Michael Roche and Repatriation Commission
[2012] AATA 542
•20 August 2012
[2012] AATA 542
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/3833
Re
Michael Roche
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey and Dr I Alexander
Date 20 August 2012 Place Sydney The Tribunal affirms the decision under review.
..............[sgd]..........................................................
Senior Member J F Toohey and Dr I Alexander
CATCHWORDS
VETERANS ENTITLEMENTS – cervical spondylosis – veteran claimed injury to cervical spine while on operational service – whether hypothesis that veteran’s condition was related to his service reasonable – Tribunal satisfied beyond reasonable doubt that cervical spondylosis not war-caused – decision under review affirmed
LEGISLATION
Veterans Entitlements Act 1968 ss 120, 120A and 196B(14)
CASES
Bull v Repatriation Commission [2001] FCA 1832
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
East v Repatriation Commission (1987) 16 FCR 517
Hardman v Repatriation Commission [2005] FCAFC 83Repatriation Commission v Deledio (1998) 83 FCR 82
SECONDARY MATERIALS
Repatriation Medical Authority, Statement of Principle concerning Cervical Spondylosis, No 33 of 2005 (as amended by No 76 of 2008), factor 6(g)
REASONS FOR DECISION
Senior Member J F Toohey and Dr I Alexander
20 August 2012
BACKGROUND
Mr Michael Roche served in the Royal Australia Navy between July 1964 and April 1976, including three periods of operational service in Vietnam of several months each in 1965, 1969 and 1970. He is now aged 64.
Medical evidence shows that Mr Roche has cervical spondylosis. He contends that trauma to his neck suffered when a hatch door fell on his head during one of his periods of service in Vietnam led to his cervical spondylosis. He contends his condition is war-caused within the meaning of the Veterans Entitlements Act 1968 (the Act).
The respondent does not dispute, and we are satisfied, on the medical evidence, that Mr Roche suffers from cervical spondylosis. The respondent contends, however, that it is not related to his service.
THE LAW
As Mr Roche’s claim arises out of his operational service, the standard of reasonable hypothesis applies. That means we must determine that his cervical spondylosis was war-caused unless we are satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. We shall be so satisfied if the material before us does not raise a reasonable hypothesis connecting his condition with his service: ss 120(1) and 120(3) of the Act.
In all other matters, including the kind of disease or injury suffered by a veteran and the date of clinical onset of a condition, the standard of proof is to the reasonable satisfaction of the Tribunal: s 120(4).
Whether a reasonable hypothesis is reasonable is assessed by reference to Statements of Principles (SOPs) issued by the Repatriation Medical Authority from time to time: s 120A.
STATEMENT OF PRINCIPLES
The SOPs set out the factors, at least one of which must exist and must be related to the veteran’s service, before it can be said that a reasonable hypothesis has been raised connecting a condition or conditions with the veteran’s service.
Mr Roche relies on SOP No 33 of 2005 (as amended by No 76 of 2008) clause 5 of which provides that at least one of the factors in clause 6 must be related to his operational service. He relies on factor 6(g): “having a trauma to the cervical spine before the clinical onset of cervical spondylosis”.
“Cervical spondylosis” in the SOP means:
degenerative changes affecting the cervical vertebrae or intervertebral discs, causing local pain and stiffness or symptoms and signs of cervical cord or cervical nerve root compression, but excludes diffuse idiopathic skeletal hyperostosis.
“Trauma to the cervical spine” in the SOP means:
a discrete injury, including G force-induced injury, to the cervical 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 cervical spine. These symptoms and signs must last for a period of at least seven days following their onset; save for where medical intervention for the trauma to the cervical spine has occurred and that medical intervention involves either:
(a)immobilisation of the cervical spine by splinting, or similar external agent; or
(b)injection of corticosteroids or local anaesthetics into the cervical spine; or
(c)surgery to the cervical spine.
A factor causing, or contributing to, an injury or disease is related to service rendered by a person if it satisfies any of the criteria s 196B(14).
IS THERE A REASONABLE HYPOTHESIS CONNECTING MR ROCHE’S CERVICAL SPONDYLOSIS WITH HIS OPERATIONAL SERVICE?
Mr Roche gave evidence before the Tribunal that he was serving on board the HMAS Sydney in 1965 when he was struck on the head by a hatch door as he climbed a ladder out of a shaft. He estimates the hatch door would have weighed approximately 30 kilograms. Ordinarily, it would have been secured while open but, for some reason, it was not secured properly on this occasion and, as he attempted to pull himself up from the ladder and out of the shaft by means of a handle on the hatch door, its full weight fell on the top of his head.
Mr Roche gave evidence that, immediately, he felt a “blinding flash” and pain at the back of his neck. He managed to get out of the shaft and sat down for about five minutes. As he was at the end of his shift, he handed in his routine paper work, after which he had a shower and went to bed. He says he felt pain in his neck over the next few days but he continued to perform his duties without restriction. He did not report the incident or his pain to anyone. He may have taken Disprin for the pain.
Mr Roche made a number of concessions under cross-examination. He agreed that he has little memory of the incident and its aftermath. Given that it happened more than 50 years ago, that is not in itself surprising. However, he also conceded that he could not recall if the incident happened while he was operational service. He agreed that, in answer to a question on his original claim for pension in 2002 about when the injury occurred, he stated “Unknown – during service on HMAS Sydney” and later, in 2010 when making his recent claim, he stated it was “during operational service on HMAS Sydney”. He frankly conceded he said it occurred during operational service because his claim would not be accepted otherwise, and it had to “fit within the parameters”.
There were a number of matters in Mr Roche’s written statements that he conceded, before the Tribunal, he could not recall with any certainty, or which he claimed to recall with more specificity than previously stated. For instance, whereas in earlier statements, and before the Veterans Review Board, he said the pain lasted “about seven days” and “more than a week”, he claimed before the Tribunal that it lasted ten to fourteen days. (The significance of the period is the requirement in the SOP that symptoms and signs last for at least seven days following their onset.) Whereas, in his written statement in January 2012, he could recall taking Disprin for his neck pain, he conceded before the Tribunal that he could not recall whether or not he took medication for the pain, only that he “would have”.
Dr Anthony Smith, an orthopaedic surgeon who examined Mr Roche in February 2012 at the request of the respondent, gave evidence that it was possible for an injury of the kind described by Mr Roche to lead to a soft tissue injury or to a ruptured disc.
The respondent contends that the material before the Tribunal comprises no more than Mr Roche’s assertions and is insufficient to raise a reasonable hypothesis. The respondent argues that, even if the incident occurred, it is only Mr Roche’s assertion that it occurred on operational service. Further, that the only medical evidence is that of Dr Smith who could find no evidence of a discrete injury to Mr Roche’s cervical spine and no connection to his service.
For Mr Roche it is contended that the Tribunal need only find material pointing to a trauma to Mr Roche’s cervical spine which occurred while on service in Vietnam in order for a reasonable hypothesis to be raised.
The material will raise a reasonable hypothesis if it points to “some fact or facts (“the raised facts”) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true”: Bushell v Repatriation Commission (1992) 175 CLR 408 at 414.
In Byrnes v Repatriation Commission (1993) 177 CLR 564, the High Court summarised the position as follows (at [13]):
1
First, sub-s.(3) of s.120 is applied: do all or some of the
facts raised by the material before the Commission give rise to
a reasonable hypothesis connecting the veteran's injury with war
service? The hypothesis will not be reasonable if it is contrary
to known scientific facts or is obviously fanciful or untenable.
If the hypothesis is not reasonable, the claim fails. Proof of
facts is not in issue at this point.
2
If a reasonable hypothesis is established, sub-s.(1) of s.120
is applied. The claim will succeed unless:
(a)
one or more of the facts necessary to support the hypothesis
are disproved beyond reasonable doubt; or
(b)
the truth of another fact in the material, which is
inconsistent with the hypothesis, is proved beyond reasonable
doubt, thus disproving, beyond reasonable doubt, the hypothesis.
In Repatriation Commission v Deledio (1998) 83 FCR 82, the steps to be followed in determining whether a hypothesis is reasonable are described as follows:
(i)determine whether all of the material points to a hypothesis connecting the injury with the circumstances of the veteran’s service;
(ii)if so, ascertain whether there is in force a relevant SOP;
(iii)if so, form an opinion as to whether the hypothesis is reasonable, which it will be only if it conforms with an applicable SOP; and then
(iv)consider whether it is satisfied, beyond reasonable doubt, that the veteran’s incapacity did not arise from a war-caused injury.
A hypothesis will not be reasonable if it is “is obviously fanciful or impossible or not tenable or too remote or too tenuous”: East v Repatriation Commission (1987) 16 FCR 517. It may be that the elements of the hypothesis are raised “so slightly that the entire hypothesis [is] not to be viewed as reasonable” Bull v Repatriation Commission [2001] FCA 1832 at [5]
In Hardman v Repatriation Commission [2005] FCAFC 83, the Court found a hypothesis was available on some of the facts that the relevant symptoms were displayed within the relevant time period, and said (at [28]):
To reject that hypothesis on the basis that it was swamped by countervailing material is a finding which preferred some facts to others and so rejected those facts upon which the relevant hypothesis could be based. That is directly contrary to the three steps as described in Deledio.
In this case, to conform with the SOP, the material has to point to the existence of cervical spondylosis and trauma to the cervical spine during a period of operational service. Despite the undoubted difficulties with Mr Roche’s evidence, in our opinion the elements of the SOP are pointed to sufficiently that a reasonable hypothesis is raised.
ARE WE SATISFIED BEYOND TREASONABLE DOUBT THAT MR ROCHE’S CERVICAL SPONDYLOSIS IS NOT WAR-CAUSED?
It is only at this stage that the Tribunal can engage in fact-finding. For the reasons set out below, we are satisfied, beyond reasonable doubt, that Mr Roche’s cervical spondylosis is not war-caused.
We have real doubt that the incident described by Mr Roche occurred at all. His memory of it is vague and inconsistent. In his 2002 claim, he could not identify the date when it occurred. In his 2010 claim, he could only identify that it occurred “on operational service”. The transcript of the Veterans’ Review Board hearing in July 2011 shows that his advocate said that, as far as Mr Roche could recall, the incident occurred “during the 1969 operational period” from November to December 1969. In written statements in January and May 2012, he said it occurred in 1965. Before the Tribunal, he was certain, after going through his paperwork and thinking about it more, that it occurred in 1965. He confirmed that nothing specific in his paperwork indicated the correct date.
We accept that it is many years since Mr Roche’s operational service but we do not think the inconsistencies in his account can be explained by the passage of time. He frankly agreed that he said it occurred while on operational service because his claim would not be accepted otherwise. He has given varying accounts of how long his neck pain lasted, from about a week, to ten to fourteen days in his written statement, to “quite some time”. The differences are minor, and he cannot be expected to recall the period precisely after 50 years, but this evidence also appears to be tailored to satisfy the SOP, particularly as Mr Roche’s memory has apparently become clearer ion the course of these proceedings.
Mr Roche has given inconsistent evidence about whether he took medication for his neck pain. He has also made inconsistent statements about where the HMAS Sydney was when the incident occurred. According to his written statement in January 2012, it occurred one or two days out of Vung Tau on the trip back to Australia. In oral evidence, he said the ship was on its way to Vietnam and was almost there.
Mr Roche claims a door weighing in the vicinity of 30 kilograms fell freely on to the top of his head. From the description he gave of where he was standing in the shaft in relation to the door, it would be virtually impossible for it to have fallen where he indicated on the top of his head. Moreover, Mr Roche described how it sat over a housing approximately one foot high and was closed securely by means of locks. Its purpose was to be watertight. We find it improbable that a door of that kind could fall directly on to Mr Roche’s head and cause such minimal damage that, after sitting down for about five minutes, he “went about his business” and continued working with no more than a stiff neck for a few days.
Despite the injury he claims to have suffered, Mr Roche did not report it, or his symptoms, to anyone. He gave evidence that he did not think it was a significant injury at the time, or a “big deal”. He claims he was young and shy and did not want to report a relatively minor injury. We find that explanation improbable in light of his medical records which show that, in 1964, he saw a doctor for a bruised knee; in 1970 he saw a doctor for flu; and in 1971 he was seen for anxiety state. His records also show several occasions around 1970 when here reported being well, with no complaints other than a peptic ulcer which is at odds with his claim that he suffered intermittent pain since the incident. His examination on discharge in 1976 did not disclose any neck problems.
In our view, Mr Roche’s evidence about the incident is not reliable. We do not accept that an incident of the kind he described occurred. If an incident of that kind happened at all, we are not satisfied that it occurred while on his operational service. As we have noted, Mr Roche frankly conceded he could not recall whether it happened on operational service and only said it did because he claim would not have succeeded otherwise.
Mr Roche says he has experienced intermittent neck pain for the past thirty years or so. He gave evidence that he did not see a doctor about it until ten to fifteen years ago, and did not start taking medication until six or seven years ago. He takes Brufen and Panadol Osteo, including for his back pain. He told the Veterans’ Review Board that his neck pain only became bad enough to start seeking treatment “a couple of years ago”. When asked why he related his neck pain to his operational service, he could only say that it came back to him when he thought about it.
There is no medical evidence of trauma to Mr Roche’s cervical spine as defined in the SOP.. Dr Smith gave evidence that reports of x-rays of Mr Roche’s cervical spine and clinical examination revealed he has arthritis in his neck of less than average severity for his age. He referred to clinical studies which show increasing disc degeneration with age. The largest study was done on women but he expected a study of men would show similar results, and he cited studies of degenerative cervical disc disease in men that had shown similar results, although in a smaller sample.
Dr Smith gave evidence that, if Mr Roche had ruptured a disc in an incident of the kind he describes, he would have shown narrowing of the cervical discs within two to three years, based on his age at the time; in an older person, the damage would have become apparent sooner. In contrast, Dr Smith said, Mr Roche’s cervical spine shows no such narrowing. He agreed Mr Roche could have sustained a soft tissue injury, and would have had a sore neck after the incident he describes, but it did not cause his cervical spondylosis which is a function of age.
Dr Smith agreed it is possible for an injury the kind described to cause cervical spondylosis but said if that occurred, it would leave a “footprint” in the form of a grossly narrowed disc at C5/6 or C6/7, rather than the graduated degenerative changes present over multiple levels on Mr Roche’s 2011 x-rays.
We accept Dr Smith’s evidence that Mr Roche shows less than average degenerative changes in his cervical spine, and no changes consistent with trauma of the kind he describes. We find that his cervical spondylosis is due to degenerative changes consistent with ageing.
Taking into account the unreliability of Mr Roche’s evidence, the improbability that an incident occurred as he describes, and the lack of any evidence of trauma to his cervical spine, we are satisfied beyond reasonable doubt that his cervical spondylosis is not war-caused.
We affirm the decision under review.
I certify that the preceding 38 (thirty -eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey and Dr I Alexander. .......[sgd].................................................................
Associate
Dated 20 August 2012
Date(s) of hearing 16 August 2012 Counsel for the Applicant Mr C Colborne Solicitors for the Respondent Mr T O'Reilly, Department of Veterans' Affairs Advocacy Section
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