Pudney and Repatriation Commission (Veterans' entitlements) - [2019] AATA 5243

Pudney and Repatriation Commission (Veterans' entitlements) [2019] AATA 5243 (16 April 2019)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2016/3805
Re:David Pudney
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Member O'Loughlin
Member Stephan
Member Ormston

Date:16 April 2019
Place:Adelaide

The decision under review is affirmed.
.........................[SGND]...................................
Member O'Loughlin
Catchwords
VETERANS’ AFFAIRS — Pensions, benefits and entitlements — Disability pension — relationship of neck condition to defence service — Statement of Principles concerning cervical spondylosis No 67 of 2014 — Definition of “trauma” — Meaning of “clinical onset” — Relevant definitions not satisfied — Decision under review affirmed
Legislation
Veterans’ Entitlements Act 1986
Cases
Lees v Repatriation Commission [2002] FCAFC 398
Repatriation Commission v Cornelius [2002] FCA 750
Robertson v Repatriation Commission (AAT 12666, 2 March 1998)
Secondary Materials
Statement of Principles concerning Cervical Spondylosis No 67 of 2014
REASONS FOR DECISION
Member O'Loughlin
Member Stephan
Member Ormston

16 April 2019
BACKGROUND

The applicant served in the defence forces from 13 August 1975 to 14 August 2000. In January 2015 he lodged a claim form with the Department for Veterans’ Affairs (DVA) seeking an increase in his disability pension due to a neck condition and a depressive disorder, both of which he said were related to defence service. At that time he was receiving a disability pension under the Veterans’ Entitlements Act 1986 (the VEA) at 60% of the general rate.
The January 2015 claim was supported by a CT scan report prepared by Dr E Lam (radiologist) dated 27 November 2014 which related to scans of the applicant’s head and cervical spine taken on 24 November 2014. The report concludes:
No evidence of fracture. There is moderate to severe degenerative disc change at C6-7 with moderate left C6-7 foraminal stenoisis possibly irritating the exiting left C7 nerve root. Clinical correlation suggested.[1]
[1] Exhibit R1 p 46.
On 19 May 2015 the Repatriation Commission accepted the applicant’s claim in relation to depressive disorder and increased his pension rate to 80%. On the same date the Repatriation Commission rejected the claim in relation to the neck condition on the basis that the delegate was reasonably satisfied that the applicant’s neck condition was not related to relevant military service.
The applicant sought review of the Repatriation Commission’s decision to reject the neck claim but on 10 May 2016 the VRB affirmed that decision on the grounds that it was reasonably satisfied that the material before it did not raise a connection between the applicant’s cervical spondylosis and his defence service.
On 21 July 2016 the applicant lodged an application for review of the VRB’s decision with this Tribunal.
LEGAL CONSIDERATIONS
The Commonwealth’s liability to pay a pension in respect of an incapacitating “defence-caused disease” arises from s 70(1) of the VEA which relevantly provides:
1) Where:
…
b) a member of the Forces or member of a Peacekeeping Force is incapacitated from a defence-caused injury or a defence-caused disease;
the Commonwealth is, subject to this Act,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] AATA 5243
Decision Date: 16 April 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the claim of Mr. Pudney against the Repatriation Commission for a disability pension related to a neck condition. The dispute centred on whether Mr. Pudney's cervical spondylosis was a "defence-caused disease" as defined by the *Veterans' Entitlements Act 1986* (VEA).

The AAT was required to determine if the applicant's neck condition, cervical spondylosis, arose out of or was attributable to his defence service, and if the relevant Statement of Principles concerning cervical spondylosis, No 67 of 2014, was satisfied. Specifically, the Tribunal had to consider the definitions of "trauma" and "clinical onset" within the context of the Statement of Principles and the applicant's evidence of service and injuries.

The Tribunal applied section 70(1) and 70(5) of the VEA, which establish the Commonwealth's liability for defence-caused injuries and diseases. Crucially, section 120B(3) of the VEA mandates that a decision-maker must be reasonably satisfied that a Statement of Principles upholds the contention that the injury or disease is connected to service on the balance of probabilities. The Tribunal referred to the definition of "clinical onset" from *Lees v Repatriation Commission*, which requires a feature or symptom enabling a doctor to diagnose the disease, or a finding on investigation indicative of the disease. The applicant's evidence of a swimming incident in 1976 and an explosion in Germany in 1981 did not satisfy the criteria for "trauma" as defined by the Statement of Principles. Furthermore, the neck injury sustained during a touch football game in 1999, while significant, was not considered to have met the definition of "clinical onset" for cervical spondylosis in a manner that connected it to his defence service under the applicable Statement of Principles.

Consequently, the Tribunal found that section 70(1) of the VEA did not impose liability on the Commonwealth to pay a pension to the applicant in relation to his cervical spondylosis. The decision under review was affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The respondent directed the Tribunal to the decision of the Full Court of the Federal Court in Lees v Repatriation Commission [2002] FCAFC 398 at [13] where the Full Court noted with approval the citation by Branson J in Repatriation Commission v Cornelius [2002] FCA 750 of the formulation adopted by the Tribunal in Robertson v Repatriation Commission (AAT 12666, 2 March 1998):... 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....APPLICANT’S EVIDENCE The applicant gave evidence that he was born in Mt Gambier in 1958. He attended school to year 11 when he decided to join the Army. He started on 13 August 1975 and became an armoured personnel carrier driver, doing his training in Victoria before being posted to Brisbane. He was in Brisbane until 1983 and most of his time in the Army was served on the east coast of Australia. The applicant also described an incident that occurred in 1976 during a swimming carnival when he was thrown into the pool. He said he was thrown into shallow water and struck his head which gave him a headache and a stiff neck. He said that these symptoms resolved after a weekend’s rest. In 1981 the applicant was involved in an exchange with the British Army and spent three or four weeks in Germany. He told the Tribunal that during this exchange he and another soldier were ordered to dispose of some “charge bags” (explosives used in blank rounds, in this case for a 76mm gun on a Scorpion armoured vehicle). There was an accidental explosion and the applicant was knocked backwards. He suffered burns to his arms and face for which he was treated, and a loss of vision that lasted four days. On 7 October 1999 the applicant was playing touch football as part of his training. He said that sport was an important part of Army culture. During this game, the applicant suffered a broken jaw and cheek, and a neck injury. The mechanism of the neck injury was not completely clear, but the applicant submitted that a blow to the head of sufficient force to break his jaw and cheek was likely to have been the cause. The incident occurred when the applicant chased an opposition player to the try line, but both he and a team mate fell. He said that his right cheek caved in, that he believed there had been a head clash, but he did not believe he had blacked out. The applicant was taken to the medical centre and given pain killers. He was then taken by ambulance to the Brisbane Mater Hospital where he underwent reconstructive facial surgery including the insertion of three titanium plates. He says that he was in hospital for seven to ten days. The applicant conceded that he was not confident in his recollection of the exact detail of the accident. He said his own memory is more suggestive of a clash between his head and another player’s foot, but that he had read that there was a suggestion of a head clash and he is not prepared to dispute that given that he was dazed. The applicant submits that the important thing is that he suffered a blow to the head of sufficient force to cause him significant bony injuries to his face, and that it is the force of the blow rather than the precise way it happened that is important.

Decision

Reasons for decision

In these circumstances the Tribunal finds that s 70(1) does not impose on the Commonwealth any liability to pay a pension to the applicant in relation to his cervical spondylosis.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

On 21 July 2016 the applicant lodged an application for review of the VRB’s decision with this Tribunal. LEGAL CONSIDERATIONS The Commonwealth’s liability to pay a pension in respect of an incapacitating “defence-caused disease” arises from s 70(1) of the VEA which relevantly provides:1) Where: …b) a member of the Forces or member of a Peacekeeping Force is incapacitated from a defence-caused injury or a defence-caused disease; the Commonwealth is, subject to this Act, liable to pay: …d) in the case of the incapacity of the member--pension by way of compensation to the member; in accordance with this Act. The definition of “defence-caused” in relation to a disease is found at s 70(5) which relevantly provides:5) …an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if: a) the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member; That provision is augmented by s 70(7) which provides:7) Where, in the opinion of the Commission, the incapacity of a member of the Forces or member of a Peacekeeping Force was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered defence service or peacekeeping service, as the case may be, or but for changes in the member's environment consequent upon his or her having rendered any such service: a) if the incapacity of the member was due to an accident--that incapacity shall be deemed to have arisen out of the injury suffered by the member as a result of the accident and the injury so suffered shall be deemed to be a defence-caused injury suffered by the member; or b) if the incapacity was due to a disease--the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a defence-caused disease contracted by the member, for the purposes of this Act. Section 120 of the VEA sets out the standard of proof required of an applicant in demonstrating an entitlement to a pension. It provides that the decision maker decide the matter to its “reasonable satisfaction”. That section is affected by s 120B(3) which provides that the decision maker will only be reasonably satisfied that an injury or disease was defence-caused if:a) the material before it raises a connection between the injury or disease and some particular service rendered by the applicant; andb) there is in force:(i) a Statement of Principles determined under subsection 196B(3) or (12); ……that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service. That subsection is in turn regulated by subsection (4) which provides:4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(3), nor declared that it does not propose to make such a Statement of Principles, in respect of: a) the kind of injury suffered by the person; or b) the kind of disease contracted by the person; orc) the kind of death met by the person; as the case may be.