Hodder and Repatriation Commission
[2001] AATA 725
•16 August 2001
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 reviewOn 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.
The Applicant lodged an application for review of the VRB decision by the Administrative Appeals Tribunal ("the Tribunal") on 1 September 2000 (T1).
Relevant legislationThe relevant legislation in this matter is the Veterans' Entitlements Act 1986 ("the Act"), in particular 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):
"6D Operational service - other post World War 2 service
(1) This section applies to a member of the Defence Force who, or a member of a unit of the Defence Force that:
…
(b) was, at any time during the period from and including 1 August 1960 and including 27 May 1963, in the area comprising the territory of Singapore and the country then known as the Federation of Malaya;
but so applies only if the member, or the unit of the member, is included in a written instrument issued by the Defence Force for use by the Commission in determining a person's eligibility for entitlements under this Act.
…""7 Eligible war service
(1) Subject to subsection (2), for the purposes of this Act:
(a) a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; and
(b) a person who has rendered continuous full-time service (not being operational service) as a member of the Defence Force during World War 1 shall be taken to have been rendering eligible war service while the person was so rendering continuous full-time service; and
…""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:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(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;
…""13 Eligibility for pension
(1) Where:
…
(b) a veteran has become incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
…
(d) in the case of the incapacity of the veteran—pension by way of compensation to the veteran;
in accordance with this Act.
…""14 Claim for pension
(1) Subject to subsection (2), a veteran, or a dependant of a deceased veteran, may make a claim for a pension in accordance with subsection (3).
…(3) A claim for a pension:
(a) shall be in writing and in accordance with a form approved by the Commission;
(b) shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and
(c) shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b).(4) Subsection (3) shall not be taken to impose any onus of proof on a claimant or to prevent a claimant from submitting evidence in support of the claim subsequently to the making, but before the determination, of the claim.
…""20 Date of operation of grant of claim for pension
(1) Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, approve payment of the pension from and including a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14 (3) (a) was received at an office of the Department in Australia.
…""120 Standard of proof
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
…(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.(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.
…""120A Reasonableness of hypothesis to be assessed 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 operational service rendered by a veteran;
(b) a claim under Part IV that relates to:(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
…(3) For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B (2) or (11); or
(b) a determination of the Commission under subsection 180A (2);
that upholds the hypothesis.
…"
"157 Dates that may be specified…
(2) Where the Board, upon its review of a decision of the Commission, sets aside that decision and substitutes another decision for it, or varies that decision:
(a) if the effect of the substituted decision, or the varied decision, as the case may be, is to grant a pension or attendant allowance to a person, the Board may fix, as the date from which the Board's decision is to operate:
…(ii) in any other case—a date not more than 6 months before the date on which the person's application for review of the Commission's decision was received at an office of the Department in Australia;
…"
Also relevant are the following Statements of Principles ("SoPs"):
SoP no 37 of 1996 concerning plantar fasciitis
"…
Kind of injury, disease or death
2. (a) This Statement of Principles is about plantar fasciitis and death from plantar fasciitis.
(b) For the purposes of this Statement of Principles, "plantar fasciitis" means a painful condition of the subcalcaneal aspect of the foot resulting from inflammation or contracture of the deep fascia of the sole (plantar fascia) with or without calcaneal spur, attracting ICD code 726.73 or 728.71.
…
Factors that must be related to service
4. Subject to clause 6, the factors set out in at least one of the paragraphs in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting plantar fasciitis or death from plantar fasciitis with the circumstances of a person's relevant service are:
…
(b) suffering trauma to the plantar aspect of the affected foot within the year immediately before the clinical onset of plantar fasciitis;
or
…
Other definitions
7. For the purposes of this Statement of Principles:
"ICD code" means a number assigned to a particular kind of injury or disease in the Australian Version of The International Classification of Diseases, 9th revision, Clinical Modification (ICD-9-CM), effective date of 1 July 1995, copyrighted by the National Coding Centre, Faculty of Health Sciences, University of Sydney, NSW, and having ISBN 0 642 22235 5;
…
"trauma to the plantar aspect of the foot" means an injury to the sole of the foot caused by an extraneous physical or mechanical force that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, swelling, tenderness, and altered mobility in that foot 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 (eg. splinting, anti-inflammatory therapy, surgery), and there is evidence relating to the extent of intervention and treatment, such evidence may be considered."
SoP no 3 of 2000 concerning plantar fasciitis
"…
Kind of injury, disease or death
2. (a) This Statement of Principles is about plantar fasciitis and death from plantar fasciitis.
(b) For the purposes of this Statement of Principles, "plantar fasciitis" means a painful condition of the subcalcaneal aspect of the foot resulting from inflammation or contracture of the deep fascia of the sole (plantar fascia), attracting ICD-10-AM code
M72.2.
….
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting plantar fasciitis or death from plantar fasciitis with the circumstances of a person's relevant service are:
(a) suffering a fracture of the calcaneus of the affected foot within the year immediately before the clinical onset of plantar fasciitis; or
(b) suffering trauma to the plantar aspect of the affected foot within the year immediately before the clinical onset of plantar fasciitis;
or
…
"relevant service" means:
(a) operational service; or
(b) peacekeeping service; or
(c) hazardous service;
…
Application
9. This Instrument applies to all matters to which section 120A of the Act applies."
SoP no 165 of 1996 concerning lumbar spondylosis
"…
Kind of injury, disease or death
2. (a) This Statement of Principles is about lumbar spondylosis and death from lumbar spondylosis.
(b) For the purposes of this Statement of Principles, "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, attracting ICD code 721.3, 721.42 or 722.52.
…
Factors that must be related to service
4. Subject to clause 6, the factors set out in at least one of the paragraphs in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting lumbar spondylosis or death from lumbar spondylosis with the circumstances of a person's relevant service are:
…
(g) suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis; or
…
Other definitions
7. For the purposes of this Statement of Principles:
…
"ICD code" means a number assigned to a particular kind of injury or disease in the Australian Version of The International Classification of Diseases, 9th revision, Clinical Modification (ICD-9-CM), effective date of 1 July 1996, copyrighted by the National Coding Centre, Faculty of Health Sciences, University of Sydney, NSW, and having ISBN 0 642 24447 2;
…
"relevant service" means:
(a) operational service; or
(b) peacekeeping service; or
(c) hazardous service;
"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;
…
Application
8. This Instrument applies to all matters to which section 120A of the Act applies."
SoP no 11 of 1994 concerning fracture
"1. Being of the view that there is sound medical-scientific evidence that indicates that fracture and death from fracture can be related to operational service rendered by veterans, peacekeeping service rendered by members of Peacekeeping forces and hazardous service rendered by members of the Forces, the Repatriation Medical Authority determines, under subsection 196B(2) of the Veterans' Entitlements Act 1986, that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting fracture or death from fracture with the circumstances of that service, are:
(a) trauma at the site and at the time of clinical onset of the fracture; or
…
2. Subject to clause 3 (below) at least one of the factors set out in paragraphs 1(a) to 1(p) must be related to any service rendered by a person.
…"
SoP no 219 of 1995 concerning fracture.
"The Repatriation Medical Authority amends, under subsection 196B(2) of the Veterans' Entitlements Act 1986 (the Act), Instrument No.11 of 1994 (Statement of Principles concerning fracture) by:
1. inserting after the definition of "benign tumour of the bone" in paragraph 4, the following definition:
"'fracture' means an acquired break or rupture in a bone, attracting ICD code 733.1 or ICD codes in the range 800 - 829;".
2. The amendments made by this instrument apply to all matters to which Instrument No.11 of 1994 and section 120A of the Act apply."
Hearing and appearances
The Tribunal convened a hearing in this matter in Sydney on 26 July 2001. Mr R Sherlock from the NSW Legal Aid Commission represented Mr Hodder. Ms G Pacey from DVA represented the Respondent.
The Tribunal had access to a range of documentary material taken into evidence as follows:
Exhibit TD1 – Section 37 Statement and associated documents, 9 October 2000.
Exhibit A1 – Applicant's statement of facts and contentions, 2 April 2001.
Exhibit A2 – Letter dated 17 January 2001 from the Applicant to the NSW Legal Aid Commission.
Exhibit A3 – Report by Professor P N Sambrook, rheumatologist, 22 December 2000.
Exhibit A4 – Supplementary report by Professor Sambrook, 28 March 2001.
Exhibit A5 – Letter dated 12 March 2001 from NSW Legal Aid Commission to Professor Sambrook.
Exhibit A6 – Report by Dr A Whittle, orthopaedic surgeon, 17 August 1998.
Exhibit R1 – Respondent's amended statement of facts and contentions, 8 February 2001.
Exhibit R2 – Report by Professor F Ehrlich, physician, psychiatrist and specialist in occupational medicine, 7 December 2000.
Exhibit R3 – Letter dated 6 December 2000 from DVA to Professor Ehrlich.
Exhibit R4 – Supplementary report by Professor Ehrlich, 7 December 2000.
Exhibit R5 – Review report by Professor Ehrlich, 22 January 2001.
Background
The Applicant was born on 26 April 1940. He served in the Australian Army from 17 June 1958 until 16 June 1970. His eligible service (also operational service) was rendered from 8 May 1959 to 17 May 1961 in Malaysia (T21).
The Applicant has the accepted conditions of malignant melanoma, sensori-neural deafness and carcinoma of the prostate.
The Applicant was a clerical worker for various companies between 1970, when he left the army, and November 1987 when he ceased employment (T10). He is in receipt of an invalidity pension from Comcare as a result of injuries sustained at work, excluding him from "any type of managerial or clerical work." The Applicant is married and lives with his wife (Exhibit A3).
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 evidenceDuring 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."
She further stated that Mr Hodder's injury as described by him was "a reasonable explanation of the symptoms and physical evaluation as presented."
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.
In a medical assessment (thoraco-lumbar spine condition), also dated 20 January 1998, Dr Bills stated that because of this condition the Applicant had lost about 25% of normal range of movement of the lumbar spine (T14, folio 62). The Applicant could only stand for 5-10 minutes and could walk for less than 100 meters before feeling pain. He climbs stairs slowly and manages public transport "with some difficulty." Dr Bills stated that the restrictions were due solely to lumbar spondylosis.
The Tribunal also notes that there are a number of reports and medical impairment assessments in respect of conditions that are not currently before it.
On 22 January 1998 the Applicant lodged a claimant report – heavy physical activity – in respect of osteoarthrosis (T11). While the Tribunal is not examining this particular condition, it notes that the Applicant, in the period 1959 to 1961, was involved in training the 1 Battalion, Royal Australian Regiment. The Applicant stated that "during this training I was required to jump off trucks with full pack, ammunition, and weapons from a height of approximately 7 feet. This was a daily occurrence for a period of 7-11 days at 3-4 hours per day." Further, during active patrolling in North Malaya, the Applicant carried 60-65 pounds of weight on his back for periods of 10-25 days.
In an undated report Dr Bills stated that "on the balance of probabilities I would suggest that the injuries during service … have caused the conditions found and noted above." These included "an old crush fracture at T12" (T10, folio 43). This report was also attached to the application of 12 January 1998.
On 19 March 1998 Dr Staunton Smith, rheumatologist, reported on the Applicant (T16). He noted the Applicant's service history and injuries suffered in Malaya. Dr Smith stated that x-rays "showed wedging of T12 which was old and this is now associated with degenerative changes in the thoracic spine."
An undated DVA file note stated that trauma to the lumbar spine "does not include activities such as carrying heavy packs unless a specific injury occurred during the performance of such activities…" (T17).
On 22 December 2000 Professor Sambrook, rheumatologist, reported on the Applicant (Exhibit A3). He also took a history from the Applicant concerning the truck incident. Professor Sambrook was of the opinion that, in relation to plantar fasciitis, factors 5(b) and 5(c) of the relevant SoP were relevant. He opined that, if trauma could be defined as jumping from a truck with a heavy pack multiple times per day, then either of these factors could be seen to be satisfied, assuming that the condition came on within six to twelve months of the sustained trauma. Professor Sambrook noted that, in regard to the fracture at T11/12, there was no trauma other than the truck episode, and it was reasonable to suggest that this was the relevant event that accounted for the lesion. In regard to lumbar spondylosis he considered that factor 5(c), the T12 wedge, was the relevant factor of the SoP. Professor Sambrook stated his view that the clinical onset of the condition was when Mr Hodder developed acute pain, immediately after the fracture, and as such the claim for this condition was justified.
On 17 January 2001 the Applicant wrote to his representative detailing his service in Malaya in 1959 and 1960 (Exhibit A2). He stated that he was engaged in jungle patrols during this period and that they would last as long as 25 days with five days rest after each. The Applicant stated that the pack weight was heavy and that he began having trouble with his feet and knees about nine months into his tour of duty. He also wrote that the footwear issued for jungle patrolling gave no support to the foot and that as a result he suffered trauma to his feet every day. Further, during football training he ran as much as 50 kilometres in a week, mainly on bitumen surfaces. It was the Applicant's belief that this further intensified the trauma.
In a supplementary report written on 28 March 2001 Professor Sambrook again addressed the Applicant's conditions (Exhibit A4). He was responding to specific questions from the Applicant's representatives (Exhibit A5). He stated firstly that the Applicant has plantar fasciitis on the balance of probabilities. Relevant to the SoP, the Applicant had pain in both heels where the fascia extends as well as a positive bone scan which supports the diagnosis. Professor Sambrook disagreed with Professor Ehrlich in this regard, the latter noting that the pain was not in the typical site for this particular condition. However, Professor Sambrook noted that the SoP requires pain only in the subcalcaneal aspect of the foot and was of the opinion that this was consistent with the Applicant's diagnosis. In relation to the clinical diagnosis of plantar fasciitis, Professor Sambrook noted that the Applicant had pain in his heel during the time of his Malayan service, and as such may satisfy factor 5(b) of the SoP. However other interviews suggest that the onset may have been between 1965 and 1968 when the Applicant was a drill instructor, making it difficult for him to satisfy the SoP. Finally in regard to plantar fasciitis, Professor Sambrook was of the opinion that the Applicant would not satisfy factor 5(b) of SoP no 37/1996 given the specific nature of the elements of trauma to be satisfied.
This report also addressed lumbar spondylosis. In particular he stated that, "because a T12 fracture is at the junction of the thoracic and lumbar spine, it is possible for such a fracture to lead to degenerative changes in the lumbar spine region immediately below the fracture." Professor Sambrook further stated:
"If one accepts Mr Hodder's history in regard to the injury in 1959, then it is certainly consistent with a vertebral fracture and I don't believe the poor quality of the notes in regard to the x-ray on the 18th April 1968 (which don't even state which area was x-rayed) should be necessarily held as disproving that the fracture occurred prior to that time."
On 7 December 2000 Professor Ehrlich reported on the Applicant (Exhibit R2). He stated that the outstanding abnormality, the fracture of a vertebral body, could have occurred at any time in the Applicant's life and that it was not possible to ascertain when the fracture occurred. He stated that if the fracture did indeed occur at the time of the fall from the truck, then he was "enormously surprised at the fact that the symptoms were so minimal at the time." The Applicant did not satisfy any of the factors in any of the SoPs and it was Professor Ehrlich's opinion that in view of the symptomatology at the time of fall the fracture did not occur whilst on operational service in 1959.
On 7 December Professor Ehrlich provided a supplementary report (Exhibit R4). He reiterated his belief that the Applicant's conditions did not satisfy any of the SoPs and that his GARP rating was nil. In fact it was his opinion that the Applicant does not suffer from plantar fasciitis at all, his pain being in an unusual area for this condition. In relation to the vertebral fracture, Professor Ehrlich stated that the fracture could have occurred "from an incident or injury which [the Applicant] was unable to recall." This is at variance with his first 7 December 2000 report where he expressed his "enormous wonder" that the Applicant could sustain such a fracture and only have such minor symptoms.
Findings on material questions of fact with reference to the evidence and other material in support of those findingsRelevant uncontroversial findings are:
The Applicant rendered operational service in the Army from 8 May 1959 until 17 May 1961 (Exhibit A1, Exhibit R1, T18, T21).
The Applicant lodged a valid claim for Disability Pension in respect of disabilities including plantar fasciitis, lumbar spondylosis and wedge fracture on 12 January 1998 (T10).
The date of effect of any decision of the Tribunal in the Applicant's favour would be 1 October 1998, six months prior to the date of the Applicant's application to the VRB (s 157(2)(a)(ii) of the Act).
The standard of proof in respect of the alleged war-caused nature of the disabilities attributable to the Applicant's operational service is the reasonable hypothesis standard set out in s 120(1) and (3) of the Act. The standard in relation to all other matters is the reasonable satisfaction standard in s 120(4) of the Act.
The SoP applicable under s 120A(1) and (3) of the Act to the Applicant's lumbar spondylosis is SoP no 165/1996 (Exhibit A1, Respondent's oral submissions).
The SoP applicable under s 120A(1) and (3) of the Act to the Applicant's wedge fracture of the T11/12 vertebrae is SoP no 11/1994 as amended by no 219/1995 (Exhibit A1, Respondent's oral submissions)..
The parties disagree as to the appropriate SoP concerning plantar fasciitis. This will be the subject of later findings.
On the basis of the Federal Court's decision in Repatriation Commission v Deledio (1998) 49 ALD 193, at 206, the issues for the Tribunal, expressed as questions, are as follows:
Plantar fasciitisIn relation to plantar fasciitis, is there a hypothesis linking the condition to the Applicant's operational service?
If the answer to question one is yes, is there a SoP concerning plantar fasciitis?
If the answer to question two is yes, does the Applicant's hypothesis comply with the template in the SoP?
Does the Applicant have the condition of plantar fasciitis according to the hypothesis?
If the answer to question 4 is yes, when on the Applicant's hypothesis was the clinical onset of plantar fasciitis?
If the answer to question 4 is yes, did the Applicant, based on the hypothesis, suffer a trauma to the plantar aspect of the affected foot?
If the answer to question 6 is yes, was the trauma on the basis of the hypothesis within one year before the clinical onset of plantar fasciitis?
If the answer to question 7 is yes, was the trauma related to the Applicant's operational service?
If the answer to question 3 is yes, is the Tribunal satisfied beyond a reasonable doubt that the disability was not war-caused?
Lumbar spondylosis
10) In relation to lumbar spondylosis, is there a hypothesis linking the condition to the Applicant's operational service?
11) If the answer to question 10 is yes, is there a SoP concerning lumbar spondylosis?
12) If the answer to question 10 is yes, does the Applicant's hypothesis comply with the template in the SoP?
13) Does the Applicant suffer from lumbar spondylosis according to the hypothesis?
14) If the answer to question 13 is yes, did the Applicant, based on the hypothesis, suffer a trauma to the lumbar spine before the clinical onset of lumbar spondylosis?
15) If the answer to question 14 is yes, was the trauma on the basis of the hypothesis related to the Applicant's operational service?
16) If the answer to question 12 is yes, is the Tribunal satisfied beyond a reasonable doubt that the disability was not war-caused?
Fracture of T11/12 vertebrae
17) In relation to the fracture, is there a hypothesis linking the condition to the Applicant's operational service?
18) If the answer to question 17 is yes, is there a SoP concerning fracture?
19) If the answer to question 18 is yes, does the Applicant's hypothesis comply with the template in the SoP?
20) Does the Applicant suffer from a fracture according to the hypothesis?
21) If the answer to question 20 is yes, did the Applicant, based on the hypothesis, suffer a trauma at the site and at the time of the onset of the fracture?
22) If the answer to question 21 is yes, was the trauma related to the Applicant's operational service?
23) If the answer to question 19 is yes, is the Tribunal satisfied beyond a reasonable doubt that the disability was not war-caused?
Plantar fasciitis
Question 1 - In relation to plantar fasciitis, is there a hypothesis linking the condition to the Applicant's operational service?
The hypothesis advanced in oral evidence was that the Applicant while in Malaya in 1959 was one of a number of Australian troops on the back of a high-sided, tailgated truck. He was well away from the tailgate, closer to the driver's cabin. He had to leave the vehicle. Those located where he was jumped over the side of the truck. Those near the tailgate left using the tailgate. He jumped from a height of seven feet. He hit a rock or branch when he touched the ground. He tumbled and fell. He said at the time, about 11.00 am, that he thought he had hurt his back. At the same time he felt a burning sensation in his feet with a slight pain. The feet were not as bad as the back. The burning stopped within a day. He had minor foot pain for a week. The problems re-emerged when he resumed operations work after three or four months.
In essence the hypothesis is that as a result of jumping seven feet from the back of a truck in Malaya the Applicant injured his feet. The Tribunal finds that there is a hypothesis.
Question 2 - If the answer to question one is yes, is there a SoP concerning plantar fasciitis?The Tribunal notes that there are two SoPs on plantar fasciitis. The Applicant argued for the application of SoP no 3 of 2000. The Respondent argued for the application of SoP no 37/1996. The major difference between these SoPs is that the 1996 SoP contains a definition of "trauma to the plantar aspect of the foot" whereas the 2000 SoP does not. The later SoP arguably provides fewer obstacles for a veteran. The Respondent argued that the SoP in force on the day of the making of the primary decision, 28 May 1998, was applicable on the basis of the decision of the full Federal Court in Repatriation Commission v Keeley (1999) 30 AAR 48.
The Applicant argued that two recent decisions of the Federal Court involving a single judge permit the Tribunal to have regard to the later SoP. These decisions are Gorton v Repatriation Commission [2001] FCA 286 (Stone J) and Williams v Repatriation Commission [2001] FCA 601 (Wilcox J).
The Tribunal in Re Mason and Repatriation Commission [2001] AATA 461 considered this issue and reviewed the Federal Court authorities on this question in paragraphs 28-35 of the reasons for decision. At that time the decision in Gorton (supra) was to hand, however Williams (supra) had not been decided. The Tribunal decided that the better view at that time was that the SoP in force at the time of the primary decision should be applied by the Tribunal at the date of its decision, even if there was a later SoP more favourable to the veteran. The present writer was a member of the Tribunal in Mason (supra). However, in view of Wilcox J's exposition in the Williams case (supra), the Tribunal considers that the applicable SoP in the instant case is SoP no 3/2000. Wilcox J said in paragraphs 63-71:
"63 It will be apparent there is a conflict between the view taken by Stone J in Gorton and some of the comments made in Thompson.
"64 With respect to Drummond and Emmett JJ, I have difficulty in seeing that s 31 of the Veterans' Entitlements Act resolves the problem posed by a more favourable later Statement of Principles. That section merely authorises the Commission, in its discretion, to review a decision and, possibly, to vary it in such a way as to provide an outcome more favourable to the veteran. The section does not affect legal rights and a decision by the Commission not to exercise its powers is not subject to review by the Administrative Appeals Tribunal: see s 31(10).
"65 It seems to me the conflict to which I have referred ought to be resolved by reference to the principles enunciated in Re Costello, mentioned by Emmett J. That was a decision of a three member panel of the Administrative Appeals Tribunal. The case concerned a decision of the Secretary of Transport refusing to grant the applicant a commercial pilot's licence. One issue was whether it was appropriate to apply the Air Navigation Order that was in force when the decision was made or its successor, which was in force at the time of the Tribunal's hearing. The Tribunal discussed this issue at some length, with references to several judicial decisions. At 943-944 the Tribunal summarised its understanding of the position:
'It is clear, firstly, that in the exercise of our review function under s 43 of the Administrative Appeals Tribunal Act 1975 we stand in the shoes of the decision-maker and that the exercise of our review jurisdiction is the occasion of a fresh exercise of administrative power. In the ordinary course of events, therefore, the Tribunal is entitled to have regard to the facts or matters as they stand at the date of its decision. ... Where the relevant law at all material times is the same, no problem arises as to the law to be applied. But where, as in the present matter, the law has been changed between the date of the administrator's decision and the decision of this Tribunal, it seems to us that the question as to the law to be applied by the Tribunal must be resolved by having regard:
(i) to the nature of the decision under review; and
(ii) to the provisions of the legislation by which the change in the law is effected ...
The nature of the decision under review may require the Tribunal to consider the facts and circumstances before it in the light of the law at some anterior date in order to form an opinion as to the accrued rights or liabilities of the applicant. ... A subsequent change in the law will not affect the matter unless it is expressed to apply retrospectively...
But where the nature of the decision under review does not involve a consideration of accrued rights or liabilities but rather involves an investigation whether the applicant has a present entitlement to the grant of a right or privilege, we have concluded that, unless the amending law otherwise provides we should apply the law as amended as at the date of our decision.'
(References omitted)
"66 It will be noted that, in Costello, the Tribunal allowed for the possibility of an accrued right; but otherwise thought the relevant law was that pertaining at the date of the hearing. Such an approach is consistent with both Keeley and Gorton. It is also consistent with the general principle applied in Drake, cited by both Emmett J in Thompson and the Tribunal in Costello.
"67 In context, the Tribunal's statement in Costello is not inconsistent with the comment of Drummond J in Thompson about any change affecting accrued rights or accrued liabilities; Costello was concerned, not with property rights, but with the public interest in maintaining air safety.
"68 However, in the context of a pension claim, there may be an inconsistency between the Tribunal's approach in Costello and the comments of Drummond J in Thompson. To concede a claimant's entitlement to rely upon a later, more favourable, Statement of Principles is to increase the exposure of the Repatriation Commission to successful claims.
"69 It seems to me that, in this situation, the considerations noted by Stone J achieve importance. As always, the task is to discern the apparent legislative intention. As Stone J pointed out, the Veterans' Entitlements Act is beneficial legislation. It is intended to err on the side of generosity, as is evidenced by the reverse criminal standard of proof embodied in s 120(1) of the Act. Moreover, again as Stone J noted, the Act provides for the continual updating of Statements of Principle. The idea is to ensure that current Statements will embody currently-accepted medical and scientific learning. In relation to legislation such as the Veterans' Entitlements Act, it can hardly be supposed Parliament would have intended that a benefit be denied to an applicant who could bring his or her case within a current Statement of Principles, simply because another, now discarded, Statement of Principles was in force at the time of the Commission's decision. I believe that to be so, notwithstanding that the effect of allowing reliance on the later instrument will be to increase the Commission's pension obligations.
"70 I respectfully agree with the approach taken by Stone J. Despite dicta in Thompson that may be seen as pointing in the opposite direction, I should follow Gorton. The consequence is that I hold it is open to the present applicant to rely upon SoP 38 of 1999, if she wishes, at the remitted hearing of the Tribunal.
"71 My conclusion does not represent failure to follow the Full Court's decision in Keeley. Consistently with that decision, I hold the applicant has a vested right to rely upon SoP 80 of 1998, if she wishes. However, consistently with Gorton, she also has the right to put a case based on SoP 38 of 1999. I agree that, to use the vernacular, this means the applicant "has it both ways". But there is nothing unusual about that. This is the position in any case where a person acquires a vested right prior to the commencement of amending legislation; the person can rely on the vested right or, in common with everyone else, elect to rely on the new legislation."
The Tribunal now considers that the better view is that enunciated by Wilcox and Stone JJ. Wilcox J in particular has addressed the contrary views put by his colleagues in the other cases, notably Drummond J in Repatriation Commission v Thompson [2001] FCA 341, and has provided a convincing argument for preferring the view that he and Stone J have endorsed.
In essence this means that the Tribunal should apply the SoP in force on the date of the Tribunal's decision unless the SoP in force on the date of the primary decision is more advantageous to the veteran and the veteran raises the issue of accrued rights. That is why the Tribunal has found that there is a SoP on plantar fascitiis and that it is SoP no 3/2000 that falls for consideration in this case.
Question 3 - If the answer to question two is yes, does the Applicant's hypothesis comply with the template in the SoP?
At this stage of the Tribunal's inquiry the Tribunal is to consider the hypothesis in support of the Applicant and to query, without finding facts, whether the hypothesis meets the requirements in SoP no 3/2000. Questions 4 – 8 below are based on the SoP requirements. The Tribunal finds that the hypothesis meets the requirements set out in the SoP.
Question 4 - Does the Applicant have the condition of plantar fasciitis according to the hypothesis?The Applicant asserts that he has the condition of plantar fascitiis so the answer is yes. There is a definition in clause 2(b) of the SoP. It is a painful condition of the subcutaneal aspect of the foot resulting from inflammation or contracture of the deep fascia of the sole. Professor Sambrook (Exhibit A3 and in oral evidence) noted that the Applicant's description of his symptoms was consistent with the condition. The Respondent relied on Professor Ehrlich's report (Exhibit R4) to suggest that the Applicant does not suffer from plantar fascitiis. This is, however, evidence requiring a finding of fact and evidence better considered in response to question 9. The Applicant relies also on Dr Whittle's opinion in Exhibit A6. Dr Whittle, an orthopaedic surgeon wrote on 17 August 1998:
"Examination on the 17.08.98, demonstrates that Mr Hodder localises his pain to the lateral aspect of the heel rather than the medial aspect, as one would normally expect with plantar fasciitis. …
"A bone scan performed in October 1997, demonstrates increased uptake in the left calcaneum, suggestive of a diagnosis of plantar fasciitis."
Question 5 - If the answer to question 4 is yes, when on the Applicant's hypothesis was the clinical onset of plantar fasciitis?
The Applicant says in Exhibit A2 that he began having trouble with his feet and knees about nine months into his tour of duty in Malaya, that is from about February 1960. The Applicant's hypothesis is that this was when the condition had its clinical onset.
Question 6 - If the answer to question 4 is yes, did the Applicant, based on the hypothesis, suffer a trauma to the plantar aspect of the affected foot?The Applicant considered that the trauma resulting from his jumping from the side of the truck caused his foot trouble. There is no definition of the relevant trauma in the SoP.
Question 7 - If the answer to question 6 is yes, was the trauma on the basis of the hypothesis within one year before the clinical onset of plantar fasciitis?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.
Professor Sambrook in oral evidence considered that the Applicant's jump from the truck was probably the precipitating event for plantar fasciitis and that his later activity involving significant weight bearing would have been an aggravation. In cross-examination Professor Sambrook was asked whether a person could suffer from plantar fasciitis and not report symptoms until 37 years later, as it was suggested was the Applicant's situation. Professor Sambrook agreed that this would be odd. However, he noted that the Applicant's evidence (Exhibit A2) is that he did have intermediate symptoms.
The Tribunal has, of course, found that the applicable SoP is SoP no 3 of 2000.
The Respondent argued in submissions for the application of SoP no 37/1996 on the basis of the Federal Court decision in Cook v Repatriation Commission [2000] FCA 1756. The Respondent then argued that the Applicant had not experienced a trauma as required under that SoP. The Respondent referred to Professor Ehrlich's opinion in Exhibit R5 that there is no connection between the Applicant's plantar fasciitis now and his service of many years ago. The Respondent indicated Professor Ehrlich's history in which the Applicant said his heel pain began some time in the 1970s (Exhibit R4).
The Tribunal understands the Respondent's reservations as to whether the Applicant's plantar fasciitis is a war-caused disability. The Applicant's evidence of the experiencing of symptoms earlier than relatively recently has come to light only in 2001. The Respondent's position would be even firmer if the relevant SoP were SoP no 37/1996. However, the Tribunal is not satisfied beyond reasonable doubt that there is no sufficient ground for determining that the disease of plantar fasciitis was not a war-caused disease. The Tribunal noted Professor Ehrlich's evidence but found Professor Sambrook's evidence to the contrary quite convincing. Professor Sambrook was able to relate his and the Applicant's evidence to the requirements in the SoP and effectively dealt with Professor Ehrlich's concerns that the Applicant may not have plantar fasciitis. The Tribunal notes also the evidence of Dr Whittle in Exhibit A6. Dr Whittle substantially agrees with Professor Sambrook while directly adverting to the matters of concern to Professor Ehrlich. The Tribunal was also satisfied from his demeanour and the content of his sworn evidence that the Applicant was a witness of truth who had experienced foot symptoms in the months after he jumped from the truck, albeit symptoms of much less gravity than those affecting his back.
Lumbar spondylosis
Question 10 - In relation to lumbar spondylosis, is there a hypothesis linking the condition to the Applicant's operational service?The Applicant again relies on the incident in Malaya in 1959 when he jumped to the ground from the back of a truck. This occurred at about 11.00 am. As he told Professor Sambrook (Exhibit A3) , the Applicant felt a "kink" in his back followed by sharp pain when he landed. His back was still sore later in the day. He was given the job of riding shotgun in the passenger seat in the cabin. He returned to base at about 4.00 pm. His back was extremely sore all day. He reported the injury and spent the next two days at base in bed. He returned to active duty but his back was still sore, if improved. He rode shotgun in the truck cabin for what the Applicant thinks was six more days. The back had improved but remained sore. The Applicant told Professor Sambrook (Exhibit A3) that the severe pain lasted two or three weeks. He was given no additional treatment. The sergeant said none was available and, anyway, he did not think the Applicant's back was all that bad. Several weeks later, his back still sore, the Applicant had access to a regimental aid post and he was given tablets of a type he cannot describe. The Applicant was then returned to operations work for nine months. This involved jungle patrols running from 11 to 25 days with five days off between patrols. His back remained tender, the more so with his pack on. It was heavy, weighing 60 to 70 lbs. The Applicant's only treatment was tablets provided by a medical orderly. X-rays were taken.
The Applicant relies also on a football injury while having about six months left to serve in Malaya. He was sent to play in an Army rugby union team. He played fortnightly against other allied forces for the Army Cup. In one game he was kicked in the back. He felt an "excruciating pain" in his back. He could not continue playing football. He reported the incident. The pain lasted a week. An Army doctor examined the Applicant and said he had sciatica. His back was extremely painful over the next six months.
Question 11 - If the answer to question 10 is yes, is there a SoP concerning lumbar spondylosis?SoP no 165 of 1996 concerning lumbar spondylosis is the relevant SoP.
Question 12 - If the answer to question 10 is yes, does the Applicant's hypothesis comply with the template in the SoP?The factor in the SoP with which the Applicant's hypothesis is said to comply is factor 5(g), "suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis". The Applicant abandoned its argument (advanced in Exhibit A1) that factor 5(c) applied. This factor requires an inter-articular fracture of the lumbar spine before the clinical onset of lumbar spondylosis. In the present case the fracture was not of the lumbar spine. It was a T12 fracture. According to the SoP a trauma as related to factor 5(g) must involve:
an injury to the lumbar spine;
that injury being caused by the force of an extraneous physical or mechanical agent;
within 24 hours of the injury the development of acute signs and symptoms of pain, tenderness and altered mobility or range of movement of that part of the spine;
the acute symptoms and signs lasting for at least one week immediately after the injury.
The SoP also makes provision for where there has been medical intervention.
On the basis of the answers to questions 13 to 15 below, the Tribunal finds that the Applicant's hypothesis accords with the SoP. This finding relates only to the trauma from the jump from the truck. On the material available the hypothesis relating to the football injury would involve an injury to sacral spine rather than the lumbar spine (see discussion on question 14 below). This would take the hypothesis relating to the football injury outside the scope of the SoP. The Tribunal notes that factor 5(g) simply requires a trauma at any time before the clinical onset of lumbar spondylosis. The Applicant has submitted that this was what occurred.
Question 13 - Does the Applicant suffer from lumbar spondylosis according to the hypothesis?The Applicant claims to suffer from lumbar spondylosis. This can be accepted hypothetically even though the wedge fracture (and a crush fracture) affect the thoracic spine at T12 level. Professor Sambrook wrote on 28 March 2001 (Exhibit A4) that because a T12 fracture is at the junction of the thoracic and lumbar spine such a fracture can lead to degenerative changes in the lumbar spine region immediately below the fracture.
Question 14 - If the answer to question 13 is yes, did the Applicant, based on the hypothesis, suffer a trauma to the lumbar spine before the clinical onset of lumbar spondylosis?The Applicant's story supports two injuries to the lumbar spine, the first when he landed after jumping from the truck in Malaya, and the second when kicked in the back during the Army rugby game. The kick in the back would qualify as an extraneous physical force causing injury. The landing after jumping from the truck is more of a problem. What (if any) is the extraneous physical or mechanical agent? The Applicant said that he fell onto a branch or rock and that caused him to fall awkwardly. The rock or branch would be the mechanical agent according to the Applicant's hypothesis.
The Applicant has claimed an onset of pain within 24 hours after both injuries. Further, the Applicant's evidence suggests that his discomfort after the first injury was sufficiently patent for him to be permitted to ride shotgun. The pain following the football incident is said to have been immediate and excruciating. The Applicant could not continue his football.
The Applicant's symptoms after the fall led to him being permitted to ride shotgun for six more days. After the football incident the Applicant reported the problem, he was examined and the back pain continued thereafter at a certain level for the Applicant's remaining time in Malaya.
The medical intervention on each occasion does not measure up to the level and type described in the SoP. This would not seem fatal if the other factors are said to apply.
Problems may arise for the Applicant in that the episode involving the jump from the truck is not recorded on the Applicant's Army file. The football incident is recorded as having occurred by 21 November 1960 and as having involved two weeks of pain, but the service records suggest an injury to the lower sacrum (T23, folio 249), not to the lumbar spine as required by the SoP. In the experience of the Tribunal, it is not unusual for events such as the fall from the truck to go unrecorded in military records. Any implications to be drawn from that would be appropriately dealt with under question 16, below.
Question 15 - If the answer to question 14 is yes, was the trauma on the basis of the hypothesis related to the Applicant's operational service?The relevant trauma, the landing on the ground, occurred as part of an exercise occurring during the Applicant's operational service. The hypothesis therefore is that the trauma was related to the Applicant's operational service.
Question 16 - If the answer to question 12 is yes, is the Tribunal satisfied beyond a reasonable doubt that the disability was not war-caused?It has not been suggested that the Applicant does not suffer from lumbar spondylosis. Dr Bills (T14), Professor Ehrlich (Exhibit R4) and Professor Sambrook (Exhibits A3, A4) diagnosed lumbar spondylosis.
The SoP describes the condition as "degenerative changes affecting the lumbar vertebrae and/or intervertebral discs, causing local pain and stiffness and/or the symptoms and signs of lumbar cord, cauda equina or lumbosacral nreve root compression …". This is the definition addressed by Professor Sambrook and the definition he considered satisfied.
The Respondent relied on Professor Ehrlich's reports to argue that the Applicant had not experienced a trauma to the lumbar spine in the relevant sense. Professor Sambrook's history (Exhibit A3) was that the Applicant felt a kink in his back. The Respondent referred also to Dr Staunton-Smith's history (T16) where he wrote, "He was jumping off trucks with packs, and being young at the time, did not report any untoward occurrence. He did not go to hospital but he did suffer a twinge then but no x-rays were taken." Professor Ehrlich (Exhibit R2) recorded that the Applicant rode shotgun after the jumping accident "three or four days", not for six days as he told the Tribunal. Professor Ehrlich doubted that the T12 fracture could have occurred at the time of the jumping incident because the symptoms were so minimal at the time. He considered that that fracture could have occurred at some other time during Mr Hodder's life. Professor Ehrlich considered that the Applicant's lumbar spondylosis had its clinical onset in the last 10-15 years (Exhibit R4).
It does seem to the Tribunal that the Applicant has altered his history as regards the after-effects of the jump from the truck. However, these histories have required him to recall details from around 40 years previously. There is, unfortunately, no contemporaneous evidence of those events or of the Applicant's symptoms and rate of recovery. It is conceivable that the Applicant did not realise the importance that would be placed on the answers he gave Professor Ehrlich at the time he met with the Professor. It was only a matter of days after he saw Professor Ehrlich that he saw Professor Sambrook. The Applicant told Professor Sambrook that he was in the truck cabin for a further two or three days after the jump but that he had severe pain for two or three weeks after (Exhibit A3). The Tribunal considers that the time lapse between these medical appointments would have been inadequate for the Applicant to reconsider his story so as to enhance his position as a claimant for Disability Pension.
The Tribunal is conscious that this is an operational service case wherein the standard of proof is reasonable hypothesis. In the Tribunal's view the Applicant should be extended the benefit of any doubt. The Tribunal is not satisfied beyond reasonable doubt that there is no sufficient ground for finding that the Applicant suffered a trauma to the lumbar spine.
Similarly, the Tribunal has no ground for finding beyond reasonable doubt that the back injury was not associated with the Applicant's operational service.
The Tribunal therefore finds in relation to the Applicant's lumbar spondylosis that it has no reason to be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the injury and resulting disease were a combination of war-caused injury and disease.
Fracture of T11/12 vertebrae
Question 17 - In relation to the fracture, is there a hypothesis linking the condition to the Applicant's operational service?The hypothesis is that in jumping from the truck and falling the Applicant sustained, in Malaya, a crush fracture and/or a wedge fracture at T11/12. The consequent effect of this fracture on the lumbar spine has resulted in lumbar spondylosis.
Question 18 - If the answer to question 17 is yes, is there a SoP concerning fracture?The relevant SoPs are SoP no 11 of 1994 as amended by no 219 of 1995.
Question 19 - If the answer to question 18 is yes, does the Applicant's hypothesis comply with the template in the SoP?Factor 1(a) of the SoP requires that there must be trauma at the site and at the time of clinical onset of the fracture. This fracture has to be related to the Applicant's operational service. SoP no 219/1995 defines "fracture". It means an acquired break or rupture of the bone.
For reasons discussed in answers to Questions 20-22 below the tribunal finds that the Applicant's hypothesis conforms to the requirements in the SoP.
Question 20 - Does the Applicant suffer from a fracture according to the hypothesis?The Applicant has been diagnosed as having sustained a fracture of the spine at T11/12 (Dr Fuller, T12; Dr Bills, T10, folio 43; Professor Sambrook, Exhibits A3, A4; Professor Ehrlich, Exhibits R2, R4). Clearly, the Applicant is said to suffer from a fracture as defined in SoP no 219/1995.
Question 21 - If the answer to question 20 is yes, did the Applicant, based on the hypothesis, suffer a trauma at the site and at the time of the onset of the fracture?
The answer to this question is yes. The question requires considerations similar to those in Question 14, above. Here, however, the Tribunal finds it easier to answer yes because the definition of the required trauma in the SoP is considerably easier to meet than in the cause of a trauma to the lumbar spine.
Professors Sambrook (Exhibit A4) and Ehrlich (Exhibit R5) comment on an x-ray finding dated 18 April 1968 which stated that "no bone or disc lesion is present". This could mean that on the material before the Tribunal there has been no fracture and the SoP is not satisfied. However, Professor Sambrook wrote:
"Presumably this was an x-ray of the lumbar spine but the original films are not available. In other words this is an unsatisfactory record in terms of the clinical request and subsequent report, as it is very short on details. It is not uncommon for x-rays of the lumbar spine to not include the 12th thoracic vertebra in the field of view. I am not sure the brevity of the report should be held against Mr Hodder. It would have been much more helpful if the radiologist had indeed noted what levels he was referring to when he states 'no bone or disc lesion is present'. It is quite possible a fracture of the 12th vertebral body was present and not seen on these films, because the views were not high enough."
It is thus not decisively the case that no fracture could have been present in 1968, so the Applicant's hypothesis can stand in respect of this point.
Question 22 - If the answer to question 21 is yes, was the trauma related to the Applicant's operational service?Again, this question raises the same issue as did Question 15. The Applicant's hypothesis is that the trauma occurred on operational service.
Question 23 - If the answer to question 19 is yes, is the Tribunal satisfied beyond a reasonable doubt that the disability was not war-caused?The Tribunal has ruled out the football injury because it was to the sacral spine rather than the lumbar spine. That leaves the injury resulting from the jump from the truck. It seems quite possible that a crush fracture of T11/12 occurred and assisted to bring on the lumbar spondylosis.
The Tribunal finds that it is not satisfied beyond reasonable doubt that there is no sufficient ground for determining that the injury was a war-caused injury. The Tribunal does not find in Professor Ehrlich's reports a sufficient basis for it to conclude beyond reasonable doubt that the injury was not war-caused. The Tribunal has already explained its preference for Professor Sambrook's assessment of the situation in its findings in relation to lumbar spondylosis. It now finds in Professor Sambrook's discussion of the value of the x-ray dated 18 April 1968 cogent reasons not to regard that indirect evidence as sufficient to find that the injury was not war-caused.
ConclusionThe Tribunal has found in the Applicant's favour. The disabilities of plantar fasciitis, fracture and lumbar spondylosis are war-caused disabilities and attract Disability Pension. As noted earlier, the date of effect of this decision is 1 October 1998.
DecisionThe 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.
I certify that the 93 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Sassella and Dr P D Lynch, Member.
Signed: .....................................................................................
AssociateDate/s of Hearing 26 July 2001
Date of Decision 16 August 2001
Representative for the Applicant Mr R SherlockRepresentative for the Respondent Ms G Pacey
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