Jenkins and Repatriation Commission

Case [2001] AATA 24

DECISION AND REASONS FOR DECISION [2001] AATA 24

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W1998/393

VETERANS' APPEALS  DIVISION       )          
           Re      JOHN EDWIN LANDERS JENKINS      
  Applicant
           And    REPATRIATION COMMISSION  
  Respondent

DECISION

Tribunal       Associate Professor SD Hotop, Senior Member Brigadier RDF Lloyd, Member Dr D Weerasooriya, Member     

Date19 January 2001

PlacePerth

Decision      The Tribunal sets aside the decisions under review and, in substitution therefor, decides that: (a) the applicant's generalised anxiety disorder is a war-caused disease, within the meaning of s9(1) of the Veterans' Entitlements Act 1986 ("the Act"); (b) the applicant's lumbar spondylosis is a war-caused disease, within the meaning of s9(1) of the Act, and a defence-caused disease, within the meaning of s70(5) of the Act; and (c) the applicant is entitled to the special rate of pension, pursuant to s24 of the Act; with effect from 22 April 1997.

........- (sgd SD Hotop) -.........
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS - veterans' entitlements - disability pension - applicant served in Royal Australian Navy from 1959 to 1979 - applicant rendered operational services in Far East Strategic Reserve from March 1961 to March 1962 and in Vietnam from May 1965 to February 1969 - applicant rendered defence service from December 1972 to May 1979 - applicant sustained injuries in incident in 1961 during operational service - applicant sustained injuries in incident in 1978 during defence service - applicant's conditions of bilateral sensori-neural hearing loss, bilateral tinnitus and generalised anxiety disorder accepted by respondent as war-caused and disability pension paid to applicant at 70% of General Rate - applicant also suffers from lumbar spondylosis, cervical spondylosis, adhesive capsulitis of right shoulder and osteoarthrosis of both knees - whether those conditions war-caused or defence-caused - whether a reasonable hypothesis connecting each condition with circumstances of applicant's operational service - application of Statements of Principles - whether Tribunal satisfied beyond reasonable doubt that no sufficient ground for determining each condition to be war-caused - whether Tribunal satisfied on balance of probabilities that each condition connected with circumstances of applicant's defence service - whether Tribunal reasonably satisfied that each condition defence-caused - whether applicant entitled to special rate of pension - whether applicant's incapacity from war-caused or defence-caused conditions is of such nature as of itself alone to render applicant incapable of undertaking remunerative work for periods aggregating more than 8 hours per week - whether applicant prevented from continuing to undertake remunerative work by reason of incapacity from war-caused or defence-caused conditions alone - whether applicant thereby suffering loss of salary or wages that applicant would not be suffering if free of that incapacity.

Veterans' Entitlements Act 1986 ss9(1), 24, 70(5), 73, 120, 120A, 120B
Statements of Principles concerning Lumbar Spondylosis (Instruments Nos 165 and 166 of 1996)
Statements of Principles concerning Cervical Spondylosis (Instruments Nos 161 and 162 of 1996)
Statements of Principles concerning Adhesive Capsulitis of the Shoulder (Instruments Nos 69 and 70 of 1996)
Statements of Principles concerning Osteoarthrosis (Instrument No 71 of 1995 as amended by Instruments Nos…

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Jenkins and Repatriation Commission [2001] AATA 24
Case
[2001] AATA 24
Decision Date

CaseChat Overview and Summary

The case involves an applicant who served in the Royal Australian Navy between 1959 and 1979, rendering operational service in the Far East Strategic Reserve and Vietnam, and defence service from 1972 to 1979. The applicant lodged a claim for disability pension in respect of various conditions including generalised anxiety disorder and orthopaedic problems. The Repatriation Commission initially refused the claim but later determined that the applicant's generalised anxiety disorder was war-caused and increased the pension rate to 70%. The applicant sought review of these decisions before the Administrative Appeals Tribunal (AAT), arguing that his lumbar spondylosis, cervical spondylosis, adhesive capsulitis of the right shoulder, and osteoarthrosis of both knees were also war-caused or defence-caused.

The primary legal issues before the AAT were whether the applicant's conditions were war-caused or defence-caused, and whether the Tribunal was satisfied on the required standard of proof that the conditions were connected with the circumstances of the applicant's service. The AAT had to apply the relevant provisions of the Veterans' Entitlements Act 1986 and consider Statements of Principles concerning the specific conditions in question.

The AAT found that the applicant's lumbar spondylosis was connected with his operational service based on the reasonable hypothesis standard, as supported by his evidence and medical reports indicating a specific incident causing trauma to his lumbar spine. The AAT also determined that the lumbar spondylosis was defence-caused, and that the other conditions were defence-caused. The Tribunal concluded that the applicant was entitled to the special rate of pension as his incapacity from war-caused or defence-caused conditions rendered him incapable of undertaking remunerative work for more than 8 hours per week.

In summary, the AAT set aside the earlier decisions and determined that the applicant's generalised anxiety disorder was war-caused, his lumbar spondylosis was both war-caused and defence-caused, and he was entitled to the special rate of pension.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

At the hearing the applicant was represented by Mr A Vucak, solicitor, and the respondent was represented by Mr C Ponnuthurai, a departmental advocate. The Tribunal had before it the documents ("T documents", comprising T1 –T17, pp 1 – 176) lodged by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and various documentary exhibits (marked A1 – A16) tendered by the applicant. Oral evidence was given by the applicant. There were no other witnesses.The factual background The relevant background facts as found by the Tribunal on the basis of the T documents, and about which there is no dispute between the parties, are as follows. The applicant, who was born on 14 September 1939, served in the Royal Australian Navy from 21 May 1959 to 31 May 1979. The applicant rendered "operational service", within the meaning of the Act, in the following periods:24 March 1961 – 17 April 1961 }22 April 1961 – 14 May 1961 } Far East24 June 1961 – 6 July 1961 } Strategic Reserve6 March 1962 - 19 March 1962 }31 May 1965 – 22 June 1965 }20 December 1967 – 3 January 1968 }17 January 1968 – 16 February 1968 }27 March 1968 – 26 April 1968 } Vietnam21 May 1968 – 13 June 1968 }13 November 1968 – 28 November 1968}8 February 1969 – 25 February 1969. } On 22 July 1997 the applicant lodged with the Department of Veterans' Affairs a Claim for Disability Pension in respect of disabilities described as "generalised anxiety disorder" and "orthopaedic problems". On 25 November 1997 a delegate of the respondent refused the applicant's claim. On 7 January 1998 a senior delegate of the respondent, pursuant to s 31 of the Act, reviewed the decision of 25 November 1997 and decided that the applicant's condition of generalised anxiety disorder was war-caused, and that he was entitled to disability pension at the rate of 50% of the General Rate, with effect from 22 April 1997. On 12 February 1998 the senior delegate conducted a further review under s31 of the Act and decided that, having regard to the applicant's other accepted disabilities of bilateral sensori-neural hearing loss and bilateral tinnitus, the rate of disability pension payable to him be increased to 70% of the General Rate, with effect from 22 April 1997. On 4 August 1998 the VRB affirmed the abovementioned decisions of the delegate and senior delegate of the respondent. On 30 September 1998 the applicant applied to the Tribunal for review of the abovementioned decisions of the delegate and senior delegate of the respondent, as affirmed by the VRB.The applicant's evidence A Statement of Evidence of the applicant, dated 28 July 1999, was tendered in evidence (Exhibit A1). That statement is as follows:"…2. I served with the Royal Australian Navy from 1959 to 1979. During that time I rendered operational service in the Far East Strategic Reserve and in Vietnam.3. I first joined the HMAS Queenborough in Sydney in 1960. I spent two years on this vessel which had been an old World War Two destroyer converted to a frigate in the 1950s. 4. During my time on the vessel I was involved with storing the vessel with provisions and meat and also with making issues from the storerooms and fridges to galleys and pantries. This involved lifting and carrying carcasses of beef, pork and lamb and heavy provision items throughout the ship. The storerooms and fridges were mostly below the waterline of the ship and therefore you had to climb up and down vertical and angled ladders while carrying the stores. As a junior member of the staff all the heavy stores work was done by myself with occasional assistance.5. I spent a short time next on the HMAS Penguin and Harman.6. In December 1963 I joined the HMAS Vampire. This had a crew of approximately 330. I spent two years aboard this vessel, firstly as acting leading hand and then later as leading hand. The ship carried much the same stores as the HMAS Queenborough and once again the storerooms were also all below the waterline, therefore I had to do a lot of climbing.7. In August 1965 I joined the HMAS Moresby and was made a Petty Officer. I was very hard working and always wanted to impress my superior officers. My whole life revolved around making the grade and being consistent in all types of situations. I was rewarded by being made a Petty Officer.8. From the HMAS Moresby I joined HMAS Cerberus and then HMAS Sydney. I joined HMAS Sydney in December 1967 as a Petty Officer and was promoted to Chief Petty Officer in February 1969 on the HMAS Sydney. I joined the HMAS Penguin in March 1969 and in December 1971 went back to the HMAS Melbourne (sic). I went back to the HMAS Penguin in January 1973. I was involved in stores work during all these periods as well as handling the meat supplies and I was also responsible for handling other heavy supplies. It was not uncommon to carry heavy weights such as 150-pound bags of potatoes up and down vertical and angled ladders.9. In January 1975 I joined the HMAS Leeuwin as Canteen Manager. I was promoted to Warrant Officer in September 1976. I then spent some time at HMAS Platypus and HMAS Melbourne. My final period of service was spent at HMAS Platypus. I was discharged on 31 May 1979 as a Warrant Officer.10. During my time in the service I became very ambitious and would not let anything stand in my way.11. The lay-out of most of the vessels was very similar. You would always find the storerooms were serviced by vertical ladders because they were low down in the ship. The transferring of stores on the ship would usually take about one third of my day. I was also required for watch duty, particularly night watch.12. I can clearly recall a specific incident when I was carrying a heavy load of onions and potatoes. Due to bad weather I ended up falling down the ladder and having the 150-pound bag of potatoes fall on top of me.13. There were many occasions when I couldn't get myself into my hammock because my back was so sore. I quite often needed assistance to get into and out of it.14. I recall that whenever you felt ill, you never went to sick bay. Sick bay was only for those seriously injured. If you went to sick bay, fellow seamen would think that you were weak and/or had some terrible incurable disease, and importantly, you might jeopardise your shore leave. If you weren't medically fit you would not be permitted to go ashore.15. Even though there was always a sick bay, there was not always a medical officer on board.16. I would often trade items that I had for aspirins or something to rub into my muscles. I would also not want to jeopardise my beer issue. If you were on medication, your beer issue would be stopped.17. When I left the navy, I was supposedly medically fit. However, during my service I had had poor medical assistance.18. I went to work as a Ship Chandler in Fremantle. I spent about two years with Ship Stores Australia and I then went to work for Bateman's Ship Stores. In 1984 that company was sold so I went to work for Sealanes.19. I worked for Sealanes until 1989. I then went to work for Stateships. When they went under I went back to Sealanes.20. I can recall having real problems with my back around 1982. In about 1983 I started to see a chiropractor. I saw him until about 1995 for my back and neck problems.21. In 1995 I had an accident at work, but didn't even realise I had hurt myself. By this stage however, things were becoming far too much for me mentally. I could not cope any more at work.22. I have taken pain relief such as panadeine regularly throughout my naval service and since my discharge.23. I am very restricted in the things I can now do. I cannot bend over in the garden. I don't really have anything else to do.24. I can't lift many things. I can't run quickly. I can't launch my dinghy and so I no longer use it. I mix with few friends and I find I cannot drive long distances.25. I believe that the back, knee and shoulder conditions I now suffer have been caused from both the operational and defence service I undertook with the Royal Australian Navy.26. I make this statement to the best of my knowledge and ability and am aware that if I have knowingly made any false or misleading statements that I shall be guilty of a criminal offence."

Evidence

Evidence Before The Court

On 30 September 1998 the applicant applied to the Tribunal for review of the abovementioned decisions of the delegate and senior delegate of the respondent, as affirmed by the VRB.The applicant's evidence A Statement of Evidence of the applicant, dated 28 July 1999, was tendered in evidence (Exhibit A1). That statement is as follows:"…2. I served with the Royal Australian Navy from 1959 to 1979. During that time I rendered operational service in the Far East Strategic Reserve and in Vietnam.3. I first joined the HMAS Queenborough in Sydney in 1960. I spent two years on this vessel which had been an old World War Two destroyer converted to a frigate in the 1950s. 4. During my time on the vessel I was involved with storing the vessel with provisions and meat and also with making issues from the storerooms and fridges to galleys and pantries. This involved lifting and carrying carcasses of beef, pork and lamb and heavy provision items throughout the ship. The storerooms and fridges were mostly below the waterline of the ship and therefore you had to climb up and down vertical and angled ladders while carrying the stores. As a junior member of the staff all the heavy stores work was done by myself with occasional assistance.5. I spent a short time next on the HMAS Penguin and Harman.6. In December 1963 I joined the HMAS Vampire. This had a crew of approximately 330. I spent two years aboard this vessel, firstly as acting leading hand and then later as leading hand. The ship carried much the same stores as the HMAS Queenborough and once again the storerooms were also all below the waterline, therefore I had to do a lot of climbing.7. In August 1965 I joined the HMAS Moresby and was made a Petty Officer. I was very hard working and always wanted to impress my superior officers. My whole life revolved around making the grade and being consistent in all types of situations. I was rewarded by being made a Petty Officer.8. From the HMAS Moresby I joined HMAS Cerberus and then HMAS Sydney. I joined HMAS Sydney in December 1967 as a Petty Officer and was promoted to Chief Petty Officer in February 1969 on the HMAS Sydney. I joined the HMAS Penguin in March 1969 and in December 1971 went back to the HMAS Melbourne (sic). I went back to the HMAS Penguin in January 1973. I was involved in stores work during all these periods as well as handling the meat supplies and I was also responsible for handling other heavy supplies. It was not uncommon to carry heavy weights such as 150-pound bags of potatoes up and down vertical and angled ladders.9. In January 1975 I joined the HMAS Leeuwin as Canteen Manager. I was promoted to Warrant Officer in September 1976. I then spent some time at HMAS Platypus and HMAS Melbourne. My final period of service was spent at HMAS Platypus. I was discharged on 31 May 1979 as a Warrant Officer.10. During my time in the service I became very ambitious and would not let anything stand in my way.11. The lay-out of most of the vessels was very similar. You would always find the storerooms were serviced by vertical ladders because they were low down in the ship. The transferring of stores on the ship would usually take about one third of my day. I was also required for watch duty, particularly night watch.12. I can clearly recall a specific incident when I was carrying a heavy load of onions and potatoes. Due to bad weather I ended up falling down the ladder and having the 150-pound bag of potatoes fall on top of me.13. There were many occasions when I couldn't get myself into my hammock because my back was so sore. I quite often needed assistance to get into and out of it.14. I recall that whenever you felt ill, you never went to sick bay. Sick bay was only for those seriously injured. If you went to sick bay, fellow seamen would think that you were weak and/or had some terrible incurable disease, and importantly, you might jeopardise your shore leave. If you weren't medically fit you would not be permitted to go ashore.15. Even though there was always a sick bay, there was not always a medical officer on board.16. I would often trade items that I had for aspirins or something to rub into my muscles. I would also not want to jeopardise my beer issue. If you were on medication, your beer issue would be stopped.17. When I left the navy, I was supposedly medically fit. However, during my service I had had poor medical assistance.18. I went to work as a Ship Chandler in Fremantle. I spent about two years with Ship Stores Australia and I then went to work for Bateman's Ship Stores. In 1984 that company was sold so I went to work for Sealanes.19. I worked for Sealanes until 1989. I then went to work for Stateships. When they went under I went back to Sealanes.20. I can recall having real problems with my back around 1982. In about 1983 I started to see a chiropractor. I saw him until about 1995 for my back and neck problems.21. In 1995 I had an accident at work, but didn't even realise I had hurt myself. By this stage however, things were becoming far too much for me mentally. I could not cope any more at work.22. I have taken pain relief such as panadeine regularly throughout my naval service and since my discharge.23. I am very restricted in the things I can now do. I cannot bend over in the garden. I don't really have anything else to do.24. I can't lift many things. I can't run quickly. I can't launch my dinghy and so I no longer use it. I mix with few friends and I find I cannot drive long distances.25. I believe that the back, knee and shoulder conditions I now suffer have been caused from both the operational and defence service I undertook with the Royal Australian Navy.26. I make this statement to the best of my knowledge and ability and am aware that if I have knowingly made any false or misleading statements that I shall be guilty of a criminal offence."

Decision

Reasons for decision

The Tribunal also finds that, pursuant to s20(1) of the Act, the special rate of pension is payable to the applicant with effect from 22 April 1997 – that is, the date 3 months before his claim for disability pension was lodged with the Department of Veterans' Affairs.Decision For the above reasons the Tribunal sets aside the decisions under review and, in substitution therefor, decides that:·the applicant's generalised anxiety disorder is a war-caused disease, within the meaning of s9(1) of the Act;·the applicant's lumbar spondylosis is a war-caused disease, within the meaning of s9(1) of the Act, and a defence-caused disease, within the meaning of s70(5) of the Act; and·the applicant is entitled to the special rate of pension, pursuant to s24 of the Act;

Ratio Decidendi

Legal Principle Established

A Statement of Principles ("SoP") has been determined under subss 196B(2) and 196B(3) of the Act in relation to each of the relevant conditions said to be suffered by the applicant. The relevant provisions of each of those SoPs will be set out below in the context of the discussion of each of the applicant's claimed conditions. In the case of each condition the relevant SoP is that which was in force when the primary decision was made by the delegate of the respondent on 25 November 1997: Repatriation Commission v Keeley (2000) 98 FCR 108.Findings on material questions of fact and consideration of issue It is common ground that the applicant suffers from the following relevant conditions, namely, a lower back condition, a neck condition, a right shoulder condition, and a knee condition.The Lower Back Condition On the basis of the medical evidence before it, the Tribunal finds that the applicant suffers from the condition of lumbar spondylosis. The question is whether that condition is war-caused or defence-caused, within the meaning of the Act. As regards the question whether the applicant's lumbar spondylosis is war-caused, in the case that it is connected with the circumstances of his operational service, the appropriate standard of proof to be applied by the Tribunal is that of reasonable hypothesis in accordance with subss 120(1) and 120(3), together with subs 120A(3), of the Act. In applying that standard of proof, the Tribunal will proceed in accordance with the 4–stage approach outlined by the Federal Court of Australia (Full Court) in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97–98. First, does the material before the Tribunal point to a hypothesis connecting the applicant's lumbar spondylosis with the circumstances of his operational service? The Tribunal finds that the applicant's evidence (which was uncontradicted and which the Tribunal accepts) and the statutory declaration of Pastor Sparrowhawk (Exhibit A10), together with the medical reports of Mr P C Anderson (Exhibit A2, pp 27–30), do point to a hypothesis connecting the applicant's lumbar spondylosis with the circumstances of his operational service – specifically, the incident on board HMAS Queenborough at about the end of June 1961 when the applicant fell down a hatch landing on top of the butcher (Sparrowhawk), described in paragraph 15 above. The relevant SoP concerning Lumbar Spondylosis which is applicable in this case is Instrument No 165 of 1996 which relevantly states:"…Basis for determining the factors 3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that lumbar spondylosis and death from lumbar spondylosis can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.Factors that must be related to service4. 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.Factors5. 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 definitions7. For the purposes of this Statement of Principles:…'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. ……".