Statement of Principles concerning Lumbar Spondylosis No. 62 of 2014
Statement of Principles concerning Lumbar Spondylosis No. 63 of 2014
REASONS FOR DECISION
Senior Member Katter
3 December 2019
This is an application to review the decision of the Respondent dated 3 May 2017[1], that the Applicant’s lumbar spondylosis is not related to service under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”).
[1]Exhibit 2, T Documents, T5, page 3, Repatriation Commission Decision with Reasons.
FACTUAL BACKGROUND
The Applicant served in the Australian Army from 5 April 1988[2] to 4 February 2012[3]. The Applicant served in East Timor from 27 October 2003 to 28 January 2004[4].
[2]Exhibit 2, T Documents, T5, page 5, Repatriation Commissions Decision with Reasons.
[3] Transcript, page 3, lines 20-21.
[4]Exhibit 2, T Documents, T5, page 5, Repatriation Commissions Decision with Reasons.
The Applicant has had disabilities accepted under the Act[5]: osteoarthritis of the left knee (16 May 2011); osteoarthritis of the right knee (16 May 2011); allergic rhinitis (16 May 2011); right inguinal hernia (repaired) (16 May 2011); tinea of the skin (16 May 2011) and tinnitus (16 May 2011).
[5]Exhibit 2, T Documents.
In a claim form dated 31 January 2017[6], the Applicant stated as to “Details of the new disabilities you are now claiming as war or defence caused” a disability of “lower back problems”, with signs and symptoms “pain – restricted range of movement”[7]. In that claim form dated 31 January 2017[8], as to the question, “How do you believe your service caused, contributed to or aggravated this disability?”, the Applicant stated: “Lifting & carrying loads in excess of 35kgs during service”[9]. In the medical diagnosis, filled in by a medical practitioner, on the claim form, it was stated[10]:
[6]Exhibit 2, T Documents, T6, page 16, Formal Claim.
[7]Exhibit 2, T Documents, T6, page 9, Formal Claim.
[8]Exhibit 2, T Documents, T6, page 16, Formal Claim.
[9]Exhibit 2, T Documents, T6, page 9, Formal Claim.
[10]Exhibit 2, T Documents, T6, page 9, Formal Claim.
“Diagnosis
Lumbar Spondylotic change and L5/S1 L4 L5 disc bulge.
Basis for diagnosis
clinical history of back pain/stiffness
Restricted flexion of spine at 70 degrees
C7 lumbar spine
Spondylotic changes L2 L3 L5, S1
Disc bulging…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Keep reading for free
Create a free CaseChat account to read Sharrett and Repatriation Commission (Veterans' Entitlements... and more:
This matter concerned an application to review a decision of the Repatriation Commission that the applicant's lumbar spondylosis was not related to his service in the Australian Army. The applicant served from 1988 to 2012, including a deployment to East Timor. He had several other accepted disabilities under the *Veterans’ Entitlements Act 1986* (Cth) (VEA). The applicant claimed his lumbar spondylosis was caused by lifting and carrying loads exceeding 35 kilograms during his service.
The primary legal issue before the court was whether the applicant's lumbar spondylosis was a defence-caused condition under the VEA, or if it fell to be determined under the *Military Rehabilitation & Compensation Act 2004* (Cth) (MRCA). This distinction was crucial because the onset of the condition and its causal relationship to service after 30 June 2004 would necessitate its assessment under the MRCA, preventing compensation under the VEA. The applicant also contended that the clinical onset of his condition occurred prior to 1 July 2004.
The court considered the applicant's evidence of experiencing back pain during his service, including incidents in 1989 and during his deployment to East Timor, and his efforts to manage this pain to protect his career. However, the Repatriation Commission's decision was based on a medical opinion that the clinical onset of the lumbar spondylosis was 6 February 2017, which was after 30 June 2004. The Commission concluded that the condition was causally related to MRCA service due to the material contribution of lifting heavy weights. The court found that the applicant's hypothesis that the clinical onset of his lumbar spondylosis occurred prior to 1 July 2004 did not fit within the framework of the relevant Statements of Principles.
Consequently, the court affirmed the decision under review.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
This is an application to review the decision of the Respondent dated 3 May 2017[1], that the Applicant’s lumbar spondylosis is not related to service under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”).[1]Exhibit 2, T Documents, T5, page 3, Repatriation Commission Decision with Reasons.FACTUAL BACKGROUND The Applicant served in the Australian Army from 5 April 1988[2] to 4 February 2012[3]. The Applicant served in East Timor from 27 October 2003 to 28 January 2004[4]. [2]Exhibit 2, T Documents, T5, page 5, Repatriation Commissions Decision with Reasons.[3] Transcript, page 3, lines 20-21.[4]Exhibit 2, T Documents, T5, page 5, Repatriation Commissions Decision with Reasons. The Applicant has had disabilities accepted under the Act[5]: osteoarthritis of the left knee (16 May 2011); osteoarthritis of the right knee (16 May 2011); allergic rhinitis (16 May 2011); right inguinal hernia (repaired) (16 May 2011); tinea of the skin (16 May 2011) and tinnitus (16 May 2011). [5]Exhibit 2, T Documents. In a claim form dated 31 January 2017[6], the Applicant stated as to “Details of the new disabilities you are now claiming as war or defence caused” a disability of “lower back problems”, with signs and symptoms “pain – restricted range of movement”[7]. In that claim form dated 31 January 2017[8], as to the question, “How do you believe your service caused, contributed to or aggravated this disability?”, the Applicant stated: “Lifting & carrying loads in excess of 35kgs during service”[9]. In the medical diagnosis, filled in by a medical practitioner, on the claim form, it was stated[10]: [6]Exhibit 2, T Documents, T6, page 16, Formal Claim.[7]Exhibit 2, T Documents, T6, page 9, Formal Claim.[8]Exhibit 2, T Documents, T6, page 16, Formal Claim.[9]Exhibit 2, T Documents, T6, page 9, Formal Claim.[10]Exhibit 2, T Documents, T6, page 9, Formal Claim.“Diagnosis Lumbar Spondylotic change and L5/S1 L4 L5 disc bulge. Basis for diagnosis clinical history of back pain/stiffness Restricted flexion of spine at 70 degrees C7 lumbar spine Spondylotic changes L2 L3 L5, S1Disc bulging on L4 L5 L5 S1 When did the veteran first consult you for this condition? 01/02/2017.” On 6 February 2017 the Applicant had the disabilities of lumbar spondylosis and sensorineural hearing loss accepted under the Military Rehabilitation and Compensation Act 2004 (Cth)[11]. The disabilities not accepted under the Act were[12]: perforated ear drum (21 May 2012), bilateral sensorineural hearing loss (20 April 2017) and lumbar spondylosis (12 March 2018). [11]Exhibit 2, T Documents.[12]Exhibit 2, T Documents. On 3 May 2017 it was decided by the Respondent that lumbar spondylosis is not related to service[13]. The reasons for decision stated relevantly[14]:“[The Applicant] has contended that his lumbar spondylosis was caused by lifting and carrying loads in excess of 35 kilograms during service. I have determined lumbar spondylosis using Statement of Principles, Instrument numbers 62 and 63 of 2014, which set out the factors known to contribute to this condition. · Clinical onset of lumbar spondylosisCT report of the lumbar spine, dated 06/02/2017, was submitted to a contracted Departmental Medical Officer for a medical opinion. Defence Central Medical Records indicate that there was no trauma to the spine, nor any records of having suffered back pain during [the Applicant’s] service. Medical opinion stated that the clinical onset of lumbar spondylosis was 06/02/2017.Reason for refusal Sections 9A and 70A of the Veterans’ Entitlements Act 1986 (VEA) provide that disabilities having their onset after 30 June 2004 and which are causally related to service after 30 June 2004 can only be compensated under the Military Rehabilitation & Compensation Act 2004 (MRCA). In this case, the evidence is that the onset of the veteran’s claimed condition of lumbar spondylosis was after 30 June 2004 and that it is causally related to MRCA service because of material contribution of lifting heavy weights. I am therefore prevented from accepting the condition as related to service under the VEA. The claim for lumbar spondylosis is therefore refused.”[13]Exhibit 2, T Documents, T5, page 3, Repatriation Commissions Decision with Reasons.[14]Exhibit 2, T Documents, T5, page 6, Repatriation Commissions Decision with Reasons.
Evidence
Evidence Before The Court
The Application to this Tribunal dated 7 May 2018 stated as to the reasons for application[18]: “We believe that the condition should come under VEA service. We also believe the clinical onset was prior to 1 July 2004.” [18]Exhibit 2, T Documents, T1, page A4, Application to the AAT.EVIDENCE The Applicant gave oral evidence at the Hearing[19]. [19]Transcript, 4 June 2019, P-8 and P-21. The Applicant referred in oral evidence to back pain during his service. The Applicant referred to pain ‘every time [h]e ran on bitumen’ at Kapooka, after joining the Army[20]. The Applicant stated that his back “sort of started” aching at the bottom of the hill at Canungra in 1989, when he was 19, doing “battle in training”, with a pack on and carrying a Bren gun[21]. The Applicant stated[22]:“I did go to the RAP that night and say … I’m in a bit of pain and the medic said … here’s a couple of Panadol but there’s not much we can do for your back out here. If it continues to hurt, then, obviously, come to the RAP when we get back to base and we’ll sort it out. So, I just took the Panadol for a couple of days and continued on but when I got back to base, my back started to get better. Obviously, I’d finished doing that and after a lot of discussions with other soldiers, they sort of said if your back’s gone, that’s the end of your career, that’s it, so don’t report your back because you’ll go and, still to this day, pretty much once you get a sore back, it’s - so I started to manage it throughout my career because in that same unit we used to lift Mack truck sides, and they weighed a fair bit. I don’t know offhand but they were very heavy and when you had to lift them, you had to lift them up to the tray of the truck because they were four-wheel drive trucks and the trays are quite high and you have to - you have to like clean and jerk to get them up to that height and then put them in recesses and move them forward. Very - to do that all the time, your back starts to ache. Obviously I did that a lot in those first few years in 5 Transport Squadron. I then moved to a domestic unit where things settled down and I was able to rest my back because it was - we drove buses and cars, and things like that, where lifting wasn’t really that much. My back would still hurt when we run on concrete, because we had to do a 5 kilometre BFA, … your lower back would ache from the jarring on concrete because I was a heav[y] person as well. So, we’d run that 5 kilometres but the next posting. when I went to Townsville, that was reduced from a 5 kilometre run down to a 2.4 kilometre run. So, that eased my back a lot and it was a lot better after that and I managed it as it went. So, if I got a sore back I would just manage it for a week or two and let it go. If I needed to go to the RAP, I’d just go to the RAP and just say it was a sore leg or a sore knee because that was easier than going and saying that you had a sore back because if you had a sore back, it was a problem that you - you were looking at a lot more time off and - and worried about your career. Obviously my pension system that I got through the military, you had to do 20 years to get the pension, so there was no way I was going to give that up to get a lifelong pension, so I did everything I could and stuck up with every bit of pain I could, either by using alcohol or whatever but - also in East Timor, when I was over there, the - the - East Timor was closing down. If you remember it closed down for a couple of years and then started up again. As it was - as we were sort of closing the country down, as in the Defence Force being there, we were withdrawing everything. So, we were doing a lot of loading, a lot of lifting of those Mack sides because we were changing trucks constantly for troop lifting, so that involved pulling the truck apart, the back of it, and then loading with generators and chains and dogs, also fuel, all sorts of stuff and there was a hell of a lot of lifting and carrying in that and we obviously worked seven days a week most weeks and - and 12 hours a day. There was no stopping and when I came back to Australia, that’s when I started to get promoted and - and go through the stream to get to sergeant on a discharge.”[20]Transcript, 4 June 2019, P-8, lines 32-37.[21]Transcript, 4 June 2019, P-9, lines 23-41.[22]Transcript, 4 June 2019, P-9, line 47 and P-10, lines 1-46.
Decision
Reasons for decision
As the hypothesis that the clinical onset of lumbar spondylosis was prior to 1 July 2004 “fails to fit” within the template of the Statement of Principles[43], the hypothesis is deemed not to be “reasonable” and the application therefore fails as to the disability being accepted under the Act[44]. [43]Statement of Principles concerning Lumbar Spondylosis No. 62 of 2014; Statement of Principles concerning Lumbar Spondylosis No. 63 of 2014 and Amendment Statement of Principles concerning Lumbar Spondylosis No. 68 of 2018.[44]Repatriation Commission v Deledio[1998] FCA 391; (1998) 83 FCR 82 at 83-85, as quoted in Kaluza v Repatriation Commission [2014] FCA 1137 at [69].DECISION The decision under review is affirmed.
