Ison and Repatriation Commission
[2000] AATA 994
•14 November 2000
DECISION AND REASONS FOR DECISION [2000] AATA 994
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/582
VETERANS' APPEALS DIVISION )
Re Donald ISON
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mrs M T Lewis, Senior Member Dr M E C Thorpe, Member
Date14 November 2000
PlaceSydney
Decision The Tribunal – 1. Affirms that part of the decision under review, being a decision of a delegate of the Repatriation Commission ("the Respondent") dated 30 April 1996 that refused the claim of Donald Ison ("the Applicant") in respect of osteoarthrosis right and left ankles; 2. Sets aside that part of the decision under review in respect of lumbar spondylosis and osteoarthrosis right knee; 3. Amends the diagnosis of the condition diagnosed as "lumbar spondylosis by adding "with spondylolisthesis"; 4. Substitutes for that part of the decision so set aside, as amended, the decision that - (a) the conditions of lumbar spondylosis with spondylolithesis and osteoarthrosis of the right knee suffered by the Applicant are war-caused pursuant to s9 of the Veterans' Entitlements Act 1986, with effect on and from 13 March 1995; and (b) the Applicant is entitled to payment of pension at 100 per cent of the General Rate, with effect from and including 13 March 1995.
..............................................
M T Lewis
Presiding Member
CATCHWORDS
VETERANS' AFFAIRS – entitlement – whether lumbar spondylosis with associated spondylolisthesis is correct diagnosis for back condition – whether lumbar spondylosis and osteoarthritis of right knee war-caused – Statements of Principles applied – whether reasonable hypotheses raised – whether suffered trauma to knee joint and lumbar spine prior to clinical onset of condition – truth of claims considered – whether satisfied beyond reasonable doubt that conditions were not war-caused
Assessment – Veteran currently assessed at 70 per cent of General Rate – whether increase in General Rate assessment
Veterans' Entitlements Act 1986 – ss 120(1), 120(3), 120A, 120(4)
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Deledio (1998) 83 FCR 82
Connors v Repatriation Commission [2000] FCA 783
Harris v Repatriation Commission [2000] FCA 873
Dixon v Repatriation Commission (1999) 29 AAR 235
Thompson v Repatriation Commission [2000] FCA 939 (19 July 2000)
Repatriation Commission v Keeley (2000) 98 FCR 108
REASONS FOR DECISION
14 November 2000 Mrs M T Lewis, Senior Member Dr M E C Thorpe, Member
This is a review of that part of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 30 April 1996 that refused a claim made by Donald Ison ("the Applicant") for lumbar spondylosis, osteoarthrosis of the right knee and osteoarthrosis of both ankles, and assessed disability pension at 60 per cent of the General Rate. The Veterans' Review Board ("the VRB") affirmed that decision on 19 February 1999. All applications for review were in time.
The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The Applicant, Professor P N Sambrook, and Dr M G Miller gave oral evidence at the hearing. The following documents were tendered as evidence on behalf of the Applicant –
Report of Professor P N Sambrook, rheumatologist, dated 12 November 1999 (exhibit A);
Report of Dr M G Miller, consultant physician, dated 14 September 1999 (exhibit B);
Report of Dr M Baz, occupational physician, dated 2 December 1999 (exhibit C);
Photocopies of two guns and sketch plan (exhibit D).
The following documents were tendered as evidence on behalf of the Respondent –
Decision of the Repatriation Commission dated 14 February 2000 with addendum (exhibit 1);
Report of Dr N J Schultz, consultant psychiatrist, dated 8 September 1999 (exhibit 2);
Report of Dr M Burns, occupational physician, dated 26 August 1999 (exhibit 3).
The Applicant had the following conditions accepted as war-caused disabilities -
Chronic airflow limitation ("CAL")
Bilateral Sensorineural hearing loss with tinnitus
Generalised anxiety disorder with alcohol dependence
Erythrasma
Actinic keratoses of the face
Prurigo
On 14 February 2000 the Respondent undertook a review pursuant to s31 of the Veterans' Entitlements Act 1986 ("the Act") and determined that the Applicant's hypertension was service related (exhibit 2). At that time his disability pension was increased to 70 percent of the General Rate with effect from 29 August 1999.
The Applicant is now seeking pension at 100 per cent of the General Rate in the event that one or more of his claimed conditions is accepted by the Tribunal. The Applicant advised the Tribunal that he is not pursuing his claim for osteoarthritis of both ankles, and therefore the Tribunal affirms that part of the reviewable decision.
legislation and applicable statements of principlesThe Applicant served in the Australian Army from 23 April 1969 to 22 April 1971 including service in South Vietnam between 7 May 1970 and 18 March 1971. This constitutes operational service for the purposes of the Act. It is only this service that is relevant for the purposes of his claim.
The standard of proof to be applied to the Applicant's operational service is found in ss120(1) and (3) of the Act, which requires the Tribunal to determine that his claimed conditions were war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal shall be satisfied beyond reasonable doubt that there is no sufficient ground for determining that his conditions were war-caused if, after consideration of the whole of the material, it is of the opinion that the material before it does not raise a reasonable hypothesis connecting those conditions with the circumstances of his service.
As the Applicant lodged a claim after 1 June 1994, pursuant to s 120A of the Act the Tribunal is required to apply the relevant Statement of Principles in determining this matter. The Tribunal notes that the earliest Statement of Principles in respect of lumbar spondylosis was determined on 9 December 1996 after the primary decision was made.
Applying the decision of the Federal Court in Thompson v Repatriation Commission [2000] FCA 939 (19 July 2000) in this case, the Applicant is able to rely on his accrued rights which would enable him to have the matter determined by the Tribunal without reference to the Statement of Principles. The decision of Thompson (supra) was handed down after this matter was adjourned with decision reserved, and therefore the parties were unable to make submissions in respect of it. It should also be noted that the Thompson decision has now been appealed by the Respondent to the Full Federal Court. The Tribunal considered reconvening for the purpose of obtaining submissions on this issue, but ultimately decided that it was not necessary to do so.
The Tribunal determined that if the Applicant was to succeed using the latest Statement of Principles, Instrument No.27 of 1999 concerning Lumbar Spondylosis, which in the circumstances is the only one that could be applied if there was no accrued right or that the Applicant did not seek to rely on his accrued right, then the issue was no more than academic.
The Applicant relies on factor 5(h) of Instrument No. 165 of 1996 -
(h) suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis
That Instrument states that "trauma to the lumbar spine" -
means a discrete injury to the lumbar spine that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain and tenderness, and either altered mobility or range of movement of the lumbar spine. These acute symptoms and signs must last for a period of at least seven days following their onset save for where medical intervention for the trauma to the lumbar spine has occurred, where that medical intervention involves either:
(a)immobilisation of the lumbar spine by splinting, or similar external agent; or
(b)injection of corticosteroids or local anaesthetics into the lumbar spine; or
(c)surgery to the lumbar spine.
It is the Applicant's contention that the correct diagnosis for his claimed condition is "lumbar spondylosis with associated spondylolisthesis". The Tribunal notes that there is a Statement of Principles for Spondylolisthesis and Spondylolysis Instrument No.15 of 1997, dated 20 February 1997, that was not in existence at the time of the primary decision, and that therefore also is subject to the Federal Court decision in Thompson. Presumably the Applicant would be relying on factor 5(f) of that Statement of Principles –
(f) suffering from lumbar spondylosis affecting the facet joints at the involved intervertebral level at the time of the clinical onset of degenerative lumbar spondylolisthesis.
At the commencement of the hearing, the Respondent conceded that if lumbar spondylosis is accepted as war-caused by the Tribunal, the associated spondylolisthesis (which has a later date of onset) should also be accepted. The Respondent did not dispute that the Applicant suffers from the condition of lumbar spondylosis with spondylolisthesis. At issue is whether lumbar spondylosis is related to service, namely whether the Applicant suffered a traumatic incident that meets the relevant Statement of Principles.
Applying the decision of the Full Federal Court in Repatriation Commission v Keeley (2000) 98 FCR 108 and assuming that the Applicant is relying on his accrued rights in relation to the claim for osteoarthrosis of the right knee, the relevant Statements of Principles are Instrument No. 71 of 1995, as amended by No.336 of 1995 and No.352 of 1995. As a result of those amendments, the Applicant relies on factor 1(b)(vi) -
Suffering a trauma to the relevant joint before the clinical onset of osteoarthrosis;
Instrument No. 352 of 1995 states that "trauma to the relevant joint"
Means a joint injury 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, swelling, tenderness, and altered mobility or range of movement of the joint, 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 (eg splinting, corticosteroid injection, surgery), and there is evidence relating to the extent of injury and treatment, such evidence may be considered;
The Respondent accepts that the Applicant suffers from osteoarthritis of the right knee, but contends that condition was not caused by his war service.
evidence
ApplicantThe Applicant said he was posted to 107 Field Battery, based in Nui Dat, South Vietnam, in 1970/71 as one of 7 gun crew members (who were subsequently reduced to 4) to support the infantry. His duties as a gunner were as a fire support base. He recalled being sent to approximately 22 fire support bases. In the first three to six months he travelled to those bases mainly by truck, and thereafter the majority of their deployments were by helicopter.
The crew operated a 105mm Howitzer long barrel field gun. The Applicant explained that the Howitzer, with 105mm shells and cartridges in 1m cylinders attached underneath it, were airlifted by helicopter to the support base. He and one other member of the crew were then required to jump out of the helicopter from about 4 to 6 feet above the ground with their packs and a 105mm anti-personnel shell, in readiness to fire. He said his pack weighed about 45 to 50 pounds and the shells weighed approximately 25 to 30 kilograms each.
The Applicant explained that when the gun was at a high angle, he was required to kneel for most of the time in order to load it. He said loading lasted for about 1 to 2 hours, during which time he loaded shells for about 10 to 15 minutes followed by a break for 5 to 10 minutes. He then swapped duties with one of the other members.
In the last 6 months of his posting to Vietnam the Applicant recalled an incident where he hit his right knee on the ground after jumping from a helicopter on its way to a fire support base. He twisted his right ankle and felt pain immediately in his right knee. He said that half an hour later his knee began to swell. He said he remained on his knee for about 30 seconds and had difficulty getting up as he felt a sharp pain in the knee joint. He said that he was in pain for about 2 weeks after the incident. He had some initial bruising that eventually settled.
The Applicant said that notwithstanding his injuries he continued performing his duties immediately after the incident, but changed duties with other gun crew members to the "on sights position" so that he did not have to bend and lift as much to load the breech of the gun. The Applicant said that the "sights position" was an easier job because one was always standing. He admitted the duties were difficult to do with his injury, but said that most of the time "it was not too bad". Moving to the sights position eased the pain.
The Applicant said he reported the injury to the sergeant and the other members of the crew were also aware of the incident. Other than that, there was no one to whom he could report the incident and no medical assistance available in the vicinity. Further, because there were only five members in the crew by that stage, going back to base camp by helicopter was not an option because "you'd be letting the crew down and there was no one else to replace me at the time".
The Applicant also said that he experienced an almost identical incident in the last three months of his posting. On that occasion, however, the pain in his right knee was worse and it lasted for about 3 weeks. He felt discomfort in the knee and his mobility was restricted. Again he continued with his duties immediately thereafter, but with some difficulty.
The Applicant recalled suffering a sharp pain in his back on another occasion, about six weeks after the first knee incident, as he was loading the Howitzer gun at a high angle. He explained that he had been kneeling in the pit loading shells into the gun for about 30 to 45 minutes and he then felt the twinge in his back just after twisting his body to pick up the shell to push it into the gun. The Applicant described the pain like a "tear" in one of his muscles. He then asked one of the other crew members to take over loading the gun because of the pain he felt in his back and he changed to the sights position. He said he could not cease his duties altogether because they were in the middle of a fire mission.
The Applicant said he reported the back injury to the sergeant and the gun crew. He said there was no medical assistance on that occasion either. He said that he never saw the infantry when he was on duty, because they were anywhere between 1 and 15 kilometres outside the fire support base, and therefore he did not have access to the medical facilities that accompanied the infantry. He did not consider it feasible to return to Nui Dat by a resupply helicopter because he anticipated he would not have been replaced, and there would have been only three crew remaining. Therefore he "put up with the pain and kept going". He said the pain lasted for about three weeks. He resumed loading the Howitzer after about three weeks.
The Applicant said that after returning from the last fire support base and just prior to returning to Australia, both his right knee and back felt "stiff". He said the pain eventually dissipated. However, not long after he returned home his knee and back "flared up again".
The Applicant did not mention his back and knee problems on discharge. Indeed, on his discharge history questionnaire dated 2 April 1971, it was noted that the Applicant had suffered from tonsillitis but no record of a back or knee injury was made at that time.
In the Applicant's claim dated 9 June 1995 it was stated that his back, knee and ankle problems were caused by carrying "heavy packs, jumping, moving artillery equipment through the bush", but no mention was made of the Howitzer loading incident. In oral evidence the Applicant said that a Welfare Officer completed his claim form. The Applicant said that the first time he recalled the Howitzer loading incident was around the time he was examined by various doctors in conjunction with his claim, when he was "asked to discuss matters which he did not want to talk about".
In the Applicant's claim dated 9 June 1995 he provided a self-assessment of the lifestyle effects of his disabilities (T7). In that document he noted a number of psychiatric symptoms, including being moody and irritable most of the time, having difficulty getting on with people, being short tempered, including with his family. He noted that these symptoms prevented him from working at times, he rarely visited friends or family, or socialised in any way, he had reduced the amount of work he does due partly to his "short temper", and he now does "less dealing with the public".
The Applicant in his oral evidence said that his back pain is constant but it varies in intensity. He has been taking pain killers and anti-inflammatory medication for the past two to three years, that have only "dulled the pain". Prior to that he only took Panadol.
The Applicant said that he can only ever sit in one position for about five to ten minutes before he has to stand up and move around to alleviate the pain in his back and knee. He is only able to walk for about two to three minutes before he needs to take a rest. For that reason he never walks anywhere because his back aches and he also experiences shortness of breath. His back becomes stiff when he drives and he said that he is able to drive a car for just over an hour before requiring a break.
The Applicant said he has had some pain relief since he purchased a waterbed about ten to fifteen years ago as his hard bed caused severe back ache and if he rolled over and placed weight on his knee it would ache.
The Applicant said he has not been able to play golf since February 2000. He used to enjoy surfing and swimming, but his back and knee prevents him from continuing with those activities. He has reduced his workload to only light carpentry duties. He cannot kneel as he used to and he has decreased the hours that he works. He works with one other person in a partnership. He said they have a good working relationship, but they do not socialise as they used to because he said, "if we went out socially, we'd end up fighting more often".
The Applicant takes medication prescribed for his psychiatric condition twice a day. His psychiatric condition affects his ability to concentrate at work and his relationship with his family. When he has drunk a few beers he said that he "drives them nuts at times". He considers his wife is the only close friend he has.
The Applicant said that when he comes home from work he "has a beer" and does some paperwork. On weekends he drinks about a case of beer and occasionally undertakes renovations at home. He no longer lifts anything because of his back and knee conditions. Occasionally he and his wife go to the club for an hour or so to drink and play the poker machines. He said his skin conditions have deteriorated.
medical evidenceThe Tribunal notes from the service medical records dated 31 July 1970 (T3, p16) the Applicant complained of a range of symptoms including headache, sore throat, sweating, backache, weakness and photophobia that persisted for three days. In oral evidence, the Applicant recalled that was prior to hurting his back.
An X-ray report dated 17 May 1995 (T5) noted -
KNEES
There is narrowing of the medial joint compartment of the right knee associated with a small effusion and small marginal osteophytes. No other bone or joint abnormality seen.
…
LUMBO-SACRAL SPINE
There is narrowing of L4/5 and L5/S1 with a forward slip of L5 on S1 associated with probable bilateral L5 pars defects. Anterior marginal osteophytes are present at number of lower lumbar levels.
A slight scoliosis convex to the right is noted.Professor Sambrook, rheumatologist, prepared a report dated 12 November 1999 (exhibit A) after examining the Applicant on 8 November 1999. Dr Miller, consultant physician, examined the Applicant on 13 September 1999 and prepared a report dated 14 September 1999 (exhibit B). Both doctors obtained almost identical histories regarding the alleged incidents concerning the Applicant's knee and back conditions. The Tribunal notes those histories are fairly consistent with the Applicant's oral evidence, except for the fact that in his oral evidence the Applicant described experiencing symptoms of pain for longer duration. Professor Sambrook noted that the right knee was painful for "at least a week", and in respect of the back he noted that the pain lasted "about 2-3 weeks intermittently". Dr Miller noted that the Applicant's knee was painful "for at least a week or longer", and the pain in his back persisted for "two to three weeks", after which he had "recurrent symptoms over the years".
The Applicant's physical examination by both doctors also revealed similar findings. With respect to the Applicant's knees Professor Sambrook made the following comments (exhibit A, p3) -
Mr Ison brought with him x-rays performed on 17.5.1995. In the knees that was narrowing of the medial compartment bilaterally with small marginal osteophytes on the right side. …
…
Physical examination revealed a normal posture and build. There was wasting of the right quadriceps compared to the left side and a greater degree of AP instability, suggesting an anterior cruciate tear. There was crepitus evident in both knees, more marked on the right than the left..Professor Sambrook and Dr Miller were both of the opinion that the Applicant satisfied the definition of "trauma to the relevant joint", including "altered range of movement" as defined in the relevant Statement of Principles. Both considered that he suffered from osteoarthritis of the knee as a result of the incidents as described by the Applicant. Both doctors assessed the Applicant as genuine in his complaints and had no reason to disbelieve the history they received.
With respect to the Applicant's back condition, Professor Sambrook (exhibit A) considered the correct diagnosis was lumbar spondylosis with an associated spondylolisthesis, the latter being secondary to the spondylosis.
Dr Miller said that he did not have the benefit of examining all of the X-rays when the Applicant came to see him. He did not dispute Professor Sambrook's diagnosis of "an associated spondylolisthesis". Dr Miller alerted the Tribunal to the fact that the Applicant revealed approximately 50 per cent loss of range of movement at the time he saw him, which was considerably less than found by Professor Sambrook. However both considered this to be of no material significance: they agreed that it was normal that a patient often showed a variation in the degree of the range of movement at various times. Both doctors agreed that the Applicant demonstrated a 25 per cent loss of range of movement at the day of the hearing.
Professor Sambrook opined that the back injury suffered by the Applicant was caused by the force of an extraneous physical or mechanical agent, that is, holding and loading the shells into the Howitzer gun. Although the Applicant had repeated that particular action several times in a given situation before feeling the twinge in his back, Professor Sambrook said that a movement is never repeated in exactly the same way. In any case, he considered that the definition in the Statement of Principles did not require asking why a force on some occasions caused pain and at other times did not; the Statement of Principles required a force and a discrete episode of trauma and he considered the Applicant satisfied the definition of "trauma to the lumbar spine".
AssessmentThe following tables represent the impairment and lifestyle ratings pursuant to GARP-V given by the various doctors who were asked to assess the Applicant's disabilities –
COMBINED IMPAIRMENT RATINGS
Lumbar Spondylosis Osteo-arthrosis Chronic Airflow Limitation Hypertension Anxiety Tinnitus & Hearing loss Skin Condition Combined Values
Dr Miller 20 + 10 for pain 20 25 (Table 1.2) 24 + 10 for cognition (Tables 4, 5.1) 10 + 1 (Table 7.1.11) 5 (Table 11.1) 55
Dr Baz 10 + 5 for joint pain (Table 3.3.1, 3.4.1) 20 (Table 3.2.2) 12 (Table 1.4, 1.2, 19.2) 27 (Table 4) 5 + 1 (Table 7.1, 7.1.11) 5 (Table 11.1) 61
Dr Burns 10 (Table 3.3.1, 3.6.1) 10 (Table 3.2.1) 14 (Tables 1.2, 1.4) 14 (Table 4) 5 +1 (Table 7.1, 7.1.11) 5 (Table 11.1) 47
DVA 14 (Table 1.1,1.4) 2 (Table 2.1.1) 18 (Table 4) 5+1 (Table 7.1.11) 5 (Table 11.1) 40
Prof. Sambrook 15 + 10 for pain 10
Dr Schultz 18 (Table 4)
Dr Pohlen 20 (GARP IV)LIFESTYLE RATINGS
Personal Relationships Mobility Recreational Activities Domestic Activities Employment Lifestyle Rating
Dr Baz 4 3 4 3 4 4
Dr Miller 4 4 4 4 4
Prof. Sambrook 2 3 3 4 4 Only effects of musculo-skeletal problems considered
Dr Burns 3 1 (or 3 if back & knee accepted) 3 (or 4 if back & knee accepted) 1 (or 3 if back and knee accepted) (Including employment) Together with domestic 2 (for accepted) 4 (for accepted & non-accepted)
DVA 3 2 3 3 (including employment) 3
Dr Pohlen 3 2 2 3 2 Not including physical disabilities GARP IV used
Dr Miller highlighted that the discrepancy in figures between his rating and that of Dr Baz for CAL was a reduction in METS impairment rating made by Dr Baz due to ischaemic heart disease, a condition that he did not think was present. Dr Miller also did not agree that the Applicant displayed symptoms at 5 - 6 METS level as indicated by Dr Schultz's findings.
submissions
EntitlementThe Respondent accepted that the first two steps in the Repatriation Commission v Deledio (1998) 83 FCR 82 test had been satisfied. However the Respondent contended that the Applicant's hypothesis was not reasonable as it did not fit within the template of the relevant Statement of Principles. Relying on the authorities of Connors v Repatriation Commision [2000] FCA 783 and Harris v Repatriation Commission [2000] FCA 873, it was submitted that all the essential elements of the Statements of Principles, including "trauma to the lumbar spine" and the necessity of "acute symptoms" had to be satisfied. It was submitted that the Applicant's immediate return to duties for a considerable time without relief militated against the acuteness of signs and symptoms, as stipulated in Harris (supra). It was also submitted that if the Applicant's symptoms were sufficiently acute, he would not have been able to continue to work regardless of his desire to assist his crew members.
The Respondent contended that the Applicant also failed to satisfy the requirement of an "extraneous physical or mechanical agent" to have caused the injury. It was submitted that any evidence that suggested the particular movement of the loading of the shell was different from any movement preceding it was purely speculative.
With respect to osteoarthritis of the right knee, it was submitted for the Applicant that he suffered two traumas to his right knee. The first incident resulted in a period of pain and discomfort for a period of at least 2 weeks, and the second incident caused the requisite amount of pain for a period of at least 3 weeks. It was submitted that on both occasions the Applicant sustained acute symptoms and signs of pain within 24 hours of the injury. It was submitted also that the incidents as described by the Applicant were a true account and would have caused the impact envisaged by the Statement of Principles.
The Respondent submitted that the Applicant failed to satisfy the definition of trauma in the relevant Statements of Principles.
AssessmentIt was submitted for the Applicant that the assessments of Dr Baz and Dr Miller in respect of generalised anxiety disorder were similar and for that reason should be preferred over Dr Schultz's assessment. Dr Miller's assessment regarding CAL was the appropriate rating. In essence, it was submitted that there was sufficient medical evidence before the Tribunal to assess pension at 100 per cent of the General Rate.
It was submitted for the Respondent that the 10 points awarded to loss of cognitive function in relation to generalised anxiety disorder by Dr Miller should not be taken into account. The Tribunal was urged to follow Dr Burns' ratings rather than Dr Miller's with respect to CAL, as Dr Miller had wrongly applied Table 1c (loss of respiratory function - respiratory nomogram), and in any case a rating of 4 to 5 could not be substantiated on the Applicant's evidence. It was argued that 5 to 6 METS was the appropriate rating to be given.
The Respondent relied on Dr Baz's ratings for skin disorders and on Professor Sambrook's assessment with respect to osteoarthritis and lumbar spondylosis.
consideration of evidence and findings of factThe Tribunal finds on the uncontroverted evidence before it that the correct diagnosis of the Applicant's back condition is "lumbar spondylosis with associated spondylolithesis" and that the spondylolisthesis developed as part of the natural history of the Applicant's spondylitic condition. The Tribunal is also reasonably satisfied on the medical evidence that the Applicant suffers from osteoarthritis of the right knee.
In determining whether those conditions were causally related to service in accordance with s120(1), 120(3) and 120A of the Act, the Tribunal must follow the steps outlined by the Full Federal Court in Repatriation Commission v Deledio (supra) (at 97, 98)-
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The Tribunal must then proceed to consider under s120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.The Tribunal finds that the material before it points to two hypotheses properly raised that are not merely left open: East v Repatriation Commission (1987) 16 FCR 517. Firstly, the Applicant suffered two separate but similar traumatic injuries to his right knee as a result of jumping out of a helicopter as part of his gunman duties in Vietnam. Consequently he development osteoarthritis of the right knee. The second hypothesis is that the Applicant suffered a back injury arising out of an incident which involved loading a Howitzer gun during his service in South Vietnam that caused the development of lumbar spondylosis.
The Tribunal finds that the first hypothesis meets factor 1(b)(vi) of Instrument No. 71 of 1995, as amended by No. 336 and 352 of 1995 for Osteoarthrosis. On the evidence of the Applicant, Professor Sambrook and Dr Miller, the Applicant experienced acute symptoms and signs of pain, swelling, tenderness and altered mobility within 24 hours of the injuries which continued for a period of at least one week. Both medical experts considered that the Applicant satisfied the definition of "trauma to the relevant joint". The Tribunal is satisfied the injury is of the requisite severity as stipulated in the decisions of Harris (supra) and Connors (supra). Accordingly, the Tribunal finds the hypothesis fits within the "template" of the relevant Statement of Principles and is therefore reasonable.
The Tribunal finds that the second hypothesis fits within factor 5(h) of Instrument No. 27 of 1999 concerning Lumbar Spondylosis. On the evidence of Professor Sambrook, which the Tribunal accepts, the Applicant sustained an injury to his lumbar spine which was caused by the force of an extraneous physical or mechanical agent, that being the action involved in loading the Howitzer gun, notwithstanding that the Applicant employed the action in a similar manner repeatedly prior to the incident. The fact that the action was performed previously in a similar manner without injury is immaterial, on the evidence of Professor Sambrook. Professor Sambrook considered the injury, as described by the Applicant, produced the requisite symptoms for the prescribed duration as required in the Statement of Principles. The Tribunal finds the injury suffered was of the requisite severity as stipulated in the Federal Court decisions of Harris (supra) and Connors (supra).
In the alternative, if the Tribunal is not required to determine this matter in accordance with the Statement of Principles because of his accrued right, then the Tribunal finds that a reasonable hypothesis has been raised on the evidence before it in respect of the Applicant's lumbar spondylosis.
Moving to the last stage of the Deledio test, the Tribunal notes the Respondent's submissions, which in effect question whether the incidents as described by the Applicant occurred in the manner described by him. It is only at step 4 of the Deledio test that it is necessary for the Tribunal to find facts from the material before it. Considering the truth of claims is a step to be carried out in the obligation imposed by s120(1) to decide whether the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for determining that the Veteran's conditions were war-caused: Dixon v Repatriation Commission (1999) 29 AAR 235.
The Tribunal finds that the Applicant was a credible witness and finds that the incidents occurred in the manner described by him. The Tribunal notes his oral evidence was consistent with previous histories obtained by Professor Sambrook and Dr Miller. Moreover, both doctors believed the Applicant was genuine in his description of the incidents and had no reason to doubt the veracity of the Applicant's claims. Notice must be taken that it is reasonable that one makes a stalwart effort to continue working with ones comrades on active service when one perceives a duty to others, and that it is reasonable to weigh that up against considerable pain and suffering that one is suffering. There are, of course, individual differences in the way in which this is executed. The Tribunal considers that it is not reasonable to disbelieve the Applicant in this case, merely because he continued to perform his duties with his crew in spite of being in considerable pain and discomfort. The Tribunal accepts the Applicant's evidence that there was no infantry to report to at the time of the incidents which explains the lack of any evidence in his service records on the issue. The Tribunal is also aware that no mention of those injuries was made on discharge. That is consistent with the likelihood that the discomfort was greatly minimised by the time of his discharge. The Tribunal is not satisfied beyond reasonable doubt that those incidents did not occur.
Therefore, the Tribunal cannot be satisfied beyond reasonable doubt that the Veteran's conditions of osteoarthrosis of the right ankle and lumbar spondlylosis with associated spondyloisthesis were not war caused. The decision under review is therefore set aside, and in substitution the Tribunal decides that both those conditions were war-caused pursuant to s9 of the Act, with effect on and from 13 March 1995.
Moving now to the issue of assessment of pension payable to the Applicant for all his war-caused disabilities, the Tribunal is reasonably satisfied on all the evidence before it that the following assessments of medical impairments are appropriate –
Lumbar spondylosis with spondylolisthesis - The Tribunal prefers the assessment of Professor Sambrook, as a relevant expert, that an assessment of 15 be accepted under Table 3.3.1, with an additional 10 impairment points for pain under Table 3.6.1.
Osteoarthrosis right knee – The Tribunal prefers the assessment of Dr Baz. She has used Table 3.2.2 to assess medical impairment, which the Tribunal considers to be appropriate, and an assessment of 20 is consistent with the Applicant's evidence to the Tribunal of his functional loss.
Chronic Airflow Limitation – The Tribunal prefers the assessment of Dr Burns on this issue that this condition should be assessed at 14. Dr Baz had calculated a factor for ischaemic heart disease, yet there is insufficient evidence that this condition plays any role in the Applicant's medical impairment. Dr Miller's assessment appears to be significantly inflated.
Hypertension – The only assessment in respect of this recently accepted condition is that from the Respondent of 2 impairment points, which the Tribunal accepts in the absence of any other evidence.
Generalised Anxiety Disorder with Alcohol Dependence – The Tribunal does not accept Dr Miller's inclusion of an assessment for cognition under the head of this condition. There is no clear evidence of cognitive deficit. Dr Pohlen's assessment cannot be used as it was based on GARP-IV.
The Tribunal considered the various assessments provided in regard to the Applicant's psychiatric condition, together with his oral evidence. After careful consideration of all the evidence we were reasonably satisfied that a medical impairment of 27 was correct, based on the following calculations –
Table 4.1 Subjective Distress 6
4.2 Manifest Distress 6
4.4 Employment 5
4.6 Social Interaction 5
4.7 Leisure Activities 5
This is consistent with the assessment of Dr Baz.
Tinnitus and Hearing Loss – Dr Miller's assessment appears to be inflated. The Tribunal would prefer the assessment of Dr Baz and Dr Burns on this issue, that being 5 impairment points for tinnitus and 1 for hearing loss, and considers that such assessment is clearly within their expertise.
Skin conditions – There is no conflict on this issue, and the Tribunal finds that an impairment of 5 is appropriate.
On the basis of the abovementioned medical impairments and using the Combined Values Chart in GARP-V, a combined impairment rating of 63, rounded to 65, is calculated.
By using the Conversion Table, the Tribunal notes that on the basis of an impairment rating of 65, it is not necessary to consider the lifestyle assessment rating in order to calculate a General Rate assessment of 100 percent. The Tribunal finds that the correct General Rate assessment is now 100 percent, with effect on and from 13 March 1995.
The Tribunal notes that the effective date for the acceptance of the Applicant's hypertension condition is later than 13 March 1995. Without hypertension included in the combined impairment rating, the assessment is 60. Using the shaded area of the Conversion table instead of a lifestyle assessment, this still provided an assessment of 100 percent of the General Rate. Hence, the later effective date for hypertension has no material affect on the assessment.
I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member and Dr M E C Thorpe, Member
Signed: .....................................................................................
AssociateDate of Hearing 26 July 2000
Date of Decision 14 November 2000
Solicitor for the Applicant Brian Winship, Rockliffs Solicitors
Solicitor for the Respondent Ms Philippa Hook, Dept of Veterans' Affairs
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