Hill and Repatriation Commission - [2001] AATA 217

DECISION AND REASONS FOR DECISION [2001] AATA 217

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V99/1462

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

DECISION

Tribunal Mrs Joan Dwyer, Senior Member Mr A Argent Member Assoc. Professor J Maynard Member

Date14 March 2001
PlaceMelbourne

Decision      The Tribunal affirms the decision under review.
  (Sgd) Joan Dwyer
  Senior Member
VETERANS AFFAIRS - lumbar spondylosis - whether trauma to the lumbar spine before clinical onset of lumbar spondylosis - whether material before the Tribunal points to a hypothesis connecting the applicant's lumbar spondylosis with the circumstances of service - whether hypothesis is reasonable - whether evidence of acute signs or symptoms of tenderness and altered mobility or range of movement of that part of the spine - decision affirmed
Veterans' Entitlements Act 1986 s120A
Statement of Principles Instrument No. 165 of 1996

Harris v Repatriation Commission (2000) FCA 1687

Harris v Repatriation Commission (2000) FCA 873

Repatriation Commission v Deledio (1998) 49 ALD 193

REASONS FOR DECISION

14 March 2001 Mrs Joan Dwyer, Senior Member Mr A Argent Member Assoc. Professor Maynard Member

Mr Hill served in the Australian Air Force. He had operational service in Malaya from 4 September 1955 to 11 December 1956. He was a barracks electrician at RAF Butterworth. Mr Hill's claim to have lumbar spondylosis accepted as war-caused was lodged on 12 May 1998. Thus this matter is to be decided in accordance with section 120A of the Veterans' Entitlements Act 1986 ("the Act"). Because the original Repatriation Commission decision was made on 17 July 1998 the relevant Statement of Principles ("the SoP") in respect of lumbar spondylosis, in accordance with the decision of the Full Court of the Federal Court in Repatriation Commission v Keeley, 2000/31 AAR 750, is Instrument Number 165 of 1996.
So far as relevant that SoP provides that the factor that must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised connecting lumbar spondylosis with the circumstances of a person's relevant service is (g):
Suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis.
The SoP contains a definition of trauma to the lumbar spine which reads:
"trauma to the lumbar spine" means an injury to the lumbar spine caused by the force of an extraneous physical or mechanical agent 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, and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs, unless medical intervention has occurred. Where medical intervention for the injury has occurred (for example splinting, corticosteroid injection, surgery), and there is evidence relating to the extent of injury and treatment, such evidence may be considered;
It is accepted that Mr Hill does suffer lumbar spondylosis. The Tribunal had before it a statement made by Mr Hill on 9 March 2000. It reads as follows:
1.I served in the Royal Australian Air Force from 30 July 1952 to 15 June 1971. I served in Malaya during 4 September 1955, to 11 December 1956, and have rendered operational service.
2.During my service in Malaya in 1955, I was required to move an electric motor from the ground on to a four-wheel trolley. The motor was too heavy for me to lift on my own, and I asked another person to help me. As we lifted the motor, the other person said the motor was too heavy and dropped his end to the ground. I therefore took the full weight of the motor and felt immediate pain across my lower back.
3.The pain did continue for at least 7-8 days, but as far as I can remember I continued with my duties, although I was in pain, but my duties did not involve any more heavy lifting. I did not report this to the RAP as I did not wish to appear to be a "sook".
4.My back has always continued to be painful since that time, and during the 1960's I attended at my local doctor to seek treatment, and I was given pain killers. I then attended a chiropractor, and have been seeing a chiropractor ever since. This gives me some relief.
5.There have been times that the ambulance has had to be called as I was unable to move.
6.The incident when I was a Rodeo Rider was when I was about 17 or 18. I was bruised but did not have any ongoing problems resulting from this incident.
Mr Hill did not describe or convey to the Tribunal the impression that he suffered any acute pain or other symptoms following the incident. The only symptoms he described were that at the time the other man dropped his end of the motor, Mr Hill felt his back had had a jolt or a jar. He said he got two other men to move the motor as he felt immediate pain across his lower back. He said the pain lasted for about two weeks and during that period he did not do any more lifting and found he had pain on twisting and turning and therefore avoided those movements.
Mr Hill said he did not report to the Station Sick Quarters ("SSQ"), as they could not do anything other than give him an Aspro and he could get those at the canteen. He did not say that he actually took any Aspro or Bex. Mr Hill did not describe any difficulty in leading his normal life but he said he did not have work to do unless there was something that needed fixing. Mr Hill, in his evidence, did not describe the nature of his pain after the immediate time of the incident, nor did he describe any tenderness. He did not mention any difficulty performing any tasks other than twisting and turning.
The Federal Court in Harris v Repatriation Commission (2000) FCA 873 and in Harris v Repatriation Commission (2000) FCA 1687 considered the requirements of the definition of trauma to the lumbar spine in the Statement of Principles for lumbar spondylosis relevant to this matter. The Full Court dismissed an appeal from the decision of Finn J who had dismissed an appeal from this Tribunal. The Full Court approved Finn J's discussion of the meaning of the definition. His Honour had said at paragraphs 30 to 32:
In the present case the minimum factors the SoP identified that could relate lumbar spondylosis to operational service were the suffering of a trauma to the lumbar spine before the clinical onset of lumbar spondylosis which trauma was itself related to the service rendered by the person.
Insofar as the trauma component of those factors is concerned this requires inter alia that the injury in question caused the development of acute symptoms and signs of (i) pain, (ii) tenderness and (iii) altered mobility or range of movement. Though the preposition 'of" only precedes the word 'pain' in the SoP's definition I am satisfied that the definition is to be read as if 'of' preceded the words 'tenderness' and 'altered' as well. The applicant has submitted to the contrary contending that the definition is to be read as if it referred to 'acute' symptoms and signs of pain and/or tenderness, and [meaning 'together with'] altered mobility' etc. When one has regard both to the balance of the sentence in which the definition appears (and particularly to the words 'and where such acute symptoms and signs last for a period of at least one week') and to what, ordinarily, would be the work done by the preposition 'of' in a sentence constructed in the manner of the definition, the definition must be construed as I have proposed. I should add that the construction is the one propounded by the respondent.
The requirement, then, that there be 'signs and symptoms' of each of the three stipulated matters necessitates that there be an indication of, or phenomenon evidencing, each: eg definition, II of 'sign' and that of 'symptom' in the Shorter Oxford English Dictionary ('SOED'). Moreover, given the requirement that the signs and symptoms must be 'acute' i.e. that they be sharp or act 'keenly on the senses': SOED, 'acute'; there would need to be significant manifestations, variously, of pain, of tenderness and of altered mobility etc. As the respondent contends, the definition contemplates a significant injury.
The Full Court, at paragraph 33 of its reasons commented:
The primary judge observed that it was arguable that the AAT should have been prepared to assume for the purposes of formulating a hypothesis connecting the appellant's service to his current disability that he had suffered altered mobility. But even if that were so, it fell short of a hypothesis that the appellant had suffered acute symptoms and signs of that altered mobility, as SOP No 105 of 1995 required.
The process of deciding whether or not an injury or disease is war-caused within the meaning of that term in section 9 of the Act requires the four-step approach laid down in Repatriation Commission v Deledio (1998) 49 ALD 193 at 206. The first step is to consider whether the material before the Tribunal points to a hypothesis connecting Mr Hill's lumbar spondylosis with the circumstances of his service. The hypothesis raised is that the lumbar spondylosis was caused or aggravated by trauma to the lumbar spine sustained on service on one occasion when a man helping Mr Hill lift a motor dropped his end of the motor.
The second step as explained in Deledio requires the Tribunal to ascertain whether there is a Statement of Principles in force in respect of the relevant injury. There is a relevant Statement of Principles.
The third step requires the Tribunal to consider whether the hypothesis raised is a reasonable one. The Full Court in Deledio explained how that is to be done. If a SoP is in force the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the template to be found in the SoP.
The hypothesis raised must thus contain one or more of the factors which the Repatriation Medical Authority has determined to be the minimum which must exist and be related to the person's service as required by sections 196B(2)(d) and (e) of the Act. If the hypothesis does contain these factors it could neither be said to be contrary to proved or known scientific facts nor otherwise fanciful. If the hypothesis fails to fit within the template it will be deemed not to be reasonable and the claim will fail.
The hypothesis raised in this matter may, at first, appear to contain the factor of trauma to the lumbar spine, however, it is necessary that the trauma to the lumbar spine be trauma fitting the definition in the SoP. That definition, as Finn J explained in Harris, "requires inter alia that the injury caused the development of acute symptoms and signs of (i) pain, (ii) tenderness, and (iii) altered mobility or range of movement." Such acute symptoms and signs must last for a period of at least one week.
In the light of the lack of mention of the incident in medical records over many years we had some doubts about the evidence Mr Hill gave, even allowing for the time lapse since 1956. But for the task we are now engaged on that is not relevant. Even accepting his evidence, it does not raise or point to the matters required in the definition in the Statement of Principles. First, there is no evidence of any signs or symptoms being "acute". As Finn J pointed out in Harris, the Shorter Oxford English Dictionary indicates that for symptoms to be "acute" they must be "sharp or act keenly on the senses." Mr Hill did not say that his pain was sharp even initially. In fact he told the VRB that he helped move the motor immediately after the incident. He told us he got two other men to do so without him, but he did not say that the pain was sharp or remained sharp for at least a week.
Mr Hill gave no evidence of acute signs or symptoms of tenderness. He did not describe his back being sore. Although he said pain lasted about a fortnight he did not say he had pain sufficient for him to seek medical help which was available on the base or even to take an Aspro. He said it was inconvenient to get to the SSQ, but his medical records show he did so at least six times during the year of the incident for other matters including headache.
The facts that Mr Hill did not at any stage seek even a pain-killer and that he did not take any time off duty indicate that the requirements of the definition are not raised. Further, on his discharge medical, T docs pages 11 and 12, he answered "No" to a question asking if he had any knee, back or joint injury during service and did not mention the incident when asked if he had suffered any injuries, although he did report an eye injury.
We find that the material before us does not raise a reasonable hypothesis. The raised hypothesis is not consistent with the template to be found in the SoP. As the hypothesis fails to fit within the template, the claim in respect of lumbar spondylosis must fail.
The Tribunal will affirm the decision under review.
I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member, Mr A Argent, Member and Assoc. Professor J Maynard, Member
Signed:         Anne O'Rourke
  Associate
Date/s of Hearing  14 March 2001
Date of Decision  14 March 2001
Counsel for the Applicant        Nil
Solicitor for the Applicant         Ms I Black
Counsel for the Respondent    Nil
Solicitor for the Respondent    Mr A Hall