Kolantgis and Repatriation Commission
[2002] AATA 540
•3 July 2002
DECISION AND REASONS FOR DECISION [2002] AATA 540
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/1081
VETERANS' APPEALS DIVISION )
Re James Kolantgis
Applicant
And Repatriation Commission
Respondent
DECISION
Tribunal Mr R P Handley, Deputy President
Date3 July 2002
PlaceSydney
Decision The Tribunal affirms the decision under review.
..............................................
R P Handley
Deputy President
CATCHWORDS
VETERANS' REVIEW BOARD – Repatriation Commission – review of percentage of disability and payment of disability pension at 70% of the General Rate – necessity that a hypothesis connecting the injury to an Applicant's operational service must be established to the reasonable satisfaction of the Tribunal – necessity for the Applicant to have suffered a "trauma" in accordance with the relevant Statement of Principles – held that the Applicant's injuries do not satisfy the definition of "trauma" – decision under review affirmed.
Veterans' Entitlement Act 1986 ss 6A, 13(1), 21, 21A, 22, 120A, 120(1)(3)(4)
Arnott v Repatriation Commission [2000] FCA 1336
Connors v Repatriation Commission [2000] FCA 783
Harris v Repatriation Commission [2000] FCA 873
Harris v Repatriation Commission [2000] FCA 1687
Mason v Repatriation Commission [2000] FCA 1409
Repatriation Commission v Budworth [2001] FCA 1421
Repatriation Commission v Deledio [1998] FCA 391
STATEMENT OF REASONS
3 July 2002 R P Handley
This is an application by James Kolantgis ("the Applicant") for a review of a decision of the Veterans' Review Board ("VRB") made on 31 May 2001 affirming a decision of a delegate of the Repatriation Commission ("the Respondent") to refuse the Applicant's claim for lumbar and cervical spondylosis and continue payment of the disability pension at 70% of the General Rate.
At the hearing, the Applicant was represented by Brian Winship of Rockcliffs, Solicitors, and the Respondent was represented by Jim Marsh of the Department of Veterans' Affairs. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents") together with the documents tendered by the parties. The Applicant gave oral evidence.
BackgroundThe Applicant was born on 17 September 1927 and is aged 74. He enlisted in the Australian Army on 19 March 1946. He served in Japan from about February 1949, returning to Australia on 1 November 1949. His service from 19 March 1946 to 1 November 1949 constitutes "operational service". He was discharged on 27 May 1951.
The Applicant claims to have suffered injuries to his neck and back while serving in Japan. He also suffered injuries in a motorcycle accident while serving at Puckapunyal in Victoria on 22 March 1950. On 8 March 1990, the Respondent accepted that the Applicant suffers from "war-caused" sensori-neural deafness with tinnitus.
The Applicant has made a number of claims in respect of headaches, pain, osteoarthritis of both shoulders and both hips and lumbar and cervical spondylosis. On 17 January 2000, the applicant lodged a claim for lumbar and cervical spondylosis. On 16 May 2000, a delegate of the Respondent rejected the Applicant's claim and decided that payment of disability pension should continue at 70% of the General Rate. That decision was affirmed by the VRB on 31 May 2001 and, on 24 July 2001, the Applicant lodged an application for review by the Tribunal.
Applicable Law
A war-caused injury or disease is defined in s 9(1) of the Veterans' Entitlement Act 1986 ("the Act"). The definition includes an injury suffered or a disease contracted by the veteran resulting from an occurrence that happened while the veteran was rendering operational service. Section 13(1) provides that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
Section 21A provides for the Respondent to "determine the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, according to the provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions", which is currently in its fifth edition ("GARP"). Section 22 provides that pensions by way of compensation are paid to veterans who have attained the age of 65 at a percentage of the maximum General Rate of pension payable which constitutes the same percentage as the degree of incapacity determined by the Respondent in accordance with s 21A.
There is no dispute that the Applicant's service in the Army from 19 March 1946 to 1 November 1949 is operational service as defined in s 6A of the Act. The standard of proof to be applied in relation to operational service in determining whether an injury or disease was war-caused is that provided for in subsections 120(1) and (3). Pursuant to these provisions, if the injury or disease relates to operational service, the Respondent shall determine that the injury or disease was war-caused unless it is satisfied beyond reasonable doubt that the material before it does not raise a reasonable hypothesis connecting the injury or disease with the circumstances of the person's service.
Subsection 120(4) provides that except in making a determination to which subsections (1) or (2) apply (subsection (2) is not relevant in this matter), the Respondent shall decide any other matter arising under the Act or the regulation "to its reasonable satisfaction". Because the applicant's claim was lodged after 1 June 1994, s 120A of the Act applies. This requires that where the Repatriation Medical Authority has determined a Statement of Principles ("SoP") in respect of a particular injury or disease, the Respondent (and therefore the Tribunal) must have reference to that SoP.
The Applicant's Evidence
The Applicant said, after leaving school, he initially worked as a painter and then in his father's café in Bellingen. During the War, he served in the Army Reserve and helped out in the Ambulance Service, in the course of which he gained extensive first aid experience. Then, on 13 March 1946, he enlisted in the Army. Before enlistment, he had had no health problems and no accidents.
On enlistment, the Applicant was sent for training at Rooty Hill, after which he served at Cowra Prisoner of War Camp as a ward orderly. On 4 January 1947, he boarded a ship bound for Japan, dropping supplies at Papua New Guinea en route. He landed at Kure in Japan on about 11 January 1947. Initially, he served as an orderly at the Australian General Hospital. After six months, he was transferred to the dispatch riding section of the Signals Unit. The Applicant was issued with a motorbike for delivering dispatches in the Kure and Hiroshima area. He said the roads around Kure were very rough and crisscrossed by tram and train lines, many of them twisted. He could not always see the lines which often caused his motorbike to skid so that on many occasions he was thrown off.
The Applicant said that on one occasion, at Kure Docks, he was thrown off his motorbike onto some rubble, hitting his head, neck, right shoulder and lower back. He was taken to a Regimental Aid Post ("RAP") for treatment and then taken back to his own camp. He was given pain-killers by the doctor and was off work for one to one and a half weeks. He felt numbness. Afterwards, while on light duties, he worked at his RAP. Because of his medical experience, he often helped out at the RAP and so he knew the staff.
After the period on light duties, the Applicant went back to riding motorbikes and had a few other falls. Then, because of the number of accidents involving motorbikes, the motorbikes were taken away and they were issued with jeeps instead. They did the same dispatch work with the jeeps but carried additional mail. The Applicant said they had to maintain their own jeeps. This meant that if no ramps were available, two of them had to lift the jeeps onto their sides to permit maintenance and mechanical work. The Applicant did this on numerous occasions and said he probably strained his back six or more times in doing so. On each occasion, he went to the RAP and was told to rest his back.
The Applicant recalled another incident when he hitched a lift from Kure House with an officer in a staff car. The car swerved and hit a light pole and rolled over. The driver was unconscious. An ambulance came and took him and the driver to the 130 Australian General Hospital. The driver later died. The Applicant did not stay at the Hospital but, after seeing the medical orderlies, went to his own RAP which was nearby. The Applicant said he was "crook" – sore around the head, shoulders, back and hips. He saw the Sergeant or Corporal at his RAP who gave him some pain-killers. The pain lasted for about two weeks but he continued to have a lot of headaches. He still takes Panadine Forte for headaches.
In early January 1948, the Applicant was invited to visit another battalion for "refreshments". He was given a lift home and dropped near his camp with a view to his walking the last part of the journey. As he walked along, he was attacked by two Japanese ex-military personnel who pistol whipped him on the right side of the head and stole his watch and wallet. He felt severe pain around the head and was bleeding from the right ear. He staggered to a Japanese Police Box from where the Australian Military Police were called. Three police came and he told them the pistol used resembled a Mauser.
The Applicant was taken back to his RAP where his injury was cleaned up. Next day, he was taken to the Provosts section where he was interviewed about the incident. A few years ago, it was suggested to him that he should try and contact the provost who had interviewed him. With the assistance of a RSL Pensions Officer in Sydney, he contacted ECL Crawford who made a statement about what he knew of the incident (T25). The Applicant said he continued to have pain for a long time afterwards – in the shoulders, neck and lower back – and to have headaches. He still has a constant dull pain in the back. He is deaf in the right ear where he was pistol whipped.
The Applicant returned to Australia in November 1949. After leave over Christmas, he was posted to the Signals Unit at Puckapunyal. In March 1950, he was riding a motorbike on escort duty along a dirt road when he lost control at 40 to 50 kph and "down I went". Protective clothing was not issued to motorbike riders at that time and he was only wearing his ordinary uniform. The Applicant was taken to Heidelberg Repatriation Hospital where he remained for two to three weeks. During that time, he remembered having morphine injections. On being released from hospital, the Applicant took three weeks holiday, returning to Puckapunyal on light duties about six weeks after the accident. About 1 June 1950, he was again admitted to hospital for a few days complaining of headaches, and was given pain-killers.
The Applicant said he was reclassified as B2 but, on discharge, he was again classified as A1. Nevertheless, the Applicant said he was still "crook" – he was suffering headaches, stiffness in his shoulders, neck and back, and walking with a limp. His Medical Officer gave him a prescription for pain-killers to obtain from his local chemist.
In cross-examination, the Applicant was referred to his claim for disability pension signed on 30 May 1990 (T23M), where he referred to the motorcycle accident in Puckapunyal but not the incidents in Japan. The Applicant was not clear as to whether he or someone else completed this form and why he had not mentioned incidents in Japan, except that he did not have medical records to support his claims. Because he often worked at his RAP, he was able to self-medicate – he and his co-workers looked after themselves and often did not complete records, such as A46 sick reports. The Applicant also said that he relied on the RSL Pensions Officers for advice on how to proceed and thought he was covered for all his injuries.
The Applicant said the pistol whipping incident was a stressful one and he could not explain why he had not told Dr Robert Delaforce, Consultant Psychiatrist, whom he saw on 16 July 1990 (T23HA), about this. The Applicant noted that the old cervical vertebrae fractures revealed in 1989 x-rays could have been caused by the pistol whipping.
The Applicant was asked about his claim lodged on 8 March 1985 (T4) which states that his painful right hip and lumbar pain were caused by the 1950 accident. He said he thought this form might have been completed by Mr Smith, the RSL Pensions Officer at Coffs Harbour. The Applicant was also asked about the reports by Dr Martha Baz, Occupational Physician, dated 25 May 1996 (T5), and Professor Phillip Sambrook, Rheumatologist, dated 30 October 1995 (T7), which make no mention of the incidents in Japan but refer to the 1950 accident. The Applicant agreed that he failed to mention Japan but thought his service in 1950 was included in his qualifying service.
Moreover, at the VRB hearing on 6 December 1996 (T10), heard in the Applicant's absence, the written submission made by Mr J Fielding of the RSL on behalf of the Applicant, stated that the Applicant's claimed disabilities related to the 1950 accident. Then, in April 1998, the Applicant did not take up the opportunity to make a submission when a Senior Review Officer conducted a review (T13). The Applicant said he did not know why he did not make a submission – he just left it to the advocates. However, he did tell Dr Mario Benanzio, Orthopaedic Surgeon, about incidents in Japan, referred to in Dr Benanzio's report of 15 May 1999 (T16). The Applicant agreed that this was the first time he had mentioned these incidents. The VRB decision of 31 May 2001 (T3) refers to an orthopaedic specialist in Japan diagnosing flat feet as the cause of the Applicant's pain. The Applicant said this was incorrect.
SUBMISSIONS
Applicant
Mr Winship, for the Applicant, said it is obvious that the Applicant was assisted by RSL Pensions Officers in making his claims and some of the information included in the claims is misleading. The Applicant gave sworn evidence of what occurred in Japan and his evidence about the pistol whipping incident has been corroborated by ECL Crawford in a statement dated 23 July 2001 (T25). The Applicant gave evidence of the other two incidents in Japan to both the Tribunal and the VRB.
Mr Winship said the Applicant had first aid experience with the Ambulance Service in Australia during the War and, on enlistment, was initially posted to the Medical Corps. For the first six months of his service in Japan he served in the Australian General Hospital and thus he knew the RAP personnel, and was able to come and go freely and self-medicate.
The Applicant said A46 sick reports were often not completed at the RAP. In a report dated 18 July 1990 (T3B/23J), Dr Barry Cant, Physician, refers to an x-ray of the Applicant's cervical spine made on 16 October 1989 "which showed an old fracture of the spinous process of C7". Mr Winship said this could have occurred in Japan, for example after the car accident when the Applicant was taken to the Australian General Hospital but left after seeing the orderlies, and went instead to his RAP.
Mr Winship said the Applicant did not understand the difference between his service in Japan and his later service in Australia. He thought both were qualifying service. The Applicant was misled in completing the claim forms by the RSL Pensions Officers. It was not until the Applicant sought legal advice that he realised the significance of his Japanese service. The evidence he subsequently gave to both the VRB and the Tribunal about the incidents in Japan is too clear and detailed to be contrived. The 1950 accident merely aggravated the conditions from which the Applicant was already suffering when he returned to Australia.
Mr Winship said that the Applicant relies on clause 5(a) of the relevant SoPs on lumbar spondylosis and cervical spondylosis: he suffered a trauma to the lumbar and cervical spine before the onset of these conditions, and suffered acute symptoms immediately thereafter and continues to suffer symptoms.
RespondentMr Marsh, for the Respondent, pointed to the four steps to be followed in making a determination set out by the Full Federal Court in Repatriation Commission v Deledio [1998] FCA 391. He noted that the Federal Court decision in Connors v Repatriation Commission [2000] FCA 783 emphasises that for a hypothesis raised to be reasonable, there must be evidence pointing to each individual element in the SoP.
Mr Marsh said the definitions of "trauma" in the two relevant SoPs are expressed in identical terms. The Respondent submits that the definitions contemplate a significant injury and one that would require medical attention. Mr Marsh referred the Tribunal to Finn J's decision in Harris v Repatriation Commission [2000] FCA 873 which was approved on appeal by the Full Federal Court: Harris v Repatriation Commission [2000] FCA 1687. See also Arnott v Repatriation Commission [2000] FCA 1336, Mason v Repatriation Commission [2000] FCA 1409, Cook v Repatriation Commission [2000] FCA 1756, and Arnott v Repatriation Commission [2001] FCA 282.
Mr Marsh said the Applicant's is an evolutionary tale. For nine years from 1990, the accident in 1950 remained the focus of the Applicant's claims, and the Applicant must accept responsibility for what he stated in those claim forms. In the medical reports of that period, for example those of Dr Cant dated 18 July 1990 (T 3B/23J) and Dr Delaforce, dated 17 July 1990 (T3B/23HA), there is no mention of the incidents in Japan. The Applicant's claim in 1995 (T4) was the first time he made a claim in respect of his lower back and the 1950 accident was stated to be the cause of the disability. Dr Baz's report in 1995 (T5), Professor Sambrook's report in 1995 (T7), and the 1996 VRB decision (T10) all focus on the 1950 accident and make no mention of the incidents in Japan. It was only in 1999, in Dr Benanzio's report (T16), that there is mention of the two incidents in Japan.
Even in the VRB decision of 31 May 2001 (T23), there is no mention of a neck injury in relation to the Applicant's motorcycle accident at the Kure Docks - the VRB records that he hit his right forehead, and there is no mention of a spinal injury from the staff car accident. Moreover, the Applicant's service medical records from that period (T3/22) contain no record of neck or back pain.
Mr Marsh submitted there is no history of a significant injury of the type contemplated by Finn J in Harris (supra). The Explanatory Notes for two predecessors of the relevant SoPs tabled in 1995 (R2) also indicate that a soft tissue injury is not enough – the injury must also cause initial internal damage to the joint or disc. The mere fact of an injury does not satisfy the SoP definition of "trauma". Mr Marsh noted that the only current medical evidence concerning the Applicant's claims is that of Dr David Millions, Surgeon, who states in his report dated 7 January 2002 that the degenerative changes in the Applicant's neck and back are "almost certainly … constitutionally based and age related" (R1).
Mr Marsh concluded that the Applicant has not satisfied the third step set out in Deledio (supra) by failing to establish that the hypothesis raised is a reasonable one. Thus, the Respondent submits that the VRB decision under review should be affirmed
Consideration of the Law and FindingsThe issue for the Tribunal to determine is whether the Applicant's lumbar and cervical spondylosis are war-caused in accordance with the provisions of the Act. The steps to be followed in making such a determination were stated by the Full Federal Court in Deledio (supra). The first step requires the Tribunal to consider all the material 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. The connection must be established to the "reasonable satisfaction of the Tribunal", pursuant to s 120(4). In the Tribunal's view, the Applicant's evidence of having been injured during his service in Japan and of his symptoms thereafter, points to a hypothesis connecting the claimed injuries with the Applicant's operational service.
The second step, where the material raises such a hypothesis, requires the Tribunal to consider whether there is in force any relevant SoP. In this case, there are relevant SoPs both for lumbar spondylosis, Instrument No 27 of 1999, and cervical spondylosis, Instrument No 31 of 1999. Having ascertained this, the third step requires the Tribunal to decide whether, in its opinion, the hypothesis raised is a reasonable one. As stated by the Full Federal Court in Repatriation Commission v Budworth [2001] FCA 1421, the standard of proof to be applied is that provided by subsection 120(4), of "reasonable satisfaction". For a hypothesis raised to be a reasonable one, there must be material before the Tribunal which points to each of the required individual elements in the SoP: Connors (supra).
In the Applicant's case, the SoPs for both lumbar spondylosis and cervical spondylosis set out in clause 5 the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting the condition with the circumstances of the person's relevant service. The Applicant contends that clause 5 (h) is satisfied in each case:
SoP No 27
(h) Suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis;
SoP No 31:
(h) suffering a trauma to the cervical spine before the clinical onset of cervical spondylosis;
In the case of both SoPs, clause 8 contains relevant definitions including of "trauma to the lumbar spine" and "trauma to the cervical spine" respectively. These are defined as meaning (with the alternate condition added):
A discrete injury to the lumbar cervical spine that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain and tenderness, and either altered mobility or range of movement of the lumbar/cervical spine. These acute symptoms and sighs must last for a period of at least seven days following their onset …
The Tribunal acknowledges that the 1995 Explanatory Notes to two predecessors to the two SoPs (R1) emphasise that a soft tissue injury must be accompanied by initial internal damage to the joint or disc. The Tribunal also notes the discussion in both Finn J's and Full Federal Court's decision in Harris (supra). Finn J, at paragraph 32, recognised that the 1995 SoP on lumbar spondylosis contemplated "a significant injury". The Full Court focused on the definition of "trauma to the lumbar spine" expressed in similar terms to that in the 1999 SoP. The Court, at paragraph 51, said the natural reading of the definition is that "the acute symptoms and signs of pain, tenderness and altered mobility must have lasted for at least a week".
The question then is whether the hypothesis raised in the case of each of the Applicant's two claimed conditions is a reasonable one. The issue to be determined is whether there is material pointing to the Applicant suffering a trauma to his lumbar or cervical spine before the clinical onset respectively of lumbar or cervical spondylosis. In terms of the clause 5 definitions, was there a discrete injury to his lumbar or cervical spine that caused the development, within 24 hours, of acute symptoms and signs of pain and tenderness, and either altered mobility or range of movement of the lumbar or cervical spine, remembering that this must have been a significant injury?
The Tribunal accepts the Applicant's evidence as to three specific incidents in Japan. First, on one occasion at Kure Docks, he fell off his motorbike onto some rubble hitting his head, right shoulder and lower back. He felt numbness and aching, was given pain-killers, and was off work for one to one and a half weeks. After a period on light duties, the Applicant returned to dispatch riding. In the Tribunal's view, there is insufficient evidence to establish that any significant injury occurred as a result of this incident. The second incident involved a car crash when the Applicant was a passenger in a staff car which swerved, hit a light pole and rolled over. Although the driver of the car subsequently died, there is insufficient evidence to establish that significant injuries were suffered by the Applicant: he was sore around the head, shoulders, back and hips, was given pain-killers and had symptoms for about two weeks. The third incident occurred in January 1948 when the Applicant was pistol whipped by two Japanese ex-military personnel. There is a statement by ECL Crawford (T25) who was a provost in Kure at that time and who was called to investigate the incident. The Applicant bled from the right ear and suffered severe head pain. He is now deaf in the right ear. While the Tribunal accepts that the Applicant may have suffered a significant injury to his right ear, there is insufficient evidence to establish that the Applicant suffered a significant injury to his neck or back. The Tribunal notes the Applicant's evidence as to his familiarity with his RAP personnel, the lack of formal record keeping and his ability to self-medicate. Nevertheless, in the Tribunal's view, had the three incidents described or the other occasions when the Applicant strained his back in other motorbike accidents or lifting jeeps, given rise to significant injuries, it is likely that he would have been examined by a doctor and a medical record kept. It seems most likely that the various incidents caused strain and/or bruising to the Applicant's spine which resolved within a few weeks.
By contrast, the motorbike accident in March 1950 at Puckapunyal appears to have been of a more serious nature. The Applicant was hospitalised for two to three weeks at Heidelberg Repatriation Hospital and remembers having morphine injections. There is also evidence of him being admitted to hospital for a few days about 1 June 1950, complaining of headaches. The Tribunal notes that a report by Dr Barry Cant dated 18 July 1970 (T3B/23J) refer to an x-ray of the Applicant's cervical spine made on 16 October 1989:
which showed an old fracture of the spinous process of C7 and extensive degenerative changes involving the disc spaces and the apophyseal joints at many levels.
In the Tribunal's opinion, the old fracture referred to is more likely to have been the result of the 1950's accident than of the earlier incidents in Japan, given the more significant injuries suffered in that accident.
With regard to Mr Marsh's description of the Applicant's account as "an evolutionary tale", the Tribunal accepts that the Applicant may not have been aware of the significance of the injuries being claimed occurring during operational service and relied on the advice and assistance of RSL Pensions Officers. Nevertheless, the focus in the Applicant's claims on the 1950 accident being the cause of the claimed disability also accords with the apparently more serious nature of that accident when compared with the earlier incidents in Japan. The Tribunal also notes that the Applicant made no claim in respect of his lower back until March 1995 (T4), when the 1950 accident was stated to be the cause of the disability. Moreover, the most recent medical evidence, that of Dr Millions dated 7 January 2002 (R1), suggests that the Applicant's lumbar and cervical spondylosis is "constitutionally based and age related".
In conclusion, the Tribunal is not satisfied that, during his service in Japan, the Applicant suffered a discrete injury to either his lumbar or cervical spine of a sufficiently significant nature to satisfy the requirement of the SoPs that he suffered a "trauma" to either the lumbar or cervical spine. Thus, the Tribunal determines that neither of the hypotheses raised are reasonable. Having so decided, the Tribunal need not proceed to the fourth step required by the approach adopted in Deledio (supra), which would have required the Tribunal to consider whether, if a reasonable hypothesis was raised, it was satisfied beyond reasonable doubt that the Applicant's conditions did not arise from the respective war-caused injuries.
The Tribunal therefore affirms the decision under review.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 18 June 2002
Date of Decision 3 July 2002
Representative for the Applicant Mr B WinshipRepresentative for the Respondent Mr J Marsh
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