Re Williamson and Repatriation Commission
[2004] AATA 1185
•10 November 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1185
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/198
VETERANS' APPEALS DIVISION )
Re DAVID JOHN WILLIAMSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member BJ McCabe
Member SC FisherDate10 November 2004
PlaceBrisbane
Decision The Tribunal decides:
(a) to set aside the VRB decision under review of 13 November 2002 insofar as lumbar spondylosis is concerned and to accept this condition as being defence-caused with effect from 5 November 2001;
(b) to remit the matter of assessment of incapacity from lumbar spondylosis together with all previously accepted conditions to the Repatriation Commission; and
(c) to affirm that part of the VRB decision under review of 13 November 2002 refusing acceptance of post traumatic stress disorder, alcohol dependence and alcohol abuse and gastro- oesophageal reflex disease.
....................[Sgd].........................
BJ McCabe
Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – pensions and benefits – whether post traumatic stress disorder, anxiety disorder, alcohol abuse, gastro-oesophageal reflux disease are war-caused – whether raised facts fit Statements of Principles – decision affirmed
VETERANS’ ENTITLEMENTS – pensions and benefits – whether lumbar spondylosis is defence-caused – whether Statement of Principles is satisfied – decision set asideVeterans’ Entitlements Act 1986
Repatriation Commission v Stoddart [2003] FCAFC 300
Repatriation Commission v Deledio (1998) 83 FCR 82
Woodward v Repatriation Commission [2003] FCAFC 160
Stoddart v Repatriation Commission [2003] FCA 334
Byrnes v Repatriation Commission (1993) 177 CLR 564
McKenna v Repatriation Commission [1999] FCA 323REASONS FOR DECISION
10 November 2004 Senior Member BJ McCabe
Member SC FisherIntroduction
1. Mr Williamson is the applicant in these proceedings. He lodged a claim under the Veterans’ Entitlements Act 1986 (the Act) for medical treatment and a pension for incapacity from several conditions, including bilateral sensorineural hearing loss, fracture of the right lower leg, post traumatic stress disorder (PTSD) and alcohol abuse or dependence, gastro-oesophageal reflux disease and lumbar spondylosis. He says these conditions are related to his service in Vietnam.
2. The Repatriation Commission accepted liability for bilateral sensorineural hearing loss and fracture of the right lower leg. It rejected Mr Williamson’s contention that his other medical conditions (PTSD, alcohol abuse or dependence, gastro-oesophageal reflux disease and lumbar spondylosis) were service related, and made a decision to that effect on 26 April 2004. The Repatriation Commission’s decision was affirmed by the Veterans’ Review Board (the VRB) on 13 November 2002. From the VRB Mr Williamson lodged an appeal with this Tribunal, which heard the matter on 12 August 2004.
Background
3. The applicant was born on 13 January 1949. He served in the Royal Australian Navy from 27 August 1966 to 27 August 1976. His operational service was from 14 – 29 May 1969 aboard HMAS Vampire in Vietnam.
4. The applicant also rendered defence service from 7 December 1972 to his discharge on 27 August 1976.
The Material Before the Tribunal
5. The following documentary evidence was before the Tribunal:
Exhibit 1 Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents).
Exhibit 2Undated and unsigned statement of Mr Williamson relating to PTSD.
Exhibit 3Undated and unsigned statement of Mr Williamson relating to lumbar spondylosis.
Exhibit 4Report of Dr Robert Ivers, Orthopaedic Surgeon, dated 18 September 2003.
Exhibit 5Undated and unsigned confirmation of daily work tasks over 1972 – 1976 prepared by Mr Williamson.
Exhibit 6Repatriation Commission Questionnaire to Mr Williamson dated 29 May 2003.
Exhibit 7Undated and unsigned response by Mr Williamson to the Repatriation Commission Questionnaire dated 29 May 2003.
Exhibit 8Report by Writeway Research Service dated 22 October 2003.
Exhibit 9Supplementary Report by Writeway Research Service dated 30 April 2004
Exhibit 10Report of Dr Judith Gold dated 22 October 2003.
6. The applicant was represented by Ms Carter-Nicoll of counsel. The respondent was represented by Mr Williams, a departmental advocate. The applicant gave oral evidence. So did Dr Janis Carter (his psychiatrist).
The applicant’s evidence
7. Much of the applicant’s evidence was not in dispute. For convenience, we will consider evidence regarding psychiatric injuries separately from evidence of physical injuries.
Evidence regarding Psychiatric injuries (PTSD, Anxiety disorder, alcohol abuse)
8. The applicant cites four stressful events that occurred while he served on HMAS Vampire. He says they caused his psychiatric injuries.
9. The first stressful event occurred when the crew were informed of the possibility that the enemy could place limpet mines on the hull of the ship. The applicant described this situation (Exhibit 2):
“I served on HMAS Vampire and slept below the waterline. We were in and out of Vietnam waters and the ship was at action station (2nd degree of readiness) with all that entailed. We were cognisant of the fact that if the ship were damaged or sunk, we may not have made it out before she went down…..”
10. In his oral evidence, the applicant said he was “scared” of the possibility of limpet minds.
11. The second stressful event was the use of scare charges to deter enemy divers. The applicant said that he had not had any training or experience with scare charges before his deployment to Vietnam. He said the scare charges went off without any warning and were very loud. That caused him to go to the upper deck of the ship to see what was going on.
12. The third stressful event occurred when the applicant witnessed tracer fire from the ship. He said the tracer fire took place a “couple of kilometres from the ship” and that it was “ahead” of the ship, not directed at the ship. The applicant said he was worried about misdirected fire that might cause injury to him and to his shipmates.
13. The applicant also says the sinking of the USS Frank E Evans affected his psychiatric health. He described the incident in his statement:
I was on duty on Radar Watch in the Operations Room and heard over the radio loudspeaker and headphones, the Operator on the USS Frank E Evans saying they had been hit. At dawn we were witness to the accident and proceeded to escort HMAS Melbourne to Singapore Shipyards….My personal life has suffered immensely and it is my contention that this was caused by my service on HMAS Vampire.”
14. After these events the applicant says his consumption of alcohol increased “substantially”. He said he would get extra beer from shipmates who did not want their beer rations. In evidence, the applicant said his beer consumption was in the range of 12 – 16 cans per day after 1969. He said that when he could get hold of bourbon, he would drink about 10 nips per day mixed with Coke. The applicant said he developed “animosity” towards his shipmates, and was involved in several fights with them.
Evidence regarding physical injuries (lumbar spondylosis)
HMAS Vendetta
15. The applicant described his tasks while serving on HMAS Vendetta from 3 December 1975 to 27 August 1976. The ship was in dry dock. His tasks included carrying stores from the wharf to storage compartments on the ship. He said he would carry two 20 litre drums of paint at a time. He also said he painted the mess decks, and this involved shifting lockers around. The applicant described his tasks on the ship as follows (Exhibit 5):
“HMAS Vendetta 03.12.75 – 27.08.76
Position; Seaman painter Daily lifting tasks include carrying 29kg 20 litre x 2 drums of paint = 58 kg per lift. Then the lifting of goods off transport vehicle to lower deck compartments. Down ladders to mess decks = 58kg x 5 lifts x 5 days x 20 weeks = 29000kg
Daily lifting and transfer of lockers in mess decks of HMAS Vendetta; 45kg x 10 lifts x 5 days x 20 weeks = 45000kgs”
HMAS Kuttabul
16. The applicant described his tasks on HMAS Kuttabul (Exhibit 5):
“HMAS Kuttabul 3-6-74 – 31.12.74
Position; seaman fire chief Daily Lifting and transfer of fire extinguishers 24kg x 2 = 48 kg x 10 lifts x 5 days x 15 weeks = 33750kgs
Position; secretary Junior Sailors Club ctns beer 18kg x 2 = 36kg x 2 x 20 weeks = 1440kg”
17. He said his workstation was 50 metres from the elevator and that they were 150 fire extinguishers for which he had responsibility.
18. On his return to HMAS Kuttabul (after a short period of deployment in Darwin between 31 December 1974 to 21 January 1975 as part of the Cyclone Tracy Darwin Reconstruction), the applicant described his tasks as following:
“HMAS Kuttabul 13.1.1975 – 3.12.1975
Position; Seaman painter. Unloading from transport vehicle 29kg 20lt x 2 drums of paint = 58kg x 2 lifts x 5 days x 20 weeks = 11600kgs”
HMAS Supply
19. The applicant says he was deployed in Darwin between 31 December 1974 to 21 January 1975 as part of the Cyclone Tracy Reconstruction exercise. He was billeted onboard HMAS Supply and engaged in the cleanup of Darwin. During that time there were no mechanical aids to help clean up debris. He described the tasks he performed as part of this deployment (Exhibit 5):
“HMAS Supply 31.12.74 – 12.1.75
Position; seaman storing Ship for Cyclone Tracey Victims Darwin. Townsville. Lifting drums milk 20lt x 25kg x 2 = 50kg x 20 lifts x 1 day – 1000kg
Ctns beer 18kg x 2 = 36kg x 2 lifts x 25 = 1800kg
Potato sacks 40kg x 230 = 800kg
Radio 20kg x 2 = 40 kg x 20 lifts x 5 days = 4000kg
Frozen food 18kg x 2 x 100 lifts = 360kg”
20. In Exhibit 3 (the “Lumbar Spondylosis Incident Report”) the applicant describes how he sustained a back injury during this time:
“On the 6th January 1975 approx 0830 I was part of a working party to transfer equipment from the main deck to the helicopter deck (H deck), to be transported by Wessex helicopter from HMAS Melbourne, to our workplace in the suburbs of Darwin. This included our communication portable radios sets, which were loaded onto my shoulder and carried up the ladder, which was of vertical construction. This is the only way up or down to this deck. A normal safety guardrail and stanchions surround the deck. At the top of the ladder is a steel combing, which fully encloses the deck. The combing from recollection is approx 100 cm high.
On reaching the top of the ladder I tripped on the deck combing and fell forward and twisting to the side, reaching for the guardrail so as not to drop the equipment and felt a sharp pain in my lower back. It was very painful and I felt I had done damage, so I reported to the Sick Bay. I was seen by medical staff Lt Surg Blackmore RAN and given Panadol for the pain and stood down from further duties.
…..
I did not sleep for three (3) days, and was flown back to Richmond Air Force Base by Hercules aircraft, which was the first available flight out of Darwin. There were no X Ray facilities in Darwin.”
HMAS Melbourne
21. The applicant was deployed on HMAS Melbourne from 21 January 1974 to 3 June 1974. During this time he described performing a number of tasks (Exhibit 5):
“HMAS Melbourne 29.1.1974 – 3.6.1974
Position; Seaman storing ship. Stores Ctns beer 18 kg x 2 = 36kg x 2 lifts x 20 = 1400kg
Milk crates 20lt x 25kg x 2 = 50kg x 25 = 1250kg. Frozen food 18kg x 2 x 200 = 7200kg”
22. The respondent questioned him (Exhibit 6) about how much anchor cable he had lifted while on the Melbourne. In his response (Exhibit 7) he said:
“As FX part of ship on HMAS Melbourne, the requirement by the Captain is the anchors are prepared to be dropped at any time when entering or leaving harbour as a safety procedure. This would probably have been more than the 10 times I stated. HMAS Melbourne Report of Proceedings would confirm the exact amount of times this procedure was carried out during my term on HMAS Melbourne. This procedure is overseered by a Senior Seaman Officer (Lieutenant or Lieutenant Commander). The cable hooks are used to position the anchor cable to receive the anchor bottle screw, which secures the anchor in the anchor chamber on the ships bow. The weight estimated is very conservative and would be considerably more.”
23. In cross-examination the applicant said HMAS Melbourne entered and left harbour more than 10 times. Accordingly he would have lifted more than he had put down in his response to the questionnaire.
24. In total he said he lifted 235,316 kg (not 177,968 kg as recorded in Exhibit 5).
Evidence regarding physical injuries (Gastro-oesophageal Reflux Disease)
25. In evidence the applicant said that after 1969 his beer consumption was 12 – 16 cans per day. He said that when he could get hold of bourbon, he would drink about 10 nips per day (mixed with Coke). He said he stopped drinking in 2003.
Other Evidence
26. The applicant described parts of his family history that he thought relevant. He says he grew up as a child in a household where there was no alcohol consumed. He was first introduced to alcohol as part of his passing out parade in the Navy.
27. He described three marriages and their breakdown. His first marriage broke down in 1970 due to his alcohol consumption, his abusiveness towards his ex-wife and his “language”. His second marriage broke down in 1975 for much the same reason. His third marriage ended in 1985 because of his alcohol and marijuana consumption. He admitted he consumed marijuana from 1981 to 1986. He said he had ten relationships but none of them seemed to work out.
28. Commodore Allan Brecht (Retd) gave evidence on behalf of the respondent by telephone. He is the author of the two Writeway research reports, which were admitted into evidence by the Tribunal as Exhibits 8 and 9. Dr Judith Gold compiled a report dated 22 October 2003 (Exhibit 10). She gave evidence in person.
Summary of The Legislative Scheme
29. Section 14(1) of the Act renders the Commonwealth liable to pay a pension and medical treatment expenses for incapacity where a veteran has become incapacitated from a war-caused disease. The circumstances in which a disease is taken to be war-caused are set out in s 9(1) of the Act. They include where the disease arose out of or was attributable to eligible war service.
30. The standard of proof to be applied by the Repatriation Commission (and on review by the Tribunal) to the question whether a disease is “war-caused” where a claim relates to operational service is found in ss 120(1) and (3) of the Act.
31. In Repatriation Commission v Stoddart [2003] FCAFC 300 the Court clarified the operation of these sections, after referring to the decision of the High Court in Byrnes v Repatriation Commission (1993) 177 CLR 564. The Full Court in Stoddart said:
In substance, the appellant is required to find that a disease is war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. It is directed to be satisfied beyond reasonable doubt that there is no sufficient ground for making that determination if it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the disease with the circumstances of the operational service of the applicant.”
32. Section 120A says the reasonableness of the hypotheses must be assessed against the relevant Statements of Principles (SoPs) devised by the Repatriation Medical Authority.
33. In cases such as the present, the approach for decision makers is guided by the decision of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82. Before the Tribunal proceeds to the Deledio approach, it must be satisfied (to a standard of reasonable satisfaction) the applicant suffers from a medical condition.
34. The applicant’s claim regarding lumbar spondylosis is treated differently. That is because that condition is said to relate to defence service. The Delidio “reasonable hypothesis” approach is not followed – instead the Tribunal must simply test the applicant’s claim against the factors of the relevant SoP. For the applicant to be successful, the Tribunal must accept his or her claim to a standard of reasonable satisfaction.
Diagnosis
35. The first issue for the Tribunal is that of diagnosis. The question of whether a veteran suffers from a particular medical condition is decided to the reasonable satisfaction of the Tribunal: s120(4) of the Act. On the basis of the medical opinions before us we are satisfied the applicant suffers alcohol abuse, gastro-oesophageal reflux disease, and lumbar spondylosis. A diagnosis of PTSD is more problematic because it requires a “severe stressor”. As we explain below we are not satisfied any of the stressful incidents claimed by the applicant amounts to a severe stressor. However for the sake of completeness we have examined the claim in relation to PTSD as if the diagnosis had been made out.
Deledio Steps
36. In Deledio the Full Federal Court summarised (at 97) the four steps the Tribunal must follow in deciding whether a disease or injury is war-caused:
“1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force a SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war‑caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
37. We will deal with the claim in relation to lumbar spondylosis later in these reasons because that condition allegedly relates to defence service. Conditions related to defence service are governed by sections 120(4) and 120B(3) and (4) of the Act. While the Tribunal has reference to SoPs, the test is one of reasonable satisfaction, not reasonable hypothesis.
Application of the Law to the injuries alleged to be war-caused
The first Deledio step
38. The Tribunal must determine that the material before it gives rise to a hypothesis connecting the injury to the service rendered. Mr Williamson’s contention is that his medical conditions of PTSD, alcohol abuse or dependence, gastro-oesophageal reflux disease and lumbar spondylosis are related to service.
PTSD
39. We are satisfied there is a hypothesis connecting PTSD with service on board HMAS Vampire in Vietnam. The particular events were the notification of the prospect of limpet mines being placed upon the hull of the ship, the use of scare charges, the witnessing of tracer fire, and the USS Frank E Evans incident.
Alcohol Abuse or Dependence
40. There is also a hypothesis connecting the applicant’s alcohol abuse with his service on board HMAS Vampire in Vietnam. He says he began to drink heavily as a result of stressful incidents he experienced.
Gastro-oesophageal Reflux Disease
41. There is a hypothesis connecting the applicant’s gastro-oesophageal reflux disease with his service on board HMAS Vampire in Vietnam. He says the condition is related to his increased alcohol consumption that was itself connected to his service.
The Second Deledio Step
42. The second Deledio step is to determine the relevant SoPs. In this case, the relevant SoPs are:
¨ Post traumatic stress disorder: Instrument No 3 of 1999 as amended by Instrument No 54 of 1999.
¨ Anxiety disorder: Instrument No 1 of 2000.
¨ Alcohol dependence or alcohol abuse: Instrument No 76 of 1998.
¨ Gastro-oesophageal reflux: Instrument No 52 of 2002.
The Third Deledio Step
43. The Tribunal must then determine whether the facts as presented “fit” the SoP. Raised facts “fit” if they are consistent with the SoP: Woodward v Repatriation Commission [2003] FCAFC 160 at par 34. The Tribunal cannot make findings of fact at this point.
PTSD
44. Instrument No 3 of 1999 relevantly provides:
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder… with the circumstances of a person’s relevant service are:
(a) experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder
45. “Experiencing a severe stressor” is defined in the instrument:
“‘experiencing a severe stressor’ means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlement Act applies, events that qualify as stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence.”
46. Ms Carter-Nicoll said the events raised by the applicant fit the SoP as they are “severe stressors”. In particular she cited the decision of the Federal Court in Stoddart v Repatriation Commission [2003] FCA 334 at [50] and [51].
47. Accepting the applicant’s story, the questions for inquiry become:
¨ Do any of the events qualify as a “severe stressor”?
¨ If so, did the “severe stressor” take place prior to the clinical onset of post traumatic stress disorder?
48. We considered whether the events met the definition of “experiencing a severe stressor”. The test is a composite objective and subjective test: Stoddart v Repatriation Commission [2003] FCA 334, Woodward v Repatriation Commission [2003] FCAFC 160 at [111], [112], and [114]. In other words the event is interpreted objectively, but the feelings of anxiety or stress is a matter to be interpreted from the applicant’s perspective.
49. We accept the applicant experienced, witnessed or was confronted with events in the sense intended in the SoP. The critical issue here is whether the relevant event or events involved “actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.”
50. In Woodward, the Federal Court cited with approval the decision of Mansfield J in Stoddart v Repatriation Commission (2003) 197 ALR 283 where his Honour said:
“[50] In my judgment, the meaning of the word “threat” as used in the definition of “experiencing a severe stressor” does not require the construction or meaning contended for by the respondent and accepted by the Tribunal. The adjectival clause “that involved actual or threat of death or serious injury …” explains the nature of the event or events which must be experienced. It contemplates an objective and assessable state of affairs. I do not think it provides for idiosyncratic and personal perceptions of events which, judged objectively, do not in fact fall within the adjectival clause. But it does not follow that the “threat” there referred to must involve events which judged objectively and with full information involve an actual threat of death or serious injury. That construction would appear to go beyond the purpose of SoPs. It would involve the Repatriation Medical Authority in the two SoPs being interpreted as saying (for example) that on medical-scientific evidence PTSD cannot be related to operational service where events actually experienced, and which a person with the knowledge and in the circumstances of a particular claimant could reasonably lead to that person perceiving a threat of death or serious injury or to physical integrity, did not, judged objectively and with full knowledge of all the circumstances, in fact amount to such a threat. Such an interpretation would lead to excluding from the scope of the word “threat” a range of circumstances, some of which are referred to above, which commonsense indicates are matters not directly within medical-scientific evidence. That is, if a threat of serious injury or death is perceived by a claimant from actual events experienced in circumstances where, judged objectively with the knowledge and in the circumstances of the claimant, it was reasonable to perceive the threat, I do not understand it to be a medical-scientific opinion that no reasonable hypothesis can be raised connecting the condition resulting from those events with them. The definition of “sound medical-scientific evidence” in s 5AB(2) also indicates that the Repatriation Medical Authority would not intend to impose a prescriptive exclusion of the kind which would result from the interpretation of the SoPs which the Tribunal adopted.”
51. The Full Court in Woodward (at [137] ff) adopted the definition of “threat” used by Mansfield J in Stoddart. We understand there does not need to be an actual threat judged objectively and with full knowledge of all the circumstances. As the Full Court observed (at para 139):
“…the definition extended to a person experiencing or being confronted with an event involving threat of death or serious injury (etc), if the event said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it, was capable of conveying, and did convey, the risk of death or serious injury. In other words, “experiencing” should be construed as having at least this partially subjective connotation.”
52. Does the scare charge event amount to experiencing a severe stressor? Objectively, the applicant heard several scare charges explode. It is worth examining his statement where he recounts the incident (exhibit 2). He says:
During the time at anchorage eight (8) scare charges were despatched over the side. This procedure as I know it was to repel any enemy forces placing limpit mines on the ships hull. This procedure was made known to us…My intense fear was death or serious injury to limpet mine explosion on the ship’s hull.
53. It is clear from his statement the scare charge explosions did not distress him. Rather he was scared by the possibility of limpet mines. In any event the scare charge explosions cannot be relied on to satisfy a diagnosis of PTSD because on his own facts he did not experience feelings of “intense fear, helplessness or horror” (factor 2(A)(i) of the PTSD SoP).
54. What then of the possibility a of limpet mine explosion? Can this qualify as “experiencing a severe stressor”? We do not think it can, because the mere possibility of some terrible event occurring at some point is not an “event” in its own right.
55. Regarding the tracer fire, the applicant’s evidence was that he was worried about the prospect of misdirected fire that could cause him or his shipmates injury. Both applicant and respondent agreed the tracer fire was some distance from the ship. The applicant said it was a “couple of kilometres away”. We do not think witnessing tracer fire occurring a couple of kilometres away that was obviously not directed at the ship can amount to a severe stressor. Even if the event satisfies the objective element of the test, we think it must fail the subjective test: a reasonable person with the knowledge and experience of the applicant would not experience the necessary feelings of stress and anxiety in that situation.
56. The Tribunal had regard to the applicant’s undated and unsworn statement regarding the USS Frank E Evans incident (Exhibit 2). In cross-examination the applicant admitted he had heard about this incident by way of a broadcast over the loudspeaker system of his ship. He had not been a member of the boat party that performed a search for survivors at the collision site. We considered whether this event falls within the class of stressors including “witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence.”
57. The objective–subjective approach must be used to understand the event. First we examine the event objectively. The applicant did not witness casualties or take part in or observe casualty clearance. He heard about the collision over the loudspeaker. The event does not objectively amount to a “threat”. The precise meaning of that term was clarified in Repatriation Commission v Stoddart [2003] FCAFC 300 at [36] where the Full Federal Court accepted the definition of the trial judge as “an indication of probable evil to come: something that gives indication of causing evil or harm”. Hearing about the collision is not an indication of probable evil to come. Rather it is an indication of evil already done. The USS Frank E Evans incident cannot be a severe stressor on the basis it is a “threat of death or serious injury…to…another person’s physical integrity”.
58. What about the idea the incident represents actual death or serious injury? We do not think that the subjective element of the test is satisfied. A reasonable person with the applicant’s knowledge and experience would not have experienced the necessary feelings of stress and anxiety, upon hearing of a collision of two other ships over a loudspeaker. He was simply too far removed from the incident. The USS Frank E Evans incident does not qualify as a severe stressor.
59. We are not satisfied that the applicant experienced a severe stressor, even accepting his version of events. Factor 5(a) of the SoP has not been satisfied. It is not suggested any other factors can be met. The raised facts are not consistent with the SoP, therefore the hypothesis is not reasonable. The claim in relation to PTSD must fail at this point. (As noted above the experiencing of a severe stressor is necessary to the diagnosis of PTSD. Because we are not satisfied the applicant experienced a severe stressor, we are not satisfied to the requisite standard that he suffers PTSD).
Anxiety disorder
60. In the alternative to PTSD the applicant says he suffers anxiety disorder, that is related to service. Given our conclusions about PTSD, we are satisfied on the balance of the medical evidence the apparent psychiatric injuries experienced by the applicant can be explained by a diagnosis of anxiety disorder.
61. We are satisfied a hypothesis exists connecting the applicant’s anxiety disorder with the circumstances of his service, namely the experiencing of the incidents described above at par 8-13.
62. The relevant SoP is Instrument No 1 of 2000. It relevantly states:
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder…with the circumstances of a person’s relevant service are:
(a) for generalised anxiety disorder or anxiety disorder not otherwise specified, only
(ii) experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or
(iii) having a clinically significant psychiatric condition within the two years immediately before the clinical onset of anxiety disorder…
The term “severe psychosocial stressor” is defined in the instrument as:
“severe psychosocial stressor” means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems…
63. In assessing whether the applicant’s story is consistent with the SoP, the Tribunal must conclude whether any of the incidents experienced by the applicant amounts to a severe psychosocial stressor. We do not think any do.
64. By his own evidence the dropping of scare charges did not distress the applicant in their own right. He says “the procedure [of dropping scare charges] was made known to us” (Exhibit 2). Because the incident did not evoke the necessary feelings of substantial distress in the applicant, it cannot satisfy the definition of “severe psychosocial stressor”.
65. The next incident was the applicant’s fear of the possibility of a limpet mine explosion on the ship’s hull. Ongoing fear about what may possibly occur is not an “identifiable occurrence”. The incident does not meet the definition of “severe psychosocial stressor”.
66. The third incident was the applicant’s witnessing of tracer ammunition being fired. The gunfire occurred some kilometres away, and it was not directed at the applicant’s ship. We accept it is an “identifiable occurrence”. What of the applicant’s feelings? He says “my intense fear was of misdirected fire that could result in death or serious injury to myself”. In White v Repatriation Commission [2004] FCA 633 the Federal Court clarified the test in relation to severe psychosocial stressors. Essentially, the test has both objective and a subjective elements akin to the test for severe stressors. Spender J said (at [28-29]):
The reference to "an identifiable occurrence" is objective…The reference to "experiencing" a severe psychosocial stressor has a subjective element.
67. He then refers to the objective/subjective test in Stoddart with approval.
68. While we accept the “identifiable occurrence” we do not accept this occurrence would evoke the necessary emotions in a reasonable person with the applicant’s knowledge and experience. He could not have formed the view he was in any danger. The event does not satisfy the definition of “severe psychosocial stressor”.
69. Finally we examine the USS Frank E Evans incident. Can it be a severe psychosocial stressor? While we accept hearing about a collision over a loudspeaker would be distressing, we do not think it satisfies the definition. While the examples of stressors given in the SoPs are not an exhaustive list, they do provide guidance as to the nature and level of intensity required by stressors. This stressor does not meet that threshold. We note Mr Williamson did not say he knew any of the sailors on board HMAS Melbourne or the USS Frank E Evans, so the incident is not akin to hearing about the injury of a close friend or relative. There is nothing to suggest Mr Williamson was otherwise personally connected to the collision. We cannot see how the incident would have affected Mr Williamson more than it did the other sailors on his vessel, and there is nothing in his background or experience to suggest he would be especially vulnerable. This incident does not satisfy the definition of “severe psychosocial stressor”.
70. None of the incidents relied upon by the applicant satisfies the definition of “severe psychosocial stressor”. Factor 5(a)(ii) is not met. Given our earlier conclusions, it is clear he did not have a (service-related) clinically significant psychiatric condition either, so factor 5(a)(iii) is not met. The hypothesis connecting anxiety disorder to service is not reasonable, and his claim in relation to that condition must fail at this point.
Alcohol Dependence or Alcohol Abuse
71. The applicant says his alcohol dependence stemmed from his service on board HMAS Vampire in Vietnam. The applicant said his consumption of alcohol increased “substantially” after the events described. The relevant SoP is Instrument No 76 of 1998. That instrument relevantly states:
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse… with the circumstances of a person’s relevant service are:
(a) suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or
(c) suffering from a psychiatric disorder at the time of the clinical worsening of alcohol dependence or alcohol abuse; or
(d) experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse…
72. In this case, the applicant attempted to satisfy either factor 5(b) or factor 5(d). Factor 5(a) or 5(c) could also be satisfied if the applicant showed he suffered a clinically significant psychiatric disorder that was related to service. Applying the third step of Deledio, do the facts as reported by the applicant ‘fit’ the SoP?
73. Did the applicant experience a “severe stressor”? That term is defined in the instrument as meaning:
the person experienced, witnessed or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence.”
74. The events relied upon to satisfy the definition are the same as discussed above in relation to PTSD. The difference between the definitions of “experiencing a severe stressor” in the Alcohol Dependence SoP and the PTSD SoP is the inclusion in the former Instrument of qualifying words that the event “… might evoke intense fear, helplessness or horror.”
75. We do not think it necessary to reconsider the events in light of the different definition of “experiencing a severe stressor”. That definition differs only by adding a qualifier. The applicant must still have “experienced, witnessed or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity”. If the applicant did not experience an event of this nature, he cannot satisfy the definition, regardless of the qualifier. The subjective-objective test still applies here. We have established above that the events do not meet the definition in the PTSD SoP. They do not meet the definition in the Alcohol Abuse or Dependence SoP either.
76. In any event, when we take the applicant’s story at face value we have serious doubts as to whether the events are capable of evoking feelings of “intense fear, helplessness or horror”.
77. The applicant cannot satisfy factor 5(b) or 5(d) because he did not experience a “severe stressor” as that term is defined in the SoP.
78. We have established above that the applicant was not suffering a service-related psychiatric disorder at the relevant time either. Factor 5(a) and 5(c) are not satisfied.
Gastro-oesophageal Reflux Disease
79. The applicant claimed his gastro-oesophageal reflux disease is service related. Instrument No. 52 of 2002 relevantly provides:
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting gastro-oesophageal reflux disease… with the circumstances of a person’s relevant service are:
…
(d) suffering from alcohol dependence or alcohol abuse and consuming alcohol at the time of the clinical onset of gastro-oesophageal reflux disease
80. We have determined above that the applicant’s alcohol dependence or abuse is not war-caused. Where a hypothesis (here, that gastro-oesophageal reflux disease is war-caused) includes one or more sub-hypotheses (here, that alcohol abuse is war-caused), the sub-hypothesis must be reasonable for the hypothesis to be reasonable. As the Full Court of the Federal Court said in McKenna v Repatriation Commission [1999] FCA 323: “A complex hypothesis…can be no stronger than each of its elements or parts”. Therefore factor 5(d) is not satisfied. There was no suggestion any other factor could be met. The hypothesis connecting gastro-oesophageal reflux disease with service is not reasonable. That claim must fail at this point.
Lumbar Spondylosis
81. The applicant claims his lumbar spondylosis is related to his defence service. The events that caused medical condition are described above in par. 15-23. The relevant SoP is Instrument No 47 of 2002 as amended by Instrument No 78 of 2002. It relevantly provides:
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting lumbar spondylosis… with the circumstances of a person’s relevant service are:
(g) suffering a trauma to the lumbar spine within the 25 years immediately before the clinical onset of lumbar spondylosis; or…
(i) manually lifting or carrying loads of at least 35 kg while weight bearing to a cumulative total of 168 000 kg within any 10 year period, before the clinical onset of lumbar spondylosis, and where such physical activity has ceased, the clinical onset of lumbar Page 3 of 7 of Instrument No. 47 of 2002 spondylosis has occurred within the 25 years immediately following such activity; or…
(v) manually lifting or carrying loads of at least 35 kg while weight bearing to a cumulative total of 168 000 kg within any 10 year period, before the clinical worsening of lumbar spondylosis, and where such physical activity has ceased, the clinical worsening of lumbar spondylosis has occurred within the 25 years immediately following such activity; or…
82. We note the applicant had exactly 10 years of service in the Navy (27 August 1966 to 27 August 1976). The evidence led on behalf of the applicant concerning lumbar spondylosis is detailed above at par 18-25.
83. The respondent vigorously contested the applicant’s claim. It relied heavily on the first Writeway Research Report (Exhibit 9), contending the applicant had lifted much less than 168,000 kg within the 10 year period. The respondent said the applicant had lifted weights to a total of 17,811 kg. Their contentions are set out next.
HMAS Vendetta – 3 December 1975 – 27 August 1976
84. The respondent says during the period the applicant was on HMAS Vendetta from 3 December 1975 to 27 August 1976 he was on recreation leave from 8 June 1976. Therefore his duties on HMAS Vendetta were from 3 December 1975 to 7 June 1976. This is a period of 187 days.
85. The applicant worked 5 days per week while on shore and had “Duty Watch” every 4th day. The days available for other duties would be 100 for this period (126 x 5/7 x 3/4).
The applicant’s claim re: Paint Drums
86. The applicant said he was required to carry 2 x 20 litre paint drums weighing 29 kg each. He states he did this for 20 weeks for 5 days per week (100 days).
87. The respondent says there would appear to be no necessity for the applicant to carry two (2) twenty (20) litre drums of paint five (5) times per day as claimed. Additionally the respondent raises the issue that as the paint is used the drums would become lighter. Obviously in a twenty litre drum if four litres are used the weight would drop by approximately 20%. Therefore the drums would weigh approximately 23.2 kg each. If 8 litres are used the drums would weigh approximately 17.4 kg each. Therefore as soon as the paint drums were 2/5’s used, the combined weight of the 2 by 20 litre paint cans would be 34.8 kg which is under the 35 kg minimum required by the relevant factor in the Statement of Principles.
88. These cans of paint would only meet the necessary criteria for the first two lifts. Additionally, the applicant confirmed to the Veterans’ Review Board that he only used one drum of paint at a time when painting (paragraph 36, T104). Therefore as a full 20 litre drum of paint weighs 29 kg, then, while painting, the applicant could not have lifted 35 kg or greater as required by the Statements of Principles.
89. The best scenario that could therefore be achieved by the applicant if the Tribunal accepts that he was lifting two cans of paint, would therefore be 1 lift per day for 100 days. On these figures the calculations would be 58 kg x 1 x 100 = 5,800 kg and not the 29,000 kg as claimed.
The applicant’s claim re: Air Compressor
90. The applicant said he lifted an Air Compressor 3 days per week during this period. The machine weighed 150kg, and he was assisted by another sailor.
91. The Writeway researcher notes that for practical purposes any air compressor on a ship must be small enough to be manhandled down ladders and hatchways. Larger machines are impractical. The Writeway researcher has attached a brochure on air compressors of the type normally used by the Navy and notes that the weight of these machines is between the ranges of 45-68 kgs.
92. In a two-man lift, as claimed by the applicant, each sailor would be lifting between 22.5 and 34 kgs which is below the minimum requirement for the necessary factor in the Statement of Principles.
93. Therefore, in contrast to the weight lifted being claimed by the applicant of 4,500 kg for this period, the respondent submits that the correct amount lifted under the Statements of Principles is nil.
The applicant’s claim re: Kit Lockers
94. The applicant said he lifted 10 kit lockers each day for 20 weeks while painting HMAS Vendetta. That amounts to 1000 lockers in total. The Veterans’ Review Board expressed doubt about this number, considering the HMAS Vendetta only had a crew of 300 and that there was another sailor to assist the applicant in this task (paragraph 36, T105).
95. The applicant confirms the Engineers’ Mess deck he painted held 30 sailors. The respondent therefore submits that at maximum he moved therefore 30 lockers. The applicant confirmed in the same statement that the weight of the lockers claimed at 45 kg is only an estimate. The researcher from Writeway Research Service confirms that the weight of a metal kit locker when empty is approximately 15 kg. Therefore a triple tier of lockers would weigh approximately 45 kg. The researcher, however, considers that due to the bulk of a triple tier kit locker they would be moved by more than one person.
96. The respondent submits the movement of a kit locker would be by two sailors. Therefore the weight moved would be 45 kg by 2 persons or 22.5 kg per person. This amount is below the minimum required under the Statement of Principles and therefore this weight cannot be considered in the calculation of weight lifted under factor 5(i) of the Statements of Principles for lumbar spondylosis.
97. Therefore while the applicant claims he lifted 45,000 kg here, the respondent submits that the weight carried for the purpose of the Statements of Principles is nil.
HMAS Kuttabul
The applicant’s claim re: Fire Extinguishers
98. HMAS Kuttabul is a shore establishment. The applicant said that during his time at HMAS Kuttabul he lifted 1,500 fire extinguishers over the period 3 June 1974 to 31 December 1974. The Veterans’ Review Board addressed the issue of the fire extinguishers. They considered the claim of 1,500 fire extinguishers to be excessive.
99. In a response to questions posed by the respondent, the applicant advised HMAS Kuttabul had eight stories on the South Wing and seven stories on the West Wing. Each floor of each wing had two fire extinguishers. There was therefore a total of 30 extinguishers (7 floors x 2 + 8 floors x 2 = 30). This does not seem to accord with the applicant’s statement that he lifted 20 extinguishers per day, 5 days a week for 15 weeks for a total of 1,500 lifts.
100. The researcher noted there are two types of fire extinguishers at RAN shore establishments:
“Water extinguishers consist of a container weighing 12 kg holding fresh water into which is placed a steel cylinder charged with carbon dioxide (CO2 ) under pressure. When filled a water extinguisher weights approximately 18 kg. Foam extinguishers consist of an outer cylinder containing a solution of bicarbonate of soda and a stabilising substance, and an inner containing a solution of aluminium sulphate. When the cylinder is turned upside down and shaken, the liquids mix and form foam which is discharged from the nozzle. A filled foam extinguisher weights 13 kg.”
101. The Writeway researcher further advised that little maintenance is required for water extinguishers except for pressure checking every six months. Daily lifting of each one is not necessary.
102. The respondent notes that to perform 1,500 lifts on 30 fire extinguishers the applicant would have had to lift each extinguisher 50 times.
103. The respondent contends that even if the applicant had to lift an extinguisher, due to the location of the extinguishers and because water extinguishers are normally located apart the applicant would have only lifted one extinguisher at a time. As the weight of a water extinguisher is 18 kg, the lifting of one extinguisher does not meet the necessary minimum for the Statements of Principles.
104. Even if the applicant lifted a water extinguisher and a chemical extinguisher together, their combined weight would only total 31 kg (13 kg + 18 kg) which again is not sufficient.
HMAS Supply – 31 December 1974 to 12 January 1975
The applicant’s claim re: Milk Drums, Frozen Food, Potato Sacks, Blankets, Radios
105. The researcher confirms that the applicant was seconded from HMAS Kuttabul to HMAS Supply for the duration of this operation. The researcher also supports the applicant’s contention that he helped to load provisions but notes frozen meat was loaded on board in a container rather than by hand. The researcher notes 20 litres of milk weighs 11 kg and an empty can weighs 4 kg. Therefore it would be reasonable to assess the drums of milk as weighing 15 kg each. If the applicant lifted two drums at a time then he would be lifting 30 kg.
106. This is less than the minimum required by the SoP. The researcher notes that there is no record of the actual food items embarked by HMAS Supply. However as items would have been supplied in large quantities it is possible potato sacks and packs of blankets weighing 40 kg would have been loaded. Therefore, it is possible the applicant lifted in total 800 kg of potatoes and 800 kg of blankets as claimed. Therefore, the applicant could have lifted up to 1,600 kg which would meet the Statements of Principles.
107. The researcher notes the applicant has not advised of the type of radio that he claims to have lifted. However the researcher says portable shortwave radios used by the Navy weighed about 8 kg and portable high frequency radios weighed between 15 – 20 kg.
The applicant’s claim re: Washing Machines, Refrigerators and Clothes Dryers
108. In regard to the lifting of washing machines, refrigerators and driers, the researcher notes that it is not possible to verify the applicant’s contention in this matter but confirms the Navy carried out work on shore and the applicant was involved in this work.
109. However, the respondent raises the issue that the applicant would not have been performing such tasks unaided. It is hardly likely or logical that he would have lifted a refrigerator, washing machine and clothes dryer by himself. He was more likely to do the work as part of a team. The applicant says the washing machines weighed 80 kg. The respondent’s research indicates they probably weighed between 44 kg and 66 kg (shipping weight). Unpacked they would weigh slightly less. Therefore, with a two man lift the weight lifted per person would be between 22 kg and 33 kg, which is below the minimum required for the Statements of Principles.
110. A refrigerator would weigh approximately 80 kg shipping weight and therefore for a two man lift would be 40 kg per man. According to research supplied by the respondent a clothes dryer would weigh between 27 kg and 29 kg (shipping weight), which is below the minimum required under the SoP.
111. The respondent then calculates that if the applicant lifted 14 refrigerators over 7 days as per his statement then he lifted in total 560 kg (14 refrigerators x 40 kg in an assisted lift) and not the 2,800 kg as claimed.
HMAS Melbourne – 29 January 1974 To 3 June 1974
112. The applicant says he lifted milk crates and frozen food to a total of 8,450 kg during this period. The weight of the milk crates has been discussed previously and at 15 kg gross weight the applicant would not meet the requirements of the Statements of Principles even if two at a time were lifted.
113. The respondent submitted that even if the loads were not lifted by the “chain gang” method as mentioned, at most the total weight lifted during this period can only attain 7,200 kg.
The applicant’s claims re: Lifting of Anchor Cable with Cable Hook
114. The applicant said he lifted an anchor cable link weighing 100 kg x 2 men and did this 100 times over a 10 day period.
115. The researcher notes that in the period the applicant was on HMAS Melbourne, the ship entered or left harbour 23 times. The ship therefore readied the anchors 23 times. The researcher notes that the applicant would have been required to participate in anchor preparation on the cable deck but it is not known if he would have participated on each occasion.
116. The respondent noted that even if the anchor links were lifted manually, as the anchor links weigh 43.2 kg and were lifted by two sailors, the average weight lifted by each sailor would be 21.6 kg. That is less than the minimum required by the Statements of Principles. Therefore this weight is not assessed.
117. As the bottlescrew slips weigh approximately 72.3 kg each, and even allowing that the applicant was unfortunate enough to assist with lifting the bottlescrew slip on each occasion, then the maximum amount lifted by the applicant would have been 72.3 kg divided by two sailors = 36.15 kg. This meets the requirements of the Statements of Principles. Therefore, if this is calculated the total amount lifted is 831.45 kg. This is significantly less than the 50,000 kg claimed by the applicant for lifting the anchor cable and the 7,500 kg claimed by the applicant for the lifting of anchor bottlescrew slip.
Applicant’s claim re: Lifting of Compressor to operate Air Gun for maintenance on Cable Deck
118. The applicant claims that the air compressor weighed 150 kg. The respondent noted the research and information provided by the researcher and relied on the information contained at paragraphs 93 – 96. The respondent submitted the minimum requirement of the Statement of Principles is not met.
HMAS Brisbane – 7 December 1972 To 16 July 1973
Applicant’s claim re: Storing Paint on the Ship
119. The applicant said he lifted 29 kg x 2 x 2 lifts x 26 weeks for a total lift of 3,016 kg. This equates to 2,080 litres of paint or 104 cans of paint. However, in his letter received from his representative dated 3 July 2003 in response to a questionnaire from the respondent of 29 May 2003, the applicant advised:
“Q24. It appears an oversight or duplication of drums of paint. My employment as a painter was only a temporary one, while preparing for Admirals inspection. Refer to Question Q20a.”
120. This claim of 3,016 kg is therefore to be disregarded.
121. The respondent noted the applicant was involved in a motorcycle accident on 2 July 1973 where he sustained a compound fracture of the right tibia and fibula.
122. The applicant’s records show that he was on HMAS Brisbane from 18 October 1971 until 31 July 1973. The period of eligibility under the Act is from 7 December 1972. As the applicant had a motorcycle accident on 2 July 1973 and was on recreation leave for 20 days from 1 December 1972, and 21 days from 23 April 1973, the total number of days that he could have been on duty was 170 days. As the applicant has already advised in his statement of 21 May that he worked for 5 days per week and was on duty watch every 4th day, then this figure of 170 days must be adjusted. 170 days divided by 5 days per week = 170 x 5/7 = 121.43 days.
123. As he was on “duty watch” every 4th day, this figure must be again adjusted. 121.43 x ¾ = 91.07. This gives a total of 91 working days during this period when the applicant could have carried out the duties as claimed.
124. The applicant claimed he lifted two milk crates per lift at 25 kg per lift, twice per week for 26 weeks for a total of 3,016 kg. As the information provided by the researcher has shown that drums of milk weigh 15 kg each, then the applicant by lifting two drums of milk is only lifting 30 kg which is below the minimum to satisfy the SoP. Therefore this lifting cannot be used in calculations for weights lifted.
125. (We assume the researcher has made a typographical error, because 20 litres of milk weighs more than 11 kg. In fact it weighs more than water. That means 20 litres of milk weighs more than 20 kg. Nevertheless this does not materially affect the outcome of the respondent’s claims).
126. The applicant said he lifted frozen food of 18 kg at 2 cartons per lift 5 times per day for 13 weeks. He claimed to have lifted 11,700 kg. Using the 91 working days in this period as calculated above, and halving it for a 13 week period we arrive at 18 kg x 2 cartons x 5 times per day for 45.5 days = 8,190 kg lifted.
127. The applicant claims to have lifted a potato sack each working day for 13 weeks (40 kg x 5 x 13 weeks) for a total lift of 5,200 kg. Again, using 45.5 working days x 40 kg per day = 1,820 kg.
The respondent’s total
128. By the respondent’s calculations, the applicant lifted a total of 17,811 kg at best. That is well short of the 168,000 kg minimum required by the SoP, and well below the claimed amount of about 235,316 kg.
Consideration
129. We are faced with conflicting accounts concerning the weight carried by the applicant during his relevant service. The Tribunal had the benefit of detailed evidence of actual or probable (where reconstruction was required) naval work procedures associated with the movement of paint drums, air compressors, kit lockers, fire extinguishers, heavy white goods, anchor cable and perishable food. We accept the applicant honestly believes he lifted in excess of 168,000 kg. Commodore Brecht (the author of the two Writeway Research Reports) was cross-examined about his calculations of the weights lifted by the applicant. The cross-examination did not shake those calculations or show them to be unreliable or flawed by an inappropriate methodology. Taking into account the detailed evidence led by the respondent about the naval working practices associated with the movement of the goods described earlier, on balance the Tribunal preferred the evidence led by the respondent over the evidence led by the applicant on the issue of the application of Factors 5(i) and 5(v). This means that the applicant has not been able to ‘fit’ his version of events to the SoP in the case of Factors 5(i) and 5(v).
130. Based upon the material before the Tribunal, the Tribunal considered whether Factors 5(g) and 5(t) were relevant. These Factors provide:
“5(g) suffering a trauma to the lumbar spine within the 25 years immediately before the clinical onset of lumbar spondylosis;
….
5(t) suffering a trauma to the lumbar spine within the 25 years immediately before the clinical worsening of lumbar spondylosis.”
131. The term “suffering a trauma to the lumbar spine” is defined later in the instrument:
“‘trauma to the lumbar spine’ means a discrete injury to the lumbar spine that causes the development, within 24 hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the lumbar spine. These symptoms and signs must last for a period of at least 10 days following their onset; save for where medical intervention for the trauma to the lumbar spine has occurred, where that medical intervention involves either:
(a) immobilisation of the lumbar spine by splinting, or similar external agent; or
(b) injection of corticosteroids or local anaesthetics into the lumbar spine; or
(c) surgery to the lumbar spine.”
132. It was common ground between the parties that the discrete injury to the lumbar spine experienced by the applicant was the incident in January 1975 when he was carrying portable radios up a letter to a helicopter deck when he fell forward sustaining a twisting injury to his back. The evidence of the applicant (supported by material in the T-documents) indicates the symptoms began immediately and have continued to the present day. The only medical interventions the applicant received was to get pain relief from ship’s surgeon. There were no medical interventions of the nature described in the definition of “trauma to the lumbar spine” in the SoP.
133. In a medical report of 27 February 2002 Dr Dreiling opined the trauma to the lumbar spine resulted in symptoms within 24 hours, of pain, tenderness and altered mobility or range of movement of the lumbar spine. The respondent disputed the date of occurrence of the incident and also the extent to which the injury prevented the applicant from working. In effect, the respondent argued that even accepting the applicant’s version of events, the requisite effect (i.e. altered mobility or range of movement of the lumbar spine) could not have been produced by that trauma if he was able to work as a quartermaster. The VRB was unable to reconcile the definition of trauma in the relevant SoP with the fact that the applicant resumed heavy lifting within six days after the injury. In the opinion of the Tribunal, the conclusion does not necessarily follow. There is clear medical evidence that the applicant sustained a discrete injury to his lumbar spine that resulted in symptoms within 24 hours, of pain, tenderness and altered mobility or range of movement of the lumbar spine. The SoP does not require that the applicant be unable to perform any duties at all following the discrete injury to the lumbar spine. On the basis of the evidence before it, the Tribunal was satisfied the applicant experienced a “trauma to the lumbar spine”. Accordingly, the Tribunal was satisfied that the applicant’s version of events is consistent with factor 5(g) of the SoP.
Findings concerning Lumbar Spondylosis
134. In this case it has only been necessary to engaging in fact-finding in relation to the lumbar spondylosis claim. This aspect of the case deals with whether the lumbar spondylosis can be related to relevant service rendered by the applicant. The type of service is defence service. This brings into operation sections 120(4) and 120B(3) and (4) of the Act, which provide:
“120(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re‑assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
120B(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war‑caused or defence‑caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12); or
(ii) a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
120B(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; or
(c) the kind of death met by the person;
as the case may be.”
135. Accordingly, the Tribunal is to decide the issue of liability for the applicant’s lumbar spondylosis to its reasonable satisfaction in accordance with any SoP issued by the Repatriation Medical Authority or any relevant determinations or declarations under the Act. The relevant SoP has been identified above as Instrument No 47 of 2002 as amended by Instrument No 78 of 2002.
136. Based on the evidence and material before it, the Tribunal finds that:
(a)The applicant suffered a discrete injury to the lumbar spine on or about 6 January 1975.
(b)The injury to the lumbar spine caused the development, within 24 hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the lumbar spine.
(c)These symptoms and signs have lasted to the present day following their onset.
137. The date of effect for this decision is from 5 November 2001.
Tribunal’s Conclusion
138. For these reasons, the Tribunal decides:
(a)to set aside the VRB decision under review of 13 November 2002 insofar as lumbar spondylosis is concerned and to accept this condition as being defence-caused with effect from 5 November 2001;
(b)to remit the matter of assessment of incapacity from lumbar spondylosis together with all previously accepted conditions to the Repatriation Commission;
(c)to affirm that part of the VRB decision under review of 13 November 2002 refusing acceptance of post traumatic stress disorder, alcohol dependence and alcohol abuse and gastro-oesophageal reflex disease.
I certify that the 138 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member BJ McCabe and Member SC Fisher
Signed:
Associate
Date/s of Hearing: 12 August 2004
Date of Decision: 10 November 2004
The applicant was represented by Ms Carter-Nicoll of counsel.
The respondent was represented by Mr Williams, a departmental advocate.
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