Fenton and Repatriation Commission - [2001] AATA 515

DECISION AND REASONS FOR DECISION [2001] AATA 515

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2000/371

VETERANS' APPEALS DIVISION       )
           Re      TREVOR JOHN FENTON
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr. I.R. Way, Member

Date12 June 2001
PlaceCanberra

Decision The Tribunal sets aside that part of the decision under review that refused the applicant's claim for spinal stenosis of the lumbar region and in substitution therefor determines that the applicant's spinal stenosis of the lumbar region and lumbar spondylosis are war-caused, with date of effect 25 March 1997.

................(Signed).............................
I.R. WAY
MEMBER

CATCHWORDS
VETERANS' AFFAIRS – disability pension – whether disabilities are war-caused – reasonable hypothesis
Veterans' Entitlements Act 1986: s 9(1)(b), 119, 120(1), (3), 120A
East v Repatriation Commission (1987) 94 ALR 518
Repatriation Commission v Bey (1997) 149 ALR 721
Bushell v Repatriation Commission (1975 CLR 414)
Byrnes v Repatriation Commission (1977) CLR 569-570
Repatriation Commission v Keeley (2000) 98 FCR 108

REASONS FOR DECISION

Mr. I.R. Way, Member

This is an application by Trevor John Fenton (the applicant) for review of a decision of the Veterans' Review Board (VRB) dated 9 June 2000, refusing his claim for spinal stenosis of the lumbar region, post traumatic stress disorder and Menieres Disease. The VRB decision affirmed the decision of the Repatriation Commission (the respondent) dated 30 January 1998.
The Tribunal notes that the applicant on 12 January 2001 notified the Tribunal that in accordance with section 42A (1)(a) of the Administrative Appeals Tribunal Act 1975 he withdrew his appeal with respect to post traumatic stress disorder and further advised that only issues of entitlement and assessment with respect to his claimed lumbar condition are to proceed. Both parties agreed, and the Tribunal accepted, that the hearing should proceed on this basis.
The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and other documentation as follows:
THE APPLICANT:

Bundle of outpatient records (Exhibit A1)
Two statutory declarations of Kevin John Pengelly, dated 9 December 1998 and one undated (Exhibit A2)
Reports of Dr. W.J. Coyle, dated 8 November 2000 and 24 May 2001 (Exhibit A3)

THE RESPONDENT

Reports of Dr. McGrath, dated 15 December 2000 and 18 December 2000 (Exhibit R1)
Clinical notes of Dr. Stratton (Exhibit R2)
Clinical notes of Dr. Barejka (Exhibit R3)

The applicant and his wife gave oral evidence.

There is no dispute between the parties and the Tribunal accepts that the applicant served in the Royal Australian Navy from 15 February 1960 to 14 February 1972 and that during this period he rendered operational service as follows:

5 January 1961 to 24 January 1961
17 February 1961 to 9 March 1961
25 March 1961 to 17 April 1961
28 February 1962 to 16 March 1962
31 May 1965 to 22 June 1965

The issue before the Tribunal is whether or not the applicant's back condition is war-caused.

LEGISLATIVE FRAMEWORK

This matter is to be decided pursuant to sections 9(1)(b), 119, 120(1), 120 (3) and 120A of the Veterans' Entitlements Act 1986 (the Act), as set out below.
"9 War-caused injuries or diseases
(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note:This subsection is affected by section 120A.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused; as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person
Note:This subsection is affected by section 120A.
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note:This subsection is affected by section 120B.
(5)Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:
(a)an injury suffered by a person is a war-caused injury or a defence-caused injury;
(b )a disease contracted by a person is a war-caused disease or a defence-caused disease;
(c)the death of a person is war-caused or defence-caused; or
(d)a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.
(6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b)the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994;
(a)a claim under Part II that relates to the operational service rendered by a veteran;
….
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note:See subsection (4) about the application of this subsection.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)the kind of injury suffered by the person; or
(b)the kind of disease contracted by the person; or
(c)the kind of death met by the person;
as the case may be."

Other relevant provisions of the Act in respect of the claim are as follows:

"119 Commission not bound by technicalities
(1) In considering, hearing or determining, and in making a decision in relation to:
(a)a claim or application;
….
the Commission:
(f)is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;
(g)shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and
(h)without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i)the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii)the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities."

APPLICANT' S EVIDENCE

The applicant contends that his back condition was caused by a fall while lifting a water cooler, which led to a hernia and serious trauma to his lower back. It was the applicant's evidence that the fall occurred within a day or two of his ship, the HMAS Voyager, leaving Fremantle on 28 February 1962 and within the period of his operational service. He described the water cooler as a self-contained refrigerated cooler, about three foot high and fifteen inches square. While he and a shipmate were moving the cooler through the starboard hatch, the ship rolled and he fell back over the hatch on to a steel deck and immediately felt a severe pain in his lower back and a tearing in his right groin. He said he could not get up, was in pain and had to be assisted to the sick bay where he was seen by the sick bay attendant and the ship's doctor. He told the Tribunal that he was kept in the sick bay for some time for observation and eventually allocated light duties in the engineer's office as a writer, taking over the job of Leading Engineering Mechanic Pengelly. It was the applicant's evidence that the pain in his back lasted for about three to five weeks and then eased off. He said that he was shown how to protect his hernia, which arose out of the fall, but apart from rest and light duties he received no treatment for his back. He said the ship returned to Australia in about June 1962 and sometime in October he was operated on at HMAS Penguin for his hernia. Altogether, as a result of his hernia and back problem, he was on light duties for nine to twelve months.
He recalled a further episode of back pain in 1964 while serving on HMAS Vampire but could not recall the details of the injury, sick back attendants, treatment or allocation of light duties. Since 1964 the applicant said he had pain in his back on and off and had pain in his right leg which he thought was attributable to sciatica, however, a specialist related it to his back pain. He could not recall specific details about any incidents relating to his back pain, saying in those days there was no point in feeling sick and sorry - you just got on with your work.
He said that after he left the Navy in 1972 he always suffered from some form of back pain and some fifteen or sixteen years ago had physiotherapy for his back condition and about four or five years ago started taking pain killers regularly to ease the pain.
On leaving the Navy he engaged in a number of sedentary type jobs before commencing work in an abattoir. He said this required much more physical activity, picking up relatively heavy pieces of meat and twisting through 900 to place the meat on conveyors and that this increased the pain in his back. When questioned about a slip or fall on the floor and other incidents at the abattoir that affected his back, he said the main cause of the trouble was the repetitive work. He told the Tribunal that he was retrenched by the abattoir about seven years ago and was now retired. He said he had an operation for cancer in his right hip about four years ago and this had relieved the pain in his leg but he still had back pain. He said that because of the pain in his back he could not walk long distances, had to use a cane, had difficulty bending and doing washing up, and that he could not push a lawn mower or climb a ladder.
In answer to questions in cross-examination, the applicant said he was quite certain that the water cooler incident occurred early in March 1962 as he had been redeployed at this time from being a rating in the boiler room to mechanical duties with the engineer, part of which involved servicing the water coolers. He could not recall if he was given medication or any other form of treatment for his back apart from being under observation, and he could not recall what the doctor said to him. The Tribunal notes that the applicant gave no history of his back problem to his treating doctors at Balmoral Naval Hospital and that the hospital clinical notes record in October that the applicant had had his hernia for six months (Exhibit A1). The Tribunal also notes that at T29/131 the daily medical record, with respect to his hernia, and signed by the ship's doctor on 3 August 1962, records swelling in the right groin after lifting a heavy weight on duty about three months ago. It was pointed out to the applicant that these contemporaneous records made no reference to his back problem and put the water cooler incident at April or May 1962 rather than early March and in a period outside of his period of operational service. The applicant could not offer an explanation of this discrepancy other than that the records referred to approximate dates and he was quite sure he was correct in saying that the incident occurred a day or two after his ship left Fremantle on 28 February 1962. He also said that he was sure that there was another page of medical records relating to his examination on discharge and that this page recorded his back pain. The Tribunal notes that at T17/132 the applicant's daily medical record dated 13 August 1964 shows a diagnosis of back pain and that at T29/127 the veteran's medical statement on discharge records that, while the veteran was not suffering from any disability on discharge, he suffered a hernia (1962), blockages and occasional ringing in his ears and aching right foot and knee during his service.
The applicant was taken to his claim of 9 July 1997 for disability pension and medical treatment where at T13/66 he recorded details of accidents related to his claim for a back condition. When asked why he had not included any details at all of the water cooler incident, he said that at this stage he had not seen a specialist about his back and it was not until he became aware of radiological findings of an old trauma to his back that he began searching his memory for incidents that might be relevant.
With respect to sporting activities in the Navy, the applicant said he played rugby but had not hurt his back in play. However, after his hernia operation he only played once or twice because it caused him too much pain.
Mrs. Fenton told the Tribunal that her husband had complained of back pain since she married him in 1982 and that both she and her husband had attended a chiropractor because of back problems. She said that after her husband commenced work at the abattoir his back pain became progressively worse and while her husband was not in constant and continual pain, ever since commencing the job at the abattoir her husband had been on a "roller coaster" with so many other illnesses impacting on him.
Kevin John Pengelly, a shipmate of the applicant on HMAS Voyager during the relevant period, provided two statutory declarations (Exhibit A2). He stated that the applicant joined him in the engineering office on light duties some time shortly after leaving Fremantle; that he recalled the applicant suffering from hernia/back problem; that the applicant had had an accident causing pain and soreness in the lower back area and that he complained on and off about pain in his lower back/groin area.
MEDICAL EVIDENCE
Dr. W.J. Coyle, orthopaedic surgeon, examined the applicant on 7 November 2000 and provided written reports dated 8 November 2000 and 24 May 2001 (Exhibit A3).
He opined that the applicant had a radiological diagnosis of spinal stenosis in the L2/3 region but his symptoms are not typical of this condition. He went on to say that the exact diagnosis does not appear to be very important, that there appears to be no doubt that the applicant is incapacitated by back pain which might be related to spinal stenosis but is probably more likely to be due to lumbar spondylosis, secondary to fractures of his second and third lumbar vertebrae. He further stated that he thought it is a very reasonable hypothesis to connect Mr. Fenton's condition with his Royal Australian Navy service based on the history given by the applicant about a significant back injury at sea in 1962 and old radiological changes dating not from 1996 but from time in the past, presumably 1962.
Dr. D. McGrath, musculoskeletal and occupational physician, saw the applicant on 20 November 2000 and provided two written reports, one dated 15 December 2000 and one dated 18 December 2000 (Exhibit R1). Under the heading of spinal stenosis, Dr. McGrath stated that a CT scan of the thoraco/lumbar spine clearly indicates a damaged disc at the L2/3 level with some posterior herniation. There was some deformity of the L2 body. Dr. McGrath went on to say that lumbar spondylosis appears to be an equally valid diagnosis.
In conclusion, Dr. McGrath stated "I am in agreement with Dr. Coyle in his recent letter of 8 November in respect of clinical findings relating to the applicant's lumbar spine and musculoskeletal impairments". In his report of 18 December 2000, Dr. McGrath states he believes the incident at sea with the water cooler satisfies the definition of trauma in the Statement of Principle (SOP) Instrument 165/99. He goes on to say that an incident in 1996 at the abattoir in Forbes could have led to a specific injury which is the current source of his disability. Any damage resulting from the fall at sea may have remained unsymptomatic were it not for this fall and the incident at the abattoir. Both these incidents may be viewed equally as a cause for his current problems.
The Tribunal notes that in the clinical records of Dr. I. Stratton, orthopaedic surgeon, (Exhibit R2), there was no history of serious injury or fall but the records show a CT examination of the thoraco/lumbo spine on 24 December 1996 concluding that there is mild to moderate spinal stenosis at L2/3 and stating that the limited lateral view of the scanogram suggests deformity of the L2 body indicating a traumatic origin.

SUBMISSIONS

It was submitted for the applicant that the Tribunal should prefer the applicant's evidence with respect to the date of his accident aboard HMAS Voyager and that therefore the Tribunal should be satisfied that the accident occurred early in March 1962, a period of the applicant's operational service. It was submitted further that pursuant to the Act there existed a reasonable hypothesis connecting the applicant's back condition with the circumstances of his service and that the Tribunal should not be satisfied beyond reasonable doubt that the applicant's back condition was not war-caused. Therefore the applicant's claim should succeed.

The respondent contended that the Tribunal should prefer the history of the incident on board HMAS Voyager as shown in the Navy records and as such any relevant incident occurred outside the period of eligible war service. It was further submitted that the available documents did not record a back injury or any treatment of a back injury within the relevant period and if there had been an injury it must have been minor. The respondent pointed to the lack of any records of back problems in the applicant's medical examination on discharge. The only record of treatment for his back being 34 years after the incident and that it was not until problems in his back manifested themselves after commencing work at the abattoir that war service was considered as a factor. The Tribunal was referred to East v Repatriation Commission (1987) 94 ALR 518 and Repatriation Commission v Bey (1997) 149 ALR 721. The respondent submitted that the Tribunal should affirm the decision under review.
CONSIDERATION
The hypothesis submitted for the applicant is that the applicant suffered a severe fall during his operational service on HMAS Voyager early in March 1962, that the applicant suffered a trauma to his lower back and that his current back condition is causally related to this incident.
In considering whether this hypothesis is reasonable, the Tribunal is mindful that in Bey the Full Court said:
"While hypothesis may be no more than a possibility or supposition, in order for a hypothesis to be reasonable, it must as East states, be pointed to or supported, and not merely left open as a possibility by the material before the decision-maker."

The Court referred to Bushell v Repatriation Commission (at 175 CLR 414):
"The material will raise a reasonable hypothesis within the meaning of section 120(3) if the material points to some fact or facts (the raised facts) which support the hypothesis if the hypothesis can be regarded as reasonable if the raised facts are true."

And what was said in Byrnes v Repatriation Commission (at 177 CLR 569-570):
"The statement in Bushell that the material must point to some fact or facts which support the hypothesis means no more than that the material before the Commission must raise some fact or facts which give rise to the hypothesis. When that fact or those facts have been identified, the question for determination is whether the hypothesis is reasonable."
The Court then stated:
"A 'reasonable hypothesis' involves more than a mere possibility. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities. That understanding of the expression gives force to the word 'reasonable', is strongly supported by the history of the relevant provisions, and accords with the intention of appearing in the Minister's second reading speech and with authority (at 149 ALR 730).

After considering the whole of the material before it, the Tribunal is satisfied and finds accordingly that the material before it points to a hypothesis connecting the applicant's back conditions to an injury sustained in 1962 while the applicant was on HMAS Voyager.
The question before the Tribunal is whether there is in force an SOP determined by the Repatriation Medical Authority which is applicable. In order to consider this question the condition suffered by the veteran needs to be determined. The medical evidence in this matter consistently describes the applicant's lower back condition as spinal stenosis at L2/3 and lumbar spondylosis. There is agreement between the parties that both these conditions should be considered and the Tribunal is satisfied that these conditions need to be addressed.
The Repatriation Medical Authority has neither determined an SOP under section 196B(c) of the Act nor has it declared that it does not propose to make such an SOP with respect to spinal stenosis. The hypothesis with respect to this condition must then be considered on its merits in accordance with the principles laid down in Bushell and Byrnes. In Byrnes the High Court explained the steps to be taken in applying section 120 of the Act as follows:
"The position may be summarized as follows;
(1) First, sub-s.(3) of s. 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s. (1) of s. 120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis."

With respect to lumbar spondylosis the Tribunal notes that an SOP is in existence for this condition. The current SOP post-dates the date of the Commission's decision. Neither party pressed for application of the latest SOP and the Tribunal accepts that it is bound by the Federal Court decision of Repatriation Commission v Keeley (2000) 98 FCR 108 and that the relevant SOP in this matter is that applying at the date of the Commission's decision, namely Instrument 105/95 as amended by Instrument 334/95.
Dealing firstly with lumbar spondylosis and whether the hypothesis is consistent with the template to be found in the SOP.
Factor (fa) of the amended SOP states:
"(fa) suffering a trauma to the relevant joint before the clinical onset of lumbar spondylosis"

and defines trauma to the relevant joint as follows:
"trauma to the relevant joint means injury caused by the force of an extraneous physical or mechanical agent that causes pain, swelling or tenderness of a joint affected by lumbar spondylosis within the 24 hours after the force has been applied."

The medical evidence in this matter clearly indicates that factor "fa" of the SOP is satisfied and the Tribunal so finds.
Before the hypothesis can be said to be reasonable the circumstances of the trauma must be related to the applicant's operational service.
The Tribunal is satisfied that the applicant suffered a serious fall aboard HMAS Voyager at sometime during the ship's voyage during the period 28 February 1962 to June 1962. The Tribunal is also satisfied that as a result of this fall the applicant suffered an inguinal hernia which subsequently required surgical intervention.
Before considering whether this fall was causally related to any injury to the applicant's back pursuant to s9 of the Act, a threshold question arises as to when the fall actually took place. The applicant clearly remembers the fall occurring a day or so after HMAS Voyager left Fremantle on 28 February 1962, whereas the contemporaneous medical records suggest that the fall took place either in April or in May. The credit of the applicant is not in question in these proceedings and the Tribunal is satisfied that the applicant answered the questions put to him honestly and to the best of his recall. The Tribunal is mindful that there can be difficulties in ascertaining historical facts particularly when events are long gone and there is a paucity of official records. That situation prevails in this matter and is further exacerbated by existing records being somewhat at variance within themselves and couched in less than precise terms.
After careful consideration of all of the material relative to the question of timing of the applicant's fall, the Tribunal is satisfied that it should accept the applicant's recollection which is corroborated by the recollection of a shipmate who served in the same section of the ship as the applicant.
The Tribunal therefore finds that the applicant suffered a serious fall on board HMAS Voyager on or about 1 March 1962 and within the applicant's period of eligible war service from 28 February 1962 to 16 March 1962.
The Tribunal therefore finds that the hypothesis put forward by the applicant fits within the template of the relevant SOP and is a reasonable one. After consideration of all of the material before it and the submissions made by both parties the Tribunal cannot be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the veteran's lumbar spondylosis is war caused. The Tribunal therefore finds that the veteran's lumbar spondylosis is war caused.
Turning then to consideration of the applicant's spinal stenosis at L2/3.
As already indicated above, the Tribunal is satisfied that there is a reasonable hypothesis connecting the veteran's back condition with his war service. After consideration of all the material before it and the findings already made by the Tribunal, the Tribunal is satisfied that one or more of the facts necessary to support the hypothesis are not disproved beyond reasonable doubt. The Tribunal is also satisfied beyond reasonable doubt that the truth of another factor in the material which is inconsistent with the hypothesis is not disproved, thus disproving beyond reasonable doubt the hypothesis.
The Tribunal cannot be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the veteran's spinal stenosis of the lumbar region is war caused. The Tribunal therefore finds that the veteran's spinal stenosis is war caused.
It follows that the Tribunal sets aside that part of the respondent's decision which refused the applicant's claim for spinal stenosis of the lumbar region and in substitution therefore determines that the applicant's spinal stenosis of the lumbar region and lumbar spondylosis are war caused.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. I.R. Way, Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  24 May 2001
Date of Decision  12 June 2001
Solicitor for the Applicant         Ms. L. Gabriel
Solicitor for the Respondent    Mr. S. Hodder