Knight and Repatriation Commission - [2000] AATA 693

DECISION AND REASONS FOR DECISION [2000] AATA 693

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V99/366

VETERANS' APPEALS DIVISION       )
           Re      Leslie Roy KNIGHT
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member Mr C Ermert, Member Dr C Re, Member

Date4 August 2000
PlaceMelbourne

Decision      The Tribunal affirms the decision under review.
  (Sgnd) Joan Dwyer
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – lumbar spondylosis – whether war-caused – whether material raises or points to an incident of "trauma to the lumbar spine" as defined in the SoP – inconsistent evidence before the Tribunal – material does not point to a reasonable hypothesis consistent with the SoP – decision under review affirmed

Veterans' Entitlements Act 1986 ss 6 and 9

Repatriation Commission v Deledio (1998) 49 ALD 193

Harris v Repatriation Commission [2000] FCA 873

Connors v Repatriation Commission [2000] FCA 783

Bushell v Repatriation Commission (1992) 175 CLR 408

Byrnes v Repatriation Commission (1993) 177 CLR 564

Repatriation Commission v Bey (1997) 79 FCR 364

REASONS FOR DECISION

4 August 2000 Mrs Joan Dwyer, Senior Member Mr C Ermert, Member Dr C Re, Member

This is an application for review of a decision of the Repatriation Commission ("the Commission") made 18 November 1997 which rejected Mr Knight's claims to have ischaemic heart disease and lumbar spondylosis accepted as war-caused diseases under s 9 of the Veterans' Entitlements Act 1986 ("the Act"). That decision was affirmed by the Veterans' Review Board ("the VRB") on 1 February 1999.
Mr M O'Brien of Counsel appeared for Mr Knight. Mr K Herman, an advocate with the Department of Veterans' Affairs appeared for the Commission. Mr Knight gave evidence. Evidence on his behalf was also given by Dr Hall, a physician. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and also the exhibits tendered during the hearing.
Mr Knight served in the Royal Australian Air Force ("the RAAF") from 29 August 1944 to 8 March 1949. Because he served overseas before the end of World War II the whole of his service is operational service as defined under s 6 of the Act. Mr Knight said he was posted to Japan in late 1946 and remained there until October 1948 shortly before his discharge in March 1949. The dates of service in Japan appear from T3 p14 to be from 13 March 1946 until 22 December 1948. Mr Knight said in evidence that the first part of that overseas service was in Borneo rather than Japan. As the T documents did not include a list of postings that matter was not clarified during the hearing.
Nor did the T documents contain a copy of Mr Knight's service medical records. As Mr Knight in his evidence referred to numerous visits to the hospital for medical treatment for a back condition, the Tribunal adjourned the hearing at the conclusion of the evidence and asked Mr Herman to obtain those records and make copies available to the applicant's solicitors and the Tribunal. Mr Herman did so and the Tribunal has taken them into evidence as exhibit R6. The parties were invited to make submissions. The Tribunal received a short submission dated 19 July 2000 from the respondent.
Mr O'Brien in opening conceded that the matter is governed by the relevant Statements of Principle ("SoP"). He also conceded that Mr Knight could not call evidence raising or pointing to him meeting any of the factors specified in the SoP for Ischaemic Heart Disease Instrument No. 140 of 1996. Thus he conceded that Mr Knight could not succeed in having Ischaemic Heart Disease accepted as war-caused.
The parties also agreed that if Mr Knight did not succeed in having his lumbar spondylosis accepted as war-caused, then he was correctly assessed as entitled to pension at 40% of the General Rate, but that, if he succeeded in having lumbar spondylosis accepted as war-caused, he would be entitled to payment of pension at 70% of the General Rate from 1 June 1997.
Thus the only relevant issue is whether or not Mr Knight's lumbar spondylosis is a war-caused disease. Dr Hall confirmed that Mr Knight does suffer from lumbar spondylosis. The relevant SoP relating to lumbar spondylosis is Instrument No. 165 of 1996. The factor relied upon by Mr O'Brien as related to service was factor 5(g) which reads as follows:
5.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;

The term "trauma to the lumbar spine" is defined in paragraph 7 of the SoP as follows:

"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. Where medical intervention for the injury has occurred (for example splinting, corticosteroid injection, surgery), and there is evidence relating to the extent of injury and treatment, such evidence may be considered;

Mr O'Brien agreed with Mr Herman's explanation of the relevant law in paragraph 4.3 of the respondent's Statement of Facts and Contentions. That paragraph reads as follows:
This matter is affected by the decision of Deledio [ats] Repatriation Commission (1998) 49 ALD 193. According to the Federal Court in Deledio, Statements of Principles are designed to do no more than deal with the reasonableness of the medical and scientific components of a hypothesis (p. 204). Accordingly, a hypothesis will be upheld by the relevant Statement of Principles if the hypothesis is 'consistent with' the Statement of Principles, in the sense that the hypothesis includes a factor prescribed by the Statement of Principles (p. 206). The existence of the relevant factor is determined by applying the standard of proof in subsections 120(1) and (3) (p. 206). Accordingly, if there is material before the Tribunal pointing to the existence of the factor, rather than leaving it open as a possibility (East v. Repatriation Commission (1987) 74 A.L.R. 518, Noble v. Repatriation Commission (unreported decision of Beaumont, Branson and Merkel JJ., 3rd November 1997, Repatriation Commission v Bey (unreported decision of Northrop, Nicholson, Sundberg, Marshall and Merkel JJ. dated 21st November 1997), if the hypothesis is reasonable, the factor is taken to exist unless the contrary is proved beyond reasonable doubt.
The question for the Tribunal is therefore whether there is material before the Tribunal pointing to the existence of the factor of "trauma to the lumbar spine", as defined in the SoP, during service. If there is such evidence the hypothesis is reasonable but if the evidence only leaves the matter open as a possibility the hypothesis is not raised. Once the hypothesis is raised the factor is taken to exist unless the contrary is proved beyond reasonable doubt. The difficulty facing Mr Knight is in that there is conflict in the various accounts he has given at different times as to the effects of his work during service in Japan upon his back. At times he has said that it was simply a matter of heavy work straining his back from time-to-time, which would not satisfy the definition of "trauma to the lumbar spine" in the SoP. However, in a trauma statement Mr Knight did describe one particular incident which could meet the definition of "trauma to the lumbar spine" in paragraph 7 of the SoP. The difficulty is that he acknowledged in his evidence that the trauma statement was inaccurate. Thus that statement cannot provide material pointing to the existence of "trauma to the lumbar spine".
Mr Knight gave evidence that while in Japan he worked on dismantling 82 Mustang fighters for their return to Australia. His mustering was as a carpenter. He explained that he and another carpenter had the task of making large wooden boxes, approximately 14 foot square and three foot deep, in which parts of the planes were shipped back to Australia. He described the process as including him and the other carpenter manhandling a plane which had been towed by tractor into the hangar, so as to place it in the appropriate position to be worked on. He said that the planes weighed three and a half tonnes and that he and one other man manoeuvred them on the three wheels. He said fitters then took the propeller or air screw off the plane with a crane, and lowered it on to the floor. He and the other carpenter had to move the air screw, which he said weighed between three quarters of a ton and a ton, onto the base of the wooden box.
When the Tribunal expressed doubt that it would be possible for two men to move a propeller weighing at least three quarters of a ton, Mr Knight explained that they used crowbars to manoeuvre the propeller. Mr Knight said other parts of the plane such as the wing tips, the rudder and the elevators and canopy were also placed in the box, and the box was closed. The apertures on the plane were made good with timber, the plane was covered up and proofed, and the plane and the boxes were taken back to Australia by ship.
Mr Knight said the work was heavy and that he was wearing steel horseshoes on the soles of his boots and often slipped on the concrete floors when pushing the planes. He said the initial occasion of trauma occurred in 1947 after he had been in Japan six or eight weeks. He was pushing an aircraft around and his feet "slipped from under me." He said (trans. p5):
I went down on to my knees and I got a sharp pain across the back and I actually was down on my hands and knees and then I stood up and moved my body around a few times and everything seemed to be all right and then when we started to work and push around again I got sharp pains again, so I went straight across to the hospital and reported in.

Mr Knight said that he saw a doctor, who he thought was Dr Beach at the hospital. He said Dr Beach examined him and put electric pads across his lower back and on his stomach. This gave him some relief and then after the treatment he went back to work that same day.

The Tribunal asked Mr Knight why he went straight back to work that same day. He said that was his only option to either stay in hospital, which would have led to him being posted back to Australia, or to go back to work. He said he did that work five days a week for roughly 14 months. He said he reported to the hospital for treatment, sometimes once a week, sometimes two or three times a week, but the frequency eased off a bit after the first couple of months. He said he found that he could not lift anything heavy. He said it was not a one off situation of doing himself an injury, but more a constant problem.
The trauma statement which Mr Knight signed on 10 April 1999 reads as follows:
I, LESLIE ROY KNIGHT, state that I served in the Royal Australian Airforce from 29 August 1944, to 8 March 1949. I served overseas, and have rendered operational service.
1.While serving overseas, I was involved in making up wooden boxes 4 metres square and 1 meter deep. These boxes contained a lid, and a propellor was dropped into the middle from an aircraft. The propellors weighed 1 ton and it had to be manhandled to place into position.
2.On one particular occasion I and other men had to pick up the box containing the propellor from the sides. It was far too heavy for us and we dropped the box.
3.This particular incident caused immediate pain in my back and caused me to attend at the Medical Centre for treatment. I reported the incident, but it appears it was never recorded. I was treated with analgesics and heat pads for 7 to 8 days. I took it easy for at least 10 days as my back was extremely sore.
4. I have not been free from back pain since this time.
Mr Knight said that the statement was incorrect. First, he said that the measurements of the boxes in paragraph 1 were not quite correct. Secondly, he said the propeller was not dropped into the middle of the box from an aircraft, but had to be manoeuvred from the floor on to the base of the box by Mr Knight and the other carpenter. Thirdly, he said there was never an occasion when he, and other men, had to pick up a box containing a propeller. He said those boxes were always lifted up by chains and a crane.
After his return to Australia Mr Knight joined the Victorian Police Force in 1957 and remained with them for 30 years until his retirement in 3 August 1986 at the age of 60. When he was asked whether he read the trauma statement before signing it. He replied, "yes I always read statements before signing them." That is no more than one would expect of somebody with 30 years experience in the Police Force. However Mr Knight did not explain why an inaccurate trauma statement had been signed by him and put before the respondent and the Tribunal.
Mr Knight said that he did not believe he was medically examined before his service discharge. He said that he was medically examined before enlistment in the Victoria Police Force, but he was not asked any questions about his back and was passed as fit for duty.
The incident described in the trauma statement might satisfy the definition of "trauma to the lumbar spine" in the SoP. However it is not accurate according to Mr Knight's evidence at the hearing. It is therefore necessary to look at the other material before the Tribunal to see whether that material raises or points to an incident of "trauma to the lumbar spine" as defined in the SoP, or whether it is simply consistent with heavy work, but not with a particular injury such as to satisfy the requirements of factor (g) of the SoP.
When Mr Knight lodged his claim to have lumbar spondylosis accepted (T4 p20) he did not describe any injury. He was asked in the claim form "why do you believe your service caused, contributed or aggravated this disability." He wrote "constant lifting of heavy materials on service." He said in cross-examination that when he wrote that, he thought that was the cause of his problems. Probably he did not then know that his claim would have to be decided in accordance with the SoP which requires "trauma to the lumbar spine" and gives a definition of that trauma. That definition, as set out in paragraph 7 of these reasons, requires "an injury . . . caused by the force of an extraneous physical or mechanical agent that causes the development within 24 hours . . . 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 . . .".
Mr Knight appears to have been asked to complete a claimant report headed "Trauma Lumbar Spondylosis" (T6 p26).It contained a number of questions. In answer to the question, "when were the symptoms of lumbar spondylosis first noticed?", he wrote "7 March 95". The next seven questions were as follows:
2.Has there ever been an injury to the back?
·No – Please sign the form and return it to the Department
·Yes – If there has been more than one injury to the back, please attach separate answers for each injury
3.When did the injury occur? (Please be as specific as possible)
4.Please describe how the injury occurred, including the cause of the injury and the nature of the trauma suffered:
5.What symptoms did you suffer following the injury?
6.How soon after the injury did the symptoms begin?
7.How long did the symptoms last?
8.Was any medical treatment obtained following the injury?
·No
·Yes – Please describe the treatment including the nature of the treatment, when the treatment was provided and by whom.

Mr Knight did not answer any of those questions.

A medical report of Dr Antoniadis, Mr Knight's treating doctor, confirmed the diagnosis of severe lumbar degeneration and confirmed that the date of onset was 7 March 1995 (T6 p28). Dr Antoniadis, in answer to question 5 "Has the veteran suffered from a trauma to the lumbar spine", answered "No". Accordingly he did not respond to the remaining six questions which all related to trauma to the lumbar spine.
On 26 September 1997 Mr Knight saw Dr Freed, a psychiatrist, who provided a report of that date (T8 p34). In that report, at page 2, Dr Freed set out the following history obtained from Mr Knight:
A 71 year old former Police Sergeant with the Traffic Police for about 30 years he stated he retired at the age of 60 as this was the compulsory retirement age at the time. He stated he had been suffering from long-standing low back pain manifest for some months prior to his discharge from the Air Force in early 1949. He stated at that time he did not have specific treatment for low back pain he believes was due to his work within the Air Force as a carpenter. He stated his low back pain exacerbated significantly in the context of a knee injury he sustained whilst a Police Sergeant when jarring his leg stepping out of a Police car and damaging the cartilage of his left knee for which he had an operation whilst in the Police Force in about 1971. He stated ongoing pain in his left knee had aggravated lower back pain subsequently.
On 20 August 1998 Mr Knight saw Mr Quirk, an orthopaedic surgeon at the request of the Pascoe Vale RSL. In his report of 25 August 1998 Mr Quirk wrote (T13 p52):
HISTORY:   The patient who is a 72 year old veteran told me that he enlisted with the RAAF on 26/8/44 and was discharged on 8/3/49. He was a carpenter and much of his time in the RAAF was spent in Japan.
At one stage he had to work on Mustang fighters which weighed about three and a half tonnes. He had to man handle these aircraft inside a hanger to work on them. There was a constant strain on his back. There was a lot of heavy lifting. He developed pain in the back while he was doing this work and the pain has never left him up till the present time. He saw doctors in the airforce at the time when the pain came on but no treatment was offered nor was any x-rays or other investigation taken. He says that over a period of three years he reported his back pain at least once a month.
INJURIES:   The injury alleged is an injury to the lower back.
TREATMENT:   He had no treatment until he got home to Australia. He went to a chiropractor with indifferent results.
Mr Knight attended the VRB hearing on 1 February 1999. That transcript (R3) shows that the VRB discussed with Mr Knight's representative, Mr Richards, the history set out in the report of Mr Quirk. Mr Fagan, one of the service members on the VRB, asked Mr Knight in some detail why he, as a carpenter, was working on planes. Mr Knight was asked, at p10 of the VRB transcript, whether there was a specific incident or anything specific that brought on the back pain. He explained:
It was mainly from manhandling the parts of the aircraft and the aircraft. See, the aircraft weighed about three and a half tons. Now, when they bring it in with a tractor they would unhook it, and then we had to manhandle it and push it, we would shove it around to get it to where we wanted to work on it.
………….. And was there anything specific in terms of a fall or any specific incident of this lifting that you can identify that involved a problem. . . .
. . . The aircraft, there would be oil around the floor, you would be pushing, you could slip. So if you're lifting the airscrew on the Mustangs, I suppose it weighed the best part of three quarters of a ton, and you got to push those around to get them in a position to anchor them into the boxes. And the size of the boxes, I would say the size of this room, four foot high. We had to collapse them, and you couldn't do anything else but get hold of those and lift them up, we would push them up and hold them, and you would fold them all back into together again. And the footwear that we had were with the steel horseshoes on them, and on the concrete floor you would start pushing and shoving and dragging, or trying to drag, and you would slip.
……….: Was there any specific incident that you can identify that where you, you know, your back, and you had to attend for treatment?
There were several of them. So there wasn't one you would just, oh, that's the one there. You would have the aches and pains all the time.
……..: So did you have any time off work?
No. There was no such thing as time off.
……..: So were you given medication?
Not for the back pain.

The transcript shows that Mr Knight told the VRB that in the time he was in Japan he would have probably gone to the hospital and had liniment rubbed in and heat treatment 30 or 40 times, but each time he went straight back to work after that.
A further account of back pain during service is contained in the report of Dr Sime who saw Mr Knight on 14 September 1999. In his report (A2 p2), Dr Sime wrote:
In Japan he was to be involved in dismantling aeroplanes which appears to have been very heavy work. This included making up wooden boxes measuring 14 feet square by 3 feet high. For example they would take off a plane propeller with a crane and this was then deposited on the floor of the box between two men and they would manhandle it and with it weighing about half a tonne. They were then removing wing tips, elevators, rudders, canopies etc. It would then be sealed over and manoeuvred on wheels for proofing and then back to the shed again. He referred to doing this for three years. They were working on a concrete floor with slipping and sliding on it as well.
His back was bothering him and he would go for medicals. He was using electric pads each time his back went. He refers to most of his service being in Japan.

That account differs from the evidence Mr Knight gave to the Tribunal in that there is no discussion of having to move the plane propeller from the floor of the hangar on to the floor of the box. The account given to Dr Sime also does not speak of any particular incident of injury, but more of a problem with heavy work. There is no suggestion there, as there was not in the evidence before the Tribunal, of any time off or any limitation in the work Mr Knight could do when he came back to work after a period of heat treatment.

In contrast the history obtained by Dr Hall, when he saw Mr Knight on 2 September 1999, was of one particular incident of low back pain. He wrote (A3 p1):
In 1947 or 1948 while working in Japan he was manhandling an air screw for a Mustang aircraft into a box. When this was in the box it and other parts would be secured into place. He and other workers had to manhandle the sides of this box up and then attach the lid. This involved moving the aircraft around and pushing the aircraft around which weighed approximately 31/2 tons using 20 to 30 men to achieve this task. While doing this he felt sudden pain in his low back. He denies any prior history of low back pain.
He attended the medical centre at the time though there is apparently no record of this and was told to "take it easy". He has had back pain ever since and for the first three to four days had to use a heat pad on a daily basis to obtain some symptom relief.
When Dr Hall gave evidence he was asked about the somewhat different histories obtained by Dr Quirk and others. Dr Hall said that Mr Knight had only described one accident or injury to him, and that if Mr Knight had given him a different history of ongoing problems with heavy work, but without any period of having to use a heat pad on a daily basis after a particular incident and without being told to take it easy, he may well not have concluded that the history satisfied the description of a trauma in the SoP. He said the history set out by Mr Quirk, would not in his opinion, fit the definition of "trauma to the lumbar spine" in the SoP.
The Tribunal suggested to Dr Hall that it was somewhat surprised at the account Mr Knight gave of visiting the hospital as frequently as two or three times a week, and simply being told to return to the same duties. The Tribunal would have expected that Mr Knight might have been given light duties, if it was known that the other duties caused him to visit the hospital for treatment for his back on a regular basis. Dr Hall said that he too found that unusual.
The Tribunal asked Mr Knight whether there were any carpenters on the base engaged in less heavy duties. Mr Knight said there were other carpenters. When the Tribunal asked him if he had any idea why the doctor could not have put him on light duties, at first he said that was not done (trans. p53):
It didn't work that way unfortunately.
Well - - - ?---You either had your work to do in that section and if you couldn't get up there – be hospitalised, if you didn't there, well you're sent back to Australia.
Well, if it was as bad as this, that you were in week after week, maybe it would have been better for you to be hospitalised or sent back to Australia, that is one possibility that the doctor, I suppose, would have decided but the other thing is you could have gone back to other carpentry work?---Yes, could have, yes.
After further questioning from the Tribunal Mr Knight (at trans. p55) said that he did in fact put himself on light work while his back was bad and another carpenter from the carpenter's shop would then take his place and work on the duties involved with dismantling and packing planes.
There was considerable discrepancy and conflict and inconsistency in the various statements and evidence of Mr Knight, and between his evidence to this Tribunal and to the VRB. We agreed with Mr Herman and Mr O'Brien that Mr Knight's service medical records should be obtained, as they might have contained facts pointing to or supporting one of the accounts given by Mr Knight.
When the medical records were obtained they contained no record of Mr Knight ever seeking medical treatment for injury to the lumbar spine let alone one which satisfied the description of "trauma to the lumbar spine" in the SoP. In fact the records do not mention any back problems of any description at all. Those records are quite full and detailed. They do include attendances for a number of different conditions including sprained ankle, swollen finger, painful swelling of left tibia, infected great toe. They include an instance when Mr Knight was hospitalised in December 1947 because of an infected toe. After his discharge from hospital on that occasion he was restricted to light duty for seven days. The records also include a medical examination record "Fit on posting from 81 (F) Wing RAAF Japan" dated 3 December 1948. Those records provide no support for anything Mr Knight said in evidence. In fact they contradict his evidence that doctors did not put people on light duties, and they show that he was medically examined after his service in Japan and no record was made of back problems.
Finn J considered the process of raising a reasonable hypothesis in respect of lumbar spondylosis in Harris v Repatriation Commission [2000] FCA 873. In that matter as in this it was common ground between the parties that the course to be taken by the Tribunal is that laid down by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193 at p206:
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). . . .
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.
Because the advocates before the Tribunal are usually familiar with the jurisdiction, the only hypotheses relied on are usually those which are set out in the relevant SoPs. The hypothesis relied on by Mr O'Brien was that constituted by paragraph (g) of the relevant SoP. That requires that the material before the Tribunal must raise or point to some "trauma to the lumbar spine" as defined in the SoP. That trauma must be related to service and must have occurred before the clinical onset of lumbar spondylosis. As the Full Court said in Deledio, no question of fact finding arises at that stage.
The incident described in the trauma statement would probably satisfy the SoP, but Mr Knight has said it is not an accurate statement. Thus that statement does not provide material raising or pointing to any hypothesis.
The history obtained by Dr Hall was of an incident of acute back pain which he was prepared to regard as an "injury to the lumbar spine caused by the force of an extraneous physical or mechanical agent". The account of being told to "take it easy", and having to use a heat pad to obtain some symptoms of relief for three to four days does not quite satisfy the requirement that the material point to "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 a week". However the evidence of Mr Knight himself was not of one particular incident of trauma so much as of repeated problems with the tasks on which he was engaged.
In Harris, and in Connors v Repatriation Commission [2000] FCA 783 the Federal Court has considered the requirement that the material before the Tribunal raise or point to a factor recognised in a SoP as providing a hypothesis connecting the injury or disease with service. Both those decisions concerned "trauma to the lumbar spine" as defined in the lumbar spondylosis SoP. In each matter the Federal Court dismissed an appeal against a decision of the Tribunal. The Tribunal had rejected claims to have lumbar spondylosis accepted as war-caused on the basis that the material before the Tribunal did not uphold the hypothesis advanced because there was no evidence pointing to particular aspects of the definition of "trauma to the lumbar spine".
In Connors there was no evidence that Mr Connors within 24 hours of a fall suffered "acute symptoms and signs of pain". Kenny J said at paragraphs 15, 16 and 17:
15 In this case, the AAT correctly proceeded on the basis that, in order for Mr Connors to succeed, the hypothesis raised by the material before it had to fit one of the templates set out in the relevant SoP. The Tribunal was not (as it itself recognised) engaged in fact-finding.
16 Mr Connors relied (and continues to rely) on a template that include the elements set out in clause 5(g) of the SoP: that is, his suffering a trauma to the lumbar spine (as defined in clause 7) before the clinical onset of lumbar spondylosis. A question for the Tribunal was, therefore, whether the material before it raised (or pointed to) Mr Connors' suffering a physical injury to the lumbar spine that caused the development, within 24 hours, of "acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of that part of the spine" which lasted for at least a week immediately after the fall at Ravenshoe in 1945.
17 As it turned out, this was the principal area of contention before the Tribunal. Mr Connors' evidence was that he could not recall suffering pain in the lumbar spine region after the fall. Various factors were advanced on his behalf to explain this lack of recollection, but none pointed affirmatively to his suffering pain at that time. It was, therefore, plainly open to the Tribunal to decide that the hypothesis advanced by him was not upheld by the SoP, since there was no material pointing to the existence of pain following the injury, which was an essential element of the SoP's definition of "trauma to the lumbar spine".
Kenny J, in paragraphs 18 and 19 of her reasons, considered a submission based on Byrnes v Repatriation Commission (1993) 177 CLR 564 at 569-70, Bushell v Repatriation Commission (1992) 175 CLR 408 and Repatriation Commission v Bey (1997) 79 FCR 364 that in some cases a hypothesis may assume the existence of certain facts and that such an assumption does not make it unreasonable. She concluded at paragraph 19:
The observation that each element need not be established by the evidence is, as I read it, simply a restatement of the accepted proposition that determining the reasonableness of a hypothesis does not involve making findings of fact: see Deledio at 412.
In Harris, Finn J was considering a situation where the Tribunal had evidence of one particular occasion of injury during active service. Finn J held in paragraphs 31 and 32:
31 Insofar as the trauma component of those factors is concerned this requires (inter alia) that the injury in question caused the development of "acute symptoms and signs" of (i) pain, (ii) tenderness and (iii) altered mobility or range of movement. Though the preposition "of" only precedes the word "pain" in the SoP's definition I am satisfied that the definition is to be read as if "of" preceded the words "tenderness" and "altered" as well. The applicant has submitted to the contrary, contending that the definition is to be read as if it referred to "acute symptoms and signs of pain and/or tenderness, and [meaning "together with"] altered mobility" etc. When one has regard both to the balance of the sentence in which the definition appears (and particularly to the words "and where such acute symptoms and signs last for a period of at least one week") and to what, ordinarily, would be the work done by the preposition "of" in a sentence constructed in the manner of the definition, the definition must be construed as I have proposed. I should add that that construction is the one propounded by the respondent.
32 The requirement, then, that there be "signs and symptoms" of each of the three stipulated matters necessitates that there be an indication of, or phenomenon evidencing, each: see eg definition II of "sign" and that of "symptom" in the Shorter Oxford English Dictionary ("SOED"). Moreover, given the requirement that the signs and symptoms must be "acute" - ie that they be sharp or act "keenly on the senses": SOED, "acute"; there would need to be significant manifestations, variously, of pain, of tenderness and of altered mobility etc. As the respondent contends, the definition contemplates a significant injury.
Finn J in Harris then went on to point out that the factor required to exist by the SoP is "acute signs and symptoms of altered mobility" and that there was a lack of evidence of such acute signs and symptoms.
In this matter the material was very confusing. It is hard to know what was pointed to or raised. But there was no material at all pointing to "acute symptoms and signs of pain, tenderness and altered mobility or range of movement of [the lumbar] spine, . . . where such acute symptoms and signs last for a period of at least one week immediately after the injury". There was also no medical evidence relating to the extent of injury and treatment.
Mr Knight's evidence was that he had ongoing pain which did not prevent him returning to his normal duties after some heat treatment. That does not satisfy the requirement of acute symptoms and signs of pain, nor was there any evidence pointing to "acute symptoms and signs of altered mobility or range of movement".
Thus we conclude, as did the Tribunal in Connors and Harris, that the material before the Tribunal does not point to a reasonable hypothesis consistent with the lumbar spondylosis SoP connecting Mr Knight's lumbar spondylosis with the circumstances of his particular service.
The decision under review will be affirmed.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member, Mr C Ermert, Member and Dr C Re, Member
Signed:         Anne O'Rourke
  Associate
Date/s of Hearing  3 May 2000
Date of Decision  4 August 2000
Counsel for the Applicant        Mr O'Brien
Solicitor for the Applicant         De Marchi and Associates
Counsel for the Respondent    Nil
Solicitor for the Respondent    Nil
Departmental Advocate           Mr Herman