Graham and Repatriation Commission (Veterans' entitlements) - [2019] AATA 1568

Graham and Repatriation Commission (Veterans' entitlements) [2019] AATA 1568 (28 June 2019)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2015/6140
Re:Suzanne Graham
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Senior Member M J McGrowdie
Date:28 June 2019
Place:Sydney

The determination of the Veterans’ Review Board dated 19 August 2015 that affirmed a determination of the Respondent dated 4 September 2013 is set aside and, in substitution a determination is made that the Applicant’s claimed lumbar spondylosis and osteoarthritis of the hips were Defence-caused and related to her military service whereas the Applicant’s claimed conditions of cervical and thoracic spondylosis are not so related.
.............................[SGD]...........................................
Senior Member M J McGrowdie
CATCHWORDS
VETERANS’ AFFAIRS – Army service for approximately 11 years – claim for cervical, thoracic and lumbar spondylosis and osteoarthritis of the hips – being overweight/obese claimed to have been related to these conditions – where being overweight/obese was connected to service – being engaged in activities involving extreme forward flexion claimed to be related to the lumbar spondylosis and connected to service – decision set aside and substituted
LEGISLATION
Veterans’ Entitlements Act1986 (Cth) ss 120B, 196B
CASES
Kattenberg v Repatriation Commission [2002] FCA 412
Knight v Repatriation Commission [2010] FCR 1134
SECONDARY MATERIALS
Statement of Principles concerning Cervical Spondylosis, No. 67 of 2014
Statement of Principles concerning Lumbar Spondylosis, No. 63 of 2014
Statement of Principles concerning Osteoarthritis, No. 14 of 2010
Statement of Principles concerning Thoracic Spondylosis, No. 65 of 2014
REASONS FOR DECISION
Senior Member M J McGrowdie
28 June 2019
INTRODUCTION

The Applicant, Suzanne Graham, served in the Australian Regular Army (“the Army”) from 1979 to 1990 and seeks a review of a decision of the Veterans’ Review Board which affirmed that the claimed conditions in relation to cervical, thoracic and lumbar spondylosis, and osteoarthritis of the hips, were not related to her military service.
She was 17 years old when she joined the Army and was engaged in a variety of office-based roles. After basic training, she was engaged in numerous physical activities including sports, training and marches. She was required to lift files and pay boxes, which was at times a regular activity.
The Applicant claims that her lumbar spondylosis was related to the cumulative effects of engaging in activities involving extreme forward flexion. She also claims that weight problems and her cervical, thoracic and lumbar spine spondylosis, as well as osteoarthritis of the hips, were related to her service.
When the Applicant joined the service she weighed 67 kg and was recorded as 165 cm in height. She had come straight from living at home with her parents to Army barracks on enlistment, and began dining in the mess. Her weight rapidly rose and she generally remained overweight for the balance of her service even though she moved into married quarters in January 1987 and became responsible for her own cooking.
There is no real issue that the Applicant was overweight for most of her 11 year service. Being overweight can…

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.

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Details

Case: [2019] AATA 1568
Decision Date: 28 June 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the appeal of Graham (the Applicant) against a decision of the Repatriation Commission (the Respondent) concerning claims for service-related conditions. The Applicant sought entitlement for cervical, thoracic, and lumbar spondylosis, and osteoarthritis of the hips, arguing that being overweight or obese was connected to her army service and, in turn, contributed to these conditions. Specifically, the Applicant contended that activities involving extreme forward flexion during her service were related to her lumbar spondylosis.

The primary legal issues before the Tribunal were whether the Applicant's conditions of cervical, thoracic, and lumbar spondylosis, and osteoarthritis of the hips, were related to her army service. This involved determining whether the specific factors outlined in the relevant Statements of Principles (SOPs) were met, particularly concerning the connection between being overweight/obese and service, and the role of activities involving extreme forward flexion in the development of lumbar spondylosis. The Tribunal also had to consider whether a temporal connection between being overweight and the onset of osteoarthritis was sufficient, or if a causal connection to service was required.

The Tribunal reasoned that for osteoarthritis of the hips, the relevant SOP factor required being overweight for at least 10 years before the clinical onset. While there was agreement that the Applicant was generally overweight for most of her service and likely met the 10-year requirement, the Respondent argued there was no causal connection to her service. The Tribunal noted that Dr Harrex provided an opinion that being overweight for the requisite period contributed to the osteoarthritis, but this did not directly address whether being overweight was related to her service. The Tribunal also considered the relevance of activities involving extreme forward flexion to lumbar spondylosis, noting this factor was present in the SOP for that condition but not for the others claimed. The Tribunal reviewed oral and written evidence, including medical reports and the Applicant's own statements and weight chart, to assess these connections.

The Tribunal set aside the Respondent's decision and substituted its own decision, finding that the Applicant was entitled to benefits for her claimed conditions.

Orders

Orders of the court

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Background

Background to the litigation

The relevance of activities involving extreme forward flexion to the lumbar spondylosis condition is that such activities are identified in the SOP for lumbar spondylosis but this factor does not appear in the SOPs for the other conditions claimed.BACKGROUND Oral evidence was given in the proceedings by the Applicant, Dr Breit, Dr Volker and Dr Harrex. In addition to the Applicant’s oral evidence, there were five written statements respectively dated 18 April 2016 and August 2015 (three), and 15 December 2016 as well as a Statutory Declaration dated 7 June 2014 from the Applicant. Further, the Applicant compiled a weight chart which contains her recorded weight levels during service as well as estimates of her weight post-service, up to the time she had gastric banding surgery in December 2012. The Applicant’s Statutory Declaration explains how she arrived at estimates of her weight in certain periods. All of these documents became Exhibit A4. The document dated 15 December 2016 identifies activities which the Applicant asserts are consistent with satisfying the factor concerning activities involving extreme forward flexion contained in the SOP for lumbar spondylosis. OSTEOARTHRITIS OF THE HIPS The SOP for osteoarthritis (No. 14 of 2010, which, although since amended, makes no relevant changes) sets out that the Repatriation Medical Authority is of the view that it is more probable than not that osteoarthritis can be related to relevant services if one of the factors contained in paragraph 6 applies. Factor 6(n)(i) which applies to osteoarthritis of a joint of the lower limb was accepted by the parties as being the relevant factor in this matter with regard to the Applicant’s hip condition and which applies to “being overweight for at least 10 years before onset.” The parties were agreed that the date of clinical onset was 3 July 2007 when an X-ray was done. Accordingly, if there is a period of 10 years before clinical onset the factor can be satisfied. Whilst there is general agreement that the Applicant was generally overweight for most of her 11 year service and would satisfy the 10 year requirement, the Respondent submitted that although there was a temporal connection, there was not a causal connection to her service. The Respondent relied on the oral evidence of Dr Breit that the claimed osteoarthritis of the hips was largely constitutional and that that was supported by the literature. Dr Breit prepared two medical reports for the Respondent being reports of 22 February 2017 and 29 August 2017. Dr Harrex also gave evidence. He provided a report dated 23 August 2016. Dr Harrex has had considerable experience in relation to service matters and the application of the SOPs. In his report of 23 August 2016, Dr Harrex expressed the opinion that there is evidence that being overweight for this period of 10 years contributed to osteoarthritis of her hips. This does not, of course, address the question of whether being overweight was related to her service in the Army but I will come to that shortly.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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