Hayward and Repatriation Commission - [2000] AATA 340

DECISION AND REASONS FOR DECISION [2000] AATA 340

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1292

VETERANS' APPEALS DIVISION       )
           Re      GEOFFREY HAYWARD
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date1 May 2000
PlaceSydney

Decision      Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms that part of the decision under review relating to the applicant's claimed condition of cervical spondylosis.
  (Signed)
  J.A. KIOSOGLOUS
  (Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – whether cervical spondylosis war-caused – medical evidence – relevant SoP considered – reasonable hypothesis test considered
Veterans' Entitlements Act 1986 s.9
Statement of Principles No 32 of 1999

REASONS FOR DECISION

1 May 2000 Senior Member J.A. Kiosoglous MBE

This is an application by Mr Geoffrey Hayward (the applicant) for review of a decision of the Veterans' Review Board (VRB) dated 17 May 1999 (T20) which affirmed that part of a decision of the Repatriation Commission dated 23 September 1998 (T2) determining that the applicant's cervical spondylosis was not war-caused.
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T22), together with ten exhibits, six lodged by the applicant (Exhibits A1-A6) and four lodged by the respondent (Exhibits R1-R4). In addition, the Tribunal heard evidence from the applicant. The respondent called Professor P. Sambrook, Rheumatologist, as a witness. The applicant represented himself and the respondent was represented by Mr P. Godwin, a departmental advocate.
The issue before the Tribunal is whether or not the applicant's condition of cervical spondylosis is war-caused on the balance of probabilities; and in particular, whether a reasonable hypothesis can be said to exist having regard to Statement of Principles No 32 of 1999 (the SoP).
history of the application
The applicant performed eligible service between 16 September 1942 and 12 March 1946. On 23 September 1998 a delegate of the Repatriation Commission decided that the applicant's conditions of cervical spondylosis and lumbar spondylosis were not war-caused (T2).
Upon review by the VRB, lumbar spondylosis was accepted as war-caused, but cervical spondylosis was not. It is that latter part of the decision which concerns this Tribunal, and in that regard the VRB stated in its decision dated 17 May 1999 (T20/76-77) (inter alia):
"…
… The veteran, from his evidence to the Board and statement at folio 26 of the section 137 report, saw onset in 1942, from falls in jungle training. Alternatively both the veteran and his local medical officer (LMO) saw 1989 as a possible date of onset following a fall due to his bad knee, the latter being subsequently accepted as war caused. However no falls met the definition of trauma required by the SOP. Further the latter date is outside the time frame of the factor. So the factor is not satisfied.
…
The problems suffered by the veteran regarding his hip and knee were identified and rectified in the early to mid nineties. Some evidence also points to disparate leg length, but this is well after the dates offered as likely for clinical onset, 1942 and 1989. So this factor is not satisfied.
… Thus no connection could be made between the circumstances of the veteran's service and his cervical spondylosis
…"

applicant's evidence and submissions

The applicant spoke at length in the presentation of his case to the Tribunal, describing the various activities he has undertaken to attempt law reform in the veterans' jurisdiction. Whilst the Tribunal takes all that he said into account, it is unnecessary to set it out herein. The Tribunal is satisfied that the applicant was honest and sincere in his presentation and that at no time was his integrity in question.
Mr Hayward stated that the onset of his cervical spondylosis was attributable to an incident in 1942 when a crane fell on his head. He further stated that this incident resulted in him being hospitalised for a few days. He conceded however, that the SoP made it unlikely that a hypothesis relating his cervical spondylosis to that incident could be sustained.
He referred to the report of Dr W. Lennon, Orthopaedic Surgeon, dated 19 November 1999 (Exhibit R2) as supporting acceptance of his cervical spondylosis in that it can be related to the accepted lumbar spondylosis.
respondent's submissions
Mr Godwin submitted to the Tribunal that the evidence clearly pointed to the clinical onset of cervical spondylosis being 1989, more than 25 years after his eligible service, meaning SoP factor 5(g) could not be satisfied. He further submitted that a malalignment as per the SoP definition and Professor Sambrook's opinion had not occurred and hence factor 5(d) could not be met.
He submitted that none of the SoP factors could be met by the applicant and therefore there is no reasonable hypothesis raised in this case.
documentary medical evidence
Dr W. Lennon, Orthopaedic Surgeon, prepared two reports in relation to this matter. In the first report dated 19 November 1999 (Exhibit R2) he stated (inter alia):
"…
There is little doubt that the patient suffers from diffuse degenerative spondylosis in the cervical, thoracic and lumbar spine, conditions of constitutional origin, age related, degenerative in nature and not specifically related in any way to his War Service between the attributable dates 16.9.42 to the 12.3.46.
The condition is advanced and said had been significant in the neck for 10 to 15 years particularly over the last 15 months that is occurring some 38 years after the cessation of War Service.
I doubt indeed and am of the opinion that certainly no relationship exists to the so called injuries of Service as he has suggested.
I note, however, that lumbar spondylosis had been accepted as due to War Service on the 19.3.98 and if so cannot in effect see any reason why cervical spondylosis should not be accepted under the same conditions for acceptance of lumbar spondylosis and he should continue on a 100% disability pension related to all his accepted disabilities including the new disability, cervical spondylosis."
In a subsequent report dated 22 December 1999 (Exhibit R3) he stated (inter alia):
"In regards to the Statement of Principles 57/98, 32/99 cervical spondylosis does not fall into the definition of trauma. The suggested trauma occurred in 1942 while working on the docks and thus following this definition the condition not attributable to war service. …"
Mr R. Burke, Chiropractor, prepared a report dated 6 September 1999 (Exhibit A4) in which he stated (inter alia):
"… Due to the nature of his condition and related symptoms, his neck condition is directly related to his low back condition.
…
… It would seem appropriate to me that his neck complaint should be included as part of his general back condition."
Dr D. Smith, General Practitioner, prepared a report dated 10 August 1999 (T20/85-86) in which he stated (inter alia):
"This gentleman has proven and symptomatic lumbar spondylosis and cervical spondylosis. The former has been accepted as due to war service, the latter has not.
Since the pathophysiology and actiology of these two conditions is the same, it would seem apparent to me that Mr Hayward has a good case for his cervical spondylosis to be accepted as war service related."

professor p. sambrook

Professor P. Sambrook, Rheumatologist, prepared a report dated 21 February 2000 (Exhibit R4) in which he stated (inter alia):
"…
The episode described by Mr Hayward when he was knocked unconscious in the hold of the ship whilst unloading cargo was not apparently considered by the VRB as this history was apparently not raised although it was discussed in Dr Lennon's report. The history obtained today of this episode, with regard to the elements of the definition of trauma in the SOP, includes that it is a discrete injury to the cervical region causing acute temporal onset of pain but perhaps not of a severe nature, as he was able to be discharged after two days in hospital and returned to full duties with no definite restriction of movement. The acute symptoms did not last for more than two days although he was troubled by intermittent pain thereafter. Thus this appears to have some but not all the elements of the definition.
With regard to malalignment, there are two issues to consider, firstly, the scoliosis, which may be in part related to his lumbar spondylosis, which is an accepted disability. Secondly, the disparent leg length which again may be related to his accepted knee and hip problems. The disparent leg length seems to have become a problem only relatively recently so it can not be regarded as a cause as even the latest clinical onset of his cervical spondylosis seems to be 1989, yet he did not have his sub-capital fracture until 1990, so this does not appear to be an issue. I felt his degree of scoliosis was also only relatively minor and not a significant factor in contributing to his cervical spondylosis.
Therefore the only issue for consideration really is that of trauma and in the present circumstances Mr Hayward does not seem to have all the elements listed in the definition."
In oral evidence in support of his report, Professor Sambrook stated that it was unlikely that the onset of cervical spondylosis was 1942 and that in his opinion the onset was 1989.
He stated that the scoliosis, if taken to be in the category of malalignment of the spine, was only minor and not clinically significant as required by the SoP. It was much more associated with the lumbar spondylosis than the cervical spondylosis.
discussion and findings
The sole issue before the Tribunal is whether a reasonable hypothesis can be sustained having regard to the SoP. In order for the hypothesis to be reasonable, at least one of the factors in point 5 of the SoP must be met. In this case, the hypothesis does not relate to section 9(1)(e) of the Veteran's Entitlements Act 1986 (the Act), in that it is a hypothesis based upon an attributable injury, not a material contribution or aggravation. Accordingly, pursuant to point 6 of the SoP, factors 5(k) to (t) are not relevant.
As to the remaining factors, on the evidence before the Tribunal there is no inflammatory joint disease, septic arthritis, intra-articular fracture, depositional joint disease, ligamentous instability, intervertebral disc prolapse or G forces to raise a hypothesis under any of factors 5(a)(b)(c)(e)(f)(h) or (j).
Turning to factors 5(d) and (g) the Tribunal notes that in some of the documentary medical evidence there has been an attempt to assert that as lumbar spondylosis was accepted then so should cervical spondylosis. The Tribunal is bound by the SoP however, which prescribes a separate regime in respect of cervical spondylosis.
The most detailed and thorough medical opinion was provided by Professor Sambrook, who had the opportunity to examine the applicant with particular reference to the SoP factors. The Tribunal found him to be an impressive witness and prefers his opinion in any area of dispute, in particular pertaining to the medical evidence.
Turning to factor 5(g) there are two issues. Firstly, the date of "clinical onset" and secondly, whether there was an incident of "trauma". With respect to establishing a date of clinical onset, the Tribunal is satisfied, on the basis of the preponderance of the evidence and having regard to Professor Sambrook's opinion in particular, that 1989 was the time at which it could be said that the "clinical onset" of cervical spondylosis occurred. Whilst the applicant had some pain in 1942, on his own evidence, he was only in hospital for about two days, and although he had some lingering problems, he returned to full normal duties soon thereafter. It could not be said that this satisfies the definition of trauma set out at point 8 of the SoP. In any event, given the likely date of clinical onset was 1989, the date of the alleged trauma is not within 25 years of 1989. The Tribunal is not satisfied on this basis that the applicant can satisfy factor 5(g) and so finds.
Turning to factor 5(d), the Tribunal notes that the definition of malalignment at point 8 of the SoP means "the presence of significant displacement prior to the clinical onset". Whilst the applicant has had various operations performed in the mid 1990s (see T4-12) there is no evidence of significant displacement of his cervical spine prior to 1989. The Tribunal prefers Professor Sambrook's opinion that there was only minor scoliosis in relation to the cervical spine. In the absence of significant displacement (or scoliosis) prior to 1989, factor 5(d) cannot be said to be satisfied and the Tribunal so finds.
In conclusion, the Tribunal commends the applicant for his diligence in pursuing both his rights and advancing the cause of other veterans, but notes that it is bound by the provisions of the legislation, which in this case means the SoP. The applicant is unfortunately in the position whereby he is simply unable to satisfy the specific criteria laid down in the SoP, and the Tribunal must accordingly affirm the decision under review.
decision
For the reasons given, and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms that part of the decision under review relating to the applicant's claimed condition of cervical spondylosis.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  7 April 2000
Date of Decision  1 May 2000
Counsel for the Applicant        In person
Solicitor for the Applicant         -
Counsel for the Respondent    Mr P. Godwin
Solicitor for the Respondent    DVA