Paul and Repatriation Commission
[2005] AATA 933
•27 September 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 933
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/322
VETERANS' APPEALS DIVISION )
Re CHARLES HERMAN PAUL Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member P McDermott Date27 September 2005
PlaceBrisbane
Decision The Tribunal sets aside the decision of the Repatriation Commission dated 28 May 2002, as affirmed by the Veterans’ Review Board on 11 February 2004 and substitutes the following decision:
(a) affirms the decision of the Repatriation Commission in relation to Mr Paul’s conditions of localised osteoarthrosis affecting both hips and his knees;
(b) decides that Mr Paul’s lumbar spondylosis is a war-caused disease within the meaning of s 9 of the Veterans’ Entitlements Act 1986 and that he is entitled to receive a pension for the incapacity associated with this condition with effect from 22 January 2002; and
(c) remits the matter of assessment of the rate of pension payable to Mr Paul to the Repatriation Commission...................[Sgd]............................
P McDermott
Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – non-operational service – claim that lumbar spondylosis and osteoarthrosis were war-caused – consideration of Statement of Principles – motor vehicle accident – decision under review partially set aside.
Veterans’ Entitlements Act 1986 ss 6A, 9, 120(4), 120B and 196A, 196B
Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Gorton (2001) 65 ALD 609
Lees v Repatriation Commission (2002) 125 FCR 331
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius[2002] FCA 750REASONS FOR DECISION
27 September 2005 Senior Member P McDermott 1. Mr Charles Paul served with the Australian Army during World War II. Before he was discharged in 1946 he was injured in a motor vehicle accident whilst on duty. I have to decide whether his conditions of lumbar spondylosis and osteoarthrosis affecting both hips and his knees can be attributed to that accident.
2. Mr Paul lodged a claim for a pension in respect of spondylosis and osteoarthritis on 22 April 2002.
3. The Repatriation Commission (“Commission”) determined diagnoses of lumbar spondylosis, localised osteoarthrosis affecting both hips and localised osteoarthrosis affecting his knees but rejected his claim for these conditions on 28 May 2002.
4. Mr Paul sought a review of this decision of the Commission from the Veterans’ Review Board (“VRB”). On 11 February 2004 the VRB confirmed the rejection of his claim. He has now applied to this Tribunal to review the decision of the Commission, as affirmed by the VRB.
Issues Before The Tribunal
5. I have to decide whether the conditions of Mr Paul are war-caused for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (the “Act”).
6. The Commission have contended that Mr Paul’s back has been diagnosed with diffuse idiopathic skeletal hyperostosis (“DISH”) (Exhibits R1).
7. If Mr Paul is successful in his claim, the date of effect would be 22 January 2002.
Background
8. Mr Paul was born on 18 April 1927. He joined the Australian Army on 20 April 1945. Because of the course that the war took he did not serve outside Australia. He served with the Army until 11 December 1946. His service is for the purposes of the Act regarded as non-operational service.
Evidence Before the Tribunal
§ Evidence of the Applicant
9. The applicant gave evidence that he was an assistant projectionist in civilian life. When he joined the Army he served in the 1st Australian Cinema where he performed similar film projectionist duties. Mr Paul explained that at this time film projectors were operated by two men.
10. The applicant gave evidence that on 15 March 1946 in Sydney he was involved in a motor vehicle accident. His was a passenger in a army truck that was being used to transport a film projector to an Army camp.
11. The applicant gave evidence that the on the day in question the Army truck was hit by a tram. The truck was pushed down the street for some distance before the truck overturned. The event was the subject of an article which appeared in the Daily Mirror on March 15 1946.
12. The truck was described in the newspaper article as a five ton Army truck but the applicant gave evidence that the truck was a 3 ton Canadian Cadillac truck. That the truck was a 3 ton Cadillac truck was confirmed by an official at the Australian War Memorial. The article also contains the remarks that the truck was pushed for more than 100 yards by the tram.
13. This accident occurred nearly 60 years ago when Mr Paul was a lad of 18 years. I accept him as a person who was an honest witness who endeavoured to recollect the details of the accident. In assessing his evidence I am required to have regard to the passage of time: see s 119(h).
14. Mr Paul gave evidence that that there was a sudden impact of the tram hitting the side of the truck. He explained that as the truck rolled over and hit the ground, “the left side of my body was thrown hard against the inside of the left side of cab and passenger side window which shattered”. Mr Paul also stated that the driver of the vehicle fell on him.
15. Mr Paul stated that he “received deep cuts and abrasions to my left shoulder and arm, left side of torso and left leg as a result”.
16. After the accident he was taken to St Vincent’s Hospital by ambulance. The hospital issued him with crutches. He declined to be an inpatient at the hospital and was driven home by his father. Mr Paul was then a “lad of 18” and as a young man he had a fear of hospitals. (T-Docs Folio 36)
17. Mr Paul gave unchallenged evidence that he was stiff and sore after the accident particularly in the lower back region and in the hips and knee. This caused him a great deal of pain.
18. Mr Paul stated that after the accident he was treated by Dr Stephen Abromovitch, who practised at King Georges Road, Wiley Park, Sydney. After the accident he saw the army medical officer who regularly changed the dressings.
19. Mr Paul told Dr Parkington that he when he went back to work he was placed on light duties and that he had to use a walking stick for three weeks because of low back pain and discomfort in the hips and knees.
20. Mr Paul gave evidence of his pain and discomfort of the lower back, his hip and knees. This pain has restricted his mobility. He had to move from a two story house. He also has difficulty in sleeping and finding a comfortable position in bed. The pain and discomfort of the applicant was corroborated by a statement of his wife that was in the T documents.
§ Evidence as to Applicant’s Medical Conditions
21. Evidence of the applicant’s medical conditions was given by Dr J R Watson and Dr R Parkington. Both witnesses are orthopaedic surgeons.
22. Dr Parkington was of the opinion that the generalised lumbar spondylosis was consistent with the relevant Statement of Principles (SoP). Dr Parkington is firmly of the opinion that the lumbar spondylosis condition is related to the accident.
23. Dr Watson considers that this condition is constitutional. Dr Watson considers that there is nothing in the history to suggest that he had sustained any bony trauma or discogenic pathology at the time of the accident.
24. Dr Watson diagnoses Mr Paul’s back with DISH. This is a constitutional condition which contributes to 50% of the lumbar impairment. Dr Watson opines that this condition would have commenced in Mr Paul’s mid to late 20’s and would have been progressive since that time.
25. Dr Watson considers that the degenerative changes in the hips and knees are constitutional. Dr Parkington considers that the knees are normal and that any pain in the knees is referred from the hips. Dr Parkington considers that the condition of the hips is constitutional.
26. I make the observation that the report of Dr Parkington mentions how the mobility of Mr Paul was affected by the accident. However, the mobility of Mr Paul after the accident was not discussed in the report of Dr Watson. This is an important consideration for me in deciding this application.
Legislative Background
27. As the applicant has not performed operational service, as defined in s 6A of the Act, the determination of whether his asserted conditions are war-caused is to be made by applying ss 120(4) of the Act. This provision requires the Commission to decide this matter to its reasonable satisfaction: see Repatriation Commission v Budworth (2001) 116 FCR 200 at 204-5.
28. I must determine this claim on the civil standard of proof, namely proof on the balance of probabilities: see Repatriation Commission v Smith (1987) 15 FCR 327 at 335.
29. Under s 120B of the Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (“RMA”) has made a SoP in respect of a particular kind of injury or disease, the criteria for reasonable satisfaction are assessed in accordance with that SoP.
30. Section 196A of the Act provides for the establishment of the RMA. Section 196B(3) of the Act provides, in effect, that if the RMA is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to eligible war service (other than operational service) rendered by veterans, the RMA must determine a SoP in respect of that kind of injury, disease or death setting out the factors that must as a minimum exist, and which of those factors must be related to service rendered by a person, before it can be said that, on the balance of probabilities, an injury, disease or death is connected with the circumstances of the veteran’s service.
31. The reference in s 196B (3) to a particular kind of injury, disease or death being “related to service” is expounded in s 196B(14). This provides relevantly, in effect, that a factor causing an injury is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service. As this veteran gave evidence that he was a passenger in an army truck that was being used to transport a film projector to an Army camp I find that he was on eligible war service at the time of the accident: see s 196B (14)(c).
Consideration
32. Where a SoP exists I am required to apply the test prescribed by s120B(3) of the Act.
33. However, even before I consider the SoP it is incumbent on me to consider whether there is a connection between the claimed conditions of Mr Paul and his service as required by s120B(3)(a) of the Act. In this respect I rule that there is evidence which raises a connection between his service and the injuries to his back, hips and knees. This is because there is unchallenged evidence of Mr Paul that in the accident he sustained injuries to his back, hips and knees.
34. I must next consider, as required by s120B(3)(b) of the Act, whether there is in force a SoP that upholds the contention that the injury or disease is, on the balance of probabilities connected with that service.
35. The conditions of lumbar spondylosis and osteoarthrosis are the subject of SoPs being: Lumbar Spondylosis (Instrument No. 47 of 2002) and Osteoarthrosis (Instrument No. 82 of 2001). I will consider these SoPs.
36. The SoP for Lumbar Spondylosis (Instrument No. 47 of 2002) was not in force at the time of the claim of the veteran. However I am required to apply this SoP notwithstanding that it was not in force at the time when the claim for pension was lodged. This is because it is expressed in language more favourable to the veteran than the earlier SoP (being Instrument No. 28 of 1999): see Repatriation Commission v Gorton (2001) 65 ALD 609.
37. The main issue before me in relation to the SoP for Lumbar Spondylosis (Instrument No. 47 of 2002) was whether the veteran has suffered a trauma to the lumber spine within the 25 years immediately before the clinical onset of lumbar spondylosis: see factor 5(g).
38. It is my conclusion that factor 5(g) of the SoP for Lumbar Spondylosis (Instrument No. 47 of 2002) is satisfied in this case.
39. I have no doubt that the accident was a traumatic event and that the applicant would have been severely jostled not only when the tram hit the truck, but when the truck overturned and when the driver fell on him. I have no doubt that the veteran was severely injured. This event in my opinion was within the definition of a “trauma to the lumbar spine” that is contained in cl 8 of the SoP.
40. The fact that Mr Paul had reduced mobility after the accident is in my opinion significant. The fact that the veteran was taken to hospital by ambulance is also important. The veteran also gave unchallenged evidence that he was stiff and sore in the lower back region and had to use a walking stick. It should be borne in mind that this was an era where no seat belts were in use and any jolt by a tram would have caused a severe jolt to the truck and any occupants of the truck.
41. The fact that he had reduced mobility for about 3 weeks because of lower back pain and discomfort in the hips and knees is mentioned in the report of Dr Parkington.
42. I appreciate that there must be some evidence of clinical onset of the lumbar spondylosis. The meaning of “clinical onset” was considered by the Full Court of the Federal Court in Lees v Repatriation Commission (2002) 125 FCR 331. In that case the Court referred to the analysis of the Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668 at 670, in which Senior Member Dwyer concluded:
“... there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.”
That analysis was specifically endorsed by Branson J in Repatriation Commission v Cornelius[2002] FCA 750.
43. There is material before me that evidences the clinical onset of lumbar spondylosis in 1949. That material is contained in the medical report of Dr Watson that was put in evidence by the Commission.
44. Dr Watson reports that Mr Paul first commenced treatment for his back complaint when Mr Paul saw Dr Chivers in 1949: (see report of Dr Watson, Exhibit R3, p. 3). He would then not have been old enough to have DISH as Dr Watson dates the onset of that condition to his mid to late 20’s.
45. On this basis I accept that the clinical onset of the lumbar spondylosis commenced in 1949. This clinical onset of the condition occurred some 3 years after the accident. This in my opinion would satisfy the requirement that the trauma must have occurred within 25 years immediately before the clinical onset of lumbar spondylosis: see factor 5(g).
46. In considering the SoP for Osteoarthrosis (Instrument No. 82 of 2001) I must consider whether the veteran has suffered a trauma to the affected joint within the 25 years immediately before the clinical onset of osteoarthrosis in that joint: see factor 5(h).
47. There is no evidence before me of any clinical onset of osteoarthrosis within 25 years of the accident. The medical specialists did not provide any such evidence.
Conclusion
48. For the above reasons, I am satisfied on the balance of probabilities that the condition of lumbar spondylosis is a war-caused disease.
49. I will remit the matter of the assessment of the pension to the Commission.
50. I am not satisfied on the balance of probabilities that the conditions of localised osteoarthrosis affecting both hips and localised osteoarthrosis affecting both his knees are war-caused diseases.
Decision
51. I set aside the decision of the Repatriation Commission dated 28 May 2002, as affirmed by the Veterans’ Review Board on 11 February 2004 and substitute the following decision:
(a) affirm the decision of the Repatriation Commission in relation to Mr Paul’s conditions of localised osteoarthrosis affecting both hips and his knees;
(b) decide that Mr Paul’s lumbar spondylosis is a war-caused disease within the meaning of s 9 of the Veterans’ Entitlements Act 1986 and that he is entitled to receive a pension for the incapacity associated with this condition with effect from 22 January 2002; and
(c) remit the matter of assessment of the rate of pension payable to Mr Paul to the Repatriation Commission.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member P McDermott
Signed: Denise Burton
Administrative AssistantDate/s of Hearing 31 August 2005
Date of Decision 27 September 2005
Counsel for the Applicant Mr R Clutterbuck
Solicitor for the Applicant Mylne Lawyers
For the Respondent Mr M Smith, Departmental Advocate
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