Foa and Repatriation Commission
[2001] AATA 746
•28 August 2001
DECISION AND REASONS FOR DECISION [2001] AATA 746
ADMINISTRATIVE APPEALS TRIBUNAL )
) No D1999/25
VETERANS' APPEALS DIVISION )
Re NIGEL ROLAND FOA
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr K L Beddoe (Senior Member)
Date28 August 2001
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and substitutes the following decision: (a) the condition of cervical spondylosis is a war-caused condition within the terms of section 9 of the Veterans' Entitlements Act 1986; and (b) disability pension is assessed at 100% of the general rate.
(Sgd) K L Beddoe
Senior Member
Decision No: 746/2001
CATCHWORDS
VETERANS' AFFAIRS – Disability Pension – Whether cervical spondylosis war caused – Special Rate Pension - Whether totally incapacitated for remunerative work
Veterans' Entitlements Act 1986 s 9, 13, 23, 24
Statement of Principles – Instrument No 161 of 1996
REASONS FOR DECISION
28 August 2001 Mr K L Beddoe (Senior Member)
The Veterans' Review Board affirmed decisions of the respondent Commission to:
(a)Refuse a claim of pension and treatment for the incapacity diagnosed as cervical spondylosis; and
(b)To assess disability pension at 100% of the general rate
The applicant seeks review of those decisions.
Section 13 of the Veterans' Entitlements Act 1986 ("the Act") provides that where a veteran has become incapacitated from a war-caused injury or a war-caused disease pension by way of compensation is payable to the veteran.
Section 9 of the Act sets out the criteria for acceptance of a war-caused injury. In particular an injury suffered or disease contracted resulting from an occurrence that happened while the veteran was rendering operational service shall be taken to be a war-caused injury or disease.
Section 24 of the Act sets out the criteria to be satisfied for payment of a special rate pension. In particular there must be a finding that the veteran is totally and permanently incapacitated, ie the veteran's incapacity from war-caused injury or disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week (S 24(1)(b)).
Also paragraph 24(1)(c) must be satisfied taking into account sub-section 24(2) of the Act. The paragraph requires that the war-caused injury or disease alone prevented the veteran undertaking remunerative work resulting in a loss of earnings that the veteran would not be suffering if the veteran were free of the war-caused incapacity.
At the hearing Mr Piper appeared for the applicant and Mr Doube 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 and Dr R Giese.
I make the following findings of fact:
(a) the applicant was born on 16 July 1933 being 64 years 8 months at the time of application for increase in pension (17 March 1998 – T5);
(b) the applicant enlisted in the Australian Army on 26 June 1951 and was discharged (non-medical) class 1 on 25 June 1957 - (T4);
(c) the applicant saw operational service in Malaya in the 2RAR Mortar Platoon from 8 October 1955 to 7 June 1957;
(d) the applicant re-enlisted in the Australian Army Special Air Service on 17 September 1957 and was discharged non-medical class 1 on 26 June 1962 when the was transferred to the Reserve for five years;
(e) the applicant's service in Malaya involved him carrying heavy equipment and rounds as a member of the mortar platoon. In particular the applicant's being required to carry the mortar base plate on his back, or on occasions a bren gun, while on patrol in the Malay jungle in difficult and slippery conditions with resulting back pain at the time;
(f) patrol work in the Malay jungle involved dawn to dusk patrols with return to base at night and lasted for about 14 day periods with intervals between two to three weeks;
(g) the applicant estimates the weight of his equipment while on jungle patrols as 50 to 60 lbs (ie 22-27 kg);
(h) the applicant suffered significant back pain while on patrol duties in Malaya which he relieved by the use of aspirin;
the duties in the Malay jungle were much more onerous physically than his subsequent employment as a member of the Special Air Service;
(j) following his second discharge from the Army the applicant was employed as a prisons officer at the Fanny Bay Gaol and the Berrimah Gaol;
(k) the applicant resigned as a prisons officer at age 62 on 18 July 1994;
(l) thereafter the applicant helped out in his wife's business – a business she had conducted since 1953;
(m) the applicant had assisted his wife in her business since the time of Cyclone Tracey when she had conducted the business without employees;
(n) at the Veterans' Review Board hearing (Exhibit 1) the following exchange occurred:
Senior Member Park: "when you – when you retired from the Correctional Services, did you give any reason for your retirement?"
Applicant:"I – I didn't tell them I was retiring because I couldn't work."
Senior Member Park: "What did you tell them you were retiring because of?"
Applicant:"I told them I was retiring to look after my wife."
(o) the applicant's wife died of a spider bite in November 1998 and was said to be ill at the time the applicant resigned his employment as a prisons officer;
(p) before me the applicant denied that he had resigned as a prisons officer because he wished to help his wife; denied that his wife was ill at the time he resigned; but accepted that he intended to help his wife in the business as he had previously, upon ceasing his employment;
(q) the applicant said that his wife had a heart problem, suffered from blood clots and also osteoporosis – given the nature of those medical conditions and in particular that they evolve over a period of time, I am satisfied that it is more likely then not that the applicant's wife was not in good health in July 1994 when the applicant resigned his employment; and
(r) his wife ceased carrying on business on 21 January 1995 (Exhibit B) ie six months after the applicant resigned as a prisons officer.
The Medical Evidence
Document T24 is a copy of a report by a Repatriation Medical Officer dated 4 November 1976 addressed to Dr Stack as, I presume, the applicant's general practitioner. The applicant had complained of neck pain radiating to his left shoulder and arm. Slight narrowing of the C5-6 disc was found. Diagnosis was said to be indefinite with nothing to indicate any serious underlying damage or disease. Document T27 indicates that the neck condition was attributed to 80 parachute jumps made prior to service in Malaya. That accorded with the applicant's own statement (T32).
In an undated report (likely to be early 1982) a chiropractor reported that the applicant had been attending since 19 October 1978 for recurrent spinal discomfort (T32). The chiropractor made a more detailed report dated 8 September 1983 in which severe osteophytic degeneration of the cervical spine is reported.
In a detailed report dated 17 January 1985 addressed to the Department of Veterans' Affairs Mr Baddeley, orthopaedic surgeon, diagnosed episodic cervical spine pain referred into the interscapular region. Probably soft tissue in nature although Mr Baddeley recognised a possibility that it was associated with some chronic disc degeneration. Mr Baddeley found no evidence of specific injury to the neck but thought repeated parachute jumping may have contributed (T40).
In a further report dated 11 October 1995 and addressed to Dr Giese (T19) Mr Baddeley found degeneration throughout the spine, specifically at L2/3 but he thought the main problem was at L4/5. He diagnosed degenerative disc disease L4/5 with degenerative spondylolisthesis. The brief history recorded is that of back pain from the time of the applicant's service in Malaya. The report makes no specific mention of the cervical spine and makes no reference to parachute jumping.
Mr Baddeley also reported:
"He retired as a Prison Officer at aged 62 and was keen to have an active retirement. He is a keen golfer but is unable to play more than 9 holes before experiencing quite severe pain which forces him to stop."
Mr Baddeley expressed the opinion that a fusion at L4/5 should be considered.
Document T47 is a copy of a brief report to the Department of Veterans' Affairs dated 15 November 1994 by Dr Meadows. He raises a hypothesis connecting "long term neck and back problems" with the applicant's service "when he was required to lift heavy ammunition in awkward positions". Exhibit D is a copy of an extract from Dr Meadows' clinical notes for the period 7 February 1994 to 6 June 1995. Those notes include references to exacerbation of and continuing low back and also achilles tendonitis.
In a report dated 7 July 1998, NT Imaging reported fairly prominent cervical spondylosis with foraminal narrowing of the left side at C6/7 and bilaterally at C5/6 with generalised degenerative change over the C4 to T1 region.
There is a number of reports by Dr Giese who also gave oral evidence. Dr Giese is the applicant's general practitioner. It is not unfair to say that Dr Giese has sought to advocate the applicant's case. His letter to the respondent dated 21 July 1998 (T13) clearly sets out to dispute the respondent's decision. Documents T18 and T19 contain further reports by Dr Giese.
In Exhibit A which is a report dated 6 July 2000 addressed to the applicant's solicitor. The report includes the following:
"His lumbar spine showed diminished range of movement with poor flexion and extension, diminished rotation and tenderness across the lower back and over the L5-S1 segments. He had poor functional capacity and was unable to repetitively bend, and had difficulty on the repetitive step test with pain developing after 30 steps.
These physical signs are entirely consistent with his physical examination in August 1995 when I first saw him soon after he had retired. At that time had he presented for a fitness for duty examination I would have advised him to consider alternative employment or retirement as his physical capacity was not suitable for his job as described above. He would have been unable to perform many of the functions required of him as a prison officer and would have potentially not been able to regularly attend work due to periods of disability and treatment and would have been considered an occupational health risk for his co-workers at the time."
In his oral evidence Dr Giese affirmed the opinion in his report to the respondent dated 21 July 1998 which includes the following:
"Mr Foa's neck pain has been present for a similar period as his back pain and was not exacerbated by his occupation at retirement as a prison officer. There were no injuries during his time as a prison officer which would account for his cervical spondylosis.
Mr Foa has had neck x-rays and more recently a CT scan (result enclosed) of the cervical spine which has demonstrated changes consistent with cervical spondylosis at three levels with similar changes to his radiographic findings in his lumbar spine.
In keeping with the pathology associated with his lumbar spine, the effects of cervical spondylosis associated with low level soft tissue trauma such as carrying excessive weights over rough terrain for long periods would not be apparent immediately but would result in ligament and tendon tears including disc tears which would manifest themselves later in life."
In his oral evidence Dr Giese explained that the injury to the applicant's back had the character of a repetitive activity injury evidencing chronic long-term overuse. The neck and lumbar spine conditions were exacerbated by the achilles tendonitis. In particular the neck injury is directly attributable to the applicant's service in Malaya.
ConsiderationThe applicant's case is that during his service in Malaya he was involved in long jungle patrols which required him to carry heavy equipment and supplies including the mortar base plate. During these patrols the applicant experienced pain in his neck and back but he continued on, there being no effective medical services available. The patrols resulted in trauma to the spine and consequential ligamentous instability. Both paragraphs 5(f) and 5(g) of the Statement of Principles apply on the facts of this case. It was only service related disabilities that stopped the applicant working. The respondent asserts there is no evidence of trauma to the cervical spine during service in Malaya so that the Statement of Principles cannot be satisfied. The respondent does not dispute the hard physical conditions encountered by the applicant in Malaya but says there must be a discrete traumatic event for the Statement of Principles to be applicable.
The applicant left work for reasons which included reasons unconnected with his accepted disabilities. There is no evidence that the applicant could not do work. He was able to work in his wife's shop from time to time.
He voluntarily retired and not because of his accepted disabilities.
Neither of paragraphs (b) and (c) of sub-section 24(1) are satisfied in this case.
Relying on the medical evidence I am satisfied there is a hypothesis connecting the diagnosed condition of Cervical Spondylosis with the applicant's service in Malaya.
Being satisfied that the material does raise an hypothesis I must consider whether the hypothesis is a reasonable hypothesis if the relevant Statement of Principles is satisfied. In this case the relevant Statement of Principles is Instrument No 161 of 1996.
I am satisfied, by the medical evidence that the applicant suffers cervical spondylosis within the terms of the Statement of Principles.
In this regard I am satisfied that it is more likely than not that the jungle patrols did result in incidents of trauma to the cervical spine. The applicant said, and I accept, that he had neck pain at the time. A likely explanation is traumatic incidents while carrying heavy equipment. There is no evidence of other non service related traumatic events. The most likely explanation is that injury to both the cervical and the lumbar spine occurred in Malaya. No issue arises here in relation to the lumbar spine because lumbar spondylosis has been accepted as war-caused. It is relevant to note however that there is a likely coincidence of causation for both the cervical and lumbar conditions.
The applicant's evidence satisfied me that he suffered "trauma to the cervical spine" as defined during his service in Malaya.
It is open on the evidence to find that both paragraphs 5(f) and 5(g) of the Statement of Principles are satisfied. I will find that paragraph 5(g) is satisfied. I am satisfied that the raised hypothesis is a reasonable hypothesis within the terms of paragraph 5(g) of the Statement of Principles.
The applicant's evidence about his service in Malaya and the pain to his neck and back is not seriously contested and is corroborated in some aspects by statements of others. I have no reason to doubt the applicant's evidence about his service in Malaya. I cannot be satisfied beyond reasonable doubt that the cervical spondylosis is not war-caused.
The claimed condition of cervical spondylosis is war-caused within the terms of section 9 of the Act.
As to the claim for special rate pension, I am not satisfied that his claim can succeed. The applicant did not satisfy me that his explanation to the Veterans' Review Board about resigning to help his wife in her business, was not a true explanation of one of his motives for resigning his employment. I am satisfied that his general back condition was a serious motivating factor to stop working as a prisons officer but those conditions were being exacerbated by a non-accepted condition – achilles tendonitis.
Further the applicant continued to work in his wife's business on a volunteer basis until she closed the business.
At the time of claim the applicant had ceased remunerative employment and was not seeking such employment. (The claim is undated but marked as received on 13 March 1998). His reasons for ceasing employment included his neck and back condition but that was not the only reason.
I am not satisfied section 24(1) (or 23(1)) of the Act can be satisfied in this case. Nothing was said about Extreme Disablement Adjustment but my observation of the applicant satisfies me that the section 22(4) of the Act does not apply.
The decision under review will be set aside and the following decision substituted:
(a)the condition of cervical spondylosis is a war-caused condition within the terms of section 9 of the Veterans' Entitlements Act 1986; and
(b)disability pension is assessed at 100% of the general rate.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member)
Signed: .....................................................................................
AssociateDate/s of Hearing 2 November 2001
Date of Decision 28 August 2001
For the Applicant Mr Piper
For the Respondent Mr Doube
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