Glynn and Repatriation Commission - [2002] AATA 59

DECISION AND REASONS FOR DECISION [2002] AATA 59

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/634

VETERANS' APPEALS DIVISION          )
           Re      Walter Edward Glynn
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal M J Sassella, Senior Member

Date1 February 2002
PlaceSydney

Decision The Tribunal affirms the decision under review.
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Senior Member
CATCHWORDS
VETERANS' AFFAIRS – claim for Disability Pension – tinnitus and lumbar spondylosis – claim for bilateral sensorineural hearing loss with tinnitus accepted as war caused – back injury whilst on operational service – subsequent lumbar spondylosis found not to be war caused
Repatriation Commission v Gorton (2001) 33 AAR 370
Repatriation Commission v Williams [2001] FCA 1195
Repatriation Commission v Deledio (1998) 49 ALD 193, 206
Harris v Repatriation Commission (2000) 62 ALD 174
Arnott v Repatriation Commission (2001) 32 AAR 445

Veterans' Entitlements Act 1986 – sections 6C(1), 7(1)(a), 9(1)(a), 13(1)(b), (d), 14(1), (3), (4), 20(1), 120(1), (3), 120A(1), (3), 196B(1), (2), 196D.

Statement of Principles, No. 27/1999 concerning lumbar spondylosis

REASONS FOR DECISION

1 February 2002 M J Sassella, Senior Member

History of the application

On 3 June 1998 Walter Edward Glynn ("the Applicant") lodged a formal claim form with the Department of Veterans' Affairs ("the DVA") for Disability Pension in respect of tinnitus and lumbar spondylosis (T4). It was his contention that these conditions were caused by his army service.
On 26 October 1998 the Repatriation Commission ("the Respondent") accepted the Applicant's claim for bilateral sensorineural hearing loss ("BSHL") with tinnitus but refused the claim for lumbar spondylosis (T6). The Respondent found no evidence of trauma to the lumbar spine that may have caused this latter condition and no history of lumbar intervertebral disc prolapse. There were no other factors that met the minimum requirements of the relevant Statement of Principles ("SoP"). The Applicant was granted a Disability Pension at 30% of the general rate with date of effect being 3 March 1998.
On 17 November 1998 the Applicant lodged an application for review of this decision with the Veterans' Review Board ("the VRB") (T9).
On 5 January 1999 the DVA wrote to the Applicant informing him that it had decided not to conduct a review of his case pursuant to s 31 of the Veterans' Entitlements Act 1986 ("the Act") (T12). It was noted that the Applicant's only period of operational service was from 8 October 1955 to 31 August 1957 in Malaya. The Applicant was also notified that eligible service as defined by the Act cannot commence before 7 December 1972.
The decision under review

On 8 March 2000 the VRB affirmed the decision under review, refusing to accept that the Applicant's lumbar spondylosis was service-related (T14). It was the Applicant's contention that the he had suffered trauma to the lumbar spine when he fell 10-15 feet to the ground while in Malaya on operational service. The Applicant stated that it had taken about four to five days for his back to show any signs of improvement and that after 10…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Glynn and Repatriation Commission

Details

AGLC: Glynn and Repatriation Commission [2002] AATA 59
Case: [2002] AATA 59
Decision Date: 1 February 2002

CaseChat Overview and Summary

In the case of Repatriation Commission v Gorton, the applicant, a former member of the Australian Defence Force, sought a Disability Pension on the basis of lumbar spondylosis and bilateral sensorineural hearing loss with tinnitus. The primary legal issue before the court was whether the applicant's lumbar spondylosis was caused by his military service and therefore qualified as a war-caused injury under the Veterans' Entitlements Act 1986.

The court examined the evidence provided by the applicant and the relevant provisions of the Act and the Statement of Principles concerning lumbar spondylosis. The applicant claimed that his lumbar spondylosis was caused by a fall during his service in Malaya, which he alleged resulted in trauma to his lumbar spine. However, the court found that the applicant did not seek medical treatment for his back while in the army and only mentioned the fall in a letter dated 9 November 1998. The court also noted that the applicant identified the cause of the condition as being the lifting of heavy loads, including mortar parts and Bren guns, on his original claim form.

Based on the evidence and the applicable legal framework, the court determined that the applicant's lumbar spondylosis was not war-caused because the trauma from the alleged fall did not meet the requirements of the Statement of Principles. Specifically, the pain did not last for seven days, as required by the Statement of Principles. The court affirmed the decision of the VRB to refuse the applicant's claim for a Disability Pension in relation to his lumbar spondylosis.

The court's decision focused on the need for clear and consistent evidence connecting the applicant's condition to his military service, in accordance with the legal requirements set out in the Act and the Statement of Principles. The applicant's failure to provide timely and consistent evidence of the cause of his lumbar spondylosis led the court to conclude that it was not war-caused, and therefore not eligible for a Disability Pension under the Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

After his discharge from the army the Applicant worked for eight years as a training manager at Mercke Sharpe and Dohme, a pharmaceutical company. The Applicant subsequently worked at the Sydney Teachers' College between 1979 and 1994. He then worked for two years as a teacher and since 1997 has worked as a casual lecturer at the University of New South Wales and the University of Sydney (Ex R1).Documentary medical and other evidence The Tribunal notes that there is no issue as to diagnosis in this matter. The Applicant suffers from lumbar spondylosis (Ex A4; Ex R5). Therefore the Tribunal will not concentrate on materials addressing and confirming a diagnosis, but will attempt to restrict itself in this matter to the probable cause and effects of this condition. On 3 April 1978 a medical board examination record noted the Applicant's spine as "normal" (T3/8). On the formal claim form dated 3 June 1998 (T4) the Applicant stated that his "disc degeneration" was "caused by lifting and carrying heavy loads including 3 inch mortar components and machine guns. Aggravated by age." He further stated that the sciatica caused by his back problems "created difficulties [at work] until [he] learned to control the problem with drugs." On 6 May 1998 Dr Bentivoglio, orthopaedic surgeon, reported on the Applicant (T4/44). He noted the Applicant's history of low back pain and that there was also pain radiating down his left lower limb to the calf region. Dr Bentivoglio further noted a "good range of movement in his low back region" however a CT scan revealed the presence of degenerative changes in the lumbar spine. Symptoms would continue "both in the near and distant future." On 28 July 1998 Dr Patroulias, a general practitioner, completed a medical DVA medical impairment assessment form in relation to the Applicant's lumbar spondylosis (T5). He noted that the Applicant has to sit down after 10 minutes of standing otherwise the pain becomes intolerable. Dr Patroulias further noted a minor loss of range of movement in the Applicant's thoracolumbar spine. The Applicant suffered sciatica, mostly in the left leg. On 9 November 1998 the Applicant wrote a letter to the Respondent in support of his application for Disability Pension (T7). He felt that his back condition was directly attributable to his service as a soldier, specifically due to having to carry heavy equipment such as Bren guns and 2 inch mortars during his service in Malaya. He stated that, "if one had a sore back, you did not 'whinge' about it, you took a couple of aspirin and got on with the job." The Applicant first noticed his back problem four months after his retirement from the army. He was forced from work because of back pain. Further he stated:"My contention is that this degeneration [of the lumbar spine] occurred as a direct result of my military service and did not manifest itself until after I had left the service. It would not be possible for the discs to degenerate in the short period between the conclusion of my military service and four months from the date. I was only 44 years of age when I resigned my commission."

Decision

Reasons for decision

On 5 January 1999 the DVA wrote to the Applicant informing him that it had decided not to conduct a review of his case pursuant to s 31 of the Veterans' Entitlements Act 1986 ("the Act") (T12). It was noted that the Applicant's only period of operational service was from 8 October 1955 to 31 August 1957 in Malaya. The Applicant was also notified that eligible service as defined by the Act cannot commence before 7 December 1972.The decision under review On 8 March 2000 the VRB affirmed the decision under review, refusing to accept that the Applicant's lumbar spondylosis was service-related (T14). It was the Applicant's contention that the he had suffered trauma to the lumbar spine when he fell 10-15 feet to the ground while in Malaya on operational service. The Applicant stated that it had taken about four to five days for his back to show any signs of improvement and that after 10 days it did not greatly worry him. The VRB noted that the Applicant did not seek any medical treatment for his back while in the army. He first sought treatment for the injury some four months after leaving the service and 20 years after the injury occurred. There was other medical evidence before the VRB that the Applicant was treated for a range of conditions while in the army, but never for a back injury or back pain. Further, the VRB noted that on the original claim form the Applicant had identified the cause of the condition as being the lifting of heavy loads, including mortar parts and Bren guns. The Applicant first mentioned the falling incident in a letter dated 9 November 1998. The VRB was ultimately satisfied beyond a reasonable doubt that the trauma arising from the injury did not meet the requirements of the SoP, in particular because the pain did not last for seven days. The Applicant lodged an application for review of this decision with the Administrative Appeals Tribunal ("the Tribunal") on 27 April 2000 (T1)Relevant legislation The relevant provisions from the Act are: sections 6C(1), 7(1)(a), 9(1)(a), 13(1)(b), (d), 14(1), (3), (4), 20(1), 120(1), (3), 120A(1), (3), 196B(1), (2), 196D.Veterans' Entitlement Act 1986…6C Operational service - post World War 2 service in operational areas (1)Subject to this section, a member of the Defence Force who has rendered continuous full-time service in an operational area as: (a) a member who was allotted for duty in that area; or (b)a member of a unit of the Defence Force that was allotted for duty in that area; is taken to have been rendering operational service in the operational area while the member was so rendering continuous full-time service.…7 Eligible war service(1) Subject to subsection (2), for the purposes of this Act:(a)a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; and…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;…Part II - Pensions, Other than Service Pensions, for Veterans and their DependantsDivision 1 - InterpretationTable of Provisions…Division 2 - Eligibility for pension13 Eligibility for pension(1) Where: …(b)a veteran has become incapacitated from a war-caused injury or a war-caused disease;the Commonwealth is, subject to this Act, liable to pay:…(d)in the case of the incapacity of the veteran—pension by way of compensation to the veteran;in accordance with this Act.…14 Claim for pension(1)Subject to subsection (2), a veteran, or a dependant of a deceased veteran other than a reinstated pensioner, may make a claim for a pension in accordance with subsection (3).Note 1: some dependants do not have to make a claim (see section 13A).Note 2: if it is uncertain whether a person is a dependant and as a result a pension is not payable to the person under section 13A, the person may make a claim for the pension under section 14. The Commission will determine whether the person is entitled to be granted a pension (see subsection 19 (3)).…(3) A claim for a pension:(a)shall be in writing and in accordance with a form approved by the Commission;(b)shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and(c)shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b).(4)Subsection (3) shall not be taken to impose any onus of proof on a claimant or to prevent a claimant from submitting evidence in support of the claim subsequently to the making, but before the determination, of the claim.…20 Dates of effect that may be specified in respect of grant of claim for pension(1)Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, specify as a date that a determination under subsection 19(3) takes effect in respect of the claim, a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14 (3) (a) was received at an office of the Department in Australia.…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.…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).…(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.…196B Functions of Authority(1) This section sets out the functions of the Repatriation Medical Authority.Determination of Statement of Principles(2)If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:(a) operational service rendered by veterans; or(b)peacekeeping service rendered by members of Peacekeeping Forces; or(c) hazardous service rendered by members of the Forces;the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:(d) the factors that must as a minimum exist; and(e)which of those factors must be related to service rendered by a person;before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.Note 1: For sound medical-scientific evidence see subsection 5AB (2).Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).Note 3: For factor related to service see subsection (14).196D Disallowable instrumentA determination of the Repatriation Medical Authority under section 196B is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.…Statement of Principles concerning LUMBAR SPONDYLOSIS (No. 27/1999)ICD-9-CM CODES: 721.3, 721.42, 722.52…Kind of injury, disease or death2. (a) This Statement of Principles is about lumbar spondylosis anddeath from lumbar spondylosis.(b) For the purposes of this Statement of Principles, "lumbarspondylosis" means degenerative changes affecting the lumbarvertebrae and/or intervertebral discs, causing local pain andstiffness and/or symptoms and signs of lumbar cord, cauda equinaor lumbosacral nerve root compression, attracting ICD-9-CM code721.3, 721.42 or 722.52.…Factors that must be related to service4. Subject to clause 6, at least one of the factors set out in clause 5 must berelated to any relevant service rendered by the person.Factors5. The factors that must as a minimum exist before it can be said that areasonable hypothesis has been raised connecting lumbar spondylosis ordeath from lumbar spondylosis with the circumstances of a person'srelevant service are:… (h) suffering a trauma to the lumbar spine before the clinical onset oflumbar spondylosis; or…8. For the purposes of this Statement of Principles:…"ICD-9-CM code" means a number assigned to a particular kind of injuryor disease in the Australian Version of The International Classification ofDiseases, 9th revision, Clinical Modification (ICD-9-CM), effective dateof 1 July 1996, copyrighted by the National Coding Centre, Faculty ofHealth Sciences, University of Sydney, NSW, and having ISBN 0 64224447 2;…"relevant service" means:(a) operational service; or(b) peacekeeping service; or(c) hazardous service;…"trauma to the lumbar spine" means a discrete injury to the lumbarspine that causes the development, within 24 hours of the injury beingsustained, of acute symptoms and signs of pain and tenderness, and eitheraltered mobility or range of movement of the lumbar spine. These acutesymptoms and signs must last for a period of at least seven days followingtheir onset save for where medical intervention for the trauma to thelumbar spine has occurred, where that medical intervention involveseither:(a) immobilisation of the lumbar spine by splinting, or similar externalagent; or(b) injection of corticosteroids or local anaesthetics into the lumbarspine; or(c) surgery to the lumbar spine.Application9. This Instrument applies to all matters to which section 120A of the Actapplies.Dated this Twenty-fifth day of February 1999

Ratio Decidendi

Legal Principle Established

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