Graham and Repatriation Commission - [2002] AATA 571

DECISION AND REASONS FOR DECISION [2002] AATA 571

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V01/848

VETERANS' APPEALS DIVISION       )
           Re       PETER GRAHAM
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member Associate Professor J.H. Maynard, Member

Date12 July 2002
PlaceMelbourne

Decision      The Tribunal varies the decision under review to provide that (i)       lumbar spondylosis is a war-caused disease with effect from 12 January 2001. (ii) the matter is remitted to the Repatriation Commission for reassessment of the rate of pension payable taking into account incapacity resulting from lumbar spondylosis.
  (Sgd) Joan Dwyer
  Senior Member
VETERANS' AFFAIRS – lumbar spondylosis – whether a war-caused disease –
operational service – injury in a swimming pool – whether injury to lumbar spine –
whether requirements of Statement of Principles were raised by the evidence before the Tribunal – decision varied

Veterans' Entitlements Act 1986 ss 6C, 19(7)

Statement of Principles Instrument No. 27 of 1999

Repatriation Commission v Deledio (1998) 49 ALD 193

Harris v Repatriation Commission [2000] FCA 873

Arnott v Repatriation Commission [2001] FCA 262; (2001) 106 FCR 83

Borrett v Repatriation Commission [2000] FCA 1829

REASONS FOR DECISION

12 July 2002 Mrs Joan Dwyer, Senior Member
Associate Professor J.H. Maynard, Member

This is an application under the Veterans' Entitlements Act 1986 ("the Act") for review of a decision of the Repatriation Commission made 28 February 2000 which refused Mr Graham's claim for acceptance of lumbar spondylosis and bilateral open-angle glaucoma as war-caused diseases under the Act. That decision was affirmed by the Veterans' Review Board ("the VRB") on 24 January 2001.
The applicant's Statement of Facts and Contentions, advised that the claim for bilateral open-angle glaucoma was not being pursued. Thus the only issue before the Tribunal is whether lumbar spondylosis should be accepted as a war-caused disease and if so, the assessment of pension taking that condition into account. Under s 19(7) of the Act, there is an obligation on acceptance of a further condition to reassess pension in respect of previously accepted conditions and the newly accepted condition. Ms Bornstein submitted that it was appropriate in the circumstances to remit the assessment issue to the Repatriation Commission if the condition of lumbar spondylosis was accepted as war-caused.
Ms J. Bornstein of Counsel appeared for Mr Graham. Mr G. Purcell of Counsel appeared for the Repatriation Commission. The only witness to give evidence at the hearing was Mr Graham. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and also the exhibits tendered during the hearing.
There is no dispute about the fact that Mr Graham served in the Australian Army from 1 February 1967 to 31 January 1969 and that his service included a period of operational service, as defined in s 6C of the Act, in Vietnam from 5 December 1967 to 9 November 1968. The applicant's Statement of Facts and Contentions put his…

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 Graham and Repatriation Commission

Details

AGLC: Graham and Repatriation Commission [2002] AATA 571
Case: [2002] AATA 571
Decision Date: 12 July 2002

CaseChat Overview and Summary

This is an appeal under the Veterans' Entitlements Act 1986 (the Act) for review of a decision of the Repatriation Commission made 28 February 2000 which refused Mr Graham's claim for acceptance of lumbar spondylosis and bilateral open-angle glaucoma as war-caused diseases under the Act. The decision was affirmed by the Veterans' Review Board (the VRB) on 24 January 2001. The applicant's Statement of Facts and Contentions, advised that the claim for bilateral open-angle glaucoma was not being pursued. Thus the only issue before the Tribunal is whether lumbar spondylosis should be accepted as a war-caused disease and if so, the assessment of pension taking that condition into account. Under s 19(7) of the Act, there is an obligation on acceptance of a further condition to reassess pension in respect of previously accepted conditions and the newly accepted condition. Ms Bornstein submitted that it was appropriate in the circumstances to remit the assessment issue to the Repatriation Commission if the condition of lumbar spondylosis was accepted as war-caused.

The Tribunal varied the decision under review to provide that lumbar spondylosis is a war-caused disease with effect from 12 January 2001. The matter was remitted to the Repatriation Commission for reassessment of pension taking into account incapacity from lumbar spondylosis.

The Tribunal found that there is no dispute about the fact that Mr Graham served in the Australian Army from 1 February 1967 to 31 January 1969 and that his service included a period of operational service, as defined in s 6C of the Act, in Vietnam from 5 December 1967 to 9 November 1968. The Tribunal found that the applicant's evidence was that he suffered injury to his neck and back in an accident in a swimming pool whilst he was based with the 8 Field Ambulance at Vung Tau. His evidence was that he was in the swimming pool when a soldier jumped in and landed on him. The applicant will say that he was immediately aware of pain in the neck and back and that he had not suffered symptoms in the neck or back prior to that accident. The Tribunal found that the applicant's evidence was that he immediately left the swimming pool following the accident because of his neck and back pain. He sought medical treatment for both the neck and the back soon afterwards. At that stage the symptoms affecting his neck were more severe than the back and certainly it is the applicant's recollection that the doctors concentrated on the neck symptoms at that time. The applicant recalls being taken to the US Hospital where x-rays were taken of his neck. He cannot recall one way or the other whether x-rays were also taken of his back at that stage.

The Tribunal found that Mr Graham had also made a statement dated 11 July 2001. In the statement Mr Graham set out the matters repeated in his Statement of Facts and Contentions and added:Notwithstanding that my neck pain in 1968 was a more immediate concern at that stage, the fact is that I also suffered acute back pain at the time. I recall that I had trouble bending and, for instance, I can recall difficulty bending to tie my shoelaces following the incident because of restriction of movement in my low back. I recall that I was placed on light duties after the accident so that I did not have to undertake any strenuous duty such as stretcher baring or lifting weight such as ration supplies for a period. I cannot recall for how long I was on light duties but it was more than 1 week. My back (and neck) symptoms gradually settled after the accident. In so far as the back is concerned I eventually came to suffer ongoing intermittent low back pain which was aggravated from time to time by activity. The symptoms in my neck remained constant. I have suffered ongoing intermittent low back pain ever since the accident and was still suffering those symptoms at the time of my discharge. I do not recall whether I mentioned back pain at my discharge medical examination (or for that matter whether I mentioned neck pain at that stage). Certainly at that time my low back symptoms were intermittent and I expected that I would make a spontaneous recovery with time.

The T documents before us include medical records relating to the incident in the swimming pool. At pages 136, 137 and 138 there are copies of service medical records showing that Mr Graham presented to 1st Field Hospital, to which he was attached as an ambulance driver, on 6 September 1968 and then again on 10 September 1968. On 10 September 1968 the sick report sets out the diagnosis as "neck pain" and his disposal as "RTU" (Return to Unit). The attendance and treatment card has more detail as to the attendance on 6 September 1968. It reads as follows:Somebody jumped on his head as he was surfacing out the swimming pool Õ [producing] limitation of movement of neck + pain. Persisted now for 2/52. OE Moderate limitation of all cervical movements. Xray. There is also an entry in the notes for 9 September 1968. It says "still c/o [complains of] neck pain o/e [on examination] tender over muscles for dencorub." The T documents, page 138, also include a referral for X-ray views of the cervical vertebral column on 6 September 1968 with a description of the incident as follows:Body jumped on top of his head as he was coming to surface of swimming pool – 2/52 ago. Persistent pain and limitation of movement. The radiographic report says "Cervical spine: No significant abnormalities."

The Repatriation Commission in its decision of 28 February 2000 refused the claim for lumbar spondylosis on the basis that the claim had to be determined in accordance with the Repatriation Medical Authority (RMA) Statement of Principles (SoP) Instrument No. 27 of 1999, and none of the relevant factors were raised on the material before the Repatriation Commission. The only factor of relevance to this application is "trauma to the lumbar spine." The Repatriation Commission wrote:Trauma means any type of discrete physical injury such as a hit, blow, knock, twisting, bending or crushing injury. There is no history of such a trauma to the lumbar spine.

The VRB in its decision of 24 January 2001, concluded:The evidence to the Board was that the veteran had injured his back at the same time he injured his neck in a swimming pool and had had intermittent pain ever since. The definition of trauma to the lumbar spine however requires altered mobility or range of movement of the lumbar spine for at least seven days following the injury. In this

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