Higham and Repatriation Commission
[2000] AATA 225
•23 March 2000
DECISION AND REASONS FOR DECISION [2000] AATA 225
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/298
VETERANS' APPEALS DIVISION )
Re JOHN FREDERICK HIGHAM
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member
Date23 March 2000
PlaceSydney
Decision The decision under review with regard to entitlement is affirmed. The decision under review with regard to assessment is set aside and in substitution therefor the disability pension is assessed at 80% of the General Rate to operate on and from 13 February 1997.
..............................................
Ms G Ettinger
Senior Member
CATCHWORDS
Veterans Affairs - entitlement and assessment matter - whether lumbar spondylosis or intervertebral disc prolapse war-caused – decision on entitlement affirmed – decision on assessment set aside.
Veterans' Entitlements' Act 1986 ss 9, 120(4) & 120B
Guide to the Assessment of Rates of Veterans' Pensions, 5th Edition, Department of Veterans Affairs, Canberra, 1998 ("GARP")
Repatriation Medical Authority, Statement of Principles concerning Lumbar Spondylosis, Instrument No.53 of 1998
Repatriation Medical Authority, Statement of Principles concerning Lumbar Spondylosis, Instrument No.28 of 1999
Repatriation Medical Authority, Statement of Principles concerning Intervertebral Disc Prolapse, Instrument No.131 of 1996
Repatriation Medical Authority, Amendment of Statement of Principles concerning Intervertebral Disc Prolapse, Instrument No.93 of 1997
REASONS FOR DECISION
23 March 2000 Ms G Ettinger Senior Member
The decision under review before the Administrative Appeals Tribunal ("the Tribunal") with regard to entitlement was the decision of the Veterans' Review Board of 4 January 1999 (T19) which affirmed the decision of the Repatriation Commission of 15 August 1997 (T14), accepting the applicant, Mr John Frederick Higham's conditions of bilateral sensorineural hearing loss, ischaemic heart disease, malignant neoplasm of the tongue, chronic solar skin damage and chronic airflow limitation as war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986 ("the Act"), and refusing the claim for lumbar spondylosis from 13 February 1997.
As to assessment; the Veterans' Review Board set aside the decision of the Repatriation Commission granting the applicant's disability pension at 40% of the General Rate from 13 February 1997, and in substitution therefor increased the assessment for pension to 50% of the General Rate to operate from 13 February 1997 (T19).
The claim for umbilical hernia (repaired) which was refused by the Repatriation Commission was not dealt with by the Veterans' Review Board and not pursued before this Tribunal.
At the Tribunal hearing, the applicant was represented by Mr A Hill of counsel and the respondent by its advocate, Ms S Breuer. Oral evidence was given by Mr Higham, the applicant, Dr M Benanzio, orthopaedic surgeon, and Dr M Miller, consultant physician, who told the Tribunal he was also a specialist in internal medicine and rehabilitation medicine, and a cardiologist.
The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T-documents"), and the following exhibits.
ITEM DATE NAME
Medical Report of Dr M Benanzio 31 March 1999 Exhibit A1
Medical Report of Dr M Benanzio 15 February 2000 Exhibit A2
Medical Report of Dr G Miller 30 March 1999 Exhibit A3
Clinical Notes of Dr R Godwin (including other medical reports) 25 February 1993 to 18 January 2000 Exhibit R2
ISSUES BEFORE THE TRIBUNAL
The issues before the Tribunal were:
(a)whether the applicant suffered lumbar spondylosis or intervertebral disc prolapse which was war-caused within the terms of section 9 of the Veterans' Entitlements Act 1986 ("the Act"); and
(b)whether the veteran's entitlement to the disability pension was more than the 50% of the General Rate which he had been receiving on and from 13 February 1997.
LEGISLATION
The relevant legislation in this matter was the Veterans' Entitlements Act 1986 in particular sections 9, 120(4) and 120B(1).
"9 War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
….
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
……
Standard of proof
120.…………..
(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.
….120B Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
(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."
I noted that the veteran had eligible war service that was served from 17 November 1944 to 10 January 1947. As the claim was lodged after 1 June 1994, the Tribunal was required to apply section 120B of the Act. This meant that the relevant Statements of Principles ("SoPs") issued by the Repatriation Medical Authority had to be applied, and that the standard of proof to be used was to the reasonable satisfaction of the Tribunal (section 120(4) of the Act). The SoPs considered in deciding Mr Higham's application were Instrument No.53 of 1998 and No.28 of 1999 concerning Lumbar Spondylosis, and Instrument No.131 of 1996 as amended by Instrument No.93 of 1997 concerning Intervertebral Disc Prolapse. The Veterans' Review Board considered Mr Higham's case pursuant to SoP No.53 of 1998 (T19/78), in particular factor 5(g) which read as follows:
"Factor 5 (g) suffering a trauma to the lumbar spine within 25 years immediately before the clinical onset of lumbar spondylosis;or"
The definition of trauma was as follows:
"trauma to the lumbar spine" means a discrete injury to the lumbar spine that causes the development within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of that part of the spine. These acute symptoms and signs must last for a period of at least 10 days immediately after the injury occurs."
The Veterans' Review Board was not satisfied that the definition of trauma as stated in SoP No.53 of 1998 was met.
EVIDENCE BEFORE THE TRIBUNAL
mr j higham, the applicant
Mr J Higham, whose date of birth was 29 October 1926, gave oral evidence before the Tribunal.
Mr Higham told me that after enlistment he had done infantry training and had then been dispatched to an ammunition depot. There the work included sorting, loading and stacking "18 pounders" and "25 pounders" (ammunition). He had also done a gas warfare course.
The veteran described ammunition loading which took place from a truck into a rail-van. He said that the cartridge cases being moved weighed some 120 pounds each. The applicant said that whilst loading on a given day in early 1945, the truck from which he was transferring cartridge cases moved suddenly, and he fell five or six feet from the truck onto his "right backside". He said that he tried to hold onto the rail-van as he fell, but could not, hurting his backside and arm in the fall. He said that he was helped up by his colleagues and his commanding sergeant, and thought being fit and an eighteen years old at the time, that he was "just bruised". He said that he was immediately put on light duties, tallying the amounts of ammunition loaded. The veteran said that on the return journey to the base, he was able to get in and out of the truck that was approximately four foot high, and on arrival, to shower and change. However, that night he developed pain in his lower back radiating down to his right leg. He said that on the following day he had started to become stiff and had difficulty in putting on his shoes and socks.
The veteran stated that he did not see a medical officer following his fall because there was no medical officer attached to his unit. Neither did he consult the Regimental Aid Post ("RAP"), because "he'd just say it'd be right".
Mr Higham said that he then continued with light duties for three weeks, and did a "conductor's" job accompanying some carriages which he had helped load, to Denman in NSW. He said that he then had approximately three days "sneaky" leave and returned to the gas warfare unit, working on "leakers", that is, with mustard gas and chlorine containers. The veteran said that he was no longer required to do heavy lifting and that his back was better than on the day when he fell, but that it was never again like before the fall. He said that in bed his hip would ache and his legs tingle. He said that his back problem persisted and was never forgotten; it was always there.
Mr Higham said that after his discharge in 1946, he joined the Hotel Australia in Sydney to train in the hospitality field, and although he worked as a barman as part of that, there was no heavy lifting involved. Following that period, the applicant worked as a salesman for his uncle who had a business in the city markets and said he bought the business in 1955. He said that he tried taxi driving and wanted to buy a taxi but realised that with his back problems, it would not be a good proposition.
Mr Higham said at that time his local doctor wanted him to consult an orthopaedic specialist but as he associated that with having an operation, he refused. He said that in 1958 or 1960, he was prescribed a corset but did not wear it because it was too hot.
The veteran said that he consulted several general practitioners in 1970 because of pain persisting in his lower back and tingling in his right leg. Mr Higham said that he had an operation on his lower back but could not remember the exact details of when this occurred. I noted that Dr P Bentivoglio, neurosurgeon, stated in his medical report dated 14 October 1997 (Exhibit R2/17) that the applicant had a lumbar laminectomy in 1984 performed by Dr K Bleasel. Mr Higham said that he felt an improvement for three to four months after the operation, followed by periods of pain but that the pain had not become as bad as before the operation. He said that he now could not walk long distances, and had to move around after sitting, otherwise he felt stiff. The applicant also said that he could not drive a car for any length of time without stopping to move around, and could no longer play bowls (which he loved), or play golf. Mr Higham blamed his obesity on the fact he could not move around much. Mr Higham said that the pain became more severe from time to time, and that he recently had a course of treatment, including injections, at St Vincent's Hospital. Mr Higham's conduct during the hearing corroborated his evidence that he could not sit still for too long, and I observed him get up and move around the hearing room several times during the hearing.
There were however several inconsistencies between Mr Higham's statements and the documentation before the Tribunal.
The original document 'Australian Military Forces Medical History Sheet' completed by doctors on 18 November 1944 on Mr Higham's enlistment, of which T3/11 in the T-documents was a photocopy, was replaced at the hearing due to illegibility. It was still difficult to read but when finally deciphered at the hearing, I noted that the section entitled Table VI had been completed as follows:
"C/o backache – no histori of injury )
spine mobile - leg pain on bending ) NAD externally"
It was noted that in medical shorthand, C/o usually stood for "complains of" and that "NAD" usually stood for "nothing abnormal detected".
Ms Breuer referred Mr Higham to the above document. Mr Higham replied that the events under discussion occurred 55 years ago, and said that he could not recall having a history of back pain before enlistment. He did recall having migraine. He said that he did not know why there was a reference to back pain in his enlistment medical report. He said that he had been a member of the local surf life saving club at Coogee, and used to row and swim. He also questioned rhetorically: "If I had a back problem why would I be sent to a unit that involved heavy lifting?"
Mr Higham's attention was also drawn to T18/74, a 'Department of Veterans' Affairs Lifestyle Rating' form completed on 12 May 1997 (T17) and a questionnaire with regard to lifestyle rating (T18), dated 20 September 1998. In reply to a statement: "Use this space if you would like to tell us further details about the effect your disabilities have on your lifestyle", Mr Higham had written his answer in five points, the last of which was as follows:
"I REALISE THAT I SHOULD HAVE REPORTED FALLING FROM A RAILWAY WAGON WHEN LOADING AMMUNITION AND HURTING MY BACK. I WOULD HAVE BEEN PUT ON LIGHT DUTIES IF I HAD AND WOULD HAVE MISSED BEING A CONDUCTOR ON THE AMMUNITION TRAIN GONG TO F.A.D. DENMAN. THIS ENTAILED A 3.4 DAYS TRIP. PLUS 4 DAYS LEAVE IN SYDNEY ON THE WAY BACK TO MY UNIT, ALTHOUGH IN SOME PAIN, THE LEAVE IN SYDNEY WAS NOT TO BE MISSED. IN LATER YEARS I NOW REALISE HOW STUPID I WAS, HAVING TO HAVE NEURO-SURGERY YEARS AGO, AND PUTTING UP WITH A STIFF BACK AND NOT BEING ABLE TO BEND PROPERLY."
The above statement was in contradiction of Mr Higham's evidence to the Tribunal that he reported the accident and was immediately put on light duties tallying the amounts of ammunition being loaded.
I was mindful also of Dr Benanzio's report of 31 March 199 (Exhibit A1), where he recorded a history pertaining to the applicant, as follows:
"In about February 1945, he was loading ammunition from a semi-trailer onto a train when he stepped from the train to the semi-trailer as it was moving forward. He lost his balance and fell about 5ft. to the ground, hitting his right arm on the trailer. He had pain in the right arm and in the right low back.
The pain in his right arm lasted for about two weeks. The right low back ache persisted and was aggravated by strains such as when lifting loads. The patient told me that his duties required lifting ammunition all the time. He did not report the matter and did not consult a medical officer.
The patient stated that the day after the accident he travelled by train for about two days to another ammunition depot and then he was on leave in Sydney for about four days.
He continued to do his normal duties despite the persistent low back ache. After his leave in Sydney he reported his low back condition at First Aid but he was not seen by a doctor. He was given three days of light duties without specific treatment." [emphasis added]When cross-examined about what he appeared to have told Dr Benanzio as detailed above, Mr Higham first said that tally/clerical duties could have been his normal duties, but then agreed that his normal duties were loading ammunition and not tally/clerking. Dr Benanzio also seemed to have understood that the applicant continued with lifting loads, and that Mr Higham reported his back condition to a first aid post. This was of course in contradiction to the evidence Mr Higham gave the Tribunal.
Mr Higham's attention was also drawn to T4/20 dated 13 May 1997, a claim form for disability pension and medical treatment, which he said had been filled in by a welfare officer. I noted that Mr Higham had signed the declaration at T4/23, which included the words: "I declare that the details I have given in this claim are complete and correct". In reply to a question with regard to Disability 4 (T4/20), which asked "How did service cause this disability?", the reply recorded was: "Back – Spinal Discs. Through lifting heavy weights in Ammunition Section."
The above statement contradicted Mr Higham's evidence to the Tribunal which was that he suffered a fall and was immediately afterwards put on light duties, and of course, the claim that the fall caused his lumbar spondylosis and/or intervertebral disc prolapse.
Cross-examination then turned to T10/33, a 'Commonwealth Department of Veterans Affairs Medical Report - Trauma to the Lumbar Spine Lumbar Spondylosis' completed by Dr M Cranney on 18 June 1997 in which the reply to Question 1. "Has the veteran suffered a trauma to the lumbar spine?" was recorded as "Allegedly in 1945 whilst lifting during WWII".
I noted that Mr Higham did not appear to have told Dr Cranney, (who completed the medical report at T10), about trauma to his lumbar spine as discussed in the paragraph above, or about any fall whilst loading ammunition in 1945.
In cross-examination Ms Breuer asked Mr Higham why the 'Medical Report – Trauma to the Lumbar Spine Lumbar Spondylosis' did not mention the fall from the truck. He replied that Dr Cranney had completed the form in "10 minutes" and had not asked him much at all. It was a "whirlwind interview", he said, "that is why I changed doctors."
Ms Breuer referred Mr Higham to his 'Medical Examination Prior to Discharge' dated 19 December 1946 (T3/16). I noted the document recorded disabilities the veteran suffered during service, including glandular fever and problems with his ears, but not to any difficulties with his back. Ms Breuer asked Mr Higham in cross-examination why he did not mention back pain or his fall from the truck at the time of his discharge from the army. Mr Higham replied that "like a lot of young blokes, I couldn't get out quick enough," and suggested that perhaps there was no persistent back pain at the time of discharge. He said that if there had been a medical officer available at the time of the incident he would have reported it at the time of the accident, but that it was 30 miles to the base hospital.
dr m benanzio, orthopaedic surgeonDr M Benanzio, orthopaedic surgeon, whose reports of 31 March 1999 (Exhibit A1) and 15 February 2000 (Exhibit A2) were before the Tribunal, gave oral evidence.
In his medical report of 31 March 1999 (Exhibit A1) at page 1, part of which is reproduced at paragraph 23, Dr Benanzio referred to a history he received from the applicant which indicated that the applicant had fallen, as described to the Tribunal. Dr Benanzio's understanding was however that the applicant had continued with his lifting of ammunition, and that the lifting of heavy loads had aggravated the right low backache which was a result of the fall. Dr Benanzio also wrote that Mr Higham had reported his back condition to "First Aid", after the leave in Sydney, and had then been given three days of light duties. The report of the history taken by Dr Benanzio of the applicant's fall in 1945 and subsequent events, differed considerably from the evidence Mr Higham gave at the hearing.
Ms Breuer questioned Dr Benanzio regarding what evidence he relied upon to support his opinion that the applicant's intervertebral disc prolapse was connected with the fall that he had sustained in February 1945. Dr Benanzio replied that the evidence of disc prolapse began when a patient complained of having backache. The sequence of events, was he said, for trauma to take place, followed by pain, in this case a radiation of pain to the lower limbs, radiculitis and then paraesthesia. He said that the trauma could cause musculo-ligamentous damage of short duration or a disc injury, as in Mr Higham's case. He said that the history of the pain developing over a year or two was consistent with disc rupture and that it was rare to have a disc which prolapsed immediately on injury. Dr Benanzio opined that given Mr Higham was self-employed after the war, he had to carry on despite pain, and that finally a decompressive laminectomy on his L4/5 vertebrae was carried out by neurosurgeon Dr Bleasel, in 1983 or 1984.
Dr Benanzio mentioned x-rays of the applicant dated June 1997 which he indicated showed diffuse spondylosis. I noted that Dr T Roberts (Exhibit R2/20) reported that Mr Higham had advanced degenerative changes throughout the thoracic spine. He wrote:
"There are moderate to advanced degenerative changes throughout the lumbar spine, particularly at L4 and 5. There is significant disc space narrowing at L4-5 indicating disc degenerative disease. There has been a previous laminectomy at L4. Prominent osteophytes are noted throughout the lumbar spine. There is also minor scoliosis at L3 convex to the left."
Dr Benanzio also gave evidence about the relevant SoPs in support of the veteran's case, nominating the SoPs on intervertebral disc prolapse as the more relevant, because of the veteran's then age. A young man in his early twenties did not suffer lumbar spondylosis, he said. This was however in contrast to a statement made in his report of at Exhibit A1 dated 31 March 1999 where he opined:
".. the patient's history, clinical and radiological findings satisfy the Statement of Principles concerning Lumbar Spondylosis (Instrument No.28 of 1999), Factor 5(h), suffering a lumbar intervertebral disc prolapse before the clinical onset of a lumbar spondylosis at the level of the intervertebral disc prolapse."
Dr Benanzio's further report of 15 February 2000 (Exhibit A2), was in reply to correspondence from the applicant's solicitors. At paragraph 1 he opined:
"On the balance of probabilities the intervertebral disc prolapse was connected with the circumstances of the patient's relevant service when in February 1945 he suffered a trauma to the relevant lumbar disc at the time of the clinical onset of low backache: Instrument No.131 of 1996 – Determination of Statement of Principles concerning Intervertebral Disc Prolapse – Factor 5 (a). The trauma was followed by persistent painful symptoms and by left sciatica leading to L4 laminectomy."
Dr Benanzio also said in his oral evidence that the pattern of pain emerging over a year or two as described to him by Mr Higham meant that the veteran met the conditions in SoP No.131 of 1996. He said that the veteran suffered trauma to his disc during the fall from the truck described to him, had "local pain and stiffness", and later "pain and paraesthesia radiation into the lower limbs" as foreshadowed in the definition of "intervertebral disc prolapse" (Clause 2.(b) of SoP No.131 of 1996 and No.93 of 1997). In Dr Benanzio's report dated 31 March 1999, he reported taking a history as follows: "One or two years after the accident his low back discomfort started to radiate to the left thigh and calf after some walking…."
I noted that the development of pain over a year or two was quite inconsistent with the oral evidence Mr Higham gave which was that he suffered pain immediately after the fall, and has suffered pain ever since.
dr m miller , consultant physician, specialist in internal medicine and rehabilitation medicine and cardiologistDr M Miller, whose report of 30 March 1999 was before the Tribunal as Exhibit A3, gave oral evidence. In his written report, Dr Miller also made comment on Mr Higham's accepted disabilities which were not before the Tribunal, and which therefore do not require further comment.
My interest was in his opinion regarding what he termed the veteran's lumbar spondylosis. Dr Miller reported: "He underwent an L4 laminectomy about twelve years ago in 1987. This was done because he developed pain down his right leg on walking in about 1982…"
From the evidence before me, I am reasonably satisfied that the laminectomy was carried out in either 1983 or 1984. I did not have any evidence before me of Mr Higham developing pain down his right leg on walking in about 1982.
Dr Miller also referred to the SoP No.52 of 1998 concerning lumbar spondylosis about which he opined as follows:
"…Mr Higham gives a clearcut history of suffering a trauma to the lumbar spine and therefore satisfies factor 5(g). The trauma involved a discrete injury to the lumbar spine causing the development, within twenty-four hours of acute symptoms of pain, tenderness and stiffness of his back. This lasted for three weeks and therefore I consider that he satisfies the definition of trauma to the lumbar spine under factor 8. In my opinion, therefore, he satisfies the Statement of Principles and there is a reasonable hypothesis linking his lumbar spondylosis with war service."
I am mindful of Dr Miller's reference to SoP No. 52 of 1998, and noted that No.52 of 1998 is referable to veterans who have rendered operational service, and that he may have intended to refer to No.53 of 1998, referable to veterans with eligible service such as Mr Higham. Dr Miller opined that Mr Higham satisfied SoP No.52 of 1998 and that there was a reasonable hypothesis linking his lumbar spondylosis with his war service. As Mr Higham rendered eligible and not operational service, the concept of the reasonable hypothesis is inapplicable. Further it seemed to me that Dr Miller confused his role in giving expert medical evidence to assist the Tribunal with that of the decision-maker, the Tribunal.
I was however satisfied with Dr Miller's report regarding assessment, noting also that it was unchallenged, and accepted by both parties.
SUBMISSIONS AND CONCLUSIONSIn coming to the correct and preferable decision regarding Mr Higham, I had to take into account the evidence both written and oral, the case law, legislation and SoPs to decide whether the applicant suffered lumbar spondylosis or intervertebral disc prolapse which was war-caused within the terms of section 9 of the Act.
Further, I had to decide whether his entitlement to receive the pension was more than 50% of the General Rate, mindful that the earliest date of effect, should the applicant be successful, would be 13 February 1997. I was also mindful of the standard of proof to be used pursuant to section 120(4) of the Act, that is, to the reasonable satisfaction of the Tribunal.
I was mindful that Ms Breuer relying on the assessment report of the applicant by Dr Miller, conceded on behalf of the respondent that Mr Higham's pension should be increased to 80% of the General Rate if lumbar spondylosis was not to be accepted as war-caused within the terms of the legislation, and 100% if the Tribunal's decision was that lumbar spondylosis should be accepted as war-caused.
I noted that the veteran's accepted disabilities were bilateral sensori-neural hearing loss, ischaemic heart disease, chronic airways limitation, chronic solar skin damage and malignant neoplasm of the tongue on and from 13 February 1997.
The Veterans' Review Board assessment using the Guide to the Assessment of Rates of Veterans' Pensions ("GARP") in respect of each of these accepted disabilities was as follows: bilateral-neural hearing loss (14 points), ischaemic heart disease and chronic airways limitation (14 points), chronic solar skin damage (5 points) and malignant neoplasm of tongue (nil points).
I noted that Dr Miller in his report of 30 March 1999 (Exhibit A3) provided the following assessment of the applicant's accepted disabilities using GARP: bilateral-neural hearing loss (12 points), ischaemic heart disease and chronic airways limitation (27 points), chronic solar skin damage (5 points) and malignant neoplasm of the tongue (10 points). In particular, Dr Miller disagreed with the assessment of the Board in relation to the assessment of malignant neoplasm of the tongue, which stated: "the only after affect is that the veteran experiences some dribbling from the mouth".
According to Dr Miller, the applicant's lifestyle rating was 4 points. He noted in his report of 30 March 1999 at page 7 that his personal relationships were "affected by his deafness, his frustration and irritation because people cannot hear him and because of his difficulty in hearing in the presence of background noise. He is embarrassed by spraying saliva over people to whom he is talking …" and his mobility is reduced because of "frailty and lack of confidence". The Veterans' Review Board had assessed the applicant's lifestyle rating at 2 points.
I accepted the evidence of the applicant that he could not walk long distances, that he could no longer play bowls, which he loved, or play golf. Relying on the assessment report of Dr Miller, and the concession made by the respondent, and having heard the evidence of the applicant, I accepted that the applicant's disability pension should be increased to 80% of the General Rate even before considering whether his lumbar spondylosis was war-caused.
I then turned to consider whether Mr Higham's lumbar spondylosis or intervertebral disc prolapse was war-caused within the terms of section 9 of the Act. I was mindful that I had to apply section 120B of the Act, and the relevant SoPs. I also took the view that given the evidence and submissions relating to the SoPs regarding lumbar spondylosis and intervertebral disc prolapse, I should consider both.
I noted that the Veterans' Review Board had applied the principles in SoP No. 53 of 1998 concerning Lumbar Spondylosis. By the time the matter came on for hearing before this Tribunal, Instrument No.28 of 1999 had also been promulgated. There were minor amendments to some definitions but for purposes of this matter, they were not material and did not raise issues of accrued rights.
The relevant definitions were almost identical in both SoPs for lumbar spondylosis, and sufficiently alike as to make no difference in this case. The definition was as follows:
"lumbar spondylosis" means degenerative changes affecting the lumbar vertebrae and/or intervertebral discs, causing local pain and stiffness and/or symptoms and signs of lumbar cord, cauda equina or lumbosacral nerve root compression…"
Factors 5(g) and 5(h) which follow, were identical in both SoPs No.53 of 1998 and No.28 of 1999:
"5(g) suffering a trauma to the lumbar spine within the 25 years immediately before the clinical onset of lumbar spondylosis; or
5(h) suffering a lumbar intervertebral disc prolapse before the clinical onset of lumbar spondylosis at the level of the intervertebral disc prolapse; or…"
I was mindful that in order to meet the requirements of the SoPs on lumbar spondylosis, there had first to be a trauma to the lumbar spine. The definition of trauma to the spine in SoP No.28 of 1999 was as follows:
"trauma to the lumbar spine" means a discrete injury to the lumbar spine that causes the development within 24 hours of the injury being sustained, of acute symptoms and signs of pain and tenderness, and either altered mobility or range of movement of the lumbar spine. These acute symptoms and signs must last for a period of at least 10 days following their onset…."
Taking the SoP on lumbar spondylosis first, it was clear from the radiological evidence of Dr Roberts dated 18 June 1997 (Exhibit R2/20) that Mr Higham had "advanced degenerative changes throughout his lumbar spine". Dr Bentivoglio in a report dated 14 October 1997 (Exhibit R2/17) of a CT scan performed, wrote that Mr Higham had multilevel facet joint disease and degenerative disc disease.
The applicant was in a curious situation, in that Dr Benanzio referred to the SoPs concerning lumbar spondylosis in his written report, and SoPs relating to intervertebral disc prolapse in his oral evidence. Dr Miller on the other hand, referred to No.52 of 1998 applicable only to veterans having served on operational service, whereas of course Mr Higham had eligible service. Dr Miller suggested Mr Higham met the conditions for Factor 5.(g) of SoP No.52 of 1998. At the hearing Mr Hill and Ms Breuer agreed Factor 5.(g) would not be pursued, and I found Dr Miller's report of assistance only with regard to assessment.
Dr Benanzio, on the other hand, dealt in his oral evidence with Factor 5.(h) of SoP No.53. of 1998, and explained in great detail the onset of lumbar intervertebral disc prolapse occurring over a period of one to two years. He had no documentary evidence before him about Mr Higham's fall. Indeed no-one had in this matter.
I then noted that the SoPs for Intervertebral Disc Prolapse were Instrument No.131 of 1996 and Instrument No.93 of 1997. The definitions of intervertebral disc prolapse were in a different format in each, but essentially of the same content.
Instrument No.131 of 1996
"intervertebral disc prolapse means protrusion, herniation or rupture of an intervertebral disc of the cervical, thoracic or lumbar spine, causing local pain and stiffness, and or pain and paraesthesia radiating … or into the lower limbs in the case of lumbar disc prolapse…"Instrument No.93 of 1997
"intervertebral disc prolapse means protrusion, herniation or rupture of an intervertebral disc of the cervical, thoracic or lumbar spine, causing local pain and stiffness, and may include:
….
in the case of lumbar disc prolapse - pain and paraesthesia radiating … into the lower limbs …"Factor 5.(a) in Instrument No.131 of 1996 stipulated that before it could be said that on the balance of probabilities, intervertebral disc prolapse was connected with the circumstances of a person's eligible service the person had to be "suffering trauma to the relevant disc at the time of the clinical onset of intervertebral disc prolapse…"
Instrument No.131 of 1996 and Instrument No.93 of 1997 were relevant in relation to intervertebral disc prolapse. In Instrument No.93 of 1997:
"trauma to the relevant disc" means an injury to the particular prolapsed intervertebral disc, giving rise to immediate pain, tenderness and altered mobility or altered range of movement of that part of the spine, which persists for at least two weeks, …Examples of activities or events that may result in trauma to the relevant disc include:
(i) …
(ii) jumping from a height… or jumping down from a tank; or
(iii) – (vi) …
(vii) a motor vehicle accident; or
…"As had already been noted above, the applicant in oral evidence to the Tribunal, stated that in early 1945 he had fallen from a truck whilst loading ammunition in the presence of his commanding sergeant, and had immediately been put on light duties. I have already noted there were inconsistencies between the applicant's version of events surrounding the fall, and most of the other evidence and documentation before the Tribunal (T18, Exhibit A1, T4, T10, T19).
In a questionnaire with regard to lifestyle rating dated 20 September 1998 at T18/74 he stated:
"I REALISED THAT I SHOULD HAVE REPORTED FALLING FROM A RAILWAY WAGON WHEN LOADING AMMUNITION AND HURTING MY BACK. I WOULD HAVE BEEN PUT ON LIGHT DUTIES IF I HAD AND WOULD HAVE MISSED BEING A CONDUCTOR ON THE AMMUNITION TRAIN GOING TO F.A.D DENMAN." [emphasis added]
Dr Benanzio's report of 31 March 1999 (Exhibit A1) recorded the incident as follows:
"The patient stated that the day after the accident he travelled by train for about two days to another ammunition depot and then he was on leave in Sydney for about four days. He continued to do his normal duties despite the persistent lower back ache…He was given three days of light duties without specific treatment." [emphasis added]
I noted also that the decision of the Veterans' Review Board dated 4 January 2000 (T19) described the applicant's case as follows:
"The veteran told the Board that he believed his back problem diagnosed as lumbar spondylosis was caused by a fall he had during the war. He said he was loading ammunition from a semi trailer onto a van. As they had finished the task he went to step from the train onto the trailer just as it moved. He fell about 5 feet onto the ground. He fell on his side. He felt some pain but described it as 'not that bad at the time'. He travelled on the train to his destination and on the return journey had 4 days leave in Sydney described by him as 'not to be missed'. The veteran said that if he reported the injury he would have been put on light duties and thus would have missed the leave period in Sydney." [emphasis added]
To meet the definition of trauma to the lumbar spine in the SoPs for lumbar spondylosis, the person must within 24 hours of the injury being sustained, have shown acute symptoms and signs of pain and tenderness, and either altered mobility or range of movement of the lumbar spine lasting for at least ten days. There were no records available at all regarding the fall, and as Mr Higham said, no visits to the RAP or to a doctor. The applicant did give evidence however, of feeling pain immediately after the fall, and of some altered mobility, that is, he could get in and out of the truck, but had started to feel stiff the next day, and had difficulty in putting on his shoes and socks. Mr Higham said that he continued on light duties for three weeks. This was not consistent with the history recorded by Dr Benanzio, the applicant's life style questionnaire he completed (T17), or the account of the fall as recorded by the Veterans' Review Board (T19).
I noted that on 13 May 1997 in his claim for a disability pension (T4/20) the applicant stated that his 'back – spine disability' was caused by lifting weights in the ammunition section. This scenario was further reported by the 'Commonwealth Department of Veterans Affairs Medical Report – Trauma to the Lumbar Spine Lumbar Spondylosis' completed by Dr Cranney on 18 June 1997 attributed trauma suffered by the applicant to "lifting during WWII". All the above documentation is in contradiction to the oral evidence given by the applicant that after he suffered a fall he was immediately put on light duties.
I noted also that there was a reference to backache recorded by doctors on the applicant's 'Australian Forces Medical History Sheet', on enlistment on 18 November 1944. Mr Higham stated in evidence that he did not understand how there could have been reference to backache in his records on joining the service as he did not have any such backache. He asked rhetorically why he would have been given heavy work such as loading ammunition if it was known that he had reported backache on enlistment. He recalled being physically active as a young man, and participating in a number of sporting activities. Neither party could clarify the reference to backache in the enlistment medical history, and there was no claim made that this was a case where a back condition present on enlistment which had been aggravated.
Mr Hill submitted that the evidence that a fall had taken place was not disputed, and that Dr Benanzio focused his oral evidence on Factor 5.(h) in SoP No.53 of 1998 and No.28 of 1999 which was as follows:
"5(h) suffering a lumbar intervertebral disc prolapse before the clinical onset of lumbar spondylosis at the level of the intervertebral disc prolapse;"
He submitted that Mr Higham's case could be viewed also in terms of Factor 5.(g) of SoP No.53 of 1998 and No.28 of 1999. Both parties agreed however not to pursue making submissions with regard to Factor 5.(g). which was as follows:
"5(g) suffering a trauma to the lumbar spine within the 25 years immediately before the clinical onset of lumbar spondylosis; or"
Ms Breuer submitted that the definition of trauma was not met by the applicant. Trauma in terms of the relevant SoPs meant of course a discrete injury to the lumbar spine causing the development within 24 hours of acute symptoms and signs of pain, tenderness and altered mobility lasting 10 days immediately after the trauma. I accepted from the applicant's evidence that there had been a fall but was not satisfied to the requisite standard that it caused acute symptoms which lasted the ten days required by the definition of trauma in the SoP.
Ms Breuer submitted that the evidence of Dr Benanzio was that the most appropriate Factor in the SoP concerning Lumber Spondylosis No.28 of 1999 was 5(h) which stated that the connecting factor between a person's service and lumbar spondylosis was: "suffering a lumbar intervertebral disc prolapse before the clinical onset of lumbar spondylosis at the level of the intervertebral disc prolapse". She argued that that there was inadequate evidence provided that there was a lumbar intervertebral disc prolapse before the clinical onset of the applicant's lumbar spondylosis at the level of the intervertebral disc prolapse.
I considered the evidence regarding the trauma Mr Higham reported suffering in a fall in early 1945, and did not accept the version of events as given in evidence by Mr Higham at the hearing. I did not accept that the applicant had been assigned light duties immediately after a fall in early 1945 because of the many inconsistencies in the evidence, as detailed above. I found that Mr Higham did not meet the definition of trauma in the SoPs concerning lumbar spondylosis. Given the number of inconsistencies detailed above, I accepted Ms Breuer's submissions.
In considering when a lumbar intervertebral disc prolapse may have occurred, I recalled the evidence of Dr Benanzio, who had said that the fall described by Mr Higham would not have caused an intervertebral disc prolapse immediately. Dr Benanzio described in great detail how the evidence of disc prolapse began when a patient complained of having backache. The sequence of events was he said, for trauma to take place, followed by pain, in this case a radiation of pain to the lower limbs, radiculitis and followed by paraesthesia. He said that the trauma could cause musculo-ligamentous damage of short duration or a disc injury as in Mr Higham's case. He said that the history of the pain developing over a year or two was consistent with disc rupture and that it was rare to have a disc which prolapsed immediately on injury.
I took into account Mr Higham's accounts of his fall, his evidence to the Tribunal, and the accounts as recorded by others. The evidence before me did not satisfy me to the requisite standard that Mr Higham suffered an intervertebral disc prolapse when he fell off a truck in early 1945. There was no record relating to Mr Higham of any back injury in 1945, or on the discharge medical examination at T3/16 dated 10 December 1946, and there was no record of visits to doctors for any back problem until approximately 1970. The other inconsistencies with regard to evidence given about the effects of a fall have been detailed above.
I am satisfied Mr Higham has had problems with his back. He gave evidence regarding taxi driving in the 1950s and said that he had decided not to buy a taxi because of his back problems. He also underwent a lumbar laminectomy in either 1983 or 1984, and investigations in 1997 showed that he had moderate to advanced degenerative thoraco-lumbar changes. However I am not convinced to the requisite standard, that is to my reasonable satisfaction, that his back problems met the SoPs concerned with lumbar spondylosis or intervertebral disc prolapse. Thus his lumbar spondylosis or intervertebral disc prolapse cannot be held to have been war-caused pursuant to section 9 of the Act.
DECISIONThe decision under review with regard to entitlement is affirmed. The decision under review with regard to assessment is set aside and in substitution therefor the disability pension is assessed at 80% of the General Rate to operate on and from 13 February 1997.
I certify that the 78 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member
Signed: .....................................................................................
AssociateDate of Hearing 17 February 2000
Date of Decision 23 March 2000
Counsel for the Applicant Mr A Hill
Solicitor for Applicant Mr B Winship
Counsel for the Respondent N/A
Advocate for the Respondent Ms S Breuer
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