Fox and Repatriation Commission
[2013] AATA 555
•8 August 2013
[2013] AATA 555
Division VETERANS' APPEALS DIVISION File Number
2012/4720
Re
Sherrie Fox
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Dr P McDermott RFD, Senior Member
Dr M Sullivan, MemberDate 8 August 2013 Place Brisbane The decision of the respondent in regard to lumbar spondylosis is set aside and this matter is remitted to the respondent with the direction that the applicant is entitled to a pension for the defence-caused disease of lumbar spondylosis as and from 21 May 2009. The decision of the respondent in regard to cervical spondylosis and osteoarthritis of the left knee is affirmed.
........................................................................
Dr P McDermott RFD, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Pensions and benefits – Lumbar Spondylosis – Satisfaction of Statement of Principles – Decision set aside – Cervical Spondylosis and Osteoarthritis – No evidence of onset of conditions within the time prescribed by the Statement of Principles – Decision Affirmed.
LEGISLATION
Veterans' Entitlements Act 1986 (Cth) ss 68, 70, 120, 120B, 196B
SECONDARY MATERIALS
Statements of Principles:
Instrument No. 38 of 2005 relating to Lumbar Spondylosis[1]
[1] as amended by Instruments No’d 79 of 2008 and 37 of 2010.
Instrument No. 34 of 2005 relating to Cervical Spondylosis[2]
[2] as amended by Instrument No. 77 of 2008.
Instrument No. 14 of 2010 relating to Osteoarthritis[3]
[3] as amended by Instrument No. 36 of 2011.
REASONS FOR DECISION
Dr P McDermott RFD, Senior Member
Dr M Sullivan, MemberINTRODUCTION
On 8 April 2010 a delegate of the respondent accepted the applicant’s diagnoses of lumbar spondylosis and cervical spondylosis, but determined that these conditions were not related to the applicant’s service. The delegate also did not accept that the applicant suffered any condition of the hips, knees or shoulders. On 11 July 2012 that decision was varied by the Veterans’ Review Board, only to the extent that a diagnosis of osteoarthritis of the applicant’s left knee was accepted, but held to be unrelated to the applicant’s service. The applicant has sought a review of this decision.
SERVICE
The applicant served in the Australian Regular Army from 30 September 1982 until 30 September 1985. She also had periods of service from 1988 until 2004. The Veterans’ Entitlements Act 1986 (Cth) (“the Act”) provides that her service for the period 30 September 1982 until her discharge was defence service under s 68 of the Act. Any incapacity from a defence-caused injury or disease is compensable under subs 70(1) of the Act. An injury or disease is taken to be defence-caused if it arose out of, or was attributable to, any defence service.[4]
[4] Veterans’ Entitlements Act 1986 (Cth) s 70(5).
Subsection 120(4) of the Act provides that in determining whether an injury or disease is defence-caused the respondent is to decide the matter to its “reasonable satisfaction”. In Repatriation Commission v Smith (1987) 15 FCR 327 the Federal Court of Australia held that the expression “reasonable satisfaction” refers to the civil standard of proof, which is proof on the balance of probabilities.[5] Subsection 120(6) of the Act provides that the applicant does not bear any onus of proof.
[5] (1987) 15 FLR 327 at 335.
The application of subs 120(4) is modified by subs 120B(3) of the Act which provides:
(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i) a Statement of Principles determined under subsection 196B(3) or (12)…
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
In this determining this application we have to apply the following Statements of Principle:
·Instrument No. 38 of 2005 relating to Lumbar Spondylosis (as amended by Instruments No’d 79 of 2008 and 37 of 2010);
·Instrument No. 34 of 2005 relating to Cervical Spondylosis (as amended by Instrument No. 77 of 2008); and
·Instrument No. 14 of 2010 relating to Osteoarthritis (as amended by Instrument No. 36 of 2011.
CONSIDERATION
Lumbar Spondylosis
The Tribunal asked the respondent to confirm whether it conceded that the Lumbar Spondylosis condition of the applicant should be accepted. The respondent, quite properly in our view, made this concession. We rely upon evidence before the Tribunal which was not before either the delegate or the Veterans’ Review Board. In our view this evidence establishes to our reasonable satisfaction that the Lumbar Spondylosis condition of the applicant is a defence-caused condition.
The case of the applicant has been the Lumbar Spondylosis condition was caused by a parachuting incident when she made her maiden jump on 2 June 1983. The Veterans’ Review Board was not satisfied that this incident occurred when the applicant was on duty. The applicant had initially stated that this date was on a Saturday. During the hearing it was assumed that the incident occurred on a Wednesday. In fact, this assumption was incorrect as the date fell on a Thursday. The applicant gave evidence, which we accept, that the practice of her unit was that some afternoons were reserved for sporting activities. Indeed we are aware that many units still conduct their sporting activities on a Thursday.
The parachuting activity was organised by Major John Brien who was not available to give evidence before the Veterans’ Review Board. On 26 October 2012 Major Brien made a statutory declaration which was admitted into evidence.[6] At the time of the incident he was a Staff Officer (Grade 2) in the Directorate of Special Action Forces. As a free fall parachuting instructor he was tasked to conduct adventure training for personnel of the Department of Defence who wished to participate in a parachuting activity. In giving evidence he stated that he obtained the approvals for the issue of the necessary instructions for the activity.
[6] Exhibit D.
Major Brien was in the aircraft from which the applicant jumped. He saw that in mid-air she collided with another parachutist. Because of this he said that the applicant would have had a hard landing. The applicant in her evidence stated that she was rendered unconscious after she landed. She also mentioned that the parachute became entangled. The applicant explained that she must have been mistaken when she wrote her initial statement in which she stated that on the day of the incident she had another jump. She made another statement dated 30 November 2012 in which she stated that she has realised, after having discussions with Major Brien, that she was mistaken about having another jump on that day. In view of the fact that the member has had a number of parachuting activities, we accept that she was endeavouring to recall the events as best as she could.
The incident of 2 June 1983 in recorded in an article in an Army newsletter.[7] The article contains a photograph showing the applicant and another Army member landing whilst having their parachutes entangled.
[7] Exhibit A, T-Document 4, pp. 89-90.
We consider that the evidence before us establishes the satisfaction of factor 6(f) of Instrument No. 38 of 2005 relating to Lumbar Spondylosis.[8] This factor requires the applicant to have a trauma to the lumbar spine within the 25 years before the clinical onset of lumbar spondylosis. We make this finding regarding the establishment of this factor on the balance of probability.
[8] as amended by Instruments No’d 79 of 2008 and 37 of 2010 (in a manner not material to this application).
We are reasonably satisfied that on 2 June 1983 the applicant sustained a trauma to the lumbar spine. The applicant in her statement has mentioned how she was heavily concussed at the time of the accident and landed on her back as she was not able to control her descent. She has remarked that she had borne the pain and bruising for some weeks and that after the second week she was taken to Canberra Hospital. We accept her evidence. This is consistent with the definition of trauma to the lumbar spine provided by the Statement of Principles.[9]
[9] Instrument No.38 of 2005 relating to Lumbar Spondylosis, para 9 (definition of ‘trauma to the lumbar spine’), as amended by Instruments No’d 79 of 2008 and 37 of 2010 (in a manner not material to this application).
We are fortified in our opinion that the applicant sustained a trauma to the lumbar spine in the form of a discrete injury by the medical records. A medical report records that the applicant had previously hurt her back whilst parachuting.[10] Dr Peter Steadman has had the benefit of reviewing the report of Dr Charles Hoy (National Capital Diagnostic Imaging) of 2 September 2002 who identified that there was L4/5 spondyloarthrosis.[11] Dr Steadman in his oral evidence opined that the report was consistent with a trauma to that locality as there was no evidence of more widespread spondylosis at other locations on the lumbar spine which would have indicated a constitutional condition. This conclusion of Dr Steadman was quite properly not challenged. We regard the report of Dr Hoy as being consistent with the presence of spondylosis as the condition of spondyloarthrosis is only generally confirmed after blood and, sometimes, genetic testing. It would appear that Dr Hoy gave his opinion only after reviewing radiological evidence. We also comment that in 2009 Dr Denis Nave, in his independent medico-legal report has diagnosed the condition of lumbar spondylosis;[12] this report does not suggest the presence of spondyloarthrosis.
[10] Exhibit A, T-Document 4, p. 85.
[11] Exhibit E.
[12] Exhibit A, T-Document 4, pp. 43-49.
The report of Dr Hoy is evidence of the clinical onset of the lumbar spondylosis condition within the requisite 25 year period. There is other evidence of the need for treatment within this period. Dr Steadman in his report of 19 February 2013 has pointed out that on 6 December 1983 the applicant required a lumbar support belt with physiotherapy.[13] Having reviewed the medical evidence we are satisfied that the onset of lumbar spondylosis would have been within 25 years of the incident.
Cervical Spondylosis and Osteoarthritis
[13] Exhibit G.
We have considered the evidence relating to the claims in respect of cervical spondylosis and osteoarthritis of the left knee.
We note that Dr Nave in his report of 2 December 2009 attributes the cervical spondylosis condition to degenerative change. Dr Peter Ross in his report dated 17 April 2009 has confirmed the existence of mild spondylosis of the cervical spine which was consistent with the age of the applicant. Dr Ross also reported that there was no sign of any older fracture.
Dr Steadman in his report of 19 February 2013 has given his opinion that the parachute incident had led to the development of osteoarthritis. However, Dr Ross in his report dated 17 April 2009 has reported that the left knee condition is consistent with the age of the applicant.
In considering the claims in respect of cervical spondylosis and osteoarthritis of the left knee we are bound to apply the Statement of Principles for each condition.[14] Each Statement of Principles contains a factor which requires there be a clinical onset of these conditions within 25 years of any trauma to the cervical spine or the affected joint respectively.[15] There is no evidence to satisfy this essential requirement. The earliest evidence of the clinical onset of these conditions is a report of Dr Ross dated 17 April 2009 which records that there is radiological evidence that then confirmed the existence of these conditions. In the absence of any evidence of an earlier date of the clinical onset of the conditions of cervical spondylosis and osteoarthritis of the left knee, the claims for these conditions cannot succeed.
[14] Instrument No. 34 of 2005 relating to Cervical Spondylosis (as amended by Instrument No. 77 of 2008); and Instrument No. 14 of 2010 relating to Osteoarthritis (as amended by Instrument No. 36 of 2011) (both amendments are not material to this application).
[15]Factors 6(f) of Instrument No. 34 of 2005 relating to Cervical Spondylosis (as amended by Instrument No. 77 of 2008) and Instrument No. 14 of 2010 relating to Osteoarthritis (as amended by Instrument No. 36 of 2011) (both amendments are not material to this application).
We have also reviewed the evidence to ascertain whether any other factor in each Statement of Principles is raised by the evidence. We have concluded the evidence does not raise any other factor which is required to establish the causal link between the conditions and the applicant’s service.
DECISION
The decision of the respondent in regard to lumbar spondylosis is set aside and this matter is remitted to the respondent with the direction that the applicant is entitled to a pension for the defence-caused disease of lumbar spondylosis as and from 21 May 2009. The decision of the respondent in regard to the cervical spondylosis and osteoarthritis of the left knee is affirmed.
I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member, Dr M Sullivan, Member ........................................................................
Associate
Dated 8 August 2013
Date of hearing
29 July 2013
Advocate for the Applicant
Peter Beauchamp
Advocate for the Respondent
Jeff Kelly, Departmental Advocate
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