Orr and Repatriation Commission
[2004] AATA 1344
•15 December 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1344
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2003/67
VETERANS’ APPEALS DIVISION ) Re Terrance Victor Orr Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal Mr M J Allen, Member Date15 December 2004
PlacePerth
Decision The decision of the Tribunal is that the decisions of the respondent made on 16 August 2001, as affirmed by the Veterans’ Review Board on 6 February 2003, that:
(a) the applicant’s cervical spondylosis is not war caused, is affirmed; and
(b) the applicant’s thoracic spondylosis and lumbar spondylosis are not war caused, is set aside and in substitution therefor the Tribunal decides that the applicant is entitled to a disability pension for thoracic spondylosis and lumbar spondylosis, with effect from 27 November 2000.
.............(sgd M J Allen)..................
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – disability pension – whether disease caused by war service – cervical, thoracic and lumbar spondylosis – whether reasonable hypothesis established connecting diseases to war service – finding that the material before the Tribunal did not point to the applicant suffering trauma to his cervical, thoracic and lumbar spine – finding that material did point to the applicant carrying or lifting loads of at least 25kg while weight bearing to a cumulative total of 120,000kg within a ten year period – finding that a reasonable hypothesis established connecting thoracic and lumbar spondylosis to war service – decision under review in relation to cervical spondylosis affirmed – decision under review in relation to lumbar and thoracic spondylosis set aside
Veterans Entitlement Act 1986 ss 9, 120, 120A, 196B
Repatriation Commission v Deledio [1998] 49 ALD 193
Repatriation Commission v Gorton [2001] FCA 1194
Kattenburg v Repatriation Commission [2002] FCA 412
REASONS FOR DECISION
15 December 2004 Mr M J Allen, Member 1. This is an application by Mr Terrance Orr (“the applicant”) for review of decisions made by the Veterans’ Review Board (“VRB”) on 6 February 2003 to affirm a decision made on 16 August 2001 by a delegate of the respondent to refuse a claim that conditions of cervical spondylosis, thoracic spondylosis and lumbar spondylosis were war caused.
2. At the hearing of the matter the applicant was represented by an advocate, Mr Lofdahl, and the respondent was represented by Mr Carl Ponnuthurai, an employee of the Department of Veterans’ Affairs. The Tribunal received into evidence the documents filed pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (T1 to T26), exhibits A1 to A7 tended by the applicant, and exhibits R1 to R3 tended by the respondent. Oral evidence was given by the applicant and, on behalf of the respondent, by Commodore A H R Brecht (retired).
Background
3.
The applicant was born in January 1938 and served in the Royal Australian Navy (“the Navy”) between November 1955 and January 1962. He rendered operational service in the Far East Strategic Reserve as follows:
HMAS Sydney21 September 1956 to 13 October 1956
HMAS Voyager21 January 1958 to 3 April 1958
23 April 1958 to 13 May 1958
4 June 1958 to 10 July 1958
22 July 1958 to 19 August 1958
18 March 1959 to 28 April 1959
7 April 1960 to 15 April 1960
6 May 1960 to 2 June 1960
4. In March 1999 the respondent accepted as war caused claims by the applicant for the conditions of tinea, bilateral sensorineural hearing loss with tinnitus, and emphysema – focal or localised. In February 2001 the applicant applied to have accepted as war caused conditions of the neck and back that were subsequently diagnosed as cervical spondylosis, thoracic spondylosis and lumbar spondylosis, and acute sinusitis. A delegate of the respondent refused to accept those conditions as war caused in August 2001 and the applicant sought review of that decision by the VRB. Before the VRB the applicant did not pursue the claim for acute sinusitis and it is the decision in relation to the three forms of spondylosis that is before the Tribunal in the present proceedings.
Statutory Framework
5. Subsection 9(1) of the Veterans’ Entitlement Act 1986 (“the Act”) relevantly provides that a disease contracted by a veteran shall be taken to be war-caused if:
“(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the injury suffered, or disease contracted, by the veteran arose of, or was attributed to, eligible war service rendered by the veteran;”
6. Section 120 of the Act deals with standards of proof. In the case of a veteran with operational service subsections 120(1) and (3) provide as follows:
“(1) Where a claim under Part II for pension in respect of the incapacity from the 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.
…
(3) In applying subsection (1) … in respect of the incapacity of a person from injury or disease … 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)…;
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.
7. Subsection 120A(3) provides, in relation to claims made after 1 June 1994, that an hypothesis connecting a disease with the circumstances of any particular service rendered by the person is reasonable only if there is a Statement of Principles (“SOP”) determined under subsection 196B(2) that upholds the hypothesis. Subsection 120A(4) provides that subsection 120A(3) does not apply where there is no SOP in respect of the relevant injury or disease.
Consideration of the Issues
8. The first question to be answered is whether or not the applicant presently suffers from cervical, thoracic and lumbar spondylosis.
9. In his February 2001 claim (T15) the applicant stated that he became aware of a very sore neck, upper limbs and back, and lower limbs in early 1991. The medical practitioner who partially completed that form provided a final diagnosis that the applicant had osteoarthritic degeneration of the cervical, thoracic and lumbar spine and both knees. In October 1992 an orthopaedic surgeon, Dr J O’Connor, reported that he suspected that the applicant had amongst other conditions, osteoarthritic degeneration in his cervical, thoracic and lumbar regions. In March 2001 a medical officer of the respondent confirmed final diagnosis of the three forms of spondylosis.
10. In the circumstances I am satisfied, and I find, that the applicant does have the conditions of cervical, thoracic and lumbar spondylosis. The next question that must be determined in whether those three conditions should be accepted as war caused diseases.
11. The Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193 at 206 set out the approach that is to be adopted by this Tribunal in deciding whether or not a disease is war-caused where a veteran has operational service. The analysis set out below follows the steps specified by the Full Court.
12. The first step requires the Tribunal to consider all the material that is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no hypothesis arises, the application must fail.
13. In his claim form the applicant stated that during his naval service he was subjected to a number of falls aboard the ships on which he served, which resulted in severe pains to the neck and back for many days, but for which he was not able to take time off work despite the pain and discomfort. In a form completed in June 2001 (T19) the applicant referred to a number of injuries to his neck and back, including an incident when a steam boiler blew and occasions when he fell down ladders and in the mess. In his evidence to the VRB and his oral evidence in the present proceedings the applicant confirmed that on a number of occasions he fell whilst in the engine room where he served or elsewhere on the ship and described an incident where the ship turned suddenly, causing a number of people in the engine room and elsewhere to be injured and a great deal of crockery to be damaged. On all these occasions he suffered pain and discomfort to various parts of his body and on occasions reported to the sick bay to obtain aspirin. Because he was young and fit, and because there was a culture of not seeking medical treatment and supporting one’s ship mates, he had always carried on with his duties. On occasions his ship mates had helped him perform his duties and he had done the same for them in return on occasions.
14. The applicant also gave evidence that it was normal practice on ships of the kind on which he served for all crew members to be involved in activities such as damage control training and assisting when the ship was resupplied with stores or ammunition. In addition, as a worker in the engine room, the applicant said that he was required to carry regularly heavy drums of lubricating oil and other goods, as well as carrying heavy items of machinery and tools in the engine room – and that all this lifting and carrying caused pain and contributed to his development of spondylosis in later years.
15. Exhibits A2 to A4 are statements provided by shipmates of the applicant, Mr P Thurlow, Mr R Hassall and Mr S Clempson. These statements confirm that when they and the applicant served aboard HMAS Voyager they were required to lift and carry many heavy items and to assist in the refuelling and reprovisioning of the ship. They also confirmed that many falls occurred in the course of service, some of which specifically included the applicant.
16. In his oral evidence and in exhibits R2 and R3, Commodore Brecht confirmed that seamen such as the applicant would be expected to participate in the carrying of many heavy items as part of the refuelling, reprovisioning and re-arming ships.
17. I am satisfied that all of the material before me points to an hypothesis connecting the spondylosis conditions of the applicant and his operational service. Having reached that conclusion I must then consider the second step referred to in Deledio, which is to ascertain whether there is in force a Statement of Principle (“SOP”) determined under s 196B of the Act in relation to the conditions in question.
18. On 16 August 2001, when the respondent’s delegate refused the applicant’s claims, the conditions of cervical, thoracic and lumbar spondylosis were the subject of SOPs numbered 31, 29 and 27 of 1999 respectively. However, on 4 June 2002 those three SOPs were revoked and replaced by SOPs numbered 50, 48 and 46 of 2002 respectively. With effect from 21 November 2002 those three new SOPs were amended by SOPs numbered 81, 79 and 77 of 2002 respectively. The Tribunal should approach the question of entitlement by reference to the SOP in force at the time of its decision. However if the application of that SOP leads to a conclusion that the disease in question was not caused by war service then the claimant has an accrued right to have his/her position judged by reference to the SOP in force at the date of the respondent’s original decision: see Repatriation Commission v Gorton [2001] FCA1194, 110 FCR 321 at [62]. It follows that the applicant’s claim regarding cervical, thoracic and lumbar spondylosis must first be considered in terms of the SOPs 50, 48 and 46 of 2002 as amended, and that is the basis upon which both parties presented their cases. Mr Lofdahl for the applicant informed me that if the applicant’s claims failed under the SOPs of 2002 then it was not contended that any different conclusions would arise under the earlier SOPs.
19. The third step to be taken, following the approach set out in Deledio, is that the Tribunal must form an opinion as to whether the hypothesis raised in relation to each condition is a reasonable one – and this will be so if the hypothesis “fits” the “template” to be found in the relevant SOP. The hypothesis must contain one or more of the factors which the Repatriation Medical Authority has determined to be the minimum which must exist and be related to the applicant’s service. If the hypothesis does contain these factors, it can neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful.
20. In the case of the three SOPs dealing with cervical, thoracic and lumbar spondylosis, clause 5 of each SOP sets out the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting the relevant spondylosis with the circumstances of a person’s relevant service, at least one of which must exist in order to raise the reasonable hypothesis. In the case of SOP 50 of 2002, dealing with cervical spondylosis, the only factor identified by the applicant as relevant is factor 5 (h), which requires “suffering a trauma to the cervical spine before the clinical onset of cervical spondylosis”. Clause 8 of the SOP defines “trauma to the cervical spine” as meaning
“… a discrete 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 a 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, where that medical intervention involves either:
(a) immobilisation of cervical spine by splinting or simular external agent; or
(b) injection of corticosteroids or local anaesthetics into the cervical spine; or
(c) surgery to the cervical spine.”
21. In the case of SOPs 48 of 2002 and 46 of 2002 dealing with thoracic and lumbar spondylosis respectively, the applicant identified factors 5(h) and 5(j) as the relevant factors in the present case. In both those SOPs factor 5(h) and the definitions of “trauma to the thoracic spine” and “trauma to the lumbar spine” are stated in identical terms to factor 5(h) and the definition of “trauma to the cervical spine” in SOP 50 of 2002 – with the exception that the word “cervical” is replaced by the word “thoracic” or “lumbar” as required.
22.Factor 5(j) is expressed in each of SOP 38 of 2002 and 46 of 2002 as follows: “manually lifting or carrying loads of at least 25kg while weight bearing to a cumulative total of 120,000kg within any ten year period, before the clinical onset of thoracic [“lumbar” in SOP 46 of 2002] spondylosis”.
23. I note at this point that, in relation to factor 5(h) and the definition of trauma to the spine, the only material difference between SOPs 50, 48, and 46 of 2002 and the earlier SOPs that they replaced is that in the definition of trauma to the spine in the earlier SOPs the first sentence of the definition required the development “…of acute symptoms and signs of pain and tenderness…”, whereas the later SOPs did not contain the word “acute”. The parties agreed that this amendment provided a definition of trauma that was more favourable to the applicant.
24. It was not in dispute between the parties that the date of clinical onset of the applicant’s spondylosis conditions was early 1991, that being the time when the applicant first sought medical attention for those conditions.
25. For the purposes of factor 5(h) of the three SOPs, for the hypothesis to fit the template it is necessary for the material before the Tribunal to point to the applicant having suffered one of more discrete injuries to the relevant parts of the spine that caused the development within 24 hours of symptoms and signs of pain and tenderness, and altered mobility or a range of movement of the spine – and that these symptoms and signs must have persisted for a period of at least seven days following their onset. It was not in dispute between the parties that at no time was there medical intervention for any trauma that the applicant may have suffered whilst on operational service. There is evidence from the applicant and his ship mates, referred to above, that points to the applicant having experienced a number of falls in the course of his service aboard HMAS Voyager and that these falls caused the development of pain and tenderness and altered mobility in the neck and back.
26. There is no direct evidence as to when these incidents occurred and, in particular, whether they occurred during the applicant’s periods of operational service or at other times. According to document T5, which is the certificate of the applicant’s service in the Navy, he served aboard HMAS Voyager from the date of its commission in February 1957 until the middle of June 1960, a period of three years and four months. The periods of the applicant’s operational service upon HMAS Voyager amount to a total of approximately 250 days during that period. According to exhibit R1, which is a record of the voyages of HMAS Voyager between 1957 and January 1964, the ship was at sea for much of the time in which the applicant served on it, apart from the periods of operational service.
27. As regards the requirement in factor 5 (h) that the symptoms and signs of pain, tenderness etc that developed from the discrete injuries must have lasted for a period of at least seven days, the applicant said in his February 2001 claim that the falls left him in “severe pain for many days” (T p108). However, in the form completed by the applicant in June 2001 (T19) the applicant answered questions about the onset and duration of pain, tenderness and altered mobility or range of movement in the neck and back (T pp 138 and 140). In relation to his neck the applicant said that the onset of pain occurred immediately, the onset of tenderness occurred within 24 hours, and the onset of altered mobility or range of movement was noticed within a few days. In relation to the back the initial pain occurred immediately and the tenderness and altered mobility or range of movement occurred within 24 hours. As to how long the initial pain, tenderness and altered mobility or range of movement continued after the injury, the applicant nominated “a couple of days” for both the neck and back conditions. He chose not to nominate other periods of duration that were offered, including “less than a week” and “a week or longer”.
28. In his oral evidence the applicant emphasised that visits to the sick bay only brought aspirin or linament and that the culture of the vessel was to work despite any pain or discomfort. In cross examination the applicant said his ship mates had helped out when he was injured for three or four watches and that he had been “OK” and “pretty right” after “a couple of days”. In re-examination the applicant said that the time to recover could have been “up to a week”. In answer to questions that I put to the applicant he said that he did nothing about the injuries suffered to his neck and back in the incident where the steam pipes blew in the engine room and that the pain and discomfort “…went pretty quickly”. In relation to the incident when the vessel turned quickly he said that there was no specific injury but that he was sore all over – but did not go to the sick bay. He could not recall any particular incident when he was unable to perform his normal duties. He could recall no particular injury, bruising or swelling, just general soreness.
29. In order to determine whether or not a hypothesis is reasonable, it is necessary for me to look at all the material before me, without finding facts or rejecting matters. the whole of the material before me points to the applicant suffering a number of falls whilst onboard HMAS Voyager that produced some symptoms of pain and discomfort at least. The material does not, however, point to the symptoms of pain, tenderness and altered mobility or range of movement continuing for the required period of at least seven day. Rather, the material points to the pain, tenderness and altered mobility or range of mobility after the injuries being tolerable and manageable and to the applicant being able to continue with his normal duties. I do not consider that the material points to the signs and symptoms continuing for a period of at least seven days and accordingly the material does not satisfy the requirements of factor 5(f) in the three SOPs that are applicable in this case.
30. Because factor 5(h) was the only one relied on by the applicant in relation to his claim for cervical spondylosis, it follows that the material does not fit the template to be found in SOP 50 of 2002 and hence the hypothesis that was raised connecting cervical spondylosis with the applicant’s operational service is not a reasonable one. The applicant’s claim in relation to cervical spondylosis must, therefore, fail.
31. In relation to the conditions of thoracic and lumbar spondylosis I must also consider whether the whole of the material before me fits the requirements of factor 5(j) in the two relevant SOPs. The oral evidence given by the applicant and Commodore Brecht, and the documentary material before me, point to it being normal practice for a seaman to be involved regularly in the lifting and carrying of items, including general provisions and ammunition, when vessels such as HMAS Voyager were reprovisioned and rearmed. Commodore Brecht confirmed the applicant’s evidence that items such as bags of vegetables, drums of lubricating oil and paint, machine tools, and items of ammunition, weighed in excess of 25kg per item and that in the course of participating in chain gangs to load the vessel the applicant would have carried for various distances hundred of such items at various times. Commodore Brecht also gave evidence that is consistent with the applicant’s evidence that he carried, as part of his normal duties in the engine room, drums of lubricating oil and other products and large tools on a regular basis around the engine room as required. Commodore Brecht said that it was difficult to estimate the total weights that may have been carried by a seaman such as the applicant but he thought it was possible that the applicant might have carried a drum of lubricating oil (weighing approximately 29kg) about once an hour, or four times in a four hour watch.
32. In exhibit A7, which is a statement by the applicant dated 15 June 2004, the applicant emphasised that it was difficult for him to recall with any certainty the amounts carried, but an attachment to the statement estimates the amount carried at approximately 70,000kg in the period of operational service, although the applicant asserted that he stood by his earlier oral evidence that he may have carried in excess of 100,000kg during that period.
33. The respondent contended that the decision of Emmett J in Kattenburg v Repatriation Commission [2002] FCA 412 is authority for the proposition that for a factor such as 5(j) it is necessary for a person such as the applicant to have lifted in total at least 120,000kg in the ten year period but that the person must have lifted and carried a substantial proportion of that total weight during periods of operational service. It is not necessary that the total weight be carried during the operational service. The respondent conceded that it was open to the Tribunal to find in the present case that the material satisfied the requirements of 5(j).
34. I am satisfied on all the material before me that the applicant would have carried on a very regular basis items weighing in excess of 25kg and that in a total period of service of six years and two months he would have carried such items to such an extent that the requirement of a total of 120,000kg was satisfied. I am satisfied that the material also points to the applicant carrying weights totalling approximately 70,000kg during the period of his operational service and that this would constitute a contribution in a material degree to the total weight. Accordingly, I am satisfied that the material before me fits the requirement of factor 5(j) in relation to SOPs 48 and 46 of 2002 and that the hypothesis raised connecting the applicant’s thoracic and lumbar spondylosis to his operational service is a reasonable one.
35. Having reached that conclusion I must them proceed to consider the fourth Deledio step, which is to consider under section 120 (1) of the Act whether I am satisfied beyond reasonable doubt that the applicant’s incapacity as a result of thoracic and lumbar spondylosis did not arise from a war caused disease. If I am not so satisfied beyond reasonable doubt then the applicant’s claim must succeed.
36. Mr Ponnuthurai, in his oral submissions in the case, properly acknowledged that the evidence before the Tribunal was such it was open to find that the applicant had lifted substantial weights and that there was no evidence that would demonstrate beyond reasonable doubt that the applicant did not lift a total of 120,000kg within a ten year period during his service. Likewise, there was evidence that demonstrated that the applicant would have carried a significant proportion of such total weight during his period of operational service and there is no evidence that would show beyond reasonable doubt that that was not the case.
37. I agree with that assessment of the evidence and find that I am not satisfied beyond reasonable doubt that the applicant’s thoracic and lumbar spondylosis did not arise from a war caused disease. Accordingly, the applicant’s claim for thoracic and lumbar spondylosis must succeed.
38. Accordingly, for the reasons set out above, my decision is that:
a)The decision under review to refuse the applicant’s claim for cervical spondylosis is affirmed:
b)The decision under review to refuse the applicant’s claim for thoracic and lumbar spondylosis is set aside and in substitution therefor I decide that the applicant is entitled to a disability pension for thoracic and lumbar spondylosis with effect from 27 November 2000, that being the date agreed by the parties as applicable.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Allen, Member
Signed: ............(sgd V Wong)....................................
AssociateDate/s of Hearing 28 May 2004 and 1 December 2004
Date of Decision 15 December 2004
Advocate for the Applicant Mr P Lofdahl
Solicitor for the Respondent Mr C Ponnuthurai
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