Morris and Repatriation Commission
[2005] AATA 539
•7 June 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 539
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2004/122
VETERANS' APPEALS DIVISION ) Re ROBERT JOHN MORRIS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member WJF Purcell Date7 June 2005
PlaceAdelaide
Decision The Tribunal sets aside the decision under review, and substitutes a decision that the applicant’s cervical spondylosis was a war-caused disease, and that Disability Pension is payable to the applicant with effect from 26 December 2002.
(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – veteran’s entitlements – Disability Pension – cervical spondylosis – reasonable hypothesis – clinical worsening of cervical spondylosis following trauma to cervical spine – decision set aside
Veterans’ Entitlements Act 1986 ss 120, 120A
Statement of Principles Instrument No 50 of 2002
Statement of Principles Instrument No 81 of 2002
REASONS FOR DECISION
7 June 2005 Senior Member WJF Purcell 1. This is an application for review of a decision of the Repatriation Commission (the Commission) of 9 April 2003 which refused the applicant’s claim for payment of Disability Pension, for the condition of cervical spondylosis. The Veterans’ Review Board (VRB) affirmed the decision on 31 March 2004.
2. The evidence before the Tribunal comprised the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act1975 (the T documents) together with exhibits tendered by the parties. Mr Swan represented the applicant, who gave oral evidence, and called Mr A Munyard, Orthopaedic Surgeon, as a witness. Mr Crowe appeared for the Commission.
3. The applicant, who is 50 years of age, served in the Australian Army (the Army) as a carpenter and joiner from 12 January 1982, until 15 February 1984, and from 6 December 1988, until 1 July 2002. During the latter period, from 18 October 2000 until 11 December 2000, and from 21 December 2000 to 20 February 2001, he served on UN Peacekeeping Duties, on Operation Tanager, in East Timor, and for the purposes of the Veterans’ Entitlements Act 1986 (the Act) this service is operational service. Only his service from 6 December 1988 until 6 April 1994, is eligible defence service, with the remainder of his service (apart from the operational service referred to above) not coming under the scope of the Act.
4. On 26 March 2003, the applicant lodged a claim for pension in respect of cervical spondylosis. The diagnosis of cervical spondylosis was confirmed, and on 9 April 2003 the Commission rejected the claim. The applicant lodged an application for review, and on 31 March 2004 the VRB affirmed the decision.
5. The applicant maintains that his condition of cervical spondylosis is connected with his operational service, and the standard of proof is that of reasonable hypothesis in accordance with s 120 of the Act, which, as far as is relevant for the purposes of this review, provides:
“120Standard of Proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
(2) …
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.”
6. Section 120A of the Act provides:
“120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120 (1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).
(2) …
(3)For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B (2) or (11); or
(b) a determination of the Commission under subsection 180A (2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
…”
7. The hypothesis propounded by the applicant is that his condition relates to his operational service, in that his cervical spondylosis was aggravated by his particular service. In my view, the material before the Tribunal would, if correct, point to a hypothesis that the condition was war-caused. There are Statements of Principles in force, and in accordance with those Statements of Principles at least one of the factors set out in clause 5 of the Statement of Principles, must as a minimum exist, before it can be said that a reasonable hypothesis has been raised, connecting the aggravation of the condition with the circumstances of the applicant’s relevant service.
8. The appropriate Statement of Principles for the condition of Cervical Spondylosis is Instrument No 50 of 2002, as amended by Instrument No 81 of 2002, (the Cervical Spondylosis SoP). The applicant contends that factor 5(q) of the Cervical Spondylosis SoP is satisfied:
“(q)having disordered joint mechanics affecting the cervical spine before the clinical worsening of cervical spondylosis;”
“Disordered joint mechanics” is defined as:
“… maldistribution of loading forces on the cervical spine that has resulted from:
(a) scoliosis, or
(b)loss or enhancement of the normal anterioposterior curvature of the vertebral column, or
(c) spondylolisthesis, or
(d) retrospondylolisthesis, or
(e) a deformity of a vertebra, or
(f) a deformity of a joint of a vertebra, or
(g) necrosis of bone;”
Paragraph 4 of the Cervical Spondylosis SoP reads:
“4.Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.”
Paragraph 6 of the Cervical Spondylosis SoP reads:
“6.Paragraphs 5(n) to 5(y) apply only to material contribution to, or aggravation of, cervical spondylosis where the person’s cervical spondylosis was suffered or contracted before or during (but not arising out of) the person’s relevant service; …”
9. The applicant was born in Adelaide and obtained his trade as a carpenter with the Public Buildings Department. He joined the Army, initially, when he was 27 years of age, and served for 2 years until February 1984. He then had a number of general carpentry type jobs, until re-enlisting in the Army in December 1988 until 1 July 2002, when he was discharged as medically unfit.
10. The applicant gave evidence that in about September 1991 he sustained an initial cervical spine injury whilst operating a bulldozer at Shoalwater Bay, Queensland, during a period of eligible defence service. He first received treatment when he attended the Repatriation General Hospital in Adelaide, whilst on leave, on Easter Sunday, 19 April 1992. He was complaining of pain in his shoulder and pins and needles in his left finger. On Tuesday 21 April 1992 he attended at the Regimental Aid Post at Keswick Barracks, again reporting left shoulder pain with pins and needles in his fingers. He says that at the time he had not linked any specific work he had done with his condition. The applicant believes that his neck pain arose as a result of the plant operating prior to Easter 1992.
11. The applicant said in evidence that he was operating a large Komatsu 116 bulldozer between September and November 1991 at Shoalwater Bay, Queensland. He was training as a Plant Operator. He operated the bulldozer for some two weeks during which time he was subjected to significant shocks to his neck as the bulldozer was used to push material in a quarry for use as a road base. The first time he experienced serious neck pain was Easter 1992. The pain continued, and subsequently he underwent surgery in Victoria for a spinal fusion of C6/C7, in August 1992. He says that he has had ongoing upper back and neck problems since that time.
12. Between October 2000 and February 2001, the applicant served with the Engineers, as a carpenter in East Timor. He says that in East Timor he re-aggravated his neck injury. His work involved re-roofing burnt out houses in the western region of East Timor, Maliana, Bobanaro, and Adabaletten, which were small villages. The work involved erecting roof timbers, rafters, purlins and hanging beams, and re-cladding the roof timbers with corrugated iron. Some lengths were in excess of six metres. In addition to performing carpentry work, he was also required to do guard duty at night, and was required to wear a helmet and flak jacket and carry webbing. He would carry five magazines fully loaded for more than two hours during each period of duty, which he maintains also aggravated his neck.
13. The applicant said in evidence that had he been doing this type of roofing work in Australia, he would have had lifting equipment and greater assistance than was available in East Timor. In East Timor he had his section, which comprised two carpenters, two electricians and one plumber. He had no carpenter’s assistant. He would get help from local East Timorese, who were inexperienced, and had no real understanding of building, or roof construction.
14. A perusal of the documentary evidence discloses that the applicant was repatriated to Australia because of his neck pain, numbness and tingling in the fingers. On 11 February 2001, the Medical Officer noted that the applicant had experienced a loss of upper body strength, and had difficulty wearing the vest and helmet for pickets. He recommended repatriation to Australia [T4/108].
15. Mr Munyard, Orthopaedic Surgeon, has provided two written reports, and said in evidence that he considered that the applicant had disordered joint mechanics (a deformity of a joint of a vertebra in accordance with the definition in the Cervical Spondylosis SoP) affecting the cervical spine, as a result of the cervical fusion in 1992. There are extra forces applied to the joints above and below the area of the fusion. He said that the applicant was fit enough to undertake duty in East Timor, but that while he was there, other levels in the spine were put under strain, through for example, lifting, and his neck suffered further trauma. This led to his reported problems with the flak jacket and the helmet.
16. Mr Munyard gave evidence that the disordered joint mechanics occurred from the date of the spinal fusion. It is the fusion which has led to the symptoms of which he complains. Mr Munyard said that in his view the delay of some 4-5 months between the applicant’s operation of the bulldozer and the onset of pain on the following Easter Sunday (19 April 1992) did not support an assertion that the pain was a result of the bulldozer driving – it was too long a gap. I accept Mr Munyard’s evidence and opinion.
17. The applicant maintains that his operational service aggravated the cervical spondylosis suffered before his relevant service, but not arising out of his relevant service. He satisfies factor 5(q) of the Cervical Spondylosis SoP, having disordered joint mechanics affecting the cervical spine “a deformity of a joint of a vertebra” (in accordance with the definition) before the clinical worsening of cervical spondylosis during his operational service in East Timor.
18. The Commission concedes that the applicant had disordered joint mechanics before the clinical worsening of cervical spondylosis, but maintains that as the disordered joint mechanics resulted from the spinal fusion in 1992, and it is not “related to any relevant service” rendered by the applicant, that factor 5(q) is not satisfied therefore.
19. In my view, the Commission’s submissions cannot succeed. The applicant’s hypothesis relates to an aggravation of the condition of cervical spondylosis. The requirement in clause 4 of the Cervical Spondylosis SoP that at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person, is subject to clause 6. Clause 6 headed “Factors that apply only to material contribution or aggravation” states that paragraphs 5(n) to 5(y) apply only to material contribution or aggravation of cervical spondylosis which was suffered before (but not arising out of) the relevant service. Factor 5(q), upon which the applicant relies, fits within this category. The applicant’s cervical spondylosis was suffered before his operational service; it did not arise out of his relevant service. He had suffered disordered joint mechanics affecting the cervical spine before the clinical worsening of his cervical spondylosis, during his operational service. This led to his repatriation to Australia, and his discharge from the Army, as medically unfit, on 1 July 2002.
20. I am satisfied on the evidence, that factor 5(q) of the Cervical Spondylosis SoP is satisfied, which upholds the hypothesis connecting the applicant’s cervical spondylosis with the circumstances of his particular service. In my view, there is a reasonable hypothesis connecting the applicant’s cervical spondylosis with his operational service. I am satisfied, on the whole of the evidence, therefore that the applicant’s cervical spondylosis is a war-caused condition.
21. For these reasons the Tribunal sets aside the decision under review, and substitutes a decision that the applicant’s cervical spondylosis was a war-caused disease, and that Disability Pension is payable to the applicant with effect from 26 December 2002.
I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed: .....................................................................................
AssociateDate of Hearing 4 April 2005
Date of Decision 7 June 2005
Counsel for the Applicant Mr C Swan
Solicitor for the Applicant Swan Lawyers
Counsel for the Respondent Mr A Crowe
Solicitor for the Respondent DVA
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