Polkinghorne and Repatriation Commission

[2005] AATA 121

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 121

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/74 & 366

VETERANS’ APPEALS DIVISION		)
Re		CRAIG POLKINGHORNE

Applicant

And  REPATRIATION COMMISSION

Respondent

DECISION

Tribunal  Senior Member B J McCabe

Date 8 February 2005

Place Brisbane

Decision  The decision under review is affirmed.

....................[sgd]................

SENIOR MEMBER

CATCHWORDS

VETERANS’ AFFAIRS – veterans’ entitlements – disability pension – veterans’ lumbar spondylosis, spondylolisthesis, and seborrhoeic dermatitis not war-caused – evidence insufficient to satisfy Statement of Principles - decision under review affirmed.

Veteran’s Entitlements Act 1986 ss 69, 120

REASONS FOR DECISION

8 February 2005

introduction

1.      Craig Polkinghorne suffers from a foot condition, a back condition and a skin condition. He says the conditions are related to his defence service. The Repatriation Commission rejected all of the claims. The back and skin conditions were considered by the Veterans’ Review Board in its decision of 10 July 2002, while the foot condition was considered in the decision of 12 November 2002. The applicant asked the Tribunal to review the claims, and they were joined together into one file for the purposes of these proceedings.

2.      I am not satisfied Mr Pokinghorne’s conditions are related to his service. His claim must therefore fail. I have explained my reasons below.

the material before the tribunal

3. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. A number of medical reports and records were also tendered in evidence:

·Report of Dr Neville Collins, Dermatologist, dated 25 November 2003 (Exhibit 2);

·Report of Dr Neville Collins, Dermatologist, dated 24 October 2003 (exhibit 5)

·Report of Dr Henry M. Hill dated 18 April 1974 (exhibit 3);

·Report of Dr Peter Boys, Orthopaedic Surgeon, dated 25 June 2003 (exhibit 6)

·Report of Dr Peter A. Grant dated 12 August 2003 (exhibit 7);

·Report of Dr David Shepherd dated 9 August 2002 (T-Documents folio 73);

·Service clinical records dated 7 – 9 April 1973 (exhibit 4); and

·Inpatient records dated 13 April 1973 (exhibit 4).

4.      A number of other documents were also tendered:

·A bundle of documents under a cover letter of “Polks Pride Pty Ltd” received in the Tribunal 26 November 2003 (exhibit 2); and

·A handwritten bundle of documents headed “SPONDYLOLISTHESIS – Forward displacement of one vertebra over another” (exhibit 3).

5.      The applicant also gave evidence. He was the only witness called by either party.

6.      Mr Stoner represented the respondent. Mr Polkinghorne represented himself. I note he was granted an adjournment on two previous occasions to allow him an opportunity to obtain further evidence from a hospital in Perth, and to obtain legal advice. None of that occurred. Mr Stoner strenuously opposed any further adjournments because the applicant had already been given ample opportunity to prepare his case and obtain advice. Mr Stoner pointed out the respondent had agreed to assist Mr Polkinghorne to locate extra evidence, but its offer was not taken up. I decided it was appropriate to proceed to hear the matter.

the factual background

7.      The applicant was a farm labourer in Western Australia prior to being called up for national service. He enlisted on 25 January 1972 and served until 24 July 1973.  He undertook basic training at Puckapunyal and was then posted to Seymour for corps training. When his training was complete, he was posted to Townsville.

8.      Mr Polkinghorne says he was fit and physically active before joining the army. He was used to hard work on the farm, and said he routinely carried heavy bags of fertiliser without difficulty. He claims he does not have any history of back problems before joining the Army.

9.      The applicant says he relished the challenge of basic training: he says his level of fitness was such that he was one of the best performers in his intake. He encountered one problem, though. Because of his height – he is a short man - he had difficulty making long jumps while wearing a heavy pack. He struggled with this particular aspect of the training at Puckapunyal. His difficulties continued at Seymour. He remembers one occasion in May 1972 when he was required to negotiate a water obstacle wearing a full pack. In order to get across the watercourse, he had to jump onto a rock in the middle before leaping to the other side. He fell and landed on his buttocks on the rock. He said in his evidence that he felt a sharp stabbing pain around the area of his tailbone. It was intensely painful, he said, and his comrades had to assist him around the rest of the course.

10.     The applicant said he did not suffer continuing back pain during this period, notwithstanding the incident at the water obstacle. The real problem was his feet. He said his feet started to hurt during his basic training. They got worse at Seymour, and after he was posted to Townsville. He was sent to see specialists in Townsville who suggested he had fallen arches. His boots were fitted with steel plates. The plates relieved the pain because they supported his feet.

11.     The applicant said he had trouble sleeping at night while he was in Townsville. It is unclear why. In any event, he said he often had difficulty staying awake during the day. He got into trouble when he fell asleep at work on a number of occasions. He was posted to the hygiene duty platoon where he was responsible for tasks like hosing out toilets and steam-cleaning rubbish bins. He says it was light work and he did it well.

12.     Mr Polkinghorne was irked by the suggestion repeated in various medical reports that he did not regularly wear shoes before his time in the Army. The applicant said he always wore RM Williams boots when he was working on the farm. He pointed out it was dangerous to go barefoot because of the snakes. He added the shoes he routinely wore on the farm were manufactured by the same firm that made his boots in the Army. I accept Mr Polkinghorne was accustomed to wearing shoes before his service.

13.     The applicant also referred to an incident in April 1973. He was involved in a rugby match with other members of his platoon. Soldiers were required to attend sport once each week, and his platoon was directed to play rugby on the week in question. He pointed out he knew little of the game and cared less: he was from Western Australia, where everyone played Australian Rules. He was playing in the hooker’s position when the scrum collapsed on top of him. He hurt his neck. He was assisted from the field. That night, he was taken to the hospital because he was in so much pain.

14.     The medical records (exhibit 4) in relation to the stay in hospital are confusing, but it appears he was an inpatient for at least three days. Mr Stoner conceded it may have been up to six days. The applicant suffered from severe headaches. He was treated with Panadol. The clinical notes in exhibit 4 suggest the applicant was suffering from a sore throat as well. Mr Polkinghorne said in his statement (exhibit 2) that he did not suffer from a sore throat. The notes say he was diagnosed with a viral urinary tract infection which was resolved and he returned to his unit. There was no explanation of this diagnosis in the evidence.

15.     The applicant said in his written statement provided to the Tribunal (exhibit 2) that his “tailbone spike” reappeared. He said he experienced considerable discomfort in the period following the scrum accident as a result of his sore feet and tailbone problems.

16.     Mr Polkinghorne says he developed a rash during this period. He said the skin condition appeared on his scalp while he was on an exercise wearing a “giggle hat” (a cloth hat). He says the condition has persisted and has spread to other parts of his body, including his genitals. Dr Collins diagnosed the condition as seborrhoeic dermatitis. Dr Collins opined in his letter of 24 October 2003 (exhibit 5) that it was impossible to confirm when the condition first manifested itself. He added there were no “significant contributing factors” and concluded: “The condition has not been aggravated by any particular event.” The doctor also said there was no evidence that chemical sensitivity was a contributing or aggravating factor.

17.     Dr Grant, a senior medical officer retained by the respondent, said he could find no evidence supporting the claim that the onset of the skin condition occurred during the course of the applicant’s service. Dr Grant noted the applicant’s entry medical board did not record any skin problems. The final medical board on 28 June 1973 did not record any problems either.

18.     Mr Polkinghorne returned to the farm after his discharge. He said he was not able to carry the loads he used to carry, and he was in pain. He saw a doctor in Perth about his foot condition in 1974. The Tribunal was provided with a copy of a letter from Dr Hill, Orthopaedic Surgeon, dated 18 April 1974 regarding Mr Polkinghorne. The doctor said:

In a nutshell this young man has a constitutional defect in both feet which is congenital or developmental.

19.     The applicant was examined by Dr Shepherd on 9 August 2002. A copy of his report is included in the T documents (at folio 73). Dr Shepherd concluded Mr Polkinghorne’s feet were normal. He acknowledged some degree of tenderness that may have commenced during the applicant’s military service, but ruled out pes cavus and plantar fasciitis. Dr Shepherd doubted whether the condition was attributable to the applicant’s military service. He did not offer a diagnosis.

20.     The applicant says he continued to suffer back pain after he left the Army. He consulted Dr Hardcastle in 1985. He underwent surgery on his back in 1991. Dr Bell performed an instrumented L4 to S1 fusion. The applicant was unable to locate any of the medical records relating to this procedure.

21.     Dr Boys examined Mr Polkinghorne at the request of the respondent on 25 June 2003. In his report (exhibit 6), Dr Boys says “there is no diagnosable condition evident” in relation to the ankles and feet.  He adds there is no evidence of loss of function. Dr Boys noted there was evidence of established spondylosis and spondylolisthesis. He said these were the product of a constitutional degenerative condition. He said the back strain sustained during the course of the rugby match in 1973 was likely to have been a temporary phenomenon. The doctor considered there was nothing to connect the applicant’s back condition with anything that occurred during his service.

the legislative background

22.     The Veterans Entitlements Act 1986 creates an entitlement to compensation for injuries suffered in defined circumstances. In this case, the applicant is not arguing his injuries arose out of periods of operational service. He must therefore establish his condition arose out of, or was aggravated by, his eligible defence service. Defence service commences on 7 December 1972: see s 69.

23.     It follows that injuries sustained during the applicant’s basic training in the middle of 1972 are not compensable under the Act, except to the extent they were aggravated during the course of defence service (ie, after 7 December 1972).   

24.     The Tribunal must apply s 120 in the course of assessing the applicant’s claim. Section 120(4) requires that I be reasonably satisfied of the relevant matters.

Assessing the applicant’s case

(i) Diagnosis

25.     Mr Polkinghorne says he suffers from a back condition, a foot condition and a skin condition. After reviewing the evidence referred to earlier in these reasons, I am satisfied the applicant suffers from spondylosis and spondylolisthesis. I also accept he currently suffers from seborrhoeic dermatitis. I am not satisfied after reviewing the evidence that the applicant suffers from a diagnosable foot condition. The respondent’s medical experts could not identify the cause of Mr Polkinghorne’s discomfort. He was unable to produce any evidence that would allow me to reach a different conclusion. It follows the applicant’s claim in respect of his feet must fail.

(ii) The hypothesis

26.     The applicant says his back condition was caused or aggravated by an injury sustained during an afternoon of organised sport in 1973. I am satisfied from his evidence that playing sport in those circumstances was part of his role as a soldier. It was not a social game occurring after work. The question remains whether that injury contributed to his current condition.

27.     The applicant says his skin condition first manifested itself while he was on exercises away from the Townsville base sometime in 1973. He says that the hot conditions and the requirement that he wear a hat contributed to the development of a skin condition that has spread and irritated him ever since. He also says the pain and stress association with his back condition played a part in the onset of the skin condition.

(iii) The relevant statements of principles

28.     The relevant statements of principles (SoPs) for the back conditions are No 47 of 2002, amended by No 78 of 2002 (concerning lumbar spondylosis) and No 16 of 1997 (concerning spondylolisthesis). The relevant SoP for seborrhoeic dermatitis is No 51 of 1999.

(iv) Is the applicant’s story capable of satisfying the SoPs?

29.     I turn firstly to the SoP relating to lumbar spondylosis. A number of the factors referred to in paragraph 5 of SoP No 47 of 2002 (amended by No 78 of 2002) refer to a requirement of “trauma to the lumbar spine”. Mr Polkinghorne’s description of the injury he sustained during the football game in 1973 does not satisfy that definition: the records refer only to headaches. He did not connect the incident to his back until some time later.

30.     The factors in SoP No 16 of 1997 are harder to satisfy. Most of them refer to “high energy trauma”. None of the medical evidence suggests the applicant suffered a high energy trauma in 1973 or at any other time during his eligible service. 

31.     There is no suggestion the applicant suffered from any of the conditions referred to in paragraph 5 of SoP No 51 of 1999. He suggested his football injury might have been a factor, but there is no suggestion the injury impacted on his ability to maintain his personal hygiene. It follows the applicant is unable to satisfy the SoP.

conclusion

32.     The applicant’s account does not “fit” the relevant SoPs. I am therefore unable to be satisfied that his back or skin conditions are attributable to his defence service. It follows his claims must fail. The decisions under review must be affirmed.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of  

Signed:         .....................................................................................
  Associate: Sam J Appleton

Date of Hearing   18 January 2005
Date of Decision   8 February 2005
The applicant appeared in person.
The respondent was represented by Mr Stoner.