Henriksen and Repatriation Commission (Veterans' entitlements) - [2018] AATA 2002

Henriksen and Repatriation Commission (Veterans' entitlements) [2018] AATA 2002 (3 July 2018)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2015/5945
Re:Darcy Henriksen
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:3 July 2018
Place:Brisbane

The decision under review is affirmed.
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Deputy President Dr P McDermott RFD
CATCHWORDS
VETERANS’ AFFAIRS – claim for an increase in disability pension – claim for defence-caused condition of cervical spondylosis – standard of proof s 120(4) of the Act – relevant Statement of Principles – diagnosis of cervical spondylosis accepted – clinical onset of cervical spondylosis not within 25 years of trauma – heavy lifting of 120,000 kilograms did not occur in the ten year period before the clinical onset – decision under review affirmed.
LEGISLATION
Veterans’ Entitlements Act 1986
Military Compensation Act 1994
CASES
Repatriation Commission v Money [2009] FCAFC 11
Lees v Repatriation Commission (2002) 125 FCR 331
RepatriationCommission v Cornelius [2002] FCA 750
SECONDARY MATERIALS
Statement of Principles concerning Cervical Spondylosis no. 34 of 2005
Statement of Principles concerning Cervical Spondylosis no. 67 of 2014
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
3 July 2018
INTRODUCTION

The applicant, Mr Henriksen, has a distinguished history of service with the Royal Australian Air Force (the “RAAF”). He first joined the RAAF on 14 October 1968, at 17 years of age, and was discharged on 16 December 1988. The applicant rejoined the RAAF in 1994 and as at the date of the hearing of this application he was still in active service.
While serving in the RAAF between 1973 and 1987 the applicant worked as an air loader. He was responsible for loading and unloading stores onto C130 aircraft pallets, as well as building aircraft pallets.
The applicant suffers from numerous medical conditions, several of which have been accepted by the Department of Veterans’ Affairs (“DVA”). He is now seeking the acceptance of a further medical condition, cervical spondylosis, which he claims is related to his service in the RAAF.
BACKGROUND
On 16 October 2012 the applicant lodged a claim with DVA to receive a disability pension.[1] He claimed a number of medical conditions, including gastro-oesophageal reflux disease and cervical spondylosis.
[1] Exhibit A, T-Documents, T5.
On 21 February 2013 the respondent refused the applicant’s claims for gastro-oesophageal reflux disease and cervical spondylosis, along with several other conditions which are not the subject of this application, on the basis that the claimed conditions were not service-related. The respondent did also accept several of the applicant’s claimed conditions. His disability pension was assessed as 20%.
The applicant applied for further review of the respondent’s decision with the Veterans’ Review Board (“VRB”) on 9 August 2013. On 27 July 2015 the VRB affirmed the decision with respect to the conditions of cervical spondylosis and gastro-oesophageal reflux disease.
On 10 November 2015 the applicant applied to this Tribunal for review of the decision of the respondent.
The claimed condition of gastro-oesophageal reflux disease is now an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] AATA 2002
Decision Date: 3 July 2018

CaseChat Overview and Summary

The applicant, a former member of the Royal Australian Air Force, sought an increase in his disability pension by claiming that his cervical spondylosis was a defence-caused condition. The Repatriation Commission had previously refused this claim, a decision affirmed by the Veterans’ Review Board. The applicant then applied to the Tribunal for a review of the decision.

The primary legal issue before the Tribunal was whether the applicant's condition of cervical spondylosis was service-related, requiring an assessment of the date of clinical onset and whether specific service activities met the criteria outlined in the relevant Statements of Principles (SoPs). The Tribunal was required to determine this matter to its reasonable satisfaction, in accordance with section 120(4) of the Veterans’ Entitlements Act 1986.

The Tribunal was satisfied that the applicant suffered from cervical spondylosis, based on medical reports. However, it found that the date of clinical onset, assessed as 2011 under the current SoP and potentially earlier under the SoP in force at the time of the claim, did not align with the applicant's claimed service activities. Specifically, while the Tribunal accepted the applicant's evidence of heavy lifting, it concluded that these activities occurred prior to the ten-year period preceding the clinical onset of the condition, thus failing to satisfy the temporal requirements of the applicable SoPs.

Consequently, the Tribunal affirmed the decision under review, finding that the applicant's cervical spondylosis was not proven to be defence-caused to its reasonable satisfaction.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The applicant suffers from numerous medical conditions, several of which have been accepted by the Department of Veterans’ Affairs (“DVA”). He is now seeking the acceptance of a further medical condition, cervical spondylosis, which he claims is related to his service in the RAAF.BACKGROUND On 16 October 2012 the applicant lodged a claim with DVA to receive a disability pension.[1] He claimed a number of medical conditions, including gastro-oesophageal reflux disease and cervical spondylosis. [1] Exhibit A, T-Documents, T5. On 21 February 2013 the respondent refused the applicant’s claims for gastro-oesophageal reflux disease and cervical spondylosis, along with several other conditions which are not the subject of this application, on the basis that the claimed conditions were not service-related. The respondent did also accept several of the applicant’s claimed conditions. His disability pension was assessed as 20%. The applicant applied for further review of the respondent’s decision with the Veterans’ Review Board (“VRB”) on 9 August 2013. On 27 July 2015 the VRB affirmed the decision with respect to the conditions of cervical spondylosis and gastro-oesophageal reflux disease. On 10 November 2015 the applicant applied to this Tribunal for review of the decision of the respondent. The claimed condition of gastro-oesophageal reflux disease is now an accepted condition with effect from 8 February 2013. The other conditions accepted by the respondent are pterygium in the left eye, bilateral sensorineural hearing loss, bilateral tinnitus, lumbar spondylosis, and rotator cuff syndrome of the right shoulder. The applicant’s service from 7 December 1972 to 16 December 1988 is eligible defence service under section 68 of the Veterans’ Entitlements Act 1986 (“the Act”). Section 68 defines defence service as including “continuous full-time service rendered as a member of the Defence Force on or after 7 December 1972 and before the terminating date”. The term ‘terminating date’ is defined in s 68 as the date on which the Military Compensation Act 1994 commenced, being 7 April 1994. ISSUE The issue to be determined in this application is whether the applicant’s condition of cervical spondylosis is service-related. In the event that the condition is accepted as service-related, the rate of pension must also be determined.LEGISLATIVE FRAMEWORK As the veteran has performed defence service, the determination of whether an injury or disease is defence-caused is to be made by applying the standard of proof outlined in s 120(4) of the Act. Section 120(4) requires this Tribunal to decide this matter to its ‘reasonable satisfaction’. Section 120B(3) of the Act stipulates how ‘reasonable satisfaction’ is to be assessed: 120B Reasonable satisfaction to be assessed in certain cases by reference to 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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The VRB was of the opinion that service personnel of the rank of the applicant, who was promoted to a supervisor position, was not likely to have been regularly involved in lifting and carrying loads of 50kg on their heads at least four times a day for periods of months and years as claimed by the applicant. However, I am prepared to accept that the applicant did carry loads of at least 25 kilograms on his head to a cumulative total of at least 120,000 kilograms. In my opinion the applicant was an honest witness who would step in to perform the job; his evidence was credible because he stated that there was a high workload at this time. His evidence was corroborated by Ms Dowse, who was a commissioned officer. I also find that the movement of placing those loads of the heads of the applicant was to “carry” the loads within the spirit of the SoPs. The applicant stated that he performed load master duties from 1976 until 1986. This was well before the ten year period before the clinical onset of cervical spondylosis. I have therefore concluded that the template of both SoPs is not satisfied because of this timing issue. DECISION I affirm the decision under review.

Ratio Decidendi

Legal Principle Established

The respondent’s submissions also addressed the photographs provided by the applicant, and in particular the height of both the applicant and the C130 pallets depicted in the photographs. The respondent highlighted how the height of the applicant appeared inconsistent across the photographs.CONSIDERATIONDiagnosis I am reasonably satisfied that the applicant suffers from cervical spondylosis. I base that conclusion on the report of Dr Malouf who, on 26 October 2012, reported on the degenerative “multilevel facet joint anthropathy” of the applicant. Dr Kenning in his report dated 2 July 2011 also confirmed a diagnosis of cervical spondylosis.Date of clinical onset of cervical spondylosis I am required to make an assessment of the date of the clinical onset of cervical spondylosis. The SoP which is in force is Instrument No 67 of 2014. The definition of cervical spondylosis in the current SoP requires that there is “imaging evidence of degenerative change”. A CT study from 2 July 2011 confirms that there were degenerative changes in the cervical spine at that time. Accordingly the date of clinical onset for the purposes of the SoP is in 2011. The applicant is, however, entitled to have his claim assessed in accordance with an earlier SoP which is in force when he lodged his claim on 16 October 2012.[32] At that time the SoP which was in force is Instrument No 34 of 2005.[32] Repatriation Commission v Gorton [2001] FCA 1194. Clause 3(b) of Instrument No 34 of 2005 contains the following definition of cervical spondylosis: “For the purposes of this Statement of Principles, “cervical spondylosis” means degenerative changes affecting the cervical vertebrae or intervertebral discs, causing local pain and stiffness or symptoms and signs of cervical cord or cervical nerve root compression, but excludes diffuse idiopathic skeletal hyperostosis.” This definition does not include a requirement that there be “imaging evidence of degenerative change”. Accordingly a finding of an earlier date of clinical onset of the condition may be made provided if there is evidence upon which I can be reasonably satisfied such a finding may be made. Dr Malouf in his report dated 26 October 2012 gave his opinion that the date of clinical onset was in 1976. In giving evidence Dr Malouf stated that this opinion was given in the initial stages and was made in reliance on what was said by the applicant. In re-examination Dr Malouf reiterated his opinion that the date of clinical onset was “definitely” 1976. Dr Malouf first saw the applicant in 1986 and the applicant was his patient until 2003. The medical records of Dr Malouf do not contain any reference to the treatment of the cervical spine. There are no cogent reasons which would enable me to make a finding that I would be reasonably satisfied that the date of clinical onset of the cervical spondylosis condition was in 1976. I have carefully reviewed the medical documentation which is in evidence and I will refer to a number of documents which are relevant to my inquiry. It is apparent that the predominant cause of complaint of the applicant has been in the right shoulder and trapezium muscle region. There are a number of medical reports which refer to the neck of the applicant.