Johnston and Repatriation Commission

[2007] AATA 1372

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1372

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           N2006/0422

VETERANS' APPEALS DIVISION		)
Re		ROBERT JOHNSTON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Senior Member M D Allen

Dr S H Toh, Member

Date28 May 2007

Place  Sydney

Decision     The decision under review is AFFIRMED.

..................[sgd].........................

M D Allen
  Presiding Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – whether Applicant’s condition of cervical spondylosis is war-caused – operational service – Statement of Principles Instrument No.50 of 2002 – debate as to the clinical onset of the Applicant’s cervical spondylosis – Tribunal satisfied that the material before it does not point to a hypothesis connecting the Applicant’s cervical spondylosis with his operational service – the decision under review is affirmed

Veterans' Entitlements Act 1986 - s 120, 120A

Repatriation Commission v Gorton 110 FCR 321

Repatriation Commission v Cornelius [2002] FCA 750

Repatriation Commission v Deledio (1998) 83 FCR 82

Cameron v Repatriation Commission [2003] FCA 1323

South Western Sydney Area Health Service v Edmonds [2007] NSW CA 16

REASONS FOR DECISION

28 May 2007 Senior Member M D Allen
Dr S H Toh, Member          

1.      In this matter the Applicant seeks review of the decision of the Respondent rejecting his claim to have cervical spondylosis recognised as a war-caused disease.

2.      There is no dispute that the Applicant is a veteran who had operational service, albeit for a period of some 88 days in total over five separate periods. Likewise, there is no dispute that the correct diagnosis of the Applicant’s condition is cervical spondylosis.

3.      The issue in this matter is whether the material before the Tribunal has raised a reasonable hypothesis connecting the Applicant’s cervical spondylosis with his operational service.

4.      If a reasonable hypothesis has been raised, then as the Applicant had operational service, subsection 120(1) of the Veterans’ Entitlement Act 1986 (“the VEA”) mandates that this Tribunal must grant his claim unless satisfied that the facts upon which the hypothesis is based have been negatived beyond reasonable doubt.

5.      Any hypothesis raised will not be “reasonable” for the purposes of the VEA unless it conforms to a so-called Statement of Principles (“SoP’), issued pursuant to sections 196 and 120A of the VEA.

6.      In this matter, two SoPs apply. The SoP currently in force is Instrument No.33 of 2005. Both parties to this review agreed that as that SoP was not as favourable to the veteran as Instrument No.50 of 2002, being the SoP in force at the time the Respondent made its original decision, then the Tribunal must have regard to that SoP as well: see Repatriation Commission v Gorton 110 FCR 321.

7.      Instrument No.50 of 2002 defines cervical spondylosis as “degenerative changes affecting the cervical vertebrae or intervertebral discs, causing local pain and stiffness or symptoms and signs of cervical cord or cervical nerve root compression, but excludes diffuse idiopathic skeletal hyperostosis”. Factor 5(e) of the factors giving rise to causation was relied upon by the Applicant as raising the hypothesis of connection with operational service, namely, “having disordered joint mechanics affecting the cervical spine before the clinical onset of cervical spondylosis”.

8.      The term “disordered joint mechanics” is defined in Instrument No.50 of 2002 as follows:

“disordered joint mechanics” means maldistribution of loading forces on the cervical 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 or a vertebra, or

(f)a deformity of a joint of a vertebra, or

(g)necrosis of bone.”

9.      A disease is said to have its “clinical onset” either when a person becomes aware of some sign or symptom which enables a medical practitioner to say the disease was present at that time, or when a finding is made on investigation which is indicative to a medical practitioner of the disease being present: see Repatriation Commission v Cornelius [2002] FCA 750.

10.     Whereas the Applicant does suffer from both lumbar and thoracic spondylosis, which diseases have been accepted as being war-caused, there is some debate regarding the clinical onset of the Applicant’s cervical spondylosis. Professor Y.A.E. Ghabrial in evidence opined that clinical onset of the Applicant’s cervical spondylosis was “most likely before the lumbar spondylosis”. Dr Millons, on the other hand, stated that it was difficult to say what came first, but that it was reasonable to opine that the cervical, thoracic and lumbar spondylosis all occurred at the same time, albeit that the Applicant’s lumbar spondylosis was the first to become symptomatic.

11.       The definition of disordered joint mechanics in the SoP refers to the mal-distribution of loading forces on the cervical spine. In-chief, Dr Millons was asked if the Applicant did have mal-distribution of forces on the cervical spine and replied that he did not as he had a direct vertebral column with no abnormal curves.

12.     Professor Ghabrial opined in his second report that the Applicant satisfied factor 5(e) – having disordered joint mechanics affecting the cervical spine before the onset of cervical spondylosis. That opinion was simply stated as a fact, and no explanation was given as to how he came to that opinion. We note that in his first report Dr Ghabrial nominated “activities during his service in the Navy” as the source of the Applicant’s orthopaedic disabilities.

13.     On their own, the reports of Dr Ghabrial may have raised a reasonable hypothesis in that they refer to factor 5(e) in  the SoP, and as was pointed out in Repatriation Commission v Deledio (1998) 83 FCR 82, fact finding is an impermissible exercise at step 3 of the so-called Deledio 4 step process.

14.     However, as was pointed out by Allsop J in Cameron v Repatriation Commission [2003] FCA 1323, at para 46, the Tribunal has the mandatory task of weighting all the evidence and coming to a factual conclusion as to the reasonableness of the hypothesis.

15.     Professor Ghabrial stated in evidence-in-chief that the Applicant’s cervical spondylosis had its onset most likely before the lumbar spondylosis. In those circumstances it is difficult to see how the lumbar (or thoracic) spondylosis caused or contributed to the cervical spondylosis.

16.     Further, Professor Ghabrial gives no explanation in his second report as to how factor 5(e) actually operated so as to cause or contribute to the Applicant’s cervical spondylosis; his report is a mere conclusion, and as such advances the matter little: see South Western Sydney Area Health Service v Edmonds [2007] NSW CA 16, at para 6, 130 and 132.

17.     Dr Millons considered that the loading forces, referred to in the definition of “disordered joint mechanics”, meant loading forces on the cervical spine, such as the weight of the head or the neck. He added that he could not think of any other way you could load the cervical spine, apart from carrying something on your head. We agree the definition is not simply referring to positioning of the cervical spine but refers to forces on the spine. Dr Millons went on to say that none of the particular instances of causation referred to in the definition applied to the Applicant for the reasons he gave in evidence. In addition, given that the Applicant has cervical, thoracic and lumbar spondylosis, we accept Dr Millons’ opinion that the Applicant’s diseases of the spinal column are caused by degenerative changes alone.

18.     The Applicant was examined by Professor Sambrook, Professor of Rheumatology at Royal North Shore Hospital, on 13 September 2004. On examination he noted the Applicant had a normal posture. Dr Millons also noted that the Applicant’s spine was upright, or as he put it in evidence-in-chief, the Applicant had an erect vertebral column, no abnormal curve, and thus there was no mal-distribution of loading forces.

19.     Given the material before us, we find as a fact, that the said material does not point to a hypothesis connecting the Applicant’s cervical spondylosis with the circumstances of his service in the Royal Australian Navy.  We based that finding upon the evidence of Dr Millons, supported by the report of Professor Sambrook which makes it clear that the relevant SoP can have no application to this Applicant. The decision under review is therefore affirmed.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M.D. Allen

Signed:

[Mwela Kapapa]
.....................................................................................

Associate

Date/s of Hearing  19 & 20 April 2007

Date of Decision  28 May 2007

Counsel for the Applicant  Ms E. Wood

Solicitor for the Applicant  Veterans’ Advocacy Service, Legal Aid Commission of New South Wales

Representative for the Respondent     Department of Veterans’ Affairs, Advocacy Section