Elliot and Repatriation Commission
[2004] AATA 37
•20 January 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 37
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2000/189
VETERANS' APPEALS DIVISION )
Re LESLIE GEORGE ELLIOT Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member KL Beddoe Date20 January 2004
PlaceBrisbane
Decision The decisions under review are affirmed. .................(Sgd)....................
KL Beddoe
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension – whether veteran’s lumbar spondylosis was caused by his war service – no trauma to the lumbar spine – hypothesis raised is not reasonable – special rate of pension not payable - decision affirmed
Veterans’ Entitlements Act 1986
REASONS FOR DECISION
20 January 2004 Senior Member KL Beddoe 1. By a decision notified on 21 July 1999, the respondent refused a claim for acceptance of lumbar spondylosis as a war-caused disability. By a decision notified on 8 February 2000, the Veterans’ Review Board affirmed the respondent’s decision. On 25 February 2000, the applicant applied for review in this Tribunal.
2. At the hearing, Mr Harding appeared for the applicant and Mr Kelly represented the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the “T” Documents and further documents were tendered and marked as exhibits. Oral evidence was given by the applicant, two lay witnesses, Dr Coyne (Neurosurgeon), Dr Boys (Orthopaedic Surgeon) and Dr Mulholland (Psychiatrist).
3. The applicant was born on 24 April 1936 and enlisted in the Australian Army on 10 February 1955. He was discharged on 5 July 1958, the period of his engagement having expired.
4. The applicant had operational service in Korea from 19 January 1956 to 5 April 1956, apparently on peace-keeping duties.
5. In Exhibit A, the applicant attributes his back condition to falling on his buttocks while traversing some paddy fields in Korea. He says he did not report the matter to RAP but took aspirin for what he described as being numb and having trouble walking. He said he suffered pain in the back over the next few weeks but the symptoms eased after a couple of weeks. In Exhibit 8, which is an unsigned statement, the applicant says he slipped on ice. In his oral evidence he said he was walking across a paddock without a back pack.
6. The applicant worked as a butcher for most of his working life. On discharge from the Army he got a job at the sugar mill outside Cairns but left this employment to take up butchering. It seems, on the applicant’s evidence, he was an angry butcher and because of a short temper he lost many customers (Exhibit B).
7. In the result he gave up working as a butcher and became a spray-painter. He obtained employment with a company (UNITEC) and was employed almost exclusively on cleaning and respraying 200 litre drums. This work included using a fork-lift and moving drums between sites. The applicant states, in Exhibit B, that he was made redundant from this employment, he believes, because of his physical difficulties requiring him to take a rest from time to time.
8. That explanation changes in Exhibit C. The applicant states that his employer was taken over but he was told that there was a place for him to continue working except that his physical condition meant he was not able to do the work. The applicant says that it was his back condition that was causing him physical difficulties at work. He also referred to his knees getting sore in conjunction with the back condition.
9. In Exhibit C, the applicant said that as a butcher he spent all day lifting heavy sides of beef onto rails and that he needed a lot of power to cut through the meat and bone. In his oral evidence he said that he employed an offsider who did the heavy lifting – the applicant worked on the counter. Being unable to explain paragraph 14 of Exhibit C, the applicant said his statements were written by Dr Carter.
10. The applicant also said in oral evidence that he was retrenched from UNITEC when the company out-sourced the drum spraying operation.
11. The evidence of John Punch corroborates that the applicant’s physical disabilities caused him problems in the spray painting work. However, I accept, in light of Mr Punch’s evidence, that the applicant lost his employment at UNITEC because the drum spraying function was not continued in the business and was out-sourced. This is corroborated by the employer’s letters at T4/44 and Exhibit 1. I note the employer said in his statement (Exhibit E) that the drum spraying duties were difficult and compounded on the applicant’s lower back and knee problems. In his oral evidence, Mr Kimmins said that the applicant had wanted to work on but there were no other jobs for him. In relation to Exhibit 3, which is the Employment Questionnaire, it is not fully completed and, I suspect, completed by a person only concerned with details of the applicant’s termination payments. I have preferred other evidence to Exhibit 3.
The Medical Evidence
12. The applicant’s final Medical Board report, although detailed, makes no mention of a back injury. Document T4/24-28 is a copy of a report by Dr Livingstone, Orthopaedic Surgeon, dated 7 July 1999 and addressed to the Department of Veterans’ Affairs. That report includes the following relating to the history taken by Dr Livingstone:
“He states that he first noticed backache during his Army service of three years from 1955 – 1958, felt after the carrying of heavy packs. However, he does not relate any severe injury to his back and did not require any time off work during the above period.”
13. The rest of the history taken by Dr Livingstone is generally consistent with other material before the Tribunal.
14. Dr Livingstone reported that plain x-rays of the lumbar spine demonstrated a mild degree of scoliosis convex to the right with evidence of multi-level degenerative change and quite marked disc space narrowing at the L4-5 level. He diagnosed degenerative change lumbar spine (lumbar spondylosis) (T4/27 refers).
15. A radiology report by the Holy Spirit Hospital of an examination on 8 July 1999 noted “a mild thoracolumbar scoliosis together with some inhomogeneity of radiopharmaceutical distribution throughout the whole length of the spinal column in a configuration highly suggestive of some degenerative change” (T4/28) and Exhibit 4 confirms this view.
16. Exhibits F and G are reports by Dr Coyne (Neurosurgeon and Spinal Surgeon) addressed to the applicant’s solicitors and dated 9 January 2002 and 28 August 2002. Dr Coyne records a history which includes the following:
“He said he slipped and fell whilst carrying a 20-30 kilogram pack and rifle, landing on his buttocks. He said immediately following this he had pain in his low back. He said he saw a medic and was given aspirin. He said he continued back to his camp. He said he saw a medical officer, and was told to continue with his duties. He said that low back pain persisted for approximately 3 months.”
17. Dr Coyne postulates that the fall in Korea resulted in some degree of lumbar disc injury contributing to his condition of lumbar spondylosis. Dr Coyne says the incident described by the applicant would be with factor 5(h) of the Statement of Principles (not identified but probably Instrument No 27 of 1999).
18. Dr Coyne concluded as follows:
“It is likely that Mr Elliot’s lumbar spondylosis would cause difficulty with him carrying out employment of a physically heavy nature, such as attempting to resume work as a spray painter or a forklift driver. It is however likely that he would be able to undertake remunerative work of a more sedentary nature for greater than 8 hours per week. For instance, Mr Elliot told me that low back pain was not the primary reason that he ceased work as a butcher, and it is possible that he could work for some hours per week in this less physically strenuous employment.”
19. In a subsequent brief report of 29 April 2002, Dr Coyne apologised “if I have misunderstood Mr Elliot when he was describing his history to me, and I accept his history is that he saw a Platoon Sergeant when he returned from patrol rather than a medical officer”.. Dr Coyne confirmed his previous assessment and conclusions.
20. Exhibit G is a further letter by Dr Coyne dated 28 August 2002 which includes the following:
“I obtained the history from Mr Elliot that the principle reason he ceased his employment as a butcher was difficulty related to his left shoulder injury. This was why I commented that he may be capable of sedentary type of work, possibly butchering. However, I am certainly not an expert in the physical requirements of employment as a butcher. As mentioned in my report, I consider it likely that Mr Elliot would have difficulty coping with work of a physically heavy nature which places stress on his lumbar spine. If it is considered that butchering falls within this definition I would allow that Mr Elliot may have difficulty with this type of employment.
When I obtained a history from Mr Elliot, it seemed that leg pain to the knee occurred in association with his low back pain, and I consider it most likely that his leg pain is related to his lumbar spondylosis.”
21. In his oral evidence Dr Coyne said the fact of wearing a heavy back pack was not critical to the hypothesis although it would be a factor adding to the probability of the hypothesis.
22. In cross-examination he agreed that the x-ray and scan reports (T4/27 and 28) do not reveal signs of trauma and do reveal degeneration of the whole spine. He also said that he was of the opinion that the applicant could do sedentary work.
23. Dr Boys, Orthopaedic Surgeon, prepared a report for the Department of Veterans’ Affairs dated 12 January 2001 (Exhibit 5). Dr Boys also took a history which included the following:
“This man relates no symptoms referable to the lower back prior to army service. He describes an incident happening within a few weeks of commencing service in Korea in which he was patrolling across an icy paddy field. He was wearing a pack and carrying a weapon. He relates slipping and falling and landing on his buttocks. He relates local pain in the lower back. He continued with that patrol and took Aspirin. After getting back to base he obtained Aspirin from fellow soldiers and took medication over the next few days. He describes low back pain at that time. He soldiered on, he did not seek medical assessment.”
24. Dr Boys expressed the opinion that the applicant suffered lumbar spondylosis. He said the applicant experiences symptomatic degenerative change in the lumbar spine which is constitutional in origin. He was also of the opinion that the applicant suffered a partial incapacity for work as a result of the degenerative spinal condition but was capable of employment as a butcher or spray painter possibly for some three to four hours per day.
25. In his oral evidence, Dr Boys said there would have been no derangement of the spine at the time of the incident. It was a muscular/skeletal injury which would resolve. Episodic pain in the lower back, without significant problems, is normal. If the applicant was not in fact wearing a pack at the time of the incident, then there would have been less force applied to the spine in the fall.
26. Dr Janis Carter is the applicant’s treating psychiatrist. The applicant said that Dr Carter helped him prepare his statements of evidence in these proceedings. Exhibit J is a report by Dr Carter dated 1 June 1999 and addressed to the Department of Veterans’ Affairs. Dr Carter concluded that the applicant’s mental state was a factor in the applicant being made redundant.
27. Exhibit K is a further report by Dr Carter dated 3 August 2000. In that report she asserts that the applicant is unemployable – he was not able to work because of deafness, post traumatic stress disorder, depression and anxiety disorder.
28. Exhibit H is a further report by Dr Carter addressed to the applicant’s solicitor in which she discusses the loss of employment and the applicant’s childhood history. The report is of little assistance to the Tribunal.
29. Exhibits 6 and 7 are reports prepared by Dr Mulholland, Psychiatrist, dated 15 May 2002 and 13 November 2002. Dr Mulholland initially concluded that childhood experiences were the main cause of the applicant’s psychiatric condition. On review, Dr Mulholland came to the opinion that the applicant suffered post traumatic stress disorder (“PTSD”) precipitated by the applicant’s adverse experiences in Korea. However, Dr Mulholland said the condition was not the reason for the applicant ceasing employment and being unemployed.
30. In his oral evidence, Dr Mulholland said that the fact of losing his employment had exacerbated the PTSD because being unemployed had aggravated his emotional state because he had decompensated at that time.
Consideration
31. As Mr Harding submitted, the applicant cannot succeed in relation to above general rate pension unless lumbar spondylosis is accepted as service-related.
32. The suggested hypothesis is that the diagnosed condition of lumbar spondylosis, which I accept is a correct diagnosis, had its genesis in an incident in Korea while on operational service. That incident, as described by the applicant, was that he was crossing a paddy field when he slipped on icy ground landing on his buttocks and thereby applying force to his spine.
33. At the time of the Commission’s decision the relevant Statement of Principles was Instrument No 27 of 1999. That was revoked by Instrument No 46 of 2002. Mr Harding submitted, and I agree, that this is the relevant instrument, being both the instrument in force at the time of the Tribunal’s decision and the instrument more favourable to the applicant’s case.
34. The Tribunal must decide whether the hypothesis put forward is a reasonable hypothesis. It will be a reasonable hypothesis if it is consistent with the Statement of Principles. To be consistent, the hypothesis must satisfy one of the factors in clause 5 of the instrument.
35. Mr Harding submits that clause 5(h) is the relevant factor but I have also considered all of the factors in clause 5. I am satisfied that factor 5(h) is the only factor that has relevance to the hypothesis.
36. Satisfaction of that factor depends on whether it can be accepted that, on the basis of the facts asserted by the applicant, he suffered trauma to the lumbar spine as defined. In particular, whether there a discrete injury to the lumbar spine that caused the development, within 24 hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the lumbar spine.
37. I am not satisfied that there was a trauma to the lumbar spine for the reason given by Dr Boys.
38. Dr Boys diagnosed a degenerative spine with symptoms of low back pain of an episodic nature. The history given by the applicant is consistent with this diagnosis so that it cannot be the case that the applicant suffered a trauma to the lumbar spine as distinct from a trauma to his back.
39. On the applicant’s evidence it is more likely than not that he suffered a soft tissue injury rather than an injury to the lumbar spine. While I accept, on the basis of the applicant’s evidence, that he had back pain following numbness in his back, which lasted for a period of at least seven days, I am not satisfied that it is more likely than not that there was altered mobility or range of movement of the lumbar spine because there was no injury to the lumbar spine.
40. It follows that I cannot be satisfied that the hypothesis is a reasonable hypothesis because the only likely factor (5(h)) is not satisfied and therefore the Statement of Principles is not satisfied.
41. In relation to the claim for above general rate pension, I am satisfied that the applicant ceased remunerative employment because he was retrenched by his employer. I am also satisfied that he was retrenched for reasons that had nothing to do with his accepted disabilities but because the employer had decided to cease restoration of drums on its own account and have the work done by a contractor.
42. For these reasons the decisions under review will be affirmed.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member KL Beddoe
Signed: Sarah Oliver
AssociateDates of Hearing 30 June 2003 and 1 July 2003
Date of Decision 20 January 2004
Counsel for the Applicant Mr Harding
Solicitor for the Applicant Gilshenan and Luton
For the Respondent Mr J Kelly, Departmental Advocate
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