Hawkett and Repatriation Commission
[2003] AATA 1060
•17 October 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1060
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2001/467
VETERANS' APPEALS DIVISION ) Re JACQUELINE HAWKETT Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member WJF Purcell Date17 October 2003
PlaceAdelaide
Decision The Tribunal sets aside the decision under review, and substitutes a decision that the applicant’s condition of lumbar spondylosis is defence- caused, and that she is entitled to payment of Disability Pension with effect from 16 December 1999.
.
(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – Disability Pension – whether applicant’s condition of lumbar spondylosis is defence-caused – whether trauma to lumbar spine is of severity defined in SoP – date of clinical onset – balance of probabilities
Veterans’ Entitlements Act 1986 sections 120, 120B
Statement of Principles Instrument No 47 of 2002
Dibbins v Dibbins, unreported, Supreme Court of South Australia, 23 October 1978
REASONS FOR DECISION
17 October 2003 Senior Member WJF Purcell 1. This is an application for review of a decision of the Repatriation Commission (the Commission) of 7 June 2000, insofar as it rejected the applicant’s claim for payment of Disability Pension for her lumbar spondylosis. The Commission accepted the conditions of sprain or strain of the right wrist, post traumatic stress disorder with alcohol abuse or dependence, and depressive disorder, as defence-caused under the Veterans’ Entitlements Act 1986 (the Act), but rejected also the conditions of chronic bronchitis and emphysema. The Veterans’ Review Board (VRB) affirmed the decision on 30 October 2001.
2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents) together with exhibits tendered by the parties. Mr F Grady, Advocate, Vietnam Veterans’ Association, NSW, represented the applicant, who gave oral evidence, and called Mr A Munyard, Orthopaedic Surgeon, as a witness. Mr Doube represented the Commission.
3. The applicant, who is 49 years of age, served in the Australian Army (the Army) for nearly 12 years, from 1 May 1973 until 3 April 1985. She has eligible defence service, pursuant to the Act, and the standard of proof is that of reasonable satisfaction in accordance with section 120(4) of the Act, which provides:
“(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B”
.
4. Section 120B of the Act, as far as is relevant for the purposes of this review, provides:
“(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;
(b)a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.
Note 1: Subsection 120 (4) is relevant to these claims.
Note 2: For hazardous service and member of the Forces see subsection 5Q (1A).
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B (3) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(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.
…”
5. On 16 March 2000 the applicant lodged a claim for pension in respect of,inter alia, lumbar spondylosis. On 7 June 2000 the Commission rejected the claim and on 30 October 2001 the VRB affirmed the decision.
6. The applicant asserts that her condition of lumbar spondylosis is defence- caused, because she suffered a fall, in the course of her duties, on 23 August 1982, and suffered an injury to the lumbar spine at the L5/S1 region, which led to the condition.
7. The current Statement of Principles for lumbar spondylosis is Instrument No 47 of 2002 (the Lumbar Spondylosis SoP). The Statement of Principles in force at the time of the original Commission decision, Instrument No 28 of 1999, is a less favourable Statement of Principles, and not relevant for the purposes of this review.
8. The applicant asserts that she satisfies Factor 5(g) of the Lumbar Spondylosis SoP:
“suffering a trauma to the lumbar spine within the 25 years immediately before the clinical onset of lumbar spondylosis”
“Trauma to the lumbar spine” is defined as:
“… a discrete injury to the lumbar 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 lumbar spine. These symptoms and signs must last for a period of at least 10 days following their onset; save for where medical intervention for the trauma to the lumbar spine has occurred, where that medical intervention involves either:
(a) immobilisation of the lumbar spine by splinting, or similar external agent; or
(b) injection of corticosteroids or local anaesthetics into the lumbar spine; or
(c) surgery to the lumbar spine.”
9. The applicant contends that she suffered an injury to her lumbar spine on 28 August 1982, and that this injury raises a connection between her condition of lumbar spondylosis and the eligible defence service she performed.
10. The Commission concedes that the applicant fell down some stairs on 23 August 1982, suffering bruising to the right hip. It does not concede that this incident caused injuries to the applicant’s lumbar spine, and constituted trauma of the severity envisaged in the Lumbar Spondylosis SoP. The Commission contends that there is no evidence of a causal link between the applicant’s lumbar spondylosis, and her eligible defence service, pointed to by the facts in this case, and that her application should not succeed.
11. In this matter there is a conflict between the documentary evidence relied upon by the Commission, and the medical evidence led at the Hearing. This review is an example of the principle that where there is such conflict the primary consideration may be the credibility of the applicant. In Dibbins v Dibbins (unreported Supreme Court of South Australia Judgment delivered 23 October 1978) Bright J approached a similar problem in this way:
“… Of course, anatomical signs detected by the medical specialists or the absence of such signs may tend to establish that the patient is telling untruths about or is exaggerating her symptoms. But it is the symptoms that are central, not the signs. I hope that I am not being unduly idiosyncratic when I say that if reliable independent evidence clearly indicates that the patient is credible, one does not disregard his or her complaints merely because the signs suggest that little or nothing is seriously wrong. Failure to recognize this simple truth has, I should think, led to the death or invalidity of many patients. Medical science has advanced very far but it is still not always capable of producing unqualified and indisputable answers.
Very often there is no reliable independent corroboration of the patient’s account. In such a case, obviously, the medical evidence is of the greatest importance, especially if the medical evidence is all one way. But if the doctors disagree the judge still has to decide, and he may not make it his first concern to assess the relative credibility of the doctors. I think he may first assess the evidence of the patient.”
I have, with respect, adopted this approach.
12. I heard lengthy oral evidence from the applicant, and I found her a credible witness, and I consider that she outlined events to the best of her recollection, and without conscious exaggeration. Dr Munyard provided helpful and objective evidence, and I accept his evidence and opinions.
13. The applicant was nearly 19 years of age when she enlisted. She worked with Transport for 2 years, and for the balance of her career, with the Military Police. In 1982 she was on duty at Irwin Barracks, Karrakatta, Western Australia. She said in evidence that at the completion of her shift, at about 7.00 am, on 23 August 1982, she intended to go to the vehicle compound to fill in the log. She opened the outer door, went to the concrete landing, above 6 to 7 concrete steps. The next thing she remembered was being at the base of the staircase, on her back, lying parallel to the bottom step. She said that she felt “faint”, and had pain in the lower back and into both buttocks. She was unable to move for some time because of the pain. When she recovered her breath, she crawled up the stairs to the building. Another unit member, sometime later, assisted her over to the nearby Medical Centre. The attendance is recorded by Dr Newnham in the documentary evidence at T4/25. Dr Newnham noted that the applicant had fallen down stairs about 1 hour beforehand, had bruised her right hip, felt “faint and sweaty”; that on examination, there were no signs of shock by then, there was tenderness over the right gluteal muscle and no limitations of hip or knee joints, and the coccyx was not tender. He diagnosed a “bruise”, and prescribed heat, aspirin and Lasanol cream. She was certified as not fit for duty for 2 days.
14. Dr Newnham noted on the following day, 24 August 1982, that on examination the bruise was 4”x2” on the right buttock; that the applicant was feeling better, but still had some gluteal discomfort. He certified her as fit for sedentary duties only, and to be reviewed on 27 August 1982. On 27 August 1982, she was examined by another medical practitioner, Dr Thomas, who noted that she had fallen down stairs, that she had a bruise on the right buttock, and was now improving. He prescribed the continued use of Lasanol cream, and certified her as fit for full duty. She saw Dr Thomas again 4 days later, on 31 August 1982, when she was complaining of nausea and diarrhoea. He prescribed Lomotil tablets, with review of her condition to take place on 1 September 1982. There is no reference to the injury of 23 August 1982. On 1 September 1982 Dr Thomas noted that the diarrhoea had stopped, that the applicant felt much better; and he certified her as fit for full duty. Again, there is no reference to the 23 August 1982 incident.
15. The applicant consulted Dr Thomas again on 28 March 1983, and he noted that she had fallen down stairs 8 months beforehand, and hit her right buttock “now aching periodically”. He prescribed Naprosyn, and referred her for x-rays, noting that now the right sacro-iliac joint area was aching. The x-ray report reads as follows:
“LUMBAR SPINE:-
There is a mild lumbar tilt to the left. No other abnormality seen. The disc spaces are of normal width except L5-S1 and any narrowing here could be developmental. No evidence of past bony injury is seen.
Sacro-iliac joints:
The sacro-iliac joints are normal in appearance.” [T4/32]
16. The applicant gave evidence that when she saw Dr Newnham on the day of the injury, 23 August 1982, she told him that she had pain in the lower back, and showed him the broad area of pain in the hip and lower back, but he has not recorded her complaint. She said also, that she complained of low back pain on 27 August 1982, and was continuing to take Aspirin; but that this has not been recorded. She said in evidence that in the 4 week period after 23 August 1982, her husband helped in the home, because she could not perform these duties. She was continuing to take Aspirin, and continued to have low back pain sitting or standing for any length of time. Because of the jarring she experienced whilst riding the motorbike, she spoke to her Platoon Sergeant, who placed her on office duties for quite a few weeks, which alleviated the pain, but the pain was always there, and she was unable to do PE, but undertook muscle strengthening exercises.
17. The applicant’s husband, Brenton Hawkett, from whom she is now divorced, provided a statement dated 8 September 2000 which reads, in part:
“…
From the first day I rubbed the same area morning and night for the first week or so, and then nightly for about another two weeks. She was in a lot of pain during this period and she certainly told me about it.
Jackie was not very mobile during this period and I remember that riding Army motor bikes on one occasion made everything worse. This happened in the first couple of days after she returned to duty and she asked the Sergeant to put her on other duties until her back improved.
She is not the person to make frivolous complaints or to shirk her duties. However, there were daily complaints of pain, tenderness and discomfort and I thought that there was something more serious than a mere strain.
From the onset of the injury I had to do the vast majority of the household tasks, such as making beds, hanging out the washing, ironing clothes, vacuuming and general cleaning, gardening and other jobs that needed bending or twisting or stretching.
This lasted for about 4 weeks after the injury and then the pain subsided to the point where Jackie was able to do them again, but she was careful in how she did things.
Her condition generally improved but sometimes Jackie would complain of an “ache” or I would see her holding the lower back when she was not aware that I was watching.
Over the years following the injury there were more frequent complaints from her about pains in the lower back and she would ask that I rub her back (a very non-professional massage) with “goanna oil” and stuff that we bought from the supermarket.
In the Army we underwent frequent PE time as we were required to remain in an FE category and during these classes sometimes I would see Jackie wince or hear her mutter something in pain.
There was a gradual decline over the years with it more pronounced over the past 5 – 10 years. I was doing more and more of the housework as she was unable to do it.
The complaints were always of the same area in lower part of her back.
…” [T9/74-75]
18. When the applicant underwent her Discharge Medical Examination, on 19 March 1985, it was noted that she had been classified “F.E.” since 1981; and although in answer to Question 52 she stated that she had suffered a joint injury or dislocation (the right wrist injury) she answered “no” in relation to any back injury [T4/33]. The applicant said in evidence that she had her young child with her on the day, and the child was grizzling and crying, and she wanted to get the examination over as quickly as possible.
19. The applicant gave evidence that she returned to Adelaide in 1986/87, and that from 1988 onwards she has been seeking treatment from a chiropractor for low back pain. She was involved in a motor vehicle accident in 1989/90, and suffered a “whiplash” injury; and she worked as a domestic from 1985 to 1992, undertook house cleaning from 1992 to 1994, and from then onwards has been involved in a business called JAKAL Enterprises, firstly on a part-time basis, and since 1997 she has been the proprietor of the business.
20. The applicant gave evidence that on a Sunday in January 2000 her back “went out” and she had to crawl into the chiropractor’s consulting rooms, on the following morning, with the help of friends. The same thing happened in May 2000. She says that she can drive and stand now for only 20 minutes, at any given time, and suffers from a constant dull pain in the lower spinal area.
21. On 18 May 2001, the applicant was examined by Dr Munyard, Orthopaedic Surgeon, who reported on 25 May 2001, in part, as follows:
“…
Mrs Hawkett stated that she has been having trouble with her back for 20 years. In the last 10 years it has become worse.
She indicated that whilst in the Army she had been serving with the Military Police at Karrakatta Barracks in Western Australia. She was on duty alone and she fell down a flight of steps measuring about 5 feet above ground. She landed heavily on her bottom. She stated that she was unable to get up for a while.
…
She stated that the condition of her lower back slowly improved, but over the years she has had to stop doing a lot of things. She has had episodes where she can be quite restricted.
She stated that in January 2000 her back ‘went out’ and she had to crawl to the Chiropractor. The same thing happened in May of last year.
She stated that as a consequence of that she has had to give up dancing and also scuba diving. She finds at times her back is very painful. She now has trouble rolling over in bed and cannot go for long distance drives.
…
Mrs Hawkett brought with her some x-rays of her lumbosacral spine. These show that there is narrowing of the L5-S6 disc space.
I note that x-rays reported as being taken on 28th March 1983 also show narrowing of L5-S1 disc space.
Mrs Hawkett presents with a history of having had no back pain prior to her fall whilst on duty 20 years ago at Karrakatta Barracks. Following this, she has had ongoing pain in her back, which had gradually become worse.
I believe that this woman has lumbar spondylosis and probably suffered an injury to L5-S1 at the time of the fall. It now continues to worry her.
…” [T13]
22. Dr Munyard said in evidence that a fall from the height described by the applicant could be sufficient to sustain an injury to the spine, to the disc itself, she could have suffered a disc prolapse. Although the medical records do not note any complaint at the time, of a painful spine, the fall on the right hip could possibly have caused injury to the spine. The disc narrowing apparent in the 1983 x-rays (when she was 29 years of age), and again in 1999 and 2000, is common in people over 50, and less common in people under 50. The narrowing can be due to developmental factors, a degeneration within the disc, and one cannot say whether the changes are due to development causes or an injury. These x-ray changes can be asymptomatic. It is not black and white, he said. Trauma can be a factor in the development of lumbar spondylosis, as can heredity. In some cases, a minor trauma, such as a sneeze, or bending, can initiate the condition, or the condition can develop in the absence of trauma.
23. On the applicant’s evidence, and the statement of her former husband, the applicant suffered pain in her lower back and into both buttocks, at the time of the injury, and continued to experience low back pain, sitting or standing for any length of time. These symptoms lasted for a period of at least 4 weeks on the applicant’s evidence, and in accordance with the applicant’s husband’s statement. I am reasonably satisfied, on the evidence, that the applicant suffered trauma to the lumbar spine on 28 August 1982, as defined in the Lumbar Spondylosis SoP, and that she suffered that trauma to the lumbar spine within the 25 years immediately before the clinical onset of lumbar spondylosis. Factor 5(g) of the Lumbar Spondylosis SoP is satisfied. I am reasonably satisfied that the material before the Tribunal raises a connection between the disease and the particular service rendered by the applicant; and that the Lumbar Spondylosis SoP upholds the contention that the disease is, on the balance of probabilities, connected with the service.
24. For these reasons the Tribunal sets aside the decision under review, and substitutes a decision that the applicant’s condition of lumbar spondylosis is defence- caused, and that she is entitled to payment of Disability Pension with effect from 16 December 1999.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed: .......................................................................................
AssociateDate of Hearing 24 January 2003
Date of Decision 17 October 2003
Counsel for the Applicant Mr F Grady
Solicitor for the Applicant Vietnam Veterans' Assn
Counsel for the Respondent Mr G Doube
Solicitor for the Respondent DVA
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