP for ischaemic heart disease (on the balance of probabilities) was assumed to be No 2 of 2016.
This assumption is in accordance with the principles expounded by the Full Federal Court in Repatriation Commission v Gorton (2001) 110 FCR 321 as subsequently endorsed by a differently constituted Full Court in Thomas v Repatriation Commission [2003] FCAFC 122.
Despite earlier contradictory judicial dicta, the principle to be adopted by the Tribunal is as follows:
(d)The Tribunal should first consider the SoP in force at the time of its decision;
(e)If there is no entitlement under the current SoP, then the Tribunal should ascertain whether there are any accrued rights under the repealed SoP which were preserved by that Instrument.
In this matter the Tribunal has applied Instrument No 2 of 2016.
THE LAW
The Act is beneficial in nature and its provisions are to be construed liberally – Hill v Repatriation Commission [2004] FCA 832 at [44] per Mansfield J.
As the veteran’s medical conditions are not war-caused, the Tribunal must determine the issues outlined above according to the standard of “reasonable satisfaction” – s 120(4). This equates to the civil standard of proof, or, in more common parlance, on the balance of probabilities – Repatriation Commission v Smith (1987) 15 FCR 325 at 334-335 per Beaumont J.
Neither a claimant for a pension or the Commonwealth, the Department or any other person in relation to such a claim has any onus of proving any matter relevant to the determination of the claim – s 120(6).
The practical operation of this subsection was explained by Brennan J (as he then was) in Bushell v Repatriation Commission (1992) 175 CLR 408 at 424 - 425:
“This section (s 120) is not concerned with an onus of proof. Subsection (6) says so expressly. It is concerned with a standard of satisfaction to which the administrative decision-maker must attain in finding the relevant facts, and it directs the decision-maker to act on the material before the Commission, the board or the AAT, as the case may be. Proceedings before the AAT may sometimes appear to be adversarial when the Commission chooses to appear and defend its decision or to test a claimant’s case but in substance the review is inquisitorial. Each of the Commission, the board and the AAT is an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it. If the material is inadequate, the Commission, the board or the AAT may request or itself compel the production of further material. The notion of onus of proof, which plays so important a part in fact-finding in adversarial proceedings before judicial tribunals, has no part to play in these administrative proceedings. Nor does s 120 create any presumption which has to be dispelled by the material before the decision-maker.”
Claims lodged after 1 June 1994 are subject to the SoP scheme. In this matter the relevant statutory provision is s 120B which deals with claims that relate to defence service other than hazardous service.
Subsection 120B(3) provides that in applying s 120(4) to determine a claim, the Repatriation Commission is to be reasonably satisfied that an injury suffered, disease contracted or death by or of a person was defence-caused only if the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person and there is in a SoP that upholds the contention that the injury, disease or death is, on the balance of probabilities, connected with that service
SoPs are issued by the Repatriation Medical Authority (RMA). The RMA is established by s 196A and its functions are out in s 196B. Where the RMA is of the view that there is sound scientific and medical evidence that a particular disease can be related, inter alia, to defence service, it must determine a SoP in respect of that kind of disease. The SoP sets out the minimum factors that must exist and which of those factors must be related to service rendered by a person before a reasonable hypothesis has been raised connecting the particular disease to the circumstances of service - Kattenberg v Repatriation Commission [2002] FCA 412; 73 ALD 385 at [3] per Emmett J.
Section 70 of the Act provides that a pension is payable under Part IV for injury, disease or death which is due to service as a member of the Australian Defence Forces.
Injury, disease or death is “defence caused” if it is due to an occurrence, or arose out of or was attributable to or was aggravated by defence service, or is deemed defence caused – s 70(4) and (5).
THE FACTS
The veteran’s age is unclear, he was either born in 1951 or 1949, but it is more likely than not that it was the earlier date. In any event, it is not disputed that he served in the Australian Army from 2 June 1971 until 1 June 1974.
Most of his early life was spent in rural Victoria, in particular in Murtoa, a wheat district town of around 1000 people located 305 km north west of Melbourne in the Wimmera.
The veteran testified at the hearing that neither of his parents smoked or drank alcohol. He also testified that as a youth he was not a smoker.
The veteran left school at 17 years of age (Exhibit 6 p. 4). At some time after that he moved from Victoria and worked between 1968-1971 on remote cattle stations in Quilpie and Charters Towers areas of Queensland - Exhibit 4. He testified that his social life comprised going to church dances every three or four months where smoking and drinking were not allowed or going to the cinema. As the legal drinking age prior to 1975 was 21, he was not allowed into hotels – see Transcript pp 17-18, Exhibit 2 [2] – [3].
In short, the evidence presented to the Tribunal was that the veteran had very little experience of the wider world before he enlisted in 1971.
The veteran claims that he started smoking after he enlisted (Exhibit 2 [4] – [6]):
“4. After joining the army I first started smoking basically due to peer pressure and the fact that the army supplied cigarettes in ration packs. My recollection is that they were Marlborough brand and contained ten cigarettes. The army also supplied rum and beer.
5. During training ration packs would be provided at smoko. I started to become a regular smoker.
6. There was an enormous amount of pressure to us to smoke cigarettes but to smoke more and more regularly. I recall that other soldiers, including NCO’s, made statements in respect to smoking such as, ‘how can we trust you’, what are you, a weak bastard’, ‘are you a man or a girl’, if you did not smoke. You had to ‘play the game’ or you were on the outer.”
The veteran testified that recruit training lasted three months, and by the end of that period he had commenced smoking, usually five or six cigarettes each day. His rate of smoking steadily increased until he was smoking 20 cigarettes each day – Transcript p. 19.
After recruit training the veteran undertook core training at Ingleburn, and finally was posted to Lavarack Barracks, Townsville where, after a few weeks, he was transferred from A Company to Support Company and commenced duties as a regimental policeman in February 1972 – Transcript pp. 30 – 31, Exhibit 4 p. 230.
A key issue in the increase of tobacco smoking was said to be the anticipation that the veteran was going to be deployed to Malaysia. The veteran said (Exhibit 2 at [7] – [8]):
“7. My smoking gradually escalated particularly after I was warned that we were to be deployed for overseas service (in Malaya). I found the period leading up to this to be very stressful and my smoking increased substantially around about that time. To the best of my recollection I increased from 20 cigarettes a day to initially 30 cigarettes a day and that increased until 40 to 50 cigarettes a day in 1974/1975. I would say that this is the time I became dependent on smoking.
8. I recall that we had been actually placed on a parade ground with a view to being taken to the RAAF base to be sent to Malaya. This was whilst I was in the second battalion. We were then told we were not going on that occasion. Prior to that, my smoking had substantially increased in the weeks leading up to it as it was assumed we would be leaving at any time. We had been told we would be going for about 12 months.”
The veteran testified that although he wanted to serve in Malaya, he was anxious and smoking helped calm and relax him to “take the edge off” – Transcript p. 20.
The veteran testified that his rate of smoking increased during this time from 20 to 50 cigarettes each day – Transcript p. 20.
The veteran was a regimental policeman, and this role was not looked on favourably by some of his peers. Some of the men serving with him did not like him and refused to speak to him. The veteran, nonetheless, enjoyed his duties and did not mind going out into the bush as this was a lifestyle that he was used to.
The veteran continued smoking after his discharged from the Army. The veteran states that he ceased smoking in approximately 2000 – 2001 – Exhibit 2 at [10]. Further, he states that the entry in the “Claimant Report – Cigarette Smoking”, signed by him on
11 April 2013 (Exhibit 1 T4 pp. 19 - 21) where it is said that he ceased smoking in 2013 is incorrect. He claims that the questionnaire was not completed by him but by an advocate, and he wasn’t sure why the incorrect date was inserted – Transcript p. 22.
In March 1972 the veteran was involved in a motor vehicle accident whilst driving a private vehicle and when not on duties. He was admitted to Townsville General Hospital on
22 March 1972 (there are some conflicting accounts of the period of time the veteran was treated at the Townsville General Hospital) – Exhibit 4 p. 210. He lost consciousness for a short period following the accident and was suffering from “some retrograde amnesia” with slight deafness in the right ear. Patient records indicate that he suffered from headaches for days thereafter as well as problems with his right ear – Exhibit 3 pp. 106 and Exhibit 4 p. 212.
He was transferred to 4 Camp Hospital on 24 March 1972 and discharged on
30 March 1972 – Exhibit 3 pp. 98-99.
In preparation for the proposed deployment of the Second Battalion to Malaya, the veteran was sent in early 1973 to the jungle training centre at Canungra. Towards the end of his time there the veteran was required to participate in an obstacle course which involved crawling under barbed wire while a fixed mounted machine gun fired tracer bullets over the heads of the participants, running over logs and tyres, climbing over walls, and at the conclusion climbing a rope from a platform on a tree approximately 20 – 30 feet high, and then jumping into a creek. However, the veteran claims he lost his grip and fell onto his back on dry land – Transcript p. 23.
His account of this incident is as follows– Exhibit 2 [13] – [16]:
“13. In the course of training I fell approximately 20 feet from a rope. After the fall I recall that I hurt both shoulders and my back and was in a lot of pain. I felt like I had been hit with a baseball bat. I recall that at the time I had what was referred to as a ‘bum pack’ with water bottles etc and I was placed in a landrover and taken to the RAP.
14. I was taken to the Regimental Aid Post (‘RAP’). I recall that they only had tents there and did not carry medical records. They did have a field note book referred to as a ‘day book’ and the records were supposed to have been transferred at a later date to the normal medical records in my own unit. I believe that records were often not transferred from the RAP to those in the unit as this happened to other defence service members.
15. I recall that I was given aspirin at the RAP and told ‘it would come right’. I was also told to do some exercises. I was given two days off.
16. At the time I felt there was no point in complaining or seeking any further medical treatment as there would be no point and I would be regarded as a ‘whinger’.”
This version of events is partially corroborated by the Statutory Declaration of the late George Catsacos BEM, who was the senior NCO at the time. Mr Catsacos stated (Exhibit 1 T2 B16):
“Private Drake slipped off a 20 foot rope and fell into a mud hole. As I was the senior NCO I immediately threw a rope in to pull him out and put him in a Rover and took him to the RAP. On the way to the RAP he complained he hurt his back.”
In addition to the evidence of the late Mr Catsacos, the Tribunal was also presented with a statutory declaration from Mr Holmes dated 8 October 2014. In that document, the following information is given (Exhibit 1 T2 B17):
“in 1973 my battalion attended the jungle training centre at Canungra Qld to carry out acclimatisation training prior to going to Malaya. While doing the obstacle course I received an injury that put me on light duties until after the battalion returned to Townsville.
Amongst others with injuries was Jeff Drake who injured his back on the same obstacle course.
Jeff informed me that this injury was not transferred from the field notes to his med docs. Jeff thought that since I was a medic at the time I would remember this.
Although I cannot attest to this I can attest to the fact we spent the last days of the course on light duties together while the rest of the battalion was at …”
Mr Holmes gave evidence that he did not witness the accident involving Mr Drake, did not treat him and did not see him immediately thereafter. However, he went on to give this evidence when being questioned by Mr Harding (Transcript p. 47):
“…It is clear that you didn’t treat Mr Drake. You didn’t see him immediately after he says he was injured, but I note you go on to say that:
We spent the last days of the course on light duties together.
Yes. At Canungra we were part of the sick, lame and lazy, sir…
So what you do recollect, is this the case, you didn’t actually see Mr Drake get injured but you do recollect that he was with you in the group which comprised the sick, lame and lazy whilst at Canungra? That is correct sir.
Thank you for that. And your recollection, according to your statement, is that you were together for the last days of the course on light duties together. That is your recollection? That’s correct sir. We were all...,together and we weren’t even given any duties to carry out.
No duties to carry out? That’s correct.”
The veteran testified that he was in acute pain for the next couple of days, with an arc of pain across his shoulders and down to the middle of his back. The veteran also testified that he has continued to experience pain in this region until the present, and from the time of his fall he has been unable to lift or move heavy objects – Transcript pp. 23 - 24. During his evidence he was unable to lift his arms to indicate where he continued to be in pain and indicated that the pain he was suffering included part of his neck.
After the Canungra jungle training the veteran was sent to Townsville, but he was unable to carry a pack or do any other physical training. Consequently, he never went back to his previous duties and was directed to work in the guard room – Exhibit 2 at [19]. The veteran testified that his duties then consisted of answering the phone, writing down and checking all incoming and outgoing vehicles. The veteran likened his duties to being akin to a security officer – Transcript p. 25.
When it became known that Australian troops would not be sent to Malaya the second battalion was merged with the fourth battalion (2nd/4th). Defence records indicate that the veteran was transferred to 2/4 RAR on 15 August 1973 – Exhibit 4 p. 34.
The veteran testified he was not placed in the regimental police section, but was put into an infantry company – Transcript p. 25. However, because he couldn’t carry a pack or perform the duties allotted to him, he was placed in D Company. Further, at this time he was a lance corporal, however he could not perform the duties required of him, namely going out on patrol and all of the other duties expected of a rifleman. Consequently, he was, at his own request, demoted from lance corporal to private effective from
30 October 1973 – Exhibit 4 pp. 18 and 153.
The veteran was dissatisfied with his job as a clerk, but as he was not able to be transferred to other duties he resigned and was discharged in June 1974.
The veteran testified that he could not return to his earlier occupation as a station hand on cattle stations as he could not break in, shoe or saddle horses, muster or brand cattle or repair fences – Transcript p.26.
Instead the veteran obtained employment in Queensland Correctional Services in a clerical capacity, where he worked as a prison officer from 1974 to 1992. – Exhibit 6 p. 3. Following a redundancy, he obtained work as a truck driver/owner from 1993 until 2013 – Exhibit 6 p. 4, Applicant’s Statement of Issues Facts and Contentions (ASIFC) [7].
The veteran is currently a non-smoker and non-drinker; he suffers from diabetes and gout, but has no other significant illnesses – Exhibit 6 p.4.
The Applicant contends (ASIFC [9]) that as a result of the condition suffered by him he has been unable to work overhead or undertake various activities requiring him to lift his arms or bend and he has been unable to work since leaving the trucking industry in circa 2013.
CONSIDERATION
Introduction
As previously outlined, there are three non-accepted conditions that require determination by the Tribunal. Each will be considered below.
Before dealing with these, it is important to note that there are no contemporaneous service medical records confirming the occurrence of the veteran’s injury at Canungra in 1973.
Further, the veteran in his Discharge History Questionnaire answered in the negative to questions as to whether he had any knee, back or joint injury or any other illness or injury. He did, however, answer in the affirmative to the question whether he had suffered from any severe head injury (concussion), and there is a reference in the form to his 1972 motor vehicle accident – Exhibit 3 p. 5.
The veteran testified that although he signed the Discharge History Questionnaire he did not fill the form out. The following exchange between Mr Williams and the veteran occurred (Transcript pp. 75-76):
“My query to you is, do you actually recollect whether you..? I didn’t fill that paper out. It is not my handwriting.
Do you recollect whether you at the time took the time to go through your medical history with that person? They did not.
Is that your recollection? That’s my recollection.
So you said you signed the form? Yes.
Why did you sign the form without checking it? That’s how I done things back then.
What do you mean by that? What were you – were you concerned as to this being an accurate record or not at the time? It – it’s concerned about getting out of there. It’s concerned about getting discharged. They’ve got the records in front of you. They should be – they should be filling it out properly.
All right, so let’s explore that a bit. You said you were concerned about getting out of there. So at the time you went through this process, what was your thought process at that time?.....It’s just, ‘Hurry up – hurry up and do it’. You don’t want to be in the army. They don’t want you to be there. They just want you out, ‘Just hurry up and do it’.”
Mr Williams, on behalf of the Respondent, draws the Tribunal’s attention to not only the absence of contemporaneous medical records of any injuries suffered by the veteran at Canungra, his Discharge History Questionnaire, but also other contemporaneous material which, in his submission, is inconsistent with a finding that the veteran suffered the claimed injuries.
The Tribunal has formed the view, based on all the evidence presented, that the preferable view, on the balance of probabilities, is that the veteran did have an accident at Canungra in 1973, and did suffer the injuries he claimed.
While there are no contemporaneous medical records of the accident, the Tribunal has no reason to doubt the statements of Mr Catsacos and Mr Holmes. Further, the Tribunal formed a favourable view of Mr Holmes as a witness.
The evidence strongly suggests that the veteran fell while participating in an obstacle course. He was given perfunctory medical treatment, and, like Mr Holmes, put in the “sick, lazy and lame” group of personnel who were not fit for duties. The subsequent history of the veteran while enlisted can only be explained by one of two hypotheses. Either he was lazy and unsuited for the duties he previously performed, or that he had suffered an injury that rendered him incapable of performing those duties.
If the first of those scenarios is to be advanced, then the obvious question would be why the veteran was transformed post Canungra from an apparently good soldier who was performing his duties to a satisfactory level, to a person who was incapable of doing what he previously did.
During the course of the hearing Mr Williams drew to the attention of the Tribunal various contemporaneous reports and documents which, on their face, indicated that post Canungra the veteran was not suffering the ill-effects of the injuries he claimed.
The first of these series of documents was a “Report – Other Ranks” which though not signed and dated, appears to have been completed on or about 15 August 1973 – Exhibit 4 p. 175. Under the heading “Restriction on employment” is the notation “Nil”. Further under the heading “PES” which Mr Williams explained was the classification for fitness to undertake duties was the notation “FE” would stands for “Fit everywhere” – Transcript p.55.
Mr Williams cross-examined the veteran about this document as follows (Transcript p.66):
“…Now, I just want to take you back to the document I took you to before the break, and that was the form 26A, ‘Report other ranks’, and that was the form that I indicated to you that there were nil restrictions on employment and you were rated for your employment standard as ‘FE’. Now, do you remember undertaking that assessment? No.
Okay? Because when they disbanded 2nd Battalion and formed the 2nd/4th Battalion they said, ‘You’ll go into a company’. I said, ‘That’s not possible’. I said, ‘I won’t be able to perform the duties’, and I was told that ‘You have to give it a go’, and of course it didn’t happen, resulting in loss of rank and transferred to a different company….
You say that you couldn’t do that role. Why was that? Because I couldn’t carry a pack. An L1A1 FN rifle, loaded, weighs about 15 pound. How am I going to carry that plus a pack on my back that’s got 40 kilo in it, plus a bum pack? And then you’ve got your waist belt, carries two ammunition pouches, two water bottles, a bayonet, and on the weapon you’d carry your bayonet, and if you(‘re) in combat, two grenades. How do you carry that?”.
The more likely scenario based on all the material presented is that the veteran by August 1973 was not able to perform the duties expected of him and was, accordingly, given adverse reports. Moreover, it seems somewhat curious that the veteran was reported as being “FE” and yet was being criticised for not being able to perform the duties he previously performed.
Another matter properly raised by Mr Williams was a document dated 31 August 1973 and entitled, “Application to Play Sport with a Civilian Organisation”, namely the Cleveland Police Youth Boys Weight Lifting Club – Exhibit 4 p. 122.
The veteran made application to “play sport” with the abovementioned organisation. Prima facie, a person having suffered shoulder and back injuries of a type and nature that limited their operational capacity would not be in a position to be participating in weight lifting.
The veteran was cross-examined by Mr Williams and he stated under oath that he was approached to participate in this organisation in the capacity not of a weight lifter, but in the type of clerical duties he was then performing in the Army. Set out below are the relevant portions of the cross-examination (Transcript pp. 51- 52):
“I was approached by a police officer because police officers used to come to the guard room at the barracks and they might have warrants or summonses for soldiers. State police aren’t allowed to pass a guard room on Commonwealth property or army barracks. They have – we had to go or ring up and bring the soldier down so the summons could be served on him. Now, I got to know this police officer quite well and he said ‘How would you like to do some volunteer work for us?’ I said: ‘Okay not a problem’, I said, ‘but I’ll have to get permission’. So I got permission to go over to the youth police club where I excelled quite well with administration registering children, making sure they were – had doctor’s certificates, making sure they weren’t – that they were accountable of playing sport, and if anybody got injured calling the ambulance or doctor or whatever. That was my job, but I still had to get permission from the army to attend that civilian activity…”
The explanation provided by the veteran is consistent with all of the other circumstances at that time. There is no evidence before the Tribunal that prior or subsequent to 1973 the veteran was involved in weight lifting. Indeed, the evidence post 1974 suggests that the veteran’s working experience was limited to clerical duties, with no suggestion he was involved in heavy lifting or manual labour.
Clearly, if there was actual evidence that in 1973 the veteran was weight lifting, prima facie, an inference could be drawn that the injuries he suffered were not as serious or debilitating as claimed. However, there is no evidence that this was the case. The Tribunal has no reason to doubt the evidence under oath of the veteran that his involvement with the Cleveland Police Youth Boys Weight Lifting Club was limited to the provision of clerical assistance.
Finally, there is the issue of the 1972 motor vehicle accident.
Details of this accident have been set out previously. The Veteran’s Review Board was aware of it and made the following observations (Exhibit 1 T2 B5):
“On 22 March 1972 the applicant was involved in a motor vehicle accident (MVA) when he drove a private vehicle. He was hospitalised for 8 days. He was knocked out and suffered retrograde amnesia and deafness in his right ear. There were some abrasions to the right loin and shoulder (folios 1 and 4). Mr Drake said he has no recollection of the details of the accident. There was no information in Dr Sharwood’s report to indicate the doctor was aware of the MVA injuries.”
During the course of Dr Sharwood’s evidence at the hearing he was asked if he was aware of the 1972 motor vehicle accident and the injuries that the veteran suffered. His reply was as follows (Transcript p. 62):
“Well I have no record of being aware of it, no. I can’t say I definitely was not aware of it, but I have no written record that I was aware of it.”
Clearly the veteran was badly injured; he was in hospital for more than a week, and suffered from amnesia. Indeed, so bad were his injuries that when he was charged under The Traffic Acts 1949 to 1968 (Qld) with failing to provide a specimen of blood for a laboratory test, he was acquitted on the basis of physiatric evidence that at the time his refusal was involuntary because of the extent of his head injuries – Exhibit 4 p. 200.
Usually, this sequence of events would raise concerns about the extent to which this accident played in the overall deterioration of the veteran’s health. However, a careful reading of the contemporaneous documentation presented to the Tribunal suggests that although the 1972 accident was severe it did not result in any ongoing neck, shoulder or back conditions for the veteran.
Mr Harding asked the veteran the following questions (Transcript p. 78):
“Just to clarify if I might, at the time – has that caused you ongoing problems, anything arising out of that motor vehicle accident? No, no injuries.
All right? I had no problems.
But back in 1972 is it possible for a period you did have some medical problems emerging out of it which did not continue subsequently? Might have been some aches and pains. There might have been – long time ago.
It is a long time ago, but is it your evidence as you sit here today you can’t point your finger to anything because you haven’t actually, or point your finger at anything specifically because there’s not been any ongoing problems? There’s no permanent disability, no permanent injury, no permanent repercussion out of it whatsoever.”
This testimony is supported by the contemporaneous evidence. For example, the veteran participated in the 2 RAR 1/72 First Promotion Course over two weeks between 4 April and 15 April 1972. In other words, approximately one week after his discharge from the Camp Hospital. He recorded passes not only in the theory component of the two-week course, but tellingly, in both the drill and weapon components. The notation on the report is as follows (Exhibit 4 p. 221):
“Average student who tried hard. Needs more experience before further promotion.”
The report is dated 27 April 1972 and does not suggest in any way that the veteran was unfit to participate or was suffering from any ill-effects of the recent accident.
The Tribunal finds that the veteran’s injuries from the March 1972 motor vehicle accident although resulting in short term memory loss and concussion did not have a long term deleterious impact on his physical well-being.
The Tribunal makes the following preliminary findings:
(a)The veteran served in the Australian Army from 22 June 1971 until 1 June 1974;
(b)His service from 7 December 1972 until 1 June 1974 constitutes eligible defence service.
Cervical Spondylosis
The Veteran’s Review Board was reasonably satisfied that the veteran suffers from mild cervical spondylosis – Exhibit 1 T2 B5.
This finding was based on the conclusions reached by Dr Peter Sharwood in his medico-legal report of 10 July 2013 – Exhibit 1 T10 p. 42.
Dr Sharwood gave evidence at the hearing and testified that the veteran suffered from cervical spondylosis, and opined that the onset of the condition was the accident at Canungra in 1973. The following testimony was given by Dr Sharwood (Transcript p.61):
“Were you able to come to a clinical onset for cervical spondylosis? Well, I mean, he definitely had a significant injury in November 70 – in 1973.
Yes? And that would have been trauma to the neck. Therefore, he’s got a history of trauma to the neck, 30 years later he’s got symptoms of pain in the neck, and I think there could be an – there definitely could be an association there.”
The SoP concerning cervical spondylosis is No 67 of 2014. “Cervical spondylosis” is defined in clause 3 to mean:
“a degenerative joint disorder affecting the cervical vertebrae or intervertebral discs with:
(i)Clinical manifestations of local pain and stiffness, or symptoms and signs of cervical cord or cervical nerve root compression; and
(ii)Imaging evidence of degenerative change, including disc space narrowing or osteophytes.”
Clause 6 outlines the factors that must exist before it can be said that, on the balance of probabilities, cervical spondylosis is connected with the circumstances of a person’s service. Of relevance in this matter is factor (f):
“having trauma to the cervical spine at least one year before the clinical onset of cervical spondylosis, and where the trauma to the cervical spine occurred within the 25 years before the clinical onset of cervical spondylosis.”
“Trauma to the cervical spine” is defined in clause 9 to mean:
“a discrete event involving application of significant physical force, including G force, to the cervical spine that causes the development within twenty four hours of the injury being sustained, of symptoms and signs of pain and tenderness and either altered mobility or range of movement of the cervical spine…These symptoms and signs must last for a period of at least seven days following their onset; save for where medical intervention has occurred..”
Mr Harding, on behalf of the veteran, submits that he suffers from cervical spondylosis and that this condition was the consequence of the injuries he suffering when he fell during obstacle training at Canungra in 1973 (AOS [41]). He further submits that the veteran’s description of his symptoms and signs in his oral evidence accord with the prescriptive definition in the SoP of “trauma to the spine”. Mr Harding also submitted that the veteran’s evidence was that his symptoms and signs lasted for more than seven days and thereafter he was able to cope by only performing light duties – AOS [42].
Mr Williams, on behalf of the Respondent, draws the Tribunal’s attention to the lack of any contemporaneous medical records corroborating the veteran’s account of the incident at Canungra, the existing medical service records which do not disclose any injury to, or limitation in function of, the neck, and the fact that the first time there is any medical evidence of the veteran seeking treatment for neck conditions not being until 2005, some 31 years after the termination of his army service – ROS [5.6] – [5.7].
The Tribunal is reasonably satisfied that the veteran suffers from mild cervical spondylosis.
The Tribunal finds, on the balance of probabilities, that the veteran did fall while undertaking an obstacle course at Canungra in 1973. The Tribunal further finds, on the balance of probabilities, that the veteran suffered injuries to his back, shoulders and neck.
The Tribunal notes the absence of any contemporary medical records which would corroborate the veteran’s version of events, but was impressed by the evidence of
Mr Holmes and has no reason to question the statutory declaration of the late
Mr Catsacos.
Importantly, the available Army records indicate that the veteran’s performance declined significantly after the accident at Canungra. As previously indicated two plausible scenarios can be advanced to explain this. However, the more likely one is that the veteran had injured himself, did not receive appropriate medical treatment at the time and was unable to perform the duties he carried out between early 1972 and early 1973.
Whilst the relative paucity of medical records after the veterans’ discharge from the Army in 1975 until being examined by Dr Brown in June 2005 does not assist the veteran, nonetheless, the evidence suggests that between 1973 and, at least, the conclusion of the veteran’s employment as a prison officer, he was only able to undertake light duties with persistent pain, inter alia, to his shoulders, back and neck.
Accordingly, the Tribunal finds that the veteran’s cervical spondylosis is defence-caused.
Bilateral shoulder rotator cuff insufficiency and painful arc syndrome
The relevant SoP is No 101 of 2014.
“Rotator cuff syndrome” is defined in clause 3 as follows:
“an inflammatory or degenerative disorder of the musculotendinous cuff of the shoulder joint (comprising supraspinatus, infraspinatus, subscapularis and teres minor) or the long head of the biceps and their associated bursae (subacromial or subdeltoid bursae). Rotator cuff syndrome is characterised by persistent pain and tenderness in the shoulder that usually worsens when the arm is abducted into an overhead position. The definition includes supraspinatus syndrome, subacromial impingement syndrome, rotator cuff impingement syndrome, tendonitis of the long head of the biceps and calcifying tendonitis of the shoulder. This definition excludes adhesive capsulitis of the shoulder.”
Clause 6 outlines the factors which must exist before it can be said on the balance of probabilities that rotator cuff syndrome is connected with the circumstances of a person’s relevant service. Paragraph(a) of the factors is:
“having an injury to the affected shoulder within 30 days before the clinical onset of rotator cuff syndrome.”
The phrase “an injury to the affected shoulder” is define in clause 9 as follows:
“an injury to the shoulder region that causes the development, within 24 hours of the injury being sustained, of pain, tenderness, and altered mobility or range of movement of the shoulder joint. In the case of sustained unconsciousness or the masking of pain by analgesic medication, these symptoms and signs must appear on return to consciousness or the withdrawal of the analgesic medication. These symptoms and signs must last for a continuous period of at least seven days following their onset, save for where medical intervention for the injury to that shoulder has occurred…”.
In his medico-legal report of 3 November 2016 Dr Sharwood made the following observations (Exhibit 6 pp. 3,4 and 7):
“Throughout this period of time in the prisons service, he continued to complain of shoulder pain and sought treatment from the Government Medical Officer on at least two occasions.
He believes that these occasions were in 1975 and 1976 and perhaps later. On both occasions he was treated with local anaesthetic and steroid injections. He said that these did not give him a great deal of relief.
He said he had had no injuries to his shoulder whilst he was in the government service.
The notes from Mr Drake’s General Practitioner from 2003 indicate that he sought treatment for his shoulders in 2005 at which time injections were given and again in 2012 and 2013. At that time he was diagnosed as having rotator cuff tears and was treated with oral steroids. These gave him relief but were soon ceased because of the secondary effects of those drugs.
When seen in 2013 for the purposes of examination, he had a good range of motion of his shoulders though clear evidence of a painful arc syndrome.
Images taken of Mr Drake’s shoulders on 10 July 2013 reveal that he has migration of the humeral head proximally consistent with massive tears of the rotator cuff and there were changes in acromion. The glenohumeral joints appeared normal but on the right side there appeared to be widening of the acromioclavicular joint though he had no previous surgery.
Since 2013 his condition has become progressively worse. His ability to work overhead and lift his arms up has decreased significantly. He continues to complain of ongoing symptoms….
In my opinion Mr Drake is suffering from bilateral rotator cuff disease. There is evidence that he has had ongoing treatment for this condition since he separated from the Defence Force in the 1970s and has certainly been seeking treatment from his local medical officer since 2005. His range of motion has decreased significantly since he was seen in 2013.”
The Tribunal is reasonably satisfied based on the uncontradicted medical evidence presented that the veteran suffers from bilateral shoulder rotator cuff insufficiency and painful arc syndrome.
The Tribunal has previously found, on the balance of probabilities, that the veteran did have an accident whist on duty at Canungra in 1973 and that as a result he suffered injuries to neck, shoulder and back.
The written and oral evidence presented of the symptoms and signs of the injuries suffered by the veteran at Canungra and for a period of time thereafter, accords with the definition of “an injury to the affected shoulder” in the SoP.
The Tribunal is reasonably satisfied that the veteran meets the requirements of Factor 6(a) of the SoP, and accordingly that his bilateral shoulder rotator cuff insufficiency and painful arc syndrome were caused by his defence service.
Ischaemic heart disease
The veteran contends that he developed a smoking habit as a result of his defence service and that this habit was a causative factor of him developing ischaemic heart disease.
The standard of proof for determining this question is to the Tribunal’s reasonable satisfaction – s 120(4). As previously noted reasonable satisfaction is to be assessed by reference to any applicable SoP. Subsection 120B(3) requires the Tribunal to be reasonably satisfied that a disease is defence-caused only if:
(a)The material before the Tribunal raises a connection between the disease and the service rendered by the veteran; and
(b)There is in a SoP which upholds the contention that the disease is, on the balance of probabilities, connected with that service.
It is not contested that the veteran suffers from ischaemic heart disease. The report of his general practitioner, Dr Michael Hughes of 12 July 2013, was accepted by the Veteran’s Review Board and not contested in these proceedings – Exhibit 1 T2 B6. Dr Hughes opined that the clinical onset of this disease was April 2010 – Exhibit 1 T7 p. 24.
There is some dispute as to when the veteran ceased smoking. In the Claimant Report- Cigarette Smoking, which is dated 11 April 2013 in response to the question when the person had ceased smoking, the typewritten response is “2010” – Exhibit 1 T4 p,19. The veteran vehemently denied that he ceased smoking in 2010, instead claiming that he did so in either 2000 or 2001. He explained that the form, although signed by him, was filled out by “the advocate” and that the year inserted was not correct – Transcript p. 22. Having had the benefit of listening to, and observing, the veteran testify on this matter, the Tribunal proceeds on the assumption that the insertion of 2010 was an unintended error and that the veteran did in fact cease smoking in either 2000 or 2001.
The relevant SoP is Instrument No 2 of 2016. This Instrument is dated 18 December 2015 and commenced on 25 January 2016. For the purposes of this determination I have applied the provisions of this Instrument.
Turning to the relevant Factors outlined in clause 9, factor (6) provides:
“where smoking has ceased prior to the clinical onset of ischaemic heart disease:
(a) smoking at least one half pack-year but less than five pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of ischaemic heart disease, and the clinical onset of ischaemic heart disease has occurred within five years of smoking cessation;
(b) smoking at least five pack-years but less than 20 pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of ischaemic heart disease, and the clinal onset of ischaemic heart disease has occurred within 20 years of smoking cessation; or
(c) smoking at least 20 pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the onset of ischaemic heart disease.”
The phrase “pack year of cigarettes, or the equivalent thereof in other tobacco products” is defined in Schedule 1 as follows:
“a calculation of consumption where one pack-year of cigarettes equals 20 tailor-made cigarettes per day for a period of one calendar year, or 7300 cigarettes. One tailor-made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight. One pack-year of tailor-made cigarettes equates to 7.3 kilograms of smoking tobacco by weight. Tobacco products mean cigarettes, pipe tobacco or cigars, smoked alone or in any combination.”
As the Tribunal accepts that the veteran ceased smoking in either 2000 or 2001, only paragraphs (b) and (c) of factor 6 are relevant to this matter.
The first issue requiring resolution is whether the veteran was smoking the amounts mandated in either paragraph (b) or (c).
The evidence before the Tribunal clearly establishes that the veteran commenced smoking in 1971 and continued smoking for the next 30 years. Further, the evidence also establishes that the veteran was smoking somewhere between 30 and 50 cigarettes each day.
In the “Claimant Report – Cigarette Smoking” the veteran claims that he was smoking 30 cigarettes a day in 1972, 40 in 1973 and 50 in 1974.
The evidence also discloses that the veteran continued to smoke at an extremely heavy level after he left the Army and returned to civilian life.
In calculating the consumption of cigarettes by the veteran the inquiry is not limited to the quantum of tobacco consumed whilst a veteran is enlisted. The task required of the Tribunal is to ascertain the total cigarette consumption that has been contributed to by defence service, whether that consumption occurred, prior, during or after enlistment. The Tribunal would fall into error if it limited its inquiry to tobacco consumption wholly attributable to service – Kattenberg v Repatriation Commission [2002 FCA 412; 73 ALD 365 at [41] - [44], Knight v Repatriation Commission [2010] FCA 1134 at [81] – [89].
The Tribunal is reasonably satisfied that the veteran smoked more than 20 pack-years of cigarettes, and therefore factor 6(c) is satisfied.
The second question is whether, on the balance of probabilities, the veteran’s smoking (and therefore his ischaemic heart disease) arose out of, or was attributable to, his defence service.
Subsection 70(5) of the Act provides, inter alia, that a disease is defence-caused if it arose out of, or was attributable to, any defence service or was contributed to in a material degree, or was aggravated by, that service.
In Roncevich v Repatriation Commission (2005) 222 CLR 115 McHugh, Gummow, Callinan and Heydon JJ made the following observations (126/[27]):
“The use disjunctively in s 70(5) of the expression ‘arose out of’ and ‘attributable’ manifest a legislative intention to give ‘defence-caused’ a broad meaning, and certainly one not necessarily to be circumscribed by considerations such as whether the relevant act of the appellant was one that he was obliged to do as a soldier. A causal link alone or a casual connection is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate.”
Mr Harding submits that the veteran’s defence service contributed in a material degree to the Applicant smoking at least 20 pack-years of cigarettes before the clinical onset of ischaemic heart disease as required by the SoP - AOS [24].
Mr Williams referred the Tribunal to the Full Federal Court decision of Repatriation Commission v Tuite (1993) 39 FCR 540. Burchett and Enfield JJ said (544-545):
“The Tribunal found that the respondent, at the age of 24, had not smoked before going into camp in the army, but by the end of his period in camp was smoking about 20 cigarettes a day. The Tribunal noted that it was not sufficient simply to find a temporal connection; what was required was ‘something within the applicant’s military service which caused him to start smoking’. It accepted his evidence that he had not smoked before, ‘and that it was the circumstances whilst he was in camp that caused him to start to smoke’. The Tribunal added: ‘Some of those circumstances were that cigarettes were cheap, other people were smoking, and a certain degree of apprehension as regards his future in the military.’ The Tribunal pointed out that the respondent ‘was in a milieu totally different to that which he had experienced before his call-up’. (It appears that he was actually a volunteer.)
We are unable to find anything suggestive of error in this reasoning.”
Davies J said (541):
“the question will usually be whether life in camp was a contributing cause and not merely the setting in which the event occurred.”
The veteran was a non-smoker before he enlisted. He grew up in a small country town in north-east Victoria and neither his mother nor father smoked. After leaving school the veteran remained in rural Australia, working for some time on cattle stations in Queensland. His social life and his experiences of life were narrow.
The veteran’s testimony of the shock he experienced when he first arrived at the army training camp is enlightening (Transcript p. 18):
“Could you explain how you found the experience of joining the army, how life was different for you, your earliest recollections of that period of your life? Well when I joined the army and I went to recruit training, I don’t think you could imagine what I thought when I got off the bus and there was that many people there, more than the population of the town that I’d come from, or – to where I used to come into town from work. I can’t explain it. It was all these people in one place, and how do you explain the attitude of them? They were smoking, they’d go to what they used to call the ‘boozer’, where you could buy alcohol…”
The veteran also gave evidence of the ready availability of cigarettes and of the peer pressure to smoke (Transcript p. 18):
“They were – cigarettes were issued to you. They were issued in the ration packs. It was encouraged when they brought around the smoko. You were – how do I put it? You were bullied, humiliated, intimidated, belittled, harassed, because you weren’t a part of the team. You weren’t one of the boys. How could you be trusted? ‘You either join us or get out.’”
Evidence was also given of the tension that built up when there was an expectation that army personnel would be sent to Malaya (Transcript p. 19):
“we were informed that we may be going to Malaya. Government was going to make a decision. It was a minor emergency which brought on. I suppose you’d call anxiety, the expectation, the eagerness, the readiness to go. It was my turn. That’s what I joined the army for. It was – I’m ready to go. It’s my – that’s my turn.”
It is instructive to consider the factors that led the Tribunal, and ultimately the Full Federal Court in Tuite to conclude that the veteran’s smoking was attributable to his war service:
(a)Mr Tuite did not smoke prior to enlisting;
(b)Cigarettes were freely available and cheap in the army camp;
(c)Other soldiers were smoking;
(d)An apprehension about the future;
(e)Mr Tuite was in a milieu totally different to that which had previously experienced.
In this matter the following considerations are relevant:
(a)The veteran did not smoke prior to enlisting;
(b)The veteran was a young man (22 years old);
(c)The veteran had limited social experiences;
(d)The veteran was from the country and used to living in small rural centres and cattle stations;
(e)Like Mr Tuite, the veteran was exposed post enlisted to a milieu he had never previously experienced;
(f)Cigarettes were cheap and freely provided at camp;
(g)Cigarettes were initially provided in the ration packs;
(h)There was considerable social pressure to smoke;
(i)The veteran was anxious about being sent to Malaya.
The fact that the veteran commenced smoking after enlistment is not of itself determinative. As was pointed out in Tuite it is insufficient to find just a temporal connection, rather the Tribunal must find a causal connection between the veteran’s defence service and his smoking condition.
Likewise simply to posit that the veteran commenced smoking when he was stationed in an army camp is also not determinative. Camp life is, without more, an anterior condition which provides the temporal connection but not necessarily the operative cause of a person commencing to smoke tobacco.
In this instance the cumulative effect of all of the considerations outlined above lead the Tribunal to the conclusion, on the balance of probabilities, that the veteran’s cigarette smoking habit arose out of, or was attributable to, his defence service.
DECISION
The Tribunal sets aside the decision under review and decides that Mr Drake’s bilateral shoulder rotator cuff insufficiency and pain arc syndrome, cervical spondylosis and ischaemic heart disease are related to his defence service. The matter is remitted to the Repatriation Commission to assess the appropriate level of entitlement in accordance with this decision. This decision takes effect on and from 30 January 2013.
I certify that the preceding 133 (one hundred and thirty -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Sosso
.................................[Sgd].......................................
Associate
Dated: 12 June 2017
Date of hearing: 19 April 2017 Date final submissions received: 10 May 2017 Counsel for the Applicant: Mr Anthony Harding Advocate for the Applicant: Woods Prince Lawyers Solicitors for the Applicant: Mr Matthew Woods Respondent: In person Advocate for the Respondent: Mr Bruce Williams
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