Jeffries and Repatriation Commission
[2005] AATA 799
•19 August 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 799
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2004/267
VETERANS' APPEALS DIVISION ) Re ROBERT JOHN JEFFRIES Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member L Hastwell Date19 August 2005
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
..............................................
L HASTWELL
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – Disability Pension – war-caused condition of lumbar spondylosis – decision affirmed
Veterans’ Entitlements Act 1986 ss 6, 9, 13, 120, 120A
Repatriation Commission v Deledio (1998) 83 FCR 82
Lees v Repatriation Commission (2002) 125 FCR 331REASONS FOR DECISION
19 August 2005 Senior Member L Hastwell 1. By application dated 1 September 2003 Robert Jeffries (the applicant), who is already in receipt of a pension from the Department of Veterans’ Affairs arising from other conditions that have been accepted as being service related, made application that the condition lumbar spondylosis be accepted as being war-caused, pursuant to s 9 of the Veterans’ Entitlements Act 1986 (the VE Act).
2. On 29 October 2003 the respondent (the Commission) rejected the claim on the grounds that the condition was not war-caused. The Veterans Review Board (the VRB) affirmed that decision on 27 July 2004. The applicant has applied to this Tribunal for a review of that decision.
issues before the tribunal
2. The issue before the Tribunal is whether the condition of lumbar spondylosis from which the applicant suffers is war-caused for the purposes of the VE Act. Both parties accept the diagnosis of the applicant’s condition.
3. It is common ground that if the applicant is successful in his claim the date of effect is 1 September 2003.
legislation
4. Section 9 of the VE Act provides for when an injury or disease is taken to be war- caused, and provides as follows:
“(1)Subject to this section and section 9A, 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;
…”
5. The expression “operational service” is defined in ss 6 to 6F of the VE Act. It is common ground in this case that the applicant has rendered operational service within the terms of the VE Act.
6. Section 13(1) of the VE Act provides:
“(1) Where:
(a) the death of a veteran was war-caused; or
(b)a veteran is incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c)in the case of the death of the veteran—pensions by way of compensation to the dependants of the veteran; or
(d)in the case of the incapacity of the veteran—pension by way of compensation to the veteran;
in accordance with this Act.”
7. In respect of operational service the Tribunal must have regard to ss 120(1), 120(3) and 120A of the VE Act. These provisions are as follows:
“120Standard 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.
Note: This subsection is affected by section 120A.
(2) …
(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.
Note: This subsection is affected by section 120A.”
8. Section 120A of the Act provides:
“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.
Note 1: Subsections 120 (1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).
(2) …
(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.
Note: See subsection (4) about the application of this subsection.
…”
9. The Statement of Principles (SoP) that the Tribunal must have regard to in this instance when considering operational service is Instrument No 46 of 2002, as amended by Instrument No 77 of 2002 (the Lumbar Spondylosis SoP), and in particular the applicant contends that factors 5(e) and/or (h) of the Lumbar Spondylosis SoP are/is satisfied:
“(e)having disordered joint mechanics affecting the lumbar spine before the clinical onset of lumbar spondylosis; or
…
(h)suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis; or
…”
“Disordered joint mechanics” is defined in the Lumbar Spondylosis SoP as:
“… maldistribution of loading forces on the lumbar spine that has resulted from:
(a) scoliosis, or
(b)loss or enhancement of the normal anterioposterior curvature of the vertebral column, or
(c) spondylolisthesis, or
(d) retrospondylolisthesis, or
(e) a deformity of a vertebra, or
(f) a deformity of a joint of a vertebra, or(g) necrosis of bone;”
“Trauma to the lumbar spine” is defined in the Lumbar Spondylosis SoP as:
“… a discrete injury to the lumbar spine that causes the development, within 24 hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the lumbar spine. These 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.”
background
10. The applicant was born on 3 August 1945. He had operational service in Vietnam from 12 December 1967 until 2 April 1968.
11. The applicant asserts that he sustained a back injury in the course of operational service and that his lumbar spondylosis is war-caused, pursuant to s 9 of the VE Act.
evidence before the tribunal
12. Mr Swan represented the applicant, and the Commission was represented by Mr Doube. The applicant gave evidence, and Mr Osti, an Orthopaedic Surgeon, also gave evidence on behalf of the applicant. Various exhibits were tendered in the course of the hearing, and where relevant the Tribunal will refer to them. The T documents were accepted into evidence.
13. The applicant’s evidence was that he served in Vietnam as a National Service conscript. He was posted to Nui Dat. He injured himself when he fell into a hole twisting his knee and jarring his back on 6 March 1968. He fell into a rubbish pit at the back of a kitchen and he fell onto the rim of a drum. He reported his injury to supervisors the next morning. He was sent first to Nui Dat for treatment where he was seen by a nurse. He was then sent on to Vung Tau for further medical assessment of his injuries, as there were more comprehensive medical facilities available at Vung Tau. His recall was that he told medics that he had hurt his knee and that he had injured his back.
14. The applicant said that no x-rays were taken at the time either at Nui Dat or Vung Tau. He was put on light duties for over a week and then returned to normal duties. He acknowledged that his major injury at the time was a knee injury, but he was convinced that he would have mentioned at the time that he also jarred his back in the fall. He was unable to explain why there were a number of reports in his service medical records of the incident and the injuries sustained, and at no stage was there any mention of a back injury or of any trauma to the back in the fall.
15. The applicant surmised that he may not have mentioned his back problems at Vung Tau because he was not happy about being there, but he was confident he would have mentioned it at Nui Dat. He referred to having “a niggle” in his back after this fall. He remained adamant that the back trauma suffered in the fall was the beginning of his back problem. He was unable to explain why there was no mention in any of his service records, including his discharge medical records [T4/46] of any injury to his back.
16. After returning to Australia, the applicant was discharged from the Australian Army (the Army), and he lodged a claim for a service pension for various conditions. The first claim for medical treatment and war pension was at T6, being a document dated 8 April 1968. There is no mention of any back problem in that document. He acknowledged that the first mention of a back problem was in a further claim at T11/81 dated 4 May 1995. The medical report in support of that particular application [T13/89] records that the applicant could not recall any specific incident which led to his back pain, but rather that he reported that there had been a prolonged deterioration. In evidence he could not recall whether that was a correct statement at the time.
17. Mr Osti, an Orthopaedic Surgeon, gave evidence on behalf of the applicant. He had written a number of reports all of which were contained in the T documents. Mr Osti first saw the applicant on 12 December 1995, but he no longer had his notes from that meeting. He relied on what was contained in his reports in the T documents. He did not specifically recall the first occasion that he saw the applicant. He saw him on referral from a general practitioner. Mr Osti’s findings were that the applicant was suffering from spondylosis affecting both the cervical and lumbar spine due to extensive non-specific degenerative changes. He explained to the Tribunal that such a spondylosis exhibits a different pattern to a spondylosis that is sustained as a result of a specific trauma to the spine. He was confident he would have taken a detailed history at the time, and if the applicant had alleged a particular injury to his back during service, he would have included that in his report.
18. Mr Osti was directed to his report of 17 July 1997 [T20/113] in which he postulated that an impaired gait and disability to the applicant’s right lower limb could have affected the mechanics of the lumbar spine, and could over a period of time trigger a lumbar spondylosis. Mr Osti clarified his position with respect to these observations, and said that it would need to be a chronic and persistent gait impairment over a period of time to give rise to a lumbar spondylosis. If someone limped on a relatively constant and long-term basis, then on the balance of probabilities, he considered it could have an affect on the lumbar spine. He confirmed he had no specific evidence of the applicant ever having suffered a degree of impaired gait, and he was making an assumption that he may have suffered impaired gait as a result of his lower leg injury.
19. The Tribunal also had regard to all the other medical evidence on file. The applicant’s Army service records were contained in the T documents at T4/11-49, and covered his entire period of service in the Army. At no stage in the medical record was there any mention of a back problem. The first report of the knee injury is at T4/38, where it reports “Last night fell into deep hole. Injury right knee. Too painful for adequate examination …”. It further notes that an x-ray showed no bony injury, and a diagnosis of minor damage to the medial meniscus was made. There is further mention of the knee injury upon his return to Australia. The knee was assessed by an orthopaedic consultant in May 1968 and a mild medial meniscus injury was the diagnosis [T4/44]. At no stage in his service medical record is there any mention of a back injury or problem. His final Army Medical Board Report, which was completed prior to discharge and which is signed by the applicant [T4/46], mentions only knee injuries sustained in the course of his Army service. In this final report he mentions a thumb injury, the knee injury and ulcers to his legs that he suffered in the course of service. He makes no mention of any back problem.
20. There were various other medical reports contained in the T documents. A report of Dr Wiadrowski at T13, the medical report which accompanied the applicant’s claim in 1995 when he first mentioned his back injury, states that the patient could not remember any specific incident leading to back pain.
21. Mr Osti’s first report of 12 December 1995 [T18/102] confirmed a lumbar spondylosis, and commented “It would be very difficult to be dogmatic about the specific effect of his service in the Australian Army with regard to establishment of the spondylotic changes”. The applicant did not allege any specific trauma to the back to Mr Osti.
22. Mr Osti’s report of 3 December 2004 states, in response to a question that was asked of him by the Commission “I have no evidence of Mr Jeffries having suffered from an impaired gait apart from the history given to me by Mr Jeffries of having injured his right leg as a result of hitting it onto a 44 gallon drum”.
23. In 1996 a report from Dr Raymond White, Rheumatologist, which is at T18 commented:
“…
At first, he denied any obvious precipitant or injury, but he later admitted that he developed problems with his right knee as well as his lower back after he fell into a pit in Vietnam in 1967. … it’s impossible to conclude that his previous Army service has been solely responsible for that, and that his subsequent work in the National Parks or other activities couldn’t have been contributing. …
24. This report contains the first mention of a trauma to the applicant’s back in the fall. It is notable that this first mention of back trauma in the fall occurred after a decision by the Commission to reject lumbar spondylosis as being a service related condition.
25. Mr Osti’s next report was dated 17 July 1997 [T20/113]. He commented once more that the applicant’s spinal condition was degenerative, and unlikely to be due to a single specific injury or accident. He did remark that it was:
“… probable that his two years in the Australian Army in the capacity as an Assault Pioneer would have contributed to accelerate and aggravate pre-existing degenerative changes with triggering of symptoms and related disability.”
He then went on to report:
“I am aware that Mr Jeffries had reported a specific incident in Vietnam when he had hit his leg onto a 44 gallon drum.
One could postulate that impaired gait and disability to his right lower limb would have affected the mechanics of the lumbar spine and contributed to his low back symptoms, even in the absence of specific complaints by Mr Jeffries at that stage.”
26. Dr Byrne, General Surgeon, first saw the applicant for medico-legal purposes on 20 February 2004. In his report dated 22 March 2004 [T27/141] he states:
“…
Mr Jeffries informed me that on the evening of 4th March 1968, he fell into a weapon pit at Nui Dat. Evidently this weapon pit was unmarked at night and he sustained acute pain and swelling in the right knee and also acute pain in the low back with limited range of movement
….”
27. Based on the history provided by the applicant that he had sustained an acute low back injury, and that he had continued to have low back pain and limitation in range of movements since that time, Dr Byrne found that factor 5(e) of the Lumbar Spondylosis SoP “having disordered joint mechanics affecting the lumbar spine before the clinical onset of lumbar spondylosis is relevant in this man’s case”.
28. In Mr Osti’s report of 3 December 2004, where he responded to questions put to him by the Commission, he addressed more specifically the issue of whether impaired gait and disability to the applicant’s right lower limb could have affected the mechanics of his lumbar spine, and contributed to his low back symptoms. He confirmed that the only history he had of the applicant ever having suffered an impaired gait was the history given to him by the applicant that he injured his right leg. He indicated that in the normal course he would have expected the spondylosis to have commenced in the mid to late 1970s. Disordered joint mechanics could contribute to the onset of lumbar spondylosis. This report must be seen in the context of Mr Osti’s further oral evidence.
consideration
29. As the applicant has performed operational service and the incident occurred during operational service, the standard of proof is as set out in ss 120(1) and (3) of the VE Act applies, as affected by s 120A of the VE Act.
30. Under S 120A of the VE Act in the case of an application lodged after 1 June 1994 where the Repatriation Medical Authority (RMA) has made a SoP in respect to the particular kind of injury or disease, the reasonableness of a hypothesis is to be assessed by reference to the SoP.
31. As the claimed condition of lumbar spondylosis is the subject of a SoP as set out, the test prescribed by s 120A(3) of the VE Act applies, as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 in the following way:
“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 ss 196B(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 s 120(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.”
32. I have considered all of the material before me and I am satisfied that the material points to a hypothesis connecting the condition of lumbar spondylosis with the applicant’s operational service. The hypothesis is that when the applicant sustained a fall in a pit in the course of operational service in Vietnam he suffered trauma to his back which has led to him developing lumbar spondylosis later in life.
33. As there is a SoP in this case I must undertake the third step of the analysis as enunciated in Deledio. This entails determining whether the relevant hypothesis complies with one or more of the factors referred to in the relevant SoP. This step involves considering all of the material before me, but without making any findings of fact at this stage of the process. The history given by a veteran to a medical practitioner can constitute material before the Tribunal for this purpose : Lees v Repatriation Commission (2002) 125 FCR 331.
34. Clause 4 of the Lumbar Spondylosis SoP provides that at least one of the factors set out in clause 5 of the SoP must be related to the relevant service (being operational service) by the veteran. In this case the Tribunal’s attention is drawn to factors 5(e) and (h) as being the only factors that could be applicable. These are the factors that must as a minimum exist before it can be said that a reasonable hypothesis can be raised connecting lumbar spondylosis with the circumstances of the applicant’s relevant service.
35. Factor 5(e) of the Lumbar Spondylosis SoP refers to having disordered joint mechanics affecting the lumbar spine before the clinical onset of lumbar spondylosis. There is evidence in the material before me in a report made by the applicant to Dr White [T18/104] that “pain in the knee has flared occasionally since then, causing him to limp at times”. The applicant relied on a limp as a possible link to the subsequent onset of lumbar spondylosis. Nevertheless when the definition of disordered joint mechanics as set out in the SoP is considered, there is nothing in the material before the Tribunal that indicates the applicant suffered disordered joint mechanics within the meaning of the SoP. The hypothesis linking disordered joint mechanics with the subsequent onset of lumbar spondylosis is not a reasonable one and any application based on that hypothesis must fail.
36. Factor 5(h) refers to a trauma to the lumbar spine. Once more the applicant’s evidence is that he suffered a trauma to the lumbar spine in the fall into a pit in Vietnam. He also reported to two medical practitioners, Dr Byrne and Dr White, a trauma to the spine in the fall. Based on Lees’ case this is material to be taken into account in determining the reasonableness of the hypothesis.
37. For the above reasons I consider that the hypothesis raised by the material before me could be consistent with factor 5(e) of the Lumbar Spondylosis SoP, and so by virtue of s 120(3) of the VE Act the hypothesis connecting the applicant’s lumbar spondylosis with the circumstances of his operational service is reasonable. The disentitling provision of s 120(3) of the VE Act does not apply.
38. I now turn to the fourth step in Deledio. This involves making findings of fact from the material before me bearing, in mind the provisions of s 120(1) of the VE Act to the effect that the claim will succeed unless I am satisfied, beyond reasonable doubt, that there is not sufficient ground for determining that the incapacity in question was war-caused.
findings of fact
39. The applicant was an unsatisfactory witness. He had either a very selective memory or a very poor memory. He was vague, inconsistent in his responses, and unable to provide any explanations for material before the Tribunal that was inconsistent with his evidence. He appeared to be guessing or assuming what had happened in the past, rather than relying on actual memory.
40. The issue of whether a trauma to the lumbar spine occurred in the fall is the central issue for the Tribunal to determine.
41. In considering trauma to the spine the Tribunal must have regard to the definition in the SoP. A trauma is defined in the SoP as:
“… a discrete injury to the lumbar spine that causes the development, within 24 hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the lumbar spine. These symptoms and signs must last for a period of at least seven days following their onset …”
42. The evidence before the Tribunal supports a finding beyond reasonable doubt that the applicant did not suffer a specific trauma to his lumbar spine when he fell in Vietnam. The evidence in support of this finding is set out as follows.
43. There was no report of back trauma at the time of the incident on 6 March 1968. A painful knee injury is noted and despite the applicant’s firmly held belief that no x-rays were carried out, x-rays were taken of his knee at the time. He was seen within the first 24 hours of the incident by two different medical teams.
44. Over the next two months, as the applicant prepared for discharge from the Army, he was medically examined on a number of occasions. The knee was investigated further and the knee injury noted in his discharge medical examination report. His back is not mentioned at any stage. In the final medical board he reported other injuries and difficulties he had experienced during service, but he did not mention any back problem or trauma.
45. In a medical report dated 4 July 1995, which was put forward in support of the pension application when the lumbar spondylosis was first mentioned, Dr Wiadrowski, the applicant’s general practitioner comments as follows:
“Patient cannot remember any specific incident leading to back pain but more a prolonged deterioration. This is in keeping with his x-ray which shows generalised degeneration of thoracic and lumbar spine” [T13/89]
46. In 1995 in a consultation with Mr Osti, on a referral from his GP (and not for medico-legal purposes), the applicant did not report any specific trauma to the spine in a fall.
47. Mr Osti’s view is that the lumbar spondylosis from which the applicant suffers is degenerative, and therefore unlikely to be due to a specific injury or accident.
48. The only mention of a trauma to the spine was by the applicant. This occurred in the context of a medico-legal consultation after he had already failed to persuade the Commission that his lumbar spondylosis was war-caused. In his first application for lumbar spondylosis to be included as a service related disability he specifically reported that there had been no specific trauma. There is no reasonable explanation given as to why he had omitted to mention this incident to any doctors for almost 30 years, and then suddenly remembered this trauma. The Tribunal does not accept the veracity of the applicant’s evidence on this point.
49. In the Tribunal’s view, based on the applicant’s evidence and on an examination of the whole of the evidence, the Tribunal finds as a fact that the applicant did not suffer any specific or discernible trauma to his spine within the definition of trauma as set out in the relevant SoP when he fell into the pit in Vietnam. Factor 5(e) of the Lumbar Spondylosis SoP is not satisfied, and the reasonable hypothesis is not made out.
50. The Tribunal is satisfied, beyond reasonable doubt, that there are not sufficient grounds for determining that the applicant’s condition of lumbar spondylosis was war-caused.
51. For these reasons the Tribunal affirms the decision under review.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell
Signed: ................J Coulthard...................................
AssociateDate of Hearing 23 May 2005
Date of Decision 19 August 2005
Counsel for the Applicant Mr C Swan
Solicitor for the Applicant Swan Lawyers
Counsel for the Respondent Mr G Doube
Solicitor for the Respondent DVA
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