Hodder and Repatriation Commission - [2001] AATA 725

DECISION AND REASONS FOR DECISION [2001] AATA 725

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1398

VETERANS' APPEALS DIVISION       )
           Re      JOHN LAURENCE HODDER
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal M J Sassella, Senior Member

Date16 August 2001
PlaceSydney

Decision      The decision under review is varied to the extent that, with effect from 1 October 1998, lumbar spondylosis, plantar fasciitis and wedge fracture T11/T12 vertebrae are war-caused disabilities under the Veterans' Entitlements Act 1986.
   [Sgd] M J Sassella
  Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – operational service - plantar fasciitis – lumbar spondylosis - fracture of T11/12 vertebrae - reasonable hypothesis linking condition to war service – disability pension – standard of proof – trauma to the lumbar spine - trauma to the plantar aspect of the foot – whether condition meets the requirements of the relevant Statement of Principles
Veterans' Entitlements Act 1986, ss 6D(1)(b), 7(1)(a), 9(1)(a), (b), 13(1)(b), (d), 14(1), (3), (4), 20(1), 120(1), (3), (4), 120A(1), (3), 157(2)(a)(ii)
Statement of Principles no 37 of 1996 concerning plantar fasciitis
Statement of Principles no 3 of 2000 concerning plantar fasciitis
Statement of Principles no 165 of 1996 concerning lumbar spondylosis
Statement of Principles no 11 of 1994 concerning fracture
Statement of Principles no 219 of 1995 concerning fracture

Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Keeley (1999) 30 AAR 48
Gorton v Repatriation Commission [2001] FCA 286
Williams v Repatriation Commission [2001] FCA 601
Re Mason and Repatriation Commission [2001] AATA 461
Repatriation Commission v Thompson [2001] FCA 341

REASONS FOR DECISION

16 August 2001 M J Sassella, Senior Member

History of the application

On 12 January 1998 Mr Lawrence John Hodder ("the Applicant") lodged a formal claim form with the Department of Veterans' Affairs ("DVA") (T10) for Disability Pension in respect of lumbar spondylosis, osteoarthrosis of the right knee and left foot, plantar fasciitis of the left foot and wedge fracture the thoracic T11/12 vertebra.
On 28 May 1998 the Repatriation Commission ("the Respondent") refused the Applicant's claim to have these disabilities accepted as war-caused conditions (T2).
On 6 April 1999 the Applicant lodged an application for the review of this decision by the Veterans' Review Board ("the VRB") (T19).
On 13 May 1999 the Respondent wrote to the Applicant informing him that it had decided not conduct a review of his application pursuant to s 31 of the Veterans' Entitlements Act 1986 ("the Act") (T20).
On 8 October 1999 the VRB adjourned its hearing of the application so that outstanding service medical documents could be made available (T21).
On 3 November 1999 L J Young, Senior Member of the VRB, wrote to the Deputy Commissioner requesting specific information in regard to the Applicant's claimed conditions so that a more informed decision could be made (T22).
The decision under review
On 16 June 2000 the VRB affirmed the Respondent's decision (T24). Amongst other things, the VRB examined the veteran's contention that osteoarthrosis of the right knee and right and left foot were…

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.

Continue reading Hodder and Repatriation Commission

Details

AGLC: Hodder and Repatriation Commission [2001] AATA 725
Case: [2001] AATA 725
Decision Date: 16 August 2001

CaseChat Overview and Summary

The applicant, Mr Hodder, sought a review of a decision by the Repatriation Commission denying his claim for a disability pension on the basis that his conditions, including plantar fasciitis, lumbar spondylosis, and a fracture of the T11/12 vertebrae, were not caused by his operational service. The matter was heard by the Administrative Appeals Tribunal (AAT). The central legal issue was whether the applicant could establish a reasonable hypothesis linking his claimed conditions to his war service, satisfying the criteria set out in relevant Statements of Principles. The Tribunal had to determine if the applicant could prove, on the balance of probabilities, that the conditions arose out of or were aggravated by his service.

The Tribunal examined the evidence provided by the applicant and medical opinions to assess whether the conditions could be linked to specific incidents during his service. The Tribunal found that the applicant could not establish a reasonable hypothesis linking plantar fasciitis to any specific incident in his service, as there were no medical documents supporting such a connection. Furthermore, the Tribunal was not satisfied that the lumbar spondylosis and the fracture of the T11/12 vertebrae were caused by the incidents described by the applicant. There was insufficient evidence to conclude that the conditions developed within 24 hours of the alleged incidents, a requirement under the Statements of Principles. The Tribunal also noted conflicting medical opinions regarding the existence and cause of the plantar fasciitis.

The Tribunal concluded that the applicant failed to meet the requirements of the relevant Statements of Principles concerning his claimed conditions. The evidence did not support the applicant's hypothesis that his conditions were caused or aggravated by his war service. Consequently, the Tribunal affirmed the original decision of the Repatriation Commission.

The Tribunal ordered that the applicant's application for a review of the decision be dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Applicant had claimed on an unspecified date that the Department of Defence was liable for his prostate cancer condition. Liability was denied in a departmental decision of 27 April 1999 (T23, folio 90). The Applicant's medical and other records relating to this, as well as service documents and other material, appear in T23, folios 88-277.Documentary medical and other evidence During service on 18 September 1967 the Applicant was admitted to hospital for a week with what was diagnosed as left sciatica (folio 127). On 31 May 1994 Dr Anderson, in a brief report, stated that the Applicant had always complained of back pain during the three years he had been known to him (T10, folio 44). Referring to the thoracic spine, he also noted a "collapse of T11 and T12…" On 18 December 1997 Dr Fuller reported on the Applicant (T9). He noted the Applicant's history of jumping from the back of a truck and developing back pain. Dr Fuller stated that x-rays revealed "an old wedge fracture at T12." Dr Fuller concluded:"Certainly the T12 wedge fracture would be consistent with the injury he does describe whilst serving in the Army in 1960. Certainly the activities involved with this over the following years may very well continue to aggravate his problems. As a result of this he is now left with widespread degenerative changes throughout the lumbo-sacral spine. I believe that this is in keeping with the incidents he has described." On 8 January 1998 Fiona Glen, chiropractor, reported on the Applicant's back condition (T8). She noted that the Applicant had to jump from the back of a truck whilst wearing a heavy pack during his service in 1960 and that after this incident he suffered both back and leg pain. Ms Glen stated:"It is possible that the compression fracture of the T12 occurred as a result of jumping from the truck while wearing a heavy pack as described by Mr Hodder." In the application lodged with the DVA on 12 January 1998 (T10) the Applicant supplied some additional documentation in support of his claim. He stated that he could weed or mow lawns for only ten minutes at a time, and that he could clean (low) windows for five minutes at a time. He was not able to clip hedges, concrete, make beds or vacuum the carpet. He could wash dishes for ten minutes and dust for only 15 minutes at a time. He stated that any activity involving kneeling, stretching, reaching, lifting, rotation, pulling, pushing, sitting or standing he could not perform on either a part-time for full-time basis. On 20 January 1998 Dr Bills completed a medical report – trauma plantar fasciitis - in respect of the Applicant (T13, folio 55). The specific trauma was described only as "drill etc" and further that it was "most likely service related." Also on this date, Dr Bills stated that the condition itself was diagnosed in 1997 and the causes of the condition were "prior episodes since 1959." A further document, undated ((T14, folio 66), states that the Applicant suffers foot pain and that he has minor loss of range of movement. This document was a combined assessment in respect of plantar fasciitis left foot and osteoarthrosis both feet, the latter no longer a claimed condition. This document's usefulness to the Tribunal is minimal in that it lacks any valuable information about the condition or its cause.

Decision

Reasons for decision

On 3 November 1999 L J Young, Senior Member of the VRB, wrote to the Deputy Commissioner requesting specific information in regard to the Applicant's claimed conditions so that a more informed decision could be made (T22).The decision under review On 16 June 2000 the VRB affirmed the Respondent's decision (T24). Amongst other things, the VRB examined the veteran's contention that osteoarthrosis of the right knee and right and left foot were war-caused and found in the negative. Since the VRB decision was handed down the Applicant has withdrawn its claim in respect of these disabilities. The Tribunal will therefore not examine the evidence concerning these conditions. In relation to plantar fasciitis the VRB found that no reasonable hypothesis could be established that linked this condition to any specific incident in the Applicant's service. Further there are no medical documents that relate the condition to any incident. It was the Applicant's contention that the condition was caused by repeatedly jumping from trucks. The VRB however found that none of the minimum requirements of the relevant Statement of Principles ("SoP") were met. It found no evidence of a clinical worsening of the condition nor of a fracture or trauma immediately before the clinical onset of the condition. The VRB was satisfied beyond reasonable doubt that the condition was not war-caused. In relation to the wedge fracture of the T11/12 vertebrae, the Applicant relied on the report of Dr Fuller (T9), who stated that the condition was consistent with the injury that took place when the Applicant jumped from an army truck in 1960. The Applicant further stated that the back injury was aggravated by a kick to the back during an army rugby match some weeks later. The VRB found no evidence that the fracture sustained by the Applicant took place in 1960, either after jumping from the truck or during the rugby match. In order to fit the SoP template there must be evidence of trauma and evidence of clinical onset of the fracture. Dr Fuller's report contained no evidence of clinical onset, only that there was a fracture. Therefore no reasonable hypothesis could be raised linking the fracture to war service. Similarly the Applicant relied on his evidence in relation to jumping from vehicles, and on the rugby match incident, to support his contention that his lumbar spondylosis was war-caused. However, once again no discrete injury could be established as having taken place, and therefore there was no evidence of the development of pain and symptoms within 24 hours of that discrete injury. The Applicant stated that the pain subsided after the first two days and he continued with his duties. In relation to the rugby match, there is also no evidence that the symptoms described by the Applicant were persistent and lasted for seven days. The Applicant was relieved of his duties at that time for only two days. Again, the VRB found that no reasonable hypothesis could be raised linking this condition to war service. None of the minimum requirements of the SoP in relation to lumbar spondylosis were met.

Ratio Decidendi

Legal Principle Established

The trauma was alleged to have occurred in 1959 (T11) or 1960 (T8). The hypothesis appears to suggest that the foot pain commenced at the time of, or soon after, the alleged trauma. The answer is yes, that the hypothesis is that the trauma preceded the clinical onset of plantar fascitiis by less than a year.Question 8 - If the answer to question 7 is yes, was the trauma related to the Applicant's operational service? The hypothesis suggests that the trauma involved the jumping from a truck in the course of Army manoeuvres. The answer is yes, according to the Applicant's hypothesis.Question 9 - If the answer to question 3 is yes, is the Tribunal satisfied beyond a reasonable doubt that the disability was not war-caused? It is at this point that the Tribunal can find facts which, if contrary to the Applicant's interests, must support a conclusion beyond reasonable doubt that the disability was not war-caused (s 120(3) of the Act). The Applicant's account is vulnerable on two grounds. These are that Professor Ehrlich does not accept that the Applicant has plantar fasciitis and the date of clinical onset of any plantar fascitiis is unclear and may be much later than 1960. There is also some confusion in the evidence as to whether any plantar fasciitis was precipitated by trauma or by extended periods of drilling. Professor Ehrlich in Exhibit R4 wrote that the Applicant reported pain under both heels, "the site of tenderness being not quite where one would expect it to be for plantar fasciitis". He also said that the heel pain began "some time in the 1970's he thinks". In Exhibit R5 he says that if the Applicant has plantar fasciitis there is certainly no connection between it and service. However, he then says that, while patients who have it complain of pain under the heel when they stand for long periods, it does not imply that standing is a cause of the condition. It is merely a symptom of it. Dr Bills, general practitioner, in T13, folio 55, diagnosed "trauma plantar fasciitis". The trauma was "drill etc". He dated the diagnosis as 1997 and said the causes of the condition were "prior episodes since 1959". Professor Sambrook considered that the Applicant suffers from plantar fasciitis. In Exhibit A3 he found on examination a tenderness to palpation at the base of both heels but not at the plantar fascial insertion. Professor Sambrook had the history of the Applicant jumping from trucks with full ammunition, weapons and pack. He understood this occurred three or four hours a day for up to 11 days. He considered that the Applicant had suffered a trauma to the plantar aspect of the foot within the year immediately before the clinical onset of plantar fasciitis (factor 5(b) in SoP 3/2000) and that he had most probably run on average at least 10 kilometres a week in the six months immediately preceding the clinical onset of plantar fasciitis. In Exhibit A4 Professor Sambrook confirmed that Me Hodder has plantar fasciitis on the balance of probabilities. He was responding to Professor Ehrlich's doubts. The Applicant had pain in both heels where the fascia extends and he had a positive scan. Professor Sambrook did not agree with Professor Ehrlich that the Applicant's foot pain was not in a typical location. The SoP requires only that pain be in the subcalcaneal aspect of the foot. In his opinion this was consistent with the Applicant'' diagnosis. As regards the time of clinical onset, the Applicant said in Exhibit A2 on 17 January 2001 that he had had pain in his heel about nine months into his service in Malaya. This may satisfy factor 5(b) of the SoP. He had told Professor Sambrook in his initial interview that the onset was between 1965 and 1968 when he was a drill instructor at Duntroon. Professor Sambrook considered that the Applicant could satisfy the SoP if the date of onset was 1959 but not if it was 1965. Professor Sambrook was addressing SoP no 37/1996 in Exhibit A4. He noted that SoP no 37/1996 contained a definition of "trauma to the plantar aspect of the foot". He wrote that the SoP is "quite specific in the elements of trauma to be satisfied and … Mr Hodder would not satisfy these given the history and lack of documentation of those specific elements.