McGuiness and Repatriation Commission - [2002] AATA 1185

DECISION AND REASONS FOR DECISION [2002] AATA 1185

ADMINISTRATIVE APPEALS TRIBUNAL        Nº N2001/1143
VETERANS' APPEALS DIVISION
  Re:         John Leslie McGuiness
  Applicant
  And:       Repatriation Commission
  Respondent

DECISION

Tribunal:       P.J. Lindsay, Senior Member
Date:             18 November 2002
Place:            Sydney

Decision:The decision under review is affirmed.

. . . . . . . . . . . . . . . . . . . . . . . .
Senior Member

© Commonwealth of Australia (2002)CATCHWORDS Veterans' Affairs – whether veteran's cervical spondylosis defence caused - whether material contribution to or aggravation of cervical spondylosis –– decision affirmed
Veterans' Entitlements Act 1986 – ss. 68, 70(5), 120(4), 120B
Repatriation Medical Authority Statement of Principles, Instrument No. 51 of 2002 concerning Cervical Spondylosis as amended by Instrument No. 64 of 2002.
Johnston v Commonwealth of Australia (1982) 43 ALR 559
Repatriation Commission v Yates (1995) 38 ALD 80
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Cornelius [2002] FCA 750
Re Robertson and Repatriation Commission (1998) 50 ALD 668

REASONS FOR DECISION

P.J. Lindsay, Senior Member

Mr John McGuiness has applied for review of a decision made by the Repatriation Commission (the Commission) on 5 October 2000 refusing his claim for disability pension in respect of cervical spondylosis and fibromyalgia. The Veterans' Review Board (the Board) had affirmed the Commission's decision on 17 July 2001. Mr B. Winship, solicitor, appeared at the hearing for Mr McGuiness and the Commission was represented by Mr J. Marsh, an advocate with the Department of Veterans' Affairs. Mr McGuiness was the only witness to give evidence at the hearing. The Tribunal had before it the documents lodged under s.37 of the Administrative Appeals Tribunal Act 1975 and the exhibits tendered at the hearing.
Mr McGuiness served in the Australian Army from 1 July 1975 to 30 June 1981, which is a period of "defence service" as defined in s.68 Veterans' Entitlements Act 1986 (the Act). The Tribunal is required to decide the matters raised in Mr McGuiness' application to its reasonable satisfaction: s.120(4) of the Act. As his claim for pension for incapacity was lodged after 1 June 1994, s.120B of the Act applies. During the course of the hearing, Mr Winship informed the Tribunal that the claim for disability pension in respect of fibromyalgia was formally withdrawn. In determining whether Mr McGuiness' cervical spondylosis was defence caused, s.120B(3) requires the Tribunal to be satisfied that there is material that raises a connection between the disease and service, and that a statement of principles (SoP) issued by the Repatriation Medical Authority upholds the contention that the disease is, on the balance of probabilities, connected with his service. The relevant SoP in force concerning cervical spondylosis is Instrument No 51 of 2002, as amended by SoP 64 of 2002. It states:
Basis for determining the factors
3. On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that cervical spondylosis and death from…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McGuiness and Repatriation Commission

Details

AGLC: McGuiness and Repatriation Commission [2002] AATA 1185
Case: [2002] AATA 1185
Decision Date: 18 November 2002

CaseChat Overview and Summary

The case between McGuiness and the Repatriation Commission was heard by the Tribunal, with the central dispute being whether the veteran's cervical spondylosis was caused or materially contributed to by his service. The Tribunal was required to decide if the injury from dropping a barbell in 1981 was a material contribution to or aggravation of McGuiness' cervical spondylosis, a condition he claimed developed or worsened due to his military service.

The legal issues the court needed to resolve included the interpretation of the relevant Statement of Principles (SoP) concerning cervical spondylosis, specifically whether the injury McGuiness sustained in 1981 qualified as "trauma to the cervical spine" under the amended definition in SoP 51 of 2002. The court also needed to determine if McGuiness' service-related circumstances materially contributed to or aggravated his condition. The Tribunal considered the statutory provisions under the Veterans' Entitlements Act 1986, particularly sections 68, 70(5), 120(4), and 120B, alongside precedent cases such as Johnston v Commonwealth of Australia and Repatriation Commission v Yates.

The Tribunal found that McGuiness' injury did constitute "trauma to the cervical spine" as it caused immediate pain and tenderness, and affected his mobility, lasting for more than ten days. It accepted McGuiness' evidence that his condition worsened after the incident. However, the Tribunal concluded that the service-related circumstances did not make a material contribution to or aggravate his cervical spondylosis. The Tribunal held that while the injury caused immediate pain, it did not accelerate the progression of the condition beyond what would be expected in a person of his age and lifestyle. Therefore, the Tribunal affirmed the Commission's decision to deny McGuiness' claim.

The final orders of the Tribunal confirmed the rejection of McGuiness' claim for compensation related to his cervical spondylosis, upholding the Repatriation Commission's decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

It was submitted for the applicant that there was clinical onset of cervical spondylosis at the time of the accident with the bar-bell when he felt pain in his neck. In the alternative, Mr Winship argued that the injury clinically worsened Mr McGuiness' cervical spondylosis. For the Commission, it was submitted that the injury was not covered by the definition of 'trauma to the cervical spine' in SoP 32 of 1999. Mr Marsh submitted, further, that Mr McGuiness did not satisfy factor 5(g) of the SoP concerning trauma within 25 years before the clinical onset of cervical spondylosis, since clinical onset had occurred before the accident albeit at an indeterminate time. Mr Marsh submitted that for there to be clinical worsening, s.70(5)(d) of the Act requires the service related circumstances to have made a material contribution or aggravation to Mr McGuiness' condition. There was no aggravation in his view because the service related circumstances neither accelerated the worsening of the condition (Johnston v Commonwealth of Australia (1982) 43 ALR 559) nor made the condition other than temporarily worse (Repatriation Commission v Yates (1995) 38 ALD 80). findings and consideration The parties agreed that cervical spondylosis was the appropriate diagnosis. Further, there was no dispute as to the nature and circumstances of the injury to Mr McGuiness' neck caused by his dropping the bar-bell. The Tribunal makes findings accordingly. The Tribunal is satisfied that the injury to Mr McGuiness' neck sustained in the gym accident occurred in mid May 1981 (T3 fol.5). At the time of the Commission's decision, the relevant SoP was 32 of 1999. However, the Full Federal Court's decision in Repatriation Commission v Gorton (2001) 110 FCR 321 is that the Tribunal must first consider the SoP in force at the time of its decision. Between the time of the claim and the time of this decision, the definition of 'trauma to the cervical spine' has changed, but the terms of the relevant factors claimed to connect Mr McGuiness' cervical spondylosis with his service did not alter. In the earlier SoP, that definition referred to an injury that caused "the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain and tenderness, and either altered mobility of range of movement of the cervical spine. These acute symptoms and signs must last for a period of at least 10 days following their onset,…". SoP 51 of 2002, as amended by SoP 64 of 2002, removed the word 'acute' from the definition, and inserted a comma after the word 'pain'. Mr McGuiness' recollection of details, such as the location of the military hospital that he was taken to and whether, while there, he was asked if he had previously injured his neck, may not be perfect. Given that these events happened to him over 20 years ago, that is understandable. The Tribunal accepts Mr McGuiness' evidence that he felt immediate pain in his neck where the bar-bell struck, was helped to his feet and taken to the RAP where a soft collar was put on. Daily thereafter for approximately three weeks he went to the RAP to pick up pain killers and the pain grew worse. It is the Tribunal's view that on balance Mr McGuiness' account can be reconciled with the medical record that he "felt alright initially but started to have pain especially on rotation 1/52 after". The Tribunal is satisfied, therefore, that within 24 hours of the injury, Mr McGuiness developed symptoms of pain and tenderness, and had altered mobility in his cervical spine. In addition, the Tribunal finds that these symptoms continued for at least ten days and that the injury comes within the definition of 'trauma to the cervical spine' in amended SoP 51 of 2002.