Ludlow and Repatriation Commission
[2000] AATA 1127
•20 December 2000
DECISION AND REASONS FOR DECISION [2000] AATA 1127
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V1999/1306
VETERANS' APPEALS DIVISION )
Re ALBERT LESLIE LUDLOW
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr B. H. Pascoe, Senior Member Mr J. T. C. Brassil, AM, Member Assoc. Professor J. Maynard, Member
Date20 December 2000
PlaceMelbourne
Decision The Tribunal sets aside the decision under review and in its stead finds that lumbar spondylosis is war-caused and that the applicant's war-caused conditions gives an entitlement to a pension at 60 per cent of the general rate.
..…..(Sgd) B. H. Pascoe……...
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – lumbar spondylosis – osteoarthritis – whether Statements of Principles satisfied – whether trauma – assessment of rate of pension – impairment rating for condition of post traumatic stress disorder
Veterans' Entitlements Act 1986
Arnott v Repatriation Commission [2000] FCA 1336
REASONS FOR DECISION
20 December 2000 Mr B. H. Pascoe, Senior Member
Mr J. T. C. Brassil, AM, Member Assoc. Professor J. Maynard, Member
This is an application to review a decision of the Veterans' Review Board ("VRB") of 23 August 1999 which affirmed a decision of the respondent of 11 May 1998. That decision accepted claims for bilateral sensorineural hearing loss and post traumatic stress disorder ("PTSD"), denied claims for lumbar spondylosis and osteoarthritis left knee and assessed an entitlement to pension at 40 per cent of the general rate.
At the hearing the applicant was represented by Mr M. O'Brien of counsel and the respondent by Mr E. Nyhof, an advocate of the respondent. Evidence was given by the applicant, Mr Ludlow and two consultant psychiatrists, Dr B. Kenny and Dr E. Cole. The Tribunal had the documents provided by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T20). The respondent also tendered a Combined Impairment Assessment dated 5 July 2000 by Dr F. Morgan, Senior Medical Officer (Exhibit R2), a report from Mr C. Logan, an audiologist dated 21 July 2000 (Exhibit R3) and a copy of the transcript of the hearing before the VRB (Exhibit R4).
Mr Ludlow served in the Australian Army from 12 July 1967 to 11 July 1969. He served in Vietnam from 21 May 1968 to 28 November 1968 which constituted eligible war service and operational service. He provided a written statement (Exhibit A1) which said:
"2. During my service in Vietnam, I was required to jump 4-5 feet from a truck carrying a full pack with 4 days' food rations and rifle. On at least one of these occasions my back became sore and it was very difficult to continue with my duties, although I did do this as I did not want to let my mates down. On another occasion I had to jump approximately 8 feet from a helicopter. It was difficult to judge the distance from the helicopter to the ground as the grass was often 3-4 feet high. On one of these occasions when I landed, my back was extremely sore and I had difficulty picking up my pack and running to shelter. I was out on operation at this stage, and was carrying a grenade launcher.
3. My left knee injury resulted from the same incident. We were out on patrol for 6 weeks and there was no one to report this incident to. I had to ask my mates to help me with my back pack as my back was very sore. One on patrol in frustration I actually threw my grenade launcher away because it was heavy, it was getting caught in the jump and was causing my back to hurt. I was quickly reprimanded and had to retrieve it and carried it.
4. The operation lasted for approximately six weeks and I recall that I was in pain for a lot of that time, my movements were restricted, I was only about 50% fit, however I still had to do my duties. When I returned to Australia I immediately had problems with my back, for example I had to hang from raftes [sic] at home in order to obtain some relief.
5. I have consulted Doctors, Chriopractors [sic] etc. for my back and knee since my discharge. My back and knee have been getting progressively worse since my service."
In his oral evidence, Mr Ludlow said that he had bad pain in his back for 30 minutes to one hour and it remained sore for two to three weeks. He said that he could not bend over, had reduced mobility and needed help from his companions. He accepted that he did not report any back or knee problems on discharge but believed that they had cleared up by then. In the transcript of the hearing before the VRB, Mr Ludlow stated that he was never incapacitated by back pain or leg pain in Vietnam and any pain was short term only. At this hearing, he said that he had assumed the questions by the VRB referred to "real sharp pain" and this had lasted no more than one hour while general pain lasted for days. Mr Ludlow was unable to explain a comment by Dr Hall, who examined him on 27 March 2000, that:
"He has no recollection of any injuries affecting his knees or low back though he jumped from helicopters and did experience some back discomfort with this. He never reported this to anyone and he performed his usual duties."
Mr Ludlow believed that he had told Dr Hall that he had hurt his back. He agreed that his work as a wall and floor tiler could be a heavy job with strain to the back and knees. If he does floor tiling for three successive days, he needs a day off to recover.
In relation to the effect of his post traumatic stress disorder, Mr Ludlow said that he is nervous in the dark, is easily startled by loud noises such a nail gun, has trouble sleeping and suffers from nightmares and night sweats. He said that torrential rain revives memories of the events in Vietnam and he can become upset at seeing war films. He is not a member of the RSL and does not attend Anzac Day marches. He finds it difficult to talk of the war and suffers depression and lack of concentration.
Dr Kenny examined Mr Ludlow on 6 June 2000 and provided a report dated 13 June 2000 (Exhibit R1). He was not convinced that Mr Ludlow has "the full blown Post Traumatic Stress Disorder" but "a combination of personality traits with some PTSD-type symptoms". He believed that Mr Ludlow's physical symptoms not his psychological symptoms caused some limitation in his work. Dr Kenny's assessment under Tables 4.1 to 4.8 of the Guide to Assessment of Rates of Veterans' Pensions ("GARP") produced a score of 11 points.
Dr Cole examined Mr Ludlow on 3 February 2000 and provided a report dated 11 February 2000. He was of the opinion that Mr Ludlow is suffering from a chronic PTSD directly attributable to his service in Vietnam. Dr Cole's rating under the GARP tables produced a score of 27 points.
It was submitted for the applicant that he satisfied the relevant Statement of Principles ("SoP") for lumbar spondylosis and osteoarthritis. The assessment of the GARP score for PTSD by Dr Cole was relied upon. For the respondent it was submitted that Mr Ludlow did not satisfy the SoP for the back and knee. In particular, it was argued that the factor relied upon of "trauma" was not satisfied. In relation to the assessed score for the accepted condition of PTSD, Mr Nyhof argued that an appropriate score under Tables 4.1 to 4.8 was 11 points.
Section 120(3) of the Veterans' Entitlements Act 1986 ("the Act") requires the material before the Tribunal to raise a reasonable hypothesis connecting the conditions claimed with the circumstances of Mr Ludlow's operational service. Under section 120A, if there is in force a SoP issued by the Repatriation Medical Authority in relation to the condition, then the hypothesis is reasonable only if the relevant SoP upholds such hypothesis. The relevant SoPs here are those concerning osteoarthrosis (Instrument No. 71 of 1995 as amended by Instruments No. 336 of 1995 and 352 of 1995) and lumbar spondylosis (Instrument No. 165 of 1996). Both SoPs list the factors, one of which must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised. For both conditions the factor relied upon by the applicant and the only one on which he could rely, on the evidence before the Tribunal, was "suffering a trauma to the relevant joint before the clinical onset of osteoarthritis in that joint and "suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis". The definition of trauma in each of the SoPs is almost identical. For osteoarthrosis, the definition of "trauma to the relevant joint" is:
"…a joint injury 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, swelling, 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."
For lumbar spondylosis, the definition states:
"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."
The first question to be considered here is whether, on the evidence, the applicant developed "acute" symptoms and signs which lasted for a period of at least one week. While it might be considered that the SoPs were drafted by medical practitioners and that the use of the word "acute" should convey the meaning of sudden onset, so that it refers to the short period over which the symptoms and signs develop rather than to the severity of the signs and symptoms, the Tribunal has the benefit of a decision of Sundberg J in Arnott v Repatriation Commission [2000] FCA 1336. In that case His Honour was required to consider the meaning of "acute" in Instrument No. 105 relating to lumbar spondylosis. His Honour said (at paragraph 15):
"In my view the word 'acute' in the definition contemplates symptoms etc that are severe or significant. The temporal factor is already dealt with by the words 'injury … that causes the development, within 24 hours of the injury being sustained …'. Since a precise temporal element has been stipulated, it would be strange if 'acute' were to mean 'of sudden onset'. The Tribunal thought 'acute' meant sudden and severe. It decided the issue against the applicant on the ground that the ankle and wire incidents did not give rise to severe symptoms rather than because the symptoms were not of sudden onset. Thus in relation to the ankle incident, the Tribunal said that the applicant suffered some back pain, that the ankle injury was considerably more severe, that there was no evidence that the ankle injury may have masked the severity of any back injury, and that the incident was not reported. In relation to the wire incident the Tribunal accepted that the applicant suffered some back pain. The conclusion that this pain did not amount to 'acute' symptoms is clearly a reference to the nature rather than the temporality of the symptoms. These conclusions were plainly open on the evidence, and indeed pointed to by it."
This Tribunal has commented in past decisions on the difficulty of meeting the trauma factor in these SoPs. While it is likely that repeated trauma involved in jumping from trucks and helicopters carrying heavy weight contributed to early degeneration of the lumbar spine and knee joint, this is not an accepted factor recognised by the SoPs. Similarly, it is accepted that the circumstances were such that a veteran would have carried on notwithstanding a degree of pain and the passing of time has made it difficult to be precise as to the specific symptoms and the period for which they lasted. Nevertheless, the Tribunal is bound by the factors set out in the SoPs and has to be satisfied on the balance of probabilities that Mr Ludlow suffered a trauma to the knee or the lumbar spine within the definitions.
In relation to the knee, we cannot be so satisfied. There is no evidence of suffering acute signs and symptoms for at least seven days. There is no evidence of swelling, tenderness, altered mobility or range of movement of the knee. In relation to the lumbar spine, Mr Ludlow's trauma statement and evidence indicate that there were symptoms of pain, altered mobility and range of movement for a period greater than seven days. The question is whether such symptoms were "acute". On balance we are prepared to accept that Mr Ludlow's symptoms were severe or significant. His explanation in evidence before the Tribunal, taking into consideration that the events occurred some 32 years ago, is accepted together with his explanation of evidence before the VRB. As a consequence we find that the claimed condition of lumbar spondylosis was war-caused.
The remaining issue is the appropriate rate of pension for the accepted conditions. The method of assessing incapacity is set out in the GARP pursuant to section 29 of the Act. The VRB found an impairment rating of one point for hearing loss, two points under Chapter 17 for bilateral ingrowing toenails and PTSD, two points for tinnitus and 16 points for PTSD under Tables 4.1 to 4.8. Dr Morgan assessed an impairment rating of 17 under Tables 3.3.1, 3.4.1 and 3.2.2 for lumbar spondylosis and we accept that rating. The only remaining issue between the parties before this Tribunal was the score for PTSD.
The assessment of the VRB was based on an assessment by Dr Parkin, a psychiatrist, dated 29 April 1998 who arrived at a score of 16 points. The assessment of Dr Morgan on 5 July 2000 was a score of 11 points. Dr Kenny assessed the score at 11 points and Dr Cole at 27 points. It is relevant to compare the individual scores of the three psychiatrists against each Table.
Table Dr Parkin Dr Kenny Dr Cole
4.1 Subjective Distress 3 3 6
4.2 Manifest Distress 6 3 6
4.3 Functional Effects 1 0 0
4.4 Occupation 0 0 6
4.5 Domestic Situation 2 2 3
4.6 Social Interaction 3 2 6
4.7 Leisure Activities 1 0 0
4.8 Current Therapy 2 1 216 11 27
It should be noted that the final score consists of the rating under Table 4.1, the rating under 4.2 and the three highest ratings from 4.3 to 4.8. The difference between 3 and 6 points in Table 4.1 depends on whether the veteran has recurring or frequent symptoms, whether they cause mild or moderate distress and whether or not the veteran is able to distract himself from the distress. On the evidence of the psychiatrists and of Mr Ludlow, we find a score of 3 is appropriate under this Table. Under Table 4.4, we find on the evidence of Mr Ludlow that there is minimal interference with work caused by PTSD. Current limitations appear to be caused by his physical problems rather than any psychiatric problems. Under Table 4.6, social interaction, a score of 6 is where there is general social withdrawal. We are unable to accept Dr Cole's assessment of that level and find that a score of two or three is appropriate. On balance we find that Mr Ludlow has a maximum score of 16 under Tables 4.1 to 4.8.
When the lumbar spondylosis score of 17 and the PTSD score of 16 points is combined with the 5 points for other accepted conditions, it produces a combined score of 34 points which is rounded up to 35 points under the GARP. This impairment rating with a lifestyle rating of 2 which is not in dispute, produces a pension of 60 per cent of the general rate. As a consequence, the decision of the VRB under review should be set aside and in its stead the decision should be to accept lumbar spondylosis as war-caused which together with other accepted conditions gives an entitlement to a pension at 60 per cent of the general rate.
I certify that the fifteen (15) preceding paragraphs are a true copy of the reasons for the decision herein of
Mr B. H. Pascoe, Senior Member
Mr J. T. C. Brassil, AM, Member
Assoc. Professor J. Maynard, MemberSigned: .....................................................................................
Personal AssistantDate/s of Hearing 6 September 2000
Date of Decision 20 December 2000
Counsel for the Applicant Mr M. O'Brien
Solicitor for the Applicant De Marchi and Associates
Solicitor for the Respondent Mr E. Nyhof, Departmental Advocate
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