Poynter and Repatriation Commission - [2001] AATA 173

DECISION AND REASONS FOR DECISION [2001] AATA 173

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/689

VETERANS' AFFAIRS DIVISION          )
           Re      PETER POYNTER
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Dr J D Campbell

Date29 January 2001
PlaceSydney

Decision The Tribunal determines that the decision under review be set aside and in substitution therefor finds that the Applicant's condition of cervical spondylosis is war caused.

[Sgd] Dr J D Campbell
Member

ORDER TO AMEND WRITTEN DECISION

TribunalDr J D Campbell, Member
Date12 March 2001
PlaceSydney
WHEREAS:

the Tribunal released a written decision in this matter, dated 29 January 2001; and
it has come to the Tribunal's attention that there was a typing error in the decision;
the Tribunal wishes to amend the written decision so as to rectify the error and wishing to do so with the least cost and inconvenience to the parties, applies the provision of section 43AA of the Administrative Appeals Tribunal Act 1975.

NOW THE TRIBUNAL THEREFORE ORDERS that paragraph 33 of the decision reads as follows:
"The Tribunal therefore concludes that the condition of cervical spondylosis is a war-caused disability. As this was the only matter in contention between the parties, the Applicant's disability pension will continue at 100% of the General Rate."

..............................................
JD Campbell
MEMBER

CATCHWORDS
Veterans' entitlements - cervical spondylosis - operational service - nature of injury - severity of trauma

Veterans' Entitlements Act 1986

REASONS FOR DECISION

Dr J D Campbell, Member

Mr Peter Poynter ("the Applicant") in this matter seeks a review of the decision of the Repatriation Commission ("the Respondent") dated 7 July 1998 which determined that the conditions of cervical spondylosis and osteoarthrosis of the left shoulder were not war caused disabilities. This decision was reviewed by the Veterans' Review Board and affirmed in a decision dated 10 March 1999.
A hearing was held before the Tribunal on 5 September 2000. The Applicant was represented by Ms Toliopoulos, a solicitor from the Legal Aid Commission and the Respondent was represented by Mr Wallis, an advocate from the Department of Veterans' Affairs. The Applicant presented oral evidence to the Tribunal.
The following evidence was placed in evidence before the Tribunal:
Documents prepared pursuant to the Administrative Appeals Tribunal Act 1975 T1-T25 pp1-124
Medical report of Professor Sambrook dated 19 August 1999 Exhibit A1
Statement of Mr Poynter dated 28 July 1999     Exhibit A2
Applicant's statement of facts and contentions dated 5 September 2000     Exhibit A3
Medical report of Dr Lennon dated 13 August 1999     Exhibit R1
Medical report of Dr Quinlan dated 30 November 1999           Exhibit R2
Respondent's statement of facts and contentions dated 17 August 2000     Exhibit R3

Issues

The relevant issue in this matter is whether the Applicant's condition of cervical spondylosis is a war caused disability.
Legislation
The relevant legislation in this matter is the Veterans' Entitlements Act 1986 ("the Act") and in particular sections 120(1), (3), 120A and the Statement of Principles, Instrument No 56 of 1998.
Background
The Applicant lodged a claim with the Respondent on 24 April 1998 for the conditions of cervical spondylosis, osteoarthrosis of the left shoulder and bilateral sensorineural hearing loss with tinnitus to be accepted as war caused disabilities. The Respondent determined on 7 July 1998 that the condition of bilateral sensorineural hearing loss was a war caused disability. In this same determination the Respondent further found that that the conditions of cervical spondylosis and osteoarthrosis of the left shoulder were not war caused disabilities. The disability pension was continued at 100% of the General Rate (T2).
This decision was reviewed by the Veterans' Review Board and affirmed in a decision dated 10 March 1999 (T22).
In the appeal before this Tribunal the Applicant is appealing only that part of the Respondent's decision of 7 July 1998 relating to the issue of cervical spondylosis. It was agreed between the parties that if the appeal was successful, the effective dated would be 20 January 1998.
Applicant's Evidence
The Applicant told the Tribunal that he was born on 19 August 1935 and served in the Australian Army from 1953 until 1959, with one year of that service (1956/1957) as an anti tank gunner with IRAR in Korea.
The Applicant stated that he was on duty at night, at an observation post on the demilitarised zone in the company of a soldier from the Republic of Korea, when a loud animal sound was heard. His fellow soldier became agitated and frightened. When it came time to change observers the Korean soldier refused to leave the observation post and the Applicant took off down the hill at a fast pace with Pte McDermott, a member of a friendly patrol. He felt his ankle twisting and fell on to his neck and left shoulder. The Applicant remembers feeling dazed and being helped to his feet by Pte McDermott. The Applicant said that he went back to his lines, had a "tub" and went to sleep. He took no medication at this time.
In describing the incident further, the Applicant stated that he had a sharp and acute pain in his neck and left shoulder which lasted for several weeks. On the next morning he still felt pain in his neck and had difficulty in moving his neck in any direction. He did not attend the Regimental Aid Post as he felt that it was "not the thing to do". The Applicant stated that he dressed and reported for duty, and persisted with his work although it was painful. He was assisted by his fellow soldiers. The Applicant also stated that he had trouble with his right ankle towards the end of winter.
On the following day the Applicant said he had a rest day and thereafter returned to full duties at various observation posts, to which he was able to secure a ride on the back of a jeep. The Applicant stated that he secured some pain killers from American soldiers, and that during this period he was using hot packs on his neck. The Applicant also stated that he had trouble with his neck and left shoulder earlier in his service.
In response to questions in cross examination the Applicant stated that he had had polio at about six years of age and a relapse at 14. A triple arthrodesis was performed on his left ankle at that time. Although his left foot was limited in movement, he worked as a timber cutter before joining the Army. The Applicant noted that after injuring his right ankle in Korea his left ankle deteriorated. He stated that he had a number of falls in Korea and that they occurred on flat ground. The Applicant was usually helped up and his ankle would be "right in a day or so".
The Applicant confirmed that he resumed full duties after the incident in question. This involved sitting in either an observation post on top of a hill (a bunker dug into the ground) for four hours on and two hours off, or sitting around at a checkpoint. The Applicant stated that after the fall he had headaches, was tender in areas of his neck and shoulder and had pain in his chest and left arm. He was unable to recall the effect of these conditions on his ability to carry through his duties.
The Applicant stated that he had a number of injuries and illnesses while in the Army and that these included a fractured neck of his fifth metacarpal in 1959, a tonsillectomy and injuries to his right ankle on two occasions and on one occasion to his left ankle. The Applicant stated that he had made no mention of his fall and neck injury at the time of his discharge, because he did not want such a record to interfere with the opportunity of securing a government job.
The Applicant stated that since leaving the Army his neck has always been a problem. He further stated that apart from a few weeks workers' compensation for a twisting injury to his neck when working as a leading hand carpenter in the mid seventies, it has never actually stopped him from working.
In response to questions from the Tribunal, the Applicant confirmed that he hit his neck and left shoulder when he fell running down the hill. He further confirmed that he was dazed, that there were "hot needles" going into the base of his skull and that his fingers "felt a bit funny". He stated that he found it difficult to lift his head but that he could manage the pain. The Applicant further stated that because of the pain he did experience some trouble sleeping.
Medical Evidence – Dr Quinlan
In a medical report dated 30 November 1999 Dr Quinlan, a consultant in rehabilitation medicine, made the following comments:
"…
Of particular importance though, I feel, is the fact that Mr Poynter went into active service with a triple arthrodesis of his left foot and a history of polio. While his recovery had been good, triple arthrodesis of the foot is known to cause an alteration in the biomechanics of gait. Obviously I cannot comment on how his gait looked at the time but nonetheless there is certainly a high probability that his gait would have been altered to a degree and this would result in increased forces being transmitted to his back and neck. It is probable that years in the services including the riggers [sic] of training and I would imagine several incidents of the nature described would accelerate any tendency to degeneration of the neck and spine. I would also make the point that it is now recognised that when people have had polio that overuse results in a more rapid deterioration in function in the later years. Again it is probable that his years in the service would be detrimental to this condition. Because his impairments, disability and handicap are so severe it is difficult to quantify any relative weights of his ankle fusion, his cervical spondylosis, his depression, and the possibility of post-polio syndrome.
…" (Exhibit R2)

In a medical report dated 13 August 1999 Dr Lennon, a consultant orthopaedic surgeon, detailed the following opinion in relation to the neck:
"…
The patient indeed suffers from diffuse cervical spondylosis and lumbar spondylosis, conditions of constitutional origin, age related, degenerative in nature and not specifically due to his fall in Korea in 1956. Following the fall he continued on active duty. There was no report of same in the medical documentation and no evidence that he had sustained any significant traumatic injury, fracture, fracture dislocation or intervertebral disc disruption that could have attributed to the future development of spondylitic changes. There is no relationship of the spondylogenic disease to his War Service.
…" (Exhibit R1)

In a report dated 19 August 1999 Professor Sambrook, a consultant rheumatologist, detailed the following opinion in relation to the neck:
"…
I note Mr Poynter's case was considered by the Veterans' Review Board in March 1999. Although the Board accepted the evidence provided Mr Poynter about the fall, the Board did not believe the fall met the definition of 'trauma' contained in the Statement of Principles. In particular, the lack of documentation of this episode was contrasted with that in 1954, when he fell down some stairs at Concord Hospital and was admitted for nine days. A similar finding was held for the shoulder.
I consider the history provided to me by Mr Poynter is certainly not inconsistent with the definition of 'trauma' in the SOP, as he described having pain and restriction of movement of his neck and shoulder for several weeks thereafter. My Poynter's problem in this regard is clearly the lack of documentation, but that may well relate the 'Army culture' as described by Mr Poynter. In his favour is the x-ray appearance of a focal lesion at C5/6. Such focal involvement suggests trauma rather than simple age related degeneration, which tends to show more widespread involvement. Thus the clinical history and x-ray appearance point to the possibility of trauma but whether that is sufficient in the absence of supportive documentation is a matter for the Tribunal.
…" (Exhibit A2)

Other Evidence

The Tribunal notes the evidence of Mr McDermott, which corroborates the Applicant's history of a fall on a hillside in Korea in 1956.
Submissions: The Applicant
The Applicant's solicitor submitted that the Applicant satisfied the definition of trauma to cervical spine and factor 5h of the Statement of Principles Instrument No 56 of 1998 concerning cervical spondylosis, and accordingly that a reasonable hypothesis exists. Further, in the absence of any evidence which disproves one or more of the facts necessary to support the hypothesis beyond reasonable doubt, or the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt, then the condition of cervical spondylosis is a war caused disability. The Applicant relies on the opinion of Professor Sambrook to support this contention.
Submissions: The Respondent
The Respondent contends that the injury to the Applicant's spine occasioned during the fall on a hill in Korea in 1956 does not satisfy the definitional requirements nominated in the Statement of Principles Instrument No 56 of 1998 concerning cervical spondylosis. As a consequence it is submitted that the Applicant's claim must fail as a reasonable hypothesis is not established. The Respondent, in adopting this submission, relies upon the opinion of Dr Lennon.
Consideration and Findings
Having examined and considered the evidence of the Applicant, the Tribunal documents and the various medical opinions, the Tribunal would make the following findings of fact:
(a)      that the Applicant is a credible and truthful witness, with no evidence of embellishment by the Applicant in relation to the particular event and his nominated symptomology;
(b)      that the Applicant did suffer a fall as described while running down a hill in Korea at night in 1956, that he did receive an injury to his neck and head and that such events are corroborated by the evidence of Mr McDermott;
(c)       that there was an injury to his neck and head, that he was dazed as a result of his fall and further that his immediate symptomology included neck pain, described as "hot needles" going into the base of his skull, and a funny feeling in his fingers;
(d)      that the symptoms on the day after the fall included headache, difficulty in moving his neck, neck pain and stiffness;
(e)      that on the second day after the incident, he had a rest day and the symptoms remained, including the headache;
(f)       that from the third day after the incident, as he had throughout apart from the rest day, the Applicant had continued to do his duties with difficulty and with assistance from his mates, making use of vehicles when available to avoid carrying loads;
(g)      that the only medication taken was some pain killers courtesy of American soldiers and hot packs that he used on his neck when able to do so;
(h)      that his symptoms resolved over a period of several weeks;
(i)        that he did believe it inappropriate to go to the RAP;
(j)        that he did not disclose the injury to the medical board when he was downgraded to Class II in 1957, nor to the medical board when he was discharged in 1959; and
(k)      that the Applicant does have the condition of cervical spondylosis.
The Tribunal observes that the hypothesis in this matter is constructed on the ground that the Applicant's fall in 1956 constituted an injury to his cervical spine and that he later developed cervical spondylosis. The Tribunal has no argument with such a construction.
In considering whether the hypothesis is reasonable the Tribunal, having considered the Statement of Principles Instrument no 56 of 1998, observes that for the hypothesis to be found to be a reasonable hypothesis, the Applicant must satisfy factor 5h which nominated "suffering trauma to the cervical spine before the clinical onset of cervical spondylosis". The Tribunal observes that "trauma to the cervical spine" is defined in paragraph 8 of the same instrument as:
"…a discrete injury to the cervical 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 seven days immediately after the injury occurs."

In considering the above definition the Tribunal notes that :
(a)      the Applicant had a discrete injury to the cervical spine; and
(b)      that this injury caused the Applicant to develop the symptoms of acute pain, a funny feeling in his fingers, headache, neck tenderness and difficulty with movements of the neck; and
(c)       that the symptoms remained for several weeks.
The Tribunal also observed that during this period he continued with his duties, albeit with help from "his mates". It is further observed that he did not seek assistance from the Regimental Aid Post, but relied on self help and self medication with pain killers and hot packs.
In assessing the two particular medical opinions, the Tribunal notes that Dr Lennon is dismissive of the incident as having any part to play in the development of an age related cervical spondylosis. Professor Sambrook considers the Applicant's history of the fall and the symptomology as not inconsistent with the definitional requirements, with his main concerns being a lack of historical documentation.
The Tribunal, having considered all the evidence and the medical opinions, recognising the beneficial nature of the legislation and recognising that there is no historical medical record on this matter, finds that the Applicant's fall, his injury to his neck and the ensuing symptomology does satisfy the definitional elements of "trauma to the cervical spine".
Further, as a consequence of the finding that the Applicant's injury and subsequent symptomology satisfy the "trauma to the cervical spine" definition, the Tribunal finds that the Applicant does satisfy factor 5h of the Statement of Principles Instrument No 56 of 1998.
The Tribunal therefore finds that a reasonable hypothesis exists and after a consideration of all the evidence finds that none of the facts which are necessary to support this hypothesis are disproved beyond reasonable doubt and the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.
The Tribunal therefore concludes that the condition of lumbar spondylosis is a war caused disability. As this was the only matter in contention between the parties, the Applicant's disability pension will continue at 100% of the General Rate.
Determination
The Tribunal determines that the decision under review be set aside and in substitution therefor finds that the Applicant's condition of cervical spondylosis is war caused.

I certify that the thirty-four (34) preceding paragraphs are a true copy of the reasons for the decision herein of:
Dr J D Campbell, Member
Signed:         .....................................................................................
  Associate
Dates of Hearing  5 September 2000
           Date of Decision  29 January 2001
           Counsel for Applicant  Ms E Toliopoulos
           Advocate for the Respondent      Mr R Wallis