Hall and Repatriation Commission (Veterans' entitlements)

[2018] AATA 225

Hall and Repatriation Commission (Veterans' entitlements) [2018] AATA 225 (16 February 2018)

Division:VETERANS' APPEALS DIVISION

File Number:           2015/5606

Re:Peter Hall

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Deputy President Bernard J McCabe

Date:16 February 2018

Place:Sydney

I affirm the decision under review.

.............................[sgd]...................................
Deputy President Bernard J McCabe

CATCHWORDS

VETERANS' AFFAIRS – cervical spondylosis – applicant in receipt of partial disability pension – onset of condition – RAAF explosive ordnance specialist – whether condition caused by manual handling requirements of role – imaging evidence

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) – ss 23, 24

SECONDARY MATERIALS

Statement of Principles concerning Cervical Spondylosis, No 67. of 2014 – 3(b), 6(h)

REASONS FOR DECISION

Deputy President Bernard J McCabe

16 February 2018

INTRODUCTION

1. Mr Peter Hall served in the Royal Australian Air Force between 1967 and 2000 (exhibit 1, section 37 Tribunal documents, T2 at 2c). He has been diagnosed with cervical spondylosis. He says this condition is related to his eligible service in the RAAF. He already receives a partial disability pension under the Veterans’ Entitlements Act 1986 (Cth) (VEA) as a consequence of other, unrelated injuries and conditions. If he succeeds in his claim with respect to cervical spondylosis, he may be entitled to be paid the disability pension at a higher rate – perhaps under s 23 or s 24 of the VEA.

2. The Repatriation Commission acknowledges the applicant has cervical spondylosis but adds the condition could not be properly diagnosed until radiological imaging studies were obtained in October 2012. That is potentially a problem for the applicant because the date of onset of the condition might be too remote from his service. The Commission also doubts whether the applicant is able to satisfy other criteria in the relevant statement of principles.

3. I am not satisfied the applicant’s spinal condition is related to his service. I explain my reasons below.

   The applicant’s story

4. Mr Hall enlisted in the RAAF in 1967. He was originally trained as an armament mechanic. He subsequently became an armament fitter and then an aviation technician – explosive ordnance specialist.  For a significant part of his RAAF career, Mr Hall was responsible for the handling and management of bombs and rockets that were fitted to aircraft. He also played a role in managing weapons ranges, undertook bomb disposal work, and was involved in explosive inspection and monitoring (exhibit 3 at p. 1). 

5. Mr Hall worked with a number of aircraft types in different squadrons including the F-111 bomber and the Mirage fighter in Australia and in Malaysia. He described his work on aircraft in a statement dated 29 February 2016 and in his oral evidence. He said teams of young men would manhandle weaponry – bombs and rockets – from stands or trolleys onto aircraft. The statement included a photograph of airmen handling a missile that was being loaded onto a Sabre fighter aircraft. The explosive ordnance was often heavy and the bombs and missiles had to be manoeuvred into aircraft or onto brackets on the airframe. He described heavy loads being lifted and carried at awkward angles, and overhead lifting. In particular, he referred in his oral evidence to loads being carried on the shoulders, resting against the neck, and a practice of having to use the side of one’s head (or even the top of the head) and neck to steady loads as they were moved into place. 

6. The applicant also provided a written statement prepared by Wing Commander John Robb (ret). Mr Robb said the work of an armament fitter was done “in an environment of competition, under time and peer pressure.” Mr Robb added: “[c]rushing, scraping, straining, pinching and twisting injuries were common…” (statement of John Robb dated 18 August 2000 at pg. 2). Interestingly, Mr Robb did not at any point in his statement describe neck injuries or the need to carry loads on one’s head.

7. Mr Hall provided estimates of the weight of different types of ordnance handled on these occasions (exhibit 3 at pp. 2-3). Mr Hall also discussed the weight and dimensions of the ordnance during his oral evidence. He said a Sidewinder missile weighed around 80-85 kilograms. Some other items weighed less than 10-15 kilograms. He also referred to the racks which were mounted on the aircraft. He estimated the racks weighed between 20-30 kilograms but conceded they would usually be attached to the aircraft at the beginning of an exercise and remain there for several days, at least (AAT hearing transcript at pp. 17, 54). He also agreed many of the items would be carried with the assistance of another person which made it more difficult to calculate the amount of weight the applicant had to handle on his own.

8. Mr Robb said bombs and missiles could weigh up to a tonne. He added they were difficult to handle because they often had metal protrusions and sharp edges (statement of John Robb dated 18 August 2000 at pg. 1).

9. The applicant also explained the increased tempo of his work when he was involved with exercises. He referred in particular to his experience in Malaysia in 1973 and 1974 when RAAF aircraft were undertaking exercises in that country (AAT hearing transcript at pp. 18, 19). He described a work environment which required a more regular lifting of heavier loads as aircraft were prepared and serviced.

10. There is no reason to doubt Mr Hall was required to lift loads and carry them at awkward angles – often overhead – and that his work tempo increased during training exercises. Mr Robb’s evidence confirms that aspect of the applicant’s account. But the evidence was such that it was difficult to be sure how regularly the lifting occurred, which makes it difficult to arrive at a view of the cumulative load carried over time. It is also difficult to assess how much of the load was carried on his head.

    The statement of principles

11. The detail of the size of the individual loads, their frequency and the way in which they were carried, is important information. The applicant relied on factor 6(h) of the relevant Statement of Principles concerning Cervical Spondylosis, No 67 of 2014 (SOP). Factor 6(h) requires me to be satisfied the applicant:

    [carried] loads of at least 25 kilograms on the head while upright to a cumulative total of at least 120 000 kilograms within any ten year period before the clinical onset of cervical spondylosis, and where the clinical onset of cervical spondylosis occurs within the 25 years following that period.

12. While the applicant’s oral evidence included a description of occasionally carrying loads on his head– specifically when he would use his head to nudge a load into position from below – the evidence does not suggest the applicant did that often enough to satisfy the requirement in factor 6(h) of the SOP. The evidence of Mr Robb tends to support the applicant’s claim that he regularly carried loads in excess of 25 kilograms, but factor 6(h) requires that the loads be carried on the head. Carrying a load on the shoulders – even if that load rests against the neck and exerts some sort of pressure on the spine – is not the same thing. I note Dr Millons, who was called by the respondent, acknowledged in cross-examination that carrying loads resting on the side of the neck might contribute to the development of cervical spondylosis (AAT hearing transcript at pp. 120, 121). However Dr Millions added he would expect any impact from such activities in the 1970s would show up in imaging studies taken in 1999 (AAT hearing transcript at pp. 120, 121). That did not occur.

13. As it happens, I do not think the concession from Dr Millons makes any difference to the outcome of the case. Experience may show that bearing a load other than on the head might contribute to the development of cervical spondylosis, but that is not the point. The question is whether the factors in the relevant SOP have been satisfied. The relevant factor requires that the load be carried on the head. There is limited evidence of that occurring.

14. The requirement in the SOP that the loads be carried within a certain period before the date of clinical onset of cervical spondylosis potentially creates another problem for the applicant. Ms Scriva, who appeared for the Commission, pointed out clause 3(b) of the SOP defined cervical spondylosis in the following terms:

    (b)       For the purposes of this Statement of Principles, “cervical spondylosis” means a degenerative joint disorder affecting the cervical vertebrae or intervertebral discs         with:

    i.Clinical manifestations of local pain and stiffness, or symptoms and signs of cervical cord or cervical nerve root compression; and

    ii.Imaging evidence of degenerative change, including disc space narrowing or osteophytes. Other commonly associated features include facet joint arthritis, bone hypertrophy and spinal stenosis. This definition excludes diffuse idiopathic skeletal hyperostosis and bulging of an intervertebral disc in the absence of other signs of disc degeneration. Cervical spondylosis includes spondylosis at the cervicothoracic junction.

15. The requirement in the second limb of the definition that there be imaging evidence is important. Dr Gurgis, who was called by the applicant, was able to refer to clinical manifestations of pain and stiffness from at least 1999. However Dr Gurgis conceded in cross-examination that the imaging studies taken at the time did not disclose evidence of degenerative change (AAT hearing transcript at p.104). (The studies were performed in relation to an upper limb condition.) Dr Millons explained that imaging studies were essential to the diagnosis because it would otherwise be impossible to exclude other potential causes of the reported pain and stiffness. He said the imaging studies in 2012 confirmed the diagnosis of cervical spondylosis but he added it was impossible to say the condition was present in 1999. At best, he said, it was possible to say the condition emerged somewhere between 1999 and 2012. He also said the notes from the applicant’s general practitioner do not record complaints of pain and stiffness in the neck until comparatively late in the day. Dr Millons also noted the applicant’s service medical records do not feature clear evidence of neck symptomatology (exhibit 7, Dr Millons’ report dated 21 June 2016).

16. If the date of clinical onset is the earliest date on which a proper diagnosis could be made, I am left to speculate as to when the degenerative changes might have shown up if imaging studies had been performed. I accept the imaging studies did not disclose degenerative change in 1999. If the degenerative change would not have become apparent until much closer to 2012, it is unlikely the applicant would be able to satisfy the requirement in factor 6(h) of the SOP being the date of onset occur within the requisite time after the loads were being carried on the head. I do not need to reach a concluded view on that question given my conclusion the evidence does not establish the applicant was carrying sufficient loads on the head throughout his service.

    CONCLUSION

17. During the course of the hearing, there was some discussion over whether the applicant could produce evidence that would enable him to satisfy one of the other factors in clause 6 of the SOP. An adjournment was allowed for this purpose. But the applicant was unable to provide any additional evidence that assisted his claim. I agreed to decide the matter on the basis of the material before me. For the reasons I have explained, I am satisfied the decision under review must therefore be affirmed.

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe

...............................[sgd].........................................

Associate

Dated: 16 February 2018

Dates of hearing:	25 May 2017 and 26 May 2017
Date final submissions received:	29 August 2017
Counsel for the Applicant:	Mr Tim Saunders
Solicitors for the Applicant:	KCI Lawyers
Solicitors for the Respondent:	Sparke Helmore Lawyers