Rodsted and Repatriation Commission
[2003] AATA 305
•2 April 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 305
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2001/284 & S2001/285
VETERANS' APPEALS DIVISION ) Re MICHAEL TRACEY RODSTED Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member WJF Purcell Date2 April 2003
PlaceAdelaide
Decision The Tribunal affirms the decisions under review.
(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS - veterans' entitlements – claim for pension – whether applicant’s lumbar spondylosis, intervertebral disc prolapse and post traumatic stress disorder are war-caused – “severe stressor” – “trauma to the lumbar spine” - whether Statements of Principle are satisfied – operational service
Veterans’ Entitlements Act 1986 sections 120, 120A
Repatriation Commission v Gorton [2001] FCA 1194
Statement of Principles No 3 of 1999
Statement of Principles No 54 of 1999
Statement of Principles No 165 of 1996
Statement of Principles No 46 of 2002
Statement of Principles No 130 of 1996
Statement of Principles No 92 of 1997REASONS FOR DECISION
2 April 2003 Senior Member WJF Purcell 1. This is an application for review of two decisions of the Repatriation Commission (the Commission). The first dated 12 May 1998, refused inter alia the applicant’s claim in relation to a “back condition”, and the second, dated 28 April 1999, refused inter alia his claim for acceptance of “post traumatic stress disorder” (PTSD) as war-caused. The Veterans’ Review Board (VRB) affirmed both decisions on 11 May 2001.
2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents) together with exhibits tendered by the parties. The applicant, who was represented by Mr White, gave oral evidence, and called Mr P Byrne, General Surgeon, as a witness. Mr Doube represented the Commission, which called Commodore P Mulcare, Historian, as a witness by way of telephone link-up
3. The applicant, who is 55 years of age, served in the Royal Australian Navy (the Navy) for 6 years, from 5 June 1964, at the age of 16, until 11 May 1970, when he was 22 years of age. His eligible service is operational service for the Far East Strategic Reserve, on HMAS Derwent (the Derwent) from 17 February 1966 to 30 April 1966, from 8 June 1966 to 5 July 1966, and from 16 July 1966 to 3 August 1966. He had operational service also in Vietnam, on the Derwent, from 26 May 1966 to 13 June 1966. His operational service totalled 107 days. The applicant asserts that his conditions relate to his operational service, and the appropriate standard of proof is that of reasonable hypothesis, in accordance with section 120(1) of the Veterans’ Entitlements Act 1986 (the Act), which, as far as is relevant for the purposes of this review, provides:
“120Standard of Proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
(2) …
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.”
4. Section 120A provides:
“120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120 (1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).
(2) …
(3)For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B (2) or (11); or
(b) a determination of the Commission under subsection 180A (2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
…”
5. The hypothesis propounded by the applicant in relation to his condition of PTSD is that on the whole of the material, the traumatic events which he experienced during his operational service, connect the condition with his relevant service. In relation to his “back condition”, more appropriately diagnosed as “lumbar spondylosis and intervertebral disc prolapse, L5-S1 and L3-L4”, the hypothesis propounded by the applicant is that a heavy fall aboard the Derwent in March 1966, connects his condition with his relevant service. In my view, the material before the Tribunal would, if correct, point to hypotheses that the conditions were war-caused. There are Statements of Principles in force, and in accordance with these Statements of Principles, at least one of the Factors set out in clause 5 must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting the conditions with the circumstances of the applicant’s relevant service.
6. In relation to the condition of PTSD, the appropriate Statement of Principles is Instrument No 3 of 1999, as amended by Instrument No 54 of 1999 (the PTSD SoP). The applicant contends that Factor 5(a) of the PTSD SoP is satisfied: “experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder”. “Experiencing a severe stressor” is defined as:
“… 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’ 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;”
7. The Commission maintains that during his operational service the applicant never experienced a severe stressor, as defined in the PTSD SoP; accordingly there is no reasonable hypothesis pointed to by the facts in this matter, and the applicant cannot succeed.
8. In relation to the condition of lumbar spondylosis, the appropriate Statement of Principles is the current Statement of Principles, Instrument No 46 of 2002 (the 2002 Lumbar Spondylosis SoP). This Statement of Principles is more favourable to the applicant than the Statement of Principles in force at the time of the original Commission decision, which was Instrument No 165 of 1996 (the 1996 Lumbar Spondylosis SoP). The applicant maintains that Factors 5(h) and (i) of the 2002 Lumbar Spondylosis SoP are satisfied:
“(h)suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis; or
(i)suffering a lumbar intervertebral disc prolapse before the clinical onset of lumbar spondylosis at the level of the intervertebral disc prolapse;’
“Trauma to the lumbar spine” is defined in the 2002 Lumbar Spondylosis SoP as:
“… 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 seven 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.”
The applicant maintains he would satisfy also Factor 5(g) and/or (h) of the 1996 Lumbar Spondylosis SoP:
“(g)suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis; or
(h)suffering a lumbar intervertebral disc prolapse before the clinical onset of lumbar spondylosis at the level of the intervertebral disc prolapse;”
“Trauma to the lumbar spine” is defined in the 1996 Lumbar Spondylosis SoP as:
“… an injury to the lumbar spine caused by the force of an extraneous physical or mechanical agent 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, and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs, unless medical intervention has occurred. Where medical intervention for the injury has occurred (for example splinting, corticosteroid injection, surgery), and there is evidence relating to the extent of injury and treatment, such evidence may be considered;”
9. The appropriate Statement of Principles for “intervertebral disc prolapse” is Instrument No 130 of 1996, as amended by Instrument No 92 of 1997 (the Disc Prolapse SoP). The applicant submits that Factor 5(a) is satisfied:
“(a)suffering trauma to the relevant disc at the time of the clinical onset of intervertebral disc prolapse;”
“Trauma to the relevant disc” is defined as:
“… an injury to the particular prolapsed intervertebral disc, which has occurred:
(a) whilst performing, or immediately following, activities such as
(i) lifting, pushing or pulling an object weighing more than 10 kg; or
(ii)jumping or falling from a height, for example, in a parachute jump, or jumping down from a tank; or
(iii) diving into a body of water; or
(iv) spinal manipulation; or
(b)during or immediately following, the application of the force of an extraneous physical or mechanical agent such as which occurs in a motor vehicle accident.”
10. The applicant asserts that he suffered trauma to the lumbar spine, or trauma to the relevant disc, as the result of an incident in March 1966, when the Derwent was off the coast of Borneo. He slipped in a pool of hydraulic oil, whilst holding a 60 lb shell. He asserts that he landed heavily on the steel floor.
11. The Commission submits that the applicant did not suffer trauma to the lumbar spine during his operational service, and that Factors 5(h) and (i) of the 2002 Lumbar Spine SoP are not satisfied. It submits also that there is no evidence to support the assertion that Factor 5(a) of the Disc Prolapse SoP is satisfied, as the applicant did not suffer trauma to the relevant disc.
12. The applicant was 6 years in the Navy, and trained as a specialist gunner. He was a Leading Seaman when he was discharged, and in his final medical examination, on 4 February 1970, he stated that the only disability he was suffering at that time was “occasional migraine headaches”.. He worked then as a seaman on supply boats in Bass Strait, and later as a truck driver, salesman, and on the Moomba pipe line as a crane driver. In October and November 1985, the applicant underwent surgery for lumbar laminectomy, in Western Australia. He continued to work in various occupations until subsequently he obtained employment with JMA Engineering of Berri, as a crane driver, installing pipes in a winery.
13. On 21 November 1997 the applicant lodged an application for Disability Pension for “back condition”, which he stated was caused by “concentrated lifting of shells during bombardments”, and that he first became aware of the disability in 1969/70 [T5/86]. On 21 August 1998, he lodged a claim for Disability Pension for PTSD, which he stated was caused by his “operational service in SVN waters” [T9/114].
14. The applicant continued to work for JMA Engineering until late 1999 when he, in his own words, “lost the plot”, for 8 weeks, and when he returned to the engineering firm, his old job was no longer available. During 2000, he and his wife moved to Port Lincoln, and continue to live in a caravan park at Port Lincoln. He has not worked since the end of 1999.
15. The applicant was an unimpressive witness. He was loquacious, but at the same time evasive, when called upon to recount the details of events upon which he relied. I was left with the strong impression that much of his evidence was recent invention and unreliable. This does not mean that I disregard all of his evidence, but that I rely on other more objective evidence to support my findings of fact in areas of conflict in the evidence.
16. The applicant called Mr Byrne, General Surgeon, who is suitably qualified and whose evidence was appropriately objective. Mr Byrne, of necessity, was obliged to rely upon the applicant’s veracity in relation to the events alleged to have occurred during his operational service, and I have taken this into account in my assessment of the appropriate weight to be given to his opinion and evidence. The remaining witness was Commodore Mulcare, Historian, who I accept as a witness of truth.
post traumatic stress disorder
17. The severe stressors which the applicant maintains he suffered during his operational service for the Far East Strategic Reserve, and in South Vietnam whilst aboard the Derwent, can be summarised as follows:
(a)The Derwent having to attend to the HMAS Hawk (the Hawk) as a result of an injury suffered to a seaman who had gone on a shooting rampage [the Hawk incident].
(b)Hearing scare charges detonate whilst the applicant was situated below the waterline, and fear of the Derwent being mined whilst anchored in Vung Tau Harbour [the scare charges incident].
(c)Being below the waterline whilst those on the upper deck were firing live ammunition onto the South Vietnam mainland and other boats, and detaining boats and then destroying them, not being certain that their occupants were all out of the boats before they were sunk [the destroying local boats incident].
the hawk incident
18. A perusal of the Derwent’s Record of Proceedings discloses that the vessel sailed from Singapore on 5 March 1966, for exercises in the Singapore area, and to undertake an anti-infiltration patrol in the Singapore Straits overnight, on 15/16 March 1966. The Report of Proceedings records that this patrol proceeded without incident. On 17 March 1966 she sailed for Tawau in Borneo. At 10.00pm on the night of 29 March 1966, on the evidence of Commodore Mulcare, the Derwent was on patrol some 50 kms from Singapore. On that evening, an incident occurred on the Hawk, which had been secured alongside Semporna Wharf, but by 5.00pm was anchored 600 yards offshore, leaving the wharf clear for expected merchant shipping. At 6.05pm a seaman, Mr Williams, was observed on the bridge of the Hawk discharging an Owen submachine gun. He is recorded as being apprehended at 6.50pm and placed under close arrest, and suffering a flesh wound to the neck and foot. Mr Williams and the Hawk’s sick bay attendant, Mr Barr, were transferred to a Malaysian patrol craft KDSRI Melaka, which proceeded towards Tawau at 10.30pm. As the Derwent had a medical practitioner on board, the Melaka rendezvoused with the Derwent, at 2.23am, on 30 March 1966, when both sailors from the Hawk were transferred to the Derwent. At 10.53am on 30 March 1966, the Derwent refuelled and anchored nearby the tanker at Tawau. The Hawk secured alongside the Derwent from 1.09pm to 4.52pm that same afternoon. The Derwent weighed anchor just after 5.00pm, and proceeded on patrol. Mr Williams remained on the Derwent until 3 April 1966, when he was transferred to the British Military Hospital in Singapore.
19. The applicant gave evidence that early in the morning of 30 March 1966, he was instructed by the Leading Seaman of the watch that he was required on the main deck. He was told that there had been an incident aboard the Hawk, and that a sailor was being brought on board for treatment. He said that he assisted in bringing the injured Mr Williams on board. Mr Williams was on a stretcher and handcuffed. The applicant says that he carried one side of the stretcher, and took Mr Williams to the sick bay. He said that he was petrified, as Mr Williams was the first person he had seen “shot full of holes”, with blood all over him, and bandages. The applicant said that he was terrified and frightened, because when the Hawk drew alongside in the morning, the upper deck was full of bullet holes. The applicant says that he believed that if this was possible on one of our own ships, the same thing could happen on the Derwent.
20. The extract of the Report of the Board of Inquiry, which investigated the Hawk incident, contains the evidence of Surgeon Lieutenant JH Passehl, the medical officer on the Derwent and Mr Barr, the sick berth attendant on the Hawk. In the course of his evidence to the Inquiry, Mr Barr said that after Mr Williams was subdued on the bridge, Mr Barr found that he had a flesh wound on the right side of the neck, and a flesh wound on his left foot. Mr Barr got a small pack and dressed the neck, and put a plaster and gauze on the foot. Mr Williams was conscious, he was no longer in a fighting mood, there was not much blood, and after he was given some penicillin to counteract any infection, he stated that he was not in pain. Mr Barr is recorded as stating that subsequently they went to the cafeteria where Mr Barr cleaned the wounds and redressed them. They boarded the Malaysian patrol craft, the Melaka.. Mr Williams was quite bright on the boat, had some coffee and a sleep. No restraint was required, and Mr Barr did not think that Mr Williams had sustained serious injuries [Exhibit R6].
21. Surgeon Lieutenant Passehl is recorded as telling the Board of Inquiry that he first saw Mr Williams, at 2.35am, on 30 March 1966. He was lying on a bunk in the Melaka.. He was quite conscious, resting and quite coherent.
“He was able to hobble with assistance from the bunk to the ladder which led up top, and from there across to the sick bay on HMAS Derwent. He knew his name, his rank, and his number. He knew what time it was and he knew the name of the ship he was on. He complained of no pain. When we arrived in the sick bay, he appeared to be suffering from three injuries: a superficial bullet wound to the right side of his neck, a small wound on the left foot and he had minor abrasions to both knees ….. I questioned him for quite a long time and during this period he denied any recollection at all of events from the time he entered the boat which took him from Semporna to when he found himself on his back in Hawk with a PO bending over him.. He went to sleep at about 5.30 on the same morning …”. [Exhibit R2]
22. Subsequent to the lodgement of his claim for acceptance of PTSD as war-caused, the applicant was examined by a psychiatrist, Dr Ryan, on 22 October 1998. Dr Ryan noted that the applicant could not describe any particular nightmares or bad dreams; and he did not suffer from panic attacks, nor did he have phobic symptoms. Dr Ryan reported that the applicant was unable to recall any particular events which precipitated strong memories of Vietnam. The Commission refused the applicant’s claim on 28 April 1999, and in the course of its Reasons for Decision referred to Dr Ryan’s report, and noted that he reported that the applicant recalled one episode where “a Chief Petty Officer went berserk and threatened to shoot everybody”.
23. It must have been difficult for the applicant to recall accurately events which occurred some 36 years ago. I prefer to rely on the Record of Proceedings which took place in April 1966, so soon after the event. It is clear that the description provided by the applicant does not accord with the evidence provided to the Board of Inquiry by Dr Passehl and Mr Barr. The applicant did not witness the shooting. Mr Williams was brought aboard the Derwent some 8½ hours after the shooting. He was not handcuffed, nor had he been “shot full of holes”. The applicant did not see the damage to the Hawk until about 14 hours later, at 1.00pm on 30 March 1966. I do not consider that the incident satisfies the definition of a “severe stressor” in the PTSD SoP. I am satisfied beyond reasonable doubt, that this incident does not satisfy the definition in the PTSD SoP.
the scare charges incident
24. The Derwent was in Vung Tau Harbour for 40 hours between 6 and 8 June 1966. The applicant said in evidence that before he went to Vietnam, to Vung Tau Harbour, he was aware that scare charges would be used, but he said that the first time he heard such an explosion he was below the waterline, and the charge went off beside his head. “I believe I was off watch attempting to sleep” [transcript p16]. He said that he thought that they were 20 lb scare charges landing near the ship some 2 or 3 feet away. He says that he was petrified every time he heard a scare charge, and petrified also the whole time in Vung Tau Harbour, that the Derwent would be sunk, that something would happen to them, as the nets were dragged along under the ship to detect enemy activity or mines. Commodore Mulcare gave evidence, which I accept, that the scare charges weighed between 1 and 1¼ pounds, and were thrown 20 feet clear of the ship to ensure that no damage was caused to the hull of the vessel.
25. A perusal of the documentary evidence discloses that it was not until the VRB Hearing, on 11 May 2001, that the matter of the scare charges was raised. In the course of its Reasons for Decision the VRB stated:
“With regards to his three days service in Vietnamese waters the veteran has told the Board that the ship took every precaution to ensure that any attack by the enemy was not successful. He told the Board that he felt anxious and that he had been startled by scare charges going off outside the hull close to his bunk. There is no evidence that these events invoked feelings of fear, helplessness and horror; however, his evident concern and anxiety, described by Dr Ryan at Folio 11 as “raised levels of vigilance and concern” is clearly understood. Additionally, Dr Ryan reports that the veteran was unable to describe any particular nightmares or bad dreams emanating from any period of eligible service (Folio 11).” [T2/17]
26. On the applicant’s evidence the incident was one that he was told previously would occur. He was startled when he heard the first scare charge, but of their very nature and purpose, they are detonated randomly, and would cause a loud percussion. In my view, the incident does not satisfy the objective test of a severe stressor, and the applicant’s response to the incident does not constitute the intense fear, helplessness or horror required by the definition of “experiencing a severe stressor”.. I am satisfied beyond reasonable doubt, that this incident does not satisfy the definition in the PTSD SoP.
the destroying local boats incident
27. The applicant gave evidence that during his service in the Far East Strategic Reserve aboard the Derwent, they were involved with a lot of shelling on the mainland, and on other boats during patrols. In his statement [Exhibit A8] the applicant said that they destroyed a lot of boats, and he expected that there were women and children on these boats as well. There were occasions when they would capture boats with civilians aboard. He knew that those boats were destroyed, and he was not certain that all the people who were on the boats were removed prior to them being destroyed. He could not say for sure that there was no one left on the boats. He stated also that they were called upon regularly to bomb certain areas on the land; and he assumed that these positions were where the enemy was based.
28. On 15 March 2000 the applicant was examined by Dr Skinner, Psychiatrist, who reported that the applicant stated that they were on night patrols and blew up boats and there were a lot of shore bombardments. Dr Skinner reported that the applicant “knew that there were women and children in the boats that were blown up” [T23/165]. Dr Skinner’s report was before the VRB, at its Hearing on 11 May 2001, and the VRB said in the course of its Reasons for Decision:
“The Board referred to a psychiatric report by Dr Elaine Skinner dated 5 May 2000. At folio 36 she wrote:
‘He was in the navy and served in Borneo, Malaysia and Vietnam. They were on night patrols and blew up boats and there were a lot of shore bombardments. He knows that there were women and children in the boats that were blown up.’
On questioning by the Board the veteran agreed that boats that were intercepted were searched by a boarding party and, if they were found to contain contraband they were evacuated and destroyed. When specifically asked if he knew that there had been any women and/or children left on any of these boats when they were destroyed he replied that he didn’t know. He did say that he wasn’t sure that each vessel destined to be destroyed had been fully searched and that everyone on board had been taken on board his ship. Accordingly, the Board views the veteran’s statement as pure speculation.
In reaching its decision the Board has been troubled with issues relating to the credibility of the veteran’s evidence and his statements to his treating psychiatrists as recorded by them. The evidence given to the veteran’s treating psychiatrists regarding the incident involving HMAS Hawk and regarding woman and children being killed is clearly incorrect. The veteran was also unable to provide any evidence that, during his three days in Vietnamese waters he suffered a severe stressor. In addition, the Board has been unable to find any other evidence of the stressor that meets the definition contained in the SoP and that involves a reaction described at paragraph 2 of that Instrument.” [T2/17-18]
29. Dr Skinner noted, in completing the Emotional and Behavioural Medical Impairment Worksheet, on 15 March 2000, that the applicant stated that he saw people die from actions of his own group. In the course of his oral evidence at the Hearing, he stated that to the best of his recollection he probably did tell Dr Skinner that he saw people die from actions of his own group. He said however, that he saw people wounded, but saw no one die. The person he saw wounded was Mr Williams from the Hawk. He said that he believed to this day, that there were women and children on the boats that were shot and blown up and sunk. “It’s not a certain knowledge, but it’s something that’s haunted me for 30 years. I believe there were still people on board the boats” [transcript p6].
30. Commodore Mulcare gave evidence that there is no record in the Reports of Proceedings of the Derwent, nor in its log, of any boats being destroyed by the Derwent during the relevant period. He said in evidence, that if such a thing had happened, he would expect there to be such a record. He also stated that if the boats were destroyed, and people had been left on board, there would have been other people who were brought on board the Derwent.. The Reports of Proceedings and the ship’s logs contain no record of people being brought on board, and then having to be disposed of in some way - taken somewhere else or transferred to some other area. Commodore Mulcare said that he would expect the movement of persons on and off the Derwent in the course of patrols to be noted. There is no such record. I accept Commodore Mulcare’s evidence.
31. In relation to the applicant’s assertions regarding bombardment of the mainland, the applicant on his own evidence, was at all times, during action stations, at his station below deck, assisting with the loading of the guns. These duties he performed also as part of his normal duties if it were a practice firing of guns. He was never on the upper deck to observe the results of the firing of the guns on the Derwent. I am satisfied beyond reasonable doubt, that neither of these incidents satisfies the definition of “severe stressor” in the PTSD SoP.
the applicant’s back condition
32. The applicant gave evidence that in late March 1966, whilst the Derwent was off Borneo, he lifted a 60 lb action fused shell from the ring to load into the hoist. He slipped in a pool of hydraulic oil, which had formed underfoot, as the oil had leaked from a hydraulic fitting in the shell hoist. He was holding the shell with both hands, and was unable to break his fall. He landed heavily against the ring and hoist with the shell clasped to his chest. One of the gun crew lifted the shell from him, and helped him to his feet.
33. Mr Roe, a former member of the Navy, provided a statement on 26 January 1999 to the effect that in 1966 he witnessed the applicant slip on some hydraulic oil, lose his footing and fall heavily against a shell hoist. The applicant, he said, insisted he was alright, he regained his feet and completed his duty. Mr Roe stated also that he inquired of the applicant later, and he informed Mr Roe that he was a bit sore and stiff in the back and neck area from the fall, but he insisted that he did not want to take the matter any further, and if necessary he would seek treatment at a later time.
34. The applicant said in evidence that when he slipped, his back hurt immediately, but he continued working and finished his shift. In the evening his back was giving him quite a deal of pain, and he went to the sick berth attendant and obtained some painkillers. By the following morning he had not improved, and the sick berth attendant gave him 9 days’ light duties, as the pain of the bruising and swelling had intensified. For the next couple of weeks the applicant’s shipmates had to assist him with most tasks he undertook. After he was removed from light duties, he had only some restriction of movement, which lasted several weeks. He said in evidence that since this incident he has suffered pain in his back and shoulder, the pain increased over the following 3 years, and he continued to seek treatment from the sick berth attendant. He continued to take Panadeine for the pain.
35. It is clear on the evidence that on each occasion the Derwent undertook operational service there was a medical officer on board. The documentary evidence discloses also that the applicant consulted that medical officer on various occasions for a number of ailments, but never in relation to a back problem. A perusal of the documentary evidence does not disclose any reference to the incident or the injury. His service records have only one reference to a back problem, and that is dated 5 January 1968, where it is recorded at HMAS Stalwart, that 2 weeks beforehand the applicant had strained his back lifting a coil rope. He complained on 3 occasions of not being able to move his legs whilst lying in bed. He was referred for x-rays which are recorded as showing “Disc spaces appear normal” [T4/1].
36. The applicant gave evidence that he made no mention of the incident in his claim for Disability Pension, wherein he stated that the service related cause was “concentrated lifting of shells during bombardment”. He said that this was because he did not understand the question. He said also that an officer from the Department of Veterans’ Affairs helped him fill out the form, and asked him what his duties were on the Derwent.
37. Mr Byrne examined the applicant on 22 March 1999, and after receiving some details from St John of God Hospital, Perth, reported on 8 April 1999 [T21/154]. He reported that the applicant said that in late March 1966 he slipped on a pool of hydraulic oil, on the steel floor of the ring room, while holding a 60 lb shell in his arms. He fell against a steel hoist with his low back, but was unable to break the fall completely. He noticed evidently acute low back pain and also some pain in his neck, but continued to serve on. The applicant stated that to the best of his knowledge there was no ship’s surgeon on the Derwent.. He reported to the sick bay and the sick bay attendant gave him Aspirin. The pain in his low back continued, and he began to have more severe low back pain over a period of 12-18 months. Subsequently, he served on shore service, and his jobs involving being responsible for rigging the fleet, the dragging of steel cables, and carrying coils of steel rope exacerbated the low back pain. He continued to suffer low back pain after his discharge, and the symptoms became worse; and in 1985, while in Perth, he was referred to Mr Michael Lee, Orthopaedic Surgeon, who carried out two laminectomy operations. Mr Byrne said, in summary, that the applicant sustained an acute low back injury when in 1966 he slipped and fell while carrying a 4-5” shell; he incurred low back pain which never really went away, and subsequently he became worse, and he ultimately underwent two laminectomy operations in Perth in 1985. Mr Byrne concluded in his second report of 3 March 2000, that the fall, as described by the applicant, and supported by Mr Roe’s statement, was the likely cause of the back problem.
38. In the course of his cross-examination the applicant said however, that whilst working at the Argyle Mine in Western Australia in 1985, he suffered a work-related injury to his back, for which his union claimed workers’ compensation on his behalf. He said that as a result of the work-related injury he underwent surgery on 2 occasions at the St John of God Hospital in Perth, where Mr Lee carried out laminectomy surgery. Mr Byrne said in evidence that the applicant did not tell him of the work-related injury in 1985, nor that he had suffered any trauma to his back apart from the incident in 1966. The circumstances of the incident in 1968, during the applicant’s land based service at HMAS Stalwart, were outlined to Mr Byrne. In this incident it was recorded that the applicant strained his back lifting a coil rope. Dr Byrne was of the opinion that this could have caused a disc prolapse. Mr Byrne said in evidence that in the preparation of his reports and opinions, he proceeded entirely on the basis of what the applicant told him in relation to the history of the condition.
39. On the applicant’s own evidence the work-related back injury in 1985, at the Argyle Mine, led to the major surgery undertaken by Mr Lee. I accept that Mr Roe witnessed the incident in 1966, when the applicant slipped on oil whilst carrying a shell; but I am satisfied, beyond reasonable doubt, that any injury the applicant might have suffered did not occasion trauma to the lower back of sufficient severity to satisfy the definition of “trauma to the lumbar spine” in either the 2002 Lumbar Spondylosis SoP, or the 1996 Lumbar Spondylosis SoP, nor did it occasion trauma to the relevant disc to satisfy the definition of “trauma to the relevant disc” in the Disc Prolapse SoP.
40. I am satisfied, beyond reasonable doubt, that there is not sufficient ground for determining that the applicant’s conditions of “post-traumatic stress disorder” and “back condition” are war-caused. The material before the Tribunal does not raise reasonable hypotheses connecting the conditions with the circumstances of the particular service rendered by the applicant.
41. For these reasons the Tribunal affirms the decisions under review.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed: .......................................................................................
AssociateDate/s of Hearing 23/24 July 2002, 13 September 2002
Date of Decision 2 April 2003
Counsel for the Applicant Mr T White
Solicitor for the Applicant Tindall Gask Bentley
Counsel for the Respondent Mr G Doube
Solicitor for the Respondent DVA
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