Ferns and Repatriation Commission

[2000] AATA 592

DECISION AND REASONS FOR DECISION [2000] AATA 592

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  N2000/154

VETERANS'      APPEALS      DIVISION         )          
           Re      ROBERT SPENCER FERNS       
  Applicant
           And    REPATRIATION COMMISSION  
  Respondent

DECISION

Tribunal       Mr B. H. Pascoe, Senior Member

Date18 July 2000

PlaceSydney

Decision      The Tribunal affirms the decision under review.

.........(Sgd) B. H. Pascoe..........
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – entitlement – lumbar spondylosis – whether war-caused – whether veteran suffered trauma – whether reasonable hypothesis connecting service with medical condition – repetitive jumping from vehicles and heights – definition of trauma in SoP
Veterans' Entitlements Act 1986
Statement of Principles:
Instrument No. 27 of 1999 concerning lumbar spondylosis
Harris v Repatriation Commission [2000] FCA 873

REASONS FOR DECISION

18 July 2000            Mr B. H. Pascoe, Senior Member

1. This is an application to review a decision of the Veterans' Review Board ("the VRB") dated 9 December 1999 which affirmed a decision of the respondent of 25 May 1999 that the applicant's condition of lumbar spondylosis was not war-caused.  In an earlier decision of the VRB made on 21 April 1986 it was decided that the applicant's condition of cervical spondylosis was war-caused.

2. At the hearing the applicant, Mr Ferns, was represented by Mr T. R. Williams, OAM, and the respondent by Mr R. Wallis, an advocate of the respondent. No oral evidence was given by the applicant. The Tribunal had before it the documents provided by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 numbered T1-T22, together with a letter of 4 April 2000 from the applicant setting out details of training activities in 1943.  There was no dispute as to the facts relied upon by the applicant nor that he suffered from lumbar spondylosis.  The sole dispute was whether the material before the Tribunal raised a reasonable hypothesis connecting the lumbar spondylosis with the circumstances of the applicant's operational service.

3. Mr Ferns served in the Australian Army from 15 December 1941 to 24 June 1946 which constituted eligible war service as defined in the Veterans' Entitlements Act 1986 ("the Act").  There was no dispute that the whole of this service also constituted operational service.  He had, also, eligible non-operational service from 9 September 1940 to 30 November 1940 and from 15 March 1941 to 14 June 1941.

4. The relationship between the operational service and the condition of lumbar spondylosis was said to be specialised training over some 30 days in July/August 1943.  In his letter of 4 April 2000, Mr Ferns stated:

   "Sections of my battalion (30 BN A.I.F.) were advised that we were to undergo both combined operations and airborne operational training, at a place called Moonyanuka in Western Australia.  We were not to reason why!
   This training began quite pleasantly with us riding in trucks and jumping off the back while they moved at about 5 MPH.  The pace quickened until we were departing and learning to 'roll' in full pack at approx. 15 MPH.
   We were then taken to another area where we jumped, initially, from structures of about 8 feet high.  When this progressed to over 15 feet in height we all suffered greatly from 'body shock'.  It was just as well we were young and fit (average age about 20) or many more casualties would have occurred than actually did.
   After achieving these heights jumps, finally in full gear of about 90 lbs, we were again subjected to leaping from trucks/over open ground) moving at 30 MPH – rolling, as taught, jumping up and running to areas designated as being 'arms drops'.  We then had 'live fire' exercises.
   When most of the men were too sore to move (some broken bones; everyone strained skeletally to near breaking point and all too sore to be effective) we were sent to a beach camp at Geraldton for rest and recovery.
   I am sure that all my skeletal problems stemmed from this training."

5. Section 120(3) of the Act requires the material before the Tribunal to raise a reasonable hypothesis connecting the conditions claimed with the circumstances of Mr Ferns' operational service. Under section 120A, if there is in force a Statement of Principles ("SoP") issued by the Repatriation Medical Authority in relation to the condition, then the hypothesis is reasonable only if the relevant SoP upholds such hypothesis. The relevant SoP here is that concerning lumbar spondylosis (Instrument No. 27 of 1999). This SoP lists the factors, one of which must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised. The factor relied upon by the applicant and the only one on which he could rely, on the evidence before the Tribunal, was "suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis". The definition of trauma in the SoP is:

   "'trauma to the lumbar spine' means a discrete injury to the lumbar spine that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain and tenderness, and either altered mobility or range of movement of the lumbar spine.  These acute symptoms and signs must last for a period of at least seven days following their onset save for where medical intervention for the trauma to the lumbar spine has occurred, where that medical intervention involves either:

   (a)immobilisation of the lumbar spine by splinting, or similar external agent; or

   (b)injection of corticosteroids or local anaesthetics into the lumbar spine; or

   (c)surgery to the lumbar spine."

6. It was submitted for the applicant that he had demonstrated a history of trauma to his lumbar spine which caused pain lasting at least seven days.  It was said that there were a number of discrete injuries over the arduous training course where the spine would have been severely traumatised.  Mr Williams maintained that there was nothing in Mr Ferns' subsequent relatively sedentary occupation which could have produced the condition of lumbar spondylosis.  It was submitted that the activities described by Mr Ferns demonstrated a clear impact on his back which altered his mobility and satisfied the relevant factor under the SoP.

7. For the respondent it was submitted that the evidence did not show that the requirements of the relevant SoP had been met so that it could be said that a reasonable hypothesis had been raised.  It was said that the entire definition of "trauma" had to be met with a "discrete injury" causing "acute symptoms" lasting for, at least, seven days.  Mr Wallis submitted that the description of medical intervention in the definition involving relatively serious forms of treatment was relevant to the interpretation of the word "acute".  Evidence relevant to the VRB decision of April 1986 was said to demonstrate that no discrete injury had occurred during training in 1943 but that of simple aches and pains.  While that hearing was concerned with the claim for cervical spondylosis, it was said that the same facts relating to the training in 1943 were relied upon by the applicant.

8. In the 1986 decision of the VRB it was stated (at page 2) that "It was said that he did not recall any specific injury" and (at page 3) "…many of his fellow trainees badly injured their legs and backs.  He said he probably had aches and pains in the back then but was not incapacitated on any occasion."  The VRB also referred to a report by Dr K. F. Hume of 8 April 1985 and stated (at page 3):

   "It does appear, he said, that repeated minor trauma can cause degenerative changes in the cervical spine, and this minor trauma can occur with repeated jolting strains such as occurs during military training particularly in training involving jumping from heights."

In an Entitlement Medical Report (T9) prepared by a Dr Steele on 20 June 1984, it was stated in a comment referring to the particular training course (on page 2) "Does not recall any specific injury during this". On page 3, under the heading "Health History" the notation against "During" was "No recollection of significant illness, injury or operation". It should be noted that, while the VRB accepted the cervical spondylosis as war-caused on the basis of this airborne training course, it was in 1986. This was prior to the issue of any SoP and not governed by section 120A of the Act which applies only to claims made on or after 1 June 1994. At that earlier time, the VRB was satisfied that the material before it raised a reasonable hypothesis.

1. It may well be that, without the requirement that the relevant SoP uphold the hypothesis connecting the training course with the condition of lumbar spondylosis, this Tribunal could come to a similar conclusion in relation to that condition as the VRB did in relation to the cervical spondylosis.  It is not unreasonable to accept an hypothesis that the repeated minor trauma from jumping out of moving vehicles and from heights, particularly carrying heavy weights contributed to the degeneration of the lumbar spine.  Unfortunately the Tribunal is bound by the factors set out in the relevant SoP which do not include repeated minor trauma which would well have been suffered in the training outlined by Mr Ferns.  The requirement is for a "discrete injury" causing the development, "within 24 hours", of "acute symptoms and signs of pain and tenderness, and either altered mobility or range of movement of the lumbar spine" which last for "a period of at least seven days".  While Mr Williams accepted that there was no specific injury which could be identified or recalled, he argued that several minor injuries to a discrete part of the body, the spine, satisfied the SoP.  Unfortunately, I can not agree.  The New Shorter Oxford Dictionary (1993 Ed.) shows "discrete" as meaning "separate, detached from others; individually distinct; not continuous or coalescent."  The Macquarie Dictionary (3rd Ed.) says: "detached from others; separate; distinct".  It is clear that, to satisfy the factor of "trauma to the lumbar spine", there must be identified a separate, distinct injury which causes acute symptoms lasting for at least seven days.  I well accept that the training course produced aches and pains but there is no evidence of a discrete injury which can satisfy the existence of a factor required by the SoP. 

2. In the case of Harris v Repatriation Commission [2000] FCA 873, Finn J was concerned with an earlier SoP relating to lumbar spondylosis (Instrument No. 105 of 1995). Whilst the words of the definition differ slightly from Instrument No. 27 of 1999, these differences appear to have little consequence. At paragraphs 31 and 32 of the decision, His Honour said:

   "31      Insofar as the trauma component of those factors is concerned this requires (inter alia) that the injury in question caused the development of 'acute symptoms and signs' of (i) pain, (ii) tenderness and (iii) altered mobility or range of movement.  Though the preposition 'of' only precedes the word 'pain' in the SoP's definition I am satisfied that the definition is to be read as if 'of' preceded the words 'tenderness' and 'altered' as well.  The applicant has submitted to the contrary, contending that the definition is to be read as if it referred to 'acute symptoms and signs of pain and/or tenderness, and [meaning 'together with'] altered mobility' etc.  When one has regard both to the balance of the sentence in which the definition appears (and particularly to the words 'and where such acute symptoms and signs last for a period of at least one week') and to what, ordinarily, would be the work done by the preposition 'of' in a sentence constructed in the manner of the definition, the definition must be construed as I have proposed.  I should add that that construction is the one propounded by the respondent.

   32       The requirement, then, that there be 'signs and symptoms' of each of the three stipulated matters necessitates that there be an indication of, or phenomenon evidencing, each:  see eg definition II of 'sign' and that of 'symptom' in the Shorter Oxford English Dictionary ("SOED").  Moreover, given the requirement that the signs and symptoms must be 'acute' – ie that they be sharp or act 'keenly on the senses': SOED, 'acute'; there would need to be significant manifestations, variously, of pain, of tenderness and of altered mobility etc.  As the respondent contends, the definition contemplates a significant injury."

3. There have been several prior decisions of this Tribunal which have commented on the non-inclusion of repeated minor trauma over a period of time which may well contribute to later spinal or joint problems as a relevant factor. However, this is not included and the Tribunal is bound to find that the SoP on lumbar spondylosis does not uphold the causal relationship put for the applicant as a reasonable hypothesis in order to satisfy section 120(3) of the Act.

4. It follows that the decision under review should be affirmed.

I certify that the twelve (12) preceding paragraphs are a true copy of the reasons for the decision herein of 

Mr B. H. Pascoe, Senior Member

Signed:         .....................................................................................
  Personal Assistant

Date/s of Hearing  6 July 2000
Date of Decision  18 July 2000
For the Applicant  Mr T. R. Williams
Solicitor for the Respondent    Mr R. Wallis, advocate of the respondent