Edward Zielinski and Repatriation Commission
[2016] AATA 655
•30 August 2016
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
)No: 2015/4103
Veterans' Appeals Division )
Re: Edward Zielinski
Applicant
And: Repatriation Commission
Respondent
CORRIGENDUM
TRIBUNAL: Deputy President F J Alpins
DATE: 5 September 2016
PLACE: Melbourne
The Tribunal directs the Registrar, pursuant to s 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), to alter the text of the written statement of reasons for its decision made on 30 August 2016 as follows:
1.In paragraph 1, in the third line, and in paragraph 64, in the first line, delete “Zielinksi” and replace with “Zielinski”;
2.In paragraph 41, in the seventh line and in paragraph 45, in the seventh line, delete “Zielinksi’s” and replace with “Zielinski’s”.
[sgd]...........................................
Deputy PresidentZielinski and Repatriation Commission (Veterans’ entitlements) [2016] AATA 655 (30 August 2016)
Division
Veterans' Appeals Division
File Number
2015/4103
Re
Edward Zielinski
APPLICANT
And
Repatriation Commission
RESPONDENT
Decision
Tribunal Deputy President F J Alpins
Date 30 August 2016 Place Melbourne The decision under review is affirmed.
[sgd]......................................................................
Deputy President F J Alpins
VETERANS’ AFFAIRS – disability pension – incapacity from defence-caused injury or defence-caused disease – whether veteran incapacitated from psychological condition - whether such a condition or veteran’s lumbar spondylosis “defence-caused” - whether either condition arose out of or was attributable to defence service – meaning of “defence service” - Statement of Principles concerning lumbar spondylosis
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), s 34J
Legislation Act 2003 (Cth), ss 8, 13
Statement of Principles concerning lumbar spondylosis No. 63 of 2014Veterans’ Entitlements Act 1986 (Cth), ss 5D, 6-6F, 68, 69, 70, 119, 120, 120B, 196B
Cases
Benjamin v Repatriation Commission (2001) 70 ALD 622
Brew v Repatriation Commission (1999) 56 ALD 403
Brew v Repatriation Commission (1999) 94 FCR 80
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389
Deledio v Repatriation Commission (1997) 47 ALD 261
Forrester v Repatriation Commission [2013] FCA 898
Forster v Repatriation Commission (2015) 144 ALD 624
Hill v Repatriation Commission (2005) 85 ALD 1
Hunter v Repatriation Commission [2010] FCA 145
Kaluza v Repatriation Commission [2011] FCAFC 97
Lees v Repatriation Commission (2002) 125 FCR 331
Re Repatriation Commission and Errol Smith (1986) 11 ALD 119
Repatriation Commission v Bawden (2012) 206 FCR 296
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Cotton (2006) 93 ALD 118
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Hill (2002) 69 ALD 581
Repatriation Commission v Money (2009) 173 FCR 410
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Wedekind [2000] FCA 649
Roncevich v Repatriation Commission (2005) 222 CLR 115
Todd v Repatriation Commission [2008] FCA 1276
Woodward v Repatriation Commission (2003) 131 FCR 473Secondary Materials
Defence Abuse Response Taskforce Fifth Interim Report to the Attorney-General and Minister for Defence (March 2014)
REASONS FOR DECISION
Deputy President F J Alpins
30 August 2016
INTRODUCTION
This proceeding concerns a decision of a delegate of the respondent (the Repatriation Commission) made under the Veterans’ Entitlements Act 1986 (Cth) (the “Act”) by which he accepted the claim of the applicant, Mr Edward Zielinksi, for a pension in respect of incapacity from sensorineural hearing loss and tinnitus and consequently granted him a pension assessed at 20% of the general rate, but refused his claim in so far as it was based upon incapacity from an unspecified psychological condition and lumbar spondylosis.
The delegate refused those aspects of Mr Zielinski’s claim on the basis that it was not accepted that Mr Zielinski suffered from a psychological condition as contended and that it was not accepted that his lumbar spondylosis was “defence-caused” for the purposes of the Act. By this application for review, Mr Zielinski is challenging those aspects of the delegate’s decision.
This proceeding has been determined without a hearing by consent (see s 34J of the Administrative Appeals Tribunal Act 1975 (Cth)), as sought by the parties.
FACTS AND PROCEDURAL HISTORY
Mr Zielinski was born in 1951 and served in the Australian Army from 23 January 1968 to 7 May 1976. Upon his enlistment, he undertook his apprenticeship training at the Army Apprentices School at Balcombe, Victoria, which he completed in 1970. During his army service, Mr Zielinski qualified as a vehicle mechanic. He received an honourable discharge, having attained the rank of Lance Corporal.
By a letter dated 25 February 2014, Mr Zielinski was informed that he had been granted a Reparation Payment in sum of $50,000 under the Defence Abuse Reparation Scheme administered by the Defence Abuse Response Taskforce (“DART”), on the basis that the Reparation Payments Assessor was satisfied for the purposes of that scheme that he had suffered physical abuse and bullying at the Army Apprentices School and that there had been mismanagement by Defence in relation to that abuse. I note that a copy of the DART Fifth Interim Report to the Attorney-General and Minister for Defence, published in 18 March 2014, formed part of the material before the Tribunal.
On 14 November 2014, Mr Zielinski lodged the claim the subject of this proceeding, in respect of disabilities described in that claim as being “hearing loss” (the diagnosis being “bilateral sensorineural hearing loss”), “back pain” and, as I have indicated, a disability described as “psychological”.
In the claim form, Mr Zielinski stated that he believed that his back pain, said to have been diagnosed as “low back pain”, was attributable to activities undertaken at the age of 16 while attending the Army Apprentices School, particularly marching and “running with heavy poles”, in that the “weight of [the] poles caused early backbone – disc problems”, which had become apparent to him from “notes on discharge” in 1976, referring in other correspondence to X-rays not before the Tribunal. Similarly, in a claimant report form concerning trauma and low back pain dated 12 January 2015, Mr Zielinski stated in substance that his back was injured and that he experienced symptoms of low back pain during the period in which he attended the Army Apprentices School, during sessions in which groups of soldiers were required to lift and march or run with large heavy poles, which resulted in his back being “twisted in trying to rescue these poles”.
Mr Zielinski attributed his claimed psychological disability to “bastardisation” at the Army Apprentices School, enclosing and referring in that regard to a report prepared by the DART and stating that he first become aware of the signs and symptoms (or aggravation) of that disability in 1968-1970 which corresponds with the period Mr Zielinski has stated that he attended the Army Apprentices School. Mr Zielinski stated in his claim form that the signs and symptoms of his psychological disability were as follows: “do not sleep well”, “do not socialise”, “nightmares”.
Mr Zielinski stated further that he had been diagnosed as suffering from depression and post traumatic stress disorder, that the basis of the diagnosis was psychotherapy and counselling, and that his psychological condition had been treated by his general practitioner, Dr George Dade. However, I note that there was no report prepared by Dr Dade, nor any other material before the Tribunal, corroborating Mr Zielinski’s stated diagnosis. In various correspondence before the Tribunal Mr Zielinski merely relied upon a report of the DART in support of that aspect of his claim. I return later in these reasons to the sole medical report before the Tribunal concerning that aspect of Mr Zielinski’s claim.
By a decision dated 20 April 2015, the respondent’s delegate decided that Mr Zielinski did not suffer from any medical condition which might found the claimed “psychological” incapacity and that the claimed incapacity from a lower back condition, which had been diagnosed as being lumbar spondylosis, was not “defence-caused” for the purposes of s 70 of the Act. As I have indicated, the delegate accepted Mr Zielinski’s claim with respect to sensorineural hearing loss and tinnitus as being “defence-caused” for the purposes of the Act and assessed his degree of incapacity from those conditions as being 20%, thus granting him a pension at 20% of the general rate (with effect from 14 August 2014).
Mr Zielinski sought review of that decision by the Veterans’ Review Board, which affirmed the delegate’s decision. Consequently, Mr Zielinski made this application for review. Although Mr Zielinski sought review of each of the matters the subject of the respondent’s decision before the Board, including the rate of pension granted to him with respect to the accepted aspects of his claim, I note that there was no indication in the grounds set out in Mr Zielinski’s application for review, nor in any of his subsequent correspondence, that he was challenging the assessment of his degree of incapacity in respect of his sensorineural hearing loss or tinnitus; nor was there any further material before the Tribunal bearing upon that issue.
LEGISLATIVE PROVISIONS AND GENERAL PRINCIPLES
Section 70(1) of the Act relevantly imposes liability on the Commonwealth, subject to the Act, to pay a pension by way of compensation to a “member of the Forces” where that member “is incapacitated from a defence-caused injury or a defence-caused disease” (s 70(1)(b), (d)). It was not in dispute that Mr Zielinski constitutes a “member of the Forces” to whom Pt IVC applies by virtue of s 69 of the Act (see definition of that expression in s 68).
Section 5D(2) of the Act provides that, unless the contrary intention appears, a reference in the Act to the incapacity of a person who is a member of the Forces from a defence‑caused injury or a defence-caused disease is a reference to the effects of that injury or disease and not a reference to the injury or disease itself.
Section 70(5) of the Act relevantly provides that an injury suffered, or a disease contracted, by such a member shall respectively be taken to be a “defence-caused injury” or a “defence-caused disease” if such injury or disease “arose out of, or was attributable to, any defence service … of the member” (s 70(5)(a)). It follows that the Tribunal is required “to determine the answer to the causal question posed by” s 70(5)(a) “in the context of the obligation contained in” s 70(1) (see Forrester v Repatriation Commission [2013] FCA 898 at [9] per Mortimer J). I note that in Roncevich v Repatriation Commission (2005) 222 CLR 115 at [22]-[28], the High Court construed s 70(5)(a) of the Act broadly to encompass not only what a person is required to do, but also what a person is expected to do, to carry out to carry out their duties, while noting that the connection must be causal and not merely temporal. Furthermore, the High Court held that “[a] causal link alone or a causal connection is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate” (at [27]).
Section 70(5)(d)(ii) provides for a further basis upon which a veteran’s injury or disease is to be taken to be, respectively, a “defence-caused injury” or “defence-caused disease”. Shortly stated, that is where such injury or disease was suffered or contracted before the commencement of the period of defence service and, in the respondent’ opinion, it was “contributed to in a material degree by, or was aggravated by, any defence service rendered by the member” after that time.
The term “defence service”, as employed in s 70, is defined on alternative bases in s 68 of the Act. The only basis upon which Mr Zielinski might be said to have rendered such service is prescribed in para (a) of the definition, which defines “defence service’’ to mean “continuous full-time service rendered as a member of the Defence Force on or after 7 December 1972 and before the terminating date”, the latter temporal boundary being defined to mean the date on which the Military Compensation Act 1994 (Cth) commences (being 7 April 1994).
Section 120 of the Act prescribes the standard of proof to be applied when making determinations and decisions under the Act. Section 120(4) of the Act specifies the standard of proof to be applied by the respondent, and accordingly the Tribunal upon review, with respect to Mr Zielinski’s entitlement to a pension under Part IV and the assessment of its rate, given that he did not render “operational service” (see ss 120(1) and 6 to 6F) and his claim does not fall within the terms of s 120(2). That provision requires that the Tribunal “decide the matter to its reasonable satisfaction”, which involves a civil standard of proof (Repatriation Commission v Smith (1987) 15 FCR 327 at 335). It is not to be presumed that an injury suffered by a person is a defence-caused injury or that a disease contracted by a person is a defence-caused disease (s 120(5)). No onus of proof is imposed on the applicant or the respondent (see s 120(6)).
Section 120(4) is affected by s 120B, which applies to claims made on or after 1 June 1994 under Pt IV that relates to the defence service (other than kinds of service that are immaterial for present purposes) rendered by a member of the Forces (s 120B(1)(b)). Section 120B(3) relevantly provides as follows:
“In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person … [or] a disease contracted by a person … was … defence-caused only if:
(a)the material before the Commission raises a connection between the injury … [or] disease of the person and some particular service rendered by the person; and
(b)there is in force:
(i)a Statement of Principles determined under subsection 196B(3) …
…
that upholds the contention that the injury … [or] disease … of the person is, on the balance of probabilities, connected with that service.”
Accordingly, s 120(4) is affected by s 120B(3) upon review by the Tribunal. However, both the respondent and the Tribunal must first consider the anterior question of whether the veteran suffered the injury or contracted the disease in issue before determining the aetiology of the disease according to s 120B(3); the existence of such a disease or injury is a precondition to any entitlement to a pension. That anterior question of diagnosis is to be determined according to the standard of proof prescribed by s 120(4) (Repatriation Commission v Bawden (2012) 206 FCR 296 at [35]–[50] per Keane CJ, Jacobson & Bennett JJ; Benjamin v Repatriation Commission (2001) 70 ALD 622 at [54] per Moore, Emmett & Allsop JJ).
As the Full Federal Court stated in Bawden at [43]:
“A decision-maker is first obliged to examine the collection of symptoms of which the claimant complains to determine whether, according to the standard of ‘reasonable satisfaction’ set by s 120(4), they constitute a disease for the purposes of entitling a veteran to a pension.”
Section 120B(3) confines the circumstances in which the respondent, or the Tribunal upon review, may be reasonably satisfied that an injury or disease was defence-caused to those prescribed therein; namely, that the material before the decision-maker raises a requisite nexus between the veteran’s injury or disease and service and, furthermore, that a relevant Statement of Principles upholds the contention that there is such a nexus. The concluding lines of s 120B(3) “can rationally relate only to par (b), not par (a)” (Repatriation Commission v Wedekind [2000] FCA 649 at [6] per Kenny J; Repatriation Commission v Money (2009) 173 FCR 410 at [78] per Dowsett J).
The effect of s 120B(3)(b) is that once the Tribunal is reasonably satisfied that all essential factors prescribed in the relevant Statement of Principles in question exist based upon the material before it, it can uphold the contention that the injury or disease is connected with the service (Repatriation Commission v Cotton (2006) 93 ALD 118 at [29]-[30] per Rares J, citing Repatriation Commission v Hill (2002) 69 ALD 581 at [55] per Black CJ, Drummond and Kenny JJ).
The prerequisites in paras (a) and (b) of s 120B(3) are conjunctive (see Brew v Repatriation Commission (1999) 56 ALD 403 at [8], [12] per Sundberg J). Accordingly, a claim for a pension in respect of an injury or a disease will fail if the relevant Statement of Principles does not uphold the contention that the injury or disease is, on the balance of probabilities, connected with the service in question (Wedekind at [10] per Kenny J, citing Brew v Repatriation Commission (1999) 94 FCR 80 at [18] per Merkel J). The Tribunal is not obliged to follow what have become known as the Deledio steps (enunciated by the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98), as the law to be applied resides in the provisions of the Act (see Hill v Repatriation Commission (2005) 85 ALD 1 at [85]).
Section 196B of the Act provides for the determination of Statements of Principles for the purposes of the Act by the Repatriation Medical Authority. Such a Statement of Principles is a legislative instrument for the purposes of the Legislation Act 2003 (s 196B(13A) of the Act; s 8 of the Legislation Act 2003 (Cth)). In Repatriation Commission v Gorton (2001) 110 FCR 321 at [39], Heerey J observed that “[a]n SOP is sui generis as a form of legislative instrument”. Given that a legislative instrument is a form of delegated legislation, it is to be construed according to general principles of statutory interpretation (Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 398) and should therefore be construed in its context, namely that it “has been developed by an expert medical panel” (Woodward v Repatriation Commission (2003) 131 FCR 473 at [113]).
Furthermore, given that a Statement of Principles is a legislative instrument, it is to be construed in accordance with s 13 of the Legislation Act 2003 (Cth) (see s 8). It follows that the Acts Interpretation Act 1901 (Cth) applies to such a Statement of Principles as if it were an Act and as if each provision of the Determination were a section of an Act (s 13(1)(a)) of the Instruments Act). Also, expressions used in the Determination have the same meaning as in the Act (s 13(1)(b)). Moreover, the Determination is to be read and construed subject to the Act (s 13(1)(c)).
Section 196B(3) relevantly provides that:
“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 … [or] disease … can be related to:
…
(b) defence services … rendered by members of the Forces; …
…
the Authority must determine a Statement of Principles in respect of that kind of injury … [or] disease … setting out:
the factors that must exist; and
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 … [or] disease … of that kind is connected with the circumstances of that service.”
Section 196B(14) enumerates various circumstances in which a factor causing or contributing to, relevantly, an injury or disease will be “related to service rendered by a person” for the purposes of s 196B(3). It “is to be emphasised that s 196B(14) is concerned with identifying how factors prescribed in SoPs that ‘must be related to service’’, can be shown to be so related” (Repatriation Commission v Money (2009) 173 FCR 410 at [5] per Finn and Edmonds JJ). The terms of s 196B(14) are similar, although not identical, to the causal relationships prescribed in s 70(5) of the Act.
While the satisfaction of s 120B(3) is a prerequisite to the decision-maker being reasonably satisfied that the veteran’s injury or disease was defence-caused, it does not constitute a finding that the veteran’s injury or disease was a “defence-caused injury” or “defence caused disease” respectively for the purposes of s 70 of the Act. Section 120B(3) does not involve the making of findings of fact – in particular, it does not require determination of whether the material before the decision-maker establishes a connection as described but merely whether it “raises” such a connection (although the mere possibility of a connection is not sufficient for the purposes of s 120B(3)(a): see Repatriation Commission v Bey (1997) 79 FCR 364 at 372, 375).
If such a connection is raised, and if the further requirement that a Statement of Principles upholds the contention that there is such a connection (that is to say that the premised facts fit within its “template”) is met, then the Tribunal may, and indeed must, proceed to make findings of fact based upon the material before it with respect to the veteran’s entitlement to a pension under s 70 (see Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98; Hunter v Repatriation Commission [2010] FCA 145 at [13] per Perram J and cases cited therein). However, the prerequisite in s 120B(3) of the Act must be satisfied before the Tribunal may properly make such findings of fact, which has been referred to in numerous authorities as the distinction between the third and fourth Deledio steps.
In Deledio v Repatriation Commission (1997) 47 ALD 261 at 273, Heerey J explained the significance of a Statement of Principles determined under s 196B(3) of the Act as follows:
“In carrying out its functions under … s 196B(3) … the [Repatriation Medical Authority] is dealing with scientific fact, that is to say a rule or proposition of universal application which explains or predicts natural phenomena. That is to be distinguished from fact in a legal sense, a specific event or circumstance existing at a given point in space or time. Obviously enough, in determining an SoP the RMA is not concerned with the individual circumstances of a particular veteran. The SoP operates in the discourse of hypothesis – a ‘tentative answer to a problem under study’”.
Accordingly, a Statement of Principles “has no function in relation to the proof … of the particular facts of a veteran’s case” as Statements of Principles “were intended to ‘provide the template within which the individual claims will be determined’”, being “a statute‑backed declaration of what is proved or known scientific fact” (Deledio v Repatriation Commission (1997) 47 ALD 261 at 275 per Heerey J).
As Dowsett J explained in Money at [80]:
“The reference to ‘balance of probabilities’ [in s 196B(3)] reflects the concluding words of s 120B(3). A statement of principles will only be “determined” if the Authority is satisfied that, on ‘sound medical-scientific evidence’, it is probable that the disease in question can be related to defence service. It does not follow from such satisfaction that every contraction of that disease by a veteran, even while serving, will necessarily be related to such service. It will merely demonstrate that such an etiology is possible. Once it is so satisfied, the Authority is to determine the factors which must exist before it can be said that, on the balance of probabilities, the disease is connected with the circumstances of the relevant service.”
(Emphasis in original.)
Where a claim relates to defence service (other than operational service (see s 120(1) of the Act)) or service within the terms of s 120(2) of the Act, a relevant Statement of Principles provides for the connection that must be established between the disease or injury relied upon and defence service, to the reasonable satisfaction of the decision‑maker (see Wedekind at [8] per Kenny J).
It is also relevant to mention s 119(1)(h) of the Act. Shortly stated, that provision requires that the respondent, and the Tribunal upon review, take into account any difficulties that lie in the way of ascertaining the existence of facts and other matters, whether by reason of the passing of time, the absence of or deficiency in relevant official records, or failures to report occurrences to appropriate authorities during a veteran’s service.
CONSIDERATION
Psychological condition
Mr Zielinski stated in his application for review and in various correspondence before the Tribunal that he suffered physical and psychological abuse while attending the Army Apprentices School during the period 1968 to 1970. In some of that correspondence he recounted the nature of that abuse in some detail. As I have indicated above, in 2014 Mr Zielinski was granted a Reparation Payment under the Defence Abuse Reparation Scheme administered by the DART, primarily on the basis that the Reparation Payments Assessor was satisfied for the purposes of that scheme that he had suffered physical abuse and bullying during that apprenticeship.
However, the Act is to be construed and applied in accordance with its own terms. As I have indicated, it is a prerequisite to Mr Zielinski’s entitlement to a pension with respect to the claimed psychological condition that such a condition in fact occurred (see Bawden at [42]); the Tribunal must be reasonably satisfied that that is so. That does not necessarily follow from any finding that the abuse described by Mr Zielinski occurred.
The only medical report before the Tribunal bearing upon the claimed psychological condition is a report of Dr Anthony Sheehan, consultant psychiatrist, dated 20 January 2015. In that detailed report, Dr Sheehan set out Mr Zielinski’s general history as recounted to him, including Mr Zielinski’s description of the abuse he had suffered while attending the Army Apprentices’ School, which he had told Dr Sheehan occurred during the period 1968 to 1969.
Dr Sheehan opined as follows:
“On the basis of the available information and Mr Zielinski’s presentation at interview he has no diagnosable psychiatric disorder or abnormal psychological condition that could be related to his service in the Australian Army in the period 1968 to 1976”.
Later in his report, Dr Sheehan similarly stated that “Mr Zielinski has no diagnosable psychiatric disorder and [sic] abnormal psychological condition on the basis of his presentation today and history provided”. He noted at another point that:
“Mr Zielinski reported that he did take an overdose of medication approximately 30 years ago following the breakdown of his first marriage but stated following a brief admission to the Geelong Hospital that he did not require any ongoing psychiatric treatments. He reported that he did see a psychiatrist in Melbourne 10 to 12 years ago but indicated that he did not require any further ongoing treatments.”
Given Dr Sheehan’s opinion, and given the absence of any medical reports which might found a contrary conclusion (whether in support of the claimed diagnosis stated in Mr Zielinski’s claim form or otherwise), I am not satisfied that Mr Zielinski suffered from any psychological or psychiatric condition in respect of which any entitlement to a pension under s 70 of the Act could arise; it is therefore unnecessary to consider whether such a condition might be said to be “defence-caused”.
In any event, even if that were not so, there is another impediment to this aspect of Mr Zielinski’s claim. Only a portion of Mr Zielinski’s service constitutes “defence service” for the purposes of the Act, and that portion does not comprise the period during which he attended the Army Apprentices School. While Mr Zielinski rendered service from 23 January 1968 to 7 May 1976, given the temporal restriction in the applicable definition of “defence service” in s 68(1) of the Act (para (a)), only his service from 7 December 1972 onwards constitutes “defence service”. Accordingly, Mr Zielinksi’s service prior to that date, including during his apprenticeship at the Army Apprentices School, falls outside that definition.
It follows that, even if the Tribunal had been satisfied that Mr Zielinski suffered from the claimed psychological condition, given his contention that it was a consequence of events which occurred during his attendance at the Army Apprentices School, such a condition could not be said to be a “defence-caused disease” (nor “defence-caused injury”) for the purposes of s 70(1), as it could not be said that it “arose out of, or was attributable to, any defence service” for the purposes of s 70(5)(a), nor to satisfy any other provision of s 70(5) by which the requisite causation might be otherwise established (see Re Repatriation Commission and Errol Smith (1986) 11 ALD 119 at [12]; cf. Forster v Repatriation Commission (2015) 144 ALD 624). In particular, there is no basis in the material before the Tribunal upon which s 70(5)(d)(ii) might be said to be satisfied.
Accordingly, for both the above reasons, the Tribunal is not satisfied that Mr Zielinski had the requisite incapacity for the purposes of s 70 of the Act with respect to the claimed psychological condition.
Lumbar spondylosis
I turn now to Mr Zielinski’s claimed back condition. In a report dated 8 April 2015, Dr Ian Rossiter, diagnosed Mr Zielinski, based upon a radiologist’s report, as suffering from lower lumbar and lumbosacral spondylosis with L4-5 and L5-SI disc degeneration, the date of “diagnosable” onset of that condition being 13 December 2015, which I note corresponded with the date of the radiology report. Dr Rossiter opined that “[t[here is central canal stenosis from L4 to S1 but no clinical myelopathy”.
In a medical report form for lumbar intervertebral disc prolapse low back pain dated 24 December 2015, Dr Dade, in a brief report, stated that Mr Zielinksi suffered from intervertebral disc prolapse at the L5/S1 level and stated that the clinical onset of low back pain occurred in “1948/49”, which I do not accept, given that that period preceded Mr Zielinski’s birth. On the same date, Dr Dade also signed similar medical report forms to similar effect. In one such form concerning trauma to the lumbar spine and low back pain, he similarly stated that the clinical onset of Mr Zielinski’s lower back pain and trauma to his lumbar spine occurred in 1948 and “1948/49” respectively. as Mr Zielinski “had to carry heavy military equipment during training on his back”. In another report set out in a form for a diagnostic report concerning back pain, Dr Dade set out the following diagnosis: “CT lumbar spine – L4/5 and L5/S1 disc bulging (protrusion)”, which he said had its onset “whilst training in the military”, the predisposing factor “possibly [being] carrying heavy loads during military training exercises”.
Given the very brief and, more the point, the fundamentally erroneous assumption underlying Dr Dade’s report to the effect that Mr Zielinski had served in the military as early as 1948, when he had not even been born yet and instead served some two decades later, I give little weight to Dr Dade’s reports.
The Tribunal is satisfied, based upon the report of Dr Rossiter, that Mr Zielinski suffers (and suffered at all material times) from lumbar spondylosis, to employ that general term. However, an impediment to Mr Zielinski’s claim with respect to that condition arises from the terms of s 70 and also from the terms of the terms of s 120B(3)(a), which requires that the material before the respondent, and therefore the Tribunal upon review, “raises a connection” between Mr Zielinski’s lumbar spondylosis and “some particular service rendered by” him. Given that s 120B confines the application of s 120(4) in determining that claim, in my view the requisite nexus to be raised for the purpose of s 120B(3)(a) must be to service within the terms of the Act, relevantly “defence service”. The material before the Tribunal does not meet the requirement in s 120B(3)(a), which is a conjunctive prerequisite to the Tribunal being reasonably satisfied that Mr Zielinski’s lumbar spondylosis is “defence-caused” in applying s 120(4) of the Act.
In any event, even if that conclusion were not correct, it remains the case that in order for Mr Zielinski’s lumbar spondylosis to be, relevantly, a defence-caused disease for the purposes of s 70(1), it must necessarily fall within the terms of s 70(5) and therefore the requisite causal nexus must exist between that condition and “defence service” as defined in s 68.
As I have indicated, Mr Zielinski contends that his lumbar condition was caused by activities he was required to undertake during his training at the Army Apprentice’s School, particularly being required to pick up, carry and march with large poles during that period. For the reasons I have explained above, Mr Zielinski’s service during the period he attended the Army Apprentices’ School does constitute, nor form part of, his “defence service” for the purposes of the Act.
Given Mr Zielinski’s contention that that condition had its genesis in his activities at the Army Apprentices School and the lack of any material which might found a conclusion that it instead “arose or was attributable to” that portion of his service which constituted “defence service” for the purposes of the Act (being his service from 7 December 1972 onwards) (s 70(5)(a)), or to suggest that his lumbar condition “was contributed to in a material degree by, or was aggravated by”, his “defence service” (for the purposes of s 70(5)(d)(ii)), it follows that Mr Zielinski’s incapacity from his lumbar spondylosis does not fall within the terms of s 70(1) of the Act.
I have taken into account the record of an Army medical examination dated October 1975 indicating that Mr Zielinski had sustained a minor whiplash injury to his neck; however, no mention is made in that record of any injury to his lower spine. I have also taken into account clinical notes recorded in November 1975 which appear in Mr Zielinski’s service records and refer to him having experienced “[p]ain in [his] back on getting out of bed 2 days ago and again today – worse”, but that is said without elaboration and in the absence of any other material concerning its cause, so those materials do not cause me to alter my conclusion in that regard.
Nevertheless, for the sake of completeness, I will address the question posed by s 120B(3)(b), namely whether the applicable Statement of Principles upholds the contention that Mr Zielinski’s lumbar spondylosis is, on the balance of probabilities, connected with his service, leaving aside for present purposes the fact that only some of Mr Zielinski’s service constitutes “defence service” within the terms of the Act.
There is a relevant Statement of Principles for the purposes of s 120B(3)(b)(i) of the Act, being the Statement of Principles concerning lumbar spondylosis No. 63 of 2014, which is dated 20 June 2014 and stated to take effect on 2 July 2014 (the “SoP”). The SoP acknowledges that lumbar spondylosis is capable of being caused by service within the terms of the Act. Clause 3 of the SoP defines lumbar spondylosis to mean:
“[A] degenerative joint disorder affecting the lumbar vertebrae or intervertebral discs with:
(i)clinical manifestations of local pain and stiffness, or symptoms and signs of lumbar cord, cauda equina or lumbosacral nerve root compression; and
(ii)imaging evidence of degenerative change, including disc space narrowing or osteophytes”.”
Save for in an immaterial respect, the SoP requires that at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person (clause 5). Clause 6 enumerates the following possibly relevant factors that must exist before it can be said that, on the balance of probabilities, lumbar spondylosis is connected with the circumstances of a person’s relevant service:
“(g)having trauma to the lumbar spine at least one year before the clinical onset of lumbar spondylosis, and where the trauma to the lumbar spine occurred within the 25 years before the clinical onset of lumbar spondylosis; or
(h)having a lumbar intervertebral disc prolapse before the clinical onset of lumbar spondylosis at the level of the intervertebral disc prolapse; or
(i)lifting loads of at least 35 kilograms while bearing weight through the lumbar spine to a cumulative total of at least 168 000 kilograms within any ten year period before the clinical onset of lumbar spondylosis, and where the clinical onset of lumbar spondylosis occurs within the 25 years following that period; or
(j)carrying loads of at least 35 kilograms while bearing weight through the lumbar spine to a cumulative total of at least 3 800 hours within any ten year period before the clinical onset of lumbar spondylosis, and where the clinical onset of lumbar spondylosis occurs within the 25 years following that period[.]”
The term “trauma to the lumbar spine” as employed in para (g) of clause 6 is defined in extensive terms in clause 9.
I have concluded that the SoP does not uphold the contention that Mr Zielinski’s lumbar spondylosis is, on the balance of probabilities, connected with his service for the purposes of s 120B(3)(b). Accordingly, the Tribunal is precluded from being reasonably satisfied that that condition was “defence-caused”, as none of the enumerated factors could be said exist based on the material before the Tribunal.
In particular, there is no material before the Tribunal which would serve to establish that Mr Zielinski had a trauma to his lumbar spine of the defined kind for the purposes of the factor in para (g) of clause 6 of the SoP.
With regard to the factors set out in paragraphs (i) and (j) of clause 6, I note that Mr Zielinski stated in a claimant report concerning the carrying or lifting of loads and back pain dated 12 January 2015 that there was not a history of regularly carrying or lifting loads of at least 35 kg while weight bearing. Moreover, there is no other material before the Tribunal which might serve to establish otherwise to the Tribunal’s reasonable satisfaction; a brief statement made by Mr Zielinski in e-mail correspondence to the Tribunal following the commencement of the proceeding which might be read as suggesting otherwise (in that it refers to ten people being required to carry a single pole of “approx. 250 to 500 kg”) does not cause me to alter that conclusion for the purposes of s 120B.
In any event, the material before the Tribunal does not serve to establish that the clinical onset of Mr Zielinski’s lumbar spondylosis occurred within the 25 years following the period prescribed with respect to the factors set out in those paragraphs. For the purposes of the SoP:
“ … there is a clinical onset of a disease either when a person becomes aware of some feature or symptom which enables a doctor to say that a disease was present at that time, or when a finding is made on an investigation which is indicative to a doctor of the disease being present …. ”
(See Lees v Repatriation Commission (2002) 125 FCR 331 at [13] and cases cited therein.)
That test for clinical onset is conjunctive in nature (Kaluza v Repatriation Commission [2011] FCAFC 97 at [66]).
The only sufficiently probative evidence before the Tribunal bearing upon the issue of when the clinical onset of Mr Zielinski’s lumbar spondylosis occurred is contained in the report of Dr Rossiter and the radiologist’s report upon which it is based. It is the former report which diagnoses the condition specified in the SoP and it is apparent from Dr Rossiter’s report that he was able to conclude that the date of clinical onset was the date of the radiologist’s report to which he had regard, being 13 February 2015, but no earlier.
As I have said, although Mr Zielinksi referred in his application for review to X-rays taken at the time of his discharge from the army, they were not before the Tribunal; even if they were, it was not reasonably be open to the Tribunal to examine them and form its own opinion as to an earlier date of clinical onset for the purposes of the SoP. I note that I have taken into account what appears to be the results of an X-ray examination of Mr Zielinski’s lumbar spine conducted during Mr Zielinski’s service in the army when he was 20 years of age, apparently as a result of him reporting that he had been, “beaten up … by [a] mob”, but the report appears to state that “the bones appear normal” and therefore it does not assist Mr Zielinski’s case.
Based upon the material before the Tribunal, the only conclusion reasonably open to the Tribunal is that, for the purposes of the relevant factors in the SoP, the clinical onset of Mr Zielinski’s lumbar spondylosis occurred, as Dr Rossiter opined, on 13 February 2015. I reject Dr Dade’s opinion to the extent that it might serve to establish that the date of clinical onset was in 1948 or 1949, given that Mr Zielinski had not even been born then, let alone served in the army. It would be impermissible for the Tribunal to engage in speculation or conjecture that the date of clinical onset was any earlier than that found by Dr Rossiter in his report.
Nor is there material which would serve to establish that Mr Zielinksi had a lumbar intervertebral disc prolapse of the kind prescribed in para (h) of clause 6. Despite Dr Dade having signed a report stating that Mr Zielinski suffered an intervertebral disc prolapse at the L5/S1 level, resulting in the clinical onset of low back pain in 1948 or 1949 (which, as I have said, preceded Mr Zielinski’s birth), neither that report nor any other material before the Tribunal serves to satisfactorily establish the factor prescribed in paragraph (h) of clause 6.
Furthermore, none of the other factors in clause 6, as confined by clause 7, arise for consideration based upon the material before the Tribunal.
CONCLUSION
It is apparent from Mr Zielinski’s correspondence that he feels very aggrieved by his experiences and treatment during his service rendered at the Army Apprentices School. Unfortunately for Mr Zielinski, the effluxion of time does not appear to have lessened his distress in that regard, although one would hope that he has derived some solace from the outcome of his application made under the Defence Abuse Reparation Scheme. However, the strength of Mr Zielinski’s feelings does not of itself found a basis upon which the Tribunal can disturb the decision under review in his favour.
While the Act is beneficial legislation, it is not intended to assist all veterans in all circumstances. Nor does it confer any discretion on the respondent or the Tribunal to grant Mr Zielinski a pension on a basis other than that for which it expressly provides. As Heerey J stated in Gorton at [41], the Act “provides for pensions and other entitlements as a matter of right, and not discretion, dependent on the claim fitting certain facts”.
Consonantly, as Logan J stated in his concluding words in Todd v Repatriation Commission [2008] FCA 1276 at [35]:
“… [T]he Veterans’ Entitlements Act provides for the payment of public moneys by reference to particular statutory criteria. One either engages those criteria and therefore is entitled to payment, or one does not, and not amount of sympathy for the plight of a veteran can change that.”
The same can be said of circumstances, such as these, where the criteria governing entitlement to a pension are engaged, but not to the extent claimed by Mr Zielinski.
For the above reasons, the Tribunal will affirm the decision under review.
I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Deputy President F J Alpins [sgd]........................................................................
Associate
Dated 30 August 2016
Date of hearing 25 January, 2016 (on the papers)
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