Perren and Repatriation Commission (Veterans’ entitlements)
[2016] AATA 253
•20 April 2016
Perren and Repatriation Commission (Veterans’ entitlements) [2016] AATA 253 (20 April 2016)
Division
VETERANS' APPEALS DIVISION
File Number(s)
2014/3025
Re
Leo Perren
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member
Date 20 April 2016 Place Sydney The decision under review is affirmed.
........................[sgd]................................................
Ms N Isenberg, Senior Member
CATCHWORDS
VETERANS AFFAIRS — pension — defence service — lumbar spondylosis — thoracic spondylosis — statement of principles — whether applicant lifted loads of at least 35 kilograms while bearing weight to a cumulative total of at least 168000 kilograms within any ten year period before the clinical onset of conditions — application of statement of principles — threshold limit not met — decision under review affirmed
LEGISLATION
Veterans' Entitlement Act ss 70(1), 70(5)(a), 120(4)
CASES
Baird v Repatriation Commission [2015] AATA 393
Chaplin v Repatriation Commission [2003] AATA 332
Gorton v Repatriation Commission [2001] FCA 286
Guthrie v Repatriation Commission [2003] AATA 361
Repatriation Commission v Keeley (2000) 98 FCR 108
Repatriation Commission v Smith (1987) 15 FCR 327Wheat v Repatriation Commission [2003] AATA 1050
SECONDARY MATERIALS
Statement of Principles concerning lumbar spondylosis No. 63 of 2014
Statement of Principles concerning lumbar spondylosis No. 38 of 2005
Statement of Principles concerning thoracic spondylosis No. 65 of 2014Statement of Principles concerning thoracic spondylosis No. 36 of 2005
REASONS FOR DECISION
Ms N Isenberg, Senior Member
20 April 2016
DECISION UNDER REVIEW
The decision under review is the decision of the Repatriation Commission, affirmed by the Veterans’ Review Board (“the VRB”) on 24 February 2014, that refused the claim by the applicant, Leo Perren that his lumbar spondylosis and thoracic spondylosis are to be related to his service.
BACKGROUND
Mr Perren served in the Royal Australian Navy between 12 January 1975 and 11 January 1984. That service was not “operational service” as defined in the Veterans’ Entitlement Act 1986 (“the VE Act”), but was eligible defence service.
LEGISLATIVE BACKGROUND
Part IV of the VE Act deals with pensions for members of the Defence Force. Section 70(1) of the VE Act provides that, where a member is incapacitated from a defence-caused injury or disease, the Commonwealth is liable to pay pension by way of compensation to the member in accordance with that Act. By s 70(5)(a), the injury/disease shall be taken to be defence-caused if the injury/disease arose out of, or was attributable to, the member’s defence service.
The Repatriation Medical Authority has determined, under s 196B(3) of the VE Act, a Statement of Principles (“SoP”), in respect of each of the claimed conditions. Currently those SoPs are No 63 of 2014 (lumbar spondylosis) and No 65 of 2014 (thoracic spondylosis). I must apply the SoPs that are currently in force, unless the SoPs in force when the claim was first determined are more beneficial to the veteran: Gorton v Repatriation Commission [2001] FCA 286. The earlier SoPs are No 38 of 2005 (lumbar spondylosis) and No 36 of 2005 (thoracic spondylosis). The earlier SoPs were subsequently amended several times but those amendments are not relevant to this application for review.
Pursuant to s 120(4) of the VE Act, I am required to determine this matter “to my reasonable satisfaction” – that is, on the civil standard of proof, namely, proof on the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327.
APPLICANT’S SUBMISSION
The Applicant relied on the following factors in the current SoP:
(i) lifting loads of at least 35 kilograms while bearing weight through the lumbar spine to a cumulative total of at least 168 000 kilograms within any ten year period before the clinical onset of lumbar spondylosis, and where the clinical onset of lumbar spondylosis occurs within the 25 years following that period; or
(j) carrying loads of at least 35 kilograms while bearing weight through the lumbar spine to a cumulative total of at least 3 800 hours within any ten year period before the clinical onset of lumbar spondylosis, and where the clinical onset of lumbar spondylosis occurs within the 25 years following that period;
The SoP in respect of thoracic spondylosis is in corresponding terms.
In the alternative, the Applicant contended that, if he were unable to succeed applying the current SoPs, the SoPs applicable at the time of the original decision should be applied: Gorton v Repatriation Commission [2001] FCA 1194; Repatriation Commission v Keeley (2000) 98 FCR 108..
These provide, relevantly:
6.(h) carrying or lifting loads of at least thirty-five kilograms while bearing weight through the lumbar/thoracic spine to a cumulative total of at least 168 000 kilograms within any ten year period before the clinical onset of lumbar/thoracic spondylosis, and where the clinical onset of lumbar/thoracic spondylosis occurs within the twenty-five years following that period;
The first matter to be determined is the clinical onset of the claimed conditions. This is because in respect of all of the relevant factors it is essential to determine when the clinical onset of the condition occurred. The parties agreed that the clinical onset of the applicant's claimed conditions occurred within 25 years of the ten-year period of October 1977 to October 1987 and I agree that the available medical evidence supports this conclusion.
The only issue in dispute with respect to the current SoPs is whether or not the applicant satisfies the lifting or carrying threshold in the applicable SoPs, namely 35 kg to a total of 168,000 kgs during the relevant ten-year period, being October 1977 to October 1987.
In two statements, one undated, and one dated 1 March 2016, the Applicant set out details of his lifting during the claimed 10 year period. In summary, the applicant contended that for the period October 1977 to October 1987 he would have lifted or carried objects exceeding 35 kgs, bearing weight through his lumbar spine (and thoracic spine), to a total of at least 168,000 kgs. The Applicant further contended that his heavy lifting and carrying during his Navy service made a material contribution to this total.
The Applicant provided several versions of a schedule, the final version of which, he said, demonstrated that he had, during the relevant period, lifted a total of 169,510 kgs, of which about 35-40% was attributable to his service.
Service lifting/carrying
The applicant said he did very little heavy lifting and carrying during his Navy service until the later part of 1977 but from then to 1979 he did considerable heavy lifting and carrying. Between 1982 and his discharge in January 1984 he also did further regular heavy lifting and carrying.
The Applicant referred to his Record of Training and Employment which referred to his duties as part of the electrical department were, among other things, to maintain, repair, test, and tune electronic communications equipment on RAN ships and vessels. These duties often required, he said, the constant lifting and carrying of heavy equipment sometimes weighing in excess of 35 kgs. Examples included transmitters, receivers, radios, aerials and power supplies.
HMAS Vampire
In his statements the Applicant wrote that from October 1977 to November 1979 he was posted to HMAS Vampire as an Able Seaman, and later, Leading Seaman (Electronic Communications). The Applicant gave extensive evidence about aspects of this period of his service.
Shore Power Cables
Each time HMAS Vampire arrived at, and departed from, a port, a call was made over the ship's public address system to 'clear lower deck of all electrical junior sailors to haul shore power cables'. This required all sailors - Seamen, Able Seamen and Leading Seamen - in the Electrical Department to attend the upper deck of the ship or the wharf to take up and pass hand over hand, man to man, each of the three shore power cables. Connecting and disconnecting the power cables was routine and an inherent part of the duties of members of the electrical department. The shore power cables each weighed approximately 750 kgs, and were ‘as thick as a man’s arm’. Each cable required approximately 10 men to carry it. The Applicant claimed he was required to perform this task on entering and leaving each port.
During his posting to HMAS Vampire, the ship arrived at, and departed from, 56 ports in total, according to the Reports of Proceedings of HMAS Vampire for the period October 1977 to December 1979. As a result, the Applicant claimed, he was required to lift and carry three shore power cables at least 112 times (56 times on arrival and 56 times on departure) while posted to HMAS Vampire. In his schedule he calculated this to amount to 25,200 kgs.
His evidence was that a party from the Electrical Department, usually between 8 and 14 sailors would haul the electrical cables up from the wharf to the ship, usually by using a rope. They would form a team to hold the electrical cable off the deck and carry it into position to be connected. Sometimes this may have involved lifting the cable once but it required holding it off the ground and carrying it for up to 45 minutes to get it in to place. Other times may have required multiple lifts to get the cable into place.
In cross-examination the Applicant agreed that, following his promotion to Leading Seaman in mid-1979, he had more of an overseeing role but still ‘played a part’ in the cable task. He said there were about 20 sailors in the Electrical Communications Department.
As to why he calculated his role in the cable task as taking place at every port, he said he was available on every occasion. He conceded that he could not say that he undertook the role on every occasion, but had no reason to believe he had not undertaken the role on every occasion.
Stores party aboard Vampire
During his posting to Vampire he was regularly part of the Stores Party. Each month or so the Stores Party would load the ship with fruit or vegetable bags weighing 40 kgs. In his evidence he agreed with the findings of the VRB that, that from the Report of Proceedings, the refit period from May to September 1978, the Christmas leave, and his promotion to Leading Seaman, his role in the Stores Party was more likely to have been about 12 occasions. As a result, his schedule was amended and he claimed there were 10 lifts per month on 12 occasions, making a total of 4800 kgs. He also claimed he carried detergent drums weighing 22 kgs each. In his amended schedule he claimed there were 10 lifts per month on 12 occasions, making a total of 5280 kgs.
De-ammunitioning of Vampire
In May 1978 he assisted in the de-ammunitioning of Vampire prior to dry dock maintenance. He estimated he handled at least 25 cases of Bofors anti-aircraft ammunition weighing approximately 36 kgs each.
Maintenance
During 1978 he said he was required on occasions to lift and carry radio receivers and transmitters (weighing approximately 50kgs each) to HMAS Stalwart for maintenance. This was a distance of about 150 metres and included going up and down ladders. He was also required to perform periodic maintenance on similar items each three months. This involved lifting the items from the equipment rack to a bench, do the work and lift and return to the equipment rack. This would have involved between 200 and 400 lifts of transmitters or receivers over the course of 1978.
Post Vampire service
From 1979 to about May 1982 he was mostly based at HMAS Harman then HMAS Coonawarra in the Northern Territory. He conceded he would have lifted or carried objects in excess of 35kgs only rarely during this period.
From mid-1982 to his discharge in 1984 he was largely based at HMAS Stalwart. During this time, he was involved in electrical maintenance. He estimated he would have lifted and carried radio transmitters, receivers and aerials, many weighing in excess of 35 kgs, fairly regularly. Often the other sailors in the in the Electrical Maintenance Department were sent for other jobs and he found himself on his own with no alternative but to lift heavy objects alone.
Also during the last year or so of his service there was concern about falling fitness standards amongst sailors. PT became compulsory once or twice a week. One exercise involved piggy backing another sailor across the deck. But he but he could not recall how many times each session this occurred or whether it was during every PT session. He did not press this in his schedule.
Incidental heavy lifting or carrying over the course of service would have included his kit bag (approximately 40 kgs) and a large ''milk can", which sometimes he lifted himself but usually with another sailor. This milk can would have weighed 90kgs or so when full. He estimated he would have lifted these cans between 10 and 20 times each over the course of his service.
The Applicant relied for the calculation of the weights lifted during service on tables prepared by the Huskisson RSL. The introduction to the tables noted that they had been created to assist Pensions and Welfare Officers preparing claims for compensation for injury or disability suffered as a result of Military Service. The introduction said many of the weights had been obtained from Military Books of Reference, from original equipment suppliers and from current and ex-serving members of the RAN with extensive military service. Many items could not be confirmed as being a particular weight due in part to the equipment no longer being in service or ships decommissioned, but by canvassing branch groups and organisations the estimated weights are as close as can be expected based on time and memory. The document acknowledged that it should be used as a guide only and not as an actual source of reference.
Post service lifting
After the Applicant discharged from the Navy in January 1984, he worked until August 1984 for a company in Newcastle NSW which did not require any heavy lifting.
In August 1984 he commenced work as an electronics technician and worked in this role, albeit for different employers, until October 2012.
From November 1986 to February 1987, he regularly lifted and carried heavy televisions during the course of his duties. The televisions at that time were much bulkier and heavier than current televisions and weighed more than 35 kgs – he estimated 40-50 kgs. This involved visiting customers at home, moving the TV and trying to make repairs and returning the TV to its original position. If the repairs were unable to be completed in the customer's home he had to lift the TV and carry it to the vehicle, unload it at the workshop and repeat the process in returning the TV to the customer; not all customers lived on flat blocks with easy access. Some jobs required multiple lifts and carries to manoeuvre the TV out or he would need to put it down and rest if the distance to the vehicle was too great. He estimated he would have lifted and carried hundreds of TVs in excess of 35kgs, many of them multiple times between August 1984 and February 1987.
For example, in respect of the period November 1986-February 1987, he claimed, during that period, to have lifted 50 kgs televisions twice on each of 30 jobs a week, a total of 48,000 kgs. Five times a week televisions had to be transported to the workshop, necessitating 6 lifts, a total of 24,000. At the same time, 5 times a week and he attended to large microwave ovens which weighed 40 kgs and required 2 lifts, a total of 6400 kgs. These also (2 a week) required to be transported to the workshop necessitating 6 lifts, a total of 7680 kgs. In a week he also attended to 5 antennae jobs which required him to lift a 35 kg ladder 4 times, a total of 11,200 kgs.
He provided a copy of specifications for an old-style television which weighed 43 kgs.
He denied in cross-examination that he ever dragged the televisions because, he said, they would snap on carpet or the legs might break. As to the weight of microwave ovens he said that large ones in 1986/7 were 40 kgs or more and small ones were less than 35 kgs.
In cross-examination he said that the role was a very busy one with about 720 jobs in that period; that was why he only stayed four months. He could not recall when he started in November or when he finished in February he said he said he worked every day except public holidays, and based his calculations on 16 weeks, which it appears, includes the whole of November and the whole of February and excludes one week for public holidays. In his chronology attached to his statement he noted that in February 1987 he ceased work with that employer and commenced another job which entailed significantly less lifting (claimed as a total of 450 kgs between February and November 1987).
CONSIDERATION
As I observed at the hearing the Applicant’s calculation of his lifting during the period he nominated was 169,510 kgs, that is, only about 1500 kilograms more than the amount required to bring his circumstances within the factors relied on. Consequently, it was important that his contentions in respect of nearly all of his claimed activities would need to be accepted.
The activity called to account for the greatest kilograms was that of lifting the communication cables at each port. This accounted for 25,200 kgs of the Applicant’s claim.
The Applicant’s solicitor referred me to several cases in which the Huskisson information had ‘been accepted’: Wheat v Repatriation Commission [2003] AATA 1050; Guthrie v Repatriation Commission [2003] AATA 361; Chaplin v Repatriation Commission [2003] AATA 332 and Baird v Repatriation Commission [2015] AATA 393. As the Respondent’s solicitor pointed out, all these cases were in respect of operational service and the more generous (‘reverse criminal onus’) applied. The only case in respect of defence service, and hence the Tribunal’s need to be reasonably satisfied on the balance of probabilities – Baird– the Huskisson information was found to have been not sufficiently reliable objective evidence. In the present matter it was not necessary to make any finding about the reliability of the information although I note the caveats evident on the face of the introduction to the document, to which I have referred above.
I accept that the heavy task of lifting the three shore power cables each weighing approximately 750 kgs, took place at each of the 56 ports Vampire visited while the Applicant was aboard. I accept that this task was undertaken by sailors from the electrical department of which there were about 20. I accept that each cable required approximately 10 men to carry it, and that the task was usually undertaken by between 8 and 14 sailors.
The Applicant had initially claimed he was required to perform this task on every occasion however conceded that following his promotion to Leading Seaman in mid-1979 he had more of an overseeing role although he still had a role in the cable task.
Even if I were to accept that his physical role did not diminish with his promotion, I do not accept that he had role in the cable task at every port, given that there were 20 sailors who may have been available to undertake the role, and on average, only half were needed. He conceded as much in his evidence. Consequently, even if he were to have undertaken the cable task in only about 90% of ports (ie in a total of 50 ports) he would have lifted only 22,500 kgs. This alone would cause his total lifts/carries for the relevant period to fall below the 168,000 threshold.
As to his post service work in respect of the period November 1986 -February 1987, I observe that the information in respect of televisions would reduce the claimed weight to 43 kgs, instead of 50 kgs. This alone would reduce his claim in respect of televisions to 61,920 kgs, instead of 72,000 kgs. The evidence was that he left that job in February 1987 to take up another, less demanding, role. If the period were reduced by even a week, this would reduce his lifting by 4,500 kgs, even if I were to otherwise accept the extent of the Applicant’s claimed lifting/carrying. In either event, this would cause him to fall further below the required 168,000 kgs.
I therefore am not reasonably satisfied that the Applicant lifted loads of at least 35 kilograms while bearing weight through the lumbar spine to a cumulative total of at least 168,000 kilograms within a ten-year period before the clinical onset of lumbar spondylosis, or that he lifted loads of at least 35 kilograms while bearing weight through the thoracic spine to a cumulative total of at least 168,000 kilograms within a ten year period before the clinical onset of thoracic spondylosis. Because the focus of the Applicant’s evidence was on lifting, little evidence, if any, was relevant to the duration of his carrying tasks. I am also not reasonably satisfied that the Applicant carried loads of at least 35 kilograms while bearing weight through the lumbar/thoracic spine to a cumulative total of at least 3 800 hours within a ten-year period before the clinical onset of lumbar/thoracic spondylosis.
Consequently, the Applicant’s primary submission fails.
The Applicant’s alternative submission
It was contended on the Applicant’s behalf that the Applicant, having failed to meet to the criteria in the present SoPs was to be afforded the application of the SoPs which applied at the time of the original decision which refused his claim as they, it was contended, are more favourable: Gorton v Repatriation Commission [2001] FCA 1194; Repatriation Commission v Keeley (2000) 98 FCR 108.
Those SoPs are similar to the current versions but refer to ‘carrying or lifting’ weights of 35 kgs to a total of at least 168,000 kgs during a 10 year period, within 25 years of the clinical onset of the condition. The only difference therefore is the reference to ‘carrying or lifting’ as distinct from lifting alone in the present SoPs. It should be noted that the present SoPs have a separate ‘carrying’ factor to that for ‘lifting’.
It was contended on behalf of the Applicant that a ‘lift’ and a ‘carry’ were two separate actions and that one activity should count as both a lift and a carry whenever the lift was not merely static. Consequently, it was contended, that even if I were to accept only half the weight claimed to have been lifted, because on nearly every occasion the Applicant had not only lifted but transported the weight, it should be counted twice.
In support of this contention the Applicant’s solicitor referred me to Chaplin v Repatriation Commission [2003] AATA 332 and Guthrie v Repatriation Commission [2003] AATA 361, but on my reading of those cases, they did not address the distinction the Applicant’s solicitor sought to draw.
The Applicant’s solicitor also referred me to s 15AA of the Acts Interpretation Act 1901 which, he said, requires me to apply the interpretation which would best achieve the purpose or object of the Act. I note however that that Act does not apply to SoPs. In any event, there was no evidence that the ‘purpose’ of the SoP was to permit the type of cumulative approach that the Applicant’s solicitor presses.
The Applicant’s solicitor, it seemed to me, also put a somewhat confusing proposition that ‘carrying involves lifting’, which suggests an acknowledgement that every ‘carry’ necessarily includes a ‘lift’. This is directly contrary to the Applicant’s argument. The Applicant’s solicitor was unable to refer me to any other authority to support the proposition, and I do not accept the submission on behalf of the Applicant that ‘lifting’ and ‘carrying’ were two separate actions and that therefore each lift should be counted twice.
Consequently, the Applicant’s alternative submission also fails.
CONCLUSION
I have found that the Applicant does not satisfy either the current SoPs or those in place at the time of the original decision.
DECISION
For the above reasons, I affirm the decision under review.
I certify that the preceding 54 (fifty -four) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member .......................[sgd].................................................
Associate
Dated 20 April 2016
Date(s) of hearing 4 March 2016 Solicitors for the Applicant Legal Aid NSW Solicitors for the Respondent Department of Veterans Affairs
0
10
1