Riethmuller and Repatriation Commission
[2004] AATA 1289
•2 December 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1289
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2003/488
VETERANS' APPEALS DIVISION ) Re MAXWELL RIETHMULLER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr S. Webb, Member Date2 December 2004
PlaceCanberra
Decision
The decision under review concerning lumbar spondylosis is affirmed.
..............................................
Mr S. Webb, Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Disability Pension - lumbar spondylosis – eligible war service – reasonable satisfaction - Statements of Principles – clinical onset – requisite elements of connection not raised by the material - decision affirmed
Veterans’ Entitlements Act 1986 ss 7, 9, 13, 120, 120B, 196B
Repatriation Commission v Smith (1987) 74 ALR 537
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
Lees v Repatriation Commission [2002 FCAFC 398
Repatriation Commission v Hill [2002] FCAFC 192
REASONS FOR DECISION
December 2004 Mr S. Webb, Member 1. By this application Maxwell Riethmuller is seeking relief from a decision of the Repatriation Commission (“the Commission”), as affirmed by the Veterans’ Review Board (“the VRB”) on 4 December 2002, to reject his claim for acceptance of lumbar spondlosis as war caused.
2. The matter came on for hearing in Canberra on 19 November 2004. Mr Riethmuller represented himself and gave oral evidence. The Commission was represented by Mr M. Huthnance, Commission advocate. Dr D. Millons gave oral evidence. Materials were tendered and labelled as exhibits.
factual context
3.The following facts arise from the material and are not in dispute.
4. Mr Riethmuller (date of birth: 11 February 1926) enlisted in the Royal Australian Air Force (“RAAF”) from 24 March 1944 to 21 September 1945 (Exhibit R2). Thereafter until his retirement from the workforce Mr Riethmuller was employed in the Australian Public Service, principally in the Department of Taxation.
5. On 27 March 2002 Mr Riethmuller lodged a claim for disability pension in relation to lumbar spondylosis and sensorineural hearing loss (T4). On 2 September 2002 a delegate of the Commission determined to reject Mr Riethmuller’s claim in relation to lumbar spondylosis and to accept his claim in relation to sensorineural hearing loss. A disability pension at 10% of the general rate was granted from 21 December 2001 (T2 folio13).
6. On 25 June 2003 the VRB affirmed the decision to reject Mr Riethmuller’s lumbar spondylosis claim (T8). On 30 January 2004, having been granted an extension of time, Mr Riethmuller made application to the Administrative Appeals Tribunal (“the Tribunal”) for review of the Commission’s decision concerning lumbar spondylosis (T1).
issues for determination
7. It is not in dispute that Mr Riethmuller has eligible war service and that he suffers from lumbar spondylosis. The issue for determination is whether Mr Riethmuller’s lumbar spondylosis is war-caused.
legal principles
8. Mr Riethmuller’s application rises for consideration under the Veterans’ Entitlements Act 1986 (“the Act”). Under the Act the Commonwealth is liable to pay a veteran who is incapacitated by a war-caused injury or disease (s 9) a pension by way of compensation (s 13).
9. As Mr Riethmuller has eligible war service (s 7) the reasonable satisfaction standard of proof applies (ss 120(4)). Beaumont J discussed the meaning of the term “reasonable satisfaction” in Repatriation Commission v Smith (1987) 74 ALR 537 and observed at 547:
“There is, in this connection, a distinction of substance to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other.”
10. For claims brought after 1 June 1994 reference is to be had to any relevant SoP. For Mr Riethmuller’s claim to succeed I must be reasonably satisfied that the material before me raises a connection between his lumbar spondylosis and the circumstances of his eligible service that is consistent with the relevant SoP (s 120B). The SoPs set out factors that, as a minimum, must exist before it can be said that there is a connection between the claimed disease and the person’s relevant service. The applicable factor in any case must be related to the relevant service (ss 196B(14)).
summary findings
11. Mr Riethmuller has eligible war service from 24 March 1944 to 21 September 1945.
12.Mr Riethmuller suffers from lumbar spondylosis.
13. The applicable SoP concerning lumbar spondylosis is Instrument Number 47 of 2002 as amended by Instrument Number 78 of 2002.
14. The material does not raise a connection between Mr Riethmuller’s lumbar spondylosis and his eligible war service that is consistent with or upheld by the applicable SoP. I find, on the balance of probabilities, that Mr Riethmuller’s lumbar spondylosis is not war caused.
decision
15. The decision under review concerning lumbar spondylosis is affirmed.
reasons for the decision
16. Making this decision I have carefully considered all of the material before me, the submissions of the parties, the relevant caselaw and legislation.
17. The Commission did not attack Mr Riethmuller’s credibility as a witness. Mr Riethmuller gave his evidence, especially in relation to the circumstances of his service in the No 2 Stores Depot at the Waterloo Rail Yards and the Penrith “Bomb Dump”, to the best of his recollection and no other material contrary to his recollection was placed before me or adduced by the Commission. I have no reason to discount Mr Riethmuller’s evidence as unreliable and I accept it.
service and diagnosis
18. It is not in dispute that Mr Riethmuller has eligible war service from 24 March 1944 to 21 September 1945. I am reasonably satisfied that Mr Riethmuller did not serve outside Australia during the period of his service and does not have operational service.
19. Nor is it in dispute that Mr Riethmuller suffers from lumbar spondylosis. That diagnosis is consistent with the evidence of Dr Millons and I so find.
relevant sop
20. The relevant SoP determined by the Repatriation Medical Authority concerning lumbar spondylosis is Instrument Number 47 of 2002 as amended by Instrument Number 78 of 2002. I note in passing that the amending SoP came into force after the date of Mr Riethmuller’s claim. However, the amendments introduced by SoP 78 of 2002 are not in issue in these proceedings.
21. The SoP 47 of 2002 sets out the “factors that must exist before it can be said that, on the balance of probabilities, lumbar spondylosis...is connected with the circumstances of a person’s relevant service”.
22. In this case Mr Riethmuller sought to rely on factors 5(g) and 5(i):
“(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 spondylosis has occurred within the 25 years immediately following such activity;…”
The SoP sets out the following relevant definitions:
“2(b) …lumbar spondylosis” means degenerative changes affecting the lumbar vertebrae or intervertebral discs, causing local pain and stiffness or symptoms and signs of lumbar cord, cauda equina or lumbosacral nerve root compression, but excludes diffuse idiopathic skeletal hyperostosis. Lumbar spondylosis attracts ICD-10-AM code M47.16, M47.26, M47.27, M47.86, M47.87, M47.96, M47.97 or M51.3.
…
8 ...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…”
facts raised by the material
23. Considering the whole of the material, I am reasonably satisfied that:
(a)Mr Riethmuller lifted in excess of 168,000 kilograms in the period from 22 May 1945 to 18 September 1945;
(b)Mr Riethmuller sustained a minor injury to his lumbar spine as a result of falling while lifting rocket heads in 1945 but did not suffer signs and symptoms of pain, tenderness and altered mobility or reduced range of movement for a period of at least 10 days thereafter ;
(c)Mr Riethmuller suffered intermittent lumbar pain from 1947 and suffered intermittent lumbar pain and stiffness following normal activities including gardening, playing golf and extended periods of sitting or walking from at least 1955;
(d)Mr Riethmuller was assisted by his wife to treat his lumbar pain symptoms with liniment, aspirin or similar pharmacological products, massage, heat lamps and hot baths;
(e)He did not consult a doctor about his lumbar symptoms until 1979;
(f)An X-ray of his lumbar spine in March 1980 indicated mild degenerative change;
(g)Dr Millons reported that such mild degenerative change was indicative of clinical onset of lumbar spondylosis “a few years earlier” but not prior to 1970.
causation
24. During the hearing the Commission accepted Mr Riethmuller’s evidence that he had fallen and injured his lumbar spine in 1945, during the period of his eligible service, and conceded that Mr Riethmuller satisfied the lifting requirement set out at factor (i) in the SoP. In the Commission’s submission, however, the date of clinical onset of Mr Riethmuller’s lumbar spondylosis was not within 25 years after the cessation of his eligible service, that is, prior to September 1970.
25. As can be seen, the date of clinical onset of Mr Riethmuller’s lumbar spondylosis is in issue and may be determinative of his claim. However, there is scant evidence before me on this point.
26. The meaning of the term “clinical onset” has been considered previously by the Federal Court and this Tribunal. In Re Robertson and Repatriation Commission (1998) 50 ALD 668 a previous Tribunal concluded that :
“… there is clinical onset of a disease, either when a person becomes aware of some feature or symptoms which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present…”
This analysis has been cited with approval in the cases of Repatriation Commission v Cornelius [2002] FCA 750 at [26] and Lees v Repatriation Commission [2002] FCAFC 398 at [13] to [16] and there is no basis on which to depart from that analysis. The test to be applied is that of “clinical” onset. That is, when medical opinion can be formed, whether contemporaneously or on later review, about the existence of a disease on the basis of symptomatic manifestation or medical investigation.
27. Mr Riethmuller gave evidence that he suffered from intermittent lumbar spine pain and stiffness from 1947 but did not seek medical attention until after an episode of severe lumbar back pain in 1979, in consequence of which an X-ray of his lumbar spined was taken by Dr Davis in 1980 (Exhibit A3):
“There is slight narrowing of the lumbro-sacral disc and there is a little osteophytic lipping at each level consistent with mild degenerative change. No other abnormaility is seen.”
28. In Mr Riethmuller’s submission his treating general practitioner, Dr Madden, considered those symptoms and signs were consistent, at that time, with a diagnosis of lumbar spondylosis. The clinical notes of Dr Madden were tendered (Exhibit R3). However, these notes cover the period from May 1987 and do not shed any light on the state of Mr Riethmuller’s lumbar spine prior to 1980 or on the date of the clinical onset of lumbar spondylosis.
29. Dr Millons gave oral evidence that he accepted the diagnosis of lumbar spondylosis in or about 1980 and reported that (Exhibit R1 pp5-6):
“[Mr Riethmuller] would have been 54 [in 1980] and it would not be uncommon at that age for there to be present attritional changes shown on X-rays…
…
If the changes of lumbar spondylosis were fairly minor at that time (1980) the condition may have only become apparent for a few years before that.”
30. In his oral evidence Dr Millons stated that, in the absence of radiological investigations, the signs and symptoms of lumbar spondylosis would include back ache and stiffness in middle age following “normal activities”.
31. Mr Riethmuller’s oral evidence was that after 1955 he experienced lower back pain after activities that were not especially strenuous, such as mowing lawns, gardening, playing golf, sitting for extended periods or walking for long distances. He claimed that he experienced pain everyday but the pain was more severe “every two or three weeks” and that that intermittency has continued to the present. He complained that since moving to Canberra in 1955 his lower back pain and stiffness has been worse in cold weather.
32. A statement by Mr Riethmuller’s wife, Patricia Riethmuller, whom he married in 1955, was tendered (Exhibit A2). Mrs Riethmuller stated:
“Probably the first intimation that I had that my husband may have back trouble was towards the end of 1955 after we had moved into our first, rented, house… he seemed to be uncomfortable for a day or two, which I could see by the way he would stand or sit … It was around about the same time that he developed a sort of abcess on the base of his spine, which … he had removed by Dr Bromhead in Canberra Hospital. After that, he would suffer from time to time from stiffness, aches and pains in his back, and this would be dealt with by the application of linament, having hot baths, or the taking of aspirin, APC powders, etc.
Then my mother…bought us an electrical massager… but it did not… cure the back. Later we acquired an Infra Red lamp, which also gives some relief…
…
… my husband continues to experience back pain, probably more frequently than in the past, and sometimes it appears to be more severe than others…”
33. Dr Millons gave evidence that the signs and symptoms about which Mr Riethmuller complained from 1955 may be consistent with a number of possible conditions and do not necessarily point to the existence of lumbar spondylosis. His evidence was that such signs and symptoms may be the result of a ligamentous injury, postural problems or constitutional factors, and it would not be possible to diagnose the cause of his symptoms in the absence of radiological investigations. Plainly, a person may suffer from lumbar back pain for a variety of reasons and a doctor may require radiological investigations to be conducted in order to properly diagnose the cause of the pain.
34. Dr Millons was of the opinion that if Mr Riethmuller’s eligible war service was the cause of his lumbar spondylosis then he would expect greater changes over the 35 year period following Mr Riethmuller’s service than those that were reported by Dr Davis in 1980. Dr Millons gave evidence that there was “nothing striking about the X-ray changes, most people of that age would have them”. Dr Millons evidence was that the radiological evidence in 1980 was of only “slight narrowing of the lumbrosacral disc” “consistent with mild degenerative change” (Exhibit A3) in Mr Reithmuller’s lumbosacral spine at that time, indicating that the clinical onset of the degenerative change, on the basis of which a diagnosis of lumbar spondylosis could be made, was “not likely to be more than a few years before [1980]”.
35. This matter must be determined on the civil “reasonable satisfaction” standard of proof, that is, on the balance of probabilities. Each of the requisite factors of connection between the claimed disease and the relevant service must be raised or pointed to by the material (Repatriation Commission v Hill [2002] FCAFC 192). It follows that there must be material pointing to the clinical onset of lumbar spondylosis within 25 years after the cessation of Mr Riethmuller’s eligible war service, that is prior to September 1970.
36. Considering the scant medical evidence that is before me and the evidence of Mr Riethmuller and his wife, I am reasonably satisfied that a diagnosis of lumbar spondylosis could not have been made in Mr Riethmuller’s case on the basis of the intermittent signs and symptoms of lumbar pain and stiffness about which he complained prior to 1979 in the absence of radiological or other clinical investigations. On that basis, and accepting Dr Millons evidence that the clinical onset of Mr Riethmuller’s lumbar spondylosis was probably in the period three to five years prior to 1980, I am reasonably satisfied that the clinical onset of Mr Riethmuller’s lumbar spondylosis was not within 25 years of the cessation of the lifting and weightbearing that he undertook on service and so find.
37. In the absence of medical evidence to indicate, as a matter of probability rather than just possibility, that the intermittent signs and symptoms of lumbar pain from which Mr Riethmuller suffered were indicative of the presence and clinical onset of lumbar spondylosis prior to September 1970, I am not able to achieve the requisite degree of satisfaction that his lumbar spondylosis arose from or was attributable to the circumstances of his eligible service in a manner that is consistent with the framework of causation set out in the SoP.
38. That being so, Mr Riethmuller’s contention that his lumbar spondylosis is connected with the circumstances of his eligible war service is not upheld by the applicable SoP. It follows that I am reasonably satisfied, pursuant to ss 120B(3) of the Act, that Mr Riethmuller’s lumbar spondylosis is not war-caused.
conclusion
39. Considering all of the evidence I am satisfied, on the balance of probabilities, that Mr Riethmuller’s lumbar spondylosis was not war-caused. It follows that his claim must fail in that regard and the decision under review is affirmed.
I certify that the preceding 39 paragraphs are a true copy of the reasons for the decision herein of Mr Simon Webb, Member.
Signed: Z. Khan
AssociateDate/s of Hearing 19 November 2004
Date of Decision 2 December 2004
Representative for the Applicant Self
Representative for the Respondent Mr M. Huthnance
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