Knauer and Repatriation Commission
[2001] AATA 69
•5 February 2001
DECISION AND REASONS FOR DECISION [2001] AATA 69
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/152
VETERANS' APPEALS DIVISION )
Re WILLIAM KNAUER
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr J D Campbell, Member
Date5 February 2001
PlaceSydney
Decision The Tribunal determines that the decision under review be set aside in so far as it relates to the condition of lumbar spondylosis and in substitution therefor determines that: (a) the condition of lumbar spondylosis is a war-caused disability; and (b) the matter be remitted to the Respondent for assessment of the war-caused disability of lumbar spondylosis.
..............................................
Dr J D Campbell
Member
CATCHWORDS
VETERANS' ENTITLEMENTS - operational service - lumbar spondylosis - smoking –
gastro-oesophageal reflux disease
REASONS FOR DECISION
Dr J D Campbell, Member
Mr William Knauer ("the Applicant") in this matter seeks a review of the decision of the Veterans' Review Board dated 28 June 1999 which affirmed the decision of the Repatriation Commission ("the Respondent") dated 30 October 1995. That decision refused claims for lumbar spondylosis, gastro-oesophageal reflux disease, solar keratosis, nasal polyps, chronic sinusitis, hiatus hernia and deflected nasal septum, but allowed the claims for bilateral sensorineural hearing loss and generalised anxiety disorder and reassessed pension at 50% of the General Rate.
A hearing was held before the Tribunal on 6 September 2000 at which the Applicant was represented by Ms Buss, an advocate from the Veterans' Advocacy Service. The Respondent was represented by Mr Modder, a solicitor from the Department of Veterans' Affairs.
The following material was placed in evidence before the Tribunal:
Exhibit No Description
T1-T22, pp1-101 Documents prepared pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975
A1 Statement of Mr W Knauer dated 24 August 1999
A2 Letter from Defence Personnel Executive dated 10 June 1999
A3 Medical Report Dr Harding Burns dated 22 June 1999
A4 Medical Report of Dr Read dated 9 June 1999
A5 Medical Report of Dr Read dated 29 September 1999
A6 Bundle of x-ray reports re the Applicant
A7 Applicant's statement of facts and contentions dated 18 January 2000
R1 Veterans' Review Board decision dated 28 June 1999
R2 Medical Report Dr Hume dated 16 February 2000
R3 Clinical Report Professor Mattick dated 21 February 2000
R4 Respondent's amended statement of facts and contentions dated 6 September 2000
.
Issue
The relevant issues remaining in this matter are whether :
(a) the Applicant's conditions of lumbar spondylosis and gastro-oesophageal reflux disease are war caused disabilities; and
(b) if such disabilities are found to be war caused, what is the appropriate assessment for each disability.
Legislation
The relevant legislation in this matter is the Veterans' Entitlements Act 1986 ("the Act") and in particular ss120(1), 120(3) and 120A.
BackgroundThe Applicant lodged his formal claim with the Respondent on 30 May 1995 and on 30 October 1995 the Respondent notified the Applicant that he had accepted the claim for bilateral sensorineural hearing loss and rejected his claim for lumbar spondylosis, depressive disorder, gastro-oesophageal reflux disease, hiatus hernia, solar keratoses, deflected nasal septum, nasal polyps and chronic sinusitis. Pension was granted at 10% of the General Rate with effect from 28 February 1995 (T2).
Following a review of this decision by the Veterans' Review Board and in a decision dated 28 June 1999, the Applicant was partly successful in that his generalised anxiety disorder was found to be war caused, while the remainder of his non accepted conditions were rejected. Disability pension was assessed at 40% of the General Rate, with effect from 28 February 1995 (Exhibit R1).
In seeking review before this Tribunal, the Applicant has appealed only two conditions, namely lumbar spondylosis and gastro-oesophageal reflux disease. Both the Applicant and the Respondent concur that if either or both conditions are found to be war caused disabilities, that for the purpose of assessment the matter be remitted to the Respondent. Further the Tribunal was advised by the Applicant that lumbar spondylosis was the correct diagnosis in relation to the lower back.
The Applicant stated that he was born on 18 May 1929, and entered naval service on 26 October 1950 serving initially for recruit training at HMAS Cerberus, followed by a further period of training on HMAS Australia, and thereafter on the following ships: HMAS Quickmatch, HMAS Cowra, HMAS Quiberon, HMAS Culgoa and finally on HMAS Balmoral till his discharge in 1956. On HMAS Culgoa the Applicant stated that he saw operational service in the Korean waters between 14 March 1953 and 27 November 1953.
In relation to his lumbar spondylosis the Applicant stated that while on HMAS Culgoa on operational service he was an able seaman on the upper deck and that it was common for sailors to fall down ladders and experience other falls. In regard to a particular incident, the Applicant remembers that whilst being on guard duties off the Korean coast, "we were ordered to go to the port side in a hurry, because there were North Korean junks nearby and the officer of the watch was concerned about mines being placed alongside the ship .. ." The Applicant further stated:
"In my haste, I slipped on the wet deck and fell on my buttocks. I sat there, in pain, for what seemed like a few minutes, until a leading seaman told me to go to the sick bay. However, the officer of the watch, who overheard him, ordered me to stay at my post and attend to my fall when things had calmed down.
I received medication (the name of which I don't know) to ease the pain that night. For about the next three weeks I had to sleep on the metal bench seating along the bulkhead, or on some metal seating lockers or on the mess deck table. I remember this particularly, because I had to wake and move if someone needed to get gear out of his locker.
The reason that I had to sleep on the lockers etc was that I could not sleep in my hammock, which was slung four feet or more from the ground, because back stiffness and pain going down the right side of my upper leg, made it impossible for me to climb into. It was some weeks before I could again get up into my hammock.
… " (Exhibit A1).
In response to further questions, the Applicant stated that it was a wet night when the event occurred and they rushed to the other side of the ship because of a fear of a limpet mine being attached. It was during this rush that he slipped, went down and felt a twinge on his coccyx. Initially there was some pain, but he carried on as ordered by the officer of the watch, with the pain continuing in his lower back and legs for a couple of weeks. During this time he slept on metal lockers and had his duty changed to that of messman to Master of Arms, which was essentially the job of a postman. The Applicant stated that it was some weeks before he could go ashore.
After his return to civilian life the Applicant stated that he worked for Qantas, and then ran his own sports store prior to working in stores for Sydney County Council for three years. The Applicant said that he worked for the Commonwealth Bank as a stores manager between 1974 and 1981, with five of these years being spent in Melbourne (1970-1974).
The Applicant stated to the Tribunal that he first received treatment for back pain in the early sixties from his general practitioner, Dr Alexander, while working for Qantas. He believed the treatment involved physiotherapy and indocid. It is noted that in the report of Dr Harding Burns, the date for this is 1957, which is more adjacent to his period of employment at Qantas (Exhibit R2). The Applicant told the Tribunal of an injury to his back while working for the bank in Melbourne in the 1970' and that he was treated at the Dandenong hospital. He thereafter received compensation payments for some years prior to moving to full superannuation in 1981, having been found medically unfit for further employment with the bank.
In response to questions in cross-examination, the Applicant stated that prior to service he had had a farming background and had played cricket. He confirmed that sailors suffered a lot of slips and falls in the Navy, and that he had two prior to the incident and that he had suffered no injuries as a result of either. Further, after the particular incident and when he did report to the sick bay attendant, he was given aspirin and light duties for four to five weeks, as well as being relieved of all night duties. The Applicant also stated that he first had his back x-rayed in 1958 (approximately).
In relation to his smoking the Applicant stated that he was a non-smoker prior to service and that he commenced smoking while at HMAS Cerebrus where he smoked 20 a day. His smoking increased when aboard the various ships on which he served, commencing with HMAS Australia where he smoked 40 cigarettes a day On board HMAS Culgoa it rose to 40/50 cigarettes a day on occasions, as smoking seemed to ease the stress of particular incidents, One of these was when the Applicant was confined to sick bay because of burnt feet, he was ordered by the medical officer to restrain a South Korean pilot who had been shot down while the Doctor removed pieces of teeth and bone from the pilot's face. The Applicant stated that he found this traumatic and stressful and he continues to remember it to this day as well as sometimes having nightmares about it. The Applicant said that he continued to smoke an average of 50 or more cigarettes a day until he ceased smoking in 1964.
The Applicant further stated that he remembers suffering some episodes of indigestion on HMAS Culgoa. After leaving the Navy, he sought treatment from Dr Alexander and while treatment with Gaviscon assisted, the doctor's advice was to cease smoking, which he did in 1964.
Other File EvidenceThe Applicant, in completing his smoking history on 10 October 1995 stated that he started smoking shortly after joining the Navy and that he smoked 40 cigarettes a day until 1963 when he reduced his smoking to 20 a day for health reasons (T11, pp56, 57).
Medical EvidenceIn a clinical report dated 21 February 2000, Professor Mattick, a consultant psychologist in anxiety disorders and the assessment and treatment of alcohol abuse and dependence and other addictive disorders, made the following assessment of the Applicant's smoking habits, as a result of his examination of the Applicant on the same day:
"…
He smoked on the HMAS Australia, consuming 25 to 30 cigarettes per day over a nine-month period and he smoked in the same fashion on the HMAS Cowra. He claims that on the HMAS Culgoa, when he was in operational service, his tobacco consumption increased due to stress. However, he said that he smoked 30 cigarettes a day and he continued to smoke 30 cigarettes a day on the HMAS Balmoral and when working with Qantas and the Sydney County Council. There was no evidence that he markedly increased his tobacco consumption given that he said that he was smoking 25 or 30 cigarettes per day prior to eligible service .
Dr Burns notes that Mr Knauer has never been alcohol dependent. I agree. Dr Burns notes that development of Mr Knauer's smoking and drinking pattern since service in the Navy suggested that service contributed to smoking and drinking. I have no doubt that Mr Knauer may have developed a pattern of smoking and drinking on service. I have great difficulty in relating this to his period of operational war service. He drank before operational war service and he smoked 25 to 30 cigarettes per day before operational war service. He continued to drink after war service and he was never alcohol dependent. He did not suffer alcohol abuse. He continued to smoke after war service much as he did beforehand. (Exhibit R3)
…".
In a medical report dated 22 June 1999, Dr Harding Burns, a consultant drug and alcohol physician, concluded:
"…
Given the temporal relationship between Mr Knauer's naval service in Korea in 1953 and the establishment of his smoking and drinking patterns, which persisted after his discharge from the Navy, and which were associated with clinical symptoms of gastro-oesophageal reflux disease and hiatus hernia, his war service could be considered as a contributory cause of his gastrointestinal problems. Alcohol consumption and non-steroidal anti-inflammatory agents have continued as a persistent cause of dyspepsia to the present.". (Exhibit A3).
Dr Read, a consultant rheumatologist, in her medical report dated 9 June 1999, concluded:
"…
It is therefore quite reasonable to hypothesis that the lower back problems that Mr Knauer has at this time were indeed initiated by the recurrent episodes of injuries that he had while on active service at sea in the Navy during the Korean War. It is interesting to note that he had substantial changes on his x-rays by the age of fifty. You ask whether there is any evidence of intervertebral disc prolapse, on the C.T. Scan done in 1992, there is evidence of disc protrusion although not specific evidence of disc prolapse. However these x-rays, as I stated above, are seven years old
…" (Exhibit A4)
In further explanation of her opinion, Dr Read in her report of 29 September 1999 stated:
"…
Further to your letter dated the 20th of August, in which you ask for some clarification of my previous report, dated the 9th of June. In particular, you ask me about an injury he received when he fell down a ladder while at sea. Mr Knauer did not go into great detail about this. From the Statement of Injury which you sent me, it would appear that his back was in fact traumatised at this time and it would therefore be quite probably that he did in fact injure either the facet joints or the disc at the time of the fall, constituting trauma to the lumbar spine, as outlined in the Statement of Principles which you enclosed previously
…"(Exhibit A5)In a medical report dated 16 February 2000, Dr Hume, a consultant orthopaedic surgeon concluded:
"…
I do not know when the lumbar spondylosis developed. I consider it likely that it developed while he was working in the Commonwealth Bank stores. I consider it most unlikely that it would have been evident on X-rays taken between 1950 and 1956. It is possible but it is not possible to prove, that falls on service contributed to the development of the spondylosis. However, the widespread nature of the condition, involvement of the cervical spine and the lumbar spine, the changes in the thoracic spine and the evidence of arthritis in the right hip suggest that Mr Knauer had some underlying constitutional condition contributing to the development of spondylosis
..." (Exhibit R2).
A series of x-rays and C.T. Scans of the lumbosacral spine taken from 1980 onwards demonstrates generalised disc degeneration and degenerative changes in the apophyseal joints consistent with a diagnosis of lumbar spondylosis. (Exhibit A6).
Submissions
The Applicant:It was submitted on behalf of the Applicant that the Applicant suffered a trauma to his lumbar spine in his fall on board HMAS Culgoa while on operational service and that subsequently he developed lumbar spondylosis. It is the Applicant's contention that the condition of lumbar spondylosis is a war-caused disability and to this end the Applicant relies upon the reports of Dr Read.
In relation to the gastro-oesophageal reflux disease, the Applicant submitted that he increased his smoking habit as a consequence of experiencing a stressful event ("the Korean pilot incident") while on operational service, and this occurred before and until the clinical onset of his reflux disease or alternatively a clinical worsening of his reflux disease. Accordingly the Applicant submits that his gastro-oesophageal reflux disease is a war-caused disability. Here the Applicant relies upon the of Dr Harding Burns.
The Respondent:The Respondent contends that there was no record of back injury during the Applicant's service in the Navy and further contends that his condition of lumbar spondylosis is a consequence of the Applicant's workplace accident with the Commonwealth Bank. In so doing, the Respondent relies on the report of Dr Hume.
The Respondent contends that the Applicant's smoking habit was not war-caused and in so stating relies upon the evidence of the Applicant. It is the Respondent's contention that with his smoking habit not being war caused it is not possible for the Applicant to satisfy factor 5(e) or (n) of Statement of Principles ("SoP") Instrument No 121 of 1995.
Consideration and FindingsIn preliminary comment the Tribunal observes that much of the evidence given by the Applicant at the Tribunal is, in its detail, at variance with that recorded in the Tribunal documents and nominated by the consultants in their various reports, particularly where it records a history of the Applicant's smoking habits, his civilian employment and the history of his back problems. The Tribunal nevertheless, does not draw any untoward inferences from such variation and concludes that the variation is a product of time, memory and accurate reading of detail.
The Tribunal as a consequence of considering the Applicant's evidence and the medical reports of both Drs Read, Hume, Harding Burns and the various x-rays does find that the Applicant does have a disability correctly diagnosed as lumbar spondylosis. In further consideration the Tribunal notes and so finds that the Applicant first presented at his general practitioner in 1957 complaining of low back pain and was treated with physiotherapy prior to an x-ray being taken a few years later.
In relation to the hypothesis nominated, the Tribunal notes that it consists of a trauma to the lumbar spine occasioned during operational service resulting in the later occurrence of lumbar spondylosis. In turning to the issue as to whether the hypothesis is reasonable, the Tribunal notes that the appropriate SoP is Instrument No 358 of 1995.
In considering the Instrument under consideration, the Tribunal also notes that the relevant factor is 1(g) and that this involves whether the Applicant has suffered a trauma to the lumbar spine which in turn is defined within paragraph 5:
"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 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 Tribunal, in noting the evidence of the Applicant that he had a fall on the deck on operational service; that he fell and experienced acute pain in his low back; that he suffered continuing pain and discomfort over at least two weeks; that he received medication (aspirin) for his pain; that he was unable to climb into or sleep in his hammock for at least two weeks and that he was placed on restricted duties for several weeks, concludes that this evidence of trauma and injury to the lumbar spine is consistent with the definitional issues contained within the Instrument, and so finds. The Tribunal in making such a finding notes the opinion of Dr Read. Further the Tribunal finds that factor 1(g) of Instrument No 358 of 1995 is satisfied and that a reasonable hypothesis exists.
In further consideration, the Tribunal notes that the Applicant had subsequent trauma to his lumbar spine while working for the Commonwealth Bank and that this eventually led to the cessation of his employment. The Tribunal also notes the opinion of Dr Hume, and having noted both matters the Tribunal finds the existence of the later trauma to his lumbar spine is not a fact in dispute and neither that fact nor Dr Hume's opinion would permit the Tribunal to find that they were facts which would disprove beyond reasonable doubt facts that support the hypothesis or alternatively the existence of a fact is proven beyond reasonable doubt, which is inconsistent with the hypothesis.
As a consequence the Tribunal finds that the Applicant's condition of lumbar spondylosis is a war-caused condition.
In considering the matter of the gastro-oesophageal reflux disease (GORD), the Tribunal notes that the appropriate SoP for consideration is Instrument No 121 of 1995. The Tribunal further notes that the hypothesis nominated involves the addiction to smoking by the Applicant as a result of his operational service and thus causing the onset of his GORD or the clinical worsening thereof. The Tribunal accepts the hypothesis as postulated, but recognises these are particular issues when considering whether the hypothesis is reasonable.
In turning to the particular factors in question, 1(j) and (m) the Tribunal observes that there has to be addiction to cigarettes and that this addiction itself must be war caused. To satisfy the latter requirement the Tribunal turns to a consideration of SoP Instrument No 5 of 1994 and notes that pursuant to factor 1(a) and 1(c) the Applicant must have experienced a stressful event prior to the clinical onset or clinical worsening of his cigarette habit. The Tribunal notes that a stressful event is defined in paragraph 4 of the same Instrument.
In further consideration, the Tribunal notes the evidence of the Applicant in this matter as regards his smoking habits and in particular his description at T11, his description as detailed by Professor Mattick and his evidence before the Tribunal. The Tribunal finds that the Applicant had a well established smoking habit prior to his operational service and that there is no evidence of a sustained increase in his smoking habit during his operational and continuing thereafter. Further the Tribunal finds that the Applicant's experience with the Korean pilot in the sick bay, although perhaps unnerving and distasteful at the time does not constitute a stressful event as he did not define any subjective symptoms of increased stress.
As a consequence of the finding it is evident that the Applicant does not satisfy either factor 1(a) or 1(c) in that the Applicant's cigarette addition is not war-caused, nor is there evidence of an increase in his habit during his operational service. Further the Tribunal finds, on the evidence which is before the Tribunal, that the Applicant suffered from the same symptoms of indigestion prior to his operational service as he did during his operational service, with no evidence being adduced that there was a clinical worsening of his symptoms during his period of operational service.
As a consequence of the Tribunal's findings, the Tribunal concludes that the hypothesis is not a reasonable hypothesis as it fails to satisfy the nominated SoP, Instrument No 121 of 1995. As such, the condition of gastro-oesophageal reflux disease is rejected as being a war caused disability by the Tribunal.
DeterminationThe Tribunal determines that the decision under review be set aside in so far as it relates to the condition of lumbar spondylosis and in substitution therefor determines that:
(a)the condition of lumbar spondylosis is a war-caused disability; and
(b)the matter be remitted to the Respondent for assessment of the war-caused disability of lumbar spondylosis.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell
Signed: .....................................................................................
AssociateDate/s of Hearing 6 September 2000
Date of Decision 5 February 2001
Advocate for the Applicant Ms J Buss, Legal Aid Commission
Advocate for the Respondent Mr S Modder, Department of Veterans' Affairs
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