Ford and Repatriation Commission - [2001] AATA 602

DECISION AND REASONS FOR DECISION [2001] AATA 602

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/7

VETERANS' APPEALS DIVISION          )
           Re      Ronald Ford
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Ms SM Bullock, Senior Member Dr P D Lynch, Member

Date29 June 2001
PlaceSydney

Decision      The decision under review is set aside and in substitution therefor, the Tribunal decides pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth) that: 1. Mr Ford's condition of ischaemic heart disease is war-caused and the Commonwealth of Australia is liable to pay Disability Pension for this condition from and including 28 June 1998; 2. The assessment of the rate of Disability Pension is remitted to the Repatriation Commission.
  ..............................................
  Ms SM Bullock
  Presiding Member
Catchwords
VETERANS' AFFAIRS - Disability Pension – Operational Service – Reasonable Hypothesis - Ischaemic Heart Disease- Inability to Undertake Moderate or Vigorous Physical Activity for at least Five Years Immediately Before the Clinical Onset of Ischaemic Heart Disease

Legislation
Veterans' Entitlements Act 1986 (Cth) ss 5D, 9, 13, 120, 120A

Authorities
Law v Repatriation Commission (1980) 29 ALR 64
Repatriation Commission v Law (1981) 147 CLR 635
Repatriation Commission v Bendy (1989) 18 ALD 144
Re Frost v Repatriation Commission (1989) 18 ALD 416
Re Asquith and Repatriation Commission (1989) 18 ALD 479
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Deledio v Repatriation Commission (1997) 47 ALD 261
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626

REASONS FOR DECISION

29 June 2001 Ms SM Bullock Dr P D Lynch

This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by Mr Ronald Ford, the Applicant, of a decision of the Repatriation Commission ("the Commission") made on 2 November 1998 that Mr Ford's condition of ischaemic heart disease was not war-caused (T2). The Veterans' Review Board ("the Board") affirmed the Commission's decision on 14 October 1999 (T13).
A hearing was held in Sydney on 2 April 2001. Mr Ford provided oral evidence to the Tribunal as did Dr D Bornstein, Orthopaedic Surgeon. The Applicant was represented by Mr R Sherlock, of the Veterans' Advocacy Service, Legal Aid Commission of New South Wales. The Respondent, the Commission, was represented by Ms S Breuer, Departmental Advocate. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) ("T-Documents", T1-T36) and the following exhibits:
Exhibit Number    Description Date
T1 – T17 Section 37 Statement and Documents. Various
T18 – T36 Supplementary Section 37 Statement and Documents. Various
A1      Report of Dr D Bornstein, Orthopaedic Surgeon.         23 October 2000
A2      Applicant's revised Amended Statement of Facts and Contentions. 20 November 2000
R1      Referral letters to Clinical Associate Professor D Richards, Department of Medicine, University of Sydney, Consultant Cardiologist and Professor P N Sambrook, Professor of Rheumatology, University of Sydney.     7 May 2000
R2      Report of Clinical Associate Professor D Richards, Department of Medicine, University of Sydney, Consultant Cardiologist. 12 May 2000
R3      Report from Professor P N Sambrook, Professor of Rheumatology, University of Sydney.           17 May 2000
R4      Letter sent to Professor Sambrook from Mr G Wright, Departmental Advocate.     15 June 2000
R5      Supplementary report of Professor P N Sambrook, Professor of Rheumatology, University of Sydney.        22 June 2000
R6      Further referral letter to Professor P N Sambrook by Mr G Wright, Departmental Advocate.           5 July 2000
R7      Supplementary report by Professor P N Sambrook, Professor of Rheumatology, University of Sydney.        10 July 2000
R8      Clinical notes of General Practitioner, Dr J J Byrne.     Various
R9      Medical records of St Stephens Private Hospital, Maryborough, Queensland.       Various

Issues

The issue in this matter is whether or not Mr Ford's ischaemic heart disease is war-caused. At hearing, the issue was further refined to whether or not Mr Ford's hypertrophic spondylosis prevented him undertaking moderate or vigorous physical activity for at least the five years immediately before the clinical onset of ischaemic heart disease.
Legislation
A decision in this matter requires consideration of the Veterans' Entitlements Act 1986 (Cth) ("the Act").
Section 5D of the Act deals with the definition of injury and disease.
Section 9 of the Act deals with war-caused injuries or diseases and provides as relevant:
"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;
(c) the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d) the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;
(e) the injury suffered, or disease contracted, by the veteran:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.
…"
Section 13 of the Act deals with eligibility for pension.
Mr Ford served in the Australian Army from 5 November 1941 to 17 December 1945 during World War II. Mr Ford served for periods during this time in New Guinea and consequently, the whole of Mr Ford's service is considered operational service for the purposes of the Act.
The standard of proof used in relation to Mr Ford's operational service is that of the reasonable hypothesis, applying subsections 120(1) and 120(3) of the Act which provide as relevant:
"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.
…"
Section120A of the Act deals with Statements of Principles and requires that an assessment of the reasonableness of an hypothesis must be undertaken with any Statements of Principles issued by the Repatriation Medical Authority ("RMA") or any relevant determination or declaration under the Act. As relevant, section 120A of the Act states:
"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;
(b)     a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120(1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q(1A).
(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."

Statements of Principles

The appropriate Statement of Principles in relation to Mr Ford's claim is:
(i)Instrument Number 140 of 1996 as amended by Instrument Numbers 77 of 1997 and 37 of 1998.

Background

The following information is provided by way of background and the facts contained within are not disputed.

Mr Ford was born on 30 September 1921.
Mr Ford has been married twice but is now a widower who lives alone.
Mr Ford worked as a junior labourer between 1940 and 1941 with John Lysaght (Aust Pty Ltd), Port Kembla. Between 1946 and 1980, Mr Ford undertook clerical work, again for with John Lysaght (Aust Pty Ltd). Mr Ford ceased work in August 1980 (T6, p35).
Mr Ford has the following accepted war-caused conditions:
Malaria;
Sensorineural Deafness;
Osteoarthritis M.P. joint right thumb;
Hypertrophic Spondylosis.
Mr Ford was diagnosed with the condition of ischaemic heart disease in about July 1998, as confirmed by General Practitioner Dr J J Byrne (T6, p32) and also confirmed by Clinical Associate Professor D Richards, Department of Medicine, University of Sydney, Consultant Cardiologist (Exhibit R2).
On 28 September 1998, Mr Ford lodged a claim for "angioplasty" (T6, p32) which was diagnosed by the Commission as ischaemic heart disease.
On 2 November 1998, the Commission rejected Mr Ford's claim for ischaemic heart disease, and continued Mr Ford's Disability Pension at 100 per cent of the General rate, assessing Mr Ford's impairment at 60 points with a lifestyle rating of 6 points (T2).
On 25 November 1998, Mr Ford lodged an application for review to the Board noting:
"This condition (ischaemic heart disease) has been caused, in my case, by obesity.
Obesity is not a disease as such, however the accepted condition (hypertrophic spondylosis) has been chronic and deteriorating to such an extent over many years that I have been unable to undertake adequate regular exercise to enable me to maintain a healthy weight (SOP 140-96).
Also, the pain killers (Panamax Co) make me dizzy and with both problems (condition and medication) I stumble frequently" (T11, p57)
On 14 October 1999, the Board affirmed the Commission's decision. In relation to Mr Ford's claim that obesity had contributed to his ischaemic heart disease, the Board found that there was no evidence to conclude that Mr Ford satisfied the definition of obesity. Further, the Board noted that Dr Byrne, Mr Ford's General Practitioner, clearly indicated that Mr Ford had not been prevented from undertaking at least moderate physical activity for a continuous five year period (T13).
On 4 January 2000, Mr Ford made an application for review to the Tribunal (T1).

Evidence of Mr Ford

Mr Ford told the Tribunal that prior to 1990 and for most of his youth, he was a "perfect specimen" in terms of his physical fitness. Mr Ford stated that he played "A Grade football". In 1990, Mr Ford also played golf, participated in lawn bowling six days per week for three and a half hours each day and also gardened. In the early 1990s, Mr Ford also owned a small fishing boat which he used to launch and undertake numerous fishing trips. Mr Ford told the Tribunal that he was easily able to handle his boat in this period.
Mr Ford's first wife died in 1989. He subsequently remarried in 1993, but sadly his second wife contracted cancer and died in September 1995. After his first wife died, Mr Ford lived alone for a period and was able to care for himself. Similarly, after his second wife died in 1995, he lived alone for a short period but was then assisted initially by the Queensland Health Services Home Care Program.
In 1993, Mr Ford's health began to decline in terms of his mobility, he told the Tribunal. Mr Ford described an Anzac Day March in Sydney in April 1993. Mr Ford had participated in Anzac Day Marches in previous years, but on this occasion he found that he was unable to progress beyond 100 yards along George Street. He had to pull out of the march at the Cenotaph. Mr Ford estimated that he was only marching for a brief period of approximately 20 minutes.
In October 1994, Mr Ford and his second wife undertook a train journey to Perth on the "Indian Pacific" with a small group of friends. This trip was a type of "honeymoon" for Mr and Mrs Ford. Mr Ford described the pain he experienced in his lower back and legs during this trip as horrendous. The trip was a five day trip and he informed the Tribunal that he sat up for the entire journey. Had it not been for the fact that this trip represented a honeymoon, he would have left the trip before its conclusion. Mr Ford told the Tribunal "I've had pain in my legs and a crook back since 1993". Mr Ford found it difficult to distinguish and describe the back and leg pain he felt during this 1994 train trip. Mr Ford concluded that his back pain was worse than his leg pain and rated this on a scale of one to ten as eight, whereas the leg pain, which was like a burning pain from the knees down, he gave a five or six point rating. The back pain Mr Ford later described as feeling like "squeezing a boil".
Mr Ford also described having a "terribly stiff spine", which has been like this for a long time. Mr Ford stated that he experienced difficulty bending while plaing his lawn bowls, finding it difficult to get up and down and describing "stiffness" as one of his main difficulties. Mr Ford told the Tribunal that this stiffness in his back began in Maryborough in 1993.
Mr Ford described for the Tribunal the considerable restriction he has experienced in his activities post 1993. In relation to gardening, he noted that in a Lifestyle Questionnaire, signed by him on 9 January 1997, he had indicated he had difficulty with light gardening (T33, p122). At hearing, Mr Ford acknowledged that he had made a mistake about the difficulty with gardening in 1997 because at that time, he was living in an apartment and did not have any responsibility for gardening. He had earlier, after 1993, found it difficult to continue gardening in his various places of accommodation.
In relation to his lawn bowling activity, Mr Ford told the Tribunal that in the 1990s he would play bowls six days per week. He gradually decreased his bowling activity until 1995, and currently he can only play bowls one day per week for a maximum of two and a half hours. Mr Ford explained to the Tribunal that he takes the "lead position", as this allows him to play three bowls and then sit down. Mr Ford reiterated that he finds it very difficult to bend, to get down to bowl and there is pain.
With his gardening, Mr Ford stated that he found it very difficult to bend over because of his back. In 1990, Mr Ford gave up fishing as he could not launch the boat or handle the various other activities required when fishing from a boat. Mr Ford subsequently sold the boat in December 1994 as he had no practical use for it.
Also in 1990, Mr Ford gave up golf because he could not rotate to swing the club. Physically, he simply was unable to undertake any of the movements associated with golfing.
In terms of domestic activities, while Mr Ford was previously able to do his own cooking, washing and cleaning, he now must accept assistance in various aspects of living. For a number of years, and certainly since his second wife died in 1995 and earlier, Mr Ford has had domestic help. Currently, a cleaner comes once a fortnight and undertakes cleaning for two hours, which includes vacuuming, making the bed, cleaning the toilet and the like. Unfortunately at the time of hearing, Mr Ford's cleaner was moving to Queensland. The Department of Veterans' Affairs was to organise another cleaner for Mr Ford.
Between 1993 and 1998, Mr Ford stated that he had been able to wash a few personal items in the hand basin. He must now rely on others, including his daughter, for a big wash. For Mr Ford, bed-making is his most difficult domestic task and he may be able to make half of the bed from time to time, but mostly relies on his neighbours, family or the cleaner to assist him. After Mr Ford's second wife died, he has tried to cook his own meals. For breakfast, he currently has a piece of toast and he is able to wash his cup and saucer and plate. For lunch, Mr Ford eats yogurt or fruit. He has never made a sandwich. For dinner, Mr Ford eats a cooked piece of steak, potatoes and vegetables, two to three times per week. Again, friends or family frequently assist him with his other meals.
Mr Ford told the Tribunal that he is able to shop because he drives, but now this is becoming difficult. Mr Ford summarised his domestic activities as including his being able to cook small meals for himself and clean up afterwards but everything else is done by other people. Mr Ford gave the Tribunal an example of the great difficulty he is caused if he breaks a glass. Mr Ford has extreme difficulty cleaning up the breakage because of his mobility restrictions, including bending down and sweeping.

In relation to dressing himself, putting on shoes and socks is extremely difficult. His second wife used to help him with this activity. Now he has to get down on his knees and do one sock at a time. This is extremely slow and often painful.
Besides going to the shops, Mr Ford attends the local Fairy Meadow bowling club which is 20 yards across the road from his house. Mr Ford visits the club three afternoons per week between 3.45 and 5.00pm. During this period, he drinks four middis of beer. Mr Ford told the Tribunal that he does not consume alcohol at home.
In 1996/1997, Mr Ford also used to try to work on his car to maintain it but has not worked on it since that time. In order to wash it, he uses the hose and a soft broom.
From an entry of 12 August 1998 in Dr Byrne's clinical notes, Mr Ford is recorded as having breathlessness occurring after what was agreed to be a walk of approximately half a block (Exhibit R8, p5). Mr Ford stated that this was correct, but also stated that while the breathlessness had started in 1998, his leg and back problems started in 1993.
Dr W B McKenzie, Consultant Cardiologist, reported on 20 January 1999, that Mr Ford had made an excellent recovery from his angioplasty (Exhibit R8, p20). Mr Ford told the Tribunal that contrary to this report in 1999, he himself feels that his heart condition has deteriorated since the operation. In the last few months, he has felt worse, he told the Tribunal.
Mr Ford also could not understand Dr Byrne's opinion expressed in a diagnostic report of 22 October 1998, that Mr Ford had never been unable to undertake vigorous or moderate activity for a period of five years (T8, p42). Mr Ford noted that Dr Byrne had only been his doctor for two years when he had completed that medical report. Mr Ford did not know whether Dr Byrne had asked him about his activities prior to writing the report or indeed, whether or not Dr Byrne had taken a history of Mr Ford's physical activities following his consultations with Dr Byrne. Mr Ford told the Tribunal that when the Department had received Dr Byrne's report, a Departmental Advocate had contacted Mr Ford to suggest that he ask Dr Byrne to reconsider this report.
Mr Ford told that Tribunal that currently he tries to obtain exercise by walking around his flat. He does not undertake any physiotherapy or specific exercises. Mr Ford takes medication for pain relief in the form of "Panamax", of which he may take up to eight tablets per day. Routinely, however, Mr Ford takes two tablets in the morning and one or two during the day, averaging approximately four tablets per day.
In terms of his weight, Mr Ford estimated that in 1990 to 1992, his weight was approximately 83 kilograms. When Mr Ford was forced to reduce his physical activity because of his health, his weight increased to 88 or 89 kilograms and has in fact been as high as 91 kilograms. Mr Ford estimated that there had been an increase in weight of five kilograms up to 1993 and then he plateaued. Mr Ford told the Tribunal that he is doing his best not to put on any more weight. He believes that he has gained more weight in the past five years than in the five years prior to that. In relation to his diet, Mr Ford informed the Tribunal that he has eaten the same type of food since 1995.
Mr Ford told the Tribunal that the pain in his back is there all the time and he has had to become used to it.
MEDICAL EVIDENCE
Evidence of Dr D Bornstein, Orthopaedic Surgeon
Dr Bornstein provided a report dated 23 October 2000 (Exhibit A1), in addition to providing oral evidence to the Tribunal.
In his report, Dr Bornstein noted Mr Ford's accepted conditions and also a number of non-accepted conditions including ischaemic heart disease, claims for his cervical spine and lower back problems.
Dr Bornstein noted Mr Ford's history to him of a continuous feeling of instability on his feet and that he can now only walk about one block because of the instability. This instability was reported by Mr Ford as being present since 1993. Dr Bornstein noted assistance being provided to Mr Ford by a house-cleaner, in addition to assistance from his daughters. Further, Dr Bornstein noted Mr Ford's neck problems, for which he received physiotherapy and other treatments. Ultimately, Mr Ford had surgery for this problem but apparently this had not helped him.
On examination, Dr Bornstein noted Mr Ford has a "very rigid back". There were restricted ranges of movement in the neck and in the back which one would expect from a person of his age and also because of his stiff spine. Dr Bornstein noted X-rays of 11 May 2000, which indicated ankylosing hyperostosis or diffuse idiopathic vertebral hyperostosis ("DISH") of the thoracic spine. Dr Bornstein also noted similar but much smaller osteophytes in the lumbar spine. It appeared on the films, that the right sacro iliac joint is fused and this could be part and parcel of the same ankylosing hyperostosis.
Dr Bornstein opined in his report that it was odd that the thoracic spine condition was accepted when the same disease process also effects the lumbar spine as well as the neck. Dr Bornstein concluded that there was little doubt that Mr Ford's general mobility has fairly markedly been reduced, at least since the early 1980s, because of his cervical condition and the advancing spinal condition (DISH). In this regard, Dr Bornstein opined that Mr Ford's general mobility overall would have been restricted and this would have contributed to his ischaemic heart disease. Dr Bornstein noted that Mr Ford is mildly obese and that this condition is a recognised risk factor for ischaemic heart disease. While obesity is multi-factorial, including calorie intake, it is also dependent on calorie output or exercise and in some measure can be contributed to by a general lack of activity, Dr Bornstein opined.
Dr Bornstein concluded that Mr Ford is clearly prevented from undertaking moderate or vigorous exercise and that his hypertrophic spondylosis leaves him with a stiff spine which contributes to his general lack of exercise. Dr Bornstein made it quite clear that there are various problems or multi-factors in Mr Ford's inability to undertake exercise, including his war-caused accepted disabilities, contributing to obesity and lack of activity (Exhibit A1).
At hearing, Dr Bornstein agreed with Professor Sambrook that in addition to Mr Ford's suffering from hydrotropic spondylosis which is also known as DISH, he also suffers from canal stenosis, peripheral neuropathy and spodylolisthesis. In relation to the hydrotropic spondylosis, Dr Bornstein noted that this primarily affects Mr Ford's thoracic spine. It does, however, over time, extend into the cervical and lumbar regions. Dr Bornstein noted that hypertrophic spondylosis is not a painful condition, but it is extremely insidious and develops slowly. Its nett effect is to produce effusion between the vertebrae, which means that all movement is eventually stopped at the effected levels. The prime problem for Mr Ford is that he would be limited in his movement of a rotary type in the thoracic spine. In relation to how advanced Mr Ford's condition is, Dr Bornstein recalled that it affected the thoracic spine but there were more osteophytes in the lumbar spine, which caused him to believe that there is an appearance of fusion of the right sacroiliac joint, which is also part and parcel of the same process. Dr Bornstein concluded that the process was moderately advanced. The symptoms were not painful, but there was clearly a loss of movement. Dr Bornstein agreed that Mr Ford's description of his having "stiffness" in the spine was a correct interpretation of loss of movement.
In relation to activities previously undertaken by Mr Ford, Dr Bornstein noted that Mr Ford's ability to play bowls would be restricted, noting the small rotary component of that activity when playing lawn bowls. In relation to golf, Dr Bernstein opined that there is also a strong rotary component of the spine in that game, which he described as a "strong twisting, an axial twisting motion of the spine". In relation to fishing, which involved not only the action of fishing itself but of putting the boat into the water, Dr Bornstein noted that his stiff spine would inhibit his fishing activity and movement and make it less comfortable for him. Dr Bornstein noted that pain is not Mr Ford's main problem. The main problem in DISH is the limitation of movement and if certain activities become too difficult then, as has occurred with Mr Ford, his activities levels are reduced or indeed ceased.
In terms of gardening, Dr Bornstein noted that at ground level, Mr Ford would have been required to turn from side to side to get equipment or to undertake gardening activities. Again, Dr Bornstein opined that this would be uncomfortable and eventually would preclude activity. The problem with this condition, Dr Bornstein noted, is that there are just simply not the joints present to allow the activity to take place. In other words there is no place for movement to occur and therefore movement does not occur.
In relation to the effect of the canal stenosis which is to a mild degree at L4/5, the prime way that this would effect a person is in the production of intermittent leg pain on exercise, Dr Bornstein explained. Pain is generally relieved by flexing the back on a temporary basis.
In relation to Mr Ford's condition of spondylolisthesis, this can also be painful and can be the cause of lower back pain, Dr Bornstein noted. If it were symptomatic, it would limit the person's ability to bend and straighten. In relation to peripheral neuropathy, this can also cause pain of a burning type and can cause significant distress and discomfort to patients. There are specific types of peripheral neuropathy and variations in the sensations experienced by patients.
Dr Bornstein opined that the significant pain described by Mr Ford in his lower leg, below his knees and also in his back of a burning type pain, is suggestive of pain associated with peripheral neuropathy. In relation to the pain in his back described by Mr Ford as like "squeezing a boil", Dr Bornstein opined that this was more likely to be associated with spondylolisthesis. Dr Bornstein concluded that there were at least four conditions which effect and contribute to Mr Ford's level of activity. Dr Bornstein was not able, however, to estimate what the relative contribution of each of these conditions would be to Mr Ford's level of activity. He opined that the contributions from each would be significant. Dr Bornstein was firmly of the view that it could not be said that Mr Ford's condition of hypertrophic spondylosis had no causal significance in terms of his inability to undertake physical activity.
Dr Bornstein noted that prior to the hearing, he had not specifically known of Mr Ford's having canal stenosis or of the peripheral neuropathy condition. He had read Professor Sambrook's report after having completed his own report. Dr Bornstein was aware of Mr Ford's having back problems but was also not specifically aware of his having a diagnosis of a condition of ischial bursitis, which is a condition causing pain deep in the buttock, next to the anus, within an inch or two of either side if the ischium. This condition, Dr Bornstein noted, would cause discomfort and pain in that area and was an inflammatory disorder. There was some conflict in the documents as to whether or not the correct diagnosis of this condition was ischial bursitis or indeed whether or not it was more correctly diagnosed as osteoarthritis of the right hip. If indeed the correct diagnosis was osteoarthritis of the hip, then Dr Bornstein agreed that this would affect Mr Ford's ability to bend over, for example, if he were bowling.
In relation to Mr Ford's difficulty in walking less than one hundred yards, Dr Bornstein agreed that this would be best explained by the condition of peripheral neuropathy, but indeed, the spinal stenosis could also interfere with his ability to walk. The condition of hypertrophic spondylosis, Dr Bornstein opined, would have negligible impact on Mr Ford's ability to walk. If Mr Ford had no pain in his legs, from his neuropathy or stenosis, he may have been able to walk as a form of exercise. Dr Bornstein was asked whether osteoarthrosis of Mr Ford's knees would impact upon his ability to walk. Dr Bornstein opined that this would have a very negligible impact. He noted that X-rays showed small osteophytes in the knees. Dr Bornstein noted that Professor Sambrook made no comment as to whether there had been a loss of joint mobility. Professor Sambrook also did not appear to be stating that this was in any way a significant degree of arthritis in the knees.
In relation to Mr Ford's non-accepted neck condition, Dr Bornstein noted that it would have an effect on general mobility. He would also have pain in his neck involving keeping his neck still, reading, sitting in front of a computer terminal or wearing protective helmets. It would usually not effect the act of bending over, Dr Bornstein opined.
Dr Bornstein confirmed his opinion that DISH or hypertrophic spondylosis restricted Mr Ford's ability to move and to largely rotate his spine. While the hypertrophic spondylosis had negligible impact on Mr Ford's ability to walk, Dr Bornstein opined that it did have an impact in terms of other activities involving trunk rotary movement or trunk flexion movement. Hypertrophic spondylosis also could have an impact on Mr Ford's ability to swim. In that respect, he stated that it was significant, but to what extent or to put a figure on it, was not medically possible. Dr Bornstein did not agree with Professor Sambrook's opinion that there can be pain associated with DISH or hypertrophic spondylosis.
While Dr Bornstein concluded that peripheral neuropathy played a major part in the level of restriction of Mr Ford's activity, there were other activities which Mr Ford undertook which required trunk rotary mobility and lateral flexion. In those circumstances, it could not be said that the hypertrophic spondylosis played a minimal role or no part in Mr Ford's inability to exercise or be active. Thus, the hypertrophic spondylosis combined with Mr Ford's other conditions to restrict fishing, using the boat, bowls, gardening and golf, Dr Bornstein opined.
Dr Bornstein opined that Professor Sambrook contradicted himself in his report of July 1998, in which he opined that Mr Ford still had the ability to undertake vigorous or moderate activity for a continuous period prior to July 1998 when ischaemic heart disease was diagnosed. Dr Bornstein stated that in the overall context of Mr Ford's presentation and history, he would have been incapable of vigorous or even moderate physical activity in the five years leading up to the diagnosis of ischaemic heart disease in 1998. It would be fallacious, Dr Bornstein opined, to conclude that Mr Ford would be capable of moderate to vigorous physical activity. The hypertrophic spondylosis has played a material part in his inability to exercise. While the contribution to these restrictions by hypertrophic spondylosis may not be the major or dominant reason, it most certainly impacted on Mr Ford's inability to exercise in a material way, Dr Bornstein concluded. The progress of the disease does cause progressive stiffness to a point where joints actually fuse, at which point movement is eliminated. Therefore, Mr Ford has a difficulty because of the accepted condition of moving sideways, but also has some difficulty moving forwards and backwards, particularly forwards. Dr Bornstein noted, however, that the majority of flexion and extension movements in the lumbar spine occurs in the lower segments rather than the upper segments and with hypertrophic spondylosis, it would probably affect the upper segments rather than the lower segments.
Evidence of Professor P N Sambrook, Professor of Rheumatology, University of Sydney
Professor Sambrook provided a number of reports dated 17 May 2000, 22 June 2000, 5 July 2000 and 10 July 2000 (Exhibit R3). Professor Sambrook examined Mr Ford on 11 May 2000. On examination, Professor Sambrook noted that Mr Ford has moderate abdominal obesity but a normal posture. Thoracolumbar movements were restricted to 60º in flexion, 20º in extension and 20º in lateral flexion. There was patellofemoral crepitus present in both knees. X-rays revealed small osteophytes medially in the knees. In the spine, there were flowing osteophytes consistent with DISH or hypertrophic spondylosis.
Professor Sambrook diagnosed Mr Ford as suffering from DISH as well as osteoarthrosis of the knees. Both of these conditions contribute to his limited mobility, Professor Sambrook opined.
Having considered Factor 5(g) of the Statement of Principles for Ischaemic Heart Disease, Instrument Number 140 of 1996 as amended and the definition of moderate or vigorous physical activity, Professor Sambrook opined that most of the activities in the three to four METS level described (T8, p44) are ones that Mr Ford cannot perform, although he did admit to making his own bed, undertaking his washing and some shopping. Professor Sambrook concluded, however, that Mr Ford is largely unable to undertake moderate or vigorous physical activity and this goes back for five years.
On 15 June 2000, Professor Sambrook was provided with clinical notes from Mr Ford's General Practitioner, Dr Byrne. Professor Sambrook provided a subsequent report dated 22 June 2000, in which he noted that the clinical notes did not cause Professor Sambrook to alter his comments about Mr Ford's restriction of physical activity. As a result of a CT scan present in the clinical notes, Professor Sambrook now noted that although Mr Ford is limited in his physical activity, this is "probably not because of this DISH (his accepted disability) but rather the spondylolisthesis and canal stenosis, a non-accepted disability" (Exhibit R5).
On 5 July 2000, Mr G Wright, Departmental Advocate, sought further opinion from Professor Sambrook as to the relative contribution of the DISH or hypertrophic spondylosis on Mr Ford's level of activity. Mr Wright requested Professor Sambrook to make a finding in relation to whether the contribution was:
"(a)     Zero contribution in this regard?;
(b)       A minimal contribution, that is, less than a material contribution?;
(c)       A material contribution, or a substantial or predominant contribution?"
(Exhibit R6)
On 10 July 2000, Professor Sambrook provided a final report in which he noted that DISH is identical with the accepted condition of hypertrophic spondylosis. DISH does not effect Mr Ford's knees, ankles or hips, Professor Sambrook noted. The clinical manifestations of DISH are restricted movements in the spine, although it may also increase the risk of referred spinal pain in the legs, Professor Sambrook further noted. The symptoms described by Mr Ford are more likely to be due to canal stenosis or peripheral neuropathy, Professor Sambrook opined. Any contribution of Mr Ford's hypertrophic spondylosis or DISH would be a minimal contribution and less than a material contribution, Professor Sambrook reported. Professor Sambrook reiterated his previous view, even after having been provided with additional T-Documents, that Mr Ford had an ability to undertake vigorous or moderate activity for a continuous period of five years immediately prior to July 1998 (Exhibit R7).
Clinical Associate Professor D Richards, Consultant Cardiologist and Professor of Medicine, University of Sydney
Associate Professor Richards provided a report dated 12 May 2000 (Exhibit R2).
Associate Professor Richards confirmed a diagnosis of Mr Ford's having ischaemic heart disease, which became apparent in 1998. Associate Professor Richards noted a restriction in Mr Ford's exercise capacity in terms of playing golf and bowls since 1994 and that he also had received treatment for hypertension and hypercholesterolaemia. Mr Ford had experienced exertional dyspnoea in July 1998. This exertional dyspnoea persisted until he underwent a right coronary artery angioplasty on 2 September 1998, undertaken by Dr M Pitney, Cardiologist.

Associate Professor Richards opined that Mr Ford did not meet any of the factors in Statement of Principles, Instrument Number 140 of 1996 as amended concerning Ischaemic Heart Disease. Associate Professor Richards was provided with a copy of the T-Documents only.
SUBMISSIONS
Mr Sherlock submitted that the Applicant was concerned only with Factor 5(g) in Instrument Number 140 or 1996, as amended, concerning Ischaemic Heart Disease. Factor 5(g) states:
"(g) an inability to undertake moderate or vigorous physical activity for at least the five years immediately before the clinical onset of ischaemic heart disease;…
"moderate or vigorous physical activity" means physical activity greater than 3 METS, where a "METS" is a unit of measurement of the level of physical exertion equalling 3.5ml of oxygen per kg of body weight per minute;.."
Mr Ford's ischaemic heart disease was diagnosed in July 1998. From Mr Ford's evidence, Mr Sherlock submitted that Mr Ford had major problems with a number of his activities since early to mid 1993, which clearly falls within the five year requirement of the Statement of Principles. Specifically, Mr Sherlock noted that Mr Ford's evidence was that he ceased fishing in the middle of 1993. He ceased playing golf in January 1993 and gave up his intense commitment to bowls in 1993. Mr Sherlock submitted that this evidence clearly indicated that Mr Ford was within the range of having to give up moderate or vigorous physical activity and that he has been significantly disabled since that time, having to give up activities which were important to him.
In terms of self care, the only activity which Mr Ford seems able to do is to prepare simple meals for himself and clear away those meals; almost everything else he has had to give up. Mr Sherlock contended that the question for the Tribunal is whether or not the contribution of his accepted condition of hypertrophic spondylosis or DISH is excluded because it makes no causal significance to Mr Ford's inability to undertake physical activity.
Mr Sherlock referred the Tribunal to the reports of the two experts, Professor Sambrook and Dr Bornstein. In relation to Professor Sambrook, the Applicant's contention is that Professor Sambrook's report of 10 July 2000, his third report, is not able to be relied upon because of the inadequacy of the questions put to Professor Sambrook by the Departmental Advocate, Mr G Wright, which gave rise to Professor Sambrook's response. Professor Sambrook noted that any contribution from Mr Ford's hypertrophic spondylosis would be a minimal contribution and a less than material contribution. Mr Sherlock submitted that Mr Wright's letter eliciting this response from Professor Sambrook was misdirected as to the correct legal test. The key question is, Mr Sherlock submitted: "What is the causal contribution of the accepted hypertrophic spondylosis to Mr Ford's inability to undertake moderate or vigorous physical activity within the relevant five year period?". Mr Sherlock referred the Tribunal to Treloar v Australian Telecommunications Commission (1990) 26 FCR 316. The Court noted at 323:
"In our opinion, it follows from what is said and indeed, from what is not said in these passages and from a consideration of the plain words that once it is established that an employee in the doing of his work was exposed to "a state of affairs to which he would otherwise not have been exposed" or to "some characteristic of or condition in which the work was to be performed" and that such exposure was in truth a "contributing" factor to the condition in respect of which he seeks compensation then it matters not whether the contribution was of any particular size or degree. The same applies, where the complaint is not one of initiation of the condition but of its aggravation, in the sense of making it worse, or its acceleration in the sense of speeding up the progress of a progressive disease. In all cases the question is whether there has been a "contribution." Consistently with what was said by Windeyer J, "contribution" does not require that the contributing factor be a causa sine qua non; the "but for" test" is not appropriate nor is the causa causans or "real effective cause" or "proximate cause" formulation. All that is required is that the relevant aspects of the employment add their measure to the creation of the condition, its aggravation or acceleration. They must, in truth, be part of the cause. If they are not, then, they do not "contribute"…."

Mr Sherlock submitted that while that case referred to Commonwealth compensation law, it is not dissimilar to the test in Repatriation legislation in terms of the discussion of "material" contribution.

The Full Federal Court, in its decision, referred to the Primary Judgment in that decision. The Primary Judge noted that the test requires that there must be a contribution of a causal nature and therefore the contribution must be causally significant or material. The Primary Judge referred to Repatriation Commission v Law (1981) 147 CLR 635, in which it was accepted that it was sufficient if war-service was one of a number of causes of a disease, provided that it was a contributing cause. The use of the term "material contribution" was considered to be not necessary but was a familiar term. Mr Sherlock noted in the discussion of Repatriation Commission v Law (supra), the reference to "materiality" made it clear that the contribution required must be of a causal nature and that a contribution which is "de minimus", which did not influence the course of events or which was so tenuous as to be immaterial, should be ignored. The term "material" used in that context was not used in the loose sense as set out in the definitional material contained within the Macquarie Dictionary. Mr Sherlock further referred the Tribunal to Repatriation Commission v Bendy (1989) 18 ALD 144, which again, noting Repatriation Commission v Law (supra), noted that if a veteran developed a disease as a result of his war-service or if some event involved in the service contributed causally to the inception or development of the disease, it is not necessary to show that the factor involved was of "special character" or involved any special risk. It is further noted in Repatriation Commission v Bendy (supra), that the causes of a disease may involve complexities not present in the causes of an injury or an incident where the parameters of time and location may provide guidance. In examining the causes of a disease, it would be considered wrong to consider solely major factors, of which it could be said that without them the disease would not have developed. The issue of deciding about contributing causes should be approached in a "practical and common sense way", Davies J noted in Repatriation Commission v Bendy (supra).
Having considered that case law, Mr Sherlock submitted that when Mr Wright, from the Department of Veterans' Affairs, wrote to Professor Sambrook, he used the term "material contribution" in precisely the way in which the case law indicated it should not be used. Mr Wright used it in the loose sense set out in Definition 12 of the Macquarie Dictionary rather than in the legal sense. In so doing, Mr Wright misdirected Professor Sambrook on the issue, Mr Sherlock submitted. Professor Sambrook's response therefore, is based on a misunderstanding. Further, Mr Wright did not define what he meant by "minimal" or "material contribution", nor is there any explanation to Professor Sambrook as to what he should interpret these terms to mean. The concept of "de minimus" has not been explained to Professor Sambrook and therefore it could not be said that a minimal contribution means a de minimus contribution.
Mr Sherlock referred the Tribunal to his questioning of Dr Bornstein as to whether hypertrophic spondylosis was of causal significance. Dr Bornstein answered on a number of occasions that it could not be said that the hypertrophic spondylosis was of no causal significance to Mr Ford's restriction on exercise. Dr Bornstein stated that hypertrophic spondylosis was a major contributor for restriction of activities requiring trunk rotation or sideways bending and he referred to golf in particular but also fishing and gardening. Further, Dr Bornstein noted that once the osteophytes reach into the lumbar spine and the sacro iliac section, in fact there is an effect on flexion and forward bending as well as side ways bending. Accordingly, Mr Sherlock submitted that it is not possible from Dr Bornstein's evidence to conclude that the contribution of hypertrophic spondylosis was not sufficient to satisfy the Tribunal that it was not of causal significance.
Mr Sherlock contended that Professor Sambrook had the incorrect test for contribution described to him, and further, the facts which have to be considered, as noted in Treloar v Australian Telecommunications Commission (supra), have not been properly considered. The question of whether in fact the hypertrophic spondylosis had contributed, depended on expert evidence demonstrating a necessary causal link. The Applicant relies on Dr Bornstein's expert evidence that the contribution of the accepted hypertrophic spondylosis contributed to Mr Ford's inability to undertake physical activity. Mr Sherlock contended that the question that the Tribunal needed to ask itself was what were the causes of the lack of Mr Ford's physical activity. The answer surely must be, Mr Sherlock submitted, as pointed to by the clear evidence, that hypertrophic spondylosis does contribute to Mr Ford's lack of physical activity. Dr Bornstein noted that a major part of Mr Ford's previous activities required trunk rotation, sideways bending and some contribution to the lack of flexion. It is clear, Mr Sherlock conceded, that other conditions do also contribute to Mr Ford's inability to undertake physical activity. Dr Bornstein agreed with this proposition; however it is not possible, Dr Bornstein opined, to allocate degrees of responsibility to each of the conditions. While Dr Bornstein accepted that peripheral neuropathy was the most significant condition, he was also quite clear in his evidence that the accepted condition of hypertrophic spondylosis also played a part in the inability to undertake physical activity. The accepted condition clearly limited Mr Ford's golf, gardening, fishing, putting the boat into the water and perhaps some activities with bowling.
In so submitting, Mr Sherlock emphasised that he wished no disrespect or criticism to Professor Sambrook's competence. The difficulty was that Professor Sambrook was asked the wrong question and therefore the answer provided was of little use to the Tribunal.
Mr Sherlock further submitted that it mattered not that Dr Bornstein did not have a complete history of all of Mr Ford's non-accepted conditions. He was provided with this information at hearing and given the opportunity to comment as to whether this information caused him to change his opinion but it did not do so.
Mr Sherlock submitted that it did not matter in Mr Ford's case that pain was the biggest part of his problem. He also referred to stiffness of his spine, and it is clear from Dr Bornstein's evidence that stiffness is associated with the accepted disability. Stiffness played a major role in limiting Mr Ford in certain types of physical activities, mainly sideways movement and rotation. It also mattered not that there were other factors which may have contributed to heart disease. Mr Sherlock submitted that the factor upon which the Applicant relied, for which a reasonable hypothesis had been raised and which was not disturbed by the facts, was that of Mr Ford's hypertrophic spondylosis impacting on his inability to undertake moderate physical activity for a period of five years before the onset of ischaemic heart disease.
In conclusion, Mr Sherlock submitted that there was simply no way that the Respondent could gloss over or glide around the difficulty of Mr Wright's letter to Professor Sambrook and that the Tribunal must take account of this and the case law in relation to the requirements of "contribution".
Mr Sherlock submitted that the date of effect for this condition to be accepted is 28 June 1998, and in terms of the assessment of ischaemic heart disease, should this condition be accepted by the Tribunal, Mr Sherlock submitted that the matter should be remitted to the Commission for assessment. Ms Breuer for the Respondent agreed that there was no issue in terms of the date of effect of 28 June 1998, should Mr Ford be successful.
Ms Breuer noted that the hypothesis being put by the applicant is that Mr Ford was not able to exercise and this was contributed to by his accepted condition of hypertrophic spondylosis. Ms Breuer submitted, however, that the four steps as outlined in Deledio v Repatriation Commission (1997) 47 ALD 261 should be followed. If the Statement of Principles template has been met, then the Tribunal must look to see whether the material points to a reasonable hypothesis, in this case, whether or not there is a contribution as provided for in subsection 9(1)(b) of the Act, that the injury or disease contracted by Mr Ford arose out of or was attributable to any eligible war-service rendered by him.
The issue before the Tribunal, Ms Breuer contended, is whether or not Mr Ford's hypertrophic spondylosis was a contributing cause to his inability to undertake moderate or vigorous activity within the five year period immediately before the clinical onset of ischaemic heart disease. The Respondent conceded that Mr Ford was not able to undertake vigorous or moderate physical activity for that period as defined within the Statements of Principles. However, the Respondent contended that this inability to undertake moderate or vigorous physical activity was not related to the accepted condition of hypertrophic spondylosis. Ms Breuer noted that if that condition was all that Mr Ford had, he would have been able to exercise and that was clear from Dr Bornstein's evidence. Mr Ford would have been able to walk and to undertake other exercise which did not involve rotation of the trunk or flexion. This also included swimming, although Ms Breuer accepted that this had not been put to Mr Ford.
In relation to Mr Ford's activities of golfing, Ms Breuer noted that Mr Ford had osteoarthritis of the right hip and that condition, a non-accepted condition, would have affected Mr Ford's ability to play golf. Presumably, osteoarthritis of the hip may well have affected Mr Ford's ability to play bowls.
In relation to Dr Bornstein's opinion, Ms Breuer noted that Dr Bornstein did not have all of the material in relation to Mr Ford's non-accepted condition. Dr Bornstein was not aware of Mr Ford's knee condition or his hip condition. Therefore, Dr Bornstein's report only noted "a small part of the picture".
In relation to Mr Wright's written questions to Professor Sambrook , while the Respondent noted that the questions could have been worded differently, the Respondent did not accept that the law was incorrectly put to Professor Sambrook. In this regard, Ms Breuer noted that Professor Sambrook was asked what type of contribution hydrotropic spondylosis made to his inability to undertake moderate activity and in fact Mr Wright used the words of Davies J in Bendy (Supra). All of the definitions used by Mr Wright could be interpreted according to the definition of "contribution" in the legal sense as being pertinent or likely to influence, Ms Breuer submitted. In relation to minimal contribution, that is not likely to be pertinent or likely to influence, Ms Breuer further submitted. In relation to the issues of a material contribution, that is likely to be pertinent and is likely to influence and for a substantial contribution, that would be very pertinent or likely to influence and be predominant in its influence. Therefore, Ms Breuer contended that clearly the questions asked by Mr Wright can be interpreted with the legal definition in mind. All Professor Sambrook had been asked to do was try and define the type of contribution that hypertrophic spondylosis had made and he said that it was a minimal contribution, not a material contribution.
Further, Ms Breuer submitted that Dr Bornstein's evidence was that the hypertrophic spondylosis was not a predominant contribution. The predominant contribution was in fact peripheral neuropathy. In the Respondent's submission, Mr Ford's inability to undertake vigorous physical exercise between 1993 and 1998, based on the evidence, was not related to the accepted condition which goes to the rotation of the trunk and flexion. Mr Ford would have been able to undertake other types of vigorous or physical activity if he only had hypertrophic spondylosis, but in fact could not exercise because of his non-accepted disabilities.
Ms Breuer submitted that there is nothing in the Statement of Principles that requires that the Applicant had to undertake the kind of activity that he was doing previously, such as bowling, fishing, golf or gardening. In any event, gardening became irrelevant between 1996 and 1998, as Mr Ford did not have a garden in that period. Clearly, Mr Ford has a number of non-accepted disabilities, which he had had for some time, as detailed in Dr Byrne's clinical notes. It is because of these other conditions that Mr Ford was unable to undertake such activity.
In terms of case law, Ms Breuer noted that she generally agreed with Mr Sherlock's analysis. In relation to Treloar v Australian Telecommunications Commission (supra), it is not necessarily on point, Ms Breuer submitted, because the legislation the Tribunal, in this case, is concerned with, namely subsection 9(1)(b) of the Act deals with the condition, injury or disease arising out of or attributable to service. The Tribunal is not looking at acceleration, exaggeration, exacerbation or deterioration; they are clearly issues which go to subsection 9(1)(e) of the Act and not subsection 9(1)(b) of the Act. The Tribunal is more concerned with a direct causation as opposed to making a condition worse than it would have been. The Tribunal can obtain further guidance from Re Frost and Repatriation Commission (1989) 18 ALD 416 and Re Asquith and Repatriation Commission (1989) 18 ALD 479, Ms Breuer submitted.
It is simply not enough, Ms Breuer concluded, if Mr Ford's inability to undertake moderate or vigorous physical activity is attributable to the hypertrophic spondylosis in a trifling or negligible way. Dr Bornstein clearly stated that the hypertrophic spondylosis would have a negligible impact on activity such as walking. In terms of other activities, it is necessary to take into consideration the effect of non-accepted disabilities, whether it be the back or hip condition of peripheral neuropathy. Referring to Bendy (supra), Ms Breuer stated that if the Tribunal put aside the effects of Mr Ford's hypertrophic spondylosis, it would not be possible to say that he would be prevented from undertaking moderate or vigorous physical activity because of that. Looking at all of the disabilities and the effects of these disabilities, it is clear that there are a number of other contributing factors to Mr Ford's heart disease, namely cholesterol, diabetes mellitus, hypertension, obesity and Mr Ford's physical inactivity. Those other conditions have to be looked at in terms of step four of the Deledio (supra) steps, Ms Breuer contended.
Ms Breuer noted that it was significant that in his evidence Mr Ford spoke initially about pain and it was not until much later that he spoke of a history of stiffness. Part of his evidence related to the impact of pain on his inability to exercise. It is pain that also seems to be the main manifestation causing Mr Ford's inability to exercise. Ms Breuer noted that, according to Dr Bornstein, pain is not associated with Mr Ford's condition of hypertrophic spodylosis.
FINDINGS

The Tribunal has reached a decision in this matter, taking into account the oral and documentary evidence, the submissions, the legislation and case law.
The Tribunal found that Mr Ford provided straightforward evidence and his credibility was not challenged. The Tribunal found Mr Ford to be a credible witness.
Applying the principles laid down in Deledio (supra), the Tribunal sees it task as considering all the material before it, to ascertain if there is a hypothesis connecting Mr Ford's ischaemic heart disease with his service. The Tribunal is not required to make any finding of fact at this stage. If a hypothesis is raised, the Tribunal should then turn to a consideration of a relevant Statement of Principles, if in force, and whether the hypothesis raised is reasonable. A hypothesis will be found to be reasonable pursuant to subsection 120(3) of the Act if it is consistent with a template or factor, in this case, Factor 5(g) of Instrument Number 140 of 1996 as amended concerning Ischaemic Heart Disease. This factor is outlined above.
If subsection 120(3) of the Act is satisfied, then the Tribunal must turn to consider subsection 120(1) of the Act to find whether or not the application of the facts disproves the hypothesis beyond reasonable doubt.
The general hypothesis put to the Tribunal is that Mr Ford's accepted condition of hypertrophic spondylosis or DISH impacted on his inability to undertake moderate or vigorous physical activity for at least five years prior to the onset of ischaemic heart disease. The Tribunal finds that the onset of ischaemic heart disease is in July 1998 as supported by Associate Professor Richards and Dr Byrne.
The Tribunal is satisfied that this hypothesis is not fanciful or contrary to scientific fact. Turning to Factor 5(g) of the relevant Statement of Principles, the Tribunal considers that it is not impossible, implausible or unlikely that DISH or hypertrophic spondylosis led to Mr Ford's inability to undertake vigorous or moderate physical activity. Accordingly, the Tribunal finds that in terms of subsection 120(3) of the Act, a reasonable hypothesis is raised.
The Tribunal turns then to consider the facts of this matter and the application of subsection 120(1) of the Act. In doing so, the Tribunal acknowledges that there are clearly non-accepted conditions which impact on Mr Ford's inability to exercise, namely peripheral neuropathy, canal stenosis, osteoarthrosis of the hip and possibly knees. These other non-accepted conditions are noted by both Professor Sambrook and Dr Bornstein and both agreed that they impact on Mr Ford's inability to exercise. The difference is that Dr Bornstein clearly considers that DISH contributes causally to Mr Ford's inability to exercise and Professor Sambrook considers that the contribution or hypertrophic spondylosis or DISH "would be minimal contribution and less than material". (Exhibit R7).
The Tribunal notes that while Associate Professor Richards considers that there has been no contribution made by Mr Ford's hypertrophic spondylosis in terms of Mr Ford's inability to exercise. Associate Professor Richards only had available to him the T-Documents. His opinion on the complexities of this matter is of little assistance to the Tribunal, as he did not have all of the material available to either the Tribunal or the other experts who provided opinions.
Section 9(1)(b) of the Act provides that an injury or disease is war-caused if it arose out of or was attributable to war-service. Clearly, in relation to the reasonable hypothesis, Mr Ford did have an inability to exercise and it is accepted by the parties and the Tribunal that Mr Ford's inability to exercise to a moderate or vigorous level meets the requisite definition contained within the Statement of Principles. It is the cause of this inability to exercise which is at issue.
It is the Respondent's submission that the accepted condition of hydrotropic spondylosis does not play a major or causal contribution to this inability to exercise. The other conditions, particularly peripheral neuropathy, on the other hand, do most significantly contribute to Mr Ford's inability to exercise. The Respondent submits that if Mr Ford did not have his hypertrophic spondylosis, he would still be unable to exercise. Its contribution therefore, is considered by the Respondent to be de minimus or minimal.
In Bendy (supra), Davies J noted in reference to Repatriation Commission v Law (supra) that it is sufficient if a veteran's war-service was one of a number or causes of a disease, providing it was a contributing cause. There must be a material contribution which must also be of a causal nature. In the legal sense, Davies J concluded that the contribution must be "pertinent" or "likely to influence". Further, the Tribunal notes that a contributing factor need not be part of a "special character" or involving a special risk. Davies J also noted that in examining the causes of a disease, it would be wrong to consider solely factors of which it can be said that without them the disease would not have developed, for that is not the test. The issue of a contributing cause should be approached in a "practical and commonsense way", Davies J concluded. The Tribunal also notes that discussion in Treloar v Australian Telecommunications Commission (supra) in assessing a contribution as the Tribunal is required to do in Mr Ford's case, that "…it matters not whether the contribution was of any particular size or degree" (paragraph 21). This principle can also apply, as was noted in paragraph 21 of Treloar v Australian Telecommunications Commission (supra) in relation to aggravation as well as initiation of a condition. The Tribunal interprets Treloar (supra) such as to have application both for issues of initial contribution or indeed, aggravation.
The Tribunal has also gained some guidance in its deliberations from the High Court decision in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 where Windeyer J noted that a contribution does not require the contributing factor to be a "causa sine qua non" and the "but for" test is not appropriate nor are the "real effective cause" or the "proximate cause" formulations appropriate. All that is required, as noted in Treloar (supra), is that in terms of the relevant employment or in Mr Ford's case, war service, that it added measure to the creation of a condition or its aggravation or acceleration. Thus, the contributing factor must be part of a cause.
It is the Tribunal's view that a number of conditions contributed to Mr Ford's inability to undertake moderate exercise, including peripheral neuropathy, canal stenosis, possibly arthritis of the hip and knees and hypertrophic spondylosis or DISH. The Tribunal agrees with both Professor Sambrook and Dr Bornstein that peripheral neuropathy is a major contributor to Mr Ford's inability to undertake moderate or vigorous exercise. Considering the law, however, the Tribunal does not consider that there is no or minimal causal significance played by Mr Ford's condition of hypertrophic spondylosis. While its contribution is smaller than the other conditions, particularly the peripheral neuropathy, this is by no means to say that its contribution is minimal or of no impact. The Tribunal finds that based on Mr Ford's evidence and the opinion of Dr Bornstein, the condition of hypertrophic spondylosis has impacted on his inability to play golf, play bowls, garden up until 1996-1997 and to undertake fishing and the associated activity of handling his boat, in addition to undertaking domestic activity. There is nothing in the material before the Tribunal to dispute these facts beyond reasonable doubt nor to dispute the material impact of the hypertrophic spondylosis on Mr Ford's ability to undertake moderate or vigorous activity for a period of five years leading up to the onset of ischaemic heart disease. The existence of pain associated with peripheral neuropathy while significant, cannot and should not, erase the existence and the contribution made by Mr Ford's accepted condition of hypertrophic spondylosis. That there are other causal factors related to the inability to exercise is not denied. What should not be denied, however, is that there is nothing within the material to disprove beyond reasonable doubt, for the purposes of subsection 120(1) of the Act, that there are no sufficient grounds for finding that Mr Ford's inability to undertake moderate to vigorous physical activity was war-caused through the contribution made by his accepted war-caused condition of hypertrophic spondylosis.
In all the circumstances, the Tribunal determines that for the reasons set out above, the Tribunal is not satisfied beyond reasonable doubt, for the purposes of subsection 120(1) of the Act, that there is no sufficient ground for determining that Mr Ford's condition of ischaemic heart disease was war-caused.
Accordingly, the Tribunal sets aside the decision in review and substitutes its decision that:
(i)Mr Ford's condition of ischaemic heart disease is war-caused and the Commonwealth of Australia is liable to pay Disability Pension for this condition from and including 28 June 1998;
(ii)The assessment of the rate of Disability Pension is remitted to the Repatriation Commission.
I certify that the 98 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock and Dr P D Lynch
Signed:         .....................................................................................
  Stella Vaughan, Associate
Date of Hearing  2 April 2001
Date of Decision  29 June 2001
Representative for the Applicant              Mr R Sherlock, Veterans' Advocacy Service, Legal Aid Commission of New South Wales
Representative for the Respondent        Ms S Breuer, Departmental Advocate