Page and Repatriation Commission
[2001] AATA 85
•8 February 2001
DECISION AND REASONS FOR DECISION [2001] AATA 85
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/1175
VETERANS' APPEALS DIVISI0N )
Re REGINALD WARD PAGE
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms G Ettinger Senior Member
Date8 February 2001
PlaceSydney (heard in Taree, NSW)
Decision The Administrative Appeals Tribunal ("the Tribunal") affirms the decision of the Respondent Repatriation Commission dated 22 December 1998 as affirmed by the Veterans' Review Board on 17 June 1999 to refuse the Applicant, Mr Reginald Ward Page's claim that his lumbar spondylosis was war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986. By agreement of the parties the Tribunal affirms the findings of the Repatriation Commission dated 22 December 1998 and the Veterans' Review Board of 17 June 1999 with regard to the other conditions previously claimed, namely benign prostatic hypertrophy, diverticulosis and peripheral vascular disease and the assessment of disability pension at 80% of the General Rate.
..............................................
Ms G Ettinger
Senior Member
CATCHWORDS
Veterans' Appeals - whether lumbar spondylosis war-caused - whether definition of trauma met - decision under review affirmed
LEGISLATION
Veterans' Entitlements Act 1986 ss 9, 120B and 120(4)
STATEMENTS OF PRINCIPLES
Statement of Principles Instrument No.53 of 1998 Concerning Lumbar Spondylosis
Statement of Principles Instrument No.28 of 1999 Concerning Lumbar Spondylosis
CASE LAW
Arnott v Repatriation Commission [2000] FCA 1336
Connors v Repatriation Commission [2000] FCA 783
Harris v Repatriation Commission (2000) 31 AAR 270
Repatriation Commission v Keeley (2000) 31 AAR 150
REASONS FOR DECISION
8 February 2001 Ms G Ettinger Senior Member
The decision under review by the Administrative Appeals Tribunal ("the Tribunal") was the decision of the Repatriation Commission dated 22 December 1998 (T2) as affirmed by the Veterans' Review Board decision of 17 June 1999 (T17) to reject the Applicant's claim that his lumbar spondylosis, benign prostatic hypertrophy, diverticulosis and peripheral vascular disease were war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986.
The Applicant, Mr Reginald Ward Page was represented by Mr C Colborne of Counsel, and the Respondent by its advocate, Ms M Doggett.
BACKGROUNDAs a preliminary matter, Mr Colborne on behalf of the Applicant, indicated that he was satisfied for the Tribunal to affirm the decision under review in so far as it concerned the claimed conditions of benign prostatic hypertrophy, diverticulosis and peripheral vascular disease. Mr Colborne advised that for the purposes of the instant proceedings, Mr Page was only pursuing his appeal with regard to his lumbar spondylosis.
The parties agreed that if the Applicant's claim were successful, that Mr Page's pension should be increased to 90% of the General Rate.
ISSUES BEFORE THE TRIBUNALThe issue for consideration by the Tribunal was:
· Whether the lumbar spondylosis suffered by the Applicant was war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986.
LEGISLATION
The relevant legislation in this matter was the Veterans' Entitlements Act 1986 ("the Act") in particular sections 9, 120B and 120(4). Section 9 of the Act provides as relevant:
"9 War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
…
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…"
I noted that as Mr Page had lodged his claim with the Respondent after 1 June 1994, I was required to apply section 120B of the Act and consider Mr Page's claim in light of any applicable Statements of Principles ("SoPs") as issued by the Repatriation Medical Authority.
"120B Reasonable satisfaction to be assessed in certain cases 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 eligible war service (other than operational service) rendered by a veteran;
(b)a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.
Note 1: Subsection 120 (4) is relevant to these claims.
Note 2: For hazardous service and member of the Forces see subsection 5Q (1A).
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B (3) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3) In applying subsection 120 (4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b)there is in force:
(i) a Statement of Principles determined under subsection 196B (3) or (12); or
(ii) a determination of the Commission under subsection 180A (3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
…"
Moreover, as Mr Page had served his country on eligible service from 24 April 1942 to 18 February 1946, the standard of proof applicable was that of the Tribunal's reasonable satisfaction pursuant to section 120(4) of the Act.
"120 Standard of proof
…
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
…"
I noted that the relevant SoP at the time of the Repatriation Commission decision of 22 December 1998, was Instrument No.53 of 1998 concerning Lumbar Spondylosis, however, by the time of the Veterans' Review Board decision on 17 June 1999, Instrument No.53 of 1998 had been revoked by Instrument No.28 of 1999 and the Applicant's claim was considered in light of the later SoP.
10. I was mindful that I am bound by the recent Federal Court decision in Repatriation Commission v Keeley (2000) 31 AAR 150, and required to take into account Mr Page's accrued rights.
11. In this respect, I noted that the Respondent, in its Statement of Facts and Contention, conceded that:"… the Statement of Principles that were in force at the date of the Repatriation Commission decision are the applicable Statement of Principles."
12. I was mindful that the applicable SoP is Instrument No.53 of 1998 concerning Lumbar Spondylosis. In that SoP, lumbar spondylosis is defined as:
"… degenerative changes affecting the lumbar vertebrae and/or intervertebral discs, causing local pain and stiffness and/or symptoms and signs of lumbar cord, cauda equina or lumbrosacral nerve root compression …"
13. The minimum factors required to relate the Applicant's lumbar spondylosis with his war service are outlined in Factor 5 of that SoP. In Mr Page's case, two of the sub-factors may have been relevant:
"(g)suffering a trauma to the lumbar spine within the 25 years immediately before the clinical onset of lumbar spondylosis; or"
(h)suffering a lumbar intervertebral disc prolapse before the clinical onset of lumbar spondylosis at the level of the intervertebral disc prolapse; or
…"
14. "Trauma to the lumbar spine" is defined in the SoP as:
"… a discrete injury to the lumbar spine that causes the development within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of that part of the spine. These acute symptoms and signs must last for a period of at least 10 days immediately after the injury occurs."
I compared the two abovementioned SoPs, and found the differences between them as they related to Mr Page to be so minimal as not to warrant further comment. I have applied SoP Instrument No.53 of 1998 in relation to Mr Page.
The parties agreed, and I accepted that were the Applicant's appeal successful, the earliest date of effect would be 29 July 1998.
EVIDENCE BEFORE THE TRIBUNAL
17. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T-documents"), and the following Exhibits:
ITEM DATE NAME
Statement of Reginald Ward Page 12 June 2000 Exhibit A1
Statement of Reginald Ward Page 12 September 2000 Exhibit A2
Medical Report of Dr M Baz 3 May 2000 Exhibit A3
Medical Report of Dr M Baz 25 August 2000 Exhibit A4
Clinical Notes of Bellevue Hill Hospital; (Two Pages) 31 August 1942 to 6 September 1942 Exhibit A5
T-Documents Exhibit R1
Additional Pages Inserted in T-Documents 20a-b, 22a–e, 26a-b and 49a Exhibit R2
Clinical Notes of Dr C Larkin (Pages 8-10, 16-17, 21, 26, 30 and 40-46) Exhibit R3
Medical Report of Dr M Burns together with Curriculum Vitae 5 April 2000 Exhibit R4
Medical Report of Dr M Hyde-Page 28 September 2000 Exhibit R5
18. Oral evidence was given by the Applicant, Mr Reginald Ward Page and his wife, Mrs Joyce Patricia Page. Dr Martha Baz, Occupational Physician, gave evidence by telephone.
EVIDENCE OF THE APPLICANT MR REGINALD WARD PAGE
19. Mr Page, whose date of birth was 15 September 1922 and whose statements dated 12 June 2000 and 12 September 2000 were before the Tribunal at Exhibit A1 and A2 respectively, gave oral evidence. He said that he enlisted in the Army on 2 April 1942 and worked first in NSW in signals, before being posted to North Head as an anti-aircraft gunner.
20. Mr Page gave evidence that he had to lift heavy weights and unload trucks with colleagues who were 10 –15 years older and much stronger than he was. He was unable to be precise about dates but said that on approximately 15 June 1942, a month after transferring to North Head, he felt pain across his back and stomach one morning. In cross-examination, Mr Page said that he had been a gunner for approximately two weeks before the episode of pain occurred. I was not concerned about Mr Page's credibility, but was mindful that he did not recall dates precisely, and that it was after all, many years ago that these incidents had occurred.
21. Mr Page continued by saying that on the relevant day after he awoke with strong pain, he was taken to the barracks by stretcher, and stayed in bed until the RAP came and examined him. He said that the next day he was up, but experiencing difficulties walking, and was sent to the 120th Hospital at Little Bay ("the Hospital"). Mr Page described the pain as sharp pain in his stomach and back, a similar pain he gets when he has cystitis, a condition from which he has suffered repeated episodes.
22. Mr Page described how he was given a travel voucher and how he travelled alone by ferry and tram to the Hospital at Little Bay, carrying a small bag with his gear which weighed approximately 20 pounds. Mr Page said that the pain in his back made it very difficult to get on and off the tram and he was required to back down the steps holding onto the railing. Mr Page also said that he had trouble walking as his back jarred with each step on the concrete.
23. Of his admission to the Hospital, I noted the Applicant's comments at Exhibit A2 that:
"While serving with the AA Battery at North Head 19.5.42. I was engaged in the lifting of heavy artillery shells, which after several weeks, resulted in back strain and a swollen right testicle. Upon being examined by the RAP Orderly, I was given a travel voucher that required me to make my own way over to … the 120th Special Army Hospital at Little Bay …"
I noted that at page 20a of the T-documents, (Exhibit R2), a document headed 'VENEREAL CASE CARD' recorded that on 7 July 1942 Mr Page had a swollen and enlarged right testicle, urethritis, slight tenderness of the right testicle, and "nil else". Mr Page said that he was admitted to the Hospital and treated there for two weeks. He recalled that he had been treated for urethritis and that he was told that his back problems were related. He said that he also discovered that it was a hospital treating servicemen with sexually transmitted diseases, but that there were other servicemen there with back problems.
25. Mr Page informed the Tribunal that during his two week stay at the hospital, he amused himself by "talking to the blokes there", reading or going for walks on the beach and the rocks. When questioned about his walks on the rocks, Mr Page said that his back was too sore for "jumping about" and that he had to be very careful about getting up and down from the rocks.
26. Mr Page said that after his two week sojourn at the Hospital, his back was in much the same condition as it was when he was admitted. He said that the swelling in his testicle went down approximately three weeks after leaving the Hospital, although he had trouble with it being sore for a few years following his discharge. Mr Page said that his back settled down approximately a month after leaving the Hospital.
27. Mr Page said that following his discharge, he was sent to Rose Bay as a gunner. He told me that he received some treatment whilst at Rose Bay, namely hot-packs he obtained from the RAP. Mr Page said further that his back improved slightly at Rose Bay as he was not required to do any heavy lifting as the anti-artillery guns were all set up. Later postings included Thursday Island and Cairns where Mr Page remained for a further six to eight months as an anti-aircraft gunner before being discharged in Sydney in 1946.
28. As to his continuing back problem, Mr Page told the Tribunal that he did not have "real severe problems with his back". When asked about what constituted "real severe", Mr Page replied with reference to the North Head problem. He said that he continued to suffer lesser problems with his back including aching down both sides of the back but more so in his lower back, which was more pronounced in cold weather or when he slept on the ground.
29. The Applicant told the Tribunal that following his army service, he worked as a tram conductor. He said that the overalls that he was required to wear let the wind and "any chills" in and make his back "painful lower down". Mr Page said that he would suffer this type of pain approximately once a month and that it would last one to two days. Mr Page said further that he did not seek treatment but rather massaged the painful area.
30. Mr Page also said that he worked in a timber mill for approximately six months felling trees. Although he was required to cut the trees using an axe and board as chainsaws were not available at that time, Mr Page said that the work was not particularly heavy as a bulldozer would move the felled trees.
31. Mr Page worked as a linesman for the then PMG for over 30 years until he retired from the PMG in 1983 due to pain and the difficulty he encountered doing the heavy work (Exhibit R4). He said that he had been responsible for digging holes using a shovel and crowbar as part of a five man gang. Mr Page told the Tribunal that he had trouble with his back particularly in winter or when he camped out during his employment as a linesman. He said that although it affected his ability to do his job, he just coped. Mr Page also said that his employer was aware of his back condition and that his work mates would help him out when he needed it as it "might be one of them tomorrow". However, he said that if it became really bad, he would take a sick day but that like in the army, he "couldn't take a five minute break all the time".
32. When shown the details of his sick leave in respect of his employment as a linesman at T7/33, Mr Page said although he "can't be sure", but that he did not think that he took any more time off. I noted that for the period 29 January 1953 to 31 October 1968, Mr Page was only absent from work due to a strained back on two occasions, from 7-8 November 1955 and from 7-21 October 1958.
33. Mr Page said that he first consulted Dr Balden in Taree in approximately 1962/3 in respect of back pain following a fall from a ladder. He said that at the time of the fall, he was in the bush and was forced to drive home. When he got home, his wife put on a bath for him and called the doctor. Mr Page said that he thought he had broken his legs as he was very sore all over. When the doctor inquired as to his back, he told him that it was very sore and had been like that for some time. Mr Page said that his back pain was treated with showers and hot packs.
EVIDENCE OF THE APPLICANT'S WIFE, MRS JOYCE PATRICIA PAGEMrs Page, gave oral evidence before the Tribunal. She said that she had met Mr Page then aged 30 in 1952, following his service. She said that they were married in November 1954.
35. Mrs Page said that her husband had had problems with his back ever since she had known him. When questioned about the nature of the problems, Mrs Page informed the Tribunal that her husband suffered from pain and stiffness and general "sore back complaints". She said that he did not seek treatment from any doctors but that he managed his pain through massage with turpentine liniment or Dencorub, which he required on a frequent basis.
36. Mrs Page said that her husband's back pain did not stop him from working and that he "just grinned and bore it", although sometimes he required additional assistance from his work mates. She said further, that sometimes his back problem was such that he could not dig in the garden.
MEDICAL EVIDENCE
EVIDENCE OF DR M BAZ OCCUPATIONAL PHYSICIAN
37. Dr Baz, whose medical reports dated 3 May 2000 and 25 August 2000 were before the Tribunal at Exhibits A3 and A5 respectively, gave evidence via telephone. She said that Mr Page had a long history of back pain, and in reference to the X-ray investigations, that this medium was not a very sensitive test for disc disease. Dr Baz also observed that Mr Page's changes in his spine were only at the L5/S1level rather than more widespread, which indicated, she opined, that the cause was more likely to have been trauma. She commented that degenerative and age related changes were more likely to be multi-level.
38. Dr Baz recorded the history of back pain as obtained from the Applicant as follows:"He explained that he was lifting heavy anti-aircraft shells in ammunition dumps in the initial weeks of his service, prior to sailing to Thursday Island. After performing this duty for about 2 weeks he had a mild ache in the back, but then woke at 2am was (sic) sudden, severe back pain, as well as swelling of the right testis. He states that he was taken to the RAP and then to Little Bay, as a STD was suspected. This was not proven to be the case and he was discharged. He returned to full duty after 2 weeks. He continued with the same heavy lifting and other heavy chores associated with operation of anti-aircraft guns. He describes continuing back pain while undertaking his Army duties which tended to be worse at night. He describes localised back pain, and some minor discomfort in the knees, but no radiation of pain. He did not take time off, noting that there was 'no such thing'. He did not mention his back pain at his discharge medical because 'all I wanted to do was get out'."
39. While Dr Baz (Exhibit A3), recorded a history from the Applicant of sudden onset of back pain in 1942, she noted that there was no documentation of back pain in Mr Page's service medical records. She also remarked that there was also no record of any other medical treatment during his service even though he had undergone a tonsillectomy during that time.
40. In so far as a SoP could be applied, Dr Baz, in her report at Exhibit A3, examined Mr Page's condition in light of Instrument No.28 of 1999 concerning Lumbar Spondylosis. While I have held that Instrument No.28 of 1999 was not the correct SoP to be applied, there is in fact very little difference between the relevant parts of the Instrument No.28 of 1999 and the SoP Instrument No.53 of 1998 applicable to Mr Page's case. I therefore considered Dr Baz's comments relevant to the inquiry as to whether Mr Page's lumbar spondylosis was war-caused.
41. Dr Baz opined that:
"In my opinion either Factors 5G or 5H can apply in Mr Page's case. The history he gives of acute onset of back pain with right groin pain is consistent with a discreet (sic) injury to the lumbar spine. He reports a 2 week period off work, and thus apparently has symptoms and signs of at least 10 days. He associates this history of back pain with enlargement of the right testis. There is no surgical information indicating any abnormality in the right testis. No diagnosis of a right testicular problem has apparently been made. Radiation of lumbar pain to the groin is a well recognised phenomenon. While the possibility of an acute right testicular problem occurring at that time is acknowledged, on the basis of the medical information available at this time there is no scrotal or testicular localised problem identified. Review of the surgical opinion apparently obtained by the Department in 1968 may contradict this conclusion. However on the basis of what is available at this time, I consider it reasonable to conclude that Mr Page sustained a severe strain of the lumbar region while undertaking heavy lifting in his normal duties as an anti-artillery gun operator. He developed low back pain radiating into the right groin and being at least the substantial reason of the 2 week period he required off duty in 1942.
This history could be consistent with a lumbar intervertebral disc prolapse, and is also consistent with a trauma to the lumbar spine."
42. In examining all of the material before her, Dr Baz opined that Mr Page's claim for lumbar spondylosis should be allowed "… on the basis of the available clinical information, and attributed to Factors 5G and/or 5H".
43. When asked in oral evidence regarding the date of onset of lumbar spondylosis, Dr Baz referred to T7/33 noting that a strained back was noted in 1955 and 1958. She added that the back condition had been clinically apparent by 1955.
EVIDENCE OF DR M BURNS OCCUPATIONAL PHYSICIAN
44. Dr Burns, whose medical report was before the Tribunal at Exhibit R4, examined the Applicant on 5 April 2000. Dr Burns recorded the following history from the Applicant with regard to his lumbar spondylosis, which I noted differed somewhat from the evidence given by Mr Page at the Hearing:
"Mr Page reported that he first had back pain in about 1943 when he was loading ammunition in the Army. At the time he was posted in the Torres Strait. He stated that he received no treatment and continued to do his normal duties.
After the Second World War his back was again painful in either 1946 or 1947. He remembers that he was working on the trams at that time. He continued to have intermittent back problems up until he first made a claim for his back in 1968. I note from the documents that a diagnosis of lumbar spondylosis was made at that time. He reports that he does not remember having injured his back in a single incident in the Army or having injured his back after his Military Service."
45. As to his current complaints, Dr Burns reported that Mr Page's condition had deteriorated over the last ten to fifteen years, namely that:
"… he has developed significant back problems and currently goes to physiotherapy intermittently and uses a TENS machine. He also uses a heat pack at home. He reports that his back pain stops practically all of his activities. He has pain which is present most of the time and only eases off a little at night."
46. In his examination, Dr Burns noted that the Applicant suffered approximately 50 per cent loss of range of movement, however, he did not consider whether Mr Page met the template for the relevant SoP concerning lumbar spondylosis.
47. Notwithstanding, I noted Dr Burns comments, that despite the Applicant's claims that his back problem arose lifting and moving heavy artillery shells:
"With respect to employment, I note that Mr Page was doing extremely heavy work as a linesman up until he retired in 1983. At that time he retired due to the difficulty of his job but also as he was capable of applying for and receiving the service pension on grounds of age."
EVIDENCE OF DR M HYDE PAGE ORTHOPAEDIC SURGEON
48. Dr Hyde Page, whose medical report was before the Tribunal at Exhibit R5, examined the Applicant on 28 September 2000. Dr Hyde Page took a quite detailed history from the Applicant including details of his employment after leaving the service. I noted that the evidence recorded differed from the evidence given by the Applicant at the Hearing:
"In the Army he continued doing manual work and states that he first started developing low back pain while working at loading ammunition in Sydney in his first year of Army Service. At that time he spent 2 weeks at Prince Henry Hospital, but he is really not sure why he had to spend time in hospital and it may not have been due to his back.
He does state however, that throughout his Army service, up until 1946, he worked with an ongoing low back problem, although he was able to continue with his service, and had no particular time off work while in the Army because of his back.
After leaving the Army he worked as a Train Conductor for 3 years and then worked in a Timber Mill for 2 years, stacking heavy timber and felling trees. He states that he had to do heavy manual work due to the fact that he had to pay maintenance for his 2 young children and he had separated from his wife.
In 1952 he joined the PMG and continued working for them and later, Telstra, for 30 years, till he retired at the age of 60 years. Throughout that time he did heavy manual work, initially as a Linesman, and in later years, he worked on a backhoe and then became a Supervisor in his final few years. In all he did 30 or 40 years of continual reasonably heavy manual work after leaving the Army and states that throughout that time he had no particular time off work because of his back, but that he was always aware of his niggling low back pain."
49. In his physical examination, Dr Hyde Page noted that the Applicant had good spinal movement and that he moved freely, concluding that it "… suggests some minor mechanical discomfort in his lower lumbar spine."
50. Dr Hyde Page opined that it was very likely that the Applicant's employment history following his war service, which was characterised by 30 to 40 years of very heavy manual work, contributed significantly to his current problems particularly in light of the pathology.
51. In this respect, he noted that in both the X-ray reports available to him, namely 25 January 1983 and December 1991, the findings suggested "only very slight disc space narrowing overall and this is not really suggestive of a major abnormality that has occurred many years earlier."
52. Dr Hyde Page concluded that while the Applicant did suffer from a chronic lumbar back condition:
"… there is not enough evidence to suggest that this is due to significant back injury suffered during his army service in the early 1940's …
The onset of this lumbar spondylosis is likely to be due to his heavy manual work after the war as much as involving any war time activity."
RADIOLOGICAL INVESTIGATIONS
I considered a number of the X-ray reports before the Tribunal as follows:
Dr A Smythe, in an X-ray report regarding the lumbo-sacral spine dated 25 January 1983, (T12), noted with regard to Mr Page's lumbo-sacral spine that the "… appearances indicate chronic disc degenerative changes at L5-S1". He concluded with regard to the right hip that "[n]o abnormality detected at this examination".
Radiological examinations conducted on 20 October 1998, indicated as follows in respect of the Applicant lumbro-sacral spine:
"The lumbar curvature is straightening due to muscular spasm. There is moderate spondylitic marginal lipping throughout the lumbar spine and lower dorsal spine, to a lesser extent. There is also slight osteoarthritis of the facet joint at L4/5 and L5/Si. The disc space at L5/SI appears narrowed and there is sclerosis of the end plates consistent with disc degeneration. Associated disc prolapse might not be excluded on this examination. There is no structural bony abnormality. [Exhibit R3/17]
SUBMISSIONS AND CONCLUSIONS
54. In coming to the correct and preferable decision, I had to take into account the evidence both written and oral, the case law, legislation and relevant SoP to decide whether Mr Page's lumbar spondylosis was war-caused pursuant to section 9 of the Act. I was mindful that I had to apply section 120B of the Act, and the relevant SoP Instrument No.53 of 1998.
55. As a preliminary matter, I noted that, in examining the medical evidence before the Tribunal, it was not disputed that the Applicant's suffers lumbar spondylosis and ongoing problems with his back. In this respect, Mr Colborne submitted that the Applicant has a history of back pain, which was also documented in the reports of Dr Baz and Dr Hyde Page. It was, however, difficult to obtain a consistent history of injury to his back from Mr Page as the effluxion of time appeared to have blurred his memory with regard to times and events. I did not think he was untruthful, but it had all happened a long time ago. I am also mindful that there is provision pursuant to section 119 of the Act to take the situation of paucity of evidence, both written and oral into account.
56. I noted that Dr Baz, in her report at Exhibit A3, opined that on the basis of the history obtained from the Applicant that "… entitlement should be allowed for lumbar spondylosis".
57. I further noted that Dr Hyde Page opined that the Applicant "… has developed a chronic lumbar back condition". He did however, opine that:
"… there is not enough evidence to suggest that this is due to significant back injury suffered during his army service in the early 1940's …
The onset of this lumbar spondylosis is likely to be due to his heavy manual work after the war as much as involving any war time activity."
58. Dr Larkin, when completing the medical section of the Applicant's claim for a pension, made a final medical diagnosis that the Applicant suffered from "osteoarthritis and disc degeneration", which was evidenced in an X-ray in October 1992.
59. The X-ray report dated 20 October 1998, noted that:
"There is moderate spondylitic marginal lipping throughout the lumbar spine and lower dorsal spine, to a lesser extent. There is also slight osteoarthritis of the facet joint at L4/5 and L5/S1. The disc space at L5/SI appears narrowed and there is sclerosis of the end plates consistent with disc degenerative. Associated disc prolapse might not be excluded on this examination".
60. I also noted that Dr Burns recorded that the Applicant's lumbar spondylosis restricted his back movement by 50 per cent. Therefore, in light of the available medical evidence before me, the majority of which is detailed above, I was satisfied that the Applicant suffers from lumbar spondylosis. I had, however, to make a finding regarding whether it was war-caused applying the relevant SoP and pursuant to section 9 of the Act.
61. I then turned to examine whether the Applicant's lumbar spondylosis met the template of the relevant SoP, noting that the relevant SoP at the time of the Repatriation Commission decision of 22 December 1998, was Instrument No.53 of 1998 concerning Lumbar Spondylosis. By the time of the Veterans' Review Board decision on 17 June 1999, Instrument No.53 of 1998 had been revoked by Instrument No.28 of 1999 and the Applicant's claim was considered in light of the later SoP.
62. Notwithstanding, I noted the Respondent's concession that:
"… the Statement of Principles that were in force at the date of the Repatriation Commission decision are the applicable Statement of Principles."
63. I agreed that the applicable SoP was Instrument No.53 of 1998 concerning Lumbar Spondylosis. In that SoP, lumbar spondylosis is defined as:
"… degenerative changes affecting the lumbar vertebrae and/or intervertebral discs, causing local pain and stiffness and/or symptoms and signs of lumbar cord, cauda equina or lumbrosacral nerve root compression …"
It was not in dispute and I accepted that Mr Page suffers from lumbar spondylosis, and has done so at least since it was diagnosed in the 1960's or even earlier according to Dr Baz, who noted that Mr Page's back condition was clinically apparent in 1955. The minimum factors required to relate the Applicant's lumbar spondylosis with his war service are outlined in Factor 5 of the SoP. In Mr Page's case, two of the sub-factors may have been relevant:
"(g)suffering a trauma to the lumbar spine within the 25 years immediately before the clinical onset of lumbar spondylosis; or
(h)suffering a lumbar intervertebral disc prolapse before the clinical onset of lumbar spondylosis at the level of the intervertebral disc prolapse; or …"
65. I was mindful that in order to meet the requirements of Factor 5(g) of the SoP concerning lumbar spondylosis, there had first to be a trauma to the lumbar spine. The definition of trauma to the spine in SoP No.53 of 1998 was as follows:
"… a discrete injury to the lumbar spine that causes the development within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of that part of the spine. These acute symptoms and signs must last for a period of at least 10 days immediately after the injury occurs."
66. Mr Colborne submitted that the Applicant suffered an injury to his back during his war-service as a result of lifting and carrying heavy anti-artillery shells in 1942, which was consistent with the template required by the SoP. He submitted that the pain was so severe that the Applicant had difficulty getting in and out of a tram on his way to the Hospital, and was required to back down its steps slowly whilst holding onto the hand rail.
Ms Doggett submitted that the Applicant did not satisfy the definition of "trauma" in the SoP in respect of his lumbar spondylosis, which required the Applicant to have sustained a "significant injury". She drew the attention of the Tribunal to the decision of Finn J in Harris v Repatriation Commission (2000) 31 AAR 270 where Finn J noted, in respect of an application involving lumbar spondylosis, that:
"30 In the present case the minimum factors the SoP identified that could relate lumbar spondylosis to operational service were the suffering of a trauma to the lumbar spine before the clinical onset of lumbar spondylosis which trauma was itself related to the service rendered by the person.
31 Insofar as the trauma component of those factors is concerned this requires (inter alia) that the injury in question caused the development of "acute symptoms and signs" of (i) pain, (ii) tenderness and (iii) altered mobility or range of movement. Though the preposition "of" only precedes the word "pain" in the SoP's definition I am satisfied that the definition is to be read as if "of" preceded the words "tenderness" and "altered" as well. The applicant has submitted to the contrary, contending that the definition is to be read as if it referred to "acute symptoms and signs of pain and/or tenderness, and [meaning "together with"] altered mobility" etc. When one has regard to both the balance of the sentence in which the definition appears (and particularly to the words "and where such acute symptoms and signs last for a period of at least one week") and to what, ordinary, would be the work done by the preposition "of" in a sentence constructed in the manner of the definition, the definition must be construed as I have proposed …
32. The requirement, then, that there be "signs and symptoms" of each of the three stipulated matters necessitates that there be an indication of or, phenomenon evidencing, each: see eg definition II of "sign" and that of "symptom" in the Shorter Oxford English Dictionary ("SOED"). Moreover, given the requirement that the signs and symptoms must be "acute" – ie that they be sharp or act "keenly on the senses": SOED, "acute"; there would need to be significant manifestations, variously, of pain, of tenderness and of altered mobility etc. As the respondent contends, the definition contemplates a significant injury."
68. Ms Doggett submitted that the only evidence of an injury before the Tribunal was that the Applicant awoke with pain in his back, across his stomach and in his right testicle which was swollen, which he attributed to lifting heavy ammunition the night before. Ms Doggett said that the pain in his back was not so severe as to prevent Mr Page from making his way from North Head to the Hospital at Little Bay, carrying a pack that weighed approximately 20 pounds, notwithstanding some difficulties in getting on and off the tram. Such a trip was not indicative of a severe trauma as required by the SoP she submitted.
69. Furthermore, Ms Doggett argued, there was no record that Mr Page attended the Hospital in respect of his sore back, but rather for suspected STD which was unproven. Moreover, whilst a patient of the hospital, Mr Page was able to sit and read and walk down on the beach and the rocks, which was also not consistent with the type of injury described in the SoP.
70. Ms Doggett also directed the Tribunal to the decisions in Connors v Repatriation Commission [2000] FCA 783, where Kenny J held that:
"In any event, irrespective of s 120A(3), there is nothing in Byrnes, Bushell, or Bey that would lead me to accept the proposition that a hypothesis need not be supported by evidence pointing to each individual element of it in order to be reasonable for the purposes of s 120(3)."
71. Mr Colborne submitted that the meaning of "acute" was considered in the case of Arnott v Repatriation Commission [2000] FCA 1336. He drew my attention to paragraphs 14/15 where I noted that Sundberg J stated at paragraph 15 that:
"In my view the word "acute" in the definition contemplates symptoms etc that are severe or significant. The temporal factor is already dealt with by words "injury" …. That causes the development, within 24 hours of the injury being sustained …". Since a precise temporal element has been stipulated, it would be strange if "acute" were to mean "of sudden onset". The Tribunal thought "acute" meant sudden and severe. It decided the issue against the applicant on the ground that the ankle and wire incidents did not give rise to severe symptoms rather than because the symptoms were not of sudden onset … The conclusion that this pain did not amount to "acute" symptoms is clearly a reference to the nature rather than the temporality of the symptoms. These conclusions were plainly open on the evidence, and indeed pointed to by it."
72. Mr Colborne argued that there was sufficient evidence before the Tribunal indicating the Applicant had suffered a severe or significant injury. He said that when the Applicant awoke with back pain, he was unable to get out of bed and was carried by stretcher to the RAP, where he remained bedridden for another day. It was not until the next day after the incident that he was able to get out of bed and get dressed to make his way to the Hospital.
73. In considering whether the Applicant met the template of Factor 5(g) of the Instrument No.53 of 1998, I noted that there was no record at all of the Applicant sustaining an injury to his back or of obtaining treatment in respect of that injury.
74. Notwithstanding, I was mindful that section 119 of the Act enables the Repatriation Commission, and, therefore, this Tribunal, to take into account the unavailability of medical records when ascertaining the existence of facts. Specifically, section 119 provides that:
"119 Commission not bound by technicalities
(1)In considering, hearing or determination, and in making a decision in relation to:
(a)a claim or application …
the Commission …
(h)without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause, or circumstance, including any reason attributable to:
(i) the effects if the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii)the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities."
75. In this respect, I noted that there were no medical records regarding the injuries as detailed in Mr Page's statement dated 12 June 2000. Of the lack of medical documentation, he said:
"During my war service I suffered many sprains and strains and a lot of soreness in my back.
Like many, I had a job to do, and didn't complain about every sprain or strain.
There were times when I did report back pain, but didn't receive any treatment, other than, maybe a couple of aspirin here and there.
I noticed that there is nothing written in my service documents about my back. I suffered with back problems throughout my service years. These problems being brought about, I believe by the lifting of heavy ammunition and the setting up of large guns."
76. I further noted the comments of Dr Baz who recorded that the Applicant had said to her during his examination:
"He did not mention his back pain at his discharge medical because 'all I wanted to do was get out'".
77. While I accepted the evidence of the Applicant that he had some degree of back pain, of which he advised the RAP in 1942, I did not accept on the balance of probabilities that the Applicant was sent to the Hospital for treatment of his back pain. I am mindful that the Hospital was primarily used to treat servicemen with STD, and while I noted that the investigations revealed that Mr Page did not suffer from an STD, I was reasonably satisfied that he was sent to the Hospital because of his sore and enlarged testis. I noted that neither Doctors Burns nor Hyde Page were able to record a discrete incident of injury.
78. I was mindful also from the evidence that Mr Page was not bedridden during his time at the Hospital, neither that he suffered acute symptoms and signs of pain, tenderness and altered mobility or range of movement of the spine lasting for a period of at least ten days. I accepted the unrebutted evidence that Mr Page suffered back pain on a day not long after his posting to North Head, noting that he was able to travel unaccompanied on public transport the following day. Any acute symptoms and signs of pain, tenderness and altered mobility or range of movement could not have been of sufficient import to stop him from travelling to or attending at the Hospital. Mr Page's evidence was that he was up and about at the Hospital where he stayed for approximately two weeks, reading and going for walks on the beach and rocks. The Hospital records at T20a and T20b, did not indicate any back pain which would more likely than not would have been recorded if reported by the Veteran.
79. Notwithstanding the paucity of medical documentation, I considered whether Mr Page satisfied the template of the SoP namely whether he suffered a "… trauma to the lumbar spine within 25 years immediately before the clinical onset of lumbar spondylosis".
80. The evidence before the Tribunal was that Mr Page awoke at 2:00 am some weeks after his transfer to North Head, suffering from pain in his back, stomach and right testis, which was swollen. As to the origins of the back pain, I noted the comments of Dr Baz in respect of the history taken from Mr Page:
"He explained that he was lifting heavy anti-aircraft shells in ammunition dumps in the initial weeks of his service, prior to sailing to Thursday Island. After performing this duty for about 2 weeks he had a mild ache in the back, but then woke at 2am was (sic) sudden, severe back pain, as well as swelling of the right testis."
81. Mr Page reported that he was unable to move and was not able to get out of bed. He said further that he was transported to the RAP by stretcher and remained in bed for that day. After examination by the RAP orderly, he was given a travel pass to attend the Hospital which was, apparently unbeknownst to Mr Page, a hospital treating servicemen with venereal disease. From the medical notes of the incident at T20a and T20b, I was reasonably satisfied that Mr Page was sent to the hospital for treatment of his enlarged right testis, which was suspected as being STD related, though investigations proved otherwise. The contemporaneous records indicated tenderness and enlarged testis but "nil else". I was satisfied on the balance of probabilities that if back pain had been an issue, appropriate notation would have occurred, and follow-up would have been done. Mr Page's evidence was that he was not treated for his back.
82. Mr Page was able to travel by ferry and tram from North Head to the Hospital at Little Bay carrying a pack weighing approximately 20 pounds, though he said that he found walking on the concrete difficult as well as getting on and off the tram, necessitating him to back down the steps whilst holding onto the hand rail.
83. While at the Hospital, Mr Page was able to sleep on the bed with some discomfort and I noted that he could feel the wire through the mattress. He was also able to chat with the other servicemen, read and walk on the beach and the rocks, which when questioned, he said that his back was too sore for "jumping about" and he had to be careful about getting up and down from the rocks. Mr Page also said that he did not receive any treatment for his back during his two week stay at the Hospital (T20a & T20b of Exhibit R2).
84. Mr Page said that he returned to full duties following his discharge from the Hospital and managed his back pain, which had improved slightly, with hot packs. In this respect, I was mindful that following the Applicant's discharge from the Hospital, Dr Baz noted that Mr Page:
"He continued with the same heavy lifting and other heavy chores associated with operation of anti-aircraft guns … He did not take time off, noting that there was 'no such thing'."
85. In so far as a SoP could be applied, I noted that Dr Baz referred to Instrument No.28 of 1999 concerning Lumbar Spondylosis. While I have found that Instrument No.28 of 1999 was not the correct SoP to be applied, there is very little difference between the relevant parts of the Instrument No.28 of 1999 and the correct SoP Instrument No.53 of 1998. Therefore, I was able to make use of Dr Baz's observations which were relevant to the issue before me.
86. In this respect, I noted that Dr Baz maintained that Mr Page would satisfy the requirements of lumbar spondylosis in factor 5(g) as:
"The history he gives of acute onset of back pain with right groin pain is consistent with a discreet (sic) injury to the lumbar spine. He reports a 2 week period off work, and thus apparently had symptoms and signs of at least 10 days. He associates this history of back pain with enlargement of the right testis. There is no surgical information indicating any abnormality in the right testis. No diagnosis of a right testicular problem has apparently been made. Radiation of lumbar pain to the groin is a well recognised phenomenon. While the possibility of an acute right testicular problem occurring at that time is acknowledged, on the basis of the medical information available at this time there is no scrotal or testicular localised problem identified. Review of the surgical opinion apparently obtained by the Department in 1968 may contradict this conclusion. However on the basis of what is available at this time, I consider it reasonable to conclude that Mr Page sustained a severe strain of the lumbar region while undertaking heavy lifting in his normal duties as an anti-artillery gun operator. He developed low back pain radiating to the right groin and being at least the substantial reason of the 2 week period he required off duty in 1942.
The history … is also consistent with a trauma to the lumbar spine."
87. While Dr Burns noted that the Applicant's condition had deteriorated over the last ten to fifteen years, he did not consider whether the Mr Page met the template for the relevant SoP concerning lumbar spondylosis.
88. I am nevertheless mindful that Dr Burns did not believe that Mr Page's back problem arose solely from lifting and moving heavy artillery shells:
"With respect to employment, I note that Mr Page was doing extremely heavy work as a linesman up until he retired in 1983. At that time he retired due to the difficulty of his job but also as he was capable of applying for and receiving the service pension on grounds of age."
89. Likewise, Dr Hyde Page was of the opinion that it was very likely that Applicant's employment history, which was characterised by 30 to 40 years of very heavy manual work following his war service, contributed significantly to his current problems particularly in light of the pathology.
90. In this respect, I noted Dr Hyde Page's comments about the radiological evidence which suggested "… only very slight disc space narrowing overall and this is not really suggestive of a major abnormality that has occurred many years earlier."
91. I was also mindful of Dr Hyde Page's concluding comments that while the Applicant did suffer from a chronic lumbar back condition:
"… there is not enough evidence to suggest that this is due to significant back injury suffered during his army service in the early 1940's …
The onset of this lumbar spondylosis is likely to be due to his heavy manual work after the war as much as involving any war time activity".
92. To come within the requirements of Factor 5(g) of Instrument No.53 of 1998, Mr Page had to have suffered a "trauma" to the lumbar spine within the 25 years prior to the onset of lumbar spondylosis. Whilst I acknowledged that Mr Page has lumbar spondylosis, and that it was at least clinically apparent by 1955 (Dr Baz Exhibit A3), well within the 25 year period prescribed by the SoP, I was not satisfied to the requisite degree, namely, to my reasonable satisfaction, that Mr Page sustained a "trauma" to the lumbar spine during his service.
93. Relying on Harris (supra) I was mindful that in order to meet the definition of trauma to the lumbar spine in the SoP for lumbar spondylosis, the Applicant must within 24 hours of the injury being sustained, have shown acute symptoms and signs of pain and tenderness, and altered mobility or range of movement of the lumbar spine lasting for at least ten days.
94. For the reasons outlined above, I was not satisfied that Mr Page's actions were consistent with the template of the SoP.While I accepted Mr Page as a witness of truth (despite some inconsistencies in his evidence, perhaps due to the effluxion of time and his various medical conditions), I was also not satisfied that the lifting of heavy artillery shells in 1942 constituted a "trauma" as required by the SoP. There was no record of back pain in the discharge documents when Mr Page left the service. I noted his evidence that he did not mention his back on discharge, the reason given being that he was anxious to leave. I noted also that following his army service Mr Page worked in areas requiring heavy physical labour for 30 to 40 years. He felled trees and worked as a PMG linesman. Thus on the balance of probabilities, I was satisfied from the Applicant's evidence and that of the doctors that his employment post service, rather than his service, was the cause of his lumbar spondylosis.
95. I then turned to consider whether the Applicant satisfied Factor 5(h) of Instrument No.53 of 1998. I was mindful that the applicability of the factor was considered by Dr Baz only and was not raised in evidence, nor by either party in their closing submissions. Notwithstanding, for the sake of completeness, I have considered whether the Applicant suffered a "… lumbar intervertebral disc prolapse before the clinical onset of lumbar spondylosis at the level of the intervertebral disc prolapse".
96. Dr Baz in her report at Exhibit A3, stated that it was reasonable to conclude from the history given by the Applicant that he:
"… sustained a severe strain of the lumbar region whilst undertaking heavy lifting in his normal duties as an anti-artillery gun operator.
…
This history could be consistent with a lumbar intervertebral disc prolapse …"
97. Dr Baz did not offer any further explanation regarding the Applicant sustaining a lumbar disc prolapse and I was hesitant to accept such a finding without further evidence and/or investigation, particularly though not conclusively, where no such conclusion has been made by any other of the specialists who assessed the Applicant.
98. Although I considered the evidence given by Mr Page regarding what he believed to the origins of his back condition and the medical evidence of Dr Baz, I was not satisfied to the requisite standard that Mr Page suffered an intervertebral disc prolapse before the clinical onset of lumbar spondylosis at the level of the intervertebral disc prolapse. There was no record detailing such an injury to the back during Mr Page's service and I noted that the Applicant did not visit a doctor concerning his back until many years after he was discharged.
99. Therefore, while I am satisfied that Mr Page has had problems with his back, and suffers lumbar spondylosis, I was not convinced to the requisite standard, namely to my reasonable satisfaction, that his back problems met Factors 5(g) or (h) of Instrument No.53 of 1998. Accordingly, I was unable to find that Mr Page's lumbar spondylosis was war-caused pursuant to section 9 of the Act.
DECISION
The Administrative Appeals Tribunal affirms the decision of the Respondent Repatriation Commission dated 22 December 1998 as affirmed by the Veterans' Review Board on 17 June 1999 to refuse the Applicant, Mr Reginald Ward Page's claim that his lumbar spondylosis was war caused pursuant to section 9 of the Veterans' Entitlements Act 1986.
By agreement of the parties, the Tribunal affirms the findings of the Repatriation Commission dated 22 December 1998 and the Veterans' Review Board of 17 June 1999 with regard to the other conditions previously claimed, namely benign prostatic hypertrophy, diverticulosis and peripheral vascular disease and the assessment of disability pension at 80% of the General Rate.
I certify that the 101 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger Senior Member
Signed: .....................................................................................
AssociateDate/s of Hearing 22 November 2000
Date of Decision 8 February 2001
Counsel for the Applicant Mr C Colborne
Solicitor for the Applicant Ms G Peres da Costa
Counsel for the Respondent N/A
Solicitor for the Respondent Ms M Doggett
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