MAXWELL and REPATRIATION COMMISSION

[2010] AATA 225

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 225

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/0570

VETERANS’ AND MILITARY COMPENSATION		)
Re		NICHOLAS MAXWELL

Applicant

And   REPATRIATION COMMISSION

Respondent

DECISION

Tribunal   Senior Member Bernard J McCabe

Date  30 March 2010

Place  Cairns

Decision The Tribunal sets aside the decision with respect to the applicant's lumbar and thoracic spondylosis conditions. It decides in substitution that those conditions are defence-caused. That aspect of the decision is remitted to the respondent for assessment. The decision with respect to the applicant's knee and shoulder conditions is otherwise affirmed.

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Senior Member

CATCHWORDS

VETERANS’ AND MILITARY COMPENSATION – Veterans’ Entitlements Act 1984 –Veterans’ Review Board – thoracic spondylosis – lumbar spondylosis – lifting the threshold weight to satisfy spondylosis finding – chondromalacia patellae of the knee – chondromalacia patellae occurring within three months of trauma - left and right shoulder rotator cuff syndrome – injury to shoulder occurring within thirty days before clinical onset of rotator cuff syndrome – decision varied

Veterans’ Entitlements Act 1984 (Cth)

REASONS FOR DECISION

30 March 2010  Senior Member Bernard J McCabe        

1.Nicholas Maxwell, the applicant, enlisted in the Army in 1981. He served as an infantryman before being discharged in 1984. He has developed problems with his knees, shoulders and thoracic and lumbar spine. He says the conditions are related to his defence service and he has sought compensation under the Veterans’ Entitlements Act 1984 (“the Act”).

2.The Repatriation Commission accepts that Mr Maxwell experiences health problems but it says it is impossible to establish links between those conditions and anything that might have happened during the course of the applicant’s service.

3.Cases of this nature always present a challenge for the doctors, lawyers and decision-makers involved. We are required to reconstruct events that occurred many years ago. The records are patchy and memories grow dim. As it happens, I am satisfied the applicant is entitled to succeed in his claims with respect to his back conditions. I do not think his claims relating to his knee or shoulder conditions are made out. I have therefore decided to set aside the part of the decision under review dealing with the back conditions. The balance of the decision is affirmed. My reasons are set out below.

Background facts

4.Mr Maxwell previously served in the Royal Australian Navy. That period of service is irrelevant for present purposes because it occurred prior to the end of 1972. His eligible defence service commenced when he enlisted in the Army on 17 February 1981. He completed basic training at Kapooka in three months before undertaking infantry training in Singleton, which lasted four months. He was posted to 1 RAR in Townsville in September 1981.

5.The applicant’s unit was a busy one. It was involved in a number of major exercises. The unit, or elements of it, spent significant periods over the next two years in training exercises and patrols in remote locations and training centres, including the Army’s High Range facility near Townsville and the Jungle Training Centre near Tully.

6.The applicant participated in his first major exercise near Rockhampton within three weeks of joining his unit. Not long after the exercise concluded, the unit was told it was to become the Army’s designated Overseas Deployment Force (“ODF”) for a period. The applicant’s unit was to be “on call” should it become necessary to despatch Australian soldiers anywhere in the world during that period. The applicant said the tempo of the training increased markedly. The unit was expected to be in peak condition. It went out on more exercises and patrols in remote areas.

7.Mr Maxwell said those exercises featured lengthy route marches of up to 80 kilometres in full kit. He referred in some detail to one of those marches where the unit marched back along tracks from the High Range to its barracks in Townsville. The men marched through the night over rough terrain and a number of them were injured in falls while ascending Mt Stuart. In his statement, he referred to other exercises around Mt Spec, which was heavily forested and rough. He described soldiers being required to move quickly over rocks in full-kit.

8.Mr Maxwell says he was injured on a number of those exercises. He fell heavily on his shoulders and on both knees on several occasions. He says he visited the Regimental Aid Post (RAP) on several occasions but he said he did not like to complain too much about pain and discomfort out of fear that he might be labelled a malingerer. He visited an acupuncturist at one stage to help with the pain he was experiencing from various conditions, but the paperwork recording these attendances is sparse.

9.The applicant had some experience as a radio operator when he first joined his unit in Townsville. He said he became a full-time radio operator early in 1982. A radio operator had a heavy load to carry in the field: the radio itself, together with the operator’s regular kit, a weapon and perhaps a spare battery. He estimated these weighed in excess of 46 kilos. He says he chose to carry a relatively heavy SLR (an automatic rifle) rather than a pistol or a lighter M-16 weapon. He said he needed to move about a lot so that he was available as needed by the commanding officer. He says his job required that he regularly swing the radio pack on and off his shoulders during the course of a day while on patrol or marching: [72]-[73].

10.Mr Maxwell’s statement described what occurred during a route march. He said the soldiers would walk quickly in their heavy equipment for at least 20 minutes before breaking. During that time, the soldiers would typically take their packs off but that was harder to do when one was carrying a radio. He said the radio operators tended to squat while wearing their full packs and other equipment. He said he would typically swing the pack off his shoulders at least 20 times a day in the course of a five-to-seven hour route march: [73]-[75].

11.Mr Maxwell said his unit spent an unusually long time in the bush during this period. He says his unit routinely conducted eight to ten day patrols that involved movement in full kit over a period of around nine hours each day: [76], although I note his evidence that on at least one occasion a forced march involved walking at a fast pace over rough ground in full kit for up to 20 hours: [92]-[94]. He said that an 80 kilometre march on 14 February 1983 actually took 24 hours to complete. He says he recalled his commanding officer told the men they spent in the order of nine months “bush time” between November 1981 and April 1983. Mr Alan Hansen, one of Mr Maxwell’s corporals, agrees that was an accurate assessment of the time spent on various patrols and exercises: exhibit 9.

12.The applicant said he also volunteered to go on additional marches and exercises during this period because he was young and ambitious. The evidence from Mr Hansen and Mr Molineaux (exhibit 6), another contemporary, confirm that Mr Maxwell was a capable and enthusiastic soldier who routinely volunteered to do extra work. I gather from the applicant’s oral evidence that skilled radio operators were in short supply, so he had plenty of opportunities to do extra work which involved carrying heavy loads and exposing himself to the risk of additional falls and other mishaps.

13.Mr Maxwell said he had hopes of joining the SAS regiment. The SAS selection process is famously arduous. He says he was required to complete a long run within a limited time. Only those soldiers who beat the time and withstood examination by a doctor and by a separate panel comprised of the commanding officer of the SAS regiment, its RSM and a psychologist were eligible to participate in the training course itself. Mr Maxwell was selected as a candidate in both 1982 and 1983. He says he was unable to complete the course on each occasion because of extenuating circumstances (he was prevented from completing one of the courses because he had broken his jaw in the course of an unarmed combat exercise) but he still spent many months preparing for the courses in order to maximise his chances of success. It seems it was common for candidates to develop their own demanding training regimen involving lengthy runs carrying heavy weights to prepare their bodies for the challenges of the formal selection course. Mr Maxwell said his commanding officer permitted the candidates for the course to substitute their own exercise program – including punishing runs carrying weapons or pipes that simulated weapons – for the scheduled exercise periods on at least two days each week.

How much weight did the applicant lift during his time in the service?

14.The evidence regarding the weight the applicant carried while he was in service is important because the statements of principle dealing with claims for thoracic spondylosis (No 35 of 2005) and lumbar spondylosis (No 38 of 2005) both refer to individuals carrying weights of at least 35 kgs to a cumulative total of 168,000 kgs within any ten year period in the 25 years preceding the onset or aggravation of either condition. I note the respondent concedes Mr Maxwell’s condition has arisen within 25 years of his service; the only question is whether he lifted at least 168,000 kgs during his service. The respondent says that is unlikely.

15.There does not appear to be any real dispute over the weight that Mr Maxwell carried when he was in the field. I accept his account that he routinely carried in excess of 46 kgs in the form of a radio, a pack and other kit and a weapon, usually an SLR. I note that on occasions he carried even heavier loads over longer distances.

16.The Commission enlisted the assistance of a researcher with a military background who was familiar with the sort of work that Mr Maxwell undertook while he was in basic training and when he was subsequently posted to 1 RAR. Mr Maxwell undertook his own research. Mr Maxwell’s estimates went through several stages, and there were wide variations at each point. His more recent efforts at reaching a reliable estimate were on display in the witness box when he gave evidence. I do not think I should make anything of the widely varying estimates that preceded the final version of events: I accept Mr Maxwell’s earlier estimates were unreliable because Mr Maxwell did not investigate the matter closely and was operating from memory. I note the respondent conceded that some of the estimates offered at an early stage were plainly too low. But by the time Mr Maxwell gave evidence in these proceedings, he had carefully reconstructed events. He was able to refer to records showing what he would have carried and what it weighed. He also created a diary (exhibit 11) recording the time he spent in the field that I accept – in the absence of evidence to the contrary – was accurate and resulted from careful consideration.

17.I accept Mr Maxwell was a truthful and careful witness who avoided exaggeration. He made concessions when appropriate. Mr Williams, appearing for the Commission, cross-examined him in some detail over his recollections and estimates but he was substantially unshaken.

18.Mr Williams agreed in his submissions that the dispute between the parties related to two periods:

·     the weight the applicant carried while he was undertaking SAS training (the applicant says he would have carried 24,190 kgs during these periods, while the Commission says he would only have carried 4838 kgs), and

·     the amount the applicant would have carried while he was posted to 1 RAR between September 1981 and April 1984 (the respondent estimates Mr Maxwell would have carried about 71,250 kgs while the applicant estimates he carried a whopping 249,912 kgs during that time). The applicant points out that the latter period included the time during which his unit was preparing for and ultimately designated as “ODF”.

19.Both sides present plausible detailed estimates of the amount that Mr Maxwell would have carried in the course of these different roles. I ultimately prefer Mr Maxwell’s estimates as being a more reliable guide if only because he was there. He made much of the fact that he was an enthusiastic, ambitious and fit young soldier who willingly undertook extra work. That claim was supported by evidence from his colleagues and objective evidence (eg, being selected for SAS training). I accept his claim that preparing for the SAS training was more arduous than the Commission acknowledges. I note that he also undertook additional private training that included at least two lengthy runs carrying heavy weights each week over extended periods.

20.His account of the period after he joined the unit was also more persuasive. Again, I note the evidence that the applicant volunteered to go out on extra patrols in order to gain experience that might be useful in his bid to join the SAS. I also note that 1 RAR appeared to prefer a punishing schedule of forced marches and other exercises in full kit that occasionally seemed to go wrong – the overnight march from the High Range that resulted in injuries to a number of soldiers being one example. I accept the applicant (if not his unit) spent what may have been an unusually long time in the bush during this period: because of his enthusiasm, because of his skills as a radio operator being in demand, and because that is what was expected at the time.

21.While I tend to prefer the applicant’s estimates, I do not accept them uncritically. I am not persuaded that the applicant lifted all of the weights for as long as he claims over the distances that he claims. That is not to say I disbelieve him; merely that I think any estimate made by anyone (including the applicant and the respondent’s expert witness) after two decades have elapsed must be treated with caution.

22.Mr Ryall, for the applicant, said it was possible to discount the applicant’s estimate by a significant amount and still conclude that he lifted at least 168,000 kgs within the relevant period. In truth, the Commission’s estimate that he lifted in excess of 120,000 kgs does not fall dramatically short of that amount. I am inclined to agree with Mr Ryall. Even if I accept the applicant’s estimates of the amount he lifted are excessive, I am still reasonably satisfied that he lifted not less than 168,000 kgs during the period he rendered eligible service.

The applicant’s conditions

23.I will deal firstly with the applicant’s claimed back conditions. I have already noted the statements of principle require that the applicant lift a certain weight within a certain time frame. I have made a finding of fact that he lifted at least the minimum amount referred to in the relevant statement of principles in the course of his defence service. His doctor confirms there is a medical link between the lifting and the back conditions. On that basis, Mr Maxwell’s claims in respect of lumbar and thoracic spondylosis must succeed.

24.The claims in respect of the knee are more problematic. Mr Maxwell suffers from chondromalacia patellae of the left knee. (He also suffers from a right knee condition, but I understand that condition has been accepted.) Dr Curtis, who gave evidence at the request of the applicant, was certain that trauma to the knees that occurred during the applicant’s service has contributed to his current problems.

25.The difficulty for Mr Maxwell lies in the detailed requirements of the applicable statement of principles (No 34 of 2001). The relevant factor requires that the onset of chondromalacia patellae occur within three months of trauma to the patella. Dr Curtis suggested that it would be necessary to see evidence of pain in the knee, including swelling, pain when kneeling, and a grating sensation and noise that would be accompanied by significant pain if the knee were manipulated before a diagnosis could be made. There are numerous references to trauma to the patella recorded in the applicant’s statement, and he has spoken of knee pain. But there is not enough evidence to be satisfied that a diagnosis could be made during this period. Indeed, what limited evidence there is – notably the record of a medical examination on 12 March 1984 and a record of a further exam a few days later – did not report the sort of symptoms that a doctor would have needed to make a diagnosis. While I note Dr Curtis’s view that there is probably a connection between the applicant’s service and his current condition, the evidence does not fit the template established by the relevant statement of principles. It follows the decision in relation to the left knee must be affirmed.

26.There are also difficulties in establishing the date of onset of the left and right shoulder conditions.  The statement of principles relating to claims for rotator cuff syndrome (No 40 of 2006) requires relevantly that the applicant experience an injury to the shoulder within 30 days before the clinical onset of rotator cuff syndrome. I note there were a number of injuries referred to in the evidence that might satisfy the requirements with respect to trauma. But the problem lies in establishing when the condition took hold in each case.

27.Dr Curtis conceded in his report dated 18 December 2009 that “the date of onset is difficult to pin-point” in relation to the right shoulder.  He said a full thickness tear (if that is what occurred at the time) should have been obvious on examination because the applicant would not have been able to lift his arm up beyond a certain point. While the applicant regularly experienced shoulder pain, it is impossible for me to be satisfied that the date of onset was within 30 days of any trauma. The decision in relation to the right shoulder condition must therefore be affirmed.

28.There is some contemporaneous evidence of difficulties with the left shoulder following a trauma. Page 107 of exhibit seven is the record of a medical attendance on 3 November 1983 following a fall on the left shoulder the previous night. The note refers to a sprain and swelling and recommends X-rays, rest and ice packs. Dr Curtis says that is evidence that tends to support the conclusion that onset occurred soon after. Unfortunately, that opinion does not take into account the definition of “injury to the affected shoulder” at clause 9 of the statement of principles. The treatment described in the applicant’s medical records does not satisfy the requirements of the definition.

29.In all the circumstances, I think the decision in relation to the left shoulder condition must also be affirmed. I do not have sufficient evidence that is capable of satisfying me that the requirements of the statement of principle have been achieved.

Conclusion

30.I set aside that part of the decision that concludes the lumbar and thoracic spondylosis conditions are not related to the applicant’s service. I decide in substitution that those conditions are service related. The parties did not make any submissions with respect to the date of effect. They have 14 days within which to make submissions on this point if they cannot otherwise reach an agreement. The balance of the decision with respect to the knee and shoulder conditions is affirmed.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed: .....................[Sgd]......................................................
  Patrick MacDonald

Dates of Hearing  22-23 March 2010 
Date of Decision  30 March 2010
Counsel for the Applicant         Mr C Ryall

Solicitor for the Applicant          Murray Lyons Solicitors
Advocate for the Respondent   Mr B Williams