Holyoake and Repatriation Commission (Veterans' entitlements) - [2018] AATA 4300

Holyoake and Repatriation Commission (Veterans' entitlements) [2018] AATA 4300 (19 November 2018)
Division:VETERANS’ APPEALS DIVISION
File Number(s): 2015/5825
Re:Derek Holyoake
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:19 November 2018
Place:Brisbane

The decision under review is affirmed.
................................[Sgd]........................................
Deputy President Dr P McDermott RFD
CATCHWORDS
VETERANS’ AFFAIRS – claim for defence-caused conditions – claim for an increase in disability pension – standard of proof s 120(4) of the Veterans’ Entitlements Act 1986 – relevant Statements of Principles – conditions not connected with relevant service – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986
CASES
Repatriation Commission v Money (2009) 173 FCR 410
Kaluza v RC (2010) FCA 1244
Lees v Repatriation Commission (2002) 125 FCR 331
SECONDARY MATERIALS
Statement of Principles concerning Lumbar Spondylosis No. 63 of 2014
Statement of Principles concerning Osteoarthritis No. 14 of 2010
Statement of Principles concerning Osteoarthritis No. 62 of 2017
Statement of Principles concerning Adjustment Disorder No. 38 of 2008
Statement of Principles concerning Adjustment Disorder No. 24 of 2016
Statement of Principles concerning Trochanteric Bursitis and Gluteal Tendinopathy No. 46 of 2015
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
19 November 2018
INTRODUCTION

The applicant, Mr Derek Holyoake, claims to suffer from a number of medical conditions as a result of a vehicle accident which occurred sometime in or around 1977, while he was serving in the Australian Army (“the Army”).
The applicant has had several medical conditions accepted by the Department of Veterans’ Affairs (“DVA”), including left corneal ulcer, sensorineural hearing loss and calcifying tendinosis of the right shoulder. He is now seeking the acceptance of further medical conditions which are claimed to be the cause of the 1977 accident.
It should be noted that the applicant has also submitted a further claim for post-traumatic stress disorder to DVA, which is not before the Tribunal. This claim covers the same subject matter as the claim for adjustment disorder.
The applicant’s service in the Army spanned from 8 October 1974 to 7 October 1980. This service is considered eligible defence service pursuant to s 68 of the Veterans’ Entitlements Act 1986 (“the Act”).
BACKGROUND
On 25 February 2015 the applicant submitted a claim for the disability pension for conditions not yet accepted as service-related, namely depression, diabetes type 2, bilateral osteoarthritis, lumbar spondylosis, bilateral trochanteric bursitis, bilateral femoro-acetabular impingement and loss of hearing.
On 21 May 2015 the respondent rejected this claim with respect to all conditions except sensorineural hearing loss, on the basis that the conditions were not related to service. The claimed “bilateral femoro-acetabular impingement” condition was rejected as no diagnosable medical condition was found to answer that claim. The applicant’s disability pension was increased to 50% of the general rate with effect from 25 November 2014.
The applicant then requested a reconsideration of this decision by the Veterans’ Review Board (“VRB”). During the VRB hearing the applicant withdrew the claims for diabetes mellitus and bilateral femoro-acetabular…

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.

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Details

Case: [2018] AATA 4300
Decision Date: 19 November 2018

CaseChat Overview and Summary

The applicant, who served in the Army between 1974 and 1980, claimed an increase in his disability pension for several conditions he alleged were defence-caused. These included depression, diabetes type 2, bilateral osteoarthritis, lumbar spondylosis, bilateral trochanteric bursitis, bilateral femoro-acetabular impingement, and loss of hearing. The Repatriation Commission rejected most of these claims, finding they were not service-related, although the applicant's pension was increased to 50% of the general rate. The applicant sought a review of this decision by the Veterans’ Review Board, which affirmed the Commission's decision. The applicant then applied for a review of the VRB's decision to the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant's remaining claimed conditions – lumbar spondylosis with radiculopathy, osteoarthritis in both hips, mild bilateral trochanteric bursitis, and adjustment disorder with depressed mood – were defence-caused. This determination required the Tribunal to apply the standard of proof set out in section 120(4) of the *Veterans’ Entitlements Act 1986* (the Act), which mandates that decisions be made to the Tribunal's "reasonable satisfaction." Section 120B(3) of the Act further stipulated that reasonable satisfaction could only be achieved if material before the decision-maker raised a connection between the condition and particular service, and if a Statement of Principles (SoP) in force upheld the contention that the condition was connected to that service on the balance of probabilities.

The Tribunal considered the claim for lumbar spondylosis in detail. It noted that the relevant SoP required, among other factors, that trauma to the lumbar spine occur at least one year before the clinical onset of the condition and within 25 years prior to that onset. While the applicant and his former colleagues recalled an accident in the mid to late 1970s, the Tribunal found that the clinical onset of lumbar spondylosis could not be established as occurring before 2013, based on medical reports and expert evidence. Consequently, the Tribunal concluded that the evidence did not establish that the trauma occurred within the 25-year period preceding the clinical onset, meaning the SoP did not uphold the contention that the lumbar spondylosis was connected to the applicant's service. As the Tribunal is bound by the SoP, this claim could not succeed.

The Tribunal affirmed the decision under review.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The applicant’s service in the Army spanned from 8 October 1974 to 7 October 1980. This service is considered eligible defence service pursuant to s 68 of the Veterans’ Entitlements Act 1986 (“the Act”).BACKGROUND On 25 February 2015 the applicant submitted a claim for the disability pension for conditions not yet accepted as service-related, namely depression, diabetes type 2, bilateral osteoarthritis, lumbar spondylosis, bilateral trochanteric bursitis, bilateral femoro-acetabular impingement and loss of hearing. On 21 May 2015 the respondent rejected this claim with respect to all conditions except sensorineural hearing loss, on the basis that the conditions were not related to service. The claimed “bilateral femoro-acetabular impingement” condition was rejected as no diagnosable medical condition was found to answer that claim. The applicant’s disability pension was increased to 50% of the general rate with effect from 25 November 2014. The applicant then requested a reconsideration of this decision by the Veterans’ Review Board (“VRB”). During the VRB hearing the applicant withdrew the claims for diabetes mellitus and bilateral femoro-acetabular impingement.[1] On 29 September 2015 the VRB affirmed the decision of the respondent. The VRB confirmed that the applicant’s present of pension, 70% of the general rate, was correct. [1] Exhibit A, T-Documents, T2, at p. B18. On 5 November 2015 the applicant lodged an application for review with this Tribunal. The remaining claims to be determined are: lumbar spondylosis with radiculopathy, osteoarthritis in both hips, mild bilateral trochanteric bursitis and adjustment disorder with depressed mood. ISSUE The issue before this Tribunal is whether each of the applicant’s claimed conditions are defence-caused. If one or more of the applicant’s conditions are accepted as being defence-caused, the assessment of the rate of pension is to be determined by the Repatriation Commission. LEGISLATIVE FRAMEWORK As the veteran has performed defence service, the determination of whether an injury or disease is defence-caused is to be made by applying the standard of proof outlined in section 120(4) of the Act. Section 120(4) requires this Tribunal to decide the matter to its “reasonable satisfaction”. Section 120B(3) of the Act stipulates how “reasonable satisfaction” is to be assessed: 120B Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles … (3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if: (a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and (b) there is in force: (i) a Statement of Principles determined under subsection 196B(3) or (12); or (ii) a determination of the Commission under subsection 180A(3); that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.

Evidence

Evidence Before The Court

Mr O’Reilly’s statement noted his belief that the applicant was in hospital for about 5 days and was then placed on light duties for some time upon his return. At the hearing he stated that he thought the applicant was in hospital for 2-3 weeks because he was back in camp in Brisbane when he saw that the applicant had returned; on further questioning, he agreed that the applicant could have been in hospital for just five days per his statement, and then spent the next two or three weeks on light duties with his unit. Under cross-examination he acknowledged that he was not involved in the applicant’s transfer from Shoalwater Bay to Brisbane, and he was already in Brisbane when the troops came back by train. MEDICAL EVIDENCE The applicant gave evidence at the VRB hearing that he had suffered from back and bilateral hip pain since approximately 1985.[7] He said that he put up with the pain as he didn’t like to go to the doctor unless it was absolutely necessary, but he was forced to seek medical treatment when the pain got too severe. He saw his GP in around 2013, and was referred for scans. The applicant resigned from his job in 2013 due to the pain he was experiencing. He had worked as a laundry attendant from 2009 to 2013, and prior to that he had worked as a security guard for many years. [7] Exhibit A, T-Documents, T2, at p. B4. In cross-examination the applicant was referred to his claim form, which noted that he first noticed the symptoms in 1985. The applicant stated that he did undergo an x-ray at this time, which stated that there was early degeneration of the hips, but he could not recall where it was done. He could not recall any follow-up of his injuries once he returned from Shoalwater Bay to Brisbane, nor could he recall any treatments in the subsequent years. With respect to his claimed clinical onset of 1985, the applicant clarified at the hearing that “the symptoms of this accident were felt by me originally in hospital, when both my hips and my back were hurting”.Diagnosis In 2013 and 2014 the applicant underwent a series of diagnostic scans to investigate the pain he’d been experiencing in his back and hips. A CT scan performed on 11 November 2013 looked at his lumbar spine, and found “slight degenerative retrolisthesis at L5/S1”, minor right lateral bulging of the disc at L3/4, and “mild broad based posterior disc bulge at L4/5”.[8][8] Exhibit A, T-Documents, T15, at p. 102. An x-ray of the applicant’s hips performed on 9 December 2013 found that there was moderate joint space narrowing and subchondral sclerosis in the right hip, and mild to moderate joint space narrowing and subchondral sclerosis in the left hip, as well as a deformity of both the right and left femurs.[9] [9] Exhibit A, T-Documents, T15, at p. 101. An ultrasound of the applicant’s left hip performed on 11 February 2014 found that there was anterior hip joint pain without a specific cause identified.[10] It was noted that there was “fluid in the trochanteric bursa”. An ultrasound of the applicant’s right hip performed on 12 February 2014 found that there was very restricted mobility, with the pain being identified as “primarily trochanteric, right greater than left”.[11] It was determined that there was “mild/moderate trochanteric bursitis”.[10] Exhibit A, T-Documents, T15, at p. 100.[11] Exhibit A, T-Documents, T15, at p. 99.

Decision

Reasons for decision

For the sake of completeness I should record that there is no relevant determination under s 180A(3) of the Act.DECISION I affirm the decision under review.

Ratio Decidendi

Legal Principle Established

The respondent’s submissions note that the applicant relies on the acceptance of the other physical conditions in respect of this condition. The respondent contends that this condition is not related to service, and as such the SoP cannot be met.CONSIDERATION Under s 120B of the Act, in deciding an application to the reasonable satisfaction standard mandated by the Act in s 120(4) of the Act, I am required to have regard to any relevant SoP issued by the Repatriation Medical Authority which binds decision-makers at all levels.Lumbar spondylosis I find that the applicant has lumbar spondylosis. I make this finding in reliance on the opinion of Dr Lochlin Brown who, on 21 April 2015, reported that the applicant has lumbar spondylosis. The parties agree that the relevant SoP in relation to the claim for lumbar spondylosis is SoP no. 63 of 2014 as amended. Clause 5 of SoP no. 63 of 2014 provides that, subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person. Clause 7 has no relevance to this application. Clause 6 of SoP no. 63 of 2014 outlines a number of factors that must exist before it can be said that, on the balance of probabilities, lumbar spondylosis or death from lumbar spondylosis is connected with the circumstances of a person’s relevant service. The applicant places reliance on factor 6 (g) which refers to a person:having trauma to the lumbar spine at least one year before the clinical onset of lumbar spondylosis, and where the trauma to the lumbar spine occurred within the 25 years before the clinical onset of lumbar spondylosis. The evidence before me does not raise the application of the other factors in Clause 6 of SoP no. 63. It is important to consider when there was the clinical onset of lumbar spondylosis. On 21 April 2015 Dr Lochlin Brown reported it was on 11 November 2013 that the applicant was diagnosed with a mild diffuse posterior disc bulge at L4/L5. Dr Brown then reported that the applicant had mild back pain. When giving evidence Dr Sharwood made reference to this report. Dr Sharwood was also aware that in 1985 the applicant complained of back pain and was treated with deep heat and massage. I cannot, on the state of the evidence before me, make a finding that the date of clinical onset of the lumbar spondylosis condition was before 2013. Dr Sharwood gave evidence that he was “not able to go earlier in a diagnosis of clinical onset” and his opinion was not challenged. I accept that the applicant was giving evidence to the best of his recollection; he believes that the trauma occurred in 1977 or 1978. Mr O’Reilly, who gave evidence, was “pretty sure” that the accident occurred in 1977. This is consistent with the recollection of Mr Schmidt who declared in his statutory declaration that the accident occurred in the mid to late 1970’s. The applicant was firm in his recollection that the accident occurred before his promotion to Lance Corporal which was in March 1978. The report of Dr Pitchford dated 9 February 2016 refers to a statement of the applicant that the accident occurred in 1985 but I have formed the view in reliance on the testimony of the applicant as well as the evidence of his colleagues that the accident occurred no later than the promotion of the applicant in 1978. The evidence before me does not enable me to make a finding that the trauma occurred within the 25 years before the clinical onset of lumbar spondylosis. In relation to this condition the SoP does not uphold the contention that the disease of the applicant is, on the balance of probabilities, connected with his service as required by s 120B of the Act. The claim in relation to lumbar spondylosis cannot therefore succeed. As a decision maker I am bound by the SoP.