Hill and Repatriation Commission - [2002] AATA 364

DECISION AND REASONS FOR DECISION [2002] AATA 364

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T2001/89

VETERANS' APPEALS DIVISION       )
           Re      BARRY JOHN HILL
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-time Member)

Date17 May 2002
PlaceHobart

Decision      The decision under review is affirmed.
  [Sgd B W Davis]
  Part-Time Member
CATCHWORDS
Veterans' appeals - operational service - war-caused disabilities - pension - medical condition - lumbar intervertebral disc prolapse - reasonable hypothesis - statement of principles - clinically worsened condition.
Legislation
Veterans' Entitlement Act 1986 – s120(1) and (3)
Principles
Statement of Principles 130 of 1996 as amended by 92 of 1997.
Authority
Repatriation Commission v Deladio [1998] 391 FCA (22 April 1998)

REASONS FOR DECISION

17 May 2002 Associate Professor B W Davis AM (Part-time Member)

The application

This is an appeal against that part of a decision of the Repatriation Commission dated 4 June 2000, as affirmed by a decision of the Veterans' Review Board (VRB) of 7 May 2001, whereby the applicant's claim to have lumbar invertebral disc prolapse accepted due to service was rejected.
Issue
The issue in this case is whether the claimed condition was caused or contributed to by the applicant's period of service in the Royal Australian Navy between:
(a) 25 April 1966 and 9 May 1966 and
(b) 26 May 1966 and 9 June 1966.

Operational service was in Vietnam.
Standard of Proof

The standard of proof is that provided for by s120(1) and (3) of the Veterans' Entitlements Act 1986 ("the Act"). As the claim was lodged after 1 June 1994, s120A of the Act applies. The Statements of Principle in respect of lumbar intervertebral disc prolapse are No. 130 of 1996 as amended by No. 92 of 1997.
Date of Effect
All steps in this matter having been taken within the prescribed time limits, should the applicant succeed in this appeal the date of effect will be 20 August 2000, being three months prior to lodgment of the appeal.
Background
Barry John Hill (the veteran) served in the Royal Australian Navy from 25 April 1963 to 24 November 1972. His eligible war service (which is also operational service) was from 25 April 1966 to 9 May 1966 and from 26 May 1966 to 9 June 1966.
As the VRB noted in its decision of 7 May 2001, it is not an issue that the veteran suffered an injury to his back on 21 March 1966 while working in the wardroom galley aboard HMAS Yarra. Service medical records indicate that the injury occurred while the veteran was straightening out after stooping and the injury occurred when he fell backwards and struck his back on a banana box. That injury is described as "slipped disc (minimal subluxation)". He was admitted to Balmoral Naval Hospital on 23 March 1966 and was discharged from hospital on 30 Mary 1966. The notes read "Feels well. Fit for duty".
The veteran's second tour of operational duty began on 26 May 1996. On or about 27 Mary 1966 the veteran was negotiating a ladder when he slipped and fell some distance to the deck. When his feet struck the deck the jarring was transferred to his back. He then fell forward injuring his shoulder. The injury to the right shoulder was the subject of a daily medical record dated 3 June 1966.
The veteran indicated to the VRB that he believed this accident occurred about 2.30 pm, but he performed his usual duty of preparing the wardroom meal that evening and thereafter. The VRB noted the contents of a statutory declaration by a Mr McClelland concerning events aboard HMAS Yarra at the time of this second accident and the nature of duties to be performed by the veteran. The veteran said that one reason why there is no medical record of any back injury following the ladder incident was that he would speak to the surgeon Lieutenant informally quite regularly. The doctor would tell him to "take it easy" but he still had his ordinary duties to perform and felt bound to carry them out.
The VRB noted that the second incident occurred some eight weeks after the first, but regarded the onset of lumbar intervertebral disc prolapse, as evidenced by medical records, as having occurred on or about 21 March 1966, prior to commencement of operational service on 25 April 1996. The VRB could not find any medical evidence to support the proposition that the second fall had materially aggravated the injury. They therefore refused the claim that the lumbar intervertebral disc prolapse was related to operational service and affirmed the decision under review.
Evidence
At the hearing conducted on 9 April 2002, the applicant was represented by Mr R Webster and the respondent by Mr M Castle.
The applicant, Barry John Hill was affirmed and gave evidence about his naval service and disabilities, recounting in detail how the two falls had occurred aboard HMAS Yarra. He was questioned about hospitalisation after the initial fall, indicating that the pain he felt arose from hitting the lower part of his back and experiencing further pain down the right side of his leg, from the waist towards the knee. When he returned to duties aboard his ship, he still experienced slight pain, but tended to disregard this, feeling that his duties were important and expected of him. He sought minor medication from the medical officer when necessary.
Mr Hill indicated that immediately following the second fall he felt a sharp pain in his right shoulder, having landed feet first, but then hitting the upright stanchion of the ship. He was queried whether back pain also resulted, stating that it occurred only intermittently as a sharp stabbing pain across the back and then more or less from the waist down the right leg. He did not say a lot to the doctor about it and continued his duties.
He came home on leave in July 1966, staying with his sister, Mrs C Brassington, who was aware of his injuries, although he did not say much specifically about his back problem. Nonetheless the pain has continued ever since and following discharge from the Navy he has sought regular medical treatment for the condition.
Under cross-examination by counsel for the respondent he stated that on return to HMAS Yarra after the second incident he was assigned to full duties, cooking for the officers, but not forced to endure the workload and schedules of the busy main galley of the ship.
Counsel for the respondent then drew attention to a claim form submitted by the applicant in 1994, for slipped disc injury, left leg and varicose veins, hearing loss and tinnitus. The form had been filled in by someone else, but Mr Hill agreed he had signed it. There was reference only to the initial injury and not the subsequent second fall. Mr Hill commented he did not wish to be viewed as a "sick-bay jockey", he had been brought up in the country where people put up with falls, so in the navy he rarely reported maladies or visited the sick-bay. He could not recall how many times he had seen the medical officer, but it was largely an informal arrangement where he was sometimes given tablets when he sought them.
The witness withdrew, Mrs Carol Ann Brassington was sworn, giving evidence she had witnessed Barry John Hill, her brother, taking tablets for pain in the lower back, during a period at her residence in 1966.
Dr Gregory Phillip Pitt was sworn and stated that Barry Hill had first consulted him in December 1993 about varicose veins and varicose eczema on his legs. He had prescribed some antibiotics and anti-inflammatory cortisone cream. Mr Hill had also mentioned cramps in the legs and lumbar back pain experienced intermittently for years. Under questioning, Dr Pitt stated Mr Hill discussed his initial fall, but at that stage did not mention a subsequent fall. However, Dr Pitt considered it likely the initial fall had weakened Mr Hill's back in a permanent way, probably involving lock joints as well as a disc problem. Under cross-examination, he considered the second fall might well have aggravated the initial injury, not just as a flare-up over a period of time, but permanently, but admitted he had no evidence to judge the severity of the second incident.
Analysis
The issue before the Tribunal is whether the claimed condition of lumbar intervertebral disc prolapse was caused or contributed to by Mr Hill's period of service in the Royal Australian Navy between 25 April 1966 and 9 May 1966, also 26 May 1966 and 9 June 1966, operational service being in Vietnam.
It is uncontested that Mr Hill injured his back in a fall aboard HMAS Yarra on or about 21 March 1966, subsequently requiring hospitalisation. But this was several weeks before operational service commenced on 25 April 1966. If Mr Hill can be believed (and he appeared a truthful witness) a second fall occurred on the same vessel on or about 27 May 1966, but there is no clear medical evidence of a back injury or aggravation at that time. If his word is accepted then the query is whether the second fall, during operational service, really can be regarded as causative of a significant medical problem.
Following the provisions of s120(1) and 120(3) of the Act, as well as s120A, we adopt the analytical procedure outlined in Repatriation Commission v Deladio [1998] 391 FCA (22 April 1998), namely:
(a)Determine whether the material before the Tribunal points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact arises at this stage. If no hypothesis arises, the application must fail.
(b)If the material does raise an hypothesis, the Tribunal must then ascertain whether there is in force an Statement of Principle (SoP) determined by the Authority under s196B(2) or (11) of the Act.
(c)If a Statement of Principle is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one.
(d)The Tribunal must then consider under s120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury.
Taken at face value the evidence before the Tribunal might raise a reasonable hypothesis that a back injury caused by an initial fall could be linked to and causative of further injury following a second fall. But in terms of the Act, the initial fall suffered by Mr Hill occurred prior to operational service, thus only the issue of aggravated injury caused by a second fall can be considered, as well as the general context.
As a delegate of the Department of Veterans' Affairs noted in his determination of 24 November 2000, the relevant initial SoP concerning intervertebral disc prolapse is No 92 of 1997. More correctly stated, the relevant SoP is No 130 of 1996 as amended by No 92 of 1997. In Mr Hill's case there is no history of cigarette smoking or of lifting at least 10kg over sustained periods, thus the decision is primarily concerned with trauma due to injury and whether any clinical worsening occurred.
Clinical worsening is defined as:
"… Worsening of intervertebral disc prolapse would be indicated by a significant and permanent increase in the severity or frequency of symptoms or an increase in the need for medication or other forms of treatment."

Having sought a medical opinion from Dr Henry Brigden, Department Medical Adviser, the delegate received comment as follows:

"… Clearly he (Mr Hll) had a significant incident in 1996 which may have been subject to an exacerbation later that year. However, had any really significant condition been present in mid 1996, he would have had significant episodes and deterioration which clearly did not occur."

The delegate agreed there was no medical evidence of serious worsening and considered that overall the evidence did not raise a reasonable hypothesis connecting lumbar intervertebral disc prolapse and operational service. He was unable to accept it as war-caused. The VRB came to a similar conclusion.

The Tribunal notes that Instrument No. 92 of 1997 elaborates the phrase "trauma of the relevant disc as meaning an injury which gives rise to immediate pain, tenderness and reduced mobility or altered range of movement which persists for at least two weeks unless medical intervention occurs." There is no specific medical evidence concerning the immediate outcome of Mr Barry John Hill's second fall, but he continued to serve in the Navy until 24 November 1972, presumably judged fit for full duties. In these circumstances, it cannot be argued Mr Hill meets the criteria specified in the relevant SoP and thus his application fails.
The decision under review is affirmed.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)
Signed: K L Miller (Personal Assistant)
Date/s of Hearing  9 April 2002
Date of Decision  17 May 2002
Counsel for the Applicant        Mr R M Webster
Solicitor for the Applicant
Counsel for the Respondent    Mr M Castle
Solicitor for the Respondent    Department of Veterans' Affairs