MASLEN and REPATRIATION COMMISSION
[2011] AATA 568
•18 August 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 568
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/2555
VETERANS' APPEALS DIVISION ) Re KYM ROBERT MASLEN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member K Bean
Professor P L Reilly AO (Member)Date18 August 2011
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
..............................................
K BEAN
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – Veterans' entitlements – Eligible service – Lumbar spondylosis – Whether liability established – Connection with service raised on material – Connection not upheld by SoP – Decision under review affirmed.
Veterans’ Entitlements Act 1986 ss 70(1), 70(5), 70(7), 120(1), 120(4), 120B(3), 120B(4)
REASONS FOR DECISION
18 August 2011 Senior Member K Bean
Professor P L Reilly AO (Member)introduction
1.The applicant, Mr Maslen, served in the Royal Australian Air Force from 18 September 1979 to 17 September 1988 as a communications operator. In July 1982, while posted to the Butterworth RAAF Base in Malaysia, he was involved in a motor cycle accident in which the motor cycle he was riding was forced from the road and he was thrown from the motor cycle, landing on his back across a “monsoon drain”. Following that accident, he suffered some pain and stiffness in his back and some investigations were also undertaken in relation to his lower lumbar spine.
2.On 29 August 2008, he lodged a claim with the respondent (the Commission) for payment of disability pension in relation to the condition “lumbar spondylosis and disc prolapse”[1]. That claim was treated by the Commission as a claim for a fracture of the T9 spinous process which the Commission found was caused by a fall suffered by Mr Maslen on 24 June 2003. The Commission accordingly found that that condition was not related to his service and rejected the claim[2].
[1] T2/8
[2] T3/22
3.Mr Maslen subsequently sought review of that decision by the Veterans’ Review Board (VRB) and the VRB decided to vary the decision of the Commission by amending the diagnosis to include lumbar spondylosis. However, the VRB also decided that that condition was not connected to Mr Maslen’s service such as to entitle him to payment of disability pension and affirmed the decision of the Commission.
4.On 23 June 2010, Mr Maslen sought review of the decision of the Commission, as varied by the VRB, by this Tribunal.
the issue
5.It follows that the issue for our determination is:
·whether liability is established under the Veterans’ Entitlements Act 1986 (the VE Act) in relation to the condition of “lumbar spondylosis”.
6.This must be determined having regard to the applicable statutory framework, which we have set out below.
the statutory framework
7. Sub-section 70(1) of the VE Act provides for the Commonwealth to pay pension in respect of incapacity from a defence caused injury or disease:
“(1) Where:
(a) …
(b)a member of the Forces … is incapacitated from a defence‑caused injury or a defence‑caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c) …
(d)in the case of the incapacity of the member—pension by way of compensation to the member;
in accordance with this Act.”
Sub-sections 70(5) and 70(7) relevantly define “defence-caused injury” and “defence-caused disease” as follows:
“(5)For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence‑caused, an injury suffered by such a member shall be taken to be a defence‑caused injury or a disease contracted by such a member shall be taken to be a defence‑caused disease if:
(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
(b)subject to subsection (8), the death, injury or disease, as the case may be, resulted from an accident that occurred while the member was travelling, during any defence service or peacekeeping service of the member but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place upon having ceased to perform duty; or
(c)…………….
(d) the injury or disease from which the member died, or is incapacitated:
(i)was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease; or
(e)……………
…
(7)Where, in the opinion of the Commission, the incapacity of a member of the Forces or member of a Peacekeeping Force was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered defence service or peacekeeping service, as the case may be, or but for changes in the member’s environment consequent upon his or her having rendered any such service:
(a)if the incapacity of the member was due to an accident—that incapacity shall be deemed to have arisen out of the injury suffered by the member as a result of the accident and the injury so suffered shall be deemed to be a defence‑caused injury suffered by the member; or
(b)if the incapacity was due to a disease—the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a defence‑caused disease contracted by the member, for the purposes of this Act.”
8. Sub-section 120(4) sets out the standard of satisfaction applicable to making determinations or decisions under the Act as follows:
“(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re‑assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.”
9. Sub-section 120(1) applies to claims based on operational service and sub-s 120(2) applies to claims based on peace keeping or hazardous service. As neither of those provisions apply in this matter, the “reasonable satisfaction” standard is applicable. This has been held to be the same as the civil standard of proof or the balance of probabilities[3].
[3] Repatriation Commission v Smith (1987) 15 FCR 327
10. Sub-section 120B(3) sets out how Statements of Principles relate to the application of “reasonable satisfaction” standard when determining whether an injury or disease is defence-caused:
“(3)In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war‑caused or defence‑caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12); or
(ii) a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.”
11. It is accordingly clear that in applying s 120B, the first step (after determining what injury or disease is the subject of the claim and whether that condition exists) is to consider whether the material before the decision-maker raises a connection between the injury, disease or death of the person and some particular service rendered by the person. Clearly the relevant connection must be one or more of the connections to service specified in sub-s 70(5) or (7). The material before the decision-maker must raise such a connection on the balance of probabilities. If the probative material before the decision-maker does not raise such a connection, the claim cannot succeed.
12. However, where the probative material before the decision-maker does raise such a connection, the next step is to determine whether there is a relevant SoP in force, and to identify that statement or those SoPs.
13. If there is no SoP, the claim will succeed unless a disentitling provision applies such as those set out in sub-s 70(8)-(10).
14. If there is a SoP, the decision-maker must determine whether the contention of a connection that has been raised on the balance of probabilities by the material is upheld by the relevant SoP. If a factor in the SoP upholds the connection that has been raised, the claim succeeds unless a disentitling provision applies. If it does not uphold the contention, the claim fails.
15.Relevantly to Mr Maslen’s claim, there is currently in force a SoP in relation to lumbar spondylosis, being Instrument No 38 of 2005.
16.That SoP relevantly provides as follows:
“Factors
6. The factor that must exist before it can be said that, on the balance of probabilities, lumbar spondylosis or death from lumbar spondylosis is connected with the circumstances of a person’s relevant service is:
…
(f) having a trauma to the lumbar spine within the twenty-five years before the clinical onset of lumbar spondylosis; or
…
Other definitions
9. For the purposes of this Statement of Principles:
…
“trauma to the lumbar spine” means a discrete injury, including G force-induced injury, 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. These symptoms and signs must last for a period of at least ten days following their onset; save for where medical intervention for the trauma to the lumbar spine has occurred and that medical intervention involves either:
(a) immobilisation of the lumbar spine by splinting, or similar external agent; or
(b) injection of corticosteroids or local anaesthetics into the lumbar spine; or
(c) surgery to the lumbar spine.”
17.This SoP was amended by Instrument Nos 79 of 2008 and 37 of 2010 in ways which do not bear upon the determination of this matter.
consideration
18.There is no dispute between the parties that Mr Maslen suffers from lumbar spondylosis, consistently with the report of Mr Marshall, consultant orthopaedic surgeon, dated 21 December 2009[4]. Mr Marshall also stated in his report:
“It is obvious that this man has developed widespread lumber disc degenerative disease over a long period of time.”
[4] T21/132
19.Having regard to that report, we accept that Mr Maslen suffers from lumbar spondylosis which has been present for a number of years and at least since 2004, being 25 years after the beginning of his defence service.
20.In light of the motor cycle accident suffered by Mr Maslen during his service, it was also implicitly conceded by Mr Crowe, who appeared as advocate for the respondent, that the material before us raises a connection between Mr Maslen’s service and his lumbar spondylosis. We consider that concession to have been correctly made and we are also satisfied that the material before us does raise a connection between Mr Maslen’s service and his lumbar spondylosis, by reason of the motor cycle accident.
21.The remaining issue however is whether the connection contended for is upheld by the SoP.
22.In seeking to satisfy that requirement, Mr Floreani, who appeared as counsel for Mr Maslen, argued that Mr Maslen satisfied the SoP as he had suffered a service related trauma to his lumbar spine within the meaning of the SoP within 25 years before the clinical onset of his lumbar spondylosis. In particular, he contended that the motor cycle accident which occurred on 26 July 1982 had resulted in a trauma to Mr Maslen’s lumbar spine which satisfied the definition set out in the SoP.
23.Turning to the evidence in relation to that issue, in his statement of 19 October 2010, Mr Maslen stated as follows in relation to this incident:
“13.On 26 July 1982 at approximately 5:45pm I was riding a motorcycle home from duty when I was forced off the road by another vehicle.
14.I was thrown over the handlebars and landed on my back in a monsoon drain on the side of the road. I believe that I may have lost consciousness for a short period of time.
…
16.I insisted that nobody move me as I wasn’t sure as to the severity of my injuries. In addition to the pain I felt from my other areas of injury, I was experiencing immediate low back pain so remained lying flat and still until the ambulance arrived.
…
18.As a result of the accident I suffered an injury to my lower back, haematoma to my right forearm, multiple grazes, partial removal of my left thumb nail, abrasions to my chin, both legs and my right forearm.
19.Whilst I was at the Penang Medical Centre I reported my low back pain to the medical officer who instructed me to sit up, which I did through pain. I was subsequently advised that there was nothing wrong with my back and my abrasions would be treated in the usual manner.
20.A day after the accident, I consulted the same medical officer who sent me for x-rays for my forearm and not my back. I remember this because I was meant to fly to Singapore to participate in a cricket match but because of my low back injury, I was unable to travel. I had 4 days of sick leave from Tuesday 27 July 1982 to Friday 30 July 1982 plus the weekend.
21.I recall that Monday 1 August 1982 was a public holiday so I believe I commenced back at work on light duties on Tuesday 2 August 1982 this would have given me a total of seven days off recovering.
22.I recall spending majority of time laying down in my bed for the period of time I was on sick leave and over the weekend before I returned to work. During this period, my back was very stiff and sore and I was not very mobile at all.
23.When I returned to work on light duties, I was undertaking Radio Officers Clerk duties which were predominantly administrative and sedentary in nature. I was still experiencing pain and stiffness in my lower back which I reported to a medical officer on 2 August 1982.
24.The light duties allowed me to alter my position in order to relieve my back pain. I was also able to take regular breaks or ‘stand down’ early if I needed to. This meant I could leave my shift early.”[5]
[5] Exhibit 2
24.Mr Maslen’s oral evidence at the hearing was consistent with this statement and he provided some additional details in relation to the accident. He explained that when he fell off his motorbike he had landed so that his lower back was lying across a “spreader” which was set lower than the surrounding ground. In effect, this meant that his lower back was suspended rather than being in contact with the ground or drain. He said he had not stayed in hospital that night, but had been taken home by his wife although he returned to the hospital the next day. He confirmed that when he had returned to work, on 2 August 1982, he had returned on light duties as he was still suffering discomfort in his lower back. He stated that when he left the hospital on the day of the accident, he was able to walk to the lift, supported by his wife.
25.Mr Maslen received medical attention shortly after this accident and the medical records relating to the treatment he received that day relevantly record the following:
“Pt landed on back in monsoon drain. (L) haematoma (R) fore-arm with multiple grazes. Fingernail partially removed on (L) thumb. Abrasions chin, both legs and R fore-arm. Pt moderately shocked. … k’od he thinks. … 1 day S/L … R arm in sling …”[6]
[6] T7/42
26.The records also confirm that he was seen the next day, with his abrasions being dressed and an x-ray carried out on his right forearm and he was also prescribed Mersyndol[7]. The records also reveal that he was reviewed on 2 August 1982 when no symptoms relating to his lower back were recorded. However, the following notes were recorded on 11 August 1982:
“C/O burning pain in lower lumbar spine with radiation down (L) leg. Also parasethia in (R) foot. Not a problem when lying down. SLR 60º both sides, tenderness over L4 … reflexes. PD nerve root irritation – for x-ray, … and physio – review 2/7.”[8]
On 13 August 1982, the following was reported:
“Good improvement. X-ray NAD. For graded exercise program.”[9]
[7] T7/42
[8] T7/41
[9] T7/41
That record is consistent with a report of the lumbar spine x-ray[10]which indicated that no abnormalities were found.
[10] T7/79
27.At the hearing, Mr Floreani submitted that this incident accordingly satisfied the requirements of the SoP as it involved a discrete injury which had resulted in the development, within 24 hours, of “symptoms” and “signs” of “pain and tenderness, and either altered mobility or range of movement of the lumbar spine”. In particular, he submitted there was evidence that Mr Maslen’s back had been painful and tender within 24 hours of the accident and that he had had difficulty with mobility as he needed to be supported by his wife when walking to the lift. He also submitted that, whilst Mr Maslen had been able to walk to the lift that evening, he had in effect been bedridden until his return to work on 2 August 1982.
28.Mr Crowe, who appeared as advocate for the respondent, submitted that there was no evidence of the relevant “signs” being present within 24 hours of the injury. He also submitted that any limitation of the movement of Mr Maslen’s spine which was attributable to pain did not satisfy the requirement that there be “signs” of altered movement or mobility of the lumbar spine.
29.After the hearing, the Tribunal wrote to both parties pointing out that the terms “symptoms” and “signs” respectively are defined in the Butterworths Medical Dictionary as follows:
“Sign. Objective evidence of disease or deformity.[11]
…
Symptom. The consciousness of a disturbance in a bodily function; the subjective feeling that there is something wrong in the working of the body and of which the patient complains, eg shortness of breath, pain, fatigue, palpitation, etc. The symptom may or may not be accompanied by observable signs.[12]”
[11] Second Edition, Butterworths, p 1547
[12] Second Edition, Butterworths, p 1644
30.Each party subsequently filed supplementary written submissions in which each agreed that the terms “signs” and “symptoms” in SoP Instrument No 38 of 2005 should be interpreted consistently with the above definitions.
31.Mr Floreani also submitted as follows:
“4.The Applicant says further that the words ‘symptoms and signs’ ought to be read in the context of the whole of the SoP and in light of the circumstances of this case.
5.Clearly, there is no difficulty with the evidence of ‘symptoms’ in this case; the Respondent appears to concede as much. The outstanding issue between the parties is whether there were ‘signs’ of pain and whether those signs were objectively observable.
6.The doctor who treated the Applicant on 26 July 1952 [sic] made no mention of signs. On the Applicant’s evidence, he said that he could see no problem. However, the Applicant stated that he felt restricted mobility and that restricted mobility should be taken as a sign of pain even though it comes from the Applicant himself. There is nothing in the SoP that requires the signs of pain need to be observed by a medical practitioner. Further that there is nothing that suggests that the signs cannot be observed by the Applicant himself.
7.In this case it is submitted that the applicant has met the requirements of the SoP.”[13]
[13] Applicant’s supplementary written submissions dated 7 June 2011.
32.By way of contrast, Mr Crowe submitted that:
“Pain is a symptom and not a sign, and is subjectively experienced and not objectively observable.”[14]
[14] Respondent’s supplementary written submissions dated 17 June 2011.
33.As both parties have implicitly conceded, the dispute between them is relatively narrow and the outcome of this matter effectively turns on whether we are satisfied that Mr Maslen had “symptoms” and “signs” of “pain, and tenderness, and either altered mobility or range of movement of the lumbar spine” within the meaning of the SoP. It also turns to some extent on how we construe those words of the SoP.
34.Taking that latter issue first, as both parties have accepted, we consider that we should construe the words “symptoms” and “signs” consistently with the Butterworths Medical Dictionary. We also accept Mr Crowe’s contention that applying those definitions has the consequence that “pain” is a “symptom” not a “sign”. However, “tenderness” and “altered mobility or range of movement of the lumbar spine” are “signs” and we also consider the words “altered mobility” should be read so that they relate to the words “of the lumbar spine”.
35.As the SoP requires both “symptoms” and “signs”, it therefore follows that in order to satisfy the SoP, Mr Maslen must establish on the balance of probabilities that he had “signs” of tenderness, and altered mobility or range of movement of his lumbar spine within 24 hours of the injury. We do not consider that those signs must necessarily have been observed by a medical practitioner, however we do consider that they must have been observable by someone other than Mr Maslen.
36.We agree with both parties that there is clear evidence of Mr Maslen suffering from “pain” in his lumbar spine within 24 hours of the accident. The real issue therefore is whether he also had “signs” of “tenderness, and either altered mobility or range of movement of the lumbar spine”.
37.We acknowledge that there is evidence before us which shows that such signs were present some three weeks after the accident. When Mr Maslen was examined on 11 August 1982, the medical officer recorded that he had “SLR” or straight leg raising of only 60º on both sides, consistent with some limitation of movement of his lumbar spine. The medical officer also recorded “tenderness over L4”.
38.However the SoP expressly requires the relevant signs to be present within 24 hours of the injury and there is no record of any medical practitioner observing such signs within the first 24 hours after the injury. In fact the evidence is that a medical practitioner tested the movement of Mr Maslen’s back within the 24 hours after the injury, and apparently found it to be normal. Further there is no specific evidence that Mr Maslen’s lumbar spine was “tender” in the 24 hours following the accident.
39.Mr Maslen said in his statement that while he was on sick leave his back was “very stiff and sore and I was not very mobile at all” and that he was “still experiencing pain and stiffness” in his lower back on 2 August 1982. He also gave evidence that he had difficulty walking to the lift when leaving hospital on the day of the accident. However there is nothing before us which establishes that he had difficulty walking to the lift because of altered mobility or range of movement of his lumbar spine, or that his own perception of “stiffness” in his lumbar spine was reflected in any observable limitation of movement within the requisite 24 hour timeframe.
40.In these circumstances, whilst we acknowledge that relevant “signs” appear to have been present some three weeks later, on balance we are not satisfied that the necessary “signs” were also present in the 24 hours following the injury.
41.It follows that we are not satisfied on the balance of probabilities that Mr Maslen did suffer a discrete injury to his lumbar spine which caused the development, within 24 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”. Accordingly we are also not satisfied that Mr Maslen suffered a “trauma to the lumbar spine” as defined in the SoP, within the 25 years before the clinical onset of lumbar spondylosis.
42.As the connection which is raised on the material between Mr Maslen’s lumbar spondylosis and his service does not meet the requirements of the SoP, it follows that Mr Maslen’s claim is unsuccessful.
conclusion
43.We are reasonably satisfied that the material before us raises a connection between Mr Maslen’s eligible defence service and the condition of lumbar spondylosis. However we are not reasonably satisfied that Mr Maslen suffered a “trauma to his lumbar spine” within the meaning of the SoP in the course of his service. As the connection which arises on the material is not upheld by the SoP, it therefore follows that Mr Maslen does not meet the requirements for payment of a disability pension in respect of his lumbar spondylosis.
decision
44.The Tribunal affirms the decision under review.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean
and Professor P Reilly AO (Member)Signed: .....................................................................................
J Scobie AssociateDate/s of Hearing 10 and 11 May 2011
Date of Decision 18 August 2011
Counsel for the Applicant Nicholas Floreani
Solicitor for the Applicant Tapscott, Tindall Gask Bentley
Counsel for the Respondent Mr A Crowe
Solicitor for the Respondent Dept of Veterans' Affairs Advocacy Section
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