Guthrie and Repatriation Commission

[2003] AATA 361

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 361

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2001/441

VETERANS' APPEALS  DIVISION		)
Re		DAVID HUGH GUTHRIE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Brigadier R D F Lloyd, Member

Date22 April 2003

PlacePerth

Decision

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal decides:

(a)  to set aside the VRB decision under review of 11 September 2001 in so far as osteoarthrosis of right knee and lumbar spondylosis are concerned;

(b)  to accept the conditions of osteoarthrosis right knee and lumbar spondylosis as being war-caused, with effect from 26 November 1999; and

(c)  to remit the matter of assessment of incapacity from these two war-caused conditions to the Repatriation Commission.

........(sgd R D F Lloyd)...........

Member

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ Entitlements – Ex Australian Army (National Serviceman) – operational service Vietnam as a rifleman/driver in infantry battalion – claim for osteoarthrosis right knee and lumbar spondylosis – common hypothesis raised – whether requirements of relevant Statements of Principle met – lifting/carrying loads over prolonged period- lack of specific supporting evidence for some aspects – assessments accepted as reasonable in the circumstances of an infantry soldier in a battalion in Vietnam

Veterans’ Entitlements Act 1986 ss 6, 9, 13, 120(1), 120(3), 120A

Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

22 April 2003 Brigadier R D F Lloyd, Member   

1.      This is an application before the Administrative Appeals Tribunal (“the Tribunal”) by David Hugh Gurthrie (“the applicant”) for a review of a decision of the Veterans’ Review Board (“VRB”), dated 5 September 2001 which affirmed the decision by a delegate of the Repatriation Commission (“the respondent”) of 17 December 1999 – in so far as it determined that the applicant’s claimed conditions of osteoarthrosis of the right knee and lumbar spondylosis are not war-caused.

2. The applicant attended the hearing together with his advocate Mr P Lofdahl. The respondent was represented by Mr C Ponnuthurai. The Tribunal had before it the documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”). In addition, the following document was taking into evidence at the request of the applicant:

·     Exhibit A1 – Extract from the book titled “Contact: Australians in Vietnam” by Lex McAulay, of 4 pages.

No additional documentary evidence was handed up by the respondent, nor were any respondent witnesses called to give evidence. The applicant gave oral evidence, was questioned by the Tribunal and cross-examined by the respondent. The Tribunal regards him as an honest and forthright witness and as reliable in his accuracy as one would expect in recollecting matters dating back over 30 years. It was the Tribunal’s view that the applicant was in fact probably more reliable than most in this regard because he seemed to resist the tendency to convert a guess, or a vague recollection, into a firm statement of alleged fact.

3. The applicant served in the Australian Army from 1 May 1968 to 30 April 1970, having been called up under the National Service Scheme. He served in the war in Vietnam and his consequent period of operational service under the Act is stated to be from 11 February to 5 December 1969. His eligible service as defined in the Act is limited to that period. The applicant having had operational service, Section 120(1) and 120(3) of the Act then apply and the Tribunal is required to find that the applicant’s claimed conditions are war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for doing so. Additionally, as the claim was lodged after 1 June 1994, by virtue of section 120A of the Act, the Tribunal is required to assess the matter in accordance with any relevant Statement of Principle (“SoP”) issued by the Repatriation Medical Authority (“RMA”).

Diagnosis of Claimed Conditions

4.      As the initial step in its review process, the Tribunal must be relevantly satisfied as to the appropriateness of the diagnosis and description of the claimed conditions. In this instance the medical opinion evidence clearly establishes that the two conditions involved for the applicant in this regard are osteoarthrosis of the right knee and lumbar spondylosis. This is also common ground for both the applicant and respondent and the Tribunal itself is reasonably satisfied from the material before it, that this is indeed the correct and appropriate description of the two claimed conditions.

Applicant’s Contentions Re Claimed Conditions

5.      The applicant’s contention is that both his right knee and lumbar spine conditions were caused, or contributed to in a material degree, by his war service. Specifically he contends that, as a rifleman and subsequently as a driver in Vietnam over his 10 months in country, he was consistently involved in carrying/lifting items while weight bearing and that this activity was a causal factor in the subsequent development of osteoarthrosis right knee and lumbar spondylosis.

6.      Following the process set out in the Full Federal Court in Repatriation Commission v Deledio 83 FCR 82, the Tribunal first considered the relevant material before it in relation to this contention concerning both claimed conditions. Without initially making findings of fact in this regard, the Tribunal is satisfied that the material adequately points to a hypothesis connecting each of these conditions with the applicant’s war service.

Statements of Principle

7.      There are SoP’s in force, determined by the RMA, dealing with both osteoarthrosis and lumbar spondylosis. These are as follows:

(a) Osteoarthrosis – the current SoP is Instrument 81 of 2001. As at the time of the respodent’s decision in 1999 it was Instrument 41 of 1998, as amended by Instrument 19 of 1999.

(b) Lumbar Spondylosis – the current SoP is Instrument 46 of 2002, as amended by Instrument 77 of 2002. As at the time of the respondent’s decision it was Instrument 27 of 1999.

8.      The Tribunal is required, in the first instance, to assess the matter using the SoP’s now current. Should it not find in favour of the applicant as a result, then the applicant has an accrued right for the matter to be assessed using the SoPs current at the time of the respondent’s decision.

Evidence

9.      In Vietnam, the applicant first served with the Army’s reinforcement unit (“IARU”) as a rifleman, from 11 February to 18 March 1969 – a total of 36 days. In this period it is stated by him that he spent 15 days on close-in patrols around the Task Force base at Nui Dat (“TAOR patrols”) during which he carried a semi-full pack, rifle, ammunition and water bottles – together weighing a total of about 27 kg. These patrols were normally overnight (one night) and it is maintained they would have involved the applicant lifting and carrying his pack etc an estimated 10 times each day. It is further stated by him, in relation to his time in IARU, that another 15 days approximately were spent on work party activity. This is said to have involved filling/lifting and laying sand bags, digging and preparing weapon pits/firing bays – most of which activity encompassed weight bearing. This 15 days of work party activity, the applicant maintains, required some 40 lifts of sandbags etc each day with average weights of each lift of 30 kg and sometimes heavier than that. The calculations in this respect by the applicant’s advocate, covering the applicant’s time in IARU, and as presented to the Tribunal at the hearing are:

·     Work party activity:

15 (days) x 40 (lifts of sandbags etc per day) x 30 kg (per lift)

= 18,000 kg

·     TAOR patrols:

15 (days) x 10 (lifts of pack etc per day) x 27 kg (per lift)

= 4,050 kg

(Remaining 6 days of the period are said to have been spent on stand-down)

·     Cumulative total at IARU: = 22,050 kg

10.     The applicant was subsequently posted to an infantry battalion then in Vietnam (9RAR), from March to November 1969. Initially his employment was again as a rifleman and during this period he states he was involved in the following battalion operations, codenamed as shown in Exhibit A1:

·     Federal:   24 March to 1 April 1969

·     Overlander: 2 to 15 April 1969

·     Surfside: 16 to 23 April 1969 (but for one day only – 16 April – due to injury that day)

·     Reynella: 8 May to 15 June 1969

·     Matthew: 29 June to 17 July 1969

·     Hat Dich: 18 to 31 July 1969

It is stated by the applicant that these operations each involved occupation of fire bases away from the Australian Task Force base at Nui Dat. The applicant advises that he was equipped, as before, with a rifle but with more ammunition and water bottles, and a full pack including rations – all of which in these instances would have weighed a total of at least 30 kg on each operation. He further estimates that the lifts of this total load would have occurred at least 10 times per day. The total period on operations is said to be 91 days. It is contended by the applicant’s advocate that the weight bearing calculations in regard to the applicant’s period on operations with 9RAR as a rifleman is therefore as follows:

·     91 (days) x 10 (lifts of pack etc per day) x 30 kg (per lift)

= 27,300 kg

11.     The applicant estimates that of the remaining period as a rifleman with 9RAR, ie. when not on actual operations as described in paragraph 10 above, some 65 days were spent by him on work parties in the battalion/Task Force base area. This again involved a lot of manual work – filling/carrying and laying sandbags, carrying coils of barbed wire and improving defensive works etc that involved lifting and weight bearing of items/stores most of which were often in excess of, but probably averaging, 30 kg in weight. Such lifts and carries would, he states, have occurred at least 40 times a day for each of those 65 working days. It is the applicant’s advocate’s contention that the relevant weight bearing calculation in this respect is as follows:

·     65 (days) x 40 (lifts of items per day) x 30 kg (per lift)

= 78,000 kg

12.     Based on the assessed figures provided by the applicant in paragraphs 9 to 11 above, the cumulative total of loads lifted and carried by him in excess of 25 kg while weight bearing during these periods of his service in Vietnam is 127,500 kg.

13.     The applicant subsequently became a driver in 9RAR and although his activities in this period in Vietnam, including carrying 105mm artillery rounds on operations at fire bases and other frequent lifting tasks involving weight bearing, were initially raised by his advocate as factors that would have contributed to the claimed conditions, this proposition was later withdrawn during the hearing. Without doubt, in the Tribunal’s opinion, some of these activities did involve relevant lifting/weight bearing. In the end result however, evidence of this was not considered by the applicant’s advocate to be necessary to make the applicant’s case (in mathematical terms). In the circumstances the Tribunal agreed to exclude this material from its consideration unless it subsequently found it to be inappropriate to do so.

14. The applicant also had an injury on operations in 9RAR on 16 April 1969, in which it is recorded in the T documents (T5 page 23 and 24) that he sustained a mild sprain to his left ankle. After evacuation to the base at Nui Dat, he was medically examined, treated and given 2 days light duty. According to the applicant’s evidence, this injury occurred when he exited early from a helicopter at the time of insertion and on an unsecured landing zone on Operation Surfside. He believes that this may also have caused some injury to his lower back and knees at that time. However, this contention was not pursued by the applicant’s advocate at the hearing. In any case, the Tribunal finds that there is insufficient evidence in the documented material before it for such a hypothesis to be supported, nor does the evidence given orally by the applicant adequately support the proposition either.

15.     Additionally, the matter of the applicant’s accepted disability of malignant melanoma left thigh having a contributory effect on the development of the now claimed lumbar spondylosis and right knee problems was raised by his advocate. There may, in the Tribunal’s opinion, be some merit in this suggestion on the face of it. However, this possible contention also was not proceeded with at the hearing by the applicant, neither is there sufficient supporting evidence before it for the Tribunal to include it in its consideration.

16.     The evidence presented concerning the clinical onset of the two claimed conditions results in this onset question not being in dispute to any significant degree, albeit the resultant outcome is approximate.

(a) Osteoarthrosis of right knee: estimated to be between 1985 and 1999 – based on the applicant’s original claim and the statement by Dr T Knight at T8 page 36, as well as T18 page 54 in which the applicant states the onset is in the mid 1980s. It was then diagnosed more specifically in 1999 as having an onset in the 1990s in Dr Schulz’s report at T15 pages 49 and 50.

(b) Lumbar spondylosis: estimated to be in the 1980s, but reported to be only in its early stages by 1991, based on Dr Teo’s opinion at T6 page 29.

17.     The respondent’s representative’s submission is that the respondent has no major disagreement with the contention raised by the applicant concerning his weight bearing activities over prolonged periods on active service as a rifleman in Vietnam – both on operations and also within or close to the Task Force base at Nui Dat. The respondent does however have concern over the lack of objective evidence regarding the detail of these activities, in particular some of the weights and frequency of lifts involved. Nevertheless, the respondent clearly indicates that it understands and accepts the difficulties presented in such circumstances. The respondent’s representative acknowledges that it requires personal knowledge and experience of such employments and operations to be able to positively and satisfactorily disagree, with any degree of confidence, or to distinctly alter the descriptions and estimates provided by the applicant – and which were given by him, in the respondent’s opinion, with apparent honesty in his oral evidence. The Tribunal agrees.

18.     The only specific disagreement the respondent raises concerning the applicant’s advocate’s calculations is essentially a mathematical one. The respondent considers that, based on Exhibit A1, the applicant spent 81 days on operations with 9RAR as a rifleman (during March to July 1969), rather than the 91 days contended by the applicant’s advocate. In which case the respondent’s calculated total for that period would be 24,300 kg and the resultant overall cumulative total would be 124,350 kg. Whilst the Tribunal’s opinion is that the number of days concerned correctly totals 91 (as contended by the applicant’s advocate), the difference between the two totals is assessed as not being likely to affect the end outcome when it comes to the requirements of the SoPs involved.

Requirements of the Relevant SoPs

19.     Osteoarthrosis of the right knee.. The current relevant SoP is Instrument 81 of 2001, titled “Osteoarthrosis”. The only factor relevant to the hypothesis raised is factor 5(k). This states as follows:

“(k) for osteoarthrosis of a hip or knee joint lifting loads of at least 25 kg while weight bearing to a cumulative total of 120,000 kg within any 10 year period, before the clinical onset of osteoarthrosis in that joint; or”

The term “weight bearing” is defined in the same SoP in paragraph 8 as meaning “weight loading the affected joint”.

20.     Lumbar spondylosis.. The current relevant SoP is Instrument 46 of 2002 (as amended), titled “lumbar spondylosis”. The only factor relevant to the hypothesis raised is factor 5(j), which is very similar to the osteoarthrosis factor stated above. Factor 5(j) in Instrument 46 of 2002 (as amended) for lumbar spondylosis states as follows:

“(j) manually lifting or carrying loads of at least 25 kg while weight bearing to a cumulative total of 120,000 kg within any 10 year period, before the clinical onset of lumbar spondylosis; or”

The term “weight bearing” in this case is not defined in SoP Instrument 46 of 2002.

21.     Despite the slight difference in wording between these factors in the two SoPs, the Tribunal is satisfied for the purposes of considering the matter before it, that the requirements to be met – as stated in the SoPs – can properly be regarded as being sufficiently similar to be taken as common to both claimed conditions.

Findings

22.     The Tribunal finds from the evidence before it that the two claimed conditions are appropriately diagnosed and correctly described as osteoarthrosis right knee and lumbar spondylosis (paragraph 4 above refers).

23.     In regard to the clinical onset of each of these conditions the Tribunal finds from the facts presented, as outlined at paragraph 16 above, that the clinical onset of the right knee condition is in the mid 1980s and certainly by 1999. The clinical onset of the lumbar spine condition, the Tribunal finds from the documented evidence available, is also in the 1980s and not later than 1991. Consequently it is clearly evident that the clinical onset of both claimed conditions post-dated the applicant’s operational service.

24.     The Tribunal accepts from the overall evidence before it that the applicant was engaged, as a soldier in Vietnam on active service, in strenuous physical activity/ manual labour. The personal knowledge and experience of the Tribunal member in this instance, as indicated at the hearing to both parties (transcript pages 63 and 64), supports this as a finding of fact. In general terms the same finding applies to the applicant’s evidence concerning the more specific duties and activities with which he was involved as a rifleman. The sort of weights/lifting and carrying, as estimated and described by the applicant, are in general similarly accepted by the Tribunal as being reasonable – and it so finds.

25.     It is another matter for the Tribunal to be satisfied of the preciseness and accuracy of the number of times lifts/carries were undertaken in an average day on operations, patrols, or work party activities in which the applicant was involved over his 10 months active service in Vietnam. Nevertheless, the figures advised by the applicant in his evidence, in the Tribunal’s opinion – based on its personal knowledge and experience of these type of activities at a similar time in that war – are regarded as being within reasonable limits of accuracy. They do not seem to the Tribunal to be, to any relevant degree, fanciful or obviously exaggerated. On the other hand, as has been commented upon by the Tribunal on other occasions, such figures and associated calculations in these circumstances inevitably are approximate – the assessments being largely subjective, albeit the weights of some items involved in this case are well known and accepted.

26.     As a consequence the Tribunal finds that the weight bearing and frequency calculations contended by the applicant in evidence and in his advocate’s submissions, as set out in paragraphs 9 to 12 above, provide as accurate a description and assessment of the applicant’s relevant activities as is possible under the circumstances. Apart from the question of 91 days on operations, these figures and calculations – as a consequence of the process of the hearing – are not in dispute. In regard to the disputed figure, as indicated in paragraph 18 above, the Tribunal finds from the evidence the applicant’s figure of 91 days to be more correct than the alternative provided by the respondent’s representative.

Conclusion

27.     From the evidence outlined above and its findings, the Tribunal is relevantly satisfied that the applicant’s war service activity, involving manual lifting and carrying, meets the weight bearing requirement prescribed in factor 5(j) in SoP Instrument 46 of 2002 (as amended) with regard to lumbar spondylosis and of factor 5(k) in SoP Instrument 81 of 2001 in regard to osteoarthrosis (of the right knee). In fact it well exceeds the required 120,000 kg cumulative total applicable in both Instruments – even under the respondent’s contended figures. This war service activity occurred within a one year period (some 10 months only) and is therefore well within the 10 year period required by the SoPs.

28.     As a result, the Tribunal is satisfied that the hypothesis raised by the applicant, applicable to both claimed conditions, ie. lumbar spondylosis and osteoarthrosis of the right knee, fits the template of each of the relevant SoP Instruments involved. The hypothesis, applicable to each claimed condition, is therefore a reasonable one in terms of the Act and as referred to in Repatriation Commission v Deledio.. Furthermore, having reached that conclusion and in pursuance of section 120(1) of the Act, the Tribunal is satisfied beyond reasonable doubt, based on all the material before it, that there is no sufficient ground for concluding that these two conditions were not contributed to, in a material degree, by the applicant’s particular operational service activity. Therefore, in accordance with the provisions of the Act, they are both war-caused.

Decision

29. For the above reasons and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal decides:

(a)  to set aside the VRB decision under review of 11 September 2001 in so far as osteoarthrosis of right knee and lumbar spondylosis are concerned;

(b)  to accept the conditions of osteoarthrosis right knee and lumbar spondylosis as being war-caused, with effect from 26 November 1999; and

(c)  to remit the matter of assessment of incapacity from these two war-caused conditions to the Repatriation Commission.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Brigadier R D F Lloyd, Member

Signed:         ..............(sgd V Wong)..........................

Associate

Date/s of Hearing  8 April 2003
Date of Decision  22 April 2003
Counsel for the Applicant         Mr P Lofdahl
Counsel for the Respondent     Mr C Ponnuthurai