Klahn and Repatriation Commission

[2005] AATA 857

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 857

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2004/422

VETERANS’ APPEALS  DIVISION		)
Re		ERICH KLAHN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Brigadier R D F Lloyd, Member

Date2 September 2005

PlacePerth

Decision

The Tribunal decides:

1.  to set aside the VRB decision under review in so far as it rejected lumbar spondylosis and to accept that condition as being war caused with effect from 9 June 2003; and

2.  to remit the matter of assessment of incapacity from that condition, together with all other previously accepted disabilities, to the respondent.

...............(sgd R D F Lloyd).................

Member

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ Entitlements – ex Royal Australian Navy – operational service FESR and Vietnam – claims lumbar spondylosis as war caused as consequence of injury sustained when descending ladder on board HMA Ship in 1961 – conflicting evidence but mitigating circumstances – raised hypothesis reasonable – claimed condition accepted as war caused – assessment remitted

Veterans’ Entitlements Act 1986 (Cth) ss 120(1), 120(3), 120A, 157(2)

Statement of Principle Concerning Lumbar Spondylosis (Instrument No 46 of 2002 as amended by Instrument No 77 of 2002)

Re Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Bey (1997) 149 ALR 721

REASONS FOR DECISION

2 September 2005 Brigadier R D F Lloyd, Member    

1.      This is an application before the Administrative Appeals Tribunal (“the Tribunal”) by Mr Erich Klahn (“the applicant”) for a review of that part of the 14 October 2004 decision of the Veterans’ Review Board (“VRB”) dealing with the condition of lumbar spondylosis.  The decision under review, in this respect, affirmed an earlier decision by the Repatriation Commission (“the respondent”) dated 20 March 2003, in so far as it rejected that condition as being war caused.

2.      The applicant attended the hearing and was not assisted by an advocate.  The Tribunal’s hearing procedure was accordingly adjusted to provide assistance to the applicant where appropriate.  The respondent was represented by Mr C Ponnuthurai.

3. The Tribunal had before it the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”). In addition the following documents were taken into evidence:

(a)At the request of the applicant:

·Exhibit A1:     Applicant’s Statement of Facts and Contentions dated 10 May 2005 (with attached Annexures A to G)

·Exhibit A2:     Bundle of Documents (14 pages) being Service Records of the Applicant.

(b)      At the request of the respondent:

·Exhibit R1:     Record of Ships Movements for HMAS Quickmatch for the period 23 September 1955 to 26 April 1963.

·Exhibit R2:     Writeway Research Service Report, re Claims by Erich Klahn, dated 27 April 2005.

4.      No respondent witnesses were called to give evidence.  The applicant gave oral evidence at the hearing, was questioned by the Tribunal and cross-examined by Mr Ponnuthurai.  The applicant gave his evidence in a relatively forthright manner and without the significant confusion and the discrepancies evident in his previously recorded recollection of Service events and history relevant to his claim.

Applicant’s Service and Related Matters of Law

5.      Mr Klahn served in the Royal Australian Navy (“the RAN”) from 1960 to 1966.  However, his eligible service under the Veterans’ Entitlements Act 1986 (“the Act”) is limited to the following periods, which have been deemed as operational service as defined under the Act:

(a)       HMAS Quickmatch

·30 November 1961 to 22 December 1961 )

·15 January 1962 to 25 January 1962         )       Malaya and

·29 January 1962 to 24 February 1962       )       Singapore

·2 March 1962 to 27 March 1962                 )

·25 January 1962 to 29 January 1962 - Deemed allotted for operational service in Vietnamese waters

(b)HMAS Supply

·24 February 1965 to 3 April 1965               )

·22 April 1965 to 7 May 1965  )       Malaysia,

·12 May 1965 to 24 May 1965  )       Singapore and

·31 May 1965 to 22 June 1965  )       Brunei

6. In view of the applicant’s eligible service being operational service, the matter before the Tribunal is to be determined in accordance with ss 120(1) and 120(3) of the Act. Under these provisions the Tribunal is required to decide whether, on the material before it, there is raised a reasonable hypothesis to connect the claimed condition relevantly with his service. If so it must determine, based on the facts, that the condition is war caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.

7. Additionally, as the claim was lodged after 1 June 1994, by virtue of s120A of the Act, the Tribunal is required to assess the matter in accordance with any relevant Statement of Principle (“SoP”) issued by the Repatriation Medical Authority (“the RMA”).

8.      The Tribunal’s consideration of the applicant’s claim for acceptance of the described low back condition follows the process set out in Repatriation Commissioner v Deledio (1998) 83 FCR 82.

Diagnosis of claimed condition

9.      As the initial step in this review process the Tribunal must be relevantly satisfied as to the appropriateness of the diagnosis and description of the claimed condition suffered by the applicant.  The standard of proof in this regard is that of reasonable satisfaction, i.e. the Tribunal must be satisfied on the balance of probabilities as to the diagnosis.

10. The medical opinion evidence provided in the T documents indicates that the back condition suffered by the applicant is lumbar spondylosis. This is common ground and the Tribunal is relevantly satisfied also. Additionally, documented medical as well as other evidence before the Tribunal indicates the clinical onset of the condition was at the latest in approximately 2001, when he received specific treatment, and at the earliest in the mid-1960s. In this case it is unlikely that a more accurate estimate of the onset of diagnosable lumbar spondylosis would assist the review process or affect its outcome.

Applicant’s Contention re Claimed Condition

11.     Mr Klahn’s contention at the time of his initial claim, dated 10 January 2003 (T4 page 31), was that his back condition was the result of an injury sustained when he slipped off a fixed ladder he was descending whilst on board HMAS Castlemaine, and for which he was then hospitalised “at Flinders Naval Base [HMAS Cerberus] 1962”.  Hence, it was claimed, his lumbar spine disability was service related.

12.     Subsequent to that initial claim made in January 2003 and an associated document “Claimant Report – Trauma – The Back” completed by the applicant in March 2003, Mr Klahn has amended that earlier contention.  He states that the fall from the ladder in fact occurred whilst he was serving in HMAS Quickmatch in December 1961, during a period designated as operational service.  He maintains that his claimed lumbar spondylosis condition should, as a result, be accepted as war caused – it having been contributed to in a material degree by this December 1961 injury.

13.     This second/current contention, from the applicant’s point of view, is intended to replace the first – which Mr Klahn states contains significant and obvious errors made by him at the time.  This appears, at least in part, to have contributed to the reason for the failure of his initial back claim with the respondent and also in his review by the VRB.  Mr Klahn has given detailed documented and oral reasons for these earlier errors, describing the highly disturbing circumstances in which he found himself over the period 1999 to 2004 in particular, including the effects on his mental health and clarity of thought.  This aspect is adequately covered in Exhibit A1, in evidence given orally to the Tribunal at its hearing (Tribunal transcript refers), and will not be repeated here.

14.     The Tribunal accepts the applicant’s contention as being that which refers to an incident/injury involving his lower back whilst on board HMAS Quickmatch in December 1961 on operational service.  The evidence related to this and also that concerning his initial (HMAS Castlemaine) contention/claim is in summary discussed further in paragraphs 19 to 22 of these Reasons.

15.     Following the process prescribed in Repatriation Commissioner v Deledio, the Tribunal considered the relevant material before it concerning the raised (Quickmatch) contention – but without at this stage making findings of fact.  As a consequence, the Tribunal is satisfied that the material adequately points to a hypothesis connecting the claimed lumbar spondylosis condition with circumstances of Mr Klahn’s eligible service.

Statement of Principles

16.     There is an SoP in force, determined by the RMA, dealing with lumbar spondylosis and it is common ground that this is Instrument No 46 of 2002, as amended by Instrument No 77 of 2002.  The relevant criterion in this case is 5(h) which states as follows:

“(h)      suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylitis; or …”

17.     Clause 8 of the SoP stipulates the definition of “trauma to the lumbar spine” as follows:

“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 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.”

18.     This SoP (as amended) is the SoP used in both the VRB decision under review and the initial decision by the respondent.  It remains current at the time of the Tribunal’s decision.

Evidence

19.     As to the applicant’s initial contention, when he earlier related the back injury to falling from a ship’s ladder on board HMAS Castlemaine, in the Tribunal’s opinion this was clearly an error (at least in location) by the applicant – albeit unusual for a sailor to mistake the ship he served on in this manner.  The Service records indicate no posting to that ship during his RAN service and this is confirmed by him also.  His subsequent evidence (and his current contention) is that the incident/injury of falling from the ladder occurred not on Castlemaine but on HMAS Quickmatch and was in December 1961.  He then had suffered recurring low back pain since that time, including a significant episode in 1965 when he was hospitalised while at HMAS Cerberus (“Flinders Naval Base”).  He says it was this that had led to the confusion and incorrectness in his initial claim and also in the back trauma report that followed.

20.     The Tribunal is concerned at the degree of inaccuracy and by elements of conflicting evidence, some of which is inadequately explained.  However it does not agree with any apparent assertion that may have been implied (eg. at the VRB hearing) about Mr Klahn in his earlier evidence being intentionally misleading or varying his recollection of the facts to suit (Exhibit A1 refers).  The respondent in fact acknowledged, as at July 2003, that the applicant had a fall involving his back on HMAS Quickmatch (T10 page 56). There is no Navy record of the actual incident/injury having been made at the time, presumably because he didn’t report it or seek formal treatment.  However there is ample evidence dated during 1964-65 in his Service documents referring to a fall down a ladder on Quickmatch, a resultant back injury and recurring low back pain, eg. T15 page 65 to 69 and Exhibit A1.  Clearly a fall/injury of the kind described occurred on HMAS Quickmatch in 1961 and not on HMAS Castlemaine – a specific error made by Mr Klahn in a period of exceptionally distressing and stressful circumstances, and explained by the applicant to the Tribunal’s satisfaction.

21.     The only evidence available to the Tribunal concerning the incident itself, when it occurred and the more immediate after effects of his fall from the ladder is that provided by the applicant himself.  This evidence is covered in a combination of documents – a Statutory Declaration at T14 page 63 and 64, Exhibit A1 and others, plus his oral evidence.  In summary the evidence is that:

(a)He was descending the ladder when he missed his footing and fell some four feet, landing on his backside.

(b)From a variety of documents and consequent deductions the timing of the incident was assessed to have occurred between departing Singapore on 18 December and arrival in Hong Kong on 22 December 1961.

(c)Initially, after his fall, Mr Klahn states that he thought he “… was paralysed and the pain was severe”.  For two or three minutes he couldn’t move.  When he could, his superior – a Petty Officer – assisted him to sit on a crate, which was in the boiler room, for the rest of the shift.

(d)When the shift finished he found that he could move but with difficulty.  He was not able to use a hammock, but managed to lie down on available benches.  He was informally given light duties which did not entail physical work affecting his back.  He was still in difficulty with back pain when the ship berthed in Hong Kong where he went ashore – initially walking to a club but found that caused so much pain that he had to return in a taxi.  He then did not go ashore again for over a month (including the ship’s late January 1962 visit to Saigon) because of the back pain associated with walking.

(e)He did not report his injury to the sick bay on board Quickmatch.  His stated reasons being that he did not want to be regarded as a malingerer, that he felt he would recover without treatment/medication, that he was coping, as he was being given light duties anyway, and additionally he believed there was no doctor on board.  There is however official evidence before the Tribunal that there was in fact a medical officer on board Quickmatch at that time, and throughout the applicant’s period of operational service on board that ship (Exhibit R2 – Writeway Research Service).  That Writeway report also opines that it would be unlikely that with a serious injury as contended, the applicant would not have been required to be seen by the ship’s doctor, treated and the injury recorded.

22.     In summary, the evidence concerning Mr Klahn’s subsequent and continuing back problems is as follows:

(a)On return to Australia he sought treatment outside the Navy system by seeing chiropractors, whose treatment gave him some relief.  He continued however to have worsening attacks and low back pain, and first sought treatment in the RAN in March 1964 when posted to HMAS Supply (T15 page 65).  He was, as earlier described, later hospitalised in 1965 for treatment of his back for a short period (T9 page 53 and Exhibit A1).

(b)His discharge from the Navy documentation notates the applicant’s spine as being “normal” (T3 page 22).  He gives no real explanation for this and the Tribunal’s experience is that this sort of discrepancy is not uncommon in such cases.  It is difficult to assess from the papers before it just how thoroughly the medical examinations were conducted in this regard.  Notwithstanding, the notation is duly noted by the Tribunal.

(c)In more recent times he has been seen by Dr G Deleuil, his LMO, who referred him in 2004 to Dr E Trinajstic, an orthopaedic surgeon, whose report is at T13 page 60 to 62.  Dr Trinajstic opines that:

“…The mechanism of injury of his fall and the fact that he landed on his buttocks should very strongly suggest to me that the sacroiliac joint is probably post traumatic and the result of a fall that he has had.  The fall would have probably irritated or upset his back, I cannot say that it is wholly responsible for the degenerative problems that he has had, but it is my experience that somebody who has had major trauma seems to get accelerated degeneration of the spine.  In that regard I believe it has probably contributed to the symptoms that he currently has. …”

23.     At the hearing the respondent’s representative opined that the first three steps of the Deledio process essentially had been met by the evidence given by the applicant.  That is, having determined the condition claimed, that:

·The material before the Tribunal does point to a hypothesis connecting the injury/disease to the applicant’s particular service.

·There is an SoP in force relevant to the claimed condition.

·The hypotheses raised is a reasonable one, that is, it fits the template of the SoP – in this case criterion 5(h).

Without at this point having made findings of fact the Tribunal, taking into account the material before it, agrees with Mr Ponnuthurai’s conclusion made on behalf of the respondent.

Tribunal’s findings

24.     From the evidence provided, the Tribunal finds as follows, concerning the applicant’s claim for acceptance of his lumbar spondylosis condition:

(a)The condition claimed is appropriately diagnosed and described as lumbar spondylosis and its clinical onset was subsequent to the injury contended as being a causal factor.

(b)The conflicting evidence initially provided by the applicant is regarded as unintentional and is acceptably explained by the circumstances which he was experiencing at the time.

(c)the incident of falling from a ship’s ladder occurred on HMAS Quickmatch when at sea in the period 18 to 22 December 1961, and that Mr Klahn experienced a trauma to his lumbar spine area of his back.

(d)As a consequence he suffered immediate symptoms and signs of severe pain and restricted mobility.  He was initially unable to walk and after a time of sitting was assisted to where he could lie down.

(e)His decision (and that of his immediate superiors) not to report to the sick bay and seek treatment at the time does raise a doubt in the Tribunal as to the severity of the injury at the time of the fall.  However the basis for the applicant’s decision in that regard, as provided in his documented and oral evidence, the Tribunal finds is plausible.

(f)The symptoms of signs of pain lessened in severity over a few days and his mobility also improved.  Nevertheless a considerable restriction on his walking mobility remained as did a significant level of pain for a period of approximately four weeks.

(g)His low back pain has continued to occur periodically with some restriction in full leg mobility.

25.     The Tribunal notes that the opinion of Dr Trinajstic that the applicant’s injury is causally related, albeit as a contributing factor, is not contested by equivalent medical evidence provided by the respondent.  The respondent’s opinion is that, whilst the applicant’s hypotheses may be reasonable, the evidence does not support an injury of sufficient severity having occurred to adequately meet the requirements of the SoP.

Conclusion

26. From the findings as outlined and reasons as summarised above and despite the elements of conflicting evidence involved, the Tribunal is satisfied beyond reasonable doubt that the injury sustained by the applicant to his lower back in December 1961 did contribute in a material degree to the development of his current lumbar spondylosis condition. This injury being during a period of operational service, the subsequent condition is regarded as war caused in terms of the Act.

27. As the applicant submitted his application for review by the VRB more than three months after the service on him of the decision of the respondent’s delegate, the earliest date in accordance with s157(2)(a)(ii) of the Act that his claim may be granted is six months prior to lodgement of the application to the Board. The effective date of acceptance of the lumbar spondylosis condition is 9 June 2003.

Decision

28. Pursuant to s43 of the Administrative Appeals Tribunal Act 1975 the Tribunal decides:

(a)To set aside the VRB decision under review in so far as it rejected lumbar spondylosis and to accept that condition as being war caused with effect from 9 June 2003.

(b)       To remit the matter of assessment of incapacity from this accepted condition of lumbar spondylosis, together with all other previously accepted disabilities, to the respondent.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Brigadier R D F Lloyd, Member

Signed:         ........(sgd N Wee).............................
  Associate

Date of Hearing  10 August 2005
Date of Decision  2 September 2005
Solicitor for the Applicant          Self represented
Advocate for the Respondent   Mr C Ponnuthurai