Neil Monteith Chaplin v Repatriation Commission
[2003] AATA 332
•10 April 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 332
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2002/6
VETERANS' APPEALS DIVISION ) Re NEIL MONTEITH CHAPLIN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Brigadier R D F Lloyd, Member Date10 April 2003
PlacePerth
Decision Pursuant to section 43 of the AdministrativeAppeals Tribunal Act 1975, the Tribunal decides:
(a) to vary the VRB decision under review of 19 September 2001, by amending the diagnosed claimed conditions to be spondylolisthesis and lumbar spondylosis;
(b) to affirm the decision under review, so varied, in so far as the condition of spondylolisthesis is not accepted as being war-caused;
(c) to accept as war-caused the condition of lumbar spondylosis in the decision under review as now varied, with effect from 12 April 1999; and
(d) to remit the matter of assessment of incapacity from this now accepted war-caused condition of lumbar spondylosis to the Repatriation Commission.
..........(sgd R D F Lloyd).............................
Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – Ex Australian Regular Army – operational service Vietnam – linesman/rigger – claim for spondylolisthesis – claim varied to include lumbar spondylosis – whether requirements of relevant Statements of Principle met – severity of trauma – lifting/carrying loads over prolonged period.
Veterans’ Entitlements Act 1986 ss 6, 7, 9, 13, 120(1), 120(3), 120(4), 120A
Re Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Yates (1995) 57 FCR 241
Repatriation Commission v Cornelius (2002) FCA 750
REASONS FOR DECISION
10 April 2003 Brigadier R D F Lloyd, Member 1. This is an application before the Administrative Appeals Tribunal (“the Tribunal”) by Neil Monteith Chaplin (“the applicant”) for a review of a decision of the Veteran’s Review Board (“VRB)”, dated 19 September 2001. This affirmed an earlier decision by the Repatriation Commission (“the respondent”) made on 5 October 1999 refusing disability pension for spondylolisthesis, it not being accepted by the respondent as a war-caused condition.
2. The applicant attended the hearing together with his advocate Mr P Lofdahl. The respondent was represented by Mr C Ponnuthurai. The Tribunal had before it the documents filed pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 (‘the T documents”). In addition, the following documents were taken into evidence at the request of the applicant (A) and the respondent (R) respectively:
(a)Exhibit A1 – Medical Report by Mr P H Hardcastle dated 4 July 2002 Re N Chaplin.
(b)Exhibit A2 – Letter dated 2 July 2002 from Dr P A Brockhoff to the Tribunal Re N Chaplin.
(c)Exhibit A3 – Letter dated 3 July 2002 from Dr P A Brockhoff to Mr Hardcastle Re N Chaplin.
(d)Exhibit R1 – In/Out – Patient Reference Sheet (F Med 6) Re Sig N Chaplin dated 4 August 1966 (of 2 pages).
(e)Exhibit R2 – Attendance and Treatment Card (F Med 5) Re Cpl N Chaplin (13 November 1969 to 19 April 1971).
No respondent witnesses were called to give evidence at the hearing. Oral evidence was given by the applicant, who was cross-examined by the respondent’s representative. The Tribunal regards the applicant as an honest and forthright witness and as reliable in his accuracy as one would expect in his recollection of matters dating back some 35 years.
3. The applicant served in the Australian Regular Army (“ARA”) from 7 June 1965 to 6 June 1971. He has a period of operational service as defined in the Act, being service in Vietnam from 28 April 1967 to 30 April 1968 and under the Act his claims for Repatriation benefits are limited to this period. The applicant having operational service, Sections 120(1) and (3) of the Act apply and the Tribunal is required to find that the applicant’s claimed condition is war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for doing so. Additionally, as the claim was lodged after 1 June 1994, by virtue of Section 120A of the Act, the Tribunal is required to assess the matter in accordance with any relevant Statement of Principles (“SoP”) issued by the Repatriation Medical Authority (“RMA”).
Diagnosis of Claimed Condition(s)
4. As the initial step in the hearing the Tribunal first heard evidence, considered and then dealt with the matter of the diagnosis and description of the applicant’s claimed condition and whether in fact there was more than one condition involved. In this regard the Tribunal noted that the applicant had initially claimed in 1999 for what he described as “back pains”, which condition the respondent at that time diagnosed and referred to as “spondylolisthesis”. Whilst there is evidence that there was some specialist medical opinion that a condition of “lumbar spondylosis” was involved, the majority opinion – including more recent opinion – essentially referred to spondylolisthesis and in particular at the L5/S1 level of the spine. The VRB, in the decision under review, accepted this latter opinion evidence and its decision relates to spondylolisthesis only.
5. The applicant’s advocate in his documented Statement of Facts and Contentions before the Tribunal contends that the claimed conditions are spondylolisthesis and spondylolysis. The Tribunal notes in regard to these two conditions, that they are related and both are dealt with in the one SoP, with the majority of causal factors in that SoP Instrument (15 of 1997) applying jointly to both.
6. The respondent’s contention as presented in its Statement of Facts and Contentions and repeated in the hearing is that, based on the overall medical evidence before the Tribunal, the appropriate diagnosis of the conditions applicable to the applicant’s claimed complaint would be that there are in fact two conditions, ie. “spondylolisthesis” and also “lumbar spondylosis”.
7. These contentions and previous determinations were discussed in the hearing at some length, together with a re-examination of the documented medical opinion evidence available. In the end result, with agreed emphasis being placed on the opinion of Mr Hardcastle – an orthopaedic and spinal disorder specialist – contained in Exhibit A1; as well as the documented evidence of Dr Brockhoff in Exhibits A2 and A3; and the earlier opinion evidence contained in the T documents also taken into account, it was common ground with both parties that the appropriate and relevant diagnosis and descriptions of the applicant’s claimed low back complaints are spondylolisthesis and also lumbar spondylosis. The addition of “spondyolysis” it was agreed was not necessary or relevant. On the basis of all the evidence before it, the Tribunal is reasonably satisfied that this diagnostic conclusion is correct and determines accordingly.
8. The hearing proceeded on that amended basis, as does the Tribunal’s consideration of the applicant’s appeal. It does so on the basis that, although lumbar spondylosis did not form part of the VRB decision under review, the Tribunal properly should look at the evidence anew – putting itself in the shoes of the original decision maker. It is therefore appropriate to consider the added question of lumbar spondylosis – as in fact it is noted, did the respondent, at the time of its decision (T6 page 2).
Spondylolisthesis
9. It is clear from the documented evidence that the applicant’s condition of spondylolisthesis is of long standing. Medical opinion evidence is that it certainly pre-existed his military service, although asymptomatic, (Exhibits A1 and R1) and therefore pre-existed his period of eligible (operational) service in Vietnam also. This is acknowledged by the applicant (transcript page 12). Consequently, any possible relationship of his present spondylolithesis condition to this war service can only be on the basis of whether or not there was, as a result of that service, a material contribution to a worsening, or an aggravation of, that pre-existing condition. This also is acknowledged by the applicant (transcript page 46).
10. The applicant’s contention is that this particular back condition was indeed aggravated, worsened and became more evident, during his operational service in Vietnam. In particular he describes a causal incident when he was carrying out maintenance on a communication tower of approximately 200 feet in height on the top of the Allied Headquarters building in Saigon, in about May 1967. The applicant states that he was working well up the tower when he believed he was being shot at. He abruptly and without normal care descended to ‘ground’ level on top of the building, falling with resultant heavy jarring of his lower back.. It is contended that this incident/injury resulted in trauma to the lumbar spine sufficient to contribute, to a material degree, to the worsening of his pre-existing spondylolisthesis condition. There were similar falls/jarring of the back from other towers and antennae also. Other activities, which involved straining, twisting and heavy back involvement during his Vietnam service were also cited as causally relevant and contributing to the worsening of the condition.
11. Following the process set out by the Full Federal Court in RepatriationCommission v Deledio (1998) 83 FCR 82, the Tribunal first considered the relevant material before it, albeit limited to the applicant’s oral evidence, in relation to this stated contention. Without initially making findings of fact in this regard the Tribunal is satisfied that the material satisfactorily points to a hypothesis connecting the applicant’s current state of spondylolisthesis with his war service.
12. There is a SoP in force determined by the RMA dealing with spondylolisthesis, which is Instrument 15 of 1997. There is no factor in the SoP which covers the repetitive strain/twisting of the back aspects contended by the applicant in the second part of his hypothesis as contributing to the worsening of his spondylolisthesis condition. The only relevant factor in the SoP, and agreed to be so by the applicant’s advocate (and the respondent’s representative), is factor 5(j). This states:
“(j)suffering a severe, high energy trauma to the lumbar spine sufficient to result in an acute fracture of the vertebral arch or verebral facet joint dislocation at the time of the clinical worsening of lumbar spondylolisthesis or spondylolysis; or”
The above term – “severe, high energy trauma to the lumbar spine”, contained in factor 5(j), is defined in paragraph 7 of the same SoP. It states as follows:
“a severe, high energy trauma to the lumbar spine means a major, high impact, direct injury to the lumbar spine, giving rise to immediate lumbar pain and precluding unaided ambulation for a period of at least two weeks, and associated with other fractures and/or significant soft tissue injuries. Examples would include: a fall from a significant height directly onto the back; a major motor vehicle accident; being struck across the back by a heavy, high momentum object such as a falling tree;”
13. Ascertaining “time of clinical worsening” of the applicant’s spondylolisthesis condition is difficult. There is evidence that as a result of a motor vehicle accident (MVA) in 1991 he was examined and treated for resultant cervical and lumbar spine problems. In the associated medical reports at T8 page 40 to 42, T9 page 43, T10 page 44 to 50 and T11 page 53 there is evidence of the applicant’s pre-existing spondylolisthesis, but the indications in 1992 are that the condition evident at the level of L5/S1 was “minimal” or “mild”.. The Tribunal concludes from this that the spondylolisthesis may have worsened slightly as a direct result of the 1991 MVA -–although there is no specific evidence that this is so. The applicant believes however that the spondylolisthesis in fact worsened from its pre-eligible service asymptomatic state following, and as a result of, the tower incident in May 1967 in Saigon, perhaps together with other similar tower incidents on operational service. He bases this on the fact that he had increased back problems as a result – especially after the May 1967 Saigon injury. In considering this aspect the Tribunal took account of the decision in Repatriation Commission v Corneleus (2002) FCA 750.
14. In summary, the applicant’s recollection of the relevant aspects of the May 1967 tower incident in Saigon, given orally at the hearing, is that he suffered resultant immediate lumbar pain after falling at the end of his rapid decent down the tower and as a consequence jarring his back. However, he states that at no time after this fall (or other similar falls) was he unable to walk unaided. From the descriptions given by the applicant it is also the Tribunal’s opinion that the trauma to his lumbar spine at that time in May 1967, and other similar trauma incidents, were not of a sufficiently “high impact” or “direct injury” nature as envisaged by the wording of the definition contained in the SoP. Nor is there evidence of the required associated “fractures and/or significant soft tissue injuries” having occurred on any of these tower/antenna falls.
15. As a result, even if the Tribunal were to accept that the time of the clinical worsening of the lumbar spondylolisthesis condition was, as is contended by the applicant, more closely related to the May 1967 tower incident injury or others in 1967, the Tribunal is not satisfied that the facts as presented meet the specific requirements of factor 5(j) and paragraph 7 of the SoP. It has been tentatively suggested by the applicant’s advocate that factor 5(p) of the SoP may also be relevant in regard to “inability to obtain appropriate clinical management”.. However, the Tribunal finds that there is no satisfactory supporting or other relevant evidence before it to suggest such a case and to meet the requirements of this factor in the SoP.
16. As a consequence of these findings the Tribunal is relevantly satisfied that the applicant’s hypothesis concerning his claimed spondylolisthesis condition fails to fit within the template of the SoP and therefore is deemed not to be reasonable. In accordance with the provisions of the Act, in respect to that condition the applicant’s claim must fail.
Lumbar Spondylosis
17. The applicant’s contention is that the lumbar spondylosis condition was caused, or contributed to in a material degree, by his war service. His evidence is that his linesman/rigger duties on operational service were such that he was consistently involved, particularly over the first 6 months of his one year tour in Vietnam, in trench digging/excavation for cable laying; in carrying cable drums; in lifting and laying heavy cable; in lifting, assembling and carrying parts of communication towers and antennae; in carrying heavy components of other various communication equipment of varying weight; in lifting and carrying bags of cement as well as concrete blocks; and in the carrying of heavy maintenance tools/equipment. Because of his qualifications in the communications field and because the team of which he was part was small, as well as the heavy demand for the communication work to be done promptly-particularly at that time during the war - there was little or no let up for him or his colleagues. The tasks involved communications work of the kind described above within the Australian logistics base at Vung Tau, the Australian Task Force base at Nui Dat, at the Allied (“Free World”) Headquarters building in Saigon, as well as other locations. It was, he maintains, a constant 6 to 7 day a week role over long hours for his first 6 months in Vietnam. He states that he often had problems with his lower back as a result of these activities during the period, but took little time off as there were not enough people with his qualification to get the jobs done. He recalls self-medicating with pain reducers from the RAP at times to help keep himself available in those circumstances. This evidence material, in the Tribunal’s opinion, adequately points to a hypothesis connecting the applicant’s lumbar spondylosis condition with the operational service rendered by him.
18. There is a SoP in force dealing with lumbar spondylosis, the current Instrument being 46 of 2002. The Instrument current at the time of the initial decision by the respondent in October 1999 was 27 of 1999. That SoP however is distinctly less favourable to this applicant under his circumstances and would therefore not be used by the Tribunal, as is provided for, should it not find in favour of the applicant using the now current SoP.
19. The applicant is unable to recall with any preciseness the weights of the various items of communication equipment, components etc involved in his Vietnam role and which it was necessary for him to lift/carry and weight bear on almost a daily basis, particularly for that first 6 months period. However, on questioning by his advocate and by the Tribunal, and in cross-examination by the respondent’s representative, he agreed with the propositions put to him in this regard. He confirmed that on average most items would have weighed in excess of 27kg – more like 30 to 40 kg, sometimes even more (up to 70kg) and seldom less. Also, that lifts by him of these items/components would have occurred on average about 30 to 50 times a day.
20. As a consequence of this evidence, it was common ground at the hearing that the Tribunal’s resultant initial calculation of the applicant’s manual lifting/carrying of the loads described whilst weight bearing was reasonable and the result was accepted by both parties. That Tribunal calculation of the cumulative total was in the order of 160,000kg over a 6 months period. However, the Tribunal subsequently chose in its final calculations to use the lesser figure in any alternative provided and the lower figure in any assessed range given. The Tribunal decided on this course of action after its re-examination of the evidence post-hearing. The figures used are as follows:
156 (6 months @ 6 days per week) x 30 (lifts per day) x 30 (kg per lift)
This results in a cumulative total of 140,400kg. It is recognised that the figures and calculations are rather subjective and certainly approximate, however, as has been commented upon before by the Tribunal, there is no alternative under these sort of circumstances. Whilst this final total arrived at by the Tribunal is lower than that agreed by both parties at the hearing, it is the figure now determined by it as being a fair and reasonable assessment, based on the overall evidence available and the degree of reliability the Tribunal places upon it.
21. As far as ascertaining the period in which the clinical onset of the applicant’s lumbar spondylosis occurred is concerned, relevant available documented evidence does assist. Exhibit R1 indicates that in 1966, prior to his war service, radiological evidence shows spondylolisthesis but no mention is made of lumbar spondylosis. Dr Hewett’s report of May 1993, on the basis of a previous CT Scan, again does not indicate spondylosis being evident in the applicant’s lumbar region as at 1992 (T10 page 46). However Dr Young’s CT Scan report of November 2000 (T16 page 61) does note degenerative change involving the facet joints in the thoraco-lumbar spine, indicating lumbar spondylosis. From this sequential documentary evidence, the Tribunal deduces that the onset of the applicant’s lumber spondylosis was sometime between 1992 and 2000. Mr Hardcastle’s report of July 2002 (Exhibit A1) also confirms established multi-level degenerative changes involving the lumbar spine, with severe changes at L4/L5 level.
22. The relevant factor in the appropriate SoP – Instrument 46 of 2002 – is factor 5(j). This states as follows:
“(j) manually lifting or carrying loads of at least 25 kg while weight bearing to a cumulative total of 120,000kg within any 10 year period, before the clinical onset of lumbar spondylosis; or”
23. From the evidence summarised in paragraphs 19 to 21 of these Reasons, the Tribunal finds that the applicant’s war service activity involving manual lifting and carrying satisfactorily meets the weight bearing requirement prescribed in factor 5(j) of SoP Instrument 46 of 2002. In fact it exceeds the required cumulative total by over 20,000kg – in approximate terms. This war service activity occurred within just the one year of service in Vietnam and was therefore well within the 10 year period required by factor 5(j). It was also before the assessed clinical onset of the claimed lumbar spondylosis condition – which at earliest is determined by the Tribunal as being 1992. The 1991 MVA in which the applicant was involved and suffered back injury, in the Tribunal’s opinion and based on documented evidence, is likely to have subsequently contributed to his lumbar spine condition. This asepct is of concern to the Tribunal in reaching its final conclusions in this matter. However it is satisfied from the overall evidence before it that neither this probability, nor the result of a reported back injury in 1971 (Exhibit R2), exclude a relevant prior contribution to this condition by the applicant’s war service activity in 1967-68.
Conclusion
24. From the medical opinion evidence available, as concluded in paragraph 7 of these Reasons, the Tribunal is reasonably satisfied that the condition of lumbar spondylosis should be added to the diagnosis of the applicant’s initially claimed condition of spondylolisthesis.
25. Based on the evidence and its findings, as set out in these Reasons, the Tribunal is satisfied that the hypothesis raised by the applicant in relation to the additional claimed condition of lumbar spondylosis fits the template of SoP Instrument 46 of 2002. It is therefore a reasonable hypothesis in terms of the Act. Furthermore, under Section 120(1) of the Act, the Tribunal is satisfied beyond reasonable doubt, based on the material before it, that there is no sufficient ground for concluding that this condition was not war-caused.
26. From the material before it and its findings, the Tribunal determines that the hypothesis raised by the applicant concerning his claimed condition of spondylolisthesis having been worsened by his war service does not fit the template of SoP Instrument 15 of 1997 – the relevant SoP. It is therefore deemed not to be reasonable in terms of the Act and the applicant’s claim in this respect fails.
Decision
27. For the above reasons and pursuant to Section 43 of the AdministrativeAppeals Tribunal Act 1975, the Tribunal decides:
(a) to vary the VRB decision under review of 19 September 2001, by amending the diagnosed claimed conditions to be spondylolisthesis and lumbar spondylosis;
(b) to affirm the decision under review, so varied, in so far as the condition of spondylolisthesis is not accepted as being war-caused;
(c) to accept as war-caused the condition of lumbar spondylosis in the decision under review as now varied, with effect from 12 April 1999; and
(d) to remit the matter of assessment of incapacity from this now accepted war-caused condition of lumbar spondylosis to the Repatriation Commission.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Brigadier R D F Lloyd, Member
Signed: ............(sgd V Wong)....................................
AssociateDate/s of Hearing 31 March 2003
Date of Decision 10 April 2003
Counsel for the Applicant Mr P Lofdahl
Counsel for the Respondent Mr C Ponnuthurai
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