Green and Repatriation Commission

[2007] AATA 1178

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1178

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N 200600377

VETERANS' APPEALS DIVISION		)
Re		THELMA GREEN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Senior Member M D Allen

Dr M E C Thorpe, Member

Date of Decision  14 March 2007

Date of Written Reasons              27 March 2007

Place  Sydney

DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is affirmed.

(Sgd) M.D. ALLEN
  ...........................................
  Presiding Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – whether condition of lumbar spondylosis is war-caused – Applicant served in the Women’s Australian Air Force during the Second World War – applicable SoP No. 78 of 2002 – Applicant contends that her lumbar spondylosis was caused by her lifting heavy navigational equipment during her war service – deficiency of evidence as to the exact weights lifted by the Applicant – Tribunal not reasonably satisfied that Applicant has met the criteria as set out in the relevant factor of the SoP – decision under review affirmed

Veterans’ Entitlements Act 1986 – s 119, 120B, 140(A)

Repatriation Commission v Smith (1987) 15 FCR 327

Briganshaw v Briganshaw (1938) 60 CLR 336

REASONS FOR DECISION

27 March 2007 Senior Member M D Allen
Dr M E C Thorpe, Member            

1.      At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally.  After service upon the Applicant and Respondent of a copy of the decision that was in fact made, the Applicant pursuant to sub-section 43(2A) of the Administrative Appeals Act 1975, requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3.      The said transcript is annexed thereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal’s decision.

I certify that this and the three preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen

Signed:     [Amanda Aitken]            .....................................................................................

Associate

Date of Hearing  14 March 2007
Date of Decision  14 March 2007
Date of Written Reasons                   27 March 2007

Solicitor for the Applicant                   Legal Aid Commission of NSW

Counsel for the Applicant                   Ms E Wood

Representative for the Respondent   Department of Veterans’ Affairs Advocacy Section

DRAFT DECISION  
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2006/377

By MR M.D. ALLEN, Senior Member
DR M. THORPE, Member

GREEN and REPATRIATION COMMISSION
SYDNEY, WEDNESDAY, 14 MARCH 2007

MR ALLEN:   By application made the 6^th day of April 2006 the applicant sought review of a decision by the respondent which refused a claim for lumbar spondylosis.  There is no dispute that the applicant served in the Women’s Australian Air Force during the period of the Second World War, namely from or about 11 April 1942 until 16 July 1946.  For the majority of that time she was engaged in stores type work at Rathmines which one knows was a base for sea planes.

As the applicant had war service but did not have operational service the standard of proof in this matter is that mandated by subsection 4 of section 120 of the Veterans’ Entitlements Act 1986 which states inter alia that the Tribunal is to decide this matter to its reasonable satisfaction. As was pointed out by the Full Court of the Federal Court in Repatriation Commission v Smith 15 FCR 327; the term “reasonable satisfaction” equates to proof on the balance of probabilities.

Subsection 120B of the Veterans’ Entitlements Act 1986 provides that the Tribunal may only be satisfied of the matter to its reasonable satisfaction if material complies with a so-called Statement of Principles (SOP). In this matter the applicable Statement of Principles is number 78 of 2002 which although it was and is not the Statement of Principles in force at the date of the decision of either the Veterans Review Board or of this Tribunal, it was the SOP in force at the time of the decision of the respondent, and is more beneficial to the veteran, and consequently it is the applicable SOP.

The factor which was relied upon by the applicant was paragraph 5(i), which states the factor connecting an applicant’s lumbar spondylosis with their war service is, “the carrying or lifting of loads of at least 35 kilograms while weight bearing to a cumulative total of at least 168,000 kilograms within any 10 year period before the clinical onset of lumbar spondylosis” and where the clinical onset of lumbar spondylosis occurs within 25 years following that period.  As stated, the applicant was discharged from the Women’s Australian Air Force on 16 July 1946.  The history of the applicant’s service was given by her in the course of her evidence and except on some key points was not challenged.

Indeed, it can be stated quite unequivocally that at no time in these proceedings has the credibility of the applicant been called into question.  The history, as given by the applicant, to this Tribunal is that after an initial period of recruit training she was posted to Rathmines as a store keeper and during the course of her service, on 1 March 1943, she was promoted to the rank of Corporal and then on 1 April 1944 to the rank of Sergeant.  There was some suggestion on the part of reports obtained on behalf of the respondent that following her promotion the physical work which she undertook would have been lessoned.  We accept the applicant’s evidence, however, that there was a shortage of staff at Rathmines and that all promotions to higher ranks involved was extra duties such as duty officer devolved upon her but she was by no means excused the lifting duties.

The task in the particular group to which she was assigned was, having received navigational instruments once they had been taken out of an aircraft which had come to Rathmines for maintenance, was to pack those instruments in a particular box and then forward them on to the Qantas depot at Rose Bay in Sydney and then later to receive them back.  She said, in evidence, that some of the equipment weighed some 30 to 40 pounds (her estimate), and the boxes in which they were packed were just as heavy, being wooden boxes, in some cases heavier than the instruments themselves.

She was required to work seven days a week and there were very few periods when there was time off.  She would lift heavy equipment four to five times a day during the course of the war and later, after the cessation of hostilities, her lifting duties increased because more aircraft were coming in for maintenance.  There were no mechanical aids to assist her lifting and quite frequently after lifting heavy equipment remarks would be made by her and other of her comrades as to the soreness of their backs.  In cross-examination she agreed that, at the time she was in the WAAF, she weighed about 110 pounds.  She also gave evidence that prior to service she had worked as a stenographer.  That is to say she didn’t undertake any hard physical work and after service she again returned to secretarial work, being employed by Qantas.

She complained of backache not long after service but suffice it to say that during the 1960s she attended her general practitioner who sent her for x-rays.  Very properly the respondent did not challenge the applicant’s evidence that in the 1960s her then general practitioner, now deceased, sent her for x-rays regarding her complaint of back pain, that that GP proscribed medication and advised her to use a lumbar support.  It can be assumed, therefore, that the clinical onset of her lumbar spondylosis dates from the signs and symptoms complained of in the 1960s. 

The applicant, as stated, has implicated the heavy lifting she undertook while serving at Rathmines in the causation of her lumbar spondylosis.  This submission as to causation finds support in the report of Dr Ashwell, Orthopaedic Surgeon.  Dr Ashwell actually first saw the applicant in 1986 on referral of her general practitioner.  However, in his later report, dated 26 June 2006, he states:

           She suffers from lumbosacral spondylosis which is primarily age-related

and it may be due to repetitive heavy lifting in previous years.

Unfortunately causation was not an issue in 1986 so Dr Ashwell’s earlier report doesn’t refer to that aspect. However, given the report of Dr Ashwell of 26 June 2006 and the undoubted logic of the series of events, including the complaints and treatments in the 1960s, we are satisfied on the balance of probabilities that the lifting undertaken by the applicant whilst in the Air Force materially contributed to her lumbar spondylosis. Unfortunately that is not the standard to be applied here. The state of reasonable satisfaction on the evidence is modified by section 120B and requires conformity with a so called Statement of Principles. In this case, the Statement of Principles is a crude instrument so far as it relates to weights lifted and makes no distinction between male or female nor is any allowance made for weight and build.

The applicant’s evidence was that she regularly, that is to say four to five times a day at least, lifted equipment weighing 35 pounds and even more when placed in boxes for transportation.  The boxes being, and she put it “heavier than the instruments”.  The Statement of Principles refers to weights of 35 kilograms at least and on the respondent’s mathematics, which were not challenged, 35 kilograms equals some 70 pounds approximately. 

Now, the weights lifted by the applicant cannot be ascertained.  In a report from the Writeway Research Organisation, the author of the report states at paragraph 6, thereof, “specification of wartime aircraft equipment are not readily available, however, it is conceded that some individual items of equipment mentioned may have weighed more than 35 kilograms, but no definitive statement can be made to either refute or sustain the assertion”.  Then at paragraph 13 of the report it is stated:

It is possible that some individual equipment items and associated protective packaging may have exceeded 35 kilograms in total weight.

The applicant agreed that at the time of discharge she weighed 110 pounds.  The respondent made the submission supported by the report of Dr Wallace, Orthopaedic Surgeon, that it is unlikely that the applicant was able to lift three quarters of her own body weight.  She said that she could but at this time it is impossible to test and would seem unlikely.  The Tribunal concedes that Dr Wallace, in his report, referred to lifting repetitively and that is not a requirement of the SOP but he does make the assertion that it is unlikely that the applicant would be able to lift a weight of 35 kilograms on her own given her then body weight.

There is a distinct dearth of evidence as to the weights lifted by the applicant. Counsel for the applicant referred to section 119 of the Veterans Entitlements Act 1986 which states at paragraph H:

Without limiting the generality of the forgoing, the Tribunal shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:

(i)the effects of the passage of time including the effect of the passage of time on the availability of witnesses;  and

(ii)the absence of or a deficiency in relevant official records including an absence or deficiency resulting from the fact that an occurrence that happened during the service of the veteran was not reported to the appropriate authorities.

However, subsection 119 and, in particular, subsection 119H does not permit suspicion and conjecture to be put in the place of evidence.  The Tribunal must be reasonably satisfied as to the applicant’s claim, as discussed in the Full Court decision of Repatriation Commission v Smith supra.  In the judgment of Beaumont J, reference was made to the well known case of Briganshaw v Briganshaw (1938) 60 CLR 336 and the judgment of Dixon J (as he then was). The passage quoted by Beaumont J reads:

It is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the Tribunal but reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved.  The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given discretion or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question, whether the issue has been proved to the reasonable satisfaction of the Tribunal.  In such matters reasonable satisfaction should not be produced by inexact proofs in definite testimony or indirect references.

Beaumont J went on to quote from the 3^rd edition of Cross on Evidence, the relevant passage simply stating that, “Satisfaction and the balance of probabilities refers to satisfaction of a prescribed level of probability.”  In this matter, as stated above, there is a dearth of information and we cannot be reasonably satisfied that the applicant has met the criteria as set out in subclause 5(i) of the Statement of Principles.  Consequently, the decision under review is affirmed. 

______________________