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 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.
The applicant said that he walks to the local shop to buy groceries. He needs a walking stick when outside the house, though he does not use one inside. His meals are provided weekly by Meals-on-Wheels. He is able to undertake light day-to-day domestic tasks. He said that he has little social life and spends his time alone. He is unable to take part in sports that he once enjoyed, such as billiards. He has accepted a position on the committee of his local RSL. However, he said that he only did so because he was pressured into taking the position. During the day he reads the newspaper, sometimes reads books, and might watch television at home.
In a letter to the respondent dated 26 May 2000 (T28), the applicant's advocate at the time, Mr. J Horan, stated that the scenario for the fall was:
…
When Mr. Griffin was in the tower … one of the grenades exploded and the percussion caused the tower to start to sway and then break up. Immediately this happened, Mr. Griffin started to get down from the tower. On his way down, the tower collapsed and he ended up on the ground amongst the tower debris. So his fall was not a "dead fall" from 20'…
In a physiotherapy assessment dated 17 June 1987 (T6), Mr. I. Christian, physiotherapist, recorded acute back pain with referred back pain in the left sacroiliac area. In a written report dated 13 December 1978 (T11), Dr J. Maclachlan stated that, after slipping over at work, the applicant had noticed neck, right shoulder, and lower back pain, and x-ray diagnosed cervical spondylosis.
In a written report dated 16th October 1992 (T10), Dr H. Hadley, orthopaedic surgeon, stated that the applicant told him that, from 1949 he attended Dr B. Mitchell for back manipulation. Dr Hadley noted loss of 50 per cent range of movement in the lumbar spine. From x-rays taken of the lumbar spine, marked narrowing of L5/S1 disc space was noted, along with osteophytic changes. X-rays taken in 1992, showed retrolisthesis (which is a posterior slippage of one vertebra onto another) of L5/S1 by 3mm, indicating instability at that level. There was also a loss of disc space consistent with degenerative discs. Dr Hadley stated that the applicant's work as a gunner, carrying the mortar plate and heavy ammunition would have put further repetitive strain on his back.
In a written report dated 27 March 1993 (T13), Dr S Hall referred to the fall and stated that the applicant …had low back pain ever since that time. Dr Hall stated that the applicant's local doctor, Dr Maclachlan, had records …dating back to the early 1970's in which Mr. Griffith's problems of low back pain are thoroughly documented. Dr Hall stated that the fall possibly caused the applicant's internal disc injury, although he was surprised that the injury did not prevent him continuing with his duties.
A report of a CT scan dated 28 October 1997 (T16) showed the following: stenosis and facet arthropathy at C3/C4, moderately severe spondylosis at C4/5, C5/6 and C6/7 as well as stenosis and arthropathy at each of those levels.
In a written report dated 14 July 1998 (T21), Mr R. Quirk, orthopaedic surgeon, stated that on service the applicant had to carry a twenty to thirty pound mortar base plate hung around his neck. He said at the time of the report the applicant had numbness and pins and needles in his left arm and pain in the thoracolumbar spine. Spinal pain was referred into his legs. Mr Quirk considered that there was a 75 per cent loss of range of movement in the cervical spine. He also noted that there was foraminal stenosis and facet joint arthropathy present at four levels of the cervical spine, with spondylitic changes.
In a written report dated 9 December 1998 (T2), Dr M. Bartolo, chiropractor, stated that the applicant had chronic neck and arm pain, resistant to medical intervention. Dr T. Katsapis, osteopath, in an undated written report (T2), stated that the applicant had very limited range of movement in the lower neck and upper back and that the soft tissue structures in this area were chronically inflamed due to fibrotic scar tissue. The clinical notes of the applicant's current general practitioner, Dr D. Martinelli, (exhibit R3) noted a tear in the supraspinatus tendon, diagnosed by ultrasound on 23 February 2001.
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.
On assessment of the rate of pension Mr De Marchi submitted that the appropriate ratings would be:

for the conditions of malaria, hookworm,
cholelithiasis with operation Nil
duodenal diverticula with ulcer 10 points
generalised anxiety disorder; post malarial headaches 25 points;
sensorineural haring loss and bilateral tinnitus 15 points and
5 points
thoracolumbar spine 14 points and
10 points
cervical spine 11 points and
7 points

In its Statement of Facts and Contentions, the respondent submitted that, in regard to factor 5(h), dealing with trauma in both Instruments for cervical spondylosis (N° 31 of 1999 and N° 50 of 2002), the material must point to the hypothesis for the hypothesis to fit within the SoP (exhibit R1). The respondent submitted that, in the earlier reports of Dr Hadley and Dr Hall, the applicant was not recorded as making any complaint other than of low back pain in the fall. The respondent submitted that, in answers to questions by the VRB about commencement of pain in the upper back and neck, the applicant said …the neck never started till later on, much later on and …No, I never got [pain in] the upper – in my neck in those days (exhibit R4) and that pain in the upper back started I'd say about 10 years ago (exhibit R1).
The respondent submitted, in its Statement of Facts and Contentions, that the material before the Tribunal did not point to symptoms and signs of pain or tenderness in the cervical area within twenty-four hours, nor were symptoms of altered mobility or range of movement present for seven days as required by the SoP and, therefore, it did not point to a reasonable hypothesis. It submitted that the material did not point to a discrete injury to the cervical or thoracic spine, and until recently the applicant had referred only to symptoms of lower back pain. The respondent submitted that the recent change of evidence should be seen in the context of the evidence as a whole and taken as a whole, the hypothesis was not reasonable. The respondent submitted that there was no evidence that the applicant had a cervical intervertebral disc prolapse so as to raise a hypothesis under clause 5(i). No written submissions were made in regard to the rate of pension.
In reaching its decision the Tribunal takes into account the written and oral evidence and submissions made at the hearing and in the Statements of Facts and Contentions. In Meehan v Repatriation Commission (2001) 64 ALD 366 Wilcox J held that, when considering the first step in Deledio, the Tribunal must decide whether it is reasonably satisfied, in accordance with s120(4) of the Act, that there is a condition as claimed. In respect of the first step, the Tribunal finds, after taking into account all relevant material, the veteran suffers from cervical spondylosis. In his report (exhibit A3), Dr Fraser refers to x-rays of the cervical spine from June and December 1997, showing disc space narrowing at C5/C6 and C6/C7 and a CT of the cervical spine dated 16 April 2002, showing stenosis at several levels. He also referred to the x-ray report cited by Dr Hadley's 1992 report, noting degeneration in the lumbar spine at several levels. He said:
…At least in relation to the cervical spine there is radiological evidence of severe disc degeneration, particularly at C 6/7 …
However, there was no report by a specialist that established the diagnosis of thoracic spondylosis. Dr Fraser said:
I saw no x-rays of the thoracic spine and I was unable to find reference to these in the enclosed documentation. However, it would surprise if there were not also degenerative changes in this region.

While Dr Fraser noted that there was limitation of movement and some local tenderness in the thoracic area, he was not able to establish a cause of the limitation and tenderness. The Tribunal is not reasonably satisfied that the condition of thoracic spondylosis is established in this case. Despite extensive specialists' reports since the back condition was first raised with the respondent in a claim in 1992, there is no direct evidence diagnosing thoracic spondylosis. Reference is made by a general practitioner in a claim form to thoracic arthritis (T18), however the date of onset given by the doctor is 1992. Therefore, the claim in regard to thoracic spondylosis must fail.

In respect of cervical spondylosis the first step in Deledio is met as the material points to a hypothesis connecting the conditions with the circumstances of the particular service rendered by the veteran.
In respect of the second step in Deledio, SoP Nº 50 of 2002 concerning cervical spondylosis was in force at the time of the hearing and at the time of the claim, and earlier SoP Nº 31 of 1999 was in force. After the hearing, an amendment was made to SoP Nº 50, by SoP N 81 of 2002. The Tribunal, applying Repatriation Commission v Gorton (2001) 110 FCR 321, takes that amendment into account.
In respect of the third step, the Tribunal notes that factor 5(e), (g) and (h) and (i) of SoP Nº 50 of 2002 concerning cervical spondylosis state:
…
(e)having disordered joint mechanics affecting the cervical spine before the clinical onset of cervical spondylosis; or
…
(g)suffering from permanent ligamentous instability of the cervical spine before the clinical onset of cervical spondylosis; or
…
(h)suffering a trauma to the cervical spine before the clinical onset of cervical spondylosis; or
(i)suffering a cervical intervertebral disc prolapse before the clinical onset of cervical spondylosis at the level of the intervertebral disc prolapse; or
Paragraph 8 of the SoP states as follows:
…
"disordered joint mechanics" means maldistribution of loading forces on the cervical spine that has resulted from:
(a)scoliosis, or
(b)loss or enhancement of the normal anterioposterior curvature of the vertebral column, or
(c)spondylolisthesis, or
(d)retrospondylolisthesis, or
(e)a deformity of a vertebra, or
(f)a deformity of a joint of a vertebra, or
(g)necrosis of bone;
Clause 8 in SoP N° 50 of 2002 defined permanent ligamentous instability as meaning
continuing or recurring abnormal mobility and instability of the cervical spine which is characterised by the regular recurrence of episodes of pain and/or tenderness affecting the cervical spine.

In the amended SoP, factor 5(g) is amended to provide for suffering an injury to the cervical spine which has resulted in permanent ligamentous instability where the meaning of permanent ligamentous instability of the cervical spine is redefined in Clause 8 by the stricter test meaning:
radiological evidence on flexion and extension lateral
radiographs of either:
(i) anteroposterior motion of one vertebra over another that is
greater than 3.5 mm in the cervical spine, or
(ii) angular motion at the level in question that is more than 11
degrees greater than at either adjacent level;.
Trauma to the cervical spine is defined in SoP N° 50 of 2002 as:
…a discrete injury to the cervical 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 cervical 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 cervical spine has occurred, where that medical intervention involves either:
(a)immobilisation of the cervical spine by splinting, or similar external agent; or
(b)injection of corticosteroids or local anaesthetics into the cervical spine; or
(c)surgery to the cervical spine.+
An hypothesis that arises from the report of Dr Fraser is that the fall caused a severe jarring of the spine that resulted in disc damage and as this had been accepted in regard to the lumbar spine the same principles must apply to the cervical spine. He said it seems to me to be illogical to accept such an injury in the lumbar spine and not in the cervical and thoracic spine. However such a basis of reasoning is not provided for in the SoPs. The factors that must be met are those that are provided for in the SoP and those alone (Repatriation Commission v Hill [2002] FCAFC 192). There is no factor that links lumbar spondylosis with the development of cervical spondylosis. Furthermore, the acceptance of lumbar spondylosis in the applicant's case occurred before the SoPs were introduced into the legislation, so there is no basis for the doctor to assume that acceptance of another condition must follow.
Mr De Marchi relied on factor 5(h), suffering a trauma to the cervical spine. Dr Fraser supported this. However the report of Dr Fraser goes only so far as to say that pain and stiffness would have lasted seven days (as is required in the definition of trauma in clause 8. When the whole of the evidence is considered in this case, that evidence does not point to the applicant having had symptoms and signs of pain and tenderness and altered mobility of the cervical spine, so as to meet the definition of trauma. The complaint of any symptoms to do with the neck is very recent, and is not made to the VRB (para 29 above). There is no indication that these matters were put to Dr Fraser, who says only I have no reason to doubt his history of neck pain. In the context of the overall evidence in this case, the hypothesis of suffering a trauma as defined in the SoP is not reasonable as it is not pointed to by the evidence.
There is no medical evidence pointing to the applicant having disordered joint mechanics as defined in the SoP and as applying in factor 5(e) (SoP N° 50 of 2002), nor that he had a malalignment of the cervical spine as defined in SoP N° 31 of 1999. Though Dr Hadley noted a retrolisthesis in X-rays in 1992 there is no evidence that suggests this condition being present earlier, so as to connect a problem with joint mechanics to service, as is required by clause 4 of the SoP. Dr Fraser does not suggest this as a possibility.
Dr Fraser states that a hypothesis is raised under factor 5(j) of SoP N° 31 of 1999 (5(i) of SoP N° 80 of 2002). However, while his report refers to radiological evidence of disc degeneration and of symptoms of nerve root irritation, suggestive of disc prolapse, this evidence concerns the state of the applicant's discs now. There is nothing in his report or elsewhere in the medical evidence taken as a whole, that suggests that disc prolapse was present on, or connected with service, as is required by clause 6 and by s196B(14). Neither does the applicant's evidence to the VRB, that neck pain commenced ten years ago, support the hypothesis as a reasonable one.
In regard to the submission that factor 5(g) is met, no medical evidence was led that suggested that the applicant had disordered joint mechanics affecting he cervical spine. It is clear that the definition as amended by SoP N° 81 of 2002 could not be met in this case, as radiological evidence is required. The Tribunal therefore looked at SoP N° 50 of 2002 prior to the amendment, and to SoP N° 31 of 1999 which provided for having a malalignment of the cervical spine, which was defined as significant displacement out of line resulting form the effect of underlying muscle weakness, deformity of other joints, joint dysplasia, or disparate leg length. No evidence pointed to this, and Dr Fraser's report did not conclude this. Malalignment was not raised by the applicant's evidence. The Tribunal rejects the submission that a reasonable hypothesis is raised connecting cervical spondylosis with service under the factors either of malalignment or of disordered joint mechanics.
For these reasons the Tribunal finds that the hypotheses raised are not consistent with the templates to be found in the SoPs. The Tribunal finds that the hypotheses connecting cervical spondylosis with the circumstances of the particular service rendered by the applicant are not reasonable. Therefore, the third step in Deledio is not met. Accordingly, there is no need for he Tribunal to consider the fourth step involving application of the facts.
In regard to the rate of pension, the Tribunal accepts Mr De Marchi's submission on the levels of impairment arising from disabilities accepted as relating to war service. However, as this Tribunal has accepted no further disability, the question of assessment of rate of pension payable does not arise. The decision under review is the claim for the acceptance of thoracic and cervical spondylosis (T22). Mr De Marchi stated at the hearing that the claim was one dated January 1998, which was the subject of a decision dated 5 February 1998 (T19) which dealt with thoracic and cervical spondylosis, as well as a claim for an increase in rate of pension. No review was sought concerning the decision made in regard to the application for a rate increase. An internal review of the decisions on the claim and application increase was conducted (T20). A new claim was made on 9 March 1999 on a form headed Claim for Disability Pension..and/or Increase in Disability Pension (T22). On the form the box was ticked to identify the claim as one for acceptance of disabilities rather than an application for increase in rate. As the powers of the Tribunal under s175(1) of the Act arise only where decisions have been reviewed by the VRB, the Tribunal cannot consider the assessment of rate of payment as that matter was not before the VRB.
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
              Clerk
Date of Hearing:  27 November 2002
Date of Decision:  11 December 2002
Advocate for the applicant:         Mr D. DeMarchi
Solicitor for the applicant:           Messrs DeMarchi and Associates
Advocate for the respondent:       Advocacy Branch, Department of Veterans' Affairs