Graham and Repatriation Commission
[2002] AATA 571
•12 July 2002
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 case as follows:
The applicant's evidence will be 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 will be 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 applicant will say 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 applicant's cervical spondylosis has been accepted as war caused by the Repatriation Commission based on the foregoing incident.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 (A1 p2):
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 [sic] 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] (Tdocs p.136). The attendance and treatment card has more detail as to the attendance on 6 September 1968. It reads as follows (Tdocs p137):
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 [2 weeks] ago. Persistent pain and limitation of movement.
The radiographic report (Tdocs p138) says "Cervical spine: No significant abnormalities."
The Repatriation Commission in its decision of 28 February 2000 (T40) 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 (Tdocs p124):
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 (Tdocs pxv):
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 case the veteran continued with his quite heavy work which included lifting stretchers and on occasions lifting such things as food stuffs which are not consistent with acute symptoms and signs of pain and tenderness as well as altered mobility or range of movement of the back. He therefore fails to satisfy that factor and there was no suggestion that any other factor applied. In addition the Board could not identify any other factor.
The basis of the VRB's conclusion that Mr Graham continued with his quite heavy work, which included lifting stretchers and other items after the incident in the swimming pool, was the apparent gap of two weeks between the incident and Mr Graham being recorded as attending at 1st Australian Field Hospital. Mr Graham told the VRB that he had been put on light duties. But he agreed with the VRB that he could not have been put on light duties until he had attended at the Field Hospital (R5 pp4-5). On each occasion when the VRB pointed out to Mr Graham that the records indicated that he did not seek medical treatment for two weeks after the incident in the swimming pool, Mr Graham replied that he did not think it was that long, but that it could be correct.
When Mr Graham gave evidence he explained that the Regimental Aid Post ("RAP") at the base was in the same building as the Field Hospital. He also explained that he was attached to 8 Field Ambulance in the same building. He said that if a person reported to a RAP they were first seen by a "medic." The medic gave minor medications or referred for further treatment from a medical officer, if he thought such treatment was required. His duties as a duty driver included picking up rations, blood runs from the American Air Base, transporting the bodies of deceased personnel to the mortuary at the American Base and transferring people for X-rays and other treatment to the American Air Base.
Mr Graham said that on the day he was injured he was in the deep end of the pool not far from the edge. A soldier jumped in from the edge of the pool and landed solidly on his head. He said he felt intense stabbing pain across the back of the neck. He said he was dazed but he got out of the pool. His neck was tender to touch and there was restriction of movement. He said he "would have got changed and gone back to the Unit". He said he was also aware of intense pain in the lower back which he described as a type of stabbing pain. He added that his back was sore to touch. He said the pain did slightly restrict his movement. He remembered that he found difficulty bending and tying up bootlaces. He said the pain in his back was there for at least two weeks and then it gradually improved. The neck pain lasted longer.
Mr Graham said that after the incident he attended at the RAP and saw the duty Sergeant. He said that he believed that the duty Sergeant suggested that he go on light duties for a couple of weeks. He said he was rostered off normal duties and put on light duties by the roster Corporal. So far as he could recall, he did things like general office duties and did not do any lifting during that period. After two weeks Mr Graham said he went back to the RAP. At that time he saw a doctor and was sent for X-rays at the American Air Base. He said he was driven by ambulance to the American base for the X-rays. The signs and symptoms in the neck, which were always more serious than those in the back, settled after the X-rays. He said the back pain had settled, but he sometimes had a nagging pain in his back which he would relieve by taking a Panadol. He said he had to be aware of looking after his back, but it was not a significant problem until he had a prolapsed disc which led to an emergency admission to Cabrini Hospital and was operated on by Mr Pullar on 25 June 2001 (A2).
Mr Graham acknowledged that there is no reference to any back injury in the T documents. He said that he recalled attending the RAP soon after the accident, but he could not recall the exact date. In cross-examination Mr Graham was asked whether he would agree that his evidence that he was put on light duties was inaccurate. Mr Purcell re-examined as to some possible discrepancies in the accounts recorded by doctors in the material before the Tribunal as to whether the onset of back pain was "immediate," or "almost immediate," or "soon after," the other soldier jumped on Mr Graham in the swimming pool. Mr Graham said he did not have a clear recollection when the pains came on. He was unable to remember whether he felt the pain straight away or soon afterwards. He acknowledged that he had trouble recalling events 35 years ago.
Mr Purcell in cross-examination put to Mr Graham that he had omitted relevant material from his statement when he had stated on 11 July 2001 that he had not suffered any injury to his back since his discharge. He referred to the medical records of Linacre Private Hospital ("Linacre") (R2) and Cabrini Hospital ("Cabrini") (R1) which show that Mr Graham had been admitted to Linacre on 1 June 2001 with acute back spasm following a slip on a ladder. The medical records of Linacre do state (page 3):
58 year old man, painter/handyman admitted with acute spasm of pain in ® buttock for 24hrs. No history of acute injury fall etc. Did slip on ladder 24hrs previously almost falling but caught foot… (emphasis added)
The medical records from Cabrini refer to Mr Graham having a four week history of back pain when admitted on 22 June 2001. The surgery took place later that month.
When Mr Graham was asked in re-examination if he could explain why there was no record of him being put on light duties, he said that he thought he saw the Sergeant in the RAP, but that perhaps the Sergeant made no record of the visit. As Mr Graham was part of the Ambulance Unit, the Sergeant might have simply asked the Corporal driver to give Mr Graham two weeks of light duties to see if that fixed the problem. Mr Graham said that he could remember being in pain on his way back to the Unit. He also said that he was unable to lift for a minimum of three weeks, and could not tie shoelaces or bend for a couple of weeks after the accident. He said he had played sport before the incident in the pool, but he did not play it afterwards in Vietnam, due to soreness and fear of getting further injury. He left Vietnam in November 1968 approximately two months after the incident in the pool.
The Tribunal must decide this matter in accordance with the approach explained by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193. The Full Court said at p206 said:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11) …
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.As to step 1, Ms Bornstein pointed to the evidence of Mr Graham as to the accident in the swimming pool. She submitted that his evidence was that at about the time of the injury he suffered signs and symptoms of acute pain, tenderness and restriction of movement in his back, as well as the documented pain in his neck, and that approximately two weeks prior to 6 September 1968 he had reported to the RAP and had informally been given two weeks on light duties. Ms Bornstein relied on the statement in Mr Pullar's medical report (A2) that an MRI scan found quite significant lumbar spondylosis, and on the MRI report attached to Mr Pullar's report which refers to multi level disc degeneration with changes being most marked at L4/5. Ms Bornstein submitted that the evidence of Mr Graham and the medical evidence raised a hypothesis that Mr Graham sustained back injury, as well as a more severe neck injury, in the incident in the pool while he was serving in Vietnam in 1968, and that the injury was the cause of the quite significant lumbar disc degeneration at L4/5.
As to step 2, it was agreed that the relevant SoP is Instrument No. 27 of 1999 and that the factor relied on by Mr Graham was factor 5(h) "suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis". The SoP includes the following definition of "trauma to the lumbar spine":
"trauma to the lumbar spine" means a discrete injury to the lumbar spine that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain and tenderness, and either altered mobility or range of movement of the lumbar spine. These acute symptoms and signs must last for a period of at least seven days following their onset save for where medical intervention for the trauma to the lumbar spine has occurred, where that medical intervention involves either:
(a) immobilisation of the lumbar spine by splinting, or similar external agent; or
(b) injection of corticosteroids or local anaesthetics into the lumbar spine; or
(c) surgery to the lumbar spine.As to step 3, Ms Bornstein submitted that the hypothesis raised is consistent with factor 5(h) of the template in the SoP. She submitted that the material before the Tribunal does raise the hypothesis of trauma to the lumbar spine. She pointed out that each of the necessary ingredients, as explained in Harris v Repatriation Commission [2000] FCA 873, was raised by the evidence of Mr Graham. Thus he described the development within 24 hours of the injury of acute symptoms and signs of pain and tenderness of the lumbar spine and of restricted range of movement of the lumbar spine, which lasted for more than a week.
Ms Bornstein referred to the decision in Arnott v Repatriation Commission [2001] FCA 262; (2001) 106 FCR 83 at paragraphs 30 and 31. Merkel J said:
In substance, Harris [[2000] FCA 1687 (Full Court); [2000] 31 AAR 270 (Finn J)] was concerned with whether there was material before the AAT that raised a case of "acute" altered mobility or range of movement for at least a week after the injury for the purposes of the 1995 SoP. However, in my view the views expressed at first instance, and on appeal, of the meaning of "acute" symptoms or signs in the sense of being "sharp", acting "keenly on the senses" or being "significant manifestations" appropriately define the word "acute" as used in both the 1995 and the 1999 SoPs. The Macquarie Dictionary definitions of "severe" connote, relevantly, a pain that is extreme or harsh. Thus, although the difference in degree may not be substantial, an "acute" pain does not necessarily equate with a "severe" pain.
Importantly for present purposes, as the AAT addressed only the question of whether the pain was "sudden" and "severe" it failed to address the question of whether the pain was "acute", as defined in Harris, which was the question required to be addressed in stage three in Deledio: see Harris at 281 per Finn J. Similarly, the AAT also erred in law in incorrectly requiring that, for a pain to be "acute" it must be "severe".
Ms Bornstein summarised the applicant's evidence (trans. p57):
In my submission, the evidence of the applicant in this matter demonstrates that the applicant sustained, within the meaning of that definition, trauma to the lumbar spine. He described his pain in the sense of it being acute. It was something he felt keenly. It was stabbing. He described feelings of tenderness in his back. And he described limited – [sic] he described limitations on his mobility, particularly by reference to the difficulties he had bending over to lace up his army boots.
As Ms Bornstein pointed out, by reference to the decision in Borrett v Repatriation Commission [2000] FCA 1829, questions of proof do not arise at step 3 of the Deledio process. Tamberlin J said at paragraph 31:
Secondly, it is evident from the reasoning that the AAT rejected the hypothesis not on the facts raised by the material, but on the facts as found by the AAT. As the last sentence of par 30 indicates, the AAT discounted evidence pointing to a reasonable hypothesis and in so doing wrongly embarked on an evaluation of the evidence at that point to decide questions of fact and degree prematurely and contrary to the statutory scheme. This view is strengthened by the AAT's treatment of evidence throughout its decision, particularly statements such as "We accept Associate Professor Mattick's opinion as to the lack of any habit of drinking": par 15. The AAT has prematurely preferred one line of expert evidence to another … .
Ms Bornstein submitted that the Tribunal would have to find that the hypothesis fits the template in the SoP. We agree. It was Mr Graham's evidence that
(i)the incident in the pool caused injury to his back as well as to his neck
(ii)that within 24 hours of the injury he was aware of an intense stabbing type of pain in the lower back
(iii)that it caused restriction of range of movement, and he was put on light duties because of the injury to the neck and back, and
(iv)that the acute symptoms and signs lasted for about two weeks in respect of the back and somewhat longer in respect of the neck
The description of the pain does satisfy the definition of an acute pain. There is evidence as to all aspects required by the definition of "trauma to the lumbar spine."
As to step 4, the question is whether the Tribunal is satisfied beyond reasonable doubt as to the inaccuracy of Mr Graham's evidence that, as a result of the incident in the swimming pool, he suffered acute signs and symptoms of pain and tenderness in the lumbar spine, as well as in the neck, and that he did not perform his normal duties for the two weeks after the accident, during which time he was informally placed on light duties.
Mr Purcell submitted that we should not regard Mr Graham as a truthful witness. He relied on minor inconsistencies in Mr Graham's account of the incident to the VRB and to this Tribunal. We do not regard these inconsistencies as significant, bearing in mind that they relate to recollection of an incident that occurred over 30 years ago. Nor do we regard Mr Graham as having been dishonest in failing to describe the incident on the ladder some weeks before his back surgery as a prior injury. Mr Purcell further suggested that in this matter we could be satisfied beyond reasonable doubt:
(i)that Mr Graham did not suffer a discrete injury to the lumbar spine
(ii)that he did not report the incident shortly after it happened, to a Sergeant medic at the RAP.
(iii)that for two weeks after the incident Mr Graham continued with his normal duties, albeit with some neck pain, until going to the RAP and seeking treatment after two weeks of persisting cervical pain.
As to (i), the requirement of a discrete injury to the lumbar spine, we cannot be satisfied beyond reasonable doubt that the person who jumped on to Mr Graham in a swimming pool in September 1968 did not land on or otherwise connect with his lumbar spine as well with his neck.
As to (ii), there is no record of Mr Graham reporting to a RAP until two weeks after the incident. Mr Graham did not suggest to the VRB that he had gone to the RAP and been put on light duties prior to the first recorded attendance at 8 Field Ambulance two weeks after the incident. He just repeated that he thought he would have gone earlier. It may be that Mr Graham has reached the conclusion that that is what he probably did, in trying to puzzle over why the records show that he did not seek treatment for two weeks, even though his memory is that he sought treatment earlier. On the other hand, it could be that Mr Graham has simply invented that explanation to cover the gap in the records. Ms Bornstein submitted that the thrust of his evidence is that although he acknowledged that his memory has faded over 35 years, he believes he reported the incident shortly after it happened. She submitted that it is not surprising that there is no treatment record. She pointed out that the dates on the sick report and the dates on the attendance cards do not exactly correlate. On 6 September there was both a sick report entry and an attendance entry, on 9 September there is only an attendance record and on 10 September only a sick report. Ms Bornstein suggested there could be a deficiency in the records. The Tribunal noticed that there are a number of other occasions when an attendance is recorded, but there is no sick report slip, eg 13/7/67, 25/6/68, 26/8/68, 28/8/68, 3/9/68. We cannot be satisfied beyond reasonable doubt that record keeping at the RAP documented every attendance there.
As to (iii) Ms Bornstein suggested that it may be that because Mr Graham worked for 8 Field Ambulance the arrangement for two weeks of light duties was made informally. We cannot be satisfied beyond reasonable doubt that that was not the situation.
It is not for the Tribunal in a matter of this nature to make findings on the balance of probabilities. Mr Graham must succeed in this application unless we are satisfied beyond reasonable doubt that his evidence as to reporting the incident to the RAP and being placed on light duties was false. We cannot make such a finding.
The decision under review will be varied to provide that lumbar spondylosis is a war-caused disease with effect from 12 January 2001. The matter will be remitted to the Repatriation Commission for reassessment of pension taking into account incapacity from lumbar spondylosis.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member and Associate Professor J.H. Maynard, Member
Signed: Grace Carney
Personal AssistantDate/s of Hearing 10 May 2002
Date of Decision 12 July 2002
Counsel for the Applicant Ms J Bornstein
Solicitor for the Applicant Williams Winter Higgs
Counsel for the Respondent Mr G Purcell
Solicitor for the Respondent Rosalinda Casamento
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