Hawkins and Repatriation Commission - [2002] AATA 1285

DECISION AND REASONS FOR DECISION [2002] AATA 1285

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1731

VETERANS' APPEALS DIVISION          )
           Re      KENNETH HAWKINS
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member M D Allen Dr M E C Thorpe, Member

Date13 December 2002
PlaceSydney

Decision The decision under review is set aside and the Tribunal substitutes in lieu thereof its decision namely THAT: 1. The Respondent Repatriation Commission is liable to pay pension to the Applicant for the war-caused diseases of alcohol abuse, hypertension, impotence and gout as and from 19 March 1998; and 2. The diseases of osteoarthritis right shoulder, cervical spondylosis, lumbar spondylosis, varicose veins, osteoarthritis right knee, depressive disorder and trait anxiety are not war-caused injuries or diseases.

(Sgd) M D ALLEN
Presiding Member
CATCHWORDS
VETERANS' ENTITLEMENTS - claim for alcohol abuse, osteoarthritis right shoulder and cervical spondylosis - any reaction to traumatic event subject specific - trauma induced injuries qualified by definition of trauma in SoP and by reference to medical treatment required - explanatory notes no assistance in evaluating evidence.

Veterans' Entitlement Act 1986 - ss 124(4) and (6), s 120B

Repatriation Commission v Gorton 110 FCR 321
Tame v New South Wales 76 ALJR 1348
Chadwick v British Railways Board [1967] 1 WLR 912
O'Neil v Repatriation Commission 34 AAR 290
Repatriation Commission v Smith 15 FCR 327

REASONS FOR DECISION

13 December 2002 Senior Member M D Allen Dr M E C Thorpe, Member

By application lodged with the Tribunal on 7 May 1999 the Applicant sought review of a decision by the Respondent dated 21 October 1998 as affirmed by a Veterans' Review Board ("VRB") that rejected his claim to have various conditions accepted as related to his war service.

The Tribunal handed down its original decision in this matter on 21 June 2001. However that decision was the subject of an appeal to the Federal Court who on 1 November 2001 ordered that the decision be set aside and the matter be remitted to the Administrative Appeals Tribunal.
The matter then came on for further hearing before this Tribunal on 18 November 2002. At that hearing the following documents were taken in as exhibits and marked as follows namely:

T1 - T24 : Documents prepared for the Tribunal pursuant to
s37 of the Administrative Appeals Tribunal 1975

Exhibit A1 : Applicant's Statement of Facts and Contentions

Exhibit A2 : Bundle of documents being the Applicant's exhibits in previous
proceedings

Exhibit A3 : Letter from Mr Carter dated 14 July 2002

Exhibit A4 : Letter from Mr Carter dated 31 July 2002

Exhibit R1 : Respondent's Statement of Facts and Contentions

Exhibit R2 : Bundle of documents being Respondent's exhibits in previous
matter

Exhibit R3 : Report of Brendan O'Keefe dated 18 April 2002

Exhibit R4 : Report of Robert Piper dated 14 August 2002

Exhibit R5 : Copy of Applicant's record of service

At the outset of proceedings it was made clear by the Applicant's counsel that the Applicant was not proceeding before the Tribunal with his claim in respect of osteoarthritis right knee, varicose veins and lumbar spondylosis. For its part the Respondent accepted that if the Applicant's claim in respect of alcohol abuse is accepted then entitlement exists with respect to the conditions of hypertension, impotence and gout. (See Exhibit R1).
Although the original decision the subject of this review did refer to diseases described as "depressive disorder" and "trait anxiety" as well as alcohol dependence, both parties agreed in these proceedings that the correct diagnosis of the Applicant's psychiatric condition was "alcohol abuse". Therefore the injuries and diseases claimed to be war-caused were alcohol abuse with its subsidiary diseases of hypertention, impotence and gout, together with cervical spondylosis and osteoarthritis right shoulder.
The Applicant served in the Royal Australian Air Force ("RAAF") during the latter part of World War II having enlisted at age 18 and having been further selected for pilot training. The Applicant was however discharged from the RAAF without graduating as a bomber pilot as he wished because of the cessation of hostilities.
The practical effect of that discharge is however that the Applicant, although having had eligible war service as that term is defined in paragraph 7(1)(c) of the Veterans' Entitlement Act 1986 ("VEA"), did not have "operational service" as that term is defined in s6A VEA.
As the Applicant did not have operational service the standard of proof in this matter in that mandated by ss120(4) VEA, namely that of to the Tribunal's "reasonable satisfaction". As pointed out by the Full Court of the Federal Court in Repatriation Commission v Smith 15 FCR 327 that equates to proof on the balance of probabilities. Subsection 120(6) VEA provides that neither party to this review bears any onus of proof.
Section 120B VEA states inter alia that the Repatriation Commission and hence this Tribunal can only be reasonably satisfied that a claimed injury or disease is connected to service, if a so called Statement of Principles ("SoP"), issued by the Repatriation Medical Authority upholds the contention that the said injury or disease is connected with service. In other words notwithstanding the medical evidence before the Tribunal, the Tribunal can only be reasonably satisfied that an injury or disease is caused or contributed to by eligible war service if the SoP permits that conclusion.
So far as is relevant to these proceedings the applicable SoP is Instrument No 77 of 1998 entitled Psychoactive Substance and Dependence. It was submitted by the Applicant, and we agree, that this SoP is more favourable to his case than the SoP in force at the time the Respondent made its original decision. See Repatriation Commission v Gorton 110 FCR 321. The current Instrument regarding cervical spondylosis namely No 51 of 2002 as amended by No 64 of 2002 is more favourable to the Applicant's case whereas in relation to the claim of osteoarthritis right shoulder the applicable instruments are No 42 of 1998 and the current Instrument No 82 of 2001. Given the expanded definition of "trauma to the affected joint" in Instrument No 82 of 2001 we are of the opinion that the later instrument, namely that of 2001, is more favourable to the Applicant than the earlier Instrument No 42 of 1998.
The Applicant, who was born on 3 September 1925, joined the RAAF on 1 January 1944 being aged 18 years and three months. His initial training was at Bradfield Park at Sydney. He was then posted to Narrandera for flying training and after periods spent at Tocumwal carrying out stores work and a period when his course was conscripted to bring in the grape harvest at Renmark he proceeded to Benalla for further flying training. Due to the imminent cessation of hostilities his flying course at Benalla was curtailed and the Applicant did not receive his "wings". He then proceeded to Richmond RAAF Base outside Sydney where he was employed as a pay clerk until his demobilisation.
At the time of his enlistment the Applicant was employed as a clerk by the NRMA. His family history is set out in the various medical reports suffice it to say there is nothing remarkable in that history, and he stated that his teenage years living with his mother at Bondi were happy. As a young man he was not familiar with alcohol, as his father was a strict teetotaller. We also note that at that time the legal age to enter public houses in NSW was 21 years.
The Applicant's first introduction to alcohol was while undergoing initial training at Bradfield Park. He and his course were granted leave and he accompanied others to a hotel at St Leonards where he partook of two schooners of beer. This than became a regular practice of every second Friday night when he was granted leave. While on leave he also drank at a hotel near his home at Bondi.
Upon posting to Narrandera he and companions used to drink on a Saturday when given local leave. In the transcript of the hearing in the original proceedings before the Tribunal the Applicant stated that he didn't drink much at Narrandera as he could not afford to, plus:
"We'd get back to a Base and I don't think they would be very happy if a bus load of drunken airmen flying the next morning got out of it".
The Applicant told this Tribunal he estimated his alcohol consumption at Narrandera to be four to six middies at the heaviest.
Apart from an incident at Tocumwal where the Applicant fell into a drainage ditch after drinking alcohol, his history alcohol consumption seems unremarkable until he had a flying accident at Benalla.
While at Benalla the Applicant took off for a flight in a Tiger Moth aircraft. At the time he took off, the conditions for flying were good and the Applicant was close to 100 hours of flying time, so he considered himself to have some experience. During the flight the weather conditions deteriorated and further flying for the day was suspended. The Applicant brought his aircraft into land against a strong headwind. He noticed the aircraft was drifting across to the left but was too slow to correct it and the plane tipped on its left wing and suddenly flipped over and he was suspended upside down in the aircraft restrained by his harness.
In his statement to the original hearing (Exhibit A4 in those proceedings) the Applicant describes his reaction as:
"I recall my exclamation of 'oh shit' and my panic to get out of the plane in case the petrol tank exploded - I fell out of the plane and landed on my neck and right shoulder. I felt severe pain in this area but ignored it in my haste to get away from the plane. I was very shocked and glad to be alive."

In evidence in chief to us the Applicant stated:
"I was in a complete panic. I feared for my life. My idea was to get away from the plane as soon as I could. I feared I'd be cooked. I was scared."

He added that he was not very clear as to what happened afterwards.

The Applicant did remember having severe pain in his neck and right shoulder and this pain continued for a couple of weeks. At the time he knew he would have to fly again next day and he controlled the pain with a "Bex" powder.
The Applicant Service Medical Records are at document T3. At a page 21 appears the notation:
"14/3/45. A/C accident - Tiger turned over on landing. Not injured in any way".

The Applicant has no recollection of seeing a medical officer after the accident but there is no reason to doubt the record. We do accept however that as he was anxious not to be "scrubbed" off the flying course the Applicant may have minimised his injuries to any examining medical officer. Suffice it to say however there were no overt signs of injury.

In a statement accompanying his original claim (see T4 p45) the Applicant said:
"My neck and shoulder were a bit tender and I was very shocked. I said nothing of these problems as I knew I would be expected to fly next day and face a 'scrub test'."
The night of the accident the Applicant was consoled by his friends and someone produced a flagon of red wine. The Applicant consumed wine plus some beer and found that the red wine and Bex powder helped him to sleep.
Whilst at Benalla the Applicant also drank at hotels whilst on a local leave. He estimated in cross-examination he would have drunk three to four beers on a Saturday afternoon.
Some three weeks after his flying accident the Applicant's pilot course was terminated due to the imminent end of hostilities and hence a surplus of aircrew. The night the termination of the course was announced the Applicant and his companions partook of alcohol and the Applicant become intoxicated to the extent that he vomited.
Subsequent to the termination of his flying course the Applicant was posted to Richmond RAAF Base in the pay section. Here leave was readily available and the Applicant drank at local hotels or if he went home at a hotel in Bondi. He estimated he drank every second day.
After discharge the Applicant continued to drink alcohol, he described himself as drinking solidly, virtually every night mainly at a hotel in Bondi. He drank more than he did during service, although his drinking did not interfere with his employment. His father however disapproved of his drinking and friends commented upon the level at which he was drinking. He recollected that he had become very drunk at his 21st birthday. His drinking continued and it was because of his addiction to alcohol that his first marriage failed.
Exhibit A6 and A9 in the original proceedings are reports by Dr Dinnen Psychiatrist. He diagnosed the Applicant as suffering from alcohol abuse and considered that not only did the accident with the Tiger Moth aircraft constitute a traumatic experience but the Applicant experienced shame and guilt about the accident and the consequences to his flying career and this had a long lasting effect upon him. As Dr Dinnen said in evidence in chief:
"... but always in understanding psychological illness you have to look at the impact of the experience to the individual, what it meant to him."

He added that the Applicant considered that the accident reflected a lack of competence regarding which he felt guilt and embarrassment. Dr Dinnen then added:

"That is a very potent emotion in terms of the subsequent use of alcohol."

That the effect of an event upon the particular individual must be taken into account was also the opinion of Dr Schulz, Psychiatrist who was called by the Respondent in the first proceedings. At transcript page 50 he states:
"... deciding whether something is stressful to any given person is very much person specific".
The above remark of Dr Schulz can be compared to the following passage quoted with the approval by McHugh J in Tame v New South Wales 76 ALJR 1348 at 1363 citing Windeyer J in Mount Isa Mines v Pusey 125 CLR 383 at 405:
"In support of this view Windeyer J cited a statement of Waller J in Chadwick v British Railways Board [1967] 1 WLR 912 at 922:
'The community is not formed of normal citizens, with all those who are less susceptible or more susceptible to stress to be regarded as extra ordinary. There is an infinite variety of creatures, all with varying susceptibilities.'"

The Respondent attacked the Applicant's claim that the aircraft accident was a stressful event. Reference was made to Dr Dinnen's statement at the transcript page 40 that:
"I would suggest it almost ridiculous to suggest that an accident where the person walked away, with no significant injury and no one else hurt would come within a definition."

(the definition being the definition of severely stressful event in the then SoP). But the passage from Dr Dinnen's evidence goes on to say:

"But this was an unusual accident because of what it meant to this man in terms of his career in the airforce and what it meant to his view of himself by comparison with his peers, so that's why I think it does satisfy the definition particularly in regard to the beginning of the definition of 'psychologically distressing event' because we are looking at more than physical circumstances, you're looking a the psychological significance."

Instrument No 77 of 1998 states as factor 5(b) of the factors connecting alcohol abuse with a person's service as:
"experiencing a severe stressor within the one year immediately before the clinical onset of alcohol dependence or alcohol abuse."
The term "experiencing a severe stressor" is defined as:
"Experiencing a severe stressor means, the person experienced, witnessed or was confronted with, an event or events that involved actual threat of death or serious injuries, or a threat to the person's or other people's physical integrity, which event or events might evoke intense fear, helplessness or horror;
In the setting of service in the Defence Forces, or other service where the Veterans' Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;"

It was pointed out in the report of aviation historian Mr Rober Piper to the Respondent (Exhibit R4) that:
"Tiger Moths did crash and burn. I noted this on a number of crash reports."

He further added:

"Fuel, heat, spark and fire is a major fear of all airmen. Pilots are trained to exit an aircraft at breakneck speed as soon as an aircraft stops after a crash or crash landing."

Notwithstanding Dr Dinnen's admission referred to the above we find that the Applicant did experience a severe stressor when he crashed his Tiger Moth. He was albeit for a brief period, suspended by his harness upside down in the aircraft and conscious of the possibility of it catching fire, and as he put it, of his "being cooked". As for the Applicant's reaction as was pointed out by North J in O'Neil v Repatriation Commission 34 AAR 290 the reaction engendered in a veteran is "something that is peculiarly personal and dependent upon subjective feelings".
In other words as made clear by Dr Schultz and the passage quoted from Chadwick v British Railways Board supra, any reaction is a person specific and it is nothing to the point that some other person may be less susceptible to the event.
At the time the Applicant entered the RAAF he had not drunk alcohol. During his service he found that it had a relaxing effect upon him after the intensity of pilot training. Following his accident at Benalla he obtained relief both from anxiety and pain immediately following the accident by the use of alcohol. This use continued and it is then clear that by the time he was discharged from the RAAF he was drinking to excess. His discharge was less then one year after his flying accident at Benalla.
Exhibit R4, the report of Mr Piper, demonstrates at Annexure F that the distance from the ground of a pilot in the cockpit of an upturned Tiger Moth aircraft is 1 foot 7 and a half inches. We accept that the Applicant when he undid his harness and fell to the ground would have injured his neck and shoulder to some degree.
Instrument No 51 of 2002 concerning cervical spondylosis requires as a factor 5(g) the suffering of a trauma to the cervical spine. Trauma to the cervical spine is defined as follows:
"A discrete injury to the survical 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 acute symptoms and signs must last for period at least 10 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 agents; or
(b)injection of corticosteroids or local anaesthetics inter the cervical spine; or
(c) surgery to the cervical spine."

Whilst we do not doubt the Applicant's evidence that he did experience pain in his neck after the accident, on examination there were no overt signs of any injury. In particular there is no evidence that in the ten days following the accident the Applicant had any altered mobility or range of movement. In his original statement to the Respondent, the Applicant referred only to his neck and shoulder as being "a bit tender". In these circumstances we find that the factors required by the SoP have not been met consequently the Tribunal cannot be satisfied that the Applicant's cervical spondylosis is related to his service.
We are strengthened in this opinion by the fact that the Applicant has lumbar spondylosis as well and that condition has not been claimed to have been caused or contributed to by war service. See in particular the report by Professor Sambrook in the original proceedings. The inference may therefore be drawn that the changes to the Applicant's spine are age related rather than trauma induced.

In the course of submissions the Respondent referred to certain explanatory notes by the Repatriation Medical Authority regarding trauma. Suffice it to say that the word trauma in the relevant SoP is not defined and the explanatory notes do not assist in making a decision on the evidence as to whether the Applicant exhibited or complained of such signs and symptoms as to meet the definition of trauma to the cervical spine as it occurs in the SoP.
Similar findings apply to the Applicant's claim for osteoarthritis of the right shoulder as to cervical spondylosis. Factor 5(h) of the Instrument No 82 of 2001 requires a trauma to the affected joint being in similar terms as that of trauma to the cervical spine.
As stated above whereas we accepted that the Applicant did experience pain there is no evidence of altered mobility or range of movement. Admittedly the Applicant did state that after service he found his ability as a fast bowler had disappeared but it is difficult to relate this to a relatively minor injury whereby he fell something less than two feet and upon examination by a service medical officer was found to be suffering no injuries. Again we refer to the Applicant's initial statement where he simply referred to being "a bit tender".
Given the circumstances of the accident whereas we do not disbelieve the Applicant and accept that he would have been shaken by it, given the distance from the cockpit to the ground and the lack of any noticeable injury, plus the fact he was able to fly the next day, we can not be satisfied that any hurt to the Applicant's neck or shoulder was sufficient to constitute trauma in the sense defined in the Statement of Principles. The reference to "medical treatments" listed under the medical intervention in the particular definition demonstrates that the discrete injury required is a serious one, not just aches and stiffness arising from a low impact sudden halt or fall.
We are aware that Professor Sambrook, Rheumatologist was of the opinion that the Applicant's aircraft accident, in particular his fall from the cockpit, contributed to the onset of his cervical spondylosis and osteoarthritis of the right shoulder. However we find as a fact that the Applicant has not satisfied the provisions of the SoP.
The decision under review is set aside and the Tribunal substitutes in lieu thereof its decision namely THAT:
(1)The Respondent Repatriation Commission is liable to pay pension to the Applicant for the war-caused diseases of alcohol abuse, hypertension, impotence and gout as and from 19 March 1998; and
(2)The diseases of osteoarthritis right shoulder, cervical spondylosis, lumbar spondylosis, varicose veins, osteoarthritis right knee, depressive disorder and trait anxiety are not war-caused injuries or diseases.

I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen and Dr M E C Thorpe, Member.
Signed:         .....................................................................................
  Associate
Date of Hearing  18 November 2002
Date of Decision  13 December 2002
Counsel for the Applicant        Mr M Vincent
Solicitor for the Applicant         Legal Aid Commission
Solicitor for the Respondent    Mr J Marsh, Department of Veterans' Affairs