Griffin and Repatriation Commission - [2002] AATA 1282

DECISION AND REASONS FOR DECISION [2002] AATA 1282

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2002/355
VETERANS'     AFFAIRS        DIVISION
  Re:         RAYMOND WILLIAM GRIFFIN
  Applicant
  And:       REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal:       M.J. Carstairs, Member
Date:             11 December 2002
Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) M.J. Carstairs
Member
VETERANS' AFFAIRS – entitlement – cervical and thoracic spondylosis – whether conditions war-caused – whether material points to hypotheses connecting veteran's cervical and thoracic spondylosis with the circumstances of eligible war service – assessment of rate pension
Veterans' Entitlements Act 1986 s120
Repatriation Commission v Deledio (1998) 83 FCR 82
Meehan v Repatriation Commission (2001) 64 ALD 366
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Hill [2002] FCAFC 192

REASONS FOR DECISION

11 December 2002 M.J. Carstairs, Member

This is an application by Raymond William Griffin (the applicant) for review of a decision made by the Veterans' Review Board (the VRB) on 4 March 2002. The VRB affirmed a decision of the Repatriation Commission (the respondent) that the conditions of cervical and thoracic spondylosis were not war-caused and that pension should continue to be paid at 100 per cent of the General Rate.
At the hearing the applicant was represented by Mr D. De Marchi, solicitor. There was no appearance on behalf of the respondent.
The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act1975, as well as exhibits marked A1 to A4 for the applicant and R1 to R4 for the respondent.
BACKGROUND
The applicant was born on 3 May 1923 and is 79 years old. He served in the Australian Army (the army) from 30 December 1941 to 4 July 1946. He served overseas and thus has operational service under the Veterans' Entitlements Act1986 (the Act).
During his service, the applicant suffered an injury when he fell from an observation tower that had been constructed by troops on the banks of the Hollandia River in Dutch New Guinea (the fall). The tower, made from trunks of coconut palms, was some seven metres in height. Grenades were placed in pieces of meat and were used as bait in the river to deter crocodiles. The explosion of one of these grenades caused the tower to collapse. The applicant was able to climb partway down before the complete collapse of the tower. However, he fell the remainder of the way, sustaining injury.
After the war the applicant completed an apprenticeship as a motor trimmer with Ansett Airways and Austin Motors. He then worked for various employers as a motor trimmer until he retired in 1983 at the age of 60.
The applicant's conditions of anxiety disorder, hearing loss, duodenal diverticula (with ulcer), and lumbar spondylosis, as well as malaria BT and post malarial headaches, hookworm and cholelithiasis with operation have been accepted as war-caused. A decision of this Tribunal dated 11 June 1993 (T14) reached by consent between the parties accepted lumbar spondylosis, as a result of the fall. The…

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 Griffin and Repatriation Commission

Details

AGLC: Griffin and Repatriation Commission [2002] AATA 1282
Case: [2002] AATA 1282
Decision Date: 11 December 2002

CaseChat Overview and Summary

In the matter of Griffin and the Repatriation Commission, the applicant, a 79-year-old former soldier, challenged the Commission's decision to refuse his claim for a pension under the Veterans' Entitlements Act 1986. The applicant contended that he was entitled to a higher rate of pension due to extreme disablement, as a result of injuries sustained during his service in the Second World War. The primary issue before the Tribunal was whether the applicant's medical conditions, specifically cervical spondylosis and lumbar spondylosis, were attributable to his war service and, consequently, whether he qualified for the extreme disablement adjustment.

The Tribunal meticulously examined the evidence presented by both parties, including medical reports, the applicant's statements, and the relevant Statement of Principles. The applicant argued that the fall from an observation tower during his service caused significant trauma to his cervical and lumbar spines, leading to chronic pain and disability. The Tribunal noted that while the applicant had a history of back pain since the fall, his claims regarding the onset and severity of neck pain were inconsistent. The Tribunal also considered the applicant's lifestyle impairment, mobility, recreational activities, and domestic activities to assess his entitlement to the higher pension rate.

After a thorough review of the evidence and the applicable legal framework, the Tribunal concluded that the applicant did not meet the criteria for the extreme disablement adjustment. The Tribunal found that although the applicant had markedly affected social relationships and limited mobility, his overall impairment points did not reach the 70-point threshold required for the higher pension rate. The Tribunal also noted that the applicant's claims regarding the onset and severity of his neck pain were not consistent with the evidence provided. Consequently, the Tribunal affirmed the Commission's decision, denying the applicant's claim for the extreme disablement adjustment.

Orders

Orders of the court

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Background

Background to the litigation

The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act1975, as well as exhibits marked A1 to A4 for the applicant and R1 to R4 for the respondent.BACKGROUND The applicant was born on 3 May 1923 and is 79 years old. He served in the Australian Army (the army) from 30 December 1941 to 4 July 1946. He served overseas and thus has operational service under the Veterans' Entitlements Act1986 (the Act). During his service, the applicant suffered an injury when he fell from an observation tower that had been constructed by troops on the banks of the Hollandia River in Dutch New Guinea (the fall). The tower, made from trunks of coconut palms, was some seven metres in height. Grenades were placed in pieces of meat and were used as bait in the river to deter crocodiles. The explosion of one of these grenades caused the tower to collapse. The applicant was able to climb partway down before the complete collapse of the tower. However, he fell the remainder of the way, sustaining injury. After the war the applicant completed an apprenticeship as a motor trimmer with Ansett Airways and Austin Motors. He then worked for various employers as a motor trimmer until he retired in 1983 at the age of 60. The applicant's conditions of anxiety disorder, hearing loss, duodenal diverticula (with ulcer), and lumbar spondylosis, as well as malaria BT and post malarial headaches, hookworm and cholelithiasis with operation have been accepted as war-caused. A decision of this Tribunal dated 11 June 1993 (T14) reached by consent between the parties accepted lumbar spondylosis, as a result of the fall. The applicant claimed cervical spondylosis and lumbar spondylosis in 1998 (T17). However, in a decision dated 5 February 1998, the respondent refused the claim (T19). The applicant lodged another claim for these conditions on 9 March 1999 (T22). The respondent refused this claim on 29 March 1999, and the applicant sought review by the VRB. When the decision was affirmed by the VRB on 29 March 2002, the applicant then sought review by this Tribunal on 10 April 2002.EVIDENCE In a written statement dated 7 June 2002 (exhibit A2) the applicant stated that his lower back, upper back and neck were extremely sore for at least two weeks after the fall and that he has had problems with his back and neck ever since. In oral evidence he said that he needed assistance to rise to a standing position after the fall. He also said that he was able to continue light duties while on sentry duty. He did not report the fall to anyone because others would have had to relieve him. The applicant was referred to his answers to questions asked of him at the VRB hearing, including an answer in which he said that his neck pain did not commence until years later. He said that the distinction that he was trying to make to the VRB was that neck pain was not as bad as the back pain at the time of the fall. The applicant said that he was engaged in heavy lifting in the army. He built roads, which involved clearing jungle. He said that he had to carry a base plate for the mortar with an estimated weight of more than 25kgs, around his neck. He said that he had to push artillery, weighing in the vicinity of a tonne, through jungle conditions.

Evidence

Evidence Before The Court

The applicant's conditions of anxiety disorder, hearing loss, duodenal diverticula (with ulcer), and lumbar spondylosis, as well as malaria BT and post malarial headaches, hookworm and cholelithiasis with operation have been accepted as war-caused. A decision of this Tribunal dated 11 June 1993 (T14) reached by consent between the parties accepted lumbar spondylosis, as a result of the fall. The applicant claimed cervical spondylosis and lumbar spondylosis in 1998 (T17). However, in a decision dated 5 February 1998, the respondent refused the claim (T19). The applicant lodged another claim for these conditions on 9 March 1999 (T22). The respondent refused this claim on 29 March 1999, and the applicant sought review by the VRB. When the decision was affirmed by the VRB on 29 March 2002, the applicant then sought review by this Tribunal on 10 April 2002.EVIDENCE In a written statement dated 7 June 2002 (exhibit A2) the applicant stated that his lower back, upper back and neck were extremely sore for at least two weeks after the fall and that he has had problems with his back and neck ever since. In oral evidence he said that he needed assistance to rise to a standing position after the fall. He also said that he was able to continue light duties while on sentry duty. He did not report the fall to anyone because others would have had to relieve him. The applicant was referred to his answers to questions asked of him at the VRB hearing, including an answer in which he said that his neck pain did not commence until years later. He said that the distinction that he was trying to make to the VRB was that neck pain was not as bad as the back pain at the time of the fall. The applicant said that he was engaged in heavy lifting in the army. He built roads, which involved clearing jungle. He said that he had to carry a base plate for the mortar with an estimated weight of more than 25kgs, around his neck. He said that he had to push artillery, weighing in the vicinity of a tonne, through jungle conditions. In oral evidence the applicant confirmed answers that he had given in a Lifestyle Questionnaire (exhibit A4), which addressed the effects of disability on personal relationships, mobility, recreational activities and on domestic activities. The applicant said that he has difficulty sleeping at night. He stays up late because he cannot sleep. He then has difficulty falling asleep and his sleep is disturbed due to pain, and inability to settle comfortably. He suffers pain below the shoulders. The applicant was distressed when speaking of his wife, who has dementia and is in residential nursing home care. He said his family relationships have suffered with his wife's deteriorating health. His son and his daughter live a distance from him and his relationship with his daughter has broken down, partly over conflict about the selection of nursing home accommodation for his wife. He expressed a wish to repair the rift with his daughter. He sees his son infrequently, although he had seen him two weekends prior to the hearing. He said that he misses his grandchildren. He visits his wife twice a week, as the nursing home is only two kilometres away. He travels there by tram and by bus. He travelled to the hearing by public transport. He said that he drives his car infrequently, but is able to drive to the local shop if he needs to. He will not attempt to drive longer distances.

Decision

Reasons for decision

Much of the hearing dealt with the question of whether the applicant was entitled to payment of pension at the extreme disablement adjustment. However, it did not appear on the evidence that the applicant had the necessary impairment of lifestyle to qualify for the higher rate at the present time. The applicant had markedly affected social relationships (rating 4), his mobility was moderately reduced (rating 3); his recreational pursuits are limited (rating 5) and his domestic activities are limited (rating 5 or 6). Nor was the requirement of 70 impairment points met (s22(4)(c)). For these reasons the applicant is not entitled to payment of pension at the extreme disablement adjustment.DECISION The Tribunal affirms the decision under review.I certify that the forty-eight [48] preceding paragraphs are a true copy of the reasons for the decision herein of M.J. Carstairs, Member(sgd) Olympia Sarrinikolaou ClerkDate of Hearing: 27 November 2002Date of Decision: 11 December 2002 Advocate for the applicant: Mr D. DeMarchiSolicitor for the applicant: Messrs DeMarchi and AssociatesAdvocate for the respondent: Advocacy Branch, Department of Veterans' Affairs

Ratio Decidendi

Legal Principle Established

In a report dated 23 July 2002 (exhibit A3), Dr K. Fraser, rheumatologist, stated that the applicant suffered significant trauma to the spine in the fall, and that, if lumbar spondylosis had been assessed as attributable to war service, the same principles should apply in relation to disc damage in the cervical and thoracic regions. Dr Fraser stated that the applicant recalled neck pain as well as back pain at the time of the fall, but the latter was worse. He said he had no reason to doubt the applicant's history of neck pain and stiffness from the time of the fall. He said radiological and clinical signs established severe disc degeneration in the cervical spine and he noted 70 per cent loss of range of movement in the cervical spine and 50 per cent loss in the thoracolumbar spine. He said that the circumstances of the fall met the factors in the Statement of Principles (SoP) for cervical spondylosis as there was a discrete injury to the cervical spine, which would have lasted at least seven days. Dr Fraser stated, however, that he saw no x-rays of the thoracic spine.CONSIDERATION OF THE ISSUES The process of deciding whether the material before the Tribunal raises a reasonable hypothesis connecting a disease, injury or death (the condition) to war service is laid down by the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82 as a four-step process. The first step requires the Tribunal to consider all the material before it and determine whether that material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by the veteran. The second step requires the Tribunal to ascertain whether there is a relevant SoP in force. Under the third step, if a SoP is in force, the Tribunal must then form an opinion whether the hypothesis raised is a reasonable one. Section 120A(3) of the Act provides that, for the purposes of s120(3), the hypothesis is reasonable if there is in force a SoP that upholds the hypothesis; that is to say, the hypothesis is consistent with the template to be found in the SoP. If the hypothesis fails to fit within the template, it will be deemed not to be reasonable and the claim will fail. Section 120(3) provides that, in applying s120(1), the Tribunal shall be satisfied, beyond reasonable doubt, if after considering all the material before it, the Tribunal is of the opinion that the material does not raise a reasonable hypothesis connecting the condition with the circumstances of the particular service rendered by the applicant. Under the fourth step from Deledio the Tribunal must make findings on questions of fact. In his Statement of Facts and Contentions (exhibit A1) Mr De Marchi submitted factor 5(h) of SoP N° 31 of 1999 for cervical spondylosis which provides for suffering a trauma to the cervical spine prior to the clinical onset of cervical spondylosis, as met. In oral submissions he relied on the hypotheses raised in clause 5 (e), (f) and (h) of SoP N° 50 of 2002. He submitted that permanent ligamentous instability was defined broadly in the SoP and was met in the applicant's case. He submitted that the load bearing undertaken by the applicant on service would not be relied upon, as the SoP in clause 5(j) required that the load bearing be on the head.