Margaret Ashton and Repatriation Commission
[2014] AATA 897
•4 December 2014
[2014] AATA 897
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/0864
Re
Margaret Ashton
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Senior Member A C CotterDate 4 December 2014 Place Brisbane
The Tribunal affirms the decision under review.
.............................[Sgd]...........................................Senior Member Bernard J McCabe
CATCHWORDS
VETERANS’ AFFAIRS – Whether death of veteran from ischemic heart disease connected to circumstances of operational service – Lumbar spondylosis – Signs and symptoms did not persist for seven days following the injury – Principles establishing connection between injury and service not satisfied – Decision under review affirmed.
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth), ss 13, 120
SECONDARY MATERIALS
Statement of Principles concerning lumbar spondylosis No. 62 of 2014
Statement of Principles concerning ischaemic heart disease No. 89 of 2007
REASONS FOR DECISION
Senior Member Bernard J McCabe
Senior Member A C Cotter
4 December 2014
INTRODUCTION
Mrs Margaret Ashton has applied for a widow’s pension under the
Veterans’ Entitlements Act 1986(Cth) (“the Act”). Her entitlement to a pension turns on whether the death of her late husband was war-caused within the meaning of
s 13 of the Act.BACKGROUND
The late veteran, Mr Roy Ashton, enlisted in the Army in 1942 and was discharged in 1946. This period constitutes operational service for the purpose of the Act. He served in Australia and overseas. For most of that time, he was a medical orderly attached to regimental aid posts. Both parties accept Mr Ashton had an accident while he was undergoing a course of physical training at Kapooka Army base. He was climbing a rope ladder when he fell and hurt his back. Both parties also accept Mr Ashton had
“a dodgy back” for the rest of his life.Mr Ashton died in 2012. The causes of death on his death certificate are listed as
“1(a) Myocardial infarction; (b) ischaemic heart disease; 2. Parkinson’s disease, Atrial fibrillation.”The parties accept the kind of death suffered by Mr Ashton was (or included)
ischaemic heart disease. They also agree the date of onset of ischaemic heart disease was in 2010 when Mr Ashton had stents inserted. Our task is to determine whether there is any link between that kind of death and the circumstances of Mr Ashton’s Army service.CONSIDERATION
The parties agree – and we accept – Mr Ashton was unable “to undertake any physical activity greater than three METs for at least the five years before the clinical onset of ischaemic heart disease”. That is the requirement set out in factor 6(j) of the
Statement of Principles concerning ischaemic heart disease No. 89 of 2007. The dispute in this case arises in relation to the next element in the hypothesis proffered by the applicant.Mr Harding, who appeared for Mrs Ashton, explained the applicant’s case as follows.
Mr Ashton’s ischaemic heart disease was at least partly explicable by an inability to exercise at an appropriate level in the five years before the date of onset of that condition. The inability to exercise at the appropriate level was at least partly caused by the debilitating effects of Mr Ashton’s back condition, and that condition was a product of the trauma inflicted when he fell from the rope ladder during training at Kapooka.
The Commission, for its part, argues the material does not point to a conclusion that
Mr Ashton’s back condition:(a)arose out of his service; or
(b)contributed to his inability to exercise at the requisite level during the period of 2005-2010.
Lumbar spondylosis
We will deal firstly with the applicant’s hypothesis that Mr Ashton’s lumbar spondylosis condition arose out of his operational service. That requires us to follow a reasoning process set out in ss 120(1) and (3) of the Act. The first step in that process requires us to identify facts which point to or support the hypothesis which has been raised.
The Commission says the applicant’s case must fail at this point of our inquiry. We are not so sure: we accept the applicant has pointed to material that is capable of supporting the hypothesis, at least at a general level. The applicant has identified an incident that is capable of providing a mechanism of injury, and that injury may well have been of sufficient severity to damage Mr Ashton’s back so that he developed lumbar spondylosis relatively early in life – and that degenerative back condition may have impacted on his ability to exercise. We acknowledge there is no medical evidence that expressly endorses that chain of reasoning, but we are prepared to accept it for present purposes. We think the real problem for the applicant arises when we consider the material with reference to the Statement of Principles concerning lumbar spondylosis No. 62 of 2014 (there being no dispute Mr Ashton suffered from that condition). That Statement of Principles refers to “having trauma to the lumbar spine at least one year before the clinical onset of lumbar spondylosis” as a factor (factor 6(h), to be precise) that may connect the condition with the circumstances of Mr Ashton’s service.
The expression “trauma to the lumbar spine” is defined in cl 9 of the
Statement of Principles. The whole of the definition must be satisfied, so we shall reproduce it in its entirety:"trauma to the lumbar spine" means a discrete event involving the application of significant physical force, including G force, to the lumbar spine that causes the development within twenty-four hours of the injury being sustained, of symptoms and signs of pain and tenderness and either altered mobility or range of movement of the lumbar spine. In the case of sustained unconsciousness or the masking of pain by analgesic medication, these symptoms and signs must appear on return to consciousness or the withdrawal of the analgesic medication. These symptoms and signs must last for a period of at least seven days following their onset; save for where medical intervention has occurred and that medical intervention involves either:
(a) immobilisation of the lumbar spine by splinting, or similar external agent;
(b) injection of corticosteroids or local anaesthetics into the lumbar spine; or
(c) surgery to the lumbar spine.
We accept the applicant has described “a discrete event involving the application of significant physical force… to the lumbar spine”. The event in question is the fall from a ladder during the physical training course at Kapooka that probably occurred in 1942 before Mr Ashton went overseas. The fall is described in slightly different ways in
Mr Ashton’s words in a statement provided on a previous occasion to the
Veterans’ Review Board[1] and in the pages of a book he wrote about his life, extracts of which were appended to the applicant’s statement.[2] We also accept that evidence establishes Mr Ashton developed “symptoms and signs of pain and tenderness” within
24 hours of the fall: the statement tendered to the Veterans’ Review Board speaks of
Mr Ashton’s “sore and sorry state”, while the extract from Mr Ashton’s book explains in more detail how the late veteran experienced so much pain and discomfort the day after the incident that he considered putting himself on the sick parade he conducted in his capacity as a medical orderly. The evidence confirms he took pain relief.
[1] Exhibit 1, page 7.
[2] Exhibit 2.
The rest of the definition becomes problematic because the applicant concedes there is no direct evidence that Mr Ashton experienced “either altered mobility or range of movement of the lumbar spine” or that the signs and symptoms persisted for at least seven days. We are satisfied we can infer Mr Ashton would have experienced altered mobility or range of movement that accompanied the onset of pain, if only because it is common for a person to experience stiffness in conjunction with back pain. But is there material from which we could infer the stiffness and the back pain persisted over seven days?
Mr Harding, who appeared for Mrs Ashton, said we could infer the signs and symptoms persisted for at least a week because Mr Ashton reported (in exhibit 7, at page 3 of a
3-page statement in support of a claim) “Following the accident I was unable to sleep on a palliase [straw-filled mattress] without a folded blanket under my back.” Mr Harding noted the veteran also spoke of restrictions on his sporting activities when he was discharged which suggested he experienced restrictions.
CONCLUSION
Without making any finding of fact, we do not think the evidence referred to by
Mr Harding is capable of meeting the requirement in the definition that signs and symptoms must persist for at least seven days following the injury. The evidence, if it is accepted, goes no further than establishing Mr Ashton began to experience back problems during the course of his service. That is not enough to fit within the template of the statement of principles. It follows the applicant’s claim cannot succeed.
DECISION
The decision under review is affirmed.
I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe, and Senior Member AC Cotter. ............................[Sgd]............................................
Associate
Dated 4 December 2014
Date of hearing 21 November 2014 Counsel for the Applicant Anthony Harding Solicitors for the Applicant Terence O'Connor, Terence O'Connor Solicitor Advocate for the Respondent Gerald Purcell, Department of Veterans' Affairs
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