Greentree and Repatriation Commission
[2002] AATA 871
•1 October 2002
DECISION AND REASONS FOR DECISION [2002] AATA 871
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/253
VETERANS' APPEALS DIVISION )
Re LESLIE FRANCIS GREENTREE
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr M J Sassella, Senior Member
Date1 October 2002
PlaceSydney
Decision The Tribunal affirms the decision under review.
..............................................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Disability Pension - claim for lumbar and cervical spondylosis - operational service - Statement of Princeiples satisfied - tribunal satisfied beyond reasonable doubt that disease not war-cause
Veterans' Entitlements Act 1986 ss 20(1), 120(1), (3), (4)
Statement of Principles 46/2002 concerning lumbar spondylosis
Statement of Principles 50/2002 concerning cervical spondylosis
Bull v Repatriation Commission (2001) 66 ALD 271
Deledio, Repatriation Commission v (1998) 49 ALD 206
Gorton, Repatration Commision v (2001) 33 AAR 370
Wiliams, Repatration Commission v [2001] FCA 1195
REASONS FOR DECISION
1 October 2002 Mr M J Sassella, Senior Member
This is an application to the Administrative Appeals Tribunal ("the tribunal") by Leslie Francis Greentree ("the applicant") for review of a decision of the Veterans' Review Board ("the VRB") dated 18 January 2001 (T23) which affirmed a decision of the Repatriation Commission ("the respondent") to the extent that the respondent had on 13 October 1999 (T14) rejected a claim for Disability Pension in respect of cervical spondylosis and lumbar spondylosis. Accepted disabilities were bilateral perceptive deafness with tinnitus (left ear), chronic solar skin damage, malignant melanoma of the skin, post-traumatic stress disorder, irritable bowel syndrome, hypertension, ischaemic heart disease, atherosclerotic peripheral vascular disease affecting both legs, alcohol dependence or alcohol abuse and chronic bronchitis and emphysema (ex TD1/1).
THE HEARING
The tribunal convened a hearing in this matter in Sydney on 3 April 2002. Mr B Winship of Rockliffs Solicitors & Attorneys represented Mr Greentree. Mr PGodwin of the Department of Veterans' Affairs ("DVA") Advocacy Service represented the respondent. The tribunal heard oral evidence from the applicant. The tribunal took into evidence the following documents:
.Exhibit TD1 -Section 37 Statement and associated documents (exhibits T1 -T26) provided by the respondent.
.Exhibit A 1 -Applicant's statement of facts and contentions, 16 January 2002.
Exhibit R1 -Respondent's statement of facts and contentions, 26 March 2002.
Exhibit R2 -Report by Professor P N Sambrook, 29 June 2001.
Exhibit R3 -Australian Army ("the army") statement of applicant's overseas service, 27 August 2001.
Exhibit R4 -Applicant's workers' compensation documents.
FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE
EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS
The tribunal makes the following uncontroversial findings.
The applicant served in the army and rendered operational service from 14 August 1964 to 30 September 1965 and from 5 October 1965 to 14 September1966 (ex R3).
The applicant lodged a valid claim on 20 May 1999 (T6).
.The date of effect of any decision favourable to the applicant would be 20 February 1999 ( s 20( 1) of the Veterans' Entitlements Act 1986 ("the Act")
The standard of proof in relation to whether Mr Greentree's spondylosisconditions are war-caused diseases is the reasonable hypothesis standard (s120(1), (3) of the Act).
The Statements of Principles ("SoPs") published by the Repatriation Medical Authority and relevant to the determination of this matter are, prima facie, SoP46/2002 concerning lumbar spondylosis2 and SoP 50/2002 concerning cervical spondylosis. If the hypothesis fails in relation to a 2002 SoP then the SoP in force at the time of the primary decision (13 October 1999), SoP 27/99 concerning lumbar spondylosis4 or SoP 31/99 concerning cervical spondylosis, can be considered (Repatriation Commission v Gorton (2001) 33 AAR 370 and Repatriation Commission v Williams [2001] FCA 1195).
The full Federal Court has held that, in an operational service case such as this, there are four steps to be considered in assessing whether an applicant will succeed in his claim that a disability was war-caused. The authority is Repatriation Commission v Deledio (1998) 49 ALD 193, 206.
The first step is to consider whether the material before the tribunal points to a hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the applicant. The hypothesis raised for the applicant was that when on operational service in Malaya in 1965 during the dry season he was walking beside a storm water drain when he fell into the drain. The drain was about eight or 10 feet deep and about a metre wide. He jarred his neck and back. This caused his lumbar and cervical spondylosis.
The second step is to ascertain whether there is a relevant SoP in force. It has already been determined that there are two applicable SoPs, both promulgated in 2002 (paragraph 3 above}.
The third step is to form an opinion as to whether the hypothesis raised is reasonable. If the hypothesis is consistent with the template in the SoP it will be reasonable. The hypothesis raised must contain at least one of the factors in the SoP which the SoP says must exist, and that factor must be related to the applicant's service.
The SoPs presuppose a diagnosis of the condition to which the SoP relates. The tribunal must be reasonably satisfied that the applicant suffers from lumbar and cervical spondylosis (s 120(4} of the Act}. Several medical experts have diagnosed these conditions: Dr M Benanzio (orthopaedic surgeon} (T20}, Dr M G Miller (physician} (T21 }, Professor Sambrook (rheumatologist} (ex R2}. The tribunal is reasonably satisfied that the diagnosis is spondylosis in two regions and that the SoPs already identified are applicable.
Mr Greentree fleshed out in oral evidence his account of the incident and how it affected him. This was necessary in view of the factor relied on in each SoP to connect the alleged injury with war service. In each of the 2000 SoPs factor 5(h} requires there to have been "a trauma to the. ..spine before the clinical onset of. ..spondylosis". The concept of a "trauma to the. ..spine" is defined in each SoP in clause 8 and requires a number of features. Mr Greentree's comments on what allegedly occurred and the aftermath were germane to whether the alleged event satisfied the trauma requirements.
Mr Greentree said that when he fell he felt sharp pains in his neck and back. He described this as discomfort and aches. He said that he landed on his feet. He was pulled out of the drain by his friends and assisted back to camp "100 yards" away. He was limping badly. He was put to bed. He slept then crawled out of bed, had a hot shower, dressed and visited the RAp6. He was still limping and had discomfort and aches. The Australian camp doctor was in Borneo so Mr Greentree was seen by the New Zealand camp doctor. That doctor said Mr Greentree's symptoms were muscular. He prescribed liniment, hot showers and bed rest.
Mr Greentree did his normal duties as guard and driver (of 2% ton trucks and Land Rovers). Guard duty was essentially the patrolling of a beat. He was in pain, had aches and limped. He limped for about four weeks. In cross-examination Mr Greentree insisted that he limped because of his back, not because of any leg injury. However, he had to keep working because his mates needed his help.
The symptoms persisted for three or four weeks and never disappeared completely. He had flare ups whenever he was jarred or went over a bump. He sought no further medical help because he thought the problem muscular. He emphasised that he was never really free from neck and back discomfort.
This material largely complies with the SoP trauma requirements. The requirements for trauma (as exemplified in relation to lumbar spondylosis) are:
"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 symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the lumbar spine. These 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."Mr Greentree's hypothetical rendering of events meshes to the following extent with these requirements:
There was a discrete injury to the cervical and lumbar spine, according to the hypothesis.
Within 24 hours the hypothesis posits that Mr Greentree developed symptoms and signs of pain.
Within 24 hours the hypothesis was that Mr Greentree developed a limp. This might qualify as the developing of tenderness.
Finding a hypothetical alteration of mobility in the lumbar or cervical spine, or a hypothetical alteration in the range of movement of the lumbar spine is, however, more difficult. The material presented emphasised discomfort and ache without addressing range or mobility. Professor Sambrook, however, took a history where Mr Greentree referred to "the pain and stiffness last[ing] for sometime" (ex R2/2). This would suffice in the tribunal's view to meet the SoP requirements on mobility and range of movement.
Mr Greentree suggested that his disabilities lasted for at least seven days.
Clause 4 of each SoP requires that the trauma must be related to the operational service rendered by Mr Greentree. That was clearly satisfied by the hypothesis. Mr Greentrree was on operational service with army colleagues when the event occurred. Service took him to that place at that time.
Thus, the tribunal tentatively considers that the hypothesis satisfies step 3 of the Deledio (above) principles. The Federal Court has, however, held that, even if the hypothesis as raised is consistent with the SoP, if it nevertheless is fanciful, impossible, incredible, too remote or too tenuous, it can be found to be not a reasonable hypothesis. In the full Federal Court decision of Bull v RepatriationCommission (2001) 66 ALD 271 (at pages 276, 277, 282 and 283) Emmett and Allsop JJ said:
"18 It is important to understand the following about East. The Court said that an
hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or
not tenable or too remote or too tenuous. However, the Full Court did not say that if
an hypothesis was not obviously fanciful or not impossible, or not incredible or
tenable or not too remote or not too tenuous, it was therefore necessarily reasonable.
The material must point to the connecting hypothesis: see the emphasised paragraph
in [17] above. ...
21 There is no doubt that the Tribunal is obliged to look at all the material, not just
some of it. It is not entitled at this point to find facts or reject matters. See generally
Gleeson v Repatriation Commission (1994) 34 ALD 505,509.
22 The formation of the opinion called for by subs 120(3) involves an assessment of
the factual material before it. It involves reaching an opinion about a factual matter. It
is, in that sense, a question offact: Bey, supra at 373 and Repatriation Commission v
Owens (1996) 70 ALJR 904. Here the Tribunal, on the material before it, formed the
opinion that a relevant reasonable hypothesis was not raised from the material. The
primary judge said that that was a question of fact and that no error of law (and so no
question of law for s 44 of the AA T Act) was presented. ...
…
41 However, the inability rationally to characterise the hypothesis as fanciful, etc,
does not answer the inquiry for subs 120(3). As set out in East, supra at 533:'A reasonable hypothesis requires more than a possibility, not fanciful or
unreal, consistent with the known facts. It is an hypothesis pointed to by the
facts, even though not proved on the balance of probabilities. ",
Considering the totality of the material before the tribunal there are some problems with the hypothesis. Mr Godwin pointed up a number of these in his cross-examination. First, Mr Greentree has spoken inconsistently of skin injury .He told Mr Godwin that he lost no skin in the fall. He told Dr Miller (T21) that he suffered abrasions on the back and neck. He told Dr Benanzio (T20) that his arms and legswere not affected and did not mention a limp. He had claimed a Disability Pension in 1968 for tinnitus (T3/13G) but had not claimed in respect of his back or neck. In 1982 in an appeal in respect of deafness and tinnitus he had been medically examined (T4/13A). He provided a history that referred to his medical conditions during and after service but he made no reference to neck or back problems prior to 1979.
In 1985 Mr Greentree saw Dr Rohagi (T4/13J). He said that he saw DrRohagi a number of years. In this report for DV A Dr Rohagi said that Mr Greentree had had low back pain for about six years and cervical spondylosis from about four years. Mr Greentree said that the report was inaccurate because he was worried that the workers' compensation authorities would find out about his pre-existing army injury. However, as Mr Godwin pointed out, this was a peculiar explanation because the report was for DV A.
There is a plethora of instances in the workers' compensation file (ex R4) of Mr Greentree identifying the start of his orthopaedic difficulties as in 1979-1981 and as associated with his employment:
.As at 19 May 1980 Dr T J Woodward found that Mr Greentree had a reasonably full range of movement of his thoraco-lumbar spine ( ex R4/7).
As at 27 October 1983 Dr F Ehrlich recorded that there had never been [before 1979] a previous incident of significant back injury and only occasional minor back discomfort after particularly heavy work or much bending (ex R4/21 .
As at 16 February 1984 Dr C Selby Brown saw no abnormality of the lumbar spine on a CT scan dated 12 January 1984 (ex R4/28).
On 25 November 1985 Dr R L Plowman reported that some two years after the 1979 work injury Mr Greentree began having trouble with his neck (ex R4/47). Additionally, Mr Greentree could recall no previous injury affecting his back or lower limbs.
On 6 July 1987 Dr D Millons recorded that Mr Greentree's back problems began in 1979 (ex R4/59). Mr Greentree was said to have complained of some problems with his neck in recent times.
On 24 March 1988 Dr W D Sturrock recorded that Mr Greentree denied that he was involved in any accidents before July 1979 ( ex R4/82).
On 19 January 1989 Dr Plowman recorded that Mr Greentree recalled no other accidents and that the cervical spine was clinically normal (ex R4/87).
This is unusually consistent material casting doubt on the hypothesis as raised. However, as it suggests rather that Mr Greentree was not a credible witness in some respects, and as it is still possible that he had the fall and suffered the results suggested, the tribunal is prepared to find that the hypothesis has survived the application of step 3 in Deledio (above).
Moving on to consider step four of Deledio (above), the tribunal must decide whether it is satisfied beyond reasonable doubt that the applicant's incapacity did not arise from a war-caused injury. The tribunal considers that the case mounted by Mr Godwin above in paragraphs 19-21 is relevant to its consideration of step 4. Without more, the tribunal would be prepared to find itself satisfied beyond reasonable doubt that Mr Greentree's disease is not war-caused because of the strong evidence that it stems from a workers' compensation injury. However, Mr Greentree did provide an explanation.
Mr Greentree told the tribunal that he was advised by his trade union not to mention any earlier accidents affecting his back and neck. He agreed that he denied the earlier accidents. He insisted that his neck has caused him consistent problems to the extent that he has had chiropractic attention for it since 1967. He could see no cause other than service for that. He said that he had no reason to deny his neck problems to workers' compensation doctors. However, that was what Mr Greentree did. He was adamant that a person falling eight or 10 feet into a drain must get injured. However, he gave evidence also that lots of men fell down the trenches. Some were not injured or suffered abrasions only.
The tribunal has considered these explanations but does not find them convincing. Apart from the internal illogicality already highlighted in some of the explanations, the tribunal notes that Mr Greentree would nevertheless have had a workers' compensation claim for aggravation of his condition stemming from his work injury if he had such an earlier condition and disclosed it. The tribunal therefore finds itself satisfied beyond reasonable doubt that Mr Greentree's lumbar and cervical spondylosis is not a war-caused disease.
CONCLUSIONMr Greentree has not succeeded in gaining recognition of his lumbar and cervical spondylosis as war-caused diseases for the purposes of his Disability Pension.
DECISIONThe tribunal affirms the decision under review.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member
Signed: A Stephens .....................................................................................
AssociateDate/s of Hearing 3 April 2002
Date of Decision 1 October 2002
Counsel for the Applicant Mr B Winship
Solicitor for the Applicant Rockliffs Solicitors & Attorneys
Counsel for the Respondent Mr P Godwin, DVA Advocacy Service
Solicitor for the Respondent Mr J Marsh, DVA
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