Mark Dawson and Repatriation Commission

Case [2014] AATA 546

[2014] AATA 546 

Division VETERANS' APPEALS DIVISION

File Number(s)

2013/1877

Re

Mark Dawson

APPLICANT

And

Repatriation Commission

RESPONDENT

Decision

Tribunal

Deputy President RP Handley
Date 8 August 2014
Place Sydney

(1) The decision under review is set aside and a decision substituted that Mr Dawson’s conditions of intervertebral disc prolapse at C5/6 and cervical spondylosis are defence-caused.

(2)   The Tribunal remits the matter to the Respondent to determine the rate of disability pension payable to Mr Dawson.

..........................[sgd]..............................................

Deputy President RP Handley

Catchwords

VETERANS' AFFAIRS – disability pension – intervertebral disc prolapse – cervical spondylosis – whether conditions are defence-caused – consideration of relevant Statements of Principles – decision set aside and substituted

Legislation

Veterans’ Entitlements Act 1986 (Cth) ss 70, 120, 120B

Cases

Kaluza v Repatriation Commission [2011] FCAFC 97
Lees v Repatriation Commission [2002] FCAFC 398
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Gorton (2001) 110 FCR 321
Robertson and Repatriation Commission (1998) 50 ALD 668

Secondary Materials

Statement of Principles Concerning Cervical Spondylosis, No. 34 of 2005
Statement of Principles Concerning Cervical Spondylosis, No. 67 of 2014
Statement of Principles Concerning Intervertebral Disc Prolapse, No. 40 of 2007

REASONS FOR DECISION

Deputy President RP Handley

  1. Mr Dawson has applied to the Tribunal for the review of a decision of the Repatriation Commission (the Commission) to refuse his claim for a disability pension in respect of the conditions cervical spondylosis and intervertebral disc prolapse at C5-C6.

    BACKGROUND

  2. Mr Dawson was born in 1964 and is aged 49. He left school at the age of 16, after which he worked as a labourer and apprentice electrician. Mr Dawson served in the Royal Australian Navy (Navy) from 2 April 1986 to 20 February 1995, which constitutes defence service for the purposes of the Veterans’ Entitlements Act 1986 (the VEA). Mr Dawson worked as an engineering sailor and was a Leading Seaman Marine Technical Propulsion on discharge.

  3. After being discharged from the Navy, Mr Dawson worked as a prison officer for the NSW Department of Corrective Services from 27 January 1998 to 7 October 1998. He was medically retired from this position due to back problems. Subsequently, after working at the Army Military Police Training School, and undertaking their training regime, he felt he was fit enough for Army service. He applied and was accepted into the Australian Army in 2001 but was medically discharged after his symptoms returned on the second day of recruit training. Mr Dawson also worked as a clerk in the Department of Defence for about two years and then for the Australian Security and Intelligence Organisation (ASIO) overseeing maintenance contracts. He said he was dismissed from ASIO as a result of the restrictions imposed by his injuries. Mr Dawson said he currently has a part-time clerical position in the Public Service (in the Office of the Director of Public Prosecutions) at a much reduced income from that which he could ordinarily have expected, given his qualifications. However, he has been unable…

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AGLC
Mark Dawson and Repatriation Commission [2014] AATA 546
Case
[2014] AATA 546
Decision Date

CaseChat Overview and Summary

The case of Mark Dawson versus the Repatriation Commission involves a dispute over the eligibility of Mr Dawson for a disability pension in respect of cervical spondylosis and intervertebral disc prolapse at C5-C6. The decision of the Commission to refuse Mr Dawson’s claim was reviewed by the Veterans’ Review Board, which affirmed the decision, leading to Mr Dawson seeking further review from the Tribunal. Mr Dawson, a former member of the Royal Australian Navy, has several conditions accepted as defence-caused and is currently receiving a disability pension at 70% of the General Rate. His claim for an increase in pension due to the additional conditions was refused on the ground that they were not defence-caused.

The primary legal issue before the court was whether Mr Dawson’s cervical spondylosis and intervertebral disc prolapse at C5-C6 were connected to his service in the Navy, thereby qualifying him for an increased disability pension. This required an assessment of the evidence provided by Mr Dawson, including expert medical opinions, against the relevant criteria set out in the applicable Statements of Principles. The court also had to consider the credibility of Mr Dawson's claims in light of the lack of contemporaneous medical documentation and apparent inconsistencies in his evidence.

The court found that while there was limited medical documentation supporting Mr Dawson’s claims from the period of his Navy service, the overall evidence, including expert medical opinions and Mr Dawson's efforts to obtain employment post-service, was sufficient to establish a connection between his claimed conditions and his defence service. The court held that Mr Dawson’s cervical spondylosis was indeed defence-caused, and thus set aside the Commission’s decision. The matter was remitted to the Commission to determine the appropriate rate of disability pension payable to Mr Dawson.

The court's decision underscores the importance of considering the totality of evidence and the context in which claims are made, particularly when documentation is sparse. It also highlights the need for a balanced approach in evaluating the credibility of claimants in veterans' affairs cases.

Orders

Orders of the court

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Background

Background to the litigation

Mr Dawson has applied to the Tribunal for the review of a decision of the Repatriation Commission (the Commission) to refuse his claim for a disability pension in respect of the conditions cervical spondylosis and intervertebral disc prolapse at C5-C6.BACKGROUND Mr Dawson was born in 1964 and is aged 49. He left school at the age of 16, after which he worked as a labourer and apprentice electrician. Mr Dawson served in the Royal Australian Navy (Navy) from 2 April 1986 to 20 February 1995, which constitutes defence service for the purposes of the Veterans’ Entitlements Act 1986 (the VEA). Mr Dawson worked as an engineering sailor and was a Leading Seaman Marine Technical Propulsion on discharge. After being discharged from the Navy, Mr Dawson worked as a prison officer for the NSW Department of Corrective Services from 27 January 1998 to 7 October 1998. He was medically retired from this position due to back problems. Subsequently, after working at the Army Military Police Training School, and undertaking their training regime, he felt he was fit enough for Army service. He applied and was accepted into the Australian Army in 2001 but was medically discharged after his symptoms returned on the second day of recruit training. Mr Dawson also worked as a clerk in the Department of Defence for about two years and then for the Australian Security and Intelligence Organisation (ASIO) overseeing maintenance contracts. He said he was dismissed from ASIO as a result of the restrictions imposed by his injuries. Mr Dawson said he currently has a part-time clerical position in the Public Service (in the Office of the Director of Public Prosecutions) at a much reduced income from that which he could ordinarily have expected, given his qualifications. However, he has been unable to work for more than a year. Mr Dawson has a number of conditions which have been accepted as defence-caused: ·intervertebral disc prolapse with referred pain syndrome right leg (17 June 1998)·haemorrhoids (1 November 2009)·sensorineural hearing loss (1 November 2009)·lumbar spondylosis (1 November 2009) On 15 April 2011, Mr Dawson lodged a further claim for disability pension in respect of cervical spondylosis and intervertebral disc prolapse at C5-C6, and for an increase in the rate of his disability pension. He is currently receiving a pension at 70% of the General Rate. On 4 April 2012, a delegate of the Commission decided to refuse his claim for the pension on the ground that it was not defence-caused. On 15 March 2013, the Veterans’ Review Board (VRB) affirmed the decision and, on 26 April 2013, Mr Dawson applied to the Tribunal for a further review. The Applicant provided the Tribunal with expert medical reports from Dr Medhat Guirgis, Orthopaedic Surgeon, dated 9 October 2013 and 3 February 2014. The Respondent provided an expert medical report from Dr David Millons, Orthopaedic Surgeon, dated 11 November 2013. Both Dr Guirgis and Dr Millons gave evidence at the hearing, Dr Guirgis by telephone. Dr Guirgis said spinal conditions are his special interest.The Relevant Law

Evidence

Evidence Before The Court

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Decision

Reasons for decision

However, on the basis of my being satisfied that the requirements of factor 6(g) are met, I am satisfied on the balance of probabilities that Mr Dawson’s cervical spondylosis is connected with the circumstances of his defence service and, therefore, that his cervical spondylosis is defence-caused.Decision (1) The decision under review is set aside and a decision substituted that Mr Dawson’s conditions of intervertebral disc prolapse at C5/6 and cervical spondylosis are defence-caused. (2) The Tribunal remits the matter to the Respondent to determine the rate of disability pension payable to Mr Dawson.

Ratio Decidendi

Legal Principle Established

Mr Purcell also noted that on his application form for employment as a Correctional Officer and for entry into the Army he did not reveal that he was suffering from a back condition. (However, Mr Dawson said that, at those times, he was not suffering from back pain.)The Tribunal’s Consideration Mr Purcell has pointed to the inconsistencies between Mr Dawson’s evidence to the Tribunal and the documentary evidence, both the lack of information about his claimed conditions in the medical records and the answers he gave to questions asked in the forms he completed when applying for a position as a NSW Correctional Officer in 1998 and for entry into the Army in 2001. My impression of Mr Dawson is that he gave evidence genuinely, believing it to be true. I agree with Mr Purcell that there is a lack of contemporary medical documentation attesting to the claimed conditions between 1992 and 2001. However, the claimed conditions must be considered in the context of Mr Dawson also suffering from the accepted conditions of intervertebral disc prolapse (at L5/S1) with referred pain syndrome right leg for which he had spinal surgery in October 2012, and lumbar spondylosis. These accepted conditions have also been a focus of Mr Dawson’s attention and have required medical treatment. I am not satisfied that Mr Dawson has sought to mislead the Tribunal. I agree with Ms Rebehy that the evidence indicates that he has gone to considerable lengths to try and obtain employment and get his life back on track. At the time that he sought an appointment as a Correctional Officer and, a few years later, entry into the Army, he had not been diagnosed with either of the claimed conditions, he was symptom free, and he believed his back condition had improved such that he could undertake the required work. Unfortunately for him, in each case this quickly proved not to be so. With regard to his smoking, I accept that Mr Dawson has continued to be a ‘social smoker’ until very recently but, particularly since he was diagnosed with tongue cancer in 2007, he has not purchased cigarettes. It is, however, less clear whether he smoked continually through the period of his Navy service. In the ‘Claimant Report – Smoking’ that Mr Dawson completed on 11 May 2010, he stated that he smoked between October 1989 and June 1991 when he stopped smoking permanently. Mr Dawson’s evidence to the Tribunal contradicts this. While I accept that he has continued to smoke at various times, including very likely during other periods in his Navy service, I am not satisfied that he meets the requirement stated in factor 6(f) of SoP No 40 of 2007 of smoking the required number of cigarettes for a continuous period of at least five years before the clinical onset of intervertebral disc prolapse. I acknowledge that it is difficult to identify the date of the clinical onset of Mr Dawson’s intervertebral disc prolapse at C5/6 with any great precision given the paucity of the medical evidence, and the fact that that the incidents to which Mr Dawson attributes the claimed conditions occurred between 24 and 28 years ago. I do not accept, however, that Mr Dawson’s claims should be disadvantaged by the lack of relevant documentation provided that there is other credible evidence to support his claims.