Ragen and Repatriation Commission
[2000] AATA 826
•7 September 2000
DECISION AND REASONS FOR DECISION [2000] AATA 826
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/3
VETERANS' APPEALS DIVISION )
Re JOHN thomas ragen
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date7 September 2000
PlaceSydney
ADMINISTRATIVE APPEALS TRIBUNAL ) No N2000/3
)
VETERANS' APPEALS DIVISION )
Re: JOHN THOMAS RAGEN
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date 7 September 2000
Place Sydney
DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is SET ASIDE and the Tribunal substitutes in lieu thereof its decision, namely THAT:
1.The Applicant, JOHN THOMAS RAGEN, is entitled to pension for the war-caused diseases of Lumbar Spondylosis; Osteoarthrosis of the left shoulder and Osteoarthrosis of the right hip as and from 4 June 1998; and
2.This matter is remitted to the Respondent, REPATRIATION COMMISSION, so that it might assess the rate of pension to be paid for all war-caused injuries suffered by the Applicant.
(Sgd) M.D. ALLEN
.............................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Non operational service. Whether reasonably satisfied injuries in parachuting accidents led to lumbar spondylosis and osteoarthritis. Criticism of definition of trauma in SoP and requirement for veterans to accurately recollect events 50 plus years ago.
Veterans' Entitlements Act 1986 - subs120(4) and subs120(6); s190B
Repatriation Commission v Smith 15 FCR 327
Treloar v Australian Telecommunications Commission 26 FCR 316
Casarotto v Australian Postal Commission 86 ALR 399
REASONS FOR DECISION
Senior Member M D Allen
At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.
I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen
Signed: Kwai-Ling Wong
..................................................................................……………………………….Associate
Date of Hearing 7 September 2000
Date of Decision 7 September 2000Solicitor for Applicant Ms A Toliopoulos, Legal Aid Commission of NSW
Advocate for Respondent Mr P Godwin, Department of Veterans' AffairsDRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2000/3
By senior member allen
John thomas RAGEN v REPATRIATION COMMISSION
SYDNEY, 7 SEPTEMBER 2000HIS HONOUR: By application dated the 7th day of January 2000, the applicant sought review of the decision by the respondent as affirmed by a Veterans' Review Board rejecting his claim to have the conditions of lumbar spondylosis, osteoarthritis of the left shoulder and osteoarthritis of the right hip accepted as being caused or contributed to by his war service. The applicant served in the Australian Army during the Second World War and hence is a veteran as that term is defined in the Veterans' Entitlements Act 1986.
He originally enlisted in the Australian Army Medical Corps and served in that Corps, although attached for duty to an armoured unit and also to a parachute battalion. Because of the exigencies of war service and indeed the course the war took, neither of those two units were employed outside Australia. In other words, although the applicant had enlisted in the Second AIF for overseas service, he did not serve outside Australia and hence does not have operational service.
The consequence of that history is that the standard of proof in this matter is that provided by sub-section 4 of section 120 of the Veterans' Entitlements Act, namely that of to the Tribunal's reasonable satisfaction. Of the term, reasonable satisfaction, the Full Court of the Federal Court in Repatriation Commission v Smith, 15 FCR 327, said that it equated to the civil standard of proof, that is to say, proof on the balance of probabilities. As the applicant's claim for pension was lodged post 1 June 1994, section 120B of the Veterans' Entitlements Act provides that the Tribunal's state of reasonable satisfaction is to be assessed by reference to so-called statements of principles.
In this matter the relevant statements of principle are instruments number 42 of 1998 regarding osteoarthritis and instrument number 53 of 1998 re lumbar spondylosis. For both conditions suffered by the applicant, a similar basis applies from both statements of principles regarding the cause of the applicant's condition. Namely paragraph 5H of instrument number 42 of 1998 re osteoarthritis and paragraph 5G of instrument number 53 of 1998, re lumbar spondylosis. They read regarding osteoarthritis, paragraph 5H:
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©Auscript Pty Ltd 2000Suffering a trauma to a joint within the 25 years immediately before the clinical onset of osteoarthrosis in that joint
And as to lumbar spondylosis, paragraph 5G reads:
Suffering a trauma to the lumbar spine within the 25 years immediately before the clinical onset of lumbar spondylosis.
Trauma is defined in both instruments in similar terms, namely:
A discrete injury to the lumbar 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 10 days immediately after the injury occurs.
The respondent does not, and indeed cannot, dispute that the applicant suffers from the claimed conditions. See the report of Professor Sambrook of 16 March 2000, exhibit A2, and the clinical notes of Dr Lat, exhibit R4. Together with the radiologist's report, at document T6, page 67.
The applicant suffered incidence of trauma during his service. They are described initially in his application to the Veterans' Review Board. See document T6 at page 62 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. And that reads inter alia:
Some fifteen to twenty years after discharge I began to experience pain in my lumbar region. At the time no connection was made to my Army service. I accepted the fact that I had a "bad back" and on advice took pain killers plus heat treatment when my back acted up.
As regards injuries suffered, unless serious, eg. broken arms, legs, etc. If you could get away with it you hid them. No man wanted to be marched out as unfit, we were all "Paratroopers".
Listed below are two incidents as I recall fifty odd years later:
1.We were to do a demonstration drop for some "brass". This was to take place on the airbase. A strong wind played havoc with the demonstration causing some to drift over a road onto adjoining property or landing on a concrete tarmac. This resulted in a sore back and legs and walking on egg shells for awhile.
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2.Experimenting with the rate of exit from a plane, my stick (this was a term denoting a team) came out too fast. As the parachute in front of me developed, I went through its rigging lines. This caused me to become entangled in my own rigging lines as well as the other parachute and my parachute hung limply. As I was in no position to exert any control, the two of us landed heavily on the one parachute. Luckily my rifle butt missed my head as we hit the ground.
I would refer also to document T8 at pages 73 to 74 of the documents prepared for the Tribunal. In evidence to the Tribunal today, the applicant said of those events, that the first time he hurt his back was a demonstration jump at Richmond. Following his landing and injury he had difficulty in walking, had a sharp pain in his back which lasted for two weeks. He continued his duties in the Regimental Aid Post, but was able in effect to place himself on light duty. He didn't report the injury because if judged unfit he would have been marched out of the unit.
He gave himself pain kills and either he would rub his back or get one of, as he put it, one of the other fellows to rub it for him. His gait was altered and after two weeks he could return to normal duties. He then stated he had another accident when he went through another fellow's parachute. Following that incident he again treated himself with massage and pain killers. He remained on duty at the RAP but did not involve himself in any physical activities. For example, there were no route marches, PT, unarmed combat. He had over a fortnight on light duties that time.
Following that incident he had continual pain however in his shoulder. His shoulder had hurt, was difficult to move. There was a sharp pain at times and a dull ache at other times. It lasted longer than his back being in pain for some three weeks. As to the first incident and the second, his back hurt across the small of the back and to the right. He was tender to touch. He had difficulty moving. The pains lasted a fortnight and then every so often he would get twinges, but not serious enough to incapacitate him. He was in severe pain for 10 days. And after a fortnight it was tolerable. The second incident, the back symptoms were somewhat the same.
He then went on to speak of his life after the services. He commenced farming but had to give it up. He couldn't do any physical activity because of his back and his shoulder pain. He had three attempts at farming over a period of 10 years. When farming got too much in effort, he undertook clerical work. He said that he had had back pain ever since the incidents on the service.
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©Auscript Pty Ltd 2000It was not directly put to the applicant in cross-examination that the account he gave today was in any way false or he had modified his version of events so as to conform to the statements of principles. If such a suggestion is to be made I reject it. The applicant gave his evidence in a direct and forthright manner and having seen and heard the applicant give evidence and be cross-examined, I consider him to be an honest witness, doing his best to recollect events that occurred some 56 years ago.
As I said in the course of argument, often veterans gloss over matters in their initial application for pension, but only go into detail when required at proceedings before this Tribunal and when brought out by counsel's examination-in-chief or by cross-examination. I would also refer to the statutory declaration by the applicant's wife at document T8. She says in that document, inter alia:
His family related to me that when John returned from the war he was in poor health for quite a few years and lately had been suffering with aches and pains in his back and neck.
She then added:
I can confirm this with my own observation having been married to John for 34 years, three months. During this time he has complained of a sore shoulder, stiff neck, and pain in his lower back for which he has sought treatment from his doctors over the years.
In any event, so far as the events concerned, I would refer to paragraphs G and H of subsection 1 of section 119, the Veterans' Entitlements Act. Those paragraphs read – first of all paragraph G:
Commission, -
and that means this Tribunal –
shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities;
And paragraph H then reads:
Without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
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©Auscript Pty Ltd 2000(i)the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii)the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, … was not reported to the appropriate authorities.
Obviously those passages do not allow the Tribunal to place suspicion and conjecture in the place of evidence, but it does demonstrate an allowance for the difficulties in remembering what happened many years ago. And also as this applicant said, difficulties where a matter is not reported because, as said with this veteran, he didn't want to be transferred out of the unit as unfit. It is a perfectly understandable situation there.
In passing, let me comment, that I consider the definition of trauma in the relevant statements of principles fails to take into account paragraph 119(1)(h) of the Veterans' Entitlements Act. For example, in this case, there is opinion by medical practitioners with speciality in the appropriate disciplines, namely a rheumatologist, Professor Sambrook and an orthopaedic surgeon, Dr Ellis, that the applicant's osteoarthritis and lumbar spondylosis are causally related to his service. Yet the statements of principles make such a finding dependent upon recollecting back for 56 years whether the applicant's back hurt for 10 days and not nine and whether the pain was acute, whatever that might mean.
The Repatriation Medical Authority has made the task of ascertaining whether an injury was war caused, one which depends on the interpretation of a document and best performed in the equity jurisdiction. See for example the discussion in Harris v Repatriation Commission 2000 FCA 873. Following the initial rejection of his claim, the applicant was examined by Dr Ellis, orthopaedic surgeon. Dr Ellis' first report dated 5 May 1999 is at document T8 and reads inter alia:
He worked as a clerk until 1941 when enlisted in the Australian Army at the age of 19. He was discharged in 1946 having served in the infantry, the AAMC since 1942 and a paratrooper unit since 1943. His service was not overseas, not operational. He was an instructor in physical training and unarmed combat on and off for four years and did paratrooping duties for three years. Between 1943 and 1946 he served as a paratrooper until the unit disbanded. He jumped with a parachute fifteen or twenty times and was an unarmed combat instructor on and off for over two years.
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©Auscript Pty Ltd 2000In 1944 he jumped and fouled the lines of the man who had jumped in front of him. They both landed on one parachute, he hurt his left shoulder. His back ached for one week afterwards. He worked in the RAP and was able to do light duty for two weeks. The shoulder and the back pain settled down.
In 1944 he landed at the exhibition ground on the concrete tarmac. He landed heavily and both feet were painful. His back was painful. Again he treated himself at the RAP and did light duty for two weeks.
It would seem that Dr Ellis has transposed the two incidents and when he refers to "exhibition ground", it's perhaps a short cut for saying, as the applicant said today, that a display was put on for senior officers. Dr Ellis continues:
After working as a clerk for 12 months he became a farmer in New South Wales for 12 months producing chickens and eggs. He had some trouble with his back. He could not do heavy ploughing, chopping wood, could not lift heavy equipment.
At page 3 of his report Dr Ellis notes:
His low back pain troubled him twice in the Army and then again 36 years ago (1961-65). The back pain has been fairly constant since 1990. About 1970 the left shoulder began to be painful again and gradually became worse.
Page 3, Dr Ellis comments:
This patient has degenerative changes affecting the whole of his spine, cervical, thoracic and lumbar, with significant disc damage in the lumbar region, significant spinal stenosis and facet joint arthritis. He has clear cut osteoarthritis of his right hip, not his left hip. This often indicates a traumatic cause for one hip affected, the other one not affected. He has osteoarthritis of his left shoulder and not his right, and the same principle of probable trauma applies. He worked in the RAP as a medical orderly at this time. He was able to carry on with "light duty" for two weeks. … He landed heavily in a parachute jump in 1944, injuring his feet and ankles. Again as a medical orderly he was able to carry on with light duty for two weeks.
After leaving the Army he had two brief periods of work on the land, 12 months on a chicken farm and eight or nine months
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©Auscript Pty Ltd 2000only on a dairy farm. He found using a milking machine caused his back pain to recur. On a farm at Fitzroy Falls from 1948 to 1949 he found that his back could not handle ploughing or chopping wood. He then returned to clerical work and continued that for the rest of his life.
I would only interpose and say, I understood the applicant to say he attempted farming three times. Dr Ellis continued:
… there is evidence in his history and on his physical signs, including x-rays, that his five years in the Army, including three years in a paratrooping unit and four years as an instructor in physical training and unarmed combat, has materially contributed to his left shoulder, right hip osteoarthritis, his sterno-clavicular osteoarthritis and his multiple intervertebral disc lesions and facet joint arthritis, particularly in the lumbar spine and present also in the cervical spine.
I consider that on the balance of probabilities his lumbar intervertebral disc lesions, his cervical intervertebral disc lesions, the osteoarthritis of his right hip, left shoulder and sterno-clavicular joints are attributable materially to his Army service.
The second report by Dr Ellis dated 14 July 1999, is also document T8, this time it's page 82, that report reads, inter alia:
The period when he had trouble with his back after his service in the Army was from 1961 to 1965, his left shoulder was injured in the parachute fall in 1944 and has been getting worse. In 1970, the left shoulder began to be painful again and gradually became worse. Irrespective of what has been stated on his claim form, Mr Ragen states that he first became aware of these problems in 1980, my impression is entirely different after taking his history. He had back pain in 1944 after two heavy parachute landings.
He had two weeks off on each occasion but because he was working in the RAP he could arrange adequate rest. His back pain continued particularly when he was a chicken farmer and when he worked on a farm which had machine milking. This continuity of mechanical pain is certainly within 25 years of his parachute physical stresses. He then retired to work as a clerk which he continued to do until the age of 71. The back pain has been fairly constant since 1990, but that was not when it commenced, it commenced in the Army and persisted when he was a chicken farmer and using a milking machine from 1961 to 1965. His Left shoulder was injured in a parachute fall and has been getting worse.
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Dr Ellis concludes that report by stating:
The clinical story seems to me to be so clear cut that there is little room to doubt the probability of his lumbar spondylosis, lumbar disc damage, osteoarthritis of his Right hip, Left shoulder and chest pain due to thoracic spinal spondylosis … is reasonably related to his service as a soldier and in particular to the stresses of 1944. I cannot see any reason why the time constraints do not permit these conditions to be acceptable as falling within the Statement of Principles of the Veterans' Entitlements Act 1986.
Exhibit A2, is a report by Professor Sambrook, Rheumatologist and reads inter alia:
A report by Dr Ellis, an Orthopaedic Surgeon, dated the 5th May 1999, considered there was a likely relationship between his arthritis in the above regions and his service as a physical instructor and in para-trooping unit.
I might also say that Professor Sambrook took a history, similar to that which the applicant gave today under the heading of, "Diagnosis", Professor Sambrook states:
Mr Ragen suffers from lumbar spondylosis, osteoarthrosis of the right hip, now replaced and osteoarthrosis of the left shoulder.
Under the heading, "Relationship to Service", Professor Sambrook states:
I have reviewed instrument 53/1998 for lumbar spondylosis and 42/1998 for osteoarthrosis and the two episodes he describes in 1944 would appear to satisfy the respective definitions of trauma, being discrete events with the sudden onset of pain and presumably restrictive movement lasting for up to 14 days. There is no documentation to support this other than Mr Ragen's history however. Since the revised history provided today in regard to the lumbar spine is of symptomatic back pain from the 1950s, this is certainly within the 25 years required according to factor 5(g) for lumbar spondylosis.
In regard to osteoarthrosis of the left shoulder and right hip, the evidence as to the clinical onset seems less clear, partly because of the long time that has evolved since the original injury and the consequence of Mr Ragen's poor memory. Dr
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Ellis notes the left shoulder began to become painful in about 1970 which is just at the threshold of 25 years.
The history of pain in the right hip seems to be less clear also, but no doubt this may be because Mr Ragen had trouble distinguishing his lumbar spondylosis from his hip pain, as referred pain is often felt in that region and vice versa. … Nevertheless there does appear to be a direct relationship between the lumbar spondylosis and his war service if the above history is accepted and the clinical onset as revised today is accepted.
I would only interpose to say that to my knowledge from sitting in this Tribunal, Professor Sambrook is very often called on behalf of the Respondent Repatriation Commission and to me, that gives his report in this matter a particular relevance. Exhibit R2 is a report by the applicant's treating rheumatologist, Dr Latt to the respondent, that report dated 15 March 2000 reads inter alia:
1.When was the onset of Mr Ragen's lumbar spondylosis and osteoarthritis of left shoulder and right hip? Radiological changes have been present for many years but were first documented in 1998. Since there is no previous radiological documentation of these areas, I am unable to determine with precision the exact onset of the above arthritic changes.
2.In all probability, his previous stated injuries could have resulted in his current disabilities and I would agree with Dr Ellis' reports.
3.From his description of the injuries which occurred more than 50 years ago, it would be difficult to exclude trauma as a contributory or causative factor of his current problems.
Asked to expand upon that report, Dr Latt in a report dated 29 August 2000, exhibit R3 stated under the heading "Duration or onset of osteoarthritis":
The natural history is variable and there is also poor correlation between symptoms and X-ray findings. It is therefore difficult to analyse the duration of the radiological changes or his symptoms.
I take it from those comments, that Dr Latt does not resile from her report of 15 March 2000. The respondent challenged the submission that the clinical onset of the applicant's osteoarthritis and lumbar spondylosis was 25 years after he suffered the relevant trauma. I agree that there are discrepancies in the applicant's account of
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events. So far as the initial claim for pension is concerned, the discrepancy with the applicant's now account of when he was first aware of the signs and symptoms of osteoarthritis and lumbar spondylosis is explained by his evidence that that particular form was not filled out by him. No doubt the applicant did not apply his mind to the full details as he should have.
The respondent also submitted that the applicant's now account of back problem and shoulder problems lasting since service was inconsistent with the history taken by Doctors Ellis and Latt. Dr Ellis took a history which I have stated previously in these reasons and I do not repeat now but I simply refer again to pages 78 and 83 of the section 37 documents. More importantly however, Dr Latt took a history which is in exhibit R4 as follows:
He was quite well until about 6 weeks ago when he began experiencing pain in the lower lumbar reion with radiation into the right lower limb. There had been no history of injury and he was previously playing squash regularly.
Compare this to the history taken by Dr Dunlop at page 16 of exhibit R4 being a report dated 4 August 1998:
He has been reviewed because of severe osteo-arthritis in his lumbar vertebra and hip as well as his shoulder which began in February this year and progressed fairly rapidly.
I have learnt from the Workers Compensation jurisdiction in this Tribunal to take a medical practitioner's history with caution particularly and especially if that doctor is not called. A lot depends upon the questions asked of the patient by the medical practitioner. For example, rapidly becoming painful may be short shorthand for signs and symptoms which were formerly present but suffered an exacerbation. In any event, I accept the applicant as a witness of truth and Dr Latt's reports to the respondent, exhibits R2 and R3, evidenced that she also accepts that the trauma suffered on service caused his current problems and in particular, radiological changes would have been present for many years.
Her second report does not detract from that comment. In cross examination, the applicant was asked about playing squash and bowls, the inference clearly being that undertaking these activities was inconsistent with pain from osteo-arthritis and lumbar spondylosis. The applicant's reply was that you had to try these things and he was not a chronic invalid. I note that he had to give both activities away because of pain and that squash was by no means at competition level but social. The applicant struck me as a
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©Auscript Pty Ltd 2000man who has always attempted to overcome his disabilities, hence his return to farming on two occasions after his initial failure brought about by inability to do the work because of back and shoulder pain.
As can be seen from his account of his service, he was a stoic, he worked through his pain. Having regard to all the material before me, I am reasonably satisfied that the applicant's case conforms to the statements of principles and that his conditions of lumbar spondylosis, osteo-arthrosis of the left shoulder and osteo-arthrosis of the right hip are war caused and that he is entitled to pension for incapacity occasioned by the said war caused diseases as and from 4 June 1998 and this matter is remitted to the Repatriation Commission in order that it can assess the rate of pension to be paid for all war caused injuries and diseases.
Before leaving this matter, there is one other comment I wish to make. In reading the Veterans' Review Board decision, it would appear that it does not understand the part a contribution plays. The fact that contribution is not mentioned in the SoPs does not make it the law that contribution cannot be considered. I recommend for their particular study, the case of Treloar v Australian Telecommunications Commission, 26 FCR 316, particularly at page 323 and they should compare and contrast that case with the remarks of his Honour, Hill J, in Casarotto v Australian Postal Corporation 86 ALR 399.
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