HAWKE and REPATRIATION COMMISSION
[2010] AATA 657
•31 August 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 657
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/2007 &
VETERANS' APPEALS DIVISION ) 2008/3089 Re DARRYL HAWKE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal M D Allen, Senior Member Date31 August 2010
PlaceSydney
Decision The decision of the Respondent with regard to Lumbar Spondylosis is SET ASIDE and remitted to the Respondent with the direction that the Applicant is entitled to pension for the defence-caused disease of Lumbar Spondylosis, as and from 5 July 2005.
The decisions of the Respondent with regard to Ischaemic Heart Disease and Intervertebral Disc Prolapse are AFFIRMED.
................[sgd]...................
M D Allen, Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS - Lumbar Spondylosis. Calculation of weights lifted by Applicant during defence service conformed to Statement of Principles. Decision set aside.
Ischaemic Heart Disease and Intervertebral Disc Prolapse. Factor relied upon was level of cigarette smoking. Smoking habit established prior to defence service. Increase in smoking did not contribute in a material degree. Decision Affirmed.
LEGISLATION
Veterans’ Entitlements Act (1986) Ss 68, 69, 70, 120(4) and (6), 120B, 196B.
CASES
Repatriation Commission v Smith (1987) 15 FCR 327
Comcare v Canute (2005) 148 FCR 232
REASONS FOR DECISION
31 August 2010 M D Allen, Senior Member 1. By application made 10 July 2008 the Applicant sought review of that part of a decision by the Respondent that denied liability for the diseases diagnosed as Lumbar Spondylosis, Intervertebral Disc Prolapse (“IDP”) and Ischaemic Heart Disease (“IHD”).
2. Orthopaedic surgeon Dr Millons, in his report to the Respondent dated 11 September 2009, states that the diagnosis of the Applicant’s back condition is a disc prolapse at L2-3 and a smaller prolapsed disc at L5-S1. The diagnoses of Lumbar Spondylosis and IHD were made by the Applicant’s General Practitioner (“GP”). A report by orthopaedic surgeon Dr Tony Blue dated 26 March 2008 refers to “constitutionally related L5/6 disc degeneration and facet joint degeneration”.
3. In these proceedings the Applicant claimed that his IDP and IHD were related to his defence service because stress on service had led to an increase in his smoking habit. He further claimed that his Lumbar Spondylosis had been caused by lifting heavy weights on service.
4. The Applicant served in the Australian Regular Army from 29 January 1965 until discharge at his own request on 23 October 1985. Pursuant to Part IV of the Veterans’ Entitlements Act 1986 (“VEA”), his service for the period 7 December 1972 until discharge was eligible defence service and any incapacity from a defence caused injury or disease is compensable under that Act.
5. Subsection 120(4) VEA states inter alia that in determining whether an injury or disease is defence caused the Repatriation Commission, and hence this Tribunal, is to decide the matter to its “reasonable satisfaction”. In Repatriation Commission v Smith (1987) 15 FCR 327 the Full Court of the Federal Court pointed out that the term “reasonable satisfaction” equates to the civil standard of proof namely, proof on the balance of probabilities.
6. Subsection 120(6) VEA provides that neither party to this review bears any onus of proof.
7. Subsection 120B(3) VEA reads:
“(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war‑caused or defence‑caused only if:
(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:(i) a Statement of Principles determined under subsection 196B(3) or (12); or
(ii) a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.”
8. In this matter there are three relevant Statements of Principle. They are:
· Instrument No.38 of 2005 relating to Lumbar Spondylosis;
· Instrument No.40 of 2007 relating to Intervertebral Disc Prolapse;
· Instrument No.90 of 2007 as amended by No.44 of 2009 relating to Ischaemic Heart Disease.
9. As to Lumbar Spondylosis, the Applicant relied upon factor 6(h) in Instrument No.38 of 2005, namely:
“carrying or lifting loads of at least thirty-five kilograms while bearing weight through the lumbar spine to a cumulative total of at least 168 000 kilograms within any ten year period before the clinical onset of lumbar spondylosis, and where the clinical onset of lumbar spondylosis occurs within the twenty-five years following that period;”
Factor 6(f) in Instrument No.40 of 2007 was relied upon regarding IDP. That factor reads:
“smoking at least ten cigarettes per day, or the equivalent thereof in other tobacco products, for a continuous period of at least five years before the clinical onset of intervertebral disc prolapse, and where smoking has ceased or been reduced below that level, the clinical onset of intervertebral disc prolapse has occurred within one year of that cessation or reduction;”
Whereas for IHD factor 6(h)(ii) in Instrument No.90 of 2007 was relied up. That factor reads:
“Where smoking has not ceased prior to the clinical onset of ischaemic heart disease…smoking at least one pack year of cigarettes or the equivalent thereof in other tobacco products, before the clinical onset of ischaemic heart disease;”
10. From the material placed before the Tribunal it would seem that the clinical onset of the Applicant’s IHD was in 1996. According to his evidence the Applicant was still a smoker at that time.
LUMBAR SPONDYLOSIS
11. The Applicant gave evidence as to the weights he was required to lift whilst on service. The bulk of this evidence is set out at document T5 pages 47 to 52 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 together with Exhibit A3 in these proceedings.
12. In his oral evidence the Applicant explained the basis for these calculations and I have no reason not to accept them. Having accepted the calculations it is clear that factor 6(h) in Instrument No.38 of 2005 has been met. The decision in respect of lumbar spondylosis is therefore SET ASIDE.
13. The factors relied upon to link the Applicant’s IDP and his IHD both implicate smoking.
14. The Applicant’s evidence was that he started smoking whilst an Army apprentice but only very lightly as he could not afford to do otherwise. He first started to smoke seriously in 1969 when he was aboard the Army vessel, the Brudenell White when he purchased a carton of cigarettes duty free.
15. Up until mid 1972 the Applicant continued to smoke at a maximum of 20 cigarettes a day. In or about June 1972 the Applicant was transferred at short notice from Darwin to the Special Air Service Regiment (“SASR”) at Perth. His duties there were to maintain the engines for the unit’s watercraft and to instruct other members of the Regiment in the operator’s maintenance of the equipment.
16. The Applicant found the job and his responsibilities stressful and tiring and therefore increased his smoking to 30 cigarettes a day.
17. After leaving the SASR the Applicant’s smoking reverted to 20 cigarettes a day until he was detached from his parent unit to Hobart to service watercraft in the aftermath of the Tasman Bridge disaster. Again the Applicant found that due to the stressful nature of his duties his smoking increased to 30 cigarettes a day.
18. In 1977 the Applicant was promoted to Sergeant and transferred to an Army Reserve unit in Perth. At this unit, because of the stress of his duties, he again increased his level of smoking to 30 cigarettes a day.
19. From 1980 to 1984 the Applicant occupied the posting of a Senior Trades Non Commissioned Officer at 4 Base Workshop Bandiana. In addition to the responsibilities of his position the Applicant also had had to make a transition from his previous background in marine engineering to vehicle engineering, predominantly upon Leopard tanks. During this period he smoked at a level of 30 cigarettes a day.
20. In the period from 1984 until his discharge in October 1985 he was posted to 1 Watercraft Workshop at Woolwich in Sydney. The Applicant stated that this involved more stress as he was dealing with civil contractors and had to be familiar with contracts and regulations promulgated by the departments of finance and treasury, but had not received any training in this aspect of his duties. He stated he smoked 30 cigarettes a day at this time.
21. Following discharge from the Army the Applicant continued to smoke. At the time of his heart attack in 1996 he was smoking 20-25 cigarettes a day.
22. Cross examined the Applicant agreed that once having started smoking he increased his smoking then “plateaued out” then increased during times of stress but reverted to lesser amounts after these stressful periods had passed.
23. The Applicant was questioned regarding a record of his smoking taken in 1975 whilst in Perth. Although the Applicant had stated that the recording of smoking levels at Annual Medicals was somewhat arbitrary and could not be relied upon as accurate, I do not accept this argument regarding the document dated 17 June 1975.
24. The document in question is a report following an operation to relieve a deviated nasal septum with obstruction, which operation was carried out by Ear Nose and Throat Surgeon Dr Barnes. I am not convinced that an accurate history of smoking levels was not obtained by Dr Barnes or his registrar. The record shows that the Applicant in 1975, whilst posted to the SASR, was smoking 20 cigarettes a day.
25. To my mind it is clear that the Applicant had an established smoking habit of at least 20 cigarettes a day prior to commencing his Defence service, that is, prior to 7 December 1972.
26. Subsequent to that time his smoking habit increased to up to 30 cigarettes a day during periods he felt under pressure. Subsequent to these stressful periods the Applicant’s smoking levels returned to around 20 cigarettes a day.
27. I do not regard the Applicant as wholly accurate in his estimates of his levels of cigarettes smoked, for example the June 1975 medical report. That he is unable to be strictly accurate is understandable given the passage of time.
28. Subsection 196B(14) VEA reads inter alia:
“A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a) it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service; or
(c) …
(d) it was contributed to in a material degree by, or was aggravated by, that service;…”
29. In this matter it is clear that if the Applicant’s diseases of IHD and IDP are to be related to service, the factor relied upon in the relevant SoP is a service caused smoking habit.
30. The Applicant had an entrenched smoking habit prior to eligible defence service. During defence service his smoking habit increased during various periods when he was under stress and the question must be to what degree did the increased smoking habit cause, or contribute to, the smoking related injury or disease.
31. Paragraph 196B(14)(d) VEA refers to a factor causing injury or disease being contributed to in a material way.
32. Here the factors namely 6(h)(ii) for IHD and 6(f) for IDP state inter alia that various levels of smoking are causally connected with the said diseases. However in this matter the factor did not itself arise out of service nor was it attributable to service. It was the increase in the smoking that was attributable to service and therefore regard must be had to paragraph 196B(14)(d) VEA, namely service contributed to the disease by causing the increase in smoking. The contribution must however be a material contribution.
33. Section 196B was inserted into the VEA by the Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 (No.98 of 1994), that is to say after the passing of the Safety, Rehabilitation and Compensation Act 1988 (“SRC”). There is no reason to assume the Parliamentary draftsman used the word “material” in any different sense to the way the word was used in the SRC Act.
34. In Comcare v Canute (2005) 148 FCR 232 at 249 the majority pointed out that content must be given to the word “material” where it occurs in a statute and the inclusion of that term imposes an evaluative threshold below which any causal connection may be disregarded.
35. In this matter I am not reasonably satisfied given the history of the Applicant’s smoking both prior to defence service, during defence service and after defence service that the overall increase in smoking during stressful periods of defence service made a material contribution to the factors connecting the Applicant’s diseases of IHD and IDP with defence service.
36. The decision of the Respondent with regard to Lumbar Spondylosis is SET ASIDE and this matter remitted to the Respondent with the direction that the Applicant is entitled to pension for the defence caused disease of Lumbar Spondylosis as and from 5 July 2005.
37. The decision of the Respondent with respect to IHD and IDP are AFFIRMED.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of M D Allen, Senior Member.
Signed: .......................[sgd].................................
K. Lynch, AssociateDate of Hearing 9 August 2010
Date of Decision 31 August 2010
Counsel for the Applicant Mr C Colborne
Representative for the Respondent Department of Veterans Affairs
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