Mason and Repatriation Commission
[2014] AATA 293
•14 May 2014
[2014] AATA 293
Division Veterans' Appeals Division File Numbers
2013/0809 & 2013/0810
Re
Stephen John Mason
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 14 May 2014 Place Brisbane The decision under review is affirmed.
........................................................................
Senior Member Bernard J McCabe
Catchwords
VETERANS’ AND MILITARY COMPENSATION – Application for pension at special rate – Applicant’s cervical spondylosis contributes to inability to work – Cervical spondylosis not service-related – Failure to satisfy “alone test” – Reviewable decision affirmed.
Legislation
Veterans’ Entitlements Act 1986 (Cth) s 24
Statement of Principles concerning cervical spondylosis No. 34 of 2005
REASONS FOR DECISION
Senior Member Bernard J McCabe
14 May 2014
Stephen Mason applied for a pension paid at the special rate under s 24 of the
Veterans’ Entitlements Act 1986(Cth) (“the Act”). He has a number of service-related conditions that contribute to his inability to work. But his application for a special rate pension was rejected because he also suffers from cervical spondylosis which has not yet been accepted as a service-related condition. The Commission says cervical spondylosis contributes to Mr Mason’s inability to work, which means he cannot satisfy the so-called “alone test” in s 24(1)(c) of the Act.
Mr Mason says his cervical spondylosis condition is service-related. He argues the condition was brought on by trauma he experienced in a motorcycle accident in 1973 when he was on his way to take up a posting. But regardless of how that condition is regarded, he claims service-related conditions are the only factors preventing him from working. He therefore insists he is entitled to the special rate pension regardless of what I conclude in relation to his cervical spondylosis.
Mr Mason’s claim in respect of cervical spondylosis can only succeed if I am reasonably satisfied there is a connection between the condition and his work. In this case, as a practical matter, I must be satisfied he experienced trauma to his head and neck in the course of a motorcycle accident that occurred early in the morning of 26 September 1973 when he was traveling from Sydney to Canberra to take up a posting.
For reasons I will explain, I am not satisfied the accident and trauma occurred as the applicant explained. I do not accept his cervical spondylosis condition is related to his service.
That conclusion makes it more difficult (but not impossible) for the applicant to succeed in his claim for a pension paid at the special rate. As it happens, I am not satisfied he is able to meet the requirements of s 24 of the Act. I explain my reasons below.
THE APPLICANT’S HISTORY
Mr Mason enlisted in the Army in January 1973. He was discharged in 1993. He now suffers from post-traumatic stress disorder (PTSD), a knee condition (bilateral chondromalacia patellae), alcohol dependence and lumbar spondylosis – all of which have been accepted as being related to his service – along with a number of other conditions, including cervical spondylosis, that are not accepted.
The applicant worked principally as a storeman while in the Army. His personnel file records a number of disciplinary infractions which appear to be the result of excessive alcohol intake. I was also provided with a copy of his Army medical records that disclose a range of health issues, including psychiatric issues. I note at least one entry in the records refers to the applicant experiencing memory loss in connection with events that were the subject of disciplinary action: Exhibit 4 at pp 24, 56.
After he was discharged, Mr Mason worked briefly as a security patrolman before he was dismissed for reasons that were not apparent from the evidence. He did labouring work for a time. He also worked for a short period as a real estate agent but he said in his oral evidence that he was not making any money in that occupation. He joined the crew of a prawn trawler in 1996, and subsequently became the master of a vessel. He continued in that role until around 2005. He undertook some further training and applied for a number of jobs, including a storeman’s role, but his career was overtaken by events: he was charged with several criminal offences in or around 2005. I do not need to discuss the details of the charges in these reasons. He pleaded guilty to two charges and was sentenced to a brief term of imprisonment in 2007. He has not worked since that date, and has not made a serious attempt to find work. He says there is no point as he cannot work anymore because of his service-related conditions.
The Commission accepts Mr Mason cannot work. It has made concessions with respect to the relevant provisions of s 24(1) apart from s 24(1)(c), which remains a live issue. That section imposes the so-called “alone test” which requires the decision-maker to consider whether there are any other factors apart from the veteran’s service-related condition which have contributed to the loss of salary, wages or earnings.
Section 24(2)(a)(ii) says a veteran who is incapacitated from war-caused injury – like
Mr Mason – will not be taken to be suffering a loss of salary, wages or earnings by reason of that incapacity for the purposes of s 24(1)(c) if the veteran is prevented from engaging in remunerative work for some other reason. The Commission says the
non-accepted cervical spondylosis condition contributes to the applicant’s inability to work. The applicant’s age, his time out of the workforce, his lack of skills and his criminal record are also contributing factors, the Commission says.IS THE APPLICANT’S CERVICAL SPONDYLOSIS CONDITION RELATED TO HIS SERVICE?
I turn to the question of Mr Mason’s cervical spondylosis condition. The Statement of Principles concerning cervical spondylosis, No 34 of 2005 as amended by no 77 of 2008, requires (relevantly) that I be satisfied the applicant experienced trauma to the cervical spine within the 25 year period before the clinical onset of cervical spondylosis:
factor 6(f).Dr Sharwood, an orthopaedic surgeon called on behalf of the applicant, said in his report dated 11 September 2013 that the condition was post-traumatic: Exhibit 8 at p 8.
That opinion does not appear to be contested by the Commission, and I accept it.
Dr Sharwood said in oral evidence the most likely source of the trauma was the applicant’s motorcycle accident in 1973 (although I note Dr Sharwood’s report uses more guarded language on this question: the doctor suggests “there is a reasonable argument to be made that [the condition] relates to the motorcycle accident in 1973” and “there is a correlation between his injury in 1973 and the findings in 2005”: Exhibit 8 at p 8.)Assuming the accident in 1973 occurred as the applicant described, Dr Sharwood opined a range of other incidents resulting in head or neck trauma that occurred subsequent to the motorcycle accident merely exacerbated the earlier injury. A number of those incidents were described to Dr Sharwood during the course of cross-examination, including a violent assault in connection with a road rage incident in 1980, strains experienced while doing physical training in around 1987, and another motor vehicle accident involving a bus. He agreed the road rage accident could be the source of the condition but argued the 1973 accident was the likely culprit. He noted there was at least one report of neck pain recorded in the applicant’s medical file in 1978 which pre-dated the road rage incident.
Dr Sharwood says the date of onset of the condition – the point at which the symptoms manifested themselves as a diagnosable condition – was during the course of the 1980s. He referred to evidence in the medical files of nerve root irritation during that period which suggested the early onset of cervical spondylosis. He said imaging studies in 2005 showed the condition was of long-standing (he suggests the images taken in 2005 “represent changes that have been present for at least 10 years prior to those images being taken”: Exhibit 8 at p 8). He pointed out sophisticated imaging techniques were not available in the 1970s and early 1980s, so it is no surprise the condition was not detected in the limited investigations undertaken during that period.
I accept Dr Sharwood’s evidence as to the date of onset of the condition. He was able to offer a cogent explanation for his view, and he was not seriously challenged on this aspect of his evidence during cross-examination. But which of several incidents was the actual source of the condition? Dr Sharwood has settled on the motorcycle accident in 1973 as the likely culprit. That conclusion depends on whether the applicant’s account of the incident in accurate. At least one other incident – the assault connected with the road rage encounter – also fell within the timeframe contemplated by Dr Sharwood.
Before I refer to the applicant’s account of the motorcycle accident in 1973, I should make some general observations about his performance as a witness. In doing so, I take into account the fact Mr Mason is trying to recall events that occurred a long time ago.
I also acknowledge his recollection may be affected by his other conditions, most obviously PTSD, and his alcohol usage. That said, he was not a compelling witness.
He had a surprisingly clear recollection of some aspects of the accident but did not remember other details. He was generally defensive and tended to bluster when pressed for answers. I also note Mr Mason experienced problems with his memory in the past: his medical file noted he experienced amnesia when being questioned about a disciplinary matter in 1975: Exhibit 4 at p 24.Those impressions of the applicant’s demeanour lend colour to his evidence, but they are not decisive. My central difficulty was with his account of the accident itself. He said in his oral evidence that he was travelling on his motorbike along a notorious stretch of the Federal Highway beside Lake George around 6am on 26 September 1973. He claimed he hit an uneven piece of tarmac at around 100km/h and the bike became airborne. He said the bike cartwheeled, and he was thrown off and forward. He said he skidded down the centre of the road. He said his helmet was severely damaged but he suffered nothing more than minor cuts and grazing (he claimed he was protected by several layers of trousers, thick gloves and a heavy leather jacket) and some neck and head pain. (It is unclear whether the head and neck pain was immediate: the applicant’s statement at Exhibit 1 p 47 appears to suggest the head and neck pain occurred immediately or within a short time after the accident, yet Dr Sharwood noted in his oral evidence that he had been told the applicant did not experience head and neck pain immediately.)
Mr Mason claimed he was picked up by the driver of a Woolworths delivery vehicle that was travelling a short distance behind him. The driver had seen the whole thing, apparently. Mr Mason said the driver gave him a lift into the centre of Canberra where he was dropped at a café. He bought some painkillers and had a cup of coffee before making his way by bus or taxi to the Royal Military College (RMC) at Duntroon where he reported for duty. (Mr Purcell, for the Commission, noted the applicant gave differing accounts as to his mode of transport between the café and RMC Duntroon. In one account, he suggested he travelled by bus; in another, he said it was by taxi, or perhaps both. It is possible his recollection on this point was unclear because – if he had experienced a serious accident – he may have been disorientated by shock. I do not think this confusion in the evidence tells me very much about the applicant’s credit.)
There must be some doubt about the applicant’s claim that he came off his bike while it was travelling at 100km/h only to sustain minor grazing – especially in light of his evidence that his crash-helmet sustained serious damage. Even if his helmet took the full force of the impact as he was thrown forward from the bike, the minor injuries he described are difficult to reconcile with his account of the accident. His escape was almost miraculous.
Other aspects of the story were troubling. The applicant claimed he left his parents’ home in Fairfield in the Sydney suburbs at around 5am (Exhibit 1 at p 108), or perhaps 4am (Exhibit 1 at p 47). He said the accident occurred at Lake George about 6am when it was still dark, and that he was dropped in Canberra at around 6.30-7am. He said in his oral evidence that he had not been exceeding the speed limit. I suggested to the applicant I recollected that in 1973 it would have taken as many as four or five hours to travel from Fairfield in the Sydney suburbs to Lake George. If that recollection of the time it took to make the journey on the narrow road from Sydney was accurate, it would be impossible for Mr Mason to have been at Lake George less than an hour or two after he departed from Sydney if he were traveling at the speed limit. As it happens, there was no direct evidence (other than my own potentially faulty recollection) to make a finding on this point. I mention it only because of the reaction of Mr Mason to my questions. His story quickly changed when he was challenged about the timeframe. Perhaps he left much earlier than the early hours of the morning, he ventured. Even allowing for the passage of time, I was uncomfortable with the way his story appeared to unravel.
The applicant did not report the accident to the police, even though his bike was extensively damaged. That is surprising. He said he visited the medical centre at
RMC Duntroon to obtain treatment for his injuries when he reported for duty, but medical records in relation to that attendance have not been located (although the applicant notes his medical files might not have been transferred to Canberra at that point).Given these anomalies, I am not satisfied the accident occurred as Mr Mason described in his evidence. I am not persuaded the applicant sustained a trauma in September 1973 that was the genesis of his cervical spondylosis condition. There were other incidents that might have triggered the condition – most obviously the road rage incident in about 1980. The evidence that the applicant was experiencing neck pain before that incident does not affect my conclusions in that regard: Dr Sharwood pointed out the physical training regime for all soldiers during this period included a style of sit-up that could cause neck and back strain.
It follows I am not satisfied the applicant’s cervical spondylosis condition is attributable to a motorcycle accident in September 1973 as the applicant was travelling to his posting. He may have experienced trauma in another incident, but there are no other work-related incidents referred to in the evidence that would create an entitlement. The applicant is unable to satisfy the requirements of the Statement of Principles concerning cervical spondylosis.
IS THE APPLICANT’S CESSATION OF WORK EXPLAINED SOLELY BY REFERENCE TO HIS ACCEPTED SERVICE-RELATED CONDITIONS?
My finding with respect to cervical spondylosis presents a serious challenge to the applicant who wants to establish his service-related conditions on their own explain his cessation of work. The medical evidence points to a contrary conclusion.
Dr Sharwood agreed the applicant’s cervical spondylosis would not stop him working altogether. In his oral evidence, he explained the applicant might be able to work in a sedentary clerical or supervisory role. But that is not the kind of work the applicant was doing throughout his career. His previous roles were semi-skilled jobs requiring physical exertion: as the skipper of a prawn trawler; a storeman; and a truck driver. (I leave to one side the applicant’s very limited experience as a security patrolman and a real estate agent.) I am satisfied from the oral evidence of Dr Sharwood – and I have no reason to doubt it – the applicant’s non-accepted cervical spondylosis condition would have prevented him from undertaking the sort of work he had been doing.
In the circumstances, I do not need to consider whether the applicant’s age or his extended absence from the workforce have also contributed to his cessation of work and the loss of salary, wages or earnings. It is also unnecessary for me to inquire into whether the applicant’s criminal record played a role.
CONCLUSION
The applicant’s cervical spondylosis condition is not related to his service, and he is therefore unable to satisfy the requirements in s 24 of the Act with respect to special rate pensions. The decision under review must therefore be affirmed.
I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe. ........................................................................
Associate
Dated 14 May 2014
Date(s) of hearing 16 & 17 April 2014 Counsel for the Applicant Mr Matt Black Solicitors for the Applicant KCI Lawyers Advocate for the Respondent Mr Gerald Purcell
Department of Veterans' Affairs
0
0
0