Roncevich and Repatriation Commission - [2001] AATA 199

DECISION AND REASONS FOR DECISION [2001] AATA 199

ADMINISTRATIVE APPEALS TRIBUNAL )

) No D1999/14

VETERANS' APPEALS DIVISION       )
           Re      JURE JACK RONCEVICH
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr K L Beddoe (Senior Member)

Date16 March 2001
PlaceBrisbane

Decision      The Tribunal affirms the decision under review.
  .      (Sgd) K L Beddoe
  Senior Member

Decision No: 199/2001

CATCHWORDS : Veterans' Affairs - Disability Pension – Whether conditions of lumbar spondylosis and internal derangement of the left knee were defence caused – Whether injuries arose out of or were attributable to defence service – Whether but for defence service the injuries would not have been suffered – Whether excessive consumption of alcohol at mess function attributable to defence service
Veterans' Entitlements Act 1986 s 70(2), (5)(a), (5)(c), (7), (9) subs 120(4), 120B, 196B, (13), (14)
Statement of Principles Instrument 166 of 1996, Instrument 60 of 1997
Walmar v Travelodge Australia Ltd, (1975) 26 FLR 249
Maunder v Commonwealth of Australia, (1983) 51 ALR 44
Hatzimanolis v ANI Corporation (1992) 106 ALR 611
Danvars v Commissioner for Railways (1969) 122 CLR 529
MacPherson v Department of Defence(1998) AATA 455

REASONS FOR DECISION

16 March 2001 Mr K L Beddoe (Senior Member)

A delegate of the Repatriation Commission refused a claim for acceptance of various conditions including lumbar spondylosis and internal derangement of the left knee as being defence caused. A Veterans' Review Board subsequently affirmed the Commission's decision.
Section 70 of the Veterans' Entitlements Act 1986 ("the Act") sets out the criteria for eligibility for payment of a disability pension in respect of members of the Defence Force who rendered defence service as defined.
Sub-section 70(5) relevantly provides that an injury suffered by a member shall be taken to be a defence-caused injury if it arose out of or was attributable to any defence service of the member.
An injury may be deemed to be a defence caused injury (S 70(5)(c)) where, in the opinion of the Commission the incapacity of the member was due to an accident that would not have occurred but for the member having rendered defence service, or but for changes in the member's environment consequent upon the member having rendered such service. If the incapacity was due to an accident that incapacity shall be deemed to have arisen out of the injury suffered by the member as a result of the accident and the injury so suffered shall be deemed to be a defence-caused injury suffered by the member (S 70(7)).
However sub-section 70(9) operates to deny the Commonwealth's liability if the injury resulted from the member's serious default or wilful act (S 70(9)(a)(I)), or arose out of a serious breach of discipline committed by the member (S 70(9)(a)(ii)).
Sub-section 120(4) of the Act requires the Tribunal to decide the matter to its reasonable satisfaction. That sub-section is subject to sections 120B and 196B(14) of the Act so that reasonable satisfaction is to be determined by reference to a relevant Statement of Principles determined in accordance with section 196B(13).
At the hearing Mr Piper appeared for the applicant and Mr Doube represented the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act1975 were before the Tribunal and further documents were marked as exhibits. Oral evidence was given by the veteran and another witness.
The parties agreed that Instrument No 166 of 1996 was the relevant Statement of Principles in relation to the claim for Lumbar Spondylosis and Instrument No. 60 of 1997 in relation to the claim for internal derangement of the left knee.
The applicant was born on 7 October 1956 and served in the Australian Army from 11 February 1974 until 13 February 1998 when he was discharged with the rank of Warrant Officer Class 1. The discharge was a voluntary discharge.
A significant part of the applicant's service was with 3 Battalion, RAR (3RAR) and included parachute training – the applicant says he must have completed 49 jumps. In this case the issue arises out of another type of jump.
In February 1986 the applicant was a sergeant in 3RAR and living on barracks in the Sergeants' Mess. He had his own room upstairs in the same building as the Sergeant's Mess located on the ground floor level.
Partly because he was living in barracks, but also generally, he was expected to attend functions at the Sergeant's Mess. Non attendance required permission from the Regimental Sergeant Major ("RSM") and, says the applicant, it was not easy to obtain by those senior non-commissioned officers living in the barracks.
The applicant says, and I accept, that on 27 February 1986 he was required to attend a function at the Sergeant's Mess after stand down. There is some conjecture about this but it appears that the function was organised because of a visit by the RSM of the Australian Army. I accept that the applicant believed that he was required to attend the function and that the function would, necessarily says the applicant, involve the consumption of alcohol.
That in fact occurred. The applicant says, and I accept, that he attended the function, participated in the proceedings, consumed alcohol and by the time he left the mess he was intoxicated. He returned to his room upstairs and, as was his habit, proceeded to prepare his uniform for the next day.
The applicant had not been in uniform at the mess function being in "civies". Apparently on reaching his room after the function he had removed most if not all his clothes while preparing his uniform for the next day. He says, and I accept, that he found it necessary to clear his throat and for this purpose went to the window of his room to spit. Apparently because of his intoxication, in the action of spitting, he overbalanced through the open window and descended to the ground below. He was discovered on the ground below in an undressed state and moaning. It seems the friend who found him on the ground thought the situation was created by the applicant's intoxication, because he took the applicant back upstairs, showered him and put him to bed without reference to the medical staff.
He reported for medical attention the next day and the Medical Officer reported (T4/19-20):-
"Went to spit out of his window (in the Sgt's Mess) last night and fell out of the window (1st floor).
Injury to back.
(On examination), marked localised tenderness and swelling at L1-L2 level,
To rest in bed today
Xray Lumbar spine."

The Medical Officer characterised the cause of the injury as "domestic".

The Medical Officer also reported:-
Also has injured L knee, with pain and tenderness over head of fibula. Moderate effusion.
Stable knee…………."

The requested Xray of the lumbar and lower thoracic spine and left knee revealed, in relation to the spine, no evidence of spondylolysis or spondyloesthesis, no obvious vertebral fracture or subluxation and no evidence of disc, pathology or other degenerative change.
In relation to the left knee and leg the report noted a small avulsion fracture in the region of the tibial spines with an associated joint effusion present. The tibia and fibula were found to be intact with no other bone or joining abnormality detected (T4/21).
Documents T4/22 is a further report by the Medical Officer dated 3 March 1986 in which he reports continuing symptoms and for the applicant to continue using crutches.
By 25 March 1986 the pain at L1-L2 had resolved but with some exacerbation of pain referable to the left knee caused by "physio" (T4/24).
He was referred for an arthroscopy of the left knee which found a peripheral tear but the surgeon refrained from performing a menisectomy (T4/27). The operation was undertaken on 30 April 1986. The applicant continued on light duties after discharge from hospital.
On 28 May 1986 a specialist noted that the left knee was improving but suggested no twisting strains and no football for two months. He was said to be able to run at his own pace and to continue quads.
The applicant says he exacerbated the back condition when doing medicine ball situps in 1995. He also says that parachute jumping and route marches with full equipment exacerbated the back condition.
In evidence of RSM Colin Nelson satisfied me that the applicant's attendance at the Mess function was effectively compulsory except when excused by the RSM. He also satisfied me that the consumption of alcohol at such a function was not a breach of discipline because, he said, the participants were not on duty.
The Medical Evidence

Document T15 includes a report of a referral by Dr Kennedy, Orthopaedic Surgeon, dated 3 March 1999 and addressed to the applicant's general practitioner. In relation to the left knee Dr Kennedy found a likely connection between the diagnosed condition of chronic anterior cruciate ligament tear and a degenerative tear of the medial meniscus with degenerative change with the 1986 incident.
Dr Kennedy found no such link in relation to a severely degenerative L5/S1 invertebral disc with L5 spondylosis.
Exhibit A is a medico-legal report by Dr Millons, Surgeon, dated 14 June 2000 and addressed to the applicant's solicitor.
Dr Millons did not find evidence of trauma to the back. He considered the fall from the window in 1986 but opined that this dramatic event did not appear to have particularly caused any major pathological damage to the back.
On the other hand he says there was clearly an injury to the applicant's left knee when he fell out of the window. He said that the applicant had gone on to develop degenerative changes to the knee as found by Dr Kennedy in 1994. He also opined that there was a causative link between the incident in 1986 when the applicant fell from the window and the current condition.
Consideration
The applicant relies on the operation of sub-section 70(5) of the Act and in particular paragraph (a). He submits that the incident of falling out of the window resulted in injuries which either arose out of or were attributable to the applicant's defence service.
In the alternative the applicant says that paragraph 70(5)(c) of the Act operates because the injuries are deemed by sub-section 70(7) to be injuries that would not have occurred but for the applicant rendering defence service.
The applicant says that paragraph 70(5)(a) is to be construed in the same way as similar provisions in the workers' compensation legislation and for that submission he relies on a decision of a Workers' Compensation Appeals Tribunal of South Australia in re Butson. In that case the employer had provided a free barbecue and drinks during normal working hours. By the time the worker in question left the hotel where the employer's function had been held "he was quite drunk". He eventually left the scene by driving his car but was soon after involved in a motor vehicle accident. Hence the claim for compensation. Relying on the decision in Walmar v Travelodge Australia Ltd, (1975) 26 FLR 249, the Tribunal fairly concluded that the worker's paid attendance at the function was part of his job (ie in the course of his employment). In doing so the Tribunal distinguished the decision in Maunder v Commonwealth of Australia, (1983) 51 ALR 44 on the grounds that the Tribunal was unable to find when the employer's function had ended, unlike the finding by this Tribunal (AAT) in Maunder that the official function there had ended some hours before Captain Maunder left the Sergeants' Mess.
The applicant also submits that paragraph 70(5)(c) has a wider ambit and relies on the attendance at the function in the sergeant's mess as an integral part of the system of management in the battalion.
The applicant also says that the medicine ball incident in 1995 involving his back locking up was a trauma for the purposes of the statement of principles.
The Respondent's Submissions
The respondent accepts that the applicant suffers the back and knee conditions but does not accept that the applicant can satisfy the requirement of the respective statements of principles.
Further the applicant was not on duty at the time of the accident so that there was no relationship between the injuries caused by the fall from the window and the applicant's defence service.
Consideration
On the basis of the applicant's own evidence and the evidence of RSM Lee, I must be satisfied that the applicant was not on duty at the time he fell from the window. The applicant said he had retired to his own room in the Sergeant's Mess, had undressed and was in the course of doing his own domestic duties (preparation of uniform for the next day) when the accident occurred.
Part IV of the Act provides for pensions for, inter alia, members of the Defence Force. For present purposes a member of the Defence Force who has rendered full time continuous service on or after 7 December 1972 and before the terminating date (7 April 1994). Eligibility for pension is determined by section 70 of the Act. Liability will arise, in particular where a member of the Defence Force becomes incapacitated from a defence-caused injury (s 70(1)).
So far as is relevant sub-section 70(5)(a) provides that an injury suffered by a member of the Defence Force shall be taken to be a defence-caused injury if the injury arose out of, or was attributable to, any defence service of the member. At first glance this provision may be thought to be similar in effect as workers' compensation provisions which apply to injuries etc which arise out of or in the course of employment. "In the course of employment" was explained by the High Court in Hatzimanolis v ANI Corporation (1992) 106 ALR 611, in terms which suggest that attributable to defence service may have an even wider meaning than "in the course of employment".
In Danvars v Commissioner for Railways(1969) 122 CLR 529, a railway worker died while sleeping in a site van provided by his employer. The High Court found that was sufficient for the authority to make a finding that the deceased died in the course of his employment.
In MacPerson v Department of Defence (1998) AATA 455, a case involving a claim for Commonwealth employees' compensation, the Tribunal found that an injury had occurred when the applicant, a trainee Air Force fitter required to live on base, fell from his dormitory window during the night. The Tribunal found that the applicant was required to sleep in the dormitory and was subject to Air Force discipline at all times. I interpret "at all times" to mean at all times he was on the base and at times he was otherwise subject to Air Force discipline. It is apparent from the reasons for decision that the Tribunal was satisfied that the injury arose in the course of the applicant's employment.
Section 120(4) of the Act requires the Tribunal to decide this matter to its reasonable satisfaction. That sub-section is subject to section 120B which requires, on the facts of this case, that reasonable satisfaction is to be assessed by reference to relevant, if any, statements of principles.
In particular section 120B(3) applies to require the Tribunal to be reasonably satisfied that an injury suffered by the applicant was defence caused only if:

(a)The material before the Tribunal raises a connection between the injury and particular service rendered by the applicant; and
(b)There is in force a statement of principles that upholds the contention that the injury is on the balance of probabilities, connected with the defence service.
(c)There is in force a statement of principles that upholds the contention that the injury is on the balance of probabilities, connected with the defence service.

The parties identified statements of principles as follows:

(a)Instrument 166 of 1996 relating to Lumbar Spondylosis; and
(b)Instrument 60 of 1997 relating to Internal Derangement of the Knee

Instrument 166 of 1996 requires in clause 5 that a connection be established with relevant service by satisfying one of the factors set out in clause 5. The only paragraphs with relevance on the facts of this case are paragraphs 5(g) and (j) which read, so far as is relevant, as follows:
"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 persons relevant service are:
(g) and (j) suffering a trauma to the lumbar spine before the clinical onset (or worsening) of lumbar spondylosis."

"Trauma to the lumbar spine" is defined in terms that are satisfied by the RAP medical officer's report dated 27 February 1986 [T4] and the follow up reports also found in T4.
I am satisfied and find that the applicant suffered a trauma to the lumbar spine before the clinical onset of lumbar spondylosis.
In relation to Instrument 60 of 1997 Dr Millon's report (exhibit A) makes it clear that the applicant suffered an internal derangement of the knee, as defined, when he fell from the window.
The contemporaneous medical records at T4 make it clear that the applicant suffered a trauma within the terms of clause 5 of the Statement of Principles at the time he fell out of the window and I so find. That finding is inconsistent with the applicant's oral evidence but I prefer the contemporaneous records and the likely inferences that can be drawn from them while the report of the medical officer dated 27 February 1986 does not describe any condition of the left knee and refers only to tenderness and swelling at L1-L2 of the spine the report at T4/20 dated the same day refers to the left knee injury describing pain, tenderness and moderate effusion. That satisfies me that the applicant suffered the knee injury when he fell from the window. While the pain and swelling was not recorded until the next day ie when the applicant attended the RAP. I am satisfied it is more likely than not that symptoms of pain and swelling manifested within two hours after the fall.
In all the circumstances I am satisfied that the facts of the applicant's medical conditions bring him within the terms of the respective Statements of Principles.
The difficulty in this case is whether I can be satisfied that the injuries sustained by the applicant can be said to be attributable to his defence service or arose out of that service (s 70(5)(a)).
Alternatively does sub-section 70(7) with paragraph 70(5)(c) apply on the facts of this case to deem the injuries to be defence caused. That is essentially whether "but for" his defence service the applicant would not have suffered the injuries so that the injuries are deemed to be defence caused.
In essence the injuries were caused by the applicant falling out of a window in his room located in the Sergeant's Mess. He went to the window while stood down, while performing work of a domestic nature in the preparation of his uniform and in circumstances where he was probably affected by alcohol consequent upon attendance at the function in the Mess earlier that night.
While I accept that attendance at the Mess function can clearly be attributable to the applicant's defence service I do not accept that his conduct at the function can be so attributable. I accept that it was seen as the done thing to drink alcohol at such functions but I do not accept that the decision by the applicant to drink alcohol to the point of intoxication is anything other than a personal decision on his part. To choose to drink alcohol at such a function is not a matter of military discipline but a matter of personal choice not attributable to the defence service.
I am not satisfied that the applicant's injuries arose in the course of his defence service nor am I satisfied that the injuries were attributable or should be deemed to have resulted from the defence service. When the applicant left the Mess function and went to his room he was on a frolic of his own with no relevant causative connection to his defence service. That he fell out of the window has no relevant connection to his defence service.

The claimed conditions were not attributable to or otherwise relevantly connected to the defence service. The decision under review will be affirmed.
I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member)
Signed:         .....................................................................................
  Associate
Date/s of Hearing  1 November 2000
Date of Decision  16 March 2001
Applicant  Mr Piper, Solicitor
Respondent  Mr Doube, Advocate